Thursday, July 1, 2004

Part III

Department of the Interior Fish and Wildlife Service

50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Three Threatened Mussels and Eight Endangered Mussels in the Mobile River Basin; Final Rule

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DEPARTMENT OF THE INTERIOR or from our Web site at http:// the habitat needs of all 1,244 listed southeast.fws.gov/hotissue. species through conservation Fish and Wildlife Service If you would like copies of the mechanisms such as listing, section 7 regulations on listed wildlife or have consultations, the section 4 recovery 50 CFR Part 17 questions about prohibitions and planning process, the section 9 permits, please contact the appropriate protective prohibitions of unauthorized RIN 1018–AI73 State Ecological Services Field Office: take, section 6 funding to the States, and Alabama Field Office, U.S. Fish and the section 10 incidental take permit Endangered and Threatened Wildlife Wildlife Service, PO Box 1190, Daphne, process. The Service believes it is these and Plants; Designation of Critical AL 36526 (telephone 251–441–5181); measures that may make the difference Habitat for Three Threatened Mussels Georgia Field Office, USFWS, 247 South between extinction and survival for and Eight Endangered Mussels in the Milledge Ave., Athens, GA 30605 (706– many species. Mobile River Basin 613–9493); Mississippi Field Office (see Procedural and Resource Difficulties in ADDRESSES section above); Tennessee AGENCY: Fish and Wildlife Service, Designating Critical Habitat Field Office, USFWS, 446 Neal Street, Interior. Cookeville, TN 38501 (931–528–6481). We have been inundated with ACTION: Final rule. lawsuits for our failure to designate FOR FURTHER INFORMATION CONTACT: Paul critical habitat, and we face a growing SUMMARY: We, the U.S. Fish and Hartfield, Mississippi Field Office number of lawsuits challenging critical Wildlife Service (Service), designate 26 (telephone 601–321–1125, facsimile habitat determinations once they are river and stream segments (units) in the 601–965–4340). made. These lawsuits have subjected the Mobile River Basin, encompassing a SUPPLEMENTARY INFORMATION: Service to an ever-increasing series of total of approximately 1,760 kilometers Designation of Critical Habitat Provides court orders and court-approved (km) (1,093 miles (mi)) of river and Little Additional Protection to Species settlement agreements, compliance with stream channels, as critical habitat for which now consumes nearly the entire three threatened (fine-lined pocketbook, In 30 years of implementing the Act, listing program budget. This leaves the orange-nacre mucket, and Alabama the Service has found that the Service with little ability to prioritize its moccasinshell) and eight endangered designation of statutory critical habitat activities to direct scarce listing freshwater mussels (Coosa provides little additional protection to resources to the listing program actions moccasinshell, ovate clubshell, southern most listed species, while consuming with the most biologically urgent clubshell, dark pigtoe, southern pigtoe, significant amounts of available species conservation needs. triangular kidneyshell, southern conservation resources. The Service’s The consequence of the critical acornshell, and upland combshell), present system for designating critical habitat litigation activity is that limited under the Endangered Species Act of habitat has evolved since its original listing funds are used to defend active 1973, as amended (Act). Critical habitat statutory prescription into a process that lawsuits, to respond to Notices of Intent includes portions of the Tombigbee provides little real conservation benefit, (NOIs) to sue relative to critical habitat, River drainage in Mississippi and is driven by litigation and the courts and to comply with the growing number Alabama; portions of the Black Warrior rather than biology, limits our ability to of adverse court orders. As a result, River drainage in Alabama; portions of fully evaluate the science involved, listing petition responses, the Service’s the Alabama River drainage in Alabama; consumes enormous agency resources, own proposals to list critically portions of the Cahaba River drainage in and imposes huge social and economic imperiled species and final listing Alabama; portions of the Tallapoosa costs. The Service believes that determinations on existing proposals are River drainage in Alabama and Georgia; additional agency discretion would all significantly delayed. and portions of the Coosa River drainage allow our focus to return to those The accelerated schedules of court in Alabama, Georgia, and Tennessee. actions that provide the greatest benefit ordered designations have left the We solicited data and comments from to the species most in need of Service with almost no ability to the public on all aspects of this protection. provide for adequate public participation or to ensure a defect-free designation, including data on Role of Critical Habitat in Actual rulemaking process before making economic and other impacts of the Practice of Administering and decisions on listing and critical habitat designation. This publication also Implementing the Act provides notice of the availability of the proposals due to the risks associated final economic analysis for this While attention to and protection of with noncompliance with judicially- designation. habitat is paramount to successful imposed deadlines. This in turn fosters conservation actions, we have a second round of litigation in which DATES: This rule is effective August 2, consistently found that, in most those who fear adverse impacts from 2004. circumstances, the designation of critical habitat designations challenge ADDRESSES: Comments and materials critical habitat is of little additional those designations. The cycle of received, as well as supporting value for most listed species, yet it litigation appears endless, is very documentation used in the preparation consumes large amounts of conservation expensive, and in the final analysis of this final rule, are available for public resources. Sidle (1987) stated, ‘‘Because provides relatively little additional inspection, by appointment, during the ESA can protect species with and protection to listed species. normal business hours at the without critical habitat designation, The costs resulting from the Mississippi Ecological Services Field critical habitat designation may be designation include legal costs, the cost Office, U.S. Fish and Wildlife Service, redundant to the other consultation of preparation and publication of the 6578 Dogwood View Parkway, Suite A, requirements of section 7.’’ Currently, designation, the analysis of the Jackson, MS 39213. only 446 or 36 percent of the 1252 listed economic effects and the cost of You may obtain copies of the final species in the U.S. under the requesting and responding to public rule or the economic analysis from the jurisdiction of the Service have comment, and in some cases the costs address above, by calling 601/965–4900, designated critical habitat. We address of compliance with the National

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Environmental Policy Act (NEPA), all potential threat is the black carp reopening (69 FR 1960), we requested are part of the cost of critical habitat (Mylopharyngodon piceus), a mollusk- all interested parties to submit designation. None of these costs result eating Asian fish used to control snails comments or information concerning in any benefit to the species that is not in commercial fish farms. If introduced the proposed designation of critical already afforded by the protections of or established in the Mobile River Basin, habitat for the 11 mussels. We contacted the Act enumerated earlier, and they the black carp is likely to have a all appropriate State and Federal directly reduce the funds available for considerable impact on native agencies, county governments, elected direct and tangible conservation actions. freshwater mussels and snails (67 FR officials, scientific organizations, and 49280, July 30, 2002). other interested parties and invited Background them to comment. We also published Previous Federal Actions This final rule addresses 11 mussels newspaper notices inviting public in the family Unionidae that are native On October 12, 2000, the Southern comment in the following newspapers: to the Mobile River Basin, including the Appalachian Biodiversity Project filed a The Clarion-Ledger, Jackson, MS; The threatened fine-lined pocketbook lawsuit in U.S. District Court for the Commercial Dispatch, Columbus, MS; (Lampsilis altilis), orange-nacre mucket Eastern District of Tennessee against the The Montgomery Advertiser, (Lampsilis perovalis), and Alabama Service, the Director of the Service, and Montgomery, AL; The Birmingham moccasinshell (Medionidus the Secretary of the Department of the News, Birmingham, AL; The Clay acutissimus), and the endangered Coosa Interior, challenging our not Times-Journal, Lineville, AL; The Rome moccasinshell (Medionidus parvulus), determinable findings regarding critical News-Tribune, Rome, GA; The Times southern clubshell (Pleurobema habitat for 9 of the 11 Mobile River Georgian, Carolton, GA; The Haralson decisum), dark pigtoe (Pleurobema Basin listed mussels. On November 8, Gateway Beacon, Bremen, GA; The furvum), southern pigtoe (Pleurobema 2001, the District Court issued an order Douglas County Sentinel, Douglasville, georgianum), ovate clubshell directing us to make a proposed critical GA; The Cleveland Daily Banner, (Pleurobema perovatum), triangular habitat designation for these 11 Mobile Cleveland, TN; and The Chattanooga kidneyshell (Ptychobranchus greenii), River Basin mussels no later than March Times Free Press, Chattanooga, TN. upland combshell (Epioblasma 17, 2003, and the final designation by At the public hearing, we received metastriata), and southern acornshell March 17, 2004. The District Court later eight oral comments, including three (Epioblasma othcaloogensis). It is our extended our deadline on January 8, supporting the designation and five intent, in this final rule, to discuss 2004 to submit the final rule to the opposing it. A transcript of the hearing information obtained since the proposed Office of the Federal Register not later is available for inspection (see critical habitat designation. Please refer than June 17, 2004. ADDRESSES section). During the to our proposed critical habitat rule (68 Other Federal actions for these comment periods, we received FR 14752, March 26, 2003) for a more species prior to March 26, 2003, are comments from two State agencies, two detailed discussion of the species’ outlined in our proposed rule to counties, four cities, three Federal taxonomic history, physical description, designate critical habitat for 11 Mobile agencies, one business, 12 groups, and and our current understanding of their River Basin mussels (68 FR 14752). 43 individuals. Of the 90 written historic and current range and Publication of the proposed rule opened comments we received, 37 supported distribution. a 60-day comment period, which closed critical habitat designation, 47 opposed on June 24, 2003. The comment period Summary of Factors Affecting the designation, and 6 were neutral or was reopened August 14, 2003, through Species provided additional information. October 14, 2003, in order to receive We directly notified and requested Please refer to our proposed rule (68 comments on a draft economic analysis comments from all affected States. FR 14752, March 26, 2003) for a (DEA), and to extend the comment Georgia Department of Natural discussion of Factors Affecting the period on the proposed designation to Resources submitted comments in Species for all 11 mussels. We have accommodate a public hearing, which support of the designation. The included here where appropriate only was held October 1, 2003, in Tombigbee River Valley Water new information for these mussels. Birmingham, Alabama (68 FR 48581). Management District, an agency of the Limited habitat and small population Following closure of the second State of Mississippi, opposed size also render these 11 species comment period on October 14, 2003, designation of units in northeastern vulnerable to competition or predation we became aware that we had not Mississippi. The States of Alabama and from nonnative species (Neves et al., directly notified four of the counties Tennessee expressed no position. 1997). The Asian clam, Corbicula affected by the proposed critical habitat Peer Review fluminea, has invaded all major designation, as required under section drainages of the Mobile River Basin, 4(b)(5) of the Act. We notified the In accordance with our peer review however, little is known of the effects of counties and provided them copies of policy published in the Federal Register competitive interaction between Asian the proposed designation and on July 1, 1994 (59 FR 34270), we clams and native species. Decline and information on the DEA on December requested the expert opinions of four even disappearance of native mussels 12, 2003. On January 13, 2004, we independent specialists who are due to competition with the exotic zebra reopened the comment period through recognized authorities on freshwater mussel (Dreissena polymorpha) and the January 23, 2004, to receive comments mussels and the Mobile River Basin quagga mussel (D. bugensis) have been from the counties and other interested regarding pertinent scientific or documented in the Great Lakes and parties (69 FR 1960). commercial data and assumptions Mississippi River Basin (Neves et al., relating to the supporting biological and 1997). Although zebra and quagga Summary of Comments and ecological information in the proposed mussels are not currently known to Recommendations designation. The purpose of such review inhabit the Mobile Basin, the During the open comment periods for is to ensure that the designation is based Tennessee-Tombigbee Waterway and the proposed rule (68 FR 14752), public on scientifically sound data, commercial and recreational boating hearing and draft economic analysis (68 assumptions, and analyses, including offer an avenue of introduction. Another FR 48581), and the January 2004 input of appropriate experts and

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specialists. All four experts submitted studies, however, have placed both threatened species receive the same written responses that the proposal populations with the Georgia pigtoe, not protection under the Act. included a thorough and accurate with the ovate clubshell (Dr. David (6) Comment: Designation of critical review of the available scientific and Campbell, University of Alabama, in litt. habitat should encompass areas in need commercial data on these mussels and 2004). The Coosa River drainage is of significant restoration and structural their habitats. One peer reviewer within the historical range of the ovate change (e.g., impounded reaches), not supplied several specific edits and clubshell, therefore, in this final rule, just those relatively far from the additional records. Comments from peer we are changing Unit 18 from occupied hydrologic control systems. Areas reviewers are included in the summary to unoccupied, so both Units 18 and 25 without constituent elements, but with below and have been incorporated into are designated as unoccupied habitat for potential of restoration, should be this final rule. the ovate clubshell. included in the designation. We reviewed all comments received (3) Comment: The upper boundary of Response: The Endangered Species for substantive issues and new data Holly Creek in Unit 25 (confluence of Act does not allow us to designate areas regarding the mussels and critical Rock Creek) is incorrectly identified. that do not now have one or more of the habitat, and the draft economic analysis. Response: The legal description and primary constituent elements, as Written comments and oral statements map of Unit 25, as published in our defined at 50 CFR 424.12(b), which presented at the public hearing and proposed rule and this final rule, is provide essential life cycle needs of the received during the comment periods correct. There are two Rock Creeks in species. Areas proposed for designation are addressed in the following the Holly Creek Drainage. The as critical habitat must have one or more summary. For readers’ convenience, we latitudinal and longitudinal coordinates primary constituent elements, and the have assigned comments to major issue provided in our regulation are correct to areas must be essential to their categories and we have combined the appropriate Rock Creek confluence. conservation (see ‘‘Critical Habitat,’’ similar comments into single comments below). Constituent elements required and responses. Public Comments by riverine mussel species are typically no longer present in impounded reaches Peer Review Comments Issue A: Comments on Adequacy and Extent of Critical Habitat (e.g., flow, water quality, substrate, host (1) Comment: The critical habitat fishes, etc.). In addition, while dams proposal did not outline what actions (4) Comment: It is not clear that the and their impounded waters are not will be taken or proposed subsequent to amount of habitat proposed is adequate permanent structures from a geological critical habitat designation to for conservation of the species. perspective, large hydropower or implement conservation measures in the Response: Our analysis identified navigation dams impounding extensive 26 units. these 26 critical habitat units as areas and supporting a complex Response: Conservation measures for essential to the conservation of the 11 economic infrastructure are unlikely to these species and their habitats are mussel species (see ‘‘Analysis Used to be removed within the foreseeable outlined in the Mobile River Basin Delineate Critical Habitat,’’ below). future. Aquatic Ecosystem Recovery Plan (U.S. Based on the best available information, (7) Comment: The map of the Fish and Wildlife Service, 2000). we believe that with special proposed critical habitat designation is Propagation and release protocols for management considerations and a textbook design of fragmentation. The mussels are outlined in the Plan for protection of these habitats, and the proposed designation fails to allow for Controlled Propagation, Augmentation development of appropriate species reestablishment and recovery by only and Reintroduction for Freshwater management technology, protocols, and including areas where the species are Mussels and Snails of the Mobile River information, these 11 species can be currently found and ignoring the larger Basin (U.S. Fish and Wildlife Service, conserved within these 26 critical historical range. 2003). habitat units. Response: The Mobile River Basin is (2) Comment: There is some (5) Comment: Threatened mussels an example of endangerment and taxonomic confusion regarding the will receive more critical habitat than extinction due to habitat fragmentation ovate clubshell in Units 18 and 25 in the the endangered species. This tends to and population isolation (see the Mobile Coosa River drainage. protect threatened species more than River Basin Aquatic Ecosystem Response: In the proposed rule, Unit endangered species. Recovery Plan (U.S. Fish and Wildlife 25 was proposed for designation as Response: The disparity in quantity of Service, 2000)). We considered the past currently unoccupied habitat for the critical habitat proposed for the and future effects of habitat ovate clubshell, while Unit 18 was individual species is an artifact of the fragmentation on the historical range of proposed for designation as occupied mussel species’ historical distributions, all 11 species (see ‘‘Factors Affecting the habitat. There has been some confusion their habitats, and their status. For Species’’ in the proposed rule, and among malacologists over the identity of example, all three threatened species ‘‘Analysis Used to Delineate Critical some collections of small mussel historically occurred in a wider variety Habitat’’ below), and have designated species of the genus Pleurobema in the of habitats (e.g., small headwater unoccupied habitat for all 11 species Coosa River drainage. Recent collections streams to large rivers) than most of the (and for all but one unit occupied by at have been made of a small species from endangered species. Therefore, there is least one other mussel) to allow for their the Conasauga River (Unit 25) that has more habitat available for their reestablishment and conservation. been variously identified by researchers conservation over a wider area. In (8) Comment: The Service should as Alabama clubshell (Pleurobema contrast, the endangered dark pigtoe designate areas upstream from occupied troschelianum) or Georgia pigtoe (P. was restricted to small rivers and large areas and stream side buffers to protect hanleyanum), species similar in streams in only the Black Warrior River the species. morphology to the ovate clubshell (P. drainage. For several of the other Response: Critical habitat perovatum). Recent collections of endangered species, a larger proportion designations have relevance to section 7 mussels referred to as ovate clubshell of their historic habitats have been consultations, which apply solely to have also been made in the Coosa River rendered unsuitable by impoundment, Federal actions. When evaluating the below Weiss Dam (Unit 18). Genetic pollution, etc. Both endangered and effects of any Federal action subject to

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a section 7 consultation, activities their decline and the degree of comment on the proposed designation upstream or along the margin of a fragmentation and isolation of their and draft economic analysis. We have designated area must be considered for habitats. We have designated habitat complied with or exceeded all of the adverse impacts to critical habitat. units 1–25, which are currently notification requirements of the Act. Therefore, specific designation of areas occupied by one or more of the 11 (13) Comment: The Service did not above or adjacent to stream channel mussels, because they are essential for comply with the National critical habitats are unnecessary. the conservation of the species. Environmental Policy Act (NEPA). Identification of the stream channel as However, although each of these units Under NEPA, the magnitude of critical habitat will provide notice to supports small populations of one or economic impacts requires preparation Federal agencies to review activities more of the 11 species, they are isolated of an Environmental Impact Statement. conducted within the drainage on their from each other, and are subject to Response: Environmental assessments potential effects to the channel, and will future chance catastrophic events and to and environmental impact statements, alert third parties of the importance of changes in human activities and land as defined under NEPA, are not required the area to the survival of the species. use practices that may result in the for regulations enacted under section 4 (9) Comment: A habitat focused elimination. Therefore, it is essential to of the Act (see 48 FR 49244). Population Viability Analysis (PVA) identify all opportunities to conserve (14) Comment: The Service has no should be conducted to identify areas these mussels. Opportunities for delegated authority to designate, where habitat restoration should occur. expanding the range of these species regulate, or confiscate anything on Response: A great deal of information outside of currently occupied areas are private land. is necessary before a meaningful PVA limited due to the degree of habitat Response: The Service is required can be conducted for a species, e.g., life alteration that has occurred in the Basin. when prudent to designate critical history, mortality rates, demographics, Unit 26 represents a rare opportunity in habitat under the Endangered Species habitat, and interactions with other the Basin for extending the range of 9 Act. Critical habitat designation does species. Most of this information is of the 11 species (see ‘‘Analysis Used to not regulate private actions on private unavailable for these 11 mussels and we Delineate Critical Habitat,’’ above), an lands or confiscate private property. It are unable to conduct a meaningful PVA action identified as necessary for the does not affect individuals, at this time. We will continue to recovery of the species. Areas organizations, States, local governments conduct and support research to designated as critical habitat have one or other non-Federal entities that do not develop this information on these or more primary constituent elements, require Federal permits or funding. mussel species. and are essential to the conservation of (15) Comment: The proposed (10) Comment: Mussels require a fish the 11 mussels. designation of critical habitat is host for juvenile survival and unconstitutional. recruitment. Therefore, the range of fish Issue B: Procedural and Legal Response: The constitutionality of the hosts must be considered in the Comments Act in authorizing the Service’s designation. (12) Comment: Landowners have not protection of endangered and threatened Response: Information on fish hosts been contacted and given the species has consistently been upheld by has been considered in this designation opportunity to respond to the proposed the courts. See, e.g., GDF Realty (see ‘‘Analysis Used to Delineate Critical designation. Most landowners and the Investments, Ltd. v. Norton, 326 F.3d Habitat,’’ below). All of the critical people of Alabama did not know of the 622 (5th Cir. 2003); Gibbs v. Babbitt, 214 habitat units are within the historic comment deadline, therefore, the F.3d 483 (4th Cir. 2000); National range of the host fishes that have been comment period should be extended. Association of Homebuilders v. Babbitt, identified for these mussels, and are Response: When we issue a proposed 130 F.3d 1041 (D.C. Cir. 1997), cert. known or believed to currently support rule, we want to ensure widespread denied, 524 U.S. 937 (1998); Rancho the host fish for one or more of the knowledge and opportunity for the Viejo v. Norton, No. 01–5373 (D.C. Cir. mussel species for which they are public to comment, particularly among 2003); and United States v. Hill, 896 F. designated. those who may be potentially affected Supp. 1057 (D. Colo. 1995). (11) Comment: The Service failed to by the action. The proposed designation (16) Comment: The failure to protect demonstrate that areas currently covered portions of four states; these mussels’ habitats will result in occupied by the mussels are inadequate therefore, it was impossible to extinction of the species; therefore, the for their conservation, or that the personally contact all landowners in the economic analysis is irrelevant. proposed units are indispensable and area. We attempted to ensure that as Response: Section 4(b)(2) of the Act absolutely necessary for species’ many people as possible would be requires us to consider the economic, conservation. aware of the proposed designation national security, and other relevant Response: The administrative record through press releases to all major impacts of designating a particular area demonstrates that areas currently media in the affected area, including as critical habitat. occupied by the mussels are inadequate those in State capitols and major cities, (17) Comment: The needs of the for their conservation. Our final rule publication of newspaper notices, and mussel species would be better listing these species under the Act (58 direct notification of affected State and addressed in the context of the ongoing FR 14330) identified loss of habitat as a Federal agencies, environmental groups, Alabama-Coosa-Tallapoosa (ACT) River primary factor in their status. Our major industries, State Governors, Basin Compact process rather than proposed designation (see ‘‘Factors Federal and State elected officials, and critical habitat designation. Affecting the Species’’) and this final County Commissions (see ‘‘Previous Response: In the case of these designation (see ‘‘Analysis Used to Federal Actions,’’ above). We repeated mussels, the Act requires us to designate Delineate Critical Habitat,’’ below) as this process upon availability of the critical habitat. Critical habitat well as the Mobile River Basin Aquatic draft economic analysis and for the designation only affects Federal actions Ecosystem Recovery Plan (U.S. Fish and October 1, 2003, public hearing. In or activities or those authorized or Wildlife Service 2000) note that January 2004, we reopened the funded by the Federal Government. recovery of the 11 mussels in the near comment period a third time to ensure Identification of critical habitat, future is unlikely due to the extent of that all would have the opportunity to therefore, should assist Federal agencies

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involved in facilitating the ACT species’ assemblages, and habitat status to a species. The lawsuit was Compact negotiations. conditions in evaluating streams for the brought because we did not meet the (18) Comment: The Service must upland combshell and southern one-year deadline for designating explain why some areas are included as acornshell. We selected those which critical habitat for 9 of the 11 species. critical habitat and others are not. have the best potential for, and we We are required by the Act to designate Response: The ‘‘Analysis Used to believe are essential to, the conservation critical habitat for all 11 species, Delineate Critical Habitat’’ (see below), of these two mussels. Fish hosts are therefore, we have determined critical discusses why these 26 units were currently unknown for the upland habitat for the two species that were not proposed. In summary, 25 of the 26 combshell, southern acornshell, and in the original lawsuit. units currently support one or more of ovate clubshell. However, the units Issue C: Comments on Individual Units the species. Many river and stream proposed for these species support a reaches that historically supported the diverse assemblage of fish species, (23) Comment: The mussel fauna of species are impounded or otherwise including fish species and guilds (e.g., the North River (Unit 11) is uncommon affected by human activities to the darters, minnows, sculpins, bass, to rare, and is currently affected by low extent that they no longer provide the catfish, etc.) that are known as hosts or seasonal flows, heavy siltation, and physical or biological features essential potential hosts for closely related Asian clams. Therefore, the North River for the species’ conservation. In species. lacks constituent elements as defined in addition, single site occurrence records (21) Comment: Scattered collections the proposal. Exclusion of Unit 11 will of a single species were also not of an endangered mussel over a reach of not result in the extinction of the dark considered essential because of limited river does not suggest an enduring pigtoe and orange-nacre mucket, habitat availability, isolation, degraded population throughout the reach, therefore, it is not essential to their habitat, and/or low management value therefore, not all of the reach is actually conservation. or potential. Unit 26 represents a rare being ‘‘occupied.’’ Relic collections in Response: The primary constituent situation where some primary currently degraded habitats should not elements (geomorphology, flow, water constituent elements (i.e., flow, water be used to declare entire reaches of quality, etc.) in the North River Unit are quality) have experienced significant stream as critical habitat. adequate to support small populations improvements during the past decade. Response: Rare mussels can be very of the endangered dark pigtoe and the (19) Comment: The proposed rule difficult to locate in their stream and threatened orange-nacre mucket. There made no determination as to why the river habitats. There are recent are only two known populations of the units may need special management or collections of live or freshly dead listed dark pigtoe, the North River (Unit 11), protection. mussel species from all of the occupied and Sipsey Fork (Unit 10). As noted in Response: The proposal made a units. Designating only the specific the ‘‘Summary of Factors Affecting the determination that the 26 units may locations where mussels have been Species’’ in the proposed rule, isolated require special management or collected does not take into populations are vulnerable to protection (see ‘‘Need for Special consideration the habitat requirements extirpation by random catastrophic Management Consideration or of mussels or their host fish, and would events. For example, in a recently Protection,’’ below). In this section, we not provide for the conservation of the released report on the mussels of the referred the reader to ‘‘Effects of Critical species. Although recent collections Sipsey Fork of the Black Warrior River Habitat’’ section (see below), where may be localized, the physical drainage, it was found that populations Federal actions that may destroy or conditions where they occur are driven of listed mussels, including the dark adversely modify these units are by stream channel conditions and pigtoe, were significantly reduced by outlined. Such activities are dynamics, both up- and downstream. the 2000 drought (Haag and Warren individually or collectively responsible Periodic collections of listed species 2003b). Because of the extent of habitat for the extirpation of these species from and other mussel species indicate that modification, fragmentation, and significant portions of their ranges (see the occupied units contain the primary isolation, multiple populations are ‘‘Summary of Factors Affecting the constituent elements necessary for the necessary to ensure the conservation of Species,’’ in the proposed rule). Habitat conservation of the species for which these mussel species (see ‘‘Analysis fragmentation and isolation render all they are designated. The upper and Used to Delineate Critical Habitat,’’ 26 critical habitat units ever more lower limits of the units are generally below). Therefore, the North River is vulnerable to activities that may affect defined by changes in habitat that may essential to the conservation of the dark the primary constituent elements within render the areas less valuable for pigtoe and the orange-nacre mucket. these units. conservation of the species. (24) Comment: Construction and (20) Comment: Neither the current (22) Comment: Unit 11 (North River) management plans of the Tom Bevill distribution nor the host fish are known should be excluded from the Reservoir in the North River have for the upland combshell and southern designation because the dark pigtoe and undergone Service consultation on acornshell, therefore, critical habitat orange-nacre mucket were not included effects to the orange-nacre mucket and cannot be identified. in the original lawsuit. Therefore, the dark pigtoe. Any further modifications Response: Extant populations of the designation of other Units will satisfy to the reservoir will be unreasonable, upland combshell and southern the plaintiff’s original intent. unwarranted, and inappropriate. acornshell are currently unknown. Response: In 1993, we published a Response: After reviewing the However, mussels are cryptic species final rule listing these 11 species under location of the Tom Bevill Reservoir living embedded in the bottom of rivers, the Act. In that rule we found that (which is 2.4 miles above the upper and rare species may be difficult to find. critical habitat was prudent, but not limit of designated critical habitat in the For example, the heavy pigtoe determinable. In making a ‘‘not North River) and the Biological Opinion (Pleurobema taitianum) had not been determinable’’ finding on critical (U.S. Fish and Wildlife Service 1994), collected from the Alabama River for 30 habitat, the Act requires us to publish a we now believe that construction of the years and was thought extirpated prior final designation of critical habitat reservoir will not adversely modify to being found in 1997. We used within one year of the final regulation critical habitat in the designated portion collection history, surviving mussel implementing endangered or threatened of the North River, if the Reasonable and

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Prudent Measures and Terms and the species is not present if they are beds with similar species composition, Conditions outlined in the Biological adjacent to areas occupied by the and it is likely that the southern Opinion are implemented. species and essential to their clubshell occurs in other areas within (25) Comment: It is not apparent that management and protection (50 CFR this reach. The Alabama River unit either the Locust Fork (Unit 12) or 424.12(d)). The low dam is inundated supports the last surviving large coastal Cahaba River (Unit 13) contain viable several times a year during high water plain river population of southern habitat to sustain the listed mussels due conditions allowing movement of host clubshell, and is representative of the to sedimentation and other water fishes, and possibly attached glochidia. historical, geographical and ecological quality problems. Three reaches of the Although the impounded portion does distribution of the species. This area Locust Fork, and the Cahaba River are not contain all constituent elements and also may be suitable for the currently on the draft 2002 Alabama it is unlikely that the mussels would reintroduction of the orange-nacre 303d list of impaired waters. Based on occur immediately behind the lowhead mucket. existing habitat and species dam, this short reach is important in (29) Comment: FWS has not requirements, critical habitat does not maintaining downstream water quality demonstrated that Unit 26, Coosa River, occur within the majority of the Locust and quantity. It also connects the is essential to the conservation of the Fork or Cahaba River systems. channel above and below the low dam species. Response: The continued presence of during high waters where the triangular Response: Conservation of the species the orange-nacre mucket and triangular kidneyshell, orange-nacre mucket, and requires ensuring survival through kidneyshell in both the Cahaba River fine-lined pocketbook are known to establishing multiple populations by and Locust Fork, and the persistence of survive. expanding their ranges into currently the fine-lined pocketbook in the Cahaba, (27) Comment: Fresh dead shells of unoccupied portions of their historic indicates that constituent elements are orange-nacre mucket, fine-lined habitats. The Coosa moccasinshell present to a degree that allows for the pocketbook and triangular kidneyshell occupies one unit, Unit 25, which survival of these and other mussel have been recently observed in the makes the population for this species species. The mussel populations in Cahaba River from St. Clair County especially vulnerable to stochastic these two designated reaches have Road 10 to U.S. Highway 78 in Jefferson events. The Coosa River in Unit 26 survived decades of periodic water County, Alabama. Since these species presents the best opportunity for pollution. By placing the Cahaba River currently occur in this reach, it should reestablishing populations of 9 of the 11 and portions of the Locust Fork on the be added to Unit 13. species, including the Coosa 303d list, the State of Alabama is Response: We selected U.S. Highway moccasinshell (see ‘‘Analysis Used to recognizing ongoing water quality 82 as the upper extent of critical habitat Delineate Critical Habitat,’’ below). Unit problems and its commitment to in the Cahaba River because this was the 26 is also representative of a historic address these problems through upper-most location of historic habitat (Coosa River ‘‘reefs’’) that is no appropriate management. Improving collections of most of the endangered longer occupied by any of these 9 and protecting water quality in the mussels that historically occurred in the species. Cahaba River and Locust Fork will drainage, and because above this point, Issue D: Comments on Science provide a positive conservation benefit the river undergoes a transition from to the listed species in these units. small river to more stream-like (30) Comment: There is no scientific Although collections of the listed conditions. Collections of a few support for the proposed rule. The mussels are site-specific in both the individuals of these species from the public cannot comment on science that Cahaba and Locust Fork rivers, the Cahaba River above U.S. Hwy 82 were the Service failed to present. The physical conditions of their habitats are reported to us in July of 2003, following Service has failed to use the best driven by the conditions and dynamics publication of the proposed rule. At this scientific data available. within the stream channel, both time, we believe the 124 km (77 mi) of Response: The Service has conducted, upstream and downstream. The the Cahaba River channel we have sponsored, and/or funded most designated portions of the Cahaba and designated as critical habitat is adequate scientific research performed over the Locust Fork Rivers contain one or more for the conservation of the species in past 10 years for these 11 species. of the primary constituent elements this drainage. Endangered or threatened Information from this research, and all essential to the conservation of these mussels that occur outside of designated other available scientific information, mussels, including flow, water quantity, critical habitat, however, will continue was used to prepare the proposed and geomorphic stability, substrates, etc. to receive the protection of the Act’s final designations. During the comment Because of the extent of habitat loss and section 7 consultation requirements and periods, only a single study was brought fragmentation, both of these Units are section 9 take prohibitions. Under the to our attention that was not used in the essential to the conservation of the Act, we can revise critical habitat in the development of this designation. This species for which they are designated future if it is appropriate, based on the study was published after the proposed (see ‘‘Response’’ to Issue 12, above). best available information. rule was published, and it supports our (26) Comment: The portion of the (28) Comment: The Service does not position that host fishes are essential Cahaba River (Unit 13) impounded by a have sufficient data to designate Unit components of the mussels’ constituent diversion dam from just below U.S. 14, Alabama River, as critical habitat. elements. We received no additional Highway 280, upstream to the Cahaba Response: The section of the Alabama scientific data during the comment Heights Pump Station, does not contain River designated under Unit 14 is periods that we have not previously the constituent element for flow known to support a small population of considered. In addition, all four peer requirements of the mussels and should the southern clubshell within one reviewers submitted written responses be removed from the designation. mussel bed near Selma, Alabama that the proposal included a thorough Response: A low head dam at U.S. (Hartfield and Garner 1998). The and accurate review of the available 280 impounds a short reach of the Alabama River contains one or more scientific and commercial data on these Cahaba River main channel during low primary constituent elements mussels and their habitats. Therefore, water conditions. Our regulations allow throughout the designated reach, as we believe that we have used the best us to designate inclusive areas where demonstrated by the presence of mussel scientific information available in

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making this final rule. A list of scientific Because of the extent of habitat greatest factor in the conservation of literature used to prepare this rule is modification, fragmentation, and these species is the high degree of available upon request from the isolation, multiple populations are habitat loss, and the resulting Mississippi Ecological Services Field necessary to ensure the conservation of fragmentation and isolation of their Office (see ADDRESSESS, above). these mussels. Therefore, conditions habitats (see ‘‘Analysis Used to (31) Comment: Spotted bass and within these units may now be adequate Delineate Critical Habitat,’’ below). Site- largemouth bass failed to successfully for reintroduction of one or more of the specific threats, such as impervious transform orange-nacre mucket extirpated species. surface runoff and ORV use in streams, glochidia in some trials conducted by (33) Comment: Using listed species as are compounded by habitat Haag and Warren (1997), indicating they transplants into unoccupied areas is a fragmentation and isolation. may not be suitable hosts. highly risky conservation technique. Response: Haag and Warren (1997) The use of artificially propagated Issue E: Comments on Primary conducted two glochidia transformation individuals for reintroducing species is Constituent Elements trials with spotted bass. In the first, all not addressed in the proposed (36) Comment: The assumption that of the fish died for unknown reasons designation. all 11 listed mussel species each possess before termination of the trial. In the Response: Neither the proposed rule identical principal biological or second trial, over 300 orange-nacre nor this final regulation address physical constituent elements essential mucket juveniles/fish were successfully methods and protocols for the to their conservation is scientifically transformed. They also conducted three reintroduction of endangered or invalid. The proposal provided no trials using largemouth bass. In the first threatened mussels into unoccupied evidence, explanations, or citations two trials, all fish died prior to habitats. We have developed a Plan for quantifying the primary constituent transformation. In the third, over 100 Controlled Propagation, Augmentation elements (e.g., geomorphic stability, juveniles/fish were successfully and Reintroduction for Freshwater water quantity and quality, etc.) Broadly transformed. Since both spotted and Mussels and Snails of the Mobile River stated constituent elements provide no largemouth bass occur naturally with Basin (U.S. Fish and Wildlife Service, guidance whatsoever for needs of the orange-nacre mucket, these data 2003), in accordance with our Policy individual mussel species. indicate, and Haag and Warren (1997) Regarding Controlled Propagation of Response: The Endangered Species concluded, that spotted and largemouth Species Listed Under the Endangered Act and Service implementing bass are suitable hosts for the mussel. Species Act (65 FR 56916). The plan regulations (50 CFR 424.12) require us (32) Comment: The proposal notes the promotes the use of hatchery propagated to use the best scientific data available need to reintroduce species into individuals for reintroduction of rare to identify known primary constituent historical portions of their range now mussels into historic habitats, and elements. Unfortunately, knowledge of proposed for critical habitat. If establishes basic protocols for the essential features required for the constituent elements are present at these propagating endangered and threatened survival of any particular freshwater sites then why are the mussels no longer mussels and snails, and for population mussel species consists primarily of present? augmentation or reintroduction. Copies basic concepts with few specifics Response: The listing regulation for of this working document are available (Jenkinson and Todd 1997). Among the these 11 species, the Recovery Plan from our Jackson, Mississippi Field difficulties in defining habitat (U.S. Fish and Wildlife Service, 2000), Office (see ADDRESSES, above). parameters for mussels are that physical the proposed rule (see ‘‘Factors (34) Comment: Reintroduction of and chemical conditions (e.g., water Affecting the Species’’), and basic mussels into historic habitats should be chemistry, flow, etc.) within stream population biology note that small declared as nonessential experimental channel habitats may vary widely populations, isolated to fragments of populations. according to season, precipitation, and their former range are vulnerable to Response: Section 10(j)(2) of the Act human activities within the watershed. extirpation from natural or human- prohibits designation of critical habitat In addition, conditions between induced catastrophic events. Following for any nonessential experimental different streams, even those occupied catastrophic events temporary in nature, population of an endangered or by the same species, may vary greatly such as droughts, pollution, and threatened species. With this rule, we due to geology, geography, and/or sedimentation, the habitat may recover have designated critical habitat units human population density and land use. to a point where the species could that are essential to the conservation of A review of the available scientific survive, if reintroduced. The drainages the mussel species. We will not be information shows that loss of mussel of the Mobile River Basin have determining that any of these units are life stages, species, and even entire experienced both natural and human nonessential experimental population communities can be attributed to a perturbations that have changed over areas or reintroducing any nonessential variety of physical and biological time. For example, streams and river experimental populations into these factors, including loss of channel segments have been affected in the past units. stability (e.g., Hartfield, 1993; Neves et by droughts, severe storms, unregulated (35) Comment: The proposal did not al., 1997; etc.), changes in flow and coal mining, unregulated pollution adequately convey the growing level of water quality (e.g., Layzer et al., 1993; discharges, and/or poor agricultural and threat to mussels. It did not address the McMurray et al., 1999; Williams et al., silvicultural practices. Many of the impacts of impervious area runoff, or 1993; Naimo, 1995; Strayer, 1999a; etc.), human-induced perturbations that may the effects of illegal and irresponsible sedimentation and other changes in have led or contributed to the off road vehicle (ORVs) use. substrate (e.g., Ellis, 1936; Hartfield and extirpation of species from some of the Response: The proposed rule Hartfield, 1996; Brim Box and Mossa, designated units have been reduced summarize threats to the mussels, 1999; etc.), loss of fish hosts, and during the past few decades by State particularly as they relate to habitat competition from nonnative species and Federal regulation and the adoption needs, and refer the reader to sources for (e.g., Neves et al., 1997; Strayer, 1999b; of best management practices. more information (see ‘‘Summary of etc.). Therefore, we used the best Currently, one or more of the 11 mussels Factors Affecting the Species’’ in the available scientific information to continue to survive in 25 of the units. proposed rule). We believe that the broadly define six primary constituent

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elements. Although we are currently valley and channel slope, local geology, identification of primary constituent unable to quantify them for any of these and water and sediment budgets elements. 11 mussel species, these six constituent (Patrick et al., 1994). Geomorphic Response: The proposal summarizes elements describe physical and instability can be triggered by the complex life history of unionid biological features essential to the impoundment, navigational and flood- mussels, which includes sexual conservation of the species that may control improvements, riparian mining reproduction, a parasitic larval stage, require special management operations, regional land use, or a and a juvenile stage, and identifies host considerations and protection. combination of these and other human fish where known (see proposed rule). We recognize that this situation activities (Patrick et al., 1982). Such A complete list of all references cited in represents a less than ideal situation. activities may disrupt the energy this rule including those citations and The Act requires the use of the best conditions of the affected river or stream data on the life history of the mussels available scientific and commercial channel by changing down-stream base is available upon request from the data, without regard to whether that is levels, channel slopes, or sediment/ Mississippi Ecological Services Field sufficient to make a fully informed water balances which, in turn, result in Office. The language used in the determination. At best, the Act gives us accelerated erosion or sedimentation ‘‘Primary Constituent Elements’’ section through section 4(b)(6)(C)(ii) only a one- processes. As these geomorphic alerts Federal agencies to consider the year window of opportunity to further processes occur, freshwater mussels effects of their actions on habitat as they investigate if we find that critical habitat may be adversely affected by the loss of may affect all life stages of the mussels is not determinable, for reasons such as stable banks, scouring and deepening of and their host fishes. lack of information about the primary channel beds, and the smothering (41) Comment: The Service failed to constituent elements for the species in effects of excessive sedimentation articulate the required connection question. (Hartfield 1993). Therefore, between the primary constituent Within these limitations, we have geomorphically stable channels and elements and the proposed units, and utilized the best available scientific data banks are not experiencing accelerated failed to perform any scientific analysis in making our determinations here. erosion or sedimentation processes. or review to ensure that units contain (37) Comment: It appears the Service Stream channels in the Mobile River primary constituent elements for each simply identified 25 reaches within the Basin have been variously affected by specific mussel. Basin currently occupied by one or Response: In evaluating streams for geomorphic instability (U.S. Fish and more of the 11 species and then critical habitat, we considered all Wildlife Service, 2000). Geomorphic assumed that those reaches contained information available to us on the effects of activities that may affect primary constituent elements. biology, habitat, and current stream channels can be reduced and Response: In making this designation, distribution of these 11 mussel species managed with appropriate planning and we used the best available science to (see ‘‘Background,’’ and ‘‘Response’’ to implementation of common engineering describe six primary constituent Comment 36, above). We selected as elements required for the conservation practices (e.g., grade control structures) critical habitat units 25 stream reaches of these species in their aquatic habitats. and Best Management Practices (e.g., where one or more of the listed mussel We then considered all reaches sediment stabilization, and species continues to survive. The currently occupied by one or more of minimization of instream work). continued persistence of the mussels in the species. The long-term persistence (39) Comment: The Service must these units is evidence of the presence of imperiled mussels and mussel identify recovery criteria for of the primary constituent elements for communities within a stream reach conservation of the 11 mussels before it their survival (see ‘‘Analysis Used to indicates the presence of physical, can identify the primary constituent Delineate Critical Habitat,’’ below) now chemical, and biological features elements essential for their and at the time of the species’ listing. essential to the survival of freshwater conservation. We selected the unoccupied Unit 26 mussels. After considering the mussels’ Response: We considered the recovery because it was historically occupied and historic ranges, conditions within the and conservation needs of these species PCEs have improved due to significant range, and the value of the occupied in preparing this designation (see improvement in flow and water quality reaches for the conservation of the ‘‘Analysis Used to Delineate Critical (primary constituent elements) over the species (see ‘‘Analysis Used to Delineate Habitat,’’ below). The recovery objective past decade (see ‘‘Analysis Used to Critical Habitat,’’ below), we eliminated for these 11 mussel species is to prevent Delineate Critical Habitat,’’ below). We areas with limited habitat availability, further decline by protecting their also identified the listed mussels degraded habitat, and/or low surviving populations and the habitats currently surviving in each unit and management value or conservation where they occur (U.S. Fish and those which historically occurred there potential (e.g., Etowah River, Big Wills Wildlife Service, 2000). Stable or (see ‘‘Critical Habitat Unit Creek, Little River, Euharlee Creek, increasing populations over time will Descriptions,’’ below). Limestone Creek, etc.). We believe that demonstrate that the objective is being (42) Comment: The proposal failed to the primary constituent elements are met. The best available scientific provide a unit by unit assessment of present in the 26 designated critical information was used to identify whether or not any nonnative habitat units to a degree that permits the physical and biological features competitors are present. survival of mussels, and with essential to the conservation of these Response: The asian clam (Corbicula appropriate protection and management mussels, including the Recovery Plan fluminea) is present in portions of most will allow conservation of the listed (U.S. Fish and Wildlife Service, 2000) of the designated units. This nonnative species in those reaches. and other documents (see ‘‘Response’’ to species has been coexisting with the (38) Comment: The proposal failed to Comment 36, above). native mussel fauna for several decades. define ‘‘geomorphically stable stream (40) Comment: The proposal provided We are also concerned with the spread and river channels and banks.’’ no citations, data, or explanation of or introduction of the highly Response: Geomorphology refers to ‘‘* * * normal behavior, growth and competitive zebra mussel (Dreissena the size, shape, and dimensions of a viability of all life stages of mussels and polymorpha), quagga mussel (Dreissena river channel and their relationships to their fish hosts * * *’’ in the bugensis), and the mollusk predator,

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black carp (Mylopharyngodon piceus). constituent elements may not be adjacent to areas designated as critical None of these three nonnative species present. habitat are already subject to section 7 are currently known to inhabit any of Response: With only a few consultation requirements of the Act the designated units. exceptions, there is little information on because of the presence of one or more (43) Comment: The proposal states in recruitment for these mussel species in species currently listed under the Act. several places that proposed critical most units. As a group, mussels are We do not anticipate that this habitat units contain one or more of the long-lived with life spans of 20 years or designation will impose any additional primary constituent elements. All more. However, their complex direct regulatory steps to private primary constituent elements must be reproductive relationships with fish landowners. present for designation of critical hosts render them vulnerable to (46) Comment: Designation of critical habitat, not just one or more. recruitment failure due to habitat devalues land and makes it Response: Critical habitat is defined environmental conditions or other impossible to sell. under the Act as those specific areas factors that disrupt interactions between Response: In some cases, the public within the geographical area occupied the mussels and their host fishes. may perceive that property adjacent to by the species on which are found those Therefore mussel populations, a stream channel designated as critical features essential to the conservation of particularly those under environmental habitat will have lower market value the species (i.e., primary constituent stress, may go several years with low than an identical property that is not adjacent to critical habitat. Conversely, elements) and which may require levels of recruitment, or even no others may believe that critical habitat special management or protection (see recruitment. Listed mussel populations designation will increase property ‘‘Critical Habitat,’’ below). Known inhabiting most of the designated units values, especially adjacent property, if primary constituent elements must be are currently characterized by low they believe that the designation will listed with the critical habitat numbers of individuals and some level slow sprawling development in a given description. We use the language of environmental stress, conditions that community (i.e., protect the rural ‘‘* * * one or more * * *’’ in make recruitment difficult to measure. These 11 mussel species are threatened character of an area) or protect and recognition that all areas essential to the and endangered because the limited improve water quality of neighborhood conservation of a species may not extent and isolation of their populations streams and rivers. As noted above (see contain all primary constituent renders them vulnerable to natural or ‘‘Response’’ to Comment 45), critical elements, based on the biology of the human induced changes in their habitat designation does not affect species. For example, a species may habitats (see ‘‘Factors Affecting the private land activities that do not require one area for feeding and Species’’ in the proposed rule). The involve a Federal Action. Most lands growing, another for reproduction or effects of land uses or weather patterns adjacent to stream channels designated roosting, and still other areas for passage may be reflected in abundance and as critical habitat are flood prone and between feeding and growing areas. So demographics of a localized mussel used for silviculture and/or agriculture, while all areas may not contain the community, and there is evidence of activities that have little effect on the same constituent elements, they may be both positive and negative population stream channel when Best Management important at some life stage or during trends in some units. For example, Haag Practices are employed. As the public some time of the year and collectively and Warren (2003b) recently becomes aware of the true regulatory they are essential to the conservation of documented declines in the abundance burden imposed by critical habitat, the the species. In addition, Service of mussels, including several listed impact of the designation on property regulations allow us to designate mussels, in portions of Unit 10 (Sipsey markets is anticipated to be minimal. inclusive areas where all constituent Fork drainage) due to drought. The Therefore, we do not believe the elements are not present if they are channels and flowing waters of all 26 designation of these stream channels as adjacent to areas occupied by the critical habitat units are dynamic and critical habitat will result in any species and essential to their contain a mosaic of habitat conditions. significant additional regulatory burden management and protection (50 CFR The six primary constituent elements on landowners or affect the use or value 424.12(d)). For example, upland areas that we have identified are present of their property. can be designated as critical habitat for within these units, and may require (47) Comment: Regulatory measures aquatic species if it is concluded they special management considerations and resulting from critical habitat are essential to the conservation of the protection if these 11 species are to be designation may hamper expansion of species. We believe that the primary conserved (see ‘‘Response’’ to Comment recreational activities in the Coosa constituent elements enumerated within 36 and 37, above). River. this rule are essential to the Response: Critical habitat applies only conservation of these mussel species Issue F: Comments on Economic to Federal actions and activities. This and are present in all of the units to a Impacts and Economic Analysis designation will not affect private degree that allows survival of the (45) Comment: The proposed recreational activities in the Coosa River mussels. However, all of the six primary designation will harm private or other designated units. constituent elements may require landowners through increased (48) Comment: Critical habitat special management, and can be government regulation, and will add designation could limit or restrict use of protected or improved with appropriate unnecessary red tape and bureaucracy farm pesticides, and stop dredging in management. in the use of surface waters and the the Alabama River. (44) Comment: Listed species that disposal of waste waters. Response: Under the Act, the have been collected from a proposed Response: The designation of critical Environmental Protection Agency (EPA) unit but are showing no active habitat will not increase government and the U.S. Army Corps of Engineers recruitment may need further study to regulation of private land. The effects of (USACE) are required to consult with us justify designation of critical habitat. private activities are not subject to the over their actions which may affect The proposal states that there is Act’s consultation requirements, unless listed species or their critical habitats. evidence of local population decline they are connected to a Federal action. These 11 mussels have been protected within some units, therefore, primary Federal activities conducted in or under the Act since 1993, and we have

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conducted both formal and informal and orange-nacre mucket, and as (see ‘‘Unfunded Mandates Reform Act consultations with EPA and the USACE unoccupied critical habitat for four Analysis’’). regarding their actions, including other mussel species. It also supports (53) Comment: The draft Economic pesticide registration and navigation the only surviving population of the Analysis did not include the economic maintenance. Since actions that might plicate rocksnail (Leptoxis plicata), and impacts to hydropower operations at destroy or adversely modify these one of only two known populations of Carters Lake. critical habitat units may also jeopardize the Cahaba shiner (Notropis cahabae). Response: The draft economic mussels, it is unlikely that critical Both of these species are listed as analysis forecast one informal and one habitat designation will significantly endangered, without critical habitat, formal consultation regarding flow change the outcome of future and must also be considered in regard regime at Carters Reregulation Dam consultations on these species. to any future permit to impound this (Rereg Dam) over 10 years. In the final (49) Comment: Designation of critical habitat. One of the benefits of critical Economic Analysis, we have considered habitat will create bureaucratic delays habitat designation is to inform Federal impacts to Carters Dam operations that in flood reduction measures authorized agencies and other parties of the might result from modifications to flow and funded by Congress. For example, importance of habitats to the rates at the Rereg Dam. there has been an ongoing consultation conservation of species, and thus allow (54) Comment: The costs associated since 1988 for the purpose of obtaining for the early consideration of with coal generation as substitute for a biological opinion to permit routine alternatives to actions that might electric power generation at maintenance of the East Fork Tombigbee destroy or adversely affect critical hydroelectric dams in the draft River (Unit 1). habitat. The costs of a future Economic Analysis is appropriate for Response: Section 7(a)(2) of the Act consultation on water supply in the base load generation, but not for peaking requires Federal agencies to consult Locust Fork, as well as the costs of power. Response: The final Economic with us to insure that their actions do alternative locations considered by Analysis uses gas production as the not jeopardize the continued existence BWWB outside of the critical habitat substitute energy source for peaking of listed species or result in the area, have been included in our final power, and coal as the most appropriate destruction or adverse modification of Economic Analysis. substitute for base load. critical habitat. The Act also requires us (51) Comment: The draft economic to conclude these consultations in a (55) Comment: It is not possible for analysis did not consider impacts to timely manner, unless an extended the Service to quantify potential small entities as a result of the inability period of consultation is agreed upon by economic impacts of the proposed of the BWWB to provide wholesale the Service, the Federal agency, and any designation without specific water to small counties if the Locust concerned applicant. In 1988, the information regarding primary Fork reservoir is not built. USACE, Mobile District (Corps), constituent elements. It is not possible requested formal consultation on the Response: Impacts to small to estimate the economic impact of an effects of channel clearing and snagging governments were considered in the uncertain change in flow below Weiss operations on five species of listed Economic Analysis and are summarized Dam to provide for mussels and their mussels that were believed to be present in this rule (see ‘‘Regulatory Flexibility habitat. in the East Fork Tombigbee River. Act,’’ below). The Economic Analysis Response: We have used the best During the preparation of a draft does not anticipate that the BWWB scientific information available in biological opinion, information became water supply reservoir will not be built, identifying primary constituent available that the mussels were located but rather that it may be relocated to a elements essential to the conservation of in the middle reaches of the East Fork, site that will be able to meet the demand these 11 Mobile River Basin mussels remote from the areas in the headwaters for water supply to the same extent or (see ‘‘Response’’ to Issue 37). Mussels that were affected by channel greater than if it were located at the live embedded in the river bottom and obstructions. The Corps used this proposed site at Locust Fork. Although filter water for food and oxygen. Formal information to confine the location, and this project is not proposed within a and informal consultations that have modify the timing and method of the small county it is likely that costs of been conducted since these species action, such that it no longer had the project modifications may impact were listed have focused on minimizing potential to jeopardize the mussels. As residents of counties that are considered impacts to their habitats (i.e., primary a result, the consultation was concluded small (i.e., have a population below the constituent elements) in order to avoid informally and a biological opinion was 50,000 threshold), if they are included or reduce incidental take of the species. not required, and the clearing and in the consumer base of the reservoir. Therefore, we have used the 11-year snagging of channel obstructions in the The economic impact of regional effects consultation history over a wide array of East Fork Tombigbee were completed. to State, local, and tribal governments actions that may affect these mussels to (50) Comment: The critical habitat and the private sector, are considered identify the outcomes and costs designation may impact future water below (see ‘‘Unfunded Mandates Reform associated with previous consultations, supplies in the Birmingham Act Analysis,’’ below). and to predict the number and potential Metropolitan Area by forcing the (52) Comment: The draft economic costs of future consultations. In order to relocation of a potential water reservoir analysis did not explain potential ensure that we captured the full cost of on the Locust Fork (Unit 12). impacts to minorities or low-income designation, we have attempted to use Response: Although there has been no groups that will result from water conservative (i.e., high end) estimates of request for consultation, we are aware shortages, higher water costs, or the future costs. For example, the fine-lined that the Birmingham Water Works inability to develop and expand pocketbook and southern clubshell Board (BWWB) is considering future business. mussels have survived in the Coosa construction of a water supply reservoir Response: Neither minorities nor low- River channel below Weiss Dam under on the Locust Fork within critical income populations are anticipated to leakage and tributary flows for about habitat Unit 12. This reach of the Locust be disproportionately affected by this four decades. An increase in flow from Fork is designated as occupied critical designation. Economic impacts to Weiss Dam would expand riverine habitat for the triangular kidneyshell private parties are considered below habitat, improve water quality and flow

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conditions during drier periods, and the economic analysis. While the be a result of the designation), even if possibly allow these species to expand economic analysis concludes that many they are the same as those that arise their range in the Weiss Bypass of the benefits of critical habitat from the listing. Channel. However, significant increases designation are difficult to estimate, it (60) Comment: The draft Economic in flows through Weiss Dam may does not necessarily lead to the Analysis was based on guesses and change patterns of erosion and conclusion that the benefits are caveats that can readily and deposition within the channel, affect exceeded by the costs. We use the substantially affect cost estimates. The movement and behavior of fish hosts, economic analysis and other relevant solicitation of specific information and affect water temperature and information to conduct analyses under during the comment periods belies chemistry, possibly to the detriment of section 4(b)(2) of the Act. If relevant to uncertainty in the analysis. the species. Consultation on relicensing a particular critical habitat designation, Response: The draft Economic of Weiss Dam is currently ongoing. In these considerations are included in the Analysis was based on the best available order to capture the outcome of final rule (50 CFR 424.19) (see information. Solicitation of additional potential flow recommendations that ‘‘Exclusions Under Section 4(b)(2),’’ information during the open comment may result from this consultation, we below). periods ensured that the economic have conservatively used 200 cubic feet (58) Comment: The ten-year time- analysis incorporates the best available per second (cfs) as a low estimate of frame of the economic analysis is information regarding economic impacts flow recommendations, and 2000 cfs as inadequate, as it is likely that costs will of the designation. The final Economic the high estimate. It is likely that the extend into the future. Analysis incorporates new information Service will recommend flows closer to Response: To be credible, the brought to our attention during the open the low-end estimates used in the economic analysis must estimate comment periods. economic analysis. economic impacts based on activities (61) Comment: The draft Economic (56) Comment: The draft Economic that are reasonably foreseeable. A ten- Analysis assumed that consultations Analysis did not distinguish costs year time horizon is used because many will continue into the future at the same between Federal dams and Federal landowners and managers do not have rate and costs as in the past, leading to Energy Regulatory Commission (FERC) specific plans for projects beyond ten an understatement of potential licensed dams, and did not include years, and forecasting beyond ten years economic activity. It failed to employ costs of modifications or lost energy. increases the subjectivity of estimating forecasting methods that reflect future Response: The final Economic potential economic impacts. In addition, cost increases. Analysis uses the best available the forecasts in the analysis of future Response: The economic analysis information to estimate a range of economic activity are based on current does not assume that future potential modification costs and lost socioeconomic trends and the current consultations will occur at the same rate energy production at each hydropower level of technology, both of which are as in the past. The estimated future operation within the designation. likely to change over the long term. If consultations are based on (57) Comment: The draft Economic information is available for particular conversations with action agencies and Analysis failed to adequately assess the projects where costs may be incurred third parties and reflect, where potential economic benefits of the over a different period of time, the appropriate, trends in consultation critical habitat designation, and did not appropriate time-frame is employed. For rates. As a result, the analysis forecasts address whether the benefits of example, the final Economic Analysis a much greater rate of consultation in excluding areas outweigh the benefits of applies a 30-year time-frame to annual the future than has occurred designation. lost energy production costs at Carters historically. This may be due in part to Response: There is little disagreement and Weiss Dam, as licenses for economic growth and expansion, and in in the published economic literature hydropower projects are typically part due to education on the specific that real social welfare benefits can renewed on a 30- to 50-year schedule. locations of the species, and on result from the conservation and Applying the same lost power costs over activities that require consultation. The recovery of endangered and threatened 30 years, however, may overstate the economic analysis employs a cost model species. A regional economy can benefit real annual impacts as is it likely that that applies appropriate discount rates from the preservation of healthy changes to rate structures will be to account for the rate of time preference populations of endangered and brought about through broader market in determining the present value of total threatened species and the habitat on adjustments in the long term. Further, costs. which they depend. In the final costs associated with the potential (62) Comment: The draft Economic Economic Analysis of critical habitat relocation of the water supply reservoir Analysis ignored costs to third parties designation for the mussels, additional at Locust Fork are anticipated to be and relied entirely on the direct costs discussion has been provided incurred over a 25-year time-frame as associated with section 7 consultations, concerning the potential economic the project is anticipated to take 25 writing off costs to third parties as benefits associated with measures years to complete. insignificant. implemented for the protection of water (59) Comment: The economic analysis Response: The draft Economic and habitat quality that may occur and overestimates the costs resulting from Analysis concluded that the plurality of be attributable to the effects of future designation of critical habitat by costs associated with critical habitat section 7 consultations. It is not feasible, including costs of listing (i.e., all section designation will be borne by third however, due to the scarcity of available 7 costs, regardless of critical habitat parties, including State and local studies and information relating to the designation). governments (approximately 57 percent size and value of potential beneficial Response: Certain legal decisions, of total estimated costs) and private changes that are likely to occur as a specifically the decision New Mexico entities (approximately 36 percent of result of the listing of the species or the Cattlegrowers Association v. U.S. Fish total estimated costs). In addition, the designation of their critical habitat, to and Wildlife Service, 248 F3d 1277 final Economic Analysis is not limited fully describe and accurately quantify (10th Cir. 2001), require us to look at co- to direct costs related to complying with all the benefits of potential future extensive costs (consideration of the section 7 consultations. For example, it section 7 consultation in the context of impact of all section 7 effects that could is noted that the cost of lost energy

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production at the affected hydropower quantify, impacts to the future growth decision to exclude an area is projects may be passed on to the power and development. discretionary. We use information from consumers as a direct ‘‘fuel adjustment’’ (65) Comment: The critical habitat our economic analysis, or other sources increase to their power bill. designation will shut down the timber, such as public comments, management (63) Comment: It is unclear how lumber, and chip business around the plans, etc., to conduct the analysis for average administrative costs of affected areas. any exclusion we might consider consultations were determined in the Response: The economic analysis making. For us to consider excluding an economic analysis, and whether these does not anticipate impacts to the area from the designation, we are averages are representative. silviculture industry. The concern of required to determine that the benefits Response: The economic analysis timber harvest activities related to the of the exclusion outweighs the benefits employs a consultation cost model to mussels and their habitat is (i.e., biological or conservation benefits) estimate the likely range of implementation of buffer zones and of including the specific area in the administrative costs of informal and other silvicultural Best Management designation. This is not simply a cost/ formal consultations, and technical Practices (BMPs). Silvicultural BMPs benefit analysis, however. This is a assistance efforts associated with the provide for the protection of riparian policy analysis, and can include designation of critical habitat. This cost buffers and reduce erosion and other consideration of the impacts of the model is based on anticipated forms of nonpoint source pollution that designation, the benefits to the species administrative effort at a number of result from common silvicultural of the designation as well as policy Service Field Offices across the country, practices. BMPs must be followed in considerations such as national security, including those Field Offices relevant to order to retain exemption from 404 tribal relationships, impacts on this designation. The administrative permits, and they are in general practice conservation partnerships and other effort is typically defined in number of within the designated areas. The public policy concerns. This evaluation hours spent, and then translated into a majority of silviculture is practiced on was done on a case-by-case basis for dollar value by applying the appropriate private, non-industrial land, without a particular individual units using the average government salary rates. Federal nexus. best available scientific and commercial (66) Comment: In conducting our Further, administrative costs to action data. Based on the best available economic analyses of critical habitat agencies are estimated based on a information including the prepared designations pursuant to section 4(b)(2) similar survey of agencies across the economic analysis, we believe that all of of the Act, we must solicit data country. In interviewing the agencies the 26 units are essential for the regarding all economic impacts relevant to this analysis, the conservation of these species and have associated with a listing as part of the representatives were asked if the identified no areas where the benefits of critical habitat designation, including estimated administrative costs seemed exclusion outweigh the benefits of reasonable. In the case that the agency sections 9 and 10 of the Act. designation (see ‘‘Exclusions under anticipated a different range of costs for Response: Because it may be difficult Section 4(b)(2)’’ below). Contrary to the their particular activities within the to distinguish potential economic effects comment, there is no requirement in the proposed designation that cost range resulting from a species being listed as Act that we provide an economic was applied to the relevant endangered or threatened relative to justification for including an area in consultations in place of the generic those potential economic effects critical habitat, or that we perform a cost model estimates. resulting from designating critical (64) Comment: Critical habitat habitat for a species, we often collect traditional cost-benefit analysis as part designation could have a detrimental economic data associated with the of our determination as to whether to impact on future growth and species being listed to provide for a designate or exclude particular areas. development around the designated better understanding of the current Section 4(i) Comments From States units. economic baseline as we conduct our Response: With the exception of cases required analyses under section 4(b)(2) (68) Comment: The designation could in which critical habitat designation of the Act. This approach is consistent affect activities the Tombigbee River excludes a portion of available land with the ruling New Mexico Valley Water Management District from development, and where Cattlegrowers Association v. U.S. Fish (TRVWMD) conducts with Federal substitutes are limited, designation is and Wildlife Service, 248 F3d 1277 agencies such as the USACE, and unlikely to substantially affect the (10th Cir. 2001). cripple or unnecessarily delay their course of regional economic (67) Comment: The final rule ability to perform future water related development. In cases where an designating critical habitat for the 11 projects. The designation of units in industry requires the direct use of the mussels must include an explanation of northeast Mississippi will conflict with natural resources of mussel habitat (e.g., the cost/benefit analysis for both why an existing Federal flood control measures. large volume of water for cooling or area was included and why an area was Response: Activities which require discharge), the presence of the mussels excluded. Federal permits or funding are already or critical habitat may impact a decision Response: Pursuant to section 4(b)(2) subject to consultation requirements of to locate in that area. Environmental of the Act, we are required to take into the Act within the designated units regulations such as critical habitat consideration the economic impact, because one or more listed species occur designation likely constitute some impacts to national security, and any there. Consultation outcomes in the fraction of the many factors involved in other relevant impact of specifying any Tombigbee drainage units are not likely the decision to locate a facility. particular area as critical habitat. We to be significantly affected by the However, in the absence of information may exclude any area from critical designation, since activities which on the type of economic activity being habitat if we determine that the benefits would adversely modify critical habitat considered, it is not feasible to of such exclusion outweighs the benefits would also result in adverse effects to determine what level of economic of specifying such area as part of the the species. TRVWMD activities which impact the designation may create on critical habitat, providing that the do not require Federal participation or the activity. Therefore, the economic failure to designate such area will not funding are unaffected by the analysis recognizes, but does not result in the extinction of the species. A designation.

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(69) Comment: TRVWMD is attention by the USACE or others during Our regulations state that, ‘‘The concerned that the designation will the open comment periods for the Secretary shall designate as critical have adverse effects on attracting new proposed rule or the draft economic habitat areas outside the geographic area industry to northeast Mississippi. analysis. In the absence of information presently occupied by the species only Response: See comment 64. on the type of economic activity that when a designation limited to its (70) Comment: The designation will might occur in these units in the future, present range would be inadequate to add unnecessary red tape and it is not feasible to determine what level ensure the conservation of the species’ bureaucracy. of economic impact the designation may (50 CFR 424.12(e)). Accordingly, when Response: See comment 45. create on the activity. Therefore, the the best available scientific and (71) Comment: TRVWMD economic analysis recognizes, but does commercial data do not demonstrate recommended deletion of Units 1, 2, 3, not quantify, impacts to future growth that the conservation needs of the and 4, because the mussels could be and development. species so require, we will not designate protected within the other designated (74) Comment: The Service did not critical habitat in areas outside the units. comply with the National geographic area occupied by the species. Response: ‘‘Conservation’’ is defined Environmental Policy Act in making Our Policy on Information Standards in section 3(3) of the Act as the use of this action. Under the Endangered Species Act, all methods and procedures that are Response: See comment 13. published in the Federal Register on necessary to bring any endangered or Critical Habitat July 1, 1994 (59 FR 34271), provides threatened species to the point at which criteria, establishes procedures, and listing under the Act is no longer Critical habitat is defined in section 3 provides guidance to ensure that necessary. Therefore, we must consider of the Act as—(i) the specific areas decisions made by the Service represent the quantity of habitat needed to within the geographic area occupied by the best scientific and commercial data conserve these species. The primary a species, at the time it is listed in available. It requires Service biologists, threats affecting the Mobile River Basin accordance with the Act, on which are to the extent consistent with the Act and mussels are their limited distribution, found those physical or biological with the use of the best scientific and habitat fragmentation, and population features (I) essential to the conservation commercial data available, to use isolation. Due to these threats, it is of the species and (II) that may require primary and original sources of unlikely that currently occupied habitat special management considerations or information as the basis for is adequate for the conservation of all 11 protection; and (ii) specific areas recommendations to designate critical species. Because small, isolated, aquatic outside the geographic area occupied by habitat. populations are subject to chance a species at the time it is listed, upon Critical habitat designations do not catastrophic events and to changes in a determination that such areas are signal that habitat outside the human activities and land use practices essential for the conservation of the designation is unimportant to these 11 that may result in their elimination, species. ‘‘Conservation’’ means the use mussels. Areas outside the critical protection of surviving populations and of all methods and procedures that are habitat designation will continue to be their habitats reduces the threat of necessary to bring an endangered or a subject to conservation actions that may extinction and increases the threatened species to the point at which be implemented under section 7(a)(1), opportunities for conservation of the listing under the Act is no longer and to the regulatory protections species. Therefore, we have determined necessary. afforded by the section 7(a)(2) jeopardy that all 26 units, including those units Critical habitat receives protection standard and the section 9 take in northeast Mississippi, are essential under section 7 of the Act through the prohibition, as determined on the basis for the conservation of the species for prohibition against destruction or of the best available information at the which they are designated. Eliminating adverse modification of critical habitat time of the action. We specifically Units 1, 2, 3, and 4 would increase the with regard to actions carried out, anticipate that federally funded or risk of extinction and reduce the funded, or authorized by a Federal assisted projects affecting listed species potential for conservation of the species. agency. Section 7 requires consultation outside their designated critical habitat (72) Comment: Designation of the East on Federal actions that are likely to areas may still result in jeopardy Fork Tombigbee (Unit 1) will exacerbate result in the destruction or adverse findings in some cases. Similarly, bureaucratic gridlock and delays that modification of critical habitat. critical habitat designations made on the are preventing flood damage reduction To be included in a critical habitat basis of the best available information at measures. A consultation to permit designation, the habitat must first be the time of designation will not control routine maintenance has been on-going ‘‘essential to the conservation of the the direction and substance of future for more than 18 years. species.’’ Critical habitat designations recovery plans, habitat conservation Response: See comment 49. identify, to the extent known using the plans, or other species conservation (73) Comment: Substantial future best scientific and commercial data planning efforts if new information economic benefits associated with flood available, habitat areas that provide available to these planning efforts calls control projects will likely evaporate essential life cycle needs of the species for a different outcome. with critical habitat designation. These (i.e., areas on which are found the were not considered in the economic primary constituent elements, as Methods and Criteria Used To Identify analysis. defined at 50 CFR 424.12(b)). Critical Habitat for 11 Mussel Species Response: Ongoing flood control Occupied habitat may be included in As required by section 4(b)(2) of the projects in northeast Mississippi have critical habitat only if the essential Act and implementing regulations (50 already considered effects on listed features thereon may require special CFR 424.12), we used the best scientific mussels in the critical habitat units, and management or protection. Thus, we do and commercial information available to are unlikely to be significantly affected not include areas where existing determine critical habitat areas that by the designation. No significant future management is sufficient to conserve contain the physical and biological projects that are likely to occur in the the species. (As discussed below, such features that are essential for the designated units in northeast areas may also be excluded from critical conservation of the Coosa Mississippi were brought to our habitat pursuant to section 4(b)(2).) moccasinshell, southern clubshell, dark

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pigtoe, southern pigtoe, ovate clubshell, of filamentous algae, and correct flow conservation of these species. We triangular kidneyshell, southern and water quality to continue to believe these physical and biological acornshell, upland combshell, fine-lined develop. The presence of suitable host features are essential to the conservation pocketbook, orange-nacre mucket, and fish is considered an essential element of the species and provide space for Alabama moccasinshell. We reviewed in these mussels’ life cycles. In addition, individual and population growth and the available information pertaining to because of their life cycle, small for normal behavior [Constituent the historic and current distributions, population sizes, and limited habitat elements 1, 2, 3, 4, and 6]; food, water, life histories, host fishes, and habitats availability, they are highly susceptible air, light, minerals, or other nutritional of, and threats to these species. The to competitive or predaceous nonnative or physiological requirements information used in the preparation of species. [Constituent elements 1 and 2]; cover or this designation includes: our own site- Unfortunately, knowledge of the shelter; sites for breeding, reproduction, specific species and habitat information; essential features required for the and rearing (or development) of unpublished survey reports, notes, and survival of any particular freshwater offspring [Constituent elements 4 and communications with other qualified mussel species consists primarily of 5]; and habitats that are protected from biologists or experts; peer reviewed basic concepts with few specifics disturbance [Constituent element 1]. scientific publications; the final listing (Jenkinson and Todd 1997). Among the In identifying these primary rule for 11 mussels in the Mobile River difficulties in defining habitat constituent elements, we have taken Basin (58 FR 14330); and the Mobile parameters for mussels are that physical into account the dynamic nature of River Basin Aquatic Ecosystem and chemical conditions (e.g., water riverine systems. We recognize that Recovery Plan (U.S. Fish and Wildlife chemistry, flow, etc.) within stream riparian areas and floodplains are Service, 2000). In determining the areas channel habitats may vary widely integral parts of the stream ecosystem, that are essential to the conservation of according to season, precipitation, and important in maintaining channel the 11 mussels, we considered all human activities within the watershed. geomorphology, and providing nutrient streams currently or historically known In addition, conditions between input, and buffering from sediments and to be occupied by one or more of the different streams, even those occupied pollution; and that side channel and species (see ATaxonomy, Life History, by the same species, may vary greatly backwater habitats may be important in and Distribution’’ above). It is likely that due to geology, geography, and/or the life cycle of fish that serve as hosts other occupied stream or stream human population density and land use. for mussel larvae. segments exist that may be essential to See comment 36 for further detail. Analysis Used To Delineate Critical the survival and conservation of these Therefore, we used the best available Habitat mussels, but we do not currently know scientific information to broadly define where these are, and therefore cannot six primary constituent elements. We are proposing to designate critical include them in this critical habitat Based on the best available habitat on lands that we have designation. information, primary constituent determined are essential to the conservation of the 11 mussels. These Primary Constituent Elements elements essential for the conservation of these 11 mussel species include the areas have the primary constituent In accordance with section 3(5)(A)(i) following: elements described above. of the Act and regulations at 50 CFR 1. Geomorphically stable stream and Currently, the greatest general threat 424.12, we are required to base critical river channels and banks; to the survival and recovery of these 11 habitat determinations on the best 2. A flow regime (i.e., the magnitude, Mobile River Basin mussel species is the scientific and commercial data available frequency, duration, and seasonality of small size, extent, and isolation of their and to consider those physical and discharge over time) necessary for remaining populations. With the biological features (primary constituent normal behavior, growth, and survival exception of the dark pigtoe, which is elements (PCEs)) that are essential to the of all life stages of mussels and their fish believed to be naturally restricted to conservation of the species, and that hosts in the river environment; streams and rivers in the Black Warrior may require special management 3. Water quality, including drainage, these mussel species were considerations and protection. These temperature, pH, hardness, turbidity, once widespread in the Basin, found in include, but are not limited to: space for oxygen content, and other chemical a continuum of small streams to large individual and population growth and characteristics necessary for normal rivers in 2 or more major drainages. As for normal behavior; food, water, air, behavior, growth, and viability of all life discussed under the ‘‘Summary of light, minerals, or other nutritional or stages; Factors Affecting the Species,’’ above, physiological requirements; cover or 4. Sand, gravel, and/or cobble and the Mobile River Basin Aquatic shelter; sites for breeding, reproduction, substrates with low to moderate Ecosystem Recovery Plan (U.S. Fish and and rearing (or development) of amounts of fine sediment, low amounts Wildlife Service, 2000), 30 major dams offspring; and habitats that are protected of attached filamentous algae, and other were constructed in the Basin during from disturbance or are representative of physical and chemical characteristics the 20th century. These dams and their the historic geographical and ecological necessary for normal behavior, growth, impounded waters present physical distributions of a species. and viability of all life stages; barriers to the natural dispersal of As detailed in the Background section 5. Fish hosts with adequate living, mussels (they prevent emigration in the proposed critical habitat rule foraging, and spawning areas for them; (dispersal) of host fishes), and (refer to 68 FR 14752, March 26, 2003), and, effectively isolate surviving mussel these 11 mussels, in general, live 6. Few or no competitive or populations in limited portions of the embedded in the bottom sand, gravel, predaceous nonnative species present. Basin’s major drainages. Small isolated and/or cobble substrates of rivers and All areas designated as critical habitat aquatic populations are subject to streams. They also have a unique life for the 11 mussels are within the natural random events (droughts, cycle that involves a parasitic stage on species’ historic ranges and contain one floods), and to changes in human host fish. Juvenile mussels require or more of the physical or biological activities and land use practices stable substrates with low to moderate features (primary constituent elements) (urbanization, industrialization, mining, amounts of sediment and low amounts identified as essential for the certain agricultural activities and

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practices, etc.), that may severely impact of surviving populations of these evaluating streams for the upland aquatic habitats (Neves et al., 1997). mussels and their stream and river combshell and southern acornshell, Without avenues of emigration to less- habitats; (2) enhancement and specifically, we considered their affected watersheds, mussel populations restoration of habitats; and (3) historic ranges (Black Warrior, Cahaba, gradually disappear where land use population management, including and Coosa River drainages). We selected activities result in deterioration of augmentation and reintroduction of the those areas which have the best aquatic habitats. Local random events, 11 mussels into portions of their historic potential for and we believe are and changes in human activities within ranges to obtain these recovery essential to the conservation of these the Basin’s unimpounded watersheds objectives. In determining which areas two mussels based on collection history, are believed to have caused or to propose as critical habitat for these 11 surviving mussel species assemblages, contributed to the disappearance of mussels, we considered the factors and habitat conditions. mollusks from significant portions of discussed in the recovery plan, as well This analysis resulted in the isolated stream habitats, resulting in the as the mussels’ historical distributions identification of 25 stream or river extinction of as many as 13 mussels, as and the extent of current occupied reaches within the Basin (habitat units) well as a number of freshwater snail habitats and their management occupied by one or more of the 11 species (U.S. Fish and Wildlife Service, potential. species and that contain one or more of 2000). We began our analysis by considering the primary constituent elements as Most of the 11 mussel species the historic ranges of the 11 mussel indicated by the presence and considered in this final designation are species. A large proportion of the persistence of one or more of the listed currently represented by one or more Basin’s streams and rivers that mussels (Figure 1, Units 1 to 25). We small, restricted, and isolated historically supported these mussels has believe that these areas also support populations. These surviving been modified by existing dams and darters, minnows, and other fishes that populations have been isolated from one their impounded waters. Therefore, have been identified as hosts or another by dams and impounded extensive portions of the upper potential hosts for one or more of the reaches for 20 to 50 years, and remain Tombigbee River, Black Warrior River, mussels, as evidenced by fish collection vulnerable to the progressive Tallapoosa River, Alabama River, and records (Mettee et al., 1996), the degradation of their habitats from land Coosa River cannot be considered persistence of the mussels over surface runoff or random natural events essential to the conservation of these extended periods of time, or field such as droughts. In many of these species because they no longer provide evidence of recruitment (Evans, 2001; surviving populations, there is also the physical and biological features that Hartfield and Jones, 1990; and Herod et evidence of local population decline are essential for their conservation (see al., 2001). We consider all of these 25 during the same time period (e.g., APrimary Constituent Elements’ reaches essential for the conservation of Evans, 2001; Hartfield and Jones, 1990; section). Williams and Hughes, 1998; McGregor Free-flowing river segments and their these species. As discussed in the et al., 2000). tributaries peripheral to the known Recovery Plan, long-term conservation The Mobile River Basin Aquatic historic range of the 11 mussels, and of these 11 mussels is unlikely in their Ecosystem Recovery Plan (U.S. Fish and without any records of the species, also currently reduced and fragmented state. Wildlife Service, 2000), recognized the cannot be considered to be essential to Therefore, at a minimum, it is essential complexity of conserving the Basin’s the conservation of these species (e.g., to designate the reaches within the imperiled species, and considered that Mobile/Tensas River, lower Tombigbee historic range that still contain mussels downlisting or delisting these 11 River, etc.) and so were not considered and the primary constituent elements of mussels was unlikely in the foreseeable further. Several streams with single site the habitat. future because of the extent of their occurrence records of a single species We then considered whether this decline, the fragmentation and isolation were also not considered essential essential area was adequate for the of their habitats, and continuing impacts because of limited habitat availability, conservation of each of the 11 mussel upon their habitats. Compounding these isolation, degraded habitat, and/or low species. Given that threats to the species problems is an overall lack of detailed management value or potential (e.g., are compounded by their limited information on specific habitat and life Etowah River, Big Wills Creek, Little distribution and isolation, it is unlikely history requirements of these species, or River, Armuchee Creek, Euharlee Creek, that currently occupied habitat is on the physical threats that confront Limestone Creek, etc.). adequate for the conservation of all 11 them (e.g., sediment, nutrient, and other We then evaluated streams and rivers species. Conservation of these species pollutant sensitivities, etc.). Threats within the historic ranges of these 11 requires expanding their ranges into compounded by habitat fragmentation species which had evidence that these currently unoccupied portions of their and isolation can be reduced by mussels had occurred there at some historic habitat because small, isolated, increasing the number, expanding the point (i.e., collection records). We aquatic populations are subject to range, and increasing the density of eliminated from consideration areas chance catastrophic events and to populations. Preventing the extinction from which there have been no changes in human activities and land of those species listed as endangered, collection records for several decades use practices that may result in their and arresting the continued decline of and/or are remote from currently elimination. Larger, more contiguous those species listed as threatened are the occupied areas (e.g., portions of the populations can reduce the threat of recovery objectives outlined in the lower Alabama River, lower Cahaba extinction due to habitat fragmentation recovery plan for these 11 mussels. The River, Mulberry Fork, Noxubee River, and isolation. recovery plan emphasizes: (1) Protection Talladega Creek, and others). In BILLING CODE 4310–55–P

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BILLING CODE 4310–55–C Because portions of the historic range with 4 or more of the other mussel of each of the 11 mussels were shared species, there is considerable overlap

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between species’ current and historical and it is within the historic range of these species at this time. Critical distributions within these 25 habitat Alabama moccasinshell, Coosa habitat may be revised for any or all of units. This offers opportunities to moccasinshell, ovate clubshell, southern these species should new information increase each species’ current range and pigtoe, triangular kidneyshell, southern become available. acornshell, and upland combshell. As number of extant populations into units Need for Special Management noted above, threats to these species can currently occupied by other listed Consideration or Protection species included in this designation. For be reduced by expanding their current example, the Alabama moccasinshell ranges through reintroduction into When designating critical habitat, we historically inhabited 16 of the units, suitable habitats. Since the Coosa River assess whether the areas determined to and currently inhabits 7; fine-lined below Jordan Dam is viewed by experts be essential for conservation may pocketbook was known from 12 of the as a high-quality example of remaining require special management units, and currently inhabits 10; orange- mussel habitat in the Basin, and is considerations or protections. All 26 nacre mucket historically occupied 15 recognized as presenting the best critical habitat units identified in this units, and is currently found in 12; and opportunity for reestablishing mussel final designation may require special Coosa moccasinshell historically populations (Johnson 2002), we believe management considerations or occupied 9 of the units, but is currently it is also essential for the conservation protection to maintain geomorphic found in only 1. Successful of these 9 mussel species, and designate stability, water quantity or quality, reintroduction of the species into units it as unoccupied habitat. substrates, presence of fish hosts, or to that they historically occupied (and that As a result, we have defined 26 prevent or control exotic competing or are currently occupied by 1 or more of habitat units encompassing predaceous species. All of these units the 11 species) would expand the approximately 1,760 km (1,093 mi) of are threatened by actions that alter he number of populations, thereby stream and river channels in Alabama, stream slope (e.g., channelization, reducing threat of extinction. Each of Mississippi, Georgia, and Tennessee, for instream mining, impoundment) or the 25 habitat units (Units 1–25) are these 11 mussel species (Figure 1). create significant changes in the annual currently occupied by 1 or more of the Although this represents only a small water or sediment budget (e.g., listed mussels. Only two occupied proportion of each species’ historic urbanization, deforestation, water habitat units and one unoccupied range, these habitat units include a withdrawal); point and/or nonpoint habitat unit are designated for the dark significant proportion of the Basin’s source pollution that results in contamination, nutrification, or pigtoe because its range was naturally remaining, highest quality, free-flowing sedimentation; and the introduction or restricted to the Black Warrior River rivers and streams, and reflect the augmentation of nonnative species that drainage, and we are unable to identify variety of small stream to large river may compete with or prey on the any other unoccupied habitat units in habitats historically occupied by each mussel species inhabiting the units (e.g., the drainage that provide constituent species. Because mussels are naturally Asian clams, zebra or quagga mussels, elements. restricted by certain physical conditions within a stream or river reach (i.e., flow, black carp). Habitat fragmentation, As noted above, conservation of these substrate), they may be unevenly population isolation, and small species requires expanding their ranges distributed within these habitat units. population size compounds these into unoccupied portions of historic Uncertainty on upstream and threats to the species. Various activities habitat. Therefore, in addition to these downstream distributional limits of in or adjacent to each of the critical 25 habitat units, we also designate the some populations may have resulted in habitat units described in this final rule Coosa River below Jordan Dam (Unit 26) small areas of occupied habitat may affect one or more of the primary as critical habitat for 9 of the 11 mussel excluded from, or areas of unoccupied constituent elements that are found in species. Shells of the fine-lined habitat included in, the designation. the unit. These activities include, but pocketbook were last collected from this We recognize that both historic and are not limited to, those listed below in reach in 1989 (Pierson, 1991a), and it is recent collection records upon which the ‘‘Effects of Critical Habitat’’ section also within the historic range of 8 other we relied are incomplete, and that there as ‘‘Federal Actions That May Affect species. This is the only unit currently are river segments or small tributaries Critical Habitat and Require not occupied by at least 1 of the 11 not included in this final designation Consultation.’’ None of the critical species (Johnson, 2002). This area has that may harbor small, limited habitat units is presently under special recently been identified as presenting populations of one or more of the 11 management or protection provided by high potential for the successful species considered in this designation, a legally operative plan or agreement for reintroduction of imperiled mussels in or that others may become suitable in the conservation of these mussels. These the Coosa River drainage (Johnson, the future. The exclusion of such areas threats may render the habitat less 2002). In 1990, the Alabama Power does not diminish their potential suitable for these 11 mussels, therefore, Company increased minimum flows individual or cumulative importance to we have determined that the critical below Jordan Dam into the Coosa River the conservation of these species. habitat units may require special channel from about 70 cubic feet per However, we believe that with proper management or protection. At this time, second (cfs) to 2000 cfs (Federal Energy management each of the 26 habitat units special management considerations Regulatory Commission (FERC), 1990), are capable of supporting 1 or more of under 3(5)(a) of the Act warrant greatly improving aquatic habitat these 11 species, and will serve as designating these units as critical quality. The lower Coosa River not only source populations for artificial habitat. offers high-quality riverine habitat, but reintroduction into designated stream due to local geology, it is relatively units, as well as assisted or natural Critical Habitat Designation protected from non-point runoff, a major migration into adjacent undesignated The areas that we are designating as threat to all existing populations of streams within the Basin. critical habitat for the 11 mussel species these species. There are historic records At this time, the habitat areas provide one or more of the primary of fine-lined pocketbook and southern contained within the units described constituent elements described above. clubshell from this 13 km (8 mi) reach below constitute our best evaluation of In accordance with the Mobile River of river (Johnson, 2002; Pierson, 1991a), areas needed for the conservation of Aquatic Ecosystem Recovery Plan

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(2000), protection of the habitat in these Critical Habitat Unit Descriptions destruction of terrestrial vegetation; the units and their surviving populations is presence of litter and debris; or other essential to the conservation of these 11 The critical habitat units described appropriate means that consider the mussel species. All of the designated below include the stream and river characteristics of the surrounding areas. areas require special management channels within the ordinary high water We are designating the following areas considerations to ensure their line. As defined in 33 CFR 329.11, the as critical habitat for the 11 mussel contribution to the conservation of these ordinary high water line on nontidal species (Refer to Table 1 for the location mussels. For each stream reach rivers is the line on the shore and extent of critical habitat designated identified as a critical habitat unit, the established by the fluctuations of water for each species and more specifically to and indicated by physical up- and downstream boundaries are § 17.95, Critical habitat-fish and characteristics such as a clear, natural described in general detail below; more wildlife, at the end of this rule). precise estimates are provided in the line impressed on the bank; shelving; Regulation Promulgation of this rule. changes in the character of soil;

TABLE 1.—APPROXIMATE RIVER DISTANCES, BY DRAINAGE, FOR OCCUPIED AND UNOCCUPIED CRITICAL HABITAT FOR THE 11 MUSSEL SPECIES *

Current occupied Currently unoccupied Species, status, critical habitat unit, and state Kilometers Miles Kilometers Miles

Alabama moccasinshell—THREATENED

1. East Fork Tombigbee River, MS ...... 26 16 2. Bull Mountain Creek, MS ...... 34 21 3. Buttahatchee River, MS, AL ...... 110 68 4. Luxapalila Creek, MS, AL ...... 29 18 5. Coalfire Creek, AL ...... 32 20 6. Lubbub Creek, AL ...... 31 19 7. Sipsey River, AL ...... 90 56 8. Trussels Creek, AL ...... 21 13 9. Sucarnoochee River, AL ...... 90 56 10. Sipsey Fork, AL ...... 147 91 11. North River, AL ...... 47 29 12. Locust Fork, AL ...... 102 63 13. Cahaba River, AL ...... 124 77 15. Bogue Chitto Creek, AL ...... 52 32 25. Oostanuala complex, GA, TN ...... 16 10 191 119 26. Lower Coosa River, AL ...... 13 8

Total ...... 457 283 698 433

Fine-lined pocketbook—THREATENED

13. Cahaba River, AL ...... 124 77 16. Tallapoosa River, AL, GA ...... 161 100 17. Uphapee complex, AL ...... 74 46 18. Coosa River, AL ...... 78 48 19. Hatchet Creek, AL ...... 66 41 20. Shoal Creek, AL ...... 26 16 21. Kelly Creek, AL ...... 34 21 22. Cheaha Creek, AL ...... 27 17 23. Yellowleaf Creek, AL ...... 39 24 24. Big Canoe Creek, AL ...... 29 18 25. Oostanaula complex, GA, TN ...... 115 71 92 57 26. Lower Coosa River, AL ...... 13 8

TOTAL ...... 744 461 134 83

Orange-nacre mucket—THREATENED

1. East Fork Tombigbee River, MS ...... 26 16 2. Bull Mountain Creek, MS ...... 34 21 3. Buttahatchee River, MS, AL ...... 87 54 23 14 4. Luxapalila Creek, MS, AL ...... 29 18 5. Coalfire Creek, AL ...... 32 20 6. Lubbub Creek, AL ...... 31 19 7. Sipsey River, AL ...... 90 56 8. Trussels Creek, AL ...... 21 13 9. Sucarnoochee River, AL ...... 90 56 10. Sipsey Fork, AL ...... 147 91 11. North River, AL ...... 47 29 12. Locust Fork, AL ...... 102 63 13. Cahaba River, AL ...... 124 77 14. Alabama River, AL ...... 73 45

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TABLE 1.—APPROXIMATE RIVER DISTANCES, BY DRAINAGE, FOR OCCUPIED AND UNOCCUPIED CRITICAL HABITAT FOR THE 11 MUSSEL SPECIES *—Continued

Current occupied Currently unoccupied Species, status, critical habitat unit, and state Kilometers Miles Kilometers Miles

15. Bogue Chitto Creek, AL ...... 52 32

Total ...... 788 480 220 136

Coosa moccasinshell—ENDANGERED

18. Coosa River, AL ...... 78 48 19. Hatchet Creek, AL ...... 66 41 20. Shoal Creek, AL ...... 26 16 21. Kelly Creek, AL ...... 34 21 22. Cheaha Creek, AL ...... 27 17 23. Yellowleaf Creek, AL ...... 39 24 24. Big Canoe Creek, AL ...... 29 18 25. Oostanaula Complex, GA, TN ...... 115 71 92 57 26. Lower Coosa River, AL ...... 13 8

Total ...... 115 71 404 250

Dark pigtoe—ENDANGERED

10. Sipsey Fork, AL ...... 147 91 11. North River, AL ...... 47 29 12. Locust Fork, AL ...... 102 63

Total ...... 194 120 102 63

Ovate clubshell—ENDANGERED

1. East Fork Tombigbee River, MS ...... 26 16 2. Bull Mountain Creek, MS ...... 34 21 3. Buttahatchee River, MS, AL ...... 87 54 23 14 4. Luxapalila Creek, MS, AL ...... 29 18 5. Coalfire Creek, AL ...... 32 20 6. Lubbub Creek, AL ...... 31 19 7. Sipsey River, AL ...... 90 56 8. Trussels Creek, AL ...... 21 13 9. Sucarnoochee River, AL ...... 90 56 10. Sipsey Fork, AL ...... 147 91 11. North River, AL ...... 47 29 12. Locust Fork, AL ...... 102 63 13. Cahaba River, AL ...... 124 77 17. Uphapee complex, AL ...... 74 46 18. Coosa River, AL ...... 78 48 19. Hatchet Creek, AL ...... 66 41 21. Kelly Creek, AL ...... 34 21 24. Big Canoe Creek, AL ...... 29 18 25. Oostanaula complex, GA, TN ...... 206 128 26. Lower Coosa River, AL ...... 13 8

Total ...... 402 250 981 607

Southern clubshell—ENDANGERED

1. East Fork Tombigbee River, MS ...... 26 16 2. Bull Mountain Creek, MS ...... 34 21 3. Buttahatchee River, MS, AL ...... 87 54 23 14 4. Luxapalila Creek, MS, AL ...... 29 18 5. Coalfire Creek, AL ...... 32 20 6. Lubbub Creek, AL ...... 31 19 7. Sipsey River, AL ...... 90 56 8. Trussels Creek, AL ...... 21 13 9. Sucarnoochee River, AL ...... 90 56 13. Cahaba River, AL ...... 124 77 14. Alabama River, AL ...... 73 45 15. Bogue Chitto Creek, AL ...... 52 32 17. Uphapee Complex, AL ...... 74 46 18. Coosa River, AL ...... 71 44 7 4 19. Hatchet Creek, AL ...... 66 41 21. Kelly Creek, AL ...... 26 16 8 5 24. Big Canoe Creek, AL ...... 29 18

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TABLE 1.—APPROXIMATE RIVER DISTANCES, BY DRAINAGE, FOR OCCUPIED AND UNOCCUPIED CRITICAL HABITAT FOR THE 11 MUSSEL SPECIES *—Continued

Current occupied Currently unoccupied Species, status, critical habitat unit, and state Kilometers Miles Kilometers Miles

25. Oostanaula Complex, GA, TN ...... 15 9 193 120 26. Lower Coosa River, AL ...... 13 8

Total ...... 637 394 577 358

Southern pigtoe—ENDANGERED

18. Coosa River, AL ...... 78 48 19. Hatchet Creek, AL ...... 66 41 20. Shoal Creek, AL ...... 26 16 21. Kelly Creek, AL ...... 34 21 22. Cheaha Creek, AL ...... 27 17 23. Yellowleaf Creek, AL ...... 39 24 24. Big Canoe Creek, AL ...... 29 18 25. Oostanaula Complex, GA, TN ...... 115 71 92 57 26. Lower Coosa River, AL ...... 13 8

Total ...... 197 122 322 199

Triangular kidneyshell—ENDANGERED

10. Sipsey Fork, AL ...... 147 91 11. North River, AL ...... 47 29 12. Locust Fork, AL ...... 102 63 13. Cahaba River, AL ...... 105 65 19 12 18. Coosa River, AL ...... 78 48 19. Hatchet Creek, AL ...... 66 41 20. Shoal Creek, AL ...... 26 16 21. Kelly Creek, AL ...... 26 16 8 5 22. Cheaha Creek, AL ...... 27 17 23. Yellowleaf Creek, AL ...... 39 24 24. Big Canoe Creek, AL ...... 29 18 25. Oostanaula Complex, GA, TN ...... 206 128 26. Lower Coosa River, AL ...... 13 8

Total ...... 641 397 297 184

Southern acornshell—ENDANGERED

13. Cahaba River, AL ...... 124 77 18. Coosa River, AL ...... 78 48 19. Hatchet Creek, AL ...... 66 41 21. Kelly Creek, AL ...... 34 21 24. Big Canoe Creek, AL ...... 29 18 25. Oostanaula Complex, GA, TN ...... 205 128 26. Lower Coosa River, AL ...... 13 8

Total ...... 549 341

Upland combshell—ENDANGERED

12. Locust Fork, AL ...... 102 63 13. Cahaba River, AL ...... 124 77 18. Coosa River, AL ...... 78 48 19. Hatchet Creek, AL ...... 66 41 21. Kelly Creek, AL ...... 34 21 24. Big Canoe Creek, AL ...... 29 18 25. Oostanaula Complex, GA, TN ...... 205 128 26. Lower Coosa River, AL ...... 13 8

Total ...... 651 404 * Table 1 refers to the location and extent of critical habitat designated for each species. For more detail, refer to § 17.95. Table 1 will reflect to- tals on a species level only, because units are listed under each species as appropriate.

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Upper Tombigbee River Drainage, extending from its confluence with the nacre mucket, and Alabama Alabama, Mississippi impounded waters of Columbus Lake moccasinshell (P. Hartfield, Service The Tombigbee River and several of (Tombigbee River), Lowndes/Monroe field records, 1991; McGregor, 2000; its tributaries above the confluence of County, Mississippi, upstream to the Pierson, 1991a). It is in the historic the Black Warrior River historically confluence of Beaver Creek, Lamar range of the ovate clubshell. County, Alabama; and 23 km (14 mi) of supported robust populations of the Unit 7. Sipsey River, Greene/Pickens, Sipsey Creek, extending from its orange-nacre mucket, Alabama Tuscaloosa Counties, Alabama moccasinshell, southern clubshell, and confluence with the Buttahatchee River, Unit 7 encompasses 90 km (56 mi) of ovate clubshell. Construction of upstream to the Mississippi/Alabama navigation dams has eliminated these State Line, Monroe County, Mississippi. the Sipsey River channel from the species from the mainstem river, and The Buttahatchee River continues to confluence with the impounded waters the dams and impounded waters isolate support and provide habitat for the of Gainesville Lake (Tombigbee River), all surviving tributary populations from southern clubshell, orange-nacre Greene/Pickens County, upstream to each other. The river and stream reaches mucket, ovate clubshell, and Alabama Alabama Highway 171 crossing, identified in the nine units below moccasinshell (Haag and Warren, 2001; Tuscaloosa County, Alabama. This contain primary constituent elements Hartfield and Jones, 1989; Jones, 1991; small river supports and provides some (e.g., flow, water quality, substrate, McGregor, 2000). The current of the best remaining habitat for the channel stability) to a degree that allows distribution of the Alabama southern clubshell, orange-nacre the survival of one or more of the four moccasinshell also extends into its mucket, ovate clubshell, and Alabama species listed above and may be suitable tributary Sipsey Creek (McGregor, moccasinshell (Haag and Warren, 1997; for reintroduction of one or more of the 2000). McCullagh et al., 2002; McGregor, 2000; MMNS Mussel Collection; Pierson, 1991 four mussels. Fish hosts for these Unit 4. Luxapalila Creek and tributary, a, b). species are known or believed to be Lowndes County, Mississippi; Lamar present (Mettee et. al, 1996; Ross, 2001). County, Alabama Unit 8. Trussels Creek, Greene County, The introduced Asian clam is locally Unit 4 encompasses 29 km (18 mi) of Alabama present in low to moderate numbers. stream channel, including 15 km (9 mi) Unit 8 encompasses 21 km (13 mi) of Unit 1. East Fork Tombigbee River, of Luxapalila Creek, extending from creek channel extending from its Monroe, Itawamba Counties, Mississippi Waterworks Road, Columbus, confluence with the impounded waters Unit 1 encompasses 26 km (16 mi) of Mississippi, upstream to approximately of Demopolis Lake (Tombigbee River), the East Fork Tombigbee River channel 1.0 km (0.6 mi) above Steens Road, upstream to Alabama Highway 14, in Mississippi extending from Lowndes County, Mississippi; and 15 Greene County, Alabama. The orange- Mississippi Highway 278, Monroe km (9 mi) of Yellow Creek extending nacre mucket continues to survive in County, upstream to the confluence of from its confluence with Luxapalila Trussels Creek, and it is in the historic Mill Creek, Itawamba County, Creek, upstream to the confluence of range of the ovate clubshell, Alabama Mississippi. This reach of the East Fork Cut Bank Creek, Lamar County, moccasinshell, and southern clubshell Tombigbee River continues to support Alabama. Luxapalila and Yellow Creeks (P. Hartfield field records, 1993; the southern clubshell and orange-nacre support and provide habitat for the McGregor, 2000). southern clubshell, orange-nacre mucket (Hartfield and Jones, 1989; Unit 9. Sucarnoochee River, Sumter mucket, ovate clubshell, and Alabama Miller and Hartfield, 1988; Mississippi County, Alabama Museum of Natural Science (MMNS) moccasinshell (Hartfield and Bowker, mussel collections, 1984–2001). This 1992; McGregor, 2000; Miller, 2000; Unit 9 encompasses 90 km (56 mi) of unit is within the historic range of the Yokley 2001). the Sucarnoochee River channel in Alabama, extending from its confluence Alabama moccasinshell and ovate Unit 5. Coalfire Creek, Pickens County, clubshell. with the Tombigbee River, upstream to Alabama the Mississippi/Alabama State Line, Unit 2. Bull Mountain Creek, Itawamba Unit 5 encompasses 32 km (20 mi) of Sumter County, Alabama. The ovate County, Mississippi the Coalfire Creek stream channel clubshell continues to survive in the Unit 2 encompasses 34 km (21 mi) of extending from its confluence with the Sucarnoochee River (McGregor et al., the Bull Mountain Creek stream channel impounded waters of Aliceville Lake 1996). The river is within the historic in Mississippi extending from (Tombigbee River), upstream to U.S. range of the southern clubshell, orange- Mississippi Highway 25, upstream to Highway 82, Pickens County, Alabama. nacre mucket, and Alabama U.S. Highway 78, Itawamba County, Coalfire Creek supports the orange-nacre moccasinshell. mucket and ovate clubshell (P. Mississippi. Bull Mountain Creek Black Warrior River Drainage, Hartfield, Service field records 1991; supports the southern clubshell and Alabama Alabama moccasinshell (Jones and McGregor, 2000). The creek is in the Majure, 1999). This unit is within the historic range of the southern clubshell The Black Warrior River and its historic range of the orange-nacre and Alabama moccasinshell. tributaries historically supported mucket (records are from the early populations of the orange-nacre mucket, Unit 6. Lubbub Creek, Pickens County, 1980’s (MMNS mussel collections)) and Alabama moccasinshell, Coosa Alabama the ovate clubshell. moccasinshell, southern clubshell, ovate Unit 6 encompasses 31 km (19 mi) of clubshell, dark pigtoe, triangular Unit 3. Buttahatchee River and the Lubbub Creek stream channel kidneyshell, and upland combshell. tributary, Lowndes/Monroe County, extending from its confluence with the There are also records of the fine-lined Mississippi; Lamar County, Alabama impounded waters of Gainesville Lake pocketbook from the drainage. Dam Unit 3 encompasses 110 km (68 mi) (Tombigbee River), upstream to the construction for navigation and of river and stream channel in confluence of Little Lubbub Creek, hydropower and episodic water Mississippi and Alabama, including 87 Pickens County, Alabama. This stream pollution resulted in the extirpation of km (54 mi) of the Buttahatchee River, supports the southern clubshell, orange- the Coosa moccasinshell, southern

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clubshell, ovate clubshell, and upland 1997; Hartfield and Hartfield, 1996; kidneyshell and may be suitable for combshell from this drainage. The McGregor, 1992; Warren and Haag, reintroduction of five of the 11 mussels. tributary drainages identified in the 1994). Ovate clubshell have been Fish hosts for these species are also three units below contain primary reported from this drainage (Dodd et al., known to be present (Mettee et. al., constituent elements (e.g., flow, water 1986). 1996). The introduced Asian clam is quality, substrate, channel stability) to a Unit 11. North River and tributary, locally present in these drainages in low degree that allows the survival of two or Tuscaloosa, Fayette Counties, Alabama to high densities. more endangered or threatened mussels and may be suitable for reintroduction Unit 11 encompasses 47 km (29 mi) Unit 13. Cahaba River and tributary, of one or more of the mussels. Fish of river and stream channel in Alabama, Jefferson, Shelby, Bibb Counties, hosts for these species are also known including: North River, 42 km (26 mi) Alabama to be present (Mettee et. al., 1996). The extending from Tuscaloosa County Road introduced Asian clam is locally present 38, Tuscaloosa County, upstream to Unit 13 encompasses 124 km (77 mi) in these drainages in low to high confluence of Ellis Creek, Fayette of river channel in Alabama, including: densities. Dams and impounded waters County, Alabama; Clear Creek, 5 km (3 Cahaba River, 105 km (65 mi) extending currently isolate these drainages from mi), from its confluence with North from U.S. Highway 82, Centerville, Bibb each other. River, to Bays Lake Dam, Fayette County, upstream to Jefferson County County, Alabama. Small numbers of the Road 143, Jefferson County, Alabama; Unit 10. Sipsey Fork drainage, Winston, dark pigtoe and orange-nacre mucket Little Cahaba River, 19 km (12 mi), from Lawrence Counties, Alabama continue to survive in the North River its confluence with the Cahaba River, Unit 10 encompasses 147 km (91 mi) and Clear Creek (McGregor and Pierson, upstream to the confluence of Mahan of stream channel in Alabama, 1999; Pierson, 1992a; Vittor and and Shoal Creeks, Bibb County, including: Sipsey Fork, 31 km (19 mi), Associates, 1993). This area is in the Alabama. Scattered individuals of from section 11/12 line, T10S R8W, historic range of the Alabama triangular kidneyshell, orange-nacre Winston County, upstream to the moccasinshell, triangular kidneyshell, mucket, and fine-lined pocketbook confluence of Hubbard Creek, Lawrence and ovate clubshell. continue to be collected from the County, Alabama; Thompson Creek, 8 Unit 12. Locust Fork and tributary, Cahaba drainage (R. Haddock, Cahaba km (5 mi), from confluence with Jefferson, Blount Counties, Alabama River Society, pers. comm., 2002; Hubbard Creek, upstream to section 2 Unit 12 encompasses 102 km (63 mi) McGregor et al., 2000; Shepard et al., line, T8S R9W, Lawrence County, 1994). The river is historic habitat for Alabama; Brushy Creek, 35 km (22 mi), of river and stream channel in Alabama, the Alabama moccasinshell, southern from the confluence of Glover Creek, including: Locust Fork, 94 km (58 mi) clubshell, ovate clubshell, upland Winston County, Alabama, upstream to extending from U.S. Highway 78, combshell, and southern acornshell. section 9, T8S R7W, Lawrence County, Jefferson County, upstream to the Alabama; Capsey Creek, 15 km (9 mi), confluence of Little Warrior River, Alabama River Drainage, Alabama from confluence with Brushy Creek, Blount County, Alabama; Little Warrior Winston County, upstream to the River, 8 km (5 mi), from its confluence The Alabama River mollusk confluence of Turkey Creek, Lawrence with the Locust Fork, upstream to the community has been reduced due to the County, Alabama; Rush Creek, 10 km (6 confluence of Calvert Prong and effects of historic pollution events and mi), from confluence with Brushy Blackburn Fork, Blount County, impoundment for navigation. Historical Creek, upstream to Winston/Lawrence Alabama. Scattered collections of the records from this river include the County Line, Winston County, Alabama; orange-nacre mucket and triangular Alabama moccasinshell, orange-nacre Brown Creek, 5 km (3 mi), from kidneyshell suggest an enduring mucket, fine-lined pocketbook, confluence with Rush Creek, Winston population of these species in the triangular kidneyshell, and southern County, upstream to section 24 line, Locust Fork (P. Johnson pers. comm., clubshell. The habitat units defined T8S R7W Lawrence County, Alabama; 2002; Hartfield, 1991; Shepard et al., below contain primary constituent Beech Creek, 3 km (2 mi), from 1988). This stream is also in the historic elements (e.g., flow, water quality, confluence with Brushy Creek, to range of the dark pigtoe, Alabama substrate, channel stability) to a degree confluence of East and West Forks, moccasinshell, ovate clubshell, and that allows the survival of two of these Winston County, Alabama; Caney Creek upland combshell. mussels. Fish hosts for these species are and North Fork Caney Creek, 13 km (8 Cahaba River Drainage, Alabama also known to be present (Mettee et al., mi), from confluence with Sipsey Fork, 1996). The introduced Asian clam is The Cahaba River and tributaries upstream to section 14 line, Winston locally present in these drainages in low historically supported the orange-nacre County, Alabama; Borden Creek, 18 km to moderate densities. (11 mi), from confluence with Sipsey mucket, fine-lined pocketbook, Alabama Fork, Winston County, Alabama, moccasinshell, southern clubshell, ovate Unit 14. Alabama River, Autauga, upstream to the confluence of clubshell, triangular kidneyshell, Lowndes, Dallas Counties, Alabama Montgomery Creek, Lawrence County, upland combshell, and southern Alabama; Flannagin Creek, 10 km (6 acornshell. Episodic and persistent Unit 14 encompasses 73 km (45 mi) mi), from confluence with Borden pollution events have caused the of the Alabama River channel, Creek, upstream to confluence of Dry decline of the mussel community extending from the confluence of the Creek, Lawrence County, Alabama. The throughout the drainage, as well as the Cahaba River, Dallas County, upstream upper Sipsey Fork drainage currently extirpation of five of the listed mussels. to the confluence of Big Swamp Creek, supports the most robust and extensive The habitat unit described below Lowndes County, Alabama. The populations of the dark pigtoe, orange- contains primary constituent elements southern clubshell is known to occur nacre mucket, Alabama moccasinshell, (e.g., flow, water quality, substrate, within this reach (Hartfield and Garner, and triangular kidneyshell (Haag and channel stability) to a degree that allows 1998). This area may become suitable Warren, 1997; Haag et al., 1995; the survival of the orange-nacre mucket, for reintroduction of the orange-nacre Hartfield, 1991; Hartfield and Butler, fine-lined pocketbook, and triangular mucket.

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Unit 15. Bogue Chitto Creek, Dallas Unit 17. Uphapee/Choctafaula/ County, Alabama; South Fork Terrapin County, Alabama Chewacla Creeks, Macon, Lee Counties, Creek, 7 km (4 mi) from its confluence Alabama with Terrapin Creek, upstream to Unit 15 encompasses 52 km (32 mi) Cleburne County Road 55, Cleburne of the Bogue Chitto Creek channel in Unit 17 encompasses 74 km (46 mi) of stream channel in Alabama, County, Alabama. The short reach of the Alabama, extending from its confluence Coosa River continues to support a including: Uphapee Creek, 18 km (11 with the Alabama River, Dallas County, fairly robust population of the southern mi) of river channel extending from upstream to U.S. Highway 80, Dallas clubshell, and a few individuals of the Alabama Highway 199, upstream to fine-lined pocketbook (Herod et al., County, Alabama. This stream continues confluence of Opintlocco and Chewacla 2001). The fine-lined pocketbook and to support the southern clubshell and Creeks, Macon County, Alabama; southern clubshell have also been orange-nacre mucket (McGregor et al., Choctafaula Creek, 11 km (7 mi), from recently collected from Terrapin Creek 1996; P. Hartfield field notes, 1984; confluence with Uphapee Creek, (Feminella and Gangloff, 2000). This Pierson, 1991a). The habitat offers upstream to Macon County Road 54, area is within the range of the Coosa potential for the Alabama Macon County, Alabama; Chewacla moccasinshell. moccasinshell, southern pigtoe, ovate Creek, 29 km (18 mi), from confluence clubshell, triangular kidneyshell, Tallapoosa River Drainage, Alabama, with Opintlocco Creek, Macon County, upland combshell, and southern Georgia Alabama, upstream to Lee County Road acornshell. 159, Lee County, Alabama; Opintlocco Historical and recent records indicate Creek, 16 km (10 mi), from confluence Unit 19. Hatchet Creek, Coosa, Clay that the Tallapoosa River drainage with Chewacla Creek, upstream to Counties, Alabama supported a diverse mussel community, Macon County Road 79, Macon County, Unit 19 encompasses 66 km (41 mi) although numbers of all mussel species Alabama. This stream network supports of the Hatchet Creek channel in have apparently always been low in this small and localized populations of the Alabama, extending from the confluence system. The two habitat units identified fine-lined pocketbook, ovate clubshell, of Swamp Creek at Coosa County Road below contain primary constituent and southern clubshell (M. Gangloff, 29, Coosa County, Alabama, upstream to elements (e.g., flow, water quality, Auburn University, in litt., 2001; Clay County Road 4, Clay County, substrate, channel stability) to a degree Gangloff, 2002; McGregor, 1993; Alabama. The fine-lined pocketbook Pierson, 1991a). that allows the survival of three of the occurs within this reach (Feminella and listed mussels and may be suitable for Coosa River Drainage, Alabama, Gangloff, 2000; Pierson, 1992b). Hatchet reintroduction of one or more of the 11 Georgia, Tennessee Creek is within the historic range of the mussels. Fish hosts for these species are Coosa moccasinshell, southern pigtoe, Extensive impoundment for ovate clubshell, southern clubshell, also known to be present (Mettee et al., hydropower during the 20th century 1996). The introduced Asian clam is triangular kidneyshell, upland along with episodic pollution events combshell, and southern acornshell. locally present in these drainages in low severely reduced one of the most to moderate densities. diverse endemic freshwater mollusk Unit 20. Shoal Creek, Calhoun, Cleburne Counties, Alabama Unit 16. Tallapoosa River and tributary, communities in the world. The river Cleburne County, Alabama and and stream reaches in eight of the nine Unit 20 encompasses 26 km (16 mi) Haralson and Paulding Counties, units identified below contain primary of stream channel in Alabama, Georgia constituent elements (e.g., flow, water extending from the headwater of quality, substrate, channel stability) to a Whitesides Mill Lake, Calhoun County, Unit 16 encompasses 161 km (100 mi) degree that allows the survival of two or Alabama, upstream to the tailwater of of river and stream channel in Alabama more endangered or threatened mussels Coleman Lake Dam, Cleburne County, and Georgia, including: Tallapoosa and may be suitable for reintroduction Alabama. The fine-lined pocketbook, River, 137 km (85 mi) extending from of one or more of the 11 mussels. Fish southern pigtoe, and triangular U.S. Highway 431, Cleburne County, hosts for these species are also known kidneyshell survive in Shoal Creek Alabama, upstream to the confluence of to be present (Mettee et al., 1996). (Haag et al., 1999; Feminella and McClendon and Mud Creeks, Paulding Constituent elements in Unit 26 have Gangloff, 2000; Gangloff in litt., 2001; County, Georgia; and Cane Creek, 24 km improved to a degree that survival of Pierson, 1992b). Shoal Creek is within (15 mi), from confluence with extirpated endangered and threatened historic range of the Coosa Tallapoosa River, upstream to Section species may now be possible (Johnson, moccasinshell. 2002). The introduced Asian clam is 33/4 Line (T15S, R11E), Cleburne locally present in these units in low to Unit 21. Kelly Creek and tributary, County, Alabama. This extensive area of high densities. Shelby, St. Clair Counties, Alabama main channel and tributary habitat Unit 21 encompasses 34 km (21 mi) supports scattered, small numbers of the Unit 18. Coosa River (Old River of stream channel in Alabama, fine-lined pocketbook (Devris, 1997; Channel) and tributary, Cherokee, including: Kelly Creek, 26 km (16 mi) Irwin et al., 1998; Irwin pers. comm., Calhoun, Cleburne Counties, Alabama extending from the confluence with the 2000). There have been site collections Unit 18 encompasses 78 km (48 mi) Coosa River, upstream to the confluence of fine-lined pocketbook in the extreme of river channel in Alabama, including: of Shoal Creek, St. Clair County, lowest reaches of several small Coosa River, 18 km (11 mi) extending Alabama; Shoal Creek, 8 km (5 mi), from tributaries to the Tallapoosa Unit, from the powerline crossing southeast of confluence with Kelly Creek, St. Clair including Little Cane Creek, Big Creek, Maple Grove, Alabama, upstream to County, Alabama, upstream to St. Clair/ McClendon Creek, and Muscadine Weiss Dam, Cherokee County, Alabama; Shelby County Line, St. Clair County, Creek, and there are likely to be others. Terrapin Creek, 53 km (33 mi) extending Alabama. Kelly/Shoal Creeks continue We believe these small populations are from its confluence with the Coosa to support scattered individuals of the dependent upon the main stem River, Cherokee County, upstream to fine-lined pocketbook, and the southern Tallapoosa River for recruitment. Cleburne County Road 49, Cleburne clubshell and triangular kidneyshell

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survive in Kelly Creek (Pierson pers. extending from its confluence with moccasinshell, and Coosa comm., 1995; Feminella and Gangloff, Little Canoe Creek at the St. Clair/ moccasinshell. The triangular 2000; Gangloff in litt., 2001). This Etowah County line, St. Clair County, kidneyshell survives throughout this stream complex is historic habitat for upstream to the confluence of Fall unit, while the fine-lined pocketbook, the southern pigtoe, Coosa Branch, St. Clair County, Alabama. The southern pigtoe, and Coosa moccasinshell, ovate clubshell, upland southern clubshell, southern pigtoe, and moccasinshell appear to be currently combshell, and southern acornshell. triangular kidneyshell are surviving in restricted to the Conasauga River and Unit 22. Cheaha Creek, Talladega, Clay low numbers in Big Canoe Creek Holly Creek and the southern clubshell Counties, Alabama (Feminella and Gangloff, 2000; Gangloff appears restricted to a small 15 km (9 in litt., 2001). This stream is also mi) reach of the Conasauga River Unit 22 encompasses 27 km (17 mi) historic habitat for the fine-lined of the Cheaha Creek channel, extending (Evans, 2001; Johnson and Evans, 2000; pocketbook, ovate clubshell, Coosa Pierson in litt., 1993; Williams and from its confluence with Choccolocco moccasinshell, upland combshell, and Hughes, 1998). The Alabama Creek, Talladega County, Alabama, southern acornshell. upstream to the tailwater of Chinnabee moccasinshell is currently known to Lake, Clay County, Alabama. The fine- Unit 25. Oostanaula River/Coosawattee survive only in the Holly Creek portion lined pocketbook and southern pigtoe River/Conasauga River/Holly Creek, of this Unit (Evans, 2001; Johnson and survive within this reach (Feminella Floyd, Gordon, Whitfield, Murray Evans, 2000). The Oostanaula/ and Gangloff, 2000; Gangloff in litt., Counties, Georgia; Bradley, Polk Coosawattee/Conasauga Unit also 2001; Pierson, 1992b, 1993). Cheaha Counties, Tennessee contains historic habitat for the Creek is in the historic range of the Unit 25 encompasses 206 km (128 mi) southern clubshell, ovate clubshell, Coosa moccasinshell and triangular of river and stream channel in Georgia upland combshell, and southern kidneyshell. and Tennessee, including: Oostanaula acornshell. Unit 23. Yellowleaf Creek and tributary, River, 77 km (48 mi) extending from its Unit 26. Lower Coosa River, Elmore Shelby County, Alabama confluence with the Etowah River, County, Alabama Unit 23 encompasses 39 km (24 mi) Floyd County, upstream to the of stream channel, including: Yellowleaf confluence of the Conasauga and Unit 26 encompasses 13 km (8 mi) of Creek, 32 km (20 mi), extending from Coosawattee River, Gordon County, the Lower Coosa River channel, Alabama Highway 25, upstream to Georgia; Coosawattee River, 15 km (9 extending from Alabama State Highway Shelby County Road 49; Muddy Prong, mi), from confluence with the 111 bridge, upstream to Jordan Dam, 7 km (4 mi), extending from confluence Conasauga River, upstream to Georgia Elmore County, Alabama. This river with Yellowleaf Creek, upstream to U.S. State Highway 136, Gordon County, reach is within the historic range of Highway 280, Shelby County, Alabama. Georgia; Conasauga River, 98 km (61 fine-lined pocketbook, southern Yellowleaf and Muddy Prong Creeks are mi), from confluence with the clubshell, Alabama moccasinshell, currently inhabited by the fine-lined Coosawattee River, Gordon County, Coosa moccasinshell, ovate clubshell, pocketbook (Feminella and Gangloff, Georgia, upstream through Bradley and southern pigtoe, triangular kidneyshell, Polk Counties, Tennessee, to the Murray 2000; Gangloff in litt., 2001; Pierson in upland combshell, and southern County Road 2, Murray County, Georgia; litt., 2000). Yellowleaf Creek is in the acornshell. (Johnson, 2002; Pierson, Holly Creek, 16 km (10 mi), from historic range of the Coosa 1991a). moccasinshell, southern pigtoe, and confluence with Conasauga River, triangular kidneyshell. upstream to its confluence with Rock Land Ownership Creek, Murray County, Georgia. This Unit 24. Big Canoe Creek, St. Clair extensive riverine reach continues to Table 2 summarizes primary adjacent County, Alabama support small and localized populations riparian landowners in each of the Unit 24 encompasses 29 km (18 mi) of fine-lined pocketbook, southern proposed critical habitat units by of the Big Canoe Creek channel, pigtoe, triangular kidneyshell, Alabama private, State, or Federal ownership.

TABLE 2.—ADJACENT RIPARIAN LAND OWNERSHIP (KM[MI]) IN CRITICAL HABITAT UNITS FOR 11 THREATENED AND ENDANGERED MUSSELS IN THE MOBILE RIVER BASIN

Critical habitat unit Private State Federal Total

1. East Fork Tombigbee River ...... 19(12) ...... 6(4) 26(16) 2. Bull Mountain Creek ...... 34(21) ...... 34(21) 3. Buttahatchee River ...... 110(68) ...... 110(68) 4. Luxapalila Creek ...... 29(18) ...... 29(18) 5. Coalfire Creek ...... 32(20) ...... 32(20) 6. Lubbub Creek ...... 31(19) ...... 31(19) 7. Sipsey River ...... 74/(46) 16(10) ...... 90(56) 8. Trussels Creek ...... 21(13) ...... 21(13) 9. Sucarnoochee River ...... 90(56) ...... 90(56) 10. Sipsey Fork ...... 15(9) ...... 132(82) 147(91) 11. North River ...... 47(29) ...... 47(29) 12. Locust Fork ...... 102(63) ...... 102(63) 13. Cahaba River ...... 92(57) 26(16) 6(4) 124(77) 14. Alabama River ...... 73(45) ...... 73(45) 15. Bogue Chitto ...... 52(32) ...... 52(32) 16. Tallapoosa River ...... 161(100) ...... 161(100) 17. Uphapee complex ...... 56(35) ...... 18(11) 74(46) 18. Coosa River ...... 63(39) ...... 15(9) 78(48)

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TABLE 2.—ADJACENT RIPARIAN LAND OWNERSHIP (KM[MI]) IN CRITICAL HABITAT UNITS FOR 11 THREATENED AND ENDANGERED MUSSELS IN THE MOBILE RIVER BASIN—Continued

Critical habitat unit Private State Federal Total

19. Hatchet Creek ...... 55(34) ...... 11(7) 66(41) 20. Shoal Creek ...... 26(16) 26(16) 21. Kelly Creek ...... 34(21) ...... 34(21) 22. Cheaha Creek ...... 16(10) ...... 11(7) 27(17) 23. Yellowleaf Creek ...... 39(24) ...... 39(24) 24. Big Canoe Creek ...... 29(18) ...... 29(18) 25. Oostanaula Complex ...... 188(117) ...... 18(11) 206(128) 26. Lower Coosa River ...... 13(8) ...... 13(8)

Total ...... 1,475(914) 42(26) 243(151) 1,760(1,093)

Public lands adjacent to critical likely to jeopardize the continued adversely modify or destroy proposed habitat units consist of approximately existence of such a species or to destroy critical habitat. 288 km (179 mi) of riparian lands, or adversely modify its critical habitat. We may issue a formal conference including Canal Section Wildlife If a Federal action may affect a listed report if requested by a Federal agency. Management Area in Unit 1 (6 km (4 species or its critical habitat, the Formal conference reports on proposed mi)); Sipsey River Natural Area in Unit responsible Federal agency (action critical habitat contain an opinion that 7 (16 km (10 mi)); William B. Bankhead agency) must enter into consultation is prepared according to 50 CFR 402.14, National Forest in Unit 10 (134 km (83 with us. Through this consultation, the as if critical habitat were designated. We mi)); Cahaba River National Wildlife action agency ensures that the permitted may adopt the formal conference report Refuge (6 km (4 mi)) and Cahaba River actions do not destroy or adversely as the biological opinion when the Wildlife Management Area (28 km (17 modify critical habitat. critical habitat is designated, if no mi)) in Unit 13; Tuskegee National When we issue a biological opinion substantial new information or changes Forest in Unit 17 (16 km (10 mi)); in the action alter the content of the Talladega National Forest in Unit 18 (15 concluding that a project is likely to result in the destruction or adverse opinion (see 50 CFR 402.10(d)). km (9 mi)), Unit 19 (11 km (7 mi)), Unit Activities on Federal lands that may 20 (27 km (17mi)), and Unit 22 (11 km modification of critical habitat, we also provide reasonable and prudent affect these 11 mussels or their critical (7 mi)); and Chattahoochee National habitat will require section 7 alternatives to the project, if any are Forest in Unit 25 (18 km (11 mi)). consultation. Activities on private or identifiable. ‘‘Reasonable and prudent State lands requiring a permit from a Effects of Critical Habitat Designation alternatives’’ are defined at 50 CFR Federal agency, such as a permit from 402.02 as alternative actions identified Section 7 Consultation the USACE under section 404 of the during consultation that can be Clean Water Act, a section 10(a)(1)(B) Section 7 of the Act requires Federal implemented in a manner consistent permit from the Service, or some other agencies, including the Service, to with the intended purpose of the action, Federal action, including funding (e.g., ensure that actions they fund, authorize, that are consistent with the scope of the Federal Highway Administration or or carry out are not likely to destroy or Federal agency’s legal authority and Federal Emergency Management Agency adversely modify critical habitat. jurisdiction, that are economically and Section 7(a) of the Act requires funding), will also continue to be technologically feasible, and that the Federal agencies, including the Service, subject to the section 7 consultation Director believes would avoid to evaluate their actions with respect to process. Federal actions not affecting destruction or adverse modification of any species that is proposed or listed as listed species or critical habitat and endangered or threatened and with critical habitat. Reasonable and prudent actions on non-Federal and private respect to its critical habitat, if any is alternatives can vary from slight project lands that are not federally funded, proposed or designated. Regulations modifications to extensive redesign or authorized, or permitted do not require implementing this interagency relocation of the project. Costs section 7 consultation. cooperation provision of the Act are associated with implementing a Section 4(b)(8) of the Act requires us codified at 50 CFR part 402. Section reasonable and prudent alternative are to briefly evaluate and describe in any 7(a)(4) of the Act requires Federal similarly variable. proposed or final regulation that agencies to confer with us on any action Regulations at 50 CFR 402.16 require designates critical habitat those that is likely to jeopardize the continued Federal agencies to reinitiate activities involving a Federal action that existence of a proposed species or result consultation on previously reviewed may destroy or adversely modify such in destruction or adverse modification actions in instances where critical habitat, or that may be affected by such of proposed critical habitat. Conference habitat is subsequently designated and designation. Activities that may destroy reports provide conservation the Federal agency has retained or adversely modify critical habitat recommendations to assist the agency in discretionary involvement or control include those that appreciably reduce eliminating conflicts that may be caused over the action or such discretionary the value of critical habitat to the 11 by the proposed action. The involvement or control is authorized by mussels. We note that such activities conservation recommendations in a law. Consequently, some Federal may also jeopardize the continued conference report are advisory. If a agencies may request reinitiation of existence of the species. species is listed or critical habitat is consultation or conference with us on To properly portray the effects of designated, section 7(a)(2) requires actions for which formal consultation critical habitat designation, we must Federal agencies to ensure that activities has been completed, if those actions first compare the section 7 requirements they authorize, fund, or carry out are not may affect designated critical habitat or for actions that may affect critical

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habitat with the requirements for community within the stream channel In each of the biological opinions actions that may affect a listed species. to a degree that appreciably reduces the resulting from these consultations, we Section 7 prohibits actions funded, value of the critical habitat for both the included discretionary conservation authorized, or carried out by Federal long-term survival and recovery of the recommendations to the action agency. agencies from jeopardizing the species. Such activities could include, Conservation recommendations are continued existence of a listed species but are not limited to, release of activities that would avoid or minimize or destroying or adversely modifying the nutrients into the surface water or the adverse effects of a proposed action listed species’ critical habitat. Actions connected groundwater at a point on a listed species or its critical habitat, likely to ‘‘jeopardize the continued source or by dispersed release (non- help implement recovery plans, or existence’’ of a species are those that point). develop information useful to the would appreciably reduce the (5) Actions that would significantly species’ conservation. likelihood of the species’ survival and alter channel morphology or geometry Previous biological opinions also recovery. Actions likely to ‘‘destroy or to a degree that appreciably reduces the included nondiscretionary reasonable adversely modify’’ critical habitat are value of the critical habitat for both the and prudent measures, with those that would appreciably reduce the long-term survival and recovery of the implementing terms and conditions, value of critical habitat to the listed species. Such activities could include, which are designed to minimize the species. but are not limited to, channelization, proposed action’s incidental take of Common to both definitions is an impoundment, road and bridge these 11 mussels. Section 3(18) of the appreciable detrimental effect on both construction, mining, destruction of Act defines the term take as ‘‘to harass, survival and recovery of a listed species. riparian vegetation. harm, pursue, hunt, shoot, wound, kill, Given the similarity of these definitions, (6) Actions that would introduce, trap, capture or collect, or to attempt to actions likely to destroy or adversely spread, or augment nonnative aquatic engage in any such conduct.’’ Harm is modify critical habitat would often species into critical habitat to a degree further defined in our regulations (50 result in jeopardy to the species that appreciably reduces the value of the CFR 17.3) to include significant habitat concerned when the area of the critical habitat for both the long-term modification or degradation that results proposed action is occupied by the survival and recovery of the species. in death or injury to listed species by species concerned. Such activities could include, but are significantly impairing essential Federal agencies already consult with behavioral patterns, including breeding, us on activities in areas currently not limited to, stocking for sport, biological control, or other purposes; feeding, or sheltering. occupied by the species to ensure that Conservation recommendations and their actions do not jeopardize the aquaculture; and construction and operation of canals. reasonable and prudent measures continued existence of the species. provided in previous biological These actions include, but are not We consider 25 of the 26 critical opinions for these mussels have limited to: habitat units to be occupied by the included maintaining State water (1) Actions that would alter the species because at least one of the 11 minimum flow or the existing flow mussels occurs in these units. Federal quality standards, maintaining adequate regime to a degree that appreciably agencies already consult with us on stream flow rates, minimizing work in reduces the value of the critical habitat activities in areas currently occupied by the wetted channel, restricting riparian for both the long-term survival and the species or if the species may be clearing, monitoring channel recovery of the species. Such activities affected by the action to ensure that morphology and mussel populations, could include, but are not limited to, their actions do not jeopardize the installing signage, protecting buffer impoundment, channelization, water continued existence of the species. zones, avoiding pollution, using cooperative planning efforts, diversion, and hydropower generation. Previous Section 7 Consultations (2) Actions that would significantly minimizing ground disturbance, using alter water chemistry or temperature to Federal actions that we have reviewed sediment barriers, relocating a degree that appreciably reduces the since these 11 mussel species received recreational trails, using best value of the critical habitat for both the protection under the Act include management practices to minimize long-term survival and recovery of the Federal land management plans, Federal erosion, and funding research useful for species. Such activities could include, land acquisition and disposal, road and mussel conservation. but are not limited to, release of bridge maintenance and construction, The designation of critical habitat will chemicals, biological pollutants, or water diversion, timber harvest on have no impact on private landowner heated effluents into the surface water Federal land, channelization, flood activities that do not require Federal or connected groundwater at a point control, channel maintenance, water funding or permits. Designation of source or by dispersed release (non- quality standards, dam construction and critical habitat is only applicable to point). operation, and issuance of permits activities approved, funded, or carried (3) Actions that would significantly under section 404 of the Clean Water out by Federal agencies. increase sediment deposition within the Act. Federal agencies involved with If you have questions regarding stream channel to a degree that these activities included the U.S. Army whether specific activities would appreciably reduces the value of the Corps of Engineers (USACE), U.S. Forest constitute adverse modification of critical habitat for both the long-term Service, Natural Resources Conservation critical habitat, you may contact the survival and recovery of the species. Service, Environmental Protection following Service offices: Such activities could include, but are Agency, and Federal Highway Alabama—Daphne, FWS Ecological not limited to, excessive sedimentation Administration. Since the original Services Office (251/441–5181) from livestock grazing, road listing of these 11 mussel species, seven Georgia—Athens, FWS Ecological construction, timber harvest, off-road formal consultations have been Services Office (706/613–9493) vehicle use, and other watershed and conducted. None of these resulted in a Mississippi—Jackson, FWS Ecological floodplain disturbances. finding that the proposed action would Services Office (601/965–4900) (4) Actions that would significantly jeopardize the continued existence of Tennessee—Cookeville, FWS Ecological increase the filamentous algal any of the 11 species. Services Office (931/528–6481)

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Exclusions Under Section 4(b)(2) in addition to an endangered fish and an reintroduction of 4 of the 11 mussel Section 4(b)(2) of the Act requires that endangered snail; all of which are species. we designate critical habitat on the basis extremely limited in range and Finally, economic activity in Unit 14, of the best scientific and commercial threatened with increasing habitat loss, including the USACE dredging of the information available, and that we fragmentation, and modification. Federal Navigation Channel on the consider the economic and any other Therefore, it is not reasonably Alabama River, contributes foreseeable that exclusion of Unit 12 relevant impacts of designating a approximately three percent of the total from designation would prevent particular area as critical habitat. We costs, as estimated in the economic relocation of the reservoir. On the other may exclude areas from critical habitat analysis. The high costs attributed to if the benefits of exclusion outweigh the hand, Unit 12 is essential to the conservation of both the threatened Unit 14, over $8 million, is due to benefits of designation, provided the concerns by the USACE that the Service exclusion will not result in the orange-nacre mucket and endangered triangular kidneyshell, and may be may require upland disposal of extinction of the species. We have maintenance dredge material if this prepared an economic analysis that is suitable for reintroduction of the dark pigtoe, Alabama moccasinshell, ovate reach of the Alabama River is consistent with the ruling of the 10th designated as critical habitat. We Circuit Court of Appeals in N.M. Cattle clubshell, and upland combshell. believe that current navigation channel Growers Ass’n v. USFWS, and that was As to Unit 18, power production maintenance, specifically dredging and available for public review and losses resulting in annual costs to dredge material disposal in channel, in comment during the comment periods consumers of up to $2.84 million are Unit 14 has little effect on mussels and for the proposed rule. The final attributable to a range of minimum economic analysis is available from our flows that might be recommended for their habitats, due to the location and Web site at http://southeast.fws.gov/ Weiss Dam. The high costs for Unit 18 limited frequency and extent of the hotissue. Since the critical habitat detailed in our economic analysis are activity. In addition, there is evidence designation includes only aquatic areas attributed to the use of conservative that the removal of dredge materials that are generally held in public trust, high-end estimates of potential from the channel may cause an increase involves no Tribal lands, and includes minimum flow recommendations at in bed and bank erosion, to the no areas presently under special Weiss Dam. However due to concerns detriment of the mussel community management or protection provided by over negative impacts to mussels and (Hartfield and Garner 1988). We do not a legally operative plan or agreement for their habitats that might result from anticipate recommending upland the conservation of these mussels, we high increases in minimum flows from disposal of dredge material associated believe, other than economics, there are Weiss Dam, it is likely that the Service with Federal Navigation Channel no other relevant impacts to evaluate will recommend flows closer to the low- maintenance in the Alabama River. under section 4(b)(2). end estimates used in the economic These costs were included in our Based on the best available analysis (see response to Comment 56 economic analysis for conservative information including the prepared above). Exclusion of Unit 18 from the purposes only. Exclusion of Unit 14, economic analysis, we believe that all of designation will have little impact on which is occupied by two listed the 26 units are essential for the consultation issues or outcomes under mussels, will not alter consultation conservation of these species and have section 7 of the Act due to relicensing requirements under section 7 of the Act. because the unit is currently occupied identified no areas where the benefits of Other than the high-end, conservative exclusion outweigh the benefits of by two federally listed mussels. On the estimates, our economic analysis designation. As detailed in our other hand, Unit 18 is essential to the indicates an overall small economic economic analysis, Units 12 and 18 are conservation of both the threatened fine- impact will result from this designation. likely to engender the highest costs on lined pocketbook and endangered Furthermore, the remaining designated a unit-by-unit basis, accounting for southern clubshell, and may be suitable Units are anticipated to generate less approximately 81 percent of the total for reintroduction of 6 of the 11 mussel costs of the designation. The high cost species. than one percent of the total costs of associated with Unit 12 is attributed to Similarly, in Unit 25 decreased power section 7 consultation regarding the the relocation of a potential reservoir generation and lost dependable capacity mussels. In our economic analysis, we from the Locust Fork River outside of at Carters Dam stemming from have conservatively included all costs critical habitat to an alternate site in the anticipated flow changes at Carters attributed to consultation requirements drainage. The economic analysis for this ReRegulation Dam led to an estimate of resulting from the listing of these action includes a range of impacts for potential costs of up to $794,000 per species and designation of critical this project of $0 to $154 million. year, representing nine percent of the habitat; because of this, the economic However, a previous proposal to total costs as detailed in our economic impacts that may result from this impound the Locust Fork River was analysis. Exclusion of Unit 25 from the designation alone are minimal. The withdrawn due to public opposition for designation will have little impact on recovery of these 11 mussels in the near reasons other than impacts to consultation issues or outcomes under future, however, is unlikely due to the endangered or threatened species. section 7 of the Act due to relicensing. extent of their decline and the degree of Exclusion of Unit 12 from the The unit is currently occupied by four fragmentation and isolation of their designation will not resolve the existing federally listed mussels, so consultation habitats. As explained in this rule, the concerns associated with the potential would already be necessary and costs areas currently occupied by the mussels reservoir site and will not reduce any incurred regardless of whether this unit are inadequate for their conservation. regulatory requirements under section 7 was designated. On the other hand, Unit Therefore, we believe all 26 units are of the Act because these would already 25 is essential to the conservation of the essential to the conservation of these be required due to the existing presence fine-lined pocketbook, southern pigtoe, species and have identified no areas of federally listed species. Moreover, triangular kidneyshell, Alabama where the benefits of exclusion Unit 12 is currently occupied by one moccasinshell, and Coosa outweigh the benefits of this endangered and one threatened mussel, moccasinshell, and may be suitable for designation.

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Required Determinations will not have a significant economic with several judicial opinions related to Regulatory Planning and Review impact on a substantial number of small the scope of the RFA (Mid-Tex Electric entities. SBREFA amended the Co-Op, Inc. v. F.E.R.C. and America In accordance with Executive Order Regulatory Flexibility Act (RFA) to Trucking Associations, Inc. v. EPA.). 12866, this document is found to be a require Federal agencies to provide a The economic analysis identified significant regulatory action. Because of statement of the factual basis for activities that are within, or will the Court Ordered deadline, formal certifying that the rule will not have a otherwise be affected by, section 7 of the Office of Management and Budget significant economic impact on a Act for the mussels. After excluding (OMB) review was not undertaken. We substantial number of small entities. exclusively Federal consultations and prepared an economic analysis of this SBREFA also amended the RFA to those that do not involve small action. The draft economic analysis was require a certification statement. We are businesses or governments from the made available for public comment and hereby certifying that this rule will not total universe of potential impacts we considered those comments during have a significant effect on a substantial identified in the body of the economic the preparation of this rule. The number of small entities. The following analysis, the following consultations economic analysis indicates that this discussion explains our rationale for and Action agencies remain: (1) rule will not have an annual economic certification. Agriculture and ranching-related effect of $100 million or more; the According to the Small Business activities (USACE and USDA); (2) economic analysis indicates that this Administration, small entities include Hydropower (FERC and USACE); (3) rule will have an annual economic small organizations, such as Water supply dams (USACE); and (4) effect of $2 to $13.6 million. This rule independent non-profit organizations, Dredging activities (USACE). This is not expected to adversely affect an and small governmental jurisdictions, subset represents the group of economic sector, productivity, jobs, the including school boards and city and consultations and Action agencies that environment, or other units of town governments that serve fewer than may produce significant impacts on government. Under the Act, critical 50,000 residents, as well as small small entities. Specifically, these actions habitat may not be destroyed or businesses (13 CFR 121 and http:// feature activities that do not occur adversely modified by a Federal agency www.sba.gov/size/). Small businesses exclusively on Federal lands and may action; the Act does not impose any include manufacturing and mining directly regulate small entities. restrictions related to critical habitat on concerns with fewer than 500 To be conservative, this analysis non-Federal persons unless they are employees, wholesale trade entities assumes that a unique entity will conducting activities funded or with fewer than 100 employees, retail undertake each of the projected otherwise sponsored or permitted by a and service businesses with less than $5 consultations in a given year, and so the Federal agency. Because of the potential million in annual sales, general and number of entities affected is equal to for impacts on other Federal agencies’ heavy construction businesses with less the total annual number of consultations activities, we reviewed this action for than $27.5 million in annual business, (both formal and informal). While it is any inconsistencies with other Federal special trade contractors doing less than possible that the same entity could agency actions. We believe that this rule $11.5 million in annual business, and consult with the Service more than will not materially affect entitlements, agricultural businesses with annual once, it is unlikely to do so during the grants, user fees, loan programs, or the sales less than $750,000. To determine one-year timeframe addressed in this rights and obligations of their recipients, if potential economic impacts to these analysis. However, should such except those involving Federal agencies, small entities are significant, we multiple consultations occur, effects of which would be required to ensure that consider the types of activities that the designation would be concentrated their activities do not destroy or might trigger regulatory impacts under on fewer entities. In such a case, the adversely modify designated critical this rule as well as the types of project approach outlined here likely would habitat. As discussed above, we do not modifications that may result. overstate the number of affected entities. anticipate that the adverse modification The economic analysis determined This analysis also limits the universe of prohibition (from critical habitat whether this critical habitat designation potentially affected entities to include designation) will have any significant potentially affects a ‘‘substantial only those within the 36 counties in economic effects such that it will have number’’ of small entities in counties which critical habitat units occur. This an annual economic effect of $100 supporting critical habitat areas. It also interpretation produces more million or more. The final rule follows quantified the probable number of small conservative results than including all the requirements for designating critical businesses that experience a ‘‘significant entities nationwide. habitat required in the Act. effect.’’ SBREFA does not explicitly For the analysis, the first step was to define either ‘‘substantial number’’ or Regulatory Flexibility Act estimate the number of small entities ‘‘significant economic impact.’’ affected. As shown in Table 3, the Under the Regulatory Flexibility Act Consequently, to assess whether a following calculations yield this (5 U.S.C. 601 et seq., as amended by the ‘‘substantial number’’ of small entities is estimate: Small Business Regulatory Enforcement affected by this designation, this • Estimate the number of entities Fairness Act (SBREFA) of 1996), analysis considers the relative number within the study area affected by section whenever an agency is required to of small entities likely to be impacted in 7 implementation annually (assumed to publish a notice of rulemaking for any the area. Similarly, this analysis be equal to the number of annual proposed or final rule, it must prepare considers the relative cost of consultations); and make available for public comment compliance on the revenues/profit • Calculate the percent of entities in a regulatory flexibility analysis that margins of small entities in determining the affected industry that are likely to be describes the effects of the rule on small whether or not entities incur a small; entities (i.e., small businesses, small ‘‘significant economic impact.’’ Only • Calculate the number of affected organizations, and small government small entities that are expected to be small entities in the affected industry; jurisdictions). However, no regulatory directly affected by the designation are • Calculate the percent of small flexibility analysis is required if the considered in this portion of the entities likely to be affected by critical head of the agency certifies that the rule analysis. This approach is consistent habitat.

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TABLE 3.—ESTIMATED ANNUAL NUMBER OF SMALL ENTITIES AFFECTED BY CRITICAL HABITAT DESIGNATION: THE ‘‘SUBSTANTIAL NUMBER’’ TEST

Agriculture Hydro-electric Heavy Water supply construction Industry Name and ranching power generation activities: small NAICS 111, 112 NAICS 221111 government NAICS 234990 (SIC 01, 02) (SIC 4911) 1 (SIC 1629)

By formal consultation: Annual number of affected entities in industry ...... 0.6 0.1 0.1 0.0 (Equal to number of annual consultations) ...... 3.8 0.1 ...... 0.1

Total number of all entities in industry within study area ...... 1,712 106 36 223 Number of small entities in industry within study area ...... 1,637 ...... 22 210 Percent of entities that are small (Number of small entities)/ (Total number of entities) ...... 96% 100% 61% 94% Annual number of small entities affected (Number of affected entities)* (Percent of small entities) ...... 4.2 0.2 0.06 0.1 Annual percentage of small entities affected (Number of small entities affected)/(Total number of small entities) ...... 0.6% 0.2% 0.3% 0.04% 1 Actual estimates of small hydroelectric power generation facilities are not available, therefore this analysis conservatively assumes 100% of hydroelectric power generation facilities in the affected areas to be small.

This calculation reflects conservative • Distribute the total number of Business Size Standards matched to assumptions and nonetheless yields an affected small businesses across revenue North American Industry Classification estimate that less than one percent of levels. This is done by distributing the System,’’ accessed at http:// small entities in affected areas will annual number of affected small www.sba.gov/size/sizetable2002.html on potentially be affected by businesses across different revenue bins March 14, 2003. A firm is small if, implementation of section 7 of the Act as categorized by Robert Morris including its affiliates, it is primarily for the mussels. As a result, this analysis Associates (RMA) Annual Statement engaged in the generation, transmission, concludes that a significant economic Studies: 2001–2002, which provides and/or distribution of electric energy for impact on a substantial number of small data on the distribution of annual sales sale and its total electric output for the entities will not result from the within an industry across the following preceding fiscal year did not exceed designation of critical habitat for the 11 ranges: $0–1 million, $1–3 million, $3– four million megawatt hours. In the case mussels. Nevertheless, an estimate of 5 million, $5–10 million, $10–25 of the heavy construction industry, the the number of small businesses that will million, and greater than $25 million experience effects at a significant level SBA sets the small business size (for some industries, fewer bins are standard at $17 million in annual is provided below. included when revenues are much Costs of critical habitat designation to receipts. ‘‘Heavy construction’’ which lower than $25 million). The SBA sets individual small businesses consist includes ‘‘dredging and surface clean-up primarily of the cost of participating in the small business size standard for activities’’ is identified by NAICS code section 7 consultations and the cost of ‘‘crop production’’ and ‘‘animal 234990. U.S. Small Business project modifications. To calculate the production’’ at $0.75 million in annual Administration, ‘‘Small Business Size likelihood that a small business will receipts, with the exception of ‘‘cattle Standards matched to NAICS,’’ accessed experience a significant effect from feedlots’’ and ‘‘chicken egg production’’ at http://www.sba.gov/size/ critical habitat designation for the that are set at $1.5 million and $10.5 sizetable2002.html on May 13, 2003. mussels, the following calculations were million respectively. In these industries, • 96 percent of small businesses have Estimate the level of effect on small made: businesses per bin level. This is • Calculate the per-business cost. annual revenues less than $1 million. calculated by taking the per-business This consists of the cost to a third party The size standard for ‘‘hydroelectric cost and dividing it by the per-business of participating in a section 7 power generation’’ is set at less than consultation and the cost of associated four million megawatt hours generated revenue in each bin to determine the project modifications. To be per year. ‘‘Hydroelectric power percent of revenue represented by the conservative, this analysis uses the generation’’ is identified by North per-business cost. high-end estimate for each cost, and American Industry Classification Calculations for costs associated with includes all project modifications for System (NAICS) code #221111. U.S. section 7 implementation for the that activity. Small Business Administration, ‘‘Small mussels are provided in Table 4 below.

TABLE 4.—ESTIMATED ANNUAL EFFECTS ON SMALL BUSINESSES: THE ‘‘SIGNIFICANT EFFECT’’ TEST

Agriculture and Ranching NAICS 111, 112 (SIC 01, 02)

Annual Number of Small Businesses Affected ...... 4.1

Per-Business Cost ...... $14,000

RMA Revenue Bin ...... $0–1M $1–3M $3–5M $5–10M $10–25M $25+M Per Business Revenue1 ...... $0.5M 3 $1M $3M $5M $10M $25M Distribution ...... 96% 2% 1% 2% Annual number of affected small businesses ...... 3.9 0.1 0.0 0.1

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TABLE 4.—ESTIMATED ANNUAL EFFECTS ON SMALL BUSINESSES: THE ‘‘SIGNIFICANT EFFECT’’ TEST—Continued Per-Business effect...... 2.8% 1.4% 0.5% 0.3%

Hydroelectric Power Generation NAICS 221111 (SIC 4911) 2

Annual Number of Small Businesses Affected ...... 0.2

Per-Business Cost ...... $4,100

RMA Revenue Bin ...... $0–1M $1–3M $3–5M $5–10M $10–25M $25+M Per Business Revenue1 ...... $0.5M 3 $1M $3M $5M $10M $25M Distribution ...... 9% 17% 10% 5% 22% 37% Annual number of affected small businesses ...... 0.02 0.03 0.02 0.01 0.04 0.07 Per-Business effect...... 0.8% 0.4% 0.1% 0.08% 0.04% 0.01%

Heavy Construction, nec NAICS 234990 (SIC 1629)

Annual Number of Small Businesses Affected ...... 0.1

Per-Business Cost ...... $248,000

RMA Revenue Bin ...... $0–1M $1–3M $3–5M $5–10M $10–25M $25+M Per Business Revenue1 ...... $0.5M 3 $1M $3M $5M $10M $25M Distribution ...... 4% 26% 16% 41% 13% Annual number of affected small businesses ...... 0.004 0.03 0.02 0.04 0.01 Per-Business effect...... 49.6% 24.8% 8.3% 5.0% 2.5% 1 In order to be conservative, this analysis assumes that the small businesses in each bin have revenue equal to the low end of the range with- in a bin. Thus, percent of revenue impacts may appear larger than would be likely for that business. 2 Actual estimates of small hydroelectric power generation facilities are not available, therefore this analysis conservatively assumes 100% of hydroelectric power generation facilities in the affected areas to be small. 3 Because this bin ranges from $0 to $1 million, this analysis uses the mid-point of the range.

As presented in Exhibit 4, of the four Executive Order 13211 • Increases in the cost of energy agriculture and ranching industries On May 18, 2001, the President issued distribution in excess of one percent; or impacted annually by this designation, Executive Order 13211 on regulations • Other similarly adverse outcomes. an average of 3.9 businesses with that significantly affect energy supply, Three of these criteria are relevant to revenues less than $1 million will distribution, and use. Executive Order experience a 2.8 percent effect on this analysis: (1) Reductions in 13211 requires agencies to prepare electricity production in excess of 1 revenues, and less than one business per Statements of Energy Effects when year with greater than $1 million in billion kilowatt-hours per year or in undertaking certain actions. The excess of 500 megawatts of installed revenues will experience an effect on purpose of this requirement is to ensure capacity; (2) increases in the cost of revenues of less than two percent. that all Federal agencies ‘‘appropriately energy production in excess of one Therefore, the economic analysis weigh and consider the effects of the percent; and (3) increases in the cost of concludes that a significant economic Federal Government’s regulations on the energy distribution in excess of one impact on a substantial number of small supply, distribution, and use of energy.’’ percent. The following analysis businesses will not result from the The Office of Management and Budget determines whether the electricity designation of critical habitat for the 11 has provided guidance for industry, specifically related to mussels. implementing this executive order that hydroelectric production and outlines nine outcomes that may distribution, is likely to experience ‘‘a Small Business Regulatory Enforcement constitute ‘‘a significant adverse effect’’ Fairness Act (5 U.S.C. 804(2)) significant adverse effect’’ as a result of when compared without the regulatory section 7 implementation for the Under SBREFA, this rule is not a action under consideration: mussels. • Reductions in crude oil supply in major rule (see Regulatory Flexibility The relicensing of hydropower Act section). Our assessment of the excess of 10,000 barrels per day; • facilities is subject to the requirements economic effects of this designation is Reductions in fuel production in excess of 4,000 barrels per day; of the Clean Water Act, Dam Safety described in the economic analysis. • Control Act and the Federal Power Act Based upon the effects identified in the Reductions in coal production in excess of 5 million tons per year; as well as implementation of section 7 economic analysis, this rule will not • Reductions in natural gas of the Endangered Species Act. have an effect on the economy of $100 production in excess of 25 million Hydropower facility owners/operators million or more, will not cause a major metric cubic feet; are therefore required to consider the increase in costs or prices for • Reductions in electricity production impacts of their actions on sensitive consumers, and will not have significant in excess of 1 billion kilowatt-hours per species, regardless of the adverse effects on competition, year or in excess of 500 megawatts of implementation of section 7 of the Act. employment, investment, productivity, installed capacity; As it is difficult to separate the innovation, or the ability of U.S.-based • Increases in energy use required by economic impacts associated with the enterprises to compete with foreign- the regulatory action that exceed the baseline regulations from the based enterprises. Please refer to the thresholds above; requirement of section 7, however, the final economic analysis for a discussion • Increases in the cost of energy analysis makes the conservative of the effects of this determination. production in excess of one percent; assumption that all of the costs for

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project modifications to hydropower 1.5 miles upstream of the Carters response to Comment 56 above). No facilities are attributable to Reregulation Dam on the Coosawattee changes in operations are anticipated at implementation of section 7 of the Act. River. Jordan Dam as the current flow regime The total installed capacity of the Evaluation of Whether Section 7 provides adequate habitat for the Jordan, Weiss, Carters, and Carters mussels. Accordingly, no decreases in Implementation Will Result in a Reregulation dams is 692.25 MW Reduction in Electricity Production in annual power generation are anticipated (692,250 KW) of hydroelectricity. The at Jordan Dam. Specific impacts to Excess of 500 Megawatts of Installed average annual generation at these Capacity energy production at Carters Dam and facilities is 760.3 million KWhr. The Carters Reregulation Dam are unknown Installed capacity is ‘‘the total impact threshold for installed capacity as the level of flow that may be manufacturer-rated capacity for is 500 MW (500,000 KW) and the recommended to provide for the equipment such as turbines, generators, threshold for annual generation is one mussels is unclear. condensers, transformers, and other billion KWhr. For this analysis, annual system components’’ and represents the generation is the most appropriate For the purpose of this screening maximum rate of flow of energy from metric for evaluating the impact on analysis, the most conservative the plant or the maximum output of the energy production as the affected parties assumption is applied that both Carters plant. Table 5 lists the installed capacity provided information on the potential Dam and Carters Reregulation Dam will of each of the hydropower projects impact of critical habitat in terms of not be able to produce power. Annual likely to impact critical habitat for the anticipated decreased power generation, hydropower generation is expected to mussels. The Alabama Power Company and not impact on installed capacity. decrease approximately by a total of 446 (APC) owns and operates two Using the most conservative million Kwhr assuming losses in hydropower facilities within the critical assumption of future flow requirements production of 53.3 kilowatt-hours at habitat designation for the mussels, for the mussels, the APC estimates that Weiss Dam and complete losses at Jordan Dam in Unit 26 and Weiss Dam a change in minimum flow regime to Carters Dam and Carters Reregulation in Unit 18. The Fall Line Hydro 2000 cfs at Weiss Dam will result in a Dam. The impact to hydropower Company has been licensed to operate reduction in average annual energy production is therefore not expected to a hydropower facility at Carters production of 53,336,000 kilowatt-hours surpass the threshold of one billion Reregulation Dam on the Coosawattee and has not estimated potential impact KWhr. Table 5 outlines the installed River in Unit 25. The Fall Line Hydro to installed capacity. However, it is capacity for all four hydropower facility is licensed by FERC, but has not likely that the Service will recommend projects. Table 6 outlines the change in yet been constructed. The USACE owns flows closer to the low-end estimates average annual production that may and operates Carters Dam approximately used in the economic analysis (see result.

TABLE 5.—INSTALLED CAPACITY OF HYDROPOWER PROJECTS LIKELY TO IMPACT CRITICAL HABITAT FOR THE MOBILE RIVER BASIN MUSSELS

Installed capacity Average annual Name of facility Owner generation MW KW 1,000 KWhr

Jordan Dam ...... Alabama Power Company (APC) ...... 100 100,000 152,600 Weiss Dam ...... Alabama Power Company (APC) ...... 87.75 87,750 215,500 Carters Dam ...... USACE ...... 500 500,000 375,700 Carters Reregulation Dam ...... Fall Line Hydro Company ...... 4.5 4,500 16,500

Total ...... 692.25 692,250 760,300 Source: Federal Energy Regulatory Commission, ‘‘Hydroelectric Power Resources of the United States: Developed and Undeveloped,’’ Janu- ary 1, 1992. Federal Energy Regulatory Records Information System (FERRIS) on-line database, http://www.ferc.gov/Ferris.htm; Individual Con- ventional Developed and Undeveloped Hydroelectric Plants and Sites by Geographic Division, State, and Stream, Federal Energy Regulatory Commission; Army Corps of Engineers Pertinent Data on Carters Dam, accessed at http://water.sam.usace.army.mil/cart-pert.htm on December 4, 2003; Public comment letter from U.S. Army Corps of Engineers, Mobile District, October 14, 2003.

TABLE 6.—AVERAGE ANNUAL GENERATION OF HYDROPOWER PROJECTS LIKELY TO IMPACT CRITICAL HABITAT FOR THE MOBILE RIVER BASIN MUSSELS

Deceased Assumed average Name of facility Owner project annual modifications generation 1,000 KWhr

Jordan Dam ...... Alabama Power Company (APC) ...... None ...... 0 Weiss Dam ...... Alabama Power Company (APC) ...... Increase flow to 2,000 cfs ...... 53,336 Carters Dam ...... USACE ...... Natural stream flow ...... 283 Carters Reregulation Dam Fall Line Hydro Company ...... Natural stream flow ...... Total ...... 53,619 Source: Federal Energy Regulatory Commission, ‘‘Hydroelectric Power Resources of the United States: Developed and Undeveloped,’’ Janu- ary 1, 1992. Personal communication with John D. Grogan, Manager of Environmental Compliance, Alabama Power Company, December 11, 2003.

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Evaluation of Whether Section 7 decreased hydropower generation is anticipate an increase in the cost of Implementation Will Result in an substituted with the more expensive energy production in excess of one Increase in the Cost of Energy gas-driven turbine combustion percent. Table 7 summarizes the cost of Production in Excess of One Percent production. Gas-driven turbine energy production in Alabama and combustion production has production Georgia according to two scenarios, In order to determine whether costs of $0.07 per kilowatt-hour, $0.06 Scenario I in which there is no change implementation of section 7 of the Act greater than the cost of hydropower due to critical habitat, and Scenario II in will result in an increase in the cost of production. Under this scenario, $3.1 which the lost power generation due to energy production, this analysis million in additional production costs the designation of critical habitat is considers the maximum possible will be incurred, an increase in substituted with gas-driven turbine increase in energy production costs. production costs of approximately 0.07 combustion production. Under the high-cost scenario, all percent. This analysis therefore does not

TABLE 7.—AVERAGE PRODUCTION AND ASSOCIATED COSTS FOR ENERGY PRODUCERS IN ALABAMA AND GEORGIA

Weighted Net generation average of total Production costs Fuel type (1000 KWhrs) production ($/KWhr) Total costs (percent)

SCENARIO I

Hydro ...... 3,454,699 1.56 $0.01 $34,536,990 Gas ...... 6,706,320 3.02 $0.04 268,252,800 Coal ...... 149,336,218 67.31 $0.02 2,986,726,360 Nuclear ...... 62,371,516 28.11 $0.02 1,247,410,320

Total ...... 221,866,753 100 ...... 4,536,924,470

SCENARIO II

Hydro ...... 3,400,080 1.353 $0.01 34,000,800 Gas Powered Turbine Combustion ...... 53,619 0.02 $0.07 3,608,021 Gas ...... 6,706,320 3.02 $0.04 268,252,800 Coal ...... 149,336,218 67.31 $0.02 2,986,724,360 Nuclear ...... 62,370,516 28.11 $0.02 1,247,410,320

Total ...... 221,866,753 100 ...... 4,539,996,301 Sources: Federal Energy Regulatory Commission, ‘‘Hydroelectric Power Resources of the United States: Developed and Undeveloped,’’ Janu- ary 1, 1992. Electric Power Annual 2000: Volume I, Energy Information Administration, U.S. Department of Energy, August 2001, accessed at http://www.eia.doe.gov/cneaf/electricity/epav2/html_tables/epav2t13p.html; State Electricity Profiles, Alabama and Georgia, Energy Information Administration, U.S. Department of Energy, May 2003; Average Operating Expenses for Major U.S. Investor-Owned Electric Utilities, 1996 Through 2000, http://www.eia.doe.gov/cneaf/electricity/epav2/html_tables/epav2t13pl.html; New York Mercantile Exchange, Natural Gas Futures accessed at http://nymex.com/jsp/markets/ng_fut_csf.jsp.

The difference in total costs between Evaluation of Whether Section 7 in excess of 1 billion kilowatt-hours per these two scenarios represents an Implementation Will Result in an year,’’ an ‘‘increase in the cost of energy estimate of the total increased costs of Increase in the Cost of Energy production in excess of one percent,’’ or power production in the region of $3.1 Distribution in Excess of One Percent an ‘‘increase in the cost of energy million. This additional production cost As described in the final economic distribution in excess of one percent.’’ represents a high-end estimate due to analysis, TVA anticipates two informal Consequently, this rule is not the following conservative assumptions: consultations on transmission line anticipated to have a significant adverse • This methodology estimates construction and maintenance with no effect on the supply, distribution, or use whether the designation will result in a project modifications. Thus, the total of energy. costs incurred by TVA as a result of one percent increase in energy costs Unfunded Mandates Reform Act within Alabama and Georgia, as section 7 implementation range from opposed to nationwide. The nationwide $2,600 to $7,800. Total operating In accordance with the Unfunded expenses for TVA in 2002 were $5.2 change in power production cost is, Mandates Reform Act (2 U.S.C. 1501 et billion. The total costs incurred as a therefore, even less than the 0.07 seq.): result of section 7 are less than one ten- percent change as estimated. thousandth of one percent of TVA’s a. Based on information contained in • This methodology assumes that all operating expenses. The impact to our economic analysis, this rule will not lost hydropower production will be energy distribution is therefore not ‘‘significantly or uniquely’’ affect small replaced by gas-powered turbine anticipated to exceed the one percent governments. A Small Government combustion, a high-cost energy threshold. Agency Plan is not required. Small substitute typically used to mitigate Even in the highest cost scenario, governments will be affected only to the losses in peaking power production. where all lost hydropower production is extent that any of their actions involving Whereas Carters Dam supplies peaking replaced with gas-driven combustion Federal funding or authorization must power, Weiss Dam generates base load turbine facilities, implementation of not destroy or adversely modify the power. section 7 for the mussels will not result critical habitat or take the species under in ‘‘reductions in electricity production section 9.

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b. This rule will not produce a what federally sponsored activities may ‘‘Government-to-Government Relations Federal mandate of $100 million or occur, it may assist these local with Native American Tribal greater in any year (i.e., it is not a governments in long-range planning, Governments’’ (59 FR 22951), Executive ‘‘significant regulatory action’’ under rather than waiting for case-by-case Order 13175, and the Department of the the Unfunded Mandates Reform Act). section 7 consultations to occur. Interior’s manual at 512 DM 2, we Takings Civil Justice Reform readily acknowledge our responsibility to communicate meaningfully with In accordance with Executive Order In accordance with Executive Order recognized Federal Tribes on a 12630 (‘‘Government Actions and 12988, the Office of the Solicitor has government-to-government basis. We Interference with Constitutionally determined that the rule does not have determined that there are no Tribal Protected Private Property Rights’’), we unduly burden the judicial system and lands essential for the conservation of have analyzed the potential takings meets the requirements of sections 3(a) the 11 mussels and have not designated implications of designating and 3(b)(2) of the Order. We designate critical habitat on Tribal lands. approximately 1,760 kilometers (km) critical habitat in accordance with the (1,093 miles (mi)) of river and stream provisions of the Act. The rule uses References Cited channels in portions of the Tombigbee standard property descriptions and River drainage in Mississippi and identifies the primary constituent A complete list of all references is Alabama; portions of the Black Warrior elements within the designated areas to available upon request from the River drainage in Alabama; portions of assist the public in understanding the Mississippi Ecological Services Field the Alabama River drainage in Alabama; habitat needs of these 11 mussels. Office (see ADDRESSES section). portions of the Cahaba River drainage in Alabama; portions of the Tallapoosa Paperwork Reduction Act of 1995 (44 Author U.S.C. 3501 et seq.) River drainage in Alabama and Georgia; The author of this notice is the and portions of the Coosa River drainage This rule does not contain new or Mississippi Ecological Services Field in Alabama, Georgia, and Tennessee, as revised collections of information that Office (see ADDRESSES section). critical habitat for these 11 Mobile River require OMB approval under the Basin mussels, in a takings implication Paperwork Reduction Act. Information List of Subjects in 50 CFR Part 17 assessment. The takings implications collections associated with certain assessment concludes that this final rule permits pursuant to the Endangered Endangered and threatened species, does not pose significant takings Species Act are covered by an existing Exports, Imports, Reporting and implications. OMB approval, and are assigned recordkeeping requirements, clearance No. 1018–0094, with an Transportation. Federalism expiration date of July 31, 2004. Regulation Promulgation In accordance with Executive Order Detailed information for Act 13132, the rule does not have significant documentation appears at 50 CFR 17. I For the reasons outlined in the Federalism effects. A Federalism An agency may not conduct or sponsor, preamble, we amend part 17, subchapter assessment is not required. In keeping and a person is not required to respond B of chapter I, title 50 of the Code of with Department of the Interior and to, a collection of information unless it Federal Regulations, as follows: Department of Commerce policy, we displays a currently valid OMB control requested information from, and number. PART 17—[AMENDED] coordinated development of this critical National Environmental Policy Act habitat designation with, appropriate I 1. The authority citation for part 17 State resource agencies in Mississippi, We have determined that we do not continues to read as follows: Alabama, Tennessee, and Georgia, as need to prepare an Environmental well as during the listing process. The Assessment or an Environmental Impact Authority: 16 U.S.C. 1361–1407; 16 U.S.C. impact of the designation on State and Statement as defined by the National 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– local governments and their activities Environmental Policy Act of 1969 625, 100 Stat. 3500; unless otherwise noted. was fully considered in the Economic (NEPA) in connection with regulations I Analysis. The designation may have adopted pursuant to section 4(a) of the 2. In § 17.11(h), revise each of the some benefit to these governments in Act. We published a notice outlining entries here listed, in alphabetical order that the areas essential to the our reasons for this determination in the under ‘‘CLAMS’’, in the List of conservation of the species are more Federal Register on October 25, 1983 Endangered and Threatened Wildlife to clearly defined, and the primary (48 FR 49244). read as follows: constituent elements of the habitat Government-to-Government § 17.11 Endangered and threatened necessary to the survival of the species wildlife. are specifically identified. While Relationship With Tribes making this definition and In accordance with the President’s * * * * * identification does not alter where and memorandum of April 29, 1994, (h) * * *

Species Vertebrate population where When Critical Special Historic range endangered or Status listed habitat rules Common name Scientific name threatened

******* CLAMS Acornshell, southern Epioblasma U.S.A. (AL,GA,TN) .. NA ...... E 495 17.95 (f) NA othcaloogensis.

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Species Vertebrate population where When Critical Special Historic range endangered or Status listed habitat rules Common name Scientific name threatened

******* Clubshell, ovate ...... Pleurobema U.S.A. NA ...... E 495 17.95 (f) NA perovatum. (AL,TN,GA,MS). Clubshell, southern .. Pleurobema U.S.A. NA ...... E 495 17.95 (f) NA decisum. (AL,TN,GA,MS).

******* Combshell, upland ... Epioblasma U.S.A. (AL,GA,TN) .. NA ...... E 495 17.95 (f) NA metastriata.

******* Kidneyshell, tri- Ptychobranchus U.S.A. (AL,GA,TN) .. NA ...... E 495 17.95 (f) NA angular. greenii.

******* Moccasinshell, Ala- Medionidus U.S.A. (AL,GA,MS) NA ...... T 495 17.95 (f) NA bama. acutissimus. Moccasinshell, Coosa Medionidus parvulus U.S.A. (AL,GA,TN) .. NA ...... E 495 17.95 (f) NA

******* Mucket, orange-nacre Lampsilis perovalis .. U.S.A. (AL,MS) ...... NA ...... T 495 17.95 (f) NA

******* Pigtoe, dark ...... Pleurobema furvum U.S.A. (AL) ...... NA ...... E 495 17.95 (f) NA

******* Pigtoe, southern ...... Pleurobema U.S.A. (AL,GA,TN) .. NA ...... E 495 17.95 (f) NA georgianum.

******* Pocketbook, fine- Lampsilis altilis ...... U.S.A. (AL,GA) ...... NA ...... T 495 17.95 (f) NA lined.

*******

I 3. In § 17.95, at the end of paragraph (Pleurobema perovatum), southern (iii) Water quality, including (f), add an entry for Eleven Mobile River clubshell (Pleurobema decisum), upland temperature, pH, hardness, turbidity, Basin mussel species’’ to read as follows: combshell (Epioblasma metastriata); oxygen content, and other chemical triangular kidneyshell (Ptychobranchus characteristics, necessary for normal § 17.95 Critical habitat-fish and wildlife. greenii), Alabama moccasinshell behavior, growth, and viability of all life * * * * * (Medionidus acutissimus), Coosa stages; (f) Clams and snails. moccasinshell (Medionidus parvulus), (iv) Sand, gravel, and/or cobble * * * * * orange-nacre mucket (Lampsilis substrates with low to moderate Eleven Mobile River Basin mussel perovalis), dark pigtoe (Pleurobema amounts of fine sediment, low amounts species: Southern acornshell furvum), southern pigtoe (Pleurobema of attached filamentous algae, and other (Epioblasma othcaloogensis), ovate georgianum), and fine-lined pocketbook physical and chemical characteristics clubshell (Pleurobema perovatum), (Lampsilis altilis) are those habitat necessary for normal behavior, growth, southern clubshell (Pleurobema components that support feeding, and viability of all life stages; decisum), upland combshell sheltering, reproduction, and physical (v) Fish hosts, with adequate living, (Epioblasma metastriata), triangular features for maintaining the natural foraging, and spawning areas for them; kidneyshell (Ptychobranchus greenii), processes that support these habitat and Alabama moccasinshell (Medionidus components. The primary constituent (vi) Few or no competitive nonnative acutissimus), Coosa moccasinshell elements include: (Medionidus parvulus), orange-nacre species present. mucket (Lampsilis perovalis), dark (i) Geomorphically stable stream and (2) Critical habitat unit descriptions pigtoe (Pleurobema furvum), southern river channels and banks; and maps. pigtoe (Pleurobema georgianum), and (ii) A flow regime (i.e., the magnitude, (i) Index map. The index map fine-lined pocketbook (Lampsilis altilis) frequency, duration, and seasonality of showing critical habitat units in the (1) The primary constituent elements discharge over time) necessary for States of Mississippi, Alabama, Georgia, essential for the conservation of the normal behavior, growth, and survival and Tennessee for the 11 Mobile River southern acornshell (Epioblasma of all life stages of mussels and their fish Basin mussel species follows: othcaloogensis), ovate clubshell hosts in the river environment; BILLING CODE 4310–55–P

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(ii) Protected species and critical protected species, their respective contain those habitat units follows. habitat units. A table listing the critical habitat units, and the States that Detailed critical habitat unit

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descriptions and maps appear below the table.

Species Critical habitat units States

Southern acornshell (Epioblasma othcaloogensis) ...... Units 13, 18, 19, 21, 24, 25, 26 ...... AL, GA, TN Ovate clubshell (Pleurobema perovatum) ...... Units 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 17, 18, 19, 21, AL, GA, MS, TN 24, 25, 26. Southern clubshell (Pleurobema decisum) ...... Units 1, 2, 3, 4, 5, 6, 7, 8, 9, 13, 14, 15, 17, 18, 19, 21, 24, AL, GA, MS, TN 25, 26. Upland combshell (Epioblasma metastriata) ...... Units 12, 13, 18, 19, 21, 24, 25, 26 ...... AL, GA, TN Triangular kidneyshell (Ptychobranchus greenii) ...... Units 10, 11, 12, 13, 18, 19, 20, 21, 22, 23, 24, 25, 26 ...... AL, GA, TN Alabama moccasinshell (Medionidus acutissimus) ...... Units 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 25, 26 ...... AL, GA, MS, TN Coosa moccasinshell (Medionidus parvulus) ...... Units 18, 19, 20, 21, 22, 23, 24, 25, 26 ...... AL, GA, TN Orange-nacre mucket (Lampsilis perovalis) ...... Units 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 ...... AL, MS Dark pigtoe (Pleurobema furvum) ...... Units 10, 11, 12 ...... AL Southern pigtoe (Pleurobema georgianum) ...... Units 18, 19, 20, 21, 22, 23, 24, 25, 26 ...... AL, GA, TN Fine-lined pocketbook (Lampsilis altilis) ...... Units 13, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 ...... AL, GA, TN

(iii) Unit 1. East Fork Tombigbee clubshell, Alabama moccasinshell, and S3), Monroe County, upstream to the River, Monroe, Itawamba County, orange-nacre mucket. confluence of Mill Creek (T11S R8E Mississippi. This is a critical habitat (A) Unit 1 includes the East Fork S24), Itawamba County, Mississippi. Tombigbee River main stem from unit for the ovate clubshell, southern (B) Map of Unit 1 follows: Mississippi Highway 278 (T13S R7E

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(iv) Unit 2. Bull Mountain Creek, moccasinshell, and orange-nacre Highway 25 (T11S R9E S30), upstream Itawamba County, Mississippi. This is a mucket. to U.S. Highway 78 (T10S R10E S6), critical habitat unit for the ovate (A) Unit 2 includes the main stem of Itawamba County, Mississippi. clubshell, southern clubshell, Alabama Bull Mountain Creek from Mississippi (B) Map of Unit 2 follows:

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(v) Unit 3. Buttahatchee River and (A) Unit 3 includes the Buttahatchee Lamar County, Alabama; and Sipsey Sipsey Creek, Lowndes/Monroe County, River main stem from its confluence Creek, from its confluence with the Mississippi; Lamar County, Alabama. with the impounded waters of Buttahatchee River (T14S R17W S2), This is a critical habitat unit for the Columbus Lake (Tombigbee River, T16S upstream to the Mississippi/Alabama ovate clubshell, southern clubshell, R19W S23), Lowndes/Monroe County, State Line (T12S R10E S21), Monroe Alabama moccasinshell, and orange- Mississippi, upstream to the confluence County, Mississippi. nacre mucket. of Beaver Creek (T13S R15W S17), (B) Map of Unit 3 follows:

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(vi) Unit 4. Luxapalila Creek and Mississippi; Lamar County, Alabama. ovate clubshell, southern clubshell, Yellow Creek, Lowndes County, This is a critical habitat unit for the

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Alabama moccasinshell, and orange- 1.0 km (0.6 mi) above Steens Road Lowndes County, Mississippi, upstream nacre mucket. (T17S R17W S27), Lowndes County, to the confluence of Cut Bank Creek (A) Unit 4 includes the Luxapalila Mississippi; and the Yellow Creek main (T16S R16W S30), Lamar County, Creek main stem from Waterworks Road stem from its confluence with Alabama. (T18S R18W S11), Columbus, Luxapalila Creek (T17S R17W S21), (B) Map of Unit 4 follows: Mississippi, upstream to approximately

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(vii) Unit 5. Coalfire Creek, Pickens moccasinshell, and orange-nacre (Tombigbee River, T20S R17W S26), County, Alabama. This is a critical mucket. upstream to U.S. Highway 82 (T19S habitat unit for the ovate clubshell, (A) Unit 5 includes the Coalfire Creek R15W S15), Pickens County, Alabama. main stem from its confluence with the southern clubshell, Alabama (B) Map of Unit 5 follows: impounded waters of Aliceville Lake

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(viii) Unit 6. Lubbub Creek, Pickens moccasinshell, and orange-nacre Lake (Tombigbee River, T24N R2W County, Alabama. This is a critical mucket. S11), upstream to the confluence of habitat unit for the ovate clubshell, (A) Unit 6 includes the main stem of Little Lubbub Creek (T21S R1W S34), southern clubshell, Alabama Lubbub Creek from its confluence with Pickens County, Alabama. the impounded waters of Gainesville (B) Map of Unit 6 follows:

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(ix) Unit 7. Sipsey River, Greene/ (A) Unit 7 includes the Sipsey River R12W S34), Tuscaloosa County, Pickens, Tuscaloosa Counties, Alabama. main stem from its confluence with Alabama. This is a critical habitat unit for the impounded waters of Gainesville Lake (B) Map of Unit 7 follows: ovate clubshell, southern clubshell, (Tombigbee River, T24N R1W S30), Alabama moccasinshell, and orange- Greene/Pickens County, upstream to nacre mucket. Alabama Highway 171 crossing (T18S

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(x) Unit 8. Trussels Creek, Greene moccasinshell, and orange-nacre (Tombigbee River, T21N R2W S15), County, Alabama. This is a critical mucket. upstream to Alabama Highway 14 habitat unit for the ovate clubshell, (A) Unit 8 includes the Trussels Creek (T22N R1E S4), Greene County, southern clubshell, Alabama main stem from its confluence with the Alabama. impounded waters of Demopolis Lake (B) Map of Unit 8 follows:

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(xi) Unit 9. Sucarnoochee River, moccasinshell, and orange-nacre S26), upstream to the Mississippi/ Sumter County, Alabama. This is a mucket. Alabama State Line (T19N R4W S15), critical habitat unit for the ovate (A) Unit 9 includes the Sucarnoochee Sumter County, Alabama. River main stem from its confluence clubshell, southern clubshell, Alabama (B) Map of Unit 9 follows: with the Tombigbee River (T17N R1W

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(xii) Unit 10. Sipsey Fork and Counties, Alabama. This is a critical triangular kidneyshell, Alabama tributaries, Winston, Lawrence habitat unit for the ovate clubshell,

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moccasinshell, orange-nacre mucket, from confluence with Brushy Creek East and West Forks (T9S R7W S6), and dark pigtoe. (T9S R7W S23), Winston County, Winston County; Caney Creek and (A) Unit 10 includes the Sipsey Fork upstream to the confluence of Turkey North Fork Caney Creek, from main stem from the section 11/12 line Creek (T8S R6W S33), Lawrence confluence with Sipsey Fork (T9S R8W (T10S R8W), Winston County, Alabama, County; Rush Creek, from confluence S28), upstream to section 14 line (T9S upstream to the confluence of Hubbard with Brushy Creek (T9S R7W S15), R9W), Winston County; Borden Creek, Creek (T8S R9W S27), Lawrence upstream to Winston/Lawrence County from confluence with Sipsey Fork (T8S County, Alabama; Thompson Creek, Line (T9S R7W S1), Winston County; R8W S5), Winston County, upstream to from its confluence with Hubbard Creek Brown Creek, from confluence with the confluence of Montgomery Creek (T8S R9W S27), upstream to section 2 Rush Creek (T9S R7W S2), Winston (T8S R8W S10), Lawrence County; and line (T8S R9W) Lawrence County; Brushy Creek, from the confluence of County, upstream to section 24 line Flannagin Creek, from confluence with Glover Creek (T10S R7W S11), Winston (T8S R7W), Lawrence County; Beech Borden Creek (T8S R8W S28), upstream County, upstream to section 9 (T8S Creek, from confluence with Brushy to confluence of Dry Creek (T8S R8W R7W), Lawrence County; Capsey Creek, Creek (T9S R7W S8), to confluence of S4), Lawrence County.

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(xiii) Unit 11. North River and Clear (A) Unit 11 includes the main stem of confluence with North River (T16S Creek, Tuscaloosa, Fayette Counties, the North River from Tuscaloosa County R11W S13) to Bays Lake Dam (T16S Alabama. This is a critical habitat unit Road 38 (T18S R10W S16), Tuscaloosa R11W S2), Fayette County, Alabama. for the ovate clubshell, triangular County, upstream to confluence of Ellis (B) Map of Unit 11 follows: kidneyshell, Alabama moccasinshell, Creek (T16S R10W S6), Fayette County, orange-nacre mucket, and dark pigtoe. Alabama; and Clear Creek from its

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(xiv) Unit 12. Locust Fork and Little (A) Unit 12 includes the Locust Fork (T13S R1W S3), upstream to the Warrior Rivers, Jefferson, Blount main stem from U.S. Highway 78 (T15S confluence of Calvert Prong and Counties, Alabama. This is a critical R4W S30), Jefferson County, upstream Blackburn Fork (T13S R1W S12), Blount habitat unit for the ovate clubshell, to the confluence of Little Warrior River County, Alabama. upland combshell, triangular (T13S R1W S3), Blount County, (B) Map of Unit 12 follows: kidneyshell, Alabama moccasinshell, Alabama; and Little Warrior River from orange-nacre mucket, and dark pigtoe. its confluence with the Locust Fork

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(xv) Unit 13. Cahaba River and Little orange-nacre mucket, and fine-lined the Little Cahaba River from its Cahaba River, Jefferson, Shelby, Bibb pocketbook. confluence with the Cahaba River (T24N Counties, Alabama. This is a critical (A) Unit 13 includes the Cahaba River R10E S21), upstream to the confluence habitat unit for the southern acornshell, from U.S. Highway 82 (T23N R9E S26), of Mahan and Shoal Creeks (T24N R11E ovate clubshell, southern clubshell, Centerville, Bibb County, upstream to S14), Bibb County, Alabama. upland combshell, triangular Jefferson County Road 143 (T18S R1E (B) Map of Unit 13 follows: kidneyshell, Alabama moccasinshell, S33), Jefferson County, Alabama; and

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(xvi) Unit 14. Alabama River, (A) Unit 14 includes the Alabama Swamp Creek (T15N R12E S1), Lowndes Autauga, Lowndes, Dallas Counties, River from the confluence of the Cahaba County, Alabama. Alabama. This is a critical habitat unit River (T16N R10E S32), Dallas County, (B) Map of Unit 14 follows: for the southern clubshell and orange- upstream to the confluence of Big nacre mucket.

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(xvii) Unit 15. Bogue Chitto Creek, (A) Unit 15 includes the Bogue Chitto Highway 80 (T17N R7E S24), Dallas Dallas County, Alabama. This is a Creek main stem from its confluence County, Alabama. critical habitat unit for the southern with the Alabama River (T14N R8E (B) Map of Unit 15 follows: clubshell, Alabama moccasinshell, and S24), Dallas County, upstream to U.S. orange-nacre mucket.

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(xviii) Unit 16. Tallapoosa River, Paulding, Haralson Counties, Georgia; This is a critical habitat unit for the fine- Cleburne County, Alabama, and Cane Creek, Cleburne County, Alabama. lined pocketbook.

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(A) Unit 16 includes the main stem McClendon and Mud Creeks (33 °50′ 43″ R10E S24), upstream to section 33/4 Tallapoosa River from U.S. Highway N 85 °00′45″W), Paulding County, Line (T15S, R11E), Cleburne County, 431 (T17S R10E S31), Cleburne County, Georgia; and Cane Creek from its Alabama. Alabama, upstream to the confluence of confluence with Tallapoosa River (T16S (B) Map of Unit 16 follows:

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(xix) Unit 17. Uphapee, Choctafaula, confluence of Opintlocco and Chewacla Alabama, upstream to Lee County Road and Chewacla Creeks, Macon, Lee Creeks (T17N R24E S26), Macon 159 (T18N R26E S18), Lee County, Counties, Alabama. This is a critical County, Alabama; Choctafaula Creek, Alabama; Opintlocco Creek, from habitat unit for the ovate clubshell, from confluence with Uphapee Creek confluence with Chewacla Creek (T17N southern clubshell, and fine-lined (T17N R24E S8), upstream to Macon R24E S26), upstream to Macon County pocketbook. County Road 54 (T18N R 25E S31), Road 79 (T16N R25E S25) Macon (A) Unit 17 includes the mainstem of Macon County, Alabama; Chewacla County, Alabama. Uphapee Creek from Alabama Highway Creek, from confluence with Opintlocco 199 (T17N R23E S3), upstream to the Creek (T17N R24E S26), Macon County, (B) Map of Unit 17 follows:

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(xx) Unit 18. Coosa River (Old River (A) Unit 18 includes the Coosa River Cleburne County Road 49 (T13S R11E Channel) and Terrapin Creek, Cherokee, main stem from the power line crossing S15), Cleburne County, Alabama; South Calhoun, Cleburne Counties, Alabama. southeast of Maple Grove, Alabama Fork Terrapin Creek, 7 km (4 mi), from This is a critical habitat unit for the (T10S R8E S35), upstream to Weiss Dam its confluence with Terrapin Creek southern acornshell, ovate clubshell, (T10S R8E S13), Cherokee County, (T13S R11E S18), upstream to Cleburne southern clubshell, upland combshell, Alabama; Terrapin Creek, 53 km (33 mi) County Road 55 (T13S R11E S30), triangular kidneyshell, Coosa extending from its confluence with the Cleburne County, Alabama. moccasinshell, southern pigtoe, and Old Coosa River channel (T10S R9E fine-lined pocketbook. S28), Cherokee County, upstream to (B) Map of Unit 18 follows:

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(xxi) Unit 19. Hatchet Creek, Coosa, kidneyshell, Coosa moccasinshell, (T22N R17E S26), Coosa County, Clay Counties, Alabama. This is a southern pigtoe, and fine-lined Alabama, upstream to Clay County Road critical habitat unit for the southern pocketbook. 4 (T22S R6E S17) Clay County, acornshell, ovate clubshell, southern (A) Unit 19 includes the main stem of Alabama. Hatchet Creek from the confluence of clubshell, upland combshell, triangular (B) Map of Unit 19 follows: Swamp Creek at Coosa County Road 29

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(xxii) Unit 20. Shoal Creek, Calhoun, southern pigtoe, and fine-lined Calhoun County, Alabama, upstream to Cleburne Counties, Alabama. This is a pocketbook. the tailwater of Coleman Lake Dam critical habitat unit for the triangular (A) Unit 20 includes the main stem of (T14S R10E S26), Cleburne County, kidneyshell, Coosa moccasinshell, Shoal Creek from the headwater of Alabama. Whitesides Mill Lake (T15S R9E S12), (B) Map of Unit 20 follows:

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(xxiii) Unit 21. Kelly Creek and Shoal Coosa moccasinshell, southern pigtoe, County, Alabama; and the main stem of Creek, Shelby, St. Clair Counties, and fine-lined pocketbook. Shoal Creek from the confluence with Alabama. This is a critical habitat unit (A) Unit 21 includes the Kelly Creek Kelly Creek (T17S R2E S28), St. Clair for the southern acornshell, ovate main stem extending from the County, Alabama, upstream to the St. clubshell, southern clubshell, upland confluence with the Coosa River (T19S Clair/Shelby County Line (T17S R2E combshell, triangular kidneyshell, R3E S5), upstream to the confluence of S30), St. Clair County, Alabama. Shoal Creek (T17S R2E S28), St. Clair (B) Map of Unit 21 follows:

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(xxiv) Unit 22. Cheaha Creek, is a critical habitat unit for the moccasinshell, southern pigtoe, and Talladega, Clay Counties, Alabama. This triangular kidneyshell, Coosa fine-lined pocketbook.

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(A) Unit 22 includes the main stem of Talladega County, Alabama, upstream to (B) Map of Unit 22 follows: Cheaha Creek from its confluence with the tailwater of Chinnabee Lake Dam Choccolocco Creek (T17S R6E S19), (T18S R7E S14), Clay County, Alabama.

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(xxv) Unit 23. Yellowleaf Creek and (A) Unit 23 includes the Yellowleaf Yellowleaf Creek (T20S R1E S1), Mud Creek, Shelby County, Alabama. Creek main stem from Alabama upstream to U.S. Highway 280 (T19S This is a critical habitat unit for the Highway 25 (T20S R2E S29), upstream R1E S28), Shelby County, Alabama. triangular kidneyshell, Coosa to Shelby County Road 49 (T20S R1W (B) Map of Unit 23 follows: moccasinshell, southern pigtoe, and S13); and the Muddy Prong main stem fine-lined pocketbook. extending from its confluence with

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(xxvi) Unit 24. Big Canoe Creek, St. kidneyshell, Coosa moccasinshell, Etowah County line (T13S R5E S17), St. Clair County, Alabama. This is a critical southern pigtoe, and fine-lined Clair County, upstream to the habitat unit for the southern acornshell, pocketbook. confluence of Fall Branch (T14S R1E ovate clubshell, southern clubshell, (A) Unit 24 includes the main stem of S28) St. Clair County, Alabama. Big Canoe Creek from its confluence upland combshell, triangular (B) Map of Unit 24 follows: with Little Canoe Creek at the St. Clair/

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(xxvii) Unit 25. Oostanaula, Holly Creek, Floyd, Gordon, Whitfield, Counties, Tennessee. This is a critical Coosawattee, and Conasauga Rivers, and Murray Counties, Georgia; Bradley, Polk habitat unit for the southern acornshell,

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ovate clubshell, southern clubshell, Gordon County, Georgia (34°32′32″ N, Bradley and Polk Counties, Tennessee, upland combshell, triangular 84°54′12 ″ W); the Coosawattee River to Murray County Road 2 (34°58′27 ″ N, kidneyshell, Alabama moccasinshell, main stem from its confluence with the 84°38′43 ″ W), Murray County, Georgia; Coosa moccasinshell, southern pigtoe, Conasauga River (34°32′32 ″ N, 84°54′12 and the mainstem of Holly Creek from and fine-lined pocketbook. ″ W), upstream to Georgia State its confluence with the Conasauga River (A) Unit 25 includes the Oostanaula Highway 136, Gordon County, Georgia (34°42′12 ″ N, 84°53′29 ″ W), upstream ° ′ ″ ° ′ ″ River main stem from its confluence (34 36 49 N, 84 46 43 W); the to its confluence with Rock Creek, with the Etowah River, Floyd County, Conasauga River main stem from ° ′ ″ ° ′ ″ ° ′ ″ Murray County, Georgia (34 46 59 N, Georgia (34 15 13 N, 85 10 35 W), confluence with the Coosawattee River 84°45′25 ″ W). upstream to the confluence of the (34°32′32 ″ N, 84°54′13 ″ W), Gordon Conasauga and Coosawattee River, County, Georgia, upstream through (B) Map of Unit 25 follows:

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(xxviii) Unit 26. Lower Coosa River, kidneyshell, Alabama moccasinshell, 111 bridge (T18N R18/19E S24/19), Elmore County, Alabama. This is a Coosa moccasinshell, southern pigtoe, upstream to Jordan Dam (T19N R18E critical habitat unit for the southern and fine-lined pocketbook. S22), Elmore County, Alabama. acornshell, ovate clubshell, southern (A) Unit 26 includes the Coosa River (B) Map of Unit 26 follows: clubshell, upland combshell, triangular main stem from Alabama State Highway

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* * * * * Dated: June 17, 2004. Craig Manson, Assistant Secretary, Fish, Wildlife, and Parks. [FR Doc. 04–14279 Filed 6–30–04; 8:45 am] BILLING CODE 4310–55–C

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