61016 Federal Register / Vol. 67, No. 188 / Friday, September 27, 2002 / Rules and Regulations

§ 178.59 [Amended] the target to the lowest point on the § 180.417 [Amended] 70. Amend § 178.59(j)(3)(iv) by package, must be equal to or greater 85. Amend § 180.417(c)(2), in the removing the wording ‘‘per-minute’’ and than the drop height determined as second sentence, by removing the adding the wording ‘‘per minute’’ in its follows: wording ‘‘Director, Regional Office of place. * * * * * Motor Carrier Safety, Federal Highway Administration’’ and adding the § 178.61 [Amended] § 178.707 [Amended] wording ‘‘Field Administrator, Regional 71. Amend § 178.61 by: 80. Amend § 178.707 by revising Service Center, Federal Motor Carrier a. In paragraph (b)(1), removing the paragraph (a) to read as follows: Safety Administration’’ in its place. wording ‘‘table I’’ and adding the § 178.707 Standards for Composite IBCs. Issued in Washington, DC, on September 3, wording ‘‘table 1’’ in its place. 2002, under authority delegated in 49 CFR b. In paragraph (b)(2), in the fourth (a) The provisions in this section part 1. sentence, removing the phrase apply to composite IBCs intended to Ellen G. Engleman, ‘‘paragraph (f)(1)’’ and adding the contain solids and liquids. To complete Administrator. phrase ‘‘paragraph (f)(4)’’ in its place. the marking codes listed below, the [FR Doc. 02–22817 Filed 9–26–02; 8:45 am] letter ‘‘Z’’ must be replaced by a capital § 178.270–11 [Amended] letter in accordance with § 178.702(a)(2) BILLING CODE 4910–60–P 72. Amend § 178.270–11(d)(3), in the to indicate the material used for the first sentence, by removing the phrase outer packaging. Composite IBC types ‘‘§ 173.32a of this subchapter’’ and are designated: DEPARTMENT OF THE INTERIOR adding ‘‘§ 178.273(b)(7)’’ in its place. (1) 11HZ1 Composite IBCs with a rigid plastic inner receptacle for solids Fish and Wildlife Service § 178.273 [Amended] loaded or discharged by gravity. 73. Amend § 178.273(b)(8)(ii), by (2) 11HZ2 Composite IBCs with a 50 CFR Part 17 removing the phrase ‘‘§ 180.605 of this flexible plastic inner receptacle for subchapter’’ and adding ‘‘§ 178.274(j)’’ solids loaded or discharged by gravity. RIN 1018–AH33 in its place. (3) 21HZ1 Composite IBCs with a Endangered and Threatened Wildlife § 178.338–17 [Amended] rigid plastic inner receptacle for solids and Plants; Designation of Critical loaded or discharged under pressure. Habitat for the Appalachian Elktoe 74. Amend § 178.338–17(b) by (4) 21HZ2 Composite IBCs with a removing the wording ‘‘ASTM Standard flexible plastic inner receptacle for AGENCY: Fish and Wildlife Service, B 580’’ and adding the wording ‘‘ASTM solids loaded or discharged under Interior. Standard B 580 (incorporated by pressure. ACTION: Final rule. reference, see § 171.7 of this (5) 31HZ1 Composite IBCs with a subchapter)’’ in its place. rigid plastic inner receptacle for liquids. SUMMARY: We, the Fish and Wildlife § 178.354–3 [Amended] (6) 31HZ2 Composite IBCs with a Service (Service), are designating critical habitat for the Appalachian 75. Amend § 178.354–3(a) flexible plastic inner receptacle for elktoe (Alasmidonta raveneliana) under introductory text, in the first sentence, liquids. the Endangered Species Act of 1973, as by removing the commas and phrase’’, * * * * * amended (Act). The areas designated as such as a DOT Specification 6C or critical habitat for the Appalachian 17C,’’. PART 179—SPECIFICATIONS FOR TANK CARS elktoe total approximately 231.1 § 178.356–3 [Amended] kilometers (144.3 miles) of various 81. The authority citation for part 179 segments of rivers in North Carolina and 76. Amend § 178.356–3(a), in the continues to read as follows: one river in Tennessee. second sentence, by removing ‘‘776mm’’ Critical habitat identifies specific and adding ‘‘776 mm’’ in its place. Authority: 49 U.S.C. 5101–5127; 49 CFR 1.53. areas that are essential to the § 178.362–1 [Amended] conservation of a listed species and that 82. Amend § 179.201–2, in paragraph may require special management 77. Amend § 178.362–1(b)(6) by 1 (a), by removing ‘‘1 ⁄2’’ and adding considerations or protection. removing the phrase ‘‘2230 kg’’ and 1 (1) ‘‘ ⁄2 ’’ each place it appears in the Section 7(a)(2) of the Act requires that adding the phrase ‘‘2730 kg’’ in its table, in column 2, for the entries ‘‘Over place. each Federal agency shall, in 78 to 96 inches’’ and ‘‘Over 96 to 112 consultation with us, ensure that any § 178.503 [Amended] inches’’. action authorized, funded, or carried out 78. Amend § 178.503(e)(3), following § 179.500–10 [Amended] by such agency is not likely to the illustration, by removing the 83. Amend § 179.500–10(a), in the jeopardize the continued existence of an parenthetical expression ‘‘(as in first sentence by removing the word endangered or threatened species or § 178.503(c)(1), (2), (3), (4), and (5))’’ ‘‘injury’’ and adding the word ‘‘damage’’ result in the destruction or adverse and adding the parenthetical expression in its place. modification of critical habitat. Section ‘‘(as in § 178.503(c)(1))’’ in its place. 4 of the Act requires us to consider economic and other impacts of 79. Amend § 178.603 by revising the PART 180—CONTINUING specifying any area as critical habitat. introductory text to paragraph (e) to QUALIFICATION AND MAINTENANCE We solicited data and comments from read as follows: OF PACKAGINGS the public on all aspects of the proposal, § 178.603 Drop test. 84. The authority citation for part 180 including data on economic and other * * * * * continues to read as follows: impacts of the designation. (e) Drop height. Drop heights, Authority: 49 U.S.C. 5101–5127; 49 CFR DATES: This rule is effective on October measured as the vertical distance from 1.53. 28, 2002.

VerDate Sep<04>2002 16:57 Sep 26, 2002 Jkt 197001 PO 00000 Frm 00164 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 Federal Register / Vol. 67, No. 188 / Friday, September 27, 2002 / Rules and Regulations 61017

ADDRESSES: Comments and materials Nolichucky River system in North 2000), and one shell (S. Fraley, received, as well as supporting Carolina and Tennessee. In the Little Tennessee Valley Authority, Norris, TN, documentation used in preparation of Tennessee River system in North pers. comm. 1999) have been recorded this final rule, are available for public Carolina, populations survive in the from the South Toe River, Yancey inspection, by appointment, during reach of the main stem of the Little County, NC. The majority of the normal business hours at the Asheville Tennessee River, between the city of surviving occurrences of the Field Office, U.S. Fish and Wildlife Franklin and Fontana Reservoir, in Appalachian elktoe appear to be small Service, 160 Zillicoa Street, Asheville, Swain and Macon Counties (Service to extremely small and restricted to NC 28801. 1994, 1996; McGrath 1999; Fridell, pers. scattered pockets of suitable habitat. FOR FURTHER INFORMATION CONTACT: John observation, 2002), and in scattered Historically, the species has been Fridell, Fish and Wildlife Biologist, reaches of the main stem of the recorded from Tulula Creek (Tennessee Asheville Field Office (see ADDRESSES) Tuckasegee River in Jackson and Swain River drainage), the main stem of the (telephone 828/258–3939, extension Counties, from below the town of French Broad River, and the Swannanoa 225; facsimile 828/258–5330). Cullowhee downstream to Bryson City River (French Broad River system) (M. Cantrell, Service, pers. comm. 1996; (Clarke 1981), but it has apparently been SUPPLEMENTARY INFORMATION: Fridell, pers. observation 1996, 1997; eliminated from these streams (Service Background McGrath 1998; T. Savidge, North 1994, 1996). There is also a historical Carolina Department of Transportation record of the Appalachian elktoe from The Appalachian elktoe (Alasmidonta (NCDOT), pers. comm. 2001). The the North Fork Holston River in raveneliana) is a freshwater mussel that species was recently discovered (in Tennessee (S.S. Haldeman collection); has a thin, kidney-shaped shell, 2000) in the Cheoah River, below however, this record is believed to reaching up to about 10 centimeters (4 Santeetlah Lake, in Graham County (W. represent a mislabeled locality (Gordon inches) (J.A. Fridell, Service, pers. Pennington, Pennington and Associates, 1991). If the historical record for the observation 1999). Juveniles generally Inc., Knoxville, Tennessee, pers. comm. species in the North Fork Holston River have a yellowish-brown periostracum 2000). On August 7, 2002, biologists was a good record, the species has (outer shell surface), while the with the NCDOT, U.S. Forest Service, apparently been eliminated from this periostracum of the adults is usually and the Service recorded eleven live river as well. dark brown to greenish-black in color. individuals and four shells from the The Appalachian elktoe has been Although rays are prominent on some Cheoah River below Santeetlah Dam, reported from relatively shallow, shells, particularly in the posterior during a survey of portions of the river medium-sized creeks and rivers with portion of the shell, many individuals (Fridell, pers. observation 2002). cool, clean, well-oxygenated, moderate- have only obscure greenish rays. The In the Pigeon River system in North to fast-flowing water. The species is shell nacre (inside shell surface) is Carolina, a small population of the most often found in riffles, runs, and shiny, often white to bluish-white, Appalachian elktoe occurs in small, shallow flowing pools with stable, changing to a salmon, pinkish, or scattered sites in the West Fork Pigeon relatively silt-free, coarse sand and brownish color in the central and beak River and in the main stem of the gravel substrate associated with cobble, cavity portions of the shell; some Pigeon River, above Canton, in boulders, and/or bedrock (Gordon 1991; specimens may be marked with Haywood County (Fridell, pers. Service 1994 and 1996; J.M. Alderman, irregular brownish blotches (adapted observation 1999; McGrath 1999). The NCWRC, pers. comm. 2000; McGrath, from Clarke 1981). Clarke (1981) Little River (upper French Broad River pers. comm. 2000; Savidge, pers. comm. provides a detailed description of the system) population of the species, in 2000; Fridell, pers. observation 1989 species’ shell, with illustrations; Transylvania County, NC, is restricted through 2002). Stability of the substrate Ortmann (1921) discussed soft parts. to small, scattered pockets of suitable appears to be critical to the Appalachian Distribution, Habitat, and Life History habitat downstream of Cascade Lake elktoe, and the species is seldom found (Fridell, pers. observation 2000; C. in stream reaches with accumulations of The Appalachian elktoe is known McGrath, North Carolina Wildlife silt or shifting sand, gravel, or cobble only from the mountain streams of Resources Commission (NCWRC), pers. (Fridell, pers. observation 1989 through western North Carolina and eastern comm. 2000). 2001). Individual specimens that have Tennessee. Although the complete In the Nolichucky River system, the been encountered in these areas are historical range of the Appalachian Appalachian elktoe survives in a few believed to have been scoured out of elktoe is unknown, available scattered areas of suitable habitat in the upstream areas during periods of heavy information suggests that the species Toe River, Yancey and Mitchell rain and have not been found on once lived in the majority of the rivers Counties, NC (Service 1994, 1996; subsequent surveys (McGrath, pers. and larger creeks of the upper McGrath 1996, 1999); Cane River, comm. 1996; Fridell, pers. observation Tennessee River system in North Yancey County, NC (Service 1994, 1996; 1995, 1996, 1999). Carolina, with the possible exception of McGrath 1997); and the main stem of Like other freshwater mussels, the the Hiwassee and Watauga River the Nolichucky River, Yancey and Appalachian elktoe feeds by filtering systems (the species has not been Mitchell Counties, NC, extending food particles from the water column. recorded from either of these river downstream to the vicinity of Erwin in The specific food habits of the species systems). In Tennessee, the species is Unicoi County, TN (Service 1994, 1996; are unknown, but other freshwater known only from its present range in Fridell, pers. observation 1998; S. mussels have been documented to feed the main stem of the Nolichucky River. Ahlstedt, U.S. Geological Survey, pers. on detritus (decaying organic matter), Currently, the Appalachian elktoe has comm. 2002). Two individuals have diatoms (various minute algae) and a very fragmented, relict distribution. been found recently in the North Toe other algae and phytoplankton The species still survives in scattered River, Yancey and Mitchell Counties, (microscopic floating aquatic plants), pockets of suitable habitat in portions of NC, below the confluence of Crabtree and zooplankton (microscopic floating the Little Tennessee River system, Creek (McGrath 1999), and 15 live aquatic animals). The reproductive Pigeon River system, and the Little individuals, with no more than 2 to 3 cycle of the Appalachian elktoe is River in North Carolina and the at each site (Fridell, pers. observation similar to that of other native freshwater

VerDate Sep<04>2002 16:57 Sep 26, 2002 Jkt 197001 PO 00000 Frm 00165 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 61018 Federal Register / Vol. 67, No. 188 / Friday, September 27, 2002 / Rules and Regulations

mussels. Males release sperm into the Reasons for Decline and Threats to silt loads that can have severe effects on water column, and the sperm are then Surviving Populations mussels and other aquatic organisms. taken in by the females through their Available information indicates that Siltation has been documented to siphons during feeding and respiration. several factors have contributed to the adversely affect native freshwater The females retain the fertilized eggs in decline and loss of populations of the mussels both directly and indirectly their gills until the larvae (glochidia) Appalachian elktoe and threaten the (Ellis 1936, Marking and Bills 1979, Kat fully develop. The mussel glochidia are remaining populations. These factors 1982, Aldridge et al. 1987). Siltation released into the water, and within a include pollutants in wastewater degrades water and substrate quality, few days they must attach to the discharges (sewage treatment plants and limiting the available habitat for appropriate species of fish, which they industrial discharges); habitat loss and freshwater mussels (and their fish then parasitize for a short time while alteration associated with hosts), thereby limiting their they develop into juvenile mussels. impoundments, channelization, and distribution and potential for expansion They then detach from their fish host dredging operations and the run-off of and maintenance of their populations; and sink to the stream bottom where silt, fertilizers, pesticides, and other irritates and clogs the gills of filter- they continue to develop, provided they pollutants from land disturbance feeding mussels, resulting in reduced land in a suitable substrate with the activities implemented without feeding and respiration; smothers correct water conditions. adequate measures to control erosion mussels if sufficient accumulation Personnel with the Tennessee and/or storm water (Service 1994, 1996). occurs; and increases the potential Technological University at Cookeville, Mussels are known to be sensitive to exposure of the mussels to other TN, identified the banded sculpin numerous pollutants, including, but not pollutants. Ellis (1936) found that less (Cottus carolinae) as a host species for limited to, a wide variety of heavy than 2.5 centimeters (1 inch) of glochidia of the Appalachian elktoe (M. metals, high concentrations of nutrients, sediment deposition caused high Gordon, Tennessee Technological ammonia, and chlorine—pollutants mortality in most mussel species. University, pers. comm. 1993). The U.S. commonly found in many domestic and Sediment accumulations that are less Environmental Protection Agency’s industrial effluents (Havlik and Marking than lethal to adults may adversely (EPA) Science and Ecosystem Support 1987). In the early 1900s, Ortmann affect or prevent the recruitment of Division’s Aquatic Lab in Athens, (1909) noted that the disappearance of juvenile mussels into the population. Georgia, also documented the mottled unionids (mussels) is the first and most Also, sediment loading in rivers and sculpin (C. bairdi), a species more reliable indicator of stream pollution. streams during periods of high common within the majority of the Keller and Zam (1991) concluded that discharge is abrasive to mussel shells. range of the Appalachian elktoe than the mussels are more sensitive to metals Erosion of the outer shell allows acids banded sculpin, as a suitable host for than commonly tested fish and aquatic to reach and corrode underlying layers the Appalachian elktoe (A. Keller, EPA, insects. The life cycle of native mussels that are composed primarily of calcium, Athens, Georgia, pers. comm. 1999). The makes the reproductive stages especially which dissolves under acid conditions general habitat requirements of the vulnerable to pesticides and other (Harman 1974). mottled sculpin are very similar to those pollutants (Ingram 1957, Stein 1971, The effects of impoundments on of the Appalachian elktoe and are Fuller 1974, Gardner et al. 1976). mussels are also well documented. For described by several authors (Lee et al. Effluent from sewage treatment facilities the most part, lakes do not occur 1980, Etnier and Starnes 1993, Rohde et can be a significant source of pollution naturally in western North Carolina and al. 1994, Jenkins and Burkhead 1994) as that can severely affect the diversity and eastern Tennessee (most lakes in riffles, runs, and flowing portions of abundance of aquatic mollusks. The western North Carolina and eastern pools with gravel and rocky substrata in toxicity of chlorinated sewage effluents Tennessee are man-made), and the cool, clean, well-oxygenated, moderate- to aquatic life is well documented Appalachian elktoe, like the majority of to fast-gradient streams. The banded (Brungs 1976, Tsai 1975, Bellanca and our other native mussels, fish, and other sculpin has similar habitat requirements Bailey 1977, EPA 1985, Goudreau et al. aquatic species in these areas, is but is considered to be more tolerant of 1988), and mussel glochidia (larvae) adapted to stream conditions (flowing, warmer stream temperatures than the rank among the most sensitive highly oxygenated water and coarse mottled sculpin (Lee et al. 1980, Etnier invertebrates in their tolerance to sand and gravel bottoms). Dams change and Starnes 1993, Rohde et al. 1994, toxicants present in sewage effluents the habitat from flowing to still water. Jenkins and Burkhead 1994). Where the (Goudreau et al. 1988). Goudreau et al. Water depth increases, flow decreases, distribution of the two species overlap (1988) found that the recovery of mussel and silt accumulates on the bottom in streams supporting the Appalachian populations may not occur for up to 3.2 (Williams et al. 1992), altering the elktoe, the mottled sculpin is typically kilometers (km) (2 miles (mi)) below the quality and stability of the remaining the most abundant, with the banded discharge points of chlorinated sewage stream reaches by affecting water flow sculpin being generally more common effluent. regimes, velocities, temperature, and in the downstream reaches of the Land-clearing and disturbance chemistry. Dams that operate by streams, below the Appalachian elktoe activities carried out without proper releasing cold water from near the occurrences. Of the two sculpin species, sedimentation and storm-water control bottom of the reservoirs lower the water it is the mottled sculpin that most pose a significant threat to the temperature downstream, changing likely/most commonly serves as the host Appalachian elktoe and other downstream reaches from warm-or cool- species for the Appalachian elktoe. freshwater mussels. Mussels are water streams to cold-water streams and Additional studies are needed to sedentary and are not able to move long affecting their suitability for many of the determine if any other native fish distances to more suitable areas in native species historically inhabiting species may also serve as hosts for the response to heavy silt loads. Natural these stream reaches (Miller et al. 1984, glochidia of the Appalachian elktoe. sedimentation resulting from seasonal Layzer et al. 1993). The effects of The life span and many other aspects of storm events probably does not impoundments result in changes in fish the Appalachian elktoe’s life history are significantly affect mussels, but human communities (fish host species may be currently unknown. activities often create excessively heavy eliminated) (Brimm 1991), and in

VerDate Sep<04>2002 16:57 Sep 26, 2002 Jkt 197001 PO 00000 Frm 00166 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 Federal Register / Vol. 67, No. 188 / Friday, September 27, 2002 / Rules and Regulations 61019

mussel communities (species requiring that time, category 2 was defined as September 22, 1993; Yancey Common clean gravel and sand substrates are including species for which we had Times Journal, Burnsville, NC, eliminated) (Bates 1962). In addition, some information indicating that the September 22, 1993; Smoky Mountain dams result in the fragmentation and taxa may be under threat, but not Times, Bryson City, NC, September 23, isolation of populations of species and enough information was available to 1993; and Franklin Press, Inc., Franklin, act as effective barriers to the natural determine if they warranted Federal NC, September 24, 1993. upstream and downstream expansion or listing and the preparation of a We received four comments in recruitment of mussel and fish species. proposed rule. Subsequently, surveys of response to the proposed rule, one The information available historical and potential Appalachian supporting the listing and three demonstrates that habitat deterioration elktoe habitat were conducted, revealing requesting a public hearing. On January resulting from sedimentation and that the species had undergone a 21, 1994, we published a notice pollution from numerous point and significant decline throughout its announcing the public hearing and the nonpoint sources, when combined with historical range and that the remaining reopening of the comment period the effects of other factors (including occurrences were threatened by many of through February 21, 1994, to ensure habitat destruction, alteration, and the same factors that are believed to that all interested parties had ample fragmentation resulting from have resulted in this decline. time to provide information on the impoundments, channelization projects, Accordingly, on June 10, 1992, we proposed rule (59 FR 3326). On etc.), has played a significant role in the reclassified the Appalachian elktoe as a February 8, 1994, we held a public decline of the Appalachian elktoe. We category 1 candidate. At that time, hearing at the Mitchell High School in believe this is particularly true of the category 1 candidates were those Bakersville, NC. We received 20 verbal extirpation of the Appalachian elktoe species for which we had adequate statements and written comments from the Swannanoa and French Broad information on biological vulnerability during the public hearing; 14 of them Rivers and portions of the Pigeon, upper and threats to support proposals to list expressed opposition to the listing of Little River, and upper Little Tennessee them as endangered or threatened the Appalachian elktoe, 5 expressed River systems. We believe these factors species. On April 20, 1992, and again on support for the listing, and 1 expressed also have contributed to the extirpation August 21, 1992, we notified an interest but offered neither support of the species from parts of the upper appropriate Federal, State, and local nor opposition. We received 40 Tuckasegee River, Cheoah River, and governmental agencies that we were additional written comments during the Tulula Creek, though the effects of gathering information on the reopened comment period; 8 opposed impoundments are believed to have Appalachian elktoe and that the species the listing, 31 supported the listing, and played an even more significant role in might be proposed for Federal listing. 1 expressed neither opposition nor the loss of the species in the upper We received a total of six written support. Following our review of all the reaches of these streams. comments in response to these two The most immediate threats to the comments and information received notices. The NCWRC (two written remaining populations of the throughout the listing process, we comments), the North Carolina Natural Appalachian elktoe are associated with incorporated appropriate changes and Heritage Program (two written sedimentation and other pollutants (i.e., on November 23, 1994, we published a comments), and an interested biologist fertilizers, pesticides, heavy metals, oil, final rule listing the Appalachian elktoe expressed their support for the species’ salts, organic wastes, etc.) from as endangered (59 FR 60324). That being proposed for protection under the nonpoint sources. Much of the decision included our determination Act. The Natural Resources Nolichucky River in North Carolina that the designation of critical habitat Conservation Service stated that they contains heavy loads of sediment, was not prudent for the Appalachian primarily from past land disturbance did not have any additional information elktoe because, after a review of all the activities within its watershed, and on this species. available information, we determined suitable habitat for the Appalachian On September 3, 1993, we published that such designation would not be elktoe appears to be very limited in this a proposed rule to list the Appalachian beneficial to the species. river system. The species has not been elktoe as an endangered species (58 FR On June 30, 1999, the Southern found in the Nolichucky River system in 46940). The proposed rule provided Appalachian Biodiversity Project and substrates with accumulations of silt information on the species’ biology, the Foundation for Global Sustainability and shifting sand; it is restricted to status, and threats to its continued filed a lawsuit in the United States small, scattered pockets of stable, existence and included our proposed District Court for the District of relatively clean, and gravelly substrates. determination that the designation of Columbia against the Service, the The same is true of the other surviving critical habitat was not prudent for the Director of the Service, and the populations of the species. Appalachian elktoe. We solicited Secretary of the Interior challenging the comments and suggestions concerning Service’s ‘‘not prudent’’ critical habitat Previous Federal Actions the proposed rule from the public, determinations for four species in North In the May 22, 1984, Animal Notice concerned governmental agencies, the Carolina—the Appalachian elktoe of Review published in the Federal scientific community, industry, and (Alasmidonta raveneliana), Carolina Register (49 FR 21675) and again in the other interested parties. We requested heelsplitter (Lasmigona decorata), January 6, 1989, Animal Notice of comments from appropriate Federal and spruce-fir moss spider (Microhexura Review (54 FR 579), we recognized the State agencies, county governments, montivaga), and rock gnome lichen Appalachian elktoe as a species under scientific organizations, and interested (Gymnoderma lineare). On February 29, review for potential addition to the parties by letters dated September 14, 2000, the U.S. Department of Justice Federal List of Endangered and 1993, and January 27, 1994. We entered into a settlement agreement Threatened Wildlife and Plants. In those published a legal notice, which invited with the plaintiffs in which we agreed notices, we designated the Appalachian general public comment, in the to reexamine our prudency elktoe as a category 2 candidate for following newspapers—Erwin Record, determination and, if appropriate, Federal listing. We no longer maintain Erwin, TN, September 22, 1993; submit to the Federal Register, by a list of category 2 candidate species. At Mitchell News Journal, Spruce Pine, NC, February 1, 2001, a withdrawal of the

VerDate Sep<04>2002 16:57 Sep 26, 2002 Jkt 197001 PO 00000 Frm 00167 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 61020 Federal Register / Vol. 67, No. 188 / Friday, September 27, 2002 / Rules and Regulations

existing not prudent determination for Appalachian elktoe. Pursuant to this general area, with Federal involvement, the Appalachian elktoe, together with a agreement, our deadline for submitting that have required or are likely to new proposed critical habitat the final determination concerning the require consultation under section 7 of determination. We agreed further that if designation of critical habitat for the the Act. we determined that the designation of Appalachian elktoe to the Federal Summary of Comments and critical habitat would be prudent for the Register was extended to July 6, 2002. Recommendations Appalachian elktoe, we would send a However, because we were unable to final rule of this finding to the Federal spend fiscal year 2001 funding on the We received 26 oral comments at the Register by November 1, 2001. required draft economic analysis of the two public hearings and a total of 78 On February 8, 2001, we published a potential effects of the designation of written comments during the two prudency determination and a proposed critical habitat for the Appalachian comment periods-49 during the initial designation of critical habitat for the elktoe and approval for spending fiscal comment period and 29 during the Appalachian elktoe (66 FR 9540). This year 2002 appropriated funds for listing reopened comment period. Of the proposed rule included maps and a was not received until mid-November responses/comments received, 71 description of all areas under 2001, the development of the draft supported the designation of critical consideration for designation as critical economic analysis was delayed. We habitat for the Appalachian elktoe, 25 habitat for the species. By letter of then filed a motion in the District Court expressed opposition to the designation, February 9, 2001, we also notified pursuant to our settlement agreement, and 8 expressed neither support nor appropriate Federal and State agencies, requesting an extension to complete the opposition but requested or provided local governments, scientific final designation. On April 15, 2002, the additional information. Comments were organizations, individuals District Court granted us an extension received from The Eastern Band of knowledgeable about the species, and until September 20, 2002, to finalize the Cherokee Indians, 1 congressional other interested parties about the critical habitat designation for the representative from Georgia, 1 Federal proposal and requested their comments. Appalachian elktoe. agency, 1 State agency, 3 elected county A legal notice that announced the On May 16, 2002, we published a officials, 9 private organizations or availability of the proposed rule and notice in the Federal Register (67 FR businesses, and 62 private individuals. invited public comment was published 34893) announcing the availability of a Several of the respondents provided in the following newspapers—Erwin draft economic analysis for the comments during the initial comment Record, Erwin, TN; Franklin Press, Inc., proposed designation of critical habitat period on the proposed rule and Franklin, NC; Graham Star, for the Appalachian elktoe; announcing additional comments on the draft Robbinsville, NC; Mitchell News the purpose, time, and location of economic analysis and/or proposed rule Journal, Spruce Pine, NC; Mountaineer, public hearings requested during the during the reopened comment period. Waynesville, NC; Smoky Mountain initial comment period on the proposed Some respondents provided both oral Times, Bryson City, NC; Transylvania rule; and announcing the reopening of comments (during one or both of the Times, Brevard, NC; and Yancey the formal comment period on the public hearings) and written comments. Common Times Journal, Burnsville, NC. proposed rule from May 16, 2002, to We also contacted, by phone and At the request of the Transylvania July 1, 2002. We notified appropriate letters dated February 26, 2001, four County (NC) Board of Commissioners, agencies, governmental officials, experts in the field of malacology we attended a Board of Commissioners institutions, and other interested (native freshwater mussel biology and public meeting on March 26, 2001, in parties, by letters dated May 6, 2002, of ecology) and requested that they serve Brevard, NC, where we gave a the reopening of the comment period, as peer reviewers of the proposal to presentation on the proposed availability of the draft economic designate critical habitat for the designation of critical habitat for the analysis, and the public hearings. In Appalachian elktoe. However, none of Appalachian elktoe and responded to addition, we published legal notices in the four submitted comments on the questions concerning the proposal from the newspapers listed above announcing proposal. the commissioners and the public in the reopening of the comment period, We reviewed all comments received attendance. the public hearings, and the availability for substantive issues and any new In the proposed rule and associated of the draft economic analysis and information regarding the Appalachian notifications, all interested parties were inviting public participation and elktoe. Similar comments were grouped requested to submit factual reports or comments. into issues relating specifically to the information by April 9, 2001, that might In response to the requests for public proposed critical habitat determination contribute to our determination and the hearings, we held two hearings, the first and the draft economic analysis with development of a final rule. In response on June 4, 2002, in Erwin, TN, and the regard to the proposed determination. to the proposed rule, we received 49 second on June 6, 2002, in Bryson City, These issues and our response to each written comments, including two NC. Twenty-three individuals presented are presented below. requests for public hearings. oral comments at the two hearings Issue 1: One respondent pointed out On August 29, 2001, we entered into (three of these individuals provided that while the proposed rule states that an agreement (referred to as the ‘‘mini- comments at both hearings), and we the available information suggests that global’’ agreement) with the plaintiffs received 28 written comments during the Appalachian elktoe once lived in the from the June 30, 1999, lawsuit that the reopened comment period. In majority of the rivers and larger creeks allowed us to reallocate funding to addition, at the request of the Yancey of the upper Tennessee River system in complete listing decisions on 14 County (NC) Manager, we attended a North Carolina, the species has not been species, proceed with proposed listing public meeting of the Yancey County recorded in the Watauga or Hiwassee decisions on 8 species, take action on 4 Board of Commissioners on June 11, Rivers. listing petitions, and extend the 2002, where we gave a presentation Response: The respondent is correct, deadline on 8 critical habitat about the proposed designation of and we have mentioned these two river designations, including the final critical habitat for the Appalachian systems in this rule as possible determination concerning the elktoe and an overview of past and exceptions to the historical range of the designation of critical habitat for the potential future activities within the Appalachian elktoe.

VerDate Sep<04>2002 16:57 Sep 26, 2002 Jkt 197001 PO 00000 Frm 00168 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 Federal Register / Vol. 67, No. 188 / Friday, September 27, 2002 / Rules and Regulations 61021

Issue 2: One respondent concerning the factors that are believed Specifically, the latter respondent stated recommended that, because of the to have contributed to the decline of the that there is little or no available critical role of fish hosts in the mussel’s species throughout its range and that quantifiable data on the species’ habitat life cycle, the final rule should include threaten the surviving occurrences. requirements, such as ‘‘stream order, a discussion about the habitat and The available information hydrology, water depth, water velocity, ecological requirements of the mottled demonstrates that the decline of the substrate preferences, and water sculpin. The same respondent suggested Appalachian elktoe throughout its range temperature and chemistry.’’ This that other more motile fish species may can be attributed to several factors, respondent stated the Service’s serve as hosts for the glochidia of the including siltation resulting from past determination of critical habitat appears Appalachian elktoe and may have some logging, mining, agricultural, and to rely solely on observations of general effect on which areas should be construction activities; the run-off and habitat conditions in streams where the considered critical habitat. discharge of organic and inorganic Appalachian elktoe has been found. Response: We agree with the pollutants from industrial, municipal, Response: The Act requires us to base respondent’s first recommendation and agricultural, and other point and our critical habitat designations on the have included a brief discussion of the nonpoint sources; habitat alterations best scientific information available. habitat requirements of the mottled associated with impoundments, While there is still much that we do not sculpin and banded sculpin in the channelization, and dredging; and other know or understand about the habitat ‘‘Background’’ section of this rule. natural and human-related factors that requirements of the Appalachian elktoe However, while we also agree that it is adversely modify the aquatic (in particular, the species’ microhabitat possible that other fish species may also environment. It is true that there have requirements), the primary constituent serve as hosts for the glochidia of the been significant improvements in both elements, as they are identified in the Appalachian elktoe, additional research water and substrate (stream bottom) rule, are based on descriptions of the is needed to determine this. The two quality in portions of the Nolichucky species’ habitat provided by biologists studies that have been conducted (see River system and other river systems with the Service, NCWRC, NCDOT, and the ‘‘Background’’ section above) have supporting the species as a result of the Tennessee Technological University identified only the two sculpin implementation of Federal and State who have been involved in conducting species—the mottled sculpin and the regulations for controlling sediment and surveys and monitoring populations of banded sculpin—as suitable hosts for other pollutants and an increased the species; they represent the best the Appalachian elktoe. The areas we awareness and/or interest in, and are designating as critical habitat voluntary implementation of, information on the habitat requirements constitute our best assessment of the conservation measures. Many of the of the species currently available to us. areas needed for the conservation of the industries, landowners, builders, etc., in They are not observations of the general Appalachian elktoe based on the best the watersheds of these rivers are to be habitat conditions within the streams scientific information currently commended for implementing measures where the Appalachian elktoe occurs; available to us. These areas contain the for controlling the run-off of sediment rather, they represent a description of habitat elements essential to the life and other pollutants into the rivers and the habitat conditions present at the cycle needs of the Appalachian elktoe, their tributaries. The status of the sites within these streams where the as they are currently known, including Appalachian elktoe population in the Appalachian elktoe occurs as compared habitat for the species’ fish hosts, as Nolichucky River system appears to be to the other sites and/or reaches of these they are known. To the extent feasible, in the process of recovering as a result streams where the species is not found. we will continue, with the assistance of of these improvements, and the species While we will continue (with the other Federal, State, and private appears to be in the process of assistance of other Federal, State, and researchers, to conduct research on the recolonizing portions of these rivers. private researchers) to conduct studies life cycle needs of the species. Should However, the population in the of the species and its habitat new information become available Nolichucky River system is still very requirements, we do not believe it is indicating that other areas are essential small and scattered. Despite intensive likely that more specific information on to the conservation of the Appalachian surveys by biologists with the Service, the species’ habitat requirements would elktoe, we may revise the designated NCWRC, NCDOT, and Tennessee Valley result in a change to the stream reaches critical habitat accordingly in a Authority, no more than one to three designated as critical habitat for the subsequent rule. specimens of the Appalachian elktoe Appalachian elktoe. The continued Issue 3: Two respondents have been found at most of the sites presence of the Appalachian elktoe in recommended that the final rule would where it presently occurs in the Toe, these streams indicates the presence of be more informative if it described the Cane, North Toe, and South Toe Rivers. the habitat requirements for the species, specific impacts in the streams and Also, while there have been though we may currently understand stream reaches where the Appalachian improvements, activities are still these requirements only in relatively elktoe is believed to have been occurring within the Nolichucky River general terms. Rather, more specific adversely affected or has been watershed that continue to adversely information would allow us to better extirpated. Another respondent affect the quality of portions of these assess potential effects to the species requested information about what has rivers, and other activities are proposed and its habitat and to better identify and caused the decline in Appalachian that have the potential to adversely implement recovery and management elktoe populations and why, if water affect them. activities for the species within these quality has improved in the Nolichucky Issue 4: One respondent requested stream reaches. However, if new River system, the Appalachian elktoe more specific information on the habitat information becomes available populations have declined. requirements of the species and another indicating that other areas are essential Response: We have included some respondent stated that the Service lacks to the conservation of the Appalachian additional information in the the fundamental scientific qualifications elktoe, we may revise the designated ‘‘Background’’ section of this rule (see necessary to determine Appalachian critical habitat accordingly through a ‘‘Reasons for Decline and Threats to elktoe habitat requirements and to subsequent rulemaking. Similarly, if Surviving Populations’’ section) specify ‘‘critical habitat’’ for the species. new information indicates any of the

VerDate Sep<04>2002 16:57 Sep 26, 2002 Jkt 197001 PO 00000 Frm 00169 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 61022 Federal Register / Vol. 67, No. 188 / Friday, September 27, 2002 / Rules and Regulations

areas we have designated should not be deposited by storm flows (McGrath, Cheoah River have reached or exceeded included in the critical habitat pers. comm. 1996; Fridell, pers. that volume of stream flow on at least designation because they no longer meet observation 1995, 1996, 1999). Within 6 days. Accordingly, while it is true that the definition of critical habitat and do the areas we are designating as critical the construction and operation of the not provide the habitat elements habitat, the sites that support the Santeetlah Dam on the Cheoah River essential to the life-cycle needs of the majority, and healthiest, of the have had a significant effect on both the species, we may, through a subsequent occurrences of the species provide all of high and low flows in the Cheoah River rulemaking, revise the critical habitat the primary constituent elements, downstream of the dam, we believe the designation to omit these areas. though at some sites (especially those reach of the Cheoah River that we are Issue 5: One respondent stated that sites and stream reaches supporting the designating as critical habitat for the the Act defines critical habitat as ‘‘(i) the lowest numbers of individuals) one or Appalachian elktoe does provide the specific areas within the geographical more of the constituent elements, primary constituent elements, including area occupied by the species, at the time though present, appear to be limited or items 1, 3, and 6 (see ‘‘Primary it is listed * * * and (ii) specific areas of marginal quality and may require Constituent Elements’’ section below); outside the geographical area occupied additional management and however, one or more of the constituent by the species at the time it is listed enhancement for full recovery of the elements, though currently present, may ***’’ The respondent further stated species. At the sites in the streams be limited or of marginal quality and that the Service has insufficient within the Nolichucky River system, as may require enhancement for full information to make a finding that the well as elsewhere in the stream reaches recovery of the species. Appalachian elktoe in fact occupied that we are designating as critical Issue 7: We received several Unit 3, the Cheoah River below habitat, the Appalachian elktoe is found comments requesting that additional Santeetlah Dam in Graham County, NC, consistently, with the few exceptions streams and/or stream reaches be at the time it was listed. mentioned above, in stable substrates included in the critical habitat Response: While it is true that we (most often comprised of sand and designation for the Appalachian elktoe. were unaware of the Appalachian gravel interspersed in areas of cobble, Specifically, we received requests to elktoe’s occurrence in the Cheoah River boulders, or exposed bedrock) along include in the critical habitat when the species was listed on reaches with overall stable, well- designation the main stem of the November 23, 1994 (FR 59 60324), the vegetated stream banks. Nolichucky River in Washington and subsequent discovery of the species in Greene Counties, TN, and the main stem the Cheoah River (Pennington, pers. Concerning the questions raised about and tributaries of the French Broad comm. 2000) and the fact that the the conditions in the Cheoah River, the River, Swannanoa River, Tulula Creek, species is documented to have habitat conditions within the reach of and the remainder of the Pigeon River historically occurred in Tulula Creek the river that is being designated as in North Carolina. Four of these (Clarke 1981), a tributary to the upper critical habitat have been characterized respondents stated that the designation Cheoah River, indicates that the as riffle, run, and pool habitat in varying of critical habitat should connect occurrence of the Appalachian elktoe in sequences, with interspersed ledge/step populations. the Cheoah River is a natural occurrence habitat in some reaches (Normandeau Response: Connecting the surviving of the species that existed both Associates Inc. 2001). Flow within the populations of the Appalachian elktoe is historically and at the time of listing. designated reach of the Cheoah River is not feasible because all of the surviving Issue 6: One respondent stated that maintained by leakage—2 cubic feet per populations are separated from one the conditions in the Nolichucky River second (cfs)—from Santeetlah Dam another by major impoundments. All of system seem to vary considerably from (Normandeau Associates Inc. 1999) and the additional areas that we have been the primary constituent element items 2 by flows from numerous tributary requested to include in the critical (geomorphically stable stream channels streams, including Cochran, Rock, habitat designation for the Appalachian and banks) and 4 (sand, gravel, cobble, Yellow, Deep, Barker, and Bear Creeks elktoe are, based on the most recent boulder, and bedrock substrates with no and several unnamed tributaries. Data survey data, currently unoccupied by more than low amounts of fine from the U.S. Geological Survey (USGS) the species and do not appear to provide sediment) in the list of primary gage (#0351706800) located on the river suitable habitat for the elktoe. In constituent elements in the proposed near Bear Pen Gap, approximately 1.7 accordance with the definition of rule and that conditions in the Cheoah miles upstream the river’s confluence critical habitat (see ‘‘Critical Habitat’’ River may not agree with items 1 with the Little Tennessee River, show section below), we can only designate (permanent flowing, cool, clean water), that the subject reach of the Cheoah unoccupied habitat of the species if, 3 (pool, riffle, and run sequences within River has maintained a continuous flow based on the best available information, the channel), and 6 (periodic natural during the period of record (October it is determined that such areas are flooding). 1999 through October 2001), with the essential to the conservation of the Response: Stream conditions lowest recorded daily flow of 8.8 cfs and species. throughout the Nolichucky River system the maximum recorded flow of 1,280 cfs The recovery plan for the do vary and where all of the constituent (lowest daily mean flow of 9.1 cfs; Appalachian elktoe (Service 1996) states elements do not exist, the Appalachian maximum daily mean flow of 612 cfs; that the species will be considered for elktoe is rarely found, though there have mean annual flow of 55.8 cfs) (USGS delisting (recovered) when a total of six been rare instances in both the Toe 2002). Bank-full flow/discharge (bank- distinct, viable populations of the (Nolichucky River system) and Little full stage is the point or elevation on the species exist within the species’ Tennessee Rivers that single individual bank where flooding begins and historical range (with at least one each specimens of the elktoe have been corresponds to the flow at which in the Little Tennessee, French Broad, observed in unstable, sifting sand channel maintenance is most effective) and Nolichucky River systems) that substrates. However, these individuals on the subject reach of the Cheoah River meet the criteria outlined in the plan. were not found during subsequent is estimated at 838 cfs, and from There are currently six known surviving surveys and were believed to be October 1999 through July 15, 2002 populations of the Appalachian elktoe— individuals that had been displaced and (USGS 2002), discharges gaged on the the Nolichucky River system

VerDate Sep<04>2002 16:57 Sep 26, 2002 Jkt 197001 PO 00000 Frm 00170 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 Federal Register / Vol. 67, No. 188 / Friday, September 27, 2002 / Rules and Regulations 61023

population, Little River population, regulatory protection only under section delegate to the States the authority to West Fork Pigeon River/Pigeon River 7(a)(2) of the Act, which requires that issue Clean Water Act permits. Once a population, Tuckasegee River Federal agencies shall, in consultation State has been delegated this authority, population, Little Tennessee River with the Service, insure that any action the State’s issuance of such permits is population, and the Cheoah River they authorize, fund, or carry out is not not considered to be a Federal action population. The areas that we are likely to jeopardize the continued subject to section 7 consultation. The designating as critical habitat for the existence of any species listed as EPA has approved the State of North Appalachian elktoe are distributed in endangered or threatened or result in Carolina NPDES permit program, and different portions of the species’ known the destruction or adverse modification consequently has not found it necessary historical range (three populations in of critical habitat. Aside from the to consult under section 7 regarding the Little Tennessee River system, two protection that may be provided under NPDES permits issued by the State of in the French Broad River system, and section 7, the Act does not provide other North Carolina for mining discharges. one in the Nolichucky River system) forms of protection to areas designated The MOA also provides that if the and contain the habitat elements as critical habitat. Thus, the section 7 Service or EPA have concerns that an essential to the life cycle needs of the requirement does not apply to mining NPDES permit is likely to have a more species as they are currently known. We operations for quartz, feldspar, mica, than minor detrimental effect on a consider the six areas that we are and other minerals carried out on Federally listed species or critical designating as critical habitat as the private or other non-Federal land unless habitat, a series of steps will be followed most likely sites for focusing a Federal action is involved. to resolve the situation with the State. conservation efforts for maintaining and Currently, there are no coal mining Furthermore, regardless of whether recovering the Appalachian elktoe in operations carried out in Yancey and critical habitat has been designated, accordance with the goals outlined in Mitchell Counties, NC. If subsurface Federal agencies are required by section our recovery plan for the species and coal mining was proposed, the Office of 7 of the Act to evaluate the direct and based on the best scientific information Surface Mining (OSM) would consult indirect effects of their actions and currently available to us concerning the with us under section 7. If surface ensure that their actions are not likely species’ known historical range and mining of coal was proposed, the OSM to ‘‘jeopardize the continued existence’’ habitat requirements. would be guided by a section 7 of a listed species. Because the Other than the stream reaches that we biological opinion (BO) we issued to Appalachian elktoe is already listed as are designating as critical habitat, we are them in 1996 for a consultation an endangered species, a Federal agency not aware of any other streams or stream addressing surface coal mining and already is required to consult with us if reaches that provide suitable habitat for reclamation operations under State and it determines that a proposed activity the Appalachian elktoe. However, to the Federal regulatory programs adopted within its regulatory authority is likely extent feasible, we will continue, with pursuant to the Surface Mining Control to adversely affect the Appalachian the assistance of other Federal, State, and Reclamation Act of 1977, as elktoe, and to insure that the activity and private agencies or organizations, to amended, and its implementing will not jeopardize the continued conduct surveys and research on the regulations. In situations where the existence of the species. Under the species and to evaluate habitat potential effects of a proposed new regulations for section 7 consultations throughout its historical range. Should action are consistent with the evaluation (50 CFR 402.02), ‘‘jeopardize the additional information become available and requirements of the prior continued existence’’ is defined as any that indicates other areas within the consultation and BO, no additional activity that would reasonably be Appalachian elktoe’s historical range consultation by OSM is needed. expected, directly or indirectly, to provide suitable habitat and are We are not aware of any past or appreciably reduce the likelihood of essential to the conservation of the current applications by any of the survival and recovery of a listed species species, we may revise the critical mining companies in Yancey and in the wild. ‘‘Destruction or adverse habitat designation accordingly. Mitchell Counties to conduct mining modification of critical habitat’’ is Similarly, if new information indicates operations in waters or wetlands that defined as a direct or indirect alteration any of the areas we have designated may be subject to permits issued by the that appreciably diminishes the value of should not be included in the critical U.S. Army Corps of Engineers (COE) critical habitat for the survival and habitat designation because they no pursuant to section 404 of the Clean recovery of a listed species. Common to longer meet the definition of critical Water Act. If mining in waters or the definitions of ‘‘jeopardy’’ and habitat, we may revise this final critical wetlands were proposed, the COE ‘‘destruction or adverse modification of habitat designation. If, consistent with would be required to consult with us if critical habitat’’ is the likelihood that available funding and program an action by them triggered the section both the ‘‘survival and recovery’’ of the priorities, we elect to revise the 7(a)(2) requirement of the Act. species are appreciably reduced by the designation, we will do so through a Direct discharge into creeks and rivers proposed action. Because of this subsequent rulemaking. associated with the processing of common threshold, the restricted range Issue 8. Several of the comments we minerals requires a National Pollution of the Appalachian elktoe, and the fact received expressed concern about the Discharge Elimination System (NPDES) that all of the areas that we are potential effect the proposed permit, pursuant to section 402 of the designating as critical habitat support designation of critical habitat could Clean Water Act. Although NPDES populations of the species, any action have on the mining industry in Yancey permits are issued by the State of North that is likely to destroy or adversely and Mitchell Counties, NC. Carolina, the EPA has oversight modify critical habitat would also likely Response: For the reasons described authority of the State’s permitting result in jeopardy to this species and, below, we do not believe that our program. Under the provisions of an therefore, would already be prohibited designation of critical habitat for the interagency Memorandum of Agreement by the Act through the jeopardy Appalachian elktoe will result in any (MOA) adopted by the Service, the EPA, standard regardless of whether the area additional effects on mining activities and the National Marine Fisheries is designated as critical habitat. beyond what already is required. Service in 2001, the EPA agreed to In summary, for the reasons explained Designated critical habitat receives consult with us on their decision to above, we do not believe that our

VerDate Sep<04>2002 16:57 Sep 26, 2002 Jkt 197001 PO 00000 Frm 00171 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 61024 Federal Register / Vol. 67, No. 188 / Friday, September 27, 2002 / Rules and Regulations

designation of critical habitat for the contributing to the endangerment of an beneficial to the species. In addition, we Appalachian elktoe will have any endangered species. expressed our concern that the rarity regulatory effect on mining activities Response: As explained in the and uniqueness of the Appalachian that have no Federal involvement, and response to Issues 8 and 9, the only elktoe could generate interest in the we do not believe the designation of regulatory consequence of the species and that the publicity associated critical habitat will have any additional designation of critical habitat is the with the designation of critical habitat, regulatory effect on mining activities requirement under section 7 of the Act together with the publication of maps that require Federal permits beyond for Federal agencies to insure, in and descriptions of critical habitat, what already is required as a result of consultation with us, that any action could increase the vulnerability of the the listing of the species. they authorize, fund, or carry out is not species to collection, vandalism, or Issue 9. Three respondents stated that likely to result in the destruction or other disturbance. Although we did not the designation of critical habitat adverse modification of critical habitat. base our ‘‘not prudent’’ determination ‘‘would, and will put a stop to all With regard to critical habitat, this on an increased threat to the agriculture in the area; this could requirement has no regulatory impact Appalachian elktoe, we did consider the include the family garden.’’ The same on a private landowner who takes action potential increased threat to the species respondents also stated that the on his or her land that does not involve from critical habitat designation in designation of critical habitat would Federal funding or authorization. making our determination that the adversely affect apple growers and Because the Appalachian elktoe already designation of critical habitat was not Christmas tree farmers. is listed as endangered, Federal agencies prudent for the Appalachian elktoe Response: As stated above, the already are required to consult with us because it would not benefit the species. regulatory requirements associated with on any of their actions that are likely to In the last few years, court decisions critical habitat do not apply to any adversely affect the species and to have overturned our determinations agricultural activities, including apple insure that their actions do not regarding a variety of species, orchards, Christmas tree farms, or other jeopardize the species’ continued concluding that the designation of existence, regardless of whether critical critical habitat would not be prudent tree farming, row crop farming, habitat has been designated. Therefore, (e.g., Natural Resources Defense Council livestock farming, or any other activity we do not believe the designation of v. U.S. Department of the Interior, 113 carried out on private land that does not critical habitat for the Appalachian F. 3d 1121 [9th Cir. 1997]; Conservation require and/or involve a Federal permit elktoe will result in any significant Council for Hawaii v. Babbitt, 2 F. Supp. or Federal funding. Generally, the only additional regulatory burden on 2d 1280 [D. Hawaii 1998]). Federal regulations associated with landowners or affect the use of their In Conservation Council of Hawaii v. agricultural activities with the potential property. Babbitt, 2 F. Supp. 2d 1280, 1284 (D. to trigger the section 7 consultation Issue 11: Several respondents stated Hawaii 1998), the United States District requirements of the Act involve the use that they agreed with the Service’s Court for the District of Hawaii ruled of pesticides and herbicides. The EPA original determination, made when the that the Service could not rely on the consults with us on the registration of species was listed, that the designation ‘‘increased threat’’ rationale for a ‘‘not certain pesticides and herbicides that of critical habitat was not prudent for prudent’’ determination without have been identified by the EPA to have the Appalachian elktoe. One of these evidence of a specific threat to the the potential to harm listed species. In respondents expressed concern that the species at issue or a similarly situated such cases, the potential effects to listed designation of critical habitat and the species. In Natural Resources Defense species and their habitat are addressed associated publication of maps of Council v. U.S. Department of the through warnings and restrictions critical habitat could increase the threat Interior, 113 F. 3d 1121, 1125 (9th Cir. placed on the label of the subject of collecting of the Appalachian elktoe 1997), the United States Court of pesticides and herbicides (i.e., and that it would be far safer for the Appeals for the Ninth Circuit ruled that, restrictions on application rates, Appalachian elktoe if critical habitat in order to invoke the ‘‘increased threat application methods, frequency of were not designated for the species. rationale’’ the Service must balance the application, disposal of containers, etc.). Response: Section 4(a)(3)(A) of the threat against the benefit to the species Further, as explained in our response to Act requires that, to the maximum of designating critical habitat. The Issue 8, above, section 7 consultations extent prudent and determinable, we recent court decisions have stated that, on the registration of pesticides or designate critical habitat at the time a in the absence of a finding that the herbicides, or on any other Federal species is determined to be endangered designation of critical habitat would activity with the potential to adversely or threatened. The regulations state that increase threats to a species, if there are affect the Appalachian elktoe or any the designation of critical habitat is not any benefits to critical habitat federally listed species, is required prudent when one or both of the designation (e.g., an educational or regardless of whether critical habitat has following situations exist: (1) The informational benefit that can assist in been designated. For these reasons, we species is threatened by taking or other the conservation of the species), then a do not believe our designation of critical human activity and the identification of prudent finding is warranted and the habitat for the Appalachian elktoe will critical habitat can be expected to existence of another type of protection, result in any additional effects on increase the degree of such threat to the even if potentially greater, does not agriculture beyond existing species or (2) such designation of justify a not prudent finding. requirements related to the listing of the critical habitat would not be beneficial At this time we do not have species. to the species (see ‘‘Critical Habitat’’ documented evidence for the collection, Issue 10: Several respondents stated section below). trade, vandalism, or other unauthorized that the designation of critical habitat When we listed the Appalachian human disturbance specific to the will infringe on private property rights, elktoe as endangered on November 23, Appalachian elktoe, or a similarly and one respondent stated that the 1994 (59 FR 60324), we concurrently situated species. Consequently, we designation will jeopardize the private determined that the designation of cannot make a ‘‘not prudent’’ property rights of a landowner even critical habitat was not prudent because determination for the designation of when that landowner is not in any way such a designation would not be critical habitat for the Appalachian

VerDate Sep<04>2002 16:57 Sep 26, 2002 Jkt 197001 PO 00000 Frm 00172 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 Federal Register / Vol. 67, No. 188 / Friday, September 27, 2002 / Rules and Regulations 61025

elktoe on the basis of an expected organizations, and individuals in formed into beads, and inserted into increase in the degree of threat to the fulfilling their obligations under the marine oysters to assist in the formation species from collecting, vandalism, or Act. of pearls), the shell of the Appalachian other take as a result of the designation In enacting the Act, Congress declared elktoe is not thick enough to be of value of critical habitat. Because the that species of fish, wildlife, and plants to this industry. Furthermore, no mussel designation of critical habitat may in the United States in danger of, or species and no areas where their provide some conservation benefit to threatened with, extinction are of collection is permitted (the nearest river the Appalachian elktoe by providing esthetic, ecological, educational, reach where the harvesting of mussels additional information about its habitat historical, recreational, and scientific for the cultured pearl industry is requirements to individuals, local and value to the Nation and its people. The allowed is the Tennessee River in State governments, and others interested Service and the National Marine northern Alabama) occur in close in assisting in conservation efforts for Fisheries Service are the two primary enough proximity to the areas that the species, we cannot support a agencies responsible for administering support the Appalachian elktoe to determination that the designation of the Act. Our purposes and receive benefit from water and habitat critical habitat would not be beneficial responsibilities through the Act are to quality protection that may be to the species. identify endangered and threatened attributable to measures implemented Issue 12: One respondent requested species, protect these species, and for the protection of the Appalachian information concerning the steps taken provide a means to conserve their elktoe and its habitat. to determine the status of the ecosystems. Issue 14: One respondent questioned Appalachian elktoe and ‘‘who is using, Issue 13: Several respondents why a public hearing on the proposed has used, or has stated intent to use it questioned the economic benefits of the designation of critical habitat was not (the species’ status) for what stated designation of critical habitat for the held in the Nolichucky River watershed purpose.’’ Appalachian elktoe mentioned by in Mitchell County or Yancey County, Response: In listing the Appalachian supporters of the proposed designation. NC. elktoe as an endangered species (59 FR Three of these respondents specifically Response: Our regulations require that 60324) and determining the areas we mentioned a citation of the potential we hold at least one public hearing, if consider essential for the conservation economic benefit of the designation to a public hearing is requested. Because of the species (the areas we are ‘‘mussel harvest in the State of the majority of the comments we designating as critical habitat), we used Tennessee.’’ received were from organizations and the best scientific and commercial Response: There is little disagreement individuals in Tennessee and because a information available to us concerning in the published economic literature portion of the Nolichucky River was the the species’ historical range, present that real social welfare benefits can only area in Tennessee proposed for the range, life history and habitat result from the conservation and designation of critical habitat for the requirements, and factors that have recovery of endangered or threatened Appalachian elktoe, we elected to hold contributed to its decline and those that species. Such benefits have also been one of the hearings in Erwin, TN. Erwin pose a threat to its continued existence. ascribed to the preservation of open is within the Nolichucky River system This information was obtained from a space and biodiversity, both of which and is located in Unicoi County, TN, variety of sources, including surveys are associated with species immediately across the State line from and studies conducted by State, Federal, conservation. Likewise, a local and Mitchell and Yancey Counties, NC. We university, and private biologists and regional economy can benefit from the elected to hold the second public researchers and a review of published preservation of healthy populations of hearing in Bryson City, Swain County, and unpublished literature. A summary endangered and threatened species and NC, as a central location to cover the of this information and the sources used the habitat on which these species portions of the Cheoah River (Graham is provided in the recovery plan for the depend. However, these benefits would County), Little Tennessee River (Swain Appalachian elktoe (Service 1996) and be most closely associated with the and Macon Counties), Tuckasegee River in the ‘‘Background’’ sections of the listing of a species as endangered or (Swain and Jackson Counties), and West final rule listing the Appalachian elktoe threatened, because listing serves to Fork Pigeon River and Pigeon River as an endangered species (59 FR 60324), provide the majority of the protection (Haywood County) being proposed for the proposed rule to designate critical and conservation benefits afforded the designation of critical habitat. Also, habitat for the Appalachian elktoe (66 under the Act. following the public hearings, at the FR 9540), and in this final rule With regard to the comments request of the County Manager, Yancey designating critical habitat for the concerning ‘‘mussel harvest,’’ we have County, NC, we attended a meeting of Appalachian elktoe. The steps taken in not identified, either in the proposed the Yancey County Board of compiling, analyzing, and disseminating rule to designate critical habitat for the Commissioners where we gave a this information, as well as the dates of Appalachian elktoe or in the draft presentation about the proposed the steps taken, are outlined in the economic analysis of the proposed designation of critical habitat for the ‘‘Previous Federal Actions’’ section of designation of critical habitat for the Appalachian elktoe to the the final rule listing the Appalachian Appalachian elktoe (or any other commissioners and the public in elktoe as endangered, the proposed rule document associated with the proposed attendance. to designate critical habitat for the designation), the potential benefit to the Issue 15: We received several Appalachian elktoe, and this final rule. commercial harvest of freshwater comments addressing the economic and We cannot speak for other agencies, mussels that may be derived from the demographic data for Mitchell County, organizations, or individuals, but our protection of Appalachian elktoe NC, that were presented in the draft purpose and intent in listing the habitat. While certain species of economic analysis. Appalachian elktoe as an endangered freshwater mussels are harvested in Response: In response to the species and in designating critical some southeastern States (including information received, we have revised habitat for the species is to fulfill our some areas in western Tennessee) for the data concerning the human obligations and responsibilities under their shells for use in the cultured pearl population, population growth, and per the Act and to assist other agencies, industry (plugs are cut from the shells, capita income for Mitchell County, NC,

VerDate Sep<04>2002 16:57 Sep 26, 2002 Jkt 197001 PO 00000 Frm 00173 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 61026 Federal Register / Vol. 67, No. 188 / Friday, September 27, 2002 / Rules and Regulations

in the addendum to the economic designations identify, to the extent Habitat is often dynamic, and species analysis of critical habitat designation known using the best scientific data may move from one area to another over for the Appalachian elktoe. available, habitat areas that provide time. Furthermore, we recognize that Issue 16: Several of the respondents essential life cycle needs of the species the designation of critical habitat may stated that the draft economic analysis (i.e., areas on which are found the not include all of the habitat areas that failed to adequately assess the potential primary constituent elements, as may eventually be determined to be economic benefits of the designation of defined at 50 CFR 424.12(b)). necessary for the conservation of the critical habitat for the Appalachian Section 4 of the Act requires that we species. For these reasons, it should be elktoe. designate critical habitat for a species at understood that critical habitat Response: In the addendum to the the time of listing, to the extent such designations do not signal that habitat draft economic analysis, we have habitat is determinable. We are required outside the designation is unimportant provided additional information to designate those areas we know to be or that it may not be necessary for the concerning, and an analysis of, the critical habitat, based on the best conservation of the species. Areas potential economic benefits associated information available to us. When outside the critical habitat designation with measures implemented for the designating critical habitat, we will will continue to be subject to protection of water and habitat quality designate only areas currently known to conservation actions that may be that may occur and be attributable to the be essential. Essential areas should implemented under section 7(a)(1) of effects of future section 7 consultations already have the features and habitat the Act and to the regulatory protections under the Act for the Appalachian characteristics that are necessary to afforded by the section 7(a)(2) jeopardy elktoe and its designated critical habitat. sustain the species. We will not standard and the section 9 take However, it is not possible to fully speculate about what areas might be prohibition, as determined on the basis describe and accurately quantify all the found to be essential if better of the best available information at the benefits of potential future section 7 information became available or what time of the action. We anticipate that consultations in the context of the areas may become essential over time. federally funded or assisted projects economic analysis. And, as stated in the Our regulations state that, ‘‘The affecting listed species outside their draft economic analysis, we believe the Secretary shall designate as critical designated critical habitat areas may benefits are best expressed in biological habitat areas outside the geographical still result in jeopardy findings in some terms that can be weighed against the area presently occupied by a species cases. Similarly, critical habitat potential costs of the rulemaking. only when a designation limited to its designations made on the basis of the present range would be inadequate to Critical Habitat best available information at the time of ensure the conservation of the species’’ designation will not control the Critical habitat is defined in section (50 CFR 424.12(e)). Accordingly, unless direction and substance of future 3(5)(A) of the Act as (i) the specific areas the best available scientific data recovery plans, habitat conservation within the geographical area occupied demonstrate that the conservation needs plans, or other species conservation by the species, at the time it is listed, of the species cannot be met within planning efforts if new information on which are found those physical or currently occupied areas, we will not available to these planning efforts calls biological features (I) essential to the designate critical habitat in areas for a different outcome. conservation of the species and (II) that outside the geographical area presently Section 4(b)(2) of the Act requires us may require special management occupied by the species. to base critical habitat designations on consideration or protection; and (ii) Our Policy on Information Standards the best scientific data available and specific areas outside the geographical Under the Endangered Species Act, after taking into consideration the area occupied by the species at the time published in the Federal Register on economic impact, and any other it is listed, upon a determination that July 1, 1994 (59 FR 34271), provides relevant impact, of specifying any such areas are essential for the criteria, establishes procedures, and particular area as critical habitat. We conservation of the species. Pursuant to provides guidance to ensure that may exclude areas from critical habitat regulations at 50 CFR 424.12(e), areas decisions made by us represent the best designation if we determine that the outside the geographical area presently scientific and commercial data benefits of excluding those areas occupied by the species shall be available. This policy requires our outweigh the benefits of including the designated as critical habitat only when biologists, to the extent consistent with areas within the critical habitat, a designation limited to its present the Act and with the use of the best provided the exclusion will not result in range would be inadequate to ensure the scientific and commercial data the extinction of the species. conservation of the species. available, to use primary and original ‘‘Conservation’’ is defined in section sources of information as the basis for Methods 3(3) of the Act as the use of all methods recommendations to designate critical As required by section 4(b)(2) of the and procedures necessary to bring habitat. When determining which areas Act and regulations at 50 CFR 424.12, endangered or threatened species to the are critical habitat, a primary source of we used the best scientific data point where listing under the Act is no information should be the listing available to determine areas that contain longer necessary. Regulations under 50 package for the species and the recovery the physical and biological features that CFR 424.02(j) define ‘‘special plan, if one has been adopted by us. are essential for the conservation of the management considerations or Additional information may be obtained Appalachian elktoe. This included protection’’ to mean any methods or from articles in peer-reviewed journals, information from the listing package for procedures useful in protecting the conservation plans developed by States the species, the recovery plan, scientific physical and biological features of the and counties, scientific status surveys publications, recent surveys and reports, environment for the conservation of and studies, biological assessments or and conversations with other Federal, listed species. other unpublished materials (i.e., gray State, and private biologists and In order to be included in a critical literature), and expert opinions. researchers familiar with the species. habitat designation, the habitat must Section 4 of the Act requires that we The areas of critical habitat described first be ‘‘essential to the conservation of designate critical habitat based on what below constitute our best assessment of the species.’’ Critical habitat we know at the time of the designation. the areas needed for the conservation of

VerDate Sep<04>2002 16:57 Sep 26, 2002 Jkt 197001 PO 00000 Frm 00174 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 Federal Register / Vol. 67, No. 188 / Friday, September 27, 2002 / Rules and Regulations 61027

the Appalachian elktoe in accordance management consideration or When considering areas for with the goals outlined in our recovery protection. designation as critical habitat, we are plan for the species (Service 1996) and We will continue, with the assistance required to focus on the principal are based on the best scientific of other Federal, State, and private biological and physical constituent information currently available to us researchers, to conduct surveys and elements within the defined area that concerning the species’ known present research on the species and its habitat. are essential to the conservation of the and historical range, habitat, biology, If new information becomes available species (50 CFR 424.12 (b)). Although and threats. The recovery plan for the indicating that other areas within the additional information is needed to Appalachian elktoe states that the Appalachian elktoe’s historical range better define the habitat requirements of species will be considered for delisting are essential to the conservation of the the Appalachian elktoe, particularly the when a total of six distinct, viable species and provide for the essential life microhabitat requirements, based on the populations exist and other criteria cycle needs of the species, we will best available information concerning outlined in the plan are met (Service revise the critical habitat designation for the habitat and life history of the 1996). Based on the most recent survey the Appalachian elktoe accordingly. Appalachian elktoe (see ‘‘Background’’ section above), the primary constituent data for the Appalachian elktoe, there Primary Constituent Elements are currently six surviving populations elements essential for the conservation In accordance with sections 3(5)(A)(i) of the species (see ‘‘Background’’ of the Appalachian elktoe are: and 4(b)(1)(A) of the Act and regulations section above). The areas in the six units 1. Permanent, flowing, cool, clean at 50 CFR 424.12, in determining which water; that we are designating as critical areas to propose as critical habitat, we 2. Geomorphically stable stream habitat for the species include habitat are required to base critical habitat channels and banks; for each of these populations. All of the determinations on the best scientific 3. Pool, riffle, and run sequences areas we are designating as critical data available and to consider those within the channel; habitat are within what we believe to be physical and biological features 4. Stable sand, gravel, cobble, and the geographical area occupied by the (primary constituent elements) that are boulder or bedrock substrates with no Appalachian elktoe, include all known essential to the conservation of the more than low amounts of fine surviving occurrences of the species, are species and that may require special sediment; essential for the conservation of the management considerations or 5. Moderate to high stream gradient; species, and provide for the species’ protection. These physical and 6. Periodic natural flooding; and essential life cycle needs. These biological features include, but are not 7. Fish hosts, with adequate living, designated areas are distributed limited to, space for individual and foraging, and spawning areas for them. throughout the Appalachian elktoe’s population growth and for normal range, with at least one occurring in behavior; food, water, air, light, Critical Habitat Designation each of the Little Tennessee, French minerals, or other nutritional or The areas designated as critical Broad, and Nolichucky River systems. physiological requirements; cover or habitat for the Appalachian elktoe total In addition, given the threats to the shelter; sites for breeding, reproduction, approximately 231.1 km (144.3 mi) of species’ habitat discussed in the final and rearing of offspring; and habitats rivers. Table 1 summarizes the location listing rule (59 FR 60324) and the that are protected from disturbance or and extent of designated critical habitat. recovery plan for the species (Service are representative of the historical, All of the designated areas require 1996), and summarized in the geographical, and ecological special management considerations to ‘‘Background’’ section above, we believe distribution of a species (50 CFR ensure their contribution to the these areas may need special 424.12(b)). conservation of the Appalachian elktoe.

TABLE 1.—APPROXIMATE LENGTHS OF STREAMS DESIGNATED AS CRITICAL HABITAT FOR THE APPALACHIAN ELKTOE

Approximate length in State County Unit and stream kilometers (miles)

North Carolina ...... Macon and Unit 1–Little Ten- 38.5 (24) Swain. nessee River. Jackson and Unit 2– 41.6 (26) Swain. Tuckasegee River. Graham ...... Unit 3–Cheoah 14.6 (9.1) River. Transylvania ...... Unit 4–Little 7.5 (4.7) River. Haywood ...... Unit 5–West 17.8 (11.1) Fork Pigeon River and Pi- geon River. Yancey ...... Unit 6–South 22.6 (14.1) Toe River. Yancey ...... Unit 6–Cane 26.4 (16.5) River. Yancey and Unit 6–North Toe 5.9 (3.7) Mitchell. River. Yancey and Unit 6–Toe River 34.6 (21.6) Mitchell.

VerDate Sep<04>2002 16:57 Sep 26, 2002 Jkt 197001 PO 00000 Frm 00175 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 61028 Federal Register / Vol. 67, No. 188 / Friday, September 27, 2002 / Rules and Regulations

TABLE 1.—APPROXIMATE LENGTHS OF STREAMS DESIGNATED AS CRITICAL HABITAT FOR THE APPALACHIAN ELKTOE— Continued

Approximate length in State County Unit and stream kilometers (miles)

North Carolina and Tennessee ...... Yancey and Unit 6– 21.6 (13.5) Mitchell (NC) Nolichucky and Unicoi River. (TN).

The lateral extent of designated the best available information, provides recovery goals and criteria outlined in critical habitat within units 1 to 6 is the the physical and biological habitat the recovery plan for the Appalachian ordinary high water line on each bank. elements necessary for the life cycle elktoe (Service 1996), protection of this As defined in 33 CFR 329.11, the needs of the species. The area supports unit is essential to the conservation of ordinary high water line on non-tidal one of the only three known surviving the species. rivers is the line on the shore populations of the Appalachian elktoe Unit 5. Haywood County, NC established by the fluctuations of water in the Little Tennessee River system. and indicated by physical Based on our consideration of the best Unit 5 encompasses approximately characteristics such as a clear, natural available information, including the 17.8 km (11.1 mi) of the main stem of line impressed on the bank; shelving; recovery goals and criteria outlined in the West Fork Pigeon River (French changes in the character of soil; the recovery plan for the Appalachian Broad River system), from the destruction of terrestrial vegetation; the elktoe (Service 1996), protection of this confluence of the Little East Fork Pigeon presence of litter and debris; or other unit is essential to the conservation of River, downstream to the confluence of appropriate means that consider the the species. the East Fork Pigeon River, and the characteristics of the surrounding areas. main stem of the Pigeon River, from the Unit 3. Graham County, NC We are designating the following confluence of the West Fork Pigeon areas as critical habitat for the Unit 3 encompasses approximately River and the East Fork Pigeon River, Appalachian elktoe: 14.6 km (9.1 mi) of the main stem of the downstream to the N.C. Highway 215 Cheoah River (Little Tennessee River Bridge crossing, south of Canton, NC. Unit 1. Macon County and Swain system), from the Santeetlah Dam, This unit is part of the currently County, NC downstream to its confluence with the occupied range of the Appalachian Unit 1 encompasses approximately Little Tennessee River. This unit is part elktoe and, based on the best available 38.5 km (24 mi) of the main stem of the of the currently occupied range of the information, provides the physical and Little Tennessee River, from the Lake Appalachian elktoe and, based on the biological habitat elements necessary for Emory Dam at Franklin, Macon County, best available information, provides the the life cycle needs of the species. The NC, downstream to the backwaters of physical and biological habitat elements area supports one of the only two Fontana Reservoir in Swain County, NC. necessary for the life cycle needs of the known surviving populations of the This unit is part of the currently species. The area supports one of the Appalachian elktoe in the French Broad occupied range of the Appalachian only three known surviving populations River system. Based on our elktoe and, based on the best available of the Appalachian elktoe in the Little consideration of the best available information, provides the physical and Tennessee River system. Based on our information, including the recovery biological habitat elements necessary for consideration of the best available goals and criteria outlined in the the life cycle needs of the species. The information, including the recovery recovery plan for the Appalachian area supports one of the only three goals and criteria outlined in the elktoe (Service 1996), protection of this known surviving populations of the recovery plan for the Appalachian unit is essential to the conservation of Appalachian elktoe in the Little elktoe (Service 1996), protection of this the species. Tennessee River system. Based on our unit is essential to the conservation of Unit 6. Yancey County and Mitchell consideration of the best available the species. County, NC, and Unicoi County, TN information, including the recovery Unit 4. Transylvania County, NC goals and criteria outlined in the Unit 6 encompasses approximately recovery plan for the Appalachian Unit 4 encompasses approximately 5.9 km (3.7 mi) of the main stem of the elktoe (Service 1996), protection of this 7.5 km (4.7 mi) of the main stem of the North Toe River, Yancey and Mitchell unit is essential to the conservation of Little River (French Broad River Counties, NC, from the confluence of the species. system), from the Cascade Lake Power Big Crabtree Creek, downstream to the Plant, downstream to its confluence confluence of the South Toe River; Unit 2. Jackson County and Swain with the French Broad River. This unit approximately 22.6 km (14.1 mi) of the County, NC is part of the currently occupied range main stem of the South Toe River, Unit 2 encompasses approximately of the Appalachian elktoe and, based on Yancey County, NC, from the N.C. State 41.6 km (26 mi) of the main stem of the the best available information, provides Route 1152 Bridge, downstream to its Tuckasegee River (Little Tennessee the physical and biological habitat confluence with the North Toe River; River system), from the N.C. State Route elements necessary for the life cycle approximately 34.6 km (21.6 mi) of the 1002 Bridge in Cullowhee, Jackson needs of the species. The area supports main stem of the Toe River, Yancey and County, NC, downstream to the N.C. one of the only two known surviving Mitchell Counties, NC, from the Highway 19 Bridge, north of Bryson populations of the Appalachian elktoe confluence of the North Toe River and City, Swain County, NC. This unit is in the French Broad River system. Based the South Toe River, downstream to the part of the currently occupied range of on our consideration of the best confluence of the Cane River; the Appalachian elktoe and, based on available information, including the approximately 26.4 km (16.5 mi) of the

VerDate Sep<04>2002 16:57 Sep 26, 2002 Jkt 197001 PO 00000 Frm 00176 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 Federal Register / Vol. 67, No. 188 / Friday, September 27, 2002 / Rules and Regulations 61029

main stem of the Cane River, Yancey Federal agency. Aside from the appreciably reduced by the action. County, NC, from the N.C. State Route protection that may be provided under Because of the small size of the 1381 Bridge, downstream to its section 7, the Act does not provide other surviving populations of the confluence with the Toe River; and forms of protection to land designated Appalachian elktoe, the species’ approximately 21.6 km (13.5 mi) of the as critical habitat. Because consultation restricted range, and the limited amount main stem of the Nolichucky River from under section 7 of the Act does not of suitable habitat available to the the confluence of the Toe River and the apply to activities on private or other species, and because all of the units that Cane River in Yancey County and non-Federal land that do not involve a we are designating as critical habitat for Mitchell County, NC, downstream to the Federal action, critical habitat the Appalachian elktoe currently U.S. Highway 23/19W Bridge southwest designation would not afford any support populations of the species, of Erwin, Unicoi County, TN. This unit protection under the Act against such actions that are likely to destroy or is part of the currently occupied range activities. Accordingly, the designation adversely modify the Appalachian of the Appalachian elktoe and, based on of critical habitat will not have any elktoe’s critical habitat are also likely to the best available information, provides regulatory effect on private or State jeopardize this species. Accordingly, the physical and biological habitat activities unless those activities require even though Federal agencies will be elements necessary for the life cycle a Federal permit, authorization, or required to evaluate the potential effects needs of the species. The area supports funding. of their actions on any habitat that is the only two known surviving Section 7(a)(2) of the Act and designated as critical habitat for the populations of the Appalachian elktoe regulations at 50 CFR 402.10 require Appalachian elktoe, this designation in the Nolichucky River system. Based Federal agencies to ensure, in would not be likely to change the on our consideration of the best consultation with us, that any action outcome of section 7 consultations. available information, including the they authorize, fund, or carry out is not If, through section 7 consultation, a recovery goals and criteria outlined in likely to jeopardize the continued Federal agency determines that an the recovery plan for the Appalachian existence of any threatened or action or activity they are proposing elktoe (Service 1996), protection of this endangered species or result in the may adversely affect a listed species unit is essential to the conservation of destruction or adverse modification of and/or designated critical habitat, we the species. designated critical habitat. ‘‘Destruction will issue a biological opinion or adverse modification’’ is defined as a determining whether the effects of the Land Ownership direct or indirect alteration that action are likely to jeopardize the Of the areas that we are designating as appreciably diminishes the value of continued existence of the species and/ critical habitat for the Appalachian critical habitat for both the survival and or destroy or adversely modify elktoe, approximately 67 percent—14.4 recovery of the listed species for which designated critical habitat. If we issue a km (9.0 mi)—of the Nolichucky River is critical habitat was designated. Such biological opinion concluding that the bordered by the Pisgah National Forest alternations include, but are not limited action is likely to jeopardize the species in North Carolina and the Cherokee to, alterations adversely modifying any or destroy or adversely modify National Forest in Tennessee; 88 of those physical or biological features designated critical habitat, we will also percent—12.8 km (8.0 mi)—of the that were the basis for determining the provide reasonable and prudent Cheoah River is bordered by the habitat to be critical (50 CFR 402.02). alternatives to the project, if any are Nantahala National Forest; and a small Activities on Federal land, activities identifiable. Reasonable and prudent percentage of the Tuckasegee River is on private or State land carried out by alternatives are defined as alternative bordered by land belonging to The a Federal agency, or activities receiving actions that can be implemented in a Eastern Band of Cherokee Indians. The funding or requiring a permit from a manner that is consistent with the remaining areas that we are designating Federal agency that may affect the intended purpose of the action, that is as critical habitat for the Appalachian designated critical habitat of the consistent with the scope of the Federal elktoe, with the exception of State road Appalachian elktoe will require agency’s legal authority and and highway rights-of-way, are bordered consultation under section 7 of the Act. jurisdiction, that is economically and by land under private ownership. However, pursuant to section 7 of the technologically feasible, and that the Act and the related consultation Director of the Service believes would Effects of Critical Habitat Designation regulations, Federal agencies also are avoid jeopardizing the species’ Designating critical habitat does not, required to consult with us on any continued existence and/or the in itself, lead to the recovery of a listed action that may affect a listed species destruction or adverse modification of species. The designation does not and to ensure that actions they designated critical habitat. establish a reserve, create a management authorize, fund, or carry out do not Section 4(b)(8) of the Act requires us plan, establish numerical population jeopardize the continued existence of to briefly describe and evaluate, in any goals, prescribe specific management listed species. Activities that jeopardize proposed or final regulation that practices (inside or outside of critical listed species are defined as actions that designates critical habitat, those habitat), or directly affect areas not ‘‘directly or indirectly, reduce activities involving a Federal action that designated as critical habitat. Specific appreciably the likelihood of both the may destroy or adversely modify such management recommendations for areas survival and recovery of a listed species’ habitat or may be affected by such designated as critical habitat are most (50 CFR 402.02). Federal agencies are designation. Activities that may destroy appropriately addressed in recovery and prohibited from jeopardizing listed or adversely modify critical habitat are, management plans and through section species through their actions, regardless as discussed above, those that alter the 7 consultations and section 10 permits. of whether critical habitat has been primary constituent elements to the Critical habitat receives regulatory designated for the species. extent that the value of critical habitat protection only under section 7 of the Common to the definitions of both for both the survival and recovery of the Act through the prohibition against the ‘‘jeopardy’’ and ‘‘destruction or adverse Appalachian elktoe is appreciably destruction or adverse modification of modification of critical habitat’’ is the diminished. This may include any designated critical habitat by actions concept that the likelihood of both activity, regardless of the location of the carried out, funded, or authorized by a survival and recovery of the species are activity in relation to designated critical

VerDate Sep<04>2002 16:57 Sep 26, 2002 Jkt 197001 PO 00000 Frm 00177 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 61030 Federal Register / Vol. 67, No. 188 / Friday, September 27, 2002 / Rules and Regulations

habitat, that would significantly alter of the Appalachian elktoe as an the resultant Federal responsibility to the natural flow regime, channel endangered species under the Act, as avoid projects that would jeopardize the morphology or geometry, or water well as any potential effect of the continued existence of the species are chemistry or temperature of any of the designation of critical habitat above and likely to trigger these impacts regardless six designated critical habitat units, as beyond those regulatory and economic of whether critical habitat is designated. described by the primary constituent impacts associated with the listing. To A detailed discussion of our analysis elements, or any activity that could quantify the proportion of total potential is contained in the Draft Economic result in the significant discharge or economic impacts attributable to the Analysis of Proposed Critical Habitat deposition of sediment, excessive critical habitat designation, the analysis Designation for the Appalachian Elktoe nutrients, or other organic or chemical evaluated a ‘‘without critical habitat’’ (April 2002) and the Final Addendum to pollutants into any of the six designated baseline and compared it to a ‘‘with the Economic Analysis of Critical critical habitat units. Such Federal critical habitat’’ scenario. The ‘‘without Habitat Designation for the Appalachian activities include (but are not limited to) critical habitat’’ baseline represented the Elktoe (August 2002). Both documents carrying out or issuing permits, current and expected economic activity are included in the supporting authorizations, or funding for reservoir under all modifications prior to the documentation for this rulemaking and construction; stream and/or stream-bank critical habitat designation, including are available for inspection at the alterations; wastewater facility protections afforded the species under Asheville Field Office (see ADDRESSES). development; hydroelectric facility Federal and State laws. The difference Required Determinations construction and operation; pesticide/ between the two scenarios measured the herbicide applications; forestry net change in economic activity Regulatory Planning and Review operations; and road, bridge, and utility attributable to the designation of critical In accordance with Executive Order construction. These same activities also habitat. The categories of potential costs 12866, this document is a significant have the potential to jeopardize the considered in the analysis included the rule and was reviewed by the Office of continued existence of the Appalachian costs associated with: (1) Conducting elktoe, and Federal agencies are already Management and Budget (OMB), as section 7 consultations associated with OMB determined that this rule may required to consult with us on these the listing or with the critical habitat, types of activities, or any other activity, raise novel legal or policy issues. The including incremental consultations and Service prepared an economic analysis that may affect the species. technical assistance; (2) modifications to Requests for copies of the regulations of this action. The Service used this projects, activities, or land uses analysis to meet the requirement of on listed wildlife and inquiries about resulting from the section 7 prohibitions and permits, or questions section 4(b)(2) of the Endangered consultations; (3) uncertainty and Species Act to determine the economic regarding whether specific activities public perceptions resulting from the will constitute adverse modification of consequences of designating the specific designation of critical habitat; and (4) areas as critical habitat. The draft critical habitat, may be addressed to the potential offsetting beneficial costs U.S. Fish and Wildlife Service, economic analysis was made available associated with critical habitat, for public comment, and we considered Asheville Field Office (see ADDRESSES including educational benefits. section). those comments during the preparation The majority of future section 7 of this rule. Economic Analysis consultations associated with the areas Regulatory Flexibility Act (5 U.S.C. 601 Section 4(b)(2) of the Act requires us being designated as critical habitat for et seq.) to designate critical habitat on the basis the Appalachian elktoe are likely to of the best scientific information address road and bridge construction, Under the Regulatory Flexibility Act available and to consider the economic Federal forestry activities, residential (5 U.S.C. 601 et seq., as amended by the and other relevant impacts of development requiring a Federal permit, Small Business Regulatory Enforcement designating a particular area as critical and hydropower relicensings. The draft Fairness Act (SBREFA) of 1996), habitat. We may exclude areas as critical analysis estimated that, over a 10-year whenever an agency is required to habitat upon reaching a determination period, approximately four formal publish a notice of rulemaking for any that the benefits of such exclusion consultations and 71 to 89 informal proposed or final rule, it must prepare outweigh the benefits of specifying such consultations will occur on projects and make available for public comment areas as critical habitat. We cannot with the potential to affect the a regulatory flexibility analysis that exclude such areas from critical habitat Appalachian elktoe and its proposed describes the effects of the rule on small when such exclusion will result in the critical habitat. In addition, the draft entities (i.e., small businesses, small extinction of the species. analysis estimated that we will provide organizations, and small government Following publication of the proposed technical assistance to various parties jurisdictions). However, no regulatory critical habitat designation, a draft on 99 to 107 occasions. Our draft flexibility analysis is required if the economic analysis was prepared to analysis assumed that many of the head of the agency certifies that the rule estimate the potential economic effect of potential future consultations are likely will not have a significant economic the designation. The draft analysis was to result in Service recommendations impact on a substantial number of small made available for public review on for certain types of project entities. The SBREFA amended the May 16, 2002 (67 FR 34893). We modifications. Based on our draft Regulatory Flexibility Act (RFA) to accepted comments on the draft analysis analysis, we concluded that costs require Federal agencies to provide a until July 1, 2002. Following the close associated with future section 7 statement of the factual basis for of the comment period on the draft consultations involving the certifying that a rule will not have a economic analysis, a final addendum Appalachian elktoe and its designated significant economic impact on a was completed that incorporated public critical habitat could potentially range substantial number of small entities. comments on the draft analysis. from $1.943 to $5.121 million over the The SBREFA also amended the RFA to Our draft economic analysis and final next 10 years. However, the draft require a certification statement. We are addendum evaluated the potential economic analysis indicates that the hereby certifying that this rule future effects associated with the listing listing of the Appalachian elktoe and designating critical habitat for the

VerDate Sep<04>2002 16:57 Sep 26, 2002 Jkt 197001 PO 00000 Frm 00178 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 Federal Register / Vol. 67, No. 188 / Friday, September 27, 2002 / Rules and Regulations 61031

Appalachian elktoe will not have a for consultations and modifications to In summary, we have considered significant economic impact on a projects ranging between approximately whether this rule could result in substantial number of small entities. $1.943 and $5.121 million over a 10- significant economic effects on a The following discussion explains our year period. substantial number of small entities. We rationale for this assertion. In determining whether this rule have determined, for the above reasons, According to the Small Business could ‘‘significantly affect a substantial that it will not affect a substantial Administration (http://www.sba.gov/ number of small entities,’’ the economic number of small entities. Therefore, we size/), small entities include small analysis first determined whether are certifying that the designation of organizations, such as independent critical habitat could potentially affect a critical habitat for the Appalachian nonprofit organizations; small ‘‘substantial number’’ of small entities elktoe will not have a significant governmental jurisdictions, including in counties supporting critical habitat economic impact on a substantial school boards and city and town areas. While the SBREFA does not number of small entities. Accordingly, a governments that serve fewer than explicitly define ‘‘substantial number,’’ regulatory flexibility analysis is not 50,000 residents; and small businesses. the Small Business Administration, as required. Small businesses include manufacturing well as other Federal agencies, has and mining concerns with fewer than Small Business Regulatory Enforcement interpreted this to represent an impact Fairness Act (5 U.S.C. 804(2)) 500 employees, wholesale trade entities on 20 percent or greater of the number with fewer than 100 employees, retail of small entities in any industry. Based OMB’s Office of Information and and service businesses with less than $5 on the past consultation history of the Regulatory Affairs has determined that million in annual sales, general and Appalachian elktoe, the economic this rule is not a major rule under 5 heavy construction businesses with less analysis anticipated that future section U.S.C. 804(2), the Small Business than $27.5 million in annual business, 7 consultations could potentially affect Regulatory Enforcement Fairness Act. special trade contractors doing less than small businesses associated with This final designation of critical habitat: $11.5 million in annual business, and residential development. To be (1) Does not have an annual effect on agricultural businesses with annual conservative (i.e., more likely to the economy of $100 million; (2) will sales less than $750,000. To determine overstate impacts than understate them), not cause a major increase in costs or if potential economic impacts to these the economic analysis assumed that a prices for consumers; individual small entities are significant, we unique company will undertake each of industries; Federal, State, or local consider the types of activities that the consultations forecasted in a given governmental agencies; or geographic might trigger regulatory impacts under year; thus, the number of businesses regions; and (3) does not have this rule as well as the types of project affected is equal to the total annual significant adverse effects on modifications that may result. In number of consultations projected in the competition, employment, investment, general, the term ‘‘significant economic economic analysis. productivity, innovation, or the ability impact’’ is meant to apply to a typical of U.S.-based enterprises to compete small business firm’s business Based on our analysis, the number of with foreign-based enterprises. As operations. small businesses estimated to be discussed in the economic analysis, In estimating the numbers of small impacted by future section 7 entities potentially affected, we also consultations is approximately 4.8 future potential section 7 costs in areas considered whether their activities have percent of the small businesses in the that we are designating as critical any Federal involvement. The affected counties. This finding is based habitat for the Appalachian elktoe are designation of critical habitat has the on the extremely conservative anticipated to have a total estimated potential to affect only activities assumption that the potential universe economic effect ranging between conducted, funded, or permitted by of affected entities includes only those approximately $1.943 and $5.121 Federal agencies. Some kinds of within the counties in which critical million over a 10-year period. activities are not likely to have any habitat units are located and attributes Furthermore, because all the areas that Federal involvement; therefore, they all of the effects of section 7 we are designating as critical habitat in will not be affected by the critical consultation on these activities solely to this rule currently support populations habitat designation. Activities with the critical habitat designation, even of the Appalachian elktoe, we would Federal involvement that may require though these effects would likely occur consult on the same range of activities consultation regarding the Appalachian with or without the designation of in the absence of this critical habitat elktoe and its critical habitat include: critical habitat for the Appalachian designation, and the above costs are regulation of activities affecting waters elktoe due to the listing of the species. most appropriately attributable to the of the United States by the U.S. Army Because these estimates are less than the section 7 jeopardy provisions of the Act Corps of Engineers under section 404 of 20 percent threshold that would be due to the listing of the species (see the Clean Water Act; forestry activities considered ‘‘substantial,’’ the analysis EFFECTS OF CRITICAL HABITAT section). carried out by the U.S. Forest Service; provided a basis for concluding that this Proposed and final rules designating and road construction, maintenance, designation will not affect a substantial critical habitat for listed species are and right-of-way designation number of small entities as a result of issued under the authority of the authorized, funded, or carried out by a the designation of critical habitat for the Endangered Species Act of 1973, as Federal agency. As required under Appalachian elktoe. The draft Economic amended (16 U.S.C. 1531 et seq.). section 4(b)(2) of the Act, we conducted Analysis and the final Addendum Competition, employment, investment, an analysis of the potential economic contain the factual bases for this productivity, innovation, or the ability impacts of this critical habitat certification and contain a complete of U.S.-based enterprises to compete designation. In the analysis, we found analysis of the potential economic with foreign-based enterprises will not that future section 7 consultations effects of this designation. Copies of be affected by the final rule designating resulting from the listing of the these documents are in the supporting critical habitat for this species. Appalachian elktoe and the proposed record for the rulemaking and are Therefore, we anticipate that this final designation of critical habitat could available at the Asheville Field Office rule will not place significant additional potentially impose total economic costs (see ADDRESSES section). burdens on any entity.

VerDate Sep<04>2002 16:57 Sep 26, 2002 Jkt 197001 PO 00000 Frm 00179 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 61032 Federal Register / Vol. 67, No. 188 / Friday, September 27, 2002 / Rules and Regulations

Executive Order 13211 of Unit 2. Tapoco-APGI owns two effect’’ on the supply, distribution, or On May 18, 2001, the President issued dams—the Santeetlah Dam on the use of energy, and no ‘‘Statement of Executive Order 13211, which applies Cheoah River, immediately upstream of Energy Effects’’ is required. Unfunded to ‘‘Actions Concerning Regulations Unit 3, and the Cheoah Dam on the Mandates Reform Act (2 U.S.C. 1501 et That Significantly Affect Energy Supply, Little Tennessee River, located seq.) In accordance with the Unfunded Distribution, or Use.’’ In order to ensure downstream of Unit 3. In addition, the Mandates Reform Act (2 U.S.C. 1501 et that Federal agencies ‘‘appropriately TVA operates the Fontana Dam on the Little Tennessee River downstream of seq.): weigh and consider the effects of the Unit 1. a. This rule will not ‘‘significantly or Federal Government’s regulations on the The combined installed capacity for uniquely’’ affect small governments. A supply, distribution, and use of energy,’’ all eight hydropower projects is 445.48 Small Government Agency Plan is not the President has directed agencies to MW (445,480 KW). Therefore, even required. Small governments will be prepare and submit to the OMB’s Office when viewed in the context of a worst- affected only to the extent that any of Information and Regulatory Affairs a case scenario, in which implementation programs using Federal funds, permits, ‘‘Statement of Energy Effects’’ for their of section 7 of the Act results in or other authorized activities must ‘‘significant energy actions.’’ The OMB significant operational changes of all ensure that their actions will not has provided guidance for eight hydropower projects, the total adversely affect the critical habitat. implementing this executive order that capacity is 445.48 MW (445,480 KW) of However, as discussed above, these outlines nine outcomes that may hydroelectricity, so the impact on these actions are currently subject to constitute ‘‘a significant adverse effect’’ hydropower facilities could not exceed equivalent restrictions through the when compared without the regulatory the 500 MW (500,000 KW) threshold. listing protections of the species, and no action under consideration: In order to determine whether further restrictions are anticipated in Reductions in crude oil supply in implementation of section 7 of the Act areas of occupied designated critical excess of 10,000 barrels per day; will result in a significant increase in habitat. Reductions in fuel production in the cost of energy production, this b. This rule will not produce a excess of 4,000 barrels per day; analysis considered the maximum Federal mandate of $100 million or Reductions in coal production in possible increase in energy production greater in any year; that is, it is not a excess of 5 million tons per year; costs under the same scenario above ‘‘significant regulatory action’’ under Reductions in natural gas production where the implementation of section 7 the Unfunded Mandates Reform Act. in excess of 25 million mcf per day; causes significant operational changes The designation of critical habitat Reductions in electricity production to all eight hydropower facilities. imposes no obligations on State or local in excess of 1 billion kilowatts per year Natural gas represents the next cheapest governments. or in excess of 500 megawatts of fuel source for generating electricity Takings installed capacity; (hydropower is the cheapest), but also Increases in energy use required by accounts for the smallest portion of In accordance with Executive Order the regulatory action that exceed the electricity production, at roughly two 12630 (‘‘Government Actions and thresholds above; percent. Nuclear-generated electricity Interference with Constitutionally Increases in the cost of energy accounts for approximately 33 percent Protected Private Property Rights’’), we production in excess of one percent; of overall generation and represents the have analyzed the takings implications Increases in the cost of energy most expensive fuel source. Electricity of designating approximately 148.4 km distribution in excess of one percent; or generated by coal-fired facilities makes (92.2 mi) of streams in North Carolina Other similarly adverse outcomes. up the largest portion of electricity and Tennessee in six units of critical There are a total of eight hydropower generated in North Carolina and habitat for the Appalachian elktoe. projects located within, upstream, and Tennessee, accounting for Based on our consideration of the downstream of critical habitat Units 1, approximately 66 percent of overall economic analysis and other pertinent 2, and 3. Accordingly, two of the criteria production. Accordingly, professional information, this rule does not have for assessing potential significant effect judgment suggests that coal would be significant takings implications, and a to energy supply, distribution, or use are the likely fuel substitute to make up for takings implication assessment is not relevant to this analysis and were any decrease in hydroelectric energy required. This rule will not ‘‘take’’ assessed in the final addendum to the production. The final addendum to the private property. The only regulatory economic analysis—(1) reductions in economic analysis determined that if consequence of the designation of electricity production in excess of 1 even all current hydroelectric energy critical habitat is that Federal agencies billion kilowatts per year or in excess of production from the eight hydroelectric must consult with us before undertaking 500 megawatts of installed capacity projects were to cease, coal-fired actions, issuing permits, or providing and—(2) increases in the cost of energy facilities would experience funding for activities that might destroy production in excess of one percent. approximately $72,244,000 in or adversely modify critical habitat. Nantahala Power and Light, a additional costs to meet this energy This regulation has no regulatory impact subsidiary of Duke Power, owns one demand, which represents on a private landowner who takes action hydropower project—the Franklin Dam, approximately 0.70 percent increase in on his or her land that does not involve on the main stem of the Little Tennessee production costs. Federal funding or authorization. River, immediately upstream of Unit 1— Therefore, even in the worst case Because the Appalachian elktoe is and four projects within the Tuckasegee scenario, implementation of section 7 already listed as endangered, Federal River system—the Dillsboro Dam that for the Appalachian elktoe will not agencies are already required to consult occurs within Unit 2, the Bryson Dam result in a ‘‘reduction in electricity with us on any of their actions that are that occurs downstream on Unit 2, and production in excess of 500 megawatts likely to adversely affect the species and the West Fork Project and East Fork of installed capacity’’ or an ‘‘increase in to ensure that their actions do not Project (the East Fork and West Fork the cost of energy production in excess jeopardize the species’ continued hydropower projects include multiple of one percent.’’ Consequently, this rule existence regardless of whether critical hydropower dams) that occur upstream will not have a ‘‘significant adverse habitat has been designated. Therefore,

VerDate Sep<04>2002 16:57 Sep 26, 2002 Jkt 197001 PO 00000 Frm 00180 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 Federal Register / Vol. 67, No. 188 / Friday, September 27, 2002 / Rules and Regulations 61033

we do not believe the designation of governments in long-range planning Interior’s manual at 512 DM 2, we critical habitat for the Appalachian rather than having to wait for case-by- readily acknowledge our responsibility elktoe will result in any significant case section 7 consultations to occur. to communicate meaningfully with additional regulatory burden on federally recognized tribes on a Civil Justice Reform landowners or affect the use of property, government-to-government basis. The whether private or Federal. In accordance with Executive Order Cherokee Indian Reservation occurs in Furthermore, only those activities 12988, the Department of the Interior’s the watershed of the reach of the with Federal involvement that are likely Office of the Solicitor has determined Tuckasegee River (Unit 2) that we are to adversely affect a listed species or that this rule does not unduly burden designating as critical habitat for the result in the destruction or adverse the judicial system and meets the Appalachian elktoe, and The Eastern modification of critical habitat require requirements of sections 3(a) and 3(b)(2) Band of Cherokee Indians owns a small consultation under section 7 of the Act. of the Order. We have designated parcel of land bordering the subject Landowners proposing or carrying out critical habitat in accordance with the reach. We have coordinated the activities, even with Federal provisions of the Endangered Species designation of critical habitat for the involvement, are not affected by the Act of 1973, as amended. The rule uses Appalachian elktoe with representatives consultation requirements under section standard property descriptions and of The Eastern Band of Cherokee 7 of the Act, or any other provisions of identifies the primary constituent Indians and have assessed potential the Act, if their activities are not in any elements within the designated areas to effects of the designation to tribal way adversely affecting a listed species assist the public in understanding the resources. or designated critical habitat. habitat needs that are essential for the We have consulted with the Bureau of This rule will not increase or decrease conservation of the Appalachian elktoe. Indian Affairs in the recent past the current restrictions concerning We have made every effort to ensure regarding a timber management plan for taking of the Appalachian elktoe on that the final determination contains no the Cherokee Indian Reservation. The private property as defined in section 9 drafting errors, provides clear standards, project plans included the maintenance of the Act and its implementing simplifies procedures, reduces burdens, of forested buffers and measures to regulations (50 CFR 17.31). and is clearly written so that the risk of control sediment and erosion in order to Additionally, critical habitat litigation is minimized. protect aquatic resources, including the designation does not preclude the Appalachian elktoe and its habitat, and development of habitat conservation Paperwork Reduction Act of 1995 (44 we concurred that the plan was not plans and the issuance of incidental U.S.C. 3501 et seq.) likely to adversely affect the take permits. Any landowner in areas This rule does not contain any new Appalachian elktoe. Because potential that are included in the designated collections of information that require effects to the species’ habitat were critical habitat will continue to have the approval by the OMB under the addressed, we do not believe opportunity to use his or her property Paperwork Reduction Act. This rule will reinitiation of consultation due to the in ways consistent with the survival of not impose new recordkeeping or designation of critical habitat is the Appalachian elktoe. reporting requirements on State or local required. In addition, it is expected that the Federalism governments, individuals, businesses, or organizations. An agency may not EPA may initiate a section 7 In accordance with Executive Order conduct or sponsor, and a person is not consultation in the future regarding the 13132, this rule does not have required to respond to, a collection of issuance of NPDES permits for The significant Federalism effects. A information unless it displays a Eastern Band of Cherokee Indians (the Federalism Assessment is not required. currently valid OMB control number. EPA, rather than the State of North In keeping with Department of the Carolina, issues NPDES permits for Interior policy, we requested National Environmental Policy Act discharges on the Cherokee Indian information from, and coordinated the We have determined that we do not Reservation). However, we do not development of this critical habitat need to prepare an Environmental anticipate an adverse impact to the designation with, appropriate State Assessment or an Environmental Impact elktoe or its designated critical habitat natural resources agencies in North Statement as defined by the National because The Eastern Band of Cherokee Carolina and Tennessee. We will Environmental Policy Act of 1969 in Indians’ wastewater treatment facility continue to coordinate any future connection with regulations adopted utilizes UV treatment (rather than changes in the designation of critical pursuant to section 4(a) of the chlorine) and the discharge from their habitat for the Appalachian elktoe with Endangered Species Act of 1973, as wastewater treatment facility is located the appropriate State agencies. The amended. We published a notice on a tributary stream that is separated designation of critical habitat for the outlining our reasons for this (by an impoundment) from the reach of Appalachian elktoe imposes few, if any, determination in the Federal Register the Tuckasegee River that is designated additional restrictions to those currently on October 25, 1983 (48 FR 49244). This as critical habitat. in place and therefore has little determination does not constitute a Furthermore, as discussed elsewhere incremental impact on State and local major Federal action significantly in this rule and in the economic governments and their activities. The affecting the quality of the human analysis of the potential effects of the designation may provide some benefit to environment. designation of critical habitat for the these governments in that the areas Appalachian elktoe, we do not believe essential to the conservation of the Government-to-Government the designation of critical habitat will species are more clearly defined and the Relationship With Tribes have any additional regulatory effect on primary constituent elements of the In accordance with the President’s activities that require Federal permits or habitat necessary to the conservation of memorandum of April 29, 1994, any other Federal actions or permitted the species are specifically identified. ‘‘Government-to-Government Relations activities beyond what is already While this does not alter where and with Native American Tribal required through the listing of the what federally sponsored activities may Governments’’ (59 FR 22951), Executive species. In view of this, The Eastern occur, it may assist these local Order 13175, and the Department of the Band of Cherokee Indians stated, by

VerDate Sep<04>2002 16:57 Sep 26, 2002 Jkt 197001 PO 00000 Frm 00181 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 61034 Federal Register / Vol. 67, No. 188 / Friday, September 27, 2002 / Rules and Regulations

letter of July 2, 2002, that they did not List of Subjects in 50 CFR Part 17 Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– object to the designation of critical Endangered and threatened species, 625, 100 Stat. 3500; unless otherwise noted. habitat for the Appalachian elktoe. Exports, Imports, Reporting and References Cited recordkeeping requirements, 2. In § 17.11(h), revise the entry for Transportation. the ‘‘Elktoe, Appalachian’’ under A complete list of all references cited Regulation Promulgation ‘‘CLAMS’’ in the List of Endangered and in this rule is available upon request Threatened Wildlife to read as follows: from the Asheville Field Office (see Accordingly, we amend part 17, ADDRESSES). subchapter B of chapter I, title 50 of the § 17.11 Endangered and threatened Code of Federal Regulations as set forth wildlife. Author below: * * * * * The primary author of this document PART 17—[AMENDED] (h) * * * is John A. Fridell, Asheville Field Office (see ADDRESSES ). 1. The authority citation for part 17 continues to read as follows:

Species Vertebrate population where en- Critical Spe- Historical range dangered Status When listed habitat cial Common name Scientific name or threat- rules ened

******* CLAMS

******* Elktoe, Appalachian ...... Alasmidonta raveneliana U.S.A. (NC, TN) ...... Entire E 563 17.95(f) NA.

*******

3. Amend § 17.95(f) by adding critical § 17.95 Critical habitat—fish and wildlife. (1) Critical habitat units are described habitat for the Appalachian elktoe * * * * * below and depicted in the maps that (Alasmidonta raveneliana) in the same (f) Clams and snails. follow, with the lateral extent of each alphabetical order as the species occurs * * * * * designated unit bounded by the ordinary high-water line. in 17.11(h). Appalachian elktoe (Alasmidonta raveneliana) (i) Index map follows:

VerDate Sep<04>2002 16:57 Sep 26, 2002 Jkt 197001 PO 00000 Frm 00182 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 Federal Register / Vol. 67, No. 188 / Friday, September 27, 2002 / Rules and Regulations 61035

(2) Unit 1. downstream to the backwaters of from the N.C. State Route 1002 Bridge (i) Macon County and Swain County, Fontana Reservoir in Swain County, NC. in Cullowhee, Jackson County, NC, NC—the main stem of the Little (3) Unit 2. downstream to the N.C. Highway 19 Tennessee River (Tennessee River (i) Jackson County and Swain County, Bridge, north of Bryson City, Swain system), from the Lake Emory Dam at NC—the main stem of the Tuckasegee County, NC. Franklin, Macon County, NC, River (Little Tennessee River system), (ii) Map of Unit 1 and Unit 2 follows:

VerDate Sep<04>2002 16:57 Sep 26, 2002 Jkt 197001 PO 00000 Frm 00183 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 ER27SE02.007 61036 Federal Register / Vol. 67, No. 188 / Friday, September 27, 2002 / Rules and Regulations

(4) Unit 3. Tennessee River system), from the confluence with the Little Tennessee (i) Graham County, NC—the main Santeetlah Dam, downstream to its River. stem of the Cheoah River (Little (ii) Map of Unit 3 follows:

VerDate Sep<04>2002 16:57 Sep 26, 2002 Jkt 197001 PO 00000 Frm 00184 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 ER27SE02.008 Federal Register / Vol. 67, No. 188 / Friday, September 27, 2002 / Rules and Regulations 61037

(5) Unit 4. Broad River system), from the Cascade (ii) Map of Unit 4 follows: (i) Transylvania County, NC—the Lake Power Plant, downstream to its main stem of the Little River (French confluence with the French Broad River.

VerDate Sep<04>2002 16:57 Sep 26, 2002 Jkt 197001 PO 00000 Frm 00185 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 ER27SE02.009 61038 Federal Register / Vol. 67, No. 188 / Friday, September 27, 2002 / Rules and Regulations

(6) Unit 5. River, downstream to the confluence of downstream to the N.C. Highway 215 (i) Haywood County, NC—the main the East Fork Pigeon River, and the Bridge crossing, south of Canton, NC. stem of the West Fork Pigeon River main stem of the Pigeon River, from the (ii) Map of Unit 5 follows: (French Broad River system), from the confluence of the West Fork Pigeon confluence of the Little East Fork Pigeon River and the East Fork Pigeon River,

VerDate Sep<04>2002 16:57 Sep 26, 2002 Jkt 197001 PO 00000 Frm 00186 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 ER27SE02.010 Federal Register / Vol. 67, No. 188 / Friday, September 27, 2002 / Rules and Regulations 61039

(7) Unit 6. downstream to its confluence with the Toe River; and the main stem of the (i) Yancey County and Mitchell North Toe River; the main stem of the Nolichucky River from the confluence County, NC, and Unicoi County, TN— Toe River, Yancey and Mitchell of the Toe River and the Cane River in the main stem of the North Toe River, Counties, NC, from the confluence of Yancey County and Mitchell County, Yancey and Mitchell Counties, NC, from the North Toe River and the South Toe NC, downstream to the U.S. Highway the confluence of Big Crabtree Creek, River, downstream to the confluence of 23/19W Bridge southwest of Erwin, downstream to the confluence of the the Cane River; the main stem of the Unicoi County, TN. South Toe River; the main stem of the Cane River, Yancey County, NC, from South Toe River, Yancey County, NC, the N.C. State Route 1381 Bridge, (ii) Map of Unit 6 follows: from the N.C. State Route 1152 Bridge, downstream to its confluence with the

VerDate Sep<04>2002 16:57 Sep 26, 2002 Jkt 197001 PO 00000 Frm 00187 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 ER27SE02.011 61040 Federal Register / Vol. 67, No. 188 / Friday, September 27, 2002 / Rules and Regulations

(8) Within these areas, the primary DEPARTMENT OF COMMERCE 2002 summer quota period (through constituent elements include: October 31, 2002). Regulations National Oceanic and Atmospheric (i) Permanent, flowing, cool, clean governing the scup fishery require Administration water; publication of this notification to advise the coastal states from Maine through (ii) Geomorphically stable stream 50 CFR Part 648 North Carolina that the quota has been channels and banks; [Docket No. 011109274–1301–02; I.D. harvested and to advise Federal vessel (iii) Pool, riffle, and run sequences 092002A] permit holders and Federal dealer within the channel; permit holders. Fisheries of the Northeastern United (iv) Stable sand, gravel, cobble, DATES: Effective 0001 hrs local time, States; Scup Fishery; Commercial boulder, and bedrock substrates with no October 5, 2002, through 2400 hrs local Quota Harvested for Summer Period more than low amounts of fine time, October 31, 2002. sediment; AGENCY: National Marine Fisheries FOR FURTHER INFORMATION CONTACT: (v) Moderate to high stream gradient; Service (NMFS), National Oceanic and Richard A. Pearson, Fishery Policy Atmospheric Administration (NOAA), (vi) Periodic natural flooding; and Analyst, (978) 281–9279. Commerce. SUPPLEMENTARY INFORMATION: (vii) Fish hosts, with adequate living, ACTION: Commercial scup quota foraging, and spawning areas for them. harvested for summer period. Regulations governing the scup fishery * * * * * are found at 50 CFR part 648. The SUMMARY: NMFS announces that the regulations require annual specification Dated: September 18, 2002. scup commercial quota available in the of a commercial quota that is allocated Craig Manson, summer period to the coastal states from into three quota periods. The summer Assistant Secretary for Fish and Wildlife and Maine to North Carolina has been commercial quota (May through Parks. harvested. Federally permitted October) is distributed to the coastal [FR Doc. 02–24362 Filed 9–26–02; 8:45 am] commercial vessels may not land scup states from Maine through North BILLING CODE 4310–55–P in these states for the remainder of the Carolina. The process to set the annual

VerDate Sep<04>2002 16:57 Sep 26, 2002 Jkt 197001 PO 00000 Frm 00188 Fmt 4700 Sfmt 4700 E:\FR\FM\27SER1.SGM 27SER1 ER27SE02.012