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 VerDate jul<14>2003 17:10 Jun 30, 2004 Jkt 203001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\01JYR3.SGM 01JYR3 40084 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 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 VerDate jul<14>2003 17:10 Jun 30, 2004 Jkt 203001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\01JYR3.SGM 01JYR3 Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules and Regulations 40085 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