57610 Federal Register / Vol. 63, No. 208 / Wednesday, October 28, 1998 / Rules and Regulations

Canadian border, concurrence of the ACTION: Final rule. Authority: 49 U.S.C. 322; Public Law 101– Canadian government has been 552, 28 U.S.C. 2672, 31 U.S.C. 3711(a)(2). SUMMARY: The Secretary is delegating obtained. With this action, this 2. In § 1.49 (Delegations to Federal proceeding is terminated. his authority to the Federal Railroad Administrator under section 322 to Title Railroad Administrator), the following EFFECTIVE DATE: November 30, 1998. A 23 of the United States Code. Section section (kk) is added at the end thereof. filing window for Channel 282A at 322, titled the Magnetic Levitation Chehalis, Washington, will not be § 1.49 Delegations to the Federal Railroad Transportation Technology Deployment Administration. opened at this time. Instead, the issue of Program, was added by section 1218 of opening a filing window for this * * * * * the Transportation Equity Act for the (kk) Carry out the functions and channel will be addressed by the 21st Century, Public Law 105–178 (June Commission in a subsequent order. exercise the authority vested in the 9, 1998). Section 322 provides a total of Secretary by 23 U.S.C. 322, titled the FOR FURTHER INFORMATION CONTACT: $55 million for Fiscal Years 1999 Magnetic Levitation Transportation Sharon P. McDonald, Mass Media through 2001 for preconstruction Technology Deployment Program. Bureau, (202) 418–2180. planning activities, final design, Issued in Washington, DC, this 21st day of SUPPLEMENTARY INFORMATION: This is a engineering, and construction activities October, 1998. synopsis of the Commission’s Report for maglev deployment; $15 million is Rodney E. Slater, and Order, MM Docket No. 97–7, available in Fiscal Year 1999 and $40 adopted October 7, 1998, and released million for Fiscal Years 2000 and 2001. Secretary of Transportation. October 16, 1998. The full text of this Also, section 322 authorizes—but does [FR Doc. 98–28821 Filed 10–27–98; 8:45 am] Commission decision is available for not appropriate—additional Federal BILLING CODE 4910±62±P inspection and copying during normal funds of $950 million for final design business hours in the FCC Reference and construction of the most promising Center (Room 239), 1919 M Street, NW., project. The authority of the Secretary in DEPARTMENT OF THE INTERIOR Washington, DC. The complete text of section 322 to make financial assistance this decision may also be purchased available to states through the Fish and Wildlife Service from the Commission’s copy establishment of eligibility criteria, 50 CFR Part 17 contractors, International Transcription solicitation of applications, and the Service, Inc., (202) 857–3800, 1231 20th selection of projects for funding should RIN 1018±AE36 Street, NW, Washington, DC 20036. be delegated to the Federal Railroad Administrator because FRA has the Endangered and Threatened Wildlife List of Subjects in 47 CFR Part 73 expertise and staff to carry out this and Plants; Endangered Status for Radio broadcasting. program in accordance with the Three Aquatic Snails, and Threatened Part 73 of Title 47 of the Code of statutory requirements. Status for Three Aquatic Snails in the Mobile River Basin of Alabama Federal Regulations is amended as EFFECTIVE DATE: October 28, 1998. follows: FOR FURTHER INFORMATION CONTACT: AGENCY: Fish and Wildlife Service, Gareth W. Rosenau, Office of Chief Interior. PART 73Ð[AMENDED] Counsel (RCC–20), Federal Railroad ACTION: Final rule. 1. The authority citation for Part 73 Administration, 400 Seventh Street, SW. continues to read as follows: (Stop 10), Washington, DC 20590. SUMMARY: The Fish and Wildlife Service Phone: (202) 493–6054. (Service) determines the cylindrical Authority: Sections 47 U.S.C. 154, 303, lioplax (Lioplax cyclostomaformis), flat 334, 336. SUPPLEMENTARY INFORMATION: Since this amendment relates to departmental pebblesnail (Lepyrium showalteri), and § 73.202 [Amended] organization, procedure and practice, plicate rocksnail (Leptoxis plicata) to be 2. Section 73.202(b), the Table of FM notice and comment on it are endangered species; and the painted Allotments under Washington, is unnecessary under 5 U.S.C. 553(b). rocksnail (Leptoxis taeniata), round amended by adding Chehalis, Channel Further, since the amendment expedites rocksnail (Leptoxis ampla), and lacy 282A. the Federal Railroad Administration’s elimia (Elimia crenatella) to be threatened species under the authority Federal Communications Commission. ability to meet the statutory deadlines of the Magnetic Levitation Transportation of the Endangered Species Act of 1973, John A. Karousos, Technology Deployment Program, the as amended (Act). These aquatic snails Chief, Allocations Branch, Policy and Rules Secretary finds good cause under 5 are found in localized portions of the Division, Mass Media Bureau. U.S.C. 553(d)(3) for the final rule to be Black Warrior, Cahaba, Alabama, and [FR Doc. 98–28777 Filed 10–27–98; 8:45 am] effective on the date of publication in Coosa rivers or their tributaries in BILLING CODE 6712±01±P the Federal Register. central Alabama. Impoundment and water quality degradation have List of Subjects in 49 CFR Part 1 eliminated the six snails from 90 DEPARTMENT OF TRANSPORTATION Authority delegations (Government percent or more of their historic habitat. agencies), Organization and functions Surviving populations are currently Office of the Secretary (Government agencies). threatened by pollutants such as sediments and nutrients that wash into 49 CFR Part 1 In consideration of the foregoing, part 1 of title 49, Code of Federal streams from the land surface. This [OST Docket No. 1; Amdt. 1±295] Regulations, is amended, effective upon action implements the protection of the publication, to read as follows: Act for these six snail species. Organization and Delegation of Powers DATES: This rule is effective November and Duties; Delegation to the Federal PART 1Ð[AMENDED] 27, 1998. Railroad Administrator 1. The authority citation for part 1 ADDRESSES: The complete file for this AGENCY: Office of the Secretary, DOT. continues to read as follows: rule is available for inspection, by Federal Register / Vol. 63, No. 208 / Wednesday, October 28, 1998 / Rules and Regulations 57611 appointment, during normal business as to other Pleuroceridae, are poorly previous or subsequent records outside hours at the Jackson Field Office, U.S. understood. In order to better document of the Alabama-Coosa system, and Fish and Wildlife Service, 6578 taxonomic relationships among these searches of the Tensas River in Dogwood View Parkway, Jackson, snails, a genetic study was conducted Louisiana by Service biologists (1995) Mississippi 39213. during the status review of a select and others (Vidrine 1996) have found no FOR FURTHER INFORMATION CONTACT: Mr. group of the Basin’s Pleuroceridae evidence of the species or its typical Paul Hartfield (see ADDRESSES section), (Lydeard et al. 1997). The four snails habitat. 601/965–4900, extension 25. within this family considered herein The cylindrical lioplax is currently (lacy elimia, round rocksnail, plicate known only from approximately 24 SUPPLEMENTARY INFORMATION: rocksnail, and painted rocksnail) were kilometers (km) (15 miles (mi)) of the Background included in the genetic study. This Cahaba River above the Fall Line in The Mobile River Basin (Basin) study supported their current taxonomic Shelby and Bibb counties, Alabama historically supported the greatest status (Lydeard et al. 1997). (Bogan and Pierson 1993b). Survey diversity of freshwater snail species in The cylindrical lioplax (Lioplax efforts by Davis (1974) failed to locate cyclostomaformis (Lea 1841)) is a gill- this snail in the Coosa or Alabama the world (Bogan et al. 1995), including breathing snail in the family rivers, and more recent survey efforts six genera and over 100 species that Viviparidae. The shell is elongate, have also failed to relocate the species were endemic to the Basin. During the reaching about 28 millimeters (mm) (1.1 at historic localities in the Alabama, past few decades, publications in the inches (in)) in length. Shell color is light Black Warrior, Little Cahaba, and Coosa scientific literature have primarily dealt to dark olivaceous-green externally, and rivers and their tributaries (Bogan and with the apparent decimation of this bluish inside of the aperture (shell Pierson 1993a, 1993b; M. Pierson in litt. fauna following the construction of opening). The cylindrical lioplax is 1993, 1994; Service Field Records 1991, dams within the Basin and the distinguished from other viviparid (eggs 1992, 1993). inundation of extensive shoal (a shallow hatch internally and the young are born The flat pebblesnail (Lepyrium place in a body of water) habitats by as juveniles) snails in the Basin by the showalteri (Lea 1861)) is a small snail in impounded waters (Goodrich 1944, number of whorls, and differences in the family Hydrobiidae; however, the Athearn 1970, Heard 1970, Stein 1976, size, sculpture, microsculpture, and species has a large and distinct shell, Palmer 1986, Garner 1990). spire angle. No other species of lioplax relative to other hydrobiid species. This In 1990, the Service initiated a status snails are known to occur in the Mobile snail’s shell is also distinguished by its review of the endemic freshwater snails Basin (see Clench and Turner 1955 for depressed spire and expanded, flattened of the Basin. An extensive literature a more detailed description). body whorl. The shells are ovate in survey identified sources of information Habitat for the cylindrical lioplax is outline, flattened, and grow to 3.5 to 4.4 on taxonomy, distribution, ecology, and unusual for the genus, as well as for mm (0.1–0.2 in) high and 4 to 5 mm (0.2 status of the fauna and was used to other genera of viviparid snails. It lives in) wide. The umbilical area is assemble a checklist of the Basin’s in mud under large rocks in rapid imperforate (no opening), and there are snails and their distributions (Bogan currents over stream and river shoals. 2 to 3 whorls which rapidly expand. 1992). Field surveys and collections Other lioplax species are usually found The anatomy of this species has been were made for snails and other in exposed situations or in mud or described in detail by Thompson (1984). freshwater mollusks throughout the muddy sand along the margins of rivers. The flat pebblesnail is found attached to Basin (Bogan and Pierson, 1993a,b; Little is known of the biology or life clean, smooth stones in rapid currents McGregor et al. 1996; Service Field history of the cylindrical lioplax. It is of river shoals. Eggs are laid singly in Records, Jackson, Mississippi 1989– believed to brood its young and filter- capsules on hard surfaces (Thompson 1996; Bogan in litt. 1995; M. Pierson feed, as do other members of the 1984). Little else is known of the natural Field Records, Calera, Alabama, in litt. Viviparidae. Life spans have been history of this species. 1993–1994; J. Garner, Alabama reported from 3 to 11 years in various The flat pebblesnail was historically Department of Conservation, pers. species of Viviparidae (Heller 1990). known from the mainstem Coosa River comm. 1996; J. Johnson, Auburn Collection records for the cylindrical in Shelby and Talladega counties, the University, in litt. 1996). lioplax exist from the Alabama River Cahaba River in Bibb and Dallas Bogan et al. (1995) summarized the (Dallas County, Alabama), Black Warrior counties, and Little Cahaba River in results of their efforts noting the River (Jefferson County, Alabama) and Bibb County, Alabama (Thompson apparent extinction of numerous snail tributaries (Prairie Creek, Marengo 1984). The flat pebblesnail has not been species in the Coosa and Cahaba River County, Alabama; Valley Creek, found in the Coosa River portion of its drainages, and the imperiled state of Jefferson County, Alabama), Coosa River range since the construction of Lay and many other aquatic snails in the Basin. (Shelby, Elmore counties, Alabama) and Logan Martin Dams, and recent survey The taxonomy used in this final rule tributaries (Oothcalooga Creek, Bartow efforts have failed to locate any follows Burch (1989), which relies County, Georgia; Coahulla Creek, surviving populations outside of the almost exclusively on shell morphology. Whitfield County, Georgia; Armuchee Cahaba River drainage (Bogan and Many of the Basin’s freshwater snail Creek, Floyd County, Georgia; Little Pierson, 1993a,b; McGregor et al. 1996; species, particularly in the family Wills Creek, Etowah County, Alabama; Service Field Records, Jackson, Pleuroceridae, are known to exhibit Choccolocco Creek, Talladega County, Mississippi 1989–1996; Bogan in litt. marked clinal variation (gradual change Alabama; Yellowleaf Creek, Shelby 1995; M. Pierson Field Records, Calera, in characters of a species that manifests County, Alabama), and the Cahaba River Alabama, in litt. 1993–1994; J. Garner itself along a geographic gradient) in (Bibb, Shelby counties, Alabama) and its pers. comm. 1996; J. Johnson in litt. shell form, some of which has been tributary, Little Cahaba River (Jefferson 1996). The flat pebblesnail is currently described as environmentally induced County, Alabama) (Clench and Turner known from one site on the Little (e.g., Goodrich 1934, 1937). Four of the 1955). A single collection of this species Cahaba River, Bibb County, and from a six species considered in this final rule has also been reported from the Tensas single shoal series on the Cahaba River belong to the family Pleuroceridae and River, Madison Parish, Louisiana above the Fall Line, Shelby County, their relationships to each other, as well (Clench 1962), however, there are no Alabama (Bogan and Pierson 1993b). 57612 Federal Register / Vol. 63, No. 208 / Wednesday, October 28, 1998 / Rules and Regulations

The lacy elimia (Elimia crenatella year. Some elimia may live as long as and tributaries from the northeastern (Lea 1860)) is a small species in the 5 years (Dillon 1988). corner of St. Clair County, Alabama, family Pleuroceridae. Growing to about The lacy elimia was historically downstream into the mainstem of the 1.1 centimeters (cm) (0.4 in) in length, abundant in the Coosa River main stem Alabama River to Claiborne, Monroe the shell is conic in shape, strongly from St. Clair to Chilton County, County, Alabama, and the Cahaba River striate, and often folded in the upper Alabama, and was also known in several below the Fall Line in Perry and Dallas whorls. Shell color is dark brown to Coosa River tributaries—Big Will’s counties, Alabama (Goodrich 1922, black, often purple in the aperture, and Creek, DeKalb County; Kelley’s Creek, Burch 1989). Surveys by Service without banding. The aperture is small St. Clair County; and Choccolocco and biologists and others (Bogan and Pierson and ovate. The lacy elimia is easily Tallaseehatchee creeks, Talladega 1993a, 1993b; M. Pierson, in litt. 1993) distinguished from other elimia species County, Alabama (Goodrich 1936). The in the Cahaba River, unimpounded by a combination of characters (i.e., size, lacy elimia has not been recently portions of the Alabama River, and a ornamentation, color). located at any historic collection site. number of free-flowing Coosa River In a recent genetic sequence study of However, as a result of the recent survey tributaries have located only three the 16S rRNA gene, the lacy elimia was efforts, previously unreported localized Coosa River drainage found to be very similar to the compact populations were discovered in three populations. elimia (Elimia showalteri) (Lydeard et Coosa River tributaries—Cheaha, The painted rocksnail is currently al. 1997). Despite their apparent close Emauhee, and Weewoka creeks, known from the lower reaches of three genetic relationship, the authors made Talladega County, Alabama (Bogan and Coosa River tributaries—Choccolocco no suggestion that the two species Pierson 1993a). The species is locally Creek, Talladega County; Buxahatchee represented a single species. Upon abundant in the lower reaches of Creek, Shelby County (Bogan and review of Lydeard et al. (1997), Dillon Cheaha Creek. This stream originates Pierson 1993a); and Ohatchee Creek, (College of Charleston, Charleston, within the Talladega National Forest; Calhoun County, Alabama (Pierson in South Carolina, in litt. 1997) suggested however, no specimens of the lacy litt. 1993). The round rocksnail (Leptoxis ampla that additional genetic studies were elimia have been collected on Forest (Anthony 1855)) grows to about 20 mm needed to demonstrate the genetic Service lands. The species has also been (0.8 in) in length. The shell is uniqueness of the lacy elimia. However, found at single sites in Emauhee and subglobose, with an ovately rounded the Lydeard et al. (1997) genetic study Weewoka creeks, where specimens are rare, and difficult to locate. aperture. The body whorl is shouldered addressed only one small genetic The painted rocksnail (Leptoxis at the suture, and may be ornamented character of the genome (entire genetic taeniata (Conrad 1834)) is a small to with folds or plicae. Color may be make-up of an individual) of these medium snail about 19 mm (0.8 in) in yellow, dark brown, or olive green, species, and other characters strongly length, and subglobose to oval in shape. usually with four entire or broken bands support the taxonomic status of the lacy The aperture is broadly ovate, and (Goodrich 1922). Round rocksnails elimia. The two species are allopatric rounded anteriorly. Coloration varies inhabit riffles and shoals over gravel, (do not overlap in distribution—the from yellowish to olive-brown, and cobble, or other rocky substrates. compact elimia occurs in the Cahaba usually with four dark bands. Some Lydeard et al. (1997) found slight River, whereas the lacy elimia was shells may not have bands and some differences in DNA sequencing between found in the Coosa River and have the bands broken into squares or the painted rocksnail and the round tributaries), and are strikingly different oblongs (see Goodrich 1922 for a rocksnail, and considered them to be in size, appearance, and behavior. The detailed description). All of the sister species. Following analysis by compact elimia has a large, robust, rocksnails that historically inhabited the allozyme electrophoresis on these same smooth shell boldly colored brown and/ Basin had broadly rounded apertures, species, Dillon (in litt. 1997) speculated or green, whereas the lacy elimia has a oval shaped shells, and variable that the two species represented isolated small, delicate, darkly colored, and coloration. Although the various species populations belonging to a single ornamented shell. The lacy elimia is one were distinguished by relative sizes, species. The two species are of the few elimia snails in the Basin that coloration patterns, and ornamentation, geographically separated, with the does not exhibit clinal variation identification could be confusing. painted rocksnail inhabiting Coosa (Goodrich 1936). In addition, compact However, the painted rocksnail is the River tributaries, while the round elimia are found grazing individually only known survivor of the 15 rocksnail rocksnail is the only surviving rocksnail throughout shoal habitats, whereas the species that were historically known species in the Cahaba River drainage. lacy elimia is usually found in tight from the Coosa River drainage. Both species are currently recognized by clusters or colonies on larger rocks Rocksnails are gill breathing snails the malacological community (e.g., within a shoal (P. Hartfield, Jackson, found attached to cobble, gravel, or Burch 1989; Turgeon et al. 1988, MS, pers. obsv.). Allopatry, morphology, other hard substrates in the strong revision in review), and are treated as and behavior are strong characters currents of riffles (a shallow area in a distinct in this final rule. supporting species specific status of the streambed that causes ripples in the The round rocksnail was historically lacy elimia. water) and shoals. Adult rocksnails found in the Cahaba River, and its Elimia snails are gill breathing snails move very little, and females probably tributary, Little Cahaba River, Bibb that typically inhabit highly oxygenated glue their eggs to stones in the same County, Alabama; and the Coosa River, waters on rock shoals and gravel bars. habitat (Goodrich 1922). Heller (1990) Elmore County, and tributaries—Canoe Most species graze on periphyton reported a short life span (less than 2 Creek and Kelly’s Creek, St. Clair growing on benthic (bottom) substrates. years) in a Tennessee River rocksnail. County; Ohatchee Creek, Calhoun Individual snails are either male or Longevity in the painted and the Basin’s County; Yellowleaf Creek, Shelby female. Eggs are laid in early spring and other rocksnails is unknown. County; and Waxahatchee Creek, hatch in about 2 weeks. Snails The painted rocksnail had the largest Shelby/Chilton counties, Alabama apparently become sexually mature in range of any rocksnail in the Mobile (Goodrich 1922). their first year, but, in some species, River Basin (Goodrich 1922). It was The round rocksnail is currently females may not lay until their second historically known from the Coosa River known from a shoal series in the Cahaba Federal Register / Vol. 63, No. 208 / Wednesday, October 28, 1998 / Rules and Regulations 57613

River, Bibb and Shelby counties, Candidate species is defined as a program was essentially shut down and Alabama, and from the lower reach of species for which the Service has on file the Service was precluded from the Little Cahaba River, and the lower sufficient information on biological processing petitions and developing reaches of Shade and Six-mile creeks in vulnerability and threats to support proposed rules from October 1, 1995, Bibb County, Alabama (Bogan and issuance of a proposed rule. through April 26, 1996. When the Pierson 1993b). A status review summary, that moratorium was lifted and funds were The plicate rocksnail (Leptoxis plicata included these six snails, was mailed on appropriated for the administration of (Conrad, 1834)) grows to about 20 mm August 23, 1994 (62 letters), to the listing program, the Service was (0.8 in) in length. Shells are subglobose appropriate species authorities, State faced with a significant backlog of with broadly rounded apertures. The and Federal agencies, private listing activities. Petitions and other body whorl may be ornamented with organizations, and interested listing actions were processed according strong folds or plicae. Shell color is individuals. A cover letter provided to the listing priority guidance usually brown, occasionally green, and notification that a status review was in published in the Federal Register on often with four equidistant color bands. progress by the Service, stated that the December 5, 1996 (61 FR 64475). The The columella (central column or axis) species appeared to qualify for listing guidance clarified the order in which is smooth, rounded, and typically under the Act, and requested a review the Service processed listing actions pigmented in the upper half. The of the status review summary for during fiscal year 1997. The guidance aperture is usually bluish-white, accuracy regarding taxonomy, called for giving highest priority (Tier 1) occasionally pink or white. The distribution, threats, and status. Three to handling emergency situations and operculum (plate that closes the shell species authorities responded by second highest priority (Tier 2) to when the snail is retracted) is dark red, telephone concurring with the status resolving the status of outstanding and moderately thick (Goodrich 1922). reviews. No other comments were proposed listings. Third priority (Tier 3) Although morphologically similar to the received as a result of this notification. was given to resolving the conservation Basin’s other three surviving rocksnail An updated status report, along with status of Candidate species and species, the plicate rocksnail is a review request, was mailed on March processing administrative findings on genetically distinct (Lydeard et al. 1997, 11, 1997 (157 letters), following petitions to add species to the lists or Dillon in litt. 1997). elevation of the snails to Candidate reclassify threatened species to The plicate rocksnail historically status. One snail authority concurred endangered status. The processing of occurred in the Black Warrior River and with the status review analysis; these two petitions and the proposed its tributary, the Little Warrior River, however, he recommended additional rule fell under Tier 3. A proposal to list and the Tombigbee River (Goodrich genetic studies on the lacy elimia (see three aquatic snails as endangered, and 1922). Status survey efforts found ‘‘Background’’ section above). Two three aquatic snails as threatened was populations of plicate rocksnails only in other snail authorities responded published in the Federal Register (62 an approximately 88km (55 mi) reach of concurring with the analysis, as well as FR 54020) on October 17, 1997. The the Locust Fork of the Black Warrior the taxonomic treatment of the six proposal constituted the 90-day and 12- River, Jefferson and Blount counties, species. month finding on the petitioned actions. Alabama (Service Field Records, On September 5, 1995, the Service The processing of this final rule Jackson, Mississippi 1991, 1992; received two petitions, dated August 31, conforms with the Service’s final listing Malcolm Pierson, Calera, Alabama, 1995, from a coalition of environmental priority guidance for fiscal years 1998 Field Notes 1993). Surveys during 1996 organizations (Coosa-Tallapoosa Project, and 1999 published in the Federal and 1997 indicate that the snail has Biodiversity Legal Foundation, and Register on May 8, 1998 (63 FR 25502). recently disappeared from the upstream Alabama Wilderness Alliance) The guidance calls for giving highest two-third portion of that habitat and represented by Mr. Ray Vaughan. The priority (Tier 1) to handling emergency now appears restricted to an petitioners requested the Service to list situations, second highest priority (Tier approximately 32 km (20 mi) reach in the plicate rocksnail as endangered and 2) to resolving the listing status of Jefferson County (Garner in litt. 1998). to designate critical habitat for this outstanding proposed listings, resolving species. The second petition requested Previous Federal Action the conservation status of candidate the Service to list the lacy elimia as a species, processing administrative The six aquatic snails were identified threatened species and to designate findings on petitions, and processing a as Category 2 species in notices of critical habitat. limited number of delistings and review published in the Federal Section 4 (b)(3)(A) of the Act and reclassifications, and third priority (Tier Register on November 21, 1991 (56 FR implementing regulations at 50 CFR 3) to processing proposed and final 58804), and November 15, 1994 (59 FR 424.14 require that, to the extent designations of critical habitat. The 58982). At that time, a Category 2 practicable, the Service make a finding processing of this final rule falls under species was one that was being of substantiality on any petition within Tier 2. The Southeast Region has no considered for possible addition to the 90 days of its receipt, and publish a pending Tier 1 actions. Federal List of Endangered and notice of its finding in the Federal Threatened Wildlife, but for which Register. If a substantial 90-day finding Summary of Comments and conclusive data on biological is made, the Service is required, to the Recommendations vulnerability and threat were not extent practicable, within 12 months of In the October 17, 1997, proposed rule available to support a proposed rule. receipt of the petition, to make a finding (62 FR 54020) and associated Designation of Category 2 species was as to whether the action requested in the notifications, all interested parties were discontinued in the February 28, 1996, petition is: (a) Not warranted; (b) requested to submit factual information Notice of Review (61 FR 7596). The six warranted; or (c) warranted but that might assist the Service in snails considered in this final rule were precluded. Because of reductions in determining whether these taxa warrant approved as Candidate species by the funding and the lasting effects of a listing. Direct notification of the Service on November 9, 1995, and congressionally imposed listing proposal was made to 205 institutions identified as Candidates in the 1996 moratorium from April 10, 1995, to and individuals, including State and Notice of Review (61 FR 7601). A April 26, 1996, the Service’s listing Federal agencies, county governments, 57614 Federal Register / Vol. 63, No. 208 / Wednesday, October 28, 1998 / Rules and Regulations scientific organizations, and other decision upholds a decision made by quality regulations. The U.S. interested parties. Newspaper legal the United States Court of Appeals for Environmental Protection Agency (EPA) notices announcing the proposal and the District of Columbia Circuit commented that it does not have the inviting public comment were (National Association of Homebuilders authority to require water use published in The Birmingham News, vs. Babbitt, 97–1451) that regulation classifications higher than the minimum Daily Home, Montgomery Advertiser, under the Act is within Congress’ goal of Fish and Wildlife or Swimmable, and Anniston Star. The comment period Commerce Clause power and that loss of and suggested that designation of closed on December 16, 1997. During animal diversity has a substantial effect critical habitat might encourage the the initial comment period, a public on interstate commerce. Thus, although State to elevate the use classifications of hearing was requested by Gorham & these six snails are found only within streams where the snails occur to higher Waldrep, a legal firm representing The the State of Alabama, the Service’s levels. Birmingham Water Works Board. The application of the Act to list these Response: As discussed in the public comment period was reopened species is constitutional. proposed rule and in this final rule (see on December 19, 1997 (62 FR 66583), Issue 2: Emergency listing is ‘‘Critical Habitat’’ section), critical and extended until January 23, 1998, to appropriate for the cylindrical lioplax, habitat designation, by definition, accommodate the public hearing. The flat pebblesnail, and the plicate directly affects only Federal actions. Service notified by letter appropriate rocksnail. The presence of listed species is already State and Federal agencies, county Response: Emergency listing is an existing use of a water body which governments, scientific organizations, appropriate only in cases where ADEM, under authority delegated by and other interested parties of the imminent threats to a species have been EPA, is responsible to maintain. ADEM public hearing and the reopening of the identified requiring the immediate has been informed of the location of the comment period. In addition, protection of the Act for the species. As six species, and the threats confronting newspaper notices announcing the noted in the proposed rule, nonpoint them. Therefore, critical habitat public hearing and reopening of the source pollution is the primary threat to designation will have no effect on comment period were published in The all known populations of these six ADEM’s responsibilities to maintain Birmingham News, Anniston Daily Star, species. The deleterious effects of State water quality that do not already Montgomery Advertiser, and Daily nonpoint source pollution on these accrue from the listing. The Service, Home. The hearing was held at the snails are gradual and cumulative, and through coordination and cooperation Dwight Beeson Hall Auditorium on the cannot be easily eliminated or with the EPA and ADEM, will continue campus of Samford University in specifically identified. Federal and State to define water quality impacts and Birmingham, Alabama, on January 13, agencies are currently working with the work to revise State and Federal water 1998, with 23 people in attendance. Service in attempts to identify and quality standards and stream use Oral comments were received from six address similar problems of nonpoint classifications where appropriate. individuals, four in support of the source pollutants on other listed species Issue 5: The Service should not proposed action, and two requesting within the Mobile River Basin. construe its mandate to designate clarification of language in the proposal. Emergency listing would not accelerate critical habitat as narrowly as was done During the comment periods, the this process. in the proposed rule, i.e., there are Service received over 200 cards and Issue 3: Endangered status is more benefits to critical habitat designation letters concerning the proposal. Most appropriate for the lacy elimia and beyond the section 7 consultation individuals expressed support for the round rocksnail. process. The prior controversy proposed listing; however, one Response: There are three known surrounding the proposed listing of the individual expressed concern over the populations of the lacy elimia, and four Alabama sturgeon should not be a factor listing of the plicate rocksnail, another known populations of the round in determining critical habitat for the individual supported preservation of the rocksnail. The primary threat to snails. species but opposed the listing on populations of both species is from Response: The Service recognized and constitutional grounds, and several nonpoint source pollution. This is an discussed benefits that might accrue individuals expressed concern over insidious but unpredictable threat, and from identifying stream and river specific statements within the proposal. no two of the distinct populations of reaches currently unoccupied by these Written comments and oral these species are likely to be faced with species as critical habitat. However, statements presented at the public identical impacts from stormwater because stream and river habitats hearing and received during the runoff since they all occupy distinct change rapidly in response to watershed comment periods are either watersheds. Although both species have land use, and it is difficult to project incorporated into the appropriate declined significantly in overall range, watershed conditions and stream habitat section of this rule, or are addressed in one or more populations of each species values into the future, the Service is the following summary. Comments of a is currently vigorous, with high working through a dynamic process similar nature or point are grouped into numbers of individuals and strong with State and other Federal agencies a number of general issues. These issues recruitment. Therefore, the Service and private parties. In a cooperative and the Service’s response to each are believes that threatened status is relationship, these entities periodically discussed below: appropriate for these species. If survey, assess, and protect habitat, as Issue 1: The Service lacks authority to conditions should deteriorate in the well as potential habitat, for listed regulate these species under the future, the status of one or both species aquatic species and species of concern Commerce Clause of Article I, Section 8 could be elevated to endangered. within the Mobile River Basin. of the United States Constitution. Issue 4: Critical habitat should be Additionally, the Service believes that Response: On June 22, 1998, the designated for all six species because any benefits that might be derived from Supreme Court, without comment, the Alabama Department of designation of critical habitat for these rejected the argument that using the Act Environmental Management (ADEM) species would be outweighed by to protect species that live only in one would have to maintain and protect increasing the threat of vandalism that State goes beyond Congress’ authority to designated critical habitat as an existing might result from such a designation. regulate interstate commerce. This use under Federal and State water The proposed listing and designation of Federal Register / Vol. 63, No. 208 / Wednesday, October 28, 1998 / Rules and Regulations 57615 critical habitat for the Alabama sturgeon (see discussion under Factor A in the extensive construction of dams and the was used as an example of increased ‘‘Summary of Factors Affecting the inundation of the snail’s shoal habitats potential for vandalism that can result Species’’ section). Pollution, by impounded waters. Thirty dams have from proposed designation of critical particularly nonpoint source pollution, changed this system from a continuum habitat. Other examples can also be is the primary threat to surviving of free-flowing riverine habitats into a given; however, the Alabama sturgeon populations of the six species in series of impoundments connected by inhabits the same drainage basin as unimpounded stream and river habitats. short, free-flowing reaches. On the these snails, and reflects the public Flood scour was not addressed in the Alabama River, there are 3 dams (built mood within the basin. proposed rule, and may have been, and between 1968–1971); the Black Warrior Issue 6: EPA requested clarification continue to be a factor in the decline of has 5 (1915–1959); the Coosa 10 (1914– regarding the potential that these snails the species. However, all six species 1966), and the Tombigbee 12 (1954– may be more susceptible to common inhabit the most dynamic portions of 1979). Dams impound approximately pollutants than organisms currently the stream channel and are well adapted 1,650 km (1,022 mi) of river channel in used in bioassays. EPA provided a table to strong flows. the Basin. demonstrating that at least nine species The Service agrees that there are These six snail species have of snails have been used for bioassays in situations in which dams can serve to disappeared from all portions of their the development of criterion for arsenic, moderate or augment flows, and retain historic habitats that have been copper, lead, mercury, ammonia, sediments and contaminants. However, impounded by dams. As noted earlier, aluminum, as well as several other it must also be recognized that none of they are all associated with fast currents chemicals, and showing them less the six snail species addressed in this over clean, hard bottom materials. Dams sensitive than other species, e.g., guppy, rule survive in tailwaters below any of change such areas by eliminating or crayfish, bluegill, etc. the many dams constructed within their reducing currents, and allowing Response: None of the six snails historic ranges. sediments to accumulate on inundated addressed herein have been used for channel habitats. Impounded waters Summary of Factors Affecting the bioassays. Of the nine snail species also experience changes in water Species referenced in the table provided by EPA, chemistry which could affect survival or all are widespread, most occur far north After a thorough review and reproduction of riverine snails. For of the Mobile River Basin, and only one consideration of all information example, many reservoirs in the Basin is closely related to any of the six available, the Service has determined currently experience eutrophic species considered herein. The liver that the cylindrical lioplax (Lioplax (enrichment of a water body with elimia, Elimia livescens, is within the cyclostomaformis), flat pebblesnail nutrients) conditions, including same genus as the lacy elimia, but is a (Lepyrium showalteri), and plicate chronically low dissolved oxygen levels widely distributed and locally abundant rocksnail (Leptoxis plicata) should be (Alabama Department of Environmental species in the Great Lakes and its classified as endangered species, and Management (ADEM) 1994, 1996). Such drainages. The other species that have the painted rocksnail (Leptoxis physical and chemical changes can been used for bioassays included five taeniata), round rocksnail (Leptoxis affect feeding, respiration, and pulmonate (lung breathing and include ampla), and lacy elimia (Elimia reproduction of these riffle and shoal land and freshwater snails) snails, crenatella) should be classified as snail species. which are often considered tolerant threatened species. Procedures found at A site on the Locust Fork River is species, two hydrobiid (small aquatic section 4(a)(1) of the Act and regulations being considered for the construction of snail in Hydrobiidae family) species, implementing the listing provisions of a water supply impoundment, however, and one viviparid species. The high the Act (50 CFR part 424) were no formal proposal has been made and tolerance demonstrated by the snails in followed. A species may be determined no permits have been issued (C. the data provided by EPA supports the to be an endangered or threatened Waldrep, Gorham & Waldrep, P.C., Service’s assertion that current species due to one or more of the five Montgomery, Alabama, in litt. 1995; G. standards must be assumed protective factors described in section 4(a)(1). Hanson, Birmingham Water Works until further evidence proves otherwise. These factors and their application to Board, in litt. 1998). Plicate rocksnails The Service and EPA are working to the cylindrical lioplax, flat pebblesnail, occurred in riffle and shoal habitats identify appropriate surrogates for listed plicate rocksnail, painted rocksnail, above and below the reservoir site in species for use in bioassays. round rocksnail, and lacy elimia are as 1994. In 1996, plicate rocksnails could Issue 7: Dams and impoundment may follows: not be relocated in the portion of the not be the primary cause of decline of A. The present or threatened river to be flooded by the reservoir; the six snail species. The plicate destruction, modification, or however, they were confirmed to rocksnail has continued to decline in curtailment of its habitat or range. The continue to survive in an approximately the unimpounded Locust Fork, cylindrical lioplax, flat pebblesnail, lacy 32 km (20 mi) reach of river below the suggesting that nonpoint source elimia, round rocksnail, painted potential dam site, which would be pollution, or other factors not addressed rocksnail, and plicate rocksnail have all subject to impacts from construction in the proposed rule, such as flood disappeared from more than 90 percent activities and post-construction changes scour, loss of food source, water of their historic ranges. All of these in water quality (Garner in litt. 1998). temperature changes, etc., represent the snails were historically, and continue to In addition to directly altering snail primary threats to this species. Dams be, strongly associated with river or habitats, dams and their impounded can increase habitat suitability for stream habitats characterized by flowing waters also formed barriers to the aquatic snails by providing flood flow currents, and hard, clean bottoms (e.g., movement of snails that continued to control, flow augmentation, and bedrock, boulder, gravel) (Goodrich live below dams or in unimpounded retention of sediments and toxins. 1922, 1936; Clench and Turner 1955). tributaries. It is suspected that many Response: Dams and impounded The curtailment of habitat and range for such isolated colonies gradually waters have long been recognized as a these six species in the Basin’s larger disappear as a result of local water and cause of decline, extirpation, and rivers (Coosa, Alabama, Tombigbee, and habitat quality changes. Unable to extinction of aquatic snails in the Basin Black Warrior) is primarily due to emigrate (move out of the area), the 57616 Federal Register / Vol. 63, No. 208 / Wednesday, October 28, 1998 / Rules and Regulations isolated snail populations are impacts resulting from sediments have the upper Cahaba River drainage is vulnerable to local discharges as well as been noted for many other components primarily impacted by nonpoint runoff any detrimental land surface runoff of aquatic communities. For example, and WWTPs through physical habitat within their watersheds. Although many sediments have been shown to abrade destruction by sedimentation, and watershed impacts have been and/or suffocate periphyton (organisms chronic stress from exposure to toxics temporary, eventually improving or attached to underwater surfaces, upon and low dissolved oxygen. The middle even disappearing with the advent of which snails may feed); affect Cahaba River is primarily impacted by new technology, management practices, respiration, growth, reproductive eutrophication and associated affects. or laws, dams and their impounded success, and behavior of aquatic insects The lacy elimia is now restricted to waters prevent natural recolonization by and mussels; and affect fish growth, three small stream channels in snail populations surviving elsewhere. survival, and reproduction (Waters Talladega County, Alabama—Cheaha, Prior to the passage of the Clean 1995). Emauhee, and Weewoka creeks (Coosa Water Act and the adoption of State Sediment is the most abundant River drainage). The painted rocksnail water quality criteria, water pollution pollutant produced in the Basin (ADEM currently survives in localized reaches may have been a significant factor in the 1989). Potential sediment sources of three other Coosa River tributaries, disappearance of snail populations from within a watershed include virtually all Choccolocco, Buxahatchee, and unimpounded tributaries of the Basin’s activities that disturb the land surface, Ohatchee creeks. The plicate rocksnail impounded mainstem rivers. For and all localities currently occupied by inhabits a single short reach of the example, Hurd (1974) noted the these snails are affected to varying Locust Fork River in Jefferson County, extirpation of freshwater mussel degrees by sedimentation. The amount Alabama (Black Warrior River drainage). communities from several Coosa River and impact of sedimentation on snail All of these streams are variously tributaries, including the Conasauga habitats may be locally correlated with impacted by sediments and nutrients River below Dalton, Georgia, the the land use practice. For example, the from a variety of upstream rural, Chatooga River, and Tallaseehatchee use of agriculture, forestry, and suburban, and/or urban sources. The Creek, apparently as a result of textile construction Best Management Practices streams are all small to moderate in size and carpet mill waste discharges. He can reduce sediment amounts and and volumes of flow, and their water also attributed the disappearance of the impacts. and habitat quality can be rapidly mussel fauna from the Etowah River, Land surface runoff contributes the affected by local and offsite pollution Talladega and Swamp creeks, and from majority of human-induced nutrients to sources. many of the lower tributaries of the water bodies throughout the country B. Overutilization for commercial, Coosa River, to organic pollution and (Louisiana Department of recreational, scientific, or educational siltation. Environmental Quality 1995). Excessive purposes. The six aquatic snail species Short-term and long-term impacts of nutrient input (from fertilizers, sewage are currently not of commercial value, point and nonpoint source water and waste, animal manure, etc.) can result in and overutilization has not been a habitat degradation continue to be a periodic low dissolved oxygen levels problem. However, as their rarity primary concern for the survival of all that are detrimental to aquatic species becomes known, they may become more these snails, compounded by their (Hynes 1970). Nutrients also promote attractive to collectors. Unregulated isolation and localization. Point source heavy algal growth that may cover and collecting by private and institutional discharges and land surface runoff eliminate clean rock or gravel habitats of collectors poses a threat. The cylindrical (nonpoint pollution) can cause shoal dwelling snails. Nutrient and lioplax, flat pebblesnail, plicate nutrification, decreased dissolved sediment pollution may have synergistic rocksnail, painted rocksnail, round oxygen concentration, increased acidity effects (a condition in which the toxic rocksnail, and lacy elimia inhabit and conductivity, and other changes in effect of two or more pollutants is much shallow, fast-flowing waters of shoals water chemistry that are likely to greater than the sum of the effects of the and riffles. Because of their occurrence seriously impact aquatic snails. Point pollutants when operating individually) and exposure in such areas, they are sources of water quality degradation on freshwater snails and their habitats, readily vulnerable to overcollecting include municipal and industrial as has been suggested for aquatic insects and/or vandalism. In these areas, the effluents. (Waters 1995). snails are also exposed to crushing by Nonpoint source pollution from land The cylindrical lioplax, flat recreational activities such as canoeing, surface runoff can originate from pebblesnail, and the round rocksnail wading, swimming, or fishing; however, virtually all land use activities, and may currently survive in localized reaches of normal recreational activities are not include sediments, fertilizers, the Cahaba River drainage. Water believed to be a factor in their decline. herbicides, pesticides, animal wastes, quality studies in the upper Cahaba C. Disease or predation. Aquatic septic tank and gray water leakage, and River drainage by the Geological Survey snails are consumed by various oils and greases (ADEM 1996). During of Alabama (Shepard et al. 1996) found vertebrate predators, including fishes, many recent surveys for these snails, that discharges from 34 waste water mammals, and possibly birds. Predation sediment deposition and nutrient treatment plants (WWTPs) in the upper by naturally occurring predators is a enrichment of stream reaches was noted drainage have contributed to water normal aspect of the population as being associated with the absence of quality impairment. This was reflected dynamics of a species and is not snails from historic collection localities by low levels of dissolved oxygen considered a threat to these species. (Bogan and Pierson 1993a, 1993b; downstream of Birmingham; ammonia However, the potential now exists for Hartfield 1991; Service Field and chlorination by-products in excess black carp (Mylopharyngodon piceus), a Observations 1992–1994, Jackson Field of recommended water quality criteria; nonselective molluskivore recently Office, MS). and eutrophication due to excessive introduced into waters of the United Excessive sediments are believed to levels of phosphorus and nitrogen. The States, to eventually enter the Mobile impact riverine snails requiring clean, study noted that these problems are River Basin. Exotic black carp recently hard shoal stream and river bottoms, by chronic and have been a factor in a loss escaped to the Osage River in Missouri making the habitat unsuitable for of mollusk and fish diversity throughout when hatchery ponds were flooded feeding or reproduction. Similar the drainage. Their results indicate that during a 1994 spring flood of the river Federal Register / Vol. 63, No. 208 / Wednesday, October 28, 1998 / Rules and Regulations 57617

(LMRCC newsletter, 1994). The extent of list the cylindrical lioplax, flat Section 4(a)(3) of the Act, as stocking black carp for snail control in pebblesnail, and plicate rocksnail as amended, and implementing regulations aquaculture ponds within the Basin is endangered; and the painted rocksnail, (50 CFR 424.12) require that, to the unknown; however, black carp are round rocksnail, and lacy elimia as maximum extent prudent and currently cultured and sold within the threatened. All of these species have determinable, the Secretary designate State of Mississippi (D. Reike, been rendered vulnerable due to critical habitat at the time the species is Mississippi Department of Wildlife, significant loss of habitat and severe determined to be endangered or Fisheries, and Parks, 1997). range restriction. threatened. Service regulations (50 CFR D. The inadequacy of existing The cylindrical lioplax is confined in 424.12(a)(1)) state that designation of regulatory mechanisms. Although the distribution to a short reach of the critical habitat is not prudent when one negative effects of point source Cahaba River. The flat pebblesnail or both of the following situations exist: discharges on aquatic communities have currently survives in localized portions (i) The species is threatened by taking probably been reduced over time by of the Cahaba River and the Little or other activity and the identification compliance with State and Federal Cahaba River. Both species are of critical habitat can be expected to regulations pertaining to water quality, vulnerable to extinction by their increase the degree of threat to the there is currently no information on the confined ranges, and current impacts species or (ii) such designation of sensitivity of the Mobile River Basin from water quality degradation in the critical habitat would not be beneficial snail fauna to common industrial and Cahaba River drainage. The single to the species. The Service finds that municipal pollutants. Current State and known population of the plicate designation of critical habitat is not Federal regulations regarding such rocksnail has experienced a significant presently prudent for any of these six discharges are assumed to be protective; reduction in range within the past 2 aquatic snails. however, these snails may be more years, apparently due to pollution of its Critical habitat designation, by susceptible to some pollutants than test habitat from nonpoint sources. Habitat definition, directly affects only Federal organisms currently used in bioassays. that was, until recently, occupied by the agency actions. Since these snail species A lack of adequate research and data species is within a potential site for are aquatic throughout their life cycles, currently may prevent existing reservoir construction. Endangered Federal actions that might affect these authorities, such as the Clean Water Act status is appropriate for these three species and their habitats include those (CWA), administered by EPA and the species due to their single populations, with impacts on stream channel Army Corps of Engineers (Corps), from restricted numbers within these geometry, bottom substrate composition, being fully utilized. The Service is populations, existing threats to their water quantity and quality, and currently working with EPA to develop occupied habitats, and in the case of the stormwater runoff. Such activities a Memorandum of Agreement that will plicate rocksnail, an ongoing decline in would be subject to review under address how EPA and the Service will range. section 7(a)(2) of the Act, whether or not interact relative to CWA water quality The lacy elimia, painted rocksnail, critical habitat was designated. Section criteria and standards within the and round rocksnail are each currently 7(a)(2) requires Federal agencies to Service’s Southeast Region. known from three distinct drainage ensure that activities they authorize, Lacking State or Federal recognition, localities. Extant populations and fund, or carry out are not likely to these snails are not currently given any colonies of these three species are jeopardize the continued existence of a special consideration under other localized, isolated, and are vulnerable to listed species or to destroy or adversely environmental laws when project water quality degradation, future human modify its critical habitat. The impacts are reviewed. activities that would degrade their cylindrical lioplax, flat pebblesnail and E. Other natural or manmade factors habitats, and random catastrophic plicate rocksnail have become so affecting its continued existence. The events. Threatened status is considered restricted in distribution that any narrow distribution of extant more appropriate for these species due significant adverse modification or populations of all six snail species and to the larger number of populations or destruction of their occupied habitats the nature of their habitats (i.e., small to colonies, and the less immediate nature would likely jeopardize their continued moderate sized streams) renders them of these threats. existence. The round rocksnail, painted vulnerable to a natural catastrophic Critical Habitat rocksnail, and lacy elimia are not as event (e.g., flood, drought). restricted in distribution as the other Habitat fragmentation and population Critical habitat is defined in section 3 three snails, none the less, projects isolation are a significant threat to the of the Act as: (i) the specific areas found to cause a significant adverse continued survival of the lacy elimia within the geographical area occupied modification or destruction of their and painted rocksnail. The known by a species, at the time it is listed in occupied habitats would also likely populations of these two species are accordance with the Act, on which are jeopardize their continued existence. isolated by extensive areas of found those physical or biological This would also hold true as the species impoundment, and there is little, if any, features (I) essential to the conservation recovers and its numbers increase. possibility of genetic exchange between of the species and (II) that may require Therefore, habitat protection for these them. Over time, this isolation may special management consideration or six species can be accomplished result in genetic drift, with each protection; and (ii) specific areas through the section 7 jeopardy standard population becoming unique and outside the geographical area occupied and there is no benefit in designating vulnerable to environmental by a species at the time it is listed, upon currently occupied habitat of these disturbance. a determination that such areas are species as critical habitat. The Service has carefully assessed the essential for the conservation of the Recovery of these species will require best scientific and commercial species. ‘‘Conservation’’ means the use the identification of unoccupied stream information available regarding the past, of all methods and procedures that are and river reaches appropriate for present, and future threats faced by necessary to bring the species to the reintroduction. Critical habitat these species in determining to make point at which the measures provided designation of unoccupied stream and this rule final. Based on these pursuant to the Act are no longer river reaches might benefit these species evaluations, the preferred action is to necessary. by alerting permitting agencies to 57618 Federal Register / Vol. 63, No. 208 / Wednesday, October 28, 1998 / Rules and Regulations potential sites for reintroduction and The six snail species addressed in this prohibitions against certain practices. allow them the opportunity to evaluate rule are especially vulnerable to Recognition through listing encourages projects which may affect these areas. vandalism. They all are found in and results in conservation actions by The Service is currently working with shallow shoals or riffles in restricted Federal, State, and private agencies, the State and other Federal agencies to stream and river segments. The flat groups, and individuals. The Act periodically survey and assess habitat pebblesnail, plicate rocksnail, round provides for possible land acquisition potential of stream and river reaches for rocksnail, painted rocksnail, and lacy and cooperation with the States and listed and candidate aquatic species elimia attach to the surfaces of bedrock, requires that recovery actions be carried within the Mobile River basin. This cobble, or gravel, while the cylindrical out for all listed species. The protection process provides up to date information lioplax is found under large boulders. required of Federal agencies and the on instream habitat conditions in The six species are relatively immobile prohibitions against taking and harm are response to land use changes within and unable to escape collectors or discussed, in part, below. watersheds. Information generated from vandals. They inhabit remote but easily Section 7(a) of the Act, as amended, surveys and assessments is accessed areas, and they are sensitive to requires Federal agencies to evaluate disseminated through Service a variety of easily obtained commercial their actions with respect to any species coordination with other agencies. The chemicals and products. Because of that is proposed or listed as endangered Service will continue to work with State these factors, vandalism or collecting or threatened and with respect to its and Federal agencies, as well as private could be undetectable and uncontrolled. critical habitat, if any is being property owners and other affected For example, the plicate rocksnail designated. Regulations implementing parties, through the recovery process to recently disappeared from this interagency cooperation provision identify stream reaches and potential approximately 80 percent of its known of the Act are codified at 50 CFR part sites for reintroduction of these species. occupied habitat. While the Service has 402. Section 7(a)(2) requires Federal Thus, any benefit that might be been unable to determine the cause of agencies to ensure that activities they provided by designation of unoccupied this decline, the disappearance authorize, fund, or carry out are not habitat as critical will be accomplished illustrates the vulnerability of this and likely to jeopardize the continued more effectively with the current the other snail species. existence of such a species or to destroy coordination process and is preferable All known populations of these six or adversely modify its critical habitat. for aquatic habitats which change snail species occur in streams flowing If a Federal action may adversely affect rapidly in response to watershed land through private lands. The primary a listed species or its critical habitat, the use practices. In addition, the Service threat to all surviving populations responsible Federal agency must enter believes that any potential benefits to appears to be pollutants in stormwater into formal consultation with the critical habitat designation are runoff that originate from private land Service. Federal activities that could occur and outweighed by additional threats to the activities (see Factor A). Therefore, the impact these species include, but are species that would result from such survival and recovery of these snails not limited to, the carrying out or the designation, as discussed below. will be highly dependent on landowner cooperation in reducing land use issuance of permits for reservoir Though critical habitat designation impacts. Controversy resulting from construction, stream alterations, directly affects only Federal agency critical habitat designation has been discharges, wastewater facility actions, this process can arouse concern known to reduce private landowner development, water withdrawal and resentment on the part of private cooperation in the management of projects, pesticide registration, mining, landowners and other interested parties. species listed under the Act (e.g., and road and bridge construction. The publication of critical habitat maps spotted owl, golden cheeked warbler). Activities affecting water quality may in the Federal Register and local The Alabama sturgeon experience also impact these species and are newspapers, and other publicity or suggests that critical habitat designation subject to the Corps and EPA’s controversy accompanying critical could affect landowner cooperation regulations and permit requirements habitat designation may increase the within watersheds occupied by these six under authority of the CWA and the potential for vandalism as well as other snails. National Pollutant Discharge collection threats (See Factor B under Based on the above analysis, the Elimination System (NPDES). It has ‘‘Summary of Factors Affecting the Service has concluded critical habitat been the experience of the Service, Species’’ section). For example, on June designation would provide little however, that nearly all section 7 15, 1993, the Alabama sturgeon was additional benefit for these species consultations have been resolved so that proposed for endangered status with beyond those that would accrue from the species have been protected and the critical habitat (59 FR 33148). Proposed listing under the Act. The Service also project objectives have been met. Other critical habitat included the lower concludes that any potential benefit than a potential dam on the Locust Fork portions of the Alabama, Cahaba, and from such a designation would be offset River, Jefferson and Blount counties, Tombigbee rivers in south Alabama. The by an increased level of vulnerability to Alabama, no other Federal activities that proposal generated thousands of vandalism or collecting, and by a may affect these species are currently comments with the primary concern possible reduction in landowner known to be under consideration. that the actions would devastate the cooperation to manage and recover The Act and its implementing economy of the State of Alabama and these species. The designation of critical regulations found at 50 CFR 17.21 for severely impact adjoining States. There habitat for these six snail species is not endangered species, and 17.21 and were reports from State conservation prudent. 17.31 for threatened species, set forth a agents and other knowledgeable sources series of general prohibitions and of rumors inciting the capture and Available Conservation Measures exceptions that apply to all endangered destruction of Alabama sturgeon. A Conservation measures provided to or threatened wildlife. These primary contributing factor to this species listed as endangered or prohibitions, in part, make it illegal for controversy was the proposed threatened under the Act include any person subject to the jurisdiction of designation of critical habitat for the recognition, recovery actions, the United States to take (includes sturgeon. requirements for Federal protection, and harass, harm, pursue, hunt, shoot, Federal Register / Vol. 63, No. 208 / Wednesday, October 28, 1998 / Rules and Regulations 57619 wound, kill, trap, or collect, or to out in accordance with any existing Paperwork Reduction Act attempt any of these), import or export, regulations, permit requirements, and ship in interstate commerce in the best management practices. This rule does not contain any new course of commercial activity, or sell or (4) Development and construction collections of information other than offer for sale in interstate or foreign activities designed and implemented those already approved under the commerce any listed species. It also is pursuant to Federal, State, and local Paperwork Reduction Act, 44 U.S.C. illegal to possess, sell, deliver, carry, water quality regulations. 3501 et seq., and assigned Office of transport, or ship any wildlife that has (5) Existing recreational activities Management and Budget clearance been taken illegally. Certain exceptions such as swimming, wading, canoeing, number 1018–0094. An agency may not apply to agents of the Service and State and fishing. conduct or sponsor, and a person is not required to respond to a collection of conservation agencies. Activities that the Service believes information, unless it displays a Permits may be issued to carry out could potentially result in ‘‘take’’ of currently valid control number. For otherwise prohibited activities these snails include: additional information concerning involving endangered or threatened (1) The unauthorized collection or permit and associated requirements for wildlife species under certain capture of the species; endangered and threatened species, see circumstances. Regulations governing (2) Unauthorized destruction or 50 CFR 17.22 and 17.32, respectively. permits are at 50 CFR 17.22 for alteration of the species habitat (e.g., endangered species and 17.32 for instream dredging, channelization, References Cited threatened species. Such permits are discharge of fill material); available for scientific purposes, to (3) Violation of any discharge or water A complete list of all references cited enhance the propagation or survival of withdrawal permit; herein, as well as others, is available the species, and/or for incidental take in (4) Illegal discharge or dumping of upon request from the Field Supervisor connection with otherwise lawful toxic chemicals or other pollutants into (see ADDRESSES section). activities. For threatened species, there waters supporting the species. Author are also permits for zoological Other activities not identified above exhibition, educational purposes, or will be reviewed on a case-by-case basis The primary author of this final rule special purposes consistent with the to determine if a violation of section 9 is Paul Hartfield (see ADDRESSES purposes of the Act. of the Act may be likely to result from section)(601/965–4900, extension 25). It is the policy of the Service, such activity. The Service does not published in the Federal Register on List of Subjects in 50 CFR Part 17 consider these lists to be exhaustive and July 1, 1994 (59 FR 34272), to identify, provides them as information to the Endangered and threatened species, to the maximum extent practicable, public. Exports, Imports, Reporting and those activities that would or would not Questions regarding whether specific recordkeeping requirements, constitute a violation of section 9 of the Transportation. Act. The intent of this policy is to activities may constitute a violation of increase public awareness as to the section 9 should be directed to the Field Regulation Promulgation Supervisor of the Service’s Jackson effects of these listings on future and Accordingly, the Service amends part ongoing activities within a species’ Field Office (see ADDRESSES section). Requests for copies of regulations 17, subchapter B of chapter I, title 50 of range. the Code of Federal Regulations, as Activities which the Service believes regarding listed species and inquiries follows: are unlikely to result in a violation of about prohibitions and permits should be addressed to the U.S. Fish and section 9 for these six snails are: PART 17Ð[AMENDED] (1) Existing discharges into waters Wildlife Service, Ecological Services supporting these species, provided these Division, 1875 Century Boulevard, 1. The authority citation for part 17 activities are carried out in accordance Atlanta, Georgia 30345 (Phone 404/679– continues to read as follows: with existing regulations and permit 7313; Fax 404/679–7081). Authority: 16 U.S.C. 1361–1407; 16 U.S.C. requirements (e.g., activities subject to National Environmental Policy Act 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– sections 402, 404, and 405 of the Clean 625, 100 Stat. 3500, unless otherwise noted. Water Act and discharges regulated The Fish and Wildlife Service has under the NPDES. determined that an Environmental 2. Amend section 17.11(h) by adding (2) Actions that may affect these six Assessment, as defined under the the following, in alphabetical order snail species and are authorized, funded authority of the National Environmental under SNAILS, to the List of or carried out by a Federal agency when Policy Act of 1969, need not be Endangered and Threatened Wildlife to the action is conducted in accordance prepared in connection with regulations read as follows: with any reasonable and prudent adopted pursuant to Section 4(a) of the measures given by the Service in Act. A notice outlining the Service’s § 17.11 Endangered and threatened wildlife. accordance with section 7 of the Act. reasons for this determination was (3) Normal agricultural and published in the Federal Register on * * * * * silvicultural practices that are carried October 25, 1983 (48 FR 49244). (h) * * *

Species Vertebrate popu- Historic range lation where endan- Status When listed Critical Special Common name Scientific name gered or threatened habitat rules

******* SNAILS

******* Elimia, lacy ...... Elimia crenatella ..... U.S.A. (AL) ...... NA ...... T 651 NA NA 57620 Federal Register / Vol. 63, No. 208 / Wednesday, October 28, 1998 / Rules and Regulations

Species Vertebrate popu- Historic range lation where endan- Status When listed Critical Special Common name Scientific name gered or threatened habitat rules

******* Lioplax, cylindrical ... Lioplax U.S.A. (AL) ...... NA ...... E 651 NA NA cyclostomaformis.

******* Pebblesnail, flat ...... Lepyrium showalteri U.S.A. (AL) ...... NA ...... E 651 NA NA

******* Rocksnail, painted ... Leptoxis taeniata ..... U.S.A. (AL) ...... NA ...... T 651 NA NA

******* Rocksnail, plicate ..... Leptoxis plicata ...... U.S.A. (AL) ...... NA ...... E 651 NA NA

******* Rocksnail, round ...... Leptoxis ampla ...... U.S.A. (AL) ...... NA ...... T 651 NA NA

*******

Dated: October 16, 1998. received documentation that hurricane- The incidental take of these species, Jamie Rappaport Clark, related debris was interfering with TED as a result of shrimp trawling activities, Director, Fish and Wildlife Service. performance in their shrimping grounds have been documented in the Gulf of [FR Doc. 98–28884 Filed 10–27–98; 8:45 am] east of the river. NMFS will monitor the Mexico and along the Atlantic. Under BILLING CODE 4310±55±P situation to ensure there is adequate the ESA and its implementing protection for sea turtles in this area and regulations, taking sea turtles is to determine whether impacts from the prohibited, with exceptions identified DEPARTMENT OF COMMERCE hurricane continue to make TED use in 50 CFR 227.72. Existing sea turtle impracticable. conservation regulations (50 CFR part National Oceanic and Atmospheric DATES: This rule is effective from 227, subpart D) require most shrimp Administration October 23, 1998, through October 31, trawlers operating in the Gulf and 1998, when tow times must be limited Atlantic areas to have a NMFS-approved 50 CFR Parts 217 and 227 to no more than 55 minutes measured TED installed in each net rigged for from the time trawl doors enter the fishing, year round. [I.D. 102098A] water until they are retrieved from the The regulations provide for the use of RIN 0648±AH97 water, and from November 1, 1998, until limited tow times as an alternative to November 23, 1998, when tow times the use of TEDs for vessels with certain Sea Turtle Conservation; Shrimp must be limited to no more than 75 specified characteristics or under Trawling Requirements minutes. Comments on this rule are certain special circumstances. The requested, and must be received by AGENCY: National Marine Fisheries provisions of 50 CFR 227.72 (e)(3)(ii) Service (NMFS), National Oceanic and November 23, 1998. specify that the Assistant Administrator Atmospheric Administration (NOAA), ADDRESSES: Comments on this action for Fisheries, NOAA (Assistant Commerce. should be addressed to the Chief, Administrator), may authorize ACTION: Notification of an exemption Endangered Species Division, Office of ‘‘compliance with tow time restrictions and request for comments. Protected Resources, NMFS, 1315 East- as an alternative to the TED West Highway, Silver Spring, MD requirement, if [he] determines that the SUMMARY: NMFS issues this rule to 20910. presence of algae, seaweed, debris or allow the use of limited tow times by FOR FURTHER INFORMATION CONTACT: other special environmental conditions shrimp trawlers in the inshore waters of Charles A. Oravetz, 813–570–5312, or in a particular area makes trawling with Mississippi and in the inshore waters of Barbara A. Schroeder, 301–713–1401. TED-equipped nets impracticable.’’ The Louisiana, north and east of the SUPPLEMENTARY INFORMATION: provisions of 50 CFR 227.72(e)(3)(i) Mississippi River to its terminus at the specify the maximum tow times that South Pass, as an alternative to the Background may be used when authorized as an requirement to use Turtle Excluder All sea turtles that occur in U.S. alternative to the use of TEDs. The tow Devices (TEDs). This area was affected waters are listed as either endangered or times may be no more than 55 minutes by Hurricane Georges on and about threatened under the Endangered from April 1 through October 31 and no September 27 to 29, 1998. NMFS has Species Act of 1973 (ESA). The Kemp’s more than 75 minutes from November 1 been notified by the Director of the ridley (Lepidochelys kempii), through March 31. NMFS has selected Mississippi Department of Marine leatherback (Dermochelys coriacea), and these tow time limits to minimize the Resources that large amounts of debris hawksbill (Eretmochelys imbricata) are level of mortality of sea turtles that are in Mississippi Sound in the aftermath of listed as endangered. Loggerhead captured by trawl nets that are not the hurricane are causing difficulty with (Caretta caretta) and green (Chelonia equipped with TEDs. the performance of TEDs. NMFS has mydas) turtles are listed as threatened, Recent Events been notified by the Secretary of the except for populations of green turtles Louisiana Department of Wildlife and in Florida and on the Pacific coast of On September 27, Hurricane Georges Fisheries that his department had Mexico, which are listed as endangered. made landfall on the Mississippi coast.