Tuesday, June 6, 2006

Part III

Department of the Interior Fish and Wildlife Service

50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Critical Habitat for Five Endangered and Two Threatened in Four Northeast Drainages; Proposed Rule

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DEPARTMENT OF THE INTERIOR 5. Federal eRulemaking Portal: http:// If you wish to comment, you may www.regulations.gov. Follow the submit your comments and materials Fish and Wildlife Service instructions for submitting comments. concerning this proposal by any one of Comments and materials received, as several methods (see ADDRESSES 50 CFR Part 17 well as supporting documentation used section). Please submit e-mail comments in the preparation of this proposed rule, to [email protected] in RIN 1018–AU87 will be available for public inspection, ASCII file format and avoid the use of by appointment, during normal business special characters or any form of Endangered and Threatened Wildlife hours at U.S. Fish and Wildlife Service, encryption. Please also include ‘‘Attn: 7 and Plants; Critical Habitat for Five 1601 Balboa Avenue, Panama City, mussels—RIN 1018–AU87’’ in your e- Endangered and Two Threatened 32405 (telephone 850–769– mail subject header, and your name and Mussels in Four Northeast Gulf of 0552). return address in the body of your Mexico Drainages FOR FURTHER INFORMATION CONTACT: Jerry message. If you do not receive a Ziewitz at the address above (telephone confirmation from the system that we AGENCY: Fish and Wildlife Service, 850–769–0552 ext. 223; facsimile 850– have received your message, contact us Interior. 763–2177). directly by calling our Panama City, ACTION: Proposed rule. SUPPLEMENTARY INFORMATION: Florida, Fish and Wildlife Office at phone number 850–769–0552. Please SUMMARY: We, the U.S. Fish and Public Comments Solicited note that the e-mail address Wildlife Service (Service), propose to We intend that any final action [email protected] will be designate critical habitat for the resulting from this proposal will be as closed out at the termination of the endangered fat threeridge, shinyrayed accurate and as effective as possible. public comment period. pocketbook, Gulf moccasinshell, Therefore, comments or suggestions Our practice is to make comments, Ochlockonee moccasinshell, and oval from the public, other concerned including names and home addresses of pigtoe, and the threatened Chipola governmental agencies, the scientific respondents, available for public review slabshell and purple bankclimber community, industry, or any other during regular business hours. (collectively referred to as the seven interested party concerning this Individual respondents may request that mussels), pursuant to the Endangered proposed rule are hereby solicited. We we withhold their home addresses from Act of 1973, as amended (Act). particularly seek comments concerning: the rulemaking record, which we will We propose to designate 11 units (1) The reasons any habitat should or honor to the extent allowable by law. encompassing approximately 1,864 should not be determined to be critical There also may be circumstances in kilometers (1,158 miles) of river and habitat as provided by section 4 of the which we would withhold from the stream channels as critical habitat. Act (16 U.S.C. 1531 et seq.), including rulemaking record a respondent’s Proposed critical habitat includes whether the benefit of designation will identity, as allowable by law. If you portions of the drainage outweigh any threats to the species due wish us to withhold your name or in Florida, the Apalachicola— to designation; address, you must state this Chattahoochee— drainage in (2) Specific information on the prominently at the beginning of your , Florida, and , the amount and distribution of habitat for comment, but you should be aware that drainage in Florida the seven mussels, including areas the Service may be required to disclose and Georgia, and the occupied by the seven mussels at the your name and address pursuant to the drainage in Florida. time of listing and containing the Freedom of Information Act. However, DATES: We will accept comments from features essential to the conservation of we will not consider anonymous all interested parties until August 7, the species, and areas not occupied at comments. We will make all 2006. We must receive requests for the time of listing that are essential to submissions from organizations or public hearings, in writing, at the the conservation of the species; businesses, and from individuals address shown in the ADDRESSES section (3) Whether the middle section of the identifying themselves as by July 21, 2006. Flint River complex, between the representatives or officials of confluence of Gum Creek and the organizations or businesses, available ADDRESSES: If you wish to comment, confluence of Auchumpkee/ for public inspection in their entirety. you may submit your comments and Ulcohatchee Creek, has the Primary Comments and materials received will materials concerning this proposal by Constituent Elements for the mussels, is be available for public inspection, by any one of the following methods: occupied by the mussels, or is essential appointment, during normal business 1. You may submit written comments to the conservation of the mussels; hours at the above address. and information to the Field Supervisor, (4) Land use designations and current Role of Critical Habitat in Actual U.S. Fish and Wildlife Service, 1601 or planned activities in the subject areas Practice of Administering and Balboa Avenue, Panama City, Florida and their possible impacts on proposed Implementing the Act 32405. critical habitat; 2. You may hand-deliver written (5) Any foreseeable economic, Attention to and protection of habitat comments to our office, at the above national security, or other potential is paramount to successful conservation address. impacts resulting from the proposed actions. The role that designation of 3. You may send comments by designation and, in particular, any critical habitat plays in protecting electronic mail (e-mail) to impacts on small entities; and habitat of listed species, however, is [email protected]. Please (6) Whether our approach to often misunderstood. There are see the ‘‘Public Comments Solicited’’ designating critical habitat could be significant limitations on the regulatory section under SUPPLEMENTARY improved or modified in any way to effect of designation under Act section INFORMATION for file format and other provide for greater public participation 7(a)(2). In brief, (1) designation provides information about electronic filing. and understanding, or to assist us in additional protection to habitat only 4. You may fax your comments to accommodating public concerns and where there is a Federal nexus; (2) the 850–763–2177. comments. protection is relevant only when, in the

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absence of designation, destruction or controversial. The current statutory of preparation and publication of the adverse modification of the critical framework of critical habitat, combined designation, the analysis of the habitat would in fact take place (in other with past judicial interpretations of the economic effects and the cost of words, other statutory or regulatory statute, make critical habitat the subject requesting and responding to public protections, policies, or other factors of excessive litigation. As a result, comment, and in some cases the costs relevant to agency decision-making critical habitat designations are driven of compliance with the National would not prevent the destruction or by litigation and courts rather than Environmental Policy Act (NEPA; 42 adverse modification); and (3) biology, and made at a time and under U.S.C. 4371 et seq.). These costs, which designation of critical habitat triggers a time frame that limits our ability to are not required for many other the prohibition of destruction or adverse obtain and evaluate the scientific and conservation actions, directly reduce the modification of that habitat, but it does other information required to make the funds available for direct and tangible not require specific actions to restore or designation most meaningful. conservation actions. improve habitat. In light of these circumstances, the Currently, only 475 species, or 36 Service believes that additional agency Background percent of the 1,311 listed species in the discretion would allow our focus to In this proposed rule, we intend to U.S. under the jurisdiction of the return to those actions that provide the discuss only information about the Service, have designated critical habitat. greatest benefit to the species most in seven mussels that is directly relevant to We address the habitat needs of all need of protection. the designation of critical habitat. For 1,311 listed species through more information about these seven Procedural and Resource Difficulties in conservation mechanisms such as mussels, please refer to our final rule Designating Critical Habitat listing, section 7 consultations, the listing fat threeridge, shinyrayed section 4 recovery planning process, the We have been inundated with pocketbook, Gulf moccasinshell, section 9 protective prohibitions of lawsuits for our failure to designate Ochlockonee moccasinshell, and oval unauthorized take, section 6 funding to critical habitat, and we face a growing pigtoe as endangered, and Chipola the States, the section 10 incidental take number of lawsuits challenging critical slabshell and purple bankclimber as permit process, and cooperative, non- habitat determinations once they are threatened published in the Federal regulatory efforts with private made. These lawsuits have subjected the Register on March 16, 1998 (63 FR landowners. The Service believes that it Service to an ever-increasing series of 12664) and to our final recovery plan, is these measures that may make the court orders and court-approved which is available from the Panama difference between extinction and settlement agreements, compliance with City, Florida Fish and Wildlife Office or survival for many species. which now consumes nearly the entire online at http://www.fws.gov/ In considering exclusions of areas listing program budget. This leaves the endangered/recovery/Index.html#plans. proposed for designation, we evaluated Service with little ability to prioritize its The purple bankclimber (Elliptoideus the benefits of designation in light of activities to direct scarce listing sloatianus), Gulf moccasinshell Gifford Pinchot Task Force v. United resources to the listing program actions ( penicillatus), Ochlockonee States Fish and Wildlife Service (378 F. with the most biologically urgent moccasinshell (Medionidus 3d 1059 (9th Cir 2004). In that case, the species conservation needs. simpsonianus), ( Ninth Circuit invalidated the Service’s The consequence of the critical pyriforme), shinyrayed pocketbook regulation defining ‘‘destruction or habitat litigation activity is that limited (Lampsilis subangulata), Chipola adverse modification of critical habitat.’’ listing funds are used to defend active slabshell ( chipolaensis), and fat In response, on December 9, 2004, the lawsuits, to respond to Notices of Intent threeridge ( neislerii) are Director issued guidance to be (NOIs) to sue relative to critical habitat, variously distributed in four river basins considered in making section 7 adverse and to comply with the growing number that flow into the northeast Gulf of modification determinations. This of adverse court orders. As a result, Mexico: Econfina Creek, Apalachicola proposed critical habitat designation listing petition responses, the Service’s River (a large basin generally labeled does not use the invalidated regulation own proposals to list critically with the names of its major tributaries, in our consideration of the benefits of imperiled species, and final listing the Chattahoochee and Flint rivers, as including areas in this final designation. determinations on existing proposals are the ACF River Basin), Ochlockonee Rather, it relies on the guidance issued all significantly delayed. River, and Suwannee River. by the Director in response to the The accelerated schedules of court- The endangered fat threeridge is a Gifford Pinchot decision (see ‘‘Adverse ordered designations have left the medium-sized to large, subquadrate, Modification Standard’’ discussion Service with limited ability to provide inflated, solid, and heavy-shelled below). The Service will carefully for public participation or to ensure a that reaches a length of 10.2 manage future consultations that defect-free rulemaking process before centimeters (cm) (4.0 inches (in)). Large analyze impacts to designated critical making decisions on listing and critical specimens are so inflated that the width habitat, particularly those that appear to habitat proposals, due to the risks approximates the height. The umbos be resulting in an adverse modification associated with noncompliance with (bulges near the hinge of the shell) are determination. Such consultations will judicially imposed deadlines. This in in the anterior quarter of the shell. The be reviewed by the Regional Office prior turn fosters a second round of litigation dark brown to black shell is strongly to finalizing to ensure that an adequate in which those who fear adverse sculptured with seven or eight analysis has been conducted that is impacts from critical habitat prominent horizontal parallel plications informed by the Director’s guidance. designations challenge those (ridges). On the other hand, to the extent that designations. The cycle of litigation The endangered shinyrayed designation of critical habitat provides appears endless and is expensive, thus pocketbook is a medium-sized mussel protection, that protection can come at diverting resources from conservation that reaches approximately 8.4 cm (3.3 significant social and economic cost. In actions that may provide relatively more in) in length. The shell is generally addition, the mere administrative benefit to imperiled species. elongated, with broad, somewhat process of designation of critical habitat The costs resulting from the inflated umbos and a rounded posterior is expensive, time-consuming, and designation include legal costs, the cost ridge. The shell is thin but solid. The

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surface is smooth and shiny and ranges Suwannee. Morphological variation respiration and food collection. Known from straw-yellow to chestnut-brown across this broad range has led to the food items include detritus with a variable number of black to description of several nominal species (disintegrated organic debris), diatoms, bright emerald-green rays, which since it was originally described as Unio phytoplankton, zooplankton, and other emanate from the umbo across the disk. pyriformis (Lea 1857, p. 169–172). microorganisms (Coker et al. 1921, p. The shinyrayed pocketbook was listed Williams and Butler (1994, p. 111) 88; Churchill and Lewis 1924, p. 462; as federally endangered under the recognized the form distributed in the Fuller 1974, p. 221). Adults are filter scientific name Lampsilis subangulata. Ochlockonee and Suwannee River feeders and generally orient themselves The shinyrayed pocketbook and three systems as the Florida pigtoe, on or near the substrate surface to take other Lampsilis species that are not Pleurobema reclusum (Wright 1898, p. food and oxygen from the water above federally listed are now assigned to the 111–112), consistent with Simpson them (Kraemer 1979, p. 1085–1096). newly recognized genus (Roe (1914, p. 1–1540). However, Turgeon et Juveniles typically burrow completely and Hartfield 2005, p. 1). Several al. (1998, p. 36) recognized the forms beneath the substrate surface and are characteristics, including glochidia from all four basins as one species, P. pedal (foot) feeders (bringing food packaging in a superconglutinate, pyriforme, which was the taxonomic particles inside the shell for ingestion placement and shape of the marsupia, classification upon which we relied on that adhere to the foot while it is and glochidia release through the for the 1998 final rule listing this extended outside the shell) until the excurrent siphon, support recognition of species as endangered. A recent study structures for filter feeding are more these species as a distinct genus (Roe using molecular genetic techniques fully developed (Gatenby et al. 1996, p. and Hartfield 2005, p. 1), and we plan compared tissue samples from three of 604; Yeager et al. 1994, p. 221). to implement the name change in a the four basins (Econfina Creek, ACF, Sexes in unionid mussels are usually separate rule-making. and Suwannee), and concluded that the separate. Males release sperm into the The endangered Gulf moccasinshell is Suwannee samples were distinctive and water, which females take in through a small mussel that reaches a length of warranted specific status as P. reclusum their siphons during feeding and about 5.6 cm (2.2 in), is elongate- (Kandl et al. 2001, p. 10). We respiration. Eggs are fertilized and elliptical or rhomboidal in outline, acknowledged these findings in our retained in the gills of the female until fairly inflated, and has relatively thin 2003 final recovery plan, but have the larvae (glochidia) fully develop. The valves. The ventral margin is nearly deferred any revisions to the listing glochidia of most unionid species, straight or slightly rounded. The pending review of an analysis including all seven species addressed in posterior ridge is rounded to slightly that includes samples from the this proposed rule, require a parasitic angled and intersects the end of the Ochlockonee Basin as well. Peer review stage on the fins, gills, or skin of a fish shell at the base line. Females tend to and publication of a genetic analysis of to transform into juvenile mussels (for have the posterior point above the samples from all four basins is expected species-specific information, see ventral margin and are more inflated sometime in 2006 (J.D. Williams, USGS, ‘‘Primary Constituent Elements—Fish than males. pers. comm. 2005). Hosts’’). Females release glochidia The endangered Ochlockonee The threatened Chipola slabshell is a either separately or in masses termed moccasinshell is small, generally under medium-sized species reaching a length conglutinates, depending on the mussel 5.6 cm (2.2 in) long. It is slightly of about 8.4 cm (3.3 in). The shell is species. Exceptionally large elongate-elliptical in outline, the ovate to subelliptical, somewhat conglutinates, such as those of the posterior end obtusely rounded at the inflated, and with the posterior ridge shinyrayed pocketbook, are termed median line, and the ventral margin starting out rounded but flattening to superconglutinates. The duration of the broadly curved. The posterior ridge is form a prominent biangulate margin. parasitic stage varies by mussel species, moderately angular and covered in its The periostracum is smooth and water temperature, and perhaps host entire length with well-developed, chestnut-colored. Dark brown coloration fish species. When the transformation is irregular plications. Sculpturing may may appear in the umbo region, and the complete, juvenile mussels normally also extend onto the disk below the remaining surface may exhibit detach from their fish host and sink to ridge. The periostracum (outside surface alternating light and dark bands. the stream bottom where, given suitable of the shell) is smooth. The color is light The threatened purple bankclimber is conditions, they grow and mature to the brown to yellowish green, with dark a large, heavy-shelled, strongly adult form. green rays formed by a series of sculptured mussel reaching lengths of Distribution connected chevrons or undulating lines 20.5 cm (8.0 in). A well-developed across the length of the shell. posterior ridge extends from the umbo The historical and current range of the The endangered oval pigtoe is a small- to the posterior ventral margin of the seven mussels includes portions of four to-medium-sized mussel that attains a shell. The posterior slope and the disk river basins of the northeast Gulf of length of about 6.1 cm (2.4 in). The shell just anterior to the posterior ridge are Mexico in Alabama, Florida, and is suboviform and compressed. The sculptured by several irregular Georgia: Econfina Creek, ACF, periostracum is shiny smooth; plications that vary greatly in Ochlockonee, and Suwannee. Of these yellowish, chestnut, or dark brown; development. The umbos are low, four basins, the ACF is the largest and rayless; and with distinct growth lines. extending just above the dorsal margin the only one that extends beyond the The posterior slope is biangulate and of the shell. Coastal Plain physiographic province forms a blunt point on the posterior into the Piedmont of Georgia and margin. The umbos are slightly elevated Life History Alabama. Two or more of the seven above the hingeline. The seven mussels are all bivalve mussels occur in each of the four basins, The endangered oval pigtoe is the mollusks (clams) of the family except the Suwannee, in which only the only species among the seven mussels . Unionid mussels generally oval pigtoe is found. Because large of this proposed rule that occurs in all live embedded in the bottom of rivers, reservoirs are unsuitable as habitat for four Gulf of Mexico river basins streams, and other bodies of water. They these mussels and the dams that comprising their collective range: siphon water into their shells and across impound them are barriers to the Econfina Creek, ACF, Ochlockonee, and four gills that are specialized for movement of their host fishes, their

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range within two of the basins (ACF and bed elevation of the 2003). Channel instability induced by Ochlockonee) is divided into two or downstream of Jim Woodruff Lock and gravel mining has probably played a more sub-basins that likely represent the Dam, which is located at the confluence significant role in extirpating the Gulf maximum spatial extent of potentially of the Chattahoochee and Flint rivers, moccasinshell and oval pigtoe from the interbreeding populations. We estimate has degraded about 1.2 to 1.5 meters (m) Uchee Creek system (Howard 1997, p. that the five species listed as (4 to 5 feet (ft)) since its construction in 157), where a small population of the endangered are each extirpated from the late 1950s (Light et al. 1998, p. 21). shinyrayed pocketbook persists. A over half of their historical ranges, and The main channel of the river widened recent Service stream habitat condition the two threatened species are at a rate of about 0.45 m (1.5 ft) per year, survey in the Ochlockonee Basin found extirpated from about one-third of their based on cross sections measured by the evidence of substantial channel historical ranges (USFWS 2003, p. 77). U.S. Army Corps of Engineers (USACE) instability (actively eroding banks) at between 1980 and 2001 (USACE 2002, only 9 of 181 sites surveyed, but Summary of Threats to Surviving p. 1.1–8.3). The Apalachicola River near classified over half of the sites (99) as Populations the Chattahoochee-Flint confluence having a moderate risk of bank erosion The declining range and abundance of once supported a particularly rich (H. Blalock-Herod, Service, pers. comm. the seven mussels is due mostly to mussel bed, which included large 2006). changes in their riverine habitats numbers of fat threeridge and purple Sedimentation resulting from dams, dredging, mining, bankclimber, but this bed had declined channelization, pollution, substantially in diversity and numbers Sedimentation is widely reported as a sedimentation, and water withdrawals, by the early 1970s (Heard 1975, p. 1– contributing factor in the decline of and possibly also the introduction of 31). Although the purple bankclimber stream mussel populations (Kunz 1898, nonnative species, such as the Asian persists, the fat threeridge is now rare in p. 328; Ellis 1931, p. 5; 1936, p. 29; clam. Each of these threats affect one or the upper river (Brim Box and Williams Imlay 1972, p. 76; Coon et al. 1977, p. more of the physical and biological 2000, p. 89). Quantitative sampling 279; Marking and Bills 1979, p. 204; habitat features that we have identified using substrate sieves at two locations Dennis 1985, p. 1–171; Aldridge et al. as essential to the conservation of the in the upper river failed to detect 1987, p. 17; Schuster et al. 1989, p. 84; seven mussels, which we discuss in juveniles of any unionid mussels Wolcott and Neves 1990, p. 74; Houp detail under ‘‘Primary Constituent (Richardson and Yokley 1996, p. 137). 1993, p. 93–97; Richter et al. 1997a, p. Elements.’’ The decline of the rich mussel fauna of 1090; Brim Box 1999, p. 1–108). More than 350 kilometers (km) (217 the was attributed Sedimentation is the process by which miles (mi)) of large and small river partly to erosion from intensive farming water detaches, transports, and deposits habitat in the ACF and Ochlockonee before the Civil War (van der Schalie soil materials on the substrates of basins within the current range of the 1938, p. 56; Clench 1955, p. 96), streams, lakes, and wetlands. In seven mussels is inundated by although substantial erosion continued geomorphically stable stream reaches, reservoirs. None of the seven species are for several more decades (Glenn 1911, p. sediment input is balanced by sediment known to persist in impoundments, 1–137; Trimble 1972, p. 454–457). The output, resulting in no net accumulation although a single purple bankclimber most striking example of this erosion or loss of sediment from the stream bed. was found in an impounded portion of and resulting stream channel instability Sediment input is increased by a variety the Chattahoochee River (C. is in the headwaters of Turner Creek, a of human activities that are common in Stringfellow, Columbus State Chattahoochee River tributary in the range of the seven mussels. University, pers. comm. 2000). Obligate Stewart County, Georgia. The massive Substantial sediment accumulation is riverine fishes, some of which may amount of sediment that washed away one factor that may induce channel serve as hosts for larvae of the seven was conveyed via Turner Creek over instability. Lesser amounts may also mussels, are also eliminated by dams time to the Chattahoochee River. adversely affect substrate quality for and impoundments. Several mussels by altering its texture (usually populations of the seven species persist Channelization by increasing the percentage of fine in relatively small fragments of the four Channelization (straightening a materials) and by introducing harmful major river basins that are isolated from stream course by artificial cutoffs and pollutants. other populations by impoundments or other means for flood control and Waters (1995, p. 173–176) reviewed other large patches of unsuitable habitat navigation), dredging, snagging (removal the biological effects of sediments in and by dams or other barriers to of large woody debris), in-stream gravel streams, and Mount (1995, p. 1–359) dispersal via their fish hosts. Habitat mining, and other forms of direct stream provided an overview of the effects of fragmentation reduces the probability of channel modifications may induce various land uses on stream systems. population persistence (Wilcox and channel instability. A well-documented Brim Box and Mossa (1999, p. 99–117) Murphy 1985, p. 879–884), because example of how direct modifications to reviewed the effects of sediments and smaller, more isolated populations are a stream induced substantial instability land uses specifically on mussels. They less able to rebound from chance is the Homochitto River in Mississippi, identified several activities that may adverse environmental, demographic, which incised 5 m (16.4 ft) and widened affect mussels through sedimentation, and genetic events (Shaffer 1981, p. 131; 450 percent following channelization including logging, farming, ranching, Lande 1988, p. 1455). (Kesel and Yodis 1992, p. 99). Hartfield mining, and urbanization. Without A variety of activities may induce (1993, p. 131–141) and Neves et al. adequate measures to control erosion, channel instability that adversely affects (1997, p. 71–72) reviewed the adverse these activities may deliver sediment to habitat conditions for mussels. Because effects of channel modifications on streams via upland gullies, unpaved impoundments block the natural freshwater mollusks. Dredging in the roads, road-side ditches, construction downstream movement of sediment, Apalachicola River to maintain sites, and other areas of soil disturbance. channel degradation is commonly navigability may be contributing to All of these activities are widespread in observed in the tailwaters of dams observed channel instability in that the current range of the seven mussels. (Williams and Wolman 1984, p. 14; system (letter from G. Carmody, Service, Sediment samples from several ACF Lignon et al. 1995, p. 187). The mean to R. Keyser, USACE, dated August 8, Basin streams contained elevated

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concentrations of two heavy metals that Water Withdrawals assessments under Section 305(b) of the are harmful to mussels: Copper (found Water withdrawals for agricultural, Clean Water Act (CWA). Although water throughout the Piedmont) and cadmium municipal, and industrial use may quality in the smallest of the four (found in large Coastal Plain tributaries reduce stream flow and affect mussels. basins, Econfina Creek, is generally of the Flint River) (Frick et al. 1998, p. In the Dougherty Plain of the lower Flint good, mercury accumulation in fish 19). Elevated concentrations of heavy River Basin and upper populations was cited as a potential metals (such as chromium and Basin, irrigated agriculture is the largest impairment in Florida’s most recent cadmium) were measured in Asian consumptive water use (Marella et al. basin status report (FDEP 2003a, p. 71). clams and in sediment samples 1993, p. 6, 13, 29, 42). Major crops in Barrios and Chelette (2004, p. 7) collected downstream of two abandoned the region include cotton, peanuts, corn, described the hydrologic setting of battery salvage operations on the and soybeans, with the largest acreage Econfina Creek, which strongly Chipola River (Winger et al. 1985, p. irrigated by groundwater using center influences its water quality 141, 144). Farther downstream in the pivot sprinkler systems. Due to the characteristics. Except during periods of Chipola River, the chromium porous limestone underlying this area, high rainfall, most of the flow in concentrations found in the sediments ground and surface waters are highly Econfina Creek derives from the of Dead Lake (Winger et al. 1985, p. 141, connected, and the base flow of many discharge of a series of at least 39 144) are toxic to mussels (Havlik and streams is supported by the discharge of vents from the Floridan Aquifer in the Marking 1987, p. 1–20). springs (Torak et al. 1996, p. 1–106). middle section of the creek. The ground water contribution zone for these Impoundments This area is also the center of the current range of several of the seven springs is large and encompasses a significant portion of the creek’s surface The operations of several dams and mussels. Approximately 172,125 water basin. Water quality in the withdrawals of surface and groundwater hectares (ha) (425,000 acres (ac)) of Floridan Aquifer is vulnerable to land may alter flow regimes to a degree that cropland were irrigated using center use activities in this contribution zone. adversely affects mussels. Four portions pivot systems in a 16-county area of of the range of the seven mussels are Georgia in the lower Flint River Basin, Water quality in the largest of the four immediately downstream of major with an additional 30,375 ha (75,000 ac) basins, the ACF, varies considerably. mainstem dams. The Apalachicola River irrigated with surface waters (Litts et al. Two small portions of the seven is downstream of Jim Woodruff Lock 2001, p. 23). Using models representing mussels’ current range in the ACF are and Dam (JWLD), which impounds Lake surface water—groundwater dynamics within the State of Alabama: The entire , a large but shallow reservoir in the lower Flint–upper Chipola area, Uchee Creek watershed (a in the southwest corner of Georgia with Albertson and Torak (2002, p. 22) found Chattahoochee River tributary) and the a storage capacity of about 86 million that 8 of 37 streams examined (7 of headwaters of the Chipola River meters3 (70,000 acre-feet). Seminole is these 37 support listed mussels) were watershed (an Apalachicola River the downstream-most reservoir in a highly sensitive to groundwater tributary). In the latter, the Alabama series of much larger reservoirs on the withdrawal and that during droughts Department of Environmental Chattahoochee River with a cumulative these streams may go dry. Management (2004, p. 7) reports that capacity of about 2.2 billion m3 (1.8 Water supply for municipal and Cypress Creek is impaired due to million ac-ft), which represents about 11 industrial needs are greatest in the areas organic enrichment and low dissolved oxygen (DO). We have no records of the percent of the average annual discharge of greatest human population. Several seven mussels in Cypress Creek; from JWLD (USACE 1998, p. 4.10, 4.48, large urban areas (population greater however, three of the species are known 4.56). During extended periods without than 100,000) are near or within the to occur within a few miles downstream substantial rainfall, however, as during current range of the seven mussels, of its mouth. In the Florida portion of 1999 to 2002, the flow of the including Dothan, Alabama; Panama the ACF, several stream segments that Apalachicola River may consist mostly City and Tallahassee, Florida; and support one or more of the seven of releases from storage in the Albany, , and Columbus, mussels in the Chipola and Chattahoochee reservoirs. Georgia. The largest of these is the Atlanta metro area, which extends into Apalachicola watersheds are potentially The Flint River is impounded by two the headwaters of the Flint River Basin. impaired due to excessive coliform mainstem reservoirs, Population in the 16-county metro area bacteria, nutrients, un-ionized and Lake Worth. By impeding passage is forecast to increase from about 4 ammonia, or turbidity (FDEP 2003b, p. of host fishes, these dams separate million people in 2000 to about 8 1–208). Mercury-based fish advisories individuals of the shinyrayed million in 2030, when regional water apply to one or more segments of both pocketbook, Gulf moccasinshell, oval planning authorities predict water watersheds. The current range of the pigtoe, and purple bankclimber into at demand will equal available water seven mussels in the Flint River Basin least three populations within the basin. supply from existing and presently includes 131 km (81 mi) that are Both dams are used for hydropower and planned sources (Ashley 2005, p. 1). reported as not supporting or partially are licensed to operate generally in a Water use will likely increase along supporting designated uses due to run-of-river mode (releases with increasing human population in departures from Georgia’s standards for approximately equal reservoir inflow) each of the four basins that support the DO or biological integrity, or are under (USACE 1998, p. 4.48, 4.56), but short- seven mussels. mercury-based fish consumption term alterations of river flow may occur. advisories (GDNR–EPD 2002, p. 1/1–9/ A mainstem dam on the Ochlockonee Water Quality 2). The streams listed include such Flint River creates , which is Water quality is reported as impaired River tributaries as Spring Creek and licensed and operated in a similar or potentially impaired in some portions , but not the fashion. No dams have been constructed of all four river basins within the mainstem. The conditions in an on Econfina Creek or the Suwannee current range of the seven mussels, additional 58 km (36 mi) of Flint River River and its major tributaries within according to the water quality agencies tributaries occupied by the mussels the range of the seven mussels. of the three States in their periodic violate the coliform bacteria standard.

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Water quality is considered impaired were found to exceed criteria for Non-Native Species in a majority of the mussels’ range in the protection of aquatic life. Asian Clam Ochlockonee River Basin of Florida and Many pollutants in the ACF Basin The invasion of non-native aquatic Georgia. In both States, the entire originate from urban stormwater runoff, mainstem length of the river is impaired species has contributed to the decline of developmental activities, and municipal or potentially impaired by excessive several North American mussel species waste water facilities, primarily coliform bacteria or nutrients, low DO, (Neves et al. 1977, p. 72–75; Strayer or is under mercury-based fish upstream of the fall line (the line 1999, p. 74). Some native mussels may consumption advisories (FDEP 2003c, p. marking the relatively abrupt elevation go extinct due to the continued spread 1–141; GDNR—EPD 2002, p. 1/1–9/2). A transition between the Piedmont of the zebra mussel (Dreissena study of water and sediment quality in physiographic province and the coastal polymorpha), a species not yet the basin in relation to mussels found plain) (Frick et al. 1998, p. 1–36). Urban established in the southeast (Ricciardi et that sites with low DO or elevated levels catchments in Piedmont drainages have al. 1998, p. 618). Another non-native of lead, manganese, or ammonia no higher concentrations of nutrients, bivalve, the Asian clam (Corbicula longer supported their historical mussel heavy metals, pesticides, and organic fluminea), is well-established and assemblages, including the listed compounds than do agricultural or almost ubiquitous in the range of the species (Hemming et al. 2005, p. 2). forested ones (Lenat and Crawford 1994, seven mussels. Reports of Asian clam The range of the seven mussels in the p. 185; Frick et al. 1998, p. 1–36), and density vary considerably, from 9 per Suwannee River Basin is limited to one at levels sufficient to affect fish health square foot (Flint River, Sickel 1973, p. species (the oval pigtoe), to the Florida (Ostrander et al. 1995, p. 213). Couch et 11) to over 195 per square foot (Santa Fe portion of the basin, and to one al. (1996, p. 50) counted 137 municipal River, Bass and Hitt 1974, p. 16). In the New River (Suwannee River drainage), watershed within that portion (the Santa wastewater treatment facilities in the Blalock and Herod (1999, p. 145–151) Fe River watershed). The oval pigtoe is ACF Basin. currently known only from the New found an overall density of 8 Asian River and a short segment of Santa Fe Host Fish clams per square foot in an area where itself downstream of the mouth of the oval pigtoe density was 0.003 per square New River. Most of the New River was Collectively, eight species of fish are foot (Blalock-Herod 2000, p. 1–72). In listed as impaired due to excessive now considered probable primary hosts one reach of the Apalachicola River coliform bacteria, excessive nutrients, for the larval life stage of four of the immediately downstream of Jim and low DO in 1998, and remains seven mussels: Largemouth bass, Woodruff Lock and Dam, the stream bed potentially impaired under Florida’s spotted bass, bluegill, redear sunfish, is almost entirely covered with a layer current standards (FDEP 2003d, p. 1– weed shiner, sailfin shiner, blackbanded of live and dead Asian clams several 159). darter, and (O’Brien and inches deep (J. Ziewitz, personal Agricultural sources of contaminants Brim Box 1999, p. 136; O’Brien and observation). Several researchers have in the ACF and Suwannee basins Williams 2002, p. 150–152) (see suggested that the Asian clam competes include nutrient enrichment from ‘‘PCEs—Fish Hosts’’). According to Lee with native mussels for food, nutrients, poultry farms and livestock feedlots, et al. (1980, p. 1–854), the range of each and space (Heard 1977, p. 1–177; and pesticides and fertilizers from row of these fishes encompasses the range of Kraemer 1979, p. 1094; Clarke 1986, p. crop agriculture (Couch et al. 1996, p. the respective mussel(s) that 8), particularly with juvenile unionids 1–58; Frick et al. 1998, p. 1–36; Berndt (Neves and Widlak 1987, p. 6). Yeager successfully parasitized each species in et al. 1998, p. 1–32). A study by the U.S. et al. (2000, p. 257) determined that laboratory tests, with the possible Soil Conservation Service (1993, p. 26) high densities of Asian clams reduced (now the Natural Resources exception of the sailfin shiner—oval survival and growth of newly Conservation Service) in the Flint River pigtoe association. The sailfin shiner metamorphosed juvenile mussels. system determined that between 72 and does not occur far upstream of the fall However, Asian clams are present at 75 percent of the nutrients entering Lake line in the ACF basin (B. Albanese, GA almost all locations where the seven Blackshear were derived from DNR Wildlife Division, pers. comm. mussels for which we are proposing agricultural sources. Organochlorine 2006), but the oval pigtoe does; critical habitat in this proposed rule are pesticides were found at levels in ACF therefore, at least one more fish likely currently found, and the specific impact Basin streams that often exceeded serves as a host for this species. None of this species upon native mussels is chronic exposure criteria for the of the eight fishes is protected under the largely unresolved (Leff et al. 1990, p. protection of aquatic life (Buell and Act or considered imperiled rangewide 415; Strayer 1999, p. 90). Couch 1995, p. 1; Frick et al. 1998, p. (Williams et al. 1989, p. 2–20); however, Black Carp 11). Cotton is raised in much of the Georgia recognizes the sailfin shiner as region inhabited by these mussels. One a species of special concern (State rank The black carp (Mylopharyngodon of the most important pesticides used in ‘‘S3’’; rare or uncommon in State). The piceus) is another introduced species cotton farming, malathion, affects four centrarchid fishes (the two basses, that may pose a threat to the seven mussels physiologically and may bluegill, and redear sunfish) are each mussels. Largest of the Asiatic carp species, the black carp eats mollusks decrease respiration and feeding ability classified as game species by the three (snails and mussels), and sterile fish are (Kabeer et al. 1979, p. 71–73). Within States. Riverine fish populations in the the Suwannee River basin, nutrient sometimes used in catfish aquaculture southeast generally have been adversely concentrations were greater in to control snails that are the affected by a variety of the same habitat agricultural areas and nitrates were intermediate hosts of a catfish parasite found to exceed U.S. Environmental alterations that have contributed to the (Nico et al. 2001, p. 1–124). Escape of Protection Agency (USEPA) drinking decline of the region’s mussel fauna substantial numbers of the sterile fish water standards in 20 percent of the (Etnier 1997, p. 91; Neves et al. 1997, p. could significantly reduce numbers of surficial aquifer groundwater samples 60; Warren et al. 1997, p. 106, 123–125, native mussels where the escape occurs, (Berndt et al. 1998, p. 6). Mostly in 127, 131). and the establishment of non-sterile urban areas, pesticide concentrations black carp in the wild could

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conceivably extirpate entire mussel designation does not allow government Appropriations Act for Fiscal Year 2001 populations. or public access to private lands. (Pub. L. 106–554; H.R. 5658) and the To be included in a critical habitat associated Information Quality Previous Federal Actions designation, the habitat within the area Guidelines issued by the Service. We listed the seven mussels under the occupied by the species must first have Section 4 of the Act requires that we Act on March 16, 1998 (63 FR 12664), features that are essential to the designate critical habitat on the basis of and approved a final recovery plan for conservation of the species. Critical the best scientific data available. Habitat the seven species on September 19, habitat designations identify, to the is often dynamic, and species may move 2003 (68 FR 56647; October 1, 2003). In extent known using the best scientific from one area to another over time. the final 1998 rule, we determined that data available, habitat areas that provide Furthermore, we recognize that designation of critical habitat was not essential life cycle needs of the species designation of critical habitat may not prudent. On March 15, 2004, the Center (areas on which are found the primary include all of the habitat areas that may for Biological Diversity (Center) filed a constituent elements, as defined at 50 eventually be determined to be lawsuit in the U.S. District Court for the CFR 424.12(b)). necessary for the recovery of the Northern District of Georgia (Civil Habitat occupied at the time of listing species. For these reasons, critical Action No. 1:04 CV–0729–GET) alleging may be included in critical habitat only habitat designations do not signal that that we violated the Act by failing to if the essential features thereon may habitat outside the designation is designate critical habitat for the seven require special management or unimportant or may not be required for mussels. We entered a settlement protection. Thus, we do not include recovery. agreement with the Center on August areas where existing management is Areas that support populations, but 31, 2004, which stipulates that the sufficient to conserve the species. are outside the critical habitat Service would submit for publication in Accordingly, when the best available designation, will continue to be subject the Federal Register, on or before May scientific data do not demonstrate that to conservation actions implemented 30, 2006, a new prudency the conservation needs of the species so under section 7(a)(1) of the Act and to determination, and if designation was require, we will not designate critical the regulatory protections afforded by determined to be prudent, a proposed habitat in areas outside the geographical the section 7(a)(2) jeopardy standard, as rule designating critical habitat. This area occupied by the species at the time determined on the basis of the best publication is our new prudency of listing. An area currently occupied by available information at the time of the determination and our proposed rule the species but was not known to be action. Federally funded or permitted designating critical habitat for the seven occupied at the time of listing is likely, projects affecting listed species outside mussels. but not always, essential to the their designated critical habitat areas conservation of the species and is may still result in jeopardy findings in Critical Habitat typically included in the critical habitat some cases. Similarly, critical habitat Critical habitat is defined in section 3 designation. designations made on the basis of the of the Act as—(i) the specific areas The Service’s Policy on Information best available information at the time of within the geographical area occupied Standards Under the Endangered designation will not control the by a species, at the time it is listed in Species Act, published in the Federal direction and substance of future accordance with the Act, on which are Register on July 1, 1994 (59 FR 34271), recovery plans, habitat conservation found those physical or biological and Section 515 of the Treasury and plans, or other species conservation features (I) essential to the conservation General Government Appropriations planning efforts, if new information of the species and (II) that may require Act for Fiscal Year 2001 (Pub. L. 106– available to these planning efforts calls special management considerations or 554; H.R. 5658) and the associated for a different outcome. protection; and (ii) specific areas Information Quality Guidelines issued outside the geographical area occupied by the Service, provide criteria, Prudency Determination by a species at the time it is listed, upon establish procedures, and provide Section 4(a)(3) of the Act and its a determination that such areas are guidance to ensure that decisions made implementing regulations (50 CFR essential for the conservation of the by the Service represent the best 424.12) require that, to the maximum species. Conservation, as defined under scientific data available. They require extent prudent and determinable, we section 3 of the Act, means to use and Service biologists to the extent designate critical habitat at the time a the use of all methods and procedures consistent with the Act and with the use species is listed as endangered or which are necessary to bring any of the best scientific data available, to threatened. Our regulations at 50 CFR endangered species or threatened use primary and original sources of 424.12(a)(1) state that the designation of species to the point at which the information as the basis for critical habitat is not prudent when one measures provided pursuant to the Act recommendations to designate critical or both of the following situations exist: are no longer necessary. habitat. When determining which areas (1) The species is threatened by taking Critical habitat receives protection are critical habitat, a primary source of or other activity and the identification under section 7 of the Act through the information is generally the listing of critical habitat can be expected to prohibition against destruction or package for the species. Additional increase the degree of threat to the adverse modification of critical habitat information sources include the species; or (2) such designation of with regard to actions carried out, recovery plan for the species, articles in critical habitat would not be beneficial funded, or authorized by a Federal peer-reviewed journals, conservation to the species. In our March 16, 1998, agency. Section 7 requires consultation plans developed by States and counties, final rule (63 FR 12664), we determined on Federal actions that are likely to scientific status surveys and studies, that designating critical habitat was not result in the destruction or adverse biological assessments, or other prudent for the seven mussels because modification of critical habitat. The unpublished materials and expert it would result in no known benefit to designation of critical habitat does not opinion or personal knowledge. All the species and could further pose a affect land ownership or establish a information is used in accordance with threat to them through publication of refuge, wilderness, reserve, preserve, or the provisions of Section 515 of the their site-specific localities. However, other conservation area. Such Treasury and General Government several of our determinations that the

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designation of critical habitat would not rule for the seven mussels; and our final 424.12, we are required to base critical be prudent have been overturned by recovery plan for the seven mussels. habitat determinations on the best court decisions (for example, Our principal sources of information scientific and commercial data available Conservation Council for Hawaii v. for identifying the specific areas within and to consider within areas occupied Babbitt (2 F. Supp. 2d 1280 [D. Hawaii the occupied range of the seven mussels by the species at the time of listing those 1998]); and Natural Resources Defense on which are found those features physical and biological features that are Council v. U.S. Department of the essential to their conservation were: the essential to the conservation of the Interior (113 F. 3d 1121, 1125 [9th Cir. collective database of locality records species (PCEs), and that may require 1997])). for the seven mussels, which is special management considerations or We are already working with Federal tabulated in our 2003 final recovery protection. These include, but are not and State agencies, private individuals, plan and has been supplemented with limited to: Space for individual and and organizations in carrying out surveys completed since then, and the population growth and for normal conservation activities for the seven peer-reviewed scientific literature on behavior; food, water, air, light, mussels, conducting surveys for mussels’ life history and habitat minerals, or other nutritional or additional occurrences, and assessing requirements. Our 1998 final listing rule physiological requirements; cover or habitat conditions. However, critical relied extensively upon data obtained in shelter; sites for breeding, reproduction, habitat designation may provide a rangewide status survey of the seven and rearing (or development) of additional information to individuals, mussels commissioned by the Service offspring; and habitats that are protected local and State governments, and other and conducted in 1991 and 1992 (cited from disturbance or are representative of entities engaged in long-range planning, as Butler (1993, p. 1–30) in the final the historic geographical and ecological since areas with features essential to the listing). Most of these data were taken distributions of a species. conservation of the species are clearly in the ACF basin and have since been The specific PCEs essential for the delineated and, to the extent currently published by Brim Box and Williams seven mussels are derived from their feasible, the primary constituent (2000, p. 3). Although mussel surveys biological needs as described in the elements of the habitat necessary to the have been conducted since publication Background section of this proposal. survival of the subspecies are of the final listing rule at various Space for individual and population specifically identified. Furthermore, locations in the four river basins that growth and normal behavior, and sites although the low numbers of these encompass their known range, the for reproduction and development of 1991–1992 status survey still provides a offspring are provided for the seven mussels make it unlikely that their majority of the most recent mussels on and within the streambed of populations could withstand even distributional records for these seven stable channels with a suitable moderate collecting pressure or mussels. For purposes of this proposed substrate, which we have captured in vandalism, we do not have specific rule, the Service considers the most the PCEs regarding channel stability, evidence of taking, collection, recent post-1990 survey data at a substrate quality, and flow regime. vandalism, trade, or unauthorized particular location as representing a Because the seven mussels are human disturbance. species’ current presence or absence at dependent on fish to complete their Accordingly, we withdraw our that location, and we consider pre-1990 larval life stage, the PCE regarding fish previous determination that the survey data as representing historical hosts is a further requirement for designation of critical habitat will not distribution. We must extend the successful reproduction. Various benefit the seven mussels and will definition of current distribution back to nutritional and physiological increase the degree of threat to the 1990 because mussels are sedentary, requirements are captured in the PCEs species. We determine that the long-lived , some species regarding flow regime and water quality. designation of critical habitat is prudent attaining maximum life spans of 100 to These PCEs are explained in additional for these species. At this time, we have 200 years (Neves and Moyer 1988, detail below. sufficient information necessary to p. 185; Bauer 1992, p. 425; Mutvei et al. Channel Stability identify specific areas that meet the 1994, p. 163–186). It was rare in the definition of critical habitat and are, 1991–1992 survey, and is still rare, to Unstable channels do not favor therefore, proposing critical habitat for find juveniles of the seven mussels. mussels in part because adults and the seven mussels. We relied on a variety of information juveniles are relatively sedentary Methods sources for identifying occupied areas in animals. They are unable to move which the features essential to the quickly or across great distances from As required by section 4(b)(1) of the conservation of the seven mussels may unsuitable to suitable microhabitats on Act, we used the best scientific and require special management and in the stream bed. Several commercial data available in considerations or protection, including researchers have reported direct adverse determining areas that contain the land and water management plans of effects to mussels in aggrading (filling) physical and biological features State and regional government agencies, and degrading (scouring) channels essential to the conservation of the surveys of stream channel condition, (Vannote and Minshall 1982, p. 4106; seven mussels. We reviewed the water quality assessments, and Kanehl and Lyons 1992, p. 7; Hartfield available information pertaining to their distributional information for host 1993, p. 133; Brim Box and Mossa 1999, historical and current distributions, life fishes. We used the sources cited in our p. 99–117). In degrading channels, histories, host fishes, habitats, threats to final recovery plan’s summary of known mussels lose the substrate sediment in mussels in general, and threats to the threats to the seven mussels to identify which they anchor themselves against seven mussels in particular. This which essential features may be most the current. Mussels have been information includes our own site- vulnerable in certain portions of the extirpated from streams experiencing a specific species and habitat data; occupied range. ‘‘headcut’’ (stream bed degradation unpublished survey reports; notes and progressing in an upstream direction) communications with other qualified Primary Constituent Elements and from degrading reaches biologists or experts; peer-reviewed In accordance with section 3(5)(A)(i) immediately downstream of dams. In scientific publications; the final listing of the Act and regulations at 50 CFR aggrading channels or in channels with

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actively eroding stream banks, excess proposed rule are found in a variety of disguising their glochidia as potential sediment fouls the gills of mussels, substrates, ranging from pockets of sand prey items (O’Brien and Brim Box 1999, which reduces feeding and respiratory on bedrock to sandy mud, but not in p. 135–136; O’Brien and Williams 2002, efficiency, disrupts metabolic processes, substrates composed of predominantly p. 154), and some of these mechanisms reduces growth rates, and physically fine materials (more than 50 percent silt appear to require flowing water to smothers mussels (Ellis 1936, p. 39; or clay by dry weight) (Brim Box and function effectively as lures. For Stansbery and Stein 1971, p. 2178; Williams 2000, p. 1–143; Blalock-Herod example, flowing water is required to Marking and Bills 1979, p. 209–210; Kat 2000, p. 1–72). suspend the several-feet-long 1982, p. 123; Vannote and Minshall Interstitial spaces (pores) in coarse superconglutinate of the shinyrayed 1982, p. 4105–4106; Aldridge et al. stream substrates may become clogged pocketbook in the water column so that 1987, p. 18; Waters 1995, p. 173–176; when fine sediment input to streams is the glochidia packet at the end of it, Brim Box 1999, p. 65). excessive (Gordon et al. 1992, p. 1–444). which resembles a small fish, is visible In addition to the direct effects above, Reduced pore space and pore flow rates to fish (O’Brien and Brim Box 1999, p. channel instability indirectly affects reduce habitat for juvenile mussels, 135, 138). mussels and their fish hosts in several which tend to burrow entirely beneath Quantifying the amount of flowing ways. Channels becoming wider and the substrate surface, and for some adult water that is essential to the shallower via bank erosion develop mussels as well (Brim Box and Mossa conservation of the seven mussels is more extreme daily and seasonal 1999, p. 99–117). At least some species complicated by the broad size range of temperature regimes, which affects DO of juvenile unionids feed primarily on streams they inhabit, from small levels and many other temperature- particles associated with sediments and tributaries near watershed headwaters to regulated physical and biological pore water during their early the Apalachicola River, which is the processes. Mussels in wider and development (Yeager et al. 1994, p. world’s 82nd-largest river by discharge shallower channels are likely more 221). Fine sediments act as vectors in (Leopold 1994, p. 101). These seven susceptible to predation. Erosive delivering contaminants such as mussels are often found near the toe of channels lose the habitat complexity nutrients, heavy metals, and pesticides stable stream banks associated with provided by mature bankside to streams (Salomons et al. 1987, p. 13). roots and other instream cover or vegetation, which reduces diversity and Most toxicity data for freshwater structure. A flow sufficient to inundate abundance of fish species. Fewer fish mussels is from tests with water-only the stream bed from bank toe to bank toe means lower probability of mussel exposures, despite reports that with adequately oxygenated water deep recruitment (see ‘‘Fish Hosts’’). The contaminated sediments have enough to deter terrestrial predators is many direct and indirect adverse effects contributed to mussel declines (Newton several orders of magnitude greater at a of channel instability on mussels and 2003, p. 2543; Wilson et al. 1995, p. site on the lower Apalachicola River their fish hosts strongly suggest that 213–218). compared to a site on a tributary stream channel stability is a habitat feature Because the juveniles and adults of in the upper Ochlockonee River. essential to their conservation. the seven mussels live in relatively Quantifying the amount of flowing coarse and not predominantly fine- water that is essential to the Substrate Quality grained substrates, and the introduction conservation of the seven mussels is Adult unionid mussels are generally of fine-grained sediments and various also complicated by their dependency found in localized patches (beds) almost pollutants is likely detrimental to one or on various species of fishes to serve as completely burrowed in the substrate more of their life stages, we have hosts for their glochidia. Mussel with only the area around their siphons determined that substrate quality is a population viability is likely dependent exposed (Balfour and Smock 1995, p. habitat feature essential to their on features of the flow regime that 255–268). The composition and conservation. influence fish host population density abundance of adult mussels have been as well as features that directly affect Flow Regime linked to bed sediment distributions adult and juvenile mussel survival. For (Neves and Widlak 1987, p. 5; Leff et al. The species that are the subject of this example, the largemouth bass, which is 1990, p. 415). Substrate texture (particle proposed rule are all riverine unionid a lab-verified host for the fat threeridge size distribution) affects the ability of mussels and are not found in natural or and shinyrayed pocketbook (O’Brien mussels to burrow in the substrate and manmade ponds and lakes. One known and Brim Box 1999, p. 136; O’Brien and anchor themselves against stream exception is a single large (and Williams 2002, p. 150), is known to currents (Lewis and Riebel 1984, p. presumably old) purple bankclimber utilize seasonally inundated floodplain 2025). Texture and other aspects of found in Goat Rock Reservoir on the habitats for spawning and rearing substrate composition, including bulk Chattahoochee River by malacologist C. (Kilgore and Baker 1996, p. 291–294), density (ratio of mass to volume), Stringfellow (Columbus State habitats which do not support adult or porosity (ratio of void space to volume), University) in 2000 (pers. comm. 2000). juvenile mussels because they are dry and sediment sorting may also influence Otherwise, none of the seven mussels for several months of most years. Year mussel densities (Brim Box 1999, p. 1– tolerate impounded conditions or class strength of largemouth bass has 86; Brim Box and Mossa 1999, p. 99– persist in intermittent streams (Brim been positively correlated with flows in 117). Although several studies have Box and Williams 2000, p. 1–141); several river systems due to the reported adult habitat selection by therefore, continuously flowing water is additional habitat available in high-flow substrate composition, most species are a habitat feature associated with all years (Raibley et al. 1997, p. 852–853), found in a relatively broad range of potentially viable populations. Flowing and fish host density is a factor in substrate types (Tevesz and McCall water transports food items to the mussel recruitment (see ‘‘Fish Hosts’’ 1979, p. 114; Strayer 1981, p. 411; Hove sedentary juvenile and adult life stages discussion below). Year class strength is and Neves 1994, p. 36; Strayer and and provides oxygen for mussel abundance of a cohort (born in a Ralley 1993, p. 255), with few respiration at depths that would be particular year) relative to other cohorts. exceptions (Stansbery 1966, p. 29–30). anoxic in a pond setting. At least three A strong year class is represented in The seven mussels for which we are of the seven mussels are known to much greater numbers than a weak year proposing critical habitat in this attract host fishes visually by apparently class, presumably because the strong

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year class experienced more favorable tolerate the full range of these temperatures (Roberts and Barnhart conditions for recruitment. parameters to persist in that stream. 1999, p. 484). Riverine ecologists have recognized Quantifying water quality tolerances for Various contaminants in point- and that variable flow creates variable the seven mussels is further non-point-source discharges can physical and chemical conditions that complicated by the dependency of degrade water and substrate quality and limit the distribution and abundance of mussels on fish hosts, which may adversely affect mussel populations riverine species (Power et al. 1995, p. exhibit different tolerances. (Horne and McIntosh 1979, p. 119–133; 166; Resh et al. 1988, p. 443). Altering Most mussels are considered sensitive Neves and Zale 1982, p. 53; McCann natural long-term patterns of flow to low DO levels and high temperatures and Neves 1992, p. 77–81; Havlik and changes the structure, composition, and (Fuller 1974, p. 245). Johnson (2001, p. Marking 1987, p. 1–20). Naimo (1995, p. function of riverine communities (Bain 8–11) monitored water quality and 341) suggested that chronic, low-level et al. 1988, p. 382–392; Hill et al. 1991, mussel mortality during a drought year contamination of streams may explain p. 198–210; Sparks 1995, p. 172–173; in the lower Flint River Basin. Low DO the widespread decreases in mussel Scheidegger and Bain 1995, p. 134). Poff levels, which occurred during low flow density and diversity. Mussels appear to et al. (1997, p. 770) and Richter et al. periods, were associated with high be among the organisms most sensitive (1997b, p. 243) concluded that the weekly mussel mortality. Species- to heavy metals (Keller and Zam 1991, accumulated research on the specific mortality varied considerably. p. 539), several of which are lethal at relationship between hydrologic The shinyrayed pocketbook and Gulf relatively low levels (Havlik and variability and riverine ecological moccasinshell were among the species Marking 1987, p. 3). Cadmium appears integrity overwhelmingly supported a with the highest mortality rates when to be the most toxic (Havlik and ‘‘natural flow paradigm,’’ that is, the exposed to DO concentrations less than Marking 1987, p. 3), although copper, patterns of variability in a river’s natural 5 milligrams per liter (mg/L). The oval mercury, chromium, and zinc may also flow regime are critical in sustaining its pigtoe demonstrated moderate, but impair physiological processes ecological integrity. Richter et al. (1996, significantly higher than average, (Jacobson et al. 1993, p. 879; Naimo p. 1165, 1997b, p. 236) proposed a set mortality when DO was less than 5 mg/ 1995, p. 353–355; Keller and Zam 1991, of parameters collectively termed L. p. 539–546; Keller and Lydy 1997, p. 3). ‘‘indicators of hydrologic alteration’’ Juvenile mussels may spend their first Metals stored in mussel tissues indicate (IHA) for characterizing ecologically few years buried in the sediments of the recent or current exposure (Havlik and relevant features of a flow regime. stream bed. Interstitial water (pore Marking 1987, p. 12), while The Service and USEPA adapted a water) in sediments is generally less concentrations in shell material indicate subset of the IHA parameters as oxygenated than flowing water in the past exposure (Imlay 1982, p. 7; Mutvei instream flow guidelines for protecting stream above (Sparks and Strayer 1998, et al. 1994, p. 163–186). Highly acidic riverine ecosystems under a possible p. 129). Sparks and Strayer (1998, p. pollutants such as metals may interstate water allocation formula 132) observed marked differences in contribute to mussel mortality by between Alabama, Florida, and Georgia behavior between juvenile Eastern dissolving shells (Stansbery 1995, p. 2– for the ACF Basin (USFWS and USEPA elliptio (Elliptio complanata), congener 3). Low levels of some metals may 1999, p. 1). Although the three States of the Chipola slabshell, that were inhibit glochidial attachment (Huebner failed to agree upon an allocation exposed to DO levels of 2 mg/L and 4 and Pynno¨nen 1992, p. 2349). Mussel formula and the ACF Compact mg/L, and most juveniles of this species recruitment may be reduced in habitats authorizing their negotiations expired, that were exposed to 1.3 mg/L for a with low but chronic heavy metal and the Service has applied the instream week died. In general, juveniles are other toxicant inputs (Yeager et al. 1994, flow guidelines in consultations with sensitive to low DO levels. Interstitial p. 221; Naimo 1995, p. 341; Ahlstedt Federal agencies on actions affecting the DO levels in streams of the eastern and Tuberville 1997, p. 72–77). species addressed in this proposed rule. are usually less than 4 Water pollutants associated with The Service–USEPA guidelines are mg/L in the summer and may fall below agricultural activity may adversely definitions of measures of flow 1 mg/L (Sparks and Strayer 1998, p. affect mussels. Arsenic trioxide, which magnitude, duration, frequency, and 132). is used in the poultry industry as a feed seasonality that may serve as thresholds Water temperature affects the amount additive, is lethal to adult mussels at for ‘‘may affect’’ determinations for of oxygen that can be dissolved in water concentrations of 16.0 parts per million proposed Federal actions that would and the toxicity of various pollutants. (ppm), and ammonia is lethal at alter a flow regime (for example, water The toxic effects of ammonia are more concentrations of 5.0 ppm (Havlik and withdrawals and dam operations). The pronounced at higher temperatures and Marking 1987, p. 3, 13). Ammonia is thresholds are computed from long-term at higher pH (Mummert et al. 2003, p. associated with feedlots, flow records appropriate to the 2545, 2550; Newton 2003, p. 2543). nitrogenous fertilizers, and the effluents proposed action, such as daily flow High temperatures or decreasing pH of older municipal wastewater treatment records from a stream gage in the action may increase the toxicity of metals to plants. Ammonia causes a shift in area. The Service–USEPA guidelines are unionids (Havlik and Marking 1987, p. glucose metabolism (Chetty and Indira designed as a tool for site-specific 14). Watters and O’Dee (2000, p. 136) 1995, p. 84) and alters the utilization of analyses and such efforts as this suggested that the release of glochidia is lipids, phospholipids, and cholesterol proposed rule. regulated by water temperature. In (Chetty and Indira 1994, p. 693). Stream Texas, exceptionally warm temperatures ecosystems are altered when nutrients Water Quality appeared to prompt early initiation of are added at concentrations that cannot The ranges of several standard mussel reproductive activity, and cool be assimilated (Stansbery 1995, p. 2–3). physical and chemical water quality temperatures appeared to delay activity Excessive nutrients promote the growth parameters (such as temperature, DO, (Howells 2000, p. 40). Temperature may of filamentous algae in streams, which pH, conductivity) that define suitable affect immune system response in fish. may render substrates unsuitable for habitat conditions for the seven mussels Some fish species that reject infections mussels of all life stages and degrade have not been specifically investigated. by mussel glochidia at higher water quality by consuming oxygen As sedentary animals, mussels must temperatures are infected at lower during night-time respiration and

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during decay to levels that mussels under the CWA and the Act (66 FR infestation (Watters and O’Dee 1996, p. cannot tolerate. Several studies have 11202, February 22, 2001). The criteria 387). Glochidia that contact a host with described adverse effects of pesticides for some pollutants, such as ammonia, natural immunity are rejected and die, on mussels (Fuller 1974, p. 215–257; are presently under review. Although usually within 11 days (Neves et al. Havlik and Marking 1987, p. 13; the State standards adopted consistent 1985, p. 15, 17; Yeager and Neves 1986, Moulton et al. 1996, p. 131). Commonly with the USEPA criteria generally p. 338; Waller and Mitchell 1989, p. 86). used pesticides were cited as the likely represent levels that are safe for the In the case of acquired immunity, cause of a mussel die-off in a North seven mussels, these standards are glochidia experience decreased Carolina stream (Fleming et al. 1995, p. sometimes violated in some streams transformation rates with subsequent 877–879). within their current range. Rather than infections of an initially suitable host Gourdreau et al. (1993, p. 211–230) specify the ranges of dozens of water fish (Arey 1932, p. 372; Bauer and Vogel examined mussel populations relative to quality parameters for the seven 1987, p. 393; Luo 1993, p. 26). The the discharges of two municipal mussels, it is more practical to deal with number of exposures associated with wastewater treatment plants on the cases where the national criteria are not glochidial sloughing is variable (Watters Clinch River in Tazewell County, protective of these and other listed and O’Dee 1996, p. 385, 387). Virginia. Mussels were absent or present species under the national consultations As few as 1 to as many as 25 fish in low numbers immediately with USEPA. For purposes of this species are known to serve as suitable downstream of these discharges, but proposed rule, the evidence for the hosts for particular species of mussels occurred in greater diversity and dependency of the seven mussels on (Fuller 1974, p. 238; Trdan and Hoeh abundance immediately upstream and good water quality supports identifying 1982, p. 386; Gordon and Layzer 1989, farther downstream. The investigators water quality generally as a habitat p. 1–98; Hoggarth 1992, p. 3). Some hypothesized that, in addition to feature that is essential to their mussels are host-fish specialists that chemicals of known toxicity to conservation. parasitize a few fish species (Zale and glochidia, the bacteria and protozoans Neves 1982, p. 2540; Yeager and Saylor associated with wastewater discharges Fish Hosts 1995, p. 4; Neves et al. 1985, p. 13, 17), may also adversely affect mussel Most unionid mussels, including the and others are generalists that parasitize reproduction. Glochidia are vulnerable seven species, parasitize fish during the a great variety of host fishes (Trdan and to attack by bacteria and protozoans larval life stage (see ‘‘Background’’), Hoeh 1982, p. 386). Generally, mussels before and after they are released from depending on fish hosts not only for the that are known host-fish specialists tend the adult female mussel (Fuller 1974, p. physiological transformation from larval to release glochidia in conglutinates 219; Goudreau et al. 1993, p. 221). to juvenile form (Isom and Hudson (multiple glochidia in a packet versus a Adults of some mussel species may 1982, p. 147–151), but also for spatial stream of single glochidia) or use tolerate short-term exposure to various dispersal (Neves 1993, p. 4). The various means of attracting a fish host contaminants by closing their valves distribution and diversity of unionids is before releasing multiple glochidia (Keller 1993, p. 701). Juveniles and strongly related to the distribution and (Watters 1997, p. 45). Because fish that glochidia appear more sensitive than diversity of fish species (Watters 1992, are not naturally immune to glochidial adults to heavy metals (McCann and p. 488; Haag and Warren 1998, p. 298). infection develop some immunity after Neves, 1992, p. 77–81) and to ammonia Bogan (1993, p. 600) identified the infection, securing a host fish is to some (Goudreau et al. 1993, p. 224). dependency of mussels on fish hosts, degree a ‘‘first come, first served’’ Ammonia is lethal to juveniles at which are affected by exploitation and situation. Some researchers have concentrations as low as 0.7 ppm total a variety of common habitat alterations, hypothesized that mussels may compete ammonia nitrogen, normalized to pH 8, as one of several contributing causes in for fish hosts (Watters 1997, p. 57; and lethal to glochidia at concentrations the extinction of several unionid species Trdan and Hoeh 1982, p. 384–385). as low as 2.4 ppm (Augspurger et al. worldwide. Haag and Warren (1998, p. Watters (1997, p. 45–62) developed 2003, p. 2569–2575). In streams, 303) identified host fish availability and individual-based models of mussel— ammonia may occur at highest density as significant factors influencing fish interactions to simulate unionid concentrations in substrate interstitial where certain mussel populations can reproductive strategies, showing spaces where juvenile mussels live and persist. specialists tended to have lower feed (Whiteman et al 1996, p. 794; Although female mussels may population sizes and were less sensitive Hickey and Martin 1999, p. 38; produce 75,000 to 3.5 million glochidia to fluctuating host fish density than Augspurger et al. 2003, p. 2569–2575). (Surber 1912, p. 3–10; Coker et al. 1921, generalists, which attained much higher In general, we believe the numeric p. 144; Yeager and Neves 1986, p. 333), population sizes when host fish density standards for pollutants and water contact of the glochidia with a suitable was high and declined when host quality parameters (for example, heavy host fish is a low-probability event fishdensity declined. metals and DO) that are adopted by the (Neves et al. 1997, p. 60). Contact is Haag and Warren (1998, p. 297–306) States under the Federal Clean Water dependent on many factors, including examined patterns of fish and mussel Act (CWA) represent levels that are the timely presence of the host fish, the community composition in two north essential to the conservation of the feeding and respiratory behaviors of the Alabama drainages. They found that seven mussels. However, some State fish (Dartnall and Walkey 1979, p. 36; densities of host-generalist mussels and standards may not adequately protect Neves et al. 1985, p. 17–18), and for of host-specialist mussels with elaborate mussels, such as the standard for some species, the behavior of the mussel host-attracting mechanisms were ammonia (Augspurger et al. 2003, p. when the fish is present (Davenport and independent of host-fish densities, and 2571; Newton et al. 2003, p. 2559). Warmuth 1965, p. R77; Kraemer 1970, were present throughout the two USEPA and FWS and National Marine p. 225–282). Contact between glochidia drainages. Densities of host-specialist Fisheries Service (the Services) agreed and host fish does not ensure successful mussels without elaborate host- to a national consultation on the CWA larval development to the juvenile form, attracting mechanisms were positively Section 304(a) aquatic life criteria as because some fish species have natural correlated with host-fish densities and part of a Memorandum of Agreement immunity to glochidial infestation and were absent or rare near the drainages’ regarding interagency coordination others acquire immunity following headwaters.

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Host-fish specificity has been . They considered (1) A geomorphically stable stream examined in laboratory tests for five of only the sailfin shiner as a primary host, channel (a channel that maintains its the seven mussels: the fat threeridge, as it was the only species upon which lateral dimensions, longitudinal profile, Gulf moccasinshell, oval pigtoe, purple the transformation rate exceeded 50 and spatial pattern over time without an bankclimber (O’Brien and Williams percent. aggrading or degrading bed elevation); 2002, p. 151), and shiny-rayed We are aware of no studies of the (2) A predominantly sand, gravel, pocketbook (O’Brien and Brim Box reproductive biology of the Chipola and/or cobble stream substrate; 1999, 136). The fat threeridge lacks slabshell. It is likely that the species (3) Permanently flowing water; mantle modifications or other expels glochidia in a conglutinate, as do (4) Water quality (including morphological specializations that several other members of the genus temperature, turbidity, dissolved would serve to attract host fishes and Elliptio that occur in the ACF Basin oxygen, and chemical constituents) that appears to be a host-fish generalist that (Brim Box and Williams 2000, p. 34– meets or exceeds the current aquatic life may infect fishes of at least three 47). Keller and Ruessler (1997, p. 402– criteria established under the Clean different fish families. Glochidia 407) identified centrarchids (sunfishes) Water Act (33 U.S.C. 1251–1387); and transformed to juveniles under as host fishes of other southeastern (5) Fish hosts (such as largemouth laboratory conditions on five of seven Elliptio. bass, sailfin shiner, brown darter) that fish species tested: Weed shiner O’Brien and Williams (2002, p. 153) support the larval life stages of the (Notropis texanus), bluegill (Lepomis observed in the laboratory that purple seven mussels. macrochirus), redear sunfish (L. bankclimber conglutinates readily Criteria Used To Identify Critical microlophus), largemouth bass disintegrated when they contained Habitat (Micropterus salmoides), and mature glochidia, and these were easily (Percina suspended in the water by the aerators We are proposing to designate as nigrofasciata) (O’Brien and Williams in their holding tanks. They speculated critical habitat areas that were occupied 2002, p. 152). that the species may rely on stream at the time of listing by one or more of The elaborate superconglutinate of the currents to carry glochidia to host fish, the seven mussels and that contain one shiny-rayed pocketbook (see which is typical of host-fish generalist or more of the PCEs to support life ‘‘Background’’) suggests it is a host-fish species. Of the 14 fish species they history functions essential to the specialist that targets sight-feeding tested as potential hosts, only a few conservation of the species. This section piscivorous fishes, such as bass. O’Brien species transformed glochidia, describes how we identified those and Brim Box (1999, p. 136) confirmed including the eastern mosquitofish and streams and delineated the upstream that largemouth bass and spotted bass blackbanded darter. Only the mosquito and downstream boundaries of 11 (Micropterus punctulatus) are likely fish was 100 percent effective (all fish proposed critical habitat units. primary hosts (all fishes infected tested transformed glochidia), but it is We began our analysis by examining produced juvenile mussels) among 11 an unlikely primary host fish. The the full extent of each species’ historical species tested. Low transformation rates mosquito fish occupies backwater areas and current range. As discussed under were associated with fish such as the and stream margins with little or no ‘‘Summary of Threats to Surviving eastern mosquitofish (Gambusia current (Lee et al. 1980, p. 1–854), while Populations’’ above, the declining range holbrooki) and bluegill. the bankclimber is found mostly in the and abundance of the seven mussels is The Gulf moccasinshell is probably a main channels of larger streams and due mostly to changes in their riverine host-fish specialist that primarily rivers. The primary host fishes of the habitats resulting from dams, dredging, parasitizes darters. It visually lures host purple bankclimber are still unknown. mining, channelization, pollution, fish by undulating its dark mantle flaps Data that might suggest densities of sedimentation, and water withdrawals. against swollen white gills (O’Brien and the various primary host fish species The Econfina, ACF, Ochlockonee, and Williams 2002, p. 154). O’Brien and named above that are sufficient to Suwannee drainages contain about Williams (2002, p. 152) lab-tested eight support normal mussel recruitment and 54,000 km (33,500 mi) of perennial fish species for suitability as hosts, dispersal rates are not available. streams (USGS 1:100,000 National finding that all black-banded darters Stochastic simulations of fish’mussel Hydrography Data). From mussel survey and brown darters ( edwini) interactions indicate that mussel records, the historical range of the seven exposed to infection transformed populations are extirpated if a threshold mussels collectively spanned about glochidia to juveniles. Other fishes, host fish density is not exceeded 3,300 km (2,050 mi), or 6 percent, of the including the eastern mosquitofish, also (Watters 1997, p. 60). Further studies of river and stream channels in these transformed glochidia, but at lower fish and mussel population dynamics drainages, but no one species accounts percentage rates. are necessary to quantify species- for more than about 2,300 km (1,445 mi) The extreme rarity of the Ochlockonee specific thresholds; however, we of that total (USFWS 2003, p. 78–80). moccasinshell has precluded any recognize that the presence of host fish We estimate that the five species listed opportunities to explore its life history. is a biological habitat feature essential to as endangered are each extirpated from We assume its reproductive biology is the conservation of the seven mussels. over half of their historical range, and similar to its congener, the Gulf the two threatened species are moccasinshell, which uses darters as Primary Constituent Elements for Five extirpated from about one-third of host fish. Endangered and Two Threatened theirs, but none are extirpated entirely The oval pigtoe releases rigid white to Mussels from the four major drainages in which pinkish conglutinates, which passively Based on our current knowledge of they each occurred historically. All drift in the current and may resemble the life history, biology, and ecology of seven mussels were more widespread the food organisms of small-bodied the seven mussels, and of the habitat and more abundant within each of the fishes. O’Brien and Williams (2002, p. features necessary to support their four drainages historically. 152) tested 11 fish species as hosts, essential life history functions in areas The largest single portion of the finding that glochidia transformed on occupied at the time of listing, historical range lost to the seven the gills of fish such as the sailfin shiner summarized above, we have determined mussels is the mainstem of the (Pteronotropis hypselopterus) and that the PCEs are: Chattahoochee River. The

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Chattahoochee comprised over 700 km systems. Processes that occur and several days unless they reach (435 mi), or almost one-quarter, of the habitat characteristics that are found unsuitable habitat conditions, such as 3,300-km (2,050-mi) collective historical outside the stream banks are important intolerable salinity or still water, in range, and supported the shinyrayed in maintaining channel morphology, which either would sink to the bottom pocketbook, Gulf moccasinshell, oval providing energy and nutrients, and and be smothered in the sediments. pigtoe, and purple bankclimber. It is protecting the instream environment Therefore, we are proposing stream now impounded by several major dams from pollutants and excessive segments that have mussel point for much of its length and no longer sediments. Similarly, floodplain and locations from the upstream limit as supports the listed mussels. With the backwater habitats may be important in defined in (b) above to the downstream exception of a single live animal found the life cycle of fish that serve as hosts location where the PCEs are no longer in Goat Rock Reservoir in 2000, the for mussel larvae. Although factors present. purple bankclimber appears extirpated affecting the PCEs may occur outside The application of these criteria from the entire Chattahoochee Basin, the channel, the PCEs themselves occur resulted in the identification of 11 units but at least one of the other three within the channel. occupied by one or more of the seven species persist in three of its tributaries: (b) The upstream boundary of a unit mussels and that contain one or more of Uchee Creek, Sawhatchee Creek, and in an occupied stream is the first the PCEs as indicated by the presence Kirkland Creek. Elsewhere in the four perennial tributary confluence or first and persistence of one or more of the major drainages, the pattern of permanent barrier to fish passage (such listed mussels (see ‘‘Proposed Critical extirpation is more variable, with one or as a dam) upstream of the upstream- Habitat Designation’’). Based on fish more of the seven species persisting in most current occurrence record. Many distributional records (Lee et al. 1980, p. portions of a drainage where others have of the mussel survey sites are located 1–854) and our experience sampling disappeared. The collective range of the near watershed headwaters. In these fish in these drainages, these areas also seven species now spans about 1,900 areas, the confluence of a tributary support shiners, darters, and other km (1,180 mi) of river and stream typically marks a significant change in fishes that have been identified as hosts channels. Within this collective range, the size of the stream and is a logical or potential hosts for one or more of the the species presently occur in as little as and recognizable upstream boundary for seven mussels. Further, on the basis of 55 km (34 mi) (the Ochlockonee habitat conditions that are similar to the a review of the information available, moccasinshell) to as much as 785 km upstream-most occurrence record. we have determined that areas not (488 mi) (the shinyrayed pocketbook) Likewise, a dam or other barrier to fish currently known to be occupied by the (USFWS 2003, p. 78–80). passage marks the upstream extent to seven mussels do not appear to be To identify the specific areas that which mussels at the upstream-most essential to their conservation. As such, were occupied at the time of listing by occurrence may disperse via their fish we have not included any areas not each of the seven mussels and that hosts. Therefore, proposed segments known to be occupied by these mussel contain one or more of the PCEs, we encapsulate habitat containing essential species in this proposed designation. used post-1990 mussel survey results. features used by host fish and the seven When determining the boundaries of Because mussels are sedentary and long- mussels for successful natural proposed critical habitat for the seven lived animals, occupancy is strong reproductive process. Habitat above mussels, we made every effort to avoid evidence that some or all of the PCEs are these boundaries does not contain manmade structures existing on the present, except where it is apparent that features essential to the conservation of effective date of this rule and not one or a few adult individuals remain at the species. containing one or more of the primary a location with little or no possibility of (c) The downstream boundary of a constituent elements, such as buildings reproducing due to substantial habitat unit in an occupied stream is the mouth and roads. Any such structures alteration (such as the single purple of the stream, the upstream extent of inadvertently left inside the critical bankclimber found in Goat Rock tidal influence, or the upstream extent habitat boundaries have been excluded Reservoir). It is not feasible to survey all of an impoundment, whichever comes by the text in this proposed rule and are potential habitat for the seven species; first, downstream of the downstream- not proposed for designation. most occurrence record. Many survey therefore, to delineate a species’ Special Management Considerations or sites are located near the mouths of occupied range in the larger stream Protection network, it is necessary to extrapolate streams, the upstream extent of from the available survey data. Most of impoundments, or the upstream extent When designating critical habitat, we the tributary streams in the four basins of tidal influence. Survey locations are assess whether the areas determined to that may support one or more of the typically at road crossings, because that be occupied at the time of listing and seven species have never been surveyed, is where surveyors can most easily gain containing the PCEs may require special and we do not propose any unsurveyed access to the stream. These road management considerations or streams as critical habitat. We used crossings do not typically represent a protections. Activities in or adjacent to USGS 1:100,000 digital stream maps to meaningful ecological boundary for each of the critical habitat units delineate the probable upstream and longitudinal stream habitat conditions. described in this proposed rule may downstream limits to the seven species’ Mussels are dispersed via host fish, and affect one or more of the PCEs that are distribution in streams surveyed since because these host fish traverse freely in found in the unit. These activities 1990, according to the criteria listed the area between the upstream most include, but are not limited to, those below. These limits form the boundaries occurrence and any existing listed in the Adverse Modification of proposed critical habitat units as downstream restriction to fish passage, Standard section as activities that may explained below. larvae drop off their host fish at random destroy or adversely modify critical (a) The lateral boundaries of a unit are points along the stream flow segments habitat. We find that the features the ordinary high-water marks on each traversed by fish. Further, the sperm of essential to each of the seven mussel bank of currently occupied streams. We all seven species and the conglutinates species contained within the areas recognize the dynamic nature of riverine (glochidia packets) of some of the seven proposed for designation may require systems and that floodplains and may be carried downstream by currents special management considerations or riparian areas are integral parts of those and are viable for several hours to protections due to known or probable

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threats from these activities. We and dam construction (unit 5) may also Proposed Critical Habitat Designation summarize here the nature of the threats affect channel stability. and the resulting conservation needs for The construction and operation of We are proposing 11 groups of river both the mussels and their host fish dams, water withdrawals, and water and stream segments (units) as critical across the range of the seven mussels. diversions may alter features of the flow habitat for the seven mussels. The river Sedimentation is an almost regime important to the mussels and and stream segments comprising each ubiquitous threat in the range of the their host fishes. This threat is present unit are contiguous to allow for the seven mussels. A wide variety of to some degree in all 11 proposed units, movement of fish hosts dispersing the activities, such as livestock grazing, but is greatest in units 5, 6, 7, 8, and 10, larval life stages of the seven mussels road and bridge construction, clear-cut which are downstream of the major within the unit. Barriers to the logging, and off-road vehicle use, that mainstem dams or in areas of relatively movement of fish hosts (dams and salt are common in all 11 units may increase high municipal, industrial, or water) separate the units from each erosion rates, either in the banks of the agricultural water use. Measures to deal other. The critical habitat units with this threat include water stream channel itself or elsewhere in the described below constitute our best conservation and operational strategies watershed, and cause the accumulation assessment at this time of areas that that manage water storage capacity and of fine sediments on the stream bed. were occupied by one or more of the water demands in combination to Management considerations to deal with seven mussels at the time of listing minimize departures from the natural this threat include protecting streams flow regime. (1998) and which contain the physical from sedimentation through application Water pollution, especially from non- and biological features essential to the of agricultural and forestry best point (dispersed release) sources, is each of the mussel species. Each unit is management practices, avoiding soil- another almost ubiquitous threat in all designated only for those species that and vegetation-disturbing activity in the 11 units. Water quality is reported as currently occupy it. Each unit contains riparian zone, restoring unstable stream impaired or potentially impaired in one or more of the PCEs, and may channels and other erosive areas, and some portions of all four river basins require special management other practices that prevent or reduce within the current range of the seven considerations or protection to address erosion. mussels, according to the water quality the threats noted above. The 11 units, Urbanization, road and bridge agencies of the three States in their and the States in which they occur, are: construction, and other large-scale periodic assessments under Section (1) Econfina Creek (FL), (2) Chipola alterations of land cover that 305(b) of the Clean Water Act (CWA) River (AL, FL), (3) Uchee Creek (AL), (4) substantially alter the runoff (see ‘‘Summary of Threats to Surviving Sawhatchee Creek and Kirkland Creek characteristics of the watershed may Populations’’). Streams that receive a (GA), (5) Upper Flint River (GA), (6) threaten channel stability in units near high proportion of their flow from the Middle Flint River (GA), (7) Lower Flint the major urban areas of Dothan, discharge of springs are vulnerable to River (GA), (8) Apalachicola River (FL), Alabama (unit 2); Panama City and nutrient enrichment from fertilizers and (9) Upper Ochlockonee River (FL, GA), Tallahassee, Florida (units 1 and 10); to other pollutants applied in the (10) Lower Ochlockonee River (FL), and Albany, Atlanta, and Columbus, Georgia recharge areas of those springs (units 1, (11) and New River (FL). (units 3, 5, 6, and 7); and other cities. 2, and 7), which may extend far from Management considerations to deal with the streams themselves. Management Collectively, the total length of the river the threat of channel instability include considerations to deal with the threat of and stream segments of all of the areas avoiding soil- and vegetation-disturbing pollution include applying agricultural (units) proposed is approximately 1,864 activity in the riparian zone, limiting and forestry best management practices, km (1,158 mi). Table 1 shows the impervious surface area, and other preserving native vegetation in riparian approximate length of rivers and urban storm water runoff control zones, maintaining septic systems, and streams proposed as occupied critical methods. Sand and gravel mining (unit taking other measures to minimize habitat for each of the seven mussels in 3), dredging and channelization (unit 8), pollutant-laden runoff to streams. the 11 units.

Currently occupied Species, critical habitat unit, and state(s) Kilometers Miles

Fat threeridge 2. Chipola River, AL, FL ...... 190.0 118.1 8. Apalachicola River, FL ...... 155.4 96.6

Total ...... 345.4 214.7

Shinyrayed pocketbook 2. Chipola River, AL, FL ...... 190.0 118.1 3. Uchee Creek, AL ...... 34.2 21.2 4. Sawhatchee Creek and Kirkland Creek, GA ...... 37.8 23.5 5. Upper Flint River, GA ...... 380.4 236.4 6. Middle Flint River, GA ...... 302.3 187.8 7. Lower Flint River, GA ...... 396.7 246.5 9. Upper Ochlockonee River, FL, GA ...... 177.3 110.2

Total ...... 1518.7 943.7

Gulf moccasinshell 1. Econfina Creek, FL ...... 31.4 19.5 2. Chipola River, AL, FL ...... 190.0 118.1

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Currently occupied Species, critical habitat unit, and state(s) Kilometers Miles

4. Sawhatchee Creek and Kirkland Creek, GA ...... 37.8 23.5 5. Upper Flint River, GA ...... 380.4 236.4 6. Middle Flint River, GA ...... 302.3 187.8 7. Lower Flint River, GA ...... 396.7 246.5

Total ...... 1338.3 831.8

Ochlockonee moccasinshell 9. Upper Ochlockonee River, FL, GA ...... 177.3 110.2

Total ...... 177.3 110.2

Oval pigtoe 1. Econfina Creek, FL ...... 31.4 19.5 2. Chipola River, AL, FL ...... 190.0 118.1 4. Sawhatchee Creek and Kirkland Creek, GA ...... 37.8 23.5 5. Upper Flint River, GA ...... 380.4 236.4 6. Middle Flint River, GA ...... 302.3 187.8 7. Lower Flint River, GA ...... 396.7 246.5 9. Upper Ochlockonee River, FL, GA ...... 177.3 110.2 11. Santa Fe and New Rivers, FL ...... 83.1 51.6

Total ...... 1598.7 993.6

Chipola slabshell 2. Chipola River, AL, FL ...... 190.0 118.1

Total ...... 190.0 118.1

Purple bankclimber 5. Upper Flint River, GA ...... 380.4 236.4 6. Middle Flint River, GA ...... 302.3 187.8 7. Lower Flint River, GA ...... 396.7 246.5 8. Apalachicola River, FL ...... 155.4 96.6 9. Upper Ochlockonee River, FL, GA ...... 177.3 110.2 10. Lower Ochlockonee River, FL ...... 75.4 46.9

Total ...... 1487.2 924.4

Total Proposed for All 11 Units (All Species) ...... 1864.0 1158.3

Brief descriptions of each unit follow, Unit 1: Econfina Creek, Florida Unit 2: Chipola River, Alabama and listing the rivers and streams included, Florida the upstream and downstream extent of Unit 1 includes the main stem of the unit in those rivers and streams, and Econfina Creek and one of its tributaries Unit 2 includes the main stem of the which of the seven mussels were in Bay and Washington counties, Chipola River (including the reach present at the time of listing. Each Florida, encompassing a total stream known as Dead Lake) and six of its critical habitat unit includes the length of 31.4 km (19.5 mi). The main tributaries, encompassing a total stream channels of the rivers and streams listed stem of Econfina Creek as proposed length of 190.0 km (118.1 mi) in between the ordinary high water mark extends from its confluence with Deer Houston County, Alabama; and in on each bank, which is defined in 33 Point Lake at the powerline crossing Calhoun, Gulf, and Jackson counties, CFR 329.11 as ‘‘the line on the shore located 3.8 km (2.3 miles) downstream Florida. The main stem of the Chipola established by the fluctuations of water of Bay County Highway 388, Bay River as proposed extends from its and indicated by physical County, Florida, upstream 28.6 km (17.8 confluence with the Apalachicola River characteristics such as a clear, natural mi) to Tenmile Creek in Washington in Gulf County, Florida, upstream 144.9 line impressed on the bank; shelving; County, Florida. Unit 1 also includes km (90.0 mi) to the confluence of changes in the character of soil; the tributary stream Moccasin Creek Marshall and Cowarts creeks in Jackson destruction of terrestrial vegetation; the from its confluence with Econfina Creek County, Florida. A short segment of the presence of litter and debris; or other Chipola River that flows underground upstream 2.8 km (1.7 mi) to Ellis Branch appropriate means that consider the within the boundaries of Florida in Bay County. Unit 1 is designated for characteristics of the surrounding Caverns State Park in Jackson County, areas.’’ In the unit descriptions, the Gulf moccasinshell and oval pigtoe Florida, is not included in Unit 2. The distances between landmarks marking (Blalock-Herod unpub. data 2002–03; downstream extent of each tributary the upstream or downstream extent of a Brim Box unpub. data 1996; Williams within the unit is its mouth (its particular stream in the unit are given unpub. data 1993). confluence with the water body named), in kilometers (km) and equivalent miles and the upstream extent is the landmark (mi), as measured tracing the course of listed. The tributaries of the Chipola the stream, not straight-line distance. River included in Unit 2 are: Dry Creek,

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from the Chipola River upstream 7.6 km is included from its confluence with Unit 5 is designated for the (4.7 mi) to Ditch Branch in Jackson Sawhatchee Creek upstream 3.1 km (1.9 shinyrayed pocketbook (Dinkins pers. County, Florida; Rocky Creek, from the mi) to the powerline crossing located comm. 1999, 2003; P.D. Johnson pers. Chipola River upstream 7.1 km (4.4 mi) 2.3 km (1.4 mi) upstream of Sowhatchee comm. 2003; Brim Box and Williams to Little Rocky Creek in Jackson County, Road, Early County, GA. Unit 4 is 2000, p. 109–110; Roe 2000; L. Andrews Florida; Waddells Mill Creek, from the designated for the shinyrayed pers. comm. 2000; Blalock-Herod Chipola River upstream 3.7 km (2.3 mi) pocketbook, Gulf moccasinshell, and unpub. data 1997; Butler and Brim Box to Russ Mill Creek in Jackson County, oval pigtoe (Brim Box and Williams 1995, p. 3); Gulf moccasinshell Florida; Baker Creek, from Waddells 2000, p. 109–110, 113–114, 116–117; (Edwards Pittman Environmental 2004; Mill Creek upstream 5.3 km (3.3 mi) to Abbott pers. comm. 2005; Stringfellow McCafferty pers. comm. 2003; Dinkins the confluence with Tanner Springs in pers. comm. 2003). pers. comm. 2002; Brim Box and Jackson County, Florida; Marshall Williams 2000, p. 113–114; Andrews Unit 5: Upper Flint River, Georgia Creek, from the Chipola River upstream pers. comm. 2000; Blalock-Herod 13.7 km (8.5 mi) to the Alabama-Florida Unit 5 includes the main stem of the unpub. data 1997; Butler and Brim Box State line in Jackson County, Florida Flint River and eight of its tributaries 1995, p. 3); oval pigtoe (Edwards (this creek is known as Big Creek in upstream of Lake Blackshear, plus two Pittman Environmental 2004; Alabama); and Big Creek, from the tributaries that flow into Lake McCafferty pers. comm. 2003; Dinkins Alabama-Florida State line upstream 7.8 Blackshear, encompassing a total stream pers. comm. 2002, 2003; Stringfellow km (4.9 mi) to Double Bridges Creek in length of 380.4 km (236.4 mi) in Coweta, pers. comm. 2000, 2003; Abbott pers. Houston County, Alabama. Crawford, Crisp, Dooly, Fayette, Macon, comm. 2001; Brim Box and Williams This unit is designated for the fat Meriwether, Peach, Pike, Spalding, 2000, p. 116–117; Andrews pers. comm. threeridge (Brim Box and Williams Sumter, Talbot , Taylor, Upson, and 2000; Blalock-Herod unpub. data 1997); 2000, p. 92–93; Miller 1998, p. 54), Worth counties, Georgia. The main stem and purple bankclimber (Winterringer shinyrayed pocketbook (Williams of the Flint River in proposed Unit 5 CCR pers. comm. 2003; Dinkins pers. unpub. data 2002; Brim Box and extends from the State Highway 27 comm. 2003; P.D. Johnson pers. comm. Williams 2000, p. 109–110; Smith bridge (Vienna Road) in Dooly and 2003; Albanese pers. comm. 2003 unpub. data 2001; Blalock-Herod Sumter counties, Georgia (the river is regarding unpub. data from De unpub. data 2000, 2003; Butler unpub. the county boundary), upstream 247.4 Genachete and CCR; Brim Box and data 1993, 1994, 1999, 2000); Gulf km (153.7 mi) to Horton Creek in Williams 2000, p. 105–106; E. Van De moccasinshell (Butler unpub. data 1999, Fayette and Spalding counties, Georgia Genachete pers. comm. 1999). 2002; Brim Box and Williams 2000, p. (the river is the county boundary). The Unit 5 is divided into two maps in the 113–114; D.N. Shelton pers. comm. downstream extent of each tributary Proposed Regulation Promulgation 1998); oval pigtoe (Butler unpub. data within the unit is its mouth (its section of this proposed rule, one for the 1993, 1999, 2002; Brim Box and confluence with the water body named), southern part and one for the northern Williams 2000, p. 116–117; Williams and the upstream extent is the landmark part of the unit. The ‘‘match line’’ for unpub. data 2000); and Chipola listed. The nine tributary streams in joining these two maps is where the slabshell (Butler unpub. data 1993, Unit 5 are: Swift Creek, from Lake county boundary between Crawford and 2000; Brim Box and Williams 2000, p. Blackshear upstream 11.3 km (7 mi) to Upson counties, Georgia, meets the Flint 95–96). Rattlesnake Branch in Crisp and Worth River. counties, Georgia (the creek is the Unit 3: Uchee Creek, Alabama county boundary); Limestone Creek, Unit 6: Middle Flint River, Georgia Unit 3 encompasses 34.2 km (21.2 mi) from Lake Blackshear in Crisp County, Unit 6 includes the main stem of the of the main stem of Uchee Creek from Georgia, upstream 8.8 km (5.5 mi) to Flint River between Lake Worth its confluence with the Chattahoochee County Road 89 in Dooly County, (impounded by the Flint River Dam near River upstream to Island Creek in Georgia; Turkey Creek, from the Flint Albany) and the Warwick Dam (which Russell County, Alabama. This unit is River upstream 21.7 km (13.5 mi) to impounds Lake Blackshear), and nine designated for the shinyrayed Rogers Branch in Dooly County, tributaries, encompassing a total stream pocketbook (Brim Box and Williams Georgia; Pennahatchee Creek, from length of 302.3 km (187.8 mi) in 2000, p. 109–110; Gangloff unpublished Turkey Creek upstream 4.8 km (3 mi) to Dougherty, Lee, Marion, Schley, Sumter, data 2005). Little Pennahatchee Creek in Dooly Terrell, Webster, and Worth counties, County, Georgia; Little Pennahatchee Georgia. The main stem of the Flint Unit 4: Sawhatchee Creek and Kirkland Creek, from Pennahatchee Creek River in Unit 6 extends from Piney Creek, Georgia upstream 5.8 km (3.6 mi) to Rock Hill Woods Creek in Dougherty County, Unit 4 includes the main stems of Creek in Dooly County, Georgia; Georgia (the approximate upstream Sawhatchee Creek and Kirkland Creek Hogcrawl Creek, from the Flint River extent of Lake Worth), upstream 39.9 and one tributary of Sawhatchee Creek, upstream 21.6 km (13.4 mi) to Little km (24.8 mi) to the Warwick Dam in Lee encompassing a total stream length of Creek in Dooly and Macon counties, and Worth counties, Georgia. The 37.8 km (23.5 mi) in Early County, GA. Georgia (the creek is the county downstream extent of each tributary The main stem of Sawhatchee Creek as boundary); Red Oak Creek, from the within the unit is its mouth (its proposed extends from its confluence Flint River upstream 21.7 km (13.5 mi) confluence with the water body named), with the Chattahoochee River upstream to Brittens Creek in Meriwether County, and the upstream extent is the landmark 28.6 km (17.8 mi) to the powerline Georgia; Line Creek, from the Flint River listed. The nine tributaries of the crossing located 1.4 km (0.87 mi) upstream 15.8 km (9.8 mi) to Middle Flint River in Unit 6 are: upstream of County Road 15, Early Whitewater Creek in Coweta and Kinchafoonee Creek, from the Lee- County, GA. The main stem of Kirkland Fayette counties, Georgia (the creek is Dougherty county line (the approximate Creek extends from its confluence with the county boundary); and Whitewater upstream extent of Lake Worth) the Chattahoochee River upstream 6.1 Creek, from Line Creek upstream 21.5 upstream 107.6 km (66.8 mi) to Dry km (3.8 mi) to Dry Creek, Early County, km (13.4 mi) to Ginger Cake Creek in Creek in Webster County, Georgia; GA. The tributary, Sheffield Mill Creek, Fayette County, Georgia. Lanahassee Creek, from Kinchafoonee

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Creek upstream 9.3 km (5.8 mi) to West (which impounds Lake Worth), and 2001, 2002; Andrews pers. comm. 2000; Fork Lanahassee Creek in Webster nine tributaries, encompassing a total Brim Box and Williams 2000, p. 116– County, Georgia; , from stream length of 396.7 km (246.5 mi) in 117; P. Johnson unpub. data 1999; the Lee’Dougherty county line (the Baker, Calhoun, Decatur, Dougherty, Butler unpub. data 1998; Blalock-Herod approximate upstream extent of Lake Early, Miller, Mitchell, and Terrell unpub. data 1997), and purple Worth) upstream 104.5 km (64.9 mi) to counties, GA. The main stem of the bankclimber (S. Carlson unpub. data County Road 114 in Marion County, Flint River in Unit 7 extends from its 2002; Brim Box and Williams 2000, p. Georgia; Little Muckalee Creek, from confluence with Big Slough in Decatur 105–106). Muckalee Creek in Sumter County, County, GA (the approximate upstream Unit 7 is divided into two maps in the Georgia, upstream 7.2 km (4.5 mi) to extent of ) upstream Proposed Regulation Promulgation Galey Creek in Schley County, Georgia; 116.4 km (72.3 mi) to the Flint River section of this proposed rule, one for the Mill Creek, from the Flint River Dam in Dougherty County, GA. The western part and one for the eastern part upstream 3.2 km (2 mi) to Mercer downstream extent of each tributary of the unit. The western part (Map 10) Millpond Creek in Worth County, within the unit is its mouth (its depicts the Spring Creek system and the Georgia; Mercer Millpond Creek, from confluence with the water body named), eastern part (Map 11) depicts the lower Mill Creek upstream 0.45 km (0.28 mi) and the upstream extent is the landmark Flint River system. to Mercer Millpond in Worth County, listed. The nine tributaries of the Lower Unit 8: Apalachicola River, Florida Georgia; Abrams Creek, from the Flint Flint River in Unit 7 are: Spring Creek, River upstream 15.9 km (9.9 mi) to from Smith Landing in Decatur County, Unit 8 includes the main stem of the County Road 123 in Worth County, Georgia (the approximate upstream Apalachicola River and two Georgia; Jones Creek, from the Flint extent of Lake Seminole), upstream 74.2 distributaries (channels flowing out of the main stem), encompassing a total River upstream 3.8 km (2.4 mi) to km (46.1 mi) to County Road 35 in Early stream length of 155.4 km (96.6 mi) in County Road 123 in Worth County, County, Georgia; Aycocks Creek, from Calhoun, Franklin, Gadsden, Gulf, Georgia; and Chokee Creek, from the Spring Creek upstream 15.9 km (9.9 mi) Jackson, and Liberty counties, Florida. Flint River upstream 10.5 km (6.5 mi) to to Cypress Creek in Miller County, The main channel of the Apalachicola Dry Branch Creek in Lee County, Georgia; Dry Creek, from Spring Creek River in Unit 8 extends from the Georgia. upstream 9.9 km (6.1 mi) to Wamble downstream end of Bloody Bluff Island Unit 6 is designated for the Creek in Early County, Georgia; (river mile 15.3 on U.S. Army Corps of shinyrayed pocketbook (Crow CCR pers. , from the Flint Engineers Navigation Charts) in comm. 2004; Edwards Pittman River in Baker County, Georgia, Franklin County, Florida, upstream to Environmental 2004; Albanese pers. upstream 68.6 km (42.6 mi) to Merrett the Jim Woodruff Lock and Dam in comm. 2003 regarding unpub. data from Creek in Calhoun County, Georgia; Mill Gadsden and Jackson counties, Florida CCR; DeGarmo unpub. data 2002; Creek, from Ichawaynochaway Creek (the river is the county boundary). The McCafferty pers. comm. 2000, 2001; upstream 7.4 km (4.6 mi) to County upstream extent of each distributary Golladay unpub. data 2001, 2002; P. Road 163 in Baker County, Georgia; within the unit is its point of departure Johnson unpub. data 1999; Blalock- Pachitla Creek, from Ichawaynochaway from the main channel of the Herod unpub. data 1997; Dinkins pers. Creek upstream 18.9 km (11.8 mi) to Apalachicola River, and the comm. 1995; Brim Box and Williams Little Pachitla Creek in Calhoun County, downstream extent is the landmark 2000, p. 109–110), Gulf moccasinshell Georgia; Little Pachitla Creek, from (Wisnewski unpub. data 2005; DeGarmo listed. The two distributaries of the Pachitla Creek upstream 5.8 km (3.6 mi) unpub. data 2002; Albanese pers. comm. Apalachicola River in Unit 6 are: to Bear Branch in Calhoun County, 2003 regarding unpub. data from D. Chipola Cutoff, from the Apalachicola Georgia; Chickasawhatchee Creek, from Shelton; P. Johnson unpub. data 1999; River in Gulf County, Florida, Ichawaynochaway Creek in Baker Brim Box and Williams 2000, p. 113– downstream 4.5 km (2.8 mi) to its County, GA, upstream 64.5 km (40.1 mi) 114; Weston 1995), oval pigtoe confluence with the Chipola River in to U.S. Highway 82 in Terrell County, (Wisnewski unpub. data 2005; Crow Gulf County, Florida; and Swift Slough, Georgia; and Cooleewahee Creek, from CCR pers. comm. 2004; Albanese pers. from the Apalachicola River in Liberty the Flint River upstream 15.1 km (9.4 comm. 2003 regarding unpub. data from County, Florida, downstream 3.6 km mi) to Piney Woods Branch in Baker CCR; DeGarmo unpub. data 2002; (2.2 mi) to its confluence with the River County, Georgia. Stringfellow unpub. data 2002; Golladay Styx in Liberty County, Florida. unpub. data 2001, 2002; Brim Box and Unit 7 is designated for the Unit 8 is designated for the fat Williams 2000, p. 116–117; P. Johnson shinyrayed pocketbook (Gangloff 2005; threeridge (Brim Box and Williams unpub. data 1999; Blalock-Herod McCafferty pers. comm. 2004; 2000, p. 92–93; Williams unpub. data unpub. data 1997; Weston 1995), and Stringfellow unpub. data 2003; Dinkins 2000; Miller 1998, p. 54, 2000; purple bankclimber (Tarbell 2004; Brim pers. comm. 2001, 2003; Golladay Richardson and Yokley 1996, p. 137; Box and Williams 2000, p. 105–106). unpub. data 2001, 2002; P. Johnson Flakes 2001) and purple bankclimber Unit 6 is divided into two maps in the unpub. data 1999; Albanese pers. comm. (Brim Box and Williams 2000, p. 105– Proposed Regulation Promulgation 2003 regarding unpub. data from CCR; 106; Miller 1998, p. 55, 2000; section of this proposed rule, one for the Andrews pers. comm. 2000; Blalock- Richardson and Yokley 1996, p. 137; western part and one for the eastern part Herod unpub. data 1997; Brim Box and Butler unpub. data 1993; Flakes 2001). of the unit. The ‘‘match line’’ for joining Williams 2000, p. 109–110; Butler Unit 9: Upper Ochlockonee River, these two maps is Lake Worth in unpub. data 1993), Gulf moccasinshell Florida, Georgia Dougherty County, Georgia. (Abbott pers. comm. 2005; Golladay unpub. data 2001, 2002; P. Johnson Unit 9 includes the main stem of the Unit 7: Lower Flint River, Georgia unpub. data 1999; Brim Box and Ochlockonee River upstream of Lake Unit 7 includes the main stem of the Williams 2000, p. 113–114; Butler Talquin (impounded by the Jackson Flint River between Lake Seminole unpub. data 1998; Blalock-Herod Bluff Dam) and three tributaries, (impounded by the Jim Woodruff Lock unpub. data 1997), oval pigtoe (Dinkins encompassing a total stream length of and Dam) and the Flint River Dam pers. comm. 2001; Golladay unpub. data 177.3 km (110.2 mi) in Gadsden and

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Leon counties, Florida, and Grady and Smith FDOT unpub. data 2001; (Blalock-Herod and Williams 2001, p. 5; Thomas counties, Georgia. The main Williams unpub. data 1993). Blalock-Herod 2000, p. 1–72; Williams stem of the Ochlockonee River in Unit unpub. data 1993, 1996–98). Unit 10: Lower Ochlockonee River, 9 extends from its confluence with Florida Existing Critical Habitat Gulley Branch (the approximate upstream extent of Lake Talquin) in Unit 10 encompasses 75.4 km (46.9 Of the proposed critical habitat for the Gadsden and Leon counties, Florida (the mi) of the main stem of the Ochlockonee seven mussels, 147.3 km (91.5 mi) are river is the county boundary), upstream River from its confluence with Syfrett already designated critical habitat for to Bee Line Road/County Road 306 in Creek in Wakulla County, Florida, the Gulf sturgeon (Acipenser oxyrinchus Thomas County, Georgia. The upstream to the Jackson Bluff Dam desotoi) (68 FR 13370; March 19, 2003), downstream extent of each tributary (which impounds Lake Talquin) in Leon which was listed as a threatened species within the unit is its mouth (its and Liberty counties, Florida. Unit 10 is under the Act on September 30, 1991 confluence with the water body named), designated for the purple bankclimber (56 FR 49653). The area in common and the upstream extent is the landmark (Blalock-Herod unpub. data 2003; between the proposed mussels’ habitat listed. The three tributary streams in Williams unpub. data 1993). and the designated sturgeon habitat is entirely within Unit 8, the Apalachicola Unit 9 are: Barnetts Creek, from the Unit 11: Santa Fe River and New River, River. Ochlockonee River upstream 20 km Florida (12.4 mi) to Grady County Road 170/ Unit 11 includes the main stem of the Land Ownership Thomas County Road 74 in Grady and Santa Fe River and its tributary the New States were granted ownership of Thomas counties, Georgia (the creek is River, encompassing a total stream lands beneath navigable waters up to the county boundary); West Barnetts length of 83.1 km (51.6 mi) in Alachua, the ordinary high water mark upon Creek, from Barnetts Creek upstream 10 Bradford, Columbia, and Union achieving statehood (Pollard v. Hagan, km (6.2 mi) to GA Highway 111 in counties, Florida. The main stem of the 44 U.S. (3 How.) 212 (1845)). Prior Grady County, Georgia; and Little Santa Fe River as proposed extends sovereigns or the States may have made Ochlockonee River, from the from where the river goes underground grants to private parties that included Ochlockonee River upstream 13.3 km in O’Leno State Park in Alachua and lands below the ordinary high water (8.3 mi) to Roup Road/County Road 33 Columbia counties, Florida (the river is mark of some navigable waters that are in Thomas County, Georgia. the county boundary) upstream 60.2 km included in this proposal. We believe Unit 9 is designated for the (37.4 mi) to the powerline crossing that most, if not all, lands beneath the shinyrayed pocketbook (Blalock-Herod located 1.9 km (1.2 mi) downstream of navigable waters included in this 2003, p. 1; McCafferty pers. comm. U.S. Highway 301 in Alachua and proposed rule are owned by the States 2003; Williams unpub. data 1993), Bradford counties, Florida (the river is of Alabama, Florida, and Georgia. The Ochlockonee moccasinshell (Brim Box the county boundary). The New River in lands beneath most nonnavigable waters and Williams 2000, p. 60; Williams and proposed Unit 11 extends from its and most riparian lands along the Butler 1994, p. 64), oval pigtoe confluence with the Santa Fe River at navigable and nonnavigable waters (Edwards Pittman Environmental 2004; the junction of Alachua, Bradford, and included in this proposed rule are in Blalock-Herod unpub. data 2003; Union counties, Florida, upstream 22.9 private ownership. Table 2 lists the Blalock-Herod 2003, p. 1; Williams km (14.2 mi) to McKinney Branch in parcels of publicly owned lands within unpub. data 1993), and purple Bradford and Union counties, Florida or adjacent to each proposed critical bankclimber (Blalock-Herod unpub. (the river is the county boundary). Unit habitat unit. Units not listed do not data 2003; Blalock-Herod 2002, p. 1; 11 is designated for the oval pigtoe contain publicly owned lands.

TABLE 2.—PUBLIC LANDS WITHIN OR ADJACENT TO PROPOSED CRITICAL HABITAT UNITS

Critical habitat unit Public lands

1. Econfina Creek ...... Econfina Creek WtrMA. 2. Chipola River ...... Upper Chipola River WtrMA, South Marianna Trail and Canoe Launch, Apalachicola River WtrMA, Apa- lachicola River WEA, Chipola River GW, Florida Caverns SP, Judges Cave WEA, Marianna GW. 5. Upper Flint ...... Joe Kurz WMA, Sprewell Bluff SP and WMA, Big Lazer WMA, Montezuma NA, Flint River WMA. 7. Lower Flint ...... Flint River GW, Radium Springs Tract, Chickasawhatchee Flint WMA, Elmodel WMA, Lake Seminole WMA. 8. Apalachicola River ...... Angus Gholson Jr. Nature Park of Chattahoochee, Apalachicola River WtrMA, Apalachicola River WEA, Fort Gadsden HS, Torreya SP, Apalachicola NF. 9. Upper Ochlockonee ...... Joe Budd WMA, Lake Talquin SF. 10. Lower Ochlockonee ...... Lake Talquin SP, Lake Talquin SF, Tate’s Hell SF, Apalachicola NF. 11. Santa Fe River and New River Santa Fe River Ranch, O’Leno SP, River Rise Preserve SP, Graham CA, Palatka-Lake Butler ST. Abbreviations: CA = Conservation Area, GW = Greenway, HS = Historic Site, NA = Natural Area, NF = National Forest, SF = State Forest, SP = State Park, ST = State Trail, WEA = Wildlife and Environmental Area, WMA = Wildlife Management Area, WtrMA = Water Management Area.

Effects of Critical Habitat Designation regulations at 50 CFR 402.02, we define of those physical or biological features destruction or adverse modification as that were the basis for determining the Section 7 Consultation ‘‘a direct or indirect alteration that habitat to be critical.’’ However, recent Section 7 of the Act requires Federal appreciably diminishes the value of decisions by the 5th and 9th Circuit agencies, including the Service, to critical habitat for both the survival and Court of Appeals (see Gifford Pinchot ensure that actions they fund, authorize, recovery of a listed species. Such Task Force v. U.S. Fish and Wildlife or carry out are not likely to destroy or alterations include, but are not limited Service, 378 F. 3d 1059 (9th Cir 2004) adversely modify critical habitat. In our to, alterations adversely modifying any and Sierra Club v. U.S. Fish and

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Wildlife Service et al., 245 F.3d 434, opinions on proposed critical habitat are discretionary involvement or control is 442F (5th Cir 2001). Also see discussion typically prepared according to 50 CFR authorized by law. Consequently, some on Role of Critical Habitat above) have 402.14, as if the proposed critical Federal agencies may request invalidated this definition. Pursuant to habitat were designated. We may adopt reinitiation of consultation with us on current national policy and the statutory the conference opinion as the biological actions for which formal consultation provisions of the Act, destruction or opinion when the critical habitat is has been completed, if those actions adverse modification is determined on designated, if no substantial new may affect subsequently listed species the basis of whether, with information or changes in the action or designated critical habitat or implementation of the proposed Federal alter the content of the opinion (see 50 adversely modify or destroy proposed action, the affected critical habitat CFR 402.10(d)). Any conservation critical habitat. would remain functional (or retain the recommendations in a conference report Federal activities that may affect any current ability for the PCEs to be or opinion are strictly advisory. of the seven species or their designated functionally established) to serve the If a species is listed or critical habitat critical habitat will require section 7 intended conservation role for the is designated, section 7(a)(2) of the Act consultation under the Act. Activities species. requires Federal agencies to ensure that on State, Tribal, local, or private lands Section 7(a) of the Act requires activities they authorize, fund, or carry requiring a Federal permit (such as a Federal agencies, including the Service, out are not likely to jeopardize the permit from the USACE under section to evaluate their actions with respect to continued existence of such a species or 404 of the Clean Water Act or a permit any species that is proposed or listed as to destroy or adversely modify its under section 10(a)(1)(B) of the Act from endangered or threatened and with critical habitat. If a Federal action may the Service) or involving some other respect to its critical habitat, if any is affect a listed species or its critical Federal action (such as funding from the proposed or designated. Regulations habitat, the responsible Federal agency Federal Highway Administration, implementing this interagency (action agency) must enter into Federal Aviation Administration, or the cooperation provision of the Act are consultation with us. As a result of this Federal Emergency Management codified at 50 CFR part 402. consultation, compliance with the Agency) will also be subject to the Section 7(a)(4) of the Act requires requirements of section 7(a)(2) will be section 7 consultation process. Federal Federal agencies to confer with us on documented through the Service’s actions not affecting listed species or any action that is likely to jeopardize issuance of: (1) A concurrence letter for critical habitat, and actions on State, the continued existence of a proposed Federal actions that may affect, but are Tribal, local, or private lands that are species or result in destruction or not likely to adversely affect, listed not federally funded, authorized, or adverse modification of proposed species or critical habitat; or (2) a permitted, do not require section 7 critical habitat. However, once a biological opinion for Federal actions consultations. proposed species becomes listed, or that are likely to adversely affect listed proposed critical habitat is designated species or critical habitat. Application of the Jeopardy and as final, the full prohibitions of section When we issue a biological opinion Adverse Modification Standards for 7(a)(2) apply to any Federal action. The concluding that a project is likely to Actions Involving Effects to the Seven primary utility of the conference result in jeopardy to a listed species or Mussels and Their Critical Habitat procedures is to maximize the the destruction or adverse modification Jeopardy Standard opportunity for a Federal agency to of critical habitat, we also provide adequately consider proposed species reasonable and prudent alternatives to Prior to and following designation of and critical habitat and avoid potential the project, if any are identifiable. critical habitat, the Service has applied delays in implementing their proposed ‘‘Reasonable and prudent alternatives’’ an analytical framework for jeopardy action as a result of the section 7(a)(2) are defined at 50 CFR 402.02 as analyses of the seven mussels that relies compliance process, should those alternative actions identified during heavily on the importance of core area species be listed or the critical habitat consultation that can be implemented in populations to the mussels’ survival and designated. a manner consistent with the intended recovery. The section 7(a)(2) analysis is Under conference procedures, the purpose of the action, that are consistent focused not only on these populations Service may provide advisory with the scope of the Federal agency’s but also on the habitat conditions conservation recommendations to assist legal authority and jurisdiction, that are necessary to support them. the agency in eliminating conflicts that economically and technologically The jeopardy analysis usually may be caused by the proposed action. feasible, and that the Director believes expresses the survival and recovery The Service may conduct either would avoid jeopardy to the listed needs of the seven mussels in a informal or formal conferences. Informal species or destruction or adverse qualitative fashion without making conferences are typically used if the modification of critical habitat. distinctions between what is necessary proposed action is not likely to have any Reasonable and prudent alternatives can for survival and what is necessary for adverse effects on the proposed species vary from slight project modifications to recovery. Generally, if a proposed or proposed critical habitat. Formal extensive redesign or relocation of the Federal action is incompatible with the conferences are typically used when the project. Costs associated with viability of the affected core area Federal agency or the Service believes implementing a reasonable and prudent population(s), inclusive of associated the proposed action is likely to cause alternative are similarly variable. habitat conditions, a jeopardy finding is adverse effects on proposed species or Regulations at 50 CFR 402.16 require considered to be warranted, because of critical habitat, inclusive of those that Federal agencies to reinitiate the relationship of each core area may cause jeopardy or adverse consultation on previously reviewed population to the survival and recovery modification. actions in instances where a new of the species as a whole. The results of an informal conference species is listed or critical habitat is are typically transmitted in a conference subsequently designated that may be Adverse Modification Standard report; while the results of a formal affected and the Federal agency has The analytical framework described conference are typically transmitted in a retained discretionary involvement or in the Director’s December 9, 2004, conference opinion. Conference control over the action or such memorandum is used to complete

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section 7(a)(2) analyses for Federal vehicle use, and other activities that consult with us on actions in areas actions affecting the seven mussels’ increase erosion rates in the channel or currently occupied by and that may critical habitat. The key factor related to the watershed and deposition of fine affect the seven mussels to ensure that the adverse modification determination sediments. These activities could reduce these actions do not jeopardize the is whether, with implementation of the or eliminate the coarse substrates that mussels’ continued existence. proposed Federal action, the affected provide for the normal behavior, Application of Section 3(5)(a) and critical habitat would remain functional growth, and survival of all life stages, Exclusions Under Section 4(b)(2) of the (or retain the current ability for the PCEs and could increase the exposure of the Act to be functionally established) to serve juvenile and adult life stages to harmful the intended conservation role for the contaminants that adhere to fine The 11 units we propose as critical species. Generally, the conservation role sediments. habitat satisfy the definition of critical of the seven mussels’ critical habitat (3) Actions that would significantly habitat under section 3(5)(A) of the Act units is to support viable core area alter the flow regime. Such activities in that each is a specific area within the populations. could include, but are not limited to, the geographical area occupied by one or Section 4(b)(8) of the Act requires us construction and operation of dams, more of the seven mussels at the time to briefly evaluate and describe in any water withdrawals, water diversions, of listing within which are found those proposed or final regulation that and changes in land cover that physical and biological features that are designates critical habitat those substantially alter the runoff essential to their conservation and that activities involving a Federal action that characteristics of the watershed, such as may require special management may destroy or adversely modify such urbanization and clear-cut logging. considerations or protection (see habitat, or that may be affected by such These activities could alter the spatial ‘‘Primary Constituent Elements’’, designation. Activities that may destroy distribution, timing, and duration of ‘‘Criteria Used to Delineate Critical or adversely modify critical habitat may depths and velocities in the channel Habitat’’, and ‘‘Special Management also jeopardize the continued existence that provide for the normal behavior, Considerations or Protection’’). We of the species. growth, and survival of one or more considered whether conservation Activities that may destroy or mussel life stages. activity on publicly or privately adversely modify critical habitat are (4) Actions that would significantly managed lands within a proposed unit those that alter the PCEs to an extent alter physical and chemical water might remove the need for special that the conservation value of critical conditions. Such activities could management considerations or habitat for the seven mussels is include, but are not limited to, the protection from all or part of a unit. appreciably reduced. Activities that, release of chemicals, nutrients, Several stream reaches within the when carried out, funded, or authorized biological pollutants, or heated effluents proposed critical habitat units run by a Federal agency, may affect critical into the surface water or connected through or adjacent to public lands that habitat and therefore result in groundwater at a point source or by are managed wholly or partially for consultation for the seven mussels dispersed release (non-point source). conservation purposes (see ‘‘Land include, but are not limited to: These activities could alter water Ownership’’). None of the management (1) Actions that would induce conditions that provide for the normal plans for these areas provide assurance channel instability or significantly alter behavior, growth, and survival of one or of effective conservation for the mussels channel morphology. Such activities more mussel life stages. These activities or features essential to their could include, but are not limited to, could promote the excessive growth of conservation, because all of the areas are channelization, impoundment, road and filamentous algae and other organisms affected to some degree by threats bridge construction, mining, dredging, that preclude the normal behavior, upstream and outside of their destruction of riparian vegetation, and growth, and survival of one or more boundaries that may degrade one or changes in land cover, such as mussel life stages. more of the PCEs within their urbanization and clear-cut logging, that (5) Actions that would significantly boundaries. We describe PCE- and unit- substantially alter the runoff reduce the density of host fishes. Such specific threats under ‘‘Special characteristics of the watershed. These activities could include, but are not Management Considerations or activities may alter sediment and water limited to, channelization, Protection.’’ At this time, the Service discharge in the channel, which results impoundment, mining, and dredging. has not received applications for or in smothering the stream bed with, or These activities could alter the issued incidental take permits that eroding it to, materials that are composition of the fish community such would require an HCP for one or more unsuitable substrates for the normal that the rate of host fish infection and of the seven mussels. Further, we do not behavior, growth, and survival of the completion of the larval life stage is too foresee not including particular areas in adult and juvenile life stages. These low to sustain a stable or increasing this proposal that are occupied and activities may initiate or accelerate bank mussel population and normal rates of contain the PCEs but do not require erosion, which results in wider and dispersal and genetic exchange with special management or protection. shallower channels, more extreme other areas. Under section 4(b)(2) of the Act, we temperatures, and chemical properties We consider all of the units proposed must consider the economic impact, that are unsuitable for the normal as critical habitat to contain features impact on national security, and any behavior, growth, and survival of one or essential to the conservation of the other relevant impact of designating more life stages. seven mussels. All of the units are areas as critical habitat. We may exclude (2) Actions that would significantly within the geographic range of the seven any area from critical habitat if we decrease the proportion of coarse species, were occupied at the time of determine that the benefits of exclusion sediments (sand, gravel, cobble) in the listing (based on surveys completed outweigh the benefits of inclusion. stream bed. Such activities could 1990 to 1998), and are likely occupied include, but are not limited to, currently (based on additional surveys Benefits of Inclusion sedimentation from livestock grazing, between 1998 and the present, and on The most direct benefit of critical road and bridge construction, mining, the longevity and relative immobility of habitat is that actions taken, authorized, dredging, timber harvest, off-road mussels). Federal agencies already or funded by the Federal government

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require consultation under section 7 of Fish and Wildlife Office directly (see reduce its clarity? (4) Is the description the Act to ensure that these actions are ADDRESSES section). For further of the notice in the SUPPLEMENTARY not likely to destroy or adversely modify explanation, see the ‘‘Regulatory INFORMATION section of the preamble critical habitat (see ‘‘Effects of Critical Flexibility Act’’ and ‘‘Regulatory helpful in understanding the proposed Habitat Designation—Section 7 Planning and Review’’ discussions rule? (5) What else could we do to make Consultation’’). This regulatory benefit below. this proposed rule easier to understand? has two principal limitations. First, it Send a copy of any comments on how Peer Review applies only to Federal actions and not we could make this proposed rule easier to other actions that may destroy or In accordance with our joint policy to understand to: Office of Regulatory adversely modify critical habitat. published in the Federal Register on Affairs, Department of the Interior, Second, it ensures only that designated July 1, 1994 (59 FR 34270), we will seek Room 7229, 1849 C Street, NW., areas are not destroyed or adversely the expert opinions of at least three Washington, DC 20240. You may e-mail modified and does not require specific appropriate and independent specialists your comments to this address: steps toward recovery. regarding this proposed rule. The [email protected]. Another benefit of critical habitat is purpose of such review is to ensure that that its designation serves to educate our critical habitat designation is based Required Determinations landowners, State and local on scientifically sound data, Regulatory Planning and Review governments, and the general public. By assumptions, and analyses. We will clearly delineating areas of high send copies of this proposed rule to In accordance with Executive Order conservation value, designation may these peer reviewers immediately 12866, this document is a significant help focus and promote conservation following publication in the Federal rule in that it may raise novel legal and efforts for the seven mussels. Register. We will invite these peer policy issues, but it is not anticipated to Designation informs State agencies and reviewers to comment, during the have an annual effect on the economy local governments about areas that they public comment period, on the specific of $100 million or more or affect the may consider for protection or assumptions and conclusions regarding economy in a material way. Due to the conservation under State laws or local the proposed designation of critical tight timeline for publication in the ordinances. habitat. Federal Register, the Office of We will consider all comments and Management and Budget (OMB) has not Benefits of Exclusion information received during the formally reviewed this rule. We are Because the regulatory effect of comment period on this proposed rule preparing a draft economic analysis of critical habitat is limited to Federal during preparation of a final this proposed action, which will be actions, the non-economic impacts of rulemaking. Accordingly, the final available for public comment, to critical habitat are generally limited to decision may differ from this proposal. determine the economic consequences Federal lands, partnerships, and trust of designating the specific areas as resources. We have determined that the Public Hearings critical habitat. This economic analysis streams within the proposed critical The Act provides for one or more also will be used to determine habitat units for the seven mussels are public hearings on this proposal, if compliance with Executive Order not owned or managed by the requested. Requests for public hearings 12866, Regulatory Flexibility Act, Small Department of Defense, there are must be made in writing at least 15 days Business Regulatory Enforcement currently no HCPs for the seven prior to the close of the public comment Fairness Act, and Executive Order mussels, and the proposed designation period. We intend to schedule public 12630. does not include any Tribal lands. We hearings once the draft economic Within these areas, the types of anticipate no impact to national analysis is available so that we can take Federal actions or authorized activities security, Tribal lands, partnerships, or public comment on the proposed that we have identified as potential habitat conservation plans from this designation and the economic analysis concerns are listed above in the section critical habitat designation as proposed. simultaneously. However, we can on Section 7 Consultation. The Based on the best available schedule public hearings on this availability of the draft economic information, we believe that the benefits proposal prior to that time, if any are analysis will be announced in the of designating each of the 11 units we requested, and announce the dates, Federal Register and in local propose as critical habitat outweigh the times, and places of those hearings in newspapers so that it is available for non-economic benefits of excluding any the Federal Register and local public review and comments. The draft specific areas within those units. We newspapers at least 15 days prior to the economic analysis can be obtained from will evaluate potential economic first hearing. the Internet Web site at http:// benefits of exclusion in a separate notice www.fws.gov/panamacity/ or by Clarity of the Rule (see ‘‘Economic Analysis’’). contacting the Panama City, Florida, Executive Order 12866 requires each Fish and Wildlife Service office directly Economic Analysis agency to write regulations and notices (see ADDRESSES section). An analysis of the economic impacts that are easy to understand. We invite of proposing critical habitat for the your comments on how to make this Regulatory Flexibility Act (5 U.S.C. 601 seven mussels is being prepared. We proposed rule easier to understand, et seq.) will announce the availability of the including answers to questions such as Our assessment of economic effect draft economic analysis as soon as it is the following: (1) Are the requirements will be completed prior to final completed, at which time we will seek in the proposed rule clearly stated? (2) rulemaking based upon review of the public review and comment. At that Does the proposed rule contain draft economic analysis prepared time, copies of the draft economic technical jargon that interferes with the pursuant to section 4(b)(2) of the Act analysis will be available for clarity? (3) Does the format of the and E.O. 12866. This analysis is for the downloading from the Internet at http:// proposed rule (grouping and order of purposes of compliance with the www.fws.gov/panamacity/ or by the sections, use of headings, Regulatory Flexibility Act and does not contacting the Panama City, Florida, paragraphing, and so forth) aid or reflect our position on the of

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economic analysis required by New energy supply, distribution, and use. on non-Federal Government entities or Mexico Cattle Growers Assn. v. U.S. Executive Order 13211 requires agencies private parties. Under the Act, the only Fish and Wildlife Service 248 F.3d 1277 to prepare Statements of Energy Effects regulatory effect is that Federal agencies (10th Cir. 2001). when undertaking certain actions. This must ensure that their actions do not Under the Regulatory Flexibility Act proposed rule to designate critical destroy or adversely modify critical (5 U.S.C. 601 et seq., as amended by the habitat for the seven mussels is a habitat under section 7. While non- Small Business Regulatory Enforcement significant rule under Executive Order Federal entities that receive Federal Fairness Act (SBREFA) of 1996), 12866 in that it may raise novel legal funding, assistance, or permits, or that whenever an agency is required to and policy issues, but it is not expected otherwise require approval or publish a notice of rulemaking for any to significantly affect energy supplies, authorization from a Federal agency for proposed or final rule, it must prepare distribution, or use. Therefore, this an action, may be indirectly impacted and make available for public comment action is not a significant energy action, by the designation of critical habitat, the a regulatory flexibility analysis that and no Statement of Energy Effects is legally binding duty to avoid describes the effects of the rule on small required. destruction or adverse modification of entities (small businesses, small critical habitat rests squarely on the Unfunded Mandates Reform Act (2 organizations, and small government Federal agency. Furthermore, to the U.S.C. 1501 et seq.) jurisdictions). However, no regulatory extent that non-Federal entities are flexibility analysis is required if the In accordance with the Unfunded indirectly impacted because they head of the agency certifies the rule will Mandates Reform Act (2 U.S.C. 1501), receive Federal assistance or participate not have a significant economic impact the Service makes the following in a voluntary Federal aid program, the on a substantial number of small findings: Unfunded Mandates Reform Act would entities. The SBREFA amended the (a) This rule will not produce a not apply; nor would critical habitat Regulatory Flexibility Act (RFA) to Federal mandate. In general, a Federal shift the costs of the large entitlement require Federal agencies to provide a mandate is a provision in legislation, programs listed above on to State statement of the factual basis for statute, or regulation that would impose governments. certifying that the rule will not have a an enforceable duty upon State, local, or (b) We do not believe that this rule significant economic impact on a Tribal governments, or the private sector will significantly or uniquely affect substantial number of small entities. and includes both ‘‘Federal small governments because the At this time, the Service lacks the intergovernmental mandates’’ and proposed units are streams, available economic information ‘‘Federal private sector mandates.’’ unauthorized take of the seven mussels necessary to provide an adequate factual These terms are defined in 2 U.S.C. within and outside the units is already basis for the required RFA finding. 658(5)–(7). ‘‘Federal intergovernmental prohibited, and critical habitat provides Therefore, the RFA finding is deferred mandate’’ includes a regulation that no incremental restrictions. As such, a until completion of the draft economic ‘‘would impose an enforceable duty Small Government Agency Plan is not analysis prepared pursuant to section upon State, local, or tribal governments’’ required. We will, however, further 4(b)(2) of the Act and E.O. 12866. This with two exceptions. It excludes ‘‘a evaluate this issue as we conduct our draft economic analysis will provide the condition of Federal assistance.’’ It also economic analysis and revise this required factual basis for the RFA excludes ‘‘a duty arising from assessment if appropriate. finding. Upon completion of the draft participation in a voluntary Federal economic analysis, the Service will program,’’ unless the regulation ‘‘relates Federalism publish a notice of availability of the to a then-existing Federal program In accordance with Executive Order draft economic analysis of the proposed under which $500,000,000 or more is 13132, the rule does not have significant designation and reopen the public provided annually to State, local, and Federalism effects. A Federalism comment period for the proposed tribal governments under entitlement assessment is not required. In keeping designation. The Service will include authority,’’ if the provision would with DOI and Department of Commerce with the notice of availability, as ‘‘increase the stringency of conditions of policy, we requested information from, appropriate, an initial regulatory assistance’’ or ‘‘place caps upon, or and coordinated development of, this flexibility analysis or a certification that otherwise decrease, the Federal proposed critical habitat designation the rule will not have a significant Government’s responsibility to provide with appropriate State resource agencies economic impact on a substantial funding,’’ and the State, local, or tribal in Alabama, Florida, and Georgia. The number of small entities accompanied governments ‘‘lack authority’’ to adjust designation of critical habitat in areas by the factual basis for that accordingly. At the time of enactment, currently occupied by the seven determination. The Service has these entitlement programs were: mussels, we believe, imposes little to no concluded that deferring the RFA Medicaid; AFDC work programs; Child additional restrictions to those currently finding until completion of the draft Nutrition; Food Stamps; Social Services in place and, therefore, has little economic analysis is necessary to meet Block Grants; Vocational Rehabilitation incremental impact on State and local the purposes and requirements of the State Grants; Foster Care, Adoption governments and their activities. The RFA. Deferring the RFA finding in this Assistance, and Independent Living; designation may have some benefit to manner will ensure that the Service Family Support Welfare Services; and these governments in that the areas that makes a sufficiently informed Child Support Enforcement. ‘‘Federal contain the features essential to the determination based on adequate private sector mandate’’ includes a conservation of the species are more economic information and provides the regulation that ‘‘would impose an clearly defined, and the primary necessary opportunity for public enforceable duty upon the private constituent elements of the habitat comment. sector, except (i) a condition of Federal necessary to the conservation of the assistance or (ii) a duty arising from species are specifically identified. While Executive Order 13211 participation in a voluntary Federal making this definition and On May 18, 2001, the President issued program.’’ identification does not alter where and an Executive Order (E.O. 13211) on The designation of critical habitat what federally sponsored activities may regulations that significantly affect does not impose a legally binding duty occur, it may assist these local

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governments in long-range planning defined by the NEPA in connection with Author (rather than waiting for case-by-case designating critical habitat under the section 7 consultations to occur). Endangered Species Act of 1973, as The primary author of this package is amended. We published a notice the Panama City Fish and Wildlife Civil Justice Reform outlining our reasons for this Office (see ADDRESSES section). In accordance with Executive Order determination in the Federal Register List of Subjects in 50 CFR Part 17 12988, the Office of the Solicitor has on October 25, 1983 (48 FR 49244). This determined that the rule does not assertion was upheld in the courts of the Endangered and threatened species, unduly burden the judicial system and Ninth Circuit (Douglas County v. Exports, Imports, Reporting and meets the requirements of sections 3(a) Babbitt, 48 F.3d 1495 (9th Cir. Ore. recordkeeping requirements, and 3(b)(2) of the Order. We have 1995), cert. denied 116 S. Ct. 698 Transportation. proposed designating critical habitat in (1996)). accordance with the provisions of the Proposed Regulation Promulgation Act. This proposed rule uses standard Government-to-Government Relationship With Tribes Accordingly, we propose to amend property descriptions and identifies the part 17, subchapter B of chapter I, title primary constituent elements within the In accordance with the President’s 50 of the Code of Federal Regulations, designated areas to assist the public in memorandum of April 29, 1994, as set forth below: understanding the habitat needs of the ‘‘Government-to-Government Relations seven mussels. with Native American Tribal PART 17—[AMENDED] Governments’’ (59 FR 22951), Executive Paperwork Reduction Act of 1995 (44 Order 13175, and the Department of 1. The authority citation for part 17 U.S.C. 3501 et seq.) Interior’s manual at 512 DM 2, we continues to read as follows: This rule does not contain any new readily acknowledge our responsibility Authority: 16 U.S.C. 1361–1407; 16 U.S.C. collections of information that require to communicate meaningfully with 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– approval by OMB under the Paperwork recognized Federal Tribes on a 625, 100 Stat. 3500; unless otherwise noted. Reduction Act. This rule will not government-to-government basis. We impose recordkeeping or reporting have determined that there are no tribal 2. In § 17.11(h), revise the entries for requirements on State or local lands with features essential to the ‘‘Bankclimber, purple (mussel),’’ governments, individuals, businesses, or conservation of the seven mussels. ‘‘Moccasinshell, Gulf,’’ ‘‘Moccasinshell, organizations. An agency may not Therefore, critical habitat for the seven Ochlockonee,’’ ‘‘Pigtoe, oval,’’ conduct or sponsor, and a person is not mussels has not been designated on ‘‘Pocketbook, shinyrayed,’’ ‘‘Slabshell, required to respond to, a collection of tribal lands. Chipola,’’ and ‘‘Threeridge, fat information unless it displays a (mussel),’’ listed in alphabetical order References Cited currently valid OMB control number. under ‘‘CLAMS’’ to read as follows: A complete list of all references cited National Environmental Policy Act in this rulemaking is available upon § 17.11 Endangered and threatened wildlife. It is our position that, outside the request from the Field Supervisor, Tenth Circuit, we do not need to Panama City Fish and Wildlife Office * * * * * prepare environmental analyses as (see ADDRESSES section). (h) * * *

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

******* CLAMS

******* Bankclimber, purple Elliptoideus U.S.A. (AL, FL, GA) NA ...... T 633 17.95(f) NA (mussel). sloatianus.

******* Moccasinshell, Gulf Medionidus U.S.A. (AL, FL, GA) NA ...... E 633 17.95(f) NA penicillatus.

******* Moccasinshell, Medionidus U.S.A. (FL, GA) ...... NA ...... E 633 17.95(f) NA Ochlockonee. simpsonianus.

******* Pigtoe, oval ...... Pleurobema U.S.A. (AL, FL, GA) NA ...... E 633 17.95(f) NA pyriforme.

******* Pocketbook, Lampsilis U.S.A. (AL, FL, GA) NA ...... E 633 17.95(f) NA shinyrayed. subangulata.

******* Slabshell, Chipola .... Elliptio chipolaensis U.S.A. (AL, FL) ...... NA ...... T 633 17.95(f) NA

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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

******* Threeridge, fat (mus- Amblema neislerii ... U.S.A. (FL, GA) ...... NA ...... E 633 17.95(f) NA sel).

*******

3. In § 17.95, at the end of paragraph Spalding, Sumter, Talbot, Taylor, (3) Critical habitat does not include (f), add an entry for seven mussel Terrell, Thomas, Upson, Webster, and manmade structures (such as buildings, species (in four northeast Gulf of Worth. aqueducts, airports, roads, and other Mexico drainages) to read as follows: (2) The primary constituent elements paved areas, and the land on which such structures are located) existing on § 17.95 Critical habitat—fish and wildlife. of critical habitat for the purple bankclimber (Elliptoideus sloatianus), the effective date of this rule and not * * * * * Gulf moccasinshell (Medionidus containing one or more of the primary (f) Clams and snails. penicillatus), Ochlockonee constituent elements. * * * * * moccasinshell (Medionidus (4) Critical habitat unit maps. Data Seven mussel species (in four simpsonianus), oval pigtoe (Pleurobema layers defining map units were created northeast Gulf of Mexico drainages): pyriforme), shinyrayed pocketbook with USGS National Hydrography purple bankclimber (Elliptoideus (Lampsilis subangulata), Chipola Dataset (NHD) GIS data. The 1:100,000 sloatianus), Gulf moccasinshell slabshell (Elliptio chipolaensis), and fat river reach (route) files were used to (), Ochlockonee threeridge (Amblema neislerii) are: calculate river kilometers and miles. moccasinshell (Medionidus (i) A geomorphically stable stream The following data sources were simpsonianus), oval pigtoe (Pleurobema channel (a channel that maintains its referenced to identify upstream and pyriforme), shinyrayed pocketbook downstream extents of critical habitat lateral dimensions, longitudinal profile, ′ (Lampsilis subangulata), Chipola and spatial pattern over time without an units: USGS 7.5 quadrangles; Georgia slabshell (Elliptio chipolaensis), and fat aggrading or degrading bed elevation); Department of Transportation county threeridge (Amblema neislerii). highway maps; U.S. Census Bureau (ii) A predominantly sand, gravel, (1) Critical habitat units are depicted 1:100,000 TIGER line road data; 1993 and/or cobble stream substrate; on the maps below for the following Georgia digital orthographic quarter counties: (iii) Permanently flowing water; quads (DOQQs); 2004 Florida DOQQs; (i) Alabama: Houston and Russell; (iv) Water quality (including and DeLorme Atlas and Gazetteers for (ii) Florida: Alachua, Bay, Bradford, temperature, turbidity, dissolved Alabama, Florida, and Georgia. The Calhoun, Columbia, Franklin, Gadsden, oxygen, and chemical constituents) that projection used in mapping all units Gulf, Jackson, Leon, Liberty, Union, meets or exceeds the current aquatic life was Universal Transverse Mercator Wakulla, and Washington; and criteria established under the Clean (UTM), NAD 83, Zone 16 North. (iii) Georgia: Baker, Calhoun, Clayton, Water Act (33 U.S.C. 1251–1387); and (5) Note: Index map (Map 1) showing Coweta, Crawford, Crisp, Decatur, (v) Fish hosts (such as largemouth critical habitat units in the States of Dooly, Dougherty, Early, Fayette, Grady, bass, sailfin shiner, brown darter) that Alabama, Florida, and Georgia for the Lee, Macon, Marion, Meriwether, support the larval life stages of the seven mussels follows: Miller, Mitchell, Peach, Pike, Schley, seven mussels. BILLING CODE 4310–55–P

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(6) Table of listed species and critical species, their respective critical habitat habitat units follows. Detailed critical habitat units. A table showing the listed units, and the States that contain those habitat unit descriptions and maps

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appear below in paragraphs (7) through (17).

TABLE OF SEVEN MUSSEL SPECIES, THEIR CRITICAL HABITAT UNITS, AND STATES CONTAINING THOSE CRITICAL HABITAT UNITS

Species Critical habitat units States

Purple bankclimber (Elliptoideus sloatianus) ...... Units 5, 6, 7, 8, 9, 10 ...... AL, FL, GA. Gulf moccasinshell (Medionidus penicillatus) ...... Units 1, 2, 4, 5, 6, 7 ...... AL, FL, GA. Ochlockonee moccasinshell (Medionidus simpsonianus) ...... Unit 9 ...... FL, GA. Oval pigtoe (Pleurobema pyriforme) ...... Units 1, 2, 4, 5, 6, 7, 9, 11 ...... AL, FL, GA. Shinyrayed pocketbook (Lampsilis subangulata) ...... Units 2, 3, 4, 5, 6, 7, 9 ...... AL, FL, GA. Chipola slabshell (Elliptio chipolaensis) ...... Unit 2 ...... AL, FL. Fat threeridge (mussel) (Amblema neislerii) ...... Units 2, 8 ...... AL, FL, GA.

(7) Unit 1. Econfina and Moccasin stream length of 31.4 kilometers (km) (17.8 mi) to Tenmile Creek (¥85.50 creeks, Bay and Washington Counties, (19.5 miles (mi)). The main stem of longitude, 30.51 latitude), Washington Florida. This is a critical habitat unit for Econfina Creek extends from its County, Florida; and Moccasin Creek the Gulf moccasinshell and oval pigtoe. confluence with Deer Point Lake at the from its confluence with Econfina Creek (i) General Description: Unit 1 powerline crossing located 3.8 km (2.3 upstream 2.8 km (1.7 mi) to Ellis Branch includes the main stem of Econfina mi) downstream of Bay County Highway (¥85.53 longitude, 30.41 latitude), Bay Creek and one of its tributaries, 388 (¥85.56 longitude 30.36 latitude), County, Florida. Moccasin Creek, encompassing a total Bay County, Florida, upstream 28.6 km (ii) Note: Unit 1 map (Map 2) follows:

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(8) Unit 2. Chipola River and Dry, km (90.0 mi), including the reach upstream 5.3 km (3.3 mi) to Tanner Rocky, Waddells Mill, Baker, Marshall, known as Dead Lake, to the confluence Springs (¥85.32 longitude, 30.83 and Big Creeks; Houston County, of Marshall and Cowarts creeks (¥85.27 latitude), Jackson County, Florida; Alabama; and Calhoun, Gulf, and longitude, 30.91 latitude) in Jackson Marshall Creek from the Chipola River Jackson counties, Florida. This is a County, Florida; Dry Creek from the upstream 13.7 km (8.5 mi) to the critical habitat unit for the fat Chipola River upstream 7.6 km (4.7 mi) Alabama-Florida State line (¥85.33 threeridge, shinyrayed pocketbook, Gulf to Ditch Branch (¥85.53 longitude, longitude, 31.00 latitude), Jackson moccasinshell, oval pigtoe, and Chipola 30.41 latitude), Jackson County, Florida; County, Florida; and Big Creek from the slabshell. Rocky Creek from the Chipola River Alabama-Florida State line upstream 7.8 (i) General Description: Unit 2 upstream 7.1 km (4.4 mi) to Little Rocky km (4.9 mi) to Double Bridges Creek includes the main stem of the Chipola ¥ (¥85.38 longitude, 31.05 latitude), River and six of its tributaries, Creek ( 85.13 longitude, 30.68 Houston County, Alabama. The short encompassing a total stream length of latitude), Jackson County, Florida; 190.0 km (118.1 mi). The main stem of Waddells Mill Creek from the Chipola segment of the Chipola River that flows the Chipola River extends from its River upstream 3.7 km (2.3 mi) to Russ underground within the boundaries of ¥ confluence with the Apalachicola River Mill Creek ( 85.29 longitude, 30.87 Florida Caverns State Park is not (¥85.09 longitude, 30.01 latitude) in latitude), Jackson County, Florida; Baker included within this unit. Gulf County, Florida, upstream 144.9 Creek from Waddells Mill Creek (ii) Note: Unit 2 map (Map 3) follows:

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(9) Unit 3. Uchee Creek, Russell habitat unit for the shinyrayed (i) General Description: Unit 3 County, Alabama. This is a critical pocketbook. includes the main stem of Uchee Creek

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from its confluence with the longitude, 32.38 latitude), Russell (ii) Note: Unit 3 map (Map 4) follows: Chattahoochee River upstream 34.2 km County, Alabama, encompassing a total (21.2 mi) to Island Creek (¥85.18 stream length of 34.2 km (21.2 mi).

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(10) Unit 4. Sawhatchee, Sheffield 37.8 km (23.5 mi). Sawhatchee Creek km (1.9 mi) to the powerline crossing Mill, and Kirkland creeks, Early County, from its confluence with the located 2.3 km (1.4 mi) upstream of Georgia. This is a critical habitat unit for Chattahoochee River upstream 28.6 km Sowhatchee Road (¥85.01 longitude, the shinyrayed pocketbook, Gulf (17.8 mi) to the powerline crossing 31.23 latitude); Kirkland Creek from its moccasinshell, and oval pigtoe. located 1.4 km (0.87 mi) upstream of confluence with the Chattahoochee (i) General Description: Unit 4 Early County Road 15 (¥84.99 River upstream 6.1 km (3.8 mi) to Dry includes the main stems of Sawhatchee longitude, 31.32 latitude); Sheffield Mill Creek (¥85.00 longitude, 31.13 and Kirkland creeks, and one tributary, Creek, the tributary, from its confluence latitude). encompassing a total stream length of with Sawhatchee Creek upstream 3.1 Note: Unit 4 map (Map 5) follows:

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(11) Unit 5. Upper Flint River and Pennahatchee, Little Pennahatchee, Whitewater creeks in Coweta, Crawford, Swift, Limestone, Turkey, Hogcrawl, Red Oak, Line, and Crisp, Dooly, Fayette, Macon,

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Meriwether, Peach, Pike, Spalding, Rattlesnake Branch (¥83.84 longitude, mi) to Little Creek (¥83.90 longitude, Sumter, Talbot, Taylor, Upson, and 31.82 latitude), Crisp and Worth 32.28 latitude), Dooly and Macon Worth counties, Georgia. This is a counties, Georgia (the creek is the counties, Georgia (the creek is the critical habitat unit for the shinyrayed county boundary); Limestone Creek county boundary); Red Oak Creek from pocketbook, Gulf moccasinshell, oval from Lake Blackshear, Crisp County, the Flint River upstream 21.7 km (13.5 pigtoe, and purple bankclimber. Georgia, upstream 8.8 km (5.5 mi) to mi) to Brittens Creek (¥84.68 longitude, ¥ (i) General Description: Unit 5 County Road 89 ( 83.88 longitude, 33.11 latitude), Meriwether County, encompasses a total stream length of 32.04 latitude), Dooly County, Georgia; Georgia; Line Creek from the Flint River 380.4 km (236.4 mi) and includes the Turkey Creek from the Flint River upstream 15.8 km (9.8 mi) to Flint River from the State Highway 27 upstream 21.7 km (13.5 mi) to Rogers Whitewater Creek (¥84.51 longitude, bridge (Vienna Road) (¥83.98 Branch (¥83.89 longitude, 32.20 33.28 latitude), Coweta and Fayette longitude, 32.06 latitude) in Dooly and latitude), in Dooly County, Georgia; Sumter counties, Georgia (the river is Pennahatchee Creek from Turkey Creek counties, Georgia (the creek is the the county boundary), upstream 247.4 upstream 4.8 km (3 mi) to Little county boundary); and Whitewater km (153.7 mi) through Macon, Peach, Pennahatchee Creek (¥83.89 longitude, Creek from Line Creek upstream 21.5 Taylor, Crawford, Talbot, Upson, Pike, 32.10 latitude), Dooly County, Georgia; km (13.4 mi) to Ginger Cake Creek ¥ Meriwether, and Coweta counties, to Little Pennahatchee Creek from ( 84.49 longitude, 33.42 latitude), Horton Creek (¥84.42 longitude, 33.29 Pennahatchee Creek upstream 5.8 km Fayette County, Georgia. latitude) in Fayette and Spalding (3.6 mi) to Rock Hill Creek (¥83.85 (ii) Note: Two maps of unit 5 (Map 6, counties, Georgia (the river is the county longitude, 32.13 latitude), Dooly northern part of unit 5; and Map 7, boundary); Swift Creek from Lake County, Georgia; Hogcrawl Creek from southern part of unit 5) follow: Blackshear upstream 11.3 km (7 mi) to the Flint River upstream 21.6 km (13.4

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(12) Unit 6. Middle Flint River and Little Muckalee, Mill, Mercer Mill Pond, Dougherty, Lee, Marion, Schley, Sumter, Kinchafoonee, Lanahassee, Muckalee, Abrams, Jones, and Chokee creeks; Terrell, Webster, and Worth counties,

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Georgia. This is a critical habitat unit for (¥84.58 longitude, 32.17 latitude), longitude, 31.67 latitude), Worth the shinyrayed pocketbook, Gulf Webster County, Georgia; Lanahassee County, Georgia; Mercer Millpond Creek moccasinshell, oval pigtoe, and purple Creek from Kinchafoonee Creek from Mill Creek upstream 0.45 km (0.28 bankclimber. upstream 9.3 km (5.8 mi) to West Fork mi) to Mercer Mill Pond (¥83.99 (i) General Description: Unit 6 Lanahassee Creek (¥84.50 longitude, longitude, 31.68 latitude), Worth encompasses a total stream length of 32.11 latitude), Webster County, County, Georgia; Abrams Creek from the 302.3 km (187.8 mi) and includes the Georgia; Muckalee Creek, from its Flint River upstream 15.9 km (9.9 mi) to Flint River from Piney Woods Creek confluence with Lake Worth at the Lee- County Road 123 (¥83.93 longitude, (¥84.06 longitude, 31.61 latitude) in Dougherty county line (¥84.14 31.68 latitude), Worth County, Georgia; Dougherty County, Georgia (the longitude, 31.62 latitude), upstream Jones Creek from the Flint River upstream extent of Lake Worth), 104.5 km (64.9 mi) to County Road 114 upstream 3.8 km (2.4 mi) to County upstream 39.9 km (24.8 mi) to the (¥84.44 longitude, 32.23 latitude), Road 123 (¥83.96 longitude, 31.76 Warwick Dam (¥83.94 longitude, 31.85 Marion County, Georgia; Little latitude), Worth County, Georgia; and latitude), Lee and Worth counties, Muckalee Creek, from Muckalee Creek Chokee Creek, from the Flint River Georgia; Kinchafoonee Creek from its in Sumter County, Georgia, upstream upstream 10.5 km (6.5 mi) to Dry confluence with Lake Worth at the Lee- 7.2 km (4.5 mi) to Galey Creek (¥84.29 Branch Creek (¥84.02 longitude, 31.89 Dougherty county line (¥84.17 longitude, 32.17 latitude), Schley latitude), Lee County, Georgia. longitude, 31.62 latitude), upstream County, Georgia; Mill Creek from the (ii) Note: Two maps of unit 6 (Map 8, 107.6 km (66.8 mi) through Terrell and Flint River upstream 3.2 km (2 mi) to western part of unit 6; and Map 9, Sumter Counties, Georgia, to Dry Creek Mercer Millpond Creek (¥83.99 eastern part of unit 6) follow:

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(13) Unit 7. Lower Flint River and Ichawaynochaway, Mill, Pachitla, Little Cooleewahee creeks in Baker, Calhoun, Spring, Aycocks, Dry, Pachitla, Chickasawhatchee, and Decatur, Dougherty, Early, Miller,

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Mitchell, and Terrell counties, Georgia. km (46.1 mi) to County Road 35 18.9 km (11.8 mi) to Little Pachitla This is a critical habitat unit for the (¥84.78 longitude, 31.34 latitude), Early Creek (¥84.68 longitude, 31.56 shinyrayed pocketbook, Gulf County, Georgia; Aycocks Creek from latitude), Calhoun County, Georgia; moccasinshell, oval pigtoe, and purple Spring Creek upstream 15.9 km (9.9 mi) Little Pachitla Creek from Pachitla Creek bankclimber. to Cypress Creek (¥84.79 longitude, upstream 5.8 km (3.6 mi) to Bear Branch (i) General Description: Unit 7 31.15 latitude), Miller County, Georgia; (¥84.72 longitude, 31.58 latitude), encompasses a total stream length of Dry Creek from Spring Creek upstream Calhoun County, Georgia; 396.7 km (246.5 mi) and includes the 9.9 km (6.1 mi) to Wamble Creek Chickasawhatchee Creek from Flint River from its confluence with Big (¥84.84 longitude, 31.31 latitude), Early ¥ Ichawaynochaway Creek, Baker County, Slough ( 84.56 longitude, 30.93 County, Georgia; Ichawaynochaway Georgia, upstream 64.5 km (40.1 mi) to latitude), Decatur County, Georgia, Creek from the Flint River, Baker U.S. Highway 82 (¥84.38 longitude, upstream 116.4 km (72.3 mi) through County, Georgia, upstream 68.6 km 31.74 latitude), Terrell County, Georgia; Baker and Mitchell Counties, Georgia, to (42.6 mi) to Merrett Creek (¥84.58 and Cooleewahee Creek from the Flint the Flint River Dam (which impounds longitude, 31.54 latitude), Calhoun ¥ River upstream 15.1 km (9.4 mi) to Lake Worth) ( 84.14 longitude, 31.60 County, Georgia; Mill Creek from ¥ latitude), Dougherty County, Georgia; Ichawaynochaway Creek upstream 7.4 Piney Woods Branch ( 84.31 longitude, Spring Creek, from its confluence with km (4.6 mi) to County Road 163 31.42 latitude), Baker County, Georgia. Lake Seminole at Smith Landing (¥84.63 longitude, 31.40 latitude), (ii) Note: Two maps of unit 7 (Map 10, (¥84.75 longitude, 30.89 latitude), Baker County, Georgia; Pachitla Creek, western part of unit 7; and Map 11, Decatur County, Georgia, upstream 74.2 from Ichawaynochaway Creek upstream eastern part of unit 7) follow:

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(14) Unit 8. Apalachicola River and Calhoun, Franklin, Gadsden, Gulf, This is a critical habitat unit for the fat the Chipola Cutoff and Swift Slough in Jackson, and Liberty counties, Florida. threeridge and purple bankclimber.

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(i) General Description: Unit 8 Charts) (¥85.01 longitude, 29.88 its confluence with the Chipola River, includes the main stem of the latitude), Franklin County, Florida, Gulf County, Florida; Swift Slough from Apalachicola River and two of its through Calhoun and Liberty Counties, the Apalachicola River, Liberty County, distributaries, Chipola Cutoff and Swift Florida, upstream to the Jim Woodruff Florida, downstream 3.6 km (2.2 mi) to Slough, encompassing a total stream Lock and Dam (which impounds Lake its confluence with the River Styx ¥ length of 155.4 km (96.6 mi). The main Seminole) ( 84.86 longitude, 30.71 (¥85.12 longitude, 30.10 latitude), stem of the Apalachicola River extends latitude), Gadsden and Jackson counties, Liberty County, Florida. from the downstream end of Bloody Florida; Chipola Cutoff from the Bluff Island (river mile 15.3 on U.S. Apalachicola River in Gulf County, (ii) Note: Unit 8 map (Map 12) Army Corps of Engineers Navigation Florida, downstream 4.5 km (2.8 mi) to follows:

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(15) Unit 9. Upper Ochlockonee River 177.3 km (110.2 mi). The main stem of longitude, 30.98 latitude), Grady and and Barnetts and West Barnetts creeks, the Ochlockonee River extends from its Thomas counties, Georgia; West and the in confluence with Gulley Branch (the Barnetts Creek from Barnetts Creek Gadsden and Leon counties, Florida, approximate upstream extent of Lake upstream 10 km (6.2 mi) to Georgia and Grady and Thomas counties, Talquin) (¥84.44 longitude, 30.46 Highway 111 (¥84.17 longitude, 30.98 Georgia. This is a critical habitat unit for latitude), Gadsden and Leon counties, latitude), Grady County, Georgia; and the shinyrayed pocketbook, Florida, upstream 134.0 km (83.3 mi) to the Little Ochlockonee River from the Ochlockonee moccasinshell, oval Bee Line Road/County Road 306 Ochlockonee River upstream 13.3 km pigtoe, and purple bankclimber. (¥83.94 longitude, 31.03 latitude), (8.3 mi) to Roup Road/County Road 33 (i) General Description: Unit 9 Thomas County, Georgia; Barnetts Creek (¥84.02 longitude, 31.02 latitude), includes the main stem of the Ochlockonee River upstream of Lake from the Ochlockonee River upstream Thomas County, Georgia. 20 km (12.4 mi) to Grady County Road (ii) Note: Unit 9 map (Map 13) Talquin and three tributaries ¥ encompassing a total stream length of 170/Thomas County Road 74 ( 84.12 follows:

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(16) Unit 10. Lower Ochlockonee counties, Florida. This is a critical (i) General Description: Unit 10 River in Leon, Liberty, and Wakulla habitat unit for the purple bankclimber. encompasses a total stream length of

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75.4 km (46.9 mi) and includes the main County, Florida, upstream 75.4 km (46.9 longitude, 30.39 latitude), Leon and stem of the Ochlockonee River from its mi) to the Jackson Bluff Dam (which Liberty counties, Florida. confluence with Syfrett Creek (¥84.56 impounds Lake Talquin) (¥84.65 (ii) Note: Unit 10 map (Map 14) longitude, 30.02 latitude), Wakulla follows:

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(17) Unit 11. Santa Fe River and New the river goes underground in O’Leno and the New River from its confluence River in Alachua, Bradford, Columbia, State Park (¥82.57 longitude, 29.91 with the Santa Fe River at the junction and Union counties, Florida. This is a latitude), Alachua and Columbia of Alachua, Bradford, and Union critical habitat unit for the oval pigtoe. counties, Florida, upstream 60.2 km counties, Florida, upstream 22.9 km (i) General Description: Unit 11 (37.4 mi) to the powerline crossing (14.2 mi) to McKinney Branch (¥82.27 includes the main stem of the Santa Fe located 1.9 km (1.2 mi) downstream longitude, 30.01 latitude) in Bradford River and its tributary the New River from the U.S. Highway 301 bridge and Union counties, Florida. encompassing a total stream length of ¥ ( 82.18 longitude, 29.84 latitude) in (ii) Note: Unit 11 map (Map 15) 83.1 km (51.6 mi). The main channel of Alachua and Bradford counties, Florida; the Santa Fe River extends from where follows:

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* * * * * Dated: May 30, 2006. Matt Hogan, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 06–5075 Filed 6–5–06; 8:45 am] BILLING CODE 4310–55–C

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