Vol. 76 Tuesday, No. 196 October 11, 2011

Part III

Department of the Interior

Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Endangered Status for the Altamaha Spinymussel and Designation of Critical Habitat; Final Rule

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DEPARTMENT OF THE INTERIOR published on that date. Publication of 1994, pp. 217–221; Cope et al. 2008, p. the proposed rule opened a 60-day 457). Fish and Wildlife Service comment period, which closed on Although the life history of the December 6, 2010. We reopened the Altamaha spinymussel has not been 50 CFR Part 17 comment period from May 12, 2011, studied, the life histories of other mussels in the Elliptio genus have been. [Docket No. FWS–R4–ES–2008–0107; 92210 through June 13, 2011, in order to 1111 0000–B2] announce the availability of and receive Internal fertilization results in the comments on a draft economic analysis female brooding the larvae (glochidia), RIN 1018–AV88 (DEA), and to extend the comment which when mature are released. To ensure survival, glochidia must come Endangered and Threatened Wildlife period on the proposed listing and designation (76 FR 27629). into contact with a specific host fish or and Plants; Endangered Status for the fishes to develop into juvenile mussels. Altamaha Spinymussel and Public Comments Other mussels in the genus Elliptio are Designation of Critical Habitat We received comments from the broadcast releasers, which may release AGENCY: Fish and Wildlife Service, public on the proposed listing action conglutinates that resemble insect Interior. and proposed critical habitat larvae. This reproductive strategy ACTION: Final rule. designation, and, in this rule, we depends on clear water during the time respond to these issues in a single of the year when mussels release their SUMMARY: We, the U.S. Fish and comments section. Below, we present glochidia (Hartfield and Hartfield 1996, Wildlife Service, list the Altamaha the listing analysis first, followed by the p. 375). The Altamaha spinymussel is spinymussel (Elliptio spinosa), a analysis for designation of critical thought to reproduce in late spring and freshwater mussel endemic to the habitat. release glochidia by May or June Altamaha River drainage of southeastern (Johnson 2004, p. 2; Bringolf 2011, pers. Georgia, as an endangered species under Background comm.). The host fish of the Altamaha spinymussel is currently unknown. the Endangered Species Act of 1973, as Species Description amended (Act), and designate Furthermore, juvenile age classes of approximately 237.4 kilometers (km) The Altamaha spinymussel (Elliptio other mussels are commonly found (147.5 miles (mi)) of mainstem river spinosa) is a freshwater mussel in the during surveys; however, no channel as critical habitat in Appling, family Unionidae, endemic to (found spinymussel recruitment has been Ben Hill, Coffee, Jeff Davis, Long, only in) the Altamaha River drainage of evident in surveys conducted since Montgomery, Tattnall, Telfair, Toombs, southeastern Georgia. The Altamaha 1990 (Keferl 2008, pers. comm.; Wayne, and Wheeler Counties, Georgia. River is formed by the confluence of the Wisniewski 2008, pers. comm.). This final rule will implement the Ocmulgee and Oconee rivers and lies Research to develop a better Federal protections provided by the Act. entirely within the State of Georgia. The understanding of the natural history and DATES: This rule becomes effective on species was described by I. Lea in 1836 the reasons for a lack of recruitment in November 10, 2011. from a site near the mouth of the the species is continuing. This spinymussel is known only from ADDRESSES: This final rule and final Altamaha River in Darien, Georgia (Johnson 1970, p. 303). Georgia in Glynn, Ben Hill, McIntosh, economic analysis are available on the Telfair, Tattnall, Long, Montgomery, Internet at http://www.regulations.gov. This species reaches a shell length of Toombs, Wheeler, Appling, Jeff Davis, Comments and materials received, as approximately 11.0 centimeters (cm) Coffee, and Wayne Counties. This well as supporting documentation used (4.3 inches (in)). The shell is spinymussel is considered a ‘‘big river’’ in preparing this final rule, are available subrhomboidal or subtriangular in species; is associated with stable, for public inspection, by appointment, outline and moderately inflated. As the coarse-to-fine sandy sediments of during normal business hours, at the name implies, the shells of these sandbars, sloughs, and mid-channel U.S. Fish and Wildlife Service, Georgia animals are adorned with one to five islands; and appears to be restricted to Ecological Services Office, 105 prominent spines. These spines may be swiftly flowing water (Sickel 1980, p. Westpark Dr., Suite D, Athens, GA straight or crooked, reach lengths from 12). Johnson (1970, p. 303) reported 30606; telephone 706–613–9493; 1.0 to 2.5 cm (0.39 to 0.98 in), and are Altamaha spinymussels buried facsimile 706–613–6059. arranged in a single row that is approximately 5.1 to 10.2 cm (2.0 to 4.0 FOR FURTHER INFORMATION CONTACT: somewhat parallel to the posterior ridge. in) below the substrate surface. Sandra Tucker, Field Supervisor, U.S. In young specimens, the outside layer or Fish and Wildlife Service, Georgia covering of the shell (periostracum) is Species Distribution and Status Ecological Services Office (see greenish-yellow with faint greenish The historical range of the Altamaha ADDRESSES above). If you use a rays, but as the animals get older, they spinymussel was restricted to the telecommunications device for the deaf typically become a deep brown, Coastal Plain portion of the Altamaha (TDD), call the Federal Information although some raying may still be River and the lower portions of its three Relay Service (FIRS) at 800–877–8339. evident in older individuals. The major tributaries, the Ohoopee, SUPPLEMENTARY INFORMATION: This interior layer of the shell (nacre) is pink Ocmulgee, and Oconee Rivers (Johnson document consists of: (1) A final rule to or purplish (Johnson 1970, p. 303). 1970, p. 303; Keferl 2001, pers. comm.). list the Altamaha spinymussel (Elliptio Life History and Habitat Large-scale, targeted surveys for the spinosa) as endangered; and (2) a final mussel have been conducted since the rule to designate critical habitat for this Adult freshwater mussels are filter- 1960s (Keferl 1993, p. 299). Recent species. feeders, siphoning phytoplankton, surveys have revealed a dramatic diatoms, and other microorganisms from decline in recruitment, the number of Previous Federal Actions the water column. For the first several populations, and number of individuals Federal actions for this species prior months, juvenile mussels employ pedal within populations throughout the to October 6, 2010, are outlined in our (foot) feeding, extracting bacteria, algae, species’ historic range (Stringfellow and proposed rule (75 FR 61664), which was and detritus from the sediment (Yeager Gagnon 2001, pp. 1–2; Keferl 1995, pp.

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3–6; Keferl 2008 pers. comm.; Oconee River. Athearn collected 18 habitat with no or sub-detectable Wisniewski 2006, pers. comm.). spinymussels, including 5 juveniles, at numbers of live spinymussels. a site in Montgomery County near Ohoopee River O’Brien (2002, pp. 3–4) surveyed 30 Glenwood in the late 1960s (Johnson et sites on the Altamaha River from the In a survey of the Ohoopee River, al. 2008, Athearn database). The species confluence of the Ocmulgee and Oconee Keferl (1981, pp. 12–14) found at least has not been collected there since and Rivers downstream to U.S. Route 301 30 live specimens of the Altamaha is probably extirpated from the Oconee spinymussel at seven of eight collection during 2001, including the 18 known River system (Keferl 2008, pers. comm.). Altamaha spinymussel sites, reported by sites, in thinly scattered beds, in the In 1995, as part of a dam relicensing lower 8 kilometers (km) (5 miles (mi)) Keferl, within the reach. She collected study, 41 sites between Lake Sinclair a total of six live individuals from five of the river. Spinymussels were not and Dublin were surveyed (EA found higher in the watershed, different sites and freshly dead shells Engineering 1995, pp. 1–1, 3–1, 3–2, 4– from two additional sites. presumably because there are 2, and 4–3). One hundred forty-four insufficient flows to support this hours of search time yielded 118 live In 2003 and 2004, researchers species. By the early 1990s, however, mussels, but no Altamaha spinymussels. surveyed 25 sites to collect specimens only two live specimens were found at Compared to the other portions of its for host-fish trials (Albanese 2005, pers. the same sites (Keferl 1995, pp. 3–6; range, the Oconee River has not been comm.). Live Altamaha spinymussels Keferl 2008 pers. comm.; Wisniewski extensively surveyed, in part because were detected at only four sites. Five of 2006, pers. comm.). Stringfellow and the entire mussel fauna of this river the seven sites documented by O’Brien Gagnon (2001, pp. 1–2) resurveyed these appears to be sparse. and all four sites documented during sites using techniques similar to those the host-fish surveys were clustered used by Keferl (1981, p. 12), but did not Altamaha River within a short reach (15 km/24 mi) of find any live Altamaha spinymussels in Most surveys for Altamaha the Altamaha River just upstream of the the Ohoopee River. Therefore, the spinymussels have been conducted in U.S. Route 301 crossing near Jesup, species is currently either extirpated the Altamaha River. Although Georgia. from the Ohoopee River or present in methodological differences preclude To summarize, researchers were able such low numbers that it is accurate comparison of mussel to find 60 Altamaha spinymussels at a undetectable. abundances over time, there is evidence single site on the Altamaha River in that higher abundances of Altamaha Ocmulgee River 1967; in contrast, the largest number of spinymussels occurred in the Altamaha Altamaha spinymussels observed from a The Altamaha spinymussel is known River historically. Early surveys at the single site on the Altamaha River during from the Ocmulgee River from its U.S. Route 301 crossing documented 20 the 1990s or 2000s was nine (Albanese confluence with the Oconee River individuals in 1963, 7 in 1965, and 43 2005, pers. comm.). upstream to Red Bluff in Ben Hill in 1970. Sickel sampled seven sites County (approximately 110 km/68.3 downstream of the U.S. Route 1 bridge Summary of Basin-Wide Population mi). Early collecting efforts in the in 1967. Sixty spinymussels were Estimates Ocmulgee River near Lumber City collected in one 500-square meters (m2) yielded many live Altamaha (5382-square feet (ft2)) site, and an In 1994, researchers spent 128 search- spinymussels. In 1962, Athearn made a additional 21 spinymussels were hours throughout the Altamaha Basin to single collection of 40 live spinymussels collected in a 400-m2 (4306-ft2) (Sickel find 41 spinymussels (Keferl 1995, p. 3). downstream of U.S. Highway 341 near 1980, p. 11; Wisniewski 2006, pers. From 1997 through 2006, researchers Lumber City (Johnson et al. 2008, comm.) site. One site had five live searched 233 sites throughout the basin Athearn database). Researchers spinymussels, two sites had one each, to document 34 spinymussels in more collected 19 and 21 live individuals, and two sites had no Altamaha than 550 hours of searching respectively, during two surveys at Red spinymussels. (Wisniewski 2006, pers. comm.); from Bluff (Thomas and Scott 1965, p. 67). In From 1993 to 1996, Keferl surveyed 2007 to 2009, only 23 spinymussels 1986, Stansbery collected 11 live 164 sites on the mainstem of the were found from more than 110 sites individuals at the U.S. Highway 441 Altamaha River between the Ocmulgee- (Wisniewski 2009, pers. comm.). In Bridge near Jacksonville, Georgia Oconee River confluence and the summary, the Altamaha spinymussel is (Wisniewski 2006, pers. comm.). Interstate 95 crossing near the river’s considered extirpated from two rivers in The lower Ocmulgee River was mouth (approximately 189 km/117 mi.). its historical range, the Ohoopee (15 km surveyed by Keferl in the mid 1990s, A total of 63 live Altamaha (9 mi)) and Oconee Rivers (45 km (28 during 2000–2001 (Cammack et al. spinymussels were collected from 18 of mi)), as well as the lower 73 km (45 mi) 2001, p. 11; O’Brien 2002, p. 2), and in these sites, located between the Oconee of the Altamaha River (Table 1). Since 2004 (Dinkins 2004, pp. 1–1 and 2–1). River and U.S. Route 301 (116 km/72 1997, despite extensive survey efforts Over 90 sites have been surveyed since mi); however, no Altamaha made by several different researchers, 1993, many of which were repeatedly spinymussels were collected below U.S. only 57 spinymussels have been surveyed, resulting in a total of 19 live Route 301 (73 km/45 mi), suggesting observed from 7 sites in the Ocmulgee Altamaha spinymussels detected at 10 absence or extreme rarity in the reach (110 km (68 mi)) and 15 sites in the sites, distributed from Jacksonville between U.S. Route 301 and the river’s upper Altamaha (116 km (72 mi)) downstream to the Oconee River mouth (approximately 73 km (45 mi)). combined, and while individual confluence. In addition, 10 of these sites were spinymussels have been found scattered clustered within a 4-km (2-mi) reach throughout this stretch of river, most of Oconee River upstream of the U.S. Route 301 crossing these sites have been clustered in the 10 There are few historical records of near Jesup; the remaining eight sites km (6 mi) immediately north of the U.S. Altamaha spinymussels from the were isolated by long distances of Route 301 crossing.

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TABLE 1—DECLINE IN RANGE OF THE ALTAMAHA SPINYMUSSEL

Historically Percent of River reach occupied Current habitat historical (linear km/mi) range lost

Ohoopee ...... 15 km/9 mi ...... Not seen since 1997 ...... 4 Oconee ...... 45 km/28 mi ...... Not seen since 1968 ...... 12 .5 Ocmulgee ...... 110 km/68.3 mi ...... Widely scattered ...... 0 Upper Altamaha ...... 116 km/72 mi ...... Widely scattered individuals ...... 0 Lower Altamaha ...... 73 km/45 mi ...... Not seen since 1970 ...... 20

Total ...... 359 km/222 mi ...... 226 km/140 mi ...... 36 .5

Using Georgia Department of Natural proposed rule and inviting public spinymussel, one of these reviewers also Resources (GDNR)’s database, which comment were published by the provided specific recommendations for included many of the surveys Associated Press, The Brunswick News the primary constituent elements mentioned above, Wisniewski et al. and the Florida Times Union. An article (PCEs). The information provided by the (2005, p. 2) conducted a test for a was also published by the Center for reviewers has been incorporated into temporal change in sites occupied in the Biological Diversity. the appropriate sections of this final Ocmulgee and Altamaha Rivers between During the comment periods, we rule or is addressed in the comments the early 1990s and the early 2000s. received a total of 79 comments. We below. Live Altamaha spinymussels were received comments supporting the We reviewed all comments received detected at 24 of 241 sites (10 percent) listing of the Altamaha spinymussel for substantive issues and new data sampled before 2000 and at 14 of 120 from the Georgia Department of Natural regarding the spinymussel, its critical sites (12 percent) sampled after 2000. Resources–Wildlife Resources Division, habitat, and the draft economic analysis. Although the percentage of sites the U.S. Army Corps of Engineers, three Written comments received during the occupied is not indicative of a decline, environmental groups, and 70 comment periods are addressed in the an analysis of 39 sites sampled during individuals including 9 letters and 65 following summary. For readers’ both time periods, of which the postcards. We received two requests for convenience, we have combined similar spinymussel was initially present in 13 an extension of the open comment comments into single comments and of the 39 sites, indicated that the period and notified requestors that the responses. comment period would reopen for the spinymussel was lost from significantly Peer Reviewer Comments more sites (11 sites) than it colonized (3 Notice of Availability of the Draft sites) between the early 1990s and early Economic Analysis, published on May (1) Comment: Water quality standards set by the State of Georgia are based on 2000s (Wisniewski et al. 2005, p. 2). 12, 2011. We received no requests for, water quality criteria established by the This test is imprecise because the failure and therefore did not hold, a public U.S. Environmental Protection Agency to detect Altamaha spinymussels when hearing. (EPA) for protection of aquatic life, not present could result in both false Peer Review humans. Mussels are not currently colonizations (species missed during In accordance with our peer review represented in datasets used by EPA for early surveys but detected in recent policy published in the Federal Register derivation of water quality criteria. If survey) and false extirpations (species on July 1, 1994 (59 FR 34270), we adopted, the proposed criteria for detected during early survey but missed requested the opinions of four ammonia will be the first to include during recent survey). Thus, although knowledgeable individuals with mussel sensitivity data. Therefore, the the exact number of extirpations and expertise on freshwater mollusks, the statement that many of the standards colonizations between the two time Altamaha River Basin, and conservation may not be protective of mussels is periods may not be accurate, the much biology principles. The purpose of peer accurate. higher number of extirpations is review is to ensure that the designation Our response: We agree, and have suggestive of a decline over this time is based on scientifically sound data, incorporated this information into the period. assumptions, and analyses, including Physical or Biological Features Section Summary of Comments and input of appropriate experts and to reflect this comment. Also see Recommendations specialists. We received written Comment 4 below. responses from three of the peer (2) Comment: Dissolved Oxygen (DO) During the open comment periods for reviewers. concentrations of 33.1 mg/L appear the proposed rule (75 FR 61664) and Peer reviewers stated that: (1) The unusually high for a river segment with draft economic analysis, we requested proposal included a thorough and no dams. It seems appropriate to that all interested parties submit accurate review of the available exclude this value as described by comments or information concerning scientific and commercial data on this reporting the 10th and 90th percentiles the proposed listing and designation of mussel and its habitats; (2) the best for DO. critical habitat for the Altamaha available scientific data documented Our response: After reviewing the spinymussel. We contacted all substantial declines in its abundance data, we found three data points to be appropriate State and Federal agencies and distribution; and (3) the data exceptionally high. All three were taken (including the State of Georgia, from supported the proposed listing as from the same timeframe with the same whom we directly requested comments), endangered with the designation of device, which suggests that the device county governments, elected officials, approximately 237.4 km (147.5 mi) of may not have been calibrated correctly. scientific organizations, and other critical habitat. Two peer reviewers These three data points have been interested parties and invited them to provided additional details and thrown out, and the concentration range comment. Articles concerning the correction about the life history of the has been recalculated to 0.42–

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20.3 mg/l. The benefit of using the 10th reported as low as 6.8 ug/L in a 96-hr the exclusion of the Altamaha River and 90th percentiles is that it allows us test at a water hardness of 177 mg/L between U.S. Route 1 and the upper to exclude the outliers from the data (Wang et al. 2007, p. 2043). Hardness property boundary of Moody Forest that may be due to device errors. buffers metal toxicity by reducing Natural Area from proposed critical (3) Comment: Populations of several bioavailability of metal ions. Hardness habitat. Georgia concurs with the fish species, particularly anadromous values are much lower (20–40 mg/L) in Service that the designation of critical fishes (e.g. striped bass (Morone the Altamaha, thus toxicity would be habitat in only the currently occupied saxatilis), Atlantic and shortnose expected at even lower copper reaches of the Altamaha and Ocmulgee sturgeon (Acipenser oxyrinchus and A. concentrations. Chronic criteria should Rivers would not adequately conserve brevirostrum), American shad (Alossa be substantially lower than this acute the Altamaha spinymussel because this sapidissima), and other herrings), have value. range is connected in a linear pattern declined substantially in recent Nickel toxicity has been reported for that could be destroyed by a single decades. Host trials for spinymussels juvenile unionids at 190 ug/L in a 96- event in the Ocmulgee, flowing with 10 species of fish from six families hr test with soft water (hardness <50 downstream into the Altamaha. (Centrarchidae, Cyprinidae, Ictaluridae, mg/L). Acute and chronic nickel criteria Therefore, the proposed designation of Moronidae, Acipenseridae, should be lower than 190 ug/L (no critical habitat in at least one additional Catostomidae) have been conducted. citation provided). tributary that historically harbored the Unfortunately, none of these trials have Pyrene is a polycyclic aromatic Altamaha spinymussel is necessary to produced juvenile spinymussels. hydrocarbon (PAH) that may be conserve the species. Our response: We agree. One of the associated with pulp and paper mills (6) Comment: One item that appears largest gaps in knowledge of this species among other industrial and urban to be poorly supported is the is host fish information. Presence of sources. This PAH is toxic to unionid considerable discussion found within suitable host fish in the basin is critical glochidia (24 h LC50) at 2.63 ug/L in the the Summary of Factors Affecting the for survival of this species. Evaluation presence of UV light (no citation Species regarding contaminants in of habitat suitability for the spinymussel provided). Chronic criteria for sediments of the Oconee River as would be greatly enhanced with persistent, bioaccumulative compounds primary threats. In the proposed rule the knowledge of the host fish occurrence like PAHs should be substantially lower Service included extensive text on and distribution; suitable habitat must than acute toxicity values. heavy metal toxicity due to kaolin also be present for the host fish(es). Our response: The Service routinely mining/processing as a threat to Though all 85 fish species native to the consults with other federal agencies unionids in the Oconee River Basin. The Altamaha Basin are still present, regarding the effects of their actions, Service should also include extensive populations of several fish species have and uses the best science available. text regarding the presence and declined substantially compared to Given the complex and unique operations of Lake Sinclair. historic numbers. Host fish have been conditions inherent in individual Our response: The effects of identified for other members of the consultations, as well as at different contaminants in sediment in the Oconee genus Elliptio, and these species should times of year and areas of the river, we River and the entire Altamaha Basin are provide a starting point for the believe it would not be prudent to set not well understood. However, it is spinymussel. Identification of suitable standards for these compounds at this clear that contaminants in sediment are host fish is also critical for development time because temperature, life stage, and a threat to mussel fauna in the Southeast of a propagation program. Laboratory other unknowns may have substantial and are, therefore, a potential threat to culture of juveniles would allow for a impact on their toxicity (e.g., the spinymussel that must be evaluated potential population augmentation temperature and copper interaction). in the Threats Assessment (Cope 2008, program and/or could be used to Where surrogate science was available pp. 452–459). Currently there are no produce organisms for toxicity testing and appropriate to establish general data to describe the sensitivity of the purposes. The Service has incorporated guidelines for water quality, it was spinymussel to environmental stressors this information into the Physical or applied in this manner. However, we do such as temperature, dissolved oxygen, Biological Features Section to reflect not have sufficient data to develop and contaminants, but tolerances to this comment. water quality criteria for copper, nickel, stressors can be inferred from other (4) Comment: EPA has recently (2009) and pyrene at the level of specificity mussel species. The effects of these proposed to revise the chronic water suggested by the commenter. stressors on mussel fauna are often quality value for ammonia (at pH 8 and interconnected. Standardized ASTM 25 C) from 1.2 mg/L to 0.26 mg/L. This Comments From the State (American Society for Testing and value is calculated to protect 95% of Section 4(i) of the Act states, ‘‘the Materials) guidelines are currently aquatic species. Because ammonia Secretary shall submit to the State available for toxicity tests with early life toxicity data have not been generated for agency a written justification for his stages (glochidia and juveniles) of the Altamaha spinymussel it is prudent failure to adopt regulations consistent freshwater mussels. As a result, toxicity for the Service to consider a lower PCE with the agency’s comments or and thermal tolerance data are being value for ammonia such as 0.22 mg petition.’’ Comments received from the generated for a growing number of N/L as indicated in the proposal. State regarding the proposal to designate unionid species. The Service considers Our response: We agree. We believe critical habitat for the Altamaha contaminants in sediment a potential the value chosen for the PCE for spinymussel are addressed below. threat to the spinymussel throughout its ammonia is well supported, which is Because the comments of one peer range. The nearest reservoir is why it is being adopted by EPA (Newton reviewer (a State of Georgia employee) approximately 120 km (75 miles) from et al. 2003, p. 2556 and Wang et al. were adopted by the State, we are the historic range of the spinymussel 2007, pp. 2041–2043). including them in our response to State and approximately 165 km (103 mi.) (5) Comment: The commenter comments. The State supports the from occupied habitat, thus, the effects recommends adding criteria for copper, designation of critical habitat for the of hypolimnetic discharges are not nickel, and pyrene. Copper toxicity to occupied reaches of the Altamaha and considered a threat to the Altamaha early life stages of unionids has been Ocmulgee rivers as proposed, including spinymussel (also see Comment 7 and

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Factor E. Other Natural and Man watershed and would be less vulnerable PCEs), and manmade impacts should be Manmade Factors Affecting Its to dewatering during periods of extreme easier to manage. Continued Existence). drought, which will likely become more (9) Comment: The continued declines (7) Comment: The Oconee River frequent in the future. The Oconee River of the Altamaha spinymussel are likely downstream of Lake Sinclair was from U.S. 280 in Mt. Vernon exacerbated by density-dependence in generalized as having sparse mussel downstream to its confluence with the which too few individuals exist to populations. The proposal strongly Altamaha River should be designated as adequately repopulate the basin at suggests that this is a result of an unoccupied stream reach proposed observable levels. contaminants but does not allude to any for critical habitat. Our response: We agree, and consider effects due to the presence of a major this to be the most serious threat faced dam and hydroelectric generation Our response: We recognize that by this mussel (for further explanation facility located at Lake Sinclair. critical habitat designated at a particular see Factor E. Other Natural and Man Numerous published studies have point in time may not include all of the Manmade Factors Affecting Its recognized reservoirs and hydroelectric habitat areas that we may later Continued Existence and generation facilities as one of the determine are necessary for the recovery Determination). of the species. For these reasons, a leading reasons for declines and Public Comments extinctions of unionids throughout critical habitat designation does not North America. signal that habitat outside the (10) Comment: In the proposed rule, Our response: The Oconee River designated critical habitat area is the Service has not adequately downstream of Lake Sinclair to U.S. unimportant or may not be required for considered the cost to other Federal Route 280 is poorly surveyed for recovery of the species. The Service agencies and how the listing might mussels. Available surveys had agrees that it is essential for the impact civil works programs such as described the mussel fauna as conservation of the species that one of dredging for commercial navigation or depauperate (EA Engineering 1995, pp. the unoccupied tributaries to the ecosystem restoration on the Altamaha, 1–1, 3–1, 3–2, 4–2, and 4–3). Typically, Altamaha be included as critical habitat Oconee, and Ocmulgee Rivers. habitats immediately downstream of to avoid a linear distribution that might Our response: The Act and our dams are unsuitable for unionids due to be vulnerable to a single catastrophic regulations at 50 CFR 424.11(b) prohibit us from considering the possible the highly erosive nature of the event. The Service has determined that economic impacts associated with substrates during channel forming only one of the unoccupied rivers is listing a species. However, we do take events (e.g., spring floods), which scour essential. In deciding which of the two into consideration economic impacts substrates and deposit those benthic rivers to include as critical habitat we associated with designating critical organisms occupying these habitats looked at all historic records of elsewhere. Additionally, eroding habitat in accordance with section spinymussel. In the Oconee River, the 4(b)(2) of the Act. Under section 7 of the substrates are often deposited upon only record of spinymussels was from a downstream habitats where unionids Act, the U.S. Army Corps of Engineers single collection in 1968. The (Corps) will need to consult with us for occur and thus impede their mobility spinymussel has not been seen in the and their ability to siphon or reproduce. activities that may affect the Altamaha Oconee from any other locations or at spinymussel or its critical habitat. We Generally, the effects of reservoir any other time and is now considered operations on river channels are greatest have broadly defined activities that may extirpated from this river. Conversely, affect, destroy or adversely modify closest to dams and gradually decline as spinymussels have been found from rivers flow downstream. This effect is critical habitat below (see Application multiple locations over several decades observed in the Oconee River, which of the ‘‘Adverse Modification’’ in the Ohoopee and were found as has a deeply entrenched channel near Standard, below), and will work with recently as 1997. Keferl referred to the Dublin, Georgia, upstream of the the Corps to ensure that the best Ohoopee as a possible refugia for the historic range of the spinymussel. available information is used when they species endemic to the Altamaha, Conversely, the Oconee River consult with us. Our final economic downstream of U.S. Route 280 near Mt. including the spinymussel (Keferl 1981, analysis (Industrial Economics, Inc. Vernon (within the historic range of the p. 15). Furthermore, the Oconee has 2011, pp. ES–2, ES–3, ES–4) found that spinymussel), has a wider, less many human-induced threats that are there would be only marginal entrenched channel with good not well understood, including: Kaolin incremental administrative costs floodplain connectivity, gentle bank mining, agriculture, and municipal associated with this critical habitat slope, and riparian buffers. Mussel water treatment. The Ohoopee has fewer designation. Incremental administrative fauna diversity greatly increases in the inputs of point source pollution within costs are costs that would occur only as lower portion of the Oconee, suggesting this basin; however, this river is a result of the critical habitat that the habitat is not degraded by dam impacted by municipal water treatment, designation, which are above and operations. While the dam at Lake drought, and, during low flows, vehicle beyond costs associated with listing the Sinclair certainly has a profound effect traffic in the river bed. Drought is a species (i.e., baseline costs). The on the ecology of the Oconee River, it natural event which mussel species economic analysis projects is 75 miles from the historic range of the have evolved to survive. Vehicle traffic approximately $37,100 of total spinymussel and, therefore, was not in the river bed could be more easily incremental impacts (over the next 30 considered a threat (see Factor E. Other managed than the potential threats to years (2011–2040)) using a seven Natural and Man Manmade Factors the Oconee, which may need extensive percent discount rate), as the result of Affecting Its Continued Existence). study to be understood. In determining critical habitat designation for the (8) Comment: The inclusion of the which river would best serve to protect Altamaha spinymussel. Lower Oconee River as critical habitat the spinymussel, the Service chose the In order to estimate the cost of would more adequately conserve the Ohoopee because it was known to be consultation the Service contacted the Altamaha spinymussel than the inhabited by the spinymussel more National Marine Fisheries Service inclusion of the Ohoopee River, as the recently, it was considered high-quality (NMFS) to see how many consultations Oconee River is a much larger habitat (habitat that includes multiple they conduct for the shortnose sturgeon

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in the Altamaha River. NMFS biologists impaired waterbodies). However, as Ammonia PCE informed us that they average less than stated, the stream is then placed on the For ammonia, 1.5 mg N/L is the one formal consultation on the 305(b) list of impaired streams with a criteria maximum concentration (CMC) Altamaha annually and would estimate completed TMDL whether or not water and 0.22 mg N/L is the criteria that they would conduct three formal quality conditions improve. continuous concentration (CCC). A consultations annually if critical habitat Furthermore, several waterbodies have review of mussel ammonia literature were designated for this species (Bolden been removed from the 303(d) list upon indicates that at least some juvenile 2011, pers. comm.). Because a listed completion of a TMDL, only to return to mussels are sensitive to ammonia at species already occurs in these rivers, the 303(d) list due to additional concentrations as low as 0.093 mg NH3/ the Altamaha spinymussel listing and violations. This indicates that while the L in 10-d assays (Newton et al. 2003, p. critical habitat designation would not be TMDL program can improve water 2556) and 0.37 mg N/L in 28-d tests likely to prompt a large increase in the quality in streams, it does not prevent (Wang et al. 2007, pp. 2041–2043). EPA need for consultation or the associated water quality violations from occurring, did not include all mussel toxicity test costs to the Corps. which could have a deleterious effect on (11) Comment: The proposal contains data in derivation of the proposed the Altamaha spinymussel. criteria (2009) because some tests did considerable speculation as to the (13) Comment: The proposed rule possible causes for reduced populations not use ‘standardized’ methods (Bringolf provides little or no justification for the 2011, pers. comm.). The Service of the Altamaha spinymussel but water quality metrics (primary provides no substantive detail or considered all available mussel constituent elements, or PCEs) that are ammonia toxicity data in deriving PCEs. analysis concerning the relative suggested as ‘‘necessary for normal importance of factors contributing to the The Service arrived at the ammonia PCE behavior, growth, and viability at all life values as a compromise between the supposed primary stressors, stages.’’ sedimentation and contaminants. mussel toxicity literature and the Our response: The Service has Our response: In developing the proposed EPA criteria. There are no monitored the decline of the parameters for the water quality PCE, ammonia toxicity data available for spinymussel since it first became a we used the best available information spinymussel, therefore, we believe this candidate species in 1984. Since that to create specific guidelines to be the most valid approach for time the Service and the State have (considering mussel life stage and establishing a standard. interactions with variables such as funded numerous efforts to develop a pH PCE better understanding of the natural temperature) including temperature, history of this species. Unfortunately, dissolved oxygen, ammonia, pH, and The Service attempted to determine the low numbers of this species have cadmium. How we derived these criteria the ‘central range’ of pH values in the made it difficult to study; therefore, we is explained below. Conversely, there Altamaha River by generating the 10th have analyzed the threats to this species are many possible toxicity issues for and 90th percentiles (the point at which using the best available science on which we do not believe there is 10% and 90%, respectively, of the surrogate species. The natural history of sufficient information to develop water observed values fell) of pH. Because the this species is likely very similar to quality standards that would be causes of the decline of the spinymussel other species in the family Unionidae, protective of the spinymussel at this remain unidentified, and no data are and it is reasonable to assume that time (see also response to Comment 5). available regarding the optimal pH for similar threats will affect this species in Temperature PCE this species, it is reasonable to designate a similar manner. Each threat is a PCE for critical habitat that does not discussed in detail in the Summary of We believe that the maximum include the extremes of any water Factors Affecting the Species and is temperature and the maximum daily quality parameter (Bringolf 2011, pers. summarized in the Determination temperature fluctuation criteria comm.). Critical habitat must be sections. A Threats Matrix detailing our identified in PCE 3 are supported by the supportive of the species, and it is best understanding of the relative best available data generated from direct reasonable to assume that extremes of importance has been developed and has temperature measurements of the any parameter could be detrimental to been provided to the commenter. A Altamaha River, as well as comparisons this species. Critical habitat PCEs copy of the Threats Matrix is on file and to three temperature gauge stations on should incorporate the most stable available upon request. We have also the Savannah River, which is similar in habitats. size, hydrology, and proximity clarified the relative importance of Cadmium PCE specific threats, as needed, within the (Wisniewski 2011, pers. comm.). Threats Analysis of this rule. Therefore, a maximum temperature of Mussel toxicity to cadmium (Cd) is (12) Comment: The proposed rule 32.6 °C with no more than a 2 °C daily reported to occur at concentrations as misrepresents the (EPA’s) Total fluctuation appears justified. See the low as 16 mg/L in 96-h tests with Maximum Daily Load (TMDL) program Physical or Biological Features juveniles (Wang et al. 2010, pp. 2056– and the impaired waters identification discussion to see how these were 2057). The Cd criteria for Georgia are 1 process and erroneously suggests that derived. mg/L (CMC) and 0.15 mg/L (CCC). However, the commenter suggests that the current regulatory process is Dissolved Oxygen PCE inadequate and will not afford the Cd concentrations required to cause protection to the spinymussel. The Comments suggesting that dissolved toxicity are 2000 to 13,000 times greater proposed rule implies or states directly oxygen in bottom layers of critical than GA water quality criteria (1 ug/L). that current regulatory water quality habitat may be lower than the PCE are The Cd concentration that caused acute management tools are inadequate to not appropriate because spinymussels toxicity with juvenile mussels is only 16 protect existing spinymussel are found in the mainstem river in areas times higher than the Georgia Cd populations. of moving water that does not stratify. criteria. Therefore, it is not prudent to Our response: The completion of and Therefore, the water should be well- assume that Cd is not a significant compliance with a TMDL removes a mixed and dissolved oxygen should be contributor to decline in spinymussel stream from the 303(d) list (list of consistent throughout the water column. populations. Early life stages are

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generally more sensitive than adults; influence unionid recruitment. the remainder of the sediment came therefore, PCEs were established based However, Vaughn and Spooner from excavation and mobilization of on a survey of all published mussel (unpublished data, p. 5) indicated that stored valley sediments, principally early-life-stage toxicity data since 1992. Asian clam densities were generally through lateral migration of stream Comment (14): Climate change lower when populations of native channels and bank erosion (Jackson et models do not provide information that unionids were dense, but increased with al. 2005, pg 10). Legacy sediment is an is appropriate for making management declining populations of native ongoing threat as it moves downstream decisions regarding the Altamaha unionids. Gardner et al. (1976, pp. 122– covering suitable habitat. spinymussel. 124) hypothesized that the decline in Comment (18): The Service should Our response: The Service agrees that bivalve populations in the Altamaha consider that implementation rates for it would not be appropriate to use River co-occurred with the invasion of forestry best management practices are climate change models to make Corbicula; they also admit that ‘‘a high nationally and in Georgia, management decisions regarding the combination of factors probably was including the Altamaha River Basin. Altamaha spinymussel. However, the responsible for the success of Corbicula Our response: We agree that the rates Service acknowledges that climate and the decline of other bivalves in the of implementation for forestry BMPs are change could alter the severity of storms Altamaha River.’’ It is likely that the high and consider sediment from and droughts, which could affect apparent declines in the densities of silvicultural activities to be a small and spinymussels in the future (See Factor Altamaha spinymussels are a result of a short-lived impact. E. Other Natural and Man Manmade variety of factors, some of which may be Comment (19): When properly Factors Affecting Its Continued attributed to invasive species. The implemented, forestry BMPs protect Existence, also see the discussion under extent to which they are adversely water quality and habitat for the Critical Habitat, Background). affected by flathead catfish and Asian Altamaha spinymussel. BMPs are Comment (15): The Service should clam is currently unknown. critical in mitigating water quality consider that factors unrelated to Comment (16): The Service should degradation from silviculture, and when habitat, such as invasive species, may be recognize that suspended solids from appropriately implemented and the most important limiting factor for biological wastewater treatment plants maintained, are very effective in the Altamaha spinymussel. are often comprised largely of organic controlling nonpoint sources of Our response: While invasive species matter and that such solids would not pollution. Because of the overwhelming may be affecting the Altamaha be expected to contribute to body of research related to BMPs and spinymussel (either directly or sedimentation. their effectiveness for protecting water indirectly), there is little, if any, Our response: The Service concurs quality and aquatic habitat, it is not information to support that invasive with this comment; we have no surprising that the Service has species are the most important limiting information that suspended solids are a recognized in previous regulatory factor affecting the Altamaha threat to the spinymussel at this time. proposals that BMPs are an important spinymussel or other mussels native to Comment (17): Sediment issues in the component of conservation strategies for the Altamaha or Atlantic Slope of southeastern United States are freshwater mussels. Georgia. The flathead catfish (Pylodictis complicated by a legacy of poor Our Response: The Service agrees that olivaris) was likely introduced into the agricultural practices during the 1800s BMPs are protective of water quality Altamaha River during the 1970s or and early 1900s, which raises questions and mussel habitat, and that industrial 1980s, and populations began to greatly about sources of sediment problems and forestry activities generally do a good increase during the 1990s. Flathead the relative magnitudes of different job of implementing BMPs. However, catfish may predate the host fish for the sediment sources today. Silvicultural some harvesting operations fail to use Altamaha spinymussel and other native activities generally have only a small, BMPs adequately, and localized impacts unionids (see discussion under Factor E. short-lived impact on water quality, can and do occur. Other Natural or Manmade Factors especially when compared with other Comment (20): The Georgia Forestry Affecting Its Continued Existence). land uses. Commission’s BMP education and However, despite the introduction of Our response: We agree that the monitoring programs are effective at this piscivorous (fish eating) fish, most primary source of sedimentation is encouraging implementation of forestry fish and mollusk species known from legacy sediment and that silvicutural BMPs and provide ‘‘reasonable the Altamaha Basin as well as the activities have a small and short-lived assurance’’ that forestry BMPs are remainder of the Atlantic Slope of impact on water quality (see Factor A. implemented effectively in Georgia. Georgia, where the flathead catfish has The Present or Threatened Destruction, Our response: We generally agree been introduced, appear to be extant Modification, or Curtailment of Its with this comment, particularly on and relatively abundant. Similar trends Habitat or Range). Legacy sediment industrial forests. However, there are occur in the nearby Flint River Basin migrating through the floodplains of the individual exceptions, with compliance where the flathead catfish has been Altamaha Basin is likely one of the most reported by the Georgia Forestry introduced. Despite the introduction of severe threats to the spinymussel. As an Commission at around 95 percent. this species and the highly altered example, in Murder Creek, a tributary of Comment (21): Sustainable forestry nature of the Flint River, mussel species the Oconee River, over 1.6 m (5.3 ft) of certification programs require composition is similar to those legacy sediment was observed (Jackson participants to meet or exceed forestry experienced prior to the introduction of et al. 2005, p. 1). Much of the eroded BMPs and help ensure high rates of the flathead catfish (Wisniewski 2011, sediment was believed to remain in BMP implementation. pers. comm.). valley storage or in transport as bedload Our response: The Service agrees that The competition between the Asian in Georgia’s Piedmont streams (Jackson the sustainable forestry program is one clam (Corbicula fluminea) and native et al. 2005, p. 3). Based upon estimates of the most effective programs to ensure unionids has been examined, but results of inputs from various sources and BMPs are properly implemented. have been contradictory. Yeager et al. exports via total suspended solids and Comment (22): Preliminary sampling (2000, pp. 256–258) suggested that high bedload, sediment exports were greater of direct tributaries in forested densities of Asian clam may negatively than sediment inputs. It is assumed that watersheds within the Altamaha River

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Basin suggests that mussel communities 2001); Altamaha Riverkeeper v. City of A. The Present or Threatened are diverse and abundant. The role of Lumber City, CV–300–043 (S.D. Ga); Destruction, Modification, or lakes in supporting the mussel Altamaha Riverkeepers v City of Curtailment of Its Habitat or Range community within the basin is not Cochran, 162 F. Supp. 2d 1368 (M.D. Bogan (1993, pp. 599–600 and 603– known, but could be significant and Ga. 2001)) regarding water quality 605) linked the decline and extinction should be explored further. standard violations (see Factor A of bivalves to a wide variety of threats Our response: We believe that discussion below for more detail). We including siltation, industrial pollution, floodplain lakes within the Altamaha consider these court findings to be municipal effluents, modification of Basin are of little importance to the relevant information related to stream channels, impoundments, Altamaha spinymussel as they do not enforcement of laws and regulations pesticides, heavy metals, invasive have habitat to sustain the species. species, and the loss of host fish. The Dinkins (2007, p. 4) provides support within the watershed. Altamaha spinymussel lives within a for this by stating, ‘‘species typically Comment (24): Two comments large river drainage exposed to a variety found in the river where the substrate supported additional critical habitat of landscape uses. Habitat and water has a dominant sand matrix and/or including the entire historic range of the quality for the Altamaha spinymussel slight to moderate current during spinymussel, as well as, associated dry face degradation from a number of normal flow conditions (e.g., Elliptio lands and wetlands. sources. Primary among these are spinosa, Lampsilis dolabraeformis) were Our response: We believe the not present in Cogden Lake.’’ Cogden threats from sedimentation and occupied and unoccupied areas we are Lake is a floodplain lake in the Basin. contaminants within the streams that designating as critical habitat The Altamaha spinymussel is typically the spinymussel inhabits. found in association with protected adequately represent the geographical Sickel (1980, p. 12) characterized the areas around sand bars, in medium to areas essential for the conservation of habitat of the Altamaha spinymussel as coarse hard-packed sand, with rather the species. See our response to coarse-to-fine-grain sandbars, and swift current near gently sloping, soft Comment 8. suggested that this may make the Altamaha spinymussel susceptible to banks with its distribution greatly Comment (25): Why was the area adverse effects from sediment (siltation). restricted to these habitats (Meador 2009 around Plant Hatch excluded from Sediments deposited on the stable p. 52, Sickel 1980, pp. 10–11; Critical Habitat designation? Wisniewski 2008, p. 2). In general, sandbars required by the Altamaha Our response: We did not include the floodplain lakes within the Altamaha spinymussel could make sandbars River Basin exhibit habitats that are not section of the Altamaha River between unstable, result in suffocation, or simply conducive to the survival of the US Route 1 and the upper property change the texture of the substrate, Altamaha spinymussel as these habitats boundary of Moody Forest Natural Area making them unsuitable for the species. typically have little or no flow and silty from proposed critical habitat because it Sedimentation, including siltation from or muddy substrates. does not contain the physical or surface runoff, has been implicated as a In conclusion, there is not sufficient biological features essential to the factor in water quality impairment in evidence to support the existence of conservation of the species. Dredging the United States and has contributed to potential populations of the Altamaha operations and thermal stress in the the decline of mussel populations in spinymussel in these floodplain lakes or vicinity of Edwin I. Hatch Nuclear Plant streams throughout the country (Ellis tributaries. have altered the habitat quality so that 1936, pp. 39–41; Coon et al. 1977, Comment (23): The summary the PCEs are not present in this river p. 284; Marking and Bills 1979, pp. 209– paragraph within Factor A, The present reach. Habitat within this reach is 210; Wilber 1983, pp. 25–57; Dennis or Threatened Destruction, generally unstable, consisting of coarse, 1984, pp. 207–212; Aldridge et al. 1987, pp. 25–26; Schuster et al. 1989, p. 84; Modification, or Curtailment of Its mobile sand. Habitat or Range, is over-reaching and Wolcott and Neves 1991, pp. 1–6; Houp contains speculative language. Summary of Factors Affecting the 1993, p. 96; Bogan 1993, pp. 603–605; Inferences that enforcement of laws and Species Waters 1995, pp. 53–77; Richter et al. regulations may be subverted to 1997, p. 1084). economic interests and citing pending Section 4 of the Act and its Specific impacts on mussels from investigations by nongovernmental implementing regulations (50 CFR part sediments include reduced feeding and environmental groups (such as 424) set forth the procedures for adding respiratory efficiency, disrupted Riverkeepers) should not be relied on as species to the Federal Lists of metabolic processes, reduced growth the best scientific information available Endangered and Threatened Wildlife rates, increased substrata instability, and are highly speculative regarding and Plants. A species may be and the physical smothering of mussels impacts to mussels and their habitat. determined to be an endangered or (Ellis 1936, pp. 39–41; Stansbery 1970, Our response: The Service considers threatened species due to one or more p. 10; Markings and Bills 1979, pp. 209– the best scientific and commercial of the five factors described in section 210; Kat 1982, p. 124; Aldridge et al. information available when making 4(a)(1) of the Act. The five listing factors 1987, pp. 25–26; Hartfield and Hartfield listing decisions, and Riverkeepers have are: (A) The present or threatened 1996, p. 375; Brim Box and Mossa 1999, provided extensive and detailed field destruction, modification, or pp. 99–102; TNC 2004, p. 4; Cope 2008, notes concerning water quality curtailment of its habitat or range; pp. 452–459). Many southeastern violations. Few of these notes were (B) overutilization for commercial, streams have increased turbidity levels considered sufficient enough to include recreational, scientific, or educational due to siltation (van der Schalie 1938, in this rule; however, the Altamaha p. 56). Since turbidity is a limiting purposes; (C) disease or predation; (D) Riverkeeper has successfully brought factor that impedes the ability of sight- the inadequacy of existing regulatory three cases to court (Altamaha feeding fishes to forage (Burkhead and mechanisms; and (E) other natural or Riverkeeper v. Amercord, Inc., No. CV Jenkins 1991, pp. 324–325), turbidity 300–042 (S.D. Ga) (Order on Motion for manmade factors affecting its continued within the Altamaha River Basin during Partial Summary Judgment, Mar. 15, existence. the times that Altamaha spinymussels

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attempt to reproduce may reduce the Comment 17). Although it is the could represent a comparatively high ability of the host fish to find glochidia, historical, anthropogenic land use that sediment load on a per -acre basis (EPD and may contribute to the decline of the created the legacy sediment, the volume 2007, p. v). spinymussel by reducing its efficiency of legacy sediment still migrating Industrial forest management is at infecting the fish hosts necessary for through the Altamaha River Basin is a practiced on approximately 8,000 reproduction. In addition, sediment can significant threat to the spinymussel. hectares (40,000 acres) or 33 percent of eliminate or reduce the recruitment of Studies of the fish populations in the the floodplain of the Altamaha River juvenile mussels (Brim Box and Mossa Altamaha River Basin were conducted (TNC 1997, p. 19). Typical forest 1999, pp. 101–102), interfere with in 2000 by the GDNR Wildlife Resources management regimes in the Altamaha feeding activity (Dennis 1984, pp. 207– Division (WRD). The Index of Biotic River Basin use timber harvest methods 212), and act as a vector in delivering Integrity (IBI) and modified Index of and conduct other activities that result contaminants to streams (Salomons et Well-Being (IWB) rate fish populations in ground disturbances. These ground al. 1987, p. 28). as being in Excellent, Good, Fair, Poor, disturbances can result in transport of From 1700 to 1970, agricultural or in Very Poor condition, and were sediment to streams during and after practices in the Southern Piedmont applied by the WRD to identify precipitation events. In addition, forest physiographic province resulted in impaired fish populations in the management operations often require extreme soil erosion, removing more Altamaha River. Stream segments with miles of unpaved roads to extract timber than 17.8 cm (7 in.) of soil across the fish populations rated as Poor or Very and to provide access for management Poor were listed as Biota Impacted. A activities. The majority of sediment landscape (Trimble 1974, p. 1). The lack of fish habitat due to stream from forestry occurs from roads and site Ocmulgee, Oconee, and Ohoopee rivers sedimentation was generally the cause preparation activities (EPD 2007a, p. all drain through the Piedmont and of a low IBI score. 11). These roads, in conjunction with were directly affected by this erosion Five Mile Creek (14.5 km/9 mi), existing unpaved county roads that are and resulting sedimentation. In 1938, Bullard Creek (12.8 km/8 mi), and Jacks prevalent throughout the Altamaha van der Schalie (p. 56) reported the Creek (14.5 km/9 mi) were rated as River Basin, contribute to sediment Altamaha River as being yellow in color, ‘‘Very Poor’’ and placed on the State of loading in streams after precipitation due to the large amount of suspended Georgia’s 303(d) list of impaired waters events. Through an agreement with the silt originating from intensive farming due to a significant impact on fish (EPD EPD, the Georgia Forestry Commission and road construction occurring in the 2007a, pp. 1–2). These three streams (GFC) is responsible for implementing headwaters. The sediment from these eventually feed into the mainstem of the the use of Best Management Practices practices moved into stream channels Altamaha River via larger channels. As (BMPs) to reduce erosion and sediment and valleys, covering most of the sediment moves through the basin, from activities related to forestry, such original bottomlands (Trimble 1974, habitat is periodically buried. WRD as timber harvest, haul road p. 26) and is now referred to as legacy recommends that there be no net construction, stream crossings, stream sediment (Jackson et al. 2005, pg. 3). As increase in sediment delivered to the side management zones, site a result, stream profiles have been impaired stream segments so that these preparation, and reforestation. However, dramatically altered with unstable streams will recover over time (EPD the Erosion and Sediment Control Act sediment deposits being dissected and 2007a, p. 26). Agriculture and roads (O.C.G.A. 12–7–1) exempts commercial streams being incised with entrained were identified as the major sources of forestry activities from the need to sediment migrating downstream to be sediment with silviculture, mining sites, acquire permits and meet the minimum deposited in stream channels and grazing, and urban development also requirements of that act (Georgia’s BMPs floodplains (Trimble 1974, pp. 116–121; contributing nonpoint sources of for Forestry 2009, p. 64). Therefore, Jackson et al. 2005, pg 1). The GDNR, sediment (EPD 2007a, p. 9). Agriculture, compliance with BMPs is voluntary and Environmental Protection Division (EPD including row crops, poultry farms, and is dependent on education about BMPs 2007, p. iii) reported to EPA that pastures, constitute 15.5 percent of the to reduce sediment from reaching the approximately 75 percent of the average land cover in the Piedmont and 32.7 Altamaha River (EPD 2007a, p. 28) (also sediment load in the Altamaha River percent of the land cover in the Coastal see our Response to Comments 18, 19, Basin resulted from row crops and that Plain (GDNR 2005, pp. 97, 132). 20 and 21), but appears to be high. it contributed an average sediment load In addition to agriculture, there are A number of kaolin mines are located of 1 ton per acre per year. The EPD numerous sources of sediment within along the Fall Line, a geologic land form concluded that this sediment is the Altamaha River Basin, including that separates the Piedmont and Coastal probably a legacy of past land use. The silviculture, unpaved roads, kaolin Plain physiographic provinces, within mobilization of legacy sediments, mines, and construction sites. A threat the Oconee and Ocmulgee River Basins. principally through lateral migration of assessment conducted by TNC (2004, p. The operation of these mines and their stream channels and bank erosion is an 9) listed sediment from urban, supporting infrastructure, including ongoing threat as it moves downstream industrial, and nonpoint sources (NPSs) haul roads and settling ponds, have the covering suitable habitat (Jackson et al. as a threat to the spinymussel. The EPD potential to increase downstream 2005, p. 10). Large -scale sediment (2007, p. v) reported that, while sediment loads if adequate erosion movement and deposition may result in historical row crop-based land use control measures are not maintained to increased embeddedness, which would contributes the majority of sediment in stabilize areas subjected to mining- generally decrease habitat quality the Altamaha River (75 percent), that associated ground disturbances (Lasier (Bringolf 2011, pers. comm.). The degree among other sources, approximately 2004, p. 139). to which rocks (gravel, cobble, and 17.3 percent of the total sediment load In addition, sediment can act as a boulders) and snags are covered or is from roads; 4.3 percent from grasses vector in delivering contaminants (such sunken into the silt, sand, or mud of the and wetlands; 1.5 percent from urban as heavy metals, ammonia, chlorine, stream bottom is a measure of lands; and 1.0 percent from quarries, numerous organic compounds) to embeddedness, and is a parameter strip mines, and gravel pits. In addition, streams (Salomons et al. 1987, p. 28; evaluated in the riffles and runs of estimates of the contribution from TNC 2004, p. 9). Because spinymussels streams (also see Our Response to construction could not be obtained, but are filter-feeders and bury themselves in

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the substrate, they are exposed to metals populations (Wisniewski 2008, pers. of these segments are within tributaries dissolved in water, contained within comm.). to the Altamaha River within the range suspended particles, and deposited in From 2000 to 2008, many stream of the spinymussel. Between 2000 and bottom substrates (Naimo 1995, p. 341). segments in the Altamaha Basin have 2001, there were nine NPDES permitted Cope et al. (2008, pp. 452–459) been listed on the State’s 303(d) list of discharges with effluent limits for described potential routes of a variety of impaired waters for a variety of reasons. oxygen -consuming substances contaminants absorbed by mussels in Once a stream segment is listed as identified in the Altamaha River Basin various stages of their lifecycle. impaired, the State must complete a watershed above the 23 stream segments Contaminants contained in point and plan to address the issue causing the listed (EPD 2002, p. 11). Nonpoint nonpoint discharges can degrade water impairment; this plan is called a Total source runoff from natural sources and substrate quality and adversely Maximum Daily Load (TMDL). contributed oxygen-demanding impact, if not destroy, mussel Completion of the plan is generally all pollutants (EPD 2002, p. 12). Upon populations (Horne and McIntosh 1979, that is required to remove the stream completion of a TMDL in 2002, these pp. 127–132; McCann and Neves 1992, segment from the 303(d) list and does river segments were removed from the pp. 80–87; Havlik and Marking 1987, not mean that water quality has 303(d) list. p. 14). changed. Once the TMDL is completed, In 2006, EPD listed 18 stream Contaminants associated with the stream segment may be placed on segments totaling 280 km (174 mi) as impaired due to fecal coliform bacteria industrial and municipal effluents may the 305(b) list of impaired streams with in excess of water quality standards cause decreased oxygen, increased a completed TMDL. Many of these (EPD 2007c, pp. 1–2). All of these acidity, and other water chemistry stream segments have appeared stream segments are tributaries to the changes that may be lethal to mussels, repeatedly on the 303(d) list. The Altamaha River within the current or particularly during the highly sensitive Ohoopee River and Little Ohoopee River historic range of the species. Between early life stages (Sheehan et al. 1989, have been listed on nearly every report 2005 and 2006, there were 10 municipal pp. 139–140; Keller and Zam 1991, for almost every violation. Other stream wastewater treatment plants that pp. 541–543; Bogan 1993, pp. 603–604; segments that have repeatedly been discharged more than 0.1 MGD, along Goudreau et al. 1993, pp. 216–227; TNC identified on the 303(d) list from 2000 until 2008 include Big Cedar Creek, with four confined animal feed 2004, pp. 8–9). Exposure to sublethal operations that were considered sources levels of toxic metals can alter growth, Doctors Creek, Jacks Creek, Milligan Creek, Oconee Creek, Pendleton Creek, of fecal coliform. Nonpoint sources filtration efficiency, enzyme activity, include wildlife, livestock grazing, and behavior (Naimo 1995, pp. 341, Rocky Creek, Sardis Creek, Swift Creek, Tiger Creek, and Yam Gandy Creek. livestock access to streams, application 354). In laboratory experiments, mussels of manure to pastureland and cropland, suffered mortality when exposed to 16 This demonstrates a chronic threat, from multiple sources of pollution, scattered leaking sanitary sewer lines, leaking ug/L, 96-h EC50 cadmium (Wang et al. septic systems, land application systems 2010), 0.093 mg N/L, 10-d LC50 across the basin. In 2000, the Altamaha River was (6 in the basin), and landfills (43 in the ammonia (Newton et al. 2003), 39 ug/L, listed on the 303(d) list of impaired basin) (EPD 2007c, pp. 10–16). Even 96-h LC50 chromium (Keller and Zam waters due to excessive mercury levels after the completion of the TMDL, six of 1991), 16 ppm arsenic trioxide, 6.8 ug/ in fish tissue. In 2002, EPA Region 4 these stream segments remain on the L, 96-h EC50 copper (Wang et al. 2007), established a TMDL for mercury levels 303(d) list. and 151 ug/L, 96-h EC50, hardness for the Altamaha River from its In 2008, EPD listed 583 km (362 mi.) ∼45 mg/L zinc (Wang et al. 2010); confluence of the Oconee and Ocmulgee of tributaries to the Altamaha River to however, effects depend upon the Rivers to Penholloway Creek (149.5 km/ the 305(b)/303(d) list of impaired length of exposure and mussel life stage 92.9 mi) including Appling, Jeff Davis, waters, and all of these stream segments (Havlik and Marking 1987, p. 1). The Long, Tattnall, Tombs, and Wayne have completed TMDLs (EPD 2008 pp. adults of certain species may tolerate Counties. This river segment is entirely A–130–A–134). The draft 2010 305(b)/ short-term exposure (Keller 1993, p. within the current or historic range of 303(d) list of impaired waters for the 701), but low levels of some metals may the spinymussel with four National Altamaha River included all of the inhibit glochidial attachment in others Pollutant Discharge Elimination System stream segments from the 2008 list and (Huebner and Pynno¨nen 1992, p. 2353; (NPDES) permitted facilities, including: added an additional 48 km (30 mi). Jacobson et al. 1993, pp. 881–882) likely • Rayonier Inc.-Jesup (67 million These are all tributaries to the Altamaha due to toxicity to glochidia. Mussel gallons per day (MGD)); or Ohoopee Rivers within the current or recruitment may be reduced in habitats • Edwin I. Hatch Nuclear Power Plant historic range of the Altamaha with low but chronic heavy metal and (Plant Hatch) (43.4 MGD); spinymussel. These stream segments are other toxicant inputs (Yeager et al. 1994, • Jesup Water Pollution Control Plant listed as impaired for a variety of p. 217; Naimo 1995, pp. 347 and 351– (WPCP) (2.5 MGD); and reasons (e.g., dissolved oxygen, fecal 352; Ahlstedt and Tuberville 1997, • Glennville WPCP (0.88 MGD) (EPA coliform, and mercury levels within fish p. 75). Researchers found that several 2002a, pp. 1–5). tissue). All of these river segments, such heavy metals were found to have toxic This 149.5-km (92.9-mi) segment of as the Ohoopee River (including the effects at different levels and duration of the Altamaha River, from the confluence historic range of the spinymussel), have exposure; however, no toxicity studies of the Oconee and Ocmulgee Rivers to TMDLs but are still considered have been conducted specifically on the Penholloway Creek, was removed from impaired. Altamaha spinymussel (Havlik and the 303(d) list in 2002 because the More than 161 km (100 mi) of the Marking 1987, p. 3; Naimo 1995, p. 341; TMDL was completed; it is currently Ohoopee River and its tributaries were Keller and Lydy 1997, p. 4). listed as a stream supporting its added to the 303(d) list in 2000 due to Furthermore, differences between designated use (fishing). excessive mercury levels in fish tissue. controlled laboratory experiments and In 2000, EPD added 23 stream The primary source of mercury is field conditions (with multiple and segments, totaling 411.9 km (256 mi), to believed to be deposition of atmospheric unknown variables) make it difficult to the 303(d) list for not meeting dissolved mercury. During 1998–1999, there were predict how contaminants affect wild oxygen standards (EPD 2002, p. 1). All seven municipal wastewater treatment

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facilities (EPA 2002b, pp. 1–3) and as discharges into the Ocmulgee River Rayonier pulp mill in Jesup, Georgia, many as 170 sources of air emissions in from Lumber City’s waste treatment and the Amercord tire facility. Mussels the watershed (EPA 2002b, p. 18). These pond in excess of its NPDES permit, in the Altamaha River Basin may sources of mercury impacted all of the Lumber City agreed to implement accumulate trace elements from the fine extirpated range of the spinymussel on several short- and long-term wastewater fraction of sediment as well as the water the Ohoopee River, which is a major treatment improvements, which are column. tributary to the Altamaha River. A expected to protect a population of The cumulative effects of effluent TMDL was established in 2002; Altamaha spinymussels (Altamaha from wastewater treatment plants and however, based on additional Riverkeeper v. City of Lumber City, CV– kaolin mines on Altamaha spinymussel information gathered since 2002, EPA 300–043 (S.D. Ga.)). The Altamaha habitat have not been quantified; will begin revising needed load Riverkeeper also discovered that from however, mussels appear to be among reductions in 2011 (EPA 2002b, p. 2). July 1995 to April 2001, the City of the most intolerant organisms to heavy These segments of the Ohoopee remain Cochran’s waste treatment pond had metals (Keller and Zam 1991, p. 545), on the 303(d) list. discharged in violation of its NPDES and several heavy metals are lethal, In 2006, EPD added five stream permit (Altamaha Riverkeepers v. City even at relatively low levels (Havlik and segments, totaling 64.3 km (40 mi), of Cochran, 162 F. Supp. 2d 1368, Marking 1987, p. 3). Most metals are within the Ohoopee drainage to the 1369–70 (M.D. Ga. 2001)). The City had persistent in the environment, 303(d) list for not meeting dissolved been releasing ferric sulfate (used to remaining available for uptake, oxygen standards (EPD 2007b, p. 1). All treat fecal coliform) into Jordan Creek, a transportation, and transformation by of these segments are within the range tributary of the Ocmulgee River organisms until they are removed from of the spinymussel. During 2004–2005, approximately 80 km (50 mi) upstream the river (Hoover 1978, pp. 28–38; there were eight NPDES permitted of known populations of Altamaha Lasier 2004, p. 140) through processes discharges with effluent limits for spinymussels. such as washing out to sea, leaching oxygen-consuming substances identified Sediment in the Oconee River carries through the soil, or being taken up by in the Altamaha River Basin watershed toxic loads of heavy metals presumably an organism that is then removed from (EPD 2007b, p. 10). There were four discharged from municipal wastewater the river. animal feeding lots and six wastewater treatment plants and kaolin-mining In areas of heavy agricultural use in land application operations that were settling ponds (Lasier 2004, pp. 139– the Southeast, surface runoff can move identified as sources of oxygen- 140, 144–151). Wastewater treatment pesticides, including malathion and demanding nutrients. Nonpoint source plants and kaolin mines often employ other insecticides, into surface water runoff from forestry, row crop settling ponds to allow pollutants to (McPherson et al. 2003, pp. 1–2). Stream agriculture, pastureland, urban settle and turbidity to decrease. Copper ecosystems are negatively impacted development, and natural sources also sulfate and aluminum sulfate are often when nutrients are added at contribute oxygen-demanding used as algaecides, to reduce algae concentrations that cannot be pollutants (EPD 2007b, pp. 13–15). blooms, and as flocculants to force assimilated (TNC 2004, p. 7). The effects Upon completion of a TMDL in 2007, precipitation of turbid waters and, in of pesticides on mussels may be these five river segments were removed water treatment processes, to improve particularly profound, potentially from the 303(d) list. the sedimentation or filterability of altering metabolic activities or resulting In addition, there have been illegal small particles. in delayed mortality (Fuller 1974, pp. effluent discharges into the Ohoopee Lasier (2004, pp. 150–151) reported 252–253; Havlik and Marking 1987, pp. that may have an adverse impact on the ‘‘abnormally’’ high levels of chromium, 9–11; Moulton et al. 1996, pp. 132–136); Altamaha spinymussel. For instance, copper, mercury, and zinc in the lower commonly used pesticides have been the wastewater treatment discharge from Oconee river that would indicate a directly implicated in a North Carolina Rogers State Prison enters the Ohoopee ‘‘significant’’ impact to the quality of mussel die-off (Fleming et al. 1995, pp. River approximately 10 km (6 mi) sediment and pore water (the water in 877–879). The Oconee, Ocmulgee, and upstream of the largest historical contact with the river bottom, and the Ohoopee River systems contain population of Altamaha spinymussels water in which mussels reside). TNC significant acreage in cotton and onion known in the Ohoopee River. The (2004, p. 9) found water quality and farming. Malathion, one of the most Altamaha Riverkeeper reported fecal sediment quality reflected ‘‘significant’’ important pesticides used in cotton coliform discharges from the prison that inputs of pollution with concentrations farming, inhibits physiological activities exceeded the prison’s NPDES permit of heavy metals (including cadmium, of mussels (Kabeer et al. 1979, pp. 71– (Holland 2002, pers. comm.). copper, chromium, lead, and zinc) at 72) and may decrease the ability of The Altamaha Riverkeeper, a levels above regional and national mussels to respire and obtain food. conservation group that works to concentrations. Shoults-Wilson (2008, Malathion toxicity (24 h LC50) has been maintain the quality of the Altamaha pp. 86–92) sampled sites throughout the reported as low as 8 mg/L for glochidia River system, has discovered a number Altamaha River Basin to evaluate the of Lampsilis siliquoidea and other of illegal discharges that could impact presence of heavy metals in the water unionid species (Keller and Ruessler the Altamaha spinymussel. In 2001, a column and in the sediment and 1997, p. 1). court found that Amercord Inc. had compared the bioaccumulation of heavy The operations of Plant Hatch, located violated its NPDES permit multiple metals by Asian clams to E. on the Altamaha River in Appling times at its Lumber City tire plant by hopetonensis (an Altamaha River County, may pose a threat to the discharging quantities of cyanide, endemic). Sampling of sites upstream Altamaha spinymussel. On September copper, zinc, and lead into the and downstream of potential point 14, 2001, the Service received Joint Ocmulgee River in excess of permit sources of heavy metals demonstrated Public Notice 940003873 from the limitations (Altamaha Riverkeeper v. ‘‘significantly’’ elevated Corps, Savannah District, describing a Amercord, Inc., No. CV 300–042 (S.D. bioaccumulation of cadmium, copper, project to expand and maintain Plant Ga.) (Order on Motion for Partial and mercury below inputs from kaolin Hatch’s intake basin within the Summary Judgment, Mar. 15, 2001)). In processing, as well as elevated zinc and Altamaha River. Implementation of this a second case, following allegations of chromium below Plant Hatch, the permit authorized annual dredging of

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the plant intake basin and authorized numerous organic compounds) may unstudied and are not considered a removing 33,965 cubic meters (44,424 cause decreased oxygen, increased threat to the Altamaha spinymussel. cubic yards) of material biannually from acidity, and other water chemistry D. The Inadequacy of Existing the intake basin. While the amount of changes that are lethal to mussels, Regulatory Mechanisms material removed annually is generally particularly the highly sensitive early far less than the amount permitted life stages of mussels; exposure to The Altamaha spinymussel is listed as (Dodd 2008, pers. comm.), annual sublethal levels of toxic metals can alter a high-priority species by the State of dredging could negatively impact the growth, filtration efficiency, enzyme Georgia (GDNR 2005, p. 135) and has Altamaha spinymussel by decreasing activity, and behavior. As a result we recently been listed as Endangered channel stability (creating a potential have determined that the present or under Georgia’s Endangered Wildlife head cut), altering sediment transport threatened destruction, modification, or Act (EWA). Under the EWA, it is dynamics, increasing sedimentation and curtailment of the Altamaha unlawful to intentionally harm, disturb, turbidity downstream during dredging spinymussel’s habitat or range is a or sell a protected animal, unless operations, and decreasing habitat threat to the continued existence of the authorized, or to cause the destruction quality for host fishes. It is unknown Altamaha spinymussel throughout its of habitat of protected animals on State- how far downstream these impacts range. owned lands. The EWA specifically extend. states, however, that rules and Impacts to aquatic fauna through B. Overutilization for Commercial, regulations promulgated under the EWA entrainment of potential host fishes and Recreational, Scientific, or Educational shall not impede construction of any thermal discharges may also occur. Purposes nature. Thus, protection under the EWA Plant Hatch takes in water to create The Altamaha spinymussel is not a prevents unlawful capture or killing of steam, and then uses the steam to commercially valuable species, nor are the listed species, but does not prevent generate electricity. Following a cooling the streams that it inhabits subject to habitat changes that lead to population process, the water is returned to the commercial mussel harvesting activities. loss. river, and although it has been cooled, However, this species has been actively Sources of nonpoint-source pollution the water temperature is warmer than sought for scientific and private include timber operations (see Our the ambient temperature of the river. collections (Keferl 2008, pers. comm.); Response to Comments 18, 19, 20 and Plant Hatch has made substantial efforts such activity may increase if the species 21), clearing of riparian vegetation, to reduce thermal discharges through becomes rarer. Overcollection may have urbanization, road construction, and the construction of cooling towers that been a localized factor in the decline of other practices that allow sediment to have significantly reduced the thermal this species, particularly in the Ohoopee enter streams (TNC 2004, p. 13). plume. However, thermal discharges River where a 1986 collection consisted Although BMPs for sediment and could still negatively impact the of at least 30 live individuals (Keferl erosion control are often recommended Altamaha spinymussel from heat stress; 2008, pers. comm.). Although the GDNR or required by local ordinances for higher water temperatures can increase can regulate the number of mussels construction projects, compliance, the sensitivity of mussels to certain collected with a Scientific Collection monitoring, and enforcement of these pollutants (Augspurger et al. 2003, p. Permit, the localized distribution and recommendations are often poorly 2574). Pandolfo et al. (2010, pp. 693– small size of known populations renders implemented. Furthermore, Georgia’s 698) also reported that high water them extremely vulnerable to Erosion and Sediment Control Act temperatures can increase the overzealous recreational or scientific exempts commercial forestry activities sensitivity of early life stages of mussels collecting. However, we have no from the need to acquire permits and to copper). These effects would be specific information indicating that meet the minimum requirements of the exacerbated during years of low rainfall, overcollection is currently a threat or Erosion and Sediment Control Act when less water would be available to that overcollecting may occur in the (Georgia’s BMPs for Forestry 2009, p. dissipate the heat of the Plant Hatch future. 64). While compliance rates are high in effluent. Plant Hatch also monitors fish Therefore, we find that overutilization the state, compliance with BMPs is entrainment, so if the host fish of the for commercial, recreational, scientific, voluntary and is dependent on spinymussel was known, management or educational purposes is not a threat education on proper implementation of efforts could be made to reduce the to the Altamaha spinymussel at this BMPs to reduce sediment from reaching potential of this impact. time. the Altamaha River (EPD 2007a, p. 28). In summary, the loss and Although historical row crop-based land modification of habitat is a significant C. Disease or Predation use contributes the majority of sediment threat to the Altamaha spinymussel. Diseases of freshwater mussels are to the Altamaha River, other sources Degradation from sedimentation and poorly known, and we have no specific continue to contribute to the total contaminants threatens the habitat and information indicating that disease sediment load (See discussion under water quality necessary to support the occurs within Altamaha spinymussel Factor A). Altamaha spinymussel. Sediment from populations or poses a threat. Juvenile Point-source discharges within the unpaved roads, kaolin mines, past and and adult mussels are preyed upon by range of the Altamaha spinymussel have current agriculture practices, some invertebrate species (particularly been reduced since the inception of the silviculture, and construction sites as newly metamorphosed juveniles), Federal Clean Water Act (33 U.S.C. 1251 within the Altamaha River Basin can parasites (for example, nematodes, et seq.), but this may not provide suffocate Altamaha spinymussels and trematodes, and mites), a few vertebrate adequate protection for filter-feeding make stable sandbars required by species (for example, otter, raccoon, and organisms that can be impacted by Altamaha spinymussels unstable or turtles) and some fish. However, we extremely low levels of contaminants. change the texture of the substrate, have no evidence of any specific Municipal wastewater plants continue rendering them unsuitable for the declines in the Altamaha spinymussel to discharge large amounts of effluent species. Contaminants associated with due to predation. and, in some circumstances, in excess of industrial and municipal effluents (e.g., In summary, diseases and predation permitted levels (see discussion under heavy metals, ammonia, chlorine, of freshwater mussels remain largely Factor A). There is no specific

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information on the sensitivity of the Cochran, No. CV–447–2)). Thus, 2). The Ohoopee River and many other Altamaha spinymussel to common existing regulations are not effective at streams in the basin suffered reduced industrial and municipal pollutants, protecting the spinymussel and its flow rates, and the Ohoopee River was and very little information on other habitat from sedimentation and lethal reported to have low water levels with freshwater mollusks. Current State and contaminants. Therefore, we find the an estimated average depth of 15 cm (6 Federal regulations regarding pollutants existing regulatory mechanisms are in) in the main channel during summer are assumed to be protective of inadequate to ameliorate the current surveys (Stringfellow and Gagnon 2001, freshwater mollusks; however, this threats to the Altamaha spinymussel p. 3) when normal channel depth is species may be more susceptible to throughout its range. several feet or more. Normally, mussels will bury themselves in the river bottom some pollutants than test organisms E. Other Natural or Manmade Factors as a mechanism to survive a drought, commonly used in bioassays. For Affecting Its Continued Existence example, several recent studies have but many mussels may have died from suggested that EPA’s criteria for Withdrawal of surface water within desiccation during this prolonged ammonia may not be protective of the Altamaha Basin for thermoelectric drought (Keferl 2008, pers. comm.). freshwater mussels (Augspurger et al. power generation, public water Although the effects of the drought on 2003, p. 2571; Newton et al. 2003, pp. supplies, commercial industrial uses, the Altamaha spinymussel have not 2559–2560; Mummert et al. 2003, pp. and agriculture has a dramatic effect on been quantified, mussel declines as a 2548–2552). New ammonia criteria have flow rates (TNC 2004, p. 8). No major direct result of drought have been been proposed by EPA (2009) that dams are located on the Altamaha River documented (Golladay et al. 2004, p. would be more protective of unionids. system within the known historical 494; Haag and Warren 2003, p. 1165). Wang et al. (2007a, p. 2036, 2007b, p. range of the Altamaha spinymussel, and Furthermore, there is a growing concern 2048, 2010, p. 2053) have also reported the nearest reservoir is approximately that climate change may lead to toxicity data for unionid early life stages 165 km (102.5 mi) from occupied increased frequency of severe storms for chlorine, metals and ammonia. In a habitat. However, the dams that form and droughts (Golladay et al. 2004, p. review of the effects of eutrophication Sinclair Reservoir on the Oconee River 504; McLaughlin et al. 2002, p. 6074; on mussels, Patzner and Muller (2004, and Jackson and Tobesofkee Reservoirs Cook et al. 2004, p. 1015) (see Comment p. 329) noted that stenoecious (narrowly in the Ocmulgee River Basin can 14). Reduction in local water supplies tolerant) species disappear as waters influence downstream mussels and their due to drought is also compounded by populations through changes in flows become more eutrophic. They also refer increased human demand and that result from electrical power to studies that associate increased levels competition for surface and ground generation and water storage (TNC 2004, of nitrate with the decline and absence water resources for power production, p. 6) (see Our Response to Comment 7). of juvenile mussels (Patzner and Muller irrigation, and consumption (Golladay Within the Altamaha River Basin, 1,149 2004, pp. 330–333). Other studies have et al. 2004, p. 504). MGD was withdrawn for thermoelectric also suggested that early life stages of In addition, low flow conditions power generation in 1990 (Marella and mussels are sensitive to inorganic provide access to the river margins and Fanning 1990, pp. 14–17); water chemicals such as chlorine, metals, and channels for all-terrain vehicles (ATV) withdrawals of this magnitude can ammonia (Keller and Zam 1991, pp. and four-wheel drive vehicles (TNC cause drastic flow reductions and 543–545; Goudreau et al. 1993, p. 221; 2004, p. 12; Stringfellow and Gagnon alterations that may strand mussels on 2001, p. 3). During a survey in 2001, Naimo 1995, pp. 354–355). Therefore, it sandbars, resulting in mortality of Stringfellow and Gagnon (2001, p. 3) appears that a lack of adequate research individuals and harm to populations. observed heavy ATV and four-wheel and data prevents existing regulations, Laurens County, Georgia, which drive vehicle traffic and high levels of such as the Clean Water Act includes the City of Dublin, withdrew erosion near bridges and homes. They (administered by EPA and the Corps), 2.64 MGD for public water supplies, encountered several groups of ATV from being fully utilized or effective. 12.79 MGD for commercial industrial users, 2 to 12 persons per group, riding In summary, some regulations exist use, and 5.57 MGD for agricultural uses in the river channel. Because water that protect the species and its habitat; in 1990 (Marella and Fanning 1990, p. levels were so low, ATV use of the however, these regulations enforced by 16). In 1990, the total amount of surface stream extended to all portions of the the State provide little direct protection water withdrawn from the Altamaha channel, including pools, runs, and of Altamaha spinymussel and only if River Basin was approximately 1,315 dried sandbars. Observations on the protection of the spinymussel will not MGD (Marella and Fanning 1990, p. 61). Ohoopee River during low flow in inhibit economic development. This information regarding water October of 2006 revealed extensive ATV Nonpoint-source pollution is not withdrawals dates back to 1990, which traffic that destroyed mussel beds regulated, and the Clean Water Act does is the most recent comprehensive effort (Rickard 2006, personal observation). not adequately protect the habitat from to study water withdrawals from this These vehicles may directly crush degradation caused by point-source watershed. As development pressures mussels and may also destabilize stream pollutants. As described under Factor A, continue to grow, water withdrawals are banks and increase sedimentation rates, there have been a number of recent expected to increase. burying mussels or impairing feeding, illegal effluent discharges into the Drought conditions were prevalent in respiration, metabolism, and Altamaha River Basin, in excess of Georgia between 1998 and 2002, and reproductive success (Stringfellow and permit limits, that may have impacted again in 2007 and 2008, which may Gagnon 2001, p. 3). the Altamaha spinymussel, and other have negatively affected the Altamaha Nonindigenous species such as the investigations are pending (Altamaha spinymussel. Georgia averages 127 cm flathead catfish and the Asian clam have Riverkeeper v. Amercord, Inc., No. CV (50 in) of precipitation annually (U.S. been introduced to the Altamaha Basin 300–042 (S.D. Ga) (Order on Motion for Geological Survey 1986, p. 195; GDNR and may be adversely affecting the Partial Summary Judgment, Mar. 15, 2005, p. 41) but received less than 102 Altamaha spinymussel. Flathead catfish 2001); Altamaha Riverkeeper v. City of cm (40 in) of precipitation annually are fast-growing fish that are dominant Lumber City, CV–300–043 (S.D. Ga); during recent droughts in 2000, 2002, predators in river systems and are (Altamaha Riverkeepers v City of and 2007 (Knaak and Joiner 2007, pp. 1– usually exclusively piscivorous in their

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adult stage (Bourret et al. 2008, p. 413; extirpation (Williams et al. 1993, p. 7; Determination Sakaris et al. 2006, p. 867). Since its Bogan 1993, p. 605). We have carefully assessed the best introduction outside its native range, The linear nature of the Altamaha scientific and commercial information the flathead catfish has altered the spinymussel’s habitat, reduced range, available regarding the past, present, composition of native fish populations and very small population size make and future threats to the Altamaha through predation (Bourett et al. 2008, this species vulnerable to random spinymussel. Section 3 of the Act p. 413; Sakaris et al. 2006, p. 867; Sea detrimental or catastrophic events. defines an ‘‘endangered species’’ as Grant, 2006, p. 2; Pine et al. 2005, p. Small, isolated populations may ‘‘any species which is in danger of 902). Flatheads were introduced to the extinction throughout all or a significant Altamaha Basin in the 1970s (USGS experience decreased demographic viability (population birth and death portion of its range’’ and a ‘‘threatened 2009, unpaginated). species’’ as ‘‘any species which is likely Although the host fish or fishes of the rates, immigration and emigration rates, to become an endangered species within Altamaha spinymussel have not been and sex ratios), increased susceptibility the foreseeable future throughout all or identified, in other native freshwater of extinction from stochastic a significant portion of its range.’’ As mussels, various centrarchids (sunfish), environmental factors (e.g., weather described in detail above, the species is ictalurids (catfish), and catostomids events, disease), and an increased threat currently at risk throughout all of its (suckers) have been identified as hosts of extinction from genetic isolation and range due to ongoing threats of habitat of the larvae. Other species of mussels subsequent inbreeding depression and destruction and modification (Factor A), in the genus Elliptio are known to genetic drift. Surviving populations of inadequacy of existing regulatory parasitize various species of Etheostoma spinymussels are small (see summary of mechanisms (Factor D), and other and Percina (darters), and other stream- Basin-wide Population Estimates), adapted fish species (Haag and Warren natural or manmade factors affecting its extremely localized, and vulnerable to continued existence (Factor E). This 2003, p. 80). Flatheads introduced in the habitat modification, toxic spills, Altamaha River eliminated bullhead species’ extremely small and isolated progressive degradation from populations make it particularly catfish (Ameiurus sp.) and caused an 80 contaminants (see discussions under percent decline in redbreast sunfish susceptible to extinction at any time due Factors A and D), and natural to threats described under Factors A, D, (Lepomis auritus) (Sea Grant 2006, p. 2); catastrophic changes to their habitats centrarchids and ictalurids were and E. (for example, flood scour and drought). The Altamaha spinymussel has been dominant prey items (Sakaris 2006, p. Low numbers of individuals may also 867). Other potential centrachid host observed at only 22 sites since 2000, increase inbreeding and reduce genetic fish such as the largemouth bass despite extensive survey efforts made by diversity (Lynch 1996, pp. 493–494) (see (Micropterus salmoides) and bluegill (L. several different researchers. Most of macrochirus) have all suffered Our Response to Comment 9). these sites are clustered geographically population declines (Harrison 2001, In summary, a variety of natural and within short reaches of the lower pers. comm.), as well as the robust manmade factors currently threatens the Ocmulgee River and the Altamaha River redhorse (Moxostoma robustum), Altamaha spinymussel. Withdrawal of upstream of U.S. Route 301, and there shortnose sturgeon (Acipenser surface water within the Altamaha are long reaches with no or undetectable brevirostrum), and shad (Alosa Basin for thermoelectric power numbers of Altamaha spinymussels sapidissima) (TNC 2004, p. 5). Some of generation, public water supplies, separating these groups of sites. Meador these declines may be attributable, at commercial industrial uses, and (2009, p. 51) attempted to estimate least in part, to flathead catfish (TNC agriculture can cause drastic flow abundance of Altamaha spinymussel in 2004, p.5). If one or more of these reductions and alterations that may the mainstem Altamaha, but was unable to capture, tag, and recapture sufficient species is the host fish for the Altamaha strand mussels on sandbars, resulting in individuals for an assessment. Recent spinymussel, the spinymussel’s mortality of individuals and harm to surveys of the Ohoopee River and the breeding success and recruitment could populations. Recurring drought and analysis presented by Wisniewski et al. be reduced by the presence of flathead water withdrawal, combined with (2005) suggest that the species may still catfish (Keferl 2001, pers. comm). impacts of off-road vehicles, has Asian clams were observed in the be declining. Finally, the comparatively reduced flows and destabilized stream low numbers of Altamaha spinymussels Altamaha River in 1971, and are banks required to support this mussel. believed to have been introduced in the collected during recent surveys of the Nonindigenous species, such as flathead Ocmulgee River in 1968 or 1969 Altamaha and Ocmulgee Rivers further catfish and the Asian clam, have (Gardner 1976, p. 117). Surveys have suggests that this species has declined potentially adversely impacted found large numbers of Asian clams in substantially from historical levels. To the Altamaha Basin for more than 25 populations of the spinymussel’s host summarize, researchers were able to years (Gardner et al. 1976, pp. 118–124; fish, thereby affecting recruitment, and find 60 Altamaha spinymussels at a Stringfellow and Gagnon 2001, p. 2; may directly impact the spinymussel single site on the Altamaha River in O’Brien, pers. comm., 2001). The through competition for resources. 1967; in contrast, the largest number of invasion of Asian clams in the Altamaha Lastly, because the Altamaha Altamaha spinymussels observed from a River has been accompanied by drastic spinymussel populations are so small single site on the Altamaha River during declines in populations of native and isolated, any factor (i.e., habitat the 1990s or 2000s was nine (Albanese mussels, although it is unknown if the change or natural and manmade factors) 2005, pers. comm.). clams competitively excluded the that results in a decline in habitat or The remaining small spinymussel mussels or simply colonized their individuals may be problematic for the populations are threatened by a variety habitat when they declined due to other long-term recovery of this species. of factors that are expected to persist factors (Gardner 1976, p. 124). Asian Therefore, we have determined that indefinitely and impact, or have the clams may pose a direct threat to native other natural and manmade factors are potential to impact, remaining species through competition for threats to the continued existence of the spinymussel habitat. These factors available resources (space, minerals, or Altamaha spinymussel throughout its include siltation, industrial pollution, food), resulting in decline or local range. municipal effluents, modification of

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stream channels, pesticides, heavy essential for the conservation of the we can designate critical habitat in areas metals, invasive species, loss of host species. outside the geographical area occupied fish, water withdrawal, recurring Conservation, as defined under by the species at the time it is listed drought, and loss of genetic viability. In section 3 of the Act, means to use and only when we determine that those addition, as described under Factor D, the use of all methods and procedures areas are essential for the conservation existing regulatory mechanisms are that are necessary to bring an of the species and that designation inadequate to ameliorate the current endangered or threatened species to the limited to those areas occupied at the threats to the Altamaha spinymussel point at which the measures provided time of listing would be inadequate to and its habitat. We believe the under the Act are no longer necessary. ensure the conservation of the species. remaining small, isolated populations of Such methods and procedures include, Section 4 of the Act requires that we spinymussels are not large enough to be but are not limited to, all activities designate critical habitat on the basis of resilient against any of the above factors associated with scientific resources the best scientific and commercial data acting on the species itself or its habitat. management such as research, census, available. Further, our Policy on Furthermore, we believe these threats, law enforcement, habitat acquisition Information Standards Under the particularly the threats to populations and maintenance, propagation, live Endangered Species Act (published in resulting from habitat degradation, trapping, and transplantation, and, in the Federal Register on July 1, 1994 (59 small population size, and drought, are the extraordinary case where population FR 34271)), the Information Quality Act current and are projected to continue pressures within a given ecosystem (section 515 of the Treasury and General into the future. If the present trends that cannot be otherwise relieved, may Government Appropriations Act for negatively affect the species and its include regulated taking. Fiscal Year 2001 (Pub. L. 106–554; H.R. limited and restricted habitat continue, Critical habitat receives protection 5658)), and our associated Information the Altamaha spinymussel is in under section 7 of the Act through the Quality Guidelines, provide criteria, immediate danger of extinction prohibition against Federal agencies establish procedures, and provide throughout all of its range; therefore, carrying out, funding, or authorizing the guidance to ensure that our decisions proposing threatened status is not destruction or adverse modification of are based on the best scientific data appropriate. critical habitat. Section 7(a)(2) requires available. They require our biologists, to We find that the Altamaha consultation on Federal actions that the extent consistent with the Act and spinymussel is presently in danger of may affect critical habitat. The with the use of the best scientific data extinction throughout its entire range, designation of critical habitat does not available, to use primary and original based on the immediacy and magnitude affect land ownership or establish a sources of information as the basis for of the threats described above. Based on refuge, wilderness, reserve, preserve, or recommendations to designate critical our analysis, we have no reason to other conservation area. Such habitat. believe that the negative population designation does not allow the When we are determining which areas trends for the Altamaha spinymussel government or public to access private we should designate as critical habitat, lands. Such designation does not our primary source of information is will improve, nor will the effects of require implementation of restoration, generally the information developed current threats acting on the species be recovery, or enhancement measures by during the listing process for the ameliorated in the foreseeable future. non-Federal landowners. Where a species. Additional information sources Therefore, we are listing the Altamaha landowner seeks or requests Federal may include articles in peer-reviewed spinymussel as an endangered species agency funding or authorization for an journals, conservation plans developed throughout all of its range. action that may affect a listed species or by States and counties, scientific status Furthermore, because we find that the critical habitat, the consultation surveys and studies, biological Altamaha spinymussel is endangered requirements of section 7(a)(2) of the assessments, or other unpublished throughout all of its range, there is no Act would apply, but even in the event materials and expert opinion or reason to consider its status in a of a destruction or adverse modification personal knowledge. significant portion of its range. finding, the Federal action agency’s and Habitat is often dynamic, and species Consequently, we are listing the the applicant’s obligation is not to may move from one area to another over Altamaha spinymussel as an restore or recover the species, but to time. In particular, we recognize that endangered species under the Act. implement reasonable and prudent climate change may cause changes in Critical Habitat alternatives to avoid destruction or the arrangement of occupied habitat adverse modification of critical habitat. river reaches. Climate change may lead Background For inclusion in a critical habitat to increased frequency and duration of Critical habitat is defined in section 3 designation, the habitat within the severe storms and droughts (Golladay et of the Act as: geographical area occupied by the al. 2004, p. 504; McLaughlin et al. 2002, (i) The specific areas within the species at the time it was listed must p. 6074; Cook et al. 2004, p. 1015). geographical area occupied by the contain the physical or biological Drought conditions in 2000–2001 and species, at the time it is listed in features essential to the conservation of 2007–2008 greatly reduced the habitat accordance with the Act, on which are the species, and be included only if of the spinymussel in the Ohoopee found those physical or biological those features may require special River and rendered the populations features management considerations or vulnerable to anthropogenic (I) Essential to the conservation of the protection. Critical habitat designations disturbances, such as water extraction species and identify, to the extent known using the and vehicles within the riverbed (Keferl (II) Which may require special best scientific and commercial data 2008, pers. comm.; Stringfellow and management considerations or available, habitat areas that provide Gagnon 2001, p. 3). protection; and essential life-cycle needs of the species The information currently available (ii) Specific areas outside the (areas on which are found the physical on the effects of global climate change geographical area occupied by the or biological features essential for the and increasing temperatures does not species at the time it is listed, upon a conservation of the species). Under the make sufficiently precise estimates of determination that such areas are Act and regulations at 50 CFR 424.12, the location and magnitude of the

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effects. Nor are we currently aware of Physical or Biological Features Sandbars, sloughs, and mid-channel any climate change information specific In accordance with sections 3(5)(A)(i) islands provide space for the to the habitat of the Altamaha and 4(b)(1)(A) of the Act and regulations spinymussel and also provide cover, spinymussel that would indicate what at 50 CFR 424.12, in determining which shelter, and sites for breeding, areas may become important to the areas within the geographical area reproduction, and growth of offspring. species in the future. Therefore, we occupied at the time of listing to Sandbars, sloughs, and mid-channel were unable to determine what designate as critical habitat, we consider islands are dynamic habitats formed and maintained by water quantity, channel additional areas, if any, may be the physical or biological features slope, and sediment input to the system appropriate to include in the critical essential to the conservation of the through periodic flooding, which habitat for this species. Furthermore, we species which may require special maintains connectivity and interaction recognize that designation of critical management considerations or with the flood plain. Changes in one or habitat may not include all of the protection. These include, but are not more of these parameters can result in habitat areas we may eventually limited to: channel degradation or channel determine, based on scientific data not (1) Space for individual and aggradation, with serious effects to now available to the Service, that are population growth and for normal mollusks. Therefore, we believe that necessary for the recovery of the behavior; stream channel stability and floodplain species. For these reasons, a critical (2) Food, water, air, light, minerals, or connectivity are essential to the habitat designation does not signal that other nutritional or physiological conservation of the Altamaha habitat outside the designated area is requirements; spinymussel. unimportant or may not be required for (3) Cover or shelter; recovery of the species. (4) Sites for breeding, reproduction, Water Areas that are important to the and rearing of offspring; and The Altamaha spinymussel is a conservation of the species, but are (5) Habitats that are protected from riverine-adapted species that depends outside the critical habitat designation, disturbance or are representative of the upon adequate water flow and is not will continue to be subject to historical, geographical, and ecological found in ponds or lakes. Continuously conservation actions we implement distribution of a species. flowing water is a habitat feature under section 7(a)(1) of the Act. These We consider the physical or biological associated with all surviving areas are also subject to the regulatory features to be the primary constituent populations of this species. Flowing protections afforded by the section elements (PCEs) laid out in the water maintains the river bottom, 7(a)(2) jeopardy standard, as determined appropriate quantity and spatial sandbars, sloughs, and mid-channel on the basis of the best available arrangement essential for the islands habitat where this species is scientific information at the time of the conservation of the species. We derive found, transports food items to the agency action. Federally funded or the PCEs from the biological needs of sedentary juvenile and adult life stages permitted projects affecting listed the species as described in the of the Altamaha spinymussel, removes species outside their designated critical Background section of this proposal. wastes, and provides oxygen for habitat areas may still result in jeopardy Unfortunately, little is known of the respiration for this species. findings in some cases. Similarly, specific habitat requirements for the The ranges of standard physical and critical habitat designations made on the Altamaha spinymussel other than that chemical water quality parameters (such basis of the best available information at they require flowing water, stable river as temperature, dissolved oxygen, pH, the time of designation will not control channels, and adequate water quality. and conductivity) that define suitable the direction and substance of future Altamaha spinymussel mussel larvae habitat conditions for the Altamaha recovery plans, habitat conservation also require a currently unknown fish spinymussel have not been investigated. plans (HCPs), or other species host for development to juvenile However, as relatively sedentary conservation planning efforts if new mussels. To identify the physical or animals, mussels must tolerate the full information available to these planning biological needs of the species, we have range of such parameters that occur efforts calls for a different outcome. relied on current conditions at locations naturally within the streams where they Methods where the species survives, the limited persist. Both the amount (flow) and the information available on this species physical and chemical conditions (water As required by section 4(b) of the Act, and its close relatives, and factors quality) where this species currently we used the best scientific data associated with the decline and exists vary widely according to season, available in determining occupied areas extirpation of these and other aquatic precipitation events, and seasonal that contain the features that are mollusks from extensive portions of the human activities within the watershed. essential to the conservation of the Altamaha River Basin. Conditions across their historical ranges Altamaha spinymussel, and unoccupied vary even more due to geology, areas that are essential for the Space for Individual and Population geography, and differences in human conservation of the Altamaha Growth and for Normal Behavior population densities and land uses. In spinymussel. The Altamaha spinymussel is general, the species survives in areas We have reviewed the available historically associated with the main where the magnitude, frequency, information pertaining to historical and stem of the Altamaha River and its duration, and seasonality of water flow current distribution, life history, and larger tributaries (greater than 500 cubic is adequate to maintain stable sandbar, habitat requirements of this species. Our feet per second (cfs) Mean Monthly slough, and mid-channel-island habitats sources included: Peer-reviewed Discharge (MMD)), and does not occur (for example, sufficient flow to remove scientific publications; unpublished in smaller tributaries. Spinymussels are fine particles and sediments without survey reports; unpublished field generally associated with stable, coarse- causing degradation), and where water observations by the Service, State, and to-fine sandy sediments of sandbars, quality is adequate for year-round other experienced biologists; and notes sloughs, and mid-channel islands, and survival (for example, moderate to high and communications from qualified they appear to be restricted to swiftly levels of dissolved oxygen, low to biologists or experts. flowing water (Sickel 1980, p. 12). moderate input of nutrients, and

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relatively unpolluted water and temperatures. Additionally, streams in Wentworth was 31.7 °C (89.1 °F) with a sediments). Therefore, adequate water the southwestern part of Georgia are maximum daily water temperature flow and water quality (as defined greatly affected by agricultural fluctuation of 2.1 °C (35.8 °F). The below) are essential to the conservation withdrawals, which can reduce or maximum water temperature recorded of the Altamaha spinymussel. eliminate the volume of groundwater in the 3,883 days within the period of It is apparent that heat stress from being discharged into waters in this part record (11/5/1999–3/9/2011) for the increased water temperature makes of the state and thus affect water Savannah River at GA highway 25 in mussels more sensitive to contaminants. temperatures in these creeks and rivers Port Wentworth was 32.4 °C (90.3 °F) A growing body of literature is more than waters in other basins. The with a maximum daily water addressing the acute thermal tolerance Altamaha River in the historical and temperature fluctuation of 3.7 °C (38.7 of mussels, (Pandolfo et al 2009, p. 347; current range of the Altamaha °F). 2010a, p. 959; 2010b, p. 691). Pandolfo spinymussel is largely forested and rural Although the maximum daily water et al. (2010a, p. 959) reported upper and exhibits those conditions most fluctuations of the Savannah River at lethal temperatures for early life stages similar to the Savannah River gauge Augusta (02197000) and the Savannah of 8 species of unionid mussels and the near Port Wentworth (02198840). Unlike River at Port Wentworth (02198920) are average median lethal temperature the Savannah River near the gauge in greater than the daily temperature ° (LT50) was 31.6 C. Pandolfo et al. Augusta (02197000), the Altamaha River fluctuation recommended in the PCEs of (2009, p. 347) reported a measurable Basin in the area that is designated as the Altamaha spinymussel listing physiological indicator of stress (i.e., critical habitat is more than 165 km (103 proposal, it is important to note that increased heart rate) in juvenile mussels miles) from the nearest reservoir and these sites are located in or immediately ° exposed to temperatures as little as 3 C thus the effects of hypolimnetic downstream of major industrial/urban ° above ambient (i.e. 30 C). Pandolfo et discharges are not considered a threat to areas or dams which likely contribute to al. (2010b, p. 691) clearly demonstrated the Altamaha spinymussel. (Layzer and the greater daily fluctuations in water an interaction between temperature and Madison 1995, pp. 340–344; Watters temperatures. Furthermore, sensitivity to copper in juveniles of 2000, p. 265; Wisniewski 2011, pers. temperatures on the Savannah River in three mussel species: fatmucket comm.). Augusta are influenced by hypolimnetic (Lampsilis siliquoidia), pink heelsplitter discharges from Clarks Hill Reservoir The water quality metrics PCE was (Potamilus alatus), and black sandshell and New Savannah Bluff Lock and Dam, derived using data collected from the (Ligumia recta). In short, mussels which are located immediately exposed to copper were less able to Altamaha River and its tributaries upstream of the USGS gauge station. withstand thermal stress. Clearly within the historical range of the Therefore, water temperatures at the stressors do not occur in isolation and Altamaha spinymussel. Temperature Savannah River gauge (02198840) more multiple-stressor research is measurements collected throughout the upstream of Port Wentworth, which is desperately needed. Because thermal Altamaha, Ocmulgee, and Oconee rivers located in a densely forested and rural in this area ranged from 8.6 °C to 32.6 tolerance data do not exist for ° ° area and well downstream of any spinymussel or other Altamaha mussel C (47.5 to 90.7 F). Observations of potential hypolimnetic discharges are species, we are left to use the best historical United States Geological likely more similar to those available data to approximate Survey (USGS) gauge data at several temperatures and fluctuations observed spinymussel thermal tolerance, and we sites on the Altamaha River near Jesup in the Altamaha River (Wisniewski believe this to be the most valid indicated that the maximum water 2011, pers. comm.). temperature observed between 1974 and A natural flow regime that includes approach for establishing a thermal PCE ° ° for spinymussel. Pandolfo et al. (2010a, 1984 was 32 C (89.7 F) (Dyar and periodic flooding and maintains p. 959) indicates that the lowest 48-hr Alhadef 1997, p. 26). Since none of the connectivity and interaction with the LT50 (median lethal temperature) was USGS gauge stations on the Altamaha flood plain is critical for the exchange 33.8 °C. River or its major tributaries include of nutrients, spawning activities for In addition to physiological stress due recent temperature data, we potential host fish, and sand bar to temperature itself, temperature downloaded daily stream temperature maintenance. In 2007, persistent severe greatly influences the form (and thereby data from the USGS gauge stations drought conditions throughout the the toxicity) of other compounds, most found on the nearby Savannah River, southeastern United States created notably ammonia. Higher temperatures which is similar to the Altamaha River record low discharges (streamflow) in result in a shift from the nontoxic in size and its location within the the Altamaha River at the U.S. ∂ ammonium ion (NH4 ) to the highly Coastal Plain physiographic province of Geological Survey (USGS) gauge station toxic ammonia ion (NH3). Ammonia Georgia. Three gauge stations on the in Doctortown, Georgia. During the may be one of the primary limiting Savannah River collect temperature driest portions of the 2006–2009 factors in reaches of river downstream data: Savannah River at Augusta drought period, the lowest discharges from point and nonpoint sources of (02197000), Savannah River near Port observed were 25 percent of the MMD nitrogen such as municipal wastewater Wentworth, upstream of Interstate 95 for the 77-year period of record for the treatment facilities and agricultural (02198840), and Savannah River at Port Doctortown gauge. Despite record low fields, among others (Bringolf 2011, Wentworth (02198920). At the gauge flows, native unionids (mussels) pers. comm.). station in Augusta, the maximum water appeared to persist throughout most of These rivers (in the Altamaha Basin), temperature recorded in the 323 days the Lower Altamaha River Basin. like most Atlantic Slope drainages in within the day period of record (4/21/ The numeric standards for pollutants Georgia receive a majority of their water 2010–3/9/2011) was 24.8 °C (76.6 °F) and water quality parameters (for through overland flow and runoff and the maximum daily water example, dissolved oxygen, pH, heavy whereas streams in the southwestern temperature fluctuation was 5.7 °C (42.3 metals) have been adopted by the State part of Georgia receive a large °F). The maximum water temperature of Georgia under the Clean Water Act proportion of their water though recorded in the 3,835 days within the (33 U.S.C. 1251 et seq.). Water quality groundwater discharges, which have period of record (10/13/1999–3/9/2011) standards set by the State of Georgia are greater influences on stream flows and for the Savannah River near Port based on water quality criteria

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established by EPA for protection of column (Williams et al. 2008, p. 67). growth of filamentous algae can expose aquatic life. That said, mussels are not Although the life history of the juvenile mussels to entrainment or currently represented in datasets used Altamaha spinymussel has not been predation and be detrimental to the by EPA for derivation of water quality studied, the life histories of other survival of juvenile mussels (Hartfield criteria. Some of these standards mussels in the Elliptio genus indicate and Hartfield 1996, pp. 372–374). (particularly organic and heavy metal that adult freshwater mussels are filter- Geomorphic instability can result in the contaminants) may not adequately feeders, siphoning phytoplankton, loss of interstitial habitats and juvenile protect Altamaha spinymussels, or are diatoms, and other microorganisms from mussels due to scouring or deposition not being appropriately measured, the water column. For the first several (Hartfield 1993, pp. 372–373). monitored, or achieved in some reaches months, juvenile mussels employ pedal Therefore, stable sandbar, slough, and (see discussions under Factors A and D). (foot) feeding, extracting bacteria, algae, mid-channel-island habitats with low to While Georgia’s pH criterion is a range and detritus from the sediment (Yeager moderate amounts of filamentous algae of 6.0 to 8.5 under the adopted State et al. 1994, pp. 217–221; Cope et al. growth are essential to the conservation standards, data compiled by the GDNR 2008, p. 457). Food availability and of the Altamaha spinymussel. indicate that pH at 159 sites in the quality for the Altamaha spinymussel in Periodic floodplain connectivity that Altamaha River Basin averaged 6.9 and sandbars, sloughs, and mid-channel- occurs during wet years provides ranged from 4.9 to 9.1, which means island habitats are affected by habitat habitats for spawning and foraging many sites are outside of the range stability, floodplain connectivity, flow, activities to fishes requiring floodplain adopted by the State. Potential and water quality. habitats for successful reproduction and contaminants such as ammonia may be recruitment to adulthood. Barko et al. Sites for Breeding, Reproduction, or more lethal at pH levels at the edges of (2006, pp. 252–256) found several fish Rearing the observed range. Therefore, we species benefited from the resource removed outliers from this data set by Freshwater mussels require a host fish exploitation of floodplain habitats that generating the 10th and 90th percentiles for transformation of larval mussels were not typically available for use for pH, which were 6.1 to 7.7 standard (glochidia) to juvenile mussels during hydrologically normal years. units. These levels are likely more (Williams et al. 2008, p. 68); therefore, Furthermore, Kwak (1988, pp. 243–247) representative of natural pH levels the presence of the appropriate host fish and Slipke et al. (2005, p. 289) indicated associated with the Altamaha River is essential to the conservation of the that periodic inundation of floodplain Basin and would likely reduce lethal Altamaha spinymussel. The specific fish habitats increased successful fish contaminant associations between other host(s) for the Altamaha spinymussel is reproduction, which leads to increased chemicals in the watershed. unknown; however, other species of availability of native host fishes for Current Georgia TMDLs for waters mussels in the genus Elliptio are known unionid reproduction. However, Rypel supporting warm-water fishes require a to parasitize various species of et al. (2009, p. 502) indicated that daily average dissolved oxygen (DO) Etheostoma, Percina, and other stream- unionids tended to exhibit minimal concentration of 5.0 mg/l and a adapted fish species (Haag and Warren growth during high flow years. minimum of 4.0 mg/l. The mean DO 2003, p. 80). Eighty-five fish species Therefore, optimal flooding of these concentration of 217 measurements representing 22 families are native to habitats would not be too frequent and made in known spinymussel sites the Altamaha River Basin. Five families should occur at similar frequencies to throughout the Altamaha River Basin account for 65 percent of the native fish that of the natural hydrologic regime of was 8.7 mg/l and ranged from species in the Altamaha River Basin. the Altamaha River. 0.42 mg/l to 20.3 mg/l. The 10th and The family Cyprinidae comprises 20 Primary Constituent Elements (PCEs) 90th percentiles for DO were 4.3 and 9.7 percent of the fish species, while for the Altamaha Spinymussel mg/l, which are similar to the Centrarchidae, Catostomidae, observations of Golladay et al. (2004, Ictaluridae, and Percidae comprise 15 Based on the above needs and our pp. 501–503). A daily average DO percent, 12 percent, 11 percent, and 8 current knowledge of the life history, concentration of 5.0 mg/l and a percent of the species, respectively. biology, and ecology of the species, we minimum DO concentration of 4.0 mg/ These families are known to be suitable have determined that the Altamaha l should provide adequate protection for hosts for most unionids in North spinymussel’s PCEs are: the Altamaha spinymussel. America. All 85 species native to the (1) Geomorphically stable river Other factors that can potentially alter Altamaha River Basin are still present channels and banks (channels that water quality are droughts and periods within the basin; however, populations maintain lateral dimensions, of low-flow, nonpoint-source runoff of several fish species, particularly longitudinal profiles, and sinuosity from adjacent land surfaces (for anadromous fishes (e.g., striped bass, patterns over time without an aggrading example, excessive amounts of Atlantic and shortnose sturgeon, or degrading bed elevation) with stable nutrients, pesticides, and sediment), American shad and other herrings), sandbar, slough, and mid-channel- and random spills or unregulated have declined substantially in recent island habitats of coarse-to-fine sand discharge events. This could be decades and, if used as hosts, may be substrates with low to moderate particularly harmful during drought related to declines in Altamaha amounts of fine sediment and attached conditions when flows are depressed spinymussel abundance. Host trials filamentous algae. and pollutants are more concentrated. with 10 species of fish from six families (2) A hydrologic flow regime (the Adequate water quality is essential for (Centrarchidae, Cyprinidae, Ictaluridae, magnitude, frequency, duration, and normal behavior, growth, and viability Moronidae, Acipenseridae, seasonality of discharge over time) during all life stages of the Altamaha Catostomidae) did not produce any necessary to maintain benthic habitats spinymussel. juvenile Altamaha spinymussels where the species are found and to (R. Bringolf 2010, pers. comm.). maintain connectivity of rivers with the Food Juvenile Altamaha spinymussels floodplain, allowing the exchange of Unionid mussels, such as the require stable sandbar, slough, and mid- nutrients and sediment for sand bar Altamaha spinymussel, filter algae, channel-island habitats for growth and maintenance, food availability, and detritus, and bacteria from the water survival. Excessive sediments or dense spawning habitat for native fishes.

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(3) Water quality necessary for normal management considerations or endangered or threatened species. Areas behavior, growth, and viability of all life protection. Some of these activities designated as critical habitat for the stages, including specifically include, but are not limited to, those Altamaha spinymussel include only temperature (less than 32.6 °C (90.68 °F) discussed in the ‘‘Summary of Factors stream channels within the ordinary with less than 2 °C (3.6 °F) daily Affecting the Species,’’ above. Features high-water line, and do not contain any fluctuation)), pH (6.1 to 7.7), oxygen in all the final critical habitat units may developed areas or structures. The content (daily average DO concentration require special management due to ordinary high-water line defines the of 5.0 mg/l and a minimum of 4.0 mg/ threats posed by land-use runoff and stream channel and is the point on the l), an ammonia level not exceeding point- and nonpoint-source water stream bank where water is continuous pollution (see discussion under Factor 1.5 mg N/L, 0.22 mg N/L (normalized to and leaves some evidence such as pH 8 and 25 °C (77 °F)), and other A and Factor D). Other activities that erosion or aquatic vegetation. chemical characteristics. may affect PCEs in the final critical (4) The presence of fish hosts habitat units include those listed in the Occupied Stream Reaches Designated as (currently unknown) necessary for ‘‘Effects of Critical Habitat’’ section Critical Habitat recruitment of the Altamaha below. spinymussel. The continued occurrence In summary, we find that the areas we We have defined occupied habitat as of diverse native fish assemblages are designating as critical habitat that those stream reaches known to be currently occurring in the basin will were occupied at the time of listing currently occupied by the Altamaha serve as an indication of host fish contain the physical or biological spinymussel. We used information from presence until appropriate host fishes features essential to the conservation of surveys and reports prepared by the can be identified for the Altamaha the Altamaha spinymussel, which may GDNR, private contractors, and Service spinymussel. require special management field records to identify the specific This final designation is designed to considerations or protection. Special locations occupied by the Altamaha conserve those areas containing the management consideration or protection spinymussel. PCEs in the appropriate spatial may be required to eliminate, or to arrangement and quantity essential to reduce to negligible levels, the threats Currently, the limited occupied the conservation of the species. affecting each unit and to preserve and habitat for this species is extremely Units are designated based on maintain the essential features that the scattered and isolated. The Altamaha sufficient PCEs present to support at final critical habitat units provide to the spinymussel persists in scattered least one of the species’ life history Altamaha spinymussel. We are also portions of the Altamaha and Ocmulgee functions. In this final designation, all designating areas outside the Rivers (see Population Estimates and occupied areas (Units 1, 2, and 3) geographical area occupied by the Status above). We have determined that contain all PCEs and support multiple species at the time of listing that have all occupied areas contain features life processes. The unoccupied area been determined to be essential for the essential to the conservation of the (Unit 4) contains PCEs 1, 2 and 4, but conservation of the species. Additional species. does not currently meet the water discussions of threats facing individual River habitats are highly dependent quality standard (see Unit 4 below). sites are provided in the individual unit upon upstream and downstream descriptions. Special Management Considerations or channel habitat conditions for their Protections Criteria Used to Identify Critical maintenance. Therefore, where one When designating critical habitat, we Habitat occurrence record was known from a assess whether the areas within the As required by section 4(b) of the Act, river reach, we considered the entire geographical area occupied by the we used the best scientific data reach between the uppermost and species at the time of listing contain available in determining areas within lowermost locations as occupied features that are essential to the the geographical area occupied by the habitat, as discussed below. conservation of the species and whether species that contain the physical or The Altamaha spinymussel is those features may require special biological features essential to the currently known to survive in scattered management considerations or conservation of the Altamaha populations along 223 km (138 mi) of protection. None of the critical habitat spinymussel (see above), and areas the Ocmulgee and upper Altamaha units being designated for this species outside of the geographical area Rivers extending from Telfair and Ben have been designated as critical habitat occupied by the species that are Hill Counties to Long and Wayne for other species under the Act. Large essential for the conservation of the Counties, Georgia, except for a 2.7-km areas of upland habitat adjacent to the species. We are designating as critical (1.7-mi) reach of river in the vicinity of designated critical habitat are currently habitat all river channels that are the Plant Hatch facility. From 1997 protected or receive special currently occupied by the species. We through 2009, researchers searched 336 management; 13.4 km (8.4 mi.) on both are also designating a specific area not sides of the river and 75.9 km (47.0 mi) currently occupied but that was sites throughout the basin and on one side of the river only are historically occupied, because we have documented 57 Altamaha spinymussels, managed as conservation properties determined (1) That the area is essential with all occurrences widely scattered through easements with 300’ buffers on for the conservation of the Altamaha throughout its current range. There are many timber lands and active spinymussel, and (2) that designating no known barriers to movement in this management on lands owned by the only occupied habitat is not sufficient to range; therefore, we consider the entire State and The Nature Conservancy (see conserve this species. 223-km (138-mi) reach between the Table 2). However, approximately 148 When determining final critical uppermost and lowermost collection km (92 mi) have no protection. Various habitat boundaries, we make every effort sites for the Altamaha spinymussel as activities in or adjacent to each of the to avoid including developed areas such occupied habitat. In the area designated critical habitat units described in this as lands covered by buildings, as critical habitat, boundaries extend final rule may affect one or more of the pavement, and other structures because from the nearest downstream landmark PCEs and may require special such lands usually lack PCEs for at both ends of the reach.

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Unoccupied Stream Reaches Designated for designation as critical habitat. perennial water flows, and appropriate as Critical Habitat Historical records of Altamaha benthic substrates) to support life spinymussel occurred in the lower In identifying unoccupied river history functions of the Altamaha portions of the Ohoopee River. Keferl reaches that could be essential for the spinymussel; (1981, p. 15) referred to the Ohoopee as conservation of the Altamaha (2) It supports diverse aquatic mollusk a possible refuge for the Altamaha spinymussel, we first considered the communities, including the presence of spinymussel. However, extreme drought availability of potential habitat closely related species requiring PCEs and all-terrain vehicle disturbance throughout the historical range that may similar to the Altamaha spinymussel; appear to have extirpated the species be suitable for the survival and and from otherwise suitable habitat. persistence of the species. We also (3) It is adjacent to currently occupied The unoccupied stream reach we are areas where there is potential for natural eliminated from consideration free- designating as critical habitat was dispersal and reoccupation by the flowing rivers or river segments without historically occupied (i.e., prior to 1997; Altamaha spinymussel. any historical records of occurrence see Table 1). We believe that this reach (that is the Little Ocmulgee River and is essential for Altamaha spinymussel (4) It is essential to the conservation the upper portions of the Oconee and conservation because the range of the of the species. Ocmulgee Rivers). We eliminated the Altamaha spinymussel has been Critical Habitat Designation lower portion of the Altamaha River severely curtailed, occupied habitats are from consideration because of poor limited and isolated, and population We are designating four units, totaling water quality and limited habitat sizes are extremely small, and the area approximately 237.4 km (147.5 mi), as availability. The lower Oconee River meets the selection criteria identified critical habitat for the Altamaha was initially eliminated due to poor below. Furthermore, the occupied spinymussel. Georgia owns navigable water quality and limited habitat habitats are contiguous, placing them at stream bottoms within the ordinary availability, however, recent mussel high risk of extirpation and extinction high-water line. All units are considered surveys have demonstrated that water from stochastic events. The inclusion of navigable and, as stated below, critical quality is likely adequate for the essential unoccupied areas, in a separate habitat is designated for the stream spinymussel and suitable habitat is tributary, will provide habitat for channel within the ordinary high-water available. However, only one tributary is population reintroduction, reduce the line only. Accordingly, the State of needed as critical habitat, and the lower level of stochastic threats to the species’ Georgia owns the stream bottoms within Oconee only has one known observation survival, and decrease the risk of all of the areas designated as critical of spinymussels from 1968, conversely extinction for this species. habitat. Lands adjacent to critical the Ohoopee has multiple reports of The area designated as critical habitat habitat units are either in private spinymussel with the most recent in that is not known to be currently ownership or conservation status. Table 1997. See our response to Comment 8. occupied meets all of the following 2 identifies the critical habitat units, We have identified 14.4 km (9 mi) of criteria: occupancy of the units, the approximate habitat in the Ohoopee River that is (1) It contains sufficient PCEs (for extent designated as critical habitat, and currently unoccupied by the Altamaha example, such characteristics as provides information on adjacent land spinymussel and that meets the criteria geomorphically stable channels, ownership and conservation status.

TABLE 2—OCCUPANCY AND OWNERSHIP OF LANDS ADJACENT TO CRITICAL HABITAT UNITS FOR ALTAMAHA SPINYMUSSEL

Conservation/ Unit Location Occupancy Total length Private private Conservation km (mi) km (mi) km (mi) km (mi)

1 ...... Ocmulgee River ...... Occupied ...... 110 (68.3) 89.2 (55.4) 14.3 (8.8) 6.4 (4.0) 2A ...... Upper Altamaha River A ..... Occupied ...... 31.4 (19.5) 2.7 (1.7) 21.6 (13.4) 7.1 (4.4) 2B ...... Upper Altamaha River B ..... Occupied ...... 30.7 (19.1) 22.9 (14.2) 7.8 (4.9) 0 (0) 3 ...... Middle Altamaha River ...... Occupied ...... 50.9 (31.6) 18.8 (11.7) 32.1 (19.9) 0 (0) 4 ...... Lower Ohoopee River ...... Unoccupied ...... 14.4 (9.0) 14.4 (9.0) 0 (0) 0 (0)

Total ...... 237.4 (147.5) 148 (92) 75.9 (47) 13.4 (8.4) * Ownership is categorized by private ownership on both banks of the river (Private), conservation area on one bank and private on the other (Conservation/Private), and conservation area on both banks (Conservation).

The critical habitat units include the For each stream reach designated as a Unit 1: Ocmulgee River, Ben Hill, river channels below the ordinary high critical habitat unit, the upstream and Telfair, Coffee, and Jeff Davis Counties water mark. As defined in 33 CFR downstream boundaries are described Unit 1 includes 110 km (68.3 mi) of 329.11, the ordinary high water mark on generally below. More precise the lower Ocmulgee River from the nontidal rivers is the line on the shore definitions are provided in the confluence of House Creek with the established by the fluctuations of water Regulation Promulgation section at the Ocmulgee River at Red Bluff Landing in and indicated by physical end of this rule. Ben Hill and Telfair Counties, characteristics, such as a clear, natural We present brief descriptions of all downstream to the Altamaha River (at line impressed on the bank; shelving; units and reasons why they meet the the confluence of the Oconee and changes in the character of soil; definition of critical habitat for the Ocmulgee Rivers, Jeff Davis and Telfair destruction of terrestrial vegetation; the Altamaha spinymussel: Counties). Live Altamaha spinymussels presence of litter and debris; or other have been collected from 11 sites within appropriate means that consider the Unit 1, the uppermost near Red Bluff characteristics of the surrounding areas. (Thomas and Scott 1965, p. 67). Surveys

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conducted since 1997 on the Ocmulgee O’Brien 2002, p. 2; Wisniewski 2009, here since the mid-1990s (Stringfellow River have yielded 19 Altamaha pers. comm.). The entire reach of the and Gagnon 2001, pp. 1–2) and is spinymussels from 7 sites (Cammack et Altamaha River that composes Unit 2 is considered extirpated. Historic al. 2001, p. 11; O’Brien 2002, p. 2; occupied. This unit contains all of the collections were made from seven sites Dinkins 2004, pp. 1–1, 2–1). The entire PCEs. (Keferl 1981, p. 14). Keferl (1981, p. 15) reach of the Ocmulgee River that The Altamaha spinymussel and its considered the Ohoopee to contain composes Unit 1 is occupied. This unit habitat may require special management excellent habitat that would serve as a contains all of the PCEs. considerations or protection to address refuge for declining mussel populations. The Altamaha spinymussel and its changes in the existing flow regime due This stretch of the Ohoopee River habitat may require special management to activities such as impoundment, contains PCEs 1, 2, and 4 for the considerations or protection to address water diversion, or water withdrawal; Altamaha spinymussel, and continues changes in the existing flow regime due alteration of water chemistry or water to support four species commonly to activities such as impoundment, quality; and changes in streambed associated with the presence of the water diversion, or water withdrawal; material composition and quality from Altamaha spinymussel: Elliptio alteration of water chemistry or water activities that would release sediments dariensis (75 percent of sites with E. quality; and changes in streambed or nutrients into the water, such as spinosa), E. hopetonensis (93 percent), material composition and quality from deadhead logging (instream log salvage), E. shepardiana (80 percent), and activities that would release sediments construction projects, livestock grazing, Lampsilis dolabraeformis (90 percent). or nutrients into the water, such as timber harvesting, and off-road vehicle Lampsilis splendida was found at 72 deadhead logging (instream log salvage), use. percent of sites (Wisniewski 2009, pers. construction projects, livestock grazing, Unit 3: Middle Altamaha River, comm.). The Ohoopee does not meet timber harvesting, and off-road vehicle Tattnall, Appling, Wayne, and Long state water quality standards for use. Counties mercury, however, EPA will begin revising needed load reductions in 2011 Unit 2: Upper Altamaha River, Wheeler, Unit 3 includes approximately 50.9 Toombs, Montgomery, Jeff Davis, (EPA 2002b, p. 2). km (31.6 mi) of the Altamaha River from Critical habitat units 1, 2, and 3 are Appling, and Tatnall Counties the confluence with the Ohoopee contiguous, making them very Unit 2 includes a total of 62.1 km (Tattnall and Appling Counties) vulnerable to a catastrophic event that (38.6 mi) of the Altamaha River from the downstream to U.S. Route 301 (Wayne could eliminate all known occupied confluence of the Ocmulgee and Oconee and Long Counties). Historic and recent habitat for the Altamaha spinymussel. Rivers (Wheeler and Jeff Davis Counties) surveys of the middle Altamaha River Therefore, we believe that the stream downstream to the confluence of the have yielded live Altamaha segment within this unit is essential to Altamaha and Ohoopee Rivers (Appling spinymussels from 26 sites. Shell the conservation of the species because and Tattnall Counties). material was found at an additional 13 reestablishing the Altamaha Unit 2A includes 31.4 km (19.5 mi) of sites (Keferl 1981, p. 14; Keferl 1995, p. spinymussel on a separate tributary the Altamaha River from the confluence 3; Cammack et al. 2001, p. 11; O’Brien such as the Ohoopee River would of the Ocmulgee and Oconee Rivers to 2002, p. 2; Wisniewski 2009, pers. significantly reduce the impact of Route 1. comm.). The entire reach of the stochastic threats to the species’ Unit 2B includes 30.7 km (19.1 mi) of Altamaha River that composes Unit 3 is survival. the Altamaha River from the upstream occupied. This unit contains all of the boundary of Moody Forest to the PCEs. Effects of Critical Habitat Designation confluence of the Altamaha and The Altamaha spinymussel and its Section 7 Consultation Ohoopee Rivers. habitat may require special management However, we are not including in this considerations or protection to address Section 7(a)(2) of the Act requires critical habitat designation a stretch of changes in the existing flow regime due Federal agencies, including the Service, the Altamaha River from U.S. Route 1 to such activities as impoundment, to ensure that actions they fund, downstream to the State-owned water diversion, or water withdrawal; authorize, or carry out are not likely to property of Moody Forest (2.7 km (1.7 alteration of water chemistry or water destroy or adversely modify critical mi)), which includes Plant Hatch. This quality; and changes in streambed habitat. Decisions by the courts of area does not contain the PCEs material composition and quality from appeals for the Fifth and Ninth Circuits necessary for the Altamaha spinymussel activities that would release sediments Courts of Appeals have invalidated our due to: or nutrients into the water, such as definition of ‘‘destruction or adverse (1) Dredging for intake pipes at Plant deadhead logging (instream log salvage), modification’’ (50 CFR 402.02) (see Hatch, which destabilizes the river construction projects, livestock grazing, Gifford Pinchot Task Force v. U.S. Fish channel and banks, sandbar, slough, and timber harvesting, and off-road vehicle and Wildlife Service, 378 F.3d 1059 (9th mid-channel-island habitats and use. Cir. 2004) and Sierra Club v. U.S. Fish disrupts the movement of coarse-to-fine and Wildlife Service et al., 245 F.3d 434, sand substrates with low to moderate Unit 4: Lower Ohoopee River, Tattnall 442F (5th Cir. 2001)), and we do not rely amounts of fine sediment; and County on this regulatory definition when (2) Thermal discharges from Plant Unit 4 includes the lower 14.4 km (9 analyzing whether an action is likely to Hatch that reduce water quality. mi) of the Ohoopee River, from 2.2 km destroy or adversely modify critical In the upper Altamaha River, historic (1.3 mi) upstream of Tattnall County habitat. Under the statutory provisions surveys collected Altamaha Road 191, downstream to the of the Act, we determine destruction or spinymussels from 15 sites, while recent confluence of the Ohoopee and the adverse modification on the basis of surveys have collected live Altamaha Altamaha River in Tattnall County, whether, with implementation of the spinymussels from only 2 sites; dead Georgia. proposed Federal action, the affected shells have been collected from an The Altamaha spinymussel critical habitat would remain functional additional 14 sites (Sickel 1980; Keferl historically occupied this stretch of the (or retain those physical or biological 1995, p. 3; Cammack et al. 2001, p. 11, Ohoopee River but has not been found features that relate to the ability of the

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area to periodically support the species) request reinitiation of consultation with ability for the PCEs to be functionally to serve its intended conservation role us on actions for which formal established. Activities that may destroy for the species. consultation has been completed, if or adversely modify critical habitat are If a species is listed or critical habitat those actions with discretionary those that alter the physical or is designated, section 7(a)(2) of the Act involvement or control may affect biological features to an extent that requires Federal agencies to ensure that subsequently listed species or appreciably reduces the conservation activities they authorize, fund, or carry designated critical habitat. value of critical habitat for the Altamaha out are not likely to jeopardize the Federal activities that may affect spinymussel. continued existence of the species or to Altamaha spinymussel or its designated Section 4(b)(8) of the Act requires us destroy or adversely modify its critical critical habitat require section 7 to briefly evaluate and describe, in any habitat. If a Federal action may affect a consultation under the Act. Activities proposed or final regulation that listed species or its critical habitat, the on State, Tribal, local, or private lands designates critical habitat, activities responsible Federal agency (action requiring a Federal permit (such as a involving a Federal action that may agency) must enter into consultation permit from the U.S. Army Corps of destroy or adversely modify such with us. As a result of this consultation, Engineers under section 404 of the habitat, or that may be affected by such we document compliance with the Clean Water Act (33 U.S.C. 1251 et seq.) designation. requirements of section 7(a)(2) through or a permit from us under section 10 of Activities that, when carried out, our issuance of: the Act) or involving some other Federal funded, or authorized by a Federal (1) A concurrence letter for Federal action (such as funding from the Federal agency, may affect critical habitat and, actions that may affect, but are not Highway Administration, Federal therefore, should result in consultation likely to adversely affect, listed species Aviation Administration, or the Federal for the Altamaha spinymussel include, or critical habitat; or Emergency Management Agency) are but are not limited to: (2) A biological opinion for Federal subject to the section 7 consultation (1) Actions that would alter the geomorphology of their stream and river actions that may affect, and are likely to process. Federal actions not affecting habitats. Such activities could include, adversely affect, listed species or critical listed species or critical habitat, and but are not limited to, instream habitat. actions on State, Tribal, local, or private excavation or dredging, impoundment, When we issue a biological opinion lands that are not federally funded, channelization, and discharge of fill concluding that a project is likely to authorized, or permitted, do not require materials. These activities could cause jeopardize the continued existence of a section 7 consultations. aggradation or degradation of the listed species or destroy or adversely Application of the Jeopardy and channel bed elevation or significant modify critical habitat, we also provide Adverse Modification Standard bank erosion, result in entrainment or reasonable and prudent alternatives to burial of these mollusks, and cause Jeopardy Standard the project, if any are identifiable. We other direct or cumulative adverse define ‘‘reasonable and prudent Prior to and following listing and effects to these species and their life alternatives’’ at 50 CFR 402.02 as designation of critical habitat, the cycles. alternative actions identified during Service applies an analytical framework (2) Actions that would significantly consultation that: • for jeopardy analyses that relies heavily alter the existing flow regime. Such Can be implemented in a manner on the importance of the core area activities could include, but are not consistent with the intended purpose of population (middle mainstem limited to, impoundment, water the action, • Altamaha) to the survival and recovery diversion, water withdrawal, and Can be implemented consistent of the species. The section 7(a)(2) hydropower generation. These activities with the scope of the Federal agency’s analysis is focused not only on these could eliminate or reduce the habitat legal authority and jurisdiction, • populations but also on the habitat necessary for growth and reproduction Are economically and conditions necessary to support them. of these mollusks. technologically feasible, and The jeopardy analysis usually (3) Actions that would significantly • Would, in the Director’s opinion, expresses the survival and recovery alter water chemistry or water quality avoid jeopardizing the continued needs of the species in a qualitative (for example, temperature, pH, existence of the listed species or fashion without making distinctions contaminants, and excess nutrients). destroying or adversely modifying between what is necessary for survival Such activities could include, but are critical habitat. and what is necessary for recovery. not limited to, hydropower discharges, Reasonable and prudent alternatives can Generally, if a proposed Federal action or the release of chemicals, biological vary from slight project modifications to is incompatible with the viability of the pollutants, or heated effluents into extensive redesign or relocation of the affected core area population, inclusive surface water or connected groundwater project. Costs associated with of associated habitat conditions, a at a point source or by dispersed release implementing a reasonable and prudent jeopardy finding is considered to be (nonpoint source). These activities alternative are similarly variable. warranted, because of the relationship could alter water conditions that are Regulations at 50 CFR 402.16 require of the core area population to the beyond the tolerances of these mollusks Federal agencies to reinitiate survival and recovery of the species as and result in direct or cumulative consultation on previously reviewed a whole. adverse effects to the species and their actions in instances where we have life cycles. listed a new species or subsequently Adverse Modification Standard (4) Actions that would significantly designated critical habitat that may be The key factor related to the adverse alter stream bed material composition affected and the Federal agency has modification determination is whether, and quality by increasing sediment retained discretionary involvement or with implementation of the proposed deposition or filamentous algal growth. control over the action (or the agency’s Federal action, the affected critical Such activities could include, but are discretionary involvement or control is habitat would continue to serve its not limited to, construction projects, authorized by law). Consequently, intended conservation role for the livestock grazing, timber harvest, off- Federal agencies may sometimes need to species, or would retain its current road vehicle use, and other watershed

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and floodplain disturbances that release critical habitat on the basis of the best and management for the Altamaha sediments or nutrients into the water. available scientific data after taking into spinymussel. None of the comments These activities could eliminate or consideration the economic impact, provided sufficient information to reduce habitats necessary for the growth national security impact, and any other satisfy the criteria necessary for and reproduction of these mollusks by relevant impact of specifying any exclusion from final critical habitat. causing excessive sedimentation and particular area as critical habitat. The In preparing this final rule, we burial of the species or their habitats, or Secretary may exclude an area from determined that the lands within the nutrient enrichment leading to critical habitat if he determines that the designation of critical habitat for the excessive filamentous algal growth. benefits of such exclusion outweigh the Altamaha spinymussel are not owned or Excessive filamentous algal growth can benefits of specifying such area as part managed by the Department of Defense, cause reduced night-time dissolved of the critical habitat, unless he and there are no other known national oxygen levels through respiration and determines, based on the best scientific security impacts expected from the prevent mussel glochidia from settling data available, that the failure to designation; there are currently no into stream sediments. designate such area as critical habitat conservation partnerships for the will result in the extinction of the spinymussel; and the designation does Exemptions and Exclusion species. In making that determination, not include any tribal lands or trust Application of Section 4(a)(3) of the Act the legislative history is clear that the resources. Since the critical habitat Secretary has broad discretion regarding designation includes only aquatic areas The Sikes Act Improvement Act of which factors to use and how much that are generally held in public trust, 1997 (Sikes Act) (16 U.S.C. 670a) weight to give to any factor. involves no Tribal lands, and includes required each military installation that Under section 4(b)(2) of the Act, we no areas presently under special includes land and water suitable for the must consider the economic impact, management or protection provided by conservation and management of national security impact, and any other a legally operative plan or agreement for natural resources to complete an relevant impact of specifying any the conservation of this mussel, we integrated natural resources particular area as critical habitat. For believe that, other than economics, there management plan (INRMP) by example, we consider whether there are are no other relevant impacts to evaluate November 17, 2001. An INRMP lands owned or managed by the under section 4(b)(2). integrates implementation of the Department of Defense (DOD) where a Economic Analysis (EA) military mission of the installation with national security impact might exist. We stewardship of the natural resources also consider whether landowners have We prepared an economic analysis found on the base. Among other things, developed any conservation plans for that is consistent with the ruling of the each INRMP must, to the extent the area, or whether there are United States Court of Appeals for the appropriate and applicable, provide for conservation partnerships that would be Tenth Circuit in New Mexico Cattle fish and wildlife management; fish and encouraged by designation of, or Growers Ass’n v. United States Fish and wildlife habitat enhancement or exclusion of lands from, critical habitat. Wildlife Service, 248 F.3d 1277 (2001), modification; wetland protection, In addition, we look at any tribal issues, and that was available for public review enhancement, and restoration where and consider the government-to- and comment during the comment necessary to support fish and wildlife; government relationship of the United period for the proposed rule. The final and enforcement of applicable natural States with tribal entities. We also economic analysis is available on the resource laws. consider the economic impacts, Internet at http://www.regulations.gov. The National Defense Authorization environmental impacts, and any social The final EA (Industrial Economics Act for Fiscal Year 2004 (Pub. L. 108– impacts that might occur because of the 2011) considers the potential economic 136) amended the Act to limit areas designation. effects of actions relating to the eligible for designation as critical Under section 4(b)(2) of the Act, in conservation of the Altamaha habitat. Specifically, section 4(a)(3)(B)(i) considering whether to exclude a spinymussel, including costs associated of the Act (16 U.S.C. 1533(a)(3)(B)(i)) particular area from the designation, we with sections 4, 7, and 10 of the Act, now provides: ‘‘The Secretary shall not must identify the benefits of including and including those attributable to designate as critical habitat any lands or the area in the designation, identify the designating critical habitat. It further other geographical areas owned or benefits of excluding the area from the considers the economic effects of controlled by the Department of designation, and determine whether the protective measures taken as a result of Defense, or designated for its use, that benefits of exclusion outweigh the other Federal, State, and local laws that are subject to an integrated natural benefits of inclusion. If, based on this aid habitat conservation for the resources management plan prepared analysis, we determine that the benefits Altamaha spinymussel in essential under section 101 of the Sikes Act (16 of exclusion outweigh the benefits of habitat areas. The EA considers both U.S.C. 670a), if the Secretary determines inclusion, we can exclude the area only economic efficiency and distributional in writing that such plan provides a if such exclusion would not result in the effects. In the case of habitat benefit to the species for which critical extinction of the species. conservation, efficiency effects generally habitat is proposed for designation.’’ In the proposed rule, we requested reflect the ‘‘opportunity costs’’ There are no Department of Defense information on why any area should or associated with the commitment of lands within the critical habitat should not be designated as critical resources to comply with habitat designation for this species. Therefore, habitat as provided by section 4 of the protection measures (for example, lost there are no specific lands that meet the Act (16 U.S.C. 1531 et seq.), including economic opportunities associated with criteria for exemption from the whether the benefit of designation restrictions on land use). designation of critical habitat under would outweigh threats to the species The final EA states that incremental section 4(a)(3) of the Act. caused by designation such that the impacts stem primarily from designation of critical habitat is administrative costs of section 7 Application of Section 4(b)(2) of the Act prudent. In this instance, we have consultations, and are relatively small. Section 4(b)(2) of the Act states that examined all comments submitted with Present value incremental impacts of the Secretary must designate or revise respect to providing adequate protection spinymussel conservation are estimated

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to be $37,100 total over the analysis recognition, recovery actions, investigations of efforts to enhance the timeframe (2011 to 2040), applying a requirements for Federal protection, and propagation or survival of the species seven percent discount rate. All of these prohibitions against certain practices. under section 10(a)(1)(A) of the Act; and impacts stem from the administrative Recognition through listing encourages promote habitat conservation plans on cost of addressing adverse modification and results in conservation actions by non-Federal lands under section of critical habitat during section 7 Federal, State, and private agencies; 10(a)(1)(B) of the Act. consultations. Because the region is groups; and individuals. The Act The Act and its implementing primarily rural, the Service and provides for possible land acquisition regulations found at 50 CFR 17.21 set contacted stakeholders do not anticipate and cooperation with the States and forth a series of general prohibitions and that designation of critical habitat for requires that recovery actions be carried exceptions that apply to all endangered the spinymussel will have substantial out for all listed species. The protection wildlife. These prohibitions, in part, impact on economic activity. required of Federal agencies and the make it illegal for any person subject to Accordingly, a small number of section prohibitions against taking and harm are the jurisdiction of the United States to 7 consultations are expected during the discussed, in part, below. take (includes harass, harm, pursue, analytic timeframe, most of which will Section 7(a) of the Act, as amended, hunt, shoot, wound, kill, trap, capture, occur in habitat currently occupied by requires Federal agencies to evaluate or collect, or to attempt any of these), the spinymussel. their actions with respect to any species import or export, ship in interstate The majority of the incremental that is proposed or listed as endangered commerce in the course of commercial impacts are related to electric power or threatened and with respect to its activity, or sell or offer for sale in generation and transmission. Over the critical habitat, if any is being interstate or foreign commerce any 30-year analytic timeframe, four designated. Regulations implementing listed species. It also is illegal to hydropower plants in the region will this interagency cooperation provision possess, sell, deliver, carry, transport, or renew their operating licenses and will, of the Act are codified at 50 CFR part ship any wildlife that has been taken therefore, conduct section 7 402. Section 7(a)(2) requires Federal illegally. Certain exceptions apply to consultations with the Service. In agencies to ensure that activities they agents of the Service and State addition, this analysis assumes that the authorize, fund, or carry out are not conservation agencies. Edwin I. Hatch nuclear power plant will likely to jeopardize the continued Permits may be issued to carry out conduct informal section 7 existence of such a species or to destroy otherwise prohibited activities consultations with the Service for or adversely modify its critical habitat. involving endangered wildlife species periodic dredging operations, and If a Federal action may affect a listed under certain circumstances. regional utilities will conduct on species or its critical habitat, the Regulations governing permits are set average one consultation per year for responsible Federal agency must enter forth at 50 CFR 17.22 and 17.23. Such construction and repair of electric into formal consultation with the permits are available for scientific power lines. In comparison, the analysis Service. purposes, to enhance the propagation or projects that relatively few section 7 Federal activities that may affect the survival of the species and for consultations will be required for Altamaha spinymussel include, but are incidental take in connection with transportation and recreation activities. not limited to, the carrying out or the Based on the best available issuance of permits for reservoir otherwise lawful activities. information, including the prepared construction, stream alterations, Under the Interagency Cooperative economic analysis, we believe that all of discharges, wastewater facility Policy for Endangered Species Act the four units are essential for the development, water withdrawal Section 9 Prohibitions, published in the conservation of the spinymussel. projects, pesticide registration, mining, Federal Register on July 1, 1994 (59 FR Critical habitat aids in the conservation and road and bridge construction. It has 34272), we identify to the maximum specifically by protecting the primary been the experience of the Service, extent practicable those activities that constituent elements on which the however, that nearly all section 7 would or would not constitute a spinymussel depends. It can also result consultations have been resolved so that violation of section 9 of the Act if the in benefits by providing information to species have been protected and the Altamaha spinymussel is listed. The the public, local and State governments, project objectives have been met. intent of this policy is to increase public Federal agencies, and other entities Listing the Altamaha spinymussel awareness as to the effects of this listing engaged in activities or long-range initiates the development and on future and ongoing activities within planning in areas essential to the implementation of a rangewide recovery a species’ range. We believe, based on conservation of the spinymussel. plan for the species. This plan will bring the best available information that the Conservation of the Altamaha together Federal, State, and local agency following actions will not result in a spinymussel and essential features of its efforts for the conservation of this violation of the provisions of section 9 habitats will require habitat species. Recovery plans establish a of the Act, provided these actions are management, protection, and framework for agencies to coordinate carried out in accordance with existing restoration, which will be facilitated by their recovery efforts. The plans set regulations and permit requirements: knowledge of habitat locations and the recovery priorities and estimate the (1) Possession, delivery, or movement, physical or biological features of those costs of the tasks necessary to including interstate transport that does habitats. We conclude that these accomplish the priorities. They also not involve commercial activity, of benefits of inclusion outweigh the describe the site-specific actions specimens of this species that were above-described costs of designation for necessary to achieve conservation and legally acquired prior to the addition of all areas we are designating as critical survival of each species. the Altamaha spinymussel to the habitat in this rule. Listing also will require us to review Federal List of Endangered or any actions on Federal lands and Threatened Wildlife; Available Conservation Measures activities under Federal jurisdiction that (2) Development and construction Conservation measures provided to may affect the Altamaha spinymussel; activities designed and implemented species listed as endangered or allow State plans to be developed under under State and local water quality threatened under the Act include section 6 of the Act; encourage scientific regulations and implemented using

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approved best management practices; Required Determinations $11.5 million in annual business, and and agricultural businesses with annual Regulatory Planning and Review— sales less than $750,000. To determine (3) Any actions that may affect the Executive Order 12866 Altamaha spinymussel that are whether potential economic impacts to authorized, funded, or carried out by a The Office of Management and Budget these small entities are significant, we Federal agency (such as bridge and (OMB) has determined that this rule is consider the types of activities that highway construction, pipeline not significant under Executive Order might trigger regulatory impacts under construction, hydropower licensing), 12866 (E.O. 12866). OMB bases its this rule, as well as the types of project when the action is conducted in determination upon the following four modifications that may result. In accordance with the consultation criteria: general, the term ‘‘significant economic requirements for listed species under (a) Whether the rule will have an impact’’ is meant to apply to a typical section 7 of the Act. annual effect of $100 million or more on small business firm’s business Potential activities that we believe the economy or adversely affect an operations. will likely be considered a violation of economic sector, productivity, jobs, the To determine if the rule could section 9 of the Act if this species environment, or other units of the significantly affect a substantial number becomes listed, include, but are not government. of small entities, we consider the limited to, the following: (b) Whether the rule will create number of small entities affected within inconsistencies with other Federal (1) Unauthorized possession, particular types of economic activities agencies’ actions. collecting, trapping, capturing, harming, (e.g., housing development, grazing, oil (c) Whether the rule will materially killing, harassing, sale, delivery, or and gas production, timber harvesting). affect entitlements, grants, user fees, movement, including interstate and We apply the ‘‘substantial number’’ test loan programs, or the rights and foreign commerce, or attempting any of individually to each industry to obligations of their recipients. these actions, with the Altamaha determine if certification is appropriate. (d) Whether the rule raises novel legal However, the SBREFA does not spinymussel; or policy issues. (2) Unlawful destruction or alteration explicitly define ‘‘substantial number’’ of their habitats (such as unpermitted Regulatory Flexibility Act (5 U.S.C. 601 or ‘‘significant economic impact.’’ Consequently, to assess whether a instream dredging, impoundment, et seq.) ‘‘substantial number’’ of small entities is channelization, or discharge of fill Under the Regulatory Flexibility Act affected by this designation, this material) that impairs essential (RFA; 5 U.S.C. 601 et seq., as amended analysis considers the relative number behaviors, such as breeding, feeding, or by the Small Business Regulatory of small entities likely to be impacted in sheltering, or results in killing or Enforcement Fairness Act (SBREFA) of an area. In some circumstances, injuring the Altamaha spinymussel; 1996), whenever an agency is required especially with critical habitat (3) Discharge or water withdrawal to publish a notice of rulemaking for designations of limited extent, we may permits that results in harm or death to any proposed or final rule, it must aggregate across all industries and any individuals of this species or that prepare and make available for public consider whether the total number of results in degradation of its occupied comment a regulatory flexibility small entities affected is substantial. In habitat to an extent that essential analysis that describes the effects of the estimating the number of small entities behaviors such as breeding, feeding, and rule on small entities (small businesses, potentially affected, we also consider sheltering are impaired; and small organizations, and small whether their activities have any (4) Unauthorized discharges or government jurisdictions). However, no Federal involvement. dumping of toxic chemicals or other regulatory flexibility analysis is required Designation of critical habitat only pollutants into waters supporting the if the head of the agency certifies the affects activities authorized, funded, or Altamaha spinymussel that kills or rule will not have a significant carried out by Federal agencies. Some injures or otherwise impairs essential economic impact on a substantial kinds of activities are unlikely to have life-sustaining requirements, such as number of small entities. The SBREFA any Federal involvement and so will not reproduction, food, or shelter. amended the RFA to require Federal be affected by critical habitat Other activities not identified above agencies to provide a statement of the designation. In areas where a listed will be reviewed on a case-by-case basis factual basis for certifying that the rule species already occurs; e.g., the short- to determine if a violation of section 9 will not have a significant economic nosed sturgeon, Federal agencies of the Act may be likely to result from impact on a substantial number of small already are required to consult with the such activity. The Service does not entities. National Marine Fisheries Service under consider the description of future and Small entities include small section 7 of the Act on activities they ongoing activities provided above to be organizations, such as independent authorize, fund, or carry out that may exhaustive; we provide them simply as nonprofit organizations; small affect the sturgeon. Federal agencies information to the public. governmental jurisdictions, including also must consult with us if their If you have questions regarding school boards and city and town activities may affect critical habitat. whether specific activities will likely governments that serve fewer than Designation of critical habitat, therefore, violate the provisions of section 9 of the 50,000 residents; as well as small could result in an additional economic Act, contact the Georgia Ecological businesses. Small businesses include impact on small entities due to the Services Office (see ADDRESSES). manufacturing and mining concerns requirement to reinitiate consultation Requests for copies of regulations with fewer than 500 employees, for ongoing Federal activities (see regarding listed species and inquiries wholesale trade entities with fewer than Application of the ‘‘Adverse about prohibitions and permits should 100 employees, retail and service Modification’’ Standard section). be addressed to the U.S. Fish and businesses with less than $5 million in In our final economic analysis of the Wildlife Service, Ecological Services annual sales, general and heavy proposed critical habitat designation, Division, 1875 Century Boulevard, construction businesses with less than we evaluated the potential economic Atlanta, GA 30345 (phone 404–679– $27.5 million in annual business, effects on small business entities 7313; fax 404–679–7081). special trade contractors doing less than resulting from conservation actions

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related to the listing of the Altamaha The Office of Management and Budget regulation that ‘‘would impose an spinymussel and the proposed (OMB) has provided guidance for enforceable duty upon the private designation of critical habitat. The implementing E.O. 13211 that outlines sector, except (i) A condition of Federal analysis is based on the estimated nine outcomes that may constitute ‘‘a assistance or (ii) a duty arising from impacts associated with the proposed significant adverse effect’’ when participation in a voluntary Federal rulemaking as described in chapters 3 compared without the regulatory action program.’’ through 5 and appendix A of the under consideration. The economic The designation of critical habitat analysis and evaluates the potential for analysis finds that incremental impacts does not impose a legally binding duty economic impacts related to: (1) Power of the designation of critical habitat are on non-Federal government entities or generation and transmission; (2) the subject of the analysis under private parties. Under the Act, the only transportation; (3) other activities Executive Order 13211. The potential regulatory effect is that Federal agencies (agriculture, recreation and forestry); effects of this designation on power must ensure that their actions do not and (4) impacts to small entities and the production were considered in the jeopardize the continued existence of energy industry. economic analysis. As described in the species, or destroy or adversely According to the final EA, impacts on Chapter 4, estimated incremental modify critical habitat under section 7. small entities due to this rule are impacts to the energy industry as a While non-Federal entities that receive expected to be modest because the result of critical habitat designation for Federal funding, assistance, or permits, incremental costs of the rule are the spinymussel are minor and or that otherwise require approval or estimated to be administrative in nature. administrative in nature. Therefore, the authorization from a Federal agency for The final EA evaluated the incremental rule is not expected to affect the an action, may be indirectly impacted impacts of the critical habitat production, distribution, or use of by the designation of critical habitat, the designation for the Altamaha energy, and none of the above criteria legally binding duty to avoid spinymussel over the next 30 years, are relevant to this analysis. destruction or adverse modification of which was determined to be the critical habitat rests squarely on the appropriate period for analysis because Unfunded Mandates Reform Act Federal agency. Furthermore, to the limited planning information is In accordance with the Unfunded extent that non-Federal entities are available for most activities to forecast Mandates Reform Act (2 U.S.C. 1501 et indirectly impacted because they activity levels for projects beyond a 30- seq.), the Service makes the following receive Federal assistance or participate year timeframe. Applying a seven findings: in a voluntary Federal aid program, the percent discount rate, electric power (a) This rule will not produce a Unfunded Mandates Reform Act would generation and transmission is Federal mandate. In general, a Federal not apply; nor would listing these estimated to incur the largest impact at mandate is a provision in legislation, species or designating critical habitat $26,700 over the next 30 years (2011– statute, or regulation that would impose shift the costs of the large entitlement 2040), overall incremental impacts an enforceable duty upon State, local, programs listed above on to State associated with the designation are tribal governments, or the private sector governments. estimated at $37,100 over the same time and includes both ‘‘Federal (b) We do not believe that this rule period. intergovernmental mandates’’ and will significantly or uniquely affect In summary, we considered whether ‘‘Federal private sector mandates.’’ small governments because the this designation will result in a These terms are defined in 2 U.S.C. Altamaha spinymussel only occurs in significant economic effect on a 658(5)–(7). ‘‘Federal intergovernmental navigable waters in which the river substantial number of small entities. mandate’’ includes a regulation that bottom is owned by the State of Georgia. Based on the above reasoning and ‘‘would impose an enforceable duty However, the adjacent upland currently available information, we upon State, local, or tribal governments’’ properties are owned by private entities, concluded that this rule will not result with two exceptions. It excludes ‘‘a the State, or Federal partners (see Table in a significant economic impact on a condition of Federal assistance.’’ It also 2). As such, a Small Government substantial number of small entities. excludes ‘‘a duty arising from Agency Plan is not required. Therefore, we are certifying that the participation in a voluntary Federal designation of critical habitat for the program,’’ unless the regulation ‘‘relates Takings spinymussel will not have a significant to a then-existing Federal program In accordance with Executive Order economic impact on a substantial under which $500,000,000 or more is 12630 (‘‘Government Actions and number of small entities, and a provided annually to State, local, and Interference with Constitutionally regulatory flexibility analysis is not tribal governments under entitlement Protected Private Property Rights’’), we required. authority,’’ if the provision would have analyzed the potential takings ‘‘increase the stringency of conditions of implications of designating critical Energy Supply, Distribution, or Use— assistance’’ or ‘‘place caps upon, or habitat for the Altamaha spinymussel in Executive Order 13211 otherwise decrease, the Federal a takings implications assessment. The Pursuant to Executive Order 13211, Government’s responsibility to provide takings implications assessment ‘‘Actions Concerning Regulations that funding,’’ and the State, local, or tribal concludes that this designation of Significantly Affect Energy Supply, governments ‘‘lack authority’’ to adjust critical habitat for the Altamaha Distribution, or Use,’’ issued May 18, accordingly. At the time of enactment, spinymussel does not pose significant 2001, Federal agencies must prepare these entitlement programs were: takings implications. and submit a ‘‘Statement of Energy Medicaid; AFDC work programs; Child Effects’’ for all ‘‘significant energy Nutrition; Food Stamps; Social Services Federalism actions.’’ The purpose of this Block Grants; Vocational Rehabilitation In accordance with Executive Order requirement is to ensure that all Federal State Grants; Foster Care, Adoption 13132 (Federalism), the rule does not agencies ‘‘appropriately weigh and Assistance, and Independent Living; have significant Federalism effects. A consider the effects of the Federal Family Support Welfare Services; and Federalism assessment is not required. Government’s regulations on the supply, Child Support Enforcement. ‘‘Federal In keeping with Department of the distribution, and use of energy.’’ private sector mandate’’ includes a Interior and Department of Commerce

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policy, we requested information from, individuals, businesses, or controls as Federal public lands, to and coordinated development of this organizations. An agency may not remain sensitive to Indian culture, and critical habitat designation with conduct or sponsor, and a person is not to make information available to Tribes. appropriate State resource agencies in required to respond to, a collection of We have determined that there are no Georgia. The critical habitat designation information unless it displays a tribal lands occupied at the time of may have some benefit to this currently valid OMB control number. listing that contain the features essential government in that the areas that National Environmental Policy Act for the conservation, and no tribal lands contain the features essential to the (NEPA) that are unoccupied areas that are conservation of the species are more essential for the conservation, of the We have determined that clearly defined, and the PCEs of the Altamaha spinymussel. Therefore, we environmental assessments and habitat necessary to the conservation of have not designated critical habitat for environmental impact statements, as the species are specifically identified. the Altamaha spinymussel on Tribal defined under the authority of the While making this definition and lands. identification does not alter where and National Environmental Policy Act of what federally sponsored activities may 1969 (42 U.S.C. 4321 et seq.), need not References Cited occur, it may assist these local be prepared in connection with A complete list of all references cited governments in long-range planning regulations adopted under section in this rulemaking is available upon (rather than waiting for case-by-case 4(a)(1) of the Act. We published a notice request from the Field Supervisor, section 7 consultations to occur). outlining our reasons for this Where State and local governments determination in the Federal Register Georgia Ecological Services Office (see require approval or authorization from a on October 25, 1983 (48 FR 49244). FOR FURTHER INFORMATION CONTACT) and Federal agency for actions that may Also, it is our position that, outside at Docket No. FWS–R4–ES–2008–0107. affect critical habitat, consultation the jurisdiction of the U.S. Court of Author(s) under section 7(a)(2) would be required. Appeals for the Tenth Circuit, we do not While non-Federal entities that receive need to prepare environmental analyses The primary author of this package is Federal funding, assistance, or permits, as defined by NEPA in connection with the staff of the Georgia Ecological or that otherwise require approval or designating critical habitat under Services Office (see FOR FURTHER authorization from a Federal agency for section 4(a)(3) of the Act. We published INFORMATION CONTACT). a notice outlining our reasons for this an action, may be indirectly impacted List of Subjects in 50 CFR Part 17 by the designation of critical habitat, the determination in the Federal Register legally binding duty to avoid on October 25, 1983 (48 FR 49244). This Endangered and threatened species, destruction or adverse modification of position was upheld by the U.S. Court Exports, Imports, Reporting and critical habitat rests squarely on the of Appeals for the Ninth Circuit recordkeeping requirements, Federal agency. (Douglas County v Babbitt, 48 F. 3d Transportation. 1495 (9th Cir. 1995), cert. denied 516 Civil Justice Reform U.S. 1042 (1996)). Regulation Promulgation In accordance with E.O. 12988 (Civil Government-to-Government Accordingly, we hereby amend part Justice Reform), the Office of the Relationship With Tribes 17, subchapter B of chapter I, title 50 of Solicitor has determined that the rule the Code of Federal Regulations, as set does not unduly burden the judicial In accordance with the President’s forth below: system and meets the requirements of memorandum of April 29, 1994, sections 3(a) and 3(b)(2) of the Order. ‘‘Government-to-Government Relations PART 17—[AMENDED] We are designating critical habitat in with Native American Tribal accordance with the provisions of the Governments’’ (59 FR 22951), Executive ■ 1. The authority citation for part 17 Act. This final rule uses standard Order 13175, and the Department of continues to read as follows: property descriptions and identifies the Interior’s manual at 512 DM 2, we readily acknowledge our responsibility Authority: 16 U.S.C. 1361–1407; 16 U.S.C. PCEs within the designated areas to 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– assist the public in understanding the to communicate meaningfully with 625, 100 Stat. 3500; unless otherwise noted. habitat needs of the Altamaha recognized Federal Tribes on a spinymussel. government-to-government basis. In ■ 2. Amend § 17.11(h) by adding accordance with Secretarial Order 3206 ‘‘Spinymussel, Altamaha’’ in Paperwork Reduction Act of 1995 of June 5, 1997 ‘‘American Indian Tribal alphabetical order under CLAMS to the This rule does not contain any new Rights, Federal-Tribal Trust List of Endangered and Threatened collections of information that require Responsibilities, and the Endangered Wildlife, to read as follows: approval by OMB under the Paperwork Species Act’’, we readily acknowledge Reduction Act of 1995 (44 U.S.C. 3501 our responsibilities to work directly § 17.11 Endangered and threatened et seq.). This rule will not impose with Tribes in developing programs for wildlife. recordkeeping or reporting requirements healthy ecosystems, to acknowledge that * * * * * on State or local governments, tribal lands are not subject to the same (h) * * *

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

******* CLAMS

******* Spinymussel, Alta- Elliptio spinosa ...... U.S.A. (GA) ...... Entire ...... E 796 17.95(f) NA maha.

*******

■ 3. Amend § 17.95(f) by adding an sandbar, slough, and mid-channel- (iv) The presence of fish hosts entry for ‘‘Altamaha spinymussel island habitats of coarse-to-fine sand (currently unknown) necessary for (Elliptio spinosa)’’ after the entry for substrates with low to moderate recruitment of the Altamaha ‘‘Georgia Pigtoe (Pleurobema amounts of fine sediment and attached spinymussel. The continued occurrence hanleyianum)’’ to read as set forth filamentous algae. of diverse native fish assemblages below: (ii) A hydrologic flow regime (the currently occurring in the basin will serve as an indication of host fish § 17.95 Critical habitat—fish and wildlife. magnitude, frequency, duration, and seasonality of discharge over time) presence until appropriate host fishes * * * * * necessary to maintain benthic habitats can be identified for the Altamaha (f) Clams and Snails. where the species are found and to spinymussel. * * * * * maintain connectivity of rivers with the (3) Critical habitat does not include Altamaha spinymussel (Elliptio floodplain, allowing the exchange of manmade structures existing on the spinosa). nutrients and sediment for sand bar effective date of this rule and not (1) Critical habitat units are depicted maintenance, food availability, and containing one or more of the PCEs, for Appling, Ben Hill, Coffee, Jeff Davis, such as buildings, bridges, aqueducts, Long, Montgomery, Tattnall, Telfair, spawning habitat for native fishes. airports, and roads, and the land on Toombs, Wayne, and Wheeler Counties, (iii) Water quality necessary for which such structures are located. Georgia, on the maps below. normal behavior, growth, and viability (2) The primary constituent elements of all life stages, including specifically (4) Critical habitat unit maps. Maps (PCEs) of critical habitat for the temperature (less than 32.6 °C (90.68 °) were developed from USGS 7.5 minute Altamaha spinymussel are the habitat with less than 2 °C (3.6 °F) daily quadrangles, and critical habitat unit components that provide: fluctuation), pH (6.1 to 7.7), oxygen upstream and downstream limits were (i) Geomorphically stable river content (daily average DO concentration then identified by longitude and channels and banks (channels that of 5.0 mg/l and a minimum of 4.0 latitude using decimal degrees. maintain lateral dimensions, mg/l), an ammonia level not exceeding (5) Note: Index map of critical habitat longitudinal profiles, and sinuosity 1.5 mg N/L, 0.22 mg N/L (normalized to units for the Altamaha spinymussel patterns over time without an aggrading pH 8 and 25 °C (77 °F)), and other follows: or degrading bed elevation) with stable chemical characteristics. BILLING CODE 4310–55–P

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(6) Unit 1: Ocmulgee River, Ben Hill, House Creek with the Ocmulgee at Red latitude 31.96), at the confluence of the Telfair, Coffee, and Jeff Davis Counties, Bluff Landing (longitude ¥83.18, Oconee and Ocmulgee Rivers, Jeff Davis Georgia. latitude 31.85), Ben Hill and Telfair and Telfair Counties, Georgia. (i) Unit 1 includes the channel of the Counties, Georgia, downstream to (ii) Note: Map of Unit 1 (Ocmulgee Ocmulgee River from the confluence of Altamaha River (longitude ¥82.54, River) follows:

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(7) Unit 2: Upper Altamaha River, (longitude ¥82.54, latitude 31.96), confluence of the Altamaha and Wheeler, Toombs, Montgomery, Jeff Wheeler and Jeff Davis Counties, Ohoopee Rivers (longitude ¥82.11, Davis, Appling, and Tattnall Counties, Georgia, downstream to the US 1 latitude 31.90), Appling and Tattnall Georgia. crossing (longitude ¥82.36, latitude Counties, Georgia. (i) Unit 2 includes the channel of the 31.94), and from the western edge of (ii) Note: Map of Unit 2 (Upper Altamaha River from the confluence of Moody Forest (longitude ¥82.33, Altamaha River) follows: the Ocmulgee and Oconee Rivers latitude 31.93) downstream to the

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(8) Unit 3: Middle Altamaha River, confluence with the Ohoopee (longitude latitude 31.67), Wayne and Long Tattnall, Appling, Wayne, and Long ¥82.11, latitude 31.90), Tattnall and Counties, Georgia. Counties, Georgia. Appling Counties, Georgia, downstream (ii) Note: Map of Unit 3 (Middle (i) Unit 3 includes the channel of ¥ to U.S. Route 301 (longitude 81.84, Altamaha River) follows: Altamaha River, extending from the

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(9) Unit 4: Lower Ohoopee River, (longitude ¥82.14, latitude 31.98), ¥82.11, latitude 31.90), Tattnall Tattnall County, Georgia. Tattnall County, Georgia, downstream to County, Georgia. (i) Unit 4 includes the channel of the the confluence of the Ohoopee River (ii) Note: Map of Unit 4 (Lower Ohoopee River, starting 2.2 km (1.3 mi) with the Altamaha River (longitude Ohoopee River) follows: upstream of Tattnall County Road 191

* * * * * Dated: September 23, 2011. Eileen Sobeck, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2011–25539 Filed 10–7–11; 8:45 am] BILLING CODE 4310–55–C

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