Reevaluation
White River & Relief Strs & Apprs Clarendon, Monroe County
Federal Aid Project BRN-0048(12)
Prepared by:
U.S. Department of Transportation Federal Highway Administration Arkansas Division Office
June 2017
TABLE OF CONTENTS
Section 1.0 Purpose of Reevaluation 1 2.0 Project Background 1 3.0 Listing of Western Approaches in 2015 2 4.0 Bicycle & Pedestrian Use 3 5.0 Endangered Species Surveys & Coordination 3 6.0 Permit Revisions 4 7.0 Transfer of Bridge in Place (Additional Considerations) 4 8.0 Conclusions 4
LIST OF FIGURES
Figure Title 1 Project Area 2 Main Span of Old Hwy 79 White River Bridge
APPENDICES
Appendix A U. S. Fish & Wildlife Service Compatibility Determination and Stipulations Appendix B Amended Section 106 MOA Appendix C Endangered Species Survey and U. S. Fish & Wildlife Coordination 1.0 PURPOSE of REEVALUATION
This Reevaluation is being prepared by the Arkansas Division office of the Federal Highway Administration (FHWA) to examine February 29, 2000 Environmental Assessment (EA) for the White River & Relief Structures & Approaches Project, which includes construction a new Highway 79 bridge over the White River and to remove the older White River Bridge in Clarendon, Arkansas. This document is being prepared in accordance with the National Environmental Policy Act of 1969 (NEPA), and all other applicable Federal and state laws and regulations, specifically 23 CFR § 771.129. The agency is required to complete a Reevaluation to update the analysis in prior NEPA documents when there are changes to the project which could affect the prior determination of potential environmental impacts. 23 C.F.R. § 771.129(c).
Following the issuance of the EA in February 2000 the project required completion an initial Reevaluation on August 16, 2005 since the project was not commenced within that time period. Following consideration of the 2005 Reevaluation a Finding of No Significant Impact (FONSI) was then issued on December 20, 2006. Following the issuance of a FONSI a reassessment of the design was considered in a second Reevaluation, which was approved on May 26, 2010. Work on the various portions of the project commenced after that time. This 2017 Reevaluation, the third completed on the project, is required given developments in the area since 2010. This document discusses the project background, considers the impacts of the listing of the western approaches of the bridge to the National Historic Register completed in 2015, considers the potential impacts on species recently listed as endangered in the area and reviews the newly proposed bicycle and pedestrian use.
2.0 PROJECT BACKGROUND
Following the issuance of the 2000 EA, the 2006 FONSI, and the later reevaluations, three construction projects have been let to contract to date. They are referenced as Arkansas State Highway and Transportation (AHTD) Job Nos. 110503, 110394, and 110395. These projects are summarized as follows:
110503: Let to contract in April 2009. This project constructed a portion of the new western approach across Roc Roe Bayou with a temporary connector back to the existing Highway 79. It also removed the existing portion of Highway 79 up to the temporary connector (including Bridge B01253 over Roc Roe), restored the natural topography, and provided vehicular access down to the Roc Roe Bayou. This work was completed to comply with the requirements of the Compatibility Determination (CD) included as Appendix A.
110394: Let to contract in July 2010. This project built the new location Bridge over the White River, south of the old bridge, and a new eastern approach in the City of Clarendon.
110395: Let to contract in November 2010. This project built the new location western approach from the temporary connector to the new White River Bridge.
These three projects have completed the construction of the new roadway and new bridges required for the new Highway 79 crossing of the White River.
1 AHTD plans to now undertake Job No. 110540 which will remove the remainder of old Highway 79, including two bridges (No. 01253 and No. B1253) and embankment, which starts in the City of Clarendon with the eastern approach, spans the White River and in its western approach runs through the Cache and White River National Wildlife Refuges (Refuges) to connect with the new Highway 79. This project is anticipated to be let to contract in July 2017. Figure 1 illustrates the proposed project area.
On December 6, 2007, the U.S. Fish and Wildlife Service (USFWS) approved a CD that determined the replacement of the Highway 79 structures and approaches with the construction of a new bridge structure, was compatible with the purposes and missions of the Cache River and White River National Wildlife Refuges. The approval of the CD was based on commitments made in the August 16, 2005 environmental document. These commitments were included as stipulations in the CD and the Exchange Deed for the highway easement between the AHTD and USFWS.
Stipulation No. 1 states that the bridge structures and embankment through the Refuges will be demolished and all resultant materials removed; the right of way will be restored to natural topography; and native hardwood vegetation will be reestablished on the right of way. Per the stipulations, the Roc Roe Bayou Bridge has already been demolished, the approaches have been restored, and vehicular access for Refuge visitors has been provided on both the east and west sides of the bayou. Most of the remaining stipulations are scheduled to be completed during Job No. 110540, with the remainder being completed soon thereafter, including releasing the right of way easement following the completion of the project. A summary of the stipulations and the status of their completion is shown in Appendix A.
The old White River Bridge (No. 01253) over the White River was originally listed in the National Register of Historic Places (NRHP or Register) on November 1, 1984 as part of the Clarendon Multiple Resource Area submission as a historic district; thus, only the main metal truss bridge spans (Figure 2), and the eastern approach and retaining walls were listed in the NHRP at that time. The western approach is located outside of Clarendon and lies within the Cache and White River Refuges. In 1992, the AHTD submitted Historic American Engineering Record (HAER) standard photography and a written history of the Clarendon Bridge to the National Park Service’s Heritage Documentation Program, which is listed in the Library of Congress records as AR-49. The original Memorandum of Agreement (MOA) between the Federal Highway Administration (FHWA), the AHTD, and Arkansas State Historic Preservation Officer (SHPO) for removal of the bridge was executed and accepted by the Advisory Council on Historic Preservation on April 18, 1997. Due to the adverse effect on the historic Clarendon Bridge, all parties agreed in the MOA that the bridge should be documented to Arkansas Historic Preservation Program (AHPP) standards. The AHTD also submitted an Arkansas Architectural Resource Form, dated February 20, 2013, including photographs of the bridge and approaches, along with a location map and the original bridge plans to the SHPO.
3.0 Listing of Western Approaches in 2015
In August 2015, the AHPP State Review Board submitted an amendment to the Register nomination adding the remainder of the western approach, which included the East Old River Lake Bridge (the western approach of AHTD Bridge No. 01253), and the West Old River Lake Bridge (No. B1253), along with the roadway on built embankment. While the AHTD disagreed with the manner in which these structures were nominated to the register, this amended the original nomination in the National Register of Historic
2 Places (NRHP) on September 28, 2015. This action completed the listing of the remaining structures built in the 1931 bridge project over the White River.
The original MOA signed by the AR SHPO, FHWA, AHTD, and the ACHP was amended in May 2017 to address the NHRP listing of AHTD Bridge Numbers 01253 and B1253 as discussed above. These structures and approaches will be documented by AHTD to the AHPP standards and provided to the Arkansas SHPO. The documentation already created and planned meets and exceeds the AHPP standards. A copy of the executed amended MOA is included at Appendix B.
Section 4(f) of the DOT Act of 1966 does not apply to the western approaches that were placed on the Register in September 2015. The designation of the western approaches was made approximately ten years after the FONSI was signed for the project. In light of this fact, FHWA has determined that Section 4(f) does not apply to the western approaches, as a significant amount of coordination was conducted with the SHPO in good faith regarding the eligibility of the western approaches when the original EA was completed and FONSI signed in 2006 (23 U.S.C. 303 and 23 C.F.R. 774). To verify, this consultation was completed with Office of Planning, Environment & Realty (HEP) and after reviewing Section (f) Policy Paper dated July 20, 2012, specifically Part II, Question 26.
4.0 Bicycle & Pedestrian Use
The AHTD’s draft Arkansas Bicycle and Pedestrian Plan does not show any trails or proposed trails at or near Clarendon, although there was public interest expressed during the public outreach process about retaining the Clarendon Bridge for that purpose. However, this proposal is not included as a part of any long range plan. AHTD’s Bicycle Facility Accommodation Policy, dated June 28, 2005, states in part that “accommodation of bicycles will be given due consideration when a proposed highway project is on a route that has been designated as a bicycle route by a locally adopted bicycle plan or master street plan and the Department concurs that the route should be a designated bicycle route...When bicycle accommodations are to be made on routes with an open shoulder section, the paved shoulder will be used to accommodate bicycles...” The newly constructed portion of Highway 79 will accommodate bicycles on its 8 foot shoulders.
5.0 Endangered Species Surveys & Coordination
Following the approval of the Reevaluation on August 16, 2005, the USFWS issued a letter (June 21, 2006) concurring with the determination that the project was not likely to adversely affect threatened or endangered species. This determination was based on negative survey results for the Ivory-billed Woodpecker (Campephilus principalis), the pink mucket mussel (Lampsilis abrupta), and the fat pocketbook mussel (Potamilus capax). In addition to the negative survey findings the AHTD agreed to relocate all mussels from the direct footprint of the project. Between August 17-26, 2010 AHTD personnel relocated 2,722 freshwater mussels representing 27 species from the construction footprint of the new bridge. One of the species collected and relocated during this effort was the rabbitsfoot mussel (Quadrula cylindrica cylindrica). Eleven individuals were relocated to two areas upstream of the collection site. During informal consultation with the USFWS during late 2012, it was determined that a freshwater mussel survey of the footprint of the demolition project would be conducted within the calendar year prior to the demolition activities to comply with Section 7 Endangered Species Act requirements.
3 On September 17, 2013, the USFWS listed the rabbitsfoot mussel as threatened under the Endangered Species Act. On April 30, 2015, the USFWS designated the segment of the White River beginning at US Highway 79 at Clarendon, AR and extending downstream to Highway 1 near St. Charles, AR as critical habitat unit RF8b (see Appendix C of this document). In anticipation of the scheduled demolition, the AHTD contracted Ecological Specialists Inc. (ESI), to complete the survey. It was conducted July 12-13, 2016 and yielded a total of 802 mussels of 22 species; however, no threatened or endangered species were collected (ESI 2016). The report was submitted to USFWS September 1, 2016 by FHWA. USFWS responded on September 15, 2016 that the survey was adequate and complete. A biological assessment was completed by AHTD to address the critical habitat issue for the rabbitsfoot mussel and submitted by FHWA to the USFWS on November 14, 2016. A biological opinion was issued by the USFWS on November 18, 2016 in which the USFWS stated that ”based on the negative results of the survey, any potential effects to these species are unlikely and discountable since none of these species were found within the surveyed area. Furthermore, any effects to these species outside of the survey area are also unlikely and discountable due to the use of BMPs, similar habitat type, distance, and lack of records for these species in the vicinity of the action”. Copies of this correspondence is included at Appendix D of this document.
6.0 Permit Revisions
On November 10, 2008, the US Army Corps of Engineers (USACE) issued Permit No. MVM 2008-00267. This permit covered all construction and demolition activities to be completed under AHTD Job No. 110123. Compensatory mitigation for the unavoidable loss of 75.8 acres of wetlands was provided at the Brushy Lake (539.5 mitigation credits) and Glaise Creek (469.8 mitigation credits) mitigation banks.
A permit modification, MVM 2008-00267-1, was requested and issued June 18, 2010, due to revisions in the White River Bridge bent locations. At the request of the USFWS, an additional modification (MVM 2008-00267-2) was granted July 25, 2012 to allow a portion of the temporary construction work roads to become permanent USFWS access roads. A request for extension and modification for Job 110540 was submitted to the USACE on August 8, 2016, and is pending approval. The modification request was submitted to allow temporary fills into the White River generated by dropping the existing bridge into the channel during demolition.
The U.S. Coast Guard (USCG) issued Bridge Permit (6-10-8) for the proposed Clarendon Highway Bridge, Mile 98.7 White River on June 8, 2010. Condition 6 requires the existing bridge be removed within 90 days after the new bridge is open to traffic. The new bridge was opened to traffic and the old bridge closed to traffic in August 2016. On May 29, 2014 the USCG stated its willingness to allow the existing bridge structure to remain in place, if there was a desire to retain the bridge for a transportation use.
7.0 Transfer of Bridge in Place (Additional Considerations)
At the time this Reevaluation was prepared, the FHWA and AHTD were discussing transferring the main span over the White River and the eastern approach in Clarendon city limits to the City of Clarendon. If this occurs, additional coordination with the USFWS regarding Section 7 of the Endangered Species Act and refuge compatibility, the Army Corps of Engineers regarding Section 10 of the Clean Water Act, and the U.S. Coast Guard will be required. This coordination would need to be addressed in a separate environmental document.
8.0 Conclusions In completing this Reevaluation, FHWA determines that the Finding of No Significant Impact (FONSI) from December 20, 2006 still remains valid and that the project may proceed.
4 Figures 1-2 Figure 1. Project area showing newly opened Hwy 79 Bridge to the south of the old Hwy 79 White River Bridge, the Town of Clarendon to the east, and USFWS refuge property to the west. Figure 2. Main span of Old Hwy 79 White River Bridge at Clarendon, AR Appendix A
U.S. Fish & Wildlife Service
Compatibility Determination and Stipulations COMPATIBILITY DETERMINATION
REPLACEMENT OF U.S. HIGHWAY 79 STRUCTURE AND APPROACHES NEAR THE CITY OF CLARENDON IN MONROE COUNTY, ARKANSAS
USE: Granting of replacement right-of-way for existing Hwy. 79 for the purpose of new bridge (and approaches) construction over the White River and associated floodplain.
REFUGE NAME(S): White River National Wildlife Refuge (Established in 1935), Cache River National Wildlife Refuge (Established in 1986)
ESTABLISHING AND ACQUISITION AUTHORITIES:
White River NWR ~xecutiveOrder 71 73, 4 September 1935; Migratoty Bird Conservation Act
Cache River NWR Emergency Wetlands Act; Migratory Bird Conservation Act; Fish and Wildlife Act of 1956
REFUGE PURPOSE(S):
White River NWR I!... As a refuge and breeding ground for migratory birds and other wildlife..." (Executive Order 7173,4 September 1935).
"...For use as an inviolate sanctuary, or for any other management purpose, for migratory birds." 16 u.s.c..715d (Migratory Bird Conservation Act). "... Shall be administered by him [Secretary of the Interior] directly or in accordance with cooperative agreements... and in accordance with such rules and regulations for the conservation, maintenance, and management of wildlife, resources thereof, and its habitat thereon ..." (Fish and Wildlife Coordination Act). "...Suitable for (1) incidental fish and wildlife-oriented recreational development, (2) the protection of natural resources, (3) the conservation of endangered species or threatened species.." 16 U.S.C., 460k-1" ... the Secretary... may accept and use ...real ...property. Such acceptance may be accomplished under the terms and conditions of restrictive covenants imposed by donors ..." 16 U.S.C., 460k-2 (Refuge Recreation Act; 16 U.S.C., 460k-460k- 4, as amended).
"...Provide environmental and economic benefits to the State of Arkansas ...and to the Nation." (Arkansas-Idaho Exchange Act of 1992). Cache River NWR "... for use as an inviolate sanctuary, or for any other management purpose, for migratory birds." 16 U.S.C. 71 5d (Migratory Bird Conservation Act). "... the conservation of the wetlands of the Nation in order to maintain the public benefits they provide and help to llfill international obligations contained in various migratory bird treaties and conventions ..."16 U.S.C. 3901 (b) (Emergency Wetlands Resources Act of 1986).
"... for the development, advancement, management, conservation, and protection of fish and wildlife resources..." 16 U.S.C. 742f (a) (4). (Fish and Wildlife Act of 1956). "... for the benefit of the United States Fish and Wildlife Service, in performing its activities and services. Such acceptance may be subject to the terms of any restrictive or affirmative covenant, or condition of servitude ..." 16 U.S.C. 742(b) (1) (Fish and Wildlife Act of 195 6),
"(1) to protect, enhance, restore, and manage an appropriate distribution and diversity of wetland ecosystems and other habitats for migratory birds and other fish and wildlife in North America;
(2) to maintain current or improved distributions of migratory bird populations; and,
(3) to sustain anabundance of waterfowl and other migratory birds consistent with the goals of the North American Waterfowl Management plan and the international obligations contained in the migratory bird treaties and conventions and other agreements with Canada, Mexico, and other countries." 16 U.S.C. 4401 (North American Wetlands Conservation Act)."
NATIONAL WILDLIFE REFUGE SYSTEM MISSION: The mission of the National Wildlife Refuge System is "to administer a national network of lands and waters for the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources andtheir habitats within the United States for the benefit of present and future generations of Americans."
DESCRIPTION OF USE: The proposed project consists of providing replacement right-of-way to the State of Arkansas through the Arkansas Highway and Transportation Department (AHTD) for the construction of new structures spanning the White River, Old River Lake, Roc Roe Bayou, and the St. Louis southwestern Railroad on the White River National Wildlife Refuge (Refuge). An environmental assessment conducted as part of National Environmental Policy Act compliance by the Federal Highway Administration (FHWA) and the AHTD (Environmental Assessment AHTD Job Number 11 0 123 FAP IWber BRN-0048(12) White River & Relief Strs. & Apprs. (Clarendon) (Hwy. 79) Monroe, County Arkansas; approved February 29,2000) and an accompanying Finding of No Significant Lmpact issued by FHWA December 20,2006 demonstrated that there was no feasible and prudent alternative to the currently proposed location for the project on national wildlife refuge lands due to the fact that the current right-of-way for U.S. Hwy. 79 serves as the southern boundary of Cache River NWR and the northern boundary for White River NWR. The White River NWR boundary extends uninterrupted for over 50 miles to the south, making a southern avoidance alternative unfeasible. The Cache River NWR boundary extends uninterrupted for over 10 miles to the north with the exception of one small break in ownership approximately 5.5 miles north of the current location of Hwy. 79. However, this area is not suitable to bridge construction due to a sharp bend in the river that would cause navigation, engineering, and safety concerns.
The proposed project will consist of approximately 4.7 miles of construction on new alignment immediately south of the existing alignment with a roadway cross-section of two 12-foot lanes with eight-foot shoulders. The White River Bridge .will provide a minimum of 52 feet clearance above the two percent flow line of 170 feet for the width of the proposed 283-foot wide channel span (between piers). This project will replace the existing roadway approaches and bridges over the White River, Old River Lake, and Roc Roe Bayou because these structures 'are hctionally and structurally deficient and pose public safety concerns. The replacement structures will enable safe vehicular passage and improve the hydrological conditions for the Refuges due to increased elevated spans across the floodplain.
AVAILABILITY OF RESOURCES: All resources for the actual project costs will be provided by funds made available by the FHWA and the AHTD. Resources provided by the Service will include replacement right-of-way for the existing Hwy. 79 structures and approaches, and staff participation needed to process permits, monitor and ensure compliance with SUP conditions, and various other administrative tasks associated with the project.
ANTICIPATED IMPACTS OF THE USE: There are numerous negative impacts from construction of the proposed highway project that could potentially affect wildlife and/or their habitats on refuge lands. These include, but are not limited to, impacts to threatened or endangered species, migratory birds, forested wetlands and uplands, and other wildlife (black bear, white-tailed deer, turkey, small mammals). Public use impacts will also result from the proposed project. Positive impacts on aquatic and terrestrial habitats and associated fish and wildlife populations also will result from implementation of this project. These issues are addressed in the following paragraphs.
Threatened and Endangered Species Three federally listed endangered species potentially occur within the project vicinity: the endangered pink mucket mussel (Lampsilis abrupta), the endangered fat pocketbook mussel (Potamilus capax), and the recently rediscovered Ivory-billed Woodpecker. The endangered plant pondberry (Lindera melissafolia) has been recorded from Monroe County but is not known to occur within the project action area. Extensive surveys for all endangered species revealed that none were present in the area of impact. A determination that the project was "not likely to adversely affect" any of the endangered species listed above was made by the FHWA and concurrence was issued by the Service on June 21,2006. Conditions ultimately will be improved for mussels as well other aquatic organisms because of enhanced hydrologic function and habitat restoration.
Migratorv Birds The primary purpose of the Refuges is migratory bird conservation, specifically waterfowl. Impacts to waterfowl and other birds such as neotropical migrants resulting from construction work will be in the forms of noise disturbance and destruction of habitat. Such impacts will occur over five to seven years of construction. Habitat restoration and enhanced management that will occur as a result of this project will provide potential long-term benefits to these species by increasing available habitat.
Forested Wetlands and Uplands A total of 79 acres of forested and farmed wetlands and 0.8 acre of forested upland will be directly impacted through permanent conversion to right-of-way for the new alignment of Hwy. 79. However this loss will be countered by restoration of adjacent habitat and management of replacement habitat for wildlife values. Additional acreage may be temporarily impacted through construction of work roads, soil compaction, and interruption of floodplain flows.
Other Wildlife Wildlife such as black bear, white-tailed deer, turkey, small mammals, and aquatic fauna will be affected during the course of the project as a result of habitat destruction, noise, and other disturbance associated with large scale construction projects. These disturbances may result in direct mortality or interruption in important life history aspects such as feeding or breeding. Removal of existing bridge superstructures and piers will likely result in minor, temporary, localized fish kills and death of other aquatic fauna such as freshwater mussels, turtles, etc.; however, overall conditions ultimately will be improved. Reclamation and restoration of former right-of-way could result in direct mortality of wildlife within the project area; however, the ultimate outcome will be a positive benefit to wildlife due to improved habitat conditions.
Public Use Construction activities will occur over five to seven years in areas frequently accessed by the public for fishing, hunting, camping, and wildlife viewing. Noise and construction activity will negatively impact these public uses in portions of the project area at least periodically throughout the duration of the project. Reclamation of the historic borrow pits will eliminate popular fishing areas used by local anglers, but will provide long-term benefits to other users interested in hunting, or observinglphotographingwildlife that will be attracted to habitats restored to a more natural (pre-construction) condition.
PUBLIC REVIEW AND COMMENT: This Draft Compatibility Determination was available for comment from October 22, 2007 - November 21,2007 through a local news release provided to the following newspapers: Brinkley Argus, Daily Leader, Daily World, DeVaIIs BluffTimes, Grand Prairie Herald, Monroe County Sun, Stuttgart Daily Leader, Times Herald, White River Delta Dispatch, FVhite River Journal, and WoodruffCounty Monitor. In addition, public notices were printed in Monroe County Sun and the Arkansas Democrat-Gazette. Copies of the Proposed Draft Conipatibility Determination were available for public review at White River NWR headquarters in St. Charles, Arkansas or Cache River NWR headquarters in Dixie, Arkansas. Copies of the Draft Compatibility Determination were requested and sent to Tricia Rogers of Clarendon and J.T. Davis of Roe. No comments were received by the close of comment period.
DETERMINATION (CHECK ONE BELOW):
USE IS NOT COMPATIBLE
X USE IS COMPATIBLE WITH THE FOLLOWING STIPULATIONS
STIPULATIONS NECESSARY Tb ENSURE COMPATIBILITY:
1. Bridge Numbers 01253, B1253, and A1253 crossing White River, Old River Lake, and Roc Roe Bayou will be demolished and all resultant materials removed, the right-of- way will be restored to natural topography, and native hardwood vegetation will be re- established at these sites.
2. Borrow pits adjacent to the existing roadway fill sections will be restored to natural topography utilizing the existing roadway fill, and native hardwood vegetation will be re- established at these sites. A special provision will specifically direct the construction sequencing for filling of the borrow pits in order to minimize adverse impacts to aquatic resources during the restoration. As borrow pits are restored from east to west, passageways for fishes and other aquatic organisms will be maintained to allow retreat into Roc Roe Bayou.
3. Abandoned right-of-way that is legally entitled to the United States of America will be so deeded in fee title for incorporation into the Refuges.
4. Vehicular access for Refuge visitors will be provided to Roc Roe Bayou and the Refuges on both the east and west sides of the bayou.
5. Vehicular access, paved parking area to accommodate 20 vehicles and boat trailers, and a concrete boat ramp for use by Refuge visitors will be provided in the vicinity of the existing First Old River Lake boat ramp.
6. Property identified for reforestation in order to achieve enhanced hydrologic conditions on the Refuges as a result of two dimensional surface water velocity conditions described in Alternative 2 in Water-Resources Investigations Report 02-4256, and as subsequently defmed by correspondence provided to the AHTD dated March 18, 2004 and June 17,2005 will be acquired by AHTD. The portion required as replacement property for taking Refuge land will be provided to the United States in fee title. Any remaining property acquired by AHTD and not deeded to the United States will be managed as part of the Refuges contingent on mutually acceptable Memorandum of Agreement between the responsible agencies.
7. Large "entering and leaving" refuge signs will be furnished and erected on the new highway right-of-way. Service personnel will be consulted concerning sign design.
8. Useable material fiom the project that is salvageable will be made accessible to the Service upon request for use on the Refuges. However, all material excess to the Service needs will be removed fiom the Refuges and properly disposed of off site.
9. AHTD will complete all necessary environmental, cultural resource, and other reviews and analyses, properly llfill all public and agency coordination processes, and secure all required local, state, and federal permits prior to performing any construction activities on the Refuges.
JUSTIFICATION: The following justification(s) for the proposed project will be addressed in relation to the anticipated impacts of the use.
Threatened and Endangered Species Surveys were conducted for three federally listed endangered species that potentially occur within the project vicinity: the pink mucket mussel (Lampsilis abrupta), the fat pocketbook mussel (Potamilus capax), and Ivory-billed Woodpecker. No specimens of any species were encountered. A determination that the project was "not likely to adversely affect" any of the endangered species listed above was made by the FHWA and concurrence was issued by the Service on June 21,2006. Habitat for each species is present in the project area and could become occupied in the future. Short term impacts to available habitat will be offset by the benefits of habitat restoration that will occur as a result of the proposed project. Restoration of former right-of-way, acquisition of adjacent agricultural properties with subsequent reforestation, and substantially longer elevated spans for all bridges will improve hydrologic functions (as demonstrated by the U.S. Geological Survey Water-Resources Investigations Report 02-4256) that were disturbed by the historic project.
Migratory Birds As discussed previously, negative short-term impacts to available habitat for migratory birds will be offset by the positive benefits of habitat restoration that will occur as a result of the proposed project. Also, acreage added to the Refuges as a result of the project will provide additional habit for migrating waterfowl and other species of migratory birds. More than 212 acres of current agricultural field will be reforested. Some of this will be deeded to the United States in fee title to be incorporated into the Refuges as replacement property, and the remainder acquired for flow velocity mitigation of impacts to fish and wildlife resources and will be made available for Service management through a formal Memorandum of Agreement. Management rights to the 320-acre AHTD Brushy Lake Wetland Mitigation Bank, which is adjacent to the project area and the White River NWR on the east side of the White River, will also be granted to the Service through formal Memorandum of Agreement. In total, an additional 532.2 acres of habitat suitable for migratory birds will be made available for refuge management.
Forested Wetlands and Uplands Forested and farmed wetlands that will be negatively impacted by the project will be mitigated through replacement lands and through Section 404 of the Clean Water Act compliance. A total of approximately 79.8 acres (west of White River) will be negatively impacted by the project. Of this acreage, 5 1.9 acres is Service property with 5 1.1 acres of wetlands and 0.8 acre of upland. The remaining 27.9 acres of private in-holdings are also delineated as farmed or forested wetlands. Approximately 2 12.2 acres (1 95 acres south of Hwy. 79 and 17.2 acres north of Hwy. 79) of farmed wetland within the area of impact will be added to the Refuges (either deeded in fee title or through management rights) and restored as replacement property or for mitigation purposes. Any additional wetland impacts will be debited fiom the 320-acre Brushy Lake Wetland Mitigation Bank. The relatively small amount of upland (0.8 acre) to be converted to right-of-way is negligible in the context of the Refuges resources.
Other Wildlife Black bear, white-tailed deer, turkey, small mammals, and aquatic fauna that will be negatively affected as a'result of the project will also receive some benefits. Longer elevated bridge spans around water bodies and in the Refuges floodplains will provide greater opportunity for wildlife passage through the area without the need to cross the roadway surface. Greater sight distances for motorists will help reduce wildlife mortality fiom vehicle strikes. Acreage added to the Refuges will provide additional habitat for the benefit of numerous species of wildlife, and improved hydrologic functions that result fiom the project will improve habitat for aquatic flora and fauna as well.
Public Use Conditions of the current highway and bridge spans are obsolete, structurally deficient, and not up to current standards for safety of roadway users, including visitors to the Refuges. Bridge approach embankments are unstable, and the travel lanes and shoulders require fiequent maintenance.. The project area serves as a major access artery to the Refuges and the completed project will result in increased safety and reduced risk of visitor injury or death. Following project construction, public access to Roc Roe Bayou and Old River Lake in particular will be safer and much improved due to wider shoulders, improved sight distances, safer ingresslegress points, new boat launches, and adequate parking areas.
Noise and construction activity will negatively impact most of the project area for public uses such as fishing, camping, and hunting at least periodically throughout the duration of the project. However, public access to all current facilities will be maintained throughout project construction. Additional acreage added to the Refuges will also provide hunting, fishing, and wildlife viewing opportunities to the public in areas not previously accessible due to private ownership. Restored areas will provide additional benefit to visitors seeking to engage in Priority Public Uses on the Refuges. NEPA COMPLIANCE FOR REFUGE USE DECISION (check one below):
Categorical ~xclusionwithout Environmental Action Statement
Categorical Exclusion and Environmental Action Statement
X Environmental Assessment and Finding of No Significant Impact (FONSI) The proposed project was evaluated in a February 29,2000 Environmental Assessment and subsequent re-evaluation dated June 29,2005 by the FHWA and the AHTD. The FONSI was issued by the FHWA on December 20,2006.
Environmental Impact Statement and Record of Decision
Signature: Refuge Manager: 7
Signature: Refuge Manager: . Y (Signature and D ~NlEw : gEii hd4 L a
Review: Refuge Supervisor
Concurrence: Regional Chief: /&f ~2'6'67 (Signature and Date)
MANDATORY RE-EVALUATION DATE (provide month and year):
Mandatory 15-year Re-Evaluation Date (for priority public uses)
X Mandatory 1O-year Re-Evaluation Date (for all uses other than priority public -uses)
Mandatory 10- or 15-year Re-evaluation Date: -'I i - 06 ?, 2017 AHTD Job Number 110123 USFWS Stipulation Status
Stipulations Necessary To Ensure No. Current Status Compatibility • Bridge Numbers 01253, B01253, A1253 • Bridge No. A1253 crossing Roc Roe Bayou was crossing White River, Old River Lake, and demolished and the associated ROW restored to Roc Roe Bayou will be demolished and all natural topography during Job No. 110503. resultant materials removed, and the • The remaining bridges through the Refuge will be 1 right-of-way (ROW) will be restored to demolished, removed and the ROW restored to natural natural topography. topography during Job Number 110540. • Native hardwood vegetation will be re- • Planting with hardwood vegetation will be performed established at these sites. after the contractor has completed the work. • Borrow pits adjacent to the existing • On Job 110503, borrow pits adjacent to the existing roadway fill sections will be restored to roadway fill sections were restored to natural natural topography utilizing the existing topography utilizing the existing roadway fill. roadway fill. • A special provision was utilized to direct the • Native hardwood vegetation will be re- construction sequencing of the borrow pits in order to established at these sites. minimize adverse impacts to aquatic resources during • A special provision will specifically direct restoration. Borrow pits were restored from east to 2 the construction sequencing of the borrow west, maintaining passageways for fishes and aquatic pits in order to minimize adverse impacts organisms to allow retreat into Roc Roe Bayou. to aquatic resources during restoration. As • The remaining borrow pits will be filled and restored to borrow pits are restored from east to west, natural topography during Job Number 110540. passageways for fishes and aquatic • Planting with native hardwood vegetation will occur organisms will be maintained to allow after the contractor has completed the work. retreat into Roc Roe Bayou. • Abandoned ROW that is legally entitled to • Abandoned ROW that is legally entitled to the USA will the United States of America will be so be so deeded in fee title for incorporation into the 3 deeded in fee title for incorporation into Refuges after completion of Job No. 110540. the Refuges. • Vehicular access for Refuge visitors will be • Vehicular access for Refuge visitors to Roc Roe Bayou provided to Roc Roe Bayou and the and the Refuges on both the east and west sides of the 4 Refuges on both the east and west sides of bayou was constructed under Job 110503, as shown on the bayou. the enclosed figure. • Vehicular access, paved parking area to • Vehicular access, a gravel* parking area to accommodate 20 vehicles and boat accommodate 20 vehicles and boat trailers, and a trailers, and a concrete boat ramp for use concrete boat ramp will be constructed in the vicinity 5 by Refuge visitors will be provided in the of the existing First Old River Lake boat ramp as a part vicinity of the existing First Old River Lake of Job 110540. boat ramp. *Per request of USFWS, gravel will be used instead of paving. • Property identified for restoration in order • A flowage easement was purchased on 17.64 acres to achieve enhanced hydrologic conditions identified for the enhanced hydrologic restoration, as on the Refuges as a result of two shown on the enclosed figure. This property has been dimensional surface water velocity planted to restore native hardwood vegetation. conditions described in Alternative 2 in • 146.8 acres required as replacement property for Water-Resources Investigations Report taking Refuge land, as shown on the enclosed figure, 02-4256, and as subsequently defined by has been provided to the USFWS in fee title, and has 6 correspondence provided to the AHTD been planted to restore native hardwood vegetation. dated March 18, 2004 and June 17, 2005 • 56.8 acres of property acquired by AHTD, as shown on will be acquired by AHTD. the enclosed figure, will be managed as part of the • The portion required as replacement White River Refuge contingent on a mutually property for taking Refuge land will be acceptable MOA between the responsible agencies. A provided to the USFWS in fee title. draft MOA is under review. • Any remaining property acquired by AHTD and not deeded to the USFWS will be managed as part of the Refuges contingent on a mutually acceptable Memorandum of Agreement (MOA) between the responsible agencies. • Large “entering and leaving” refuge signs • Large “entering and leaving” refuge signs have been will be furnished and erected on the new furnished and erected on the new highway right-of- 7 highway right-of-way. way. • USFWS personnel will be consulted • USFWS personnel were consulted concerning sign concerning sign design. design. • Useable material from the project that is • (16) 67-foot steel I-beams were provided upon the salvageable will be made accessible to the request of the USFWS as salvageable material for use USFWS upon request for use on the on the Refuges during Job 110503. Refuges. 8 • All material excess to USFWS needs has been and will • All material excess to the USFWS needs will continue to be removed from the Refuges and properly be removed from the Refuges and properly disposed of offsite. This work will be completed under disposed of offsite. Job 110540. • AHTD will complete all necessary • AHTD will complete all necessary environmental, environmental, cultural resources, and cultural resources, and other reviews and analyses, and other reviews and analyses, and properly properly fulfill all public and agency coordination fulfill all public and agency coordination processes. 9 processes. • AHTD will secure all required local, state, and federal • AHTD will secure all required local, state, permits prior to performing any construction activities and federal permits prior to performing on the Refuges. any construction activities on the Refuges.
Appendix B Amended Section 106 MOA
AMENDED MEMORANDUM OF AGREEMENT AMONG THE FEDERAL HIGHWAY ADMINISTRATION, THE ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT, THE ARKANSAS STATE HISTORIC PRESERVATION OFFICE, AND THE ADVISORY COUNCIL ON HISTORIC PRESERVATION REGARDING THE WHITE RIVER AND RELIEF STRUCTURES AND APPROACHES (CLARENDON), (HWY. 79) IN MONROE COUNTY, ARKANSAS AHTD JOB NUMBER 110123
WHEREAS, the Federal Highway Administration (FHWA) as the lead federal agency administers Federal Aid Program funding under 23 Code of Federal Regulations (CFR) that enabled the Arkansas State Highway and Transportation Department (AHTD) to fund the replacement of the White River and Relief Structures and Approaches on Highway 79 near Clarendon, Arkansas in Monroe County (undertaking); and
WHEREAS, the undertaking consists of the replacement of three bridges and their approaches: the White River Bridge (Bridge Number 01253), the West Old River Lake Bridge (Bridge Number B1253), and the Roc Roe Bayou Bridge (Bridge Number A1253); and
WHEREAS, the White River Bridge is a structure included as a part of the Clarendon Multiple Resource Area submission listed in the National Register of Historic Places (NRHP) on November 1, 1984;
WHEREAS, the FHWA, acting as the lead federal agency; and the U.S. Army Corps of Engineers, the U.S. Coast Guard, and the U.S. Fish and Wildlife Service (USFWS) acting as cooperating agencies; completed environmental documentation in accordance with the National Environmental Policy Act of 1969 (NEPA); and
WHEREAS, the FHWA and AHTD conducted public hearings on the undertaking in April, 2000 and March, 2006; and
WHEREAS, the project requires the removal of the White River Bridge (Bridge Number 01253), the West Old River Lake Bridge (Bridge Number B1253), and the Roc Roe Bayou Bridge (Bridge Number A1253), and the roadway on built embankment; and
WHEREAS, the FHWA determined that this undertaking would have an adverse effect on the National Register property Clarendon Multiple Resource Area; and consulted with the State Historic Preservation Office (SHPO) and the Advisory Council on Historic Preservation (ACHP) pursuant to 36 CFR Part 800, the regulations implementing Section 106 of the National Historic Preservation Act of 1966 (NHPA), as amended (54 U.S. Code 306108); and
WHEREAS, the Memorandum of Agreement (MOA) to mitigate effects on the Clarendon Multiple Resource Area was developed pursuant to Section 106 of the NHPA, and executed on April 18, 1997, remains in effect, and can be found in Attachment A; and
AHTD Job Number 110123 Amendment to Memorandum of Agreement White River and Relief Structures and Approaches Near Clarendon Arkansas, in Monroe County Page 2 of 8
WHEREAS, the AHTD began construction in April, 2009 of the White River and Relief Structures and Approaches; and in 2013, the Roc Roe Bayou Bridge (Bridge Number A1253) was demolished; and
WHEREAS, in June 2015, FHWA and AHTD were notified there was an error by the SHPO’s office on the National Register nomination for the Clarendon Multiple Resource Area, stating the west approach of the Clarendon Bridge over the river bottoms was not listed, although it was eligible; and
WHEREAS, the remaining portions of the White River Bridge Structures and Approaches, including the western approach of the White River Bridge (Bridge Number 01253), the West Old River Lake Bridge (Bridge Number B1253), and the roadway on built embankment were added to the listing for the NRHP Clarendon Multiple Resource Area on September 28, 2015 and the FHWA has determined that the undertaking will have an adverse effect to these additional historic properties, necessitating the reopening of consultation with the SHPO to consider additional adverse effects pursuant to 36 CFR § 800, the regulations implementing Section 106 of the NHPA (54 U.S.C. § 306108); and
WHEREAS, FHWA has notified and invited the participation of the Osage Nation of Oklahoma, the Quapaw Tribe of Oklahoma, the Tunica-Biloxi Tribe of Louisiana, the Kickapoo Traditional Tribe of Texas, the Kialegee Tribal Town, the Ponca Tribe of Oklahoma, the Cherokee Nation of Oklahoma, United Keetoowah Band of Cherokee Indians of Oklahoma, the Chickasaw Nation of Oklahoma, the Choctaw Nation of Oklahoma, the Absentee-Shawnee Tribe, the Eastern Shawnee Tribe of Oklahoma, the Shawnee Tribe, the Otoe-Missouria Tribe of Oklahoma, the Kickapoo Tribe of Kansas, the Sac and Fox Nation of Missouri, the Sac and Fox Nation of Oklahoma, the Alabama-Quassarte Tribal Town, the Peoria Tribe, the Seminole Tribe of Florida, the Thopthlocco Tribal Town, the Mississippi Band of Choctaw Indians, the Muscogee (Creek) Nation, the Poarch Band of Creek Indians, the Pawnee Tribe, the Delaware Nation, and the Tonkawa Tribe for which the White River and Relief Structures could have religious and cultural significance. Responses to the tribal consultation letters did not object to the project, as long as construction halted if remains or other items falling under National American Graves Protection and Repatriation Act (NAGPRA) were discovered; and
WHEREAS, in accordance with 36 CFR § 800.6(a)(1), FHWA has notified the Advisory Council on Historic Preservation (ACHP) and SHPO of its amended adverse effect determination with specified documentation, and the ACHP has chosen to participate in the consultation pursuant to 36 CFR § 800.6(a)(1)(iii); and
NOW, THEREFORE, the FHWA, AHTD, SHPO and the ACHP agree that the undertaking shall be implemented in accordance with the following amended stipulations in order to take into account the effect of the undertaking on historic properties:
AHTD Job Number 110123 Amendment to Memorandum of Agreement White River and Relief Structures and Approaches Near Clarendon Arkansas, in Monroe County Page 3 of 8
STIPULATIONS
The FHWA shall ensure that the following measures are carried out:
I. MITIGATION OF ADVERSE EFFECT TO THE HISTORIC PROPERTY AHTD Bridge Numbers 01253 and B1253 structures and approaches will be documented by AHTD to the Arkansas Historic Preservation Program standards and provided to the Arkansas SHPO. The documentation will also be housed at the Arkansas State Archives in Little Rock, Arkansas, and at the University of Central Arkansas Archives and Special Collections at Conway, Arkansas.
II. DURATION This MOA amendment will expire if its terms are not carried out within five (5) years from the date of its execution, or from the completion of the proposed project. Prior to such time, FHWA may consult with the other signatories to reconsider the terms of the MOA and amend it in accordance with Stipulation V below.
III. MONITORING AND REPORTING Each year following the execution of this MOA until it expires or is terminated, FHWA shall provide all parties to this MOA a summary report detailing work undertaken pursuant to its terms. Such report shall include any scheduling changes proposed, any problems encountered, and any disputes and objections received in FHWA’s efforts to carry out the terms of this MOA.
IV. DISPUTE RESOLUTION Should any signatory to this MOA object at any time to any actions proposed or the manner in which the terms of this MOA are implemented, FHWA shall consult with such party to resolve the objection. If FHWA determines that such objection cannot be resolved, it will request further comments from the ACHP pursuant to 36 CFR § 800.7:
1. Forward all documentation relevant to the dispute, including the FHWA’s proposed resolution, to the ACHP. The ACHP shall provide FHWA with its advice on the resolution of the objection within thirty (30) days of receiving adequate documentation. Prior to reaching a final decision on the dispute, FHWA shall prepare a written response that takes into account any timely advice or comments regarding the dispute from the ACHP, signatories and concurring parties, and provide them with a copy of this written response. FHWA will then proceed according to its final decision.
2. If the ACHP does not provide its advice regarding the dispute within the thirty (30) day time period, FHWA may make a final decision on the dispute and proceed accordingly. Prior to reaching such a final decision, FHWA shall prepare a written response that takes into account any timely comments regarding the dispute from the signatories and concurring parties to the MOA, and provide them and the ACHP with a copy of such written response. AHTD Job Number 110123 Amendment to Memorandum of Agreement White River and Relief Structures and Approaches Near Clarendon Arkansas, in Monroe County Page 4 of 8
3. FHWA’s responsibility to carry out all other actions subject to the terms of this MOA that are not the subject of the dispute remain unchanged.
V. AMENDMENTS This MOA may be amended when such an amendment is agreed to in writing by all signatories. The amendment will be effective on the date a copy signed by all of the signatories is filed with the ACHP.
VI. TERMINATION If any signatory to this MOA determines that its terms will not or cannot be carried out, that party shall immediately consult with the other signatories to attempt to develop an amendment per Stipulation V, above. If within thirty (30) days (or another time period agreed to by all signatories) an amendment cannot be reached, any signatory may terminate the MOA upon written notification to the other signatories.
Once the MOA is terminated, and prior to work continuing on the undertaking, FHWA must either (a) execute an MOA pursuant to 36 CFR § 800.6 or (b) request, take into account, and respond to the comments of the ACHP under 36 CFR § 800.7. FHWA shall notify the signatories as to the course of action it will pursue.
Execution of this MOA by the FWHA, AHTD, SHPO, and the ACHP and implementation of its terms evidence that FWHA has taken into account the effects of this undertaking on historic properties and afforded the ACHP an opportunity to comment. AHTD Job Number 110123 Amendment to Memorandum of Agreement White River and Relief Structures and Approaches Near Clarendon Arkansas, in Monroe County Page 5Page of9 5 of 8 -&SIGNATORY t'EDERAL IIIGHWAY ADMINISTRATION z/1Lef:r � �/rfa,017 � Mr. Angel Correa Date Arkansas Division Administrator AHTD Job Number 110123 Amendment to Memorandum of Agreement White River and Relief Structures and Approaches Near Clarendon A kansas, in Monroe County 9Page 6 of 8
SIGNATORY
NSAS STATE IDSTORIC PRESERVATION OFFICER
M Arkansas
Attachment A
Memorandum of Agreement White River and Relief Structures and Approaches (AHTD Bridge Number 01253)
Appendix C Rabbitsfoot Mussel Endangered Species Listing & Critical Habitat Designation 57076 Federal Register / Vol. 78, No. 180 / Tuesday, September 17, 2013 / Rules and Regulations
DEPARTMENT OF THE INTERIOR Executive Summary the publication of the notice of Why we need to publish a rule. Under availability for the draft economic Fish and Wildlife Service the Endangered Species Act (Act), a analysis and draft environmental species may warrant protection through assessment (78 FR 27171) opened on 50 CFR Part 17 listing if it is endangered or threatened May 9, 2013, and closed on June 10, 2013. We held public information [Docket No. FWS–R4–ES–2012–0031; throughout all or a significant portion of 4500030113] its range. Listing a species as an meetings in Joplin, Missouri, on May 21, 2013, and Greenville, Missouri, on May RIN 1018–AX73 endangered or threatened species can only be completed by issuing a rule. We 23, 2013. We did not receive any will issue a final determination on the requests for a public hearing during Endangered and Threatened Wildlife either comment period. We also and Plants; Endangered Status for the designation of critical habitat for the Neosho mucket and rabbitsfoot under contacted appropriate Federal, State, Neosho Mucket and Threatened Status and local agencies, scientific for the Rabbitsfoot the Act in the near future. The basis for our action. Under the organizations, and other interested AGENCY: Fish and Wildlife Service, Act, we can determine that a species is parties and invited them to comment on Interior. an endangered or threatened species the proposed rule. In addition, we ACTION: Final rule. based on any of five factors: (A) The published a total of 27 legal public present or threatened destruction, notices in the States affected by the SUMMARY: We, the U.S. Fish and listing of both species. All substantive Wildlife Service (Service), determine modification, or curtailment of its habitat or range; (B) overutilization for information provided during the the Neosho mucket, a freshwater comment periods has either been mussel, as endangered, and the commercial, recreational, scientific, or educational purposes; (C) disease or incorporated directly into this final rabbitsfoot, a freshwater mussel, as determination or is addressed below. threatened, under the Endangered predation; (D) the inadequacy of Species Act. The Neosho mucket occurs existing regulatory mechanisms; or (E) Peer Reviewer Comments other natural or manmade factors in Arkansas, Kansas, Missouri, and In accordance with our peer review Oklahoma. The rabbitsfoot occurs in affecting its continued existence. We have determined that both species are policy published on July 1, 1994 (59 FR Alabama, Arkansas, Georgia, Illinois, 34270), we solicited expert opinion Indiana, Kansas, Kentucky, Louisiana, threatened by destruction, modification, or curtailment of habitat or range (Factor from three knowledgeable individuals Mississippi, Missouri, Ohio, Oklahoma, with scientific expertise on freshwater Pennsylvania, Tennessee, and West A), inadequate existing regulatory mechanisms (Factor D), and other mussel conservation and biology, with Virginia. This final rule implements the familiarity of Neosho mucket and protections provided by the Act for manmade factors (Factor E). Peer review and public comment. We rabbitsfoot, the geographic region and these species. We will issue a final river basins in which they occur, and determination on the designation of sought comments from three independent specialists to ensure that conservation biology principles critical habitat for these species in the associated with the species. We received near future. our designation is based on scientifically sound data, assumptions, responses from all of the peer reviewers DATES: This rule becomes effective we contacted. October 17, 2013. and analyses. We invited these peer reviewers to comment on our listing We reviewed all comments received ADDRESSES: This final rule is available proposal. The peer reviewers generally from the peer reviewers for substantive on the Internet at http:// concurred with our methods and issues and new information regarding www.regulations.gov and at the conclusions and provided additional the listing of Neosho mucket and Arkansas Ecological Services Office. information, clarifications, and rabbitsfoot. The peer reviewers Comments and materials received, as suggestions to improve the final listing generally concurred with our methods well as supporting documentation used rule. We also considered all comments and conclusions and provided in the preparation of this rule, are and information received during the additional information, clarifications, available for public inspection at http:// comment periods. and suggestions to improve the final www.regulations.gov. All of the listing rule. Peer reviewer comments on comments, materials, and Previous Federal Actions the listing of the mussels are addressed documentation that we considered in Please refer to the proposed listing in the following summary and this rulemaking are available by rule for the Neosho mucket (Lampsilis incorporated into this final rule as appointment, during normal business rafinesqueana) and rabbitsfoot appropriate. hours at: U.S. Fish and Wildlife Service, (Quadrula cylindrica cylindrica) (1) Comment: One peer reviewer Arkansas Ecological Service Office, 110 (October 16, 2012; 77 FR 63440) for a suggested that we discuss the lure used South Amity Road, Suite 300, Conway, detailed description of previous Federal by rabbitsfoot to attract its fish hosts and AR 72032, telephone 501–513–4470 or actions concerning these species. redefine the marsupium as a ‘‘brooding facsimile 501–513–4480. pouch’’ rather than a ‘‘pouch’’. FOR FURTHER INFORMATION CONTACT: Summary of Comments and Our Response: We incorporated James F. Boggs, Field Supervisor, Recommendations language to address this topic under the Arkansas Ecological Services Office, 110 We requested written comments from Background section of this final South Amity Road, Suite 300, Conway, the public on the proposed listing rule determination. AR 72032, by telephone 501–513–4470 for the Neosho mucket and rabbitsfoot (2) Comment: One peer reviewer or by facsimile 501–513–4480. Persons during two comment periods. The first questioned whether the Act and its who use a telecommunications device comment period, starting with the implementing regulations set forth a for the deaf (TDD), may call the Federal publication of the proposed rule (77 FR series of general prohibitions and Information Relay Service (FIRS) at 63440), opened on October 16, 2012, exceptions that apply to threatened 800–877–8339. and closed on December 17, 2012. The wildlife the same as endangered SUPPLEMENTARY INFORMATION: second comment period, starting with wildlife.
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Our Response: The prohibitions of Chemical Contaminants section of this indicated listing of rabbitsfoot may section 9(a)(1) of the Act, incorporated final determination. affect the COEPD’s navigation and into our regulations at 50 CFR 17.21, (6) Comment: One peer reviewer maintenance dredging activities in the make it illegal for any person subject to recommended we include rabbitsfoot Allegheny River, its operation of the jurisdiction of the United States to density information for the Little River Allegheny Reservoir, and its regulatory take (includes harass, harm, pursue, from Galbraith and Vaughn (2011). This program. They indicate additional hunt, shoot, wound, kill, trap, capture, reviewer also recommended we include avoidance measures will be required to or collect, or to attempt any of these), information from Galbraith (2009) on adequately protect rabbitsfoot and its import, export, ship in interstate the effects of water temperature to habitat. commerce in the course of commercial rabbitsfoot. Our Response: The federally activity, or sell or offer for sale in Our Response: We agree and endangered clubshell (Pleurobema interstate or foreign commerce any incorporated language to address the clava), northern riffleshell (Epioblasma species listed as endangered. Our topic in the Taxonomy, Life History, and torulosa rangiana), rayed bean (Villosa regulations at 50 CFR 17.31 contain the Distribution section for Rabbitsfoot and fabalis), and snuffbox (Epioblasma same prohibitions for species listed as under Factor E. Other Natural or triquetra) mussels occur in the same threatened, unless exceptions are made Manmade Factors Affecting Its reach of the Allegheny River as in a rule issued under section 4(d) of the Continued Existence—Temperature rabbitsfoot. Section 7 of the Act already Act. section of this final determination. requires Federal agencies to consult (3) Comment: One peer reviewer (7) Comment: One peer reviewer with the Service to ensure that any suggested Neosho mucket and recommended we include detailed action authorized, funded, or carried out rabbitsfoot are thermally sensitive anatomy of the rabbitsfoot information will not likely jeopardize the continued because closely related mussel species, provided by Williams et al. (2008). This existence of these listed species. Project such as pimpleback (Quadrula peer reviewer also noted several modifications that minimize effects to pustulosa), pistolgrip (Quadrula scientific citations omitted from the these listed mussel species also would verrucosa), plain pocketbook (Lampsilis proposed rule that pertain to historical minimize effects to rabbitsfoot. Thus, cardium), and yellow sandshell and modern rabbitsfoot records in the we would not expect additional (Lampsilis teres), are known to be Tennessee River, lower Duck River, conservation measures and costs for the thermally sensitive, although no Ohio River, and Monongahela River. rabbitsfoot over what are already physiological thermal tolerance data is Our Response: While not directly required for these other endangered available for Neosho mucket and cited in the proposed rule, Butler (2005) mussels. (11) Comment: The COEPD asked how rabbitsfoot. cited several of the citations provided by the peer reviewer, and, accordingly, tributary streams will be affected by the Our Response: We agree that the best listing of rabbitsfoot. available scientific information they are incorporated in the Service’s analysis and administrative record. Our Our Response: The listing of the indicates that Neosho mucket and rabbitsfoot will occur in 15 States. We rabbitsfoot may be thermally sensitive assessment of the rabbitsfoot population indicates extirpation in the are unable to definitively determine and added language to address the topic how many tributary streams will be under Factor E. Other Natural or Monongahela River occurred circa 1890 and is consistent with Ortmann (1919). covered by the final designation. Manmade Factors Affecting Its Section 7 of the Act requires Federal Continued Existence—Temperature We incorporated the other citations provided by the peer reviewer (related agencies to consider direct, indirect, and section of this final determination. cumulative effects to listed species. The (4) Comment: One peer reviewer to soft anatomy and rabbitsfoot distribution) to address the topic in the Service will work with COEPD to suggested there is substantial evidence determine whether any of the current, the interaction of climate warming and Summary of Biological Status and Threats section for rabbitsfoot into this ongoing or planned COEPD projects water management is negatively may have direct, indirect, or cumulative affecting mussels in the south-central final determination. (8) Comment: One peer reviewer effects on tributaries within their United States. noted the rainbow darter (Etheostoma District. As stated previously, the Our Response: We agree that a caeruleum) is a host fish for rabbitsfoot. Service does not expect additional combination of climate patterns and Our Response: We agree and project modifications to minimize local water management practices (e.g., incorporated language to address the effects to rabbitsfoot beyond those reduced reservoir releases) led to shifts topic in the Summary of Biological already required for other listed mussels in the species richness and overall Status and Threats section for in the Allegheny River basin. abundance of mussel assemblages rabbitsfoot of this final determination. (12) Comment: The COEPD indicated dominated by thermally sensitive to (9) Comment: One peer reviewer stakeholders in the sand and gravel thermally tolerant species in southeast suggested it would be prudent to add industry rely on an Adaptive Oklahoma. We incorporated language to the work by Vaughn and Taylor (1999) Management Group Mussel Survey address this topic under Factor E. Other on dams and their downstream effects to Protocol and conclude the protocol will Natural or Manmade Factors Affecting freshwater mussels. need to be revised to include Its Continued Existence—Temperature Our Response: We agree and rabbitsfoot. section of this final determination. incorporated language to address the Our Response: This protocol is for use (5) Comment: One peer reviewer topic under Factor A. The Present or only in the impounded Allegheny River suggested poultry production is a Threatened Destruction, Modification, navigation channel (river mile 0 to near potential threat to Neosho mucket and or Curtailment of its Habitat or Range— 65) and Ohio River navigation channel rabbitsfoot in the Little River basin. Impoundments section of this final in Pennsylvania (river mile 0 to 40). Our Response: We agree and determination. While this area is within the range of incorporated language to address the the rabbitsfoot, it has been more than 80 topic under Factor A. The Present or Federal Agency Comments years since a rabbitsfoot specimen was Threatened Destruction, Modification, (10) Comment: The U.S. Army Corps found in this reach of the river. or Curtailment of its Habitat or Range— of Engineers Pittsburgh District (COEPD) Nevertheless, we agree the protocol will
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need to be revised to include Our Response: In determining which endangered species within the rabbitsfoot. However, in the past using of the listing factors contained in foreseeable future throughout all or a the protocol has failed to locate the Section 4 of the Act justified listing the significant portion of its range. As part federally listed northern riffleshell and species, we used information on the of our program to add species to the list clubshell mussels while others sampling biology, ecology, distribution, of threatened and endangered wildlife, the same location using a different abundance, status, and trends of each we also maintain a list of species which method have detected them. In addition, species from a wide variety of sources. are candidates for listing. A candidate these mussels tend to be more difficult These sources included professional species is one for which we have to locate than rabbitsfoot. Therefore, the journal articles, distributional status sufficient information on biological protocol should be revised because of its surveys, biological assessments, and vulnerability and threats to support a apparent lack of effectiveness regardless other unpublished material (that is, proposal to list as endangered or of whether rabbitsfoot is listed under ‘‘gray literature’’) from State natural threatened, but for which preparation the Act. resource agencies and natural heritage and publication of a rule is precluded programs, Tribal governments, other by higher priority listing actions. State Agency Comments Federal agencies, consulting firms, The rabbitsfoot was added to our The listing for the Neosho mucket contractors, and individuals associated candidate list in 2009 (75 FR 69222) and covers Arkansas, Kansas, Missouri, and with professional organizations and has remained on the candidate list Oklahoma and for rabbitsfoot covers higher educational institutions. through our most recent candidate Alabama, Arkansas, Georgia, Kansas, Although we have sporadic notice of review (CNOR) in 2012 (77 FR Kentucky, Illinois, Indiana, Louisiana, documentation of rabbitsfoot collections 70054). Additionally, the Service Mississippi, Missouri, Ohio, Oklahoma, from the last century, as discussed presented a rangewide status assessment Pennsylvania, Tennessee, and West under the Status Assessment for Neosho and overview of the proposed listing Virginia. We received comments from Mucket and Rabbitsfoot and Summary process for rabbitsfoot at the Interior the States of Louisiana, Pennsylvania, of Factors Affecting the Species sections Highlands Mollusk Conservation Ohio, and Oklahoma regarding the in the proposed rule, rangewide trends Council (IHMCC) annual meeting in proposal. indicate declining populations and, 2011 and 2012. We sent out requests in (13) Comment: The Pennsylvania Fish despite attempts at some locations to 2008, 2009, and 2010 to the Unio list and Boat Commission (PFBC) supports alleviate threats, no population is serve maintained by the Freshwater the listing. PFBC concluded that golden without threats significantly affecting Mollusk Conservation Society alga (Prymnesium parvum) is an the species. These threats are expected requesting information on the status of invasive species that has the potential to to be exacerbated by increased water rabbitsfoot populations and threats. We threaten the existing Shenango River demand, habitat degradation, and sent a letter dated March 15, 2011, to rabbitsfoot population based on work by climate change in the future (Spooner interested parties in Oklahoma Barkoh and Fries (2010). and Vaughn 2008; Galbraith et al. 2010). including the ODWC. The Service has Our Response: We appreciate the We respectfully disagree that available received numerous responses to these support and look forward to continuing scientific information supports the inquiries and our efforts to reach out to work with the PFBC to recover conclusion that threats have been the agencies, Tribes, organizations, and rabbitsfoot. We agree that golden alga is ameliorated in many historical rivers academia to solicit information and a threat to rabbitsfoot in the Shenango throughout the entirety of the species input. River and incorporated language to range. Each threat is discussed in detail While the rabbitsfoot still occurs in 51 address the topic under Factor E. Other in the Summary of Factors Affecting the streams, it sustains recruitment and Natural or Manmade Factors Affecting Species and is further summarized in population viability consistently in only Its Continued Existence—Invasive the Summary of Biological Status and 11 large, extant river populations. This Nonindigenous Species section of this Determination sections of this final accounts only for 8 percent of the final determination. determination. historical or 22 percent of the extant (14) Comment: The Oklahoma (15) Comment: The ODWC does not distribution of rabbitsfoot. Further, the Department of Wildlife Conservation support listing rabbitsfoot as threatened. species also sustains limited (ODWC) asserts the decline of The ODWC asserts that listing is recruitment and distribution in another rabbitsfoot geographic range is not a premature and may impede 17 river populations, of which 15 (88 recent phenomenon, but rather a conservation strategies such as percent) are declining. The synergistic gradual decline over a century. It augmenting and reestablishing effects of threats discussed in the provided a breakdown of extirpation populations. It also contends that the proposed rule and this final dates based on table 2 in the proposed rapid elevation of rabbitsfoot from determination are often complex in rule, with 10 percent of those candidate status in 2009 to a proposed aquatic environments and, while extirpations occurring prior to 1900; 26 threatened species in 2012 is premature making it difficult to predict changes in percent from 1900 to 1930; 11 percent and did not include sufficient mussel and fish host(s) distribution, from 1930 to 1960; and 34 percent from coordination with the State of abundance, and habitat availability, it is 1960 to 1980, or 81 percent of the total Oklahoma. The ODWC also concludes probable that these threats are acting extirpations occurring prior to 1980. that 51 extant rabbitsfoot populations, simultaneously on the remaining ODWC concludes it is uncertain which albeit most of which are small and rabbitsfoot populations with negative factors contributed to earlier declining, are sufficient to preclude results and are expected to continue to extirpations, but some threats may have listing as a threatened species. do so based on the best available been ameliorated in the intervening Our Response: The Act requires that scientific information. Based on this decades. It further contends the relative we identify species of wildlife and information and information provided magnitude and importance of each plants that are endangered or threatened in our above response, we believe there threat is not adequately quantified based on the best available scientific is sufficient scientific information to (speculative and not supported by information. As defined in section 3 of support our final determination of empirical data) for extant or extirpated the Act, a threatened species is any listing rabbitsfoot as a threatened rabbitsfoot populations. species which is likely to become an species.
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(16) Comment: ODWC requested that Ohio) have successful propagation, (20) Comment: PDOT states that it the Service delay listing of the augmentation, and reintroduction efforts issues road posting, bonding, and rabbitsfoot until the final year (2016) of ongoing for threatened and endangered hauling permits to hauling industries for the Multi-District Litigation (MDL) mussels. In accordance with Service the purpose of protecting secondary settlement and listing workplan. policy (65 FR 56916), the Service will roads from vehicle damage. PDOT Our Response: The multiyear listing work with our partners to develop a acknowledges its potential liability workplan was developed through a propagation, augmentation, and under section 9 of the Act in the event settlement agreement with plaintiff reintroduction plan for the Neosho that a hauling industry permittee has an groups to resolve multidistrict litigation. mucket and rabbitsfoot to help ensure accidental spill resulting in take of It is an effort to improve smooth transitions between various rabbitsfoot. They conclude that the implementation of the Act while phases of conservation efforts. The Service operating under its mandate to adhering to our court-approved Service is committed to these err conservatively to protect species obligations under the settlement conservation efforts and looks forward may be considering all road crossings as agreement. The listing workplan enables to working closely with the State of posing a threat of chemical the Service to systematically review and Oklahoma and our other conservation contamination from spills. They address the needs of more than 250 partners to permit such efforts under conducted an analysis of their species listed on the 2010 CNOR and section 10(a)(1)(A) of the Act. In aforementioned program and provided determine if they should be added to the addition, pursuant to section 6 of the information to refine our analysis of Federal Lists of Endangered and Act, Oklahoma as well as the other threats associated with chemical Threatened Wildlife and Plants. The States within the range of the rabbitsfoot contaminants, but only identify one listing workplan has established would be eligible for Federal funds to conflict of road bonding at State Road deadlines for each candidate species, implement management actions that 2005 in Crawford County, Pennsylvania. including the rabbitsfoot. In making this promote the protection or recovery of Our Response: The Service final determination at this time, the the rabbitsfoot (http://www.fws.gov/ appreciates PDOT’s willingness to Service is adhering to the requirements grants). provide an analysis of their road of the listing workplan and settlement (18) Comment: The Pennsylvania posting, bonding, and hauling permit agreement. Additionally, the Act Department of Transportation (PDOT) program. There are instances where requires that we make a final listing opposes listing the rabbitsfoot as chemical spills have resulted in the loss determination within 1 year of a threatened due to the financial hardship of high numbers of mussels (Jones et al. proposal. Therefore, we cannot it will bring to Pennsylvania taxpayers. 2001, p. 20; Brown et al. 2005, p. 1457; postpone a final determination. PDOT concludes it is not a prudent use Schmerfeld 2006, pp. 12–13), and are (17) Comment: ODWC contends that of transportation dollars to consult with considered a serious threat to mussel implementation of recovery efforts, the Service. particularly population augmentation Our Response: Listing the rabbitsfoot species. Therefore, chemical spills are and reintroduction, for the rabbitsfoot under the Act must be based on the five identified as a threat to rabbitsfoot. The will be more cumbersome due to lack of listing factors (threats to the species), Service conducted an examination of public support compared to nonlisted which do not include economic land use trends, nonpoint- and point- species. impacts. Critical habitat designation source discharges, and determined that Our Response: We believe that listing does require the Service to consider rabbitsfoot is subjected to the subtle, either mussel will not impede progress economic impacts, but that will be pervasive effects of chronic, low-level with ongoing or future population addressed in the rule to designate contamination that is ubiquitous in augmentation and reintroduction efforts critical habitat for both mussels, which watersheds where it occurs. The Service or hinder our ability to recover the will be published at a later date. has reviewed the information provided species. We agree that some property (19) Comment: PDOT requested minor by PDOT and incorporated it into this owners are reluctant to work with the road work (such as rehabilitation or rule where applicable. However, this Service and our partners to conduct resurfacing) and bridge work (such as information does not change our conservation on their lands due to fear replacement and repair) on existing conclusion that biological and habitat of future property use restrictions roads be exempt (sic) from formal effects due to chemical contaminants related to the Act. To address this coordination (consultation), including are a significant and ongoing threat concern, the Service has various areas 100 feet upstream and contributing to the decline of rabbitsfoot programs that provide regulatory downstream of the project footprint. populations. assurance for property owners. For Our Response: All PDOT activities (21) Comment: PDOT expressed example, the Safe Harbor Agreement authorized or funded, in whole or part, concern with its ability to quickly issue program provides assurances to non- by the Federal Highway Administration hauling permits for oversize and Federal landowners that future property (FHWA) or permitted (such as, overweight loads and restrict routing for use limitations will not occur without placement of bridge piers in a navigable materials such as fracking brine. It the property owner’s consent, if stream) by a Federal agency such as the asserts that a need to restrict routing for voluntary conservation measures they U.S. Army Corps of Engineers (Corps) a subset of haulers such as hazardous implement on their property provide a are required to adhere to the material haulers would preclude its net conservation benefit to the recovery consultation requirements of section ability to electronically permit and route of a listed species. 7(a)(2) of the Act, regardless of size. these haulers, thus resulting in Further, we believe that listing the However, once the rabbitsfoot is listed, extensive time delays and subsequently species will make additional the Service can work with PDOT and a need for a significant increase in conservation resources available. FHWA or other Federal agencies to manpower. PDOT concludes that Although we are unaware of any prepare a programmatic consultation manual permit review to minimize ongoing efforts to augment or reestablish that would address routine highway section 9 liability that would result from mussel populations in Oklahoma, many maintenance and other regular projects, listing rabbitsfoot represents a States (such as, Missouri, Kansas, thereby streamlining the consultation significant economic burden to both the Kentucky, Tennessee, Alabama, and process and reducing associated costs. State of Pennsylvania and many
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industries because of needed increases listed as endangered under the Act. mucket and rabbitsfoot has been added. in manpower to process permits. Consistent with this status, the Service This includes information on thermal Our Response: Listing the Neosho is focusing efforts on the bat: the Service tolerance and effects of impoundments, mucket and rabbitsfoot under the Act has approved a recovery plan for the chemical contaminants, climate change, must be based on the five listing factors Indiana bat, and we are currently and invasive nonindigenous species to (threats to the species), which do not working with our partners to implement mussels, discussed in the Summary of include economic impacts. Critical recovery actions specified in that Factors Affecting the Species, Factor A. habitat designation does require the recovery plan. The Present or Threatened Destruction, Service to consider economic impacts, (24) Comment: One commenter stated Modification, or Curtailment of its but that will be addressed in the rule to the economic benefits of large Habitat or Range—Chemical designate critical habitat for both impoundments and channelization Contaminants and Impoundments and mussels which will be published at a projects outweigh the adverse effects to Factor E. Other Natural or Manmade later date. Neosho mucket and rabbitsfoot Factors Affecting Its Continued Further, as discussed above (response populations. Existence—Temperature and Climate to Comment 10), the federally Our Response: Listing the Neosho Change. endangered clubshell (Pleurobema mucket and rabbitsfoot under the Act clava), northern riffleshell (Epioblasma must be based on the five listing factors Background torulosa rangiana), rayed bean (Villosa (threats to the species), which do not Please refer to the proposed listing fabalis), and snuffbox (Epioblasma include economic impacts. Critical rule for the Neosho mucket and triquetra) occur in the same reach of the habitat designation does require the rabbitsfoot (October 16, 2013, 77 FR Allegheny and Shenango Rivers and Service to consider economic impacts, 63440) for a summary of species French and Muddy Creeks as but that will be addressed in the rule to information. rabbitsfoot. Project modifications and designate critical habitat for both Summary of Biological Status conservation efforts that minimize mussels, which will be published at a effects to these listed mussel species later date. For more information on relative also would minimize effects to (25) Comment: One commenter was abundance and trends of extant rabbitsfoot. Therefore, we do not believe concerned that private landowner water populations of Neosho mucket and the listing of rabbitsfoot would increase development projects, development of rabbitsfoot by river basin please refer to PDOT’s section 9 liability on the State or modification of livestock and the Taxonomy, Life History, and of Pennsylvania and industries irrigation water rights, normal farming Distribution section of the proposed rule transporting hazardous materials. and ranching activities, and published in the Federal Register on However, as noted previously, the development of mineral rights on October 16, 2012 (77 FR 63440). Service can work with PDOT to prepare private property may trigger section 7 Our assessment evaluated the standardized conservation measures consultations. The commenter asked biological status of these species and that address the transportation of whether these activities on private threats affecting their continued hazardous material and would minimize property represent a federal nexus and existence. It was based upon the best effects to rabbitsfoot and other federally thereby are subject to section 7 available scientific and commercial data protected mussels. consultation. and expert opinions. Our Response: The effects of private The Neosho mucket is declining Public Comments activities, such as normal operations for rangewide, with the exception of one (22) Comment: One commenter rearing of livestock, farming, and population. Based on historical and requested that Neosho mucket and modification of water rights and current data, Neosho mucket has been rabbitsfoot should not be removed from development of mineral rights are not extirpated from approximately 1,342 the Federal List of Endangered and subject to the Act’s section 7 rkm (834 rmi) of its historical range (62 Threatened Wildlife. consultation requirements unless they percent). Most of this extirpation has Our Response: We believe the are connected to a Federal action occurred within the Oklahoma and commenter may have misunderstood (require Federal permits, are federally Kansas portions of its range. The the intent of the proposed rule. We wish funded, or are a Federal action). extirpation of this species from to clarify that we proposed adding numerous streams and stream reaches Summary of Changes From the Neosho mucket and rabbitsfoot to the within its historical range signifies that Proposed Rule Federal List of Endangered and substantial population losses have Threatened Wildlife and Plants, not The information below is provided as occurred. Extant populations are removing them. a result of the peer and public review disjunct (not contiguous) in (23) Comment: One commenter process. In this final determination, we approximately 819 rkm (509 rmi). The suggested we should focus our efforts have made changes to the discussion of Spring River in Missouri supports the more on the Indiana bat rather than biological status and threats for both only viable population based on the mussels. mussels from the proposed rule. We presence of a large number of Our Response: The Act requires that have clarified that the rabbitsfoot uses individuals and evidence of recent we list species that meet the definition all four gills as a marsupium or recruitment. Given this compilation of of threatened or endangered. According ‘‘brooding pouch’’ rather than ‘‘pouch’’ current distribution, abundance, and to the best available science, the Neosho for its glochidia (Fobian 2007, p. 26). status trend information, the Neosho mucket and rabbitsfoot meet the criteria Watters et al. (2009, p. 269) reported the mucket exhibits range reductions and for listing and, therefore, we are rainbow darter (E. caeruleum) as a host population declines throughout its required by the Act to list them. The fish for rabbitsfoot, but we did not cite range. Indiana bat (Myotis sodalis) was it in the proposed rule. Also, newly Based on historical and current data, federally listed as endangered included is information on the status of the rabbitsfoot is declining rangewide. throughout its range under the the rabbitsfoot in the Red River basin. In In 10 of the 15 States comprising the Endangered Species Preservation Act of addition, new information related to the rabbitsfoot’s historical range, the species 1966 on March 11, 1967, and remains factors (threats) affecting Neosho is considered by State law to be
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endangered (Illinois, Indiana, Kansas, Service 2010, p. 16). Given this Impoundments Mississippi, Ohio, and Pennsylvania); compilation of current distribution, Dams eliminate and alter river flow threatened (Kentucky and Tennessee); abundance, and status trend within impounded areas, trap silt of special concern (Arkansas); or it is information, the rabbitsfoot exhibits leading to increased sediment assigned an uncategorized conservation range reductions and population deposition, alter water quality, change status (Alabama). The American declines throughout its range. hydrology and channel geomorphology, Malacological Union and American Summary of Factors Affecting the decrease habitat heterogeneity, affect Fisheries Society also consider the Species normal flood patterns, and block rabbitsfoot to be threatened (in Butler upstream and downstream movement of Section 4 of the Act and its 2005, p. 21). It is presently extant in 51 mussels and fish (Layzer et al. 1993, pp. implementing regulations (50 CFR 424) of the 141 streams of historical 68–69; Neves et al. 1997, pp. 63–64; occurrence, a 64 percent decline. set forth the procedures for adding species to the Federal Lists of Watters 2000, pp. 261–264). Within Further, in the streams where it is impounded waters, decline of mussels extant, populations with few exceptions Endangered and Threatened Wildlife and Plants. A species may be has been attributed to direct loss of are highly fragmented and restricted to supporting habitat, sedimentation, short reaches. We add this information, determined to be an endangered or threatened species due to one or more decreased dissolved oxygen, which was not in the proposed rule, on temperature levels, and alteration in the rabbitsfoot in streams within the of the five factors described in section 4(a)(1) of the Act: (A) The present or resident fish populations (Neves et al. Red River basin. The Red River basin 1997, pp. 63–64; Pringle et al. 2000, pp. streams primarily drain the Ouachita threatened destruction, modification, or curtailment of its habitat or range; (B) 810–815; Watters 2000, pp. 261–264). Mountains in southeastern Oklahoma Downstream of dams, mussel declines and southwestern Arkansas and overutilization for commercial, recreational, scientific, or educational are associated with changes and northern Louisiana; extant populations fluctuation in flow regime, channel of rabbitsfoot still occur in three stream purposes; (C) disease or predation; (D) the inadequacy of existing regulatory scouring and bank erosion, reduced reaches within the Gulf Coastal Plain dissolved oxygen levels and water ecoregion in southern Arkansas, mechanisms; or (E) other natural or manmade factors affecting its continued temperatures, and changes in resident southeastern Oklahoma, and northern fish assemblages (Williams et al. 1992, Louisiana. In addition to the density existence. Listing actions may be warranted based on any of the above p. 7; Layzer et al. 1993, p. 69; Neves et information published in the proposed threat factors, singly or in combination. al. 1997, pp. 63–64; Watters 2000, pp. rule, we add this information on Each of these factors is discussed below. 265–266; Pringle et al. 2000, pp. 810– rabbitsfoot density in Oklahoma, which 815). Dams that are low to the water was not in the proposed rule. Factor A. The Present or Threatened surface, or have water passing over them Rabbitsfoot density ranged from 0.3 to Destruction, Modification, or (small low head or mill dams) can have 2.4 individuals per square meter at three Curtailment of Its Habitat or Range some of these same effects on mussels sites in Oklahoma (Galbraith and The habitats of freshwater mussels are and their fish hosts, particularly Vaughn 2011, p. 197) in the Red River vulnerable to water quality degradation reducing species richness and evenness basin. In addition, the species has been and habitat modification from a number and blocking fish host movements extirpated from West Virginia and of activities associated with modern (Watters 2000, pp. 261–264; Dean et al. Georgia. The extirpation of this species civilization. The decline, extirpation, 2002, pp. 235–238). from numerous streams and stream and extinction of mussel species are The decline of mussels within the reaches within its historical range often attributed to habitat alteration and Arkansas, Red, White, Tennessee, signifies that substantial population destruction (Neves et al. 1997, pp. 51– Cumberland, Mississippi, and Ohio losses have occurred in each of the past 52). Bogan (1993, pp. 599–600 and 603– River basins has been directly attributed several decades. 605) linked the decline and extinction to construction of numerous Seventeen streams (33 percent of of mussels to a wide variety of threats impoundments (Miller et al. 1984, p. extant populations or 12 percent of including siltation, industrial and 109; Williams and Schuster 1989, pp. 7– historical populations) have small municipal effluents, modification of 10; Layzer et al. 1993, pp. 68–69; Neves populations with limited levels of stream channels, impoundments, et al. 1997, pp. 63–64; Obermeyer et al. recruitment and are generally highly pesticides, heavy metals, invasive 1997b, pp. 113–115; Watters 2000, pp. restricted in distribution, making their species, and the loss of host fish. Chief 262–263; Sickel et al. 2007, pp. 71–78; viability unlikely and making them among the causes of decline in Hanlon et al. 2009, pp. 11–12; Vaughn extremely susceptible to extirpation in distribution and abundance of the and Taylor 1999, pp. 915–917; Watters the near future. In addition, 15 of those Neosho mucket and rabbitsfoot, and in and Flaute 2010, pp. 3–7). Population 17 streams (88 percent) have no particular order of ranking, are losses due to impoundments have likely populations that are declining. In many impoundment, channelization, contributed more to the decline of the of these streams, rabbitsfoot is only sedimentation, chemical contaminants, Neosho mucket and rabbitsfoot than any known from one or two documented mining, and oil and natural gas other factor. River habitat throughout individuals in the past decade. Its development (Mather 1990, pp. 18–19; the ranges of the Neosho mucket and viability in these streams is doubtful, Obermeyer et al. 1997b, pp. 113–115; rabbitsfoot has been impounded, leaving and additional extirpations may occur if Neves et al. 1997, pp. 63–72; Davidson short, isolated patches of suitable this downward population trend 2011, pers. comm.). Neosho mucket and habitat that sometimes lacks suitable continues. Eleven populations (22 rabbitsfoot are both found within fish hosts. Neither Neosho mucket nor percent of extant populations or 8 medium to large river drainages exposed rabbitsfoot occur in reservoirs lacking percent of historical populations; Ohio, to a variety of landscape uses. These riverine characteristics. They are unable Green, Tippecanoe, Tennessee, Paint threats to mussels in general (and to successfully reproduce and recruit Rock, Duck, White, Black, Strawberry, Neosho mucket and rabbitsfoot where under these conditions (Obermeyer et and Little Rivers and French Creek) are specifically known) are individually al. 1997b, p. 114; Butler 2005, p. 96). On considered viable (Butler 2005, p. 88; discussed below. the other hand, rabbitsfoot may persist
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and even exhibit some level of exacerbated during stochastic events impounded waters. These isolated recruitment in some large rivers with such as droughts and floods. populations are unable to naturally locks and dams where appropriate Navigational improvements on the recolonize suitable habitat downstream habitat quality and quantity remain Ohio River began in 1830, and now and become more prone to further (Ohio and Tennessee Rivers in riverine include 21 lock and dam structures extirpation from stochastic events, such reaches between a few locks and dams) stretching from Pittsburgh, as severe drought, chemical spills, or (Butler 2005, p. 96). Pennsylvania, to Olmsted, Illinois, near unauthorized discharges (Layzer et al. The majority of the mainstem Ohio, its confluence with the Mississippi 1993, pp. 68–69; Cope et al. 1997, pp. Cumberland, Tennessee, and White River. Lock and dam structures convert 235–237; Neves et al. 1997, pp. 63–75; Rivers and many of their largest riverine habitat to unsuitable static Watters 2000, pp. 264–265, 268; Miller tributaries are impounded, in many habitat for the mussel and prevent and Payne 2001, pp. 14–15; Pringle et cases resulting in tailwater (downstream movement of their fish hosts. Numerous al. 2000, pp. 810–815; Watters and of dam) conditions unsuitable for Ohio River tributaries also have been Flaute 2010, pp. 3–7). We conclude that rabbitsfoot (Butler 2005, p. 96). There altered by lock and dam structures. For habitat effects due to impoundment are are 36 major dams within the Tennessee example, a 116-rkm (72-rmi) stretch of an ongoing threat to the Neosho mucket River basin (Holston, Little Tennessee, the Allegheny River in Pennsylvania has and rabbitsfoot. Clinch, Elk, Flint, and Sequatchie been altered with nine locks and dams Rivers, and Bear Creek) that have from Armstrong County to Pittsburgh. A Channelization resulted in the impoundment of 3,680 series of six locks and dams were Dredging and channelization rkm (2,300 rmi) of the Tennessee River constructed on the lower half of the activities have profoundly altered and its largest tributaries (Butler 2005, Green River decades ago that extend riverine habitats nationwide. Hartfield p. 95). Only three of these rivers support upstream to the western boundary of (1993, pp. 131–139), Neves et al. (1997, viable populations—the Tennessee, Mammoth Cave National Park, pp. 71–72), and Watters (2000, pp. 268– Paint Rock, and Duck Rivers. Ninety Kentucky. The declines of rabbitsfoot 269) reviewed the specific upstream and percent of the Cumberland River populations are attributable to downstream effects of channelization on downstream of Cumberland Falls (rkm navigational locks and dams on the freshwater mussels. Channelization 866, rmi 550) as well as numerous Ohio, Allegheny, Monongahela, affects a stream physically (accelerates tributaries are either directly Muskingum, Kentucky, Green, Barren, erosion, increases sediment bed load, impounded or otherwise adversely and White Rivers, and are widespread reduces water depth, decreases habitat affected by cold tailwater releases from throughout the species range. diversity, creates geomorphic (natural dams. Impoundments have eliminated a channel dimensions) instability, and Rabbitsfoot and its fish hosts are large portion of the Neosho mucket eliminates riparian canopy) and warm-water species and the change in population and habitat in the Arkansas biologically (decreases fish and mussel temperature to cold water below the River basin. For example, mussel habitat diversity, changes species composition dams further reduces suitable habitat for in the Neosho River in Kansas has been and abundance, decreases biomass, and the species and may eliminate fish hosts negatively impacted by at least 15 city reduces growth rates) (Hartfield 1993, that cannot adapt to colder water dams and 2 Federal dams, both with pp. 131–139). Channel modification for temperatures (see the Temperature regulated flows. Almost the entire navigation has been shown to increase section below for more information). length of the river in Oklahoma is now flood heights (Belt 1975, p. 684), partly Rabbitsfoot in the Little River, impounded or adversely affected by as a result of an increase in stream bed Oklahoma, were found at locations tailwater releases from three major dams slope (Hubbard et al. 1993, p. 137). farthest from impoundments (Vaughn (Matthews et al. 2005, p. 308). Several Flood events are exacerbated, conveying and Taylor 1999, p. 915). Mussel species reservoirs and numerous small large quantities of sediment, potentially richness and total abundance watershed lakes have eliminated with adsorbed contaminants, into downstream of dams increases as the suitable mussel habitat in several larger streams. Channel maintenance often distance from dams increases. Little Neosho River tributaries in Kansas and results in increased turbidity and River mussel populations did not Missouri (Spring, Elk, and Cottonwood sedimentation that often smothers recover from impoundment effects until Rivers and Shoal Creek). The Verdigris mussels (Stansbery 1970, p. 10). 20 rkm (12 rmi) downstream, with a River (Kansas and Oklahoma) has two Channel maintenance operations for peak of species richness and abundance large reservoirs with regulated flows, commercial navigation have affected at 53 rkm (33 rmi) downstream of the and the lower section has been habitat for the rabbitsfoot in many large impoundment (Vaughn and Taylor channelized as part of the McClellan- rivers rangewide. Periodic navigation 1999, p. 915). Other tributary Kerr Arkansas River Navigation System. maintenance activities (such as dredging impoundments that negatively impact All the major Verdigris River tributaries and snag removal) may continue to rabbitsfoot and its fish hosts within the in Kansas and Oklahoma have been negatively impact this species in the Ohio River basin include, but are not partially inundated by reservoirs with lower portions of the Ohio, Tennessee, limited to, the Walhonding, Barren, regulated flows and numerous flood and White Rivers, which represent 44 Rough, and Eel Rivers and two rivers control watershed lakes (Obermeyer et percent of the viable rabbitsfoot with viable populations, Green and al. 1995, pp. 7–21). Construction of Lake populations. In the Tennessee River, a Tippecanoe Rivers. The majority (7 of Tenkiller eliminated Neosho mucket plan to deepen the navigation channel 11 populations or 64 percent) of viable populations and habitat in the lower has been proposed (Hubbs 2009, pers. rabbitsfoot populations (Ohio, Green, portion of the Illinois River, Oklahoma comm.). Some rabbitsfoot streams were Tippecanoe, Tennessee, Duck, White, (Davidson 2011, pers. comm.). ‘‘straightened’’ to decrease distances and Little Rivers) occur downstream of Dam construction has a secondary traversed by barge traffic (for example, main stem impoundments that make effect of fragmenting the ranges of Verdigris River). Hundreds of miles of these populations more susceptible to mussel species by leaving relict habitats many midwestern (Eel, North Fork altered habitat quality and quantity and populations isolated upstream or Vermilion, and Embarras Rivers) and associated with the impoundment or between structures as well as creating southeastern (Paint Rock and St. Francis dam operation, which may be extensive areas of deep uninhabitable, Rivers and Bear Creek) streams with
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rabbitsfoot populations were on mussel habitat appear to be numerous stream segments in the Duck, channelized decades ago to reduce the multifold, and include changes in White, Black, Little, and Strawberry probability and frequency of flood suspended and bed material load; bed River watersheds are listed as impaired events. Because mussels are relatively sediment composition associated with waters under section 303(d) of the Clean immobile, they require a stable substrate increased sediment production and Water Act (CWA) by the Environmental to survive and reproduce and are runoff in the watershed; channel Protection Agency (EPA) due to particularly susceptible to channel changes in form, position, and degree of sedimentation associated with instability (Neves et al. 1997, p. 23) and stability; changes in depth or the width agriculture (USACE 2011, p. 21; EPA alteration. Channel and bank and depth ratio that affects light Water Quality Assessment Tool, http:// degradation have led to the loss of stable penetration and flow regime; actively ofmpub.epa.gov/tmdl_waters10/attains_ substrates in numerous rivers with aggrading (filling) or degrading nation_cy.control?p_report_type=T). An commercial navigation throughout the (scouring) channels; and changes in impaired water is a water body (i.e., range of rabbitsfoot. While dredging and channel position. These effects to stream reaches, lakes, water body channelization have had a greater effect habitat may dislodge, transport segments) with chronic or recurring on rabbitsfoot, the Neosho mucket has downstream, or leave mussels stranded monitored violations of the applicable been affected by these activities in the (Vannote and Minshall 1982, p. 4106; numeric or narrative water quality Verdigris River. We conclude that Kanehl and Lyons 1992, pp. 4–5; Brim criteria. An impaired water cannot habitat effects due to channelization are Box and Mossa 1999, pp. 109–112). For support one or more of its designated an ongoing threat to the Neosho mucket example, many Kansas streams (such as uses (e.g., swimming, the protection and and rabbitsfoot. Verdigris and Neosho Rivers) propagation of aquatic life, drinking, supporting mussels have become industrial supply, etc.). Sedimentation increasingly silted in over the past Once a stream segment is listed as an Excessive sediments are believed to century, reducing habitat for the Neosho impaired water, the State must complete negatively impact riverine mussel mucket and rabbitsfoot (Obermeyer et a plan to address the issue causing the populations requiring clean, stable al. 1997a, pp. 113–114). impairment; this plan is called a Total streams (Ellis 1936, pp. 39–40; Brim Box Increased sedimentation and siltation Maximum Daily Load (TMDL). A TMDL and Mossa 1999, p. 99). Adverse effects may explain in part why Neosho mucket is a calculation of the maximum amount resulting from sediments have been and rabbitsfoot are experiencing of a pollutant that a water body can noted for many components of aquatic recruitment failure in some streams. receive and still safely meet water communities. Potential sediment Interstitial spaces in the substrate quality standards (WQS). Completion of sources within a watershed include provide crucial habitat (shelter and the plan is generally all that is required virtually all activities that disturb the nutrient uptake) for juvenile mussel to remove the stream segment from the land surface. Most localities occupied survival. When interstitial spaces are EPA’s section 303(d) impaired water list by the Neosho mucket and rabbitsfoot, clogged, interstitial flow rates and and does not mean that water quality including viable populations, are spaces are reduced (Brim Box and has changed. Once the TMDL is currently being affected to varying Mossa 1999, p. 100), and this decreases completed, the stream segment may be degrees by sedimentation. habitat for juvenile mussels. placed on the EPA’s section 305(b) list Sedimentation has been implicated in Furthermore, sediment may act as a of impaired streams with a completed the decline of mussel populations vector for delivering contaminants, such TMDL (http://water.epa.gov/lawsregs/ nationwide, and remains a threat to as nutrients and pesticides, to streams, lawsguidance/cwa/tmdl/intro.cfm). For Neosho mucket and rabbitsfoot (Ellis and juvenile mussels may ingest example, some stream segments within 1936, pp. 39–40; Vannote and Minshall contaminants adsorbed to silt particles the White, Barren, Little River Mountain 1982, pp. 4105–4106; Dennis 1984, p. during normal feeding activities. Fork, and Wabash Rivers, and French 212; Brim Box and Mosa 1999, p. 99; Neosho mucket and rabbitsfoot Creek have completed TMDL plans and Fraley and Ahlstedt 2000, pp. 193–194; reproductive strategies depend on clear have attained WQS for low dissolved Poole and Downing 2004, pp. 119–122). water (enables fish hosts to see mussel oxygen, pathogens, nutrients, Specific biological effects include lures) during critical reproductive polychlorinated biphenyls (PCBs), and reduced feeding and respiratory periods. siltation. However, some of these same efficiency from clogged gills, disrupted Agricultural activities are responsible stream segments still have not attained metabolic processes, reduced growth for much of the sediment affecting rivers WQS for lead (Little River Mountain rates, limited burrowing activity, in the United States (Waters 1995, p. Fork) and mercury (Wabash River). physical smothering, and disrupted host 170). Sedimentation associated with Impaired streams in the Duck River fish attraction mechanisms (Ellis 1936, agricultural land use is cited as one of watershed (approximately 483 rkm (300 pp. 39–40; Marking and Bills 1979, p. the primary threats to 7 of the 11 (64 rmi)) are losing 5 to 55 percent more soil 210; Vannote and Minshall 1982, pp. percent) viable rabbitsfoot populations per year than the natural streams 4105–4106; Waters 1995, pp. 173–175; (French Creek, Tippecanoe, Paint Rock, (USACE 2011, pp. 21–22). Unrestricted Hartfield and Hartfield 1996, p. 373). In Duck, White, Black, and Strawberry livestock access occurs on many streams addition, mussels may be indirectly Rivers; Smith et al. 2009, Table 1; and potentially threatens associated affected if high turbidity levels USACE 2011, pp. 21–22; Indiana mussel populations (Fraley and significantly reduce the amount of light Department of Environmental Ahlstedt 2000, pp. 193–194). Grazing available for photosynthesis, and thus, Management (IDEM) 2001, pp. 11–12; may reduce water infiltration rates and the production of certain food items EPA 2001, p. 10; Brueggen 2010, pp. 1– increase runoff; trampling and (Kanehl and Lyons 1992, p. 7). 2; MDC 2012, http://mdc.mo.gov/ vegetation removal increases the Studies tend to indicate that the landwater-care/stream-and-watershed- probability of erosion (Armour et al. primary effects of excess sediment management/; Environmental 1991, pp. 8–10; Brim Box and Mossa levels on mussels are sublethal, with Protection Agency Water Quality 1999, p. 103). detrimental effects not immediately Assessment Tool, http://ofmpub.epa. Developed land can increase sediment apparent (Brim Box and Mossa 1999, p. gov/tmdl_waters10/attains_nation_cy. loads and increase runoff (Wang et al. 101). The physical effects of sediment control?p_report_type=T). In addition, 2001, pp. 261–262). Hopkins (2009, p.
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952) found rabbitsfoot occurrence has both common and unique toxicant avoidance responses (when the positively correlated with riparian areas characteristics that contribute to avoidance behavior of keeping their that were 70 percent forested and observed differences in exposure and valves closed can no longer be sustained averaged 15 hectares (37 acres) in the sensitivity. Almost nothing is known of for physiological reasons (respiration Upper Green River in Ohio. Rabbitsfoot the potential mechanisms and and ability to feed) (Cope et al. 2008, p. begins to respond negatively to 0.5 consequences of waterborne toxicants 454). Toxicity results based on low-level percent of developed land within the on sperm viability. In the female exposure of adults are similar to riparian area (Hopkins 2009, pp. 948– mollusk, the marsupial region of the gill estimates for glochidia and juveniles for 952). is thought to be physiologically isolated some toxicants (for example, copper). As discussed above, specific impacts from respiratory functions, and this The duration of any toxicant avoidance on mussels from sediments include isolation may provide some level of response by an adult mussel is likely to reduced feeding and respiratory protection from contaminant vary due to several variables, such as efficiency, disrupted metabolic interference with a female’s ability to species, age, shell thickness and gape, processes, reduced growth rates, achieve fertilization or brood glochidia properties of the toxicant, and water increased substrata instability, and the (Cope et al. 2008, p. 454). A major temperature. There is a lack of physical smothering of mussels. exception to this assertion is with information on toxicant response(s) for Increased turbidity levels due to chemicals that act directly on the Neosho mucket and rabbitsfoot, but siltation can be a limiting factor that neuroendocrine pathways controlling results of tests using glochidia and impedes the ability of sight-feeding reproduction (see discussion below). juveniles may be valuable for protecting fishes to forage. Turbidity within the Nutritional and ionic exchange is adults (Cope et al. 2008, p. 454). rivers and streams during the times that possible between a brooding female and Mussels are very intolerant of heavy the mussels attempt to attract host fishes her glochidia, providing a route for metals (such as, lead, zinc, cadmium, may have contributed and may continue chemicals (accumulated or waterborne) and copper) compared to commonly to contribute to the decline of the to disrupt biochemical and tested aquatic organisms. Metals occur Neosho mucket and rabbitsfoot by physiological pathways (such as in industrial and wastewater effluents reducing their efficiency at attracting maternal calcium transport for and are often a result of atmospheric the fish hosts necessary for construction of the glochidial shell). deposition from industrial processes reproduction. In addition, sediment can Glochidia can be exposed to waterborne and incinerators, but also are associated eliminate or reduce the recruitment of contaminants for up to 36 hours until with mine water runoff (for example, juvenile mussels, interfere with feeding encystment occurs between 2 and 36 Tri-State Mining Area in southwest activity, and act as a vector in delivering hours, and then from fish host tissue Missouri) and have been attributed to contaminants to streams. Because the burdens (for example, atrazine), that last mussel declines in streams such as Neosho mucket and rabbitsfoot are from weeks to months and could affect Shoal, Center, and Turkey Creeks and filter-feeders and may bury themselves transformation success of glochidia into Spring River in the Arkansas River basin in the substrate, they are exposed to juveniles (Ingersoll et al. 2007, pp. 101– (Angelo et al. 2007, pp. 485–489), which these contaminants contained within 104). are streams with historical and extant suspended particles and deposited in Juvenile mussels typically remain Neosho mucket and rabbitsfoot bottom substrates. We conclude that burrowed beneath the sediment surface populations. Heavy metals can cause biological and habitat effects due to for 2 to 4 years. Residence beneath the mortality and affect biological sedimentation are an ongoing threat to sediment surface necessitates deposit processes, for instance, disrupting the Neosho mucket and rabbitsfoot. (pedal) feeding and a reliance on enzyme efficiency, altering filtration interstitial water for dissolved oxygen rates, reducing growth, and changing Chemical Contaminants (Watters 2007, p. 56). The relative behavior of freshwater mussels (Keller Chemical contaminants are importance of exposure of juvenile and Zam 1991, p. 543; Naimo 1995, pp. ubiquitous in the environment and are Neosho mucket and rabbitsfoot to 351–355; Jacobson et al. 1997, p. 2390; considered a major contributor to the contaminants in overlying surface Valenti et al. 2005, p. 1244; Wang et al. decline of mussel species (Richter et al. water, interstitial water, whole 2007b, pp. 2039–2046; Wang et al. 1997, p. 1081; Strayer et al. 2004, p. 436; sediment, or food has not been 2007c, pp. 2052–2055; Wang et al. 2010, Wang et al. 2007a, p. 2029; Cope et al. adequately assessed. Exposure to p. 2053). Mussel recruitment may be 2008, p. 451). Chemicals enter the contaminants from each of these routes reduced in habitats with low but environment through point- and varies with certain periods and chronic heavy metal and other toxicant nonpoint-source discharges including environmental conditions (Cope et al. inputs (Yeager et al. 1994, p. 217; Naimo spills, industrial and municipal 2008, pp. 453 and 457). 1995, pp. 347 and 351–352; Ahlstedt effluents, and residential and The primary routes of exposure to and Tuberville 1997, p. 75). Newly agricultural runoff. These sources contaminants for adult Neosho mucket transformed juveniles (age at 5 days) are contribute organic compounds, heavy and rabbitsfoot are surface water, more sensitive to acute toxicity than metals, nutrients, pesticides, and a wide sediment, interstitial (pore) water, and glochidia or older juveniles (age at 2 to variety of newly emerging contaminants diet; adults can be exposed when either 6 months) (Wang et al. 2010, p. 2062). such as pharmaceuticals to the aquatic partially or completely burrowed in the Mercury is another heavy metal that environment. As a result, water and substrate (Cope et al. 2008, p. 453). has the potential to negatively affect sediment quality can be degraded to the Adult mussels have the ability to detect mussel populations. Mercury has been extent that results in adverse effects to toxicants in the water and close their detected throughout aquatic mussel populations. valves to avoid exposure (Van Hassel environments as a product of municipal Cope et al. (2008, p. 451) evaluated and Farris 2007, p. 6). Adult mussel and industrial waste and atmospheric the pathways of exposure to toxicity and relative sensitivity deposition from coal-burning plants. environmental pollutants for all four (exposure and uptake of toxicants) may One study on rainbow mussel (Villosa freshwater mollusk life stages (free be reduced at high rather than at low iris) concluded that glochidia were more glochidia, encysted glochidia, juveniles, toxicant concentrations because uptake sensitive to mercury than were juvenile adults) and found that each life stage is affected by the prolonged or periodic mussels, with a median lethal
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concentration value of 14 ug/L for secretion of the byssal thread (used for occur in runoff from livestock farms, glochidia and 114 ug/L for juvenile substrate attachment), reduced ciliary feedlots, heavily fertilized row crops mussels (Valenti et al. 2005, p. 1242). action impairing feeding, depleted lipid, and pastures (Peterjohn and Correll The chronic toxicity is a test that glycogen, and other carbohydrate stores, 1984, p. 1471), post timber management usually measures sublethal effects (e.g., and altered metabolism (Goodreau et al. activities, and urban and suburban reduced growth or reproduction) in 1993, pp. 216–227; Augspurger et al. runoff, including leaking septic tanks, addition to lethality. These tests are 2003, pp. 2571–2574; Mummert et al. and residential lawns. usually longer in duration or conducted 2003, pp. 2548–2552). Studies have shown that excessive during some sensitive period of an Polychlorinated biphenyls (PCBs) are nitrogen concentrations can be lethal to organism’s life cycle. For this species, ubiquitous contaminants in the the adult freshwater pearl mussel the chronic toxicity test showed that environment due to their widespread (Margaritifera margaritifera) and reduce juveniles exposed to mercury greater use from the 1920s to 1970s as the life span and size of other mussel than or equal to 8 ug/L exhibited insulating material in electric species (Bauer 1988, p. 244; Bauer 1992, reduced growth (Valenti et al. 2005, p. equipment, such as transformers and p. 425). Nutrient enrichment can result 1245). Mercury also affects oxygen capacitors, as well as in heat transfer in an increase in primary productivity, consumption, byssal thread production, fluids and in lubricants. PCBs have also and the associated algae respiration and filtration rates (Naimo 1995, been used in a wide range of products, depletes dissolved oxygen levels. This Jacobsen et al. 1997, and Nelson and such as plasticizers, surface coatings, may be particularly detrimental to Calabrese 1988 in Valenti et al. 2005, p. inks, adhesives, flame retardants, paints, juvenile mussels that inhabit the 1245). Effects to mussels from mercury and carbonless duplicating paper. PCBs interstitial spaces in the substrate where toxicity may be occurring in some were still being introduced into the lower dissolved oxygen concentrations streams due to illegal dumping, spills, environment at many sites (such as are more likely than on the sediment and permit violations. For example, landfills and incinerators) until the surface where adults tend to live acute mercury toxicity was determined 1990s. The inherent stability and (Sparks and Strayer 1998, pp. 132–133). to be the cause of extirpation of diverse toxicity of PCBs have resulted in them For example, Galbraith et al. (2008, mussel fauna for a 112-rkm (70-rmi) being a persistent environmental pp. 48–49) reported a massive die-off of reach of the North Fork Holston River problem (Safe 1994 in Lehmann et al. greater than 160 rabbitsfoot specimens (Brown et al. 2005, pp. 1455–1457). Of 2007, p. 356). PCBs are lipophilic at a long-term monitoring site in the the 11 viable rabbitsfoot populations, 4 (affinity to combine with fats or lipids), Little River, Oklahoma. While the exact populations (French Creek, Duck River, adsorb easily to soil and sediment, and cause for the die-off is unknown, the Green River, and Ohio River) currently are present in the sediment and water authors speculate that the 2005 inhabit river reaches that are impaired column in aquatic environments, Oklahoma drought coupled with high by mercury and are listed as impaired making them available to bioaccumulate water temperature and extensive blooms waters under section 303(d) of the CWA. and induce negative effects in living of filamentous algae may have resulted organisms (Livingstone 2001 in in extreme physiological stress. Over- One chemical that is particularly toxic Lehmann et al. 2007, p. 356). Studies enriched conditions are exacerbated by to early life stages of mussels is have demonstrated increased PCB low flow conditions, such as those ammonia. Sources of ammonia include concentrations in native freshwater experienced during a typical summer agricultural wastes (animal feedlots and mussels (Ruessler et al. 2011, pp. 1, 7), season and that may occur with greater nitrogenous fertilizers), municipal marine bivalves (Krishnakumar et al. frequency and severity as a result of wastewater treatment plants, and 1994, p. 249), and nonnative, invasive climate change. Three of the 11 viable industrial waste (Augspurger et al. 2007, mollusks (zebra mussels and Asian rabbitsfoot populations (French Creek, p. 2026) as well as precipitation and clams) (Gossiaux et al. 1996, p. 379; Duck River, and Tippecanoe River) are natural processes (decomposition of Lehmann et al. 2007, p. 363) in areas listed as impaired waters under section organic nitrogen) (Goudreau et al. 1993, with high levels of PCBs. Oxidative 303(d) of the CWA due to nutrient p. 212; Hickey and Martin 1999, p. 44; stress (imbalance in the normal redox enrichment. Augspurger et al. 2003, p. 2569; Newton state of cells that causes toxic effects Elevated concentrations of pesticide 2003, p. 1243). Therefore, ammonia is that damage all components of the cell, frequently occur in streams due to considered a limiting factor for survival including proteins, lipids, and DNA) is residential or commercial pesticide and recovery of some mussel species a direct consequence of exposure to runoff, overspray application to row due to its ubiquity in aquatic PCBs. Relevant changes, whether crops, and lack of adequate riparian environments and high level of toxicity, directly or indirectly due to oxidative buffers. Agricultural pesticide and because the highest concentrations stress, may occur at the organ and applications often coincide with the typically occur in mussel microhabitats organism levels and will likely result in reproductive and early life stages of (Augspurger et al. 2003, p. 2574). In mussel population-wide effects, mussels, and effects to mussels may be addition, studies have shown that including reduced fecundity and increased during a critical time period ammonia concentrations increase with chronic maladies due to PCB exposure (Bringolf et al. 2007a, p. 2094). Recent increasing temperature, pH, and low (Lehmann et al. 2007, p. 363). Two of studies tested the toxicity of glyphosate, flow conditions (Cherry et al. 2005, p. the 11 viable rabbitsfoot populations (18 its formulations, and a surfactant (MON 378; Cooper et al. 2005, p. 381; Wang et percent) inhabit waters listed as 0818) used in several glyphosate al. 2007, p. 2045), which may be impaired due to PCBs under section formulations, to early life stages of the exacerbated by the effects of climate 303(d) of the CWA. fatmucket (Lampsilis siliquoidea), a U.S. change, and may cause ammonia Agriculture, timber harvest, and lawn native freshwater mussel (Bringolf et al. (unionized and ionized) to become more management practices utilize nutrients 2007a, p. 2094). Studies conducted with problematic for juvenile mussels (Wang and pesticides. These are two broad juvenile mussels and glochidia et al. 2007, p. 2045). Sublethal effects categories of chemical contaminants determined that the surfactant (MON include, but may not be limited to, that have the potential to negatively 0818) was the most toxic of the reduced time the valves are held open impact mussel species. Nutrients, such compounds tested and that L. for respiration and feeding; impaired as nitrogen and phosphorus, primarily siliquoidea glochidia were the most
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sensitive organism tested to date because of the drug’s action on continue to be a localized threat in (Bringolf et al. 2007a, p. 2094). serotonin and other neuroendocrine several streams with viable rabbitsfoot Roundup®, technical grade glyphosate pathways (Cope et al. 2008, p. 455). populations (Ohio, Tennessee, White, isopropylamine salt, and Pharmaceuticals or organic wastewater Strawberry, and Little Rivers). In the isopropylamine were also acutely toxic constituents are generally greater lower Tennessee River, instream mining to juveniles and glochidia (Bringolf et downstream of wastewater treatment occurs in 18 reaches totaling 77.1 rkm al. 2007a, p. 2097). The study of other facilities (Galloway et al. 2005, p. 28). (47.9 rmi) between the Duck River pesticides, including atrazine, Pharmaceuticals that alter mussel confluence and Pickwick Landing Dam chlorpyrifos, and permethrin, on behavior and influence successful (Hubbs 2010, pers. comm.). glochidia and juvenile life stages attachment of glochidia on fish hosts Coal mining activities, resulting in determined that chlorpyrifos was toxic may have population-level implications heavy metal-rich drainage, and to both L. siliquoidea glochidia and for the Neosho mucket and rabbitsfoot. associated sedimentation has adversely juveniles (Bringolf et al. 2007b, pp. 2101 The information presented in this affected many drainages with rabbitsfoot and 2104). The above results indicate section represents some of the threats populations, including portions of the the potential toxicity of commonly from chemical contaminants that have upper Ohio River system in Kentucky, applied pesticides and the threat to been documented both in the laboratory Pennsylvania, and West Virginia; the mussel species as a result of the and field and demonstrates that lower Ohio River system in eastern widespread use of these pesticides. chemical contaminants pose a Illinois; the Rough River drainage in Chemical spills have resulted in the substantial threat to Neosho mucket and western Kentucky; and the upper loss of high numbers of mussels (Jones rabbitsfoot. A cursory examination of Cumberland River system in Kentucky et al. 2001, p. 20; Brown et al. 2005, p. land use trends, nonpoint- and point- and Tennessee (Ortmann 1909 in Butler 1457; Schmerfeld 2006, pp. 12–13) and source discharges, and the list of 2005, p. 102; Gordon 1991, pp. 4 and 5; are considered a serious threat to mussel impaired waters under section 303(d) of Layzer and Anderson 1992 in Butler species. The Neosho mucket and the CWA suggests that all 11 rabbitsfoot 2005, p. 102). Numerous mussel rabbitsfoot are especially threatened by populations currently considered viable toxicants, such as polycyclic aromatic chemical spills because these spills can may be subjected to the subtle, hydrocarbons and heavy metals (copper, occur anywhere that highways with pervasive effects of chronic, low-level manganese, and zinc) from coal mining tanker trucks, industries, or mines contamination that is ubiquitous in contaminate sediments when released overlap with their distribution. these watersheds. For example, the 8 of into streams (Ahlstedt and Tuberville Other examples of the influence of the 11 (73 percent) streams with viable 1997, p. 75). Low pH commonly point- and nonpoint-source pollutants rabbitsfoot populations are listed as associated with mine runoff can reduce on streams throughout the range of the impaired waters under section 303(d) of glochidial attachment rates on host fish Neosho mucket and rabbitsfoot include the CWA. Reasons for impairment (Huebner and Pynnonen 1990, two documented mussel kills in Fish include mercury, nutrients, organic pp. 2350–2353). Thus, acid mine runoff Creek (circa 1988) as a result of manure enrichment and dissolved oxygen may have local effects on mussel runoff from a hog farm and a diesel spill depletion, pathogens, turbidity recruitment and may lead to mortality (Watters 1988, p. 18). Twelve point- (sediment), and PCBs. Potential effects due to improper shell development or source discharges occur on the Green from contaminant exposure may result erosion. River (Kentucky State Nature Preserves in death, reduced growth, altered Metal mining (lead, cadmium, and Commission and The Nature metabolic processes, or reduced zinc) in the Tri-State Mining Area Conservancy 1998, pp. 15–19). The reproduction. We conclude that (15,000 square kilometers: 5,800 square Illinois and Little Rivers are subject to biological and habitat effects of miles) in Kansas, Missouri, and nonpoint-source organic runoff from chemical contaminants are an ongoing Oklahoma) has negatively affected poultry farming and municipal threat contributing to the decline of Center and Shoal Creeks and the Spring wastewater. Pharmaceutical chemicals Neosho mucket and rabbitsfoot River. It has been implicated in the loss used in commonly consumed drugs are populations. of Neosho mucket and rabbitsfoot from increasingly found in surface waters. A portions of these streams (Obermeyer et recent nationwide study sampling 139 Mining al. 1997b, p. 114). A study by the Kansas stream sites in 30 States detected the Gravel, coal, and metal mining are Department of Health and Environment presence of numerous pharmaceuticals, activities negatively affecting water documented a strong negative hormones, and other organic wastewater quality in Neosho mucket and correlation between the distribution and contaminants downstream from urban rabbitsfoot habitat. Instream and alluvial abundance of native mussels, including development and livestock production gravel mining has been implicated in Neosho mucket, and sediment areas (Kolpin et al. 2002, pp. 1208– the destruction of mussel populations concentrations of lead, zinc and 1210). Another study in northwestern (Hartfield 1993, pp. 136–138; Brim Box cadmium in the Spring River system Arkansas found pharmaceuticals or and Mossa 1999, pp. 103–104). Negative (Angelo et al. 2007, pp. 477–493). other organic wastewater constituents at effects associated with gravel mining Sediment and water quality samples 16 of 17 sites in 7 streams surveyed in include stream channel modifications exceeded EPA 2006 threshold effect 2004 (Galloway et al. 2005, pp. 4–22). (altered habitat, disrupted flow patterns, concentrations for cadmium, lead, and Toxic levels of exposure to chemicals sediment transport), water quality zinc at numerous sampling locations that act directly on the neuroendocrine modifications (increased turbidity, within the Tri-State Mining Area pathways controlling reproduction can reduced light penetration, increased (Gunter 2007, pers. comm.). These cause premature release of viable or temperature), macroinvertebrate physical habitat threats combined with nonviable glochidia. For example, the population changes (elimination), and poor water quality and agricultural active ingredient in many human changes in fish populations, resulting nonpoint-source pollution are serious prescription antidepressant drugs from adverse effects to spawning and threats to all existing mussel fauna in belonging to the class of selective nursery habitat and food web the basin. serotonin reuptake inhibitors may exert disruptions (Kanehl and Lyons 1992, In the St. Francis River basin, past negative reproductive effects on mussels pp. 4–10). Gravel mining activities metal mining and smelting (early
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eighteenth century through the 1940s) Several of the viable rabbitsfoot Methods have been devised and have resulted in continuing heavy metal populations occur in active shale basins implemented for the propagation of (lead, iron, nickel, copper, cobalt, zinc, (areas of shale gas formations) (http:// Neosho mucket and rabbitsfoot. The cadmium, chromium) contamination of www.eia.gov/analysis/studies/ States of Kansas and Missouri have surface waters in the area upstream of worldshalegas/). In 2006, more than released thousands of juvenile Neosho the extant rabbitsfoot population. 3,700 permits were issued for oil and mucket individuals in the Fall, Recent and historical metals mining and gas wells by the Pennsylvania Verdigris, and Spring Rivers. The State smelting produced large volumes of Department of Environmental of Kansas reintroduced Neosho mucket contaminated wastes. Most of these Protection, which also issued 98 at two sites in the Cottonwood River. mining wastes are stored behind poorly citations for permit violations at 54 The State of Alabama reintroduced constructed dams and impoundments wells (Hopey 2007; adapted from rabbitsfoot in Limestone Creek. Similar (Roberts 2008, pers. comm.). Service 2008, p. 13). A natural gas efforts to augment rabbitsfoot Wappapello Reservoir and the pipeline company pled guilty to three populations in Kentucky are under way. confluence with Big Creek (with habitat violations of the Act in 2011 for The Service is processing Safe Harbor degradation primarily from mining unauthorized take of a federally Agreements and Candidate activities) may effectively limit the endangered mussel in Arkansas as a Conservation Agreements with distribution of the rabbitsfoot in the St. result of a large amount of sediment Assurances with private landowners to Francis River. We conclude that being transported from pipeline right-of- conserve aquatic species. Rabbitsfoot is biological and habitat effects due to ways to tributary streams in the affected one of the species included in two mining activities are a significant and watershed (Department of Justice 2011, programmatic Safe Harbor Agreements ongoing threat contributing to declining pers. comm.). Where oil and natural gas (SHA) in Arkansas. Implementation of Neosho mucket and rabbitsfoot development occurs within the range of the upper Little Red River SHA began in populations. extant Neosho mucket and rabbitsfoot 2007, and approximately 12,000 acres populations, we conclude that the have been enrolled to date. This SHA is Oil and Natural Gas Development resulting biological and habitat effects currently undergoing permit Oil and natural gas resources are are a significant and ongoing threat amendment to add rabbitsfoot, but the present in some of the watersheds that contributing to the decline of both SHA already covers another mussel are known to support rabbitsfoot, species. (speckled pocketbook) and conservation measures currently being implemented including the Allegheny and Middle Conservation Measures Fork Little Red Rivers and two on enrolled lands will benefit rabbitsfoot. A similar programmatic watersheds with viable populations Nonregulatory conservation efforts (White River and French Creek). SHA is currently in the final stages of that are or have addressed range development and awaiting permit Exploration and extraction of these curtailment include monitoring of the approval from the Service in the Saline, energy resources can result in increased species distribution and status and Ouachita, and Caddo Rivers siltation, a changed hydrograph (graph habitat enhancement and restoration (headwaters) watershed. showing changes in the discharge of a projects. Survey work encompassing the river over a period of time), and altered entire range of the Neosho mucket has Summary of Factor A water quantity and quality even at been completed for all four States. The The decline of mussels in the eastern considerable distances from the mine or Service and its many State and Federal United States is primarily the result of well field because effects are carried partners have funded projects to private long-lasting direct and secondary effects downstream from the original source. landowners to enhance riparian habitat of habitat alterations such as Rabbitsfoot habitat in streams can be in many streams with Neosho mucket impoundments, channelization, threatened by the cumulative effects of and rabbitsfoot populations. For sedimentation, chemical contaminants, multiple mines and well fields (adapted instance, specific watershed-level oil and gas development, and mining, from Service 2008, p. 11). projects that have benefited habitat for and it is reasonable to conclude that the Recently, oil and gas exploration has the rabbitsfoot include the critically changes in the river basins historically been able to expand in areas of shale important populations in the Green and and currently occupied by the species due to new technologies (i.e., hydraulic Duck Rivers. Another example includes are the cause of population-level (river fracturing and horizontal drilling), the State of Kentucky securing 100,000 basin) effects. Historical population making access possible to oil and gas acres of agricultural riparian lands in losses due to impoundments have reserves in areas that were previously the upper Green River watershed. Other probably contributed more to the inaccessible. Extraction of these efforts have focused on sediment decline and range reductions of the resources, particularly natural gas, has remediation work in rabbitsfoot streams. Neosho mucket and rabbitsfoot than any increased dramatically in recent years in Reservoir releases from dams have been other single factor. Seven of the 11 (64 Arkansas, Oklahoma, Pennsylvania, and modified in recent years improving percent) viable rabbitsfoot populations West Virginia. Although oil and natural water quality and habitat conditions in (Ohio, Green, Tippecanoe, Tennessee, gas extraction generally occurs away many tailwaters occupied by rabbitsfoot. Duck, White, and Little Rivers) occur from the river, extensive road and Flow improvements below dams have downstream of main stem pipeline networks are required to enabled partners to attempt the impoundments that make these construct and maintain wells and reintroduction of listed species such as populations more susceptible to altered transport the extracted resources. These the rabbitsfoot. TVA has modified the habitat quality and quantity associated road and pipeline networks frequently Tims Ford Dam operations on the Elk with the impoundment and dam cross or occur near tributaries, River that will add 30 river miles of operation, which may be exacerbated contributing sediment to the receiving good habitat upstream from Fayetteville during stochastic events such as waterway. In addition, the construction and in the dam tailwaters. TVA has droughts and floods. Sedimentation and operation of wells may result in the committed to water quality and resulting from a variety of sources such discharge of chemical contaminants and biological monitoring for a period of 10 as channelization, agricultural and subsurface minerals. years. silvicultural practices, and construction
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activities has degraded Neosho mucket and Schuster 1989, p. 23), and hence can affect reproductive output and and rabbitsfoot habitat and altered these activities were probably not physiological condition, respectively, in biological processes essential to their significant factors in its decline. mussels (Gangloff et al. 2008, pp. 28– survival. For example, sedimentation However, it was noted occasionally in 30). Stressors that reduce fitness may associated with agricultural land use is commercial harvests as evidenced from make mussels more susceptible to cited as one of the primary threats to 7 mussel cull piles (Isely 1924; Parmalee parasites (Butler 2007, p. 90). of the 11 (64 percent) streams with et al. 1980, p. 101). Currently, Neosho Furthermore, nonnative mussels may viable rabbitsfoot populations. mucket and rabbitsfoot are not carry diseases and parasites that are Land use conversion, particularly commercially valuable species but may potentially devastating to the native urbanization that increases impervious be increasingly sought by collectors as mussel fauna on an individual or surfaces in watersheds (impervious they become rarer. Although scientific population-level basis (river basin), surface increases flood intensity and collecting is not thought to represent a including Neosho mucket and duration), channelization, and instream significant threat, unregulated collecting rabbitsfoot (Strayer 1999b, p. 88). gravel and sand mining alter natural could adversely affect localized Neosho However, while individual mussels or hydrology and stream geomorphology mucket and rabbitsfoot populations. beds of mussels historically or currently characteristics that also degrade mussel Commercial mussel harvest is illegal may have been affected by disease or habitat in streams that support the in some States (for example, Indiana parasites, we have no evidence that the Neosho mucket and rabbitsfoot. and Ohio), but regulated in others (for severity of disease or parasite Contaminants associated with industrial example, Arkansas, Alabama, Kentucky, infestations impact either mussel on a and municipal effluents, agricultural and Tennessee). These species may be population level (river basin). practices, and mining degrade water and inadvertently harvested by The muskrat (Ondatra zibethicus) is sediment quality leading to inexperienced commercial harvesters cited as the most prevalent mussel environmental conditions that have unfamiliar with species identification. predator (Kunz 1898, p. 328; Convey et lethal and sublethal effects to Neosho Although illegal harvest of protected al. 1989, pp. 654–655; Hanson et al. mucket and rabbitsfoot, particularly the mussel beds occurs (Watters and Dunn 1989, pp. 15–16). Muskrat predation highly sensitive early life stages. Eight 1995, pp. 225 and 247–250), commercial may limit the recovery potential of of the 11 (73 percent) streams with harvest is not known to have a endangered or threatened mussels or viable rabbitsfoot populations are listed significant effect on the Neosho mucket contribute to local extirpations of as impaired waters under section 303(d) and rabbitsfoot. previously stressed populations, of the CWA, which means that the according to Neves and Odom (1989, p. rabbitsfoot may be subjected to the Conservation Measures 940), who consider it, however, subtle, pervasive effects of chronic, low- We are not aware of any primarily a seasonal or localized threat. level contamination that is ubiquitous nonregulatory actions that are being Galbraith et al. (2008, p. 49) in these watersheds. Chronic conducted to ameliorate overutilization hypothesized that predation may have contamination can affect the mussels in for commercial, recreational, scientific, exacerbated rabbitsfoot mortality in the a variety of ways including sublethal or educational purposes at this time. Little River, Oklahoma, during the 2005 effects (such as suppressed immune drought. Harris et al. (2007, p. 31) Summary of Factor B systems and effects to reproduction and reported numerous dead rabbitsfoot fecundity from neuroendocrine Though it is possible that the from muskrat middens (mound or disrupters) and lethal effects (such as intensity of inadvertent or illegal deposit containing shells) in the Spring sediment smothers and disruption of harvest may increase in the future, we River, Arkansas. Other mammals (for other metabolic processes). have no evidence that this stressor is example, raccoon, mink, otter, hogs, and In summary, we have determined that currently increasing in severity. On the rats), turtles, and aquatic birds also impoundments, channelization, basis of this analysis, we find that occasionally feed on mussels (Kunz sedimentation, chemical contaminants, overutilization for commercial, 1898, p. 328; Neck 1986, pp. 64–65). mining, and oil and natural gas recreational, scientific, or educational Recently, predation of Neosho mucket development are ongoing threats to the purposes is not a current threat to the by reintroduced otters has been Neosho mucket and rabbitsfoot and Neosho mucket or rabbitsfoot in any documented in a mussel bed also their habitat that are expected to portion of their range at this time nor is supporting rabbitsfoot in the Spring continue into the future. Although likely to become so in the future. River, Kansas (Barnhart 2003, pp. 16– efforts have been made to restore habitat 17), and likely occurs elsewhere. Factor C. Disease or Predation in some areas, these threats are still Muskrat predation has been ongoing, as evidenced by population Little is known about diseases in documented for Neosho mucket and declines and range reduction. freshwater mussels (Grizzle and rabbitsfoot, but the overall threat is Brunner 2007, p. 6). However, mussel generally considered insignificant. Factor B. Overutilization for die-offs have been documented in Some species of fish feed on mussels Commercial, Recreational, Scientific, or streams inhabited by rabbitsfoot (Neves (for example, common carp (Cyprinus Educational Purposes 1986, pp. 8–11), and some researchers carpio), freshwater drum (Aplodinotus The Neosho mucket was valuable in believe that disease may be a factor grunniens), and redear sunfish (Lepomis the pearl button industry (1800s to early contributing to the die-offs (Buchanan microlophus)) and potentially on young 1940s), and historical episodes of 1986, p. 53; Neves 1986, p. 11). Mussel Neosho mucket and rabbitsfoot. Various overharvest in the Neosho River may parasites include water mites, invertebrates, such as flatworms, hydra, have contributed to its decline trematodes, oligochaetes, leeches, nonbiting midge larvae, dragonfly (Obermeyer et al. 1997b, p. 115). The copepods, bacteria, and protozoa larvae, and crayfish, feed on juvenile rabbitsfoot was never a valuable shell (Grizzle and Brunner 2007, p. 4). mussels (Zimmerman et al. 2003, p. 28). for the commercial pearl button Generally, parasites are not suspected of Although predation by naturally industry (Meek and Clark 1912, p. 15; being a major limiting factor in the occurring predators is a normal aspect Murray and Leonard 1962, p. 65), nor species’ survival (Oesch 1984, p. 6). of the population dynamics of a healthy the cultured pearl industry (Williams However, mite and trematode burdens mussel population, predation may
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amplify declines in small populations of have no evidence that this stressor is 21–22). Currently, the CWA may not this species. In addition, the potential currently increasing in severity. adequately protect Neosho mucket and now exists for black carp Factor D. The Inadequacy of Existing rabbitsfoot habitat from NPS pollution. (Mylopharyngodon piceus), a mollusk- Regulatory Mechanisms The Service has no information eating Asian fish recently introduced concerning the implementation of the into the waters of the United States The objective of the Federal Water CWA regarding NPS pollution specific (Strayer 1999b, p. 89), to eventually Pollution Control Act, commonly to protection of both mussels. However, disperse throughout the range of the referred to as the Clean Water Act insufficient implementation could Neosho mucket and rabbitsfoot. (CWA) (33 U.S.C. 1251 et seq.), is to become a threat to both mussel species However, we have no evidence that the restore and maintain the chemical, if they continue to decline in numbers physical, and biological integrity of the severity of predation has reached levels or if new information becomes nation’s waters by preventing point and where populations (river basin) of either available. mussel have been historically or nonpoint pollution sources. The CWA recently impacted or should be has a stated goal that ‘‘. . . wherever Point-source discharges within the impacted in the future based on current attainable, an interim goal of water range of the Neosho mucket and information. quality which provides for the rabbitsfoot have been reduced since the The life cycle of freshwater mussels is protection and propagation of fish, enactment of the CWA. Despite some intimately related to that of the shellfish, and wildlife and provides for reductions in point-source discharges, freshwater fish they use as hosts for recreation in and on the water be adequate protection may not be their parasitic glochidia. For this reason, achieved by July 1, 1983.’’ States are provided by the CWA for filter-feeding diseases that affect populations of responsible for setting and organisms that can be affected by freshwater fishes also pose a significant implementing water quality standards extremely low levels of contaminants threat to mussels in general. Viral that align with the requirements of the (see Chemical Contaminants discussion hemorrhagic septicemia (VHS) disease CWA. Overall, implementation of the under Factor A). The Neosho mucket has been confirmed from much of the CWA could benefit both mussel species and rabbitsfoot continue to decline due Great Lakes and St. Lawrence River through the point and nonpoint to the effects of habitat destruction, poor system. If the VHS virus successfully programs. water quality, contaminants, and other migrates out of Clearfork Reservoir or Nonpoint source (NPS) pollution factors. Eight of the 11 (73 percent) the Great Lakes and into the Ohio and comes from many diverse sources, streams with viable rabbitsfoot Mississippi River basins, it could spread unlike pollution from industrial and populations are listed as impaired rapidly and cause fish kills throughout sewage treatment plants. NPS pollution waters under section 303(d) of the CWA. the river basins. Few Neosho mucket is caused by rainfall or snowmelt Reasons for impairment include and rabbitsfoot populations are moving over and through the ground. As mercury, nutrients, organic enrichment, currently recruiting at sustainable the runoff moves, it transports natural dissolved oxygen depletion, pathogens, levels, and fish kills, particularly if VHS and human-made pollutants. While turbidity (sediment), and PCBs. In some pollutants may be ‘‘deposited,’’ infects suitable fish hosts, could further addition, numerous tributaries within some may remain in suspension reduce glochidia encounters with fish watersheds supporting viable Neosho (dissolved) as they are transported hosts and exacerbate mussel recruitment mucket and rabbitsfoot populations also through various waterbodies. States reductions. However, we have no are listed as impaired waters under report that nonpoint source pollution is evidence that fish kills affecting section 303(d) of the CWA, which potential fish hosts of these two mussel the leading remaining cause of water quality problems. The effects of means that both species may be species have had population effects subjected to greater, albeit subtle, historically or recently. nonpoint-source pollutants on specific waters vary and may not always be fully pervasive effects of chronic, low-level Conservation Measures assessed. However, these pollutants contamination that is ubiquitous in Nonregulatory conservation measures have harmful effects on fisheries and these watersheds. However, we are implemented include control of the wildlife (http://www.epa.gov/owow_ aware of no specific information about Asian carp and black carp. Both species keep/NPS/whatis.html). the sensitivity of the Neosho mucket are listed under the Injurious Wildlife Sources of NPS pollution within the and rabbitsfoot to common point-source Provision of the Lacey Act, which watersheds occupied by both mussels pollutants like industrial and municipal prohibits the import, export, and include timber clearcutting, clearing of pollutants and very little information on transport between States. Numerous riparian vegetation, urbanization, road other freshwater mussels. Because little States within the range of Neosho construction, and other practices that information is available about water mucket and rabbitsfoot are engaging in allow bare earth to enter streams (The quality parameters necessary to fully efforts (such as, eradication) to Nature Conservancy 2004, p. 13). protect freshwater mussels, such as the minimize the effects of Asian carp on Numerous stream segments in the Duck, Neosho mucket and rabbitsfoot, it is native fishery resources. White, Black, Little, and Strawberry difficult to determine whether the CWA River watersheds are listed as impaired is adequately addressing the threats to Summary of Factor C waters under section 303(d) of the CWA these species. However, given that a Disease in mussels is poorly known by EPA due to sedimentation associated goal of the CWA is to establish water and not currently considered a threat with agriculture (USACE 2011, p. 21; quality standards that protect shellfish rising to a level such that it would have EPA Water Quality Assessment Tool, and given that documented declines of an effect on the Neosho mucket, nor the http://ofmpub.epa.gov/tmdl_waters10/ these mussel species still continue due rabbitsfoot, as a whole. Studies indicate attains_nation_cy.control?p_report_ to poor water quality and other factors, that, in some localized areas, disease type=T). For example, impaired streams we take a conservative approach in and predation may have negative effects in the Duck River watershed (483 rkm favor of the species and conclude that on mussel populations. Though it is (300 rmi)) are losing 5 to 55 percent the CWA has been insufficient to reduce possible that the intensity of disease or more soil per year than streams not or remove the threats to the Neosho predation may increase in the future, we labeled as impaired (USACE 2011, pp. mucket and rabbitsfoot.
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Summary of Factor D size (the minimum or threshold number populations could be slowly expiring, a In summary, the CWA has a stated of individuals needed in a population to phenomenon termed the extinction debt goal to establish water quality standards persist in a viable state for a given (Tilman et al. 1994, pp. 65–66). Even that protect aquatic species, including interval) (Shaffer 1981, p. 131; Shaffer given the absence of existing or new the Neosho mucket and rabbitsfoot. and Samson 1985, pp. 148–150; Gilpin anthropogenic threats, disjunct However, the CWA has generally been and Soule´ 1986, pp. 25–33). populations may be lost as a result of insufficient at protecting mussels, and Furthermore, this level of isolation current below-threshold effective adequate water quality criteria that are makes natural repopulation of any population size. Additionally, evidence protective of all life stages, particularly extirpated population unlikely without indicates that general habitat glochidia and juveniles, may not have human intervention. Population degradation continues to decrease been established. Little information is isolation prohibits the natural habitat patch size, further contributing known about specific sensitivities of interchange of genetic material between to the decline of Neosho mucket and mussels to various pollutants, but both populations, and small population size rabbitsfoot populations. species continue to decline due to the reduces the reservoir of genetic diversity We find that fragmentation and effects of habitat destruction, poor water within populations, which can lead to isolation of small remaining populations quality, contaminants, and other factors. inbreeding depression (Avise and of the Neosho mucket and rabbitsfoot Hambrick 1996, p. 461). are current and ongoing threats to both Factor E. Other Natural or Manmade Neosho mucket and rabbitsfoot were species throughout all of their ranges Factors Affecting Its Continued once widespread throughout their and will continue into the future. Existence respective ranges with few natural Further, stochastic events may play a Population Fragmentation and Isolation barriers to prevent migration (via fish magnified role in population extirpation host species) among suitable habitats. when small, isolated populations are Population fragmentation and However, construction of dams involved. isolation prohibit the natural extirpated many Neosho mucket and Invasive Nonindigenous Species interchange of genetic material between rabbitsfoot populations and isolated populations. Most of the remaining others. Recruitment reduction or failure Various invasive or nonnative species Neosho mucket and rabbitsfoot is a potential problem for many small of aquatic organisms are firmly populations are small and Neosho mucket and rabbitsfoot established in the range of the Neosho geographically isolated, and, thus, are populations rangewide, a potential mucket and rabbitsfoot. The nonnative, susceptible to genetic drift, inbreeding condition exacerbated by their reduced invasive species that poses the most depression, and stochastic changes to range, increasingly small populations, significant threat is the zebra mussel, the environment, such as toxic chemical and increasingly isolated populations. If Dreissena polymorpha, introduced from spills (Smith 1990, pp. 311–321; Watters these trends continue, further Europe. Its invasion poses a threat to and Dunn 1995, pp. 257–258; Avise and significant declines in total population mussel faunas in many regions, and Hamrick 1996, pp. 463–466). For size and subsequent reduction in long- species extinctions are expected as a example, the Spring River (White River term survivability may be observed in result of its continued spread in the basin) and Muddy Creek (Ohio River the future. eastern United States (Ricciardi et al. basin) rabbitsfoot populations are the The likelihood is high that some 1998, p. 613). Strayer (1999b, pp. 75–80) only small populations not isolated rabbitsfoot and Neosho mucket reviewed in detail the mechanisms by from a viable population. Three populations are below the effective which zebra mussels affect native marginal populations (Alleghany River population size (EPS—the number of mussels. Zebra mussels attach in large and LeBoeuf and Conneauttee Creeks), individuals in a population who numbers to the shells of live native considered metapopulations with contribute offspring to the next mussels and are implicated in the loss French Creek, also are not isolated from generation), based on restricted of entire native mussel beds. Fouling a viable rabbitsfoot population (French distribution and populations only effects include impeding locomotion Creek). However, 41 of 51 extant represented by a few individuals, and (both laterally and vertically), rabbitsfoot populations (80 percent) are achieving the EPS is necessary for a interfering with normal valve isolated from other extant populations, population to adapt to environmental movements, deforming valve margins, excluding those discussed above and change and maintain long-term and locally depleting food resources and the Strawberry, Tennessee, and Ohio viability. Isolated populations increasing waste products. Heavy Rivers, which are viable populations eventually are extirpated when infestations of zebra mussels on native that are not isolated from another viable population size drops below the EPS or mussels may overly stress the animals population (Black River) or each other threshold level of sustainability (Soule´ by reducing their energy stores. They (lower Tennessee and Ohio Rivers). 1980, pp. 162–164). Evidence of may also reduce food concentrations to Inbreeding depression can result in recruitment in many populations of levels too low to support reproduction, early mortality, decreased fertility, these two species is scant, making or even survival in extreme cases. Zebra smaller body size, loss of vigor, reduced recruitment reduction or outright failure mussels also may affect Neosho mucket fitness, and various chromosome suspect. These populations may be and rabbitsfoot through filtering and abnormalities (Smith 1990, pp. 311– experiencing the bottleneck effect of not removing their sperm and possibly 321). A species’ vulnerability to attaining the EPS. Small, isolated, below glochidia from the water column, thus extinction is increased when they are the EPS-threshold populations of short- reducing reproductive potential. Habitat patchily distributed due to habitat loss lived species (most fish hosts) for native mussels also may be degraded and degradation (Noss and Cooperrider theoretically die out within a decade or by large deposits of zebra mussel 1994, pp. 58–62; Thomas 1994, p. 373). so, while below-threshold populations pseudofeces (undigested waste material Although changes in the environment of long-lived species, such as the passed out of the incurrent siphon) may cause populations to fluctuate Neosho mucket and rabbitsfoot, might (Vaughan 1997, p. 11). naturally, small and low-density take decades to die out even given years Overlapping much of the current populations are more likely to fluctuate of total recruitment failure. Without range of the Neosho mucket and below a minimum viable population genetic interchange, small, isolated rabbitsfoot, zebra mussels have been
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detected or are established in Neosho not appear to be a causative factor in the 2012, p. 33). Golden alga blooms have mucket (Neosho and Verdigris Rivers) decline of mussels in dense beds. been associated with mine and gas and rabbitsfoot streams (Ohio, However, an Asian clam population that outfalls, specifically high chlorides Allegheny, Green, Tennessee, White, thrives in previously stressed, sparse (Sextone 2012, p. 1). Golden alga can and Verdigris Rivers, and French and mussel populations might exacerbate give off toxins, when inorganic nitrogen Bear Creeks). Zebra mussel populations mussel decline through competition and and phosphorous are scarce, that are appear to be maintained primarily in by impeding mussel population lethal to gill-breathing organisms, such streams with barge navigation (Stoeckel expansion (Vaughn and Spooner 2006, as mussels and fishes. The toxins also et al. 2003, p. 334). As zebra mussels pp. 335–336). can kill other invertebrates, planktonic may maintain high densities in big A molluscivore (mollusk eater), the algae, and bacteria (Barkoh and Fries rivers, large tributaries, and below introduced black carp 2010, p. 1). A golden alga bloom can be infested reservoirs, rabbitsfoot (Mylopharyngodon piceus), is a detrimental to Neosho mucket and populations in these affected areas have potential threat to Neosho mucket and rabbitsfoot by directly killing the potential to be significantly affected. rabbitsfoot (Strayer 1999b, p. 89). It has individuals and fish hosts and In addition, there is long-term potential been proposed for widespread use by destroying their food base. Nonnative, for zebra mussel invasions into other aquaculturists to control snails, the invasive species, such as those systems that currently harbor Neosho intermediate host of a trematode described above, are an ongoing threat mucket and rabbitsfoot populations. (flatworm) parasite affecting catfish in to the Neosho mucket and rabbitsfoot. However, evidence is mounting in some ponds in the southeast and lower This threat is likely to increase as these northern streams where there is no midwest. They are known to feed on and potentially other invasive species barge navigation (French Creek and various mollusks, including mussels expand their occupancy within the Tippecanoe River) and southern ones and snails, in China. They are the ranges of the Neosho mucket and with barge traffic (Tennessee River) that largest of the Asiatic carp species, rabbitsfoot through displacement, the zebra mussel threat to native reaching more than 1.2 meters (4 feet) in recruitment interference, and direct mussels may be minimal because native length (Nico and Williams 1996, p. 6). predation of the mussels and their fish freshwater mussel populations are able Foraging rates for a 4-year-old fish hosts. to survive when zebra mussel average 1.4–1.8 kg (3 or 4 pounds) a day, Temperature abundance is low (Butler 2005, p.116; indicating that a single individual could Fisher 2009, pers. comm.). consume 9,072 kilograms (10 tons) of Natural temperature regimes can be The Asian clam (Corbicula fluminea) native mollusks during its lifetime altered by impoundments, tailwater has spread throughout the range of (MICRA 2005, p. 1). In 1994, 30 black releases from dams, industrial and Neosho mucket and rabbitsfoot since its carp escaped from an aquaculture municipal effluents, and changes in introduction in the early twentieth facility in Missouri during a flood. The riparian habitat. Low temperatures can century. It competes with native escape of nonsterile black carp is significantly delay or prevent mussels, particularly juveniles, for considered imminent by conservation metamorphosis in mussels (Watters and resources such as food, nutrients, and biologists (Butler 2007, pp. 95–96). The O’Dee 1999, pp. 454–455). Cold water space (Neves and Widlak 1987, p. 6; Leff black carp was officially added to the effluent below dams may negatively et al. 1990, p. 414), and may ingest Federal list of injurious wildlife species impact populations; rabbitsfoot were sperm, glochidia, and newly on October 18, 2007 (72 FR 59019). less abundant and in poor condition metamorphosed juveniles of native The round goby (Neogobius below a cold water outflow on the Little mussels (Strayer 1999b, p. 82; Yeager et melanostomus) is another nonnative, River, compared to two other sites al. 2000, p. 255). Periodic die-offs of invasive fish species released in the upstream (Galbraith and Vaughn 2011, Asian clams may produce enough 1980s that is well established and likely p. 198). Low water temperatures caused ammonia and consume enough to spread through the Mississippi River by dam releases also may disrupt dissolved oxygen to kill native mussels system (Strayer 1999b, pp. 87–88). This seasonal patterns in reproduction on the (Strayer 1999b, p. 82). Yeager et al. species is an aggressive competitor of Little River (Galbraith and Vaughn 2009, (2000, pp. 257–258) determined that similar-sized benthic fishes (sculpins pp. 43–44). high densities of Asian clams negatively and darters), as well as a voracious Exact critical thermal limits for affect the survival and growth of newly carnivore, despite its size (less than 25.4 survival and normal functioning of metamorphosed juvenile mussels and centimeters (10 inches) in length), many freshwater mussel species are thus reduced recruitment. Dense Asian preying on a variety of foods, including unknown. However, high temperatures clam populations actively disturb small mussels and fishes that could can reduce dissolved oxygen sediments that may reduce habitat for serve as glochidial hosts (Strayer 1999b, concentrations in the water, which juveniles of native mussels (Strayer p. 88; Janssen and Jude 2001, p. 325). slows growth, reduces glycogen stores, 1999b, p. 82). Round gobies may, therefore, pose a impairs respiration, and may inhibit Asian clam densities vary widely in threat to Neosho mucket and rabbitsfoot reproduction (Fuller 1974, pp. 240– the absence of native mussels or in reproduction. 241). Thermally sensitive species patches with sparse mussel The golden alga (Prymnesium decrease their water filtering and concentrations, but Asian clam density parvum) is an invasive marine or oxygen consumption at higher is never high in dense mussel beds, estuarine algae that likely originated in temperatures (Spooner and Vaughn indicating that the clam is unable to Europe (Barkoh and Fries 2010, p. 2). 2008, p. 314). Although we do not have successfully invade small-scale habitat Golden alga is found throughout 20 physiological data on rabbitsfoot and patches with high unionid biomass States in the United States. Algae Neosho mucket, closely related species, (Vaughn and Spooner 2006, pp. 334– blooms and fish kills have been reported the plain pocketbook (Lampsilis 335). The invading clam, therefore, in the following States that overlap the cardium) and the pimpleback (Quadrula appears to preferentially invade sites range of Neosho mucket and rabbitsfoot: pustulosa), are thermally sensitive where mussels are already in decline Arkansas, Oklahoma, Alabama, (Spooner and Vaughn 2008, p. 313). (Strayer 1999b, pp. 82–83; Vaughn and Louisiana, Mississippi, Georgia, West Water temperature increases have been Spooner 2006, pp. 332–336) and does Virginia, and Kentucky (Hambright documented to shorten the period of
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glochidial encystment, reduce righting projections are informative and in some Conservation Measures speed (various reflexes that tend to cases are the only or the best scientific Nonregulatory conservation measures bring the body into normal position in information available, to the extent that address these threats include space and resist forces acting to displace possible we use ‘‘downscaled’’ climate implementing artificial propagation it out of normal position), and slow projections which provide higher programs (see Summary of Factor A). burrowing and movement responses resolution information that is more The Interior Highlands Mollusk (Bartsch et al. 2000, p. 237; Watters et relevant to the spatial scales used to Conservation Council, Ohio River al. 2001, p. 546; Schwalb and Pusch assess effects to a given species (see Ecosystem Team—Mollusk 2007, pp. 264–265). Several studies Glick et al. 2011, pp. 58–61 for a Subcommittee and similar working have documented the influence of discussion of downscaling). With regard groups targeting mussel conservation temperature on the timing aspects of to our analysis for the Neosho mucket efforts, has been created and includes mussel reproduction (Gray et al. 2002, and the rabbitsfoot, downscaled the Service, State and Federal agencies, p. 156; Allen et al. 2007, p. 85; projections of climate change are nongovernmental organizations, Steingraeber et al. 2007, pp. 303–309). available, but projecting precise effects academia, and Tribes. Peak glochidial releases are associated on these two species from downscaled with water temperature thresholds that models is difficult because of the large Summary of Factor E can be thermal minimums or geographic areas inhabited by both A variety of natural and manmade maximums, depending on the species species. However, projections for the factors threatens the continued (Watters and O’Dee 2000, p. 136). change in annual air temperature by the existence of Neosho mucket and Alterations in temperature regimes in year 2080 for the Neosho mucket ranges streams, such as those described above, rabbitsfoot. Forty-one of the 51 (80 between an increase of 7 to 8 degrees are an ongoing threat to the Neosho percent) extant rabbitsfoot populations Fahrenheit (°F) and for the rabbitsfoot, mucket and rabbitsfoot. This threat is are isolated from viable populations. A an increase of 4.5 to 8 °F in annual air likely to continue and increase in the lack of recruitment and genetic isolation temperature (Maura et al. 2007, as future due to additional navigation or pose a threat to the continued existence water supply projects and as land use displayed on http:// of these species. Invasive, conversion to urban uses increases www.climatewizard.org/# 2012). nonindigenous species, such as zebra within the entire ranges of the Neosho Mussels can be placed into thermal mussel, black carp, and Asian clam, mucket and rabbitsfoot. guilds, thermally sensitive and have potentially adversely affected thermally tolerant species, according to populations of the Neosho mucket and Climate Change their response to warm summer water rabbitsfoot and their fish hosts, and Our analyses under the Act include temperatures greater than 35 °C (95 °F) these effects are expected to persist into consideration of ongoing and projected (Spooner and Vaughn 2008, p. 313). the future. Evidence exists that the changes in climate. The terms ‘‘climate’’ Although we do not have physiological interaction of climate change and water and ‘‘climate change’’ are defined by the data on rabbitsfoot and Neosho mucket, management negatively impacts mussels Intergovernmental Panel on Climate closely related species, Lampsilis (Galbraith et al. 2010, pp. 1179–1180). Change (IPCC). ‘‘Climate’’ refers to the cardium and Quadrula pustulosa, are Drought combined with water mean and variability of different types thermally sensitive (Spooner and management practices has led to high of weather conditions over time, with 30 Vaughn 2008, p. 313). Data for the mortality in thermally sensitive species years being a typical period for such Kiamichi River in Oklahoma suggests (Galbraith et al. 2010, pp. 1180–1181). measurements, although shorter or that, over the past 17 years as water and Based on the best available information, longer periods also may be used (IPCC air temperatures have increased, mussel we are unable to predict the timing and 2007, p. 78). The term ‘‘climate change’’ beds once dominated by thermally scope of any changes to these mussel thus refers to a change in the mean or sensitive species are now dominated by species that may occur as a result of variability of one or more measures of thermally tolerant species (Galbraith et climate change effects, particularly when combined with effects from water climate (e.g., temperature or al. 2010, p. 1179; Spooner and Vaughn management practices. precipitation) that persists for an 2008, p. 316). As temperature increases extended period, typically decades or due to climate change throughout the Cumulative Effects of Threats longer, whether the change is due to range of Neosho mucket and rabbitsfoot, natural variability, human activity, or The life-history traits and habitat both species may experience population both (IPCC 2007, p. 78). Various types requirements of the Neosho mucket and declines as warmer rivers are more of changes in climate can have direct or rabbitsfoot, and other freshwater suitable for thermally tolerant species. indirect effects on species. These effects mussels in general, make them may be positive, neutral, or negative and Ficke et al. (2005, pp. 67–69; 2007, extremely susceptible to environmental they may change over time, depending pp. 603–605) described the general change. Unlike other aquatic organisms on the species and other relevant potential effects of climate change on (e.g., aquatic insects and fish), mussels considerations, such as the effects of freshwater fish populations worldwide. have limited refugia from stream interactions of climate with other Overall, the distribution of fish species disturbances (e.g., droughts, variables (e.g., habitat fragmentation) is expected to change, including range sedimentation, chemical contaminants). (IPCC 2007, pp. 8–14, 18–19). In our shifts and local extirpations. Because Mechanisms leading to the decline of analyses, we use our expert judgment to freshwater mussels are entirely Neosho mucket and rabbitsfoot, as weigh relevant information, including dependent upon a fish host for discussed above, range from local (e.g., uncertainty, in our consideration of successful reproduction and dispersal, riparian clearing, chemical various aspects of climate change. any changes in local fish populations contaminants, etc.) to regional Projected changes in climate and would also affect freshwater mussel influences (e.g., altered flow regimes, related effects can vary substantially populations. Therefore, mussel channelization, etc.), to global climate across and within different regions of populations will reflect local change. The synergistic (interaction of the world (e.g., IPCC 2007a, pp. 8–12). extirpations or decreases in abundance two or more components) effects of Thus, although global climate of fish species. threats are often complex in aquatic
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environments, making it difficult to them more susceptible to extirpation Neosho Mucket predict changes in mussel and fish from single catastrophic events, such as The Neosho mucket has been host(s) distribution, abundance, and toxic chemical spills (Watters and Dunn extirpated (no longer in existence) from habitat availability that may result from 1995, p. 257). Furthermore, this level of approximately 62 percent of its these effects. While these stressors may isolation makes natural recolonization historical range with only 9 of 16 act in isolation, it is more probable that of extirpated populations virtually historical populations remaining many stressors are acting impossible without human intervention. (extant). This mussel is declining simultaneously (or in combination) Various nonnative species of aquatic rangewide (eight of the nine extant (Galbraith et al. 2010, p. 1176) on organisms are firmly established in the populations), with only one remaining Neosho mucket and rabbitsfoot range of the Neosho mucket and large, viable population. Based on the populations. rabbitsfoot. The nonnative species that best available scientific and commercial Summary of Threats poses the most significant threat to the information, we have determined that The decline of the Neosho mucket Neosho mucket and rabbitsfoot is the the Neosho mucket is in danger of and rabbitsfoot (described by Butler zebra mussel. Although attempts to extinction throughout all of its range. 2005, entire; described by Service 2010, alleviate some of these threats are Therefore, we are listing it as an entire) is primarily the result of habitat ongoing at some locations, no endangered species. In other words, we loss and degradation (Neves 1991, p. populations appear to be without threats find that a threatened species status is 252). Chief among the causes of decline, that are negatively impacting the not appropriate for the Neosho mucket but in no particular ranking order, are species. due to its contracted range and only one impoundments, sedimentation, remaining stable and viable population. Determination channelization, chemical contaminants, Rabbitsfoot oil and natural gas development, and We have carefully assessed the best The rabbitsfoot has been extirpated mining (Neves 1991, p. 252; Neves 1993, scientific and commercial information pp. 4–6; Williams et al. 1993, pp. 7–9; from approximately 64 percent of its available regarding the past, present, historical range. While this species is Neves et al. 1997, pp. 60 and 63–75; and future threats to the Neosho mucket Watters 2000, pp. 262–267). These declining rangewide, it sustains and the rabbitsfoot. Section 3(6) of the recruitment and population viability stressors have had profound adverse Act defines an endangered species as effects on Neosho mucket and consistently in 11 (8 percent of ‘‘any species that is in danger of rabbitsfoot populations, their habitats, historical or 22 percent of extant extinction throughout all or a significant and fish hosts. distribution) large, extant river Regulations at the Federal level may portion of its range’’ and defines a populations and, while reduced in not be providing the protection needed threatened species as ‘‘any species that numbers, it also sustains limited for the Neosho mucket and rabbitsfoot. is likely to become endangered recruitment and distribution in another For example, 8 of the 11 (73 percent) throughout all or a significant portion of 17 river populations. Of the 17 river viable rabbitsfoot populations are its range within the foreseeable future.’’ populations with limited recruitment located in waters listed as impaired As described in detail above, these two and distribution, 15 of these under section 303(d) of the CWA. In species are currently at risk throughout populations (88 percent) are declining. addition, numerous tributaries within all of their respective ranges due to the All remaining rabbitsfoot populations watersheds with viable Neosho mucket immediacy, severity, and scope of continue to be reduced in size or quality and rabbitsfoot populations also are threats from habitat destruction and by habitat degradation as a result of listed as impaired waters under section modification (Factor A) and other impoundments and dams, navigation 303(d) of the CWA. The CWA has a natural or manmade factors affecting projects, commercial and residential stated goal to establish water quality their continued existence (Factor E). development, agriculture, chemical standards that protect aquatic species, Existing regulatory mechanisms contaminants, mining, and oil and including mussel species. However, the applicable to these species, such as the natural gas development (Factor A). CWA has generally been insufficient at CWA, appear to be inadequate to reduce Climate change could affect in-stream protecting mussels, and adequate water these threats from water quality water temperatures, seasonal water quality criteria that are protective of all degradation, in particular, chemical flows, and mussel and fish host mussel life stages, particularly glochidia contaminants (Factor D). Although there reproductive activities, including the and juveniles, may not be established. are ongoing actions to alleviate some availability of mussel fish host species Little information is known about threats, no populations appear to be (Factor E). Invasive species occupying specific sensitivities of mussels to without current threats. These isolated rabbitsfoot habitat will likely cause various pollutants, but both species species have a limited ability to additional displacement and continue to decline due to the effects of recolonize historically occupied stream recruitment interference (Factor E). Eight of the 11 (73 percent) viable poor water quality, contaminants, and and river reaches and are vulnerable to rabbitsfoot populations are in other factors. natural or human-caused changes in The majority of extant Neosho mucket watersheds that have numerous their stream and river habitats. populations are small and isolated, with tributaries that are listed as impaired only one viable population remaining. Their range curtailment, small waters under section 303(d) of the CWA. The majority of extant rabbitsfoot population size, and isolation make the Regulatory mechanisms such as the populations are marginal and small (78 Neosho mucket and rabbitsfoot more CWA have been insufficient to percent) and isolated (80 percent), with vulnerable to threats such as significantly reduce or remove these only two small (5 percent) and 4 viable sedimentation, disturbance of riparian types of threats to rabbitsfoot (Factor D). populations (36 percent) not isolated corridors, changes in channel The synergistic effects of threats such as from another viable population (Butler morphology, point- and nonpoint- these are often complex in aquatic 2005, p. 22; Service 2010, pp. 3–8). The source contaminants, urbanization, and environments and make it difficult to patchy distributional pattern of invasive species and to stochastic events predict changes in mussel and fish populations in short river reaches makes (such as chemical spills). host(s) distribution, abundance, and
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habitat availability. These threats are February 5, 2008). The Service had Critical Habitat probably acting simultaneously on the asserted in both of these determinations In the October 16, 2012, proposed rule remaining rabbitsfoot populations with that it had authority, in effect, to protect to list the species (77 FR 63440), we also negative results and are expected to only some members of a ‘‘species,’’ as determined that designation of critical continue to do so. Thus, while defined by the Act (i.e., species, habitat was prudent, and critical habitat rabbitsfoot sustains 11 viable subspecies, or DPS), under the Act. Both was determinable, for both the Neosho populations, these populations continue courts ruled that the determinations mucket and rabbitfoot, and we proposed to be at risk, and the remaining extant were arbitrary and capricious on the critical habitat for both species. We will populations are affected by isolation, grounds that this approach violated the issue a final determination on critical fragmentation, limited recruitment and plain and unambiguous language of the habitat for Neosho mucket and distribution, and population declines, Act. The courts concluded that reading rabbitsfoot under the Act in the near which make the species particularly the SPR language to allow protecting future. susceptible to extinction in the near only a portion of a species’ range is future if threats continue or increase. inconsistent with the Act’s definition of Available Conservation Measures While we have determined that the ‘‘species.’’ The courts concluded that Conservation measures provided to rabbitsfoot is not currently in danger of once a determination is made that a species listed as endangered or extinction, because of the threats facing species (i.e., species, subspecies, or threatened species under the Act the species and impacts to its life DPS) meets the definition of include recognition, recovery actions, history, we find that the species is likely ‘‘endangered species’’ or ‘‘threatened requirements for Federal protection, and to become endangered in the foreseeable species,’’ it must be placed on the list prohibitions against certain practices. future throughout all of its range. in its entirety and the Act’s protections Recognition through listing results in Therefore, we are listing it as a applied consistently to all members of public awareness and conservation by threatened species. In other words, we that species (subject to modification of Federal, State, Tribal, and local find that endangered status is not protections through special rules under agencies, private organizations, and appropriate for the rabbitsfoot because 8 sections 4(d) and 10(j) of the Act). individuals. The Act encourages percent of the historical populations or We evaluated the current range of the cooperation with the States and requires 22 percent of extant populations Neosho mucket and rabbitsfoot to remaining in its historical streams can that recovery actions be carried out for determine if there is any apparent all listed species. The protection be considered viable, but are facing geographic concentration of potential subtle, pervasive threats that are required by Federal agencies and the threats for either species. The Neosho ubiquitous in each watershed. prohibitions against certain activities mucket and rabbitsfoot are highly are discussed, in part, below. Significant Portion of the Range restricted in their ranges, and the threats The primary purpose of the Act is the Under the Act and our implementing occur throughout their ranges. We conservation of endangered and regulations, a species may warrant considered the potential threats due to threatened species and the ecosystems listing if it is endangered or threatened impoundments, sedimentation, upon which they depend. The ultimate throughout all or a significant portion of channelization, chemical contaminants, goal of such conservation efforts is the its range. The Act defines ‘‘endangered oil and gas development, mining, and recovery of these listed species, so that species’’ as any species which is ‘‘in climate change. We found no they no longer need the protective danger of extinction throughout all or a concentration of threats because of the measures of the Act. Subsection 4(f) of significant portion of its range,’’ and species’ limited and curtailed ranges, the Act requires the Service to develop ‘‘threatened species’’ as any species and uniformity of the threats throughout and implement recovery plans for the which is ‘‘likely to become an their entire range. Having determined conservation of endangered and endangered species within the that the Neosho mucket is endangered threatened species. The recovery foreseeable future throughout all or a throughout its entire range, it is not planning process involves the significant portion of its range.’’ The necessary to evaluate whether there are identification of actions that are definition of ‘‘species’’ is also relevant any significant portions of its range. necessary to halt or reverse the species’ to this discussion. The Act defines Having determined that the rabbitsfoot decline by addressing the threats to its ‘‘species’’ as follows: ‘‘The term is threatened throughout its entire survival and recovery. The goal of this ‘species’ includes any subspecies of fish range, we must next consider whether process is to restore listed species to a or wildlife or plants, and any distinct there are any significant portions of the point where they are secure, self- population segment (DPS) of any range where the rabbitsfoot is in danger sustaining, and functioning components species of vertebrate fish or wildlife of extinction or is likely to become of their ecosystems. which interbreeds when mature.’’ endangered in the foreseeable future. Recovery planning includes the Two recent district court decisions We found no portion of the development of a recovery outline have addressed whether the SPR rabbitsfoot’s range where potential shortly after a species is listed and language allows the Service to list or threats are significantly concentrated or preparation of a draft and final recovery protect less than all members of a substantially greater than in other plan. The recovery outline guides the defined ‘‘species’’: Defenders of Wildlife portions of its range. Therefore, we find immediate implementation of urgent v. Salazar, 729 F. Supp. 2d 1207 (D. that factors affecting the species are recovery actions and describes the Mont. 2010), concerning the Service’s essentially uniform throughout its process to be used to develop a recovery delisting of the Northern Rocky range, indicating no portion of the range plan. Revisions of the plan may be done Mountains gray wolf (74 FR 15123, of the species warrants further to address continuing or new threats to April 2, 2009); and WildEarth consideration of possible endangered or the species, as new substantive Guardians v. Salazar, 2010 U.S. Dist. threatened status under the Act. information becomes available. The LEXIS 105253 (D. Ariz. September 30, Therefore, we find there is no recovery plan identifies site-specific 2010), concerning the Service’s 2008 significant portion of the rabbitsfoot management actions that set a trigger for finding on a petition to list the range that may warrant a different review of the five factors that control Gunnison’s prairie dog (73 FR 6660, status. whether a species remains endangered
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or may be downlisted or delisted, and species proposed for listing or result in permits are codified at 50 CFR 17.22 for methods for monitoring recovery destruction or adverse modification of endangered species, and at 17.32 for progress. Recovery plans also establish proposed critical habitat. If a species is threatened species. With regard to a framework for agencies to coordinate listed subsequently, section 7(a)(2) of endangered wildlife, a permit must be their recovery efforts and provide the Act requires Federal agencies to issued for the following purposes: For estimates of the cost of implementing ensure that activities they authorize, scientific purposes, to enhance the recovery tasks. Recovery teams fund, or carry out are not likely to propagation or survival of the species, (comprising species experts, Federal jeopardize the continued existence of and for incidental take in connection and State agencies, nongovernmental the species or destroy or adversely with otherwise lawful activities. organizations, and stakeholders) are modify its critical habitat. If a Federal Our policy, as published in the often established to develop recovery action may affect a listed species or its Federal Register on July 1, 1994 (59 FR plans. When completed, the recovery critical habitat, the responsible Federal 34272), is to identify, to the maximum outline, draft recovery plan, and the agency must enter into formal extent practicable at the time a species final recovery plan will be available on consultation with the Service. is listed, those activities that would or our Web site (http://www.fws.gov/ Federal agency actions within these would not constitute a violation of endangered), or from our Arkansas species’ habitat that may require section 9 of the Act. The intent of this Ecological Services Field Office (see FOR conference or consultation or both as policy is to increase public awareness of FURTHER INFORMATION CONTACT). described in the preceding paragraph the effect of a proposed listing on Implementation of recovery actions include, but are not limited to, the planned and ongoing activities within generally requires the participation of a funding of, carrying out, or the issuance the range of species proposed for listing. broad range of partners, including other of permits for reservoir construction, The following activities could Federal agencies, States, Tribes, navigation, natural gas extraction, potentially result in a violation of nongovernmental organizations, stream alterations, discharges, section 9 of the Act for the Neosho businesses, and private landowners. wastewater facility development, water mucket and rabbitsfoot; this list is not Examples of recovery actions include withdrawal projects, pesticide comprehensive: habitat restoration (e.g., restoration of registration, mining, and road and (1) Collecting, handling, possessing, native vegetation), research, captive bridge construction. This may include, selling, delivering, carrying, or propagation and reintroduction, and but is not limited to, management and transporting of the species, including outreach and education. The recovery of any other landscape-altering activities import or export across State lines and many listed species cannot be on Federal lands administered by the international boundaries that are accomplished solely on Federal lands Department of Defense, and U.S. unauthorized, except for properly because their range may occur primarily Department of Agriculture Forest documented antique specimens of these or solely on non-Federal lands. To Service; issuance of CWA permits by the taxa at least 100 years old, as defined by achieve recovery of these species Army Corps of Engineers and EPA; section 10(h)(1) of the Act; requires cooperative conservation efforts construction and maintenance of (2) Introduction of nonnative species on private, State, and Tribal lands. interstate power and natural gas that compete with or prey upon the Once these species are listed, funding transmission line right-of-ways by the Neosho mucket and rabbitsfoot, such as for recovery actions will be available Federal Energy Regulatory Commission; the introduction of a predator of from a variety of sources, including and construction and maintenance of mussels like the nonnative black carp, Federal budgets, State programs, and roads or highways by the FHWA. cost-share grants for non-Federal The Act and its implementing to any water body where these species landowners, the academic community, regulations set forth a series of general occur; and nongovernmental organizations. In prohibitions and exceptions that apply (3) The release of biological control addition, pursuant to section 6 of the to all endangered and threatened agents that attack any life stage of Act, the States of Alabama, Arkansas, wildlife. The prohibitions of section Neosho mucket and rabbitsfoot that is Indiana, Illinois, Kansas, Kentucky, 9(a)(1) of the Act, codified at 50 CFR unauthorized; Louisiana, Mississippi, Missouri, Ohio, 17.21 and 17.31 for endangered and (4) Modification of the channel or Oklahoma, Pennsylvania, Tennessee, threatened wildlife make it illegal for water flow of any stream in which the and West Virginia would be eligible for any person subject to the jurisdiction of Neosho mucket and rabbitsfoot are Federal funds to implement the United States to take (includes known to occur that is unauthorized or management actions that promote the harass, harm, pursue, hunt, shoot, not covered under the Act for impacts protection or recovery of the Neosho wound, kill, trap, capture, or collect; or to these species; and mucket and rabbitsfoot. Information on to attempt any of these), import, export, (5) Discharge of chemicals or fill our grant programs that are available to ship in interstate commerce in the material into any waters supporting the aid species recovery can be found at: course of commercial activity, or sell or Neosho mucket and rabbitsfoot that are http://www.fws.gov/grants. offer for sale in interstate or foreign unauthorized or not covered under the Section 7(a) of the Act requires commerce any listed species. Under the Act for impacts to these species. Federal agencies to evaluate their Lacey Act (18 U.S.C. 42–43; 16 U.S.C. Questions regarding whether specific actions with respect to any species that 3371–3378), it is also illegal to possess, activities would constitute a violation of is proposed or listed as endangered or sell, deliver, carry, transport, or ship section 9 of the Act should be directed threatened and with respect to its any such wildlife that has been taken to the Service’s Ecological Services critical habitat, if any is designated. illegally. Certain exceptions apply to Field Office in the State where the Regulations implementing this agents of the Service and State proposed activities will occur. Requests interagency cooperation provision of the conservation agencies. for copies of the regulations concerning Act are codified at 50 CFR part 402. We may issue permits to carry out listed animals and general inquiries Section 7(a)(4) of the Act requires otherwise prohibited activities regarding prohibitions and permits may Federal agencies to confer with the involving endangered and threatened be addressed to the U.S. Fish and Service on any action that is likely to wildlife species under certain Wildlife Service, Endangered Species jeopardize the continued existence of a circumstances. Regulations governing Permits, 1875 Century Boulevard, Suite
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200, Atlanta, GA 30345; telephone: 404– connection with listing a species as an at http://www.regulations.gov and upon 679–7140; facsimile: 404–679–7081. endangered or threatened species under request from the Field Supervisor, Under section 4(d) of the Act, the the Endangered Species Act. We Arkansas Ecological Services Field Secretary has discretion to issue such published a notice outlining our reasons Office (see FOR FURTHER INFORMATION regulations as she deems necessary and for this determination in the Federal CONTACT). advisable to provide for the Register on October 25, 1983 (48 FR conservation of threatened species. Our 49244). Authors implementing regulations (50 CFR Government-to-Government The primary authors of this document 17.31) for threatened wildlife generally Relationship With Tribes are the staff members of the Arkansas incorporate the prohibitions of section 9 Ecological Service Field Office (see of the Act for endangered wildlife, In accordance with the President’s FOR ). except when a ‘‘special rule’’ memorandum of April 29, 1994 FURTHER INFORMATION CONTACT promulgated pursuant to section 4(d) of (Government-to-Government Relations List of Subjects in 50 CFR Part 17 the Act has been issued with respect to with Native American Tribal a particular threatened species. In such Governments; 59 FR 22951), Executive Endangered and threatened species, a case, the general prohibitions in 50 Order 13175 (Consultation and Exports, Imports, Reporting and CFR 17.31 would not apply to that Coordination With Indian Tribal recordkeeping requirements, species, and instead, the special rule Governments), and the Department of Transportation. would define the specific take the Interior’s manual at 512 DM 2, we Regulation Promulgation prohibitions and exceptions that would readily acknowledge our responsibility to communicate meaningfully with apply for that particular threatened Accordingly, we amend part 17, recognized Federal Tribes on a species, which we consider necessary subchapter B of chapter I, title 50 of the government-to-government basis. In and advisable to conserve the species. Code of Federal Regulations, as follows: The Secretary also has the discretion to accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal prohibit by regulation with respect to a PART 17—[AMENDED] threatened species any act prohibited by Rights, Federal-Tribal Trust section 9(a)(1) of the Act. We are not Responsibilities, and the Endangered ■ Species Act), we readily acknowledge 1. The authority citation for part 17 proposing to promulgate a special continues to read as follows: section 4(d) rule, and as a result, all of our responsibilities to work directly the section 9 prohibitions, including the with tribes in developing programs for Authority: 16 U.S.C. 1361–1407; 1531– ‘‘take’’ prohibitions, will apply to the healthy ecosystems, to acknowledge that 1544; 4201–4245; unless otherwise noted. tribal lands are not subject to the same rabbitsfoot. ■ 2. Amend § 17.11(h) by adding new controls as Federal public lands, to entries for ‘‘Mucket, Neosho’’ and Required Determinations remain sensitive to Indian culture, and to make information available to tribes. ‘‘Rabbitsfoot’’ to the List of Endangered National Environmental Policy Act (42 and Threatened Wildlife in alphabetical U.S.C. 4321 et seq.) We determined that tribal lands or their interests will not be affected by the order under Clams to read as set forth We have determined that listing of the Neosho mucket and below: environmental assessments and rabbitsfoot. environmental impact statements, as § 17.11 Endangered and threatened wildlife. defined under the authority of the References Cited National Environmental Policy Act A complete list of all references cited * * * * * (NEPA), need not be prepared in in this rule is available on the Internet (h) * * *
Species Vertebrate population where Critical Special Historic range endangered or Status When listed habitat rules Common name Scientific name threatened
******* CLAMS
******* Mucket, Neosho ...... Lampsilis U.S.A. (AR, KS, Entire ...... E 816 NA NA rafinesqueana. MO, OK).
******* Rabbitsfoot ...... Quadrula cylindrica U.S.A. (AL, AR, GA, Entire ...... T 816 NA NA cylindrica. IN, IL, KS, KY, LA, MO, MS, OH, OK, PA, TN, WV).
*******
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Dated: August 26, 2013. pollock TAC in Statistical Area 620 is DEPARTMENT OF COMMERCE Rowan W. Gould, 7,766 mt (7,600 mt plus 166 mt). Acting Director, U.S. Fish and Wildlife In accordance with § 679.20(d)(1)(i), National Oceanic and Atmospheric Service. the Regional Administrator has Administration [FR Doc. 2013–22245 Filed 9–16–13; 8:45 am] determined that the C season allowance BILLING CODE 4310–55–P of the 2013 TAC of pollock in Statistical 50 CFR Part 679 Area 620 of the GOA has been reached. [Docket No. 121018563–3418–02] Therefore, the Regional Administrator is RIN 0648–XC872 DEPARTMENT OF COMMERCE establishing a directed fishing allowance of 7,566 mt and is setting National Oceanic and Atmospheric Fisheries of the Exclusive Economic aside the remaining 200 mt as bycatch Administration Zone Off Alaska; Sharks in the Bering to support other anticipated groundfish Sea and Aleutian Islands Management fisheries. In accordance with 50 CFR Part 679 Area § 679.20(d)(1)(iii), the Regional [Docket No. 120918468–3111–02] Administrator finds that this directed AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and RIN 0648–XC873 fishing allowance has been reached. Consequently, NMFS is prohibiting Atmospheric Administration (NOAA), Fisheries of the Exclusive Economic directed fishing for pollock in Statistical Commerce. Zone Off Alaska; Pollock in Statistical Area 620 of the GOA. ACTION: Temporary rule; closure. Area 620 in the Gulf of Alaska After the effective date of this closure SUMMARY: NMFS is prohibiting retention AGENCY: National Marine Fisheries the maximum retainable amounts at of sharks in the Bering Sea and Aleutian Service (NMFS), National Oceanic and § 679.20(e) and (f) apply at any time Islands management area (BSAI). This Atmospheric Administration (NOAA), during a trip. action is necessary because the 2013 Commerce. total allowable catch (TAC) of sharks in Classification ACTION: Temporary rule; closure. the BSAI has been reached. This action responds to the best DATES: Effective 1200 hrs, Alaska local SUMMARY: NMFS is prohibiting directed available information recently obtained time (A.l.t.), September 12, 2013, fishing for pollock in Statistical Area from the fishery. The Acting Assistant through 2400 hrs, A.l.t., December 31, 620 in the Gulf of Alaska (GOA). This Administrator for Fisheries, NOAA 2013. action is necessary to prevent exceeding (AA), finds good cause to waive the the C season allowance of the 2013 total FOR FURTHER INFORMATION CONTACT: Josh requirement to provide prior notice and allowable catch of pollock for Statistical Keaton, 907–586–7269. opportunity for public comment Area 620 in the GOA. SUPPLEMENTARY INFORMATION: NMFS pursuant to the authority set forth at 5 manages the groundfish fishery in the DATES: Effective 1200 hours, Alaska U.S.C. 553(b)(B) and as such local time (A.l.t.), September 13, 2013, GOA exclusive economic zone requirement is impracticable and according to the Fishery Management through 1200 hours, A.l.t., October 1, contrary to the public interest. This 2013. Plan for Groundfish of the Gulf of requirement is impracticable and Alaska (FMP) prepared by the North FOR FURTHER INFORMATION CONTACT: Josh contrary to the public interest as it Pacific Fishery Management Council Keaton, 907–586–7228. would prevent NMFS from responding under authority of the Magnuson- SUPPLEMENTARY INFORMATION: NMFS to the most recent fisheries data in a Stevens Fishery Conservation and manages the groundfish fishery in the timely fashion and would delay the Management Act. Regulations governing GOA exclusive economic zone closure of directed fishing for pollock in fishing by U.S. vessels in accordance according to the Fishery Management Statistical Area 620 of the GOA. NMFS with the FMP appear at subpart H of 50 Plan for Groundfish of the Gulf of was unable to publish a notice CFR part 600 and 50 CFR part 679. Alaska (FMP) prepared by the North providing time for public comment The 2013 TAC sharks in the BSAI is Pacific Fishery Management Council because the most recent, relevant data 100 metric tons (mt) as established by under authority of the Magnuson- only became available as of September the final 2013 and 2014 final harvest Stevens Fishery Conservation and 10, 2013. specifications for groundfish of the GOA Management Act. Regulations governing The AA also finds good cause to (78 FR 13813, March 1, 2013). fishing by U.S. vessels in accordance waive the 30-day delay in the effective In accordance with § 679.20(d)(2), the with the FMP appear at subpart H of 50 date of this action under 5 U.S.C. Administrator, Alaska Region, NMFS CFR part 600 and 50 CFR part 679. 553(d)(3). This finding is based upon (Regional Administrator), has The C season allowance of the 2013 the reasons provided above for waiver of determined that the 2013 TAC of sharks total allowable catch (TAC) of pollock in prior notice and opportunity for public in the BSAI has been reached. Statistical Area 620 of the GOA is 7,600 comment. Therefore, NMFS is requiring that metric tons (mt) as established by the sharks caught in the BSAI be treated as This action is required by § 679.20 final 2013 and 2014 harvest prohibited species in accordance with and is exempt from review under specifications for groundfish of the GOA § 679.21(b). (78 FR 13162, February 26, 2013). In Executive Order 12866. accordance with § 679.20(a)(5)(iv)(B), Authority: 16 U.S.C. 1801 et seq. Classification the Administrator, Alaska Region, This action responds to the best Dated: September 11, 2013. NMFS (Regional Administrator), hereby available information recently obtained increases the C season pollock James P. Burgess, from the fishery. The Assistant allowance by 166 mt to reflect the total Acting Deputy Director, Office of Sustainable Administrator for Fisheries, NOAA underharvest of the B season allowance Fisheries, National Marine Fisheries Service. (AA), finds good cause to waive the in Statistical Area 620. Therefore, the [FR Doc. 2013–22588 Filed 9–12–13; 4:15 pm] requirement to provide prior notice and revised C season allowance of the BILLING CODE 3510–22–P opportunity for public comment
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Part III
Department of the Interior
Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Neosho Mucket and Rabbitsfoot; Final Rule
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DEPARTMENT OF THE INTERIOR arkansas-es/, at http:// Fish and Wildlife Service, Mississippi www.regulations.gov at Docket No. Ecological Services Field Office, 6578 Fish and Wildlife Service FWS–R4–ES–2013–0007, and at the Dogwood View Parkway, Suite A, Arkansas Ecological Services Field Jackson, MS 39123; telephone 601–965– 50 CFR Part 17 Office (see FOR FURTHER INFORMATION 4900; facsimile 601–965–4340. ). Any additional tools or For information about the final [Docket No. FWS–R4–ES–2013–0007; CONTACT 4500030114] supporting information we developed designation in Missouri, contact Amy for this critical habitat designation will Salveter, Field Supervisor, U.S. Fish RIN 1018–AZ30 also be available at the U.S. Fish and and Wildlife Service, Columbia Wildlife Service Web site and Field Ecological Services Field Office, 101 Endangered and Threatened Wildlife Office outlined above, and also may be Park DeVille Drive, Suite A, Columbia, and Plants; Designation of Critical included in the preamble, at http:// MO 65203–0057; telephone 573–234– Habitat for Neosho Mucket and www.regulations.gov, or both. 2132; facsimile 573–234–2181. Rabbitsfoot FOR FURTHER INFORMATION CONTACT: For For information about the final AGENCY: Fish and Wildlife Service, general information about this rule, and designation in Ohio, contact Dan Interior. information about the final designation Everson, Field Supervisor, U.S. Fish and ACTION: Final rule. in Arkansas, contact Melvin Tobin, Wildlife Service, 4625 Morse Road, Acting Field Supervisor, U.S. Fish and Suite 104, Columbus, OH 43230; SUMMARY: We, the U.S. Fish and Wildlife Service, Arkansas Ecological telephone 614–416–8993; facsimile Wildlife Service (Service), designate Services Field Office, 110 South Amity 614–416–8994. critical habitat for two species of Road, Suite 300, Conway, AR 72032; For information about the final mussels, the Neosho mucket (Lampsilis telephone 501–513–4470; facsimile designation in Oklahoma, contact Jontie rafinesqueana) and rabbitsfoot 501–513–4480. If you use a Aldrich, Acting Field Supervisor, U.S. (Quadrula cylindrica cylindrica), under telecommunications device for the deaf Fish and Wildlife Service, Oklahoma the Endangered Species Act of 1973, as (TDD), call the Federal Information Ecological Services Field Office, 9014 amended (Act). In total, approximately Relay Service (FIRS) at 800–877–8339. East 21st Street, Tulsa, OK 74129–1428; 777 river kilometers (483 river miles) in For information about the final telephone 918–382–4500; facsimile Arkansas, Kansas, Missouri, and designation in Alabama, contact Bill 918–581–7467. Oklahoma fall with the boundaries of Pearson, Field Supervisor, U.S. Fish and For information about the final the critical habitat designation for the Wildlife Service, Alabama Ecological designation in Pennsylvania, contact Neosho mucket and approximately Services Field Office, 1208 Main Street, Lora Zimmerman, Field Supervisor, 2,312 river kilometers (1,437 river Daphne, AL 36526; telephone 251–441– U.S. Fish and Wildlife Service, miles) in Alabama, Arkansas, Illinois, 5181; facsimile 251–441–6222. Pennsylvania Ecological Services Field Indiana, Kansas, Kentucky, Mississippi, For information about the final Office, 315 South Allen Street, Suite Missouri, Ohio, Oklahoma, designation in Illinois, contact Richard 322, State College, PA 16801; telephone Pennsylvania, and Tennessee, fall C. Nelson, Field Supervisor, U.S. Fish 814–234–4090; facsimile 814–234–0748. within the boundaries of the critical and Wildlife Service, Rock Island For information about the final habitat designation for the rabbitsfoot. Ecological Services Field Office, 1511 designation in Tennessee, contact Mary The effect of this rule is to extend the 47th Avenue, Moline, IL 61265; Jennings, Field Supervisor, U.S. Fish Act’s protections to these mussels’ telephone 309–757–5800; facsimile and Wildlife Service, Tennessee critical habitats. 309–757–5807. Ecological Services Field Office, 446 DATES: This rule is effective on June 1, For information about the final Neal Street, Cookeville, TN 38501; 2015. designation in Indiana, contact Scott telephone 931–528–6481; facsimile ADDRESSES: This final rule is available Pruitt, Field Supervisor, U.S. Fish and 931–528–7075. on the Internet at http:// Wildlife Service, Bloomington SUPPLEMENTARY INFORMATION: www.regulations.gov and the Arkansas Ecological Services Field Office, 602 Executive Summary Ecological Services Field Office’s Web South Walker Street, Bloomington, IN site at http://www.fws.gov/arkansas-es/. 47403–2121; telephone 812–334–4261; Why we need to publish a rule. Under Comments and materials received, as facsimile 812–334–4273. the Endangered Species Act of 1973, as well as some supporting documentation For information about the final amended (Act), when we determine that we used in preparing this rule, are designation in Kansas, contact Heather a species is an endangered or threatened available for public inspection at http:// Whitlaw, Field Supervisor, U.S. Fish species, we are required to designate www.regulations.gov. All of the and Wildlife Service, Kansas Ecological critical habitat, to the maximum extent comments, materials, and Services Field Office, 2609 Anderson prudent and determinable. Designations documentation we considered in this Avenue, Manhattan, KS 66502; of critical habitat can only be completed rulemaking are available by telephone 785–539–3474; facsimile by issuing a rule. appointment, during normal business 785–839–8567. On October 16, 2012, we published in hours, at: U.S. Fish and Wildlife For information about the final the Federal Register a proposed rule to Service, Arkansas Ecological Service designation in Kentucky, contact Lee list the Neosho mucket and rabbitsfoot Field Office, 110 South Amity Road, Andrews, Field Supervisor, U.S. Fish and designate critical habitat (77 FR Suite 300, Conway, AR 72032; and Wildlife Service, Kentucky 63440). We issued the final rule listing telephone 501–513–4470; facsimile Ecological Services Field Office, 330 the Neosho mucket as endangered and 501–513–4480. West Broadway, Suite 265, Frankfort, the rabbitsfoot as threatened on The coordinates, plot points, or both KY 40601; telephone 502–695–0468; September 17, 2013 (78 FR 57076). from which the maps are generated are facsimile 502–695–1024. The critical habitat units we are included in the administrative record For information about the final designating in this rule constitute our for this critical habitat designation and designation in Mississippi, contact current best assessment of the areas that are available at http://www.fws.gov/ Stephen Ricks, Field Supervisor, U.S. meet the definition of critical habitat for
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Neosho mucket and rabbitsfoot. We are for the designation of critical habitat. In endangered species and rabbitsfoot as a designating: accordance with Section 4(b)(2) of the threatened species under the Act was • For the Neosho mucket, in total, Act, we prepared an analysis of the published in the Federal Register on approximately 777 river kilometers economic impacts of the critical habitat September 17, 2013 (78 FR 57076). (rkm) (483 river miles (rmi)) in 7 units designations and related factors. We in the Elk, Fall, Illinois, Neosho, Shoal, announced the availability of the draft Summary of Comments and Spring, North Fork Spring, and economic analysis (DEA) and draft Recommendations Verdigris Rivers as critical habitat in environmental assessment in the We requested written comments from Benton and Washington Counties, Federal Register on May 9, 2013 (78 FR the public on the proposed designation Arkansas; Allen, Cherokee, Coffey, Elk, 27171), allowing the public to provide of critical habitat for the Neosho mucket Greenwood, Labette, Montgomery, comments on these documents. In and rabbitsfoot during four comment Neosho, Wilson, and Woodson response to requests we received, we periods. The first comment period Counties, Kansas; Jasper, Lawrence, reopened the comment period for the opened with the publication of the McDonald, and Newton Counties, proposed critical habitat rule, DEA, and proposed rule on October 16, 2012, and Missouri; and Adair, Cherokee, and draft environmental assessment from Delaware Counties, Oklahoma. August 27, 2013, to October 28, 2013 (78 closed on December 17, 2012 (77 FR • For the rabbitsfoot, in total, FR 52894), and again from May 14, 63440). Second, we requested comments approximately 2,312 rkm (1,437 rmi) in 2014, to July 14, 2014 (79 FR 27547). We on the proposed critical habitat 31 units (3 with 2 subunits each) in the have incorporated the comments and designation and associated DEA and Neosho, Spring (Arkansas River system), completed the final economic analysis draft environmental assessment during a Verdigris, Black, Buffalo, Little, (FEA) and associated summary comment period that opened May 9, Ouachita, Saline, Middle Fork Little memorandum describing our revised 2013, and closed on June 10, 2013 (78 Red, Spring (White River system), South forecast calculations concurrently with FR 27171). Third, we re-opened the Fork Spring, Strawberry, White, St. this final determination. comment period for another 60 days Francis, Big Sunflower, Big Black, Paint Additionally, we have prepared an from August 27, 2013, through October Rock, Duck, Tennessee, Red, Ohio, environmental assessment pursuant to 28, 2013 (78 FR 52894). Based on Allegheny, Green, Tippecanoe, the National Environmental Policy Act continued significant interest in Walhonding, Middle Branch North Fork (NEPA). Based on the review and Arkansas regarding the proposed rule, Vermilion, and North Fork Vermilion evaluation of the information contained we announced an additional reopening Rivers and Bear, French, Muddy, Little in the environmental assessment, we of the comment period for 60 days from Darby, and Fish Creeks as critical determined that the designation of May 14, 2014, through July 14, 2014 (79 habitat in Colbert, Jackson, Madison, critical habitat for the Neosho mucket FR 27547). We held public information and Marshall Counties, Alabama; and rabbitsfoot does not constitute a meetings in Joplin, Missouri, on May 21, Arkansas, Ashley, Bradley, Clark, major Federal action having a 2013; Greenville, Missouri, on May 23, Cleburne, Cleveland, Drew, Fulton, Hot significant impact on the human 2013; Batesville, Arkansas, on June 4, Spring, Independence, Izard, Jackson, environment under the meaning of 2014; and Benton, Arkansas, on June 5, Lawrence, Little River, Marion, Monroe, section 102(2)(c) of NEPA. 2014. The dates, times, and locations of Newton, Ouachita, Randolph, Searcy, Peer review and public comment. We these meetings were coordinated with Sevier, Sharp, Van Buren, White, and sought comments from three interested stakeholders and noticed in Woodruff Counties, Arkansas; Massac, independent specialists to ensure our newspapers and other media outlets. We Pulaski, and Vermilion Counties, designation is based on scientifically also contacted appropriate Federal, Illinois; Carroll, Pulaski, Tippecanoe, sound data and analyses. We obtained State, and local agencies; tribes; and White Counties, Indiana; Allen and opinions from one knowledgeable scientific organizations; and other Cherokee Counties, Kansas; Ballard, individual with scientific expertise to interested parties and invited them to Edmonson, Green, Hart, Livingston, review our technical assumptions and comment on the proposed rule, DEA, Logan, Marshall, McCracken, and Taylor analysis, and to determine whether or and draft environmental assessment. In Counties, Kentucky; Hinds, Sunflower, not we had used the best available addition, we published a total of 27 Tishomingo, and Warren Counties, information. The peer reviewer legal public notices in the affected Mississippi; Jasper, Madison, and generally concurred with our methods States at the beginning of the comment Wayne Counties, Missouri; Coshocton, and conclusions and provided period for the proposed rule published Madison, Union, and Williams additional information, clarifications, on October 16, 2012. Counties, Ohio; McCurtain and Rogers and suggestions to improve this final Counties, Oklahoma; Crawford, Erie, rule. Information we received from peer During the first comment period, we Mercer, and Venango Counties, review is incorporated in this final received 10 comment letters directly Pennsylvania; and Hardin, Hickman, designation. We also considered all addressing the proposed listing and Humphreys, Marshall, Maury, comments and information we received critical habitat designation. During the Montgomery, Perry, and Robertson from the public during the comment second, third, and fourth comment Counties, Tennessee. period. periods, we received 11, 6, and 68 • Compared to the proposed rule, this comment letters, respectively, Previous Federal Actions rule results in a net decrease of addressing the proposed critical habitat approximately 3 rkm (2 rmi) for the Please refer to the proposed listing designation, DEA, or draft Neosho mucket and a net decrease of and critical habitat rule for the Neosho environmental assessment. All approximately 349 rkm (217 rmi) for the mucket and rabbitsfoot published in the substantive information provided rabbitsfoot. Federal Register on October 16, 2012 during the comment periods has either What this rule contains: This rule (77 FR 63440), for a detailed description been incorporated directly into this final designates critical habitat for the of previous Federal actions concerning determination or is addressed below. Neosho mucket and rabbitsfoot. these species and protection under the Comments are addressed in the We have prepared an economic Act (16 U.S.C. 1531 et seq.). The final following summary and incorporated analysis and environmental assessment rule listing the Neosho mucket as an into the final rule as appropriate.
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Peer Review particularly any differences in process discussion of the types of third parties In accordance with our peer review between consultation on impacts to the participating in consultations. listed species and consultation on the policy published on July 1, 1994 (59 FR Federal Agency Comments species’ designated critical habitat. They 34270), we solicited expert opinions (3) Comment: The U.S. Army Corps of from three knowledgeable individuals also expressed concern about impacts on non-Federal property owners and Engineers (ACOE) Pittsburgh District with scientific expertise on freshwater (COEPD) expressed concern that mussel conservation and biology, with other entities from the new restrictions resulting from the designation of critical designating critical habitat for the familiarity of Neosho mucket and rabbitsfoot may affect the COEPD’s rabbitsfoot, the geographic region and habitat. Our Response: Section 7(a)(2) of the navigation and maintenance dredging river basins in which they occur, and activities in the Alleghany River, its conservation biology principles Act, and its implementing regulations at 50 CFR part 402, subpart B, requires operation of Alleghany Reservoir, and associated with these species. We its regulatory program. ACOE stated that received responses from all of the peer Federal agencies to consult with the Service to ensure that they are not additional avoidance measures will be reviewers we contacted, but only one required to adequately protect habitat peer reviewer commented on the undertaking, funding, permitting, or authorizing actions likely to jeopardize for rabbitsfoot. proposed critical habitat designation. Our Response: The federally the continued existence of listed species We reviewed all comments we endangered clubshell (Pleurobema or destroy or adversely modify received from the peer reviewer for clava), northern riffleshell (Epioblasma designated critical habitat. Only projects substantive issues and new information torulosa rangiana), rayed bean (Villosa that have a Federal nexus (projects that regarding critical habitat for the Neosho fabalis), and snuffbox (Epioblasma are funded, authorized, or carried out by mucket and rabbitsfoot. The peer triquetra) mussels occur in the same Federal agencies) are subject to this reviewer generally concurred with our reach of the Allegheny River as requirement under section 7 methods and conclusions, and provided rabbitsfoot. Therefore, section 7 requires additional information, clarifications, consultation. In fulfilling these consultation by Federal agencies for and suggestions to improve the final consultation requirements, each Federal these listed species (see our response to critical habitat rule. The peer reviewer’s action agency and the Service must use Comment 2). Project modifications that comments on the designation of critical the best scientific and commercial data minimize effects to these species would habitat for these mussels are addressed available. also minimize effects to rabbitsfoot. in the following summary and In occupied critical habitat, Thus, we do not expect any incorporated into the final rule as consultation for potential impacts to the conservation measures or project appropriate. species and potential impacts to critical modifications and costs for rabbitsfoot habitat occur at the same time. The Peer Reviewer Comments critical habitat beyond those already health of both mussels is closely tied to required for these other endangered (1) Comment: The peer reviewer the health of their habitat. Therefore, the mussels. noted the proposed critical habitat Service does not expect to recommend (4) Comment: The COEPD asked how designation for rabbitsfoot references additional conservation efforts for tributary streams to the Allegheny River the oyster mussel (Epioblasma projects to avoid adverse modification will be affected by designation of capsaeformis) as a listed species with of critical habitat above and beyond critical habitat for rabbitsfoot. overlapping critical habitat in the Duck what would already be required to avoid Our Response: French Creek River unit. The reviewer noted the jeopardizing the continued existence of (proposed Unit RF23; Unit RF22 in this oyster mussel in this river has been the listed species. In addition, other rule) and Muddy Creek (proposed Unit renamed the Duck River dartersnapper federally listed mussels occur in the RF25; Unit 24 in this rule) are the only (Epioblasma ahlstedti) and is separate same reaches as certain areas of two tributaries of the Allegheny River and distinct from the oyster mussel. designated critical habitat for Neosho designated as critical habitat for Our Response: We agree with the mucket or rabbitsfoot; the conservation rabbitsfoot. The Service will work with reviewer and acknowledge the oyster efforts already required for these listed COEPD to determine whether any of the mussel and Duck River dartersnapper mussels through consultation will current, ongoing, or planned COEPD are distinct and separate species. provide the same conservation for projects may have an effect on other However, the Service has not yet made Neosho mucket or rabbitsfoot. tributaries within their district. As a listing and critical habitat As a result, we conclude that stated previously, the Service does not determination for the new entity, the additional (incremental) project expect to recommend any project Duck River dartersnapper. We modification costs are unlikely from this modifications in order to minimize incorporated language in this final designation of critical habitat. Any effects to rabbitsfoot beyond those determination to clarify the species incremental costs, as predicted in our already required for other listed mussels distinction and name change, but at this final economic analysis (FEA), are in the Allegheny River basin. time, the Duck River dartersnapper and primarily a result of the additional (5) Comment: The ACOE Huntington oyster mussel are considered requirement of considering impacts to District stated that the designation of synonymous according to our critical habitat during these section 7 critical habitat for rabbitsfoot in the regulations. Until such time as the consultations. These costs are borne by Walhonding River (proposed Unit RF27) regulations are revised, the critical the Service, the Federal action agency, is not consistent with the definition of habitat that overlaps rabbitsfoot critical and the third-party participants critical habitat (that lakes and habitat in the Duck River will be (generally the project proponents), impoundments are not included). They identified as that of the oyster mussel. including State and local governments stated that 40 percent of the and private parties. For a summary of Walhonding River upstream of Mohawk General Comments the parties involved in section 7 Dam in Ohio is impounded for flood (2) Comment: Multiple commenters consultations and their respective unit control. expressed concern about interagency costs, see Exhibit 2–1 of the FEA. Our Response: Mohawk Dam is a dry consultation under section 7 of the Act, Chapter 3 of the FEA provides a detailed dam, meaning during normal flows,
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water passes through the dam with the agency’s comments or geomorphology. Unoccupied areas unimpeded and there are no permanent petition.’’ The designation of critical exhibit limited habitat availability, pools of water (areas of inundation) habitat for Neosho mucket includes degraded habitat, or low potential value upstream resulting from the structure. streams in Arkansas, Kansas, Missouri, for management, and there are no During high flow events, the dam and Oklahoma, and for rabbitsfoot historical records of occurrence within temporarily reduces flows downstream includes streams in Alabama, Arkansas, the stream reach for rabbitsfoot (see also of the structure to maintain flows within Illinois, Indiana, Kansas, Kentucky, Criteria Used to Identify Critical the river banks. Hoggarth (1995–1996, Louisiana, Mississippi, Missouri, Ohio, Habitat). pp. 163–164) found a stable and diverse Oklahoma, Pennsylvania, and This does not mean, however, that mussel assemblage, including adult and Tennessee. We received comments from this reach will be without protection if juvenile rabbitsfoot, upstream of the States of Illinois, Kansas, the rabbitsfoot is later found to occupy Mohawk Dam. Because Mohawk Dam Pennsylvania, Ohio, and Oklahoma that reach. The protections of the Act does not inundate riverine habitat by regarding the proposal and address brought about by the species’ listing are forming a lake or reservoir and a diverse them below. in effect wherever the species is found. and abundant mussel assemblage (7) Comment: The Pennsylvania Fish In addition, the reach upstream of Porter inhabits upstream reaches behind the and Boat Commission (PFBC) supported Road will continue to be protected dam, we believe the habitat there the designation of critical habitat for through the conservation actions contains the primary constituent rabbitsfoot. PFBC recommended implemented for the other listed elements for rabbitsfoot critical habitat extending the critical habitat mussels (e.g., clubshell) that currently (see Primary Constituent Elements for designation for rabbitsfoot upstream occur in that area. Neosho Mucket and Rabbitsfoot, below). from Kidds Mill Road to Pymatuning (8) Comment: PFBC suggested that by Section 3.3.1 of the FEA has been Dam on the Shenango River. Western restricting critical habitat to occupied amended to add information about the Pennsylvania Conservancy (WPC) areas, the Service appears to be presence of the dam in the study area of submitted a public comment with the unintentionally inhibiting recovery of proposed Unit RF27; however, the same recommendation. PFBC provided rabbitsfoot, as habitat loss outside of Service does not expect to recommend a report by Bursey (1987) documenting critical habitat areas cannot be avoided additional conservation efforts for the the presence of rabbitsfoot at Porter under a section 7 jeopardy analysis. dam, above and beyond what would be Road, 8.5 rkm (5.3 rmi) upstream of Our Response: It is correct that required to protect against jeopardy of Kidds Mill Road. PFBC stated that section 7 consultation would not be the species, to protect against adverse without critical habitat designation in triggered for potential rabbitsfoot habitat modification of critical habitat. this location, any newly discovered that is not occupied by the species or (6) Comment: The ACOE Little Rock rabbitsfoot populations in this river designated as critical habitat (although District stated that the designation will reach would not be protected by the some areas may be occupied by other result in increased costs for energy Act. development and that the estimated cost Our Response: We appreciate PFBC’s listed species and/or critical habitat for of timing restrictions and limiting support and look forward to continuing other listed species that would trigger project scope are too low, as projects work with the PFBC and WPC to recover section 7 consultations on Federal may be delayed or denied due to rabbitsfoot. Considering the information actions). However, we disagree that permitting and modification issues. in Bursey (1987), we agree the extent of recovery of either species will be Our Response: The discussion of critical habitat designation in the inhibited because we are not potential baseline impacts in the FEA Shenango River should be extended 8.8 designating unoccupied habitat. We has been updated to reflect additional rkm (5.4 rmi) upstream to Porter Road. have found that unoccupied stream information provided by the ACOE This modification is reflected in this reaches are not essential for the regarding impacts to energy final determination. As described under conservation of either species for one or development associated with avoidance Criteria Used to Identify Critical more of the following reasons: and delays related to the presence of the Habitat, we reviewed available (a) Unoccupied habitats are isolated species. Exhibit 4–2 of the FEA information pertaining to the habitat from occupied habitats due to reservoir (‘‘Ranges of Costs of Common requirements of rabbitsfoot. In construction and dam operations; Conservation Efforts for Mussel accordance with the Act and its (b) Unoccupied areas exhibit limited Species’’) notes that the cost of implementing regulation at 50 CFR habitat availability, degraded habitat, or conservation efforts may be higher than 424.12(e), we considered whether low potential value for management; the estimates shown. A key conclusion designating additional areas—outside (c) Collection records for both species of the analysis is that the listing of the those currently occupied as well as indicate that these species have been species may lead to many conservation those occupied at the time of listing— extirpated from unoccupied areas for efforts (such as those presented in are necessary to ensure the conservation several decades or more, and, in some Exhibit 4–2) that would not have been of the species. However, we respectfully cases, reintroduction efforts have not required previously. However, as disagree that there is sufficient scientific been successful at re-establishing outlined in our response to Comment 2, information from which to conclude populations; or designation of critical habitat is not that the reach from Pymatuning Dam to (d) There are no historical records of anticipated to generate additional Porter Road is occupied by rabbitsfoot. occurrence within the stream reach for conservation measures for these two While this reach appears to contain Neosho mucket, rabbitsfoot, or both. mussels beyond those generated by the sufficient physical or biological features While we recognize the importance of species’ listing. to support the life history of mussels, unoccupied habitat to recovery of listed possibly including rabbitsfoot, we species, in this case unoccupied habitat State Agency Comments determined that designating unoccupied does not at this time provide habitat for Section 4(i) of the Act states, ‘‘the critical habitat for rabbitsfoot was not reintroduction or reduce the level of Secretary shall submit to the State essential for the conservation of the stochastic and human-induced threats agency a written justification for [her] species in this reach due to the altered (see Criteria Used to Identify Critical failure to adopt regulations consistent natural stream hydrology and Habitat for more detailed information).
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(9) Comment: The Ohio Department of process. Thus, the best available alteration that appreciably diminishes Transportation (ODOT) inquired about economic data do not support ODOT’s the conservation value of critical habitat costs for highway departments and assertion. for listed species. Such alterations may other public infrastructure entities and (10) Comment: The ODOT inquired include, but are not limited to, effects whether normal consultation time about how the Service ensures that preclude or significantly delay the would increase due to the designation of consistent consultation on critical development of physical or biological critical habitat. ODOT believes the habitat throughout the range of features that support the life-history estimated economic impact of $1.4 rabbitsfoot. ODOT concluded that the needs of the species for recovery.’’ On million to the transportation and utility term ‘‘adverse modification’’ is vague June 26, 2014 (79 FR 36284) we sectors over the next 20 years is an and interpretations, policies, and level extended the public comment period on underestimate. This conclusion is based of effort could vary among Service the proposal to October 9, 2014. We on the assumption that no instream offices. have not yet published a final rule for work will be allowed for any project Our Response: In 1986, the Service this action, but expect to do so in the over or near critical habitat. ODOT and the National Marine Fisheries spring of 2015. provides an example of replacing a Service (collectively referred to as the (11) Comment: The ODOT requested multiple span bridge with a single span Services) established a definition for an exclusion from critical habitat structure increases cost by an average of ‘‘destruction or adverse modification’’ designation for portions of the river 260 percent, or from $2.2 million to $5.6 (50 CFR 402.02) that was later found to underneath and directly adjacent to million, exceeding the Service’s be invalid by the U.S. Court of Appeals roadway bridges in the Walhonding estimate of economic impacts. The for the Fifth (2001) and Ninth (2004) River and Little Darby and Fish Creeks. agency also expressed the belief that Circuits. The Services each issued ODOT concluded that since bridge replacement or maintenance costs to guidance to discontinue the use of the structures already exist and areas under improve or maintain 23 bridge 1986 adverse modification regulation. the bridge are subject to regular structures over designated critical Specifically, in evaluating an action’s maintenance activities that section 7 habitat areas will increase and the effects on critical habitat as part of consultation for other listed mussels in economic impact to ODOT alone will interagency consultation, the Services these streams would be adequate to exceed the estimated $1.4 million began applying the definition of protect rabbitsfoot while streamlining forecast in the economic analysis for ‘‘conservation’’ as set out in the Act, consultation. transportation and utility activities which defines conservation (and Our Response: Under section 4(b)(2) without considering increased costs conserve and conserving) to mean ‘‘to of the Act and its implementing associated with coordination, survey, use and the use of all methods and regulations at 50 CFR 424.19, we may reporting, mitigation, and monitoring. procedures which are necessary to bring exclude an area from designated critical Our Response: Future section 7 any endangered species or threatened habitat based on economic impacts, consultations concerning transportation species to the point at which the impacts on national security, or any and utilities are expected to occur in 35 measures provided pursuant to this Act other relevant impacts. In considering critical habitat units, including the are no long necessary’’ (16 U.S.C. whether to exclude a particular area Walhonding River and Little Darby and 1532(3)). Further, after examining the from the designation, we identify the Fish Creeks (proposed Units RF27, baseline and effects of the action, the benefits of including the area in the RF28, and RF30; Units RF26, RF27, and Services began analyzing whether the designation, identify the benefits of RF29 in the final rule) in Ohio. implementation of the Federal action excluding the area from the designation, Collectively, transportation and utilities under consultation, together with any and evaluate whether the benefits of consultations in these three critical cumulative effects, would result in the exclusion outweigh the benefits of habitat units are forecast to cost $15,000 critical habitat remaining ‘‘functional’’ inclusion. If the analysis indicates that over the next 20 years or $980 annually (or retain the current ability for the the benefits of exclusion outweigh the (one percent of total transportation and primary constituent elements to be benefits of inclusion, the Secretary may utilities costs). For comparison, the total functionally established) to serve the exercise her discretion to exclude the transportation and utilities cost for all intended conservation role for the area only if such exclusion would not critical habitat units are forecast to cost species. result in the extinction of the species. $1,400,000 over the next 20 years or Section 7(a)(2) of the Act defines the This area is not subject to exclusion $93,000 annually (Exhibit 3–9 in the consultation process, which is further based on impacts to national security or FEA). The designation of critical habitat developed in regulations set forth at 50 other relevant impacts, such as the will not preclude the construction of CFR part 402 and in the Service’s presence of a conservation plan (for instream bridge support structures or section 7 handbook (guidance). The example, a habitat conservation plan maintenance to existing piers. handbook ensures consistent (HCP)), status as a tribal land, or an The designation of critical habitat implementation of consultation existing partnership. In evaluating does not change the time frames procedures by Service field offices whether it should be excluded due to required to complete consultation under responsible for carrying out section 7 economic impacts, we concluded that section 7 of the Act and its activities throughout the range of no change in economic activity levels or implementing regulations at 50 CFR part rabbitsfoot. Furthermore, the Service the management of economic activities 402, subpart B. As previously stated, and the Federal action agency are is expected to result from the critical conservation measures required to avoid required to use the best available habitat designation (see our response to jeopardizing the continued existence of science in conducting the consultations Comment 2). Some additional costs the species are expected to be similar to (see our response to Comment 2). reflect additional administrative effort those required to avoid adversely On May 12, 2014, we published a as part of future section 7 consultations modifying critical habitat (that is, we proposed rule in the Federal Register in order to consider the potential for foresee no conservation actions (79 FR 27060) to adopt the following activities to result in adverse specifically due to critical habitat). We definition of destruction or adverse modification of critical habitat. Section do not expect the designation of critical modification: ‘‘Destruction or adverse 7 consultation is required in occupied habitat to lengthen the consultation modification means a direct or indirect habitat with or without a critical habitat
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designation. We acknowledge it is that there is no threat of take attributed identifies areas essential to the unlikely additional conservation to collection or vandalism under Factor conservation of endangered and measures beyond those identified to B for either species, and identification threatened species and that may require avoid jeopardy for the species would be and mapping of critical is not expected special management considerations. required to avoid adverse modification. to initiate any such threat. We also Through identification of physical or Accordingly, the Secretary is not believe that designating critical habitat biological features essential to the exerting her discretion to exclude any will be beneficial to the species, as conservation of Neosho mucket and areas in the Walhonding River and Little described in the proposed rule (77 FR rabbitsfoot, critical habitat informs Darby and Fish Creeks from the 63440, p. 63472) (see also our response agencies, entities, and individuals about designation based on economic impact, to Comment 52, below). We address habitats and specific features of these national security impact, or other ODWC’s specific conclusions below. habitats essential to the conservation of relevant impacts. (a) We acknowledge that presence of Neosho mucket and rabbitsfoot and (12) Comment: The Oklahoma Neosho mucket or rabbitsfoot is a trigger helps focus efforts. Accordingly, even Department of Wildlife Conservation for section 7 consultation with or though designation is not the sole (ODWC) stated that it does not support without the designation of occupied educational tool in the recovery process, designation of critical habitat for critical habitat. We also acknowledge it may still provide educational benefits. Neosho mucket and rabbitsfoot. ODWC occupied areas outside the final critical (d) Federal agencies must consult questioned potential benefits of critical habitat designation will continue to be with the Service to ensure that any habitat designation cited in the subject to conservation actions action authorized, funded, or carried out proposed rule (77 FR 63472), which implemented under section 7(a)(1) of will not destroy or adversely modify ODWC stated are not compelling the Act, regulatory protections afforded critical habitat for listed species. This arguments in favor of designation. by the section 7(a)(2) jeopardy standard, rule identifies the primary constituent ODWC concluded: and the prohibitions of section 9 of the elements of the physical or biological (a) The presence of Neosho mucket or Act. However, if designated critical features essential to the conservation of rabbitsfoot in a stream segment already habitat should become unoccupied at Neosho mucket and rabbitsfoot. These is a trigger for section 7 consultation some point in the future, the primary constituent elements will help and the designation of critical habitat designation of critical habitat ensures Federal agencies (and those for which does not change this requirement; regulatory protections afforded by they are providing funding, providing (b) The focusing of conservation section 7(a)(2). authorization, or completing activities) activities on the most essential features (b) We acknowledge that critical in planning or evaluating projects. In and area for each mussel species should habitat designation is not essential to addition, it may be beneficial to those be addressed through development and establish recovery criteria and prioritize who wish to conserve this species to implementation of a recovery plan, and recovery actions during development know which areas have been the designation of critical habitat is not and implementation of recovery plans. determined to be essential to the essential to this prioritization process However, critical habitat designations conservation of the species through this and can be articulated just as effectively identify, to the extent known using the designation. The maps in the in the recovery plan; best scientific data available, those designation spatially depict the areas we (c) The educational benefits derived physical or biological features that are have identified as critical habitat, from critical habitat can be conveyed essential to the conservation of the assisting with these efforts. through Federal, State, and private species (such as space, food, cover, and (13) Comment: ODWC stated that the entities more effectively with an protected habitat), which can be very Service (a) did not identify and quantify informative, detailed, and publicly beneficial both in focusing conservation the relative importance of potential accessible Web site; and efforts on specific activities, areas, or threats in each critical habitat unit, and (d) It is not clear how designation of features and in establishing future (b) cannot determine whether Federal critical habitat prevents ‘‘people from recovery efforts. Designation can often actions are important to the recovery of causing inadvertent harm to the help to focus recovery efforts and ensure Neosho mucket and rabbitsfoot. ODWC species’’ as the designation only applies these features, areas, and activities further concluded that if Federal actions to Federal actions and not those of the receive priority during section 7 are not relevant then designation of general public. consultations and the planning efforts of critical habitat has no recovery value. ODWC further concluded, based on both the Service and its partners. Our Response: In each unit these four arguments, that there is no (c) We agree that the Internet and description in the proposed designation, unique added value to the designation social media are effective venues to the Service identified physical or of critical habitat. convey the benefits of designating biological features that may require Our Response: Section 4(a)(3)(A) of critical habitat. We also agree there are special management considerations or the Act requires that, to the maximum many misperceptions by entities and protections to address threats such as extent prudent and determinable, we individuals regarding designation of land use conversion; alteration of water designate critical habitat at the time a critical habitat. The Service maintains a chemistry and water and sediment species is determined to be endangered publicly accessible Internet site, social quality; changes in stream bed material or threatened. Our regulations at 50 CFR media, and other educational materials composition and quality from activities 424.12(a)(1) state that designation of related to critical habitat and the Act, in that release sediments and nutrients critical habitat is not prudent when one general, to inform the public and abate into the water, such as urban or both of the following situations exist: concerns. In outlining benefits of development and associated (1) The species is threatened by taking designating critical habitat for Neosho construction projects; livestock grazing; or other human activity, and mucket and rabbitsfoot, our intent was and releases from municipal effluents. identification of critical habitat can be not to imply that designation of critical In addition, in the Effects of Critical expected to increase the degree of threat habitat is only an educational tool for Habitat Designation, Section 7 to the species, or (2) such designation of the recovery of Neosho mucket and Consultation and Application of the critical habitat would not be beneficial rabbitsfoot. To the contrary, critical ‘‘Adverse Modification’’ Standard to the species. The Service determined habitat is a tool within the Act which sections in the proposed designation (77
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FR 63440), we discuss the Federal scientific information, we are modifying willingness to utilize these sites for process concerning section 7 it in this final rule. For further reintroduction of endangered mussels. consultations and review of projects for information, see Summary of Changes Our Response: FHA is required under adverse modification of designated from Proposed Rule, below. section 7(a)(2) of the Act to evaluate critical habitat. We provide a (15) Comment: The ODWC questioned beneficial and adverse effects associated description of the actions and activities the biological benefit of including Unit with their actions in areas containing that may result in adverse effects to NM1 for Neosho mucket due to existing listed species. While the Service agrees occupied Neosho mucket and State water quality standards. ODWC some completed bridge project sites may rabbitsfoot critical habitat. This is not an also suggested that the designation of serve as suitable sites for mussel exhaustive list, and we note that the critical habitat may hinder recreational augmentation and reintroduction, activities listed may be able to be activity in the Illinois River. potential effects of future bridge projects modified by measures which would Our Response: Please refer to our to listed species and their critical sufficiently offset the potential adverse responses for Comments 12 and 13. habitat will vary depending on a variety effects so that the value of the habitat for Since recreational activities on the of factors, including, but not limited to, its intended conservation function is not Illinois River are not regulated by a the location and type of structure being appreciably reduced. The occurrence of Federal agency, we do not anticipate proposed, as well as the extent to which the actions we described will not always any effects to recreational activities due rabbitsfoot occurs in the project area. result in adverse modification of critical to the designation of critical habitat in Under section 7(a)(2) of the Act and its habitat if the available compensation Unit NM1. implementing regulations at 50 CFR part can reduce the effects of these actions (16) Comment: The Pennsylvania 402, subpart B, Federal agencies are not on the habitat. Department of Transportation (PDOT) required to prepare biological These types of activities would opposed the designation of critical assessments for actions that they require section 7 consultation only in habitat for the rabbitsfoot due to the determine will have no effect, or that cases where there is Federal financial hardship it believes the may affect but are not likely to adversely involvement (see response to Comment designation will bring to Pennsylvania affect, a species and its designated 2). The FEA examined the Service’s taxpayers. PDOT concluded it would critical habitat. Therefore, if a bridge project is deemed not likely to adversely section 7 consultation record as a means not be a prudent expense of to project future consultations. The FEA affect this species or other listed species transportation dollars to engage in all also accounts for projected increases in or their critical habitat, no biological the coordination and expense associated section 7 consultations, by activity assessment would be required by the with the critical habitat designation. category, based on communication with agency. Our Response: All PDOT activities Service field offices and Federal One of the main conclusions of the authorized or funded, in whole or part, agencies. Additional supporting FEA is that the Service does not expect information and documentation for the by the Federal Highway Administration critical habitat designation to result in FEA is contained within our (FHA) or permitted by a Federal agency project modification costs beyond what administrative record. The ACOE, such as the ACOE (such as, placement would be requested to avoid jeopardy to Bureau of Land Management, U.S. of bridge piers in a navigable stream) are the species. As a result, we expect Department of Energy, Federal Energy required to adhere to section 7(a)(2) of incremental economic impacts of Regulatory Commission, U.S. the Act (see our response to Comment considering critical habitat as part of the Department of Transportation (DOT), 2). PDOT projects that have no Federal forecast section 7 consultations will be U.S. Department of Agriculture (USDA) nexus are not subject to section 7 limited to additional administrative Forest Service, Environmental consultation. However, as previously costs to the Service, Federal agencies, Protection Agency (EPA), and stated, four other federally endangered and third parties. Future section 7 Tennessee Valley Authority are Federal mussels occur in the same reaches of the consultations concerning transportation agencies who may fund, permit, or Allegheny and Shenango Rivers and and utilities are expected to occur in 34 conduct actions that may potentially French and Muddy Creeks as the critical habitat units, including French affect designated critical habitat for rabbitsfoot. Although no critical habitat Creek, the Allegheny River, and Muddy Neosho mucket or rabbitsfoot and are has been designated for these mussels, Creek (Units RF22, RF23, and RF24 in expected to consult with the Service we believe that project modifications this rule) that occur in Pennsylvania. under section 7 of the Act. Recovery of that have been implemented to Collectively, transportation and utilities these mussels will not be attained minimize effects to these listed mussel consultations in these three critical without the valuable contribution of our species are the same types of measures habitat units are forecast to cost Federal partners, in accordance with that would be implemented to minimize $196,000 over the next 20 years or section 7(a)(1) of the Act, as well as our effects to rabbitsfoot and its critical $12,500 annually. For comparison, the State and nongovernmental partners. habitat. Therefore, we expect the total transportation and utilities cost for (14) Comment: The ODWC additional cost to taxpayers to be all critical habitat units are forecast to recommended modification to Unit RF2 minimal. cost $1,400,000 over the next 20 years (Verdigris River) for rabbitsfoot. ODWC (17) Comment: The PDOT stated there or $93,000 annually (Exhibit 3–9 in the indicated that the critical habitat unit will be additional costs associated with FEA; IEc 2014a, p. 1). As outlined in the includes a portion of the Verdigris River section 7 consultation with FHA due to FEA, these costs are the incremental downstream of Oklahoma Highway 266, the requirement to prepare a biological costs of the critical habitat designation which has been substantially modified assessment in designated critical habitat (that is, those costs, such as by dredging and channel modification regardless of species presence. PDOT expenditures related to consultation, to create the upper end of the requested evaluation of all financial which can be attributed solely to critical McClellan-Kerr Arkansas River impacts to the agency associated with habitat). Navigation System. designating critical habitat. PDOT also (18) Comment: PDOT asked the Our Response: In response to this suggested adverse modification has not Service ‘‘that if the Rabbitsfoot Mussel comment, we have re-evaluated Unit occurred previously at completed bridge is listed and critical habitats are RF2, and, based on the best available projects as evidenced by the Service’s designated, that there is solid scientific
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evidence that the species for which the consultation procedures or detour Our Response: Due to the vast number critical habitat is being designated is routes around critical habitat (for of hazardous materials hauled on the present and/or uses the habitat.’’ PDOT example, to avoid crossing designated nation’s roads and limited toxicity data asserted that it committed significant critical habitat in French Creek). available for different life stages of monetary resources in the past to Our Response: The Service freshwater mussels and their potential mitigate effects to endangered and appreciates PDOT’s input. We sensitivity to many of these compounds threatened species in areas with no respectfully disagree that the and effects to their habitat, the Service evidence of species presence. designation of critical habitat for is unable to provide a comprehensive Our Response: The Act and its rabbitsfoot would increase PDOT’s list of hazardous materials that may implementing regulations require the section 9 liability and create or increase affect rabbitsfoot designated critical Service to use the best available an economic burden on the State of habitat. However, please refer to the scientific and commercial data during Pennsylvania and industries Chemical Contaminants section of the consultation (see response to Comment transporting hazardous materials. A key proposed listing and designation of 2). The Service will continue to work conclusion of the FEA for rabbitsfoot critical habitat rule (77 FR 63440) for with PDOT and other partners to ensure critical habitat designation is that the further detail on compounds known to procedures to document presence or Service does not expect critical habitat adversely affect freshwater mussels and absence of the mussels is scientifically designation to generate additional their habitats. supported and to avoid and minimize requests for project modification in any (23) Comment: ODOT and PDOT effects to the rabbitsfoot in areas where of the critical habitat units, including expressed concern that the DEA this and other listed species are present the Allegheny and Shenango Rivers and underestimated impacts to the and critical habitat is designated. French and Muddy Creeks. Our transportation sector associated with the (19) Comment: PDOT requested minor conclusion is based on the FEA and that proposed designation. They asserted road work (such as rehabilitation or the creeks and rivers where rabbitsfoot that the DEA does not account for the resurfacing) and bridge work (such as occurs are already inhabited by other additional consultation, coordination, replacement and repair) on existing federally listed mussels. Project surveying, reporting, assessment, roads be exempt from formal modifications that minimize effects to mitigation, and monitoring costs that coordination (consultation), including other listed mussel species within these will result from the rule. According to areas 100 feet (ft) upstream and reaches also would minimize effects to one comment, there are 23 existing downstream of the project foot print. rabbitsfoot (see our response to structures crossing critical habitat in Our Response: Only PDOT projects Comment 2). Ohio that will be affected by the rule that have a Federal nexus are subject to due to project modifications that will (21) Comment: PDOT indicated it has consultation (see our response to discontinue in-water work. Another pre- and post-Marcellus and Utica shale Comment 2). There is no de minimis comment asserted that permits for drilling truck accident reports that may exception from the consultation roadwork in Pennsylvania will be be useful in identifying whether requirement. However, to streamline the interrupted as a result of the rule, and increased oil and gas exploration has or consultation process, a Federal agency’s that this will result in time delays and has not translated to an increased threat determination of ‘‘no effect’’ or ‘‘no traffic diversions. adverse modification’’ does not require of crashes that may release Our Response: Section 3.3.6 of the concurrence by the Service. contaminants. FEA provides information on the likely (20) Comment: PDOT expressed Our Response: The Service incremental impacts of the designation concern with its ability to quickly issue appreciates PDOT’s cooperation to to transportation and utility-related hauling permits for oversize and further identify potential threats to activities. The analysis forecasts future overweight loads and to restrict routing rabbitsfoot and designated critical section 7 consultations on these for materials such as fracking brine. The habitat. Your comments have been activities using both historical need to restrict routing for a subset of forwarded to our Pennsylvania consultation data and information from haulers such as hazardous material Ecological Services Field Office so that the Service’s field offices that have haulers would preclude PDOT’s ability they may review the information and, if jurisdiction in the study area regarding to electronically permit and route these appropriate, work cooperatively with likely future consultations. As the haulers, resulting in extensive time PDOT to minimize any potential threats commenters did not provide specific delays and subsequently a need for a to rabbitsfoot and its designated critical information regarding the number or significant increase in manpower. PDOT habitat and other listed mussels from rate of future consultations in the study concluded that manual permit review to contamination that may result from area (including Ohio) over the next 20 assure limited section 9 liability these accidents. years, the analysis relies on the represents significant economic burden (22) Comment: PDOT stated that the estimates provided in section 3.3.6 of to both the State of Pennsylvania (due information and data it provided refines the FEA. Specifically, the FEA estimates to increases in manpower) and to many the Service’s analysis regarding the that over the next 20 years, other industries (due to permit delays). proposed designation of critical habitat approximately 13.3 consultations are PDOT also identified the DOT’s for rabbitsfoot in proposed Units RF23, likely to occur for transportation Federal Motor Carrier Safety RF24, RF25, and RF32 and provided projects in proposed critical habitat Administration and Pipeline and evidence that diminishes, to a units RF27 and RF28, which are located Hazardous Material Safety significant extent, the threat from in Ohio, in addition to approximately Administration as the regulatory chemical contamination as a result of 3.3 consultations in proposed critical agencies with oversight for spills at bridge crossings over critical habitat unit RF30, which is located in transportation of hazardous materials on habitat. PDOT requested a detailed list Indiana and Ohio. main traffic routes. PDOT concluded of hazardous materials that pose a threat The designation of critical habitat is that a section 7 consultation is required of adverse modification in order to plan not anticipated to generate additional for each load in response to the and prepare for actions PDOT must take conservation measures for the two designation of critical habitat and each to reduce their potential liability under mussels beyond those that would be tanker truck is subject to those section 9 of the Act. generated by the species being listed.
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Regardless of whether critical habitat is section 10(j) of the Act if the location of of collection sites. Similarly, other designated, the time period for that population is wholly separate commenters suggested that the Service consultation does not change. Therefore, geographically from nonexperimental should limit the designation to areas the designation is unlikely to result in populations of the same species. that are or have historically been incremental project delays due to the However, the Cottonwood River is not inhabited by the species and that the consultation process. As a result, we outside the current range of Neosho designation should not include the expect the quantified direct incremental mucket, so such a regulation is not entire geographical region where a impacts of the designation will be appropriate. If any of the released species can or may reside. limited to additional administrative Neosho mucket individuals are found to Our Response: We are designating as costs to the Service, Federal agencies, have survived, they are protected by the critical habitat areas that we have and third parties of considering critical provisions of the Act as an endangered determined to be occupied at the time habitat as part of future section 7 species. of listing and contain sufficient consultations (see our response to If determined to be appropriate for the elements of physical or biological Comment 2). landowner and conservation of the features to support life-history processes (24) Comment: The Kansas mussel, the Service will work with essential to the conservation of the Department of Wildlife, Parks and interested property owners to develop a Neosho mucket and rabbitsfoot. River Tourism (KDWPT) expressed concern safe harbor agreement and to apply for habitats are highly dependent upon regarding the proposed designation of an enhancement of survival permit upstream and downstream channel critical habitat for Neosho mucket in the pursuant to section 10(a)(1)(A) of the habitat conditions for their Cottonwood River (Unit NM8). KDWPT Act. The Service will also assist maintenance. Therefore, where one provided data from 2013 surveys of two property owners in identifying actions occurrence record was known from a Neosho mucket reintroduction sites. they can voluntarily undertake or forego river reach, we considered the entire Only one live Neosho mucket was to benefit species covered by the safe reach between the uppermost and located from the original reintroduction harbor agreement and permit. lowermost locations of the mussel as effort. KDWPT contended that this river Public Comments occupied habitat, except in lakes and reach does not support a self-sustaining (26) Comment: Several commenters reservoirs. The nearest stream population and that there are no data confluence or highway crossing to available to suggest reintroduction expressed concern that the designation of critical habitat in Arkansas and known localities was used to delineate efforts have been successful; therefore, the upstream and downstream extent of this habitat should not be considered Kansas gives the Service authority to restrict activities on privately owned critical habitat. For the Neosho mucket, occupied. we have defined occupied habitat as Our Response: We agree that the land. The commenters specifically those stream reaches known to be Cottonwood River should not be expressed concern regarding landowner currently extant. For the rabbitsfoot, we considered occupied, and we are not water development projects, have defined occupied habitat as those designating critical habitat for Neosho development or modification of stream reaches that contain sizeable and mucket in the Cottonwood River. We livestock and irrigation water rights, have clarified our definition of occupied normal aquaculture, farming and small populations as defined by Butler for the Neosho mucket (see Summary of ranching activities, timber harvests, (2005, pp. 88–89), and the marginal Changes from Proposed Rule). housing development projects, and populations of Fish Creek and Red River (25) Comment: KDWPT suggested that development of mineral rights. They that are the last extant populations in the Cottonwood River population of wanted to know whether these activities their respective basins (Great Lakes and Neosho mucket be considered an would trigger section 7 consultation Cumberland) and Allegheny River as a experimental population and and, if so, what the costs would be to metapopulation (interconnected propagated individuals be exempted private landowners for these populations where there is gene flow). from take under the Act. KDWPT also consultations. All other areas where populations are suggested that safe harbor agreements Our Response: The designation of classified as marginal are not considered should be made available to any critical habitat will not increase as occupied habitat (see Criteria Used to landowner agreeing to release Neosho government regulation of private land. Identify Critical Habitat, below). mucket individuals in the Cottonwood Private activities are not subject to the (28) Comment: One commenter stated River. Act’s section 7 consultation a belief that the protections afforded Our Response: We are not designating requirements unless the activities are Neosho mucket and rabbitsfoot under critical habitat for Neosho mucket in the authorized, funded, or carried out by a Kansas Nongame and Endangered Cottonwood River (proposed Unit Federal agency. Most normal operations Species Conservation Act (K.S.A. 32– NM8), Chase County, Kansas. Recent for rearing of livestock or fish, or for 957 through 32–963, 32–1009 through KDWPT data from 2013 (Tabor 2013, other land uses common in Arkansas 32–1003) preclude the need to designate pers. comm.) do not support that and Kansas, do not require Federal critical habitat for these mussels under released individual mussels into the permits or funding and are not carried the Act. Cottonwood River were able to survive out by a Federal agency. Therefore, we Our Response: The Act requires that and become established (thriving and do not anticipate this designation will critical habitat be designated to the sufficiently viable to suggest impose any additional direct regulatory maximum extent prudent and continuation or permanence without burdens to private landowners in determinable for any species that is human intervention), and the future Arkansas and Kansas (see our response determined to be an endangered or success of the reintroduction efforts are to Comment 2). threatened species under the Act. We unknown at this time (see Summary of (27) Comment: One commenter acknowledge Kansas State law affords Changes from Proposed Rule, below). requested that the Service designate State level protections similar to those The Secretary may authorize the critical habitat only in stream reaches afforded by the Act, but there are establishment of an experimental with recent live specimen collections differences. For example, Kansas State population (including offspring arising and that the designation extend no more law does not require Federal action solely therefrom) by regulation under than 3 miles upstream and downstream agencies to consult with the Service.
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Further, Federal listing and Conservation Commission—Forest rabbitsfoot, we do not expect the designation of critical habitat affords Management. number of consultations to increase due opportunity for funding of recovery The Service’s Missouri field office to this designation. actions from Federal sources, and may held two public informational meetings (34) Comment: One group of include cost share grants for non- in the area affected by this rule during commenters stated that the Service fails Federal landowners, the academic the second comment period. The first to meet the Act’s requirements for community, and nongovernmental meeting was held in Joplin, Missouri, on lawful designation of critical habitat in organizations. May 21, 2013, and the second meeting two respects: (a) By designating areas (29) Comment: One commenter was held in Greenville, Missouri, on occupied by the rabbitsfoot in Arkansas asserted there is no information, other May 23, 2013. Information pertaining to as critical habitat absent an appropriate than personal communication from the both meetings was disseminated determination that such areas include KDWPT, to support the presence of a through typical media outlets in the features essential to the conservation of stable, reproductive Neosho mucket region where the meetings were held, the species and which require special population in the Cottonwood River, which is predominately agricultural. management considerations or Kansas. The commenter contended the At the request of the Kansas Farm protection, and (b) by designating areas 1.6-rmi (2.6-rkm) reach of proposed Bureau, the Service’s Kansas field office unoccupied by rabbitsfoot in Arkansas critical habitat in the Cottonwood River scheduled public informational as critical habitat absent an appropriate is not occupied by Neosho mucket or is meetings for October 9 and 10, 2013, in determination those areas are essential only occupied due to reintroduction Parsons and Strong City, Kansas, for the conservation of the species. and, therefore, should not be designated respectively, during the third comment Our Response: In accordance with 50 as critical habitat. period. These meetings were cancelled CFR 424.12(d), the Service concluded Our Response: We are not designating due to a lapse in appropriations and designating critical habitat in river critical habitat for the Neosho mucket in partial government shutdown. The reaches between, or in close proximity the Cottonwood River (see also our Service’s Kansas field office attempted to, the uppermost and lowermost response to Comment 24, above, and to reschedule the meetings with the occupied areas represent an inclusive Summary of Changes from Proposed Kansas Farm Bureau during the week of area essential to the conservation of Rule, below). October 22, 2013, but was unable to Neosho mucket and rabbitsfoot. In (30) Comment: One commenter stated reschedule the meetings prior to the accordance with 50 CFR 424.12(b), the our estimate of $4.4 million for informal comment period closing. As an Service determined all or some primary and formal section 7 consultations is alternative, the Service responded via constituent elements were present in high, and questioned how these email on October 22, 2013, to a list of each unit as evidenced by occupied consultations can generate this cost. Kansas Farm Bureau questions related space (that is, stable habitat) for Our Response: The final total to the proposed rule and draft economic individual growth, feeding, and estimated economic impact of the analysis. reproduction, presence of gravid designation related to consultation (32) Comment: One commenter females, availability of fish hosts, and under the Act is $4.4 million over the expressed concern that the designation water quality. While all water quality 20-year period of analysis, or $290,000 of critical habitat in Unit RF4a needs may not be completely on an annualized basis. These figures (Ouachita River) will interfere with understood, we estimate some numeric represent the estimated costs of many of Camp Ozark’s river activities, standards have been adopted under the consultation associated with eight including expansion in coming years. Clean Water Act (33 U.S.C. 1251 et seq.) categories of economic activity across The commenter asserted the camp is a that represent levels essential to the the 12 States where critical habitat was significant local economic driver, and conservation of these mussels (such as proposed. Chapter 3 of the FEA the inability to both use the river for dissolved oxygen, ammonia, pH, metals) provides detailed information regarding recreation and to pursue development (see Physical or Biological Features). In the portion of total cost associated with plans will stymie its ability to provide this final determination and in each category of activity and how many jobs and wealth to the local economy. accordance with 50 CFR 424.12(b), we consultation actions are projected to Our Response: The originally have identified nine categories of occur over the 20-year period. proposed RF4b has been separated into primary threats affecting Neosho mucket (31) Comment: Two commenters from two units (RF4a and RF4b) in this final and rabbitsfoot habitat that may Kansas and Missouri stated that the designation. The Service has removed necessitate special management or Service did little, if any, outreach to the the originally proposed critical habitat protection (see Special Management agricultural community. Unit RF4a from the final designation Considerations or Protection). We did Our Response: The Service published based on recent survey efforts not designate as critical habitat any legal notices during the first comment suggesting the rabbitsfoot population in areas that are unoccupied by either period in the Southeastern Missourian this area should be classified as species. and Joplin Globe in Missouri, and The marginal based on Butler’s (2005) (35) Comment: One group of Morning Sun (Pittsburgh, Kansas), classification (see Summary of Changes commenters stated that the Service’s Wichita Eagle, and Topeka Capitol from Proposed Rule, below). As a result, record for the rule does not include Journal in Kansas. The Service sent the area the commenter expressed sufficient information for the Service to news releases to 17 additional Missouri concerns about is not included in the determine critical habitat features and 18 additional Kansas newspapers final designation of critical habitat. essential to the conservation of the with readership in the areas affected by (33) Comment: One commenter stated species based on descriptions of the the proposed rule, including farmers. that the designation of critical habitat physical or biological features, which Advance notification of the proposed will significantly increase the number of state ‘‘little is known of the specific rule and the document making available consultations required for permitted and habitat requirements for the Neosho the draft economic analysis and non-permitted activities. mucket and rabbitsfoot’’ and ‘‘the ranges extending the proposal’s comment Our Response: As other listed species of many water quality parameters that period was provided to the Kansas already occur in all designated critical define suitable habitat conditions for Forestry Commission and Missouri habitat units for Neosho mucket and Neosho mucket and rabbitsfoot have not
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been investigated or are poorly we are designating as critical habitat. reported from Arkansas Highway 379 understood.’’ Accordingly, the The Arkansas Game and Fish and 298. commenters expressed the belief that Commission (AGFC) fish database (b) Ouachita River (proposed Unit the critical habitat units are overly (2014) includes numerous records for RF4b): Restrict designation to the broad and unnecessary for preservation rabbitsfoot fish hosts in the critical confluence of Little Missouri River and propagation of these mussels. habitat units designated in Arkansas. downstream to U.S. Highway 79. Our Response: Generally, the Neosho Our administrative record documents (c) Saline River (proposed Unit RF5): mucket is found embedded in stable the coexistence of rabbitsfoot and its Restrict designation to 2 miles upstream substrates associated with shallow fish hosts in these critical habitat units. of Arkansas Highway 15 to the Snake riffles (areas where shallow, generally (37) Comment: One group of Creek confluence north of the Felsenthal less than 1 meter (m) (3.3 ft) in depth, commenters suggested that the Service National Wildlife Refuge boundary. turbulent water passes through and over should remove streams impacted and/or (d) Black River (proposed Unit RF9): stones or gravel of somewhat similar controlled by hypolimnetic (lower Restrict designation to Pocahontas, size) and runs (intermediate areas thermally stratified portion of a lake) or Arkansas, downstream to Black Rock, between pools and riffles with moderate other cold water releases (such as Arkansas. current) with gravel and sand substrate Mammoth Spring in Arkansas) because (e) Spring River (proposed Unit and moderate to swift currents (Oesch those streams are not preferred habitat RF10): Restrict designation to Ravenden, 1984, p. 221; Harris 1998, p. 5; for rabbitsfoot. Specifically, they Arkansas, downstream to confluence Obermeyer 2000, pp. 15–16). However, referenced the Spring River (proposed with Black River. They also believe in Shoal Creek and the Illinois River, Unit RF12) from Hardy downstream to water temperatures from Hardy to the Neosho mucket prefers near-shore Ravenden, Arkansas, and Ouachita Ravenden, Arkansas, do not support areas or areas out of the main current River (proposed Unit RF4b) from propagation of rabbitsfoot and, thus, are (Harris 1998, p. 5). The rabbitsfoot Interstate 30 downstream to the Little not essential to the conservation of the usually occurs in shallow areas along Missouri River confluence. They stated species. (f) South Fork Spring River (proposed the bank and adjacent runs and riffles that the rabbitsfoot cannot survive in Unit RF11): Remove entire designation with gravel and sand substrates where these two cold water reaches. based on the lack of documentation of the water velocity is reduced, but it also Our Response: Our decision record live rabbitsfoot despite multiple may occur in deep runs (Parmalee and documents the presence of a diverse and surveys. Bogan 1998, pp. 211–212). Unlike the abundant mussel assemblage in the Neosho mucket (Barnhart 2003, p. 17), Our Response: We have re-evaluated Spring River from Hardy, Arkansas, the rabbitsfoot seldom burrows in the the critical habitat units in question downstream to Ravenden, Arkansas substrate, but lies on its side (Watters and, based on the best available (Rust 1993, Appendix 1.2 and 1.4; 1988, p. 13; Fobian 2007, p. 24). Neosho scientific information, we are removing Harris et al. 2007; AGFC Mussel mucket and rabbitsfoot, similar to other or modifying the following units in this Database 2014; various museum mussels, are dependent on areas with final rule. For further information, see records). The Ouachita River mussel flow refuges where shear stress (the Summary of Changes from Proposed and fish fauna from Remmel Dam stream’s ability to entrain and transport Rule, below. downstream to Interstate 30 is affected bed material created by the flow acting (a) Ouachita River (proposed Unit by cold water releases (Harris 1999, p. on the bed material) is low and RF4a): We agree, in part, with the sediments remain stable during flood 4–2). Mussel species richness and commenters and in this final events (Layzer and Madison 1995, p. abundance increases downstream of designation have removed the originally 341; Strayer 1999, pp. 468 and 472; Interstate 30 (Harris 1999, p. 3–8). proposed Unit RF4a. Hastie et al. 2001, pp. 111–114). Habitat Harris (1999, p. 4–2) reported double- (b) Ouachita River (Unit RF4b): We conditions described above provide digit species richness and higher agree, in part, with the commenters and space, cover, shelter, and sites for relative abundance of mussels have revised proposed Unit RF4b into breeding, reproduction, and growth of downstream of the Tenmile Creek two units. The Ouachita River from offspring for the Neosho mucket and confluence compared to sites upstream. Arkadelphia downstream to the Little rabbitsfoot; are essential to their Live rabbitsfoot occur in the Spring Missouri River confluence has not been conservation; and may require special River between Hardy and Ravenden, comprehensively surveyed for mussels. management considerations or Arkansas, and in the Ouachita River While the absence of rabbitsfoot from protection. These habitat conditions downstream of Tenmile Creek to the this reach is likely a result of no survey have been accurately captured in the confluence of the Caddo River (Harris et data and not actual absence, the best physical or biological features that we al. 2007, pp. 14–16; AGFC Mussel available scientific information supports have identified to be essential to the Database 2014; Harris 1999, p. 3–8). designating critical habitat in two conservation of the species. Based on Therefore, the best available scientific Ouachita River units, revised Unit RF4a the best available scientific information, information supports that mussels, and revised Unit RF4b (see Summary of we conclude the designation of critical including rabbitsfoot, can survive in Changes from Proposed Rule, below). habitat for Neosho mucket and these reaches. (c) Saline River (Unit RF5): We agree, rabbitsfoot meets the criteria set forth in (38) Comment: One group of in part, with the commenters and have 50 CFR 424.12. commenters recommended modified Unit RF5 in this final (36) Comment: One group of modifications to six critical habitat units designation so that the upstream commenters suggested that the Service for rabbitsfoot. They asserted that the boundary is at the Frazier Creek should limit critical habitat designations critical habitat units should be restricted confluence near Mt. Elba, Arkansas, and for rabbitsfoot in Arkansas to areas to stream reaches where live rabbitsfoot the downstream boundary is at the Mill where successful host species and individuals are known to occur. The Creek confluence near Stillions, rabbitsfoot coexist. units are as follows: Arkansas. Our Response: Based on the best (a) Ouachita River (proposed Unit (d) Black River (Unit RF9): We agree, available information, suitable fish hosts RF4a): Remove entire designation in part, with the commenters and have for the rabbitsfoot occur in all areas that because occurrence of rabbitsfoot is only modified Unit RF9 in this final
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designation so that the downstream domestic drinking water, if it can be Service prepared a memorandum boundary is at the Flat Creek confluence demonstrated: (a) The sole purpose is to describing the likely outcome of future downstream of Powhatan, Arkansas. provide domestic drinking water section 7 consultations (see Appendix D (e) Spring River (Unit RF10): The best supply; and (b) there is no feasible of the FEA). The Service is designating available scientific information supports alternative to constructing a reservoir to critical habitat in river segments that are the designation with a slight adjustment meet the domestic water needs of the occupied by the mussels. Section 7 to the upstream boundary of Unit RF10 citizens of Arkansas. Given that a goal consultation requirements take effect downstream approximately 3.72 rkm (6 of the CWA is to establish water quality once the mussels are listed under the rmi) to the Ott Creek confluence. We standards that protect shellfish and Act, even if critical habitat is not have made this change in this final given documented declines of these designated (see response to Comment 2). designation. mussel species still continue due to Thus, the incremental costs of (f) South Fork Spring River (proposed poor water quality and other factors, we additional regulation designating Unit RF11): The best available scientific take a conservative approach in favor of critical habitat are limited to the information supports categorizing the the species and conclude that administrative costs to the Service, the South Fork Spring River rabbitsfoot Regulation 2 has been insufficient to Federal action agencies, and third population as marginal. Therefore, the significantly reduce or remove threats to parties involved in consultations. The Service has removed proposed Unit the Neosho mucket and rabbitsfoot in FEA’s estimate of $4.4 million (present RF11 (the South Fork Spring River) from Units RF4a and RF10. value impacts assuming a 7 percent this final designation. (Note that units (40) Comment: One group of discount rate) results from this have been renumbered for this final rule commenters commissioned its own additional administrative burden. and final Unit RF11 is not the same study of the economic impacts of the (41) Comment: Multiple commenters location as proposed Unit RF11). critical habitat designation. Their study stated that the DEA underestimates the (39) Comment: One group of compared their results to the Service’s impacts of the proposed critical habitat commenters stated that the Service DEA and concluded that the DEA designation because it utilizes an failed to acknowledge protections ‘‘vastly understates’’ costs of the incremental approach that ‘‘only afforded to proposed Units RF10 and regulatory action because it does not estimates the likely costs of agencies RF4a under Arkansas Pollution Control take into account direct and indirect consulting with each other’’ and does and Ecology Commission (APCEC) costs to businesses, State and local not consider the actual opportunity Regulation 2 (waters designated as governments, and other private property costs to businesses, State and local Extraordinary Resource Waters (ERW) owners resulting from section 7 governments, and other private property and Ecologically Sensitive Waterbodies consultation requirements. Furthermore, owners related to the required (ESW)), which they stated provide these impacts would lead to additional consultations. sufficient protection to preserve the damages to the regional economy in the Our Response: The Service’s focus on physical or biological features essential form of lost tax revenue, increased the incremental impacts of the critical to the conservation of rabbitsfoot. unemployment claims, damage from habitat rule is consistent with the U.S. Our Response: The Service unrepaired roads and bridges, increases Office of Management and Budget’s acknowledges there are some in transportation costs, and tax (OMB’s) guidelines for best practices protections afforded to ERW and ESW increases. Specifically, the evaluation concerning the conduct of economic under APCEC’s Regulation 2, which was estimated, based on a sample of affected analysis of Federal regulations. As developed pursuant to the Arkansas projects, the total cost to affected described in section 2.1 of the FEA, Water and Air Pollution Control Act and Arkansas counties would exceed $19 OMB guidelines direct Federal agencies the Clean Water Act (CWA). Significant million, approximately 5 times the cost to measure the costs of a regulatory physical alterations of habitat are not of $4.4 million estimated in the DEA for action against a baseline, which it allowed unless: (a) The proposed the entire 12-State region of the defines as the ‘‘best assessment of the physical alteration of habitat will not designation. way the world would look absent the impair water quality, natural flow Our Response: The commenter’s proposed action.’’ The baseline utilized regime, and the habitat of fish, shellfish, evaluation describes the economic in the FEA is the existing regulatory and or aquatic life; and (b) there is no impacts that would occur if a variety of socio-economic burden imposed on feasible alternative to the proposed hypothetical scenarios were to result landowners, managers, or other resource project. Regulation 2 also allows the from critical habitat designation (for users potentially affected by the short-term activity authorization for a example, if visitation at Camp Ozark designation of critical habitat absent the variety of activities that are permitted to declined by 25 percent; visitation at the designation of critical habitat. The exceed water quality standards provided Pond Creek National Wildlife Refuge baseline includes protections afforded there is no permanent or long-term decreased by 20 percent; an oil well is the species under the Act, as well as impairment. However, despite not drilled; a poultry farm is closed; the under other Federal, State, and local provisions in Regulation 2 that construction of a planned county-road laws and guidelines. explicitly prohibit short-term activity bridge over the Osage River is delayed; In recognition of the divergent authorization for activities that result in or city or county discharges under the opinions of the courts and to address adverse effects to federally endangered National Pollution Discharge the Presidential memorandum dated and threatened species or their critical Elimination System (NPDES) are February 28, 2012, the Service habitat, short-term activity restricted). However, the evaluation promulgated final regulations specifying authorizations in ERW and ESW does not provide evidence to suggest that it is appropriate for the Secretary to watersheds have been linked to such restrictions will actually occur as consider impacts of a critical habitat documented take of endangered species a result of the critical habitat designation on an incremental basis (78 (see U.S. v. Hawk Field Services, LLC designation. FR 53058, August 28, 2013). This rule 2011). Furthermore, Regulation 2 allows The Service considered whether discusses the impact analysis for for the removal of an ERW or ESW restrictions are likely to result from the proposed critical habitat through designation for the purpose of designation of critical habitat and found completion of an ‘‘incremental constructing a reservoir to provide this to be unlikely. Specifically, the analysis.’’ This method of determining
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the probable impacts of the designation destruction or adverse modification of these impacts but instead describes seeks to identify and focus solely on the critical habitat above and beyond those them qualitatively and notes that these impacts over and above those resulting measures needed to avoid jeopardizing are uncertainties in the analysis. from existing protections. the continued existence of the species, (44) Comment: One commenter Accordingly, the FEA employs and found this to be unlikely (see our asserted that the DEA is flawed because ‘‘without critical habitat’’ (baseline) and response to Comment 2). Because all of it limits the physical scope of its ‘‘with critical habitat’’ (incremental) the units are occupied by at least one of enquiry to the riparian watersheds and scenarios. The analysis qualitatively the mussel species, any measures census tracts included in those describes how baseline conservation needed to protect habitat would be watersheds. The commenter argued that efforts for the two mussels may be requested by the Service, even if critical standard practice for an economic implemented across the proposed habitat was not designated, to avoid impact analysis has been to use county designation, and, where possible, jeopardizing the continued existence of boundaries or a defined local market provides examples of the potential the species. area as the basis for any comprehensive magnitude of costs of these baseline (43) Comment: Multiple commenters evaluation of costs and benefits. The use conservation efforts (Chapter 4). The expressed concern that the DEA does of such narrow boundaries is an attempt FEA focuses, however, on the not address impacts to private to limit the estimated effects by omitting incremental analysis, describing and landowners (such as farmers and consideration of the interconnectedness monetizing the incremental impacts due ranchers), and in particular, those of modern economies. specifically to the designation of critical impacts associated with property value Our Response: The commenter is habitat for the species (Chapter 3). or third party lawsuits resulting from correct that the DEA defines its ‘‘study Sections 2.2 and 2.3 of the FEA describe critical habitat designation. One area’’ as including the watersheds in detail how the analysis defines and commenter expressed concern that no encompassing proposed critical habitat identifies incremental effects of the small landowners were contacted in (either the fourth level (8-digit) or sixth proposed designation. accordance with the provisions of the level (12-digit) Hydrologic Unit Code The incremental approach employed Regulatory Flexibility Act (RFA; 5 (HUC) watersheds defined by the U.S. by the Service in its analyses of U.S.C. 601 et seq.). Geological Survey (USGS)). The study proposed critical habitat designations Our Response: Incremental impacts of area is used to identify projects (such as does not necessarily limit impacts to the designation are expected to be oil wells, roads, bridges, etc.) that could administrative costs of consultation. In limited to additional administrative have a hydrologic connection to critical some cases, designation of critical costs to the Service, Federal agencies, habitat. For example, these projects may habitat does result in new project and third parties of considering critical be sufficiently close to a critical habitat modifications that need to be habitat as part of future section 7 river segment that runoff from the implemented to avoid possible adverse consultations (see our response to construction site would increase modification of the habitat. The costs of Comment 2). The FEA incorporates sediment loads to the river, potentially these project modifications would then potential impacts to private landowners affecting the mussels. If such a be counted in the incremental analysis, as third parties in forecasted hydrologic connection exists, these regardless of who incurs the cost. In the consultations on water quality; timber, projects are more likely to require case of the Neosho mucket and agriculture, and grazing; and consultation. Defining the study area rabbitsfoot, all of the designated critical development activities. In addition, more broadly would result in the habitat is occupied by the species, and Appendix A of the FEA includes an inclusion of projects with no hydrologic therefore any project modifications will analysis of the distributional impacts of connection to critical habitat, and thus be required even absent critical habitat the proposed critical habitat designation no reason for consultation. (in the baseline) to avoid possibly on small entities. As described in Importantly, while the identification jeopardizing the species’ existence (see Appendix A, the only costs expected to of projects requiring consultation is response to Comment 2). be borne by third parties as a result of limited to the study area, the (42) Comment: Multiple commenters the proposed designation are portions of consideration of economic impacts that expressed concern that the proposed the total cost of forecasted section 7 might result if these projects are critical habitat designation will have an consultations. These costs are relatively modified is not limited to this economic impact on Arkansas counties, minor, ranging from $260 to $2,080 per geographic area. However, in the case of cities, communities, businesses, and consultation. Neosho mucket and rabbitsfoot, industry sectors through effects on Section 2.3.2 of the FEA discusses incremental project modifications are employment, tax revenues, business and how the designation of critical habitat unlikely. Incremental costs are limited industrial operations, and overall may, under certain circumstances, result to administrative costs, which would be quality of life. Commenters suggested in indirect impacts such as time delays, incurred by the agencies or private that these impacts will occur as a result regulatory uncertainty, and stigma entities pursuing the projects, regardless of new critical habitat-related effects (such as property value impacts). of where those entities are restrictions, prohibitions, delays, The Service does not expect indirect headquartered. cancellations of activities, and/or impacts to result from critical habitat (45) Comment: One commenter additional requirements for designation for the two mussels. provided an analysis of the economic conservation and consultation. However, as a result of the concern impacts of the proposed critical habitat Our Response: The commenters do expressed in these comments, we have designation based on hypothetical not provide information regarding how added new language to the FEA project modifications using IMPLAN (an or why they believe critical habitat will concerning to the potential for indirect input-output modeling system) result in new restrictions, prohibitions, costs associated with third party multipliers. Such an analysis measures delays, cancellations, or conservation lawsuits or property value impacts. the change in economic output resulting requirements. Within the FEA, the Because the nature, timing, and from a policy change. The authors Service specifically considered whether likelihood of future litigation or argued that such multiplier analysis is additional or different conservation property value impacts are highly the appropriate framework for measures would be needed to avoid uncertain, the FEA does not quantify answering impact analysis questions,
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noting the DOT recommends this (primarily labor) needed to address the presented instead using a discount rate approach for construction planning. administrative requirements of the of 5 percent or less. Our Response: The commenter is section 7 process. Thus, the DEA Our Response: The DEA demonstrated correct that economic impact analyses appropriately captured the incremental the sensitivity of the results of the generally rely on input-output or opportunity costs of the proposed analysis to the choice of discount rate multiplier analysis using tools such as regulation. by presenting costs using discounts IMPLAN. Examples of such analyses (46) Comment: One commenter noted rates of both 7 and 3 percent. include estimates of the changes in that the DEA predicts an increase in Specifically, results estimated using economic output generated by the future section 7 consultations on both rates are presented in the Executive construction of a new stadium or the Natural Resources Conservation Service Summary (see Exhibit ES–3). For loss of a manufacturing facility. (NRCS) Farm Bill activities in Arkansas. presentation purposes, the remainder of In contrast, the method of economic The commenter expressed concern the report presents detailed cost analysis of proposed Federal regulations because these consultations are new, estimates using a 7 percent discount is subject to the direction provided by and the Service has no way to predict rate; however, Appendix B replicates all Executive Order 12866 and associated the incremental costs to private detailed tables using a 3 percent guidance provided by OMB in Circular landowners associated with new discount rate for comparison. A–4. As described in Circular A–4, conditions (such as a 180-foot buffer The choice of discount rates is ‘‘opportunity cost’’ is the appropriate along stream, discharge zones, and karst consistent with OMB’s Circular A–4, concept for valuing benefits and costs of features and methods to prevent soil which states: ‘‘As a default position, regulatory actions. Costs are incurred erosion and runoff) that will be OMB Circular A–4 states a real discount when resources are used for one recommended during section 7 rate of seven percent should be used as purpose and hence cannot be used for consultation on Farm Bill-related a base-case for regulatory analysis. The another purpose. The opportunity cost activities. seven percent rate is an estimate of the is the value of the benefit that could Our Response: Section 3.3.3 of the average before-tax rate of return to have been provided by devoting the DEA includes the likely increase in private capital in the U.S. economy. The resources to their best alternative use. section 7 consultations in Arkansas due effects of regulation do not always fall Estimates of the change in opportunity to new NRCS Farm Bill program work exclusively or primarily on the cost are sometimes referred to as under the Agricultural Act of 2014 (H.R. allocation of capital. When regulation economic efficiency effects or changes 2642, Pub. L. 113–79, which is also primarily and directly affects private in social welfare. known as the 2014 Farm Bill), an act consumption (for example, through For example, assume section 7 that authorizes nutrition and agriculture higher consumer prices for goods and consultations are required prior to programs in the United States for 2014 services), a lower discount rate is drilling at oil and gas sites potentially through 2018, and this section of the appropriate. For regulatory analysis, you affecting the mussels. If delays caused DEA provides an estimate of the should provide estimates of net benefits by section 7 consultation cause oil and administrative costs associated with the using both three percent and seven gas operators to forego the activity forecasted consultations. Additionally, percent.’’ The rate of 5 percent without pursuing production at the discussion provides information on recommended by the commenter is substitute sites, net change in oil and the likely incremental impacts of the captured in this range. gas production at a national level would proposed critical habitat designation on (48) Comment: One commenter represent the opportunity cost of the timber, agriculture, and grazing asserted the RFA analysis does not regulation. If operators pursue activities. As described in section 2.3.2 consider whether or not the proposed production at substitute sites, resulting of the DEA, the designation of critical critical habitat designation would have in no net change in production but habitat is not anticipated to generate a substantial impact on local redistributing activity away from sites additional conservation measures for government jurisdictions because, as near the mussels, then the marginal cost the two mussels beyond those that stated in the DEA, ‘‘potential financial of reduced profitability associated with would be generated by the listing. impacts to local government agencies the next best alternative location We note that the conditions identified and private landowners are not represents the opportunity cost. In by the commenter from the DEA as estimated as a proportion of annual either case, the resources used to ‘‘specific conservation revenues due to lack of data.’’ produce the oil and gas (for example, recommendations identified by the Our Response: The purpose of the materials and labor necessary to drill for Service’’ (i.e., a minimum 180-foot Small Business Regulatory Enforcement and transport the oil and gas) are not buffer and methods to prevent soil Fairness Act (5 U.S.C. 801 et seq.) lost to society. Rather, these resources erosion and runoff) are mischaracterized analysis, provided in Appendix A of the are still available for other productive in the economic analysis as having been DEA, is to assess whether or not the uses. As a result, estimates of changes made by the Service, which is incorrect. proposed critical habitat designation in efficiency effects, or social welfare, We have included an Addendum to the will have a significant economic impact are fundamentally different than the FEA (IEc 2014b) to correct information on a substantial number of small estimate of the distributional effects regarding the programmatic entities. As described in section A.1, the using tools like IMPLAN, and the results consultation with NRCS. It is important analysis provides information regarding are not directly comparable. to note, however, that although the the potential number of third parties Given that the designation of critical information was not correctly presented participating in consultations on an habitat for the mussels is unlikely to in the economic analysis, it had no annual basis in order to ensure a robust result in additional project bearing on the results of the incremental examination of the effects of the modifications beyond those related to effects analysis, as that information was proposed rule. In addition, the analysis the listing of these species, the types of incorporated in the baseline. provides information to assist the distributional effects measured using (47) Comment: One commenter stated Service in determining whether these IMPLAN multipliers are likely to be that the costs presented in the DEA are entities are likely to be ‘‘small’’ and minimal. The opportunity cost of the based on ‘‘an unrealistic discount rate of whether the number of potentially regulation is limited to the resources seven percent’’ and costs should be affected small entities is ‘‘substantial.’’
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Importantly, the impacts of the rule would not be a significant impact to a (52) Comment: One commenter asked must be both significant and substantial substantial number of small entities. why the critical habitat designation is to prevent certification of the rule under (50) Comment: One commenter necessary when no additional the RFA and to require the preparation provided information about NPDES conservation measures are required of an initial regulatory flexibility permits for direct and indirect beyond those associated with the listing. analysis. discharges into rivers containing Our Response: The Act requires that As shown in Exhibit A–2 of the DEA, proposed critical habitat. The critical habitat be designated to the the proportion of small entities in the commenter asserted that ‘‘serious maximum extent prudent and study area that may be affected in one economic and fiscal impacts will determinable for any species that is year by the proposed designation ranges accompany any water-system determined to be an endangered or from 0.1 percent to 3.1 percent, which adjustments that would have to be threatened species under the Act. In the is not considered to be a substantial instituted to divert or avoid discharges October 16, 2012, proposed rule to list number. Despite this conclusion, the into the host rivers.’’ In addition, the these species and designate critical analysis also provides information on commenter stated that the NPDES habitat (77 FR 63440), we identified whether the economic impact on these permits will ‘‘be subjected to an ‘‘the potential benefits’’ of designating entities is likely to be significant. increased level of regulation, including critical habitat to ‘‘include: (1) Specifically, the analysis estimates the potential need for formal and/or Triggering consultation under section 7 likely annualized impact per entity as a informal consultation with [the of the Act in new areas for actions in proportion of estimated annual revenue. Service].’’ which there may be a Federal nexus Due to lack of data on the annual Our Response: The commenter does where it would not otherwise occur revenues of each entity that may be not provide any information regarding because, for example, it is or has involved in section 7 consultations the likelihood or nature of ‘‘water- become unoccupied or the occupancy is across the designation, we perform a system adjustments’’ resulting from in question; (2) focusing conservation ‘‘threshold analysis’’; that is, we critical habitat designation that would activities on the most essential features determine that for impacts to exceed aid in providing greater clarification to and areas; (3) providing educational one percent of an entity’s annual address the concern. As outlined in our benefits to State or county governments revenues, those annual revenues would response to Comment 2 and elsewhere or private entities; and (4) preventing have to be less than $47,000. We assume in this document, the designation of people from causing inadvertent harm this is very unlikely to be the case for critical habitat is not anticipated to to the species’’ (see Prudency local government agencies in the study generate additional conservation Determination, 77 FR 63472). area. For example, one of the least measures for the two mussels beyond (53) Comment: Several commenters populous counties in the study area in those that would be generated by the contended that the designation of Arkansas is Calhoun County, whose species being listed. In addition, section critical habitat in Arkansas is an attempt total revenues for 2011 were reported at 3.3.2 of the DEA provided an estimated by the Service or Federal government to $8,863,000 (Center for Governmental number of future water quality-related ‘‘take’’ privately owned property. Research Inc., 2013: http:// section 7 consultations, including those Our Response: The designation of www.govistics.com/AR/CALHOUN). on NPDES permit programs. The DEA critical habitat does not authorize the (49) Comment: One commenter stated forecast costs related to water quality Service or Federal government to that for private timber, agricultural, and activities for all units in which future purchase, condemn, take through grazing entities, the RFA analysis relies section 7 consultations concerning eminent domain, or otherwise on the flawed assumptions in chapter 3 water quality management activities are confiscate private property through the of the DEA. The Service concludes there expected to occur. use of legislation, regulation, or other will be no significant impact to small (51) Comment: One commenter stated legal means. In accordance with entities when the DEA clearly states the that although the DEA does address Executive Order 12630 (‘‘Government Service has no data with which to benefits of designating critical habitat, Actions and Interference with predict future incremental costs to such the analysis should account for benefits Constitutionally Protected Private private landowners because there is no to other species from the designation of Property Rights’’), we have analyzed the history of consultation between the critical habitat for the mussels. Studies potential takings implications of Service and NRCS. have shown these protections promote designating critical habitat for Neosho Our Response: In Appendix A of the stream health by preventing erosion, mucket and rabbitsfoot in a takings DEA, we note that we are unable to filtering runoff, and providing shade implications assessment. As discussed estimate potential financial impacts to and microhabitats. Other benefits above, the designation of critical habitat local government agencies and private include areas for scientific study and affects only Federal actions. Although landowners as a proportion of annual aesthetic value to residents. private parties that receive Federal revenues due to a lack of data. However, Our Response: The primary goal of funding, assistance, or require approval for any entity with greater than $47,000 critical habitat designation for the or authorization from a Federal agency in annual revenue, the financial burden mussels is to support their long-term for an action may be indirectly impacted of undertaking a project requiring conservation. Theoretically, by the designation of critical habitat, the consultation on the mussels would conservation and recovery of the species legally binding duty to avoid constitute less than one percent of may result in benefits, including use destruction or adverse modification of annual revenue because the designation benefits (wildlife-viewing), non-use critical habitat rests on the Federal of critical habitat is not anticipated to benefits (existence values), and ancillary agency. generate additional conservation ecosystem service benefits (such as (54) Comment: Multiple commenters measures for the two mussels beyond public safety benefits of reduced requested that the Service conduct a those that would be generated by the wildfire risks). Section 5.3 of the DEA ‘‘complete impact study’’ to include all species being listed. Less than one contained a discussion of potential property owners and businesses. percent of annual revenue would not be ancillary benefits of mussel Our Response: Based on a review and considered a significant impact. conservation, including improved water evaluation of the information contained Therefore, we have determined there quality and aesthetic benefits. in the environmental assessment, we
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determined the designation of critical Neosho mucket and rabbitsfoot than concentrations for growth effects were habitat for the Neosho mucket and habitat loss or degradation. found to be 17 and 8 times as high as rabbitsfoot does not constitute a major Our Response: The Service the State’s and EPA’s water quality Federal action significantly affecting the determined predation was not a criteria for fluoride, respectively (Keller quality of the human environment significant threat to the overall status of and Augspurger 2005 in Farris and Van under the meaning of section 102(2)(c) Neosho mucket and rabbitsfoot. A more Hassel 2007, p. 162). Fluoride, at of NEPA. Accordingly, an detailed discussion of this threat is concentrations typical of most streams environmental impact statement is not presented in the final listing rule under meeting state and EPA water quality required. See our responses to Summary of Factors Affecting the criteria, is not toxic to glochidia Comments 41 and 42 regarding Species (78 FR 57076, September 17, (freshwater mussel larvae) and juveniles economic impacts to private landowners 2013). of Unionidae mussels such as the and businesses. (58) Comment: One commenter Neosho mucket and rabbitsfoot. In this (55) Comment: One commenter stated expressed concern about additional final designation, and in accordance that the designation of critical habitat in restrictions on the aquaculture industry with 50 CFR 424.12(b), we have Arkansas will close rivers to fishing. in Arkansas, specifically on water identified nine categories of primary Our Response: As discussed above, withdraw or diversion, pond cleanout, threats affecting Neosho mucket and designating critical habitat has no pond effluent discharge, and inspection rabbitsfoot habitat that may necessitate impact on landowner or citizen requirements, due to the designation of special management or protection (see activities that do not require Federal critical habitat. Special Management Considerations or funding or permits. Our Response: As discussed above, Protection—Chemical Contaminants). (56) Comment: One commenter designating critical habitat has no (61) Comment: Multiple commenters expressed concern that oral comments impact on landowner activities that do expressed concern regarding ‘‘sue and were not recorded during public not require Federal funding and settle’’ agreements between Federal meetings held in Arkansas. permits. For aquaculture activities that agencies and nongovernmental Furthermore, the commenter requested require a Federal permit or assistance, organizations. They contend this policy changes to require public the Service may recommend process is a binding out-of-court meetings be recorded and entered into conservation actions in a section 7 settlement that prohibits farmers, small the public record. consultation for the affected species that businesses, and private property owners Our Response: The commenter protect not only the species, but also its from participating in discussions and appears to be confusing the habitats, regardless of whether or not providing meaningful input prior to the requirements for a ‘‘public hearing’’ there is designated critical habitat. publication of a proposed rule. with those for the ‘‘public information Currently, such conservation measures Our Response: The multiyear listing meeting’’ that was actually held. A to protect the species and their habitats workplan under which this critical public hearing, which may be requested are in place for other listed mussel habitat rule was proposed was on any proposed rule within 45 days species that occur within the Arkansas developed through settlement after the opening of the comment critical habitat units such that no agreements with Wild Earth Guardians period, includes oral testimony from additional conservation measures or and the Center for Biological Diversity participants which is recorded by a regulatory restrictions are expected to to resolve multidistrict litigation. It court reporter and entered into the result from this critical habitat established deadlines for completing public record. With regard to the designation. listing determinations for each proposed critical habitat designation for (59) Comment: One commenter stated candidate species, including the Neosho the two mussels, no public hearings that the Service should release data mucket (first included in the 2001 were requested during any of the four used to determine critical habitat for CNOR; 66 FR 54808, October 30, 2001) open comment periods. Instead, the Neosho mucket and rabbitsfoot. and rabbitsfoot (first included in the Service was asked to reopen the Our Response: All of the comments, 2009 CNOR; 74 FR 57804, November 9, comment periods to allow additional materials, and documentation we 2009). The Service published a final time for interested parties to review the considered in this rulemaking are listing rule for these mussels on proposed rule, DEA, and draft available at the Arkansas Ecological September 17, 2013 (78 FR 57076), in environmental assessment. The Service Services Field Office (see ADDRESSES, accordance with these deadlines. agreed to hold public information above). Comments and materials Section 4(a)(3)(A) of the Act requires meetings during the open comment received, as well as some supporting that we designate critical habitat, when periods to facilitate a better documentation we used in preparing prudent and determinable, concurrently understanding of the proposed action. this rule, are also available for public with making a determination to list a In a public information meeting, which inspection at http:// species as endangered or threatened. is a less formal process than a public www.regulations.gov. Therefore, in making this final hearing, there is no requirement for (60) Comment: Several commenters designation at this time, the Service is recording oral testimony. However, the expressed concern about fluoride as a adhering to the requirements of the Service voluntarily provided comment chemical contaminant affecting Neosho listing workplan and settlement cards that participants could fill out mucket and rabbitsfoot. agreement and the Act. during the meetings and submit as Our Response: While all the water (62) Comment: One commenter formal comments to be entered into the quality needs for these two mussels may contended that the greatest threat to the record. These comments have been not be completely understood, we Neosho mucket and rabbitsfoot is White uploaded onto http:// estimate some numeric standards have River (Arkansas) minimum flows www.regulations.gov along with all been adopted under the CWA that regulated by the ACOE. other comments we received during the represent levels essential to Our Response: Neosho mucket does comment periods. conservation of these mussels (such as not occur in the White River. The (57) Comment: One commenter stated dissolved oxygen, ammonia, pH, metals) construction of a series of six flood predation by raccoon, otter, beaver, and (see Physical or Biological Features). In control reservoirs on the upper White other predators is a greater threat to a North Carolina study, effective River in the 1940s and 1950s, including
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Bull Shoals and Norfork Lakes, led to Arkansas, as originally proposed. confluence has not been the extirpation of rabbitsfoot from a Rabbitsfoot was collected live at two comprehensively surveyed for mussels. large section of the White River sites in 1988 (AGFC Mussel Database While the absence of rabbitsfoot from upstream of Batesville, Arkansas. White 2014). However, an AGFC and Service this reach is likely a result of no survey River minimum flows provide adequate comprehensive survey in 2007 failed to data and not actual absence, the best low flow releases from Bull Shoals and find any live rabbitsfoot in this reach. In available scientific information supports Norfork Lakes dams to enhance trout 2013, AGFC resurveyed the two 1988 designating critical habitat in two habitat and survival in cold tailwater sites and failed to locate any live or Ouachita River subunits due to the reaches of the White River located fresh dead (shells still have flesh distance between the reaches known to upstream of Unit RF8a. There is no attached to the valves, retain a luster to be occupied. Therefore, the Service has evidence to support minimum flows their nacre (pearly, innermost layer of created Unit RF4a to be from the contributing to declines in rabbitsfoot. the shell), and their periostracum Tenmile Creek confluence downstream Minimum flows may be beneficial to the (outermost layer of the shell) is not to the Caddo River confluence (22.7 rkm species by providing higher and more peeling, indicating relatively recent (14.1 rmi)), and Unit RF4b to be from consistent flow during low flow periods death (within months)) rabbitsfoot the Little Missouri River confluence when mussels may become stranded (Harris 2013, pers. comm.). Based on downstream to U.S. Highway 79 near and be subjected to desiccation (drying). recent survey efforts, the rabbitsfoot Camden, Arkansas (revised Unit RF4b; population in the Ouachita River 43 rkm (26.7 rmi)). Together, the new Summary of Changes From Proposed upstream of Lake Ouachita should be Units RF4a and RF4b represent a net Rule classified as marginal based on Butler’s reduction of 92.2 rkm (57.3 rmi) from The information below is provided as (2005) classification. the originally proposed Unit RF4b. a result of the peer and public review (4) We are not designating critical • Saline River (Unit RF5): We have process. In this final designation, we habitat for rabbitsfoot in the South Fork revised the upstream and downstream have made changes to maps, units, and Spring River (Unit RF11), Fulton extent of Unit RF5. Collections by the rule itself. A change in mapping County, Arkansas, as originally several surveyors since 2002 support the methodology resulted in a revision to proposed. Butler (2005, pp. 75–76) presence of a small population of the total number of river kilometers categorized the South Fork Spring River rabbitsfoot in the Saline River from the (river miles) for the designation of as a small population based on a 2002 Frazier Creek confluence near Mount rabbitsfoot critical habitat. The collection of seven fresh dead Elba, Arkansas, to the Mill Creek beginning and ending points of the specimens upstream of Arkansas confluence near Stillions, Arkansas proposed critical habitat designation, as Highway 289. Harris et al. (2007, p. 22) (Service, unpublished data, 2013). One well as the unit descriptions (as collected the only live rabbitsfoot from live specimen was collected in Grant described in the proposed critical this same reach in 2006. The best County in 1993 (Illinois Natural History habitat rule) will remain the same available scientific information supports Survey Mollusk Collection 14549). One except where modified for other categorizing the South Fork Spring live specimen also was collected at U.S. reasons. River rabbitsfoot population as marginal Highway 167 in 2006 (AGFC Mussel (1) We have made changes to Unit based on Butler’s (2005) classification. Database 2014), but this record and the RF7 to correct an oversight in mapping (5) We have modified or revised six 1993 Grant County record are disjunct methodology, specifically in methods critical habitat units for rabbitsfoot (approximately 48.3 rkm (30 rmi)) from used for estimating the unit length. The (originally proposed Units RF2, RF4b, the aforementioned reach downstream new method uses a better technique for RF5, RF9, RF10, and RF32) due to new of Mount Elba. Historically, rabbitsfoot following the curve and meander of the biological information. was reported from sites at Benton, river channel, which results in an • Verdigris River (Unit RF2): We have Arkansas, and Jenkins Ferry State Park additional 1.5 rkm (0.9 rmi) designated revised the downstream extent of Unit (University of Michigan Museum of as critical habitat for the rabbitsfoot. In RF2. A portion of the Verdigris River Zoology 67254, 75750). Based on the addition, this correction resulted in a from near the Bird Creek confluence best available scientific information, the corresponding increase to the private downstream to Interstate 44 has been Service has revised the upstream and ownership lands (expressed as river km/ altered by the upper extent of the downstream extent of Unit RF5 in this mi) adjacent to Unit RF7. McClellan-Kerr Arkansas River final designation due to the lack of live (2) We are not designating critical Navigation System and continues to be records downstream of the Mill Creek habitat for Neosho mucket in the dredged. There are no rabbitsfoot confluence near Stillions, Arkansas, and Cottonwood River (Unit NM8), Chase records from this reach. Therefore, the sporadic disjunct records upstream of County, Kansas, as originally proposed. Service has modified Unit RF2 in this the core population. This change Recent KDWPT data from 2013 (Tabor final designation so that the represents a net reduction of 168.9 rkm 2013, pers. comm.) do not indicate that downstream boundary is at Oklahoma (105.0 rmi) from the originally proposed released individual mussels into the Highway 266 northwest of Catoosa, Unit RF5. Cottonwood River were able to survive Oklahoma. This change represents a net • Black River (Unit RF9): We have and become established, and the future reduction of 7.6 rkm (4.7 rmi) from the revised the downstream boundary of success of the reintroduction efforts are originally proposed Unit RF2. Unit RF9. Rust (1993 in AGFC Mussel unknown at this time. We have clarified • Ouachita River (Unit RF4b): We Database 2014) collected one live our definition of extant Neosho mucket have divided Unit RF4b into two units rabbitsfoot approximately 0.78 rkm populations in this final designation to (Units RF4a and RF4b in this rule). (1.25 rmi) downstream of Powhatan, address reintroduced populations and Harris (1999, pp. 3–8 and 3–9) collected Arkansas. One live rabbitsfoot was selection criteria for critical habitat for live rabbitsfoot at three sites located collected near Powhatan in 1984 (AGFC this mussel (see the Criteria Used to from near the confluence of Tenmile Mussel Database 2014). There are no Identify Critical Habitat). Creek downstream to the Caddo River records from the Flat Creek confluence (3) We are not designating critical confluence. However, the Ouachita with the Black River downstream to the habitat for rabbitsfoot in the Ouachita River from Caddo River confluence Strawberry River confluence with the River (Unit RF4a), Montgomery County, downstream to the Little Missouri River Black River. Therefore, the Service has
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modified Unit RF9 in this final (6) The critical habitat in the (78 FR 57076, September 17, 2013) for designation so that the downstream originally proposed Unit RF19 (now the Neosho mucket and rabbitsfoot for a boundary is at the Flat Creek confluence Unit RF18 in this final designation) for summary of species information. with the Black River downstream of rabbitsfoot in the Duck River overlaps Additional information on the Powhatan, Arkansas. This change with the oyster mussel (Epioblasma associated draft economic analysis and represents a net reduction of 41.0 rkm capsaeformis) critical habitat. In the draft environmental assessment for the (25.5 rmi) from the originally proposed Duck River, the oyster mussel has been proposed rule was published in the Unit RF9. renamed the Duck River dartersnapper Federal Register on May 9, 2013 (78 FR • Spring River (Unit RF10): We have (Epioblasma ahlstedti) and is separate 27171). changed the upstream boundary of the and distinct from the oyster mussel. We For more information on relative originally proposed Unit RF10. Harris et agree that the oyster mussel and Duck abundance and trends of extant al. (2007, pp. 14–16) collected three live River dartersnapper are distinct and populations of Neosho mucket and rabbitsfoot in 2005 from a site separate species. However, the Service rabbitsfoot by river basin please refer to approximately 1.55 rkm (2.5 rmi) has not yet made a listing and critical the Taxonomy, Life History, and upstream of Williford, Arkansas (or habitat determination for the new entity, Distribution section of the proposed rule Arkansas Highway 58). They also the Duck River dartersnapper. We published in the Federal Register on reported numerous rabbitsfoot from incorporated language in this final rule October 16, 2012 (77 FR 63440). to clarify the species distinction and muskrat middens in the reach from Critical Habitat Williford to Ravenden Springs, name change, but at this time, the Duck Arkansas. One live specimen was River dartersnapper and oyster mussel Background are considered synonymous according collected in 1983, near the confluence of Critical habitat is defined in section 3 Ott Creek (AGFC Mussel Database to our regulations. (7) In the proposed rule, we of the Act as: 2014). The AGFC Mussel Database (1) The specific areas within the (2014) also contains a 1983 record from inadvertently left out the description of a physical or biological feature for both geographical area occupied by the near the Pierce Creek confluence located species, at the time it is listed in upstream of Ott Creek near Hardy, species that addresses habitats protected from disturbance or representative of accordance with the Act, on which are Arkansas. The Spring River downstream found those physical or biological of Hardy, Arkansas, supports a diverse the historical, geographic, and ecological distributions of the species. features and abundant mussel community as (a) Essential to the conservation of the evidenced in our records. Thus, the best We have added the description into this final rule (see Physical or Biological species, and available scientific information supports (b) Which may require special Features, below). the designation with a slight adjustment management considerations or (net reduction) to the upstream extent of (8) In the proposed rule, Primary Constituent Element 4 for both species protection; and Unit RF10 downstream by (2) Specific areas outside the approximately 11.3 rkm (7.0 rmi) to the stated that fish hosts for each mussel were ‘‘currently unknown’’ and geographical area occupied by the Ott Creek confluence. Therefore, the species at the time it is listed, upon a Service has revised the upstream provided a statement regarding natural fish assemblages ‘‘until appropriate host determination that such areas are boundary of the originally proposed essential for the conservation of the Unit RF10 in this final designation. fish can be identified.’’ While we do not currently know all fish species that may species. • Shenango River (Unit RF32): We act as hosts for one or both of the Conservation, as defined under have changed the upstream boundary of glochidia of these mussels, this final section 3 of the Act, means to use and the originally proposed Unit RF32. rule identifies those fish species we the use of all methods and procedures Considering new information in Bursey believe are or may be host species (see that are necessary to bring an (1987), the best available scientific Primary Constituent Elements for endangered or threatened species to the information supports extending the Neosho Mucket and Rabbitsfoot in this point at which the measures provided extent of the originally proposed Unit rule and General Biology in the pursuant to the Act are no longer RF32 (now Unit RF31 in this final proposed rule (77 FR 63442)). necessary. Such methods and designation) upstream 8.6 rkm (5.3 rmi). (9) In the proposed rule, we procedures include, but are not limited The new unit descriptions are incorrectly labeled the Pond Creek to, all activities associated with provided below in Final Critical Habitat National Wildlife Refuge (NWR) as scientific resources management such as Designation. Because of the removal of Cossatot NWR. This has been corrected research, census, law enforcement, the originally proposed Unit RF11, in this final rule. habitat acquisition and maintenance, originally numbered Units RF12 to RF32 (10) Several Counties were propagation, live trapping, and have been renumbered Units RF11 to inadvertently left out of the Executive transplantation, and, in the RF31. In addition, these revisions Summary of the proposed rule; we extraordinary case where population resulted in a net decrease of designated added them in this final designation. pressures within a given ecosystem critical habitat for the Neosho mucket of (11) In the proposed rule, we cannot be otherwise relieved, may approximately 3 rkm (2 rmi) and a net incorrectly named Mammoth Cave include regulated taking. decrease of critical habitat for the National Park North Entrance Road as Critical habitat receives protection rabbitsfoot of 349 rkm (217 rmi). The Maple Springs Ranger Station Road in under section 7 of the Act through the majority of the changes from the the unit description for Unit RF21. The requirement that Federal agencies proposed rule are to units occurring in correct road name is used in this final ensure, in consultation with the Service, Arkansas, with a net reduction of rule. that any action they authorize, fund, or approximately 350 rkm (218 rmi; a 27 carry out is not likely to result in the percent decrease). There was only one Summary of the Species’ Status destruction or adverse modification of increase in critical habitat length Please refer to the proposed listing critical habitat. The designation of (originally proposed Unit RF32, now and critical habitat rule (77 FR 63440; critical habitat does not affect land Unit RF31, in this final designation). October 16, 2012) and final listing rule ownership or establish a refuge,
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wilderness, reserve, preserve, or other to ensure the conservation of the may still result in jeopardy findings in conservation area. Such designation species. some cases. These protections and does not allow the government or public Section 4 of the Act requires that we conservation tools will continue to to access private lands. Such designate critical habitat on the basis of contribute to recovery of this species. designation does not require the best scientific and commercial data Similarly, critical habitat designations implementation of restoration, recovery, available. Further, our Policy on made on the basis of the best available or enhancement measures by non- Information Standards Under the information at the time of designation Federal landowners. Where a landowner Endangered Species Act (published in will not control the direction and requests Federal agency funding or the Federal Register on July 1, 1994 (59 substance of future recovery plans, authorization for an action that may FR 34271)), the Information Quality Act habitat conservation plans (HCPs), or affect a listed species or critical habitat, (section 515 of the Treasury and General other species conservation planning the consultation requirements of section Government Appropriations Act for efforts if new information available at 7(a)(2) of the Act would apply, but even Fiscal Year 2001 (Pub. L. 106–554; H.R. the time of these planning efforts calls in the event of a destruction or adverse 5658)), and our associated Information for a different outcome. modification finding, the obligation of Quality Guidelines provide criteria, the Federal action agency and the establish procedures, and provide Physical or Biological Features landowner is not to restore or recover guidance to ensure that our decisions In accordance with section 3(5)(A)(i) the species, but to implement are based on the best scientific data and 4(b)(1)(A) of the Act and regulations reasonable and prudent alternatives to available. They require our biologists, to at 50 CFR 424.12, in determining which avoid destruction or adverse the extent consistent with the Act and areas within the geographical area modification of critical habitat. with the use of the best scientific data occupied by the species at the time of Under the first prong of the Act’s available, to use primary and original listing to designate as critical habitat, definition of critical habitat, areas sources of information as the basis for we consider the physical or biological within the geographical area occupied recommendations to designate critical features essential to the conservation of by the species at the time it was listed habitat. the species and which may require are included in a critical habitat When we are determining which areas special management considerations or designation if they contain physical or should be designated as critical habitat, protection. These include, but are not biological features (1) which are our primary source of information is limited to: essential to the conservation of the generally the information developed (1) Space for individual and species and (2) which may require during the listing process for the population growth and for normal special management considerations or species. Additional information sources behavior; protection. For these areas, critical may include the recovery plan for the (2) Food, water, air, light, minerals, or habitat designations identify, to the species, articles in peer-reviewed other nutritional or physiological extent known using the best scientific journals, conservation plans developed requirements; and commercial data available, those by States and counties, scientific status (3) Cover or shelter; physical or biological features that are surveys and studies, biological (4) Sites for breeding, reproduction, or essential to the conservation of the assessments, other unpublished rearing (or development) of offspring; species (such as space, food, cover, and materials, or experts’ opinions or and protected habitat). In identifying those personal knowledge. (5) Habitats that are protected from physical or biological features within an Habitat is dynamic, and species may disturbance or are representative of the area, we focus on the principal move from one area to another over historical, geographical, and ecological biological or physical constituent time. We recognize that critical habitat distributions of a species. elements (primary constituent elements designated at a particular point in time We derive the specific physical or such as roost sites, nesting grounds, may not include all of the habitat areas biological features essential to Neosho seasonal wetlands, water quality, tide, that we may later determine are mucket and rabbitsfoot from studies of soil type) that are essential to the necessary for the recovery of the these species’ habitat, ecology, and life conservation of the species. Primary species. For these reasons, a critical history as described in the Critical constituent elements are those specific habitat designation does not signal that Habitat section of the proposed rule to elements of the physical or biological habitat outside the designated area is designate critical habitat published in features that provide for a species’ life- unimportant or may not be needed for the Federal Register on October 16, history processes and are essential to recovery of the species. Areas that are 2012 (77 FR 63440), and in the the conservation of the species. important to the conservation of the information presented below. Under the second prong of the Act’s species, both inside and outside the Additional information can be found in definition of critical habitat, we can critical habitat designation, will the final listing rule published in the designate critical habitat in areas continue to be subject to: (1) Federal Register on September 17, 2013 outside the geographical area occupied Conservation actions implemented (78 FR 57076). We have determined that by the species at the time it is listed, under section 7(a)(1) of the Act, (2) Neosho mucket and rabbitsfoot require upon a determination that such areas regulatory protections afforded by the the following physical or biological are essential for the conservation of the requirement in section 7(a)(2) of the Act features: species. For example, an area currently for Federal agencies to insure their occupied by the species but that was not actions are not likely to jeopardize the Space for Individual and Population occupied at the time of listing may be continued existence of any endangered Growth and for Normal Behavior essential for the conservation of the or threatened species, and (3) section 9 The Neosho mucket is historically species and may be included in the of the Act’s prohibitions on taking any associated with the Illinois, Neosho, and critical habitat designation. We individual of the species, including Verdigris Rivers and their larger designate critical habitat in areas taking caused by actions that affect tributaries (Arkansas River basin). outside the geographical area occupied habitat. Federally funded or permitted Generally, the Neosho mucket is found by a species only when a designation projects affecting listed species outside embedded in stable substrates limited to its range would be inadequate their designated critical habitat areas associated with shallow riffles (areas
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where shallow, generally less than 1 m rivers and creeks consistently transport cell’s surface) of the mantle (the part of (3.3 ft) in depth, turbulent water passes their sediment load, both in size and the outer layer of skin (epidermis) of a through and over stones or gravel of type, associated with local deposition mollusk that secretes the shell) (Watters somewhat similar size) and runs and scour (Rosgen 1996, pp. 1–3). 2007, p. 55). For the first several (intermediate areas between pools and Habitat conditions described above months, juvenile mussels partially riffles with moderate current) with provide space, cover, shelter, and sites employ pedal (foot) feeding, extracting gravel and sand substrate and moderate for breeding, reproduction, and growth bacteria, algae, and detritus from the to swift currents (Oesch 1984, p. 221; of offspring for the Neosho mucket and sediment, although they also may filter Harris 1998, p. 5; Obermeyer 2000, pp. rabbitsfoot. These habitats are formed interstitial (pore) water (Yeager et al. 15–16). However, in Shoal Creek and and maintained by water quantity, 1994, pp. 217–221). However, their gills the Illinois River, the Neosho mucket channel features (dimension, pattern, are rudimentary and generally incapable prefers near-shore areas or areas out of and profile), and sediment input to the of filtering particles (Watters 2007, p. the main current (Harris 1998, p. 5). system through periodic flooding, 56). Adult mussels also can obtain their These habitats are formed and which maintains connectivity and food by deposit feeding, siphoning in maintained by water quantity, channel interaction with the flood plain, and are food from the sediment and its slope, and normal sediment input to the dynamic. Changes in one or more of interstitial (pore) water and pedal system. these parameters can result in channel feeding directly from the sediment The rabbitsfoot is historically degradation or aggradation, with serious (Yeager et al. 1994, pp. 217–221; associated with small- to medium-sized effects to mussels. Therefore, we Vaughn and Hakenkamp 2001, pp. streams and some larger rivers in the identify adequate water quantity, stream 1432–1438). Food availability and Lower Great Lakes and Lower channel stability, and floodplain quality for the Neosho mucket and Mississippi River sub-basins and Ohio, connectivity to be physical or biological rabbitsfoot in their habitats are affected Cumberland, Tennessee, White, features for Neosho mucket and by habitat stability, floodplain Arkansas, and Red River basins. The rabbitsfoot that are essential in connectivity, flow, and water and rabbitsfoot usually occurs in shallow accommodating feeding, breeding, sediment quality. areas along the bank and adjacent runs growth, and other normal behaviors of The ranges of many water quality and riffles with gravel and sand these species and in promoting gene parameters that define suitable habitat substrates where the water velocity is flow within each species’ populations conditions for the Neosho mucket and reduced, but it also may occur in deep and movement of their fish hosts. rabbitsfoot have not been investigated or runs (Parmalee and Bogan 1998, pp. are poorly understood. The pathways of Food, Water, Air, Light, Minerals, or 211–212). Unlike the Neosho mucket exposure to a variety of environmental Other Nutritional or Physiological (Barnhart 2003, p. 17), the rabbitsfoot pollutants for all four mussel life stages Requirements seldom burrows in the substrate, but lies (free and encysted glochidia, juveniles, on its side (Watters 1988, p. 13; Fobian The Neosho mucket and rabbitsfoot and adults) and differences in exposure 2007, p. 24). are riverine-adapted species that depend and sensitivity were previously Neosho mucket and rabbitsfoot, upon adequate water flow and are not discussed in the proposed rule (77 FR similar to other mussels, are dependent found in ponds or lakes. Continuously 63440, see Factor A). Environmental on areas with flow refuges where shear flowing water is a habitat feature contamination is a causal (contributing) stress (the stream’s ability to entrain and associated with all surviving factor in the decline of mussel transport bed material created by the populations of these species. Flowing populations. We estimate most numeric flow acting on the bed material) is low water maintains the river and creek standards for pollutants and water and sediments remain stable during bottoms and flow refuge habitats in quality parameters (for example, flood events (Layzer and Madison 1995, riffles and runs where these species are dissolved oxygen, pH, heavy metals) p. 341; Strayer 1999, pp. 468 and 472; found, transports food items to the adopted by States under the CWA Hastie et al. 2001, pp. 111–114). Flow sedentary juvenile and adult life stages, represent levels essential to the refuges conceivably allow relatively removes wastes, and provides oxygen conservation of these mussels. However, immobile mussels such as the Neosho for respiration of the Neosho mucket some regulatory mechanisms may not mucket and rabbitsfoot to remain in the and rabbitsfoot. A natural flow regime adequately protect mollusks in some same general location throughout their that includes periodic flooding and reaches (77 FR 63440, see Factor D). entire lives. These patches of stable maintains connectivity and interaction Other factors that can potentially alter habitat may be highly important for the with the floodplain is critical for the water quality are droughts and periods rabbitsfoot since it typically does not exchange of nutrients, movement of and of low flow, nonpoint-source runoff burrow, making it more susceptible to spawning activities for potential fish from adjacent land surfaces (excessive displacement into unsuitable habitat. hosts, and maintenance of flow refuges amounts of sediments, nutrients, and However, flow refuges are not created in riffle and run habitats. pesticides), point-source discharges equally and there are likely other habitat Mussels, such as the Neosho mucket from municipal and industrial variables that are important, but poorly and rabbitsfoot, filter algae, detritus, wastewater treatment facilities understood (Roberts 2008, pers. comm.). microscopic animals, and bacteria from (excessive amounts of ammonia, Natural river and creek channel the water column (Fuller 1974, p. 221; chlorine, and metals), and random spills stability are achieved by allowing the Silverman et al. 1997, pp. 1862–1865; or unregulated discharge events. This river or creek to develop a stable Nichols and Garling 2000, pp. 874–876; could be particularly harmful during dimension, pattern, and profile, such Strayer et al. 2004 pp. 430–431). drought conditions when flows are that, over time, channel features are Encysted (attached) glochidia are depressed and pollutants are more maintained and the river or creek nourished by their fish hosts and feed concentrated. system neither aggrades nor degrades. for a period of one week to several As relatively sedentary animals, Channel instability occurs when the months. Nutrient uptake by glochidia is mussels must tolerate the full range of scouring (flushing) process leads to not well understood, but probably environmental stressors that occur degradation or excessive sediment occurs through the microvillae within the streams where they persist. deposition results in aggradation. Stable (fingerlike outward projections of a Both the amount (flow) and the physical
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and chemical conditions (sediment and spawning and foraging fish hosts that (2) A hydrologic flow regime (the water quality) where these species require flood plain habitats for severity, frequency, duration, and currently exist vary widely according to successful reproduction and recruitment seasonality of discharge over time) season, precipitation events, and to adulthood. Barko et al. (2006, pp. necessary to maintain benthic habitats seasonal human activities within the 252–256) found that several fish host or where the species are found and to various watersheds. Conditions across potential host species benefited from maintain connectivity of rivers with the their historical ranges vary even more exploiting the resources of flood plain floodplain, allowing the exchange of due to geology, geography, and habitats that were not typically available nutrients and sediment for maintenance differences in human population for use during normal hydrology years. of the mussel’s and fish host’s habitat, densities and land uses. In general, Furthermore, Kwak (1988, pp. 243–247) food availability, spawning habitat for these species survive in areas where the and Slipke et al. (2005, p. 289) indicated native fishes, and the ability for newly severity, frequency, duration, and that periodic inundation of floodplain transformed juveniles to settle and seasonality of water flow is adequate to habitats increased successful fish become established in their habitats. maintain stable flow refuges in riffle and reproduction, which leads to increased (3) Water and sediment quality run habitats (sufficient flow to remove availability of native host fishes for (including, but not limited to, fine particles and sediments without mussel reproduction. However, Rypel et conductivity, hardness, turbidity, causing degradation), and where al. (2009, p. 502) indicated that mussels temperature, pH, ammonia, heavy sediment and water quality is adequate tended to exhibit minimal growth metals, and chemical constituents) for year-round survival (moderate to during high flow years. Therefore, necessary to sustain natural high levels of dissolved oxygen; low to optimal flooding of these habitats would physiological processes for normal moderate exposure to environmental not be too frequent and should occur at behavior, growth, and viability of all life pollutants such as nutrients, dissolved similar frequencies to that of the natural stages. metals, and pharmaceuticals; and hydrologic regime of the rivers and (4) The occurrence of natural fish relatively unpolluted water and creeks inhabited by the Neosho mucket assemblages, reflected by fish species sediments). Adequate water flow, water and rabbitsfoot. Based on the richness, relative abundance, and quality, and sediment quality (as information above, we identify water community composition, for each defined above) is essential for normal quality, sediment quality, stable habitat, inhabited river or creek that will serve behavior, growth, and viability during health of fish hosts, diet (of all life as an indication of appropriate presence all life stages of the Neosho mucket and stages), and periodic flooding of and abundance of fish hosts necessary rabbitsfoot and their potential larva fish floodplain habitat to be physical or for recruitment of the Neosho mucket hosts. Therefore, based on the biological features for these species. and rabbitsfoot. Suitable fish hosts for information above, we identify water Primary Constituent Elements for Neosho mucket glochidia include flow, water quality, and sediment Neosho Mucket and Rabbitsfoot smallmouth bass (Micropterus quality to be physical or biological dolomieu), largemouth bass features for both these species. Under the Act and its implementing regulations, we are required to identify (Micropterus salmoides), and spotted Sites for Breeding, Reproduction, or the physical or biological features bass (Micropterus punctulatus). Suitable Rearing essential to the conservation of Neosho fish host for rabbitsfoot may include, Mussels require a fish host for mucket and rabbitsfoot in areas but are not limited to, blacktail shiner transformation of larval mussels occupied at the time of listing, focusing (Cyprinella venusta) from the Black and (glochidia) to juvenile mussels on the features’ primary constituent Little River and cardinal shiner (Luxilus (Williams et al. 2008, p. 68); therefore, elements. Primary constituent elements cardinalis), red shiner (C. lutrensis), presence of the appropriate fish host(s) are those specific elements of the spotfin shiner (C. spiloptera), bluntface is essential to the conservation of the physical or biological features that shiner (C. camura), rainbow darter Neosho mucket and rabbitsfoot (77 FR provide for a species’ life-history (Etheostoma caeruleum), rosyface 63440, see Taxonomy, Life History, and processes and are essential to the shiner (Notropis rubellus), striped Distribution). Neosho mucket and conservation of the species. shiner (L. chrysocephalus), and emerald rabbitsfoot juveniles require stable Based on the above needs and our shiner (N. atherinoides). habitats with adequate water quantity current knowledge of the physical or (5) Competitive or predaceous and quality as previously described for biological features and habitat invasive (nonnative) species in growth and survival. Excessive characteristics required to sustain the quantities low enough to have minimal sediments or dense growth of species’ life-history processes, we effect on survival of freshwater mussels. filamentous algae can expose juvenile determine that the primary constituent Special Management Considerations or mussels to entrainment or predation and elements specific to the Neosho mucket Protection be detrimental to the survival of and rabbitsfoot are: juvenile mussels (Hartfield and (1) Geomorphically stable river When designating critical habitat, we Hartfield 1996, pp. 372–374). channels and banks (channels that assess whether the specific areas within Geomorphic instability can result in the maintain lateral dimensions, the geographic area occupied by the loss of interstitial habitats and juvenile longitudinal profiles, and sinuosity species at the time of listing contain mussels due to scouring or deposition patterns over time without an aggrading features which are essential to the (Hartfield 1993, pp. 372–373). Water or degrading bed elevation) with conservation of the species and which quality, sediment quality, stable habitat, habitats that support a diversity of may require special management health of fish hosts, and diet (of all life freshwater mussel and native fish (such considerations or protection. stages) all influence survival of each life as stable riffles, sometimes with runs, For Neosho mucket and rabbitsfoot, stage and subsequent reproduction and and mid-channel island habitats that we have grouped the primary threats recruitment (Cope et al. 2008, p. 452). provide flow refuges consisting of gravel affecting their habitat, thus potentially Connections between the rivers and and sand substrates with low to the need to implement special adjacent flood plains occur periodically moderate amounts of fine sediment and management or protection, into nine during wet years and provide habitat for attached filamentous algae). categories.
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(1) Impoundments (primary (decreases fish and mussel diversity, (4) Chemical Contaminants (primary constituent elements 1–4). Dams changes species composition and constituent elements 3–4). Chemical eliminate and alter river flow within abundance, decreases biomass, and contaminants are ubiquitous in the impounded areas, trap silt leading to reduces growth rates) (Hartfield 1993, environment and are considered a major increased sediment deposition, alter pp. 131–139). Channel modification for contributor to the decline of mussel water quality, change hydrology and navigation has been shown to increase species (Richter et al. 1997, p. 1081; channel geomorphology, decrease flood heights (Belt 1975, p. 684), partly Strayer et al. 2004, p. 436; Wang et al. habitat heterogeneity, affect normal as a result of an increase in stream bed 2007, p. 2029; Cope et al. 2008, p. 451). flood patterns, and block upstream and slope (Hubbard et al. 1993, p. 137). Chemicals enter the environment downstream movement of mussels and Flood events are exacerbated, conveying through point- and nonpoint-source fish (Layzer et al. 1993, pp. 68–69; large quantities of sediment, potentially discharges including spills, industrial Neves et al. 1997, pp. 63–64; Watters with adsorbed contaminants, into and municipal effluents, and residential 2000, pp. 261–264). Within impounded streams. Channel maintenance often and agricultural runoff. These sources waters, decline of mussels has been results in increased turbidity and contribute organic compounds, heavy attributed to direct loss of supporting sedimentation that often smothers metals, nutrients, pesticides, and a wide habitat, sedimentation, decreased mussels (Stansbery 1970, p. 10). variety of newly emerging contaminants dissolved oxygen, temperature levels, Examples of special management such as pharmaceuticals to the aquatic and alteration in resident fish actions that would minimize or environment. As a result, water and populations (Neves et al. 1997, pp. 63– ameliorate these threats include: (a) sediment quality can be degraded to the 64; Pringle et al. 2000, pp. 810–815; Determining distribution and extent that results in adverse effects to Watters 2000, pp. 261–264). abundance of mussels, (b) developing mussel populations. Examples of special Downstream of dams, mussel declines dredging protocols and mussel management actions that would are associated with changes and identification booklets to help minimize minimize or ameliorate these threats fluctuation in flow regime, channel effects (for example, ACOE–Memphis include: (a) Revising water quality scouring and bank erosion, reduced District in the White River avoids standards (such as EPA’s new ammonia dissolved oxygen levels and water dredging known mussel beds), and (c) aquatic life criteria), (b) implementing temperatures, and changes in resident funding research on geomorphological storm water best management practices, fish assemblages (Williams et al. 1992, requirements of mussels to better inform (c) promoting green areas along riparian p. 7; Layzer et al. 1993, p. 69; Neves et management decisions. corridors in rapidly developing urban al. 1997, pp. 63–64; Watters 2000, pp. (3) Sedimentation (primary areas (such as the Illinois River), (d) 265–266; Pringle et al. 2000, pp. 810– constituent elements 3–4). Excessive upgrading industrial and municipal 815). Dams that are low to the water sediments are believed to negatively treatment facilities to improve water surface, or have water passing over them impact riverine mussel populations quality in effluents, and (e) participating (small low head or mill dams) can have requiring clean, stable streams (Ellis in private landowner programs to some of these same effects on mussels 1936, pp. 39–40; Brim-Box and Mossa promote watershed conservation (such and their fish hosts, particularly 1999, p. 99). Adverse effects resulting as USDA Farm Bill programs). reducing species richness and evenness from sediments have been noted for (5) Mining (primary constituent and blocking fish host movements many components of aquatic elements 1–4). Gravel, coal, and metal (Watters 2000, pp. 261–264; Dean et al. communities. Potential sediment mining are activities negatively affecting 2002, pp. 235–238). Examples of special sources within a watershed include water quality in Neosho mucket and management actions that would virtually all activities that disturb the rabbitsfoot habitat. Instream and alluvial minimize or ameliorate these threats land surface. Most localities occupied gravel mining has been implicated in include: (a) Modified reservoir releases by the Neosho mucket and rabbitsfoot, the destruction of mussel populations from dams to improve water quality and including viable populations, are (Hartfield 1993, pp. 136–138; Brim-Box habitat conditions in many tailwaters, currently being affected to varying and Mossa 1999, pp. 103–104). Negative and (b) modified dam operations (for degrees by sedimentation. Specific effects associated with gravel mining example, TVA’s Tims Ford Dam on the biological effects include reduced include stream channel modifications Elk River, where water temperature is feeding and respiratory efficiency from (altered habitat, disrupted flow patterns, monitored and dam operation is clogged gills, disrupted metabolic sediment transport), water quality adjusted to support endangered mussels processes, reduced growth rates, limited modifications (increased turbidity, downstream) and water quality and burrowing activity, physical smothering, reduced light penetration, increased biological monitoring. and disrupted host fish attraction temperature), macroinvertebrate (2) Channelization (primary mechanisms (Ellis 1936, pp. 39–40; population changes (elimination), and constituent elements 1–4). Dredging and Marking and Bills 1979, p. 210; Vannote changes in fish populations, resulting channelization activities have and Minshall 1982, pp. 4105–4106; from adverse effects to spawning and profoundly altered riverine habitats Waters 1995, pp. 173–175; Hartfield and nursery habitat and food web nationwide. Hartfield (1993, pp. 131– Hartfield 1996, p. 373). Examples of disruptions (Kanehl and Lyons 1992, 139), Neves et al. (1997, pp. 71–72), and special management actions that would pp. 4–10). Coal mining activities, Watters (2000, pp. 268–269) reviewed minimize or ameliorate these threats resulting in heavy metal-rich drainage, the specific upstream and downstream include: (a) Restoration and protection and associated sedimentation has effects of channelization on freshwater of riparian corridors, (b) implementation adversely affected many drainages with mussels. Channelization affects a stream of best management practices to rabbitsfoot populations (Ortmann 1909 physically (accelerates erosion, minimize erosion (such as State and in Butler 2005, p. 102; Gordon 1991, pp. increases sediment bed load, reduces industry practices for forestry activities), 4 and 5; Layzer and Anderson 1992 in water depth, decreases habitat diversity, (c) stream bank restoration projects, and Butler 2005, p. 102). Numerous mussel creates geomorphic (natural channel (d) private landowner programs to toxicants, such as polycyclic aromatic dimensions) instability, and eliminates promote watershed and soil hydrocarbons and heavy metals (copper, riparian canopy) and biologically conservation. manganese, and zinc) from coal mining,
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contaminate sediments when released (8) Temperature (primary constituent successful reproduction and dispersal, into streams (Ahlstedt and Tuberville elements 3–4). Natural temperature any changes in local fish populations 1997, p. 75). Acid mine runoff may have regimes can be altered by would also affect freshwater mussel local effects on mussel recruitment and impoundments, tailwater releases from populations. Examples of special may lead to mortality due to improper dams, industrial and municipal management actions that would shell development or erosion (Huebner effluents, and changes in riparian minimize or ameliorate these threats and Pynnonen 1990, pp. 2350–2353). habitat. Low temperatures can include: (a) Reduce habitat Examples of special management significantly delay or prevent fragmentation; (b) maintain ecosystem actions that would minimize or metamorphosis in mussels (Watters and function and resiliency; (c) develop and ameliorate these threats include: (a) O’Dee 1999, pp. 454–455). Cold water implement strategies to help our native Remediating soils contaminated with effluent below dams may negatively fish, wildlife, and habitats adapt to a heavy metals (such as Tri-State Mining impact populations; rabbitsfoot were changing climate; and (d) reduce non- Area’s reclamation of contaminated less abundant and in poor condition climate stressors. areas to improve water quality), and (b) below a cold water outflow on the Little The reduction of these threats will partnering with industry to identify River, compared to two other sites require the implementation of special mussel locations to avoid during upstream (Galbraith and Vaughn 2011, management considerations or instream and alluvial sand and gravel p. 198). Low water temperatures caused protections within each of the critical mining operations. by dam releases also may disrupt habitat areas identified in this rule. All (6) Oil and Natural Gas Development seasonal patterns in reproduction critical habitat requires active (primary constituent elements 1–4). (Galbraith and Vaughn 2009, pp. 43–44). management to address some or all of Exploration and extraction of these High temperatures can reduce the ongoing threats listed. Some of these energy resources can result in increased dissolved oxygen concentrations in the activities include, but are not limited to, siltation, a changed hydrograph (graph water, which slows growth, reduces those previously discussed in the showing changes in the discharge of a glycogen stores, impairs respiration, and Summary of Factors Affecting the river over a period of time), and altered may inhibit reproduction (Fuller 1974, Species section in the final listing rule water quantity and quality even at pp. 240–241). Water temperature (78 FR 57076, September 17, 2013). In summary, we find the areas we are considerable distances from the mine or increases have been documented to designating as critical habitat were well field because effects are carried shorten the period of glochidial encystment, reduce righting speed occupied at the time of listing and downstream from the original source. (various reflexes that tend to bring the contain the features essential to the Examples of special management body into normal position in space and conservation of the Neosho mucket and actions that would minimize or resist forces acting to displace it out of rabbitsfoot, and these features may ameliorate these threats include: (a) normal position), and slow burrowing require special management Developing and implementing best and movement responses (Bartsch et al. considerations or protection. Special management practices for oil and 2000, p. 237; Watters et al. 2001, p. 546; management considerations or natural gas development activities (such Schwalb and Pusch 2007, pp. 264–265). protection may be required to eliminate, as Fayetteville Shale located in the Several studies have documented the or to reduce to negligible levels, the upper Little Red River watershed), (b) influence of temperature on the timing threats affecting each unit and to partnering with industry and aspects of mussel reproduction (van preserve and maintain the essential nongovernmental organizations to Snik et al. 2002, p. 156; Allen et al. physical or biological features the restore mussel habitat (such as 2007, p. 85; Steingraeber et al. 2007, pp. critical habitat units provide to the Southwestern Energy’s ECH20 (Energy 303–309). Peak glochidial releases are Neosho mucket and rabbitsfoot. A more Conserving Water) and the Archey Fork associated with water temperature detailed discussion of these threats is Little Red River Restoration Project), (c) thresholds that can be thermal presented in the final listing rule under creating conservation memoranda of minimums or maximums, depending on Summary of Factors Affecting the agreement with industry to conserve the species (Watters and O’Dee 2000, p. Species (78 FR 57076, September 17, mussel habitat (such as Crestwood 136). Examples of special management 2013). Additional discussions of threats Midstream in the upper Little Red River actions that would minimize or facing individual sites are provided in watershed), and (d) developing ameliorate these threats include: (a) the individual unit descriptions. ecologically sustainable flow Increase cold water temperature to requirements for mussels. Criteria Used To Identify Critical optimal range for mussels by Habitat (7) Invasive, nonindigenous species modification to tailwater releases, (b) (primary constituent element 5). improve industrial and municipal water As required by section 4(b)(2) of the Invasive, nonindigenous species, such treatment, and (c) protect and restore Act, we use the best scientific data as zebra mussel, black carp, and Asian riparian habitat. available to designate critical habitat. In clam, have potentially adversely (9) Climate change (primary accordance with the Act and our affected populations of the Neosho constituent elements 2–4). As implementing regulations at 50 CFR mucket and rabbitsfoot and their fish temperature increases due to climate 424.12(b), we review available hosts, and these effects are expected to change throughout the range of Neosho information pertaining to the habitat persist into the future. Examples of mucket and rabbitsfoot, both species requirements of the species and identify special management actions that would may experience population declines as occupied areas at the time of listing that minimize or ameliorate these threats warmer rivers become more suitable for contain the features essential to the include: (a) Implementation of thermally tolerant species. Overall, the conservation of the species. As nonregulatory conservation measures to distribution of fish species is expected discussed above, we are designating control Asian carp and other invasive, to change, including range shifts and critical habitat areas that we have nonindigenous species, and (b) local extirpations (Ficke et al. 2005, pp. determined to be occupied at the time continued State engagement in efforts to 67–69; 2007, pp. 603–605). Because of listing in 2013 and that contain minimize effects of Asian carp (such as freshwater mussels are entirely sufficient elements of physical or eradication) on native fish resources. dependent upon a fish host for biological features to support life-
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history processes essential to the (4) There are no historical records of Federal Regulations may not reflect the conservation of the Neosho mucket and occurrence within the stream reach for exclusion of structures or other the rabbitsfoot. If after identifying areas Neosho mucket, rabbitsfoot, or both. developed areas. Any such areas occupied by the species at the time of (5) While we recognize the inadvertently left inside critical habitat listing, we determine that those areas importance of unoccupied habitat to boundaries shown on the maps of this are inadequate to ensure conservation of recovery of listed species, in this case, final rule have been excluded by text in the species, in accordance with the Act unoccupied habitat does not provide the final rule and are not designated as and our implementing regulations at 50 habitat for reintroduction at this time critical habitat. Therefore, a Federal CFR 424.12(e), we then consider and does not reduce the level of action involving these areas would not whether designating additional areas— stochastic and human-induced threats trigger section 7 consultation with outside those occupied at the time of for the following reasons: respect to critical habitat and the listing—are essential for the (a) Unoccupied habitat does not requirement of no adverse modification conservation of the species. In this rule, currently contain sufficient physical or unless the specific action would affect we are not designating any areas outside biological features or have the ability to the physical or biological features in the the geographic area occupied by the be restored to support life-history adjacent critical habitat. functions of the Neosho mucket and species at the time of listing because The critical habitat designation is occupied areas are sufficient for the rabbitsfoot (such characteristics as geomorphically stable channels, defined by the map or maps, as conservation of the species. modified by any accompanying In this rule, we have defined occupied perennial water flows, adequate water quality, and appropriate benthic regulatory text, presented at the end of habitat for the Neosho mucket as those this document in the rule portion. We stream reaches known to be currently substrates); (b) Unoccupied habitat does not include more detailed information on extant. Extant Neosho mucket support the once diverse mollusk the boundaries of the critical habitat populations are naturally occurring communities, including the presence of designation in the preamble of this populations represented by live or fresh closely related species requiring document. We will make the dead specimens collected since 1985. physical or biological features similar to coordinates, plot points, or both on For the rabbitsfoot, we have defined the Neosho mucket and rabbitsfoot; or which each map is based available to occupied habitat as those stream reaches (c) Unoccupied habitat is not adjacent the public on http:// that are sizeable and small populations to currently occupied areas where there www.regulations.gov at Docket No. as defined by Butler (2005, pp. 88–89), is potential for natural dispersal and FWS–R4–ES–2013–0007 on our Internet and the marginal populations of Fish reoccupation by the Neosho mucket and site http://www.fws.gov/arkansas-es/, Creek and Red River that are the last rabbitsfoot. and at the field office responsible for the extant populations in their respective Based on the above analysis, a total of designation (see FOR FURTHER basins (Great Lakes and Cumberland) 38 units, all of which were occupied at INFORMATION CONTACT, above). and Allegheny River, a metapopulation the time of listing, are being designated (interconnected populations where Three critical habitat units for the based on sufficient elements of physical Neosho mucket and rabbitsfoot are there is gene flow). All other or biological features being present to populations classified as marginal are currently designated as critical habitat support Neosho mucket (7 units) and for the oyster mussel (Epioblasma not considered as occupied habitat. rabbitsfoot (31 units) life-history No unoccupied stream, as defined in capsaeformis; now recognized by the processes. Some units contain all of the scientific community as the Duck River the proposed critical habitat rule (77 FR identified elements of physical or 63440, October 16, 2012), is being dartersnapper (Epioblasma ahlstedti) in biological features and support multiple the Duck River) and Cumberlandian designated as critical habitat for Neosho life-history processes. Some units mucket or rabbitsfoot. We find that combshell (Epioblasma brevidens) contain only some elements of the encompassing the Duck River, unoccupied stream reaches are not physical or biological features necessary essential for the conservation of either Tennessee (74 rkm (46 rmi)) and Bear to support the Neosho mucket’s or Creek, Alabama and Mississippi (40 rkm species for one or more of the following rabbitsfoot’s particular use of that reasons: (25 rmi)) (50 CFR 17.95(f)), and for the habitat. yellowcheek darter (Etheostoma moorei) (1) Unoccupied habitats are isolated When determining critical habitat in the Middle Fork Little Red River, from occupied habitats due to reservoir boundaries within this final rule, we Arkansas (23.2 rkm (14.5 rmi)) (50 CFR construction and dam operations (dam made every effort to avoid including 17.95(e)). The existing critical habitat water releases have altered natural developed areas such as dams, piers, for the oyster mussel and stream hydrology, geomorphology, and bridges, and other structures Cumberlandian combshell completely water temperature, and native mollusk because such areas usually lack physical overlaps the originally proposed Unit and fish communities); or biological features for the species. RF16 (Bear Creek, now Unit RF15), but (2) Unoccupied areas exhibit limited Areas designated as critical habitat for the exact unit descriptions (length) habitat availability, degraded habitat, or the Neosho mucket and rabbitsfoot differ due to mapping refinement since low potential value for management include only stream channels within the the earlier designation. In addition, five (Muskingum, Elk, Scioto, Little Miami, ordinary high-water line and do not critical habitat units being designated Licking, East Fork White, Cumberland, contain manmade structures (such as for the Neosho mucket and rabbitsfoot Holston, Clinch, Sequatchie, and dams, piers and docks, bridges, or other are currently designated by the State of Buffalo (Duck River system) Rivers); similar structures), or areas inundated Kansas as critical habitat for both (3) Collection records for both species by lakes and reservoirs. The ordinary species in the Fall, Spring, Neosho, and indicate that these species have been high-water line defines the stream Verdigris Rivers and for Neosho mucket extirpated from unoccupied areas for channel and is the point on the stream in Shoal Creek (K.S.A. 32–959; Table 1) several decades or more and, in some bank where water is continuous and and are afforded similar State-level cases (such as Cottonwood River), leaves some evidence, such as erosion protections as those provided under the reintroduction efforts have not been or aquatic vegetation. The scale of the Act. successful at re-establishing maps we prepared under the parameters populations; or for publication within the Code of Final Critical Habitat Designation
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TABLE 1—CRITICAL HABITAT AREAS FOR THE NEOSHO MUCKET AND RABBITSFOOT THAT ARE CURRENTLY DESIGNATED AS CRITICAL HABITAT FOR OTHER FEDERALLY AND STATE LISTED SPECIES
Length of Unit (unit #) Species present in unit Federal reference State reference overlap in rkm (rmi)
Shoal Creek (NM3) ...... Neosho mucket, fluted shell, ...... K.S.A. 32–959 ...... 9.7 (6.0) Ouachita kidneyshell, Western fanshell, redspot chub. Spring River (NM4 and RF1) .. Neosho mucket, rabbitsfoot, elktoe, ...... K.S.A. 32–959 ...... 11.6 (7.2) ellipse shell, Neosho madtom, fluted shell, Ouachita kidneyshell, Western fanshell, redspot chub. Fall River (NM6) ...... Neosho mucket, Western fanshell ...... K.S.A. 32–959 ...... 90.4 (56.2) Verdigris River (NM6 and Neosho mucket, rabbitsfoot, ...... K.S.A. 32–959 ...... 80.6 (50.1) RF2). Ouachita kidneyshell, western fanshell, butterfly. Neosho River (NM7 and RF3) Neosho mucket, rabbitsfoot, butterfly, ...... K.S.A. 32–959 ...... 245.9 (152.8) Neosho madtom, Ouachita kidneyshell, western fanshell. Middle Fork Little Red River Yellowcheek darter ...... 50 CFR 17.95(e) ...... 23.3 (14.5) (RF7). Bear Creek (RF15) ...... Oyster mussel (Duck River 50 CFR 17.95(f) ...... 49.7 (30.9) dartersnapper), Cumberlandian combshell. Duck River (RF18) ...... Oyster mussel (Duck River 50 CFR 17.95(f) ...... 74.0 (46.0) dartersnapper), Cumberlandian combshell.
Total ...... 585.2 (363.7)
We are designating seven units, • Unit NM7: Neosho Wildlife Area, unnamed TVA land downstream of totaling approximately 777 rkm (483 6.1 rkm (3.8 rmi); Kentucky Lake Dam, 2.4 rkm (1.5 rmi); rmi), in four States (Arkansas, Kansas, • Unit RF6: Little River NWR, 37.6 • Unit RF20: Massac Forest Nature Missouri, and Oklahoma) as critical rkm (23.5 rmi); Ouachita National Preserve, 2.2 rkm (1.4 rmi); West habitat for the Neosho mucket (Table 2). Forest, 16.1 rkm (10.0 rmi); and Pond Kentucky WMA, 5.6 rkm (3.5 rmi); We are designating 31 units (3 with Creek NWR, 11.4 rkm (7.2 rmi); Ballard WMA, 2.6 rkm (1.6 rmi); and subunits), totaling approximately 2,312 • Unit RF8a: Jacksonport State Park, Chestnut Hills Nature Preserve, 2.4 rkm rkm (1,437 rmi), in 12 States (Alabama, 2.9 rkm (1.8 rmi) and Henry Gray– (1.5 rmi); Arkansas, Illinois, Indiana, Kansas, Hurricane Lake WMA, 7.9 rkm (4.9 rmi); • Unit RF8b: White River NWR, 57.9 • Unit RF21: Mammoth Cave Kentucky, Mississippi, Missouri, Ohio, National Park, 17.0 rkm (10.6 rmi); Oklahoma, Pennsylvania, and rkm (36.0 rmi); Tennessee) as critical habitat for the • Unit RF10: Harold Alexander • Unit RF22: Pennsylvania State rabbitsfoot (Table 2). Four of the 31 WMA, 1.1 rkm (0.7 rmi); Game Land, 277, 2.9 rkm (1.8 rmi) and Unit RF12: Buffalo National River, units (Units NM4, NM7, RF1, and RF3) • Pennsylvania State Game Land 85, 0.6 113.6 rkm (70.6 rmi); are occupied by both Neosho mucket rkm (0.4 rmi); • Unit RF13: Sam A. Baker State Park, and rabbitsfoot. • Unit RF23: Clear Creek State Forest, 1.0 rkm (0.6 rmi) and ACOE’s 9.9 rkm (6.2 rmi); Public lands adjacent to Neosho Wappapello Lake Project, 25.3 rkm (15.7 mucket and rabbitsfoot critical habitat rmi); • Unit RF24: Erie NWR, 16.2 rkm units consist of approximately 469 rkm • Unit RF15: Tishomingo State Park, (10.1 rmi); (291 rmi) of riparian lands in the 6.1 rkm (3.8 rmi); NPS Natchez Trace • Unit RF25: Prophetstown State following units: Parkway, 4.5 rkm (2.8 rmi); and TVA Park, 2.1 rkm (1.3 rmi); • Unit NM1: Ozark National Forest, Pickwick Lake Project, 7.4 rkm (4.6 rmi); • Unit RF26: Muskingum Watershed 20.4 rkm (12.7 rmi); ACOE’s Lake • Unit RF17: Fern Cave NWR, 0.5 rkm Conservancy Land, 5.0 rkm (3.1 rmi); Tenkiller Project, 9.0 rkm (5.6 rmi); and (0.3 rmi); • Unit RF27: Little Darby State Scenic Sparrowhawk Wildlife Management • Unit RF18: Yanahli WMA, 38.9 rkm Waterway–River Lands, 8.7 rkm (5.4 Area (WMA), 2.2 rkm (1.4 rmi); (24.3 rmi) and Santa Fe County Park, 1.4 rmi); rkm (0.9 rmi); • Units NM4 and RF1: Spring River • Unit RF19a: Shiloh National • Unit RF29: Fish Creek Wildlife Wildlife Area, 1.4 rkm (0.9 rmi); Military Park, 2.6 rkm (1.6 rmi); Area, 1.6 rkm (1.0 rmi); and • Unit RF2: ACOE’s Oologah Lake • Unit RF19b: Kentucky Dam Village • Unit RF31: ACOE’s Shenango River Project, 0.6 rkm (0.4 rmi); State Resort Park, 0.6 rkm (0.4 rmi) and Lake Project, 8.8 rkm (5.5 rmi).
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TABLE 2—APPROXIMATE RIVER DISTANCES CURRENTLY OCCUPIED BY NEOSHO MUCKET AND RABBITSFOOT
Approximate river distances currently occupied by the Species species River km River miles
Neosho mucket ...... 776.5 482.5 Rabbitsfoot ...... 2,312.1 1,436.7
Total ...... 3,088.6 1,919.2
Species, Stream (Unit), and State Currently occupied
Neosho mucket: Unit NM1, Illinois River AR, OK ...... 146.1 90.8 Unit NM2, Elk River, MO, OK ...... 20.3 12.6 Unit NM3, Shoal Creek, KS, MO ...... 75.8 47.1 Unit NM4, Spring River, KS, MO ...... 102.3 63.6 Unit NM5, North Fork Spring River, MO ...... 16.4 10.2 Unit NM6, Fall and Verdigris Rivers, KS ...... 171.1 106.3 Unit NM7, Neosho River, KS ...... 244.5 151.9
Total ...... 776.5 482.5 Rabbitsfoot: Unit RF1, Spring River, MO, KS ...... 56.5 35.1 Unit RF2, Verdigris River, OK ...... 38.0 23.6 Unit RF3, Neosho River, KS ...... 26.6 16.5 Unit RF4a, Ouachita River, AR ...... 22.7 14.1 Unit RF4b, Ouachita River, AR ...... 43.0 26.7 Unit RF5, Saline River, AR ...... 119.4 74.2 Unit RF6, Little River, OK, AR ...... 139.7 86.8 Unit RF7, Middle Fork Little Red River, AR ...... 24.8 15.4 Unit RF8a, White River, AR ...... 188.3 117.0 Unit RF8b, White River, AR ...... 68.9 42.8 Unit RF9, Black River, AR ...... 51.2 31.8 Unit RF10, Spring River, AR ...... 51.5 32.0 Unit RF11, Strawberry River, AR ...... 123.8 76.9 Unit RF12, Buffalo River, AR ...... 113.6 70.6 Unit RF13, St. Francis River, MO ...... 64.3 40.0 Unit RF14, Big Sunflower River, MS ...... 51.5 32.0 Unit RF15, Bear Creek, AL, MS ...... 49.7 30.9 Unit RF16, Big Black River, MS ...... 43.3 26.9 Unit RF17, Paint Rock River, AL ...... 81.0 50.3 Unit RF18, Duck River, TN ...... 235.3 146.2 Unit RF19a, Tennessee River, TN ...... 26.7 16.6 Unit RF19b, Tennessee River, KY ...... 35.6 22.1 Unit RF20, Ohio River, KY, IL ...... 45.9 28.5 Unit RF21, Green River, KY ...... 175.6 109.1 Unit RF22, French Creek, PA ...... 120.4 74.8 Unit RF23, Allegheny River, PA ...... 57.3 35.6 Unit RF24, Muddy Creek, PA ...... 20.1 12.5 Unit RF25, Tippecanoe River, IN ...... 75.6 47.0 Unit RF26, Walhonding River, OH ...... 17.5 10.9 Unit RF27, Little Darby Creek, OH ...... 33.3 20.7 Unit RF28, North Fork Vermilion River and Middle Branch North Fork Vermilion River, IL ...... 28.5 17.7 Unit RF29, Fish Creek, OH ...... 7.7 4.8 Unit RF30, Red River, KY, TN ...... 50.2 31.2 Unit RF31, Shenango River, PA ...... 24.8 15.4
Total ...... 2,312.1 1,436.7
These critical habitat units include destruction of terrestrial vegetation; the grants to private parties that included the river channels within the ordinary presence of litter and debris; or other lands below the ordinary high-water high-water line. As defined at 33 CFR appropriate means that consider the mark of some navigable waters that are 329.11, the ordinary high-water mark on characteristics of the surrounding areas. included in this final rule. However, nontidal rivers is the line on the shore States were granted ownership of lands most, if not all, lands beneath the established by the fluctuations of water beneath navigable waters up to the navigable waters included in this final and indicated by physical ordinary high-water line upon achieving rule are owned by the States. Although characteristics, such as a clear, natural Statehood (Pollard v. Hagan, 44 U.S. areas designated as critical habitat for line impressed on the bank; shelving; (3 How.) 212 (1845)). Prior to Statehood, the Neosho mucket and rabbitsfoot changes in the character of soil; the American colonies may have made include only stream channels within the
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ordinary high-water line, riparian lands the Neosho mucket and rabbitsfoot (Illinois River, Oklahoma; 103.0 rkm along the waters adjacent to, but not critical habitat units by private, State, (64.0 rmi)), Unit RF2 (Verdigris River, included in, the critical habitat units are Tribal (jurisdictional, not ownership), or Oklahoma; 38.0 rkm (23.6 rmi)), and either in private ownership, or owned Federal ownership. One Neosho mucket Unit RF6 (Little River, Oklahoma; 41.4 by municipalities, States, or Federal and two rabbitsfoot critical habitat rkm (25.7 rmi)). entities. Table 3 summarizes primary units, respectively, are located within adjacent riparian landowners in each of Tribal jurisdictional areas: Unit NM1
TABLE 3—OWNERSHIP OF RIPARIAN LANDS ADJACENT TO—BUT NOT INCLUDED IN—THE CRITICAL HABITAT UNITS FOR NEOSHO MUCKET AND RABBITSFOOT
Adjacent state & Adjacent tribal * Critical habitat units Adjacent federal local government Adjacent private (subset of rkm (rmi) rkm (rmi) rkm (rmi) Private) rkm (rmi)
Neosho Mucket
Unit NM1: Illinois River ...... 29.4 (18.3) 2.3 (1.4) 114.4 (71.1) 103.0 (64.0) Unit NM2: Elk River ...... 0 0 20.3 (12.6) 0 Unit NM3: Shoal Creek ...... 0 0 75.8 (47.1) 0 Unit NM4: Spring River ...... 0 1.4 (0.9) 100.9 (62.7) 0 Unit NM5: North Fork Spring River ...... 0 0 16.4 (10.2) 0 Unit NM6: Fall and Verdigris Rivers ...... 0 0 171.1 (106.3) 0 Unit NM7: Neosho River ...... 0 6.1 (3.8) 238.3 (148.1) 0
Total ...... 29.4 (18.3) 9.8 (6.1) 737.3 (458.1) 103.0 (64.0)
Rabbitsfoot
Unit RF1: Spring River ...... 0 1.4 (0.9) 55.0 (34.2) 0 Unit RF2: Verdigris River ...... 0.6 (0.4) 0 37.3 (23.2) 37.3 (23.2) Unit RF3: Neosho River ...... 0 0 26.6 (16.5) 0 Unit RF4a: Ouachita River ...... 0 0 22.7 (14.1) 0 Unit RF4b: Ouachita River ...... 0 0 43.0 (26.7) 0 Unit RF5: Saline River ...... 0 0 119.4 (74.2) 0 Unit RF6: Little River ...... 63.9 (39.7) 0 75.8 (47.1) 41.4 (25.7) Unit RF7: Middle Fork Little Red River ...... 0 0 24.8 (15.4) 0 Unit RF8a: White River ...... 0 10.8 (6.7) 177.5 (110.3) 0 Unit RF8b: White River ...... 57.9 (36.0) 0 10.9 (6.8) 0 Unit RF9: Black River ...... 0 0 51.2 (31.8) 0 Unit RF10: Spring River ...... 0 1.1 (0.7) 50.4 (31.3) 0 Unit RF11: Strawberry River ...... 0 0 123.8 (76.9) 0 Unit RF12: Buffalo River ...... 113.6 (70.6) 0 0 0 Unit RF13: St. Francis River ...... 25.2 (15.7) 1.0 (0.6) 38.1 (23.7) 0 Unit RF14: Big Sunflower River ...... 0 0 51.5 (32.0) 0 Unit RF15: Bear Creek ...... 11.9 (7.4) 6.1 (3.8) 31.7 (19.7) 0 Unit RF16: Big Black River ...... 0 0 43.3 (26.9) 0 Unit RF17: Paint Rock River ...... 0.5 (0.3) 0 80.5 (50.0) 0 Unit RF18: Duck River ...... 0 40.5 (25.2) 194.7 (121.0) 0 Unit RF19a: Tennessee River ...... 2.6 (1.6) 0 24.1 (15.0) 0 Unit RF19b: Tennessee River ...... 2.4 (1.5) 0.6 (0.4) 32.5 (20.2) 0 Unit RF20: Ohio River ...... 0 12.9 (8.0) 33.0 (20.5) 0 Unit RF21: Green River ...... 17.0 (10.6) 0 158.5 (98.5) 0 Unit RF22: French Creek ...... 0 3.5 (2.2) 116.8 (72.6) 0 Unit RF23: Allegheny River ...... 0 10.0 (6.2) 47.3 (29.4) 0 Unit RF24: Muddy Creek ...... 16.3 (10.1) 0 3.9 (2.4) 0 Unit RF25: Tippecanoe River ...... 0 2.1 (1.3) 73.5 (45.7) 0 Unit RF26: Walhonding River ...... 0 5.0 (3.1) 12.6 (7.8) 0 Unit RF27: Little Darby Creek ...... 0 8.7 (5.4) 24.6 (15.3) 0 Unit RF28: North Fork Vermilion River and Middle Branch North Fork Vermilion River ...... 0 0 28.5 (17.7) 0 Unit RF29: Fish Creek ...... 0 1.6 (1.0) 6.1 (3.8) 0 Unit RF30: Red River ...... 0 0 50.2 (31.2) 0 Unit RF31: Shenango River ...... 8.8 (5.5) 0 15.9 (9.9) 0
Total ...... 320.7 (199.4) 105.3 (65.5) 1,885.8 82.7 (48.9)
(1,171.8) Total for both species ...... 350.1 (217.7) 115.1 (71.6) 2,623.1 185.7 (112.9) (1,629.9) Note: Distances may not sum due to rounding. * Tribal Jurisdictional Area only, does not represent riparian land ownership by any tribe and is a subset of the private lands category.
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We present brief descriptions of all quality from activities that would or some components of all four physical units, including the upstream and release sediments or nutrients into the or biological features and contains all downstream boundaries of each stream water, such as urban development and five primary constituent elements. The reach, and reasons why they meet the associated construction projects, physical or biological features in this definition of critical habitat for the livestock grazing, confined animal unit may require special management Neosho mucket and rabbitsfoot. operations (turkey and chicken), timber considerations or protection to address harvesting, and mining. All the riparian Neosho Mucket changes to the same activities as lands adjacent to, but not included in, discussed in Unit NM2, above. All Unit NM1: Illinois River—Benton and this unit are in private ownership (Table riparian lands adjacent to, but not Washington Counties, Arkansas; and 3). included in, this unit are in private Adair, Cherokee, and Delaware Unit NM3: Shoal Creek—Cherokee ownership (Table 3). Counties, Oklahoma County, Kansas; and Newton County, Unit NM6: Fall River—Elk, Greenwood, Unit NM1 includes 146.1 rkm (90.8 Missouri and Wilson Counties, Kansas; Verdigris rmi) of the Illinois River from the Unit NM3 includes approximately Muddy Fork Illinois River confluence River—Montgomery and Wilson 75.8 rkm (47.1 rmi) of Shoal Creek from Counties, Kansas with the Illinois River south of Savoy, Missouri Highway W near Ritchey, Washington County, Arkansas, Newton County, Missouri, to Empire Unit NM6 includes a total of 171.1 downstream to the Baron Creek Lake where inundation begins in rkm (106.3 rmi), including 90.4 rkm confluence southeast of Tahlequah, Cherokee County, Kansas. This unit (56.2 rmi) of the Fall River from Fall Cherokee County, Oklahoma. This unit contains all or some components of all River Lake dam northwest of Fall River, contains all or some components of all four physical or biological features and Greenwood County, Kansas, four physical or biological features and contains all five primary constituent downstream to its confluence with the contains primary constituent elements elements. The physical or biological Verdigris River near Neodesha, Wilson 2, 3, 4, and 5. The physical or biological features in this unit may require special features in this unit may require special County, Kansas. Unit NM6 also includes management considerations or 80.6 rkm (50.1 rmi) of the Verdigris management considerations or protection to address changes to the protection to address changes in stream River from Kansas Highway 39 near same activities as discussed in Unit Benedict, Wilson County, Kansas channel stability associated with urban NM2, above, and releases of chemical development and clearing of riparian downstream to the Elk River confluence contaminants from industrial and near Independence, Montgomery areas due to land use conversion in the municipal effluents (77 FR 63440, see County, Kansas. This unit contains all watershed; alteration of water chemistry Factor A). All riparian lands adjacent to, or some components of all four physical or water and sediment quality; and but not included in, this unit are in or biological features and contains all changes in stream bed material private ownership (Table 3). composition and quality from activities five primary constituent elements. The that would release sediments or Unit NM4: Spring River—Jasper and physical or biological features in this nutrients into the water, such as urban Lawrence Counties, Missouri; and unit may require special management development and associated Cherokee County, Kansas considerations or protection to address construction projects, livestock grazing, Unit NM4 includes 102.3 rkm (63.6 changes to the same activities as confined animal operations, and timber rmi) of the Spring River from Missouri discussed in Unit NM2, above. All harvesting. The majority of the riparian Highway 97 north of Stotts City, riparian lands adjacent to, but not lands adjacent to, but not included in, Lawrence County, Missouri, included in, this unit are in private this unit are in private ownership or downstream to the confluence of Turkey ownership (Table 3). private lands under tribal jurisdiction Creek north of Empire, Cherokee (Table 3). County, Kansas. This unit contains all Unit NM7: Neosho River—Allen, or some components of all four physical Cherokee, Coffey, Labette, Neosho, and Unit NM2: Elk River—McDonald Woodson Counties, Kansas County, Missouri; and Delaware County, or biological features and contains all Oklahoma five primary constituent elements. The Unit NM7 includes 244.5 rkm (151.9 physical or biological features in this rmi) of the Neosho River from Kansas Unit NM2 includes a total of 20.3 rkm unit may require special management (12.6 rmi) of the Elk River from Missouri Highway 58 west of LeRoy, Coffey considerations or protection to address County, Kansas, downstream to the Highway 59 at Noel, McDonald County, changes to the same activities as Kansas and Oklahoma State line, Missouri, to the confluence of Buffalo discussed in Unit NM2, above, and Cherokee County, Kansas. This unit Creek immediately downstream of the releases of chemical contaminants from contains all or some components of all Oklahoma and Missouri State line, industrial and municipal effluents. four physical or biological features and Delaware County, Oklahoma. This unit Almost all (99 percent) of the riparian contains all five primary constituent contains all or some components of all lands adjacent to, but not included in, four physical or biological features and this unit are in private ownership (Table elements. The physical or biological contains all five primary constituent 3). features in this unit may require special elements. The primary biological or management considerations or physical features in this unit may Unit NM5: North Fork Spring River— protection to address changes to the require special management Jasper County, Missouri same activities as discussed in Unit considerations or protection to address Unit NM5 includes 16.4 rkm (10.2 NM2, above, and releases of chemical changes in the existing flow regime due rmi) of the North Fork Spring River from contaminants from industrial and to such activities as impoundment, the confluence of Buck Branch municipal effluents and tail water water diversion, or water withdrawal; southwest of Jasper, Missouri, releases downstream of John Redmond alteration of water chemistry or water downstream to its confluence with the Reservoir. All riparian lands adjacent to, quality; and changes in stream bed Spring River near Purcell, Jasper but not included in, this unit are in material composition and sediment County, Missouri. This unit contains all private ownership (Table 3).
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Rabbitsfoot existing flow regime due to such considerations or protection to address The physical or biological features in activities as impoundment, tail water changes described above. All the units RF1 through RF31 may require releases from Oologah Lake dam, and riparian lands adjacent to, but not special management considerations to channelization associated with the included in, this unit are in private address changes in the existing flow McClellan-Kerr Arkansas River ownership (Table 3). Navigation System. The majority of the regime due to such activities as Unit RF5: Saline River—Ashley, riparian lands adjacent to, but not impoundment, water diversion, or water Bradley, Cleveland, and Drew Counties, included in, this unit are in private withdrawal; alteration of water Arkansas ownership or private lands under tribal chemistry or water quality; and changes jurisdiction (Table 3). Unit RF5 includes 119.4 rkm (74.2 in stream bed material composition and rmi) of the Saline River from Frazier sediment quality from activities that Unit RF3: Neosho River—Allen County, Creek confluence near Mount Elba, would release sediments or nutrients Kansas Cleveland County, Arkansas, to the Mill into the water, such as urban Unit RF3 includes 26.6 rkm (16.5 rmi) Creek confluence near Stillions, Ashley development and associated of the Neosho River from the Deer Creek and Bradley Counties, Arkansas. This construction projects, livestock grazing, confluence northwest of Iola, Kansas, unit contains all or some components of confined animal operations (turkey and downstream to the confluence of Owl all four physical or biological features chicken), timber harvesting, and mining, Creek southwest of Humboldt, Allen and contains all five primary and releases of chemical contaminants County, Kansas. This unit contains all constituent elements. The physical or from industrial and municipal effluents. or some components of all four physical biological features in this unit may Where there are other activities in or biological features and contains all require special management individual units requiring special five primary constituent elements. The considerations or protection to address management considerations, they are set physical or biological features in this changes described above. All the forth in the individual unit descriptions. unit may require special management riparian lands adjacent to, but not Unit RF1: Spring River—Jasper County, considerations or protection to address included in, this unit are in private Missouri; and Cherokee County, Kansas changes described above except for ownership (Table 3). releases of chemical contaminants from Unit RF6: Little River—McCurtain Unit RF1 includes 56.5 rkm (35.1 rmi) industrial and municipal effluents. County, Oklahoma; and Little River and of the Spring River from Missouri Approximately 97 percent of the Sevier Counties, Arkansas Highway 96 at Carthage, Jasper County, riparian lands adjacent to, but not Missouri, downstream to the confluence included in, this unit are in private Unit RF6 includes 139.7 rkm (86.8 of Turkey Creek north of Empire, ownership and the remaining lands in rmi) of the Little River from the Glover Cherokee County, Kansas. This unit State or local ownership (Table 3). River confluence northwest of Idabel, contains all or some components of all McCurtain County, Oklahoma, four physical or biological features and Unit RF4a: Ouachita River—Clark and downstream to U.S. Highway 71 north contains all five primary constituent Hot Spring Counties, Arkansas of Wilton, Little River and Sevier elements. The physical or biological Unit RF4a includes 22.7 rkm (14.1 Counties, Arkansas. This unit contains features in this unit may require special rmi) of the Ouachita River from the all or some components of all four management considerations or Tenmile Creek confluence north of physical or biological features and protection described above. The Donaldson downstream to the Caddo contains all five primary constituent majority of the riparian lands adjacent River confluence near Caddo Valley, elements. The physical or biological to, but not included in, this unit are in Hot Spring and Clark Counties, features in this unit may require special private ownership or private lands Arkansas. This unit contains all or some management considerations or under tribal jurisdiction (Table 3). components of all four physical or protection to address changes described Unit RF2: Verdigris River—Rogers biological features and contains all five above. Riparian lands adjacent to, but County, Oklahoma primary constituent elements. The not included in, this unit are in private physical or biological features in this ownership (42 percent), Federal (35 Unit RF2 includes 38.0 rkm (23.6 rmi) unit may require special management percent), and private land under tribal of the Verdigris River from Oologah considerations or protection to address jurisdiction (23 percent) (Table 3). Lake dam north of Claremore, changes described above. Unit RF7: Middle Fork Little Red Oklahoma, downstream to Oklahoma Approximately 82 percent of the River—Cleburne and Van Buren Highway 266 northwest of Catoosa, riparian lands adjacent to, but not Counties, Arkansas Rogers County, Oklahoma. This unit included in, this unit are in private contains all or some components of all ownership and the remaining 18 percent Unit RF7 includes 24.8 rkm (15.4 rmi) four physical or biological features and are in Federal ownership (Table 3). of the Middle Fork Little Red River from in part, contains primary constituent the confluence of Little Tick Creek north elements 3, 4, and 5. It is possible that Unit RF4b: Ouachita River—Ouachita of Shirley, Arkansas, downstream to primary constituent elements 1 and 2 County, Arkansas Greers Ferry Reservoir (where are limiting factors for rabbitsfoot Unit RF4b includes 43.0 rkm (26.7 inundation begins), Van Buren County, distribution and abundance from rmi) of the Ouachita River from the Arkansas. This unit contains all or some Oologah Lake dam downstream to the Little Missouri River confluence components of all four physical or confluence of the Caney River; thus we downstream to U.S. Highway 79 at biological features and contains all five are unable to determine at this time Camden, Ouachita County, Arkansas. primary constituent elements. The whether this reach contains primary This unit contains all or some physical or biological features in this constituent elements 1 and 2. The components of all four physical or unit may require special management physical or biological features in this biological features and contains all five considerations or protection to address unit may require special management primary constituent elements. The changes described above and natural gas considerations or protection as physical or biological features in this development and hillside rock described above and changes in the unit may require special management harvesting. All riparian lands adjacent
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to, but not included in, this unit are in White River upstream of Newport, lands adjacent to, but not included in, private ownership (Table 3). Arkansas, to support natural gas this unit are in private ownership (Table development needs; natural gas 3). Unit RF8a: White River—Independence, development; and channelization. Jackson, White, and Woodruff Counties, Unit RF12: Buffalo River—Marion, Approximately 84 percent of the Arkansas Newton, and Searcy Counties, Arkansas riparian lands adjacent to, but not Unit RF8a includes 188.3 rkm (117.0 included in, this unit are in Federal Unit RF12 includes 113.6 rkm (70.6 rmi) of the White River from the ownership and 16 percent are in private rmi) of the Buffalo River from the Cove Batesville Dam at Batesville, ownership (Table 3). Creek confluence southeast of Erbie, Independence County, Arkansas, Newton County, Arkansas, downstream downstream to the Little Red River Unit RF9: Black River—Lawrence and to U.S. Highway 65 west of Gilbert, confluence north of Georgetown, White, Randolph Counties, Arkansas Searcy County, Arkansas and Arkansas and Woodruff Counties, Arkansas. This Unit RF9 includes 51.2 rkm (31.8 rmi) Highway 14 southeast of Mull, unit contains all or some components of of the Black River from U.S. Highway 67 Arkansas, downstream to the all four physical or biological features at Pocahontas, Randolph County, Leatherwood Creek confluence in the and contains primary constituent Arkansas, downstream to the Flat Creek Lower Buffalo Wilderness Area, elements 2, 3, 4, and 5. The ACOE confluence southeast of Powhatan, Arkansas. This unit contains all or some maintains a navigation channel, which Lawrence County, Arkansas. This unit components of all four physical or involves routine dredging and snag contains all or some components of all biological features and contains all five removal, from Newport, Arkansas, to its four physical or biological features and primary constituent elements. The confluence with the Mississippi River. contains all five primary constituent physical or biological features in this The physical or biological features in elements. The physical or biological unit may require special management this unit may require special features in this unit may require special considerations or protection to address management considerations or management considerations or changes described above. All riparian protection described above except for protection to address changes described lands adjacent to, but not included in, releases of chemical contaminants from above and including row crop this unit are in Federal ownership industrial and municipal effluents and agriculture. All riparian lands adjacent (Table 3). including tail water releases from a to, but not included in, this unit are in Unit RF13: St. Francis River—Madison series of reservoirs on the upper White private ownership (Table 3). and Wayne Counties, Missouri River; row crop agriculture; increasing Unit RF10: Spring River—Lawrence, demand for instream sand from the Unit RF13 includes 64.3 rkm (40.0 White River upstream of Newport, Randolph, and Sharp Counties, rmi) of the St. Francis River from the Arkansas, to support natural gas Arkansas Twelvemile Creek confluence west of development needs; natural gas Unit RF10 includes 51.5 rkm (32.0 Saco, Madison County, Missouri, development; and channelization. rmi) of the Spring River from the Ott downstream to Lake Wappepello (where Riparian lands adjacent to, but not Creek confluence southwest of Hardy in inundation begins), Wayne County, included in, this unit are in private Sharp County, Arkansas, downstream to Missouri. This unit contains all or some ownership (94 percent) and State and its confluence with the Black River east components of all four physical or local ownership (6 percent) (Table 3). of Black Rock, Lawrence and Randolph biological features and contains all five Counties, Arkansas. This unit contains primary constituent elements. The Unit RF8b: White River—Arkansas and all or some components of all four physical or biological features in this Monroe Counties, Arkansas physical or biological features and unit may require special management There are no records of rabbitsfoot contains all five primary constituent considerations or protection to address from the 160-rkm (100-rmi) reach elements. The physical or biological changes described above. Riparian lands separating Unit RF8a from Unit RF8b features in this unit may require special adjacent to, but not included in, this (Butler 2005, p. 66). Unit RF8b includes management considerations or unit are in private (59 percent), Federal 68.9 rkm (42.8 rmi) of the White River protection to address changes described (39 percent), and less than 2 percent in from U.S. Highway 79 at Clarendon, above. All riparian lands adjacent to, State or local ownership (Table 3). Monroe County, Arkansas, downstream but not included in, this unit are in Unit RF14: Big Sunflower River— to Arkansas Highway 1 near St. Charles, private ownership (Table 3). Arkansas County, Arkansas. This unit Sunflower County, Mississippi contains all or some components of all Unit RF11: Strawberry River— Unit RF14 includes 51.5 rkm (32.0 four physical or biological features and Independence, Izard, Lawrence, and rmi) of the Big Sunflower River from contains primary constituent elements Sharp Counties, Arkansas Mississippi Highway 442 west of 2, 3, 4, and 5. The ACOE maintains a Unit RF11 includes 123.8 rkm (76.9 Doddsville, Mississippi, downstream to navigation channel, which involves rmi) of the Strawberry River from the Quiver River confluence east of routine dredging and snag removal, Arkansas Highway 56 south of Indianola, Sunflower County, from Newport, Arkansas, to its Horseshoe Bend, Izard County, Mississippi. This unit contains all or confluence with the Mississippi River. Arkansas, downstream to its confluence some components of all four physical or The physical or biological features in with the Black River southeast of biological features and contains all five this unit may require special Strawberry, Lawrence County, primary constituent elements. The management considerations or Arkansas. This unit contains all or some physical or biological features in this protection described above except for components of all four physical or unit may require special management releases of chemical contaminants from biological features and contains all five considerations or protection to address industrial and municipal effluents and primary constituent elements. The changes described above and row crop including tail water releases from a physical or biological features in this agriculture and channelization. All series of reservoirs on the upper White unit may require special management riparian lands adjacent to, but not River; row crop agriculture; increasing considerations or protection to address included in, this unit are in private demand for instream sand from the changes described above. All riparian ownership (Table 3).
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Unit RF15: Bear Creek—Tishomingo Hope, Madison and Marshall Counties, Unit RF19b: Tennessee River— County, Mississippi; and Colbert Alabama. This unit contains all or some Livingston, Marshall, and McCracken County, Alabama components of all four physical or Counties, Kentucky Unit RF15 includes 49.7 rkm (30.9 biological features and contains all five Unit RF19b includes 35.6 rkm (22.1 rmi) of Bear Creek from the Alabama primary constituent elements. The rmi) of the Tennessee River from and Mississippi State line east of physical or biological features in this Kentucky Lake Dam downstream to its Golden, Tishomingo County, unit may require special management confluence with the Ohio River, Mississippi, downstream to Alabama considerations or protection to address McCracken and Livingston Counties, County Road 4 southwest of Sutton Hill, changes described above as well as row Kentucky. This unit contains all or some Colbert County, Alabama (just upstream crop agriculture and channelization. components of all four physical or of Pickwick Lake). Unit RF15 in its Approximately 99 percent of the biological features, and in part, contains entirety is currently designated as riparian lands adjacent to, but not all five primary constituent elements. critical habitat for the oyster mussel included in, this unit are in private The physical or biological features in (Duck River dartersnapper) and ownership and 1 percent is in Federal this unit may require special Cumberlandian combshell. Unit RF15 ownership (Table 3). management considerations or contains all or some components of all Unit RF18: Duck River—Hickman, protection to address changes described four physical or biological features, Humphreys, Marshall, Maury, and Perry above. Approximately 93 percent of the except in the Bear Creek Floodway, Counties, Tennessee riparian lands adjacent to, but not which has been channelized for flood included in, this unit are in private control and only contains components Unit RF18 includes 235.3 rkm (146.2 ownership, 7 percent are in Federal of physical or biological features rmi) of the Duck River from Lillard Mill ownership, and less than 1 percent is in associated with the species’ nutritional (rkm 288; rmi 179) west of Tennessee State or local ownership (Table 3). or physiological requirements and Highway 272, Marshall County, Unit RF20: Ohio River—Ballard and contains all five primary constituent Tennessee, downstream to Interstate 40 McCracken Counties, Kentucky; Massac elements, except in the Bear Creek near Bucksnort, Hickman County, and Pulaski Counties, Illinois Floodway, which has been channelized Tennessee. Seventy-four rkm (46 rmi) in for flood control and only contains Unit RF18 from rkm 214 (rmi 133) Unit RF20 includes 45.9 rkm (28.5 primary constituent elements 3, 4, and upstream to Lillards Mill at rkm 288 rmi) of the Ohio River from the 5. The physical or biological features in (rmi 179) is currently designated as Tennessee River confluence at the this unit may require special critical habitat for the oyster mussel and downstream extent of Owens Island management considerations or Cumberlandian combshell (50 CFR downstream to Lock and Dam 53 near protection to address changes described 17.95(f)). Unit RF18 contains all or some Olmstead, Illinois. This unit contains all above. Riparian lands adjacent to, but components of all four physical or or some components of all four physical not included in, this unit are in private biological features and contains all five or biological features, and in part, (64 percent), Federal (24 percent), and primary constituent elements. The contains all five primary constituent 12 percent in State or local ownership physical or biological features in this elements. The physical or biological (Table 3). unit may require special management features in this unit may require special considerations or protection to address management considerations or Unit RF16: Big Black River—Hinds and protection to address changes described Warren Counties, Mississippi changes described above as well as row crop agriculture and channelization. above, as well as row crop agriculture, Unit RF16 includes 43.3 rkm (26.9 Approximately 83 percent of the channelization, and channel stability rmi) of Big Black River from Porter riparian lands adjacent to, but not associated with tail water releases. Creek confluence west of Lynchburg, included in, this unit are in private Approximately 72 percent of the Hinds County, Mississippi, downstream ownership and 17 percent are in State riparian lands adjacent to, but not to Mississippi Highway 27 west of or local ownership (Table 3). included in, this unit are in private Newman, Warren County, Mississippi. ownership and 28 percent are in State This unit contains all or some Unit RF19a: Tennessee River—Hardin or local ownership (Table 3). components of all four physical or County, Tennessee Unit RF21: Green River—Edmonson, biological features and contains all five Green, Hart, and Taylor Counties, primary constituent elements. The Unit RF19a includes 26.7 rkm (16.6 Kentucky physical or biological features in this rmi) of Tennessee River from Pickwick unit may require special management Lake Dam downstream to U.S. Highway Unit RF21 includes 175.6 rkm (109.1 considerations or protection to address 64 near Adamsville, Hardin County, rmi) of the Green River from Green changes described above, as well as row Tennessee. This unit contains all or River Lake Dam south of crop agriculture and channelization. All some components of all four physical or Campbellsville, Taylor County, riparian lands adjacent to, but not biological features and contains primary Kentucky, downstream to Mammoth included in, this unit are in private constituent elements 1, 3, 4, and 5. The Cave National Park North Entrance Road ownership (Table 3). physical or biological features in this in Mammoth Cave National Park, unit may require special management Kentucky. This unit contains all or some Unit RF17: Paint Rock River—Jackson, considerations or protection to address components of all four physical or Madison, and Marshall Counties, changes described above as well as row biological features, and in part, contains Alabama crop agriculture, channelization, and all five primary constituent elements. Unit RF17 includes 81.0 rkm (50.3 channel stability associated with tail Releases from Green River Lake dam rmi) of the Paint Rock River from the water releases. Approximately 90 have altered hydrologic flows and convergence of Estill Fork and percent of the riparian lands adjacent to, temperature regimes in the tail water Hurricane Creek north of Skyline, but not included in, this unit are in reach (Butler 2005, p. 39). The physical Jackson County, Alabama, downstream private ownership and 10 percent are in or biological features in this unit may to U.S. Highway 431 south of New State or local ownership (Table 3). require special management
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considerations or protection to address channelization. Approximately 83 Approximately 83 percent of the changes described above and row crop percent of the riparian lands adjacent to, riparian lands adjacent to, but not agriculture, channelization, and channel but not included in, this unit are in included in, this unit are in private stability associated with tail water private ownership and 17 percent are in ownership and 17 percent are in State releases. Approximately 90 percent of State or local ownership (Table 3). or local ownership (Table 3). the riparian lands adjacent to, but not Unit RF24: Muddy Creek—Crawford Unit RF27: Little Darby Creek—Madison included in, this unit are in private County, Pennsylvani and Union Counties, Ohio ownership and 10 percent are in Federal ownership (Table 3). Unit RF24 includes 20.1 rkm (12.5 Unit RF27 includes 33.3 rkm (20.7 rmi) of Muddy Creek from Pennsylvania rmi) of Little Darby Creek from Ohio Unit RF22: French Creek—Crawford, Highway 77 near Little Cooley, Highway 161 near Chuckery, Union Erie, Mercer, and Venango Counties, Crawford County, Pennsylvania, County, Ohio, downstream to U.S. Pennsylvania downstream to its confluence with Highway 40 near West Jefferson, Unit RF22 includes 120.4 rkm (74.8 French Creek east of Cambridge Springs, Madison County, Ohio. This unit rmi) of French Creek from Union City Crawford County, Pennsylvania. This contains all or some components of all Reservoir Dam northeast of Union City, unit contains all or some components of four physical or biological features and Erie County, Pennsylvania, downstream all four physical or biological features contains all five primary constituent to its confluence with the Allegheny and contains all five primary elements. The physical or biological River near Franklin, Venango County, constituent elements. The physical or features in this unit may require special Pennsylvania. The Allegheny River biological features in this unit may management considerations or rabbitsfoot population (Unit RF23) is require special management protection to address changes described likely a single metapopulation with the considerations or protection to address above and row crop agriculture. All French Creek population (Unit RF22) changes described above and oil and gas riparian lands adjacent to, but not (Butler 2005, p. 31). This unit contains development. Approximately 81 percent included in, this unit are in private all or some components of all four of the riparian lands adjacent to, but not ownership (Table 3). physical or biological features and included in, this unit are in Federal Unit RF28: North Fork Vermilion River contains all five primary constituent ownership and 19 percent are in private and Middle Branch North Fork elements. The physical or biological ownership (Table 3). Vermilion River, respectively, features in this unit may require special Unit RF25: Tippecanoe River—Carroll, Vermilion County, Illinois management considerations or Pulaski, Tippecanoe, and White protection to address changes described Unit RF28 includes a total of 28.5 rkm above as well as row crop agriculture Counties, Indiana (17.7 rmi). Unit RF28 includes 21.2 rkm and oil and gas development. Unit RF25 includes 75.6 rkm (47.0 (13.2 rmi) of the North Fork Vermilion Approximately 97 percent of the rmi) of the Tippecanoe River from River from the confluence of Middle riparian lands adjacent to, but not Indiana Highway 14 near Winamac, Branch North Fork Vermilion River included in, this unit are in private Pulaski County, Indiana, downstream to downstream to Illinois Highway 1 and ownership and 3 percent are in Federal its confluence with the Wabash River U.S. Highway 136 upstream of Lake ownership (Table 3). northeast of Battle Ground, Tippecanoe Vermilion, Vermilion County, Illinois. County, Indiana, excluding Lakes Shafer Unit RF28 also includes 7.2 rkm (4.5 Unit RF23: Allegheny River—Venango and Freeman and the stream reach rmi) of the Middle Branch North Fork County, Pennsylvania between the two lakes. This unit Vermilion River from the Jordan Creek Unit RF23 includes 57.3 rkm (35.6 contains all or some components of all confluence northwest of Alvin, Illinois, rmi) of the Allegheny River from the four physical or biological features and downstream to its confluence with French Creek confluence near Franklin, contains all five primary constituent North Fork Vermilion River west of Venango County, Pennsylvania, elements. The physical or biological Alvin, Vermilion County, Illinois. The downstream to Interstate 80 near features in this unit may require special rabbitsfoot in the North Fork Vermilion Emlenton, Venango County, management considerations or River is considered a metapopulation Pennsylvania. The lower Allegheny protection to address changes described with the Middle Branch North Fork River and French Creek (Unit RF22) above. Approximately 97 percent of the Vermilion River population (Butler populations likely represent a single riparian lands adjacent to, but not 2005, p. 47). This unit contains all or metapopulation because no barriers included in, this unit are in private some components of all four physical or exist between the streams (Butler 2005, ownership and 3 percent are in State or biological features, including p. 29). This unit contains all or some local ownership (Table 3). connectivity between North Fork components of all four physical or Vermilion River and Middle Branch Unit RF26: Walhonding River— biological features and likely functions North Fork Vermilion River. This unit Coshocton County, Ohio as a metapopulation to French Creek contains all five primary constituent (Unit RF22). This unit contains primary Unit RF26 includes 17.5 rkm (10.9 elements. The physical or biological constituent elements 1, 3, 4, and 5 for rmi) of the Walhonding River from the features in this unit may require special the rabbitsfoot. A series of nine locks convergence of the Kokosing and management considerations or and dams and Kinzua Dam constructed Mohican Rivers downstream to Ohio protection to address changes described over the past century has resulted in Highway 60 near Warsaw, Coshocton above and channelization and row crop altered hydrologic flow regimes in the County, Ohio. This unit contains all or agriculture. All riparian lands adjacent Allegheny River (Butler 2005, p. 29). some components of all four physical or to, but not included in, this unit are in The physical or biological features in biological features and contains all five private ownership (Table 3). this unit may require special primary constituent elements. The management considerations or physical or biological features in this Unit RF29: Fish Creek—Williams protection to address changes described unit may require special management County, Ohio above as well as row crop agriculture, considerations or protection to address Unit RF29 includes 7.7 rkm (4.8 rmi) oil and gas development, and changes described above. of Fish Creek from the Indiana and Ohio
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State line northwest of Edgerton, Ohio, Effects of Critical Habitat Designation (1) A concurrence letter for Federal downstream to its confluence with the actions that may affect, but are not Section 7 Consultation St. Joseph’s River north of Edgerton, likely to adversely affect, listed species Williams County, Ohio. This unit Section 7(a)(2) of the Act requires or critical habitat; or contains all or some components of all Federal agencies, including the Service, (2) A biological opinion for Federal four physical or biological features and to ensure that any action they fund, actions that may affect and are likely to sustains genetic diversity and historical authorize, or carry out is not likely to adversely affect, listed species or critical distribution as the only remaining jeopardize the continued existence of habitat. rabbitsfoot population in the Great any endangered species or threatened When we issue a biological opinion Lakes sub-basin. This unit contains all species or result in the destruction or concluding that a project is likely to five primary constituent elements. The adverse modification of designated jeopardize the continued existence of a physical or biological features in this critical habitat of such species. In listed species and/or destroy or unit may require special management addition, section 7(a)(4) of the Act adversely modify critical habitat, we considerations or protection to address requires Federal agencies to confer with provide reasonable and prudent changes described above as well as row the Service on any agency action which alternatives to the project, if any are crop agriculture and confined animal is likely to jeopardize the continued identifiable, that would avoid the operations (hogs). Approximately 90 existence of any species proposed to be likelihood of jeopardy and/or percent of the riparian lands adjacent to, listed under the Act or result in the destruction or adverse modification of but not included in, this unit are in destruction or adverse modification of critical habitat. We define ‘‘reasonable private ownership and 10 percent are in proposed critical habitat. and prudent alternatives’’ (at 50 CFR State or local ownership (Table 3). Decisions by the 5th and 9th Circuit 402.02) as alternative actions identified during consultation that: Unit RF30: Red River—Logan County, Courts of Appeals have invalidated our (1) Can be implemented in a manner Kentucky; and Montgomery and regulatory definition of ‘‘destruction or consistent with the intended purpose of Robertson Counties, Tennessee adverse modification’’ (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. the action, Unit RF30 includes 50.2 rkm (31.2 Fish and Wildlife Service, 378 F. 3d (2) Can be implemented consistent rmi) of the Red River from the South 1059 (9th Cir. 2004) and Sierra Club v. with the scope of the Federal agency’s Fork Red River confluence west of U.S. Fish and Wildlife Service, 245 F.3d legal authority and jurisdiction, Adairville, Kentucky, downstream to (3) Are economically and 434 (5th Cir. 2001)), and we do not rely the Sulphur Fork confluence southwest technologically feasible, and on this regulatory definition when of Adams, Tennessee. This unit contains (4) Would, in the Director’s opinion, analyzing whether an action is likely to all or some components of all four avoid the likelihood of jeopardizing the destroy or adversely modify critical physical or biological features and continued existence of the listed species habitat. Under the provisions of the Act, sustains genetic diversity and historical and/or avoid the likelihood of we determine destruction or adverse distribution as the largest of two destroying or adversely modifying modification on the basis of whether, remaining rabbitsfoot populations critical habitat. within the Cumberland River basin. with implementation of the proposed Reasonable and prudent alternatives This unit contains all five primary Federal action, the effected critical can vary from slight project constituent elements. The physical or habitat would continue to serve its modifications to extensive redesign or biological features in this unit may intended conservation role for the relocation of the project. Costs require special management species. associated with implementing a considerations or protection to address If a Federal action may affect a listed reasonable and prudent alternative are changes described above as well as row species or its critical habitat, the similarly variable. crop agriculture and channelization. All responsible Federal agency (action Regulations at 50 CFR 402.16 require riparian lands adjacent to, but not agency) must enter into consultation Federal agencies to reinitiate included in, this unit are in private with us. Examples of actions that are consultation on previously reviewed ownership (Table 3). subject to the section 7 consultation actions in instances where we have process are actions on State, tribal, listed a new species or subsequently Unit RF31: Shenango River—Mercer local, or private lands that require a designated critical habitat that may be County, Pennsylvania Federal permit (such as a permit from affected and the Federal agency has Unit RF31 includes 24.8 rkm (15.4 the ACOE under section 404 of the retained discretionary involvement or rmi) of the Shenango River from Porter Clean Water Act (33 U.S.C. 1251 et seq.) control over the action (or the agency’s Road near Greenville, Pennsylvania, or a permit from the Service under discretionary involvement or control is downstream to the point of inundation section 10 of the Act) or that involve authorized by law). Consequently, by Shenango River Lake near Big Bend, some other Federal action (such as Federal agencies sometimes may need to Mercer County, Pennsylvania. This unit funding from the Federal Highway request reinitiation of consultation with contains all or some components of all Administration, Federal Aviation us on actions for which formal four physical or biological features and Administration, or the Federal consultation has been completed, if contains all five primary constituent Emergency Management Agency). those actions with discretionary elements. The physical or biological Federal actions not affecting listed involvement or control may affect features in this unit may require special species or critical habitat, and actions subsequently listed species or management considerations or on State, tribal, local, or private lands designated critical habitat. protections to address changes that are not federally funded or described above as well consumptive authorized, do not require section 7 Application of the ‘‘Adverse water uses. Approximately 54 percent of consultation. Modification’’ Standard the riparian lands adjacent to, but not As a result of section 7 consultation, The key factor related to the adverse included in, this unit are in Federal we document compliance with the modification determination is whether, ownership and 46 percent are in private requirements of section 7(a)(2) through with implementation of the proposed ownership (Table 3). our issuance of: Federal action, the affected critical
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habitat would continue to serve its cumulative adverse effects to the species data available, that the failure to intended conservation role for the and their life cycles. designate such area as critical habitat species. Activities that may destroy or (4) Actions that would significantly will result in the extinction of the adversely modify critical habitat are alter stream bed material composition species. In making that determination, those that alter the physical or and quality by increasing sediment the statute on its face, as well as the biological features to an extent that deposition or filamentous algal growth. legislative history, are clear that the appreciably reduces the conservation Such activities may include, but are not Secretary has broad discretion regarding value of critical habitat for Neosho limited to, construction projects, gravel which factor(s) to use and how much mucket and the rabbitsfoot. As and sand mining, oil and gas weight to give to any factor. discussed above, the role of critical development, livestock grazing, timber Consideration of Economic Impacts habitat is to support life-history needs of harvest, off-road vehicle use, and other the species and provide for the watershed and floodplain disturbances Under section 4(b)(2) of the Act, we conservation of the species. that release sediments or contaminants consider the economic impacts of Section 4(b)(8) of the Act requires us into the water. These activities could specifying any particular area as critical to briefly evaluate and describe, in any eliminate or reduce habitats necessary habitat. In order to consider economic proposed or final regulation that for the survival, growth, and impacts of the proposed designation, we designates critical habitat, activities reproduction of these mollusks or their prepared a DEA (Industrial Economics involving a Federal action that may fish hosts or both by causing excessive Incorporated (IEc) 2012). The DEA, destroy or adversely modify such sedimentation and burial of Neosho dated February 6, 2013, was made habitat, or that may be affected by such mucket and rabbitsfoot or their habitats, available for public review from May 9, designation. sublethal effects from sediment 2013, through June 10, 2013 (78 FR Activities that may affect critical exposure that are not readily apparent, 27171), from August 27, 2013, through habitat, when carried out, funded, or acute and chronic exposure to chemical October 28, 2013 (78 FR 52894), and authorized by a Federal agency, should contaminants resulting in sublethal and from May 14, 2014, to July 14, 2014 (79 result in consultation for the Neosho lethal effects, and nutrification leading FR 27547). Following the close of the mucket and rabbitsfoot. These activities to excessive filamentous algal growth. last comment period, an FEA was include, but are not limited to: Excessive filamentous algal growth can developed, taking into consideration the (1) Actions that would alter the cause reduced nighttime dissolved public comments and any new geomorphology of their stream and river oxygen levels and prevent mussel information (IEc 2013, entire). By habitats. Such activities may include, glochidia from settling into stream analyzing economic impacts of the but are not limited to, instream sediments. proposed designation, which differs excavation or dredging, impoundment, from the final designation, the FEA does channelization, sand and gravel mining, Exemptions not capture the exact incremental clearing riparian vegetation, and impacts of the final designation. Application of Section 4(a)(3) of the Act discharge of fill materials. These Therefore, a final summary activities could cause aggradation or Section 4(a)(3)(B)(i) of the Act (16 memorandum has been prepared degradation of the channel bed U.S.C. 1533(a)(3)(B)(i)) provides that: describing our revised forecast elevation or significant bank erosion, ‘‘The Secretary shall not designate as calculations (IEc 2014a and 2014b, result in entrainment or burial of these critical habitat any lands or other entire). mollusks, and cause other direct or geographical areas owned or controlled The intent of the FEA is to quantify cumulative adverse effects to these by the Department of Defense, or the economic impacts of all potential species and their life cycles. designated for its use, that are subject to conservation efforts for Neosho mucket (2) Actions that would significantly an integrated natural resources and rabbitsfoot; some of these costs will alter the existing flow regime where management plan (INRMP) prepared likely be incurred regardless of whether these species occur. Such activities may under section 101 of the Sikes Act (16 we designate critical habitat (baseline). include, but are not limited to, U.S.C. 670a), if the Secretary determines The economic impact of the proposed impoundment, channelization, urban in writing that such plan provides a critical habitat designation is analyzed development, water diversion, water benefit to the species for which critical by comparing scenarios both ‘‘with withdrawal, and tail water releases habitat is proposed for designation.’’ critical habitat’’ and ‘‘without critical downstream of dams. These activities There are no Department of Defense habitat.’’ The ‘‘without critical habitat’’ could eliminate or reduce the habitat lands with a completed INRMP within scenario represents the baseline for the necessary for growth and reproduction the critical habitat designation. analysis, considering protections of these mollusks and their life cycles already in place for the species (for Consideration of Impacts Under Section including fish hosts. example, under the Federal listing and (3) Actions that would significantly 4(b)(2) of the Act other Federal, State, and local alter water chemistry or water quality Section 4(b)(2) of the Act states that regulations). The baseline, therefore, (for example, temperature, pH, the Secretary must designate and make represents the costs incurred regardless contaminants, conductivity, and excess revisions to critical habitat on the basis of whether critical habitat is designated. nutrients). Such activities may include, of the best available scientific data after The ‘‘with critical habitat’’ scenario but are not limited to, tail water releases taking into consideration the economic describes the incremental impacts downstream of dams, or the release of impact, national security impact, and associated specifically with the chemicals, biological pollutants, or any other relevant impact of specifying proposed designation of critical habitat heated effluents into surface water or any particular area as critical habitat. for the species. The incremental connected groundwater at a point The Secretary may exclude an area from conservation efforts and associated source or by dispersed release (nonpoint critical habitat if she determines that the impacts are those not expected to occur source). These activities could alter benefits of such exclusion outweigh the absent the designation of critical habitat water conditions that are beyond the benefits of specifying such area as part for the species. In other words, the tolerances of these mussels or their fish of the critical habitat, unless she incremental costs are those attributable hosts or both, and result in direct or determines, based on the best scientific solely to the designation of critical
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habitat above and beyond the baseline will likely be limited to additional impact might exist. In preparing this costs; these are the costs we consider in administrative costs to the Service, final rule, we have determined that no the final designation of critical habitat. Federal agencies, and third parties. This lands within the designated critical The analysis looks retrospectively at result is attributed to the following key habitat for the Neosho mucket and baseline impacts incurred since the findings: (1) Baseline protections exist rabbitsfoot are owned or managed by the species was listed, and forecasts both for Neosho mucket and rabbitsfoot, and Department of Defense or Department of baseline and incremental impacts likely (2) all designated critical habitat is Homeland Security, and, therefore, we to occur with the designation of critical occupied by at least one of the two anticipate no impact on national habitat. mussel species. security or homeland security. The FEA also addresses how potential In total, the incremental impacts to all Consequently, the Secretary is not economic impacts are likely to be economic activities are estimated to be exercising her discretion to exclude any distributed, including an assessment of $4,400,000 over the 20-year timeframe, areas from this final designation based any local or regional impacts of habitat or $290,000 on an annualized basis on impacts on national security or conservation and the potential effects of (assuming a 7 percent discount rate) for homeland security. conservation activities on government the proposed critical habitat. Units RF2 agencies, private businesses, and (Verdigris River) and NM1 (Illinois Exclusions Based on Other Relevant individuals. The FEA measures lost River) are expected to generate the Impacts economic efficiency associated with largest incremental impacts, due to Under section 4(b)(2) of the Act, we residential and commercial section 7 consultations expected to consider any other relevant impacts development and public projects and occur in all categories within these resulting from the designation of critical activities, such as economic impacts on units. The majority of incremental habitat. We consider a number of water management and transportation impacts across all units are related to factors, including whether the projects, Federal lands, small entities, transportation and utilities, followed by landowners have developed any HCPs and the energy industry. timber, agriculture, and grazing. or other management plans for the area, Decisionmakers can use this Incremental costs associated with or whether there are conservation information to assess whether the effects transportation are estimated to be partnerships that would be encouraged of the proposed designation might $1,400,000 over the 20-year timeframe; by designation of, or exclusion from, unduly burden a particular group or $960,000 is associated with timber, critical habitat. In addition, we look at economic sector. Finally, the FEA looks agriculture, and grazing over the 20-year any tribal issues, and consider the retrospectively at costs that occurred timeframe. government-to-government relationship between the publication of the final Incremental conservation costs of of the United States with tribal entities. listing rule and the final rule avoiding impacts to mussels and their We also consider any social impacts that designating critical habitat, and habitat will vary depending on a variety might occur because of the designation. considers those costs that may occur in of factors, including, but not limited to, In preparing this final rule, we have the 20 years following the designation of location, size, and type of project being determined that there are currently no critical habitat, which was determined proposed, as well as the extent to which permitted HCPs or other approved to be the appropriate period for analysis mussels occur in the project area. These management plans for Neosho mucket because limited planning information include the costs for mussel surveys, and rabbitsfoot, and the final was available for most activities to relocation, monitoring and reporting, designation includes only tribal forecast activity levels for projects mussel propagation and population jurisdictional areas, not lands managed beyond a 20-year timeframe. The FEA augmentation, best management by any Tribe or trust resources. We quantifies economic impacts of Neosho practices for erosion and sedimentation anticipate no effect to tribal lands, mucket and rabbitsfoot conservation controls, timing restrictions, and partnerships, or HCPs from this critical efforts associated with the following limiting project scope, or in-stream habitat designation. Accordingly, the categories of activity: work. Secretary is not exercising her (1) Water flow management; Exclusions Based on Economic Impacts discretion to exclude any areas from this (2) Water quality management; final designation based on other (3) Timber, agriculture, and grazing; Our economic analysis did not relevant impacts. (4) Mining; identify any disproportionate costs that (5) Oil and gas; are likely to result from the designation. Required Determinations (6) Transportation and utilities; Consequently, the Secretary is not Regulatory Planning and Review (7) Development and recreation; and exercising her discretion to exclude any (Executive Orders 12866 and 13563) (8) Other activities (such as animal areas from this designation of critical and biological control, prescribed burns, habitat for the Neosho mucket and Executive Order 12866 provides that land clearing, habitat or shoreline rabbitsfoot based on economic impacts. the Office of Information and Regulatory restoration, among others). A copy of the FEA with supporting Affairs (OIRA) will review all significant Baseline protections for the Neosho documents may be obtained by rules. The Office of Information and mucket and rabbitsfoot address a broad contacting the Arkansas Ecological Regulatory Affairs has determined that range of threats within a significant Services Field Office (see ADDRESSES, this rule is not significant. portion of the critical habitat area. The above) or by downloading from the Executive Order 13563 reaffirms the key conclusion for the incremental Internet at http://www.regulations.gov. principles of E.O. 12866 while calling analysis is that critical habitat for improvements in the nation’s designation is not expected to generate Exclusions Based on National Security regulatory system to promote additional requests for conservation Impacts predictability, to reduce uncertainty, efforts in any of the proposed critical Under section 4(b)(2) of the Act, we and to use the best, most innovative, habitat units. All critical habitat units consider whether there are lands owned and least burdensome tools for are occupied by at least one of the two or managed by the Department of achieving regulatory ends. The mussel species. In addition, incremental Defense or Department of Homeland executive order directs agencies to economic impacts of the designation Security where a national security consider regulatory approaches that
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reduce burdens and maintain flexibility small business firm’s business potential for critical habitat to affect and freedom of choice for the public operations. utilities through the additional cost of where these approaches are relevant, The Service’s current understanding considering adverse modification in feasible, and consistent with regulatory of the requirements under the RFA, as section 7 consultation. Critical habitat objectives. E.O. 13563 emphasizes amended, and following recent court designation for the mussels is further that regulations must be based decisions, is that Federal agencies are anticipated to affect oil and gas on the best available science and that only required to evaluate the potential activities. The Service does not the rulemaking process must allow for incremental impacts of rulemaking on anticipate consulting with the Federal public participation and an open those entities directly regulated by the Energy Regulatory Commission on exchange of ideas. We have developed rulemaking itself, and therefore, not hydropower operations as a result of the this rule in a manner consistent with required to evaluate the potential designation. Impacts to oil and gas these requirements. impacts to indirectly regulated entities. development are limited to the The regulatory mechanism through administrative costs of consultation, Regulatory Flexibility Act (5 U.S.C. 601 which critical habitat protections are and, therefore, reductions in oil and et seq.) realized is section 7 of the Act, which natural gas production are not Under the Regulatory Flexibility Act requires Federal agencies, in anticipated. This analysis projects (RFA; 5 U.S.C. 601 et seq.), as amended consultation with the Service, to ensure approximately 14 actions each year on by the Small Business Regulatory that any action authorized, funded, or oil and gas related activities, totaling Enforcement Fairness Act (SBREFA) of carried by the agency is not likely to approximately $7,000 per year. The 1996 (5 U.S.C 801 et seq.), whenever an destroy or adversely modify critical magnitude of these consultation costs is agency is required to publish a notice of habitat. Therefore, under section 7 only not anticipated to increase the cost of rulemaking for any proposed or final Federal action agencies are directly energy production or distribution in the rule, it must prepare and make available subject to the specific regulatory United States in excess of one percent. for public comment a regulatory requirement (avoiding destruction and The economic analysis finds that flexibility analysis that describes the adverse modification) imposed by none of the nine outcomes is relevant to effects of the rule on small entities critical habitat designation. this analysis. Thus, based on (small businesses, small organizations, Consequently, it is our position that information in the economic analysis, and small government jurisdictions). only Federal action agencies will be energy-related impacts associated with However, no regulatory flexibility directly regulated by this designation. Neosho mucket and rabbitsfoot analysis is required if the head of an There is no requirement under RFA to conservation activities within critical agency certifies the rule will not have a evaluate the potential impacts to entities habitat are not expected. As such, the significant economic impact on a not directly regulated. Moreover, designation of critical habitat is not substantial number of small entities. Federal agencies are not small entities. expected to significantly affect energy Therefore, because no small entities are supplies, distribution, or use. Therefore, The SBREFA amended the RFA to directly regulated by this rulemaking, this action is not a significant energy require Federal agencies to provide a the Service certifies that this final action, and no Statement of Energy certification statement of the factual critical habitat designation will not have Effects is required. basis for certifying that the rule will not a significant economic impact on a have a significant economic impact on Unfunded Mandates Reform Act (2 substantial number of small entities. a substantial number of small entities. During the development of this final U.S.C. 1501 et seq.) According to the Small Business rule, we reviewed and evaluated all In accordance with the Unfunded Administration, small entities include information submitted during the Mandates Reform Act (2 U.S.C. 1501 et small organizations, such as comment period that may pertain to our seq.), we make the following findings: independent nonprofit organizations; consideration of the probable (1) This rule will not produce a small governmental jurisdictions, incremental economic impacts of this Federal mandate. In general, a Federal including school boards and city and critical habitat designation. Based on mandate is a provision in legislation, town governments that serve fewer than this information, we affirm our statute, or regulation that would impose 50,000 residents; as well as small certification that this final critical an enforceable duty upon State, local, or businesses. Small businesses include habitat designation will not have a tribal governments, or the private sector, manufacturing and mining concerns significant economic impact on a and includes both ‘‘Federal with fewer than 500 employees, substantial number of small entities, intergovernmental mandates’’ and wholesale trade entities with fewer than and a regulatory flexibility analysis is ‘‘Federal private sector mandates.’’ 100 employees, retail and service not required. These terms are defined in 2 U.S.C. businesses with less than $5 million in 658(5)–(7). ‘‘Federal intergovernmental annual sales, general and heavy Energy Supply, Distribution, or Use— mandate’’ includes a regulation that construction businesses with less than Executive Order 13211 ‘‘would impose an enforceable duty $27.5 million in annual business, Executive Order 13211 (Actions upon State, local, or tribal governments’’ special trade contractors doing less than Concerning Regulations That with two exceptions. It excludes ‘‘a $11.5 million in annual business, and Significantly Affect Energy Supply, condition of Federal assistance.’’ It also agricultural businesses with annual Distribution, or Use) requires agencies excludes ‘‘a duty arising from sales less than $750,000. To determine to prepare Statements of Energy Effects participation in a voluntary Federal if potential economic impacts on these when undertaking certain actions. OMB program,’’ unless the regulation ‘‘relates small entities are significant, we has provided guidance for to a then-existing Federal program consider the types of activities that implementing this Executive Order that under which $500,000,000 or more is might trigger regulatory impacts under outlines nine outcomes that may provided annually to State, local, and this rule, as well as the types of project constitute ‘‘a significant adverse effect’’ tribal governments under entitlement modifications that may result. In when compared to not taking the authority,’’ if the provision would general, the term ‘‘significant economic regulatory action under consideration. ‘‘increase the stringency of conditions of impact’’ is meant to apply to a typical Appendix A of the FEA discusses the assistance’’ or ‘‘place caps upon, or
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otherwise decrease, the Federal expected to significantly affect small Illinois, Ohio, Oklahoma, and Government’s responsibility to provide government entities. Consequently, we Pennsylvania and have addressed them funding,’’ and the State, local, or tribal do not believe that the critical habitat in the Summary of Comments and governments ‘‘lack authority’’ to adjust designation will significantly or Recommendations and Summary of accordingly. At the time of enactment, uniquely affect small government Changes from Proposed Rule sections of these entitlement programs were: entities. As such, a Small Government this rule. From a federalism perspective, Medicaid; Aid to Families with Agency Plan is not required. the designation of critical habitat Dependent Children work programs; directly affects only the responsibilities Takings—Executive Order 12630 Child Nutrition; Food Stamps; Social of Federal agencies. The Act imposes no Services Block Grants; Vocational In accordance with Executive Order other duties with respect to critical Rehabilitation State Grants; Foster Care, 12630 (‘‘Government Actions and habitat, either for States and local Adoption Assistance, and Independent Interference with Constitutionally governments, or for anyone else. As a Living; Family Support Welfare Protected Private Property Rights’’), we result, this rule does not have Services; and Child Support have analyzed the potential takings substantial direct effects either on the Enforcement. ‘‘Federal private sector implications of designating critical States, or on the relationship between mandate’’ includes a regulation that habitat for Neosho mucket and the national government and the States, ‘‘would impose an enforceable duty rabbitsfoot in a takings implications or on the distribution of powers and upon the private sector, except (i) a assessment. As discussed above, the responsibilities among the various condition of Federal assistance or (ii) a designation of critical habitat affects levels of government. The designation duty arising from participation in a only Federal actions. Although private may have some benefit to these voluntary Federal program.’’ parties that receive Federal funding, governments because the areas that The designation of critical habitat assistance, or require approval or contain the features essential to the does not impose a legally binding duty authorization from a Federal agency for conservation of the species are more on non-Federal Government entities or an action may be indirectly impacted by clearly defined, and the physical or private parties. Under the Act, the only the designation of critical habitat, the biological features of the habitat regulatory effect is that Federal agencies legally binding duty to avoid necessary to the conservation of the must ensure that their actions do not destruction or adverse modification of species are specifically identified. This destroy or adversely modify critical critical habitat rests squarely on the information does not alter where and habitat under section 7. While non- Federal agency. what federally sponsored activities may Federal entities that receive Federal The majority of the designation occurs occur. However, it may assist local funding, assistance, or permits, or that in navigable waterways whose stream governments in long-range planning otherwise require approval or bottoms are owned by the States. (because these local governments no authorization from a Federal agency for Impacts of this designation could occur longer have to wait for case-by-case an action, may be indirectly impacted on non-Federal riparian lands adjacent section 7 consultations to occur). by the designation of critical habitat, the to, but not included in, the critical Where State and local governments legally binding duty to avoid habitat designation where there is require approval or authorization from a destruction or adverse modification of Federal involvement (such as Federal Federal agency for actions that may critical habitat rests squarely on the funding or permitting) subject to section affect critical habitat, consultation Federal agency. Furthermore, to the 7 of the Act, or where a decision on a under section 7(a)(2) would be required. extent that non-Federal entities are proposed action on federally owned While non-Federal entities that receive indirectly impacted because they land could affect economic activity on Federal funding, assistance, or permits, receive Federal assistance or participate adjoining non-Federal land. However, in or that otherwise require approval or in a voluntary Federal aid program, the general, we believe that the takings authorization from a Federal agency for Unfunded Mandates Reform Act would implications associated with this critical an action, may be indirectly impacted not apply, nor would critical habitat habitat designation will be insignificant. by the designation of critical habitat, the shift the costs of the large entitlement Based on the best available information, legally binding duty to avoid programs listed above onto State the takings implications assessment destruction or adverse modification of governments. concludes that this designation of critical habitat rests squarely on the (2) We do not believe that this rule critical habitat for the Neosho mucket Federal agency. will significantly or uniquely affect and rabbitsfoot does not pose significant Civil Justice Reform—Executive Order small governments because it would not takings implications. produce a Federal mandate of $100 12988 Federalism—Executive Order 13132 million or greater in any year; that is, it In accordance with Executive Order is not a ‘‘significant regulatory action’’ In accordance with Executive Order 12988 (Civil Justice Reform), the Office under the Unfunded Mandates Reform 13132 (Federalism), this rule does not of the Solicitor has determined that the Act. Small governments will be affected have significant Federalism effects. A rule does not unduly burden the judicial only to the extent that any programs Federalism summary impact statement system and that it meets the applicable having Federal funds, permits, or other is not required. In keeping with standards set forth in sections 3(a) and authorized activities must ensure that Department of the Interior and 3(b)(2) of the Order. We are designating their actions will not adversely affect Department of Commerce policy, we critical habitat in accordance with the the critical habitat. The FEA concludes requested information from, and provisions of the Act. To assist the incremental impacts may occur due to coordinated development of, this public in understanding the habitat administrative costs of section 7 critical habitat designation with needs of the species, the rule identifies consultations for activities related to appropriate State resource agencies in the elements of physical or biological water flow management; water quality; Alabama, Arkansas, Illinois, Indiana, features essential to the conservation of timber, agriculture, and grazing; mining; Kansas, Kentucky, Mississippi, the Neosho mucket and rabbitsfoot. The oil and gas; transportation and utilities; Missouri, Ohio, Oklahoma, designated areas of critical habitat are development and recreation; and other Pennsylvania, and Tennessee. We presented on maps, and the rule activities; however, these are not received comments from Kansas, provides several options for the
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interested public to obtain more visiting the office Web site at http:// our responsibilities to work directly detailed location information, if desired. www.fws.gov/arkansas-es/. with tribes in developing programs for The final environmental assessment healthy ecosystems, to acknowledge that Paperwork Reduction Act of 1995 (44 included a detailed analysis of the tribal lands are not subject to the same U.S.C. 3501 et seq.) potential effects of the proposed critical controls as Federal public lands, to This rule does not contain any new habitat designation on resource remain sensitive to Indian culture, and collections of information that require categories, including: to make information available to tribes. (1) Water flow management; We determined that there are no tribal approval by OMB under the Paperwork (2) Water quality management; Reduction Act of 1995 (44 U.S.C. 3501 lands occupied by the Neosho mucket (3) Timber, agriculture, and grazing; and rabbitsfoot at the time of listing that et seq.). This rule will not impose (4) Mining; contain the physical or biological recordkeeping or reporting requirements (5) Oil and gas; on State or local governments, (6) Transportation and utilities; features essential to conservation of the individuals, businesses, or (7) Development and recreation; and species, and no tribal lands unoccupied organizations. An agency may not (8) Other activities (such as animal by the Neosho mucket and rabbitsfoot conduct or sponsor, and a person is not and biological control, prescribed burns, that are essential for the conservation of required to respond to, a collection of land clearing, habitat or shoreline the species. Therefore, we are not information unless it displays a restoration, among others, designating critical habitat for the currently valid OMB control number. environmental justice, and cumulative Neosho mucket and rabbitsfoot on tribal effects). lands. National Environmental Policy Act The scope of the effects were References Cited (NEPA) (42 U.S.C. 4321 et seq.) primarily limited to those activities involving Federal actions, because A complete list of all references cited It is our position that, outside the is available on the Internet at http:// jurisdiction of the U.S. Court of Appeals critical habitat designation does not have any impact on the environment www.regulations.gov and upon request for the Tenth Circuit, we do not need to from the Arkansas Ecological Services prepare environmental analyses other than through the Act’s section 7 Field Office (see FOR FURTHER pursuant to NEPA in connection with consultation process conducted for INFORMATION CONTACT). designating critical habitat under the Federal actions. Private actions that Act. We published a notice outlining have no Federal involvement are not Authors our reasons for this determination in the affected by critical habitat designation. Based on the review and evaluation of The primary authors of this Federal Register on October 25, 1983 the information contained in the rulemaking are the staff members of the (48 FR 49244). This position was upheld environmental assessment, we Arkansas Ecological Services Field by the U.S. Court of Appeals for the determined that the designation of Office. Ninth Circuit (Douglas County v. critical habitat for the Neosho mucket Babbitt, 48 F.3d 1495 (9th Cir. 1995), List of Subjects in 50 CFR Part 17 and rabbitsfoot does not constitute a cert. denied 516 U.S. 1042 (1996)). major Federal action having a Endangered and threatened species, However, when the range of the species significant impact on the human Exports, Imports, Reporting and includes States within the Tenth environment under the meaning of recordkeeping requirements, Circuit, such as that of Neosho mucket section 102(2)(c) of NEPA, and so an Transportation. and rabbitsfoot, under the Tenth Circuit environmental impact statement is not ruling in Catron County Board of Regulation Promulgation required. Commissioners v. U.S. Fish and Wildlife Accordingly, we amend part 17, Service, 75 F.3d 1429 (10th Cir. 1996), Government-to-Government subchapter B of chapter I, title 50 of the we undertake a NEPA analysis for Relationship With Tribes Code of Federal Regulations, as set forth critical habitat designation and notify In accordance with the President’s below: the public of the availability of the draft memorandum of April 29, 1994 environmental assessment for a (Government-to-Government Relations PART 17—[AMENDED] proposal when it is finished. with Native American Tribal ■ We performed this NEPA analysis and Governments; 59 FR 22951), Executive 1. The authority citation for part 17 made the draft environmental Order 13175 (Consultation and continues to read as follows: assessment available for public Coordination With Indian Tribal Authority: 16 U.S.C. 1361–1407; 1531– comment on May 9, 2013 (78 FR 27171), Governments), and the Department of 1544; 4201–4245, unless otherwise noted. August 27, 2013 (78 FR 52894), and May the Interior’s manual at 512 DM 2, we ■ 2. Amend § 17.11(h) by revising the 14, 2014 (79 FR 27547). The final readily acknowledge our responsibility entries for ‘‘Mucket, Neosho’’ and environmental assessment has been to communicate meaningfully with ‘‘Rabbitsfoot’’ under CLAMS in the List completed and is available with the recognized Federal Tribes on a of Endangered and Threatened Wildlife publication of this final rule. You may government-to-government basis. In to read as follows: obtain a copy of the final environmental accordance with Secretarial Order 3206 assessment online at http:// of June 5, 1997 (American Indian Tribal § 17.11 Endangered and threatened www.regulations.gov, by mail from the Rights, Federal-Tribal Trust wildlife. Arkansas Ecological Services Field Responsibilities, and the Endangered * * * * * Office (see ADDRESSES, above), or by Species Act), we readily acknowledge (h) * * *
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Species Vertebrate popu- Historic range lation where endan- Status When listed Critical habi- Special Common name Scientific name gered or threatened tat rules
******* CLAMS
******* Mucket, Neosho ...... Lampsilis U.S.A. (AR, KS, NA ...... E 816 17.95(f) NA rafinesqueana. MO, OK).
******* Rabbitsfoot ...... Quadrula cylindrica U.S.A. (AL, AR, GA, NA ...... T 816 17.95(f) NA cylindrica. IN, IL, KS, KY, LA, MO, MS, OH, OK, PA, TN, WV).
*******
* * * * * and mid-channel island habitats that (3) Critical habitat does not include ■ 3. In § 17.95, amend paragraph (f) by provide flow refuges consisting of gravel manmade structures (such as dams, adding entries for ‘‘Neosho Mucket and sand substrates with low to piers and docks, bridges, or other (Lampsilis rafinesqueana)’’ and moderate amounts of fine sediment and similar structures) within the legal ‘‘Rabbitsfoot (Quadrula cylindrica attached filamentous algae). boundaries on June 1, 2015. (ii) A hydrologic flow regime (the cylindrica)’’, immediately following the (4) Critical habitat map units. Data entry for ‘‘Slabside Pearlymussel severity, frequency, duration, and seasonality of discharge over time) layers defining map units were (Pleuronaia dolabelloides),’’ to read as developed using ESRI ArcGIS mapping follows: necessary to maintain benthic habitats where the species are found and to software along with various spatial data § 17.95 Critical habitat—fish and wildlife. maintain connectivity of rivers with the layers. Critical habitat unit upstream * * * * * floodplain, allowing the exchange of and downstream limits were delineated (f) Clams and Snails. nutrients and sediment for maintenance at the nearest road crossing or stream * * * * * of the mussel’s and fish host’s habitat, confluence of each occupied reach. Data food availability, spawning habitat for layers defining map units were created Neosho Mucket (Lampsilis native fishes, and the ability for newly with U.S. Geological Survey National rafinesqueana) transformed juveniles to settle and Hydrography Dataset (NHD) Medium (1) Critical habitat units are depicted become established in their habitats. Flowline data. ArcGIS was also used to for the Neosho mucket on the maps (iii) Water and sediment quality calculate river kilometers (rkm) and below in the following Counties: (including, but not limited to, river miles (rmi) from the NHD dataset, (i) Benton and Washington Counties, conductivity, hardness, turbidity, and it was used to determine longitude Arkansas; temperature, pH, ammonia, heavy and latitude coordinates in decimal (ii) Allen, Cherokee, Coffey, Elk, metals, and chemical constituents) degrees. The projection used in Greenwood, Labette, Montgomery, necessary to sustain natural mapping and calculating distances and Neosho, Wilson, and Woodson physiological processes for normal locations within the units was North Counties, Kansas; behavior, growth, and viability of all life American Albers Equal Area Conic, (iii) Jasper, Lawrence, McDonald, and stages. NAD 83. The maps in this entry, as (iv) The occurrence of natural fish Newton Counties, Missouri; and modified by any accompanying (iv) Adair, Cherokee, and Delaware assemblages, reflected by fish species regulatory text, establish the boundaries Counties, Oklahoma. richness, relative abundance, and (2) Within these areas, the primary community composition, for each of the critical habitat designation. The constituent elements of the physical or inhabited river or creek that will serve coordinates, plot points, or both on biological features essential to the as an indication of appropriate presence which each map is based are available conservation of the Neosho mucket and abundance of fish hosts necessary to the public at the Service’s Internet consist of five components: for recruitment of the Neosho mucket. site (http://www.fws.gov/arkansas-es/te_ (i) Geomorphically stable river Suitable fish hosts for Neosho mucket listing.html), the Federal eRulemaking channels and banks (channels that glochidia include smallmouth bass Portal (http://www.regulations.gov at maintain lateral dimensions, (Micropterus dolomieu), largemouth Docket No. FWS–R4–ES–2013–0007), longitudinal profiles, and sinuosity bass (Micropterus salmoides), and and at the field office responsible for patterns over time without an aggrading spotted bass (Micropterus punctulatus). this designation. You may obtain field or degrading bed elevation) with (v) Competitive or predaceous office location information by habitats that support a diversity of invasive (nonnative) species in contacting one of the Service regional freshwater mussel and native fish (such quantities low enough to have minimal offices, the addresses of which are listed as stable riffles, sometimes with runs, effect on survival of freshwater mussels. at 50 CFR 2.2.
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(5) Note: Index map of all critical habitat units for the Neosho mucket follows:
(6) Unit NM1: Illinois River—Benton (i) General Description: Unit NM1 Washington County, Arkansas, and Washington Counties, Arkansas; includes 146.1 rkm (90.8 rmi) of the downstream to the Baron Creek and Adair, Cherokee, and Delaware Illinois River from the Muddy Fork confluence southeast of Tahlequah, Counties, Oklahoma. Illinois River confluence south of Savoy, Cherokee County, Oklahoma.
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(ii) Map of Unit NM1 follows:
(7) Unit NM2: Elk River—McDonald River from Missouri Highway 59 at Oklahoma and Missouri State line, County, Missouri; and Delaware County, Noel, McDonald County, Missouri, to Delaware County, Oklahoma. Oklahoma. the confluence of Buffalo Creek (i) General Description: Unit NM2 immediately downstream of the includes 20.3 rkm (12.6 rmi) of the Elk
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(ii) Map of Unit NM2 follows:
(8) Unit NM3: Shoal Creek—Cherokee (i) General Description: Unit NM3 Empire Lake where inundation begins County, Kansas; and Newton County, includes 75.8 rkm (47.1 rmi) of Shoal in Cherokee County, Kansas. Missouri. Creek from Missouri Highway W near Ritchey, Newton County, Missouri, to
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(ii) Map of Unit NM3 follows:
(9) Unit NM4: Spring River—Jasper (i) General Description: Unit NM4 Missouri, downstream to the confluence and Lawrence Counties, Missouri; and includes 102.3 rkm (63.6 rmi) of the of Turkey Creek north of Empire, Cherokee County, Kansas. Spring River from Missouri Highway 97 Cherokee County, Kansas. north of Stotts City, Lawrence County,
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(ii) Map of Unit NM4 follows:
(10) Unit NM5: North Fork Spring North Fork Spring River from the confluence with the Spring River near River—Jasper County, Missouri. confluence of Buck Branch southwest of Purcell, Jasper County, Missouri. (i) General Description: Unit NM5 Jasper, Missouri, downstream to its includes 16.4 rkm (10.2 rmi) of the
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(ii) Map of Unit NM5 follows:
(11) Unit NM6: Fall River—Elk, River from Fall River Lake dam Highway 39 near Benedict, Wilson Greenwood, and Wilson Counties, northwest of Fall River, Greenwood County, Kansas, downstream to the Elk Kansas; Verdigris River—Montgomery County, Kansas, downstream to its River confluence near Independence, and Wilson Counties, Kansas. confluence with the Verdigris River near Montgomery County, Kansas. (i) General Description: Unit NM6 Neodesha, Wilson County, Kansas. Unit includes a total of 171.1 rkm (106.3 rmi) NM6 also includes 80.6 rkm (50.1 rmi) including 90.4 rkm (56.2 rmi) of the Fall of the Verdigris River from Kansas
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(ii) Map of Unit NM6 follows:
(12) Unit NM7: Neosho River—Allen, (i) General Description: Unit NM7 downstream to the Kansas and Cherokee, Coffey, Labette, Neosho, and includes 244.5 rkm (151.9 rmi) of the Oklahoma State line, Cherokee County, Woodson Counties, Kansas. Neosho River from Kansas Highway 58 Kansas. west of LeRoy, Coffey County, Kansas,
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(ii) Map of Unit NM7 follows:
Rabbitsfoot (Quadrula cylindrica Sevier, Sharp, Van Buren, White, and (viii) Jasper, Madison, and Wayne cylindrica) Woodruff Counties, Arkansas; Counties, Missouri; (iii) Massac, Pulaski, and Vermilion (ix) Coshocton, Madison, Union, and (1) Critical habitat units are depicted Counties, Illinois; Williams Counties, Ohio; for rabbitsfoot on the maps below in the (iv) Carroll, Pulaski, Tippecanoe, and (x) McCurtain and Rogers Counties, following Counties: White Counties, Indiana; Oklahoma; (i) Colbert, Jackson, Madison, and (v) Allen and Cherokee Counties, (xi) Crawford, Erie, Mercer, and Marshall Counties, Alabama; Kansas; Venango Counties, Pennsylvania; and (vi) Ballard, Edmonson, Green, Hart, (xii) Hardin, Hickman, Humphreys, (ii) Arkansas, Ashley, Bradley, Clark, Livingston, Logan, Marshall, Marshall, Maury, Montgomery, Perry, Cleburne, Cleveland, Drew, Hot Spring, McCracken, and Taylor Counties, and Robertson Counties, Tennessee. Independence, Izard, Jackson, Kentucky; (2) Within these areas, the primary Lawrence, Little River, Marion, Monroe, (vii) Hinds, Sunflower, Tishomingo, constituent elements of the physical or Newton, Ouachita, Randolph, Searcy, and Warren Counties, Mississippi; biological features essential to the
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conservation of the rabbitsfoot consist of physiological processes for normal software along with various spatial data five components: behavior, growth, and viability of all life layers. Critical habitat unit upstream (i) Geomorphically stable river stages. and downstream limits were delineated channels and banks (channels that (iv) The occurrence of natural fish at the nearest road crossing or stream maintain lateral dimensions, assemblages, reflected by fish species confluence of each occupied reach. Data longitudinal profiles, and sinuosity richness, relative abundance, and layers defining map units were created patterns over time without an aggrading community composition, for each with U.S. Geological Survey National or degrading bed elevation) with inhabited river or creek that will serve Hydrography Dataset (NHD) Medium habitats that support a diversity of as an indication of appropriate presence Flowline data. ArcGIS was also used to freshwater mussel and native fish (such and abundance of fish hosts necessary calculate river kilometers (rkm) and as stable riffles, sometimes with runs, for recruitment of the rabbitsfoot. river miles (rmi) from the NHD dataset, and mid-channel island habitats that Suitable fish hosts for rabbitsfoot may and it was used to determine longitude provide flow refuges consisting of gravel include, but are not limited to, blacktail and latitude coordinates in decimal and sand substrates with low to shiner (Cyprinella venusta) from the degrees. The projection used in moderate amounts of fine sediment and Black and Little River and cardinal mapping and calculating distances and attached filamentous algae). shiner (Luxilus cardinalis), red shiner locations within the units was North (ii) A hydrologic flow regime (the (C. lutrensis), spotfin shiner (C. American Albers Equal Area Conic, severity, frequency, duration, and spiloptera), bluntface shiner (C. NAD 83. The maps in this entry, as seasonality of discharge over time) camura), rainbow darter (Etheostoma modified by any accompanying necessary to maintain benthic habitats caeruleum), rosyface shiner (Notropis regulatory text, establish the boundaries where the species are found and to rubellus), striped shiner (L. of the critical habitat designation. The maintain connectivity of rivers with the chrysocephalus), and emerald shiner (N. coordinates, plot points, or both on floodplain, allowing the exchange of atherinoides). nutrients and sediment for maintenance (v) Competitive or predaceous which each map is based are available of the mussel’s and fish host’s habitat, invasive (nonnative) species in to the public at the Service’s Internet food availability, spawning habitat for quantities low enough to have minimal site (http://www.fws.gov/arkansas-es/te_ native fishes, and the ability for newly effect on survival of freshwater mussels. listing.html), the Federal eRulemaking transformed juveniles to settle and (3) Critical habitat does not include Portal (http://www.regulations.gov at become established in their habitats. manmade structures (such as dams, Docket No. FWS–R4–ES–2013–0007), (iii) Water and sediment quality piers and docks, bridges, or other and at the field office responsible for (including, but not limited to, similar structures) within the legal this designation. You may obtain field conductivity, hardness, turbidity, boundaries on June 1, 2015. office location information by temperature, pH, ammonia, heavy (4) Critical habitat map units. Data contacting one of the Service regional metals, and chemical constituents) layers defining map units were offices, the addresses of which are listed necessary to sustain natural developed using ESRI ArcGIS mapping at 50 CFR 2.2.
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(5) Note: Index map of all critical habitat units for the rabbitsfoot follows:
(6) Unit RF1: Spring River—Jasper (i) General Description: Unit RF1 downstream to the confluence of Turkey County, Missouri; and Cherokee County, includes 56.5 rkm (35.1 rmi) of the Creek north of Empire, Cherokee Kansas. Spring River from Missouri Highway 96 County, Kansas. at Carthage, Jasper County, Missouri,
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(ii) Map of Unit RF1 follows:
(7) Unit RF2: Verdigris River—Rogers Verdigris River from Oologah Lake dam northwest of Catoosa, Rogers County, County, Oklahoma. north of Claremore, Oklahoma, Oklahoma. (i) General Description: Unit RF2 downstream to Oklahoma Highway 266 includes 38.0 rkm (23.6 rmi) of the
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(ii) Map of Unit RF2 follows:
(8) Unit RF3: Neosho River—Allen Neosho River from the Deer Creek Creek southwest of Humboldt, Allen County, Kansas. confluence northwest of Iola, Kansas, County, Kansas. (i) General Description: Unit RF3 downstream to the confluence of Owl includes 26.6 rkm (16.5 rmi) of the
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(ii) Map of Unit RF3 follows:
(9) Unit RF4a: Ouachita River—Clark Ouachita River from the Tenmile Creek confluence near Caddo Valley, Hot and Hot Spring Counties, Arkansas. confluence north of Donaldson Spring and Clark Counties, Arkansas. (i) General Description: Unit RF4a downstream to the Caddo River includes 22.7 rkm (14.1 rmi) of the
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(ii) Map of Unit RF4a follows:
(10) Unit RF4b: Ouachita River— Ouachita River from the Little Missouri Ouachita County, Arkansas. River confluence downstream to U.S. (i) General Description: Unit RF4b Highway 79 at Camden, Ouachita includes 43.0 rkm (26.7 rmi) of the County, Arkansas.
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(ii) Map of Unit RF4b follows:
(11) Unit RF5: Saline River—Ashley, (i) General Description: Unit RF5 County, Arkansas, to the Mill Creek Bradley, Cleveland, and Drew Counties, includes 119.4 rkm (74.2 rmi) of the confluence near Stillions, Ashley and Arkansas. Saline River from the Frazier Creek Bradley Counties, Arkansas. confluence near Mount Elba, Cleveland
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(ii) Map of Unit RF5 follows:
(12) Unit RF6: Little River— (i) General Description: Unit RF6 downstream to U.S. Highway 71 north McCurtain County, Oklahoma; and includes 139.7 rkm (86.8 rmi) of the of Wilton, Little River and Sevier Little River and Sevier Counties, Little River from the Glover River Counties, Arkansas. Arkansas. confluence northwest of Idabel, McCurtain County, Oklahoma,
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(ii) Map of Unit RF6 follows:
(13) Unit RF7: Middle Fork Little Red Middle Fork Little Red River from the inundation begins), Van Buren County, River—Cleburne and Van Buren confluence of Little Tick Creek north of Arkansas. Counties, Arkansas. Shirley, Arkansas, downstream to (i) General Description: Unit RF7 Greers Ferry Reservoir (where includes 24.8 rkm (15.4 rmi) of the
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(ii) Map of Unit RF7 follows:
(14) Unit RF8a: White River— White River from the Batesville Dam at White, and Woodruff Counties, Independence, Jackson, White, and Batesville, Independence County, Arkansas. Woodruff Counties, Arkansas. Arkansas, downstream to the Little Red (i) General Description: Unit RF8a River confluence north of Georgetown, includes 188.3 rkm (117.0 rmi) of the
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(ii) Map of Unit RF8a follows:
(15) Unit RF8b: White River— (i) General Description: Unit RF8b downstream to Arkansas Highway 1 Arkansas and Monroe Counties, includes 68.9 rkm (42.8 rmi) of the near St. Charles, Arkansas County, Arkansas. White River from U.S. Highway 79 at Arkansas. Clarendon, Monroe County, Arkansas,
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(ii) Map of Unit RF8b follows:
(16) Unit RF9: Black River—Lawrence Black River from U.S. Highway 67 at confluence southeast of Powhatan, and Randolph Counties, Arkansas. Pocahontas, Randolph County, Lawrence County, Arkansas. (i) General Description: Unit RF9 Arkansas, downstream to the Flat Creek includes 51.2 rkm (31.8 rmi) of the
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(ii) Map of Unit RF9 follows:
(17) Unit RF10: Spring River— Spring River from the Ott Creek Black Rock, Lawrence and Randolph Lawrence, Randolph, and Sharp confluence southwest of Hardy in Sharp Counties, Arkansas. Counties, Arkansas. County, Arkansas, downstream to its (i) General Description: Unit RF10 confluence with the Black River east of includes 51.5 rkm (32.0 rmi) of the
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(ii) Map of Unit RF10 follows:
(18) Unit RF11: Strawberry River— Strawberry River from Arkansas southeast of Strawberry, Lawrence Independence, Izard, Lawrence, and Highway 56 south of Horseshoe Bend, County, Arkansas. Sharp Counties, Arkansas. Izard County, Arkansas, downstream to (i) General Description: Unit RF11 its confluence with the Black River includes 123.8 rkm (76.9 rmi) of the
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(ii) Map of Unit RF11 follows:
(19) Unit RF12: Buffalo River— confluence southeast of Erbie, Newton Leatherwood Creek confluence in the Marion, Newton, and Searcy Counties, County, Arkansas, downstream to U.S. Lower Buffalo Wilderness Area, Arkansas. Highway 65 west of Gilbert, Searcy Arkansas. (i) General Description: Unit RF12 County, Arkansas, and Arkansas includes 113.6 rkm (70.6 rmi) of the Highway 14 southeast of Mull, Buffalo River from the Cove Creek Arkansas, downstream to the
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(ii) Map of Unit RF12 follows:
(20) Unit RF13: St. Francis River— Francis River from the Twelvemile Wappepello (where inundation begins), Madison and Wayne Counties, Missouri. Creek confluence west of Saco, Madison Wayne County, Missouri. (i) General Description: Unit RF13 County, Missouri, downstream to Lake includes 64.3 rkm (40.0 rmi) of the St.
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(ii) Map of Unit RF13 follows:
(21) Unit RF14: Big Sunflower River— Sunflower River from Mississippi River confluence east of Indianola, Sunflower County, Mississippi. Highway 442 west of Doddsville, Sunflower County, Mississippi. (i) General Description: Unit RF14 Mississippi, downstream to the Quiver includes 51.5 rkm (32.0 rmi) of the Big
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(ii) Map of Unit RF14 follows:
(22) Unit RF15: Bear Creek— Creek from the Alabama and Mississippi Sutton Hill, Colbert County, Alabama Tishomingo County, Mississippi; and State line east of Golden, Tishomingo (just upstream of Pickwick Lake). Colbert County, Alabama. County, Mississippi, downstream to (i) General Description: Unit RF15 Alabama County Road 4 southwest of includes 49.7 rkm (30.9 rmi) of Bear
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(ii) Map of Unit RF15 follows:
(23) Unit RF16: Big Black River— (i) General Description: Unit RF16 County, Mississippi, downstream to Hinds and Warren Counties, includes 43.3 rkm (26.9 rmi) of the Big Mississippi Highway 27 west of Mississippi. Black River from Porter Creek Newman, Warren County, Mississippi. confluence west of Lynchburg, Hinds
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(ii) Map of Unit RF16 follows:
(24) Unit RF17: Paint Rock River— Rock River from the convergence of of New Hope, Madison and Marshall Jackson, Madison, and Marshall Estill Fork and Hurricane Creek north of Counties, Alabama. Counties, Alabama. Skyline, Jackson County, Alabama, (i) General Description: Unit RF17 downstream to U.S. Highway 431 south includes 81.0 rkm (50.3 rmi) of the Paint
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(ii) Map of Unit RF17 follows:
(25) Unit RF18: Duck River— (i) General Description: Unit RF18 272, Marshall County, Tennessee, Hickman, Humphreys, Marshall, Maury, includes 235.3 rkm (146.2 rmi) of the downstream to Interstate 40 near and Perry Counties, Tennessee. Duck River from Lillard Mill (rkm 288.1; Bucksnort, Hickman County, Tennessee. rmi 179) west of Tennessee Highway
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(ii) Map of Unit RF18 follows:
(26) Unit RF19a: Tennessee River— Tennessee River from Pickwick Lake Hardin County, Tennessee. Dam downstream to U.S. Highway 64 (i) General Description: Unit RF19a near Adamsville, Hardin County, includes 26.7 rkm (16.6 rmi) of the Tennessee.
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(ii) Map of Unit RF19a follows:
(27) Unit RF19b: Tennessee River— (i) General Description: Unit RF19b the Ohio River, McCracken and Livingston, Marshall, and McCracken includes 35.6 rkm (22.1 rmi) of the Livingston Counties, Kentucky. Counties, Kentucky. Tennessee River from Kentucky Lake Dam, downstream to its confluence with
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(ii) Map of Unit RF19b follows:
(28) Unit RF20: Ohio River—Ballard, (i) General Description: Unit RF20 Owens Island downstream to Lock and and McCracken Counties, Kentucky; includes 45.9 rkm (28.5 rmi) of the Ohio Dam 53 near Olmstead, Illinois. Massac and Pulaski Counties, Illinois. River from the Tennessee River confluence at the downstream extent of
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(ii) Map of Unit RF20 follows:
(29) Unit RF21: Green River— Green River from Green River Lake Dam in Mammoth Cave National Park, Edmonson, Green, Hart, and Taylor south of Campbellsville, Taylor County, Kentucky. Counties, Kentucky. Kentucky, downstream to Mammoth (i) General Description: Unit RF21 Cave National Park North Entrance Road includes 175.6 rkm (109.1 rmi) of the
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(ii) Map of Unit RF21 follows:
(30) Unit RF22: French Creek— Creek from Union City Reservoir Dam near Franklin, Venango County, Crawford, Erie, Mercer, and Venango northeast of Union City, Erie County, Pennsylvania. Counties, Pennsylvania. Pennsylvania, downstream to its (i) General Description: Unit RF22 confluence with the Allegheny River includes 120.4 rkm (74.8 rmi) of French
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(ii) Map of Unit RF22 follows:
(31) Unit RF23: Allegheny River— Allegheny River from the French Creek Interstate 80 near Emlenton, Venango Venango County, Pennsylvania. confluence near Franklin, Venango County, Pennsylvania. (i) General Description: Unit RF23 County, Pennsylvania, downstream to includes 57.3 rkm (35.6 rmi) of the
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(ii) Map of Unit RF23 follows:
(32) Unit RF24: Muddy Creek— Creek from Pennsylvania Highway 77 Cambridge Springs, Crawford County, Crawford County, Pennsylvania. near Little Cooley, Crawford County, Pennsylvania. (i) General Description: Unit RF24 Pennsylvania, downstream to its includes 20.1 rkm (12.5 rmi) of Muddy confluence with French Creek east of
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(ii) Map of Unit RF24 follows:
(33) Unit RF25: Tippecanoe River— Tippecanoe River from Indiana County, Indiana, excluding Lakes Shafer Carroll, Pulaski, Tippecanoe, and White Highway 14 near Winamac, Pulaski and Freeman and the stream reach Counties, Indiana. County, Indiana, downstream to its between the two lakes. (i) General Description: Unit RF25 confluence with the Wabash River includes 75.6 rkm (47.0 rmi) of the northeast of Battle Ground, Tippecanoe
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(ii) Map of Unit RF25 follows:
(34) Unit RF26: Walhonding River— Walhonding River from the convergence Coshocton County, Ohio. of the Kokosing and Mohican Rivers (i) General Description: Unit RF26 downstream to Ohio Highway 60 near includes 17.5 rkm (10.9 rmi) of the Warsaw, Coshocton County, Ohio.
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(ii) Map of Unit RF26 follows:
(35) Unit RF27: Little Darby Creek— Darby Creek from Ohio Highway 161 Madison and Union Counties, Ohio. near Chuckery, Union County, Ohio, (i) General Description: Unit RF27 downstream to U.S. Highway 40 near includes 33.3 rkm (20.7 rmi) of Little West Jefferson, Madison County, Ohio.
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(ii) Map of Unit RF27 follows:
(36) Unit RF28: North Fork Vermilion of the North Fork Vermilion River from Middle Branch North Fork Vermilion River and Middle Branch North Fork the confluence of Middle Branch North River from the Jordan Creek confluence Vermilion River, respectively— Fork Vermilion River downstream to northwest of Alvin, Illinois, Vermilion County, Illinois. Illinois Highway 1 and U.S. Highway downstream to its confluence with (i) General Description: Unit RF28 136 upstream of Lake Vermilion, North Fork Vermilion River west of includes a total of 28.5 rkm (17.7 rmi). Vermilion County, Illinois. Unit RF28 Alvin, Vermilion County, Illinois. Unit RF28 includes 21.2 rkm (13.2 rmi) also includes 7.2 rkm (4.5 rmi) of the
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(ii) Map of Unit RF28 follows:
(37) Unit RF29: Fish Creek—Williams from Indiana and Ohio State line St. Joseph’s River north of Edgerton, County, Ohio. northwest of Edgerton, Ohio, Williams County, Ohio. (i) General Description: Unit RF29 downstream to its confluence with the includes 7.7 rkm (4.8 rmi) of Fish Creek
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(ii) Map of Unit RF29 follows:
(38) Unit RF30: Red River—Logan (i) General Description: Unit RF30 Kentucky, downstream to the Sulphur County, Kentucky; and Montgomery and includes 50.2 rkm (31.2 rmi) of the Red Fork confluence southwest of Adams, Robertson Counties, Tennessee. River from the South Fork Red River Tennessee. confluence west of Adairville,
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(ii) Map of Unit RF30 follows:
(39) Unit RF31: Shenango River— Shenango River from Porter Road near River Lake near Big Bend, Mercer Mercer County, Pennsylvania. Greenville, Pennsylvania, downstream County, Pennsylvania. (i) General Description: Unit RF31 to the point of inundation by Shenango includes 24.8 rkm (15.4 rmi) of the
tkelley on DSK3SPTVN1PROD with RULES2 VerDate Sep<11>2014 20:21 Apr 29, 2015 Jkt 235001 PO 00000 Frm 00083 Fmt 4701 Sfmt 4700 E:\FR\FM\30APR2.SGM 30APR2 ER30AP15.048 24774 Federal Register / Vol. 80, No. 83 / Thursday, April 30, 2015 / Rules and Regulations
(ii) Map of Unit RF31 follows:
* * * * * Dated: February 25, 2015. Michael J. Bean, Principal Deputy Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2015–09200 Filed 4–29–15; 8:45 am] BILLING CODE 4310–55–P
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U.S. FISH &WILDLIFE United States Department of the Interior SERVICE FISH AND WILDLIFE SERVICE I IO South Amity Road, Suite 300 Conway, Arkansas 72032 Tel.: 501/513-4470 Fax: 501/513-4480 ~ IN REPLY REFER TO: November 18, 2016
Mr. Randal Looney Federal Highway Administration Arkansas Division 700 West Capitol A venue Room3130 Little Rock, Arkansas 72201-3298
Re: Biological Assessment (Reassessment), November 2016, AHTD Job 110123, White River & Relief Strs. & Apprs. (Clarendon) PE. Monroe County, Arkansas
Dear Mr. Looney,
This letter provides U.S. Fish and Wildlife Service (Service) comments on the above referenced biological assessment (BA) developed by the Arkansas Highway and Transportation Department (AHTD) and the Federal Highway Administration (FHWA) . Our comments are submitted in accordance with the Endangered Species Act (ESA) of 1973 (Act; 87 stat. 884, as amended; 16 U.S.C. 1531 et seq.). Comments from the Service were solicited by letter dated November 14,_ 2016.
Project Description
The AHTD constructed a bridge (and - 4.5 miles of elevated roadway and associated approaches and bridges) on a new location south of the existing Arkansas Highway 79 Bridge crossing the White River at Clarendon, Monroe County, Arkansas. The project was separated into three construction jobs and one demolition job. AHTD Job Number 110503 consisted of the replacement of the bridge over Roe Roe Bayou and approaches and installation of a flood relief bridge. That project was completed September 27, 2013. Construction of the western approach spans of the White River Bridge (AHTD Job Number 110394) and White River Bridge main span and eastern approaches (AHTD Job Number 110395) began in July and November 2010, respectively, and were opened to traffic on August 15, 2016.
The remainder of the project will consist of the demolition of two bridges over Old River Lake and one bridge over the White River, removal of approximately 2,000 linear feet of roadway embankment, planting of the former rights-of-way in native bottomland hardwood trees, rehabilitation of a Service National Wildlife Refuge road, and installation of a boat ramp at Old River Lake. These restoration efforts will meet all obligations set forth in the Service Refuge compatibility determination December 6, 2007. A more detailed description of the specific construction and demolition activities can be found in Section 5.1 of the BA. Our comments herein pertain to the entire action area described in the BA which encompasses the construction limits of the entire project area. This includes a 0.5 km (0.3 mi) area surrounding the constrnction limits to account for noise and smoke associated with project constrnction for ten-estrial species. Generally, a 30.5 m (100 ft.) area upstream and 91.4 m (300 ft.) area downstream of the bridges were also taken into account for aquatic disturbances. This action area was detennined by AHTD/FHWA through coordination with the Service.
Consultation History
Previously, an infonnal consultation concurrence letter was submitted by the Service dated June 21, 2006. In that letter, the Service provided concmTence with AHTD/FHWA's detennination of may affect, not likely to adversely affect the federally endangered Ivory Billed Woodpecker (Campephilus principalis; IBWO), endangered Fat Pocketbook mussel (Potamilus capax), and endangered Pink Muckel mussel (Lampsilis abrupta). Extensive search criteria for these species during the preceding assessment indicated it was highly unlikely any of the aforementioned species were present in the action area. Reinitiation of consultation is not necessary, unless new information reveals that the agency action may affect listed species or critical habitat in a manner or to an extent not previously considered, the agency action is subsequently modified in a manner that causes an effect to the listed species not previously considered, or a new species is listed or critical habitat designated within the action area prior to project completion.
The Rabbitsfoot mussel (Quadrula cylindrica cylindrica) was listed as a candidate species for protections under the Endangered Species Act on November 6, 2009. During the relocation of mussels (August 2010) within the footprint of the new bridge location (AHTD Job Number 110395), 11 Rabbitsfoot mussels were collected and translocated. Subsequently, the Rabbitsfoot mussel was listed as threatened by the Service on September 17, 2013, and critical habitat designated in the White River on April 30, 2015 ( effective June I, 2015; 80 FR 24692).
In October 2015, the AHTD/FHWA reinitiated infonnal consultation through discussions on conducting fmther surveys and a reassessment of the demolition portion of the action. This was due, in part, to the time elapsed since the previous assessment and mussel survey. In addition, it was necessary to reinitiate consultation related to the new listing for Rabbitsfoot and its critical habitat. Based upon ongoing discussions, new data, species known ranges, and known habitat types, AHTD/FWHA and the Setvice detennined what species needed to be reassessed along with the focal area requiring additional smvey. This reassessment would include a review of the previons assessment and a new assessment for Fat Pocketbook, Pink Mucket, and Rabbitsfoot, along with its designated critical habitat. No additional species where identified as being either affected by the action or requiring reinitiation and, as such, the original determination remains valid for all other species identified in those documents. Those species will not be discussed further.
This assessment for Fat Pocketbook, Pink Mucket, and Rabbitsfoot, along with its designated critical habitat was based upon the known range for these species, their general habitat types, and the designated critical habitat for Rabbitsfoot. The smvey and assessment area was focused on the only available habitat with the action area and was based on the known habitat types identified for these species. This focal area encompasses the existing bridge to be demolished and the 30.5 m (100 ft.) area upstream and 91.4 m (300 ft.) area downstream within the main channel of the White River near Clarendon, Arkansas.
Effects Analysis
Direct Effects for Pink Mucket, Fat Pocketbook and Rabbitsfoot
• (Text in italics as stated within the BA.) "Under Section 7 of the Endangered Species Act, effects of the action are defined as "direct and indirect effects ofan action on the species or critical habitat, together with the effects of other activities that are interrelated or interdependent with that action." [50 CFR §402.02]. The majority ofthe -2.5 mile project will have no direct effects on the Pink Muckel, Fat Pocketbook, Rabbits.foot mussel or its critical habitat. Any direct effects will be associated with the demolition of the 720' bridge over the White River. Potential direct e.ffects to these species could be crushing, displacement via scour around material dropped into the river, displacement via construction equipment and/or bridge sections during removal fi'om the river, or being subjected to temporarily unfavorable water quality conditions, such as increased turbidity caused by the displacement ofsediments by.falling debris and construction equipment. However, based on the negative results ofthe survey, any potential effects are discountable. "
Tempora,y impacts to water quality are common during highway construction activities. The most common impact is associated with increases in fine sediments as a result in sediment laden stormwater runoff or the suspension ofsediments fi'om within the stream bed. These impacts can be lessened with the proper implementation ofbest management practices (BMPs) for erosion control. The NPDES Permit requires the preparation and implementation ofa Stormwater Pollution Prevention Plan (SWPPP). The SWPPP will include specifications and BMPs needed.for control oferosion and sedimentation. Specific erosion control measures can be.found on the plans and will include the use of tempora,y silt.fence, sand bag ditch checks, tempormy and permanent seeding, and the use ofclean rockfill .for tempora,y access roads .
... Based on the results ofthe Peck (2010) study, it is expected that the demolition activities associated with the White River Bridge demolition project at Clarendon may result in a slight increase in fine sediments; however, those increases are not likely to result in changes to the physiological condition ofthe mussels or changes in mussel community metrics ... "
Service Comment: The Service agrees with this assessment and conclusion. Based on the negative results of the survey, any potential effects to these species are unlikely and discountable since none of these species were found within the surveyed area. Furthe1more, any effects to these species outside of the survey area are also unlikely and discountable due to the use of BMPs, similar habitat type, distance, and lack of records for these species in the vicinity of the action. Additionally, we agree with the applicability of the Peck (2010) study in support of AHTD/FHWA conclusions related to the effects from demolition and sediment transport. Critical Habitat for Rabbitsfoot (Unit RF8b)
"The physical or biological features essential to the conservation of the species are listed as water quality, sediment quality, stable habitat, health offish hosts, diet ofall 1/fe stages, and periodic flooding offloodplain habitat. The primal)' constituent elements, defined as the elements of the physical or biologicalfeatures that when laid out in the appropriate quantitiy and spatial arrangement to provide for a species' l/fe hist01y processes are essential to the conservation ofthe Rabbits/oat. The prima,y constituent elements (PCE) are: 1) Geom01phically stable river channels and banks (channels that maintain lateral dimensions, longitudinal profiles, and sinuosity patterns over time without an aggrading or degrading bed elevation) with habitats that support a diversity ofJ,-eshwater mussels and native.fish (such as, stable riffles, sometimes with runs, and mid-channel island habitats that provide flow refi1ges consisting ofgravel and sand substrates with low to moderate amounts of.fine sediment and attached.filamentous algae); 2) A hydrologic flow regime (the severity, J,-equency, duration, and seasonality of discharge over time) necesSGI'.)' to maintain benthic habitats where the species are found and to maintain connectivity ofrivers with the floodplain, allowing the exchange of 1111trients and sediment for maintenance of the mussels and.fish host's habitat, food availability, spawning habitat for native.fishes, and the ability for newly transformed juveniles to settle and become established in their habitats; 3) Water and sediment quality (including, but not limited to, cond11ctivity, hardness, turbidity, temperature, pH, ammonia, heavy metals, and chemical constituents) necessa,y to sustain natural physiological processes for normal behavior, growth, and viability ofall life stages; 4) The presence and abundance (currently unknown) offish hosts necessary for recruitment of the Rabbitsfoot. 17,e occurrence ofnatural.fish assemblages, reflected by fish species richness, relative abundance, and community composition, for each inhabited river or creek will serve as an indication ofappropriate presence and abundance offish hosts until appropriate host fish can be identified, and; 5) Either no competitive or predaceous invasive nonnative species, or such species in quantities low enough to have minimal effect on survival ofJ,-eshwater m11ssels.
Service Co1runent: This is an accurate description of the critical habitat PCEs. No further connnent is necessary.
• PCE I: "This unit is listed as missing PCE 1."
Service Comment: The Service agrees with this assessment. The habitat and channel within this area is a U.S Army Corps of Engineers maintained deep water navigation channel complised of silt, sand, and rip rap and is devoid of gravel, riffles, and other habitat features desc1ibed for this PCE. Habitat surveys and numerous site visits to this area have confinned this description. No further comment is necessary.
• PCE 2: "The direct effects of the project may temporarily alter PCEs 2 by causing localized changes in hydrology while the bridge is in the river; however, time constraints in the USCG Bridge Permit and USA CE Section 404 Permit will limit the potential local hydrologic changes to a period ofonly a few days." Service Comment: The Service agrees with this assessment. Based on the description of the action and the pennit requirements, the effects to PCE 2 from this action on the "hydrologic flow regime necessary to maintain benthic habitats where the species are found and to maintain connectivity of rivers with the floodplain, allowing the exchange of nutrients and sediment for maintenance of the mussels and fish host's habitat, food availability, spawning habitat for native fishes, and the ability for newly transfmmed juveniles to settle and become established in their habitats" will be minimal and only effected locally and temporarily by this action.
• PCE 3: "One conclusion that could be made is that because surveys did not find Rabbits/oat at this location, although other surveys have found them at other locations both upstream and downstream, that there is some unlmown variable preventing their occurrence at this particular location. As previously discussed, the Peck (2010) study indicates that although it is expected that the demolition activities associated with the White River Bridge demolition project at Clarendon may result in a slight increase in fine sediments, those increases are not likely to result in changes to the physiological condition ofthe mussels or changes in mussel community metrics. Therefore, any changes to water and sediment quality are not expected to rise above that necessa,y to sustain natural physiological processes for normal behavior, growth, and viability ofall life stages. Furthermore, it is concluded that given the percentage ofcritical habitat in the action area (0.004% ofthe total, and 0.145% of the unit), the temporal nature of the construction activities, and the results a/the Peck (2010) study that any potential effects are not likely to adversely affect PCE 3. "
Service Comment: The Service agrees with this assessment. Our opinion is based on the negative survey result, type of habitat identified at the site, the limited effects to water quality and sediment identified, the temporary nature of the action, and the minimal amount of habitat being affected. The Service does not believe that this action will alter "water and sediment quality (including, but not limited to, conductivity, hardness, turbidity, temperature, pH, ammonia, heavy metals, and chemical constituents) necessary to sustain natural physiological processes for nonnal behavior, growth, and viability of all life stages."
• PCE 4: "The presence and abundance al the Rabbits/oat host fish (PCE 4) could be temporarily altered in the local vicinity of the project area during construction. The movements, sounds, and vibrations created by construction equipment and the falling bridge may induce.fish to leave the area temporarily. Some fish could also be crushed by falling debris or Id/led in the concussion ofthe controlled explosions. Of the species known as potential host fish for the Rabbits.foot, only the Emerald Shiner and Blacktail Shiner are known to occur within this critical habitat unit (Robison and Buchanan 1988). These species are both described as being tolerant ofturbidity and siltation (Robison and Buchanan I 988); therefore, it is unlikely that the suspension ofsediments during construction would have an impact on the host.fish. Additionally, both species are listed as being common; therefore, any impacts would not result in a measurable change in the presence or abundance ofthe Rabbits,/oot host fish in the unit." Service Comment: The Service agrees with this assessment. Effects would be localized, minimal, and temporary, in an area where the survey produced no Rabbitsfoot mussels. Fmihermore, we agree with the assessment that both host species found in the action area are common and tolerant of turbidity and siltation. Therefore, it is unlikely that the suspension of sediments movements, sounds, and vibrations related to constrnction would result in a measurable change in the presence or abundance of the Rabbitsfoot host fish in the action area.
• PCE 5: "Zebra mussels are already lmow11.fi'om within the action area; therefore, the action will not introduce or proliferate i11vasive species or have any beneficial effects for invasive species. Thus the project will have no effect 011 PCE 5. "
Service Comment: The Service agrees with this assessment. We do not have any reason to believe or literature to suppmt that this action would in any way contribute to the proliferation of "competitive or predaceous invasive nonnative species" in any quantity.
Indirect Effects
• Altered Host Relationships
" ... Both vibrations and sedimentation are common during construction activities. Any disturbances associated with this demolition that may reduce the number offish within the action area have the potential to reduce mussel/host interactions. However, no Pink Muckel, Fat Pocketbook, or Rabbits/oat mussels were found in the action area; therefore, the project is not expected to alter mussel/host interactions for these species. "
Service Comment: The Service agrees with this assessment. Based on the negative results of the survey, any potential effects to these species are unlikely and discountable since none of these species were found within the surveyed area. Additionally, any effects would be local and temporary in nature.
• Long-Tenn Habitat Alteration
"Two piers within the wetted width ofthe channel and banks will be removed. The change in removal of these piers will create a different flow within the channel. Additionally, removal ofroad embanla11e11t will likely leave a d(ffere11tfloodjlow regime after construction has been completed. The USFWS determined that the removal of the abandoned roadway within the refuge boundaries, including the embankment a11d the bridges, was required to be compatible with the refi1ge mission. This decision included an effects determination in which the USFWS determined that the Compatibility Determination and the stipulations necessa,y to ensure compatibility were "not likely to adversely affect" endangered species. They the11 stated that the "restoration offormer right-of-way, acquisitio11 ofadjacent agricultural properties with subsequent reforestation, and substantially longer elevated spans for all bridges will improve hydrologicfimctions (as de111011strated bv the US Geological S11n 1ey Water-Resources Investigations Report 02-4256) "." Service Comment: The Service agrees with this assessment. We maintain our previous conclusions related to this action and have nothing further to add at this time.
Effect Determination for Listed Species
No Effect Detenninations
• "Due to the distance to the nearest recent collections of the Scales hell (158 river miles), pondbeny (45 miles), and Red-cockaded Woodpeckers (13 miles) fi'om this project it was determined that the project will have no effect on these species, since these distances are well outside ofour-21,0001112 action area."
Service Comment: The Service does not have any information or knowledge that suggests this aetion will affect these species. Futthermore, we maintain our previous conclusions related to this action and have nothing further to add at this time.
May Affect, Not Likely to Adversely Affect
• "Historic surveys up and downstream ofthe project area identified Rabbits/oat, Fat Pocketbook and Pink Mucket individuals; however, no living (or shell material of) Rabbits/oat, Fat Pocketbook, or Pink lv!ucket were collected during sampling ofthe action area on July 12-13, 2016, with standard USFWS approved survey methodologies. Therefore, because these species were not detected within the action area, a "may affect, not likely not be adverse~)' affect" determination has been made for these species. "
Service Comment: The Service believes that sufiicient information was provided to dete1mine the effects of the proposed project to federally listed species and to conclude whether this project is likely to adversely affect those species. We, therefore, concur with your "may affect, not likely to adversely affect" determination for Rabbitsfoot, Fat Pocketbook, and Pink Muckel.
Effect Determination for Critical Habitat
• "It is concluded that given the percentage ofcritical habitat in the action area (0. 004% ofthe total, and 0.145% of the unit), the temporm:v nature ofthe construction activities, and the minimal or discountable a.ffects anticipated to each ofthe prima,y constituent elements ofthe physical and biologicalfeatures of the critical habtitat that the project may affect but is not likely to adverse~)! affect critical habitat for the Rabbit~foot mussel."
Service Comment: The Service believes that sufficient information was provided to determine the effects of the proposed project to federally designated critical habitat for the Rabbitsfoot mussel. We, therefore, concur with your detennination that this action "may affect but is not likely to adversely affect critical habitat for the Rabbitsfoot mussel."
This concludes informal consultation in accordance with 50 CPR 402.13. However, this action must be reassessed and reinitiation of consultation under the ESA may be necessary if new info1mation reveals effects of the agency action that may affect listed species or critical habitat in a manner or to an extent not previously considered, the agency action is subsequently modified in a manner that causes an effect to the listed species that was not previously considered, or a new species is listed or critical habitat is designated within the action area prior to project completion.
Thank you for allowing our agency the opportunity to comment on the proposed project. For future correspondence on this matter, please contact Lindsey Lewis at (501) 513-4489 or lindsey_ lewis @fws.gov.
Sincerely,
Field Supervisor c (w/o encl) Arkansas Natural Heritage Commission, Little Rock, Arkansas Arkansas Natural Resources Commission, Little Rock, Arkansas Arkansas Game and Fish Commission, Little Rock, Arkansas Arkansas Department of Environmental Quality, Little Rock, Arkansas Arkansas Department of Parks and Tourism, Little Rock, Arkansas Central Arkansas National Wildlife Refuge Complex, Augusta, Arkansas Environmental Protection Agency, Dallas, Texas
C:\Users\lilewis\Documents\PROJECTS\FY2017\AHTD\Clarendon Bridge\Biological Assessment\BA_ Comments - Clarendon Bridge 2016.docx