Federal Register / Vol. 78, No. 187 / Thursday, September 26, 2013 / Rules and Regulations 59269

other required information to the U.S. and pests, Reporting and recordkeeping Authority: 21 U.S.C. 321(q), 346a and 371. Senate, the U.S. House of requirements. ■ 2. In § 180.940, alphabetically add the Representatives, and the Comptroller Dated: September 17, 2013. following inert ingredient to the table in General of the United States prior to Lois Rossi, paragraph (a) to read as follows: publication of the rule in the Federal Director, Registration Division, Office of Register. This action is not a ‘‘major Pesticide Programs. § 180.940 Tolerance exemptions for active rule’’ as defined by 5 U.S.C. 804(2). Therefore, 40 CFR chapter I is and inert ingredients for use in List of Subjects in 40 CFR Part 180 amended as follows: antimicrobial formulations (Food-contact surface sanitizing solutions). Environmental protection, PART 180—[AMENDED] * * * * * Administrative practice and procedure, ■ (a) * * * Agricultural commodities, Pesticides 1. The authority citation for part 180 continues to read as follows:

Pesticide chemical CAS Reg. No. Limits

******* FD&C Yellow No. 5 ...... 1934–21–0 When ready for use, the end-use concentration is not to exceed 1000 ppm.

*******

* * * * * www.fws.gov/cookeville. Comments and of five factors: (A) The present or [FR Doc. 2013–23391 Filed 9–25–13; 8:45 am] materials we received, as well as threatened destruction, modification, or BILLING CODE 6560–50–P supporting documentation we used in curtailment of its habitat or range; (B) preparing this rule, are available for overutilization for commercial, public inspection at http:// recreational, scientific, or educational DEPARTMENT OF THE INTERIOR www.regulations.gov. All of the purposes; (C) disease or predation; (D) comments, materials, and the inadequacy of existing regulatory Fish and Wildlife Service documentation that we considered in mechanisms; or (E) other natural or this rulemaking are available by manmade factors affecting its continued 50 CFR Part 17 appointment, during normal business existence. We have determined these [Docket No. FWS–R4–ES–2012–0004; hours, at: U.S. Fish and Wildlife two mussel species are facing threats 4500030113] Service, Tennessee Ecological Services based on three of these five factors (A, Field Office, 446 Neal Street, D, and E). Both species have been 1018–AY06 Cookeville, TN 38501; telephone 931– eliminated from more than 50 percent of 528–6481; facsimile 931–528–7075. the streams from which they were Endangered and Threatened Wildlife historically known, and from more than and Plants; Endangered Species FOR FURTHER INFORMATION CONTACT: 1,000 river miles (in the Cumberland Status for the Fluted Kidneyshell and Mary Jennings, Field Supervisor, U.S. and Tennessee mainstem rivers alone) Slabside Pearlymussel Fish and Wildlife Service, Tennessee Ecological Services Field Office, 446 from which they were historically AGENCY: Fish and Wildlife Service, Neal Street, Cookeville, TN 38501; known due to a variety of threats, Interior. telephone 931–528–6481; facsimile including impoundments, mining, poor ACTION: Final rule. 931–528–7075. If you use a water quality, excessive sedimentation, telecommunications device for the deaf and environmental contaminants. SUMMARY: We, the U.S. Fish and (TDD), call the Federal Information Peer review and public comment. We Wildlife Service (Service), determine Relay Service (FIRS) at 800–877–8339. sought comments from independent endangered species status under the SUPPLEMENTARY INFORMATION: specialists to ensure that our Endangered Species Act of 1973 (Act), determination is based on scientifically as amended, for the fluted kidneyshell Executive Summary sound data, assumptions, and analyses. (Ptychobranchus subtentum) and Why we need to publish a rule. Under We invited these peer reviewers to slabside pearlymussel (Pleuronaia the Endangered Species Act, a species comment on our listing proposal. We dolabelloides). These two species are warrants protection through listing if it also considered all comments and endemic to portions of the Cumberland is endangered or threatened throughout information we received during the and Tennessee River systems of all or a significant portion of its range. comment period. Alabama, Kentucky, Mississippi, Listing a species as an endangered or Previous Federal Actions Tennessee, and Virginia. The effect of threatened species can only be this regulation is to add these species to completed by issuing a rule. Elsewhere We proposed listing the fluted the List of Endangered and Threatened in today’s Federal Register, we kidneyshell and slabside pearlymussel Wildlife and to implement the Federal designate critical habitat for the fluted as endangered under the Act with protections provided by the Act for kidneyshell and slabside pearlymussel. critical habitat on October 4, 2012 (77 these species. This rule lists the fluted kidneyshell FR 60804). For a complete history of all DATES: This rule is effective on October and slabside pearlymussel as Federal actions related to these species, 28, 2013. endangered species. please refer to the October 4, 2012, ADDRESSES: This final rule is available The basis for our action. Under the proposed listing and critical habitat on the Internet at http:// Act, we may determine that a species is rule. Elsewhere in today’s Federal www.regulations.gov and at http:// endangered or threatened based on any Register, we designate critical habitat

VerDate Mar<15>2010 17:00 Sep 25, 2013 Jkt 229001 PO 00000 Frm 00107 Fmt 4700 Sfmt 4700 E:\FR\FM\26SER1.SGM 26SER1 mstockstill on DSK4VPTVN1PROD with RULES 59270 Federal Register / Vol. 78, No. 187 / Thursday, September 26, 2013 / Rules and Regulations

for the fluted kidneyshell and slabside into Kentucky and empties into the from growth to reproductive activities. pearlymussel under the Act. Ohio River. The greater Tennessee River Mussel longevity varies tremendously drainage spans five physiographic among species (from 4 to 5 years to well Background provinces, including the Blue Ridge, over 100 years), but most species live 10 Introduction Valley and Ridge, Appalachian Plateaus, to 50 years (Haag and Rypel 2011, pp. North American mussel fauna are Interior Low Plateaus, and Coastal Plain. 230–236). Relatively large, heavy- shelled riverine species tend to be more biologically diverse than Fluted Kidneyshell anywhere else in the world, and slower growing and have longer life historically numbered around 300 Taxonomy and Species Description spans. Reported longevity of the fluted kidneyshell ranges from 26 to 55 years species (Williams et al. 1993, p. 6). The fluted kidneyshell, (Henley et al. 2002, p. 19; Davis and Mussels are in decline, however, and in Ptychobranchus subtentum (Say, 1825), Layzer 2012, p. 92). Females can the past century have become more is in the family Unionidae (Turgeon et become sexually mature at age 5 (Davis imperiled than any other group of al. 1998, p. 36). The following and Layzer 2012, p. 79). organisms (Williams et al. 2008, p. 55). description, biology, and life history of The gametogenic cycle (annual cycle Approximately 72 percent of North the fluted kidneyshell is taken from in the development of reproductive cells America’s mussel species are Parmalee and Bogan (1998, pp. 204– or gametes) of fluted kidneyshell, like considered vulnerable to extinction or 205) and Williams et al. (2008, pp. 627– most mussels, is probably regulated by possibly extinct (Williams et al. 1993, p. 629). The fluted kidneyshell is a annual temperature regimes (Davis and 6). Within North America, the relatively large mussel that reaches Layzer, p. 90). Most mussels, including southeastern United States is the hot about 13 centimeters (cm) (5 inches (in)) the fluted kidneyshell, have separate spot for mussel diversity. Seventy-five in length. The shape of the shell is sexes. Males expel sperm into the water percent of southeastern mussel species roughly oval elongate, and the solid, column, which are drawn in by females are in varying degrees of rarity or relatively heavy valves (shells) are through their incurrent apertures. It has possibly extinct (Neves et al. 1997, pp. moderately inflated. A series of flutings been hypothesized that pheromones 47–51). The central reason for the (parallel ridges or grooves) characterizes might trigger synchronous sperm release decline of mussels is the modification the posterior slope of each valve. For a among males, because all fertilization and destruction of their habitat, complete description of the species, observed by fluted kidneyshell females especially from dams, degraded water please refer to the October 4, 2012, from the Clinch River occurred in fewer quality, and sedimentation (Neves et al. proposed listing and critical habitat rule than 5 days (Davis and Layzer 2012, p. 1997, p. 60). The fluted kidneyshell and (77 FR 60804). 90). Fertilization takes place internally, slabside pearlymussel, like many other Habitat and Life History and the resulting zygotes develop into southeastern mussel species, have specialized larvae, termed glochidia, undergone considerable reductions in Mussels generally live embedded in inside the water tubes of the females’ total range and population density. the bottom of rivers and other bodies of gills. The fluted kidneyshell, along with Most studies of the distribution and water. They siphon water into their other members of its genus, is unique in population status of the fluted shells and across four gills that are that the marsupial portion of the outer kidneyshell and slabside pearlymussel specialized for respiration, food gills (portion of a brooding female’s gill presented below were conducted after collection, and brooding larvae in which holds embryos and glochidia) are the early 1960s. Gordon and Layzer females. Food items include detritus folded in a curtain-like fashion. The (1989, entire), Winston and Neves (disintegrated organic debris), algae, short (5 days or less) fertilization period (1997, entire), and Parmalee and Bogan diatoms, and bacteria (Strayer et al. of the fluted kidneyshell is thought to (1998, pp. 204–205) give most of the 2004, pp. 430–431). Adults are filter occur sometime in late summer or early references for regional stream surveys. feeders and generally orient themselves fall with the glochidia overwintering. In addition to these publications, we on or near the substrate surface to take Davis and Layzer (2012, p. 90) observed have obtained more current, in food and oxygen from the water embryo development within the unpublished distribution and status column. Adult mussels also can obtain marsupium (brood pouch) at 4 weeks information from State heritage their food by deposit feeding, pulling in after fertilization. The following spring programs, State and Federal agency food from the sediment and its or early summer, glochidia are released biologists, and other knowledgeable interstitial (pore) water, and pedal- as conglutinates, which are membrane- individuals. (foot-) feeding directly from the bound packets with scores of glochidia These two species are bivalve mussels sediment (Yeager et al. 1994, pp. 217– within. Davis and Layzer (2012, p. 86) and are endemic to the Cumberland and 221; Vaughn and Hakenkamp 2001, pp. report an average of 208 conglutinates Tennessee River drainages. The 1432–1438; Nichols et al. 2005, pp. 90– and an average fecundity (total Cumberland River drainage originates in 93). Juveniles typically burrow reproductive output) of 247,000 southeastern Kentucky and flows completely beneath the substrate surface glochidia per female. Davis and Layzer southwest across Tennessee before and are deposit or pedal feeders. Until (2012, p. 92) report a skewed adult sex turning north and reentering Kentucky the structures for filter feeding are more ratio of 1.9 females per 1 male in the to empty into the lower Ohio River. The fully developed, food particles that Clinch River, in Tennessee, although the Cumberland River drainage spans the adhere to the foot while it is extended cause of the skewed ratio is unknown. Appalachian Plateaus and Interior Low outside the shell and are moved inside Using the observed sex ratio and percent Plateaus Physiographic Provinces. The the shell for ingestion, until the of females that were gravid, Davis and Tennessee River originates in southwest structures for filter feeding are more Layzer (2012, p. 92) hypothesized that Virginia and western North Carolina, fully developed (Yeager et al. 1994, pp. some females go through reproductive eastern Tennessee, and northern 200–221; Gatenby et al. 1996, p. 604). ‘‘pausing’’ periods to acquire the energy Georgia, and flows southwesterly into Mussels tend to grow relatively reserves needed to produce gametes in northeastern Alabama, then flows across rapidly for the first few years; then subsequent years. northern Alabama before turning north growth slows appreciably after sexual Glochidia must come into contact and flowing through western Tennessee maturity, when energy is being diverted with specific host fish(es) quickly in

VerDate Mar<15>2010 17:00 Sep 25, 2013 Jkt 229001 PO 00000 Frm 00108 Fmt 4700 Sfmt 4700 E:\FR\FM\26SER1.SGM 26SER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 78, No. 187 / Thursday, September 26, 2013 / Rules and Regulations 59271

order for their survival to be ensured. meal when in fact they have infected and low substrate embeddedness (Ostby Without the proper species of host fish, themselves with parasitic mussel 2005, pp. 51, 142–3). the glochidia will perish. Conglutinate glochidia (Parmalee and Bogan 1998, p. Historical Range and Distribution masses often mimic food items of 205; Davis and Layzer 2012, p. 88). glochidial fish hosts in order to attract After a few weeks parasitizing the The fluted kidneyshell is a host fish’s gill, newly metamorphosed and infest potential host fishes. For Cumberlandian Region mussel, meaning juvenile mussels drop off to begin a free- example, fluted kidneyshell it is restricted to the Cumberland (in living existence on the stream bottom. conglutinates are shaped like black fly Kentucky and Tennessee) and Unless they drop off in suitable habitat, (Simuliidae) pupae and have an Tennessee (in Alabama, Kentucky, adhesive end that sticks to silt-free they will perish. Thus, the complex life history of the fluted kidneyshell and Tennessee, and Virginia) River systems. stones on the stream bottom, with an other mussels has many critical steps Historically, this species occurred in the orientation that is also similar to that of that may prevent successful Cumberland River mainstem from below blackfly pupae (Barnhart and Roberts reproduction or recruitment of juveniles Cumberland Falls in southeastern 1997, p. 17; Barnhart et al. 2008, p. 377; into existing populations or both. Kentucky downstream through the Williams et al. 2008, p. 628). Insects are The fluted kidneyshell occurs in Tennessee portion of the river to the common food items of many stream medium-sized creeks to large rivers, vicinity of the Kentucky-Tennessee fishes, including the fluted inhabiting sand and gravel substrates in State line. In the Tennessee River kidneyshell’s host fishes, such as the relatively shallow riffles and shoals mainstem, it occurred from eastern to barcheek darter (Etheostoma obeyense), with moderate to swift current western Tennessee. The fluted fantail darter (E. flabellare), rainbow (Williams et al. 2008, p. 628). In kidneyshell’s known historical and darter (E. caeruleum), redline darter (E. comparison to some co-occurring current occurrences, by water body and rufilineatum), bluebreast darter (E. species, the fluted kidneyshell county, are shown in Table 1 below camurum), dusky darter (Percina demonstrates strong habitat specificity (data collected from Gordon and Layzer sciera), and banded sculpin (Cottus by being associated with faster flows, 1989, entire; Winston and Neves 1997, carolinae). These fishes are tricked into greater shear stress (force of water entire; Parmalee and Bogan 1998, pp. thinking that they have an easy insect pressure and velocity on the substrate), 204–205; Layzer and Scott 2006, p. 481).

TABLE 1—KNOWN HISTORICAL (PRIOR TO 1980) AND CURRENT OCCURRENCES FOR THE FLUTED KIDNEYSHELL

Water body Drainage County State Historical or current

Cumberland River ...... Cumberland ...... McCreary, Pulaski, Russell ...... KY Historical. Cumberland River ...... Cumberland ...... Stewart ...... TN Historical. Middle Fork Rockcastle River ...... Cumberland ...... Jackson ...... KY Historical and Current Horse Lick Creek ...... Cumberland ...... Jackson, Rockcastle ...... KY Historical and Current. Rockcastle River ...... Cumberland ...... Laurel, Pulaski, Rockcastle ...... KY Historical. Buck Creek ...... Cumberland ...... Pulaski ...... KY Historical and Current. Big South Fork Cumberland River ...... Cumberland ...... McCreary, Pulaski ...... KY Historical and Current. Big South Fork Cumberland River ...... Cumberland ...... Fentress, Morgan, Scott ...... TN Historical and Current. Rock Creek ...... Cumberland ...... McCreary ...... KY Historical and Current. Little South Fork Cumberland River ...... Cumberland ...... McCreary, Wayne ...... KY Historical and Current. Kennedy Creek ...... Cumberland ...... Wayne ...... KY Historical. Pitman Creek ...... Cumberland ...... Pulaski ...... KY Historical. Otter Creek ...... Cumberland ...... Wayne ...... KY Historical. Wolf River ...... Cumberland ...... Fentress, Pickett ...... TN Historical and Current. Town Branch ...... Cumberland ...... Pickett ...... TN Historical and Current. Obey River ...... Cumberland ...... ? ...... TN Historical. West Fork Obey River ...... Cumberland ...... Overton ...... TN Historical and Current. Caney Fork River ...... Cumberland ...... ? ...... TN Historical. South Harpeth River ...... Cumberland ...... Davidson ...... TN Historical. West Fork Red River ...... Cumberland ...... Todd ...... KY Historical. South Fork Powell River ...... Tennessee ...... Wise ...... VA Historical. Powell River ...... Tennessee ...... Claiborne, Hancock ...... TN Historical and Current. Powell River ...... Tennessee ...... Campbell, Union ...... TN Historical. Powell River ...... Tennessee ...... Lee ...... VA Historical and Current. Indian Creek ...... Tennessee ...... Tazewell ...... VA Historical and Current. Clinch River ...... Tennessee ...... Hancock ...... TN Historical and Current. Clinch River...... Tennessee ...... Anderson, Claiborne, Grainger, Roane, TN Historical. Union. Clinch River ...... Tennessee ...... Russell, Scott, Tazewell, Wise ...... VA Historical and Current. Little River ...... Tennessee ...... Russell, Tazewell ...... VA Historical and Current. Copper Creek ...... Tennessee ...... Scott ...... VA Historical and Current. North Fork Holston River ...... Tennessee ...... Hawkins, Sullivan ...... TN Historical. North Fork Holston River ...... Tennessee ...... Bland, Scott, Smyth, Washington ...... VA Historical and Current. Big Moccasin Creek ...... Tennessee ...... Scott ...... VA Historical and Current. Middle Fork Holston River ...... Tennessee ...... Smyth ...... VA Historical and Current. South Fork Holston River ...... Tennessee ...... Sullivan ...... TN Historical. South Fork Holston River ...... Tennessee ...... Washington ...... VA Historical. Holston River ...... Tennessee ...... Grainger, Hamblen, Jefferson, Knox ...... TN Historical. French Broad River ...... Tennessee ...... ? ...... TN Historical. Tennessee River ...... Tennessee ...... Colbert, Jackson, Lauderdale ...... AL Historical. Tennessee River ...... Tennessee ...... Decatur, Knox, Meigs, Rhea ...... TN Historical. Nolichucky River ...... Tennessee ...... Greene ...... TN Historical and Current.

VerDate Mar<15>2010 17:00 Sep 25, 2013 Jkt 229001 PO 00000 Frm 00109 Fmt 4700 Sfmt 4700 E:\FR\FM\26SER1.SGM 26SER1 mstockstill on DSK4VPTVN1PROD with RULES 59272 Federal Register / Vol. 78, No. 187 / Thursday, September 26, 2013 / Rules and Regulations

TABLE 1—KNOWN HISTORICAL (PRIOR TO 1980) AND CURRENT OCCURRENCES FOR THE FLUTED KIDNEYSHELL— Continued

Water body Drainage County State Historical or current

West Prong Little Pigeon River ...... Tennessee ...... Sevier ...... TN Historical. Tellico River ...... Tennessee ...... Monroe ...... TN Historical. Little Tennessee River ...... Tennessee ...... Monroe ...... TN Historical. Hiwassee River ...... Tennessee ...... Polk ...... TN Historical. Flint River ...... Tennessee ...... Madison ...... AL Historical. Limestone Creek ...... Tennessee ...... Limestone ...... AL Historical. Elk River ...... Tennessee ...... Limestone ...... AL Historical. Elk River ...... Tennessee ...... Coffee, Franklin ...... TN Historical. Boiling Fork Creek ...... Tennessee ...... Franklin ...... TN Historical. Shoal Creek ...... Tennessee ...... Lauderdale, Limestone ...... AL Historical. Duck River ...... Tennessee ...... Bedford, Marshall, Maury ...... TN Historical and Current. Buffalo River ...... Tennessee ...... Lewis ...... TN Historical. Note: A ? represents a lack of specific locational information in the museum and literature record.

Prior to 1980, the fluted kidneyshell addition, the population in the upper data). Both reintroduction sites in the was fairly widespread and common in North Fork Holston River, although still Nolichucky River have retained ‘‘large many Cumberlandian Region streams large, has declined substantially since numbers of live individuals’’ (Hubbs based on collections in museums and circa 2000. The North Fork Holston 2012, pers. comm.). It is not known if from the literature record. The River population is predominately the Big South Fork reintroductions have extirpation of this species from composed of large individuals, unlike been successful. Approximately 691 numerous streams within its historical the Clinch River population, which is adult individuals of the species have range indicates that substantial skewed towards smaller size classes been translocated from the Clinch River, population losses and range reductions (Ostby et al. 2010, pp. 7, 22–24). These Tennessee, into the Little Tennessee have occurred. differences in population characteristics River bypass reach below Calderwood are a clear indication that recruitment in Dam, Tennessee (Moles 2012, pers. Current Range and Distribution the Clinch River population is more comm.). The Virginia Department of In this document, populations of the observable than the population in the Game and Inland Fisheries (VDGIF) fluted kidneyshell are generally North Fork Holston River. reintroduced 58 adults into Indian considered extant (current) if live Resource managers have been making Creek, a tributary to the Clinch River, individuals or fresh dead specimens attempts to reintroduce the fluted using Clinch River stock. They have also (individuals that are deceased, but still kidneyshell into historical habitat over propagated and released 562 juveniles have flesh attached to the shell) have the past decade. In Tennessee, into the North Fork Holston River been collected since circa 1980. This thousands of individuals of the species (Duncan 2012, pers. comm.). criterion was chosen because a large have been translocated (transferred from The extant fluted kidneyshell number of collections were conducted one location to another) from the Clinch populations (including the potentially in the 1980s in the Cumberland and River into three sites in the upper Duck reintroduced populations) in the Tennessee River systems, and due to the River and into two sites in the Cumberlandian Region generally longevity of this species (26–55 years), Nolichucky River by Tennessee Wildlife represent small, isolated occurrences. they are still thought to occur in these Resource Agency (TWRA) biologists The only population of the fluted areas. Where two or more stream (Hubbs 2011, unpubl. data). In 2010, six kidneyshell known to be large, stable, populations occur contiguously with no individuals were collected during a and viable is in the Clinch River, but it barriers, such as impoundments or long quantitative survey at Lillard’s Mill in is in a relatively short reach of river reaches of unoccupied habitat, they are the Duck River, confirming some level primarily in the vicinity of the considered single population segments of survival and persistence of the Tennessee-Virginia State line. Jones or clusters. Multi-stream population reintroduced population (Hubbs et al. (2012, unpub. data) estimates 500,000 to segments include the Wolf River and its 2011, p. 18). The individuals collected 1,000,000 individuals occur in the tributary Town Branch in the appeared in good condition and had Clinch River from just a 32-river- Cumberland River system, and Clinch grown noticeably since their release (as kilometer (rkm) (20-river-mile (rmi)) River and Copper Creek (but not the evidenced by external shell marks) reach (rkm 309 to 277 (rmi 172 to 192)). other two upper Clinch tributaries, (Hubbs 2011, unpubl. data). Evidence Live adults and juveniles have been Indian Creek and Little River) in the that the reintroduced population of observed over the past 10 years in shoal Tennessee River system. Based on these fluted kidneyshell was recruiting was habitats in the upper Clinch River, criteria, we consider 17 of 40 documented in 2012, when a young Virginia, particularly at and above populations of fluted kidneyshell to be unmarked sub-adult individual was Cleveland Islands, and many more fresh extant. Therefore, the fluted kidneyshell found in a muskrat midden (pile or dead shells have been collected in has been eliminated from more than 50 mound of shells) near Lillard’s Mill in muskrat middens in this reach. Eckert percent of streams from which it was the Duck River (Hubbs 2012, pers. and Pinder (2010, pp. 23–30) collected historically known. comm.). In 2008, the Kentucky 18 individuals in quantitative samples Several populations considered extant Department of Fish and Wildlife and 11 individuals in semi-quantitative at the time this species was elevated to Resources (KDFWR) translocated 144 samples in the Clinch River at candidate status in 1999 (e.g., individuals from the Clinch River into Cleveland Island in 2008, and 15 Rockcastle River, Kennedy Creek) are the Big South Fork of the Cumberland individuals in quantitative samples and now considered to be extirpated. In River, Kentucky (Hubbs 2011, unpubl. 62 individuals in semi-quantitative

VerDate Mar<15>2010 17:00 Sep 25, 2013 Jkt 229001 PO 00000 Frm 00110 Fmt 4700 Sfmt 4700 E:\FR\FM\26SER1.SGM 26SER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 78, No. 187 / Thursday, September 26, 2013 / Rules and Regulations 59273

samples in the Clinch River at Creek, Middle Fork Rockcastle River, are of questionable viability, with some Cleveland Island in 2002. Ostby and Little South Fork Cumberland River, on the verge of extirpation (e.g., Horse Angermeier (2011, entire) found two Rock Creek, West Fork Obey River). Lick and Rock Creeks). Newly live individuals in the Little River reintroduced populations will hopefully Population Estimates and Status (tributary to Clinch River). Henley et al. begin to reverse the overall downward (1999, pp. 20, 22) collected live Extirpated from both the Cumberland trend of this species. individuals at 6 of 25 sites surveyed in and Tennessee River mainstems, the The fluted kidneyshell was the Middle Fork Holston River in 1997 fluted kidneyshell has been eliminated considered a species of special concern and 1998. The fluted kidneyshell was from approximately 50 percent of the by Williams et al. (1993, p. 14), but two found in Copper Creek between creek total number of streams from which it decades later is now considered rkm 2 and 31 (rmi 1 and 19) (Hanlon et was historically known. Population size endangered in a reassessment of the al. 2009, pp. 15–17). Petty et al. (2006, data gathered during the past decade or North American mussel fauna by the pp. 4, 36) found the species between two indicate that the fluted kidneyshell Endangered Species Committee of the Copper Creek rkm 24 and 31 (rmi 15 is rare in nearly all extant populations, American Fisheries Society (Butler and 19), and reported evidence of the Clinch River being a notable 2012, pers. comm.). Further, the fluted reproduction and recruitment of the exception. The fluted kidneyshell is kidneyshell is listed as a species of species at these locations. In 2008–09, particularly imperiled in Kentucky. Greatest Conservation Need (GCN) in 35 live individuals were found at 5 of Haag and Warren (2004, p. 16) reported the Kentucky, Tennessee, and Virginia 21 sites sampled in the Powell River, in that a small, extremely vulnerable State Wildlife Action Plans (KDFWR both Tennessee and Virginia, and there population of the fluted kidneyshell 2005; TWRA 2005; VDGIF 2005). may exist in Horse Lick Creek but at was some indication of relatively recent Slabside Pearlymussel recruitment (Johnson et al. 2012, p. 96). extremely low levels that they were not Ostby et al. (2010, pp. 16–20) observed able to detect. They only collected fresh Taxonomy and Species Description dead shell material in Horse Lick Creek. 772 individuals during qualitative The taxonomic status of the slabside surveys and 10 individuals in The vast reduction of the once sizable Little South Fork population since the pearlymussel (family Unionidae) as a quantitative surveys in the North Fork distinct species is undisputed within Holston River, Virginia. late 1980s (Warren and Haag 2005, pp. 1384, 1388–1396) and the tenuous the scientific community. The species is Live fluted kidneyshell have not been status of the other Cumberland River recognized as Lexingtonia dolabelloides collected in the Middle Fork Rockcastle system populations put the species at (I. Lea, 1840) in the ‘‘Common and River since the mid-1980s (Layzer and risk of total extirpation from that Scientific Names of Aquatic Anderson 1992, p. 64). Haag and Warren Cumberland River system. In addition, Invertebrates from the United States and (2004, p. 16) collected only fresh dead the populations in the Powell River Canada: Mollusks, Second Edition’’ shell material in Horse Lick Creek, and (post-1980) and the Middle Fork (post- (Turgeon et al. 1998, p. 35). However, reported that a small, extremely 1995) and upper North Fork (post-2000) there are currently differing opinions on vulnerable population of the fluted Holston Rivers in Virginia have the appropriate genus to use for the kidneyshell may exist there, but at very declined in recent years based according species. Genetic analyses by Bogan et al. low levels that they were not able to to recent survey efforts (Henley et al. (unpublished data), as cited by Williams detect. Warren and Haag (2005, pp. 1999, p. 23; Ahlstedt et al. 2005, p. 9; et al. (2008, p. 584), suggest that the 1384, 1388–1396) reported a vast Jones and Neves 2007, p. 477; Johnson type species of Lexingtonia, Unio reduction of the once sizable Little et al. 2012, pp. 94–96). Populations of subplana Conrad, 1837, is synonymous South Fork population since the late the fluted kidneyshell remain locally with Fusconaia masoni (Conrad, 1834). 1980s. Live fluted kidneyshell have not abundant in certain reaches of the North Lexingtonia is therefore a junior been collected in the Big South Fork Fork Holston River but are reduced in synonym of Fusconaia (Williams 2011, since the mid-1980s (Ahlstedt et al. overall range within the river (Ostby pers. comm.). Analyses by Campbell et 2003–2004, p. 65). In 2010, two and Neves 2005, 2006a, and 2006b, al. (2005, pp. 141, 143, 147) and individuals were found in Buck Creek entire; Dinkins 2010a, p. 3–1). Declines Campbell and Lydeard (2012a, pp. 3–6, and collected for future propagation in mussel community abundance in the 9; 2012b, pp. 25–27, 30, 34) suggest that efforts (McGregor 2010, unpub. data). North Fork Holston River have been in ‘‘Lexingtonia’’ dolabelloides, Live fluted kidneyshell have not been the form of several die-offs. The cause ‘‘Fusconaia’’ barnesiana, and collected in Rock Creek since 1988 for the observed die-offs is unknown ‘‘Pleurobema’’ gibberum do not (Layzer and Anderson 1992, p. 68). (Jones and Neves 2007, p. 479), but they correspond to their currently assigned Layzer and Anderson (1992, p. 22) are likely related to agricultural impacts genera but form a closely related group. collected fluted kidneyshell at two sites (Hanlon et al. 2009, p. 11). Williams et al. (2008, pp. 584–593) and in the West Fork Obey River. A small In summary, the fluted kidneyshell Campbell and Lydeard (2012b, pp. 30, but recruiting population occurs in the has been eliminated from more than 50 34) picked the next available genus Wolf River, Tennessee, based on 2005– percent of the total number of streams name for dolabelloides, which appears 2006 sampling (Moles et al. 2007, p. 79). from which it was historically known. to be Pleuronaia (Frierson 1927). Based This may be the best population Populations in Buck Creek, Little South on this latest information, we currently remaining in the entire Cumberland Fork, Horse Lick Creek, Powell River, consider Pleuronaia to be the most River system, where most populations and North Fork Holston River have appropriate generic name for the are very restricted in range and are clearly declined over the past two slabside pearlymussel. highly imperiled. Given its longevity, decades. Based on recent information, The following description, biology, small populations of this long-lived the overall population status of the and life history of the slabside species may persist for decades despite fluted kidneyshell rangewide is pearlymussel is taken from data total recruitment failure. Given the declining. A few populations are summarized in Parmalee and Bogan reports presented above, at least five of considered to be viable (e.g., Wolf, (1998, pp. 150–152). The slabside the extant populations may be Clinch, Little, North Fork Holston pearlymussel is a moderately sized functionally extirpated (e.g., Horse Lick Rivers). However, all other populations mussel that reaches about 9 cm (3.5 in)

VerDate Mar<15>2010 17:00 Sep 25, 2013 Jkt 229001 PO 00000 Frm 00111 Fmt 4700 Sfmt 4700 E:\FR\FM\26SER1.SGM 26SER1 mstockstill on DSK4VPTVN1PROD with RULES 59274 Federal Register / Vol. 78, No. 187 / Thursday, September 26, 2013 / Rules and Regulations

in length. The shape of the shell is with the glochidia being released during and cobble substrates in relatively subtriangular, and the very solid, heavy the late summer in the form of shallow riffles and shoals with moderate valves are moderately inflated. For a conglutinates. Slabside pearlymussel current (Parmalee and Bogan 1998, p. complete description of the species, conglutinates have not been described. 152; Williams et al. 2008, p. 590). This please refer to the October 4, 2012, The slabside pearlymussel’s host fishes species requires flowing, well- proposed listing and critical habitat rule include 11 species of minnows (popeye oxygenated waters to thrive. (77 FR 60804). shiner, Notropis ariommus; rosyface Historical Range and Distribution shiner, N. rubellus; saffron shiner, N. Habitat and Life History rubricroceus; silver shiner, N. Historically, the slabside General life-history information for photogenis; telescope shiner, N. pearlymussel occurred in the lower the slabside pearlymussel is similar to telescopus; Tennessee shiner, N. Cumberland River mainstem from the that given for the fluted kidneyshell leuciodus; whitetail shiner, Cyprinella vicinity of the Kentucky State line above. Samples from approximately 150 galactura; striped shiner, Luxilus downstream to the Caney Fork River, shells of the slabside pearlymussel from chrysocephalus; warpaint shiner, L. Tennessee, and in the Tennessee River the North Fork Holston River were thin- coccogenis; white shiner, L. albeolus; mainstem from eastern Tennessee to sectioned for age determination. The and eastern blacknose dace, Rhinichthys western Tennessee. The slabside maximum age exceeded 40 years atratulus) (Kitchel 1985 and Neves 1991 pearlymussel’s known historical and (Grobler et al. 2005, p. 65). in Parmalee and Bogan 1998, pp. 150– current occurrences, by water body and The slabside pearlymussel utilizes all 152; Jones and Neves 2002, pp. 18–20). county, are shown in Table 2 below four gills as a marsupium for its The slabside pearlymussel is (data from Gordon and Layzer 1989, glochidia. It is thought to have a spring primarily a large creek to large river entire; Winston and Neves 1997, entire; or early summer fertilization period species, inhabiting sand, fine gravel, Parmalee and Bogan 1998, pp. 150–152).

TABLE 2—KNOWN HISTORICAL (PRIOR TO 1980) AND CURRENT OCCURRENCES FOR THE SLABSIDE PEARLYMUSSEL

Water body Drainage County State Historical or current

Cumberland River ...... Cumberland ...... Davidson, Smith ...... TN ...... Historical. Rock Creek ...... Cumberland ...... McCreary ...... KY ...... Historical. Caney Fork River ...... Cumberland ...... ? ...... TN ...... Historical. Red River ...... Cumberland ...... Logan ...... KY ...... Historical. Red River ...... Cumberland ...... ? ...... TN ...... Historical. South Fork Powell River ...... Tennessee ...... Wise ...... VA ...... Historical. Powell River ...... Tennessee ...... Claiborne ...... TN ...... Historical. Powell River ...... Tennessee ...... Hancock ...... TN ...... Historical and Current. Powell River ...... Tennessee ...... Lee ...... VA ...... Historical and Current. Puckell Creek ...... Tennessee ...... Lee ...... VA ...... Historical. Clinch River ...... Tennessee ...... Hancock ...... TN ...... Historical and Current. Clinch River ...... Tennessee ...... Anderson, Campbell, Clai- TN ...... Historical. borne, Knox. Clinch River ...... Tennessee ...... Russell, Scott, Tazewell, Wise VA ...... Historical and Current. North Fork Holston River ...... Tennessee ...... Hawkins, Sullivan ...... TN ...... Historical. North Fork Holston River ...... Tennessee ...... Bland, Scott, Smyth, Wash- VA ...... Historical and Current. ington. Big Moccasin Creek ...... Tennessee ...... Russell, Scott ...... VA ...... Historical and Current. Middle Fork Holston River ...... Tennessee ...... Smyth, Washington, Wythe .... VA ...... Historical and Current. South Fork Holston River ...... Tennessee ...... Sullivan ...... TN ...... Historical. Holston River ...... Tennessee ...... ? ...... TN ...... Historical. French Broad River ...... Tennessee ...... Sevier ...... TN ...... Historical. Tennessee River ...... Tennessee ...... Colbert, Jackson, Lauderdale AL ...... Historical. Tennessee River ...... Tennessee ...... Hamilton, Hardin, Knox, TN ...... Historical. Meigs, Rhea. Nolichucky River ...... Tennessee ...... Cocke, Greene, Hamblen ...... TN ...... Historical and Current. West Prong Little Pigeon River Tennessee ...... Sevier ...... TN ...... Historical. Tellico River ...... Tennessee ...... Monroe ...... TN ...... Historical. Little Tennessee River ...... Tennessee ...... Monroe ...... TN ...... Historical. Hiwassee River ...... Tennessee ...... Polk ...... TN ...... Historical and Current. Spring Creek ...... Tennessee ...... Polk ...... TN ...... Historical. Sequatchie River ...... Tennessee ...... Sequatchie ...... TN ...... Historical and Current. Crow Creek ...... Tennessee ...... Jackson ...... AL ...... Historical. Larkin Fork ...... Tennessee ...... Jackson ...... AL ...... Historical and Current. Estill Fork ...... Tennessee ...... Jackson ...... AL ...... Historical and Current. Hurricane Creek ...... Tennessee ...... Jackson ...... AL ...... Historical and Current. Paint Rock River ...... Tennessee ...... Jackson, Madison, Marshall ... AL ...... Historical and Current. Flint River ...... Tennessee ...... Madison ...... AL ...... Historical. Flint Creek ...... Tennessee ...... Morgan ...... AL ...... Historical. Limestone Creek ...... Tennessee ...... Limestone ...... AL ...... Historical. Elk River ...... Tennessee ...... Limestone ...... AL ...... Historical and Current. Elk River ...... Tennessee ...... Lincoln ...... TN ...... Historical and Current. Elk River ...... Tennessee ...... Coffee, Franklin, Moore ...... TN ...... Historical. Sugar Creek ...... Tennessee ...... Limestone ...... AL ...... Historical. Bear Creek ...... Tennessee ...... Colbert ...... AL ...... Historical and Current. Bear Creek ...... Tennessee ...... Tishomingo ...... MS ...... Historical and Current.

VerDate Mar<15>2010 17:00 Sep 25, 2013 Jkt 229001 PO 00000 Frm 00112 Fmt 4700 Sfmt 4700 E:\FR\FM\26SER1.SGM 26SER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 78, No. 187 / Thursday, September 26, 2013 / Rules and Regulations 59275

TABLE 2—KNOWN HISTORICAL (PRIOR TO 1980) AND CURRENT OCCURRENCES FOR THE SLABSIDE PEARLYMUSSEL— Continued

Water body Drainage County State Historical or current

Duck River ...... Tennessee ...... Bedford, Hickman, Marshall, TN ...... Historical and Current. Maury. Duck River ...... Tennessee ...... Coffee ...... TN ...... Historical. North Fork Creek ...... Tennessee ...... Bedford ...... TN ...... Historical. Big Rock Creek ...... Tennessee ...... Marshall ...... TN ...... Historical. Buffalo River ...... Tennessee ...... Humphreys, Perry ...... TN ...... Historical and Current. Buffalo River ...... Tennessee ...... Lewis ...... TN ...... Historical. Note: A ? represents a lack of specific locational information in the museum and literature record.

Based on collections made in the surveyors may find four or fewer This is especially true for the North early 1900s, the slabside pearlymussel specimens per site of occurrence) in Fork, where the species has been nearly was historically fairly widespread and about half of its extant populations. eliminated (Hanlon 2006, unpub. data). common in many Cumberlandian Only a few individuals have been found The cause for the observed die-offs is Region streams. However, its decline in in the Powell River since 1988; unknown (Jones and Neves 2007, p. certain streams may have begun before therefore, this population is considered 479). Ostby et al. (2010, pp. 16–20) European colonization. The slabside extremely rare (Ahlstedt et al. 2005, p. observed eight individuals in qualitative pearlymussel was considered rare by 9). In 2009, four individuals were surveys at one site, but did not observe mussel experts as early as 1970 collected in the Powell River (Johnson the species in quantitative surveys in (Stansbery 1971, p. 13), which et al. 2010, p. 39). A single live the Upper North Fork Holston River. represents the first attempt to compile individual was found in 2006 in Big Slabside pearlymussels have declined at such a list. The extirpation of this Moccasin Creek, Virginia (Ostby et al. three of four survey sites on the Middle species from numerous streams within 2006, p. 3). The slabside pearlymussel is Fork Holston River (Henley 2011, pers. its historical range indicates that uncommon to rare in the Clinch River, comm.). A single valve of a fresh dead substantial population losses and range with only a few individuals found per specimen was found in the Nolichucky reductions have occurred. given survey effort (Ahlstedt et al. 2005, River in 2011 (Dinkins 2010b, p. 2–1). p. 8). In 2002, Eckert and Pinder (2010, In 2011, TVA collected one living Current Range and Distribution pp. 23–30) observed 2 individuals in individual in the Buffalo River (Wales In this document, populations of the quantitative samples and 13 individuals 2012, pers. comm.). slabside pearlymussel, as for the fluted in semi-quantitative samples in the The Duck and Paint Rock Rivers kidneyshell, are generally considered Clinch River at Cleveland Island; 6 years appear to have the best populations extant (current) if live individuals or later, they collected 1 individual in remaining rangewide based on fresh dead specimens have been quantitative samples and 5 individuals population size and the evidence of collected since circa 1980. This criterion in semi-quantitative samples at the same recent recruitment. The slabside was chosen because a large number of site. In 2005, approximately 20 pearlymussel is found at numerous sites collections were conducted in the 1980s individuals were found near Harms Mill throughout the Duck River, and is found in the Cumberland and Tennessee River (one of five sites surveyed) in the Elk at numerous sites within a 72-rkm (45- systems and due to the longevity of this River, Tennessee, and 13 individuals (at rmi) reach of the Paint Rock River species (approximately 40 years), they 2 of 5 survey sites, spanning (Schilling and Williams 2002, p. 409; are still thought to occur in these areas. approximately 48 rkm (30 rmi)) were Ahlstedt et al. 2004, p. 84; Fobian et al. Where two or more stream found in 2008 (Howard 2009, pers. 2008, pp. 15–16; Hubbs 2012, pers. populations occur contiguously with no comm.; Tennessee Valley Authority obs.). The slabside pearlymussel was absolute barriers (e.g., large (TVA) 2009, p. 59). In 2002, one live reported present but rare at four of six impoundments) or long reaches of individual was found in the Hiwassee sites sampled in the Duck River during unoccupied habitat, they are considered River (Ahlstedt 2003, p. 3). The slabside a 2010 quantitative survey (Hubbs et al. to represent a single population pearlymussel was last found in the 2011, pp. 19–25). segment. The Paint Rock River system Sequatchie River 2 miles north of (including Larkin Fork, Estill Fork, and Dunlap, Tennessee in 1980 (Hatcher and Population Estimates and Status Hurricane Creek) is considered a single Ahlstedt 1982, p. 9). A small population Current status information for most of population segment or cluster but it is limited to Bear Creek in Mississippi, the 13 extant populations is available occurs only in the lower mile or so of the only occurrence in that State (Jones from recent survey efforts (sometimes the three tributary streams. Accordingly, 2012, pers. comm.). In 2009, TVA annually) and other field studies. we consider 13 of 30 populations of the collected 9 individuals at one site in Comprehensive surveys have taken slabside pearlymussel to be extant. The Bear Creek (TVA 2010, p. 69). This place in the Middle and North Forks slabside pearlymussel has been population is recruiting, as evidenced Holston River, Paint Rock River, and eliminated from more than 50 percent of by collection of the shell remains of a Duck River in the past several years. streams from which it was historically fresh dead juvenile in 2011 (Johnson Based on this information, the overall known. 2011, pers. comm.). Given its longevity, population of the slabside pearlymussel The extant occurrences in the small populations of this long-lived appears to be declining rangewide, with Tennessee River system represent 11 species may persist for decades, long relatively good numbers and apparent isolated populations. Population size after total recruitment failure. The viability in just two streams (Duck and data gathered during the past two species has undergone decline in the Paint Rock Rivers). Two of the four decades indicate that the slabside North and Middle Forks of the Holston largest populations in the mid-1990s pearlymussel is rare (experienced River (Jones and Neves 2005, pp. 8–9). have recently experienced drastic recent

VerDate Mar<15>2010 17:00 Sep 25, 2013 Jkt 229001 PO 00000 Frm 00113 Fmt 4700 Sfmt 4700 E:\FR\FM\26SER1.SGM 26SER1 mstockstill on DSK4VPTVN1PROD with RULES 59276 Federal Register / Vol. 78, No. 187 / Thursday, September 26, 2013 / Rules and Regulations

declines (i.e., North and Middle Forks individuals. We did not receive any and does not in the proposed rule Holston Rivers), especially in the North comments from State agencies. Four of request public comment on whether a Fork. Most of the other populations are the seven commenters supported the ‘‘warranted but precluded’’ finding of questionable viability and may be on proposed rule. All substantive might be appropriate. The failure to the verge of extirpation (e.g., Powell and information provided during the preserve the ‘‘warranted by precluded’’ Hiwassee Rivers; Big Moccasin Creek). comment period has either been finding negates important conservation Populations of the slabside incorporated directly into this final mechanisms for the mussels by pearlymussel appear to be declining determination or is addressed below. removing incentives for State and rangewide and have been extirpated private conservation actions designed to Peer Reviewer Comments from more than 50 percent of the avoid the need for listing. streams from which the species was In accordance with our peer review Our Response: The United States historically known to occur. The policy published on July 1, 1994 (59 FR Court of Appeals for the District of slabside pearlymussel was considered 34270), we solicited expert opinions Columbia Circuit has recently spoken to threatened by Williams et al. (1993, p. from eight knowledgeable individuals these issues. Safari Club International 13), but is now considered endangered with scientific expertise that included moved to intervene in the MDL, arguing in a reassessment of the North American familiarity with the two mussels and in part that the settlement agreements, mussel fauna by the Endangered Species their habitats, biological needs, and ‘‘establish an illegal procedure—the Committee of the American Fisheries threats. We received responses from two elimination of the Service’s statutory Society (Butler 2012, pers. comm.). of the peer reviewers. authority to find that a proposal to list Further, the slabside pearlymussel is We reviewed all comments we a species is warranted but precluded by listed as a species of Greatest received from the peer reviewers for higher priorities.’’ On January 4, 2013, Conservation Need (GCN) in the substantive issues and new information the United States Court of Appeals for Alabama, Mississippi, Tennessee, and regarding the listing of the two mussels. the District of Columbia Circuit affirmed Virginia State Wildlife Action Plans The peer reviewers generally concurred the District Court’s holding that Safari (Alabama Department of Conservation with our conclusions and provided Club International lacked standing to and Natural Resources, Division of additional information on taxonomic challenge these agreements (see Safari Wildlife and Freshwater Fisheries, 2005; classification, life history, current Club v. Salazar, 704 F.3d 972 (D.C. Cir. KDFWR 2005; Mississippi Department distribution, and threats. Peer reviewers 2013)). Among other things, the Court of Wildlife, Fisheries and Parks 2005; provided minor edits and comments held that neither the Act nor the TWRA 2005; VDGIF 2005). related to the listing of these species, implementing regulations require the Service to invite comment when it Summary of Comments and which we incorporated into the final makes a warranted-but-precluded Recommendations rule as appropriate. The substantive comments we received from one peer finding. Responding to the concern that In the proposed rule published on reviewer on the critical habitat the failure to preserve the ‘‘warranted by October 4, 2012 (77 FR 60804), we designation are addressed in the final precluded’’ finding negates important requested that all interested parties critical habitat rule published elsewhere conservation mechanisms, the Court submit written comments on the in today’s Federal Register. held there is nothing to indicate that proposed rule to list the fluted Congress intended the Act ‘‘to allow kidneyshell and slabside pearlymussel Federal Agency Comments [the Service] to delay commencing the by December 3, 2012. We also contacted (1) Comment: The U.S. Department of rulemaking process for any reason other appropriate Federal and State agencies, Agriculture, Natural Resources than the existence of pending or scientific experts and organizations, and Conservation Service (NRCS) in imminent proposals to list species other interested parties and invited Kentucky would like to explore subject to a greater degree of threat [that] them to comment on the proposal. opportunities to focus conservation would make allocation of resources to Newspaper notices inviting general practices, including the Wildlife Habitat such a petition unwise.’’ public comment were published in Incentives Program (WHIP) and the Further, even if additional time for newspapers covering all affected Environmental Quality Incentives conservation measures was a counties in Alabama, Kentucky, Program, on water quality improvement permissible reason for delaying the Mississippi, Tennessee, and Virginia. and restoration in any areas designated rulemaking process, we do not believe During that comment period, we as critical habitat for the fluted failure to preserve the ‘‘warranted by received one request for a public kidneyshell and other aquatic precluded’’ finding negates important hearing in Virginia. We subsequently organisms. conservation mechanisms for the reopened the public comment period for Our Response: The Service concurs mussels by removing incentives for the October 4, 2012, proposed rule; that Farm Bill practices implemented by State and private conservation actions made available the draft economic the NRCS can improve water quality designed to avoid the need for listing. analysis for the proposed critical habitat and benefit rare aquatic species. We will As we discussed in the proposed listing designation; and announced a public continue to work with NRCS to identify rule (77 FR 60804; see Previous Federal informational session and public aquatic habitats for rare aquatic species Actions), the fluted kidneyshell has hearing on the proposal, which we held that would benefit from conservation been a formal candidate for listing on May 14, 2013 (78 FR 25041; April 29, practices on private lands. under the Act since 1999, and the 2013). slabside pearlymussel has been a formal During the two comment periods for Public Comments candidate for listing since 1984. The the proposed rule, we received seven (2) Comment: Under the Multi-District MDL settlement agreements now comment letters in response to the Litigation (MDL) settlement agreement, provide predictability for stakeholders proposed determination of endangered the Service has failed to preserve and and local communities. Prior to the species status for the fluted kidneyshell consider the ‘‘warranted but precluded’’ settlement agreements, stakeholders and slabside pearlymussel: Two from finding for this listing decision. Further, were unsure when the Service might peer reviewers, one from a Federal the Service did not request comments pursue a listing determination on a agency, and four from organizations or on its decision to exclude this finding, candidate species. The settlements have

VerDate Mar<15>2010 17:00 Sep 25, 2013 Jkt 229001 PO 00000 Frm 00114 Fmt 4700 Sfmt 4700 E:\FR\FM\26SER1.SGM 26SER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 78, No. 187 / Thursday, September 26, 2013 / Rules and Regulations 59277

allowed the Service to establish and We reviewed all comments we (5) Comment: The preamble of the make available to the public a multi- received from the peer reviewers and proposed rule relies in part on climate year schedule for listing determinations others for substantive issues and new change as a factor supporting the listing on our candidate species. Stakeholders information regarding the listing of both decision and relies on unsubstantiated know in advance, in some cases years in mussels. The peer reviewers generally claims about the effects of climate advance, when we will be reviewing concurred with our conclusions and change on the species. Additionally, these candidates to determine whether a provided additional information on such attenuated assertions of listing proposal is still warranted. The taxonomic classification, life history, endangerment could be used to justify settlements have also served to current distribution, and threats. Peer the listing of almost any species and do encourage proactive conservation efforts reviewers provided minor edits and not constitute scientific evidence of by landowners, industry groups, local comments related to the listing of these endangerment. communities, and government agencies. species, which we incorporated into the Our Response: There is a growing Sometimes proactive conservation final rule as appropriate. concern that climate change may lead to efforts can make a listing under the Act Further, section 515(b)(2)(A) of the increased frequency of severe storms no longer necessary. Candidate Information Quality Act requires that and droughts (McLaughlin et al. 2002, conservation agreements with each Federal agency issue guidelines p. 6074; Cook et al. 2004, p. 1015; assurances (CCAAs) can also be ensuring and maximizing the quality, Golladay et al. 2004, p. 504). Specific developed and permitted to provide objectivity, utility, and integrity of effects of climate change to mussels, regulatory assurances to participating information (including statistical their habitat, and their fish hosts could landowners in the event that listing is information) disseminated by the include changes in stream temperature still warranted. Conservation efforts agency. The Service’s guidelines, which regimes and changes in the timing and developed by stakeholders may also be are updated as of June 2012, are levels of precipitation, causing more rolled into habitat conservation plans available on the Internet at: http:// frequent and severe floods and that provide predictability and www.fws.gov/informationquality/topics/ droughts. The present conservation compliance with the Act for IQAguidelines-final82307.pdf. status, complex life histories, and landowners, industry groups, or local (4) Comment: The proposed rule specific habitat requirements of mussels communities. relies on questionable factual and suggest that they may be quite sensitive (3) Comment: The Service published scientific bases by considering to the effects of climate change (Hastie a proposed rule that had not undergone populations of the two species to be et al. 2003, p. 45). peer review, thereby not necessarily ‘‘extant’’ if specimens have been Increases in temperature and reflecting sound science, as required by observed since 1980, a period of over 30 reductions in flow can also lower section 4 of the Act and as required years. This notion appears scientifically dissolved oxygen levels in interstitial under section 515(b)(2)(A) of the untested and misguided given the habitats, a condition that can be lethal Information Quality Act. Rather than Service’s conclusion that the species to juveniles (Sparks and Strayer 1998, conducting peer review prior to have been eliminated from over 50 pp. 131–133). Even small increases in publication of the proposed rule, which percent of their habitat. The Service’s temperature can cause reductions in the would allow the public to view a fully asserted basis for relying on dated survival of freshwater mussel glochidia scientifically vetted proposal, the information is circular, and scientific and juveniles, and temperatures Service opted to conduct peer review determinations, such as whether a currently encountered in the temperate contemporaneously with the public species is extant or endangered, should United States during summers are close comment period. Additionally, there is be based on current, empirical data that to or above the upper thermal tolerances no indication that the public will have are measurable and repeatable. of early life stages of freshwater mussels an opportunity to review and comment Our Response: We are required, by (Pandolfo et al. 2010, pp. 965, 967). on the rule as informed by peer review, statute and regulation, to base our Effects to mussel populations from these which is troubling due to the Service determinations solely on the basis of the environmental changes could include relying on decades-old data (e.g., best scientific and commercial data reduced abundance and biomass, concluding a population to be extant if available. In this document, populations altered species composition, and found post-1980). of the fluted kidneyshell are generally reduced host fish availability (Galbraith Our Response: In accordance with our considered extant (current) if live et al. 2010, pp. 1180–1182). peer review policy published on July 1, individuals or fresh dead specimens During high flows, flood scour can 1994 (59 FR 34270), we solicited expert have been collected since circa 1980. dislodge mussels, potentially causing opinion from eight knowledgeable This criterion (circa 1980) was chosen them to be injured, buried, swept into individuals with scientific expertise that because a large number of mussel unsuitable habitats, or stranded and included familiarity with the two collections were conducted in the 1980s perish when flood waters recede mussels and their habitats, biological in the Cumberland and Tennessee River (Vannote and Minshall 1982, p. 4105; needs, and threats. In keeping with our systems; fewer collections were Tucker 1996, p. 435; Hastie et al. 2001, policy, we contacted these peer conducted post-1980. Although many of pp. 107–115; Peterson et al. 2011, reviewers when the proposed rule was these reaches have not been surveyed unpaginated). We have deleted several published in the Federal Register. We since the 1980s, due to the reported ‘‘may’’ statements regarding how received responses from two of the peer longevity of these species (26–55 years; climate change could impact freshwater reviewers. We posted all of the Henley et al. 2002, p. 19; Davis and mussels. We have added in citations comments we received on the October 4, Layzer 2012, p. 92), it is likely they still regarding studies on how increased 2012, proposed rule to list the fluted occur in those reaches. temperature impacts larval and juvenile kidneyshell and slabside pearlymussel Approximately 50 percent of the mussels (see Factor E for a more as endangered under the Act with habitat for these species has been detailed discussion). critical habitat (77 FR 60804) on the eliminated, most of which is due to (6) Comment: The proposed rule sets Internet at http://www.regulations.gov impoundment, and we have not forth an overbroad statement of the under Docket No. FWS–R4–ES–2012– considered impounded river reaches to types of activities that could constitute 0004. be ‘‘extant’’ populations. a ‘‘take’’ of these species. For example,

VerDate Mar<15>2010 17:00 Sep 25, 2013 Jkt 229001 PO 00000 Frm 00115 Fmt 4700 Sfmt 4700 E:\FR\FM\26SER1.SGM 26SER1 mstockstill on DSK4VPTVN1PROD with RULES 59278 Federal Register / Vol. 78, No. 187 / Thursday, September 26, 2013 / Rules and Regulations

the rule identifies, ‘‘unauthorized fluted kidneyshell and slabside survive and reproduce, and are modification of the channel, substrate, pearlymussel. particularly susceptible to channel temperature, or water flow of any stream (6) We have deleted several ‘‘may’’ instability (Neves et al. 1997, p. 23) and or water body in which these species are statements regarding how climate alteration in the dynamic processes known to occur’’ and ‘‘unauthorized change could impact freshwater mussels involved in maintaining stream discharge of chemicals or fill material and added in citations regarding studies stability. Dams interrupt most of a into any waters in which the fluted on how increased temperature impacts river’s ecological processes by kidneyshell and slabside pearlymussel larval and juvenile mussels (see Factor modifying flood pulses; controlling are known to occur.’’ Additionally, the E for a more detailed discussion). impounded water elevations; altering Service fails to include the key We note here, however, that none of water flow, sediments, nutrients, energy qualification that an action must [italics these changes affected our inputs, and outputs; increasing depth; added by commenter for emphasis] determinations for these two species, decreasing habitat heterogeneity; and proximately cause actual death or injury and as proposed, in this rule we are decreasing bottom stability due to to a species in order to qualify as listing both the fluted kidneyshell and subsequent sedimentation. In addition, ‘‘harm’’ within the meaning of ‘‘take.’’ slabside pearlymussel as endangered dams can also seriously alter Our Response: Section 9 of the Act species. downstream water quality and riverine and our regulations prohibit the take of Summary of Factors Affecting the habitat and negatively impact tailwater mussel populations. These changes endangered and threatened species, Species with certain exceptions. Take is defined include thermal alterations immediately by the Act as to harass, harm, pursue, Section 4 of the Act, and its below dams; changes in channel hunt, shoot, wound, kill, trap, capture, implementing regulations at 50 CFR part characteristics, habitat availability, and or collect, or to attempt to engage in any 424, set forth the procedures for adding flow regime; daily discharge such conduct. Harm is defined in our species to the Federal Lists of fluctuations; increased silt loads; and regulations at 50 CFR 17.3 to include Endangered and Threatened Wildlife altered host fish communities. For these significant habitat modification or and Plants. Under section 4(a)(1) of the above-mentioned reasons, the degradation that results in death or Act, we may list a species based on any reproductive process of riverine mussels injury to listed species by significantly of the following five factors: (A) The is generally disrupted by impairing essential behavioral patterns, present or threatened destruction, impoundments, making them unable to including breeding, feeding, or modification, or curtailment of its successfully reproduce and recruit sheltering. Also in our regulations at 50 habitat or range; (B) overutilization for under reservoir conditions. Coldwater CFR 17.3, harass is defined as commercial, recreational, scientific, or releases from large, non-navigational intentional or negligent actions that educational purposes; (C) disease or dams and scouring of the river bed from create the likelihood of injury to listed predation; (D) the inadequacy of highly fluctuating, turbulent tailwater species to such an extent as to existing regulatory mechanisms; and (E) flows have also been implicated in the significantly disrupt normal behavioral other natural or manmade factors demise of mussel faunas. patterns which include, but are not affecting its continued existence. Listing The damming of rivers has been a limited to, breeding, feeding or actions may be warranted based on any major factor contributing to the demise sheltering. of the above factors, singly or in of mussels (Bogan 1993, p. 604). Dams Examples of chemical spills and their combination. Each of these factors is eliminate or reduce river flow within effects on mussels, including the fluted discussed below. impounded areas, trap silts and cause sediment deposition, alter water kidneyshell, are provided in the Factor A. The Present or Threatened Chemical Contaminants section under temperature and dissolved oxygen Destruction, Modification, or levels, change downstream water flow the Factor E discussion below. Curtailment of Its Habitat or Range Questions regarding whether specific and quality, affect normal flood activities would constitute a violation of The decline of the fluted kidneyshell patterns, and block upstream and section 9 of the Act should be directed and slabside pearlymussel in the downstream movement of mussels and to the Ecological Services Field Office in Cumberlandian Region and other their host fishes (Bogan 1993, p. 604; the State where the activity would take mussel species in the eastern United Vaughn and Taylor 1999, pp. 915–917; place. States is primarily the result of habitat Watters 1999, pp. 261–264; McAllister loss and degradation. Chief among the et al. 2000, p. iii; Marcinek et al. 2005, Summary of Changes From Proposed causes of decline are impoundments, pp. 20–21). Below dams, mollusk Rule gravel and coal mining, sedimentation, declines are associated with changes As a result of the comments we water pollution, and stream channel and fluctuation in flow regime, scouring received during the public comment alterations (Neves 1993, pp. 4–5; and erosion, reduced dissolved oxygen periods (see above), we made the Williams et al. 1993, p. 7; Neves et al. levels, reduced food availability, water following changes to this final listing 1997, pp. 60–78). temperature alteration, and changes in resident fish assemblages (Williams et rule: Impoundments (1) We revised the description of the al. 1993, p. 7; Neves et al. 1997, pp. 63– Tennessee River in the introduction. Impoundments result in the dramatic 64; Watters 1999, pp. 261–264; (2) We added life-history information modification of riffle and shoal habitats Marcinek et al. 2005, pp. 20–21; Moles to the fluted kidneyshell background and the resulting loss of mussel and Layzer 2008, p. 220). Because rivers section. resources, especially in larger rivers. are linear systems, these alterations can (3) We updated the current status of Impoundment impacts are most cause mussel declines for many miles the fluted kidneyshell to reflect recent profound in riffle and shoal areas, below the dam (Moles and Layzer 2008, evidence of recruitment. which harbor the largest assemblages of p. 220; Vaughn and Taylor 1999, p. (4) We revised the taxonomy section mussel species, including the fluted 916). for the slabside pearlymussel. kidneyshell and slabside pearlymussel. Population losses due to (5) We revised the current and Mussels are relatively immobile and, impoundments have probably historical occurrences for both the therefore, require a stable substrate to contributed more to the decline of the

VerDate Mar<15>2010 17:00 Sep 25, 2013 Jkt 229001 PO 00000 Frm 00116 Fmt 4700 Sfmt 4700 E:\FR\FM\26SER1.SGM 26SER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 78, No. 187 / Thursday, September 26, 2013 / Rules and Regulations 59279

fluted kidneyshell, slabside species in the entire Cumberland River slabside pearlymussel, including the pearlymussel, and other Cumberlandian system. Gravel mining activities also Clinch, Powell, and Big South Fork Region mussels than has any other negatively impact the habitat of the Rivers. Exploration and extraction of single factor. The majority of the slabside pearlymussel in the Powell and these energy resources has the potential Cumberland and Tennessee River Elk Rivers in the Tennessee River to result in increased siltation, a mainstems and many of their largest system. changed hydrograph (flow regime), and tributaries are now impounded and, Channel modification for commercial altered water quantity and quality even therefore, are unsuitable for navigation has been shown to increase at a distance from the mine or well field. Cumberlandian Region mussels. For flood heights (Belt 1975, p. 684), partly Although oil and natural gas extraction example, approximately 90 percent of as a result of an increase in stream bed generally occurs away from the river, the 904-river-kilometer (rkm) (562-river- slope (Hubbard et al. 1993, p. 137). extensive road and pipeline networks mile (rmi)) length of the Cumberland Flood events are exacerbated, conveying are required to construct and maintain River downstream of Cumberland Falls large quantities of sediment, potentially wells and transport the extracted is either impounded (three locks and with adsorbed contaminants, into resources. These road and pipeline dams and Wolf Creek Dam) or otherwise streams. Channel maintenance often networks frequently cross or occur near adversely impacted by coldwater results in increased turbidity and tributaries, contributing sediment to the discharges from Wolf Creek Dam. Other sedimentation that often smothers receiving waterway. In addition, the major U.S. Army Corps of Engineers mussels (Stansbery 1970, p. 10). construction and operation of wells may (Corps) impoundments on Cumberland Heavy metal-rich drainage from coal result in the illegal discharge of River tributaries (e.g., Obey River, Caney mining and associated sedimentation chemical contaminants and subsurface Fork) have inundated over 161 rkm (100 has adversely impacted historically minerals. rmi) of riverine habitat for the fluted diverse mussel faunas in the upper Sedimentation kidneyshell and the slabside Cumberland and Tennessee River pearlymussel. Layzer et al. (1993, p. 68) system streams. Strip mining continues Sedimentation is one of the most reported that 37 of the 60 mussel to threaten mussel habitats in coal field significant pollution problems for species present in the Caney Fork River drainages of the Cumberland Plateau, aquatic organisms (Waters 1995, pp. 2– pre-impoundment have been extirpated. including streams harboring small 3) and has been determined to be a By 1971, approximately 3,700 rkm fluted kidneyshell populations (e.g., major factor in mussel declines (Ellis (2,300 rmi) (about 20 percent) of the Horse Lick Creek, Little South Fork, 1936, pp. 39–40). Sources of silt and Tennessee River and its tributaries with Powell River, Indian Creek). Portions of sediment include poorly designed and drainage areas of 65 square rkm (25 the upper Tennessee River system are executed timber harvesting operations square rmi) or greater were impounded also influenced by coal mining and associated activities; complete by the TVA (TVA 1971, p. 5). The activities. In field studies, Powell River clearing of riparian vegetation for subsequent completion of additional mussel populations were inversely agricultural, silvicultural, or other major impoundments on tributary correlated with coal fines in the purposes; and those construction, streams (e.g., Duck River in 1976, Little substrate: Mussels were rare in areas mining, and other practices that allow Tennessee River in 1979) significantly with coal deposits (Kitchel et al. 1981, exposed earth to enter streams. increased the total river kilometers p. 21). In addition, decreased filtration Agricultural activities, specifically an impounded behind the 36 major dams times and increased movements were increase in cattle grazing and the in the Tennessee River system. noted in laboratory-held mussels resultant nutrient enrichment and loss Given projected human population (Kitchel et al. 1981, p. 25). A of riparian vegetation along the stream, increases and the need for municipal quantitative study in the Powell River are responsible for much of the water supply, other proposals for small attributed a decline of federally listed sediment (Fraley and Ahlstedt 2000, p. impoundment construction are likely in mussels and the long-term decrease in 193; Hanlon et al. 2009, pp. 11–12). the future within the Cumberland and overall species composition, since about Heavy sediment loads can destroy Tennessee River systems. 1980, to general stream degradation due mussel habitat, resulting in a primarily to coal mining activities in the corresponding shift in mussel fauna Mining and Commercial Navigation headwaters (Ahlstedt and Tuberville (Brim Box and Mossa 1999, p. 100). Instream gravel mining has been 1997, pp. 74–76). Numerous gray-water Excessive sedimentation can lead to implicated in the destruction of mussel and black-water spill events have been rapid changes in stream channel populations. Negative impacts documented in the Powell and Clinch position, channel shape, and bed associated with gravel mining include River drainages over the past several elevation (Brim Box and Mossa 1999, p. stream channel modifications (e.g., years. The habitats of fluted 102). Sedimentation has also been altered habitat, disrupted flow patterns, kidneyshell, slabside pearlymussel, and shown to impair the filter feeding ability sediment transport), water quality other mussels in the Clinch and Powell of mussels, and high amounts of modifications (e.g., increased turbidity, Rivers are increasingly being threatened suspended sediments can dilute their reduced light penetration, increased by coal mining activities. Price (2011, p. food source (Dennis 1984, p. 212). We temperature), macroinvertebrate VIII–3) indicates total dissolved solids further describe the detrimental effects population changes (e.g., elimination, concentrations have continued to rise in of sedimentation on these species under habitat disruption, increased the Powell and Clinch Rivers, with Factor E. Other Natural or Manmade sedimentation), and changes in fish rapid increases in the upper Powell Factors Affecting Its Continued populations (e.g., impacts to spawning River, where coal mining is most Existence, below. and nursery habitat, food web prominent. disruptions) (Kanehl and Lyons 1992, Chemical Contaminants pp. 26–27). Oil and Natural Gas Development Chemical contaminants are Gravel mining activities negatively Oil and natural gas resources are ubiquitous throughout the environment impact the habitat of the fluted present in some of the watersheds that and are considered a major threat in the kidneyshell in Buck Creek, one of the are known or historically were known to decline of mussel species (Richter et al. few remaining populations of this support the fluted kidneyshell and 1997, p. 1081; Strayer et al. 2004, p. 436;

VerDate Mar<15>2010 17:00 Sep 25, 2013 Jkt 229001 PO 00000 Frm 00117 Fmt 4700 Sfmt 4700 E:\FR\FM\26SER1.SGM 26SER1 mstockstill on DSK4VPTVN1PROD with RULES 59280 Federal Register / Vol. 78, No. 187 / Thursday, September 26, 2013 / Rules and Regulations

Wang et al. 2007a, p. 2029; Cope et al. (fertilizers, pesticides, herbicides, and mites) and are prey for a few vertebrate 2008, p. 451). Chemicals enter the animal waste) cause degradation of species (e.g., raccoons, muskrats, otters, environment through both point and water quality and habitats through fish, and turtles) (Hart and Fuller 1974, nonpoint discharges, including spills, increased acidity and conductivity, pp. 225–240). Mussel parasites include stormwater infrastructure, industrial instream oxygen deficiencies, excess water mites, trematodes, oligochaetes, sources, municipal effluents, and nutrification, and excessive algal leeches, copepods, bacteria, and agricultural runoff. These sources growths. Furthermore, these threats protozoa (Grizzle and Brunner 2007, p. contribute organic compounds, heavy faced by the fluted kidneyshell and 6). Generally, parasites are not metals, pesticides, and a wide variety of slabside pearlymussel are imminent, suspected of being a major limiting newly emerging contaminants to the and occur throughout the range of both factor (Oesch 1984, p. 16); however, aquatic environment. As a result, water species. Also, the threats are a result of Gangloff et al. (2008, pp. 28–30) found and sediment quality can be degraded to ongoing projects expected to continue that reproductive output and the extent that mussel habitats and indefinitely, therefore perpetuating physiological condition were negatively populations are adversely impacted. We these impacts. As a result of the correlated with mite and trematodes further describe the detrimental effects imminence of these threats, combined abundance, respectively. Stressors that of chemicals on these species under with the vulnerability of the remaining reduce fitness may make mussels more Factor E. Other Natural or Manmade small, isolated populations to susceptible to parasites (Butler 2007, p. Factors Affecting Its Continued extirpation from natural and manmade 90). Existence, below. threats, the present or threatened Neves and Odum (1989, entire) destruction, modification, or determined that muskrat predation on Other Stream Channel Alterations curtailment of the habitat and range of the fluted kidneyshell represents a Other stream channel alterations that these species represents a threat to both localized threat by in the upper North can impact mussel habitats include the fluted kidneyshell and slabside Fork Holston River in Virginia. They bridges, other road crossing structures, pearlymussel now and into the future. concluded that muskrat predation could and activities that lower water tables limit the recovery potential of (withdrawals). Levine et al. (2003, pp. Factor B. Overutilization for endangered mussel species or contribute 116–117) found that bridges built Commercial, Recreational, Scientific, or to the local extirpation of already between 1950 and 1969 caused channel Educational Purposes depleted mussel populations. Although constriction and channel The fluted kidneyshell and slabside other mammals (e.g., raccoon, mink) destabilization, resulting in mussel pearlymussel are not commercially occasionally feed on mussels, the threat declines up to 300 meters (984 feet) valuable species, but may be from these predators is not considered downstream of road crossings. Culverts increasingly sought by collectors due to to be significant. Predation does occur, can act as barriers to fish passage their increasing rarity. Although but it is considered to be a normal (Wheeler et al. 2005, p. 149), scientific collecting is not thought to aspect of the species’ population particularly by increasing flow velocity represent a significant threat, localized dynamics and, therefore, not a threat to (Warren and Pardew 1998, p. 637). populations could become impacted the slabside pearlymussel or fluted Stream channels become destabilized and possibly extirpated by kidneyshell at the species’ level under when improperly designed culverts or overcollecting, particularly if current conditions. bridges change the morphology and regulations governing collection activity In summary, there is little information interrupt the transport of woody debris, are not enforced. However, we do not on disease in mussels, and disease is not substrate, and water (Wheeler et al. consider overutilization for commercial, currently considered to be a threat to the 2005, p. 152). Water withdrawals for recreational, scientific, or educational fluted kidneyshell or slabside irrigation, municipal, and industrial purposes to be a threat to either species pearlymussel and is not likely to water supplies are an increasing now or likely to become a threat in the become so in the future. Although concern. For example, U.S. water future. predation does occur and impacts local consumption doubled from 1960 to populations, we conclude that predation 2000, and is likely to increase further Factor C. Disease or Predation is not a threat to these species as a (Naiman and Turner 2000, p. 960). Little is known about diseases in whole or likely to become so in the Therefore, we anticipate road crossings, mussels (Grizzle and Brunner 2007, p. future. ground and surface water withdrawals, 6). Several mussel die-offs have been Factor D. The Inadequacy of Existing and potential stream dewatering to be documented during the past 20 years Regulatory Mechanisms threats to the habitat of the fluted across the United States (Neves 1987, kidneyshell and slabside pearlymussel. pp. 8–11). Although the ultimate cause The objective of the Federal Water is unknown, some researchers believe Pollution Control Act, commonly Summary of Factor A that disease may be a factor. Warren and referred to as the Clean Water Act Habitat loss and degradation Haag (2005, p. 1394) hypothesized that (CWA) (33 U.S.C. 1251 et seq.), is to negatively impact the fluted kidneyshell declines in the Little South Fork restore and maintain the chemical, and slabside pearlymussel. Severe Cumberland River, Kentucky, mussel physical, and biological integrity of the degradation from impoundments, gravel fauna, including the once abundant nation’s waters by preventing point and and coal mining, oil and natural gas fluted kidneyshell population, may have nonpoint pollution sources. The CWA development, sedimentation, chemical been at least partially attributed to has a stated goal that ‘‘. . . wherever contaminants, and stream channel disease, but no definitive cause has been attainable, an interim goal of water alterations threaten the stream habitat determined. We have no specific quality which provides for the and water quality on which these documentation indicating that disease protection and propagation of fish, species depend. Contaminants poses a threat to slabside pearlymussel shellfish, and wildlife and provides for associated with coal mining (metals, populations. recreation in and on the water be other dissolved solids), municipal Juvenile and adult mussels are prey achieved by July 1, 1983.’’ States are effluents (bacteria, nutrients, items for some invertebrate predators responsible for setting and pharmaceuticals), and agriculture and parasites (e.g., nematodes and implementing water quality standards

VerDate Mar<15>2010 17:00 Sep 25, 2013 Jkt 229001 PO 00000 Frm 00118 Fmt 4700 Sfmt 4700 E:\FR\FM\26SER1.SGM 26SER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 78, No. 187 / Thursday, September 26, 2013 / Rules and Regulations 59281

that align with the requirements of the Factor E. Other Natural or Manmade (Villosa perpurpurea), and rough CWA. Factors Affecting Its Continued rabbitsfoot (Quadrula cylindrica Nonpoint source (NPS) pollution Existence strigillata)), were eliminated from the upper Clinch River near Cedar Bluff, comes from many diffuse sources, Altered Temperature Regimes Virginia, in 1998, when an overturned unlike pollution from industrial and Natural temperature regimes can be tanker truck released approximately sewage treatment plants. NPS pollution altered by impoundments, water 6,100 liters (1,600 gallons) of a chemical is caused by rainfall or snowmelt releases from dams, industrial and used in rubber manufacturing (Jones et moving over and through the ground. As municipal effluents, and changes in al. 2001, p. 20; Schmerfeld 2006, p. 12). the runoff moves, it transports natural riparian habitat. Critical thermal limits These are not the only instances where and human-made pollutants to lakes, for survival and normal functioning of chemical spills have resulted in the loss rivers, wetlands, coastal waters, and many mussel species are unknown. of high numbers of mussels (Neves ground waters. States report that NPS High temperatures can reduce dissolved 1991, p. 252; Jones et al. 2001, p. 20; pollution is the leading remaining cause oxygen concentrations in the water, Brown et al. 2005, p. 1457; Schmerfeld of water quality problems. The effects of which slows growth, reduces glycogen 2006, pp. 12–13), but are provided as NPS pollutants on specific waters vary stores, impairs respiration, and may examples of the serious threat chemical and may not always be fully assessed. inhibit reproduction (Hart and Fuller spills pose to mussel species, such as However, these pollutants have harmful 1974, pp. 240–241). Low temperatures the fluted kidneyshell and slabside effects on fisheries and wildlife (http:// can significantly delay or prevent pearlymussel. water.epa.gov/polwaste/nps/ metamorphosis (Watters and O’Dee Cope et al. (2008, p. 451) evaluated whatis.cfm). 1999, pp. 454–455). Water temperature the pathways of exposure to increases have been documented to environmental pollutants for all four Sources of NPS pollution within the shorten the period of glochidial mollusk life stages (free glochidia, watersheds occupied by both mussels encystment, reduce the speed in which encysted glochidia, juveniles, and include agriculture, clearing of riparian they turn upright, increase oxygen adults) and found that each life stage vegetation, urbanization, road consumption, and slow burrowing and has both common and unique construction, and other practices that movement responses (Hart and Fuller characteristics that contribute to allow bare earth to enter streams. The 1974, pp. 240–241; Bartsch et al. 2000, observed differences in contaminant Service has no information concerning p. 237; Watters et al. 2001, p. 546; exposure and sensitivity. Very little is the implementation of the CWA Schwalb and Pusch 2007, pp. 264–265). known about the potential mechanisms regarding NPS pollution specific to Several studies have documented the and consequences of waterborne protection of both mussels. However, influence of temperature on the timing toxicants on sperm viability. However, insufficient implementation of the CWA of aspects of mussel reproduction (for Watters (2011) demonstrated that the could become a threat to both mussel example, Gray et al. 2002, p. 156; Allen spermatozeugmata (sperm ball) species if they continue to decline in et al. 2007, p. 85; Steingraeber et al. produced and released by male mussels numbers. 2007, pp. 303–309). Peak glochidial are sensitive to varying levels of releases are associated with water salinity. When exposed to high enough The fluted kidneyshell and slabside temperature thresholds that can be salinity levels, the spermatozeugmata pearlymussel continue to decline due to thermal minimums or thermal disassociate and can be rendered the effects of habitat destruction, poor maximums, depending on the species nonviable if they disassociate prior to water quality, contaminants, and other (Watters and O’Dee 2000, p. 136). entering a female mussel. This may pose factors. However, there is no specific Abnormal temperature changes may yet another significant challenge for information known about the sensitivity cause particular problems for mussels mussels to successfully fertilize eggs of these mussels to common point whose reproductive cycles may be and promote recruitment if exposed to source pollutants like industrial and linked to fish reproductive cycles elevated salinity or conductivity levels municipal pollutants and very little (Young and Williams 1984, entire). in the ambient water column. In the female mollusk, the marsupial information on other freshwater Chemical Contaminants mussels. Because there is very little region of the gill is thought to be information known about water quality Chemical spills can be especially physiologically isolated from respiratory devastating to mussels because they parameters necessary to fully protect functions; this isolation may provide may result in exposure of a relatively freshwater mussels, such as the fluted some level of protection from immobile species to extremely elevated kidneyshell and slabside pearlymussel, contaminant interference with a contaminant concentrations that far it is difficult to determine whether the female’s ability to achieve fertilization exceed toxic levels and any water or brood glochidia (Cope et al. 2008, p. CWA is adequately addressing the quality standards that might be in effect. 454). However, a major exception to this habitat and water quality threats to Some notable spills that released large hypothesis is with chemicals that act these species (see discussion under quantities of highly concentrated directly on the neuroendocrine Factor A and Factor E). However, given chemicals resulting in mortality to pathways controlling reproduction (see that a goal of the CWA is to establish mussels and host fish include a kill on discussion below). Nutritional and ionic water quality standards that protect the Clinch River at Carbo, Virginia, from exchange is possible between a brooding shellfish and given that documented a power plant alkaline fly ash pond spill female and her glochidia, providing a declines of these mussel species still in 1967, and a sulfuric acid spill in 1970 route for chemicals (accumulated or continue due to poor water quality and (Crossman et al. 1973, p. 6). In addition, waterborne) to disrupt biochemical and other factors, we take a conservative approximately 18,000 mussels of several physiological pathways (such as approach in favor of the species and species, including the fluted maternal calcium transport for conclude that the CWA has been kidneyshell and 750 individuals from construction of the glochidial shell). insufficient to significantly reduce or three endangered mussel species (tan Juvenile mussels typically remain remove these threats to the fluted riffleshell (Epioblasma florentina burrowed beneath the sediment surface kidneyshell and slabside pearlymussel. walkeri (=E. walkeri)), purple bean for 2 to 4 years. Residence beneath the

VerDate Mar<15>2010 17:00 Sep 25, 2013 Jkt 229001 PO 00000 Frm 00119 Fmt 4700 Sfmt 4700 E:\FR\FM\26SER1.SGM 26SER1 mstockstill on DSK4VPTVN1PROD with RULES 59282 Federal Register / Vol. 78, No. 187 / Thursday, September 26, 2013 / Rules and Regulations

sediment surface necessitates deposit available for mussels (March et al. 2007, (EPA’s) 1996 chronic water quality (pedal) feeding and a reliance on pp. 2066–2067, 2073). criterion for copper (Wang et al. 2007c, interstitial (pore) water for dissolved Current research is now focusing on pp. 2052–2055). March (2007, pp. 2066 oxygen (Watters 2007, p. 56). The the contaminant sensitivity of mussel and 2073) identified that copper water relative importance of juvenile fluted glochidia and newly released juvenile quality criteria and modified State water kidneyshell and slabside pearlymussel mussels (Goudreau et al. 1993, pp. 219– quality standards may not be protective exposure to contaminants in overlying 222; Jacobson et al. 1997, p. 2390; of mussels. surface water, interstitial (pore) water, Valenti et al. 2005, pp. 1244–1245; Mercury is another heavy metal that whole sediment, or food has not been Valenti et al. 2006, pp. 2514–2517; has the potential to negatively affect adequately assessed. Exposure to March et al. 2007, pp. 2068–2073; Wang mussel populations, and it is receiving contaminants from each of these routes et al. 2007b, pp. 2041–2046) and attention due to its widespread varies with certain periods and juveniles (Augspurger et al. 2003, p. distribution and potential to adversely environmental conditions (Cope et al. 2569; Bartsch et al. 2003, p. 2561; impact the environment. Mercury has 2008, pp. 453, 457). Mummert et al. 2003, p. 2549; Valenti been detected throughout aquatic The primary routes of exposure to et al. 2005, pp. 1244–1245; Valenti et al. environments as a product of municipal contaminants for adult fluted 2006, pp. 2514–2517; March et al. 2007, and industrial waste and atmospheric kidneyshell and slabside pearlymussel pp. 2068–2073; Wang et al. 2007b, pp. deposition from coal burning plants. are surface water, sediment, interstitial 2041–2046; Wang et al. 2007c, pp. Valenti et al. (2005, p. 1242) determined (pore) water, and diet; adults can be 2053–2055) to such contaminants as that for rainbow mussel, Villosa iris, exposed when either partially or ammonia, metals, chlorine, and glochidia were more sensitive to completely burrowed in the substrate pesticides. mercury than juvenile mussels, and that One chemical that is particularly toxic (Cope et al. 2008, p. 453). Adult mussels reduced growth in juveniles is seen to early life stages of mussels is have some ability to detect certain when observed concentrations are ammonia. Sources of ammonia include toxicants in the water and close their higher than EPA’s criteria for mercury. agriculture (animal feedlots and valves to avoid exposure (Van Hassel Based on these data, we believe that nitrogenous fertilizers), municipal and Farris 2007, p. 6). Adult mussel EPA’s water quality standards for wastewater treatment plants, and toxicity and relative sensitivity mercury should be protective of juvenile industrial waste (Augspurger et al. 2007, (exposure and uptake of toxicants) may mussels and glochidia, except in cases p. 2026), as well as precipitation and of illegal dumping, permit violations, or be reduced at high rather than at low natural processes (i.e., decomposition of spills. However, impacts to mussels toxicant concentrations because uptake organic nitrogen) (Goudreau et al. 1993, from mercury toxicity may be occurring is affected by the prolonged or periodic p. 212; Hickey and Martin 1999, p. 44; in some streams. According to the toxicant avoidance responses (when the Augspurger et al. 2003, p. 2569; Newton National Summary Data reported by avoidance behavior can no longer be 2003, p. 1243). Therefore, ammonia is States to the EPA, 4,716 monitored sustained for physiological reasons) considered a limiting factor for survival waters do not meet EPA standards for (Cope et al. 2008, p. 454). Toxicity and recovery of some mussel species mercury in the United States (http:// results based on low-level exposure of due to its ubiquity in aquatic iaspub.epa.gov/waters10/attains_ adults are similar to estimates for environments and high level of toxicity, nation_cy.control?p_report_type=T, glochidia and juveniles for some and because the highest concentrations accessed June 28, 2012). Acute mercury toxicants (e.g., copper). The duration of typically occur within microhabitats toxicity was determined to be the cause any toxicant avoidance response by an inhabited by mussels (Augspurger et al. of extirpation of a diverse mussel fauna adult mussel is likely to be affected by 2003, p. 2574). In addition, studies have for a 112-rkm (70-rmi) portion of the several variables, such as species, age, shown that ammonia concentrations North Fork Holston River (Brown et al. shell thickness and gape, properties of increase with increasing temperature 2005, pp. 1455–1457). the toxicant, and water temperature. and low flow conditions (Cherry et al. In addition to ammonia, agricultural There is a lack of information on 2005, p. 378; Cooper et al. 2005, p. 381). sources of chemical contaminants toxicant response(s) specific to adult Mussels are also affected by heavy include two broad categories that have mussels (including the fluted metals (Keller and Zam 1991, p. 543) the potential to adversely impact mussel kidneyshell and slabside pearlymussel), such as cadmium, chromium, copper, species: nutrients and pesticides. but results of tests using glochidia and mercury, and zinc, which can negatively Nutrients (such as nitrogen and juveniles may be valuable for protecting affect biological processes such as phosphorus) can impact streams when adults (Cope et al. 2008, p. 454). growth, filtration efficiency, enzyme their concentrations reach levels that Chronic exposure to lower activity, valve closure, and behavior cannot be assimilated, a condition concentrations of contaminants, more (Keller and Zam 1991, p. 543; Naimo known as over-enrichment. Nutrient likely to be found in aquatic 1995, pp. 351–355; Jacobson et al. 1997, over-enrichment is primarily a result of environments, can also adversely affect p. 2390; Valenti et al. 2005, p. 1244). runoff from livestock farms, feedlots, mussels and result in the decline of Heavy metals occur in industrial and and heavily fertilized row crops mussel species. Such concentrations wastewater effluents and are often a (Peterjohn and Correll 1984, p. 1471). may not be immediately lethal, but over result of atmospheric deposition from Over-enriched conditions are time, can result in mortality, reduced industrial processes and incinerators. exacerbated by low-flow conditions, filtration efficiency, reduced growth, Glochidia and juvenile mussels have such as those experienced during decreased reproduction, changes in recently been studied to determine the typical summer-season flows. Bauer enzyme activity, and behavioral changes acute and chronic toxicity of copper to (1988, p. 244) found that excessive to all mussel life stages. Frequently, these life stages (Wang et al. 2007b, pp. nitrogen concentrations can be procedures that evaluate the ‘safe’ 2036–2047; Wang et al. 2007c, pp. detrimental to the adult pearl mussel concentration of an environmental 2048–2056). The chronic values (Margaritifera margaritifera), as was contaminant (e.g., national water quality determined for copper for survival and evident by the positive linear criteria) do not have data for mussel growth of juveniles are below the relationship between mortality and species or exclude data that are Environmental Protection Agency’s nitrate concentration. Also, a study of

VerDate Mar<15>2010 17:00 Sep 25, 2013 Jkt 229001 PO 00000 Frm 00120 Fmt 4700 Sfmt 4700 E:\FR\FM\26SER1.SGM 26SER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 78, No. 187 / Thursday, September 26, 2013 / Rules and Regulations 59283

mussel life span and size (Bauer 1992, A nationwide study sampling 139 is not encountered by a host within a p. 425) showed a negative correlation stream sites in 30 States detected the short time period, the glochidia will between growth rate and eutrophication, presence of numerous pharmaceuticals, become nonviable (O’Brien and Brim and longevity was reduced as the hormones, and other organic wastewater Box 1999, p. 133). Also, evidence concentration of nitrates increased. contaminants downstream from urban suggests that conglutinates of the Nutrient over-enrichment can result in development and livestock production southern kidneyshell (another species of an increase in primary productivity, and areas (Kolpin et al. 2002, pp. 1208– Ptychobranchus, P. jonesi), once the subsequent respiration depletes 1210). Exposure to waterborne and, released from the female mussel in an dissolved oxygen levels. This may be potentially to sediment, toxicant attempt to lure potential host fish, must particularly detrimental to juvenile chemicals that act directly on the adhere to hard surfaces in order to be mussels, which inhabit the interstitial neuroendocrine pathways controlling seen by its fish host. If the surface spaces in the substrate, where lower reproduction can cause premature becomes covered in fine sediments, the dissolved oxygen concentrations are release of viable or nonviable glochidia. conglutinate cannot attach and is swept more likely than on the sediment For example, the active ingredient in away (Hartfield and Hartfield 1996, p. surface where adults tend to live many human prescription anti- 373). (Sparks and Strayer 1998, pp. 132–133). depressant drugs belonging to the class Population Fragmentation and Isolation Elevated concentrations of pesticide of selective serotonin reuptake frequently occur in streams due to inhibitors may exert negative Population isolation prohibits the runoff, overspray application to row reproductive effects on mussels because natural interchange of genetic material crops, and lack of adequate riparian of their action on serotonin and other between populations, and small buffers. The timing of agricultural neuroendocrine pathways (Cope et al. population size reduces the reservoir of pesticide applications and the 2008, pp. 455). These waterborne genetic diversity within populations, reproductive and early life stages of chemicals alter mussel behavior and which can lead to inbreeding depression mussels often coincide in the spring and influence successful attachment of (Allendorf and Luikart 2007, pp. 117– summer, and thus impacts to mussels glochidia on fish hosts, and therefore, 146). Small, isolated populations, due to pesticides may be increased may have population-level implications therefore, are more susceptible to (Bringolf et al. 2007a, p. 2094). Little is for the fluted kidneyshell and slabside environmental pressures, including known regarding the impact of currently pearlymussel. This information habitat degradation and stochastic used pesticides to mussels even though indicates it is likely that chemical events, and thus are the most some pesticides, such as glyphosate contaminants have contributed to susceptible to extinction (Primack 2008, (e.g., RoundupTM), are used globally. declining fluted kidneyshell and pp. 151–153). It is likely that some Recent studies tested the toxicity of slabside pearlymussel populations and populations of the fluted kidneyshell glyphosate, its formulations, and a will likely continue to be a threat to and slabside pearlymussel are below the surfactant (MON 0818) used in several these species in the future. These threats effective population size (Soule´ 1980, glyphosate formulations, to early life result from spills that are immediately pp. 162–164; Allendorf and Luikart stages of the fatmucket (Lampsilis lethal to these species, as well as 2007, pp. 147–170) required to maintain siliquoidea) (Bringolf et al. 2007a, p. chronic contaminant exposure, which long-term genetic and population 2094). Studies conducted with juvenile results in death, reduced growth, or viability. mussels and glochidia determined that reduced reproduction of fluted The present distribution and status of the surfactant (MON 0818) was the most kidneyshell and slabside pearlymussel. the fluted kidneyshell in the upper toxic of the compounds tested and that Cumberland River system in Kentucky fatmucket glochidia were the most Sedimentation may provide an excellent example of the sensitive of organisms tested to date Impacts resulting from sediments detrimental bottleneck effect resulting (Bringolf et al. 2007a, p. 2094). have been noted for many components when a minimum viable population size RoundupTM, technical grade glyphosate of aquatic communities. For example, is not maintained. A once large isopropylamine salt, and sediments have been shown to abrade or population of this species occurred isopropylamine were also acutely toxic suffocate periphyton (organisms throughout the upper Cumberland River to juveniles and glochidia (Bringolf et attached to underwater surfaces); affect mainstem below Cumberland Falls and al. 2007a, p. 2097). The impacts of other respiration, growth, reproductive in several larger tributary systems. In pesticides including atrazine, success, and behavior of aquatic insects this region, there were no absolute chlorpyrifos, and permethrin on and mussels; and affect fish growth, barriers to genetic interchange among its glochidia and juvenile life stages have survival, and reproduction (Waters subpopulations (and those of its host also recently been studied (Bringolf et 1995, pp. 173–175). fishes) that occurred in various streams. al. 2007b, p. 2101). One study Increased turbidity from suspended With the completion of Wolf Creek Dam determined that chlorpyrifos was toxic sediment can reduce or eliminate in the late 1960s, the mainstem to both fatmucket glochidia and juvenile mussel recruitment (Negus population was soon extirpated, and the juveniles (Bringolf et al. 2007b, p. 2104). 1966, p. 525; Box and Mossa 1999, pp. remaining populations isolated by the The above results indicate the potential 101–102). Many mussel species use filling of Cumberland Reservoir. toxicity of commonly applied pesticides visual cues to attract host fishes; such a Whereas small, isolated, tributary and the threat to mussel species as a reproductive strategy depends on clear populations of imperiled, short-lived result of the widespread use of these water for success. For example, species (e.g., most fishes) would have pesticides. All of these pesticides are increased turbidity may impact the life died out within a decade or so after commonly used throughout the range of cycle of the southern sandshell, impoundment, the long-lived fluted the fluted kidneyshell and slabside Hamiota australis, by reducing the kidneyshell would potentially take pearlymussel. chance that a sight-feeding host fish will decades to expire post-impoundment. Pharmaceutical chemicals used in encounter the visual display of the Without the level of genetic interchange commonly consumed drugs are mussel’s superconglutinate lure (Haag et the species experienced historically increasingly found in surface waters al. 1995, p. 475; Blalock-Herod et al. (i.e., without the reservoir barrier), downstream from municipal effluents. 2002, p. 1885). If the superconglutinate isolated populations may be slowly

VerDate Mar<15>2010 17:00 Sep 25, 2013 Jkt 229001 PO 00000 Frm 00121 Fmt 4700 Sfmt 4700 E:\FR\FM\26SER1.SGM 26SER1 mstockstill on DSK4VPTVN1PROD with RULES 59284 Federal Register / Vol. 78, No. 187 / Thursday, September 26, 2013 / Rules and Regulations

dying out. The fluted kidneyshell and There is a growing concern that kidneyshell and slabside pearlymussel, slabside pearlymussel were similarly climate change may lead to increased particularly juveniles, through direct isolated by the completion of multiple frequency of severe storms and droughts competition for space and resources reservoirs in the Tennessee River (McLaughlin et al. 2002, p. 6074; Cook (Neves and Widlak 1987, p. 6). Dense system. Even given the improbable et al. 2004, p. 1015; Golladay et al. 2004, populations of Asian clams may ingest absence of anthropogenic impacts, we p. 504). Specific effects of climate large numbers of unionid sperm, may lose smaller isolated populations of change to mussels, their habitats, and glochidia, and newly metamorphosed the fluted kidneyshell and slabside their fish hosts could include changes in juveniles, and may actively disturb pearlymussel to the devastating stream temperature regimes and changes sediments, reducing habitable space for consequences of below-threshold in the timing and levels of precipitation, juvenile native mussels or displacing effective population size (the minimum causing more frequent and severe floods them downstream (Strayer 1999, p. 82; population size that is needed for the and droughts. Increases in temperature Yeager et al. 2000, pp. 255–256). population to reproduce and continue to and reductions in flow can also lower Asian clam densities vary widely in be viable). dissolved oxygen levels in interstitial the absence of native mussels or in habitats, which can be lethal to patches with sparse mussel Random Catastrophic Events juveniles (Sparks and Strayer 1998, pp. concentrations, but Asian clam density The remaining populations of the 131–133). Even small increases in is rarely observed to be high in dense fluted kidneyshell and slabside temperature can cause reductions in the mussel beds, indicating that the clam is pearlymussel are generally small and survival of freshwater mussel glochidia unable to successfully invade small- geographically isolated. The patchy and juveniles, and temperatures scale habitat patches with high unionid distribution pattern of populations in currently encountered in the temperate biomass (Vaughn and Spooner 2006, pp. short river reaches makes them much United States during summers are close 334–335). The invading clam, therefore, more susceptible to extirpation from to or above the upper thermal tolerances appears to preferentially invade sites single catastrophic events, such as toxic of early life stages of freshwater mussels where mussels are already in decline chemical spills. Such a spill occurred in (Pandolfo et al. 2010, pp. 965, 967). (Strayer 1999, pp. 82–83; Vaughn and the upper Clinch River in 1998, killing Effects to mussel populations from these Spooner 2006, pp. 332–336) and does many fluted kidneyshell and thousands environmental changes could include not appear to be a causative factor in the of specimens of other mussel species, reduced abundance and biomass, decline of mussels in dense beds. including three federally listed species altered species composition, and However, an Asian clam population that (Henley et al. 2002, entire; see Chemical reduced host fish availability (Galbraith thrives in previously stressed, sparse Contaminants section above). High et al. 2010, pp. 1180–1182). The present mussel populations might exacerbate levels of isolation make natural conservation status, complex life unionid imperilment through recolonization of any extirpated histories, and specific habitat competition and impeding mussel population unlikely. requirements of mussels suggest that population expansion (Vaughn and Climate Change they may be quite sensitive to the effects Spooner 2006, pp. 335–336). of climate change (Hastie et al. 2003, p. Summary of Factor E Our analyses under the Act include 45). consideration of ongoing and projected During high flows, flood scour can Other natural and manmade factors, changes in climate. The terms ‘‘climate’’ dislodge mussels potentially causing such as alteration of natural temperature and ‘‘climate change’’ are defined by the them to be injured, buried, swept into regimes below dams; chemical Intergovernmental Panel on Climate unsuitable habitats, or stranded and contaminants; sedimentation; small, Change (IPCC). ‘‘Climate’’ refers to the perish when flood waters recede isolated populations; and low genetic mean (average) and variability of (Vannote and Minshall 1982, p. 4105; diversity, combined with localized different types of weather conditions Tucker 1996, p. 435; Hastie et al. 2001, extinctions from point source pollution over time, with 30 years being a typical pp. 107–115; Peterson et al. 2011, or accidental toxic chemical spills, period for such measurements, although unpaginated). Increased human demand habitat modification and progressive shorter or longer periods also may be and competition for surface and ground degradation by nonpoint source used (IPCC 2007, p. 78). The term water resources for irrigation and pollutants, natural catastrophic changes ‘‘climate change’’ thus refers to a change consumption during drought can cause to habitat through flood scour or in the mean or variability of one or more drastic reductions in stream flows and drought as exacerbated by climate measures of climate (e.g., temperature or alterations to hydrology (Golladay et al. change, and nonindigenous species are precipitation) that persists for an 2004, p. 504; Golladay et al. 2007, threats to remaining populations of the extended period, typically decades or unpaginated). Extended droughts fluted kidneyshell and slabside longer, whether the change is due to occurred in the Southeast during 1998 pearlymussel across their respective natural variability, human activity, or to 2002, and again in 2006 to 2008. The ranges now and into the future. both (IPCC 2007, p. 78). Various types effects of these recent droughts on these Determination of changes in climate can have direct or mussels are unknown; however, indirect effects on species. These effects substantial declines in mussel diversity We have carefully assessed the best may be positive, neutral, or negative and and abundance as a direct result of scientific and commercial data available they may change over time, depending drought have been documented in other regarding the past, present, and future on the species and other relevant southeastern streams (Golladay et al. threats to the fluted kidneyshell and considerations, such as the effects of 2004, pp. 494–503; Haag and Warren slabside pearlymussel. The Act defines interactions of climate with other 2008, p. 1165). an endangered species as ‘‘any species variables (e.g., habitat fragmentation) which is in danger of extinction (IPCC 2007, pp. 8–14, 18–19). In our Nonindigenous Species throughout all or a significant portion of analyses, we use our expert judgment to The Asian clam (Corbicula fluminea) its range,’’ and a threatened species as weigh relevant information, including has been introduced to the Cumberland ‘‘any species which is likely to become uncertainty, in our consideration of and Tennessee River drainages and may an endangered species within the various aspects of climate change. be adversely affecting the fluted foreseeable future throughout all or a

VerDate Mar<15>2010 17:00 Sep 25, 2013 Jkt 229001 PO 00000 Frm 00122 Fmt 4700 Sfmt 4700 E:\FR\FM\26SER1.SGM 26SER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 78, No. 187 / Thursday, September 26, 2013 / Rules and Regulations 59285

significant portion of its range.’’ As signs of any success. The only Federal, State, and local agencies; described in detail above, these two population of the fluted kidneyshell private organizations; and individuals. species occupy only portions of their known to be large, stable, and viable is The Act encourages cooperation with historical ranges, are limited to fewer in the Clinch River, but it is in a the States and requires that recovery than 20 viable populations, and are relatively short reach of river primarily actions be carried out for all listed currently at risk throughout all of their in the vicinity of the Tennessee-Virginia species. The protection measures respective ranges due to ongoing threats State line. Based on recent information, required of Federal agencies and the of habitat destruction and modification the overall population status of the prohibitions against certain activities (Factor A) and other natural or fluted kidneyshell is declining involving listed wildlife are discussed, manmade factors affecting their rangewide. We find that a threatened in part, below. continued existence (Factor E). species status is not appropriate for the The primary purpose of the Act is the Specifically, primary sources of stress fluted kidneyshell because of its conservation of endangered and and threats include impoundments, contracted range, because the threats are threatened species and the ecosystems mining, oil and gas exploration, occurring rangewide and are not upon which they depend. The ultimate sedimentation, chemical contaminants, localized, because the threats are goal of such conservation efforts is the temperature regime alterations, ongoing and expected to continue into recovery of these listed species, so that recurring drought and flooding, the future, and because the they no longer need the protective population fragmentation and isolation, reintroduction attempts have been measures of the Act. Subsection 4(f) of loss of fish hosts, and the introduced unable to stop or reduce the overall the Act requires the Service to develop Asian clam. The data show that existing population decline. and implement recovery plans for the regulatory mechanisms, such as the There have been no reintroductions conservation of endangered and CWA, are inadequate to reduce these for the slabside pearly mussel. The threatened species. The recovery threats (Factor D). These threats are slabside pearlymussel has been planning process involves the currently impacting these species extirpated from more than 50 percent of identification of actions that are throughout their ranges and are the streams from which the species was necessary to halt or reverse the species’ projected to continue and potentially historically known to occur and occurs decline by addressing the threats to its worsen in the future. in only 13 extant populations. The survival and recovery. The goal of this Species with small ranges, few overall population of the slabside process is to restore listed species to a populations, and small or declining pearlymussel appears to be declining point where they are secure, self- population sizes are the most vulnerable rangewide, with relatively good sustaining, and functioning components to extinction (Primack 2008, p. 137). numbers and apparent viability in just of their ecosystems. The effects of certain factors, two streams (Duck and Paint Rock Recovery planning includes the particularly habitat degradation and Rivers). Most of the other populations development of a recovery outline loss, catastrophic events, and are of questionable viability and may be shortly after a species is listed, introduced species, increase in on the verge of extirpation (e.g., Powell preparation of a draft and final recovery magnitude when population size is and Hiwassee Rivers; Big Moccasin plan, and revisions to the plan as small (Soule´ 1987, pp. 33, 71; Primack Creek). Therefore, we find that a significant new information becomes 2008, pp. 133–135, 152). When threatened species status is not available. The recovery outline guides combining the effects of historical, appropriate for the slabside the immediate implementation of urgent current, and future habitat loss and pearlymussel because of its contracted recovery actions and describes the degradation; historical and future range, because the threats are occurring process to be used to develop a recovery drought; and the exacerbating effects of rangewide and are not localized, plan. The recovery plan identifies site- small and declining population sizes because the threats are ongoing and specific management actions that will and curtailed ranges, the fluted expected to continue into the future, achieve recovery of the species, kidneyshell and slabside pearlymussel and because the species is declining measurable criteria that determine when are in danger of extinction throughout rangewide and many populations are on a species may be downlisted or delisted, all of their ranges. In addition, any the verge of extirpation. and methods for monitoring recovery factor (i.e., habitat loss or other natural Under the Act and our implementing progress. Recovery plans also establish and manmade factors) that results in a regulations, a species may warrant a framework for agencies to coordinate further decline in habitat or individuals listing if it is endangered or threatened their recovery efforts and provide may be problematic for the long-term throughout all or a significant portion of estimates of the cost of implementing recovery of these species. Therefore, its range. The threats to the survival of recovery tasks. Recovery teams based on the best available scientific these species occur throughout the (comprised of species experts, Federal and commercial data, we list the fluted species’ ranges and are not restricted to and State agencies, nongovernment kidneyshell and slabside pearlymussel any particular significant portion of organizations, and stakeholders) are as endangered species in accordance their ranges. Accordingly, our often established to develop recovery with sections 3(6) and 4(a)(1) of the Act. assessment and determination applies to plans. When completed, the draft and Resource managers have been making these species throughout their entire final recovery plans will be available on attempts to reintroduce the fluted ranges. our Web site (http://www.fws.gov/ kidneyshell into historical habitat over endangered) and from our Tennessee the past decade. These mussels have Available Conservation Measures Ecological Services Field Office (see FOR been translocated from the Clinch River Conservation measures provided to FURTHER INFORMATION CONTACT). into the upper Duck River, Nolichucky species listed as endangered or Implementation of recovery actions River, Big South Fork of the threatened under the Act include generally requires the participation of a Cumberland River, Little Tennessee recognition, recovery actions, broad range of partners, including other River bypass below Calderwood Dam, requirements for Federal protection, and Federal agencies, States, Tribes, Indian Creek and North Fork Holston prohibitions against certain practices. nongovernmental organizations, River. Despite all of these reintroduction Recognition through listing results in businesses, and private landowners. attempts only three sites are showing public awareness and conservation by Examples of recovery actions include

VerDate Mar<15>2010 17:00 Sep 25, 2013 Jkt 229001 PO 00000 Frm 00123 Fmt 4700 Sfmt 4700 E:\FR\FM\26SER1.SGM 26SER1 mstockstill on DSK4VPTVN1PROD with RULES 59286 Federal Register / Vol. 78, No. 187 / Thursday, September 26, 2013 / Rules and Regulations

habitat restoration (e.g., restoration of include management of and any other ongoing activities within the range of native vegetation), research, captive landscape altering activities on Federal listed species. The following activities propagation and reintroduction, and lands administered by the U.S. Forest could potentially result in a violation of outreach and education. The recovery of Service; issuance of section 404 CWA section 9 of the Act; this list is not many listed species cannot be permits by the U.S. Army Corps of comprehensive: accomplished solely on Federal lands Engineers; licensing of hydroelectric (1) Unauthorized collecting, handling, because their range may occur primarily dams, and construction and possessing, selling, delivering, carrying, or solely on non-Federal lands. To management of gas pipeline and power or transporting of the species, including achieve recovery of these species line rights-of-way approved by the import or export across State lines and requires cooperative conservation efforts Federal Energy Regulatory Commission; international boundaries, except for on private, State, and Tribal lands. issuance of 26a permits by the properly documented antique When this rule is effective (see Tennessee Valley Authority; specimens of these taxa at least 100 DATES), funding for recovery actions will construction and maintenance of roads be available from a variety of sources, or highways funded by the Federal years old, as defined by section 10(h)(1) including Federal budgets, State Highway Administration; and land of the Act. programs, and cost share grants for non- management practices administered by (2) Introduction of nonnative species, Federal landowners, the academic the U.S. Department of Agriculture. It such as the Asian clam, that compete community, and nongovernmental has been the experience of the Service with or prey upon these mussel species. organizations. In addition, under section from consultations on other species, (3) Unauthorized modification of the 6 of the Act, the States of Alabama, however, that nearly all section 7 channel, substrate, temperature, or Kentucky, Mississippi, Tennessee and consultations have been resolved so that water flow of any stream or water body Virginia will be eligible for Federal the species have been protected and the in which these species are known to funds to implement management project objectives have been met. occur. actions that promote the protection and The Act and its implementing recovery of these two species. regulations set forth a series of general (4) Unauthorized discharge of Information on our grant programs that prohibitions and exceptions that apply chemicals or fill material into any are available to aid species recovery can to all endangered and threatened waters in which the fluted kidneyshell be found at: http://www.fws.gov/grants. wildlife. The prohibitions of section and slabside pearlymussel are known to Please let us know if you are 9(a)(2), codified at 50 CFR 17.21 for occur. interested in participating in recovery endangered wildlife, make it illegal for Questions regarding whether specific efforts for the fluted kidneyshell and any person subject to the jurisdiction of activities would constitute a violation of slabside pearlymussel. Additionally, we the United States to take (includes section 9 of the Act should be directed invite you to submit any new harass, harm, pursue, hunt, shoot, to the Tennessee Ecological Services information on these species whenever wound, kill, trap, capture, or collect; or Field Office (see FOR FURTHER it becomes available and any to attempt any of these), import, export, INFORMATION CONTACT). Requests for information you may have for recovery ship in interstate commerce in the copies of the regulations concerning planning purposes (see FOR FURTHER course of commercial activity, or sell or listed animals and general inquiries INFORMATION CONTACT). offer for sale in interstate or foreign regarding prohibitions and permits may Section 7(a) of the Act requires commerce any listed species. Under the be addressed to the U.S. Fish and Federal agencies to evaluate their Lacey Act (18 U.S.C. 42–43; 16 U.S.C. Wildlife Service, Endangered Species actions with respect to any species that 3371–3378), it is also illegal to possess, Permits, 1875 Century Boulevard, Suite is proposed or listed as endangered or sell, deliver, carry, transport, or ship threatened and with respect to its 200, Atlanta, GA 30345; telephone: 404– any such wildlife that has been taken 679–7140; facsimile: 404–679–7081. critical habitat, if any is designated. illegally. Certain exceptions apply to Regulations implementing this agents of the Service and State Required Determinations interagency cooperation provision of the conservation agencies. Act are codified at 50 CFR part 402. We may issue permits to carry out National Environmental Policy Act Section 7(a)(4) of the Act requires otherwise prohibited activities We have determined that Federal agencies to confer with the involving endangered and threatened environmental assessments and Service on any action that is likely to wildlife species under certain environmental impact statements, as jeopardize the continued existence of a circumstances. Regulations governing defined under the authority of the species proposed for listing or result in permits are codified at 50 CFR 17.22 for National Environmental Policy Act destruction or adverse modification of endangered species, and at 17.32 for proposed critical habitat. If a species is threatened species. With regard to (NEPA; 42 U.S.C. 4321 et seq.), need not listed subsequently, section 7(a)(2) of endangered wildlife, a permit must be be prepared in connection with listing the Act requires Federal agencies to issued for the following purposes: for a species as endangered or threatened ensure that activities they authorize, scientific purposes, to enhance the under the Endangered Species Act. We fund, or carry out are not likely to propagation or survival of the species, published a notice outlining our reasons jeopardize the continued existence of and for incidental take in connection for this determination in the Federal the species or destroy or adversely with otherwise lawful activities. Register on October 25, 1983 (48 FR modify its critical habitat. If a Federal It is our policy, as published in the 49244). action may affect a listed species or its Federal Register on July 1, 1994 (59 FR References Cited critical habitat, the responsible Federal 34272), to identify, to the maximum agency must enter into formal extent practicable at the time a species A complete list of all references cited consultation with the Service. is listed, those activities that would or in this final rule is available on the Federal agency actions within the would not constitute a violation of Internet at http://www.regulations.gov, species habitat that may require section 9 of the Act. The intent of this or upon request from the Tennessee conference or consultation or both as policy is to increase public awareness of Ecological Services Field Office (see FOR described in the preceding paragraph the effect of a listing on proposed and FURTHER INFORMATION CONTACT).

VerDate Mar<15>2010 17:00 Sep 25, 2013 Jkt 229001 PO 00000 Frm 00124 Fmt 4700 Sfmt 4700 E:\FR\FM\26SER1.SGM 26SER1 mstockstill on DSK4VPTVN1PROD with RULES Federal Register / Vol. 78, No. 187 / Thursday, September 26, 2013 / Rules and Regulations 59287

Authors Regulation Promulgation ■ 2. Amend § 17.11(h) by adding entries Accordingly, we amend part 17, for ‘‘Kidneyshell, fluted’’ and The primary authors of this final rule ‘‘Pearlymussel, slabside’’ to the List of are the staff members of the Tennessee subchapter B of chapter I, title 50 of the Code of Federal Regulations, as follows: Endangered and Threatened Wildlife in Ecological Services Field Office. alphabetical order under ‘‘CLAMS’’: List of Subjects in 50 CFR Part 17 PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS § 17.11 Endangered and threatened Endangered and threatened species, wildlife. Exports, Imports, Reporting and ■ 1. The authority citation for part 17 * * * * * continues to read as follows: recordkeeping requirements, (h) * * * Transportation. Authority: 16 U.S.C. 1361–1407; 1531– 1544; 4201–4245, unless otherwise noted.

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

******* CLAMS

******* Kidneyshell, fluted ... Ptychobranchus U.S.A. (AL, KY, TN, Entire ...... E 825 17.95(f) NA subtentum. VA).

******* Pearlymussel, Pleuronaia U.S.A. (AL, KY, MS, Entire ...... E 825 17.95(f) NA slabside. dolabelloides. TN, VA).

*******

* * * * * exclusive economic zone (EEZ). This The regulations at 50 CFR Dated: September 17, 2013. trip limit reduction is necessary to 622.385(a)(2)(ii)(B)(2), provide that Rowan W. Gould, protect the Gulf king mackerel resource. when 75 percent of the northern Florida west coast subzone’s quota has been Acting Director, U.S. Fish and Wildlife DATES: This rule is effective noon, local Service. time, September 25, 2013, through June harvested until a closure of the subzone has been effected or the fishing year [FR Doc. 2013–23356 Filed 9–25–13; 8:45 am] 30, 2014, unless changed by further notice in the Federal Register. ends, king mackerel in or from the EEZ BILLING CODE 4310–55–P may be possessed on board or landed FOR FURTHER INFORMATION CONTACT: from a permitted vessel in amounts not Susan Gerhart, telephone: 727–824– DEPARTMENT OF COMMERCE exceeding 500 lb (227 kg) per day. 5305, email: [email protected]. NMFS has projected that 75 percent of National Oceanic and Atmospheric SUPPLEMENTARY INFORMATION: The the quota for Gulf group king mackerel Administration fishery for coastal migratory pelagic fish from the northern Florida west coast (king mackerel, Spanish mackerel, and subzone has been reached. Accordingly, 50 CFR Part 622 cobia) is managed under the Fishery a 500-lb (227-kg) trip limit applies to Management Plan for the Coastal vessels with a commercial permit for [Docket No. 001005281–0369–02] Migratory Pelagic Resources of the Gulf king mackerel that possess or land king RIN 0648–XC885 of Mexico and South Atlantic (FMP). mackerel in or from the EEZ in the The FMP was prepared by the Gulf of northern Florida west coast subzone Fisheries of the Caribbean, Gulf of Mexico and South Atlantic Fishery effective noon, local time, September Mexico, and South Atlantic; Coastal Management Councils (Councils) and is 25, 2013. The 500-lb (227-kg) trip limit Migratory Pelagic Resources of the implemented under the authority of the will remain in effect until the fishery Gulf of Mexico and South Atlantic; Trip Magnuson-Stevens Fishery closes or until the end of the current Limit Reduction Conservation and Management Act fishing year (June 30, 2014), whichever AGENCY: National Marine Fisheries (Magnuson-Stevens Act) by regulations occurs first. Service (NMFS), National Oceanic and at 50 CFR part 622. The Florida west coast subzone is that Atmospheric Administration (NOAA), On April 27, 2000, NMFS part of the eastern zone located south ° ′ Commerce. implemented the final rule (65 FR and west of 25 20.4 N. lat. (a line ACTION: Temporary rule; trip limit 16336, March 28, 2000) that divided the directly east from the Miami-Dade/ reduction. king mackerel Gulf migratory group’s Monroe County, FL boundary) along the Florida west coast subzone of the Gulf west coast of Florida to 87°31.1′ W. SUMMARY: NMFS reduces the trip limit eastern zone into northern and southern long. (a line directly south from the for the commercial sector of king subzones, and established their separate Alabama/Florida boundary). The mackerel in the eastern zone of the Gulf quotas. The quota for the northern Florida west coast subzone is further of Mexico (Gulf) in the northern Florida Florida west coast subzone is 178,848 lb divided into northern and southern west coast subzone to 500 lb (227 kg) of (81,124 kg) (50 CFR subzones. The northern subzone is that king mackerel per day in or from the 622.384(b)(1)(i)(B)(2). part of the Florida west coast subzone

VerDate Mar<15>2010 17:00 Sep 25, 2013 Jkt 229001 PO 00000 Frm 00125 Fmt 4700 Sfmt 4700 E:\FR\FM\26SER1.SGM 26SER1 mstockstill on DSK4VPTVN1PROD with RULES