Vol. 78 Thursday, No. 187 September 26, 2013

Part IV

Department of the Interior

Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical for the Fluted Kidneyshell and Slabside Pearlymussel; Final Rule

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DEPARTMENT OF THE INTERIOR CONTACT). Any additional tools or (970 rmi) of critical habitat in Colbert, supporting information that we Jackson, Limestone, Madison, and Fish and Wildlife Service developed for this critical habitat Marshall Counties, ; designation will be available at the Web Tishomingo County, ; 50 CFR Part 17 sites and field office address given Bedford, Bledsoe, Claiborne, Cocke, [Docket No. FWS–R4–ES–2013–0026; above and may also be included in the Franklin, Giles, Greene, Hamblen, 4500030113] preamble of this rule. Hancock, Hickman, Humphreys, FOR FURTHER INFORMATION CONTACT: Lincoln, Marion, Marshall, Maury, RIN 1018–AZ48 Mary Jennings, Field Supervisor, U.S. Moore, Perry, Polk, and Sequatchie Counties, ; and Bland, Lee, Endangered and Threatened Wildlife Fish and Wildlife Service, Tennessee Russell, Scott, Smyth, Tazewell, and Plants; Designation of Critical Ecological Services Field Office, 446 Neal Street, Cookeville, TN 38501; Washington, and Wythe Counties, Habitat for the Fluted Kidneyshell and . Slabside Pearlymussel telephone 931–528–6481; facsimile 931–528–7075. If you use a This rule consists of a final rule AGENCY: Fish and Wildlife Service, telecommunications device for the deaf designating critical habitat for the fluted Interior. (TDD), call the Federal Information kidneyshell and slabside pearlymussel. Elsewhere in today’s Federal Register, ACTION: Final rule. Relay Service (FIRS) at 800–877–8339. we list both as endangered SUPPLEMENTARY INFORMATION: SUMMARY: We, the U.S. Fish and under the Act. Wildlife Service (Service), designate Executive Summary Peer review and public comment. We critical habitat for the fluted kidneyshell sought comments from independent Why we need to publish a rule. This specialists to ensure that our (Ptychobranchus subtentum) and is a final rule to designate critical slabside pearlymussel (Pleuronaia designation is based on scientifically habitat for the fluted kidneyshell sound data, assumptions, and analyses. dolabelloides) under the Endangered (Ptychobranchus subtentum) and Species Act of 1973, as amended (Act). We requested opinions from eight slabside pearlymussel (Pleuronaia knowledgeable individuals with These two species are endemic to dolabelloides). Under the Endangered portions of the Cumberland and scientific expertise to review our Species Act (Act), when we determine technical assumptions and analysis, and systems of Alabama, that a species is endangered or , Mississippi, Tennessee, and to determine whether or not we used the threatened we must designate critical best available information. Only one of Virginia. In total, approximately 2,218 habitat to the maximum extent prudent river kilometers (1,380 river miles) in the two peer reviewers who responded and determinable. Designations of commented specifically on the critical Alabama, Kentucky, Mississippi, critical habitat can only be completed Tennessee, and Virginia fall within the habitat designation. This peer reviewer by issuing a rule. generally concurred with our methods boundaries of the critical habitat Section 4(b)(2) of the Act states that designation. The effect of this regulation and conclusions, and provided the Secretary shall designate critical additional information, clarifications, is to designate critical habitat for the habitat on the basis of the best available fluted kidneyshell and slabside and suggestions to improve this final scientific data after taking into rule. Information we received from peer pearlymussel under the Act for the consideration the economic impact, conservation of the species. review is incorporated in this final national security impact, and any other designation. We received three DATES: This rule is effective on October relevant impact of specifying any comments from the public regarding the 28, 2013. particular area as critical habitat. proposed critical habitat designation ADDRESSES: This final rule is available The areas we are designating in this and the draft economic analysis (DEA). on the Internet at http:// rule constitute our current best We addressed these comments and www.regulations.gov and at http:// assessment of the areas that meet the incorporated public input into this final www.fws.gov/cookeville. Comments and definition of critical habitat for the designation. materials we received, as well as fluted kidneyshell and slabside supporting documentation we used in pearlymussel. Here we are designating Previous Federal Actions preparing this final rule, are available approximately 2,218 river kilometers We proposed listing the fluted for public inspection at http:// (rkm) (1,380 river miles (rmi)) of stream kidneyshell and slabside pearlymussel www.regulations.gov. All of the channel in five States as critical habitat. as endangered under the Act with comments, materials, and For the fluted kidneyshell, we are critical habitat on October 4, 2012 (77 documentation that we considered in designating 24 units covering FR 60804), and announced the this rulemaking are available by approximately 1,899 rkm (1,181 rmi) of availability of a DEA on April 29, 2013 appointment, during normal business critical habitat in Limestone County, (78 FR 25041). The final listing rule can hours, at: U.S. Fish and Wildlife Alabama; Jackson, Laurel, McCreary, be found elsewhere in today’s Federal Service, Tennessee Ecological Services Pulaski, Rockcastle, and Wayne Register. All other previous Federal Field Office, 446 Neal Street, Counties, Kentucky; Bedford, Claiborne, actions for these species are described Cookeville, TN 38501; 931–528–6481 Cocke, Fentress, Franklin, Giles, in the proposed rule (77 FR 60804). (telephone); 931–528–7075 (facsimile). Grainger, Greene, Hamblen, Hancock, The coordinates or plot points or both Hickman, Humphreys, Jefferson, Knox, Summary of Comments and from which the maps are generated are Lincoln, Marshall, Maury, Moore, Recommendations included in the administrative record Morgan, Overton, Perry, Pickett, Polk, We requested written comments from for this critical habitat designation and Scott, and Sevier Counties, Tennessee; the public on the proposed designation are available at http:// and Bland, Lee, Russell, Scott, Smyth, of critical habitat for the fluted www.regulations.gov at Docket No. Tazewell, Washington, and Wythe kidneyshell and slabside pearlymussel FWS–R4–ES–2013–0026 and at the Counties, Virginia. For the slabside during two comment periods. The first Tennessee Ecological Services Field pearlymussel, we are designating 13 comment period associated with the Office (see FOR FURTHER INFORMATION units covering approximately 1,562 rkm publication of the proposed rule (77 FR

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60804) opened on October 4, 2012, and degradation or destruction of aquatic of a successful reintroduction program closed on December 3, 2012. We also habitat. implemented by TWRA and other requested comments on the proposed Our Response: We agree that the conservation partners, resulting in the critical habitat designation and TWRA mussel sanctuaries are protective recruitment of the species in the river. associated DEA during a comment of the fluted kidneyshell and slabside In 2010, six individuals were collected period that opened on April 29, 2013, pearlymussel, and we have incorporated during a quantitative survey at Lillard’s and closed on May 29, 2013. We this into the Special Management Mill in the Duck River, confirming some received one request for a public Considerations or Protection section of level of survival and persistence of the hearing. We held a public hearing in this final rule. reintroduced population (Hubbs et al. Abingdon, Virginia, on May 14, 2013. (2) Comment: In several critical 2011, p. 18). We also contacted appropriate Federal, habitat unit descriptions, the host fish We had no information at the time of State, and local agencies; scientific species for the slabside pearlymussel are the proposed rule to show that experts and organizations; and other identified but not the host fish for the monitoring efforts in the Nolichucky interested parties and invited them to fluted kidneyshell. Host fish for the River had confirmed the survival and comment on the proposal. Newspaper fluted kidneyshell are also found in persistence of reintroduced fluted notices inviting general public comment these rivers (Nolichucky, Hiwassee, Elk, kidneyshell. Since that time, Hubbs were published in newspapers covering and Buffalo Rivers). (2012, pers. comm.) confirmed that the all affected counties in Alabama, Our Response: We agree the host Nolichucky River retains a large number Kentucky, Mississippi, Tennessee, and fishes for the fluted kidneyshell are of adult individuals. Therefore, we have Virginia. found in the Nolichucky (FK18), changed the designation of critical During the first comment period, we Hiwassee (FK21), Elk (FK22), and habitat in the Nolichucky River from received three comment letters directly Buffalo (FK24) Rivers. However, under unoccupied to occupied and revised the addressing the proposed critical habitat the Act (16 U.S.C. 1531 et seq.) and its designation accordingly. designation. During the second implementing regulations, we are only Federal Agency Comments comment period, we received one required to identify the physical and comment letter addressing the proposed biological features (PBFs) essential to (4) Comment: The U.S. Department of critical habitat designation or the DEA. the conservation of species in areas Agriculture, Natural Resources During the May 14, 2013, public occupied at the time of listing, focusing Conservation Service (NRCS), in hearing, one organization made on the features’ primary constituent Kentucky, would like to explore comments on the proposed designation elements (PCEs). Under the second opportunities to focus conservation of critical habitat and DEA. All prong of the Act’s definition of critical practices including the Wildlife Habitat substantive information provided habitat, we can designate critical habitat Incentives Program (WHIP) and the during both comment periods and the in areas outside the geographical area Environmental Quality Incentives public hearing has either been occupied by the species at the time it is Program on water quality improvement incorporated directly into this final listed (i.e., unoccupied units), upon a and restoration in any areas designated determination or is addressed below. determination that such areas are as critical habitat for the fluted essential for the conservation of the kidneyshell and other aquatic Peer Reviewer Comments species. Because units FK21, FK22, and organisms. In accordance with our peer review FK24 are unoccupied by the fluted Our Response: The Service concurs policy published on July 1, 1994 (59 FR kidneyshell at the time of listing, the that Farm Bill practices implemented by 34270), we solicited expert opinion presence of the host fishes (a PCE for the the NRCS can improve water quality from eight knowledgeable individuals fluted kidneyshell) was not considered and benefit rare aquatic species. The with scientific expertise that included in the determination of those units and Service will continue to work with familiarity with the two mussels and therefore not identified in the unit NRCS to identify aquatic for their habitats, biological needs, and descriptions. The critical habitat rare aquatic species that would benefit threats. We received responses from two designation for these units is based from conservation practices on private of the peer reviewers, but only one of upon the determination that they are lands. One example of a successful them commented specifically on the essential for the conservation of the partnership between NRCS and the proposed critical habitat designation. species. However, Unit FK18 has been Service’s Kentucky Field Office is the We reviewed all comments we changed to occupied based on Mill Branch Stream Restoration Project received from the peer reviewer for information provided by peer reviewers in which 700 meters (m) (2,300 feet (ft)) substantive issues and new information (see next comment), and the presence of of stream was completely restored and regarding the proposed designation of fish hosts for the fluted kidneyshell has a fish passage installed to open an critical habitat for the two mussels. Peer been added to the description of Unit additional 1,524 to 2,438 m (5,000 to reviewer comments are addressed in FK18 (see Final Critical Habitat 8,000 ft) of stream for the federally Comments 1, 2, and 3 below; addressed Designation, below). threatened blackside dace (Phoxinus in the Summary of Changes from (3) Comment: The Nolichucky River, [=Chrosomus] cumberlandensis) in Proposed Rule section; and incorporated Tennessee, Unit FK18 for the fluted Knox County, Kentucky. This project into the final rule as appropriate. kidneyshell, has been proposed as was completed through the WHIP (1) Comment: The Special unoccupied critical habitat even though program. Management Considerations or the site retains large numbers of Protection section fails to list the reintroduced adults from stocking Public Comments Tennessee Wildlife Resources Agency efforts over the past 8 years. However, (5) Comment: The Service has failed (TWRA) mussel sanctuaries located in the Duck River has been proposed as to prepare a DEA or to announce when the Powell, Clinch, Duck, and Hiwassee occupied based on similar the public will have the opportunity to Rivers as effective conservation reintroduction efforts. Explain this comment on that analysis, hindering the measures. The mussel sanctuaries inconsistency. public’s ability to meaningfully prohibit the taking of mollusks by any Our Response: In the Duck River, the comment on the complete picture of means at all times and prohibit the fluted kidneyshell population is a result factors impacting the Service’s

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determination and whether or not the Our Response: The Virginia Division unwarranted regulatory burdens with Service has complied with all legal of Mines, Minerals, and Energy declined regard to consultation requirements obligations that should shape the final to provide information for the economic under section 7 of the Act as they apply rule. analysis. Phone and email requests for to designated critical habitat. Our Response: We proposed listing information from the Virginia Coal Consultation in unoccupied habitats, the fluted kidneyshell and slabside Association, Virginia Mining where there are no specimens of the pearlymussel as endangered under the Association, and Eastern Coal Council fluted kidneyshell or slabside Act with critical habitat (77 FR 60804) were not returned. pearlymussel, would be unduly on October 4, 2012, and announced the (8) Comment: The Service published burdensome, unwarranted, and unlikely availability of a DEA (78 FR 25041) on a proposed rule that had not undergone to foster support for the conservation of April 29, 2013. Publication of the DEA peer review, thereby not necessarily these species. after the proposed critical habitat rule is reflecting sound science, as required by Our Response: For the most part, published has been standard practice section 4 of the Act and as required consultation requirements under section with critical habitat rules. The Service under section 515(b)(2)(A) of the 7 of the Act already exist for other listed reopened the comment period for 30 Information Quality Act. Rather than species throughout the critical habitat days (through May 29, 2013) to allow conducting peer review prior to designation for the fluted kidneyshell comments on the DEA. Additionally, we publication of the proposed rule, which and slabside pearlymussel. Eleven held a public hearing in Abingdon, would allow the public to view a fully critical habitat units proposed for both Virginia, on May 14, 2013. scientifically vetted proposal, the the fluted kidneyshell and slabside (6) Comment: During the public Service opted to conduct peer review pearlymussel are currently designated hearing, one commenter stated that the contemporaneously with the public as critical habitat under the Act for DEA is not based on sufficient data and comment period. Additionally, there is other federally listed species. All of the many of the aspects of it appear to be no indication that the public will have critical habitat units being designated incorrect. The methodology used to an opportunity to review and comment for the fluted kidneyshell and slabside reach the estimates is poorly explained on the rule as informed by peer review, pearlymussel, including the unoccupied and the discount rate selected appears which is troubling due to the Service units, contain historical or extant to be too high. The same commenter relying on decades-old data (e.g., records of federally listed or proposed also stated: ‘‘The draft economic concluding a population to be extant if species, except for the Wolf River and analysis did not quantify, quote, found post-1980). Town Branch and West Fork Obey Our Response: In accordance with our indirect economic impacts associated River, Tennessee. Specifically: peer review policy published on July 1, • Some streams we are designating as with time delays and a misperception of 1994 (59 FR 34270), we solicited expert critical habitat that are unoccupied by at the regulatory burden imposed by the opinion from eight knowledgeable least one of the species are occupied proposed critical habitat designation, individuals with scientific expertise that either by the other species or by another end quote, because of, quote, a lack of included familiarity with the two federally listed mussel species. For available data, end quote.’’ mussels and their habitats, biological instance, the Buffalo River Unit (Unit Our Reponse: Our economic analysis needs, and threats. In keeping with our FK24 and SP13) is unoccupied critical is based on the best available data and policy, we contacted these peer habitat for the fluted kidneyshell, but is applies standard methods for assessing reviewers after the proposed rule was occupied critical habitat for the slabside the impacts of critical habitat published in the Federal Register. We pearlymussel. designation. The Office of Management received responses from two of the peer • Some streams we are designating as and Budget (OMB) recommends that a 7 reviewers. We posted all of the critical habitat for the fluted kidneyshell percent discount rate be applied as a comments we received on the October 4, and slabside pearlymussel have not base case for regulatory analysis (OMB 2012, proposal to designate critical been previously designated as critical 2003). The DEA and final economic habitat for the fluted kidneyshell and habitat for other species, but other analysis (FEA) also report results using slabside pearlymussel (77 FR 60804), as federally listed species occur in these a discount rate of 0 percent and 3 well as the document making available streams. For instance, the Holston River percent for comparison. the DEA for that proposed action (78 FR (Unit FK19) and French Broad River There were insufficient data to 25041; April 29, 2013), on the Internet (Unit FK20), which we are designating quantify and monetize indirect at http://www.regulations.gov under as unoccupied critical habitat for the economic impacts of the critical habitat Docket No. FWS–R4–ES–2013–0026. fluted kidneyshell, contain other designation. These are addressed We reviewed all comments we federally listed species such as the pink qualitatively in the analysis to allow the received from the peer reviewers and mucket (Lampsilis abrupta). Service to consider these impacts in our others for substantive issues and new The Service is designating as critical determination. Based on our previous information regarding the proposed habitat streams that are outside the data collection, we have included designation of critical habitat for the geographical area occupied by the additional information regarding time two mussels. The peer reviewers species because we have determined delays associated with section 7 generally concurred with our that: (1) Such areas are essential for the consultations in the FEA. conclusions and provided additional conservation of the species, and (2) (7) Comment: During the public information on taxonomic classification, designation of only occupied habitats is hearing, one commenter stated there is life history, current distribution, and not sufficient to conserve these two no indication in the DEA that the threats. Peer reviewer comments are species. Unoccupied habitats provide authors consulted with the Virginia addressed in the Peer Reviewer additional habitat for population Division of Mines, Minerals, and Comments section above, addressed in expansion and promotion of genetic Energy, or with any other coal the Summary of Changes from Proposed diversity, which will decrease the risk companies concerning the direct and Rule section below, and incorporated of for these two species. As indirect economic impact of the into this final rule as appropriate. indicated above, the majority of these proposed critical habitat designation on (9) Comment: The proposed rule habitats already possess listed species or the coal mining industry. would impose significant and their critical habitat, and therefore

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Federal actions in those areas would (5) We added oyster rmussel to Unit requests Federal agency funding or require consultation under the Act, SP9 (Paint Rock River). authorization for an action that may regardless of whether or not critical (6) We added Alabama lampmussel affect a listed species or critical habitat, habitat was designated for these two (Lampsilis virescens) and the consultation requirements of section mussels. Cumberlandian combshell (E. brevidens) 7(a)(2) of the Act would apply, but even to Unit SP11 (Bear Creek) and deleted in the event of a destruction or adverse Summary of Changes From Proposed finerayed pigtoe ( cuneolus) modification finding, the obligation of Rule from the same unit. the Federal action agency and the As a result of the comments we (7) We deleted orangefoot pimpleback landowner is not to restore or recover received during the public comment ( cooperianus) from Unit the species, but to implement periods (see above), we made the FK23 and SP12 (Duck River). reasonable and prudent alternatives to following changes to the final critical avoid destruction or adverse Background habitat rule: modification of critical habitat. (1) We added TWRA mussel Critical habitat is defined in section 3 Under the first prong of the Act’s sanctuary information to the Special of the Act as: definition of critical habitat, areas Management Considerations or (1) The specific areas within the within the geographical area occupied Protection section. geographical area occupied by the by the species at the time it was listed (2) We changed Unit FK18 species, at the time it is listed in are included in a critical habitat (Nolichucky River) from unoccupied to accordance with the Act, on which are designation if they contain physical or occupied for the fluted kidneyshell to found those physical or biological biological features (1) which are reflect the successful reintroduction features essential to the conservation of the program implemented by TWRA and (a) Essential to the conservation of the species, and (2) which may require other conservation partners. species, and special management considerations or (3) In Table 4, we added pink mucket (b) Which may require special protection. For these areas, critical to the list of species that occur in the management considerations or habitat designations identify, to the Holston River (Unit FK19). protection; and extent known using the best scientific (4) We corrected the description for (2) Specific areas outside the and commercial data available, those Unit FK19 to reflect that slabside geographical area occupied by the physical or biological features that are pearlymussel and its host fish are species at the time it is listed, upon a essential to the conservation of the known from the Holston River (not the determination that such areas are species (such as space, food, cover, and French Broad River). essential for the conservation of the protected habitat). In identifying those (5) We revised the description of Unit species. physical or biological features within an FK24 and SP13 (Buffalo River). The Conservation, as defined under area, we focus on the principal channel is not stable, as we stated in the section 3 of the Act, means to use, and biological or physical constituent proposed rule, but has destabilized the use of, all methods and procedures elements (primary constituent elements substrates. that are necessary to bring an such as roost sites, nesting grounds, While preparing the final critical endangered or threatened species to the seasonal wetlands, water quality, tide, habitat rule, we also made the following point at which the measures provided soil type) that are essential to the corrections and modifications to Table 3 pursuant to the Act are no longer conservation of the species. (Table 5 in the proposed rule): necessary. Such methods and Under the second prong of the Act’s (1) We corrected the length of overlap procedures include, but are not limited definition of critical habitat, we can for rabbitsfoot (Quadrula cylindrica to, all activities associated with designate critical habitat in areas cylindrica) in Unit SP9 (Paint Rock scientific resources management such as outside the geographical area occupied River), Unit SP11 (Bear Creek), and Unit research, census, law enforcement, by the species at the time it is listed, FK23 and SP12 (Duck River). habitat acquisition and maintenance, upon a determination that such areas (2) We calculated total overlap lengths propagation, live trapping, and for critical habitat units and are essential for the conservation of the transplantation, and, in the nonessential experimental populations species. For example, an area currently extraordinary case where population (NEPs) separately. occupied by the species but that was not (3) We added a note to clarify how the pressures within a given ecosystem occupied at the time of listing may be total overlap lengths were calculated. cannot be otherwise relieved, may essential to the conservation of the In Table 4 (Table 6 in the proposed include regulated taking. species and may be included in the rule), we made the following corrections Critical habitat receives protection critical habitat designation. We to the list of species that occur in under section 7 of the Act through the designate critical habitat in areas critical habitat units: requirement that Federal agencies outside the geographical area occupied (1) We added rough rabbitsfoot (Q. c. ensure, in consultation with the Service, by a species only when a designation strigillata) to Unit FK10 (Indian Creek). that any action they authorize, fund, or limited to its range would be inadequate (2) We deleted tan riffleshell carry out is not likely to result in the to ensure the conservation of the ( florentina walkeri (=E. destruction or adverse modification of species. walkeri)) and white wartyback critical habitat. The designation of Section 4 of the Act requires that we (Plethobasus cicatricosus) from Unit critical habitat does not affect land designate critical habitat on the basis of FK17 and SP5 (Powell River). ownership or establish a refuge, the best scientific and commercial data (3) We added oyster mussel (E. wilderness, reserve, preserve, or other available. Further, our Policy on capsaeformis) to and deleted pink conservation area. Such designation Information Standards under the mucket from Unit FK18 and SP6 does not allow the government or public Act (published in (Nolichucky River). to access private lands. Such the Federal Register on July 1, 1994 (59 (4) We added birdwing pearlymussel designation does not require FR 34271)), the Information Quality Act (Lemiox rimosus) and cracking implementation of restoration, recovery, (section 515 of the Treasury and General pearlymussel (Hemistena lata) to Unit or enhancement measures by non- Government Appropriations Act for FK20 (French Broad River). Federal landowners. Where a landowner Fiscal Year 2001 (Pub. L. 106–554; H.R.

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5658)), and our associated Information Physical and Biological Features kidneyshell is primarily a medium-sized Quality Guidelines, provide criteria, In accordance with sections 3(5)(A)(i) creek to large river species, inhabiting establish procedures, and provide and 4(b)(1)(A) of the Act and the sand and gravel substrates in relatively guidance to ensure that our decisions regulations at 50 CFR 424.12, in shallow riffles and shoals with moderate are based on the best scientific data determining which areas within the to swift current (Parmalee and Bogan available. They require our biologists, to geographical area occupied at the time 1998, p. 205). In comparison to co- the extent consistent with the Act and of listing to propose as critical habitat, occurring species, the fluted kidneyshell demonstrates strong habitat specificity. with the use of the best scientific data we consider the physical and biological available, to use primary and original It is associated with faster flows, greater features (PBFs) essential to the sources of information as the basis for baseflow shear stress, and low substrate conservation of the species that may recommendations to designate critical embeddedness (Ostby 2005, pp. 51, require special management habitat. 142–143). The slabside pearlymussel is considerations or protection. These may When we are determining which areas primarily a large creek to large river include, but are not limited to: should be designated as critical habitat, species, inhabiting sand, fine gravel, (1) Space for individual and our primary source of information is and cobble substrates in relatively population growth and for normal generally the information developed shallow riffles and shoals with moderate behavior; during the listing process for the current (Parmalee and Bogan 1998, p. (2) Food, water, air, light, minerals, or species. Additional information sources 152). may include articles in peer-reviewed other nutritional or physiological Similar to other mussels, fluted journals, conservation plans developed requirements; kidneyshell and slabside pearlymussel by States and counties, scientific status (3) Cover or shelter; are dependent on areas with flow surveys and studies, biological (4) Sites for breeding, reproduction, or refuges where shear stress is relatively assessments, or other unpublished rearing (or development) of offspring; low, although the fluted kidneyshell is materials and expert opinion or and more tolerant of shear stress than other personal knowledge. (5) Habitats that are protected from species (Layzer and Madison 1995, p. Habitat is dynamic, and species may disturbance or are representative of the 341; Strayer 1999, pp. 468 and 472; move from one area to another over historical, geographical, and ecological Hastie et al. 2001, pp. 111–114). Flow time. We recognize that critical habitat distributions of a species. refuges conceivably allow relatively designated at a particular point in time We derive the specific PBFs required immobile mussels such as the fluted may not include all of the habitat areas for the fluted kidneyshell and slabside kidneyshell and slabside pearlymussel that we may later determine are pearlymussel based on their biological to remain in the same general location necessary for the recovery of the needs. Little is known of the specific throughout their entire lives. species. For these reasons, a critical habitat requirements of these two Natural river or creek channel habitat designation does not signal that mussel species other than they require stability is achieved by allowing the habitat outside the designated area is flowing water, stable stream channels, river or creek to develop a stable unimportant or may not be needed for adequate water quality, and fish hosts dimension, pattern, and profile such recovery of the species. Areas that are for development of larva to that, over time, channel features are important to the conservation of the metamorphose into juvenile mussels. To maintained and the river or creek species, both inside and outside the identify the physical and biological system neither aggrades nor degrades. critical habitat designation, will needs of the species, we have relied on Channel instability occurs when the continue to be subject to: (1) current conditions at locations where scouring process leads to degradation or Conservation actions implemented the species survive, the limited excessive sediment deposition results in under section 7(a)(1) of the Act, (2) information available on these two aggradation. Stable rivers and creeks regulatory protections afforded by the mussels and their close relatives, and consistently transport their sediment requirement in section 7(a)(2) of the Act factors associated with the decline and load, both in size and type, associated for Federal agencies to insure their extirpation of these and other mussels with local deposition and scour (Rosgen actions are not likely to jeopardize the from portions of the Cumberland and 1996, p. 1–3). Sedimentation has been continued existence of any endangered Tennessee River systems. Additional determined to be a major factor in or threatened species, and (3) section 9 information is located in the final listing , resulting in of the Act’s prohibitions on taking any rule, which can be found elsewhere in corresponding shifts in mussel fauna individual or the species, including today’s Federal Register. We have (Brim Box and Mossa 1999, p. 102). taking caused by actions that affect determined that the fluted kidneyshell Stable stream bottom substrates not only habitat. Federally funded or permitted and slabside pearlymussel require the provide space for populations of these projects affecting listed species outside following physical or biological mussel species, but also provide cover their designated critical habitat areas features: and shelter and sites for breeding, may still result in jeopardy findings in reproduction, and growth of offspring. Space for Individual and Population some cases. These protections and Habitat conditions described in the Growth and for Normal Behavior conservation tools will continue to previous paragraphs provide space, contribute to recovery of these species. The fluted kidneyshell and slabside cover, shelter, and sites for breeding, Similarly, critical habitat designations pearlymussel are historically associated reproduction, and growth of offspring made on the basis of the best available with the Cumberland and Tennessee for the fluted kidneyshell and slabside information at the time of designation River drainages in Alabama, Kentucky, pearlymussel. These habitats are will not control the direction and Mississippi, Tennessee, and Virginia. dynamic and are formed and substance of future recovery plans, Mussels generally live embedded in the maintained by water quantity, channel habitat conservation plans (HCPs), or bottom of stable streams and other features (dimension, pattern, and other species conservation planning bodies of water, and within riffle areas profile), and sediment input to the efforts if new information available at of sufficient current velocities to remove system through periodic flooding, the time of these planning efforts calls finer sediments and provide well- which maintain connectivity and for a different outcome. oxygenated waters. The fluted interaction with the flood plain.

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Changes in one or more of these spaces, embedding and even standards for endangered and parameters can result in channel concretizing the substrate and virtually threatened species and their critical degradation or aggradation, with serious altering habitat to such a degree that it habitats as described in the effects to mussels. becomes uninhabitable for mussels, memorandum of agreement that our Therefore, based on the information particularly juveniles. Excessive agencies signed in 2001 (66 FR 11201; above, we identify riffles of large creeks suspended sediments may also impair February 22, 2001). Other factors that and rivers with sand, gravel, and cobble visual acuity of host fish, an obstacle to can potentially alter water quality are substrates; areas of moderate to high the mechanisms that mussels employ to droughts and periods of low flow, water amount of flow, but with refugia of low attract and inoculate host fish with withdrawals, nonpoint source runoff shear stress; stream channel stability; glochidia. from adjacent land surfaces (for and floodplain connectivity to be PBFs The fluted kidneyshell and slabside example, excessive amounts of for both of these species. pearlymussel are riverine species that sediments, nutrients, and pesticides), depend upon adequate water flow. Food, Water, Air, Light, Minerals, or point source discharges from municipal Continuously flowing water is a habitat Other Nutritional or Physiological and industrial wastewater treatment feature associated with both of these Requirements facilities (for example, excessive species. Flowing water maintains the amounts of ammonia, chlorine, and Mussels, such as these two species, stream bottom habitats where these metals), thermal and flow modifications siphon water into their shells and across species are found, transports food items resulting from hydropower generation, four gills that are specialized for to the sedentary juvenile and adult life and random spills or unregulated respiration, food collection, and stages, removes wastes, and provides discharge events. These factors can be brooding larvae in females. Food items oxygen for respiration. A natural flow particularly harmful to mussels during include detritus (disintegrated organic regime that includes periodic flooding drought conditions because water flows debris), algae, diatoms, and bacteria and maintains connectivity and are depressed and pollutants are more (Strayer et al. 2004, pp. 430–431). interaction with the floodplain is concentrated. Encysted glochidia are nourished by critical for the exchange of nutrients, Both water quantity and quality their fish hosts and feed for a period of movement of and spawning activities where both species currently exist vary one week to several months. Nutrient for potential fish hosts, and widely according to season, uptake by glochidia is not well maintenance of flow refuges in riffle and precipitation events, and seasonal understood, but probably occurs run habitats. Further, riffle areas are human activities within the watershed. through the microvillae of the mantle, often defined by an abundance and Conditions across the mussels’ an umbilical cord-like structure that is diversity of organisms that likely have historical ranges vary even more due to used to extract nutrients as glochidia are dependent and competitive interactions watershed size, geology, geography, and attached to gill filiments of host fish. yet unknown, but that are important for differences in human population For the first several months, the gills of riffle-dwelling mussel species such as densities and land uses. In general, both juvenile mussels are rudimentary and the fluted kidneyshell and slabside of the species survive in areas where the generally incapable of filtering particles pearlymussel. magnitude, frequency, duration, and (Watters 2007, p. 56). To extract The ranges of standard physical and seasonality of water flow are adequate to bacteria, algae, and detritus from the chemical water quality parameters (such maintain stable habitats (for example, sediment, juvenile mussels partially as temperature, dissolved oxygen, pH, sufficient flow to remove fine particles employ pedal (foot) feeding and may and conductivity) that define suitable and sediments without causing filter interstitial (pore) water (Yeager et habitat conditions for the two species degradation), and where water quality is al. 1994, pp. 217–221). Adult mussels are poorly understood and have not adequate for year-round survival (for primarily filter feed from the ambient been fully investigated. However, as example, moderate to high levels of water column, but can also obtain their relatively sedentary , mussels dissolved oxygen, low to moderate food by deposit feeding, pulling in food must be able to tolerate the full range of input of nutrients, and relatively from the sediment and its interstitial such parameters that occur naturally unpolluted water and sediments). water and pedal feeding directly from within the streams where they persist, Therefore, based on the information the sediment (Yeager et al. 1994, pp. or they will either be biologically above, we identify adequate food items 217–221; Vaughn and Hakenkamp 2001, compromised such that feeding, for all life stages, sufficient water flow, pp. 1432–1438). Food availability and breeding, or sheltering activities are and adequate water quality to be PBFs quality for the fluted kidneyshell and affected or mortality occurs. for both of these species. slabside pearlymussel in their habitats Environmental contamination degrades are affected by habitat stability, water quality parameters to a level that Sites for Breeding, Reproduction, or floodplain connectivity, flow, and water negatively affects a mussel’s biological Rearing and sediment quality. Excessive functions and is a causal (contributing) Mussels require a host fish for sedimentation has been shown to impair factor in the decline of mussel transformation of larval mussels the filter feeding ability of mussels. populations. (glochidia) to juvenile mussels When in high silt environments, Most numeric standards for pollutants (Williams et al. 2008, p. 68). Thus, the mussels may keep their valves closed and water quality parameters (for presence of the appropriate host fishes more often, resulting in reduced feeding example, dissolved oxygen, pH, and to complete the reproductive life cycle activity (Ellis 1936, p. 30), and high heavy metals) that have been adopted by is essential to the conservation of these amounts of suspended sediments can the States under the Clean Water Act two mussels. The known host fishes of dilute their food source (Dennis 1984, p. (CWA; 33 U.S.C. 1251 et seq.) represent the fluted kidneyshell include: barcheek 212). Adequate food availability and levels that are essential to the darter (Etheostoma obeyense), fantail quality is essential for normal behavior, conservation of both mussels. The darter (E. flabellare), (E. growth, and viability during all life Service is currently in consultation with caeruleum), redline darter (E. stages of these two species. Excessive the Environmental Protection Agency rufilineatum), bluebreast darter (E. sedimentation often results in fine silt (EPA) to evaluate the protectiveness of camurum), dusky darter (Percina particles culminating within interstitial criteria approved in EPA’s water quality sciera), and banded sculpin (Cottus

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carolinae). The known host fishes of the Natural temperature regimes can be the essential life-history functions of the slabside pearlymussel include: popeye altered by impoundments, water species, we have determined that the shiner ( ariommus), rosyface releases from dams, industrial and PCEs for the fluted kidneyshell are: shiner (N. rubellus), saffron shiner (N. municipal effluents, and changes in (1) Riffle habitats within large, rubricroceus), silver shiner (N. riparian habitat. Critical thermal limits geomorphically stable stream channels photogenis), telescope shiner (N. for survival and normal functioning of (channels that maintain lateral telescopus), (N. many mussel species and host fish are dimensions, longitudinal profiles, and leuciodus), ( unknown. High temperatures can sinuosity patterns over time without an galactura), striped shiner (Luxilus reduce dissolved oxygen concentrations aggrading or degrading bed elevation). chrysocephalus), warpaint shiner (L. in the water, which slows growth, (2) Stable substrates of sand, gravel, coccogenis), (L. albeolus), reduces glycogen stores, impairs and cobble with low to moderate and eastern blacknose dace (Rhinichthys respiration, and may inhibit amounts of fine sediment and atratulus). There are likely other reproduction (Hart and Fuller 1974, pp. containing flow refugia with low shear suitable host fishes that have not yet 240–241). Low temperatures can stress. been studied or confirmed. significantly delay or prevent (3) A natural hydrologic flow regime Fluted kidneyshell and slabside metamorphosis (Watters and O’Dee (the magnitude, frequency, duration, pearlymussel juveniles require stable 1999, pp. 454–455). Water temperature and seasonality of discharge over time) habitats with adequate water quantity increases have been documented to necessary to maintain benthic habitats and quality as previously described for shorten the period of glochidial where the species are found, and growth and survival. Excessive encystment, increase oxygen connectivity of rivers with the sediments or dense growth of consumption, reduce the speed in floodplain, allowing the exchange of filamentous algae can expose juvenile which they orient themselves in the nutrients and sediment for habitat mussels to entrainment or predation and substrate, and slow burrowing and maintenance, food availability for all be detrimental to the survival of movement responses (Hart and Fuller life stages, and spawning habitat for juvenile mussels (Hartfield and 1974, pp. 240–241; Bartsch et al. 2000, native fishes. Hartfield 1996, pp. 372–374). p. 237; Watters et al. 2001, p. 546; (4) Water quality with low levels of Geomorphic instability can result in the Schwalb and Pusch 2007, pp. 264–265). pollutants and including a natural loss of interstitial habitats and juvenile Several studies have documented the temperature regime, pH (between 6.0 to mussels due to scouring or deposition influence of temperature on the timing 8.5), oxygen content (not less than 5.0 (Hartfield 1993, pp. 372–373). Water of aspects of mussel reproduction (e.g., milligrams per liter (mg/L)), hardness, quality, sediment quality, stable habitat, Gray et al. 2002, p. 156; Allen et al. and turbidity necessary for normal health of fish hosts, and diet (of all life 2007, p. 85; Steingraeber et al. 2007, pp. behavior, growth, and viability of all life stages) all influence survival of each life 303–309). Peak glochidial releases are stages. stage and subsequent reproduction and associated with water temperature (5) The presence of abundant fish thresholds that can be thermal recruitment (Cope et al. 2008, p. 452). hosts, which may include the barcheek minimums or maximums, depending on darter, fantail darter, rainbow darter, Floodplain connectivity is important the species (Watters and O’Dee 2000, p. redline darter, bluebreast darter, dusky to dissipate hydrolic energy during 136). Abnormal temperature changes darter and banded sculpin, necessary for periodic flooding. Also connection to may cause particular problems to recruitment of the fluted kidneyshell. the floodplain provides habitats during mussels whose reproductive cycles may Based on the above needs and our wet years for spawning and foraging be linked to fish reproductive cycles current knowledge of the life history, activities for fish hosts that require (e.g., Young and Williams 1984, entire). floodplain habitats for successful Therefore, based on the information biology, and ecology of the species and reproduction and recruitment to above, we identify presence of the habitat requirements for sustaining adulthood. Barko et al. (2006, pp. 252– appropriate fish hosts, water quality, the essential life-history functions of the 256) found that several fish host or sediment quality, stable habitat, food for species, we have determined that the potential host species (none of which is all life stages, periodic flooding of and PCEs for the slabside pearly mussel are: a documented host for the fluted connectivity to floodplain habitat, and a (1) Riffle habitats within large, kidneyshell or slabside pearlymussel) natural temperature regime to be PBFs geomorphically stable stream channels benefited from the ability to exploit for both of these species. (channels that maintain lateral floodplain habitat resources that were dimensions, longitudinal profiles, and not typically available for use during Primary Constituent Elements for the sinuosity patterns over time without an years of normal flows. Furthermore, Fluted Kidneyshell and Slabside aggrading or degrading bed elevation). Kwak (1988, pp. 243–247) and Slipke Pearlymussel (2) Stable substrates of sand, gravel, and Maceina (2005, p. 289) indicated Under the Act and its implementing and cobble with low to moderate that periodic inundation of floodplain regulations, we are required to identify amounts of fine sediment and habitats increased successful fish the PBFs essential to the conservation of containing flow refugia with low shear reproduction, which leads to increased these mussel species in areas occupied stress. availability of native host fishes for at the time of listing, focusing on the (3) A natural hydrologic flow regime mussel reproduction. However, Rypel et features’ primary constituent elements (magnitude, frequency, duration, and al. (2009, p. 502) indicated that mussels (PCEs). We consider PCEs to be the seasonality of discharge over time) tended to exhibit minimal growth specific elements of PBFs that provide necessary to maintain benthic habitats during high flow years. Therefore, for a species’ life-history processes and where the species is found, and optimal flooding of these habitats would are essential to the conservation of the connectivity of rivers with the not be too frequent and may need to species. floodplain, allowing the exchange of occur at similar frequencies to that of Based on the above needs and our nutrients and sediment for habitat the natural hydrologic regime of the current knowledge of the life history, maintenance, food availability for all rivers and creeks inhabited by the fluted biology, and ecology of the species and life stages, and spawning habitat for kidneyshell and slabside pearlymussel. the habitat requirements for sustaining native fishes.

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(4) Water quality with low levels of to habitat through flood scour or Field Management Plan, and Draft Non- pollutants and including a natural drought as exacerbated by climate Federal Oil and Gas Management Plan temperature regime, pH (between 6.0 to change, and nonindigenous species are (NPS 2005, entire; NPS 2006, pp. 1–12; 8.5), oxygen content (not less than 5.0 threats to remaining populations of the NPS 2011, entire). milligrams/liter), hardness, and fluted kidneyshell and slabside Eight of the 30 occupied critical turbidity necessary for normal behavior, pearlymussel. habitat units (Clinch and Duck Rivers) growth, and viability of all life stages. Of the 30 total occupied units, a have mixed ownership with private, (5) The presence of abundant fish portion of 6 units are located on the State park, and hosts, which may include the popeye Daniel Boone National Forest (DBNF), lands. These lands are operated under shiner, rosyface shiner, saffron shiner, 14 are almost entirely on private land, various plans that may or may not silver shiner, telescope shiner, 1 is located on the Big South Fork provide the special management or Tennessee shiner, whitetail shiner, National River and Recreational Area protection provided by a legally white shiner, and eastern blacknose (BSFNRRA), 1 is located on the operative plan or agreement for the dace, necessary for recruitment of the (CNF), and 8 conservation of these species. slabside pearlymussel. units have mixed ownership with Portions of four of the occupied private, State park, and national wildlife critical habitat units (Powell, Clinch, Special Management Considerations or refuge lands. Four of the occupied units Hiwassee, and Duck Rivers) have been Protection have been designated as mussel designated as mussel sanctuaries by When designating critical habitat, we sanctuaries by the TWRA. TWRA. The collection of mollusks and assess whether the specific areas within Portions of six critical habitat units on the degradation or destruction of aquatic the geographical area occupied by the DBNF land are being managed and habitats in these areas is prohibited at species at the time of listing contain protected under DBNF’s Land and all times. features which are essential to the Resource Management Plan (LRMP), Various activities in or adjacent to conservation of the species and that may and the Hiwassee River unit is protected each of the occupied critical habitat require special management under CNF’s LRMP (United States units described in this final rule may considerations or protection. The 30 Forest Service (USFS) 2004a, pp. 1–14; affect one or more of the PBFs. Some of occupied units we are designating as 2004b, entire). The LRMPs are these activities include, but are not critical habitat for the fluted kidneyshell implemented through a series of project- limited to, those discussed in the (17) and the slabside pearlymussel (13), level decisions based on appropriate Summary of Factors Affecting the 10 of which overlap but are counted as site-specific analysis and disclosure. Species in the final listing rule found separate critical habitat units for each The LRMPs do not contain a elsewhere in today’s Federal Register species, will require some level of commitment to select any specific (e.g., impoundments, gravel and coal management to address the current and project; rather, they set up a framework mining, water pollution, invasive future threats to the PBFs of the species. of desired future conditions with goals, species; see Factors A, D, and E). Other Habitat loss and degradation objectives, and standards to guide activities that may affect PBFs in the negatively impact the fluted kidneyshell project proposals. Projects are proposed final critical habitat units include those and slabside pearlymussel. Severe to solve resource management problems, listed in Available Conservation degradation from impoundments, gravel move the forest environment toward Measures (see final listing rule). Special and coal mining, oil and natural gas desired future conditions, and supply management considerations or development, sedimentation, chemical goods and services to the public (USFS protection will conserve the PBFs for contaminants, and stream channel 2004a, pp. 1–14). The LRMPs contain a these species. Management activities alterations threaten the stream habitat number of protective standards that in that could ameliorate threats on both and water quality on which these general are designed to avoid and Federal and non-Federal lands include, species depend. Contaminants minimize potential adverse effects to the but are not limited to: Use of best associated with coal mining (metals, fluted kidneyshell, slabside management practices (BMPs) designed other dissolved solids), municipal pearlymussel, and other federally listed to reduce sedimentation, erosion, and effluents (bacteria, nutrients, species; however, the DBNF and CNF stream bank alteration; moderation of pharmaceuticals), and agriculture will continue to conduct project-specific surface and ground water withdrawals (fertilizers, pesticides, herbicides, and section 7 consultations under the Act to maintain natural flow regimes; waste) cause degradation of when their activities may adversely increase of stormwater management and water quality and habitats through affect the fluted kidneyshell, slabside reduction of stormwater flows into the increased acidity and conductivity, pearlymussel, and other federally listed systems; preservation of headwater instream oxygen deficiencies, excess species or adversely modify their streams; regulation of off-road vehicle nutrification, and excessive algal designated critical habitats. use; and reduction of other watershed growths. The CWA has been insufficient Fourteen of the 30 occupied critical and floodplain disturbances that release to significantly reduce or remove these habitat units are located almost entirely sediments, pollutants, or nutrients into threats to the fluted kidneyshell and on private property and are not the water. slabside pearlymussel. presently under the special management In summary, we find that the areas we Other natural and manmade factors, or protection provided by a legally are designating as occupied critical such as alteration of natural temperature operative plan or agreement for the habitat for the fluted kidneyshell and regimes below dams; chemical conservation of the species. slabside pearlymussel contain the PBFs contaminants; sedimentation; small, One of the 30 occupied critical habitat necessary for the species, and that these isolated populations; and low genetic units (Big South Fork Cumberland features may require special diversity, combined with localized River) is located almost entirely on management considerations or from point source pollution Federal lands within the BSFNRRA. protection. Special management or accidental toxic chemical spills, Land and resource management consideration or protection may be habitat modification and progressive decisions and activities within the required to eliminate, or to reduce to degradation by nonpoint source BSFNRRA are guided by the National negligible levels, the threats affecting pollutants, natural catastrophic changes Park Service General Management Plan, the PBFs of each unit. Additional

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discussion of threats facing individual channel habitat conditions for their fish hosts necessary for the fluted units is provided in the individual unit maintenance. Therefore, where more kidneyshell. The stream reaches also descriptions below. than one occurrence record of a lack major anthropogenic disturbances particular species was found within a and have potential for reoccupation by Criteria Used To Identify Critical stream reach, we considered the entire the species through future Habitat reach between the uppermost and reintroduction efforts. Based on the As required by section 4(b) of the Act, lowermost locations as occupied above factors, all unoccupied stream we used the best scientific and habitat. reaches included in the designation for commercial data available to designate We then considered whether this the fluted kidneyshell are essential for critical habitat for both the fluted essential area was adequate for the its conservation. kidneyshell and slabside pearlymussel. conservation of both species. Small, In our analysis (see above paragraph), In accordance with the Act and its isolated, aquatic populations are subject we did not find suitable habitat, water implementing regulations at 50 CFR to chance catastrophic events and to quality, or fish hosts present in areas 424.12(e), we also consider whether changes in human activities and land historically inhabited by but presently designating additional areas outside use practices that may result in their unoccupied by the slabside those currently occupied as well as elimination. Larger, more contiguous pearlymussel. Therefore, we did not those occupied at the time of listing is populations can reduce the threat of find any unoccupied stream reaches to necessary to ensure the conservation of extinction due to habitat fragmentation be essential to the conservation of the these species. We are designating and isolation. For these reasons, slabside pearlymussel. critical habitat in areas within the conservation of the fluted kidneyshell, Following the identification of geographic area currently occupied by but not the slabside pearlymussel, occupied and unoccupied stream the species. We also are designating requires expanding its range into reaches, the next step was to delineate specific areas outside the geographic currently unoccupied portions of its the probable upstream and downstream area currently occupied by the species, historical habitat. Given that threats to extent of each species’ distribution. We which were historically occupied but the fluted kidneyshell are compounded used USGS 1:100,000 digital stream are presently unoccupied, because such by its limited distribution and isolation, maps to delineate these boundaries of areas are essential for the conservation it is unlikely that currently occupied designated critical habitat units of the species. habitat is adequate for its conservation. according to the criteria explained We began our analysis by considering The range of the fluted kidneyshell has below. The upstream boundary of a unit historical and current ranges of both been severely curtailed, occupied in a stream is the first perennial, named species. We used various sources habitats are limited and isolated, and tributary confluence, a road-crossing including published literature and population sizes are generally small (see bridge, or a permanent barrier to fish museum collection databases, as well as Summary of Factors Affecting the passage (such as a dam) above the surveys, reports, and field notes Species, which can be found in the final upstream-most current occurrence prepared by biologists. We then listing rule published elsewhere in record. The confluence of a tributary identified the specific areas that are today’s Federal Register). For example, typically marks a significant change in occupied by both mussels and that the fluted kidneyshell is no longer the size of the stream and is a logical contain one or more of the PBFs. We believed to occur in the Rockcastle, and recognizable upstream terminus. defined occupied habitat as those Hiwassee, Elk, Holston, French Broad, When a named tributary was not stream reaches known to be currently or Buffalo Rivers. The inclusion of available, a road-crossing bridge was occupied by either of the two species. essential unoccupied areas will provide used to mark the boundary. Likewise, a To identify the currently occupied habitat for population reintroduction dam or other barrier to fish passage stream reaches, we used post-1980 and will decrease the risk of extinction. marks the upstream extent to which survey data. To identify the unoccupied Based on the best scientific data mussels may disperse via their fish stream reaches, we used survey data available, these areas not currently hosts. The downstream boundary of a between the late 1800s and 1979. occupied by the fluted kidneyshell are unit in a stream is the confluence of a Therefore, if a species was known to essential for their conservation. named tributary, or the upstream extent occur in an area prior to 1980, but was We eliminated from consideration as of an impoundment, below the not collected since then, the stream unoccupied critical habitat the Red and downstream-most occurrence record. In reach is considered unoccupied. This Harpeth River drainages; the Caney the unit descriptions, distances between criterion was chosen because a large Fork, mainstem Cumberland, mainstem landmarks marking the upstream or number of collections were conducted Tennessee, Tellico, Obey, South Fork downstream extent of a stream segment in the 1980s in the Cumberland and Powell, South Fork Holston, West Prong are given in river kilometers and Tennessee River systems. Some of the Little Pigeon, Little Tennessee Rivers; equivalent miles, as measured tracing historical occurrences have not been and Kennedy, Pittman, Otter, Flint, the course of the stream, not straight- surveyed since the 1980s. However, Sugar, Limestone, Shoal, Puckell, North line distance. because of the longevity of these species Fork, and Big Rock Creeks for both of Because mussels are naturally (26–55 years) and the presence of fish these mussels. These areas are not restricted by certain physical conditions hosts, they are still thought to occur in essential for the conservation of the within a stream reach (i.e., flow, these areas. mussels because of stream channel substrate), they may be unevenly We then evaluated occupied stream alterations, a limited amount of distributed within these habitat units. reaches to delineate the probable available habitat coupled with isolation Uncertainty on upstream and upstream and downstream extent of from other populations, a lack of a downstream distributional limits of each species’ distribution. Known native mussel fauna, poor habitat or some populations may have resulted in occurrences for some mussel species are water quality, or a lack of available fish small areas of occupied habitat extremely localized, and rare mussels hosts. excluded from, or areas of unoccupied can be difficult to locate. In addition, All of the stream habitat areas habitat included in, the designation. We stream habitats are highly dependent designated as unoccupied critical recognize that both historical and recent upon upstream and downstream habitat have sufficient water quality and collection records upon which we relied

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are incomplete, and that there may be Internet site at http://www.fws.gov/ counted twice, once for each species): river segments or small tributaries not cookeville, and at the Fish and Wildlife Unit FK12 and SP1 (North Fork Holston included in this designation that harbor office responsible for the designation River, Virginia), Unit FK13 and SP2 small, limited populations of one or (see FOR FURTHER INFORMATION CONTACT (Middle Fork Holston River, Virginia), both species considered in this above). Unit FK14 and SP3 (Big Moccasin designation, or that others may become Final Critical Habitat Designation Creek, Virginia), Unit FK16 and SP4 suitable in the future. The exclusion of (Clinch River, Tennessee and Virginia), such areas does not diminish their We are designating approximately Unit FK17 and SP5 (Powell River, potential individual or cumulative 2,218 rkm (1,380 rmi) in Alabama, Tennessee and Virginia), Unit FK18 and importance to the conservation of these Kentucky, Mississippi, Tennessee, and SP6 (Nolichucky River, Tennessee), species. However, with proper Virginia as critical habitat. For the Unit FK21 and SP7 (Hiwassee River, management, each of the critical habitat fluted kidneyshell, we are designating Tennessee), Unit FK22 and SP10 (Elk units (24 fluted kidneyshell units, and 24 critical habitat units encompassing River, Alabama and Tennessee), Unit 13 slabside pearlymussel units; 10 approximately 1,899 rkm (1,181 rmi) of FK23 and SP12 (Duck River, overlap between the two species) are stream channel in Alabama, Kentucky, Tennessee), and Unit FK24 and SP13 Tennessee, and Virginia. The critical capable of supporting one or both of (Buffalo River, Tennessee). these mussel species, and that habitat areas we describe below Unit name, location, and the populations within occupied units will constitute our current best assessment of approximate stream length of each serve as source populations for artificial areas that meet the definition of critical designated critical habitat unit are reintroduction into unoccupied units, as habitat for the fluted kidneyshell. The shown in Table 1 for the fluted well as assisted or natural migration 24 areas we designate as critical habitat kidneyshell and Table 2 for the slabside into adjacent undesignated or are as follows: (1) Horse Lick Creek, KY; pearlymussel. The designated critical designated streams within each river (2) Middle Fork Rockcastle River, KY; habitat units include the stream drainage. The habitat areas contained (3) Rockcastle River, KY; (4) Buck Creek, channels within the ordinary high-water within the units described below KY; (5) Rock Creek, KY; (6) Little South line only. For this purpose, we have constitute our best evaluation of areas Fork , KY; (7) Big needed for the conservation of these South Fork Cumberland River, KY, TN; applied the definition found at 33 CFR species at this time. Critical habitat may (8) Wolf River and Town Branch, TN; 329.11, and consider the ordinary high- be revised for any or all of these species (9) West Fork Obey River, TN; (10) water mark on nontidal rivers to be the Indian Creek, VA; (11) Little River should new information become line on the shore established by the [tributary to the Clinch River], VA; (12) available. fluctuations of water and indicated by North Fork Holston River, VA; (13) The areas designated as critical physical characteristics, such as a clear, Middle Fork Holston River, VA; (14) Big habitat below include only stream natural line impressed on the bank; Moccasin Creek, VA; (15) Copper Creek, channels within the ordinary high-water shelving; changes in the character of VA; (16) Clinch River, TN, VA; (17) soil; destruction of terrestrial vegetation; line and do not contain developed areas Powell River, TN, VA; (18) Nolichucky or structures. The scale of the maps we the presence of litter and debris; or River, TN; (19) Holston River, TN; (20) other appropriate means that consider prepared under the parameters for French Broad River, TN; (21) Hiwassee publication within the Code of Federal the characteristics of the surrounding River, TN; (22) Elk River, AL, TN; (23) areas. Regulations may not reflect the Duck River, TN; and (24) Buffalo River, exclusion of such developed lands. Any TN. States were granted ownership of such lands inadvertently left inside We are designating 13 critical habitat lands beneath navigable waters up to critical habitat boundaries shown on the units encompassing approximately the ordinary high-water line upon maps of this final rule have been 1,562 rkm (970 rmi) of stream channel achieving Statehood (Pollard v. Hagan, excluded by text in the rule and are not in Alabama, Mississippi, Tennessee, 44 U.S. (3 How.) 212 (1845)). Prior designated as critical habitat. Therefore, and Virginia for the slabside sovereigns or the States may have made a Federal action involving these lands pearlymussel. The critical habitat areas grants to private parties that included would not trigger section 7 consultation we describe below constitute our lands below the ordinary high-water with respect to critical habitat and the current best assessment of areas that mark of some navigable waters that are requirement of no adverse modification meet the definition of critical habitat for included in this final rule. Most, if not unless the specific action would affect the slabside pearlymussel. The 13 areas all, lands beneath the navigable waters the PBFs in the adjacent critical habitat. we designate as critical habitat are as included in this rule are owned by the The critical habitat designation is follows: (1) North Fork Holston River, States. The lands beneath most defined by the map or maps, as VA; (2) Middle Fork Holston River, VA; nonnavigable waters included in this modified by any accompanying (3) Big Moccasin Creek, VA; (4) Clinch rule are in private ownership. In regulatory text, presented at the end of River, TN, VA; (5) Powell River, TN, Alabama, the riparian landowner owns this document. We include more VA; (6) Nolichucky River, TN; (7) the stream to the middle of the channel detailed information on the boundaries Hiwassee River, TN; (8) Sequatchie for non-navigable streams. Riparian of the critical habitat designation in the River, TN; (9) Paint Rock River, AL; (10) lands along the waters are either in preamble of this document. We will Elk River, AL, TN; (11) Bear Creek, AL, private ownership, or are owned by make the coordinates or plot points or MS; (12) Duck River, TN; and (13) county, State, or Federal entities. Lands both on which each map is based Buffalo River, TN. under county, State, and Federal available to the public on http:// Note that 10 of the units overlap and ownership consist of managed www.regulations.gov at Docket No. are designated as critical habitat for both conservation areas and are considered to FWS–R4–ES–2013–0026, on our species (each overlapping unit is have some level of protection.

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TABLE 1—OCCUPANCY AND OWNERSHIP OF RIPARIAN LANDS ADJACENT TO THE DESIGNATED CRITICAL HABITAT UNITS FOR THE FLUTED KIDNEYSHELL

Federal, State, Occupied Private ownership rkm County, City Total length rkm Unit Location by (rmi) ownership rkm (rmi) species (rmi)

FK1 Horse Lick Creek, KY ...... Yes ...... 3.6 (2.3) 15.8 (10.1) 19.4 (12.4) FK2 Middle Fork Rockcastle River, KY ...... Yes ...... 6.0 (3.7) 6.5 (4.0) 12.5 (7.7) FK3 Rockcastle River, KY ...... No ...... 11.7 (7.3) 58.2 (36.2) 69.9 (43.5) FK4 Buck Creek, KY ...... Yes ...... 59.7 (37.1) 1.3 (0.8) 61.0 (37.9) FK5 Rock Creek, KY ...... Yes ...... 1.5 (0.9) 17.7 (11.0) 19.2 (11.9) FK6 Little South Fork Cumberland River, KY ...... Yes ...... 61.1 (38.0) 4.4 (2.7) 65.5 (40.7) FK7 Big South Fork Cumberland River, KY, TN ...... Yes ...... 1.5 (1.0) 90.0 (55.9) 91.5 (56.9) FK8 Wolf River and Town Branch, TN ...... Yes ...... 38.7 (24.0) 5.7 (3.5) 44.4 (27.5) FK9 West Fork Obey River, TN ...... Yes ...... 19.3 (12.0) 0 19.3 (12.0) FK10 Indian Creek, VA ...... Yes ...... 6.7 (4.2) 0 6.7 (4.2) FK11 Little River, VA ...... Yes ...... 50.4 (31.3) 0 50.4 (31.3) FK12 North Fork Holston River, VA ...... Yes ...... 66.4 (41.3) 0.9 (0.5) 67.3 (41.8) FK13 Middle Fork Holston River, VA ...... Yes ...... 89.0 (55.3) 0 89.0 (55.3) FK14 Big Moccasin Creek, VA ...... No ...... 33.1 (20.6) 0 33.1 (20.6) FK15 Copper Creek, VA ...... Yes ...... 55.5 (34.5) 0 55.5 (34.5) FK16 Clinch River, TN, VA ...... Yes ...... 256.3 (159.2) 6.4 (4.0) 262.7 (163.2) FK17 Powell River, TN, VA ...... Yes ...... 152.4 (94.7) 0.3 (0.2) 152.7 (94.9) FK18 Nolichucky River, TN ...... Yes ...... 50.9 (31.6) 0.9 (0.6) 51.9 (32.2) FK19 Holston River, TN ...... No ...... 85.1 (52.9) 0 85.1 (52.9) FK20 French Broad River, TN ...... No ...... 54.4 (33.8) 1.7 (1.1) 56.1 (34.9) FK21 Hiwassee River, TN ...... No ...... 0 24.4 (15.2) 24.4 (15.2) FK22 Elk River, AL, TN ...... No ...... 162.8 (101.2) 1.5 (0.9) 164.3 (102.1) FK23 Duck River, TN ...... Yes ...... 284.0 (176.5) 63.5 (39.4) 347.5 (215.9) FK24 Buffalo River, TN ...... No ...... 50.0 (31.0) 0 50.0 (31.0)

Total ...... 1,899.4 (1,180.5)

TABLE 2—OCCUPANCY AND OWNERSHIP OF RIPARIAN LANDS ADJACENT TO THE DESIGNATED CRITICAL HABITAT UNITS FOR THE SLABSIDE PEARLYMUSSEL

Federal, State, Private ownership rkm County, City Total length rkm Unit Location Occupied (rmi) ownership rkm (rmi) (rmi)

SP1 North Fork Holston River, VA ...... Yes ...... 66.4 (41.3) 0.9 (0.5) 67.3 (41.8) SP2 Middle Fork Holston River, VA ...... Yes ...... 89.0 (55.3) 0 89.0 (55.3) SP3 Big Moccasin Creek, VA ...... Yes ...... 33.1 (20.6) 0 33.1 (20.6) SP4 Clinch River, TN, VA ...... Yes ...... 256.3 (159.2) 6.4 (4.0) 262.7 (163.2) SP5 Powell River, TN, VA ...... Yes ...... 152.4 (94.7) 0.3 (0.2) 152.7 (94.9) SP6 Nolichucky River, TN ...... Yes ...... 50.9 (31.6) 0.9 (0.6) 51.9 (32.2) SP7 Hiwassee River, TN ...... Yes ...... 0 24.4 (15.2) 24.4 (15.2) SP8 Sequatchie River, TN ...... Yes ...... 151.5 (94.1) 0 151.5 (94.1) SP9 Paint Rock River, AL ...... Yes ...... 119.2 (74.1) 5.8 (3.6) 125.0 (77.7) SP10 Elk River, AL, TN ...... Yes ...... 162.8 (101.2) 1.5 (0.9) 164.3 (102.1) SP11 Bear Creek, AL, MS ...... Yes ...... 36.3 (22.5) 6.1 (3.8) 42.4 (26.3) SP12 Duck River, TN ...... Yes ...... 284.0 (176.5) 63.5 (39.4) 347.5 (215.9) SP13 Buffalo River, TN ...... Yes ...... 50.0 (31.0) 0 50.0 (31.0)

Total ...... 1,561.8 (970.3)

Eleven critical habitat units units for the fluted kidneyshell and for other species, including the designated for the fluted kidneyshell, slabside pearlymussel completely or yellowfin madtom in the North Fork slabside pearlymussel, or both species partially overlap existing units in the Holston River, VA; and 15 mussels, 1 are currently designated as critical Powell, Clinch, Nolichucky, Big South snail, and 5 fishes in the lower Holston habitat under the Act for other species, Fork Cumberland, Duck, and Paint Rock and French Broad Rivers, TN (53 FR including the purple bean ( Rivers and in the Buck, Rock, Indian, 29335, 72 FR 52434, see Table 3). perpurpurea), oyster mussel, Copper, and Bear Creeks; however, the All of the critical habitat units Cumberlandian combshell, Cumberland exact unit descriptions (lengths) differ designated for the fluted kidneyshell ( atropurpurea), due to mapping refinement since the and slabside pearlymussel contain rough rabbitsfoot, rabbitsfoot, slender earlier designations. chub (Erimystax cahni), and yellowfin Three critical habitat units designated historical or extant records of federally madtom (Noturus flavipinnis) (42 FR for the fluted kidneyshell and slabside listed or proposed species, except for 45526, 78 FR 57076, 42 FR 47840, 69 FR pearlymussel are currently designated the Wolf River and Town Branch and 53136) (see Table 3). The designated under section 10(j) of the Act as NEPs West Fork Obey River, TN (see Table 4).

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TABLE 3—CRITICAL HABITAT UNITS DESIGNATED FOR THE FLUTED KIDNEYSHELL AND SLABSIDE PEARLYMUSSEL THAT ARE CURRENTLY DESIGNATED OR PROPOSED AS CRITICAL HABITAT OR NONESSENTIAL EXPERIMENTAL POPULATIONS (NEPS) FOR OTHER FEDERALLY LISTED SPECIES

Nonessential Length of Unit (Unit No.) Species Critical habitat experimental overlap population rkm (rmi)

Buck Creek (FK4) ...... Oyster mussel, Cumberlandian 69 FR 53136 ...... 61 (38) Rock Creek (FK5) ...... Cumberland elktoe ...... 69 FR 53136 ...... 19 (12) Big South Fork Cumberland Oyster mussel, Cumberlandian 69 FR 53136 ...... 92 (57) River (FK7). combshell, Cumberland elktoe. Indian Creek (FK10)...... Purple bean, Oyster mussel, 69 FR 53136 ...... 7 (4) Cumberlandian combshell, Rough rabbitsfoot. North Fork Holston River (FK12, Yellowfin madtom ...... 53 FR 29335 .... 58 (36) SP1). Copper Creek (FK15)...... Purple bean, Oyster mussel, 69 FR 53136, 42 FR 45526, 42 ...... 21 (13), 56 (35), 56 Cumberlandian combshell, FR 47840. (35) Rough rabbitsfoot, Yellowfin madtom. Clinch River (FK16, SP4) ...... Purple bean, Oyster mussel, 69 FR 53136, 42 FR 45526, 42 ...... 263 (163), 263 (163), Cumberlandian combshell, FR 47840. 263 (163) Rough rabbitsfoot, Slender chub, Yellowfin madtom. Powell River (FK17, SP5) ...... Purple bean, Cumberlandian 69 FR 53136, 42 FR 45526, 42 ...... 153 (95), 153 (95), combshell, Oyster mussel, FR 47840. 153 (95) Rough rabbitsfoot, Slender chub, Yellowfin madtom. Nolichucky River (FK18, SP6) ... Oyster mussel, Cumberlandian 69 FR 53136 ...... 8 (5) combshell. Holston River (FK19)...... 15 Mussels, 1 Snail, and 5 ...... 72 FR 52434 .... 85 (53) Fishes. French Broad River (FK20)...... 15 Mussels, 1 Snail, and 5 ...... 72 FR 52434 .... 56 (35) Fishes. Paint Rock River (SP9) ...... Rabbitsfoot ...... 78 FR 57076 ...... 81 (50) Bear Creek, (SP11) ...... Oyster mussel, Cumberlandian 69 FR 53136, 78 FR 57076 ...... 42 (26), 42 (26) combshell, Rabbitsfoot. Duck River (FK23, SP12) ...... Oyster mussel, Cumberlandian 69 FR 53136, 78 FR 57076 ...... 74 (46), 235 (146) combshell, Rabbitsfoot. Critical Habitat Overlap ...... 1,017 (631) NEP Overlap ...... 199 (124)

Total Overlap ...... 1,216 (755) Note: For those units with critical habitat designations for more than one species, the critical habitat unit with the longest length of overlap was used to calculate the total overlap (e.g., Duck River is critical habitat for the oyster mussel (74 rkm) and rabbitsfoot (235 rkm). The designated units for the fluted kidneyshell and slabside pearlymussel completely or partially overlap existing units in the Powell, Clinch, Nolichucky, Big South Fork Cumberland, Duck, and Paint Rock Rivers and in the Buck, Rock, Indian, Copper, and Bear Creeks; however, the exact unit descrip- tions (lengths) differ due to mapping refinement since the earlier designations.

TABLE 4—OTHER FEDERALLY LISTED OR PROPOSED SPECIES WITH HISTORICAL OR EXTANT RECORDS FROM THE DESIGNATED CRITICAL HABITAT UNIT STREAMS FOR THE FLUTED KIDNEYSHELL AND SLABSIDE PEARLYMUSSEL

Unit Location Federally Listed or Proposed Species Present

FK1 ...... Horse Lick Creek, KY ...... Cumberland bean ...... Villosa trabalis. littlewing pearlymussel ...... Pegias fabula. FK2 ...... Middle Fork Rockcastle River, KY ...... Cumberland bean ...... Villosa trabalis. FK3 ...... Rockcastle River, KY ...... Cumberland bean ...... Villosa trabalis. Cumberlandian combshell ...... Epioblasma brevidens. littlewing pearlymussel ...... Pegias fabula. oyster mussel ...... Epioblasma capsaeformis. FK4 ...... Buck Creek, KY ...... Cumberland bean ...... Villosa trabalis. Cumberlandian combshell ...... Epioblasma brevidens. littlewing pearlymussel ...... Pegias fabula. oyster mussel ...... Epioblasma capsaeformis. snuffbox ...... Epioblasma triquetra. yellow blossom ...... Epioblasma florentina florentina. FK5 ...... Rock Creek, KY ...... Cumberland elktoe ...... . FK6 ...... Little South Fork Cumberland River, KY Cumberland bean ...... Villosa trabalis. littlewing pearlymussel ...... Pegias fabula. oyster mussel ...... Epioblasma capsaeformis. snuffbox ...... Epioblasma triquetra. palezone shiner ...... Notropis albizonatus.

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TABLE 4—OTHER FEDERALLY LISTED OR PROPOSED SPECIES WITH HISTORICAL OR EXTANT RECORDS FROM THE DES- IGNATED CRITICAL HABITAT UNIT STREAMS FOR THE FLUTED KIDNEYSHELL AND SLABSIDE PEARLYMUSSEL—Contin- ued FK7 ...... Big South Fork Cumberland River, KY ... Cumberland bean ...... Villosa trabalis. Cumberlandian combshell ...... Epioblasma brevidens. Cumberland elktoe ...... Alasmidonta atropurpurea. dromedary pearlymussel ...... Dromus dromas. littlewing pearlymussel ...... Pegias fabula. oyster mussel ...... Epioblasma capsaeformis. spectaclecase ...... Cumberlandia monodonta. tan riffleshell ...... Epioblasma florentina walkeri (=E. walkeri). duskytail darter ...... Etheostoma percnurum. FK8 ...... Wolf River and Town Branch, TN ...... None ...... FK9 ...... West Fork Obey River, TN ...... None ...... FK10 ...... Indian Creek, VA ...... purple bean ...... Villosa perpurpurea. tan riffleshell ...... Epioblasma florentina walkeri (=E. walkeri). rough rabbitsfoot ...... Quadrula cylindrica strigillata. FK11 ...... Little River, VA ...... finerayed pigtoe ...... . littlewing pearlymussel ...... Pegias fabula. oyster mussel ...... Epioblasma capsaeformis. FK12, SP1 .... North Fork Holston River, VA ...... littlewing pearlymussel ...... Pegias fabula. purple bean ...... Villosa perpurpurea. rough rabbitsfoot ...... Quadrula cylindrica strigillata. ...... Fusconaia cor. snuffbox ...... Epioblasma triquetra. ...... Erimonax monachus. FK13, SP2 .... Middle Fork Holston River, VA ...... littlewing pearlymussel ...... Pegias fabula. shiny pigtoe ...... Fusconaia cor. tan riffleshell ...... Epioblasma florentina walkeri (=E. walkeri). yellow blossom ...... Epioblasma florentina florentina. spotfin chub ...... Erimonax monachus. FK14, SP3 .... Big Moccasin Creek, VA ...... finerayed pigtoe ...... Fusconaia cuneolus. littlewing pearlymussel ...... Pegias fabula. oyster mussel ...... Epioblasma capsaeformis. rough rabbitsfoot ...... Quadrula cylindrica strigillata. FK15 ...... Copper Creek, VA ...... finerayed pigtoe ...... Fusconaia cuneolus. littlewing pearlymussel ...... Pegias fabula. oyster mussel ...... Epioblasma capsaeformis. purple bean ...... Villosa perpurpurea. rough rabbitsfoot ...... Quadrula cylindrica strigillata. shiny pigtoe ...... Fusconaia cor. duskytail darter ...... Etheostoma percnurum. yellowfin madtom ...... Noturus flavipinnis. FK16, SP4 .... Clinch River, TN, VA ...... Appalachian monkeyface ...... Quadrula sparsa. birdwing pearlymussel ...... Lemiox rimosus. cracking pearlymussel ...... Hemistena lata. Cumberland bean ...... Villosa trabalis. Cumberlandian combshell ...... Epioblasma brevidens. Cumberland monkeyface ...... Quadrula intermedia. dromedary pearlymussel ...... Dromus dromas. fanshell ...... Cyprogenia stegaria. finerayed pigtoe ...... Fusconaia cuneolus. green blossom pearlymussel ...... Epioblasma torulosa gubernaculum. littlewing pearlymussel ...... Pegias fabula. oyster mussel ...... Epioblasma capsaeformis. pink mucket ...... Lampsilis abrupta. purple bean ...... Villosa perpurpurea. rayed bean ...... Villosa fabalis. rough pigtoe ...... Pleurobema plenum. rough rabbitsfoot ...... Quadrula cylindrica strigillata. sheepnose ...... Plethobasus cyphyus. shiny pigtoe ...... Fusconaia cor. snuffbox ...... Epioblasma triquetra. spectaclecase ...... Cumberlandia monodonta. tan riffleshell ...... Epioblasma florentina walkeri (=E. walkeri). yellow blossom ...... Epioblasma florentina florentina. pygmy madtom ...... Noturus stanauli. slender chub ...... Erimystax cahni. FK17, SP5 .... Powell River, TN, VA ...... Appalachian monkeyface ...... Quadrula sparsa. birdwing pearlymussel ...... Lemiox rimosus. cracking pearlymussel ...... Hemistena lata.

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TABLE 4—OTHER FEDERALLY LISTED OR PROPOSED SPECIES WITH HISTORICAL OR EXTANT RECORDS FROM THE DES- IGNATED CRITICAL HABITAT UNIT STREAMS FOR THE FLUTED KIDNEYSHELL AND SLABSIDE PEARLYMUSSEL—Contin- ued Cumberlandian combshell ...... Epioblasma brevidens. Cumberland monkeyface ...... Quadrula intermedia. dromedary pearlymussel ...... Dromus dromas. finerayed pigtoe ...... Fusconaia cuneolus. green blossom pearlymussel ...... Epioblasma torulosa gubernaculum. oyster mussel ...... Epioblasma capsaeformis. purple bean ...... Villosa perpurpurea. rayed bean ...... Villosa fabalis. rough rabbitsfoot ...... Quadrula cylindrica strigillata. sheepnose ...... Plethobasus cyphyus. shiny pigtoe ...... Fusconaia cor. snuffbox ...... Epioblasma triquetra. spectaclecase ...... Cumberlandia monodonta. yellow blossom ...... Epioblasma florentina florentina. slender chub ...... Erimystax cahni. yellowfin madtom ...... Noturus flavipinnis. FK18, SP6 .... Nolichucky River, TN ...... Cumberlandian combshell ...... Epioblasma brevidens. green blossom pearlymussel ...... Epioblasma torulosa gubernaculum. oyster mussel ...... Epioblasma capsaeformis. rayed bean ...... Villosa fabalis. spectaclecase ...... Cumberlandia monodonta. snail darter ...... Percina tanasi. FK19 ...... Holston River, TN ...... Appalachian Monkeyface ...... Quadrula sparsa. birdwing pearlymussel ...... Lemiox rimosus. cracking pearlymussel ...... Hemistena lata. Cumberlandian combshell ...... Epioblasma brevidens. Cumberland monkeyface ...... Quadrula intermedia. dromedary pearlymussel ...... Dromus dromas. green blossom pearlymussel ...... Epioblasma torulosa gubernaculum. oyster mussel ...... Epioblasma capsaeformis. pink mucket ...... Lampsilis abrupta. ring pink ...... Obovaria retusa. sheepnose ...... Plethobasus cyphyus. snuffbox ...... Epioblasma triquetra. spectaclecase ...... Cumberlandia monodonta. tan riffleshell ...... Epioblasma florentina walkeri (=E. walkeri). turgid blossom pearlymussel ...... Epioblasma turgidula. white wartyback ...... Plethobasus cicatricosus. yellow blossom ...... Epioblasma florentina florentina. slender chub ...... Erimystax cahni. snail darter ...... Percina tanasi. FK20 ...... French Broad River, TN ...... birdwing pearlymussel ...... Lemiox rimosus. cracking pearlymussel ...... Hemistena lata. dromedary pearlymussel ...... Dromus dromas. fanshell ...... Cyprogenia stegaria. orangefoot pimpleback ...... Plethobasus cooperianus. oyster mussel ...... Epioblasma capsaeformis. pink mucket ...... Lampsilis abrupta. ring pink ...... Obovaria retusa. rough pigtoe ...... Pleurobema plenum. sheepnose ...... Plethobasus cyphyus. shiny pigtoe ...... Fusconaia cor. tubercled blossom pearlymussel ...... Epioblasma torulosa torulosa. yellow blossom ...... Epioblasma florentina florentina. snail darter ...... Percina tanasi. FK21, SP7 .... Hiwassee River, TN ...... Appalachian monkeyface ...... Quadrula sparsa. Cumberland bean ...... Villosa trabalis. dromedary pearlymussel ...... Dromus dromas. orangefoot pimpleback ...... Plethobasus cooperianus. oyster mussel ...... Epioblasma capsaeformis. rough pigtoe ...... Pleurobema plenum. sheepnose ...... Plethobasus cyphyus. tan riffleshell ...... Epioblasma florentina walkeri (=E. walkeri). tubercled blossom pearlymussel ...... Epioblasma torulosa torulosa. yellow blossom ...... Epioblasma florentina florentina. SP8 ...... Sequatchie River, TN ...... Anthony’s riversnail ...... Athearnia anthonyi. snuffbox ...... Epioblasma triquetra. spectaclecase ...... Cumberlandia monodonta. snail darter ...... Percina tanasi. SP9 ...... Paint Rock River, AL ...... Alabama lampmussel ...... Lampsilis virescens.

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TABLE 4—OTHER FEDERALLY LISTED OR PROPOSED SPECIES WITH HISTORICAL OR EXTANT RECORDS FROM THE DES- IGNATED CRITICAL HABITAT UNIT STREAMS FOR THE FLUTED KIDNEYSHELL AND SLABSIDE PEARLYMUSSEL—Contin- ued Cumberland bean ...... Villosa trabalis. Cumberlandian combshell ...... Epioblasma brevidens. finerayed pigtoe ...... Fusconaia cuneolus. oyster mussel ...... Epioblasma capsaeformis. pale lilliput ...... Toxolasma cylindrellus. pink mucket ...... Lampsilis abrupta. shiny pigtoe ...... Fusconaia cor. snuffbox ...... Epioblasma triquetra. yellow blossom ...... Epioblasma florentina florentina. palezone shiner ...... Notropis albizonatus. snail darter ...... Percina tanasi. rabbitsfoot ...... Quadrula cylindrica cylindrica. FK22, SP10 .. Elk River, AL, TN ...... Alabama lampmussel ...... Lampsilis virescens. birdwing pearlymussel ...... Lemiox rimosus. cracking pearlymussel ...... Hemistena lata. Cumberlandian combshell ...... Epioblasma brevidens. Cumberland monkeyface ...... Quadrula intermedia. dromedary pearlymussel ...... Dromus dromas. fanshell ...... Cyprogenia stegaria. finerayed pigtoe ...... Fusconaia cuneolus. littlewing pearlymussel ...... Pegias fabula. pale lilliput ...... Toxolasma cylindrellus. rabbitsfoot ...... Quadrula cylindrica cylindrica. rayed bean ...... Villosa fabalis. shiny pigtoe ...... Fusconaia cor. snuffbox ...... Epioblasma triquetra. spectaclecase ...... Cumberlandia monodonta. tan riffleshell ...... Epioblasma florentina walkeri (=E. walkeri). tubercled blossom pearlymussel ...... Epioblasma torulosa torulosa. turgid blossom pearlymussel ...... Epioblasma turgidula. yellow blossom ...... Epioblasma florentina florentina. boulder darter ...... Etheostoma wapiti. snail darter ...... Percina tanasi. SP11 ...... Bear Creek, AL, MS ...... Alabama lampmussel ...... Lampsilis virescens. Cumberlandian combshell ...... Epioblasma brevidens. oyster mussel ...... Epioblasma capsaeformis. pink mucket ...... Lampsilis abrupta. snuffbox ...... Epioblasma triquetra. turgid blossom pearlymussel ...... Epioblasma turgidula. yellow blossom ...... Epioblasma florentina florentina. rabbitsfoot ...... Quadrula cylindrica cylindrica. FK23, SP12 .. Duck River, TN ...... birdwing pearlymussel ...... Lemiox rimosus. clubshell ...... Pleurobema clava. cracking pearlymussel ...... Hemistena lata. Cumberlandian combshell ...... Epioblasma brevidens. Cumberland monkeyface ...... Quadrula intermedia. littlewing pearlymussel ...... Pegias fabula. oyster mussel ...... Epioblasma capsaeformis. pale lilliput ...... Toxolasma cylindrellus. pink mucket ...... Lampsilis abrupta. rayed bean ...... Villosa fabalis. sheepnose ...... Plethobasus cyphyus. snuffbox ...... Epioblasma triquetra. spectaclecase ...... Cumberlandia monodonta. tan riffleshell ...... Epioblasma florentina walkeri (=E. walkeri). tubercled blossom pearlymussel ...... Epioblasma torulosa torulosa. turgid blossom pearlymussel ...... Epioblasma turgidula. winged mapleleaf ...... Quadrula fragosa. yellow blossom ...... Epioblasma florentina florentina. pygmy madtom ...... Noturus stanauli. rabbitsfoot ...... Quadrula cylindrica cylindrica. FK24, SP13 .. Buffalo River, TN ...... pale lilliput ...... Toxolasma cylindrellus. spotfin chub ...... Erimonax monachus. rabbitsfoot ...... Quadrula cylindrica cylindrica.

For each stream reach designated as a downstream boundaries are described definitions are provided in the critical habitat unit, the upstream and generally below. More precise Regulation Promulgation section at the

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end of this final rule. For a discussion occupied by the fluted kidneyshell at pest threatening eastern hemlock trees of the status and distribution of the the time of listing. This unit is located (Tsuga canadensis) in the eastern fluted kidneyshell and slabside almost entirely on private lands; United States. Hemlocks are an pearlymussel for each critical habitat however, approximately 16 rkm (10 rmi) important component of riparian unit, refer to the final listing rule are federal lands within the DBNF. Land vegetation throughout the range of the published elsewhere in today’s Federal and resource management decisions and two mussels. Register. activities within the DBNF are guided Unit FK3: Rockcastle River, Pulaski, by DBNF’s LRMP (USFS 2004a, pp. 1– Fluted Kidneyshell and Slabside Laurel, and Rockcastle Counties, 14). Pearlymussel Critical Habitat The channel within Unit FK1 is Kentucky Under the first prong of the Act’s relatively stable, with an abundance of Unit FK3 includes approximately 70 definition of critical habitat, areas riffle habitats (PCE 1), with relatively rkm (43 rmi) of the Rockcastle River within the geographical area occupied silt-free sand and gravel substrates (PCE from the backwaters of Lake by the species at the time it was listed 2), and adequate instream flows (PCE 3). Cumberland near its confluence with must contain PBFs which are (1) A diverse fish fauna, including fish Cane Creek along the Laurel and Pulaski essential to the conservation of the host(s) for the fluted kidneyshell, are County line, KY, upstream to its species and (2) which may require known from this unit (PCE 5). confluence with Horse Lick Creek along special management considerations or Within Unit FK1, the fluted the Laurel and Rockcastle County line, protection. For those units occupied by kidneyshell and its habitat may require KY. The unit is within the Cumberland either the fluted kidneyshell, slabside special management considerations or River system and is considered pearlymussel, or both species, we protection to address potential adverse unoccupied by the fluted kidneyshell at describe the principal PBFs essential to effects associated with legacy coal the time of listing, but within the the conservation of the species and the mines and coal mining activities, species’ historical range. Live fluted special management considerations or silviculture-related activities, natural kidneyshell have not been collected protections that may be needed for each gas and oil exploration activities in within Unit FK3 since 1911; however, it unit below. headwater reaches, illegal off-road persists in adjacent tributaries such as Under the second prong of the Act’s vehicle use and other recreational Horse Lick Creek and shell material has definition of critical habitat, we can activities, and nonpoint source been found as recently as 1985 (Wilson designate critical habitat in areas pollution originating in headwater and Clark 1914 and Thompson 1985 in outside the geographical area occupied reaches. Cicerello 1993, p. 12). In 2010, surveys by the species at the time it is listed, of the Rockcastle River showed that the Unit FK2: Middle Fork Rockcastle River, upon a determination that such areas river had a diverse mussel fauna, Jackson County, Kentucky are essential for the conservation of the including the federally endangered species. For those units unoccupied by Unit FK2 includes 12.5 rkm (7.7 rmi) Cumberland bean (McGregor 2010, the fluted kidneyshell, we are of the Middle Fork Rockcastle River unpubl. data). designating these units because we have from its confluence with the Rockcastle We consider this unit essential for the determined that they are essential for River upstream to its confluence with conservation of the fluted kidneyshell the conservation of the species due to Indian Creek and Laurel Fork in Jackson due to the need to re-establish the the need to re-establish the species County, KY. The unit is within the species within other portions of its within other portions of its historical Cumberland River system and is historical range in order to reduce range in order to reduce threats from occupied critical habitat for the fluted threats from stochastic events. stochastic events. kidneyshell. About half of this unit Therefore, this unit is designated as For four of the units (Big Moccasin (approximately 6 rkm (4 rmi)) is in unoccupied critical habitat for the fluted Creek; Hiwassee, Elk, and Buffalo public ownership (DBNF), and half is in kidneyshell. A portion of this unit Rivers), we are designating critical private ownership. Land and resource (approximately 12 rkm (7 rmi)) is in habitat for the slabside pearlymussel management decisions and activities private ownership, but the majority is in under prong one of the Act (occupied), within the DBNF are guided by DBNF’s public ownership (DBNF). Land and while at the same time designating the LRMP (USFS 2004a, pp. 1–14). resource management decisions and unit under prong two of the Act for the The channel within Unit FK2 is activities within the DBNF are guided fluted kidneyshell species (unoccupied). relatively stable and has an abundance by DBNF’s LRMP (USFS 2004a, pp. 1– Therefore, the principal PBFs and of riffle habitats (PCE 1), with relatively 14). special management considerations or silt-free sand and gravel substrates (PCE Unit FK4: Buck Creek, Pulaski County, protections given for these units only 2), and adequate instream flows (PCE 3). Kentucky apply to the species for which the unit Within this unit, the fluted is occupied critical habitat (slabside kidneyshell and its habitat may require Unit FK4 includes approximately 61 pearlymussel). special management considerations or rkm (38 rmi) of Buck Creek from State protection to address potential adverse Route 192 upstream to Route 328, Unit FK1: Horse Lick Creek, Rockcastle effects caused by resource extraction Pulaski County, KY. The unit is within and Jackson Counties, Kentucky (coal mining, silviculture, natural gas the Cumberland River basin and is Unit FK1 encompasses approximately and oil exploration activities), critical habitat for the fluted 19 rkm (12 rmi) of Horse Lick Creek, in agricultural activities (livestock), lack of kidneyshell. This unit is included in the Rockcastle and Jackson Counties, KY. It adequate riparian buffers, construction geographical area occupied by the includes the mainstem of Horse Lick and maintenance of State and county species at the time of listing. A portion Creek from its confluence with the roads, illegal off-road vehicle use, of this unit (1.3 rkm (0.8 rmi)) is in Rockcastle River upstream to Clover nonpoint source pollution arising from public ownership (DBNF), but the Bottom Creek. The unit is within the a wide variety of human activities, and majority is in private ownership. Land Cumberland River system and is critical potentially canopy loss caused by and resource management decisions and habitat for the fluted kidneyshell. This infestations of the hemlock woolly activities within the DBNF are guided unit is included in the geographical area adelgid, Adelges tsugae, an invasive by DBNF’s LRMP (USFS 2004a, pp. 1–

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14). The unit completely overlaps infestations of the hemlock woolly Big South Fork and New River in Scott existing critical habitat for the oyster adelgid. County, TN, upstream to its confluence mussel and Cumberlandian combshell with Crooked Creek along the Fentress Unit FK6: Little South Fork Cumberland (69 FR 53136). and Morgan County line, TN. This unit River, McCreary and Wayne Counties, The channel within Unit FK4 is also includes 14.7 rkm (9.1 rmi) of the Kentucky relatively stable, with suitable instream New River from its confluence with the habitat (PCE 1). There is an abundance Unit FK6 includes 65.5 rkm (40.7 rmi) Big South Fork upstream to the of riffle habitats (PCE 1), with relatively of the Little South Fork Cumberland Highway 27 Bridge crossing in Scott silt-free sand and gravel substrates (PCE River from its confluence with the Big County, TN. The unit is within the 2), and adequate instream flows (PCE 3). South Fork Cumberland River, where it Cumberland River system and is A diverse fish fauna, including fish is the dividing line between Wayne and designated as critical habitat for the host(s) for the fluted kidneyshell, are McCreary Counties, upstream to its fluted kidneyshell. This unit is included known from this unit (PCE 5). confluence with Dobbs Creek in Wayne in the geographical area occupied by the Within this unit, the fluted County, KY. The unit is within the species at the time of listing. A portion kidneyshell and its habitat may require Cumberland River system and is critical of this unit (92 rkm (57 rmi)) has been special management considerations or habitat for the fluted kidneyshell. This designated as critical habitat for the protection to address potential adverse unit is included in the geographical area Cumberlandian combshell, oyster effects associated with instream gravel occupied by the species at the time of mussel, and Cumberland elktoe (69 FR mining, silviculture-related activities, listing. A portion of this unit (4.4 rkm 53136). illegal off-road vehicle use and other (2.7 rmi)) is in public ownership This unit is located almost entirely on recreational activities, and nonpoint (DBNF), but the majority is in private federal lands within the BSFNRRA. source pollution from agricultural and ownership. Land and resource Land and resource management developmental activities. management decisions and activities decisions and activities within the within the DBNF are guided by DBNF’s Unit FK5: Rock Creek, McCreary County, BSFNRRA are guided by the National LRMP (USFS 2004a, pp. 1–14). Kentucky Park Service General Management Plan, The channel within Unit FK6 is Field Management Plan, and Draft Non- Unit FK5 includes approximately 19 relatively stable, with an abundance of Federal Oil and Gas Management Plan rkm (12 rmi) of Rock Creek from its riffle habitats (PCE 1), relatively silt-free (NPS 2005, entire; NPS 2006, pp. 1–12; confluence with White Oak Creek sand and gravel substrates (PCE 2), and NPS 2011, entire). upstream to the low water crossing at adequate instream flows (PCE 3). A The channel within Unit FK7 is rkm 25.6 (rmi 15.9) in McCreary County, diverse fish fauna, including fish host(s) relatively stable, with relatively silt-free KY. The unit is within the Cumberland for the fluted kidneyshell, are known sand and gravel substrates (PCE 2) and River system and is critical habitat for from this unit (PCE 5). adequate instream flows (PCE 3). A the fluted kidneyshell. This unit is Within this unit, the fluted diverse fish fauna, including fish host(s) included in the geographical area kidneyshell and its habitat may require for the fluted kidneyshell, are known occupied by the species at the time of special management considerations or from this unit (PCE 5). listing. A portion of this unit (1.5 rkm protection to address potential adverse Within this unit, the fluted (0.9 rmi)) is in private ownership, but effects caused by resource extraction kidneyshell and its habitat may require the majority is in public ownership (coal mining, silviculture, natural gas special management considerations or (DBNF). Land and resource management and oil exploration activities), protection to address potential adverse decisions and activities within the agricultural activities (livestock), lack of effects caused by resource extraction DBNF are guided by DBNF’s LRMP adequate riparian buffers, construction (coal mining, silviculture, natural gas (USFS 2004a, pp. 1–14). The unit and maintenance of State and county and oil exploration activities), lack of completely overlaps existing critical roads, illegal off-road vehicle use, adequate riparian buffers, construction habitat for the Cumberland elktoe (69 nonpoint source pollution arising from and maintenance of roads, recreational FR 53136). a wide variety of human activities, and horse riding, illegal off-road vehicle use, The channel within Unit FK5 is potentially canopy loss caused by nonpoint source pollution arising from relatively stable, with suitable instream infestations of the hemlock woolly a wide variety of human activities, and habitat (PCE 1). There is an abundance adelgid. potential canopy loss caused by of riffle habitats (PCE 1), with relatively infestations of the hemlock woolly Unit FK7: Big South Fork Cumberland silt-free sand and gravel substrates (PCE adelgid. 2), and adequate instream flows (PCE 3). River, Fentress, Morgan, and Scott A diverse fish fauna, including fish Counties, Tennessee, and McCreary Unit FK8: Wolf River and Town Branch, host(s) for the fluted kidneyshell, are County, Kentucky Pickett and Fentress Counties, known from this unit (PCE 5). Unit FK7 includes a combined total of Tennessee Within this unit, the fluted approximately 92 rkm (57 rmi) of the Unit FK8 includes 41.0 rkm (25.5 rmi) kidneyshell and its habitat may require Big South Fork of the Cumberland of the Wolf River from its inundation at special management considerations or River, Clear Fork of the New River, and Dale Hollow Lake in Pickett County, protection to address potential adverse the New River in Tennessee and TN, upstream to its confluence with effects caused by resource extraction Kentucky. Unit FK7 includes Delk Creek in Fentress County, TN, and (coal mining, silviculture, natural gas approximately 45 rkm (28 rmi) of the 3.4 rkm (2.0 rmi) of Town Branch from and oil exploration activities), Big South Fork Cumberland River from its confluence with Wolf River upstream agricultural activities (livestock), lack of its confluence with Laurel Crossing to its headwaters in Pickett County, TN. adequate riparian buffers, construction Branch downstream of Big Shoals, The unit is within the Cumberland and maintenance of State and county McCreary County, KY, upstream to its River system and is critical habitat for roads, illegal off-road vehicle use, confluence with Clear Fork and of the the fluted kidneyshell. This unit is nonpoint source pollution arising from New River, Scott County, TN. This unit included in the geographical area a wide variety of human activities, and also includes 32.3 rkm (20.0 rmi) of occupied by the species at the time of potentially canopy loss caused by Clear Fork from its confluence with the listing. A portion of this unit (6 rkm (4

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rmi)) is in public ownership (U.S. Army and maintenance of State and county The channel within Unit FK11 is Corps of Engineers lands adjacent to roads, nonpoint source pollution relatively stable, with suitable instream Dale Hollow Reservoir and Sgt. Alvin C. originating in headwater reaches, and habitat (PCE 1). There is an abundance York State Historic Park), but the potential canopy loss caused by of riffle habitats (PCE 1), with relatively majority is in private ownership. infestations of the hemlock woolly silt-free sand and gravel substrates (PCE The channel within Unit FK8 is adelgid. 2), and adequate instream flows (PCE 3). relatively stable, with suitable instream A diverse fish fauna, including fish Unit FK10: Indian Creek, Tazewell habitat (PCE 1). There is an abundance hosts for the fluted kidneyshell and County, Virginia of riffle habitats (PCE 1), with relatively slabside pearlymussel, are known from silt-free sand and gravel substrates (PCE Unit FK10 includes 6.7 rkm (4.2 rmi) this unit (PCE 5). 2) and adequate instream flows (PCE 3). of Indian Creek from its confluence with Within this unit, the fluted A diverse fish fauna, including fish the Clinch River upstream to the fourth kidneyshell and its habitats may require host(s) for the fluted kidneyshell, are Norfolk Southern Railroad crossing at special management considerations or known from this unit (PCE 5). Van Dyke in Tazewell County, VA. The protection to address potential adverse Within this unit, the fluted unit is within the Tennessee River effects associated with silviculture- kidneyshell and its habitat may require system and is critical habitat for the related activities, lack of adequate special management considerations or fluted kidneyshell. This unit is included riparian buffers, natural gas and oil protection to address potential adverse in the geographical area occupied by the exploration activities in headwater effects associated with coal mining, species at the time of listing. This unit reaches, and nonpoint source pollution silviculture-related activities, natural is located almost entirely on private originating in headwater reaches. gas and oil exploration activities in land, except for any small amount that headwater reaches, agricultural is publicly owned in the form of bridge Unit FK12 and SP1: North Fork Holston activities (livestock), lack of adequate crossings and road easements. The unit River, Smyth and Bland Counties, riparian buffers, construction and completely overlaps critical habitat for Virginia maintenance of State and county roads, the Cumberlandian combshell, rough Unit FK12 and SP1 includes off-road vehicle use and other rabbitsfoot, purple bean, and oyster approximately 67 rkm (42 rmi) of the recreational activities, nonpoint source mussel (69 FR 53136). North Fork Holston River from its pollution originating in headwater The channel within Unit FK10 is confluence with Beaver Creek, upstream reaches, and potential canopy loss relatively stable, with suitable instream of Saltville, in Smyth County, VA, caused by infestations of the hemlock habitat (PCE 1). There is an abundance upstream to Ceres, Bland County, VA. woolly adelgid. of riffle habitats (PCE 1), with relatively The unit is within the Tennessee River silt-free sand and gravel substrates (PCE system and is critical habitat for the Unit FK9: West Fork Obey River, 2), and adequate instream flows (PCE 3). fluted kidneyshell and slabside Overton County, Tennessee A diverse fish fauna, including fish pearlymussel. This unit is included in Unit FK9 includes approximately 19 hosts for the fluted kidneyshell, are the geographical area occupied by both rkm (12 rmi) of the West Fork Obey known from this unit (PCE 5). species at the time of listing. This unit River from the Highway 52 Bridge Within this unit, the fluted is located almost entirely on private crossing upstream to its confluence with kidneyshell and its habitat may require land, except for any small amount that Dry Hollow Creek in Overton County, special management considerations or is publicly owned in the form of bridge TN. The unit is within the Cumberland protection to address potential adverse crossings, road easements, and a small River system and is critical habitat for effects associated with residential portion that is adjacent to the George the fluted kidneyshell. This unit is development, coal mining, silviculture- Washington and Jefferson National included in the geographical area related activities, natural gas and oil Forests. The Nature Conservancy and occupied by the species at the time of exploration activities in headwater the Virginia Outdoors Foundation also listing. This unit is located almost reaches, illegal off-road vehicle use and own a small portion of adjacent entirely on private land, except for any other recreational activities, and property. A portion of this unit (58 rkm small amount that is publicly owned in nonpoint source pollution originating in (36 rmi)) has been designated as a NEP the form of bridge crossings and road headwater reaches. for the yellowfin madtom (53 FR 29335). easements. The channel within Unit FK12 and The channel within Unit FK9 is Unit FK11: Little River, Russell and SP1 is relatively stable, with suitable relatively stable, with suitable instream Tazewell Counties, Virginia instream habitat (PCE 1). There is an habitat (PCE 1). There is an abundance Unit FK11 includes approximately 50 abundance of riffle habitats (PCE 1), of riffle habitats (PCE 1), with relatively rkm (31 rmi) of Little River from its with relatively silt-free sand and gravel silt-free sand and gravel substrates (PCE confluence with the Clinch River in substrates (PCE 2), and adequate 2), and adequate instream flows (PCE 3). Russell County, VA, upstream to its instream flows (PCE 3). A diverse fish A diverse fish fauna, including fish confluence with Liberty and Maiden fauna, including fish hosts for the fluted host(s) for the fluted kidneyshell, are Spring Creeks in Tazewell County, VA. kidneyshell and slabside pearlymussel, known from this unit (PCE 5). The unit is within the Tennessee River are known from this unit (PCE 5). Within this unit, the fluted system and is critical habitat for the Within this unit, the fluted kidneyshell and its habitat may require fluted kidneyshell. This unit is included kidneyshell, slabside pearlymussel, and special management considerations or in the geographical area occupied by their habitats may require special protection to address potential adverse fluted kidneyshell at the time of listing. management considerations or effects associated with coal mining, This unit is located almost entirely on protection to address potential adverse silviculture-related activities, natural private land, except for any small effects associated with agricultural gas and oil exploration activities in amount that is publicly owned in the activities, silviculture-related activities, headwater reaches, off-road vehicle use form of bridge crossings and road natural gas and oil exploration activities and other recreational activities, easements. The Nature Conservancy in headwater reaches, lack of adequate agricultural activities (livestock), lack of also owns a small portion of adjacent riparian buffers, construction and adequate riparian buffers, construction property. maintenance of State and county roads,

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and nonpoint source pollution for our rationale). This unit is located activities, lack of adequate riparian originating in headwater reaches. almost entirely on private land, except buffers, construction and maintenance for any small amount that is publicly of State and county roads, and nonpoint Unit FK13 and SP2: Middle Fork owned in the form of bridge crossings source pollution originating in Holston River, Washington, Smyth, and and road easements. headwater reaches. Wythe Counties, Virginia The channel within Unit FK14 and Unit FK13 and SP2 includes SP3 is relatively stable, with suitable Unit FK16 and SP4: Clinch River, approximately 89 rkm (55 rmi) of the instream habitat (PCE 1). There is an Hancock County, Tennessee, and Scott, Middle Fork Holston River from its abundance of riffle habitats (PCE 1), Russell, and Tazewell Counties, Virginia inundation at South Holston Lake in with relatively silt-free sand and gravel Unit FK16 and SP4 includes Washington County, VA, upstream to its substrates (PCE 2), and adequate approximately 263 rkm (163 rmi) of the headwaters in Wythe County, VA. The instream flows (PCE 3). A diverse fish Clinch River from rkm 255 (rmi 159) unit is within the Tennessee River fauna, including fish hosts for the immediately below Grissom Island in system and is critical habitat for the slabside pearlymussel, are known from Hancock County, TN, upstream to its fluted kidneyshell and slabside this unit (PCE 5). confluence with Indian Creek near pearlymussel. This unit is included in Within this unit, the slabside Cedar Bluff, Tazewell County, VA. The the geographical area occupied by both pearlymussel and its habitats may unit is within the Tennessee River the fluted kidneyshell and slabside require special management system and is critical habitat for the pearlymussel at the time of listing. This considerations or protection to address fluted kidneyshell and slabside unit is located almost entirely on private potential adverse effects associated with pearlymussel. This unit is included in land, except for any small amount that agricultural activities (livestock), lack of the geographical area occupied by both is publicly owned in the form of bridge adequate riparian buffers, silviculture- species at the time of listing. crossings and road easements. related activities, natural gas and oil Approximately 6 rkm (4 rmi) of this unit The channel within Unit FK13 and exploration activities in headwater is in public ownership, including SP2 is relatively stable, with suitable reaches, illegal off-road vehicle use and portions of the Kyles Ford State instream habitat (PCE 1). There is an other recreational activities, and Managed Area, George Washington abundance of riffle habitats (PCE 1), nonpoint source pollution originating in National Forest, Jefferson National with relatively silt-free sand and gravel headwater reaches. Forest, Cleveland Barrens State Natural substrates (PCE 2), and adequate Area Preserve (SNAP), and the Pinnacle Unit FK15: Copper Creek, Scott County, instream flows (PCE 3). A diverse fish SNAP. The Nature Conservancy also Virginia fauna, including fish hosts for the fluted owns a small portion of adjacent kidneyshell and slabside pearlymussel, Unit FK15 includes 55.5 rkm (34.5 property. The unit completely overlaps are known from this unit (PCE 5). rmi) of Copper Creek from its critical habitat for the Cumberlandian Within this unit, the fluted confluence with the Clinch River combshell, rough rabbitsfoot, purple kidneyshell, slabside pearlymussel, and upstream to the Highway 71 Bridge bean, and oyster mussel, and the entire their habitats may require special crossing in Scott County, VA. The unit length of this unit has been designated management considerations or is within the Tennessee River system as critical habitat for the slender chub protection to address potential adverse and is critical habitat for the fluted and yellowfin madtom (42 FR 45526, 42 effects associated with agricultural kidneyshell. This unit is included in the FR 47840, 69 FR 53136). activities, lack of adequate riparian geographical area occupied by the The channel within Unit FK16 and buffers, silviculture-related activities, species at the time of listing. This unit SP4 is relatively stable, with suitable and nonpoint source pollution. is located almost entirely on private instream habitat (PCE 1). There is an land, except for any small amount that Unit FK14 and SP3: Big Moccasin Creek, abundance of riffle habitats (PCE 1), is publicly owned in the form of bridge Scott and Russell Counties, Virginia with relatively silt-free sand and gravel crossings and road easements. A portion substrates (PCE 2), and adequate Unit FK14 and SP3 includes of this unit (21 rkm (13 rmi)) has been instream flows (PCE 3). A diverse fish approximately 33 rkm (21 rmi) of Big designated as critical habitat for the fauna, including fish hosts for the fluted Moccasin Creek from the Highway 71 Cumberlandian combshell, rough kidneyshell and slabside pearlymussel, Bridge crossing in Scott County, VA, rabbitsfoot, purple bean, and oyster are known from this unit (PCE 5). upstream to the Route 612 Bridge mussel, and this unit (55.5 rkm (34.5 Within this unit, the fluted crossing near Collinwood in Russell rmi)) also makes up a portion of the kidneyshell, slabside pearlymussel, and County, VA. The unit is within the designated critical habitat for the their habitats may require special Tennessee River system and is critical yellowfin madtom (42 FR 45526, 42 FR management considerations or habitat for the fluted kidneyshell and 47840, 69 FR 53136). protection to address potential adverse slabside pearlymussel. This unit is The channel within Unit FK15 is effects associated with coal mining, included in the geographical area relatively stable, with suitable instream silviculture-related activities, natural occupied by slabside pearlymussel at habitat (PCE 1). There is an abundance gas and oil exploration activities in the time of listing. This unit is of riffle habitats (PCE 1), with relatively headwater reaches, agricultural considered unoccupied by the fluted silt-free sand and gravel substrates (PCE activities (livestock), lack of adequate kidneyshell, but within the species’ 2), and adequate instream flows (PCE 3). riparian buffers, construction and historical range. Live fluted kidneyshell A diverse fish fauna, including fish maintenance of State and county roads, have not been collected in Big Moccasin hosts for the fluted kidneyshell, are and nonpoint source pollution Creek since the early 1900s (Ortmann known from this unit (PCE 5). originating in headwater reaches. 1918, p. 608). However, this unit is Within this unit, the fluted designated as critical habitat for the kidneyshell and its habitat may require Unit FK17 and SP5: Powell River, fluted kidneyshell because it is special management considerations or Claiborne and Hancock Counties, considered essential for the protection to address potential adverse Tennessee, and Lee County, Virginia conservation of the species (see Criteria effects associated with agricultural Unit FK17 and SP5 includes Used To Identify Critical Habitat above activities (livestock), silviculture-related approximately 153 rkm (95 rmi) of the

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Powell River from the U.S. 25E Bridge successful reintroduction program We consider this unit essential for the in Claiborne County, TN, upstream to implemented by TWRA and other conservation of the fluted kidneyshell rkm 256 (rmi 159) (upstream of Rock conservation partners. This unit is due to the need to re-establish the Island in the vicinity of Pughs) in Lee located almost entirely on private land, species within other portions of its County, VA. The unit is within the except for any small amount that is historical range in order to reduce Tennessee River system and is critical publicly owned in the form of bridge threats from stochastic events. Although habitat for the fluted kidneyshell and crossings, road easements, and a small live fluted kidneyshell have not been slabside pearlymussel. This unit is portion that is within Mullins Island collected in the Holston River since the included in the geographical area Wildlife Management Area. A portion of early 1900s (Ortmann 1918, p. 614), the occupied by both species at the time of this unit (8 rkm (5 rmi)) has been Tennessee Valley Authority (TVA) has listing. This unit is located almost designated as a critical habitat for the improved conditions for aquatic species entirely on private land, except for any oyster mussel and Cumberlandian within this unit. Between 1988 and small amount that is publicly owned in combshell (69 FR 53136). 1995, TVA implemented reservoir the form of bridge crossings, road The channel within Unit FK18 and release improvements below Cherokee easements, and a small portion that is SP6 is relatively stable, with suitable Dam on the Holston River. These adjacent to the Cedars SNAP. The instream habitat (PCE 1). There is an improvements included the Nature Conservancy also owns a small abundance of riffle habitats (PCE 1), establishment of minimum flows and portion of adjacent property. The unit with relatively silt-free sand and gravel increasing the amount of dissolved completely overlaps critical habitat for substrates (PCE 2), and adequate oxygen in the tailwater below the the Cumberlandian combshell, rough instream flows (PCE 3). A diverse fish reservoir (Scott et al. 1996, p. 21). rabbitsfoot, purple bean, and oyster fauna, including fish hosts for the The unit currently supports mussel, and the entire length of this unit slabside pearlymussel and the fluted populations of three federally listed has been designated as critical habitat kidneyshell, are known from this unit species (threatened snail darter and for the slender chub and yellowfin (PCE 5). endangered pink mucket and sheepnose). In addition, other mussel madtom (42 FR 45526, 42 FR 47840, 69 Within this unit, the fluted species co-occur with these species FR 53136). kidneyshell, slabside pearlymussel, and The channel within Unit FK17 and along with a diverse fish fauna, their habitats may require special SP5 is relatively stable, with suitable including hosts for the fluted management considerations or instream habitat (PCE 1). There is an kidneyshell. These host fishes are abundance of riffle habitats (PCE 1), protection to address potential adverse bottom-dwelling species that are able to with relatively silt-free sand and gravel effects associated with agricultural move into refugia of low flows during substrates (PCE 2), and adequate activities, silviculture-related activities, high discharges from the hydropower instream flows (PCE 3). A diverse fish rock mining, lack of adequate riparian dam upstream. Therefore, the fluted fauna, including fish hosts for the fluted buffers, construction and maintenance kidneyshell glochidia may come into kidneyshell and slabside pearlymussel, of State and county roads, and nonpoint contact and infest the host fishes. The are known from this unit (PCE 5). source pollution originating in slabside pearlymussel and its host fishes Within this unit, the fluted headwater reaches. are known from the Holston River kidneyshell, slabside pearlymussel, and Unit FK19: Holston River, Knox, drainage; however, hydropower their habitats may require special Grainger, and Jefferson Counties, operations make this habitat unsuitable management considerations or Tennessee for mid-water column fishes, such as the protection to address potential adverse shiners that are hosts for the slabside effects associated with coal mining, Unit FK19 includes approximately 85 pearlymussel (Layzer and Scott 2006, natural gas and oil exploration activities rkm (53 rmi) of the Holston River from pp. 481, 488–9). Therefore, we are not in headwater reaches, agricultural its confluence with the French Broad designating Unit FK19 as critical habitat activities (livestock), lack of adequate River in Knox County, TN, upstream to for the slabside pearlymussel at this riparian buffers, construction and the base of Cherokee Dam at rkm 83.7 time. maintenance of State and county roads, (rmi 52.3) along the Grainger and and nonpoint source pollution Jefferson County, TN, line. The unit is Unit FK20: French Broad River, Knox and Sevier Counties, Tennessee originating in headwater reaches. within the Tennessee River system. This unit is considered unoccupied by the Unit FK20 includes approximately 56 Unit FK18 and SP6: Nolichucky River, fluted kidneyshell and slabside rkm (35 rmi) of the French Broad River Cocke, Hamblen, and Greene Counties, pearlymussel, but within the species’ from its confluence with the Holston Tennessee historical ranges. Live fluted River in Knox County, TN, upstream to Unit FK18 and SP6 includes kidneyshell have not been collected in the base of Douglas Dam at rkm 51.7 approximately 52 rkm (32 rmi) of the the Holston River since the early 1900s (rmi 32.3) in Sevier County, TN. The Nolichucky River from rkm 14 (rmi 9), (Ortmann 1918, p. 614). As discussed unit is within the Tennessee River approximately 0.6 rkm (0.4 rmi) below, we consider Unit FK19 essential system. This unit is considered upstream of Enka Dam, where it divides for the conservation of the fluted unoccupied by the fluted kidneyshell Hamblen and Cocke Counties, TN, kidneyshell, but not the slabside and slabside pearlymussel, but within upstream to its confluence with Pigeon pearlymussel, and so it is designated as the species’ historical ranges. Fluted Creek, just upstream of the Highway 321 critical habitat only for the fluted kidneyshell are only known from Bridge crossing, in Greene County, TN. kidneyshell. This unit is located almost archaeological records in the French The unit is within the Tennessee River entirely on private land, except for any Broad River (Parmalee 1988 in Layzer system and is critical habitat for the small amount that is publicly owned in and Scott 2006, pp. 481–482). As fluted kidneyshell and slabside the form of bridge crossings and road discussed below, we consider Unit pearlymussel. This unit is included in easements. The unit completely FK20 essential for the conservation of the geographical area occupied by both overlaps a designated nonessential the fluted kidneyshell, but not the species at the time of listing. The fluted experimental population for 15 mussels, slabside pearlymussel, and so it is kidneyshell population is a result of a 1 snail, and 5 fishes (72 FR 52434). designated as critical habitat only for

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the fluted kidneyshell. This unit is the time of listing. This unit is system. This unit is included in the located almost entirely on private land, considered unoccupied by the fluted geographical area occupied by slabside except for any small amount that is kidneyshell at the time of listing, but pearlymussel at the time of listing. This publicly owned in the form of bridge within the species’ historical range. unit is located almost entirely on private crossings and road easements and a Fluted kidneyshell are only known from land, except for any small amount that small portion that is within Forks of the archaeological records in the Hiwassee is publicly owned in the form of bridge River Wildlife Management Area. The River (Parmalee and Bogan 1998, p. crossings and road easements. unit completely overlaps a NEP for 15 205). This unit is considered essential Unit SP8 has an abundance of riffle mussels, 1 snail, and 5 fishes (72 FR for the conservation of the fluted habitats (PCE 1), with relatively silt-free 52434). kidneyshell (see Criteria Used To sand and gravel substrates (PCE 2), and We consider this unit essential for the Identify Critical Habitat above for our adequate instream flows (PCE 3). A conservation of the fluted kidneyshell rationale). A portion of this unit is diverse fish fauna, including fish hosts due to the need to re-establish the considered a ‘‘cut-off’’ reach, because for the slabside pearlymussel, are species within other portions of its most of the water flow bypasses the known from this unit (PCE 5). historical range in order to reduce reach through a tunnel from Apalachia Within this unit, the slabside threats from stochastic events. Fluted Dam to the Apalachia powerhouse for pearlymussel and its habitat may kidneyshell are only known from the production of electricity. This unit require special management archaeological records in the French is located entirely on federal lands considerations or protection to address Broad River (Parmalee 1988 in Layzer within the Cherokee National Forest potential adverse effects caused by and Scott 2006, pp. 481–482). However, (CNF). Land and resource management agricultural activities, coal mining, between 1987 and 1995, TVA decisions and activities within the CNF silvicultural activities, lack of adequate implemented reservoir release are guided by CNF’s LRMP (USFS riparian buffers, construction and improvements below Douglas Dam on 2004b, pp. 28–37, entire). maintenance of State and county roads, the French Broad River. These The channel within Unit FK21 and and nonpoint source pollution arising improvements included the SP7 has an abundance of riffle habitats from a wide variety of human activities. establishment of minimum flows and (PCE 1), with relatively silt-free sand Unit SP9: Paint Rock River, Madison, increasing the amount of dissolved and gravel substrates (PCE 2). Diverse Marshall, and Jackson Counties, oxygen in the tailwater below the fish fauna, including fish hosts for the Alabama reservoir (Scott et al. 1996, pp. 11–12), slabside pearlymussel, are known from improving conditions for the fluted this unit (PCE 5). Unit SP9 includes approximately 86 kidneyshell and other aquatic species. Within this unit, the slabside rkm (53 rmi) of the Paint Rock River The unit does currently support pearlymussel and its habitats may from the Highway 431 Bridge crossing populations of the federally threatened require special management along the Madison and Marshall County snail darter and endangered pink considerations or protection to address line, AL, upstream to the confluence of mucket. In addition, other mussel potential adverse effects associated with Estill Fork and Hurricane Creek in species co-occur with these species and silviculture-related activities, nonpoint Jackson County, AL. The unit includes a diverse fish fauna, including hosts for source pollution, water diversion approximately 11 rkm (7 rmi) of Larkin the fluted kidneyshell. These host fishes through Apalachia tunnel, and potential Fork from its confluence with the Paint are bottom-dwelling species that are canopy loss caused by infestations of Rock River upstream to its confluence able to move into refugia of low flows the hemlock woolly adelgid. Another with Bear Creek, in Jackson County, AL; during high discharges from the threat to the species and their habitat approximately 13 rkm (8 rmi) of Estill hydropower dam upstream. Therefore, which may require special management Fork from its confluence with the Paint the fluted kidneyshell glochidia may of the PCEs is the potential for Rock River upstream to its confluence come into contact and infest the host significant changes in the existing flow with Bull Run in Jackson County, AL; fishes. The slabside pearlymussel and regime and water quality due to and approximately 16 rkm (10 rmi) of its host fishes are known from the upstream impoundment. As discussed Hurricane Creek from its confluence French Broad River drainage; however, in the final listing rule published with the Paint Rock River upstream to hydropower operations make this elsewhere in today’s Federal Register its confluence with Turkey Creek in habitat unsuitable for mid-water column under Summary of Factors Affecting the Jackson County, AL. The unit is within fishes, such as the shiners that are hosts Species, ‘‘Impoundments,’’ mollusk the Tennessee River system and is for the slabside pearlymussel (Layzer declines below dams are associated with critical habitat for the slabside and Scott 2006, pp. 481, 488–9). changes and fluctuation in flow regime, pearlymussel. The unit is included in Therefore, we are not designating Unit scouring and erosion, reduced dissolved the geographical area occupied by the FK20 as critical habitat for the slabside oxygen levels and water temperatures, slabside pearlymussel at the time of pearlymussel at this time. and changes in resident fish listing. Approximately 6 rkm (4 rmi) of assemblages. These alterations can this unit is federally or State-owned and Unit FK21 and SP7: Hiwassee River, cause mussel declines for many miles adjacent to the Fern Cave National Polk County, Tennessee below the dam. Wildlife Refuge and Walls of Jericho Unit FK21 and SP7 includes State Management Area; the remainder approximately 24 rkm (15 rmi) of the Unit SP8: Sequatchie River, Marion, is privately owned, including a small Hiwassee River from the Highway 315 Sequatchie, and Bledsoe Counties, parcel owned by the Alabama Land Bridge crossing upstream to the Tennessee Trust. A portion of this unit (80 rkm (50 Highway 68 Bridge crossing in Polk Unit SP8 includes approximately 151 rmi)) is critical habitat for the County, TN. The unit is within the rkm (94 rmi) of the Sequatchie River rabbitsfoot (78 FR 57076). Tennessee River system and is critical from the Highway 41, 64, 72, 2 Bridge The channel within Unit SP9 is habitat for the fluted kidneyshell and crossing in Marion County, TN, relatively stable, with suitable instream slabside pearlymussel. This unit is upstream to the Ninemile Cross Road habitat (PCE 1). There is an abundance included in the geographical area Bridge crossing in Bledsoe County, TN. of riffle habitats (PCE 1), with relatively occupied by slabside pearlymussel at The unit is within the Tennessee River silt-free sand and gravel substrates (PCE

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2), and adequate instream flows (PCE 3). upstream impoundment. As discussed County, TN. The unit is within the A diverse fish fauna, including fish in the final listing rule published Tennessee River system and is critical hosts for the slabside pearlymussel, are elsewhere in today’s Federal Register habitat for the fluted kidneyshell and known from this unit (PCE 5). under Summary of Factors Affecting the slabside pearlymussel. This unit is Within this unit, the slabside Species, ‘‘Impoundments,’’ mollusk included in the geographical area pearlymussel and its habitat may declines below dams are associated with occupied by both species at the time of require special management changes and fluctuation in flow regime, listing. The fluted kidneyshell considerations or protection to address scouring and erosion, reduced dissolved population is a result of a successful potential adverse effects associated with oxygen levels and water temperatures, reintroduction program implemented by agricultural activities, silvicultural and changes in resident fish TWRA and other conservation partners, activities, off-road vehicle use and other assemblages. These alterations can resulting in the recruitment of the recreational activities, and nonpoint cause mussel declines for many miles species in the Duck River. source pollution originating in below the dam. Approximately 64 rkm (39 rmi) of this headwater reaches. unit is federally or State-owned and Unit SP11: Bear Creek, Colbert County, adjacent to the Tennessee National Unit FK22 and SP10: Elk River, Alabama, and Tishomingo County, Wildlife Refuge, Natchez Trace Limestone County, Alabama, and Giles, Mississippi Parkway, Yanahli Wildlife Management Lincoln, Franklin, and Moore Counties, Unit SP11 includes approximately 42 Tennessee Area, and Henry Horton State Park; the rkm (26 rmi) of Bear Creek from its remainder is privately owned. A portion Unit FK22 and SP10 includes inundation at Pickwick Lake at rkm 37 of this unit (74 rkm (46 rmi)) has been approximately 164 rkm (102 rmi) of the (rmi 23) in Colbert County, AL, designated as a critical habitat for the Elk River from its inundation at Wheeler upstream through Tishomingo County, oyster mussel and Cumberlandian Lake in Limestone County, AL, MS, and ending at the Mississippi/ combshell (69 FR 53136) and a portion upstream to its confluence with Farris Alabama State line. The unit is within of this unit (235 rkm (146 rmi)) is Creek at the dividing line between the Tennessee River system and is critical habitat for the rabbitsfoot (78 FR Franklin and Moore Counties, TN. The critical habitat for the slabside 57076). unit is within the Tennessee River pearlymussel. This unit is included in The channel within Unit FK23 and system and is critical habitat for the the geographical area occupied by the SP12 is relatively stable, with suitable fluted kidneyshell and slabside slabside pearlymussel at the time of instream habitat (PCE 1). There is an pearlymussel. This unit is included in listing. This unit is located almost abundance of riffle habitats (PCE 1), the geographical area occupied by entirely on private land, except for any with relatively silt-free sand and gravel slabside pearlymussel at the time of small amount that is publicly owned in substrates (PCE 2), and adequate listing. This unit is considered the form of bridge crossings and road instream flows (PCE 3). A diverse fish unoccupied by the fluted kidneyshell, easements, and that within Tishomingo fauna, including fish hosts for the fluted but within the species’ historical range. State Park and the Natchez Trace kidneyshell and slabside pearlymussel, Live fluted kidneyshell have not been Parkway. The unit completely overlaps are known from this unit (PCE 5). collected in the Elk River since the late- critical habitat for the oyster mussel and Within this unit, the fluted 1960s (Isom et al. 1973, p. 440). The Cumberlandian combshell (69 FR kidneyshell, slabside pearlymussel, and unit is considered essential for the 53136), and overlaps with a portion (42 their habitats may require special conservation of the fluted kidneyshell rkm (26 rmi)) of the critical habitat unit management considerations or (see Criteria Used To Identify Critical for the rabbitsfoot (78 FR 57076). protection to address potential adverse Habitat above for our rationale). This The channel within Unit SP11 has an effects associated with agricultural unit is located almost entirely on private abundance of riffle habitats (PCE 1), activities (livestock), water withdrawals, land, except for any small amount that with relatively silt-free sand and gravel lack of adequate riparian buffers, is publicly owned in the form of bridge substrates (PCE 2), and adequate construction and maintenance of State crossings and road easements and a instream flows (PCE 3). A diverse fish and county roads, and nonpoint source small portion that is within TVA-owned fauna, including fish hosts for the pollution originating in headwater lands near Wheeler Reservoir. slabside pearlymussel, are known from reaches. Unit FK22 and SP10 has an this unit (PCE 5). Unit FK24 and SP13: Buffalo River, abundance of riffle habitats (PCE 1), Within this unit, the slabside Humphreys and Perry Counties, with relatively silt-free sand and gravel pearlymussel and its habitat may Tennessee substrates (PCE 2), and adequate require special management instream flows (PCE 3). A diverse fish considerations or protection to address Unit FK24 and SP13 includes fauna, including fish hosts for the potential adverse effects associated with approximately 50 rkm (31 rmi) of the slabside pearlymussel, are known from releases from upstream impoundments, Buffalo River from its confluence with this unit (PCE 5). agriculture, and nonpoint source the Duck River in Humphreys County, Within this unit, the slabside pollution originating in headwater TN, upstream to its confluence with pearlymussel and its habitats may reaches. Cane Creek in Perry County, TN. The require special management unit is within the Tennessee River considerations or protection to address Unit FK23 and SP12: Duck River, system and is critical habitat for the potential adverse effects associated with Humphreys, Perry, Hickman, Maury, fluted kidneyshell and slabside hydropower generation from Tims Ford Marshall, and Bedford Counties, pearlymussel. This unit is included in Dam, agriculture, nonpoint source Tennessee the geographical area occupied by pollution, and instream gravel mining. Unit FK23 and SP12 includes slabside pearlymussel at the time of Another threat to the species and their approximately 348 rkm (216 rmi) of the listing. This unit is considered habitat which may require special Duck River from its inundation at unoccupied by the fluted kidneyshell, management of the PBFs is the potential Kentucky Lake in Humphreys County, but within the species’ historical range. for significant changes in the existing TN, upstream to its confluence with Flat Live fluted kidneyshell have not been flow regime and water quality due to Creek near Shelbyville in Bedford collected in the Buffalo River since the

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early 1920s (Ortmann 1924, p. 28). The process are actions that require a designated critical habitat that may be unit is considered essential for the Federal permit (such as a permit from affected and the Federal agency has conservation of the fluted kidneyshell the U.S. Army Corps of Engineers under retained discretionary involvement or (see Criteria Used To Identify Critical section 404 of the CWA (33 U.S.C. 1251 control over the action (or the agency’s Habitat above for our rationale). This et. seq.) or a permit from the Service discretionary involvement or control is unit is located almost entirely on private under section 10 of the Act) or that authorized by law). Consequently, land, except for any small amount that involve some other Federal action (such Federal agencies sometimes may need to is publicly owned in the form of bridge as funding from the Federal Highway request reinitiation of consultation with crossings and road easements. Administration, Federal Aviation us on actions for which formal Unit FK24 and SP13 has an Administration, or the Federal consultation has been completed, if abundance of riffle habitats (PCE 1) and Emergency Management Agency). those actions with discretionary adequate instream flows (PCE 3). A Federal actions not affecting listed involvement or control may affect diverse fish fauna, including fish hosts species or critical habitat, and actions subsequently listed species or for the slabside pearlymussel, are on State, tribal, local, or private lands designated critical habitat. known from this unit (PCE 5). that are not federally funded or Application of the ‘‘Adverse Within this unit, the slabside authorized, do not require section 7 Modification’’ Standard pearlymussel and its habitats may consultation. require special management As a result of section 7 consultation, The key factor related to the adverse considerations or protection to address we document compliance with the modification determination is whether, potential adverse effects associated with requirements of section 7(a)(2) through with implementation of the proposed agriculture, destabilized substrates, and our issuance of: Federal action, the affected critical nonpoint source pollution. (1) A concurrence letter for Federal habitat would continue to serve its actions that may affect, but are not intended conservation role for the Effects of Critical Habitat Designation likely to adversely affect, listed species species. Activities that may destroy or Section 7 Consultation or critical habitat; or adversely modify critical habitat are (2) A biological opinion for Federal those that alter the PBFs to an extent Section 7(a)(2) of the Act requires actions that may affect, or are likely to that appreciably reduces the Federal agencies, including the Service, adversely affect, listed species or critical conservation value of critical habitat for to ensure that any action they fund, habitat. fluted kidneyshell or slabside authorize, or carry out is not likely to When we issue a biological opinion pearlymussel. As discussed above, the jeopardize the continued existence of concluding that a project is likely to role of critical habitat is to support life- any endangered species or threatened jeopardize the continued existence of a history needs and provide for the species or result in the destruction or listed species and/or destroy or conservation of these species. adverse modification of designated adversely modify critical habitat, we Section 4(b)(8) of the Act requires us critical habitat of such species. In provide reasonable and prudent to briefly evaluate and describe, in any addition, section 7(a)(4) of the Act alternatives to the project, if any are proposed or final regulation that requires Federal agencies to confer with identifiable, that would avoid the designates critical habitat, activities the Service on any agency action which likelihood of jeopardy and/or involving a Federal action that may is likely to jeopardize the continued destruction or adverse modification of destroy or adversely modify such existence of any species listed under the critical habitat. We define ‘‘reasonable habitat, or that may be affected by such Act or result in the destruction or and prudent alternatives’’ (at 50 CFR designation. adverse modification of designated 402.02) as alternative actions identified Activities that may affect critical critical habitat. during consultation that: habitat, when carried out, funded, or Decisions by the 5th and 9th Circuit (1) Can be implemented in a manner authorized by a Federal agency, should Courts of Appeal have invalidated our consistent with the intended purpose of result in consultation for the fluted regulatory definition of ‘‘destruction or the action; kidneyshell or slabside pearlymussel. adverse modification’’ (50 CFR 402.02) (2) Can be implemented consistent These activities include, but are not (see Gifford Pinchot Task Force v. U.S. with the scope of the Federal agency’s limited to: Fish and Wildlife Service, 378 F. 3d legal authority and jurisdiction; (1) Actions that would alter the 1059 (9th Cir. 2004) and Sierra Club v. (3) Are economically and geomorphology of their stream and river U.S. Fish and Wildlife Service, 245 F.3d technologically feasible; and habitats. Such activities could include, 434 (5th Cir. 2001)), and we do not rely (4) Would, in the Director’s opinion, but are not limited to, instream on this regulatory definition when avoid the likelihood of jeopardizing the excavation or dredging, impoundment, analyzing whether an action is likely to continued existence of the listed species channelization, sand and gravel mining, destroy or adversely modify critical and/or avoid the likelihood of clearing riparian vegetation, and habitat. Under the provisions of the Act, destroying or adversely modifying discharge of fill materials. These the key factor in determining whether critical habitat. activities could cause aggradation or an action will destroy or adversely Reasonable and prudent alternatives degradation of the channel bed modify critical habitat is whether, with can vary from slight project elevation or significant bank erosion implementation of the proposed Federal modifications to extensive redesign or and result in entrainment or burial of action, the affected critical habitat relocation of the project. Costs these mussels and could cause other would continue to serve its intended associated with implementing a direct or cumulative adverse effects to conservation role for the species. reasonable and prudent alternative are these species and their life cycles. If a Federal action may affect a listed similarly variable. (2) Actions that would significantly species or its critical habitat, the Regulations at 50 CFR 402.16 require alter the existing flow regime where responsible Federal agency (action Federal agencies to reinitiate these species occur. Such activities agency) must enter into consultation consultation on previously reviewed could include, but are not limited to, with us. Examples of actions that are actions in instances where we have impoundment, urban development, subject to the section 7 consultation listed a new species or subsequently water diversion, water withdrawal,

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water draw-down, and hydropower or slabside pearlymussel pursuant to the Tennessee Ecological Services Field generation. These activities could section 4(a)(3)(B)(i) of the Act. Office directly (see FOR FURTHER eliminate or reduce the habitat INFORMATION CONTACT). Exclusions necessary for growth and reproduction The intent of the FEA is to evaluate of these mussels and their fish hosts. Application of Section 4(b)(2) of the Act the economic impacts of all potential conservation efforts for the fluted (3) Actions that would significantly Section 4(b)(2) of the Act states that kidneyshell and slabside pearlymussel; alter water chemistry or water quality the Secretary shall designate and make some of these costs will likely be (e.g., temperature, pH, contaminants, revisions to critical habitat on the basis incurred regardless of whether we and excess nutrients). Such activities of the best available scientific data after designate critical habitat (baseline). The could include, but are not limited to, taking into consideration the economic economic impact of the final critical hydropower discharges, or the release of impact, national security impact, and habitat designation is analyzed by chemicals, biological pollutants, or any other relevant impact of specifying comparing scenarios both ‘‘with critical heated effluents into surface water or any particular area as critical habitat. connected groundwater at a point habitat’’ and ‘‘without critical habitat.’’ The Secretary may exclude an area from The ‘‘without critical habitat’’ scenario source or by dispersed release (nonpoint critical habitat if she determines that the source). These activities could alter represents the baseline for the analysis, benefits of such exclusion outweigh the considering protections already in place water conditions that are beyond the benefits of specifying such area as part tolerances of these mussels and their for the species (e.g., under the Federal of the critical habitat, unless she listing and other Federal, State, and fish hosts or both, and result in direct determines, based on the best scientific or cumulative adverse effects to the local regulations). The baseline, data available, that the failure to therefore, represents the costs incurred species throughout their life cycles. designate such area as critical habitat (4) Actions that would significantly regardless of whether critical habitat is will result in the extinction of the alter stream bed material composition designated. The ‘‘with critical habitat’’ species. In making that determination, and quality by increasing sediment scenario describes the incremental the statute on its face, as well as the deposition or filamentous algal growth. impacts associated specifically with the legislative history, are clear that the Such activities could include, but are designation of critical habitat for the Secretary has broad discretion regarding not limited to, construction projects, species. The incremental conservation which factor(s) to use and how much gravel and sand mining, oil and gas efforts and associated impacts are those weight to give to any factor. development, coal mining, livestock not expected to occur absent the Under section 4(b)(2) of the Act, we designation of critical habitat for the grazing, timber harvest, and other may exclude an area from designated watershed and floodplain disturbances species. In other words, the incremental critical habitat based on economic costs are those attributable solely to the that release sediments or nutrients into impacts, impacts on national security, the water. These activities could designation of critical habitat above and or any other relevant impacts. In beyond the baseline costs; these are the eliminate or reduce habitats necessary considering whether to exclude a for the growth and reproduction of these costs we consider in the final particular area from the designation, we designation of critical habitat. The mussels or their fish hosts or both, by identify the benefits of including the causing excessive sedimentation and analysis forecasts both baseline and area in the designation, identify the incremental impacts likely to occur with burial of the species or their habitats, or benefits of excluding the area from the nutrification leading to excessive the designation of critical habitat. The designation, and evaluate whether the FEA provides estimated costs of the filamentous algal growth. Excessive benefits of exclusion outweigh the filamentous algal growth can cause foreseeable potential economic impacts benefits of inclusion. If the analysis of the critical habitat designation for reduced nighttime dissolved oxygen indicates that the benefits of exclusion levels through respiration, and prevent these two species over the next 20 years, outweigh the benefits of inclusion, the which was determined to be the juvenile mussels from settling into Secretary may exercise her discretion to stream sediments. appropriate period for analysis because exclude the area only if such exclusion planning information available to Exemptions would not result in the extinction of the forecast activity levels for projects species. Application of Section 4(a)(3) of the Act beyond a 20-year timeframe is limited. Exclusions Based on Economic Impacts The FEA also addresses how potential Section 4(a)(3)(B)(i) of the Act (16 economic impacts are likely to be U.S.C. 1533(a)(3)(B)(i)) provides that: Under section 4(b)(2) of the Act, we distributed, including an assessment of ‘‘The Secretary shall not designate as consider the economic impacts of any local or regional impacts of habitat critical habitat any lands or other specifying any particular area as critical conservation and the potential effects of geographical areas owned or controlled habitat. In order to consider economic conservation activities on government by the Department of Defense, or impacts, we prepared a DEA of the agencies, private businesses, and designated for its use, that are subject to proposed critical habitat designation individuals. Decision-makers can use an integrated natural resources and related factors (RTI International this information to assess whether the management plan [INRMP] prepared 2013a). The draft analysis was made effects of the designation might unduly under section 101 of the Sikes Act (16 available for public review from April burden a particular group or economic U.S.C. 670a), if the Secretary determines 29 through May 29, 2013 (78 FR 25041). sector. The FEA quantifies economic in writing that such plan provides a Following the close of the comment impacts of fluted kidneyshell and benefit to the species for which critical period, a final analysis of the potential slabside pearlymussel conservation habitat is proposed for designation.’’ economic effects of the designation efforts related to section 7 consultation There are no Department of Defense (FEA) was developed, taking into for the following categories of activity: lands with a completed INRMP within consideration the public comments and (1) Road maintenance and construction; the critical habitat designation. any new information (RTI International (2) dam operation; (3) commercial, Therefore, we are not exempting any 2013b). The FEA is summarized below industrial, residential, and associated lands from this final designation of and is available at http:// utility development; (4) agricultural and critical habitat for the fluted kidneyshell www.regulations.gov or by contacting recreational development; (5) mining;

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(6) Federal management plan Exclusions Based on National Security cooperation of stakeholders, such as administration; (7) State water quality Impacts other agencies, municipalities, and standards; and (8) restoration and Under section 4(b)(2) of the Act, we landowners, which is essential for conservation. The FEA evaluates consider whether there are lands owned eventual success of the reintroduced potential economic impacts of the or managed by the Department of population. When we designate a population as designation, considering land Defense where a national security experimental, section 10(j) of the Act ownership, reasonably foreseeable land impact might exist. In preparing this use activities, potential Federal agency requires that we determine whether that final rule, we have determined that no population is either essential or actions within the area and section 7 lands within the designation of critical nonessential to the continued existence consultation requirements, baseline habitat for the fluted kidneyshell and of the species, on the basis of the best conservation measures (i.e., measures slabside pearlymussel are owned or available information. Nonessential that would be implemented regardless managed by the Department of Defense, experimental populations (NEPs) of the critical habitat designation), and and, therefore, we anticipate no impact located outside National Wildlife Refuge incremental conservation measures (i.e., on national security. Consequently, the System or National Park System lands measures that would be attributed Secretary is not exerting her discretion are treated, for the purposes of section exclusively to the critical habitat to exclude any areas from the final 7 of the Act, as if they are proposed for designation). designation based on impacts on listing as a threatened species, while national security. The present value of the total within National Wildlife Refuges or incremental cost of critical habitat Exclusions Based on Other Relevant National Parks the species is treated as designation is estimated in the FEA at Impacts a threatened species. Threatened status allows us to develop special regulations $3.5 million over 20 years assuming a 7 Under section 4(b)(2) of the Act, we percent discount rate, or $175,000 on an under section 4(d) of the Act that we consider any other relevant impacts, in consider necessary and advisable for the annualized basis. Road maintenance addition to economic impacts and protection of the species. Moreover, and construction activities are likely to impacts on national security. We section 7(a)(2) of the Act, which be subject to the greatest incremental consider a number of factors, including requires Federal agencies to ensure that impacts at $1.94 million over 20 years, whether the landowners have developed their activities are not likely to followed by commercial, industrial, any HCPs or other management plans jeopardize the continued existence of a residential, and associated utility for the area, or whether there are listed species, would apply to the development at $1.1 million; restoration conservation partnerships that would be populations on National Wildlife Refuge and conservation at $221,000; mining at encouraged by designation of, or System and National Park System lands. $132,000; agricultural and recreational exclusion from, critical habitat. In On the other hand, experimental development at $75,900; Federal addition, we look at any tribal issues, populations determined to be management plan administration at and consider the government-to- ‘‘essential’’ to the survival of the species $24,200; dam operation at $21,500; and government relationship of the United would be treated as threatened species State water quality standards at $6,800. States with tribal entities. We also and remain subject to the consultation Approximately 55 percent of direct consider any social impacts that might provisions of section 7(a)(2) of the Act, incremental costs are estimated to result occur because of the designation. whether or not they are located on In preparing this final rule, we have from future consultations for road national wildlife refuges or parks. determined that there are currently no maintenance and construction projects. As mentioned earlier in the unit HCPs or other management plans that Please refer to the FEA (http:// descriptions and referenced in Table 3, specifically address management needs there are two NEPs for other listed www.regulations.gov at Docket No. for the fluted kidneyshell or slabside aquatic species that overlap with this FWS–R4–ES–2013–0026) for a more pearlymussel, and the final designation critical habitat designation: the NEP for detailed discussion of potential does not include any tribal lands or the yellowfin madtom in the North Fork economic impacts. trust resources. Therefore, we anticipate of the Holston River (53 FR 29335), An additional $400,000 in indirect no impact on tribal lands, HCPs, or which overlaps with Units FK12 and incremental costs associated with water other management plans from this SP1, and the NEP for 21 listed aquatic quality permitting for road maintenance critical habitat designation. species (including the yellowfin and construction is estimated for the Accordingly, the Secretary is not madtom) in the lower French Broad and unoccupied Unit FK3 (Rockcastle River, exercising her discretion to exclude any Holston Rivers (72 FR 52434), which Kentucky). Approximately 75 percent of areas from the final designation based overlaps with Units FK19 and FK20. the indirect incremental costs are on other relevant impacts. These NEPs were not established specifically for the conservation of the estimated to result from consultations in Nonessential Experimental Populations the three units that are not occupied by fluted kidneyshell or slabside other federally listed species (i.e., Wolf Section 10(j) of the Act provides for pearlymussel, which were candidate River and Town Branch, and West Fork the designation of specific reintroduced species when the NEP rules were Obey River, TN). populations of listed species as published, but rather to promote the ‘‘experimental populations.’’ This reintroduction of their target listed The FEA did not identify any section was designed to provide us with species into historical habitat. The NEPs disproportionate costs that are likely to an innovative means to introduce a would have to be amended through a result from the designation. listed species into unoccupied habitat rulemaking process to include the fluted Consequently, the Secretary is not within its historical range when doing kidneyshell or slabside pearlymussel. exerting her discretion to exclude any so would foster the conservation and The North Fork of the Holston River areas from this designation of critical recovery of the species. Experimental is considered occupied by both the habitat for the fluted kidneyshell or populations provide us with a flexible, slabside pearlymussel and the fluted slabside pearlymussel based on proactive means to meet recovery kidneyshell, presently contains economic impacts. criteria while maintaining the numerous PCEs (see Final Critical

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Habitat Designation above), and is flexibility analysis is required if the required to evaluate the potential therefore being designated as critical head of the agency certifies the rule will impacts to those entities not directly habitat. The lower Holston River (below not have a significant economic impact regulated. The designation of critical Cherokee Dam) and French Broad River on a substantial number of small habitat for an endangered or threatened (below Douglas Dam) are being entities. The SBREFA amended the RFA species only has a regulatory effect designated as unoccupied habitat for the to require Federal agencies to provide a where a Federal action agency is fluted kidneyshell because we have certification statement of the factual involved in a particular action that may determined these river reaches are basis for certifying that the rule will not affect the designated critical habitat. essential to the conservation of the have a significant economic impact on Under these circumstances, only the species (see Criteria Used To Identify a substantial number of small entities. Federal action agency is directly Critical Habitat above for our rationale). In this final rule, we are certifying that regulated by the designation, and, Both rivers provide some of the last the critical habitat designation for fluted therefore, consistent with the Service’s remaining large river habitat for the kidneyshell and slabside pearlymussel current interpretation of RFA and recent fluted kidneyshell. Since the NEPs do will not have a significant economic case law, the Service may limit its not provide any level of protection to impact on a substantial number of small evaluation of the potential impacts to the fluted kidneyshell or slabside entities. The following discussion those identified for Federal action pearlymussel, the Secretary is not explains our rationale. agencies. Under this interpretation, exercising her discretion to exclude any According to the Small Business there is no requirement under the RFA areas from the final designation based Administration, small entities include to evaluate the potential impacts to on the presence of existing NEPs. small organizations such as entities not directly regulated, such as independent nonprofit organizations; small businesses. However, Executive Required Determinations small governmental jurisdictions, Orders 12866 and 13563 direct Federal Regulatory Planning and Review including school boards and city and agencies to assess costs and benefits of (Executive Orders 12866 and 13563) town governments that serve fewer than available regulatory alternatives in 50,000 residents; and small businesses quantitative (to the extent feasible) and Executive Order 12866 provides that (13 CFR 121.201). Small businesses qualitative terms. Consequently, it is the the Office of Information and Regulatory include such businesses as current practice of the Service to assess Affairs (OIRA) will review all significant manufacturing and mining concerns to the extent practicable these potential rules. The Office of Information and with fewer than 500 employees, impacts if sufficient data are available, Regulatory Affairs has determined that wholesale trade entities with fewer than whether or not this analysis is believed this rule is not significant. 100 employees, retail and service by the Service to be strictly required by Executive Order 13563 reaffirms the businesses with less than $5 million in the RFA. In other words, while the principles of E.O. 12866 while calling annual sales, general and heavy effects analysis required under the RFA for improvements in the nation’s construction businesses with less than is limited to entities directly regulated regulatory system to promote $27.5 million in annual business, by the rulemaking, the effects analysis predictability, to reduce uncertainty, special trade contractors doing less than under the Act, consistent with the E.O. and to use the best, most innovative, $11.5 million in annual business, and regulatory analysis requirements, can and least burdensome tools for agricultural businesses with annual take into consideration impacts to both achieving regulatory ends. The sales less than $750,000. To determine directly and indirectly impacted executive order directs agencies to if potential economic impacts on these entities, where practicable and consider regulatory approaches that small entities are significant, we reasonable. reduce burdens and maintain flexibility consider the types of activities that In conclusion, based on our and freedom of choice for the public might trigger regulatory impacts under interpretation of directly regulated where these approaches are relevant, this rule, as well as the types of project entities under the RFA and relevant case feasible, and consistent with regulatory modifications that may result. In law, this designation of critical habitat objectives. E.O. 13563 emphasizes general, the term ‘‘significant economic will only directly regulate Federal further that regulations must be based impact’’ is meant to apply to a typical agencies which are not by definition on the best available science and that small business firm’s business small business entities. As such, we the rulemaking process must allow for operations. certify that this designation of critical public participation and an open Importantly, the incremental impacts habitat will not have a significant exchange of ideas. We have developed of a rule must be both significant and economic impact on a substantial this rule in a manner consistent with substantial to prevent certification of the number of small business entities. these requirements. rule under the RFA and to require the Therefore, a regulatory flexibility preparation of an initial regulatory Regulatory Flexibility Act (5 U.S.C. 601 analysis is not required. However, flexibility analysis. If a substantial et seq.) though not necessarily required by the number of small entities are affected by RFA, in our FEA for this rule we Under the Regulatory Flexibility Act the critical habitat designation, but the considered and evaluated the potential (RFA) as amended by the Small per-entity economic impact is not effects to third parties that may be Business Regulatory Enforcement significant, the Service may certify. involved with consultations with Fairness Act (SBREFA) of 1996 (5 U.S.C Likewise, if the per-entity economic Federal action agencies related to this 801 et seq.), whenever an agency must impact is likely to be significant, but the action. publish a notice of rulemaking for any number of affected entities is not Designation of critical habitat only proposed or final rule, it must prepare substantial, the Service may also certify. affects activities authorized, funded, or and make available for public comment The Service’s current understanding carried out by Federal agencies. Some a regulatory flexibility analysis that of recent case law is that Federal kinds of activities are unlikely to have describes the effects of the rule on small agencies are only required to evaluate any Federal involvement and so will not entities (small businesses, small the potential impacts of rulemaking on be affected by critical habitat organizations, and small government those entities directly regulated by the designation. In areas where the species jurisdictions). However, no regulatory rulemaking; therefore, they are not are present, Federal agencies already are

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required to consult with us under impact on a substantial number of small no significant adverse impacts to energy section 7 of the Act on activities they entities, and a regulatory flexibility production in any of the major sectors. authorize, fund, or carry out that may analysis is not required. Thus, based on information in the affect fluted kidneyshell or slabside economic analysis, no energy-related Energy Supply, Distribution, or Use— pearlymussel. Federal agencies also impacts associated with fluted Executive Order 13211 must consult with us if their activities kidneyshell and slabside pearlymussel may affect critical habitat. Designation Executive Order 13211 (Actions conservation activities within critical of critical habitat, therefore, could result Concerning Regulations that habitat are expected. As such, the in an additional economic impact on Significantly Affect Energy Supply, designation of critical habitat is not small entities due to the requirement to Distribution, or Use) requires agencies expected to significantly affect energy reinitiate consultation for ongoing to prepare Statements of Energy Effects supplies, distribution, or use. Therefore, Federal activities (see Application of the when undertaking certain actions. OMB this action is not a significant energy ‘‘Adverse Modification’’ Standard has provided guidance for action, and no Statement of Energy section). implementing this Executive Order that Effects is required. In our FEA of the critical habitat outlines nine outcomes that may designation (see ‘‘Exclusions Based on constitute ‘‘a significant adverse effect’’ Unfunded Mandates Reform Act Economic Impacts,’’ above), we when compared to not taking the In accordance with the Unfunded evaluated the potential economic effects regulatory action under consideration, Mandates Reform Act (2 U.S.C. 1501 et on small business entities resulting from which include: (1) Reductions in crude seq.), we make the following findings: conservation actions related to the oil supply in excess of 10,000 barrels (1) This rule will not produce a designation of critical habitat of the per day; (2) reductions in fuel Federal mandate. In general, a Federal fluted kidneyshell and slabside production in excess of 4,000 barrels per mandate is a provision in legislation, pearlymussel (RTI 2013). The analysis is day; (3) reductions in coal production in statute, or regulation that would impose based on the estimated impacts excess of 5 million tons per year; (4) an enforceable duty upon State, local, or associated with the rulemaking as reductions in natural gas production in Tribal governments, or the private described in Appendix A of the FEA excess of 25 million cubic feet per year; sector, and includes both ‘‘Federal and evaluates the potential for economic (5) reductions in electricity production intergovernmental mandates’’ and impacts related to: Commercial, in excess of 1 billion kilowatt hours per ‘‘Federal private sector mandates.’’ industrial, residential, and associated year or in excess of 500 megawatts of These terms are defined in 2 U.S.C. utility development; agricultural and installed capacity; (6) increases in 658(5)–(7). ‘‘Federal intergovernmental recreational development; mining; and energy use required by the regulatory mandate’’ includes a regulation that restoration and conservation. action that exceed thresholds (1) ‘‘would impose an enforceable duty The incremental costs over 20 years at through (6) above; (7) increases in the upon State, local, or [T]ribal a 7 percent discount rate for project cost of energy production in excess of governments’’ with two exceptions. It proponents in unoccupied critical one percent; (8) increases in the cost of excludes ‘‘a condition of Federal habitat units are estimated to be: energy distribution in excess of one assistance.’’ It also excludes ‘‘a duty $785,802 for commercial, industrial, percent; and (9) other similarly adverse arising from participation in a voluntary residential, and associated utility outcomes. Federal program,’’ unless the regulation development; $26,395 for agricultural Appendix A of the FEA discusses the ‘‘relates to a then-existing Federal and recreational development; $6,169 potential for critical habitat to affect the program under which $500,000,000 or for mining; and $89,927 for restoration energy industry through the additional more is provided annually to State, and conservation. In summary, this FEA cost of considering adverse modification local, and [T]ribal governments under estimates a worst case scenario of in section 7 consultation. For coal entitlement authority,’’ if the provision approximately $908,000 in impacts to production, we estimated incremental would ‘‘increase the stringency of all small businesses within the study costs of $132,000 over the next 20 years conditions of assistance’’ or ‘‘place caps region over 20 years, discounted at 7 (7 percent discount rate), with 11 upon, or otherwise decrease, the Federal percent, with an annualized cost of consultations anticipated annually. Government’s responsibility to provide approximately $85,736 across all Based on crude oil and natural gas funding,’’ and the State, local, or tribal entities. It is unlikely that increased production levels occurring within governments ‘‘lack authority’’ to adjust annual costs at these levels will have a critical habitat units and consultation accordingly. At the time of enactment, significant mpact on small entities in history for these activities, we do not these entitlement programs were: either occupied or unoccupied critical expect the designation of critical habitat Medicaid; Aid to Families with habitat units. Please refer to the FEA of for these two species to reduce Dependent Children (AFDC) work the critical habitat designation for a production in excess of ‘‘significant programs; Child Nutrition; Food more detailed discussion of potential adverse effects’’ levels set by OMB. Stamps; Social Services Block Grants; economic impacts (RTI 2013). Finally, critical habitat designation is Vocational Rehabilitation State Grants; In summary, we considered whether not expected to result in the closure of Foster Care, Adoption Assistance, and this designation will result in a any hydroelectric facilities, so impacts Independent Living; Family Support significant economic effect on a to generation capacity are not Welfare Services; and Child Support substantial number of small entities. anticipated. Total incremental costs to Enforcement. ‘‘Federal private sector Based on the above reasoning and hydroelectric dams are estimated at mandate’’ includes a regulation that currently available information, we approximately $21,000 over 20 years (7 ‘‘would impose an enforceable duty conclude that this rule will not result in percent discount rate). Overall, the upon the private sector, except (i) a a significant economic impact on a additional costs are unlikely to increase condition of Federal assistance or (ii) a substantial number of small entities. the costs of energy production or duty arising from participation in a Therefore, we are certifying that the distribution in the United States in voluntary Federal program.’’ designation of critical habitat for fluted excess of one percent. The designation of critical habitat kidneyshell and slabside pearlymussel The energy analysis completed in the does not impose a legally binding duty will not have a significant economic FEA and summarized above highlights on non-Federal entities or private

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parties. Under the Act, the only Federalism—Executive Order 13132 of the Order. We are designating critical regulatory effect is that Federal agencies In accordance with Executive Order habitat in accordance with the must ensure that their actions do not 13132 (Federalism), this rule does not provisions of the Act. To assist the destroy or adversely modify critical have significant Federalism effects. A public in understanding the habitat habitat under section 7 of the Act. While federalism summary impact statement is needs of the species, the rule identifies non-Federal entities that receive Federal not required. In keeping with the elements of PBFs essential to the funding, assistance, or permits, or that Department of the Interior and conservation of the fluted kidneyshell otherwise require approval or Department of Commerce policy, we and slabside pearlymussel. The authorization from a Federal agency for requested information from, and designated areas of critical habitat are presented on maps, and the rule an action, may be indirectly impacted coordinated development of, this provides several options for the by the designation of critical habitat, the critical habitat designation with interested public to obtain more legally binding duty to avoid appropriate State resource agencies in detailed location information, if desired. destruction or adverse modification of Alabama, Kentucky, Mississippi, critical habitat rests squarely on the Tennessee, and Virginia. We did not Paperwork Reduction Act of 1995 Federal agency. Furthermore, to the receive any comments from any State This rule does not contain any new extent that non-Federal entities are agencies on the proposed rule. From a collections of information that require indirectly impacted because they federalism perspective, the designation approval by OMB under the Paperwork receive Federal assistance or participate of critical habitat directly affects only Reduction Act of 1995 (44 U.S.C. 3501 in a voluntary Federal aid program, the the responsibilities of Federal agencies. et seq.). This rule will not impose Unfunded Mandates Reform Act would The Act imposes no other duties with recordkeeping or reporting requirements not apply, nor would critical habitat respect to critical habitat, either for on State or local governments, shift the costs of the large entitlement States and local governments, or for individuals, businesses, or programs listed above onto State anyone else. As a result, the rule does organizations. An agency may not governments. not have substantial direct effects either conduct or sponsor, and a person is not on the States, or on the relationship (2) This rule will not significantly or required to respond to, a collection of between the national government and uniquely affect small governments information unless it displays a the States, or on the distribution of because these mussel species occur currently valid OMB control number. powers and responsibilities among the primarily in State-owned river channels various levels of government. The National Environmental Policy Act or in remote privately owned stream designation may have some benefit to It is our position that, outside the channels. The designation of critical these governments because the areas jurisdiction of the U.S. Court of Appeals habitat imposes no obligations on State that contain the features essential to the for the Tenth Circuit, we do not need to or local governments. By definition, conservation of the species are more prepare environmental analyses Federal agencies are not considered clearly defined, and the physical and pursuant to the National Environmental small entities, although the activities biological features of the habitat Policy Act (42 U.S.C. 4321 et seq.) in they fund or permit may be proposed or necessary to the conservation of the connection with designating critical carried out by small entities. species are specifically identified. This habitat under the Act. We published a Consequently, the critical habitat information does not alter where and notice outlining our reasons for this designation will not significantly or what federally sponsored activities may determination in the Federal Register uniquely affect small government occur. However, it may assist these local on October 25, 1983 (48 FR 49244). This entities. Therefore, a Small Government governments in long-range planning position was upheld by the U.S. Court Agency Plan is not required. (because these local governments no of Appeals for the Ninth Circuit Takings—Executive Order 12630 longer have to wait for case-by-case (Douglas County v. Babbitt, 48 F.3d section 7 consultations to occur). 1495 (9th Cir. 1995), cert. denied 516 In accordance with Executive Order Where State and local governments U.S. 1042 (1996)). require approval or authorization from a 12630 (Government Actions and Government-to-Government Federal agency for actions that may Interference with Constitutionally Relationship With Tribes Protected Private Property Rights), we affect critical habitat, consultation have analyzed the potential takings under section 7(a)(2) would be required. In accordance with the President’s implications of designating critical While non-Federal entities that receive memorandum of April 29, 1994, habitat for the fluted kidneyshell and Federal funding, assistance, or permits, Government-to-Government Relations slabside pearlymussel in a takings or that otherwise require approval or with Native American Tribal implications assessment. authorization from a Federal agency for Governments (59 FR 22951), E.O. 13175, an action, may be indirectly impacted and the Department of the Interior’s Critical habitat designation does not by the designation of critical habitat, the manual at 512 DM 2, we readily affect landowner actions that do not legally binding duty to avoid acknowledge our responsibility to require Federal funding or permits, nor destruction or adverse modification of communicate meaningfully with does it preclude development of habitat critical habitat rests squarely on the recognized Federal Tribes on a conservation programs or issuance of Federal agency. government-to-government basis. In incidental take permits to permit actions accordance with Secretarial Order 3206 that do require Federal funding or Civil Justice Reform—Executive Order of June 5, 1997 (American Indian Tribal permits to go forward. Based on the best 12988 Rights, Federal-Tribal Trust available information, the takings In accordance with Executive Order Responsibilities, and the Endangered implications assessment concludes that 12988 (Civil Justice Reform), the Office Species Act), we readily acknowledge the designation of critical habitat for the of the Solicitor has determined that the our responsibilities to work directly fluted kidneyshell and slabside rule does not unduly burden the judicial with Tribes in developing programs for pearlymussel does not pose significant system and that it meets the healthy ecosystems, to acknowledge that takings implications. requirements of sections 3(a) and 3(b)(2) tribal lands are not subject to the same

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controls as Federal public lands, to from the Tennessee Ecological Services PART 17—[AMENDED] remain sensitive to Indian culture, and Field Office (see FOR FURTHER to make information available to Tribes. INFORMATION CONTACT). ■ 1. The authority citation for part 17 We have determined that there are no Authors continues to read as follows: Tribal lands currently occupied by the Authority: 16 U.S.C. 1361–1407; 1531– species that contain the PBFs essential The primary authors of this rule are the staff members of the Tennessee 1544; 4201–4245, unless otherwise noted. to the conservation of these species, and Ecological Services Field Office. no Tribal lands unoccupied by the ■ 2. Amend § 17.11(h) by adding entries fluted kidneyshell and slabside List of Subjects in 50 CFR Part 17 for ‘‘Kidneyshell, fluted’’ and pearlymussel that are essential for the Endangered and threatened species, ‘‘Pearlymussel, slabside’’ in alphabetical conservation of these two species. Exports, Imports, Reporting and order under ‘‘CLAMS’’ to the List of Therefore, we are not designating recordkeeping requirements, Endangered and Threatened Wildlife to critical habitat for these species on Transportation. read as follows: Tribal lands. Regulation Promulgation References Cited § 17.11 Endangered and threatened Accordingly, we amend part 17, wildlife. A complete list of references cited is subchapter B of chapter I, title 50 of the * * * * * available on the Internet at http:// Code of Federal Regulations, as set forth www.regulations.gov and upon request below: (h) * * *

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

*******

■ 3. In § 17.95, amend paragraph (f) by Washington, and Wythe Counties, (iv) Water quality with low levels of adding entries for ‘‘Fluted Kidneyshell Virginia. pollutants and including a natural (Ptychobranchus subtentum)’’ and (2) Within these areas, the primary temperature regime, pH (between 6.0 to ‘‘Slabside Pearlymussel (Pleuronaia constituent elements of the physical or 8.5), oxygen content (not less than 5.0 dolabelloides)’’ in that order biological features essential to the milligrams/liter), hardness, and immediately following the entry for conservation of fluted kidneyshell turbidity necessary for normal behavior, Altamaha spinymussel (Elliptio consist of five components: growth, and viability of all life stages. spinosa), to read as follows: (i) Riffle habitats within large, (v) The presence of abundant fish geomorphically stable stream channels hosts, which may include the barcheek § 17.95 Critical habitat—fish and wildlife. (channels that maintain lateral darter, fantail darter, rainbow darter, * * * * * dimensions, longitudinal profiles, and redline darter, bluebreast darter, dusky (f) Clams and Snails. sinuosity patterns over time without an darter and banded sculpin, necessary for * * * * * aggrading or degrading bed elevation). recruitment of the fluted kidneyshell. (ii) Stable substrates of sand, gravel, (3) Critical habitat does not include Fluted Kidneyshell (Ptychobranchus and cobble with low to moderate manmade structures (such as buildings, subtentum) amounts of fine sediment and aqueducts, dams, roads, and other (1) Critical habitat units are depicted containing flow refugia with low shear paved areas) and the land on which they on the maps below for Limestone stress. are located existing within the legal County, Alabama; Jackson, Laurel, (iii) A natural hydrologic flow regime boundaries on October 28, 2013. McCreary, Pulaski, Rockcastle, and (magnitude, frequency, duration, and (4) Critical habitat map units. Data Wayne Counties, Kentucky; Bedford, seasonality of discharge over time) layers defining map units were created Claiborne, Cocke, Fentress, Franklin, necessary to maintain benthic habitats with USGS National Hydrography Giles, Grainger, Greene, Hamblen, where the species is found, and Dataset (NHD∂) GIS data. The 1:100,000 Hancock, Hickman, Humphreys, connectivity of rivers with the river reach (route) files were used to Jefferson, Knox, Lincoln, Marshall, floodplain, allowing the exchange of calculate river kilometers and miles. Maury, Moore, Morgan, Overton, Perry, nutrients and sediment for habitat ESRIs ArcGIS 10.0 software was used to Pickett, Polk, Scott, and Sevier maintenance, food availability for all determine longitude and latitude Counties, Tennessee; and Bland, Lee, life stages, and spawning habitat for coordinates using decimal degrees. The Russell, Scott, Smyth, Tazewell, native fishes. projection used in mapping all units

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was USA Contiguous Albers Equal Area maps. The maps in this entry, as Office. You may obtain field office Conic USGS version, NAD 83, meters. modified by any accompanying location information by contacting one The following data sources were regulatory text, establish the boundaries of the Service regional offices, the referenced to identify features (like of the critical habitat designation. The addresses of which are listed at 50 CFR roads and streams) used to delineate the coordinates or plot points or both on 2.2. upstream and downstream extents of which each map is based are available ∂ (5) An overview of critical habitat critical habitat units: NHD flowline to the public at the field office Internet and waterbody data, 2011 Navteq roads site (http://www.fws.gov/cookeville), at locations for the fluted kidneyshell in data, USA Topo ESRI online basemap http://www.regulations.gov at Docket Alabama, Tennessee, Kentucky, and service, DeLorme Atlas and Gazetteers, No. FWS–R4–ES–2013–0026, and at the Virginia follows: and USGS 7.5 minute topographic Service’s Tennessee Fish and Wildlife BILLING CODE 4310–55–P

(6) Unit FK1: Horse Lick Creek, (rmi)) of Horse Lick Creek, in Rockcastle Clover Bottom Creek (¥84.12200, Rockcastle and Jackson Counties, and Jackson Counties, KY. It includes 37.40879). Kentucky. the mainstem of Horse Lick Creek from (ii) Map of Units FK1 and FK2 (i) The unit includes approximately its confluence with the Rockcastle River follows: 19 river kilometers (rkm) (12 river miles (¥84.13780, 37.31991) upstream to

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(7) Unit FK2: Middle Fork Rockcastle (ii) Map of Units FK1 and FK2 is Cumberland near its confluence with River, Jackson County, Kentucky. provided at paragraph (6)(ii) of this Cane Creek along the Laurel and Pulaski (i) The unit includes 12.5 rkm (7.7 entry. County line, KY (¥84.30594, 37.03423), rmi) of the Middle Fork Rockcastle (8) Unit FK3: Rockcastle River, upstream to its confluence with Horse River from its confluence with the Pulaski, Laurel, and Rockcastle Lick Creek along the Laurel and ¥ Rockcastle River ( 84.11895, 37.33581) Counties, Kentucky. Rockcastle County line, KY (¥84.13766, upstream to its confluence with Indian (i) The unit includes approximately 37.31944). Creek and Laurel Fork (¥84.04897, 70 rkm (43 rmi) of the Rockcastle River 37.36765) in Jackson County, KY. from the backwaters of Lake (ii) Map of Unit FK3 follows:

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(9) Unit FK4: Buck Creek, Pulaski (i) This unit includes 61 rkm (38 rmi) Route 328 (¥84.55492, 37.32430), County, Kentucky. of Buck Creek from State Route 192 Pulaski County, KY. (¥84.42681, 37.05977) upstream to (ii) Map of Unit FK4 follows:

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(10) Unit FK5: Rock Creek, McCreary confluence with White Oak Creek 15.9) (¥84.58888, 36.70800) in County, Kentucky. (¥84.69103, 36.65145) upstream to the McCreary County, KY. (i) The unit includes approximately low water crossing at rkm 25.6 (rmi (ii) Map of Units FK5 and FK6 19 rkm (12 rmi) of Rock Creek from its follows:

(11) Unit FK6: Little South Fork with the Big South Fork Cumberland (¥84.85344, 36.62588) in Wayne Cumberland River, McCreary and River (¥84.58269, 36.82690), where it is County, KY. Wayne Counties, Kentucky. the dividing line between Wayne and (ii) Map of Units FK5 and FK6 is provided at paragraph (10)(ii) of this (i) The unit includes 65.5 rkm (40.7 McCreary Counties, upstream to its confluence with Dobbs Creek entry. rmi) of the Little South Fork (12) Unit FK7: Big South Fork Cumberland River from its confluence Cumberland River, Fentress, Morgan,

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and Scott Counties, Tennessee, and Fork and New River (¥84.62394, line, TN. This unit also includes 14.7 McCreary County, Kentucky. 36.42475), Scott County, TN. This unit rkm (9.1 rmi) of the New River from its (i) The unit includes approximately also includes 32.3 rkm (20.0 rmi) of confluence with the Big South Fork 45 rkm (28 rmi) of the Big South Fork Clear Fork from its confluence with the (¥84.62394, 36.42475) upstream to the of the Cumberland River from its Big South Fork and New River Highway 27 Bridge crossing ¥ confluence with Laurel Crossing Branch ( 84.62394, 36.42475) in Scott County, (¥84.55290, 36.38279) in Scott County, ¥ downstream of Big Shoals ( 84.53642, TN, upstream to its confluence with TN. 36.64114), McCreary County, KY, Crooked Creek (¥84.78637, 36.32533) upstream to its confluence with Clear along the Fentress and Morgan County (ii) Map of Unit FK7 follows:

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(13) Unit FK8: Wolf River and Town (¥85.14414, 36.60670) in Pickett Branch from its confluence with Wolf Branch, Pickett and Fentress Counties, County, TN, upstream to its confluence River (¥85.11787, 36.58321) upstream Tennessee. with Delk Creek (¥84.91064, 36.52784) to its headwaters (¥85.12136, 36.55947) (i) The unit includes 41.0 rkm (25.5 in Fentress County, TN. This unit also in Pickett County, TN. rmi) of the Wolf River from its includes 3.4 rkm (2.0 rmi) of Town (ii) Map of Unit FK8 follows: inundation at Dale Hollow Lake

(14) Unit FK9: West Fork Obey River, River from the Highway 52 Bridge Hollow Creek (¥85.20747, 36.25989) in Overton County, Tennessee. crossing (¥85.17410, 36.39731) Overton County, TN. (i) The unit includes approximately upstream to its confluence with Dry (ii) Map of Unit FK9 follows: 19 rkm (12 rmi) of the West Fork Obey

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(15) Unit FK10: Indian Creek, the Clinch River (¥81.76608, 37.08893) (¥81.71975, 37.11206) in Tazewell Tazewell County, Virginia. upstream to the fourth Norfolk Southern County, VA. (i) The unit includes 6.7 rkm (4.2 rmi) Railroad crossing at Van Dyke (ii) Map of Units FK10 and FK11 of Indian Creek from its confluence with follows:

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(16) Unit FK11: Little River, Russell (¥81.67240, 37.03760) in Tazewell (i) The unit includes approximately and Tazewell Counties, Virginia. County, VA. 67 rkm (42 rmi) of the North Fork (i) The unit includes approximately (ii) Map of Units FK10 and FK11 is Holston River from its confluence with 50 rkm (31 rmi) of Little River from its provided at paragraph (15)(ii) of this Beaver Creek (¥81.70277, 36.90825), confluence with the Clinch River entry. upstream of Saltville, in Smyth County, (¥81.92582, 37.00223) in Russell (17) Unit FK12: North Fork Holston VA, upstream to Ceres (¥81.33775, County, VA, upstream to its confluence River, Smyth and Bland Counties, 37.01035), Bland County, VA. with Liberty and Maiden Spring Creeks Virginia. (ii) Map of Unit FK12 follows:

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(18) Unit FK13: Middle Fork Holston (i) The unit includes approximately 36.66338) in Washington County, VA, River, Washington, Smyth, and Wythe 89 rkm (55 rmi) of the Middle Fork upstream to its headwaters (¥81.31345, Counties, Virginia. Holston River from its inundation at 36.88666) in Wythe County, VA. South Holston Lake (¥81.90427, (ii) Map of Unit FK13 follows:

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(19) Unit FK14: Big Moccasin Creek, from the Highway 71 Bridge crossing crossing (¥82.32348, 36.73740) near Scott and Russell Counties, Virginia. (¥82.48361, 36.69109) in Scott County, Collinwood in Russell County, VA. (i) The unit includes approximately VA, upstream to the Route 612 Bridge (ii) Map of Unit FK14 follows: 33 rkm (21 rmi) of Big Moccasin Creek

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(20) Unit FK15: Copper Creek, Scott confluence with the Clinch River (¥82.43514, 36.73473) in Scott County, County, Virginia. (¥82.74538, 36.65544) upstream to the VA. (i) The unit includes 55.5 rkm (34.5 Highway 71 Bridge crossing (ii) Map of Unit FK15 follows: rmi) of Copper Creek from its

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(21) Unit FK16: Clinch River, (i) The unit includes approximately upstream to its confluence with Indian Hancock County, Tennessee, and Scott, 263 rkm (163 rmi) of the Clinch River Creek near Cedar Bluff (¥81.74999, Russell, and Tazewell Counties, from rkm 255 (rmi 159) immediately 37.07995), Tazewell County, VA. ¥ Virginia. below Grissom Island ( 83.40106, (ii) Map of Unit FK16 follows: 36.43081) in Hancock County, TN,

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(22) Unit FK17: Powell River, from the U.S. 25E Bridge (¥83.63102, Rock Island in the vicinity of Pughs) in Claiborne and Hancock Counties, 36.54143) in Claiborne County, TN, Lee County, VA. Tennessee, and Lee County, Virginia. upstream to rkm 256 (rmi 159) (ii) Map of Unit FK17 follows: (i) The unit includes approximately (¥82.98111, 36.75730, upstream of 153 rkm (95 rmi) of the Powell River

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(23) Unit FK18: Nolichucky River, from rkm 14 (rmi 9), approximately 0.6 Creek, just upstream of the Highway 321 Cocke, Hamblen, and Greene Counties, rkm (0.4 rmi) upstream of Enka Dam Bridge crossing (¥82.92926, 36.07545), Tennessee. (¥83.19630, 36.12970), where it divides in Greene County, TN. (i) The unit includes approximately Hamblen and Cocke Counties, TN, (ii) Map of Unit FK18 follows: 52 rkm (32 rmi) of the Nolichucky River upstream to its confluence with Pigeon

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(24) Unit FK19: Holston River, Knox, from its confluence with the French (¥83.49855, 36.16666) along the Grainger, and Jefferson Counties, Broad River (¥83.84967, 35.95903) in Grainger and Jefferson County, TN, line. Tennessee. Knox County, TN, upstream to the base (ii) Map of Units FK19 and FK20 (i) The unit includes approximately of Cherokee Dam at rkm 83.7 (rmi 52.3) follows: 85 rkm (53 rmi) of the Holston River

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(25) Unit FK20: French Broad River, (¥83.53821, 35.96073) in Sevier (i) The unit includes approximately Knox and Sevier Counties, Tennessee. County, TN. 24 rkm (15 rmi) of the Hiwassee River (i) The unit includes approximately from the Highway 315 Bridge crossing (ii) Map of Units FK19 and FK20 is ¥ 56 rkm (35 rmi) of the French Broad provided at paragraph (24)(ii) of this ( 84.50234, 35.18875) upstream to the River from its confluence with the entry. Highway 68 Bridge crossing Holston River (¥83.84967, 35.95903) in (¥84.31728, 35.16811) in Polk County, Knox County, TN, upstream to the base (26) Unit FK21: Hiwassee River, Polk TN. of Douglas Dam at rkm 51.7 (rmi 32.3) County, Tennessee. (ii) Map of Unit FK21 follows:

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(27) Unit FK22: Elk River, Limestone (i) The unit includes approximately with Farris Creek (¥86.31996, County, Alabama, and Giles, Lincoln, 164 rkm (102 rmi) of the Elk River from 35.16288) at the dividing line between Franklin, and Moore Counties, its inundation at Wheeler Lake Franklin and Moore Counties, TN. ¥ Tennessee. ( 87.06503, 34.89788) in Limestone (ii) Map of Unit FK22 follows: County, AL, upstream to its confluence

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(28) Unit FK23: Duck River, (i) The unit includes approximately County, TN, upstream to its confluence Humphreys, Perry, Hickman, Maury, 348 rkm (216 rmi) of the Duck River with Flat Creek (¥86.48778, 35.47209) Marshall, and Bedford Counties, from its inundation at Kentucky Lake near Shelbyville in Bedford County, TN. Tennessee. (¥87.88011, 36.00244) in Humphreys (ii) Map of Unit FK23 follows:

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(29) Unit FK24: Buffalo River, (i) The unit includes 50 rkm (31 rmi) upstream to its confluence with Cane Humphreys and Perry Counties, of the Buffalo River from its confluence Creek (¥87.78718, 35.72298) in Perry Tennessee. with the Duck River (¥87.84261, County, TN. 35.99477) in Humphreys County, TN, (ii) Map of Unit FK24 follows:

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Slabside Pearlymussel (Pleuronaia (2) Within these areas, the primary containing flow refugia with low shear dolabelloides) constituent elements of the physical or stress. (1) Critical habitat units are depicted biological features essential to the (iii) A natural hydrologic flow regime on the maps below for Colbert, Jackson, conservation of slabside pearlymussel (magnitude, frequency, duration, and Limestone, Madison, and Marshall consist of five components: seasonality of discharge over time) Counties, Alabama; Tishomingo County, (i) Riffle habitats within large, necessary to maintain benthic habitats Mississippi; Bedford, Bledsoe, geomorphically stable stream channels where the species is found, and Claiborne, Cocke, Franklin, Giles, (channels that maintain lateral connectivity of rivers with the Greene, Hamblen, Hancock, Hickman, dimensions, longitudinal profiles, and floodplain, allowing the exchange of Humphreys, Lincoln, Marion, Marshall, sinuosity patterns over time without an nutrients and sediment for habitat maintenance, food availability for all Maury, Moore, Perry, Polk, and aggrading or degrading bed elevation). Sequatchie Counties, Tennessee; and life stages, and spawning habitat for Bland, Lee, Russell, Scott, Smyth, (ii) Stable substrates of sand, gravel, native fishes. Tazewell, Washington, and Wythe and cobble with low to moderate (iv) Water quality with low levels of Counties, Virginia. amounts of fine sediment and pollutants and including a natural

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temperature regime, pH (between 6.0 to with USGS National Hydrography any accompanying regulatory text, 8.5), oxygen content (not less than 5.0 Dataset (NHD+) GIS data. The 1:100,000 establish the boundaries of the critical milligrams/liter), hardness, and river reach (route) files were used to habitat designation. The coordinates or turbidity necessary for normal behavior, calculate river kilometers and miles. plot points or both on which each map growth, and viability of all life stages. ESRIs ArcGIS 10.0 software was used to is based are available to the public at the (v) The presence of abundant fish determine longitude and latitude field office Internet site (http:// hosts, which may include the popeye coordinates using decimal degrees. The www.fws.gov/cookeville), at http:// shiner, rosyface shiner, saffron shiner, projection used in mapping all units www.regulations.gov at Docket No. silver shiner, telescope shiner, was USA Contiguous Albers Equal Area FWS–R4–ES–2013–0026, and at the Tennessee shiner, whitetail shiner, Conic USGS version, NAD 83, meters. Service’s Tennessee Fish and Wildlife white shiner, and eastern blacknose dace, necessary for recruitment of the The following data sources were Office. You may obtain field office slabside pearlymussel. referenced to identify features (like location information by contacting one (3) Critical habitat does not include roads and streams) used to delineate the of the Service regional offices, the manmade structures (such as buildings, upstream and downstream extents of addresses of which are listed at 50 CFR aqueducts, dams, roads, and other critical habitat units: NHD+ flowline and 2.2. paved areas) and the land on which they waterbody data, 2011 Navteq roads data, (5) An overview of critical habitat are located existing within the legal USA Topo ESRI online basemap service, locations for the slabside pearlymussel boundaries on October 28, 2013. DeLorme Atlas and Gazetteers, and in Mississippi, Alabama, Tennessee, (4) Critical habitat map units. Data USGS 7.5 minute topographic maps. and Virginia follows: layers defining map units were created The maps in this entry, as modified by

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(6) Unit SP1: North Fork Holston (rmi)) of the North Fork Holston River upstream to Ceres (¥81.33775, River, Smyth and Bland Counties, from its confluence with Beaver Creek 37.01035), Bland County, VA. ¥ Virginia. ( 81.70277, 36.90825), upstream of (ii) Map of Unit SP1 follows: (i) The unit includes approximately Saltville, in Smyth County, VA, 67 river kilometers (rkm) (42 river miles

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(7) Unit SP2: Middle Fork Holston (i) The unit includes approximately 36.66338) in Washington County, VA, River, Washington, Smyth, and Wythe 89 rkm (55 rmi) of the Middle Fork upstream to its headwaters (¥81.31345, Counties, Virginia. Holston River from its inundation at 36.88666) in Wythe County, VA. South Holston Lake (¥81.90427, (ii) Map of Unit SP2 follows:

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(8) Unit SP3: Big Moccasin Creek, from the Highway 71 Bridge crossing crossing (¥82.32348, 36.73740) near Scott and Russell Counties, Virginia. (¥82.48361, 36.69109) in Scott County, Collinwood in Russell County, VA. (i) The unit includes approximately VA, upstream to the Route 612 Bridge (ii) Map of Unit SP3 follows: 33 rkm (21 rmi) of Big Moccasin Creek

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(9) Unit SP4: Clinch River, Hancock from rkm 255 (rmi 159) immediately Creek near Cedar Bluff (¥81.74999, County, Tennessee, and Scott, Russell, below Grissom Island (¥83.40106, 37.07995), Tazewell County, VA. and Tazewell Counties, Virginia. 36.43081) in Hancock County, TN, (ii) Map of Unit SP4 follows: (i) The unit includes approximately upstream to its confluence with Indian 263 rkm (163 rmi) of the Clinch River

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(10) Unit SP5: Powell River, Claiborne from the U.S. 25E Bridge (¥83.63102, Rock Island in the vicinity of Pughs) in and Hancock Counties, Tennessee, and 36.54143) in Claiborne County, TN, Lee County, VA. Lee County, Virginia. upstream to rkm 256 (rmi 159) (ii) Map of Unit SP5 follows: (i) The unit includes approximately (¥82.98111, 36.75730, upstream of 153 rkm (95 rmi) of the Powell River

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(11) Unit SP6: Nolichucky River, from rkm 14 (rmi 9), approximately 0.6 Creek, just upstream of the Highway 321 Cocke, Hamblen, and Greene Counties, rkm (0.4 rmi) upstream of Enka Dam Bridge crossing (¥82.92926, 36.07545), Tennessee. (¥83.19630, 36.12970), where it divides in Greene County, TN. (i) The unit includes approximately Hamblen and Cocke Counties, TN, (ii) Map of Unit SP6 follows: 52 rkm (32 rmi) of the Nolichucky River upstream to its confluence with Pigeon

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(12) Unit SP7: Hiwassee River, Polk from the Highway 315 Bridge crossing (¥84.31728, 35.16811) in Polk County, County, Tennessee. (¥84.50234, 35.18875) upstream to the TN. (i) The unit includes approximately Highway 68 Bridge crossing (ii) Map of Unit SP7 follows: 24 rkm (15 rmi) of the Hiwassee River

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(13) Unit SP8: Sequatchie River, from the Highway 41, 64, 72, 2 Bridge (¥85.08304, 35.69162) in Bledsoe Marion, Sequatchie, and Bledsoe crossing (¥85.60583, 35.06576) in County, TN. Counties, Tennessee. Marion County, TN, upstream to the (ii) Map of Unit SP8 follows: (i) The unit includes approximately Ninemile Cross Road Bridge crossing 151 rkm (94 rmi) of the Sequatchie River

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(14) Unit SP9: Paint Rock River, County, AL (¥86.17048, 34.89813). The confluence with Bull Run (¥86.15283, Madison, Marshall, and Jackson unit includes approximately 11 rkm (7 34.99118) in Jackson County, AL; and Counties, Alabama. rmi) of Larkin Fork from its confluence approximately 16 rkm (10 rmi) of (i) The unit includes approximately with the Paint Rock River (¥86.20833, Hurricane Creek from its confluence 86 rkm (53 rmi) of the Paint Rock River 34.86218) upstream to its confluence with the Paint Rock River (¥86.17048, from the Highway 431 Bridge crossing with Bear Creek (¥86.22512, 34.94205) 34.89813) upstream to its confluence ¥ ( 86.39109, 34.49926) along the in Jackson County, AL; approximately with Turkey Creek (¥86.09441, Madison and Marshall County line, AL, 13 rkm (8 rmi) of Estill Fork from its 34.98370) in Jackson County, AL. upstream to the confluence of Estill confluence with the Paint Rock River Fork and Hurricane Creek in Jackson (¥86.17048, 34.89813) upstream to its (ii) Map of Unit SP9 follows:

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(15) Unit SP10: Elk River, Limestone (i) The unit includes approximately with Farris Creek (¥86.31996, County, Alabama, and Giles, Lincoln, 164 rkm (102 rmi) of the Elk River from 35.16288) at the dividing line between Franklin, and Moore Counties, its inundation at Wheeler Lake Franklin and Moore Counties, TN. ¥ Tennessee. ( 87.06503, 34.89788) in Limestone (ii) Map of Unit SP10 follows: County, AL, upstream to its confluence

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(16) Unit SP11: Bear Creek, Colbert inundation at Pickwick Lake at rkm 37 the Mississippi-Alabama State line County, Alabama, and Tishomingo (rmi 23) (¥88.08373, 34.68909) in (¥88.15388, 34. 49139). County, Mississippi. Colbert County, AL, upstream through (ii) Map of Unit SP11 follows: (i) The unit includes approximately Tishomingo County, MS, and ending at 42 rkm (26 rmi) of Bear Creek from its

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(17) Unit SP12: Duck River, (i) The unit includes approximately County, TN, upstream to its confluence Humphreys, Perry, Hickman, Maury, 348 rkm (216 rmi) of the Duck River with Flat Creek (¥86.48778, 35.47209) Marshall, and Bedford Counties, from its inundation at Kentucky Lake near Shelbyville in Bedford County, TN. Tennessee. (¥87.88011, 36.00244) in Humphreys (ii) Map of Unit SP12 follows:

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(18) Unit SP13: Buffalo River, (i) The unit includes 50 rkm (31 rmi) upstream to its confluence with Cane Humphreys and Perry Counties, of the Buffalo River from its confluence Creek (¥87.78718, 35.72298) in Perry Tennessee. with the Duck River (¥87.84261, County, TN. 35.99477) in Humphreys County, TN, (ii) Map of Unit SP13 follows:

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* * * * * Dated: September 17, 2013. Michael J. Bean, Acting Principal Deputy Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2013–23357 Filed 9–25–13; 8:45 am] BILLING CODE 4310–55–C

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