Tuesday, August 31, 2004

Part II

Department of the Interior and Wildlife Service

50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical for Five Endangered Mussels in the and Basins; Final Rule

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DEPARTMENT OF THE INTERIOR USFWS, 3761 Georgetown Road, process. The Service believes it is these Frankfort, KY 40601 ((502) 695–0468); measures that may make the difference Fish and Wildlife Service Mississippi Field Office, USFWS, 6578 between extinction and survival for Dogwood View Parkway, Ste. A, many . 50 CFR Part 17 Jackson, MS 39213 ((601) 965–4900); We note, however, that a recent 9th RIN 1018–AI76 Southwestern Field Office, Circuit judicial opinion, Gifford Pinchot USFWS, 330 Cummings Street, Task Force v. United State Fish and Endangered and Threatened Wildlife Abingdon, VA 24210 ((276) 623–1233). Wildlife Service, has invalidated the and Plants; Designation of Critical FOR FURTHER INFORMATION CONTACT: Service’s regulation defining destruction Habitat for Five Endangered Mussels Timothy Merritt, Tennessee Field Office or adverse modification of critical in the Tennessee and Cumberland (telephone (931) 528–6481, facsimile habitat. We are currently reviewing the River Basins (931) 528–7075). decision to determine what effect it may have on the outcome of consultations AGENCY: Fish and Wildlife Service, SUPPLEMENTARY INFORMATION: pursuant to Section 7 of the Act. Interior. Designation of Critical Habitat Provides Procedural and Resource Difficulties in ACTION: Final rule. Little Additional Protection to Species Designating Critical Habitat SUMMARY: We, the U.S. Fish and In 30 years of implementing the Act, We have been inundated with Wildlife Service (Service), designate 13 the Service has found that the lawsuits for our failure to designate river and stream segments (units) in the designation of statutory critical habitat critical habitat, and we face a growing Tennessee and/or Cumberland River provides little additional protection to number of lawsuits challenging critical Basins, encompassing a total of most listed species, while consuming habitat determinations once they are approximately 885 river kilometers significant amounts of available made. These lawsuits have subjected the (rkm) (550 river miles (rmi)) of river and conservation resources. The Service’s Service to an ever-increasing series of stream channels, as critical habitat for present system for designating critical court orders and court-approved five endangered mussels [Cumberland habitat has evolved since its original settlement agreements, compliance with ( atropurpurea), statutory prescription into a process that which now consumes nearly the entire ( provides little real conservation benefit, listing program budget. This leaves the capsaeformis), Cumberlandian is driven by litigation and the courts Service with little ability to prioritize its combshell (Epioblasma brevidens), rather than biology, limits our ability to activities to direct scarce listing purple bean ( perpurpurea), and fully evaluate the science involved, resources to the listing program actions rough rabbitsfoot (Quadrula cylindrica consumes enormous agency resources, with the most biologically urgent strigillata)] under the Endangered and imposes huge social and economic species conservation needs. Species Act of 1973, as amended (Act). costs. The Service believes that The consequence of the critical We solicited data and comments from additional agency discretion would habitat litigation activity is that limited the public on all aspects of this allow our focus to return to those listing funds are used to defend active designation, including data on actions that provide the greatest benefit lawsuits, to respond to Notices of Intent economic and other impacts of the to the species most in need of to sue relative to critical habitat, and to designation. This publication also protection. comply with the growing number of provides notice of the availability of the Role of Critical Habitat in Actual adverse court orders. As a result, listing final economic analysis for this Practice of Administering and petition responses, the Service’s own designation. Implementing the Act proposals to list critically imperiled species, and final listing determinations DATES: This rule is effective September While attention to and protection of on existing proposals are all 30, 2004. habitat is paramount to successful significantly delayed. ADDRESSES: Comments and materials conservation actions, we have The accelerated schedules of court received, as well as supporting consistently found that, in most ordered designations have left the documentation used in preparation of circumstances, the designation of Service with almost no ability to this final rule, are available for public critical habitat is of little additional provide for adequate public inspection, by appointment, during value for most listed species, yet it participation or to ensure a defect-free normal business hours at the Tennessee consumes large amounts of conservation rulemaking process before making Field Office, U.S. Fish and Wildlife resources. Sidle (1987) stated, ‘‘Because decisions on listing and critical habitat Service, 446 Neal Street, Cookeville, TN the Act can protect species with and proposals due to the risks associated 38501. without critical habitat designation, with noncompliance with judicially- You may obtain copies of the final critical habitat designation may be imposed deadlines. This in turn fosters rule or the economic analysis from the redundant to the other consultation a second round of litigation in which field office address above, by calling requirements of section 7.’’ Currently, those who fear adverse impacts from (931) 528–6481, or from our Web site at only 446, or 36 percent, of the 1,252 critical habitat designations challenge http://cookeville.fws.gov. listed species in the U.S. under the those designations. The cycle of If you would like copies of the jurisdiction of the Service have litigation appears endless, is very regulations on listed wildlife or have designated critical habitat. We address expensive, and in the final analysis questions about prohibitions and the habitat needs of all 1,252 listed provides relatively little additional permits, please contact the appropriate species through conservation protection to listed species. State Ecological Services Field Office: mechanisms such as listing, section 7 The costs resulting from the Tennessee Field Office (see ADDRESSES consultations, the section 4 recovery designation include legal costs, the cost section above); Field Office, planning process, the section 9 of preparation and publication of the U.S. Fish and Wildlife Service, P.O. Box protective prohibitions of unauthorized designation, the analysis of the 1190, Daphne, AL 36526 (telephone take, section 6 funding to the States, and economic effects and the cost of (251) 441–5181); Field Office, the section 10 incidental take permit requesting and responding to public

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comment, and in some cases the cost of cobbles and large boulders (Call and with additional data, suggest that they compliance with the National Parmalee 1981; Parmalee and Bogan are distinct species (J.W. Jones, pers. Environmental Policy Act. None of 1998). comm. 2002). these costs result in any benefit to the The Cumberland elktoe is endemic to Spawning probably occurs in the species that is not already afforded by the upper Cumberland River System in oyster mussel in late spring or early the protections of the Act enumerated southeast Kentucky and north-central summer (Gordon and Layzer 1989; J.W. earlier, and they directly reduce the Tennessee. It appears to have Jones, pers. comm. 2003). Glochidia of funds available for direct and tangible historically occurred only in the main the oyster mussel have been identified conservation actions. stem of the Cumberland River and on seven native host fish species, primarily its southern tributaries including the Background upstream from the hypothesized (Etheostoma vulneratum), redline darter This final rule addresses five mussels original location of (E. rufilineatum), bluebreast darter (E. in the family that are near Burnside, Pulaski County, camurum), (Percina historically native to portions of the Kentucky (Cicerello and Laudermilk sciera), ( ‘‘Cumberlandian’’ Region of the 2001). This species has apparently been carolinae), (C. baileyi), Tennessee and Cumberland River extirpated from the main stem of the and (C. bairdi) (Yeager Basins, including the Cumberland Cumberland River as well as Laurel and Saylor 1995; J.W. Jones and R.J. elktoe (Alasmidonta atropurpurea), River and its tributary, Lynn Camp Neves, U.S. Geological Survey (USGS), oyster mussel (Epioblasma Creek (Service 2004). Based on recent unpublished (unpub.) data 1998). Oyster capsaeformis), Cumberlandian records, the Cumberland elktoe mussels typically occur in sand and combshell (Epioblasma brevidens), continues to persist in 12 Cumberland gravel substrate in streams ranging from purple bean (Villosa perpurpurea), and River tributaries: Laurel Fork, Claiborne medium-sized creeks to large rivers rough rabbitsfoot (Quadrula cylindrica County, Tennessee, and Whitley (Gordon 1991; Parmalee and Bogan strigillata). It is our intent, in this final County, Kentucky; Marsh Creek, 1998). They prefer shallow riffles and rule, to discuss information obtained McCreary County, Kentucky; Sinking shoals and have been found associated since the proposed critical habitat Creek, Laurel County, Kentucky; Big with water willow (Justicia americana) designation. Please refer to our South Fork, Scott County, Tennessee, beds (Ortmann 1924; Gordon 1991; proposed critical habitat rule (68 FR and McCreary County, Kentucky; Rock Parmalee and Bogan 1998). 33234, June 3, 2003) for a more detailed Creek, McCreary County, Kentucky; The oyster mussel was one of the discussion of the species’ general life North Fork White Oak Creek, Morgan most widely distributed Cumberlandian history and our current understanding and Fentress Counties, Tennessee; Clear mussel species, with historical records of their historical and current range and Fork, Fentress, Morgan, and Scott existing from six States (Alabama, distribution. Counties, Tennessee; North Prong Clear , Kentucky, , We present information below on Fork and Crooked Creek, Fentress Tennessee, and Virginia). It has been , life history, and distribution County, Tennessee; White Oak Creek, eliminated from the entire Cumberland specific to these 5 Cumberlandian Scott County, Tennessee; Bone Camp River System and the mussels. The following section Creek, Morgan County, Tennessee; and main stem and a large number of its incorporates information received New River, Scott County, Tennessee tributaries (Fraley and Ahlstedt 2001; during the public comment period, (Call and Parmalee 1981; Bakaletz 1991; S.A. Ahlstedt, USGS, pers. comm. 2002, thereby updating and/or revising this Gordon 1991; Cicerello 1996; Parmalee 2003; Service 2004; Ahlstedt 1991a; J.W. section from the information presented and Bogan 1998; Cicerello and Jones, pers. comm. 2003). This mussel is in the proposed rule. Additional Laudermilk 2001; R.R. Cicerello, now extant only in a handful of stream information can be found in the listing Kentucky State Nature Preserves and river reaches in two States, determination (62 FR 1647) and the Commission (KSNPC), personal including the Duck River, Maury and final recovery plan for these five communication (pers. comm.) 2002, Marshall counties, Tennessee; Clinch mussels (Service 2004). 2003; Service 2004; Ahlstedt et al. River, Hancock County, Tennessee, and 2003). Scott County, Virginia; and Nolichucky Taxonomy, Life History, and River, Hamblen and Cocke counties, Oyster Mussel (Epioblasma Distribution Tennessee (Wolcott and Neves 1990; capsaeformis (Lea 1834)) Ahlstedt 1991b; Bakaletz 1991; Gordon Cumberland Elktoe (Alasmidonta Ortmann (1924) was the first to note atropurpurea (Rafinesque 1831)) 1991; Ahlstedt and Tuberville 1997; color differences in female oyster S.A. Ahlstedt, pers. comm. 2003; Gravid Cumberland elktoe females mussel mantle pads (shell lining). The Service 2004; J.W. Jones, pers. comm. (females with larvae) have been mantle color appears to be bluish or 2003). observed between October and May, but greenish white in the Clinch River, fish infected with glochidia of the grayish to blackish in the Duck River, Cumberlandian Combshell (Epioblasma Cumberland elktoe have not been and mottled brown in the Big South brevidens (Lea 1831)) encountered until March (Gordon and Fork population (Ortmann 1924; Service Spawning in Cumberlandian Layzer 1993). While glochidial 2004; J.W. Jones, Virginia Polytechnic combshell most likely occurs in late infestation from this species has been Institute and State University (Virginia summer and fall, while the actual recorded on five native fish species, Tech), pers. comm. 2003). In addition, release of glochidia takes place during glochidia successfully transformed or the Duck River form achieves nearly the remainder of the year. developed only on the northern twice the size of specimens from other Spawning in Cumberlandian hogsucker (Hypentelium nigricans) populations. Two small projections combshell most likely occurs in late under laboratory conditions (Gordon (microattractants) at the junction of the summer and fall, while the actual and Layzer 1993). This species appears mantle pads serve to attract host fish. release of glochidia takes place during to prefer in medium-sized Subtle differences in the morphology of the remainder of the year (J.W. Jones, streams to large rivers that contain sand these projections or structures also exist pers. comm. 2003; J. Layzer, Tennessee and mud substrata interspersed with in these two populations and coupled Technological University, pers. comm.

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2003). Glochidia of the Cumberlandian Counties, Tennessee, and Russell, Scott, S.A. Ahlstedt, pers. comm. 2000, 2002, combshell have been identified on Tazewell, and Wise counties, Virginia; 2003; Fraley and Ahlstedt 2001). several native host fish species, Emory River System Morgan and The summary of these five mussels including the wounded darter, redline Cumberland Counties, Tennessee; and presented above represents our current darter, bluebreast darter, snubnose Holston River System, Hawkins and understanding of their historical and darter (Etheostoma simoterum), Sullivan Counties, Tennessee, and Scott current range and distribution. Research greenside darter (E. blennioides), and Washington Counties, Virginia. It is ongoing regarding further taxonomic logperch (Percina caprodes), banded has apparently been extirpated from division of some species. For example, sculpin, black sculpin, and mottled Powell River, Emory River, Daddys varying mantle coloration, sculpin (Yeager and Saylor 1995; J.W. Creek (Emory River System), North Fork microattractant configuration, size Jones and R.J. Neves, unpub. data 1998). Beech Creek (Holston River System), differential, and spawning cycles may This species is typically associated with and North Fork Holston River (Service indicate that the oyster mussel is riffle and shoal areas in medium to 2004). The purple bean persists in actually a species complex (more than large-sized rivers (Gordon 1991; portions of the Clinch River main stem, one species represented). Researchers Parmalee and Bogan 1998). It is found Hancock County, Tennessee, and Scott, from Virginia Tech are in the process of in substrate ranging from coarse sand to Russell, and Tazewell Counties, formally describing the Duck River cobble (Gordon 1991). Virginia; Copper Creek (a Clinch River variety (J.W. Jones, unpub. data), and This species, like the oyster mussel, tributary), Scott County, Virginia; Indian most malacologists (biologists was once widely distributed, Creek (a Clinch River tributary), specializing in the life history and historically occurring in five States Tazewell County, Virginia; Obed River ecology of mollusks) believe that the Big (Alabama, Kentucky, Mississippi, (an Emory River tributary), Morgan and South Fork variety is actually a sister Tennessee, and Virginia). It has likewise Cumberland Counties, Tennessee; and species of the federally listed apparently been eliminated from the Beech Creek (a Holston River tributary), endangered tan riffleshell (Epioblasma main stems of the Tennessee and Hawkins County, Tennessee (Ahlstedt florentina walkeri), a closely related Cumberland rivers and several of their 1991b; Gordon 1991; Winston and species (historical records do exist, tributaries (Service 2004). It is now Neves 1997; Watson and Neves 1996; however, for true oyster mussels in the restricted to five stream reaches. The Ahlstedt and Tuberville 1997; S.A. Big South Fork (see Unit 9 description) Cumberlandian combshell persists in Ahlstedt, pers. comm. 2000, 2002, 2003; (S.A. Ahlstedt, pers. comm. 2002, 2003; Bear Creek, Colbert County, Alabama, Fraley and Ahlstedt 2001). J.W. Jones, pers. comm. 2003). Research and Tishomingo County, Mississippi; focusing on the Big South Fork Powell River, Claiborne and Hancock Rough Rabbitsfoot (Quadrula cylindrica Epioblasma should be completed and Counties, Tennessee, and Lee County, strigillata (Wright 1898)) published later this year (J.W. Jones, Virginia; Clinch River, Hancock County, Spawning for the rough rabbitsfoot pers. comm. 2003). Therefore for this Tennessee, and Scott and Russell apparently occurs from May through final rule, we recognize the extant Counties, Virginia; Big South Fork, Scott June (Yeager and Neves 1986). Epioblasma in the Big South Fork River County, Tennessee, and McCreary Glochidia of rough rabbitsfoot have been main stem as a sister species of the tan County, Kentucky; and Buck Creek, identified on the riffleshell. We also believe for this final Pulaski County, Kentucky (Isom and (Cyprinella galactura), spotfin shiner rule that the Duck River oyster mussel Yokely 1968; Schuster et al. 1989; (Cyprinella spiloptera), and bigeye chub population is true E. capsaeformis. For Ahlstedt 1991b; Bakaletz 1991; Gordon (Hybopsis amblops) (Yeager and Neves the remainder of the species, the 1991; Ahlstedt and Tuberville 1997; 1986). This species prefers clean sand distributions presented above are based Hagman 2000; S.A. Ahlstedt, pers. and gravel substrate in streams ranging upon shell morphology as described and comm. 2002; R.M. Jones, Mississippi from medium-sized creeks to medium- currently recognized in the best Museum of Natural Science, pers. sized rivers (Parmalee and Bogan 1998). available information. Therefore, we comm. 2002; R.R. Cicerello, pers. comm. Like the purple bean, the rough will consider these species’ current 2003; McGregor and Garner 2004). rabbitsfoot is endemic to the upper ranges as outlined above, until Tennessee River System. The rough presented with new information. Purple Bean (Villosa perpurpurea (Lea rabbitsfoot historically occupied Powell 1861)) River, Hancock and Claiborne Counties, Summary of Decline and Threats to Gravid female purple beans have been Tennessee, and Lee County, Virginia; Surviving Populations observed in January and February Clinch River System, Hancock and Please refer to our proposed rule (68 (Ahlstedt 1991b; R.S. Butler, Service, Claiborne Counties, Tennessee, and FR 33234, June 3, 2003) and the pers. comm. 2003). Glochidia of the Russell, Scott, and Tazewell Counties, recovery plan (Service 2004) for a purple bean have been identified on the Virginia; and Holston River System, summary of the decline of and threats fantail darter (Etheostoma flabellare), Hawkins and Sullivan Counties, to all five mussel species. greenside darter, banded sculpin, black Tennessee, and Scott and Washington sculpin, and mottled sculpin (Watson Counties, Virginia. It is apparently Previous Federal Actions and Neves 1996; J. W. Jones, pers. extirpated from the entire Holston River On October 12, 2000, the Southern comm. 2003). This species inhabits System (Service 2004). It currently Appalachian Biodiversity Project filed a small creeks to medium-sized rivers and persists in portions of Powell River, lawsuit in U.S. District Court for the can be found in a variety of substrates Claiborne and Hancock Counties, Eastern District of Tennessee against the (Gordon 1991; Parmalee and Bogan Tennessee and Lee County, Virginia; Service, the Director of the Service, and 1998). Clinch River, Hancock County, the Secretary of the Department of the The purple bean is endemic to the Tennessee and Scott, Russell, and Interior, challenging our not-prudent upper Tennessee River drainage in Tazewell Counties, Virginia; and in critical habitat determination for the 5 Tennessee and Virginia. Its historical Indian Creek, Tazewell County, Virginia Cumberlandian Region mussel species. range included Powell River, Lee (Ahlstedt 1981; Gordon 1991; Ahlstedt On November 8, 2001, the District Court County, Virginia; Clinch River System, and Tuberville 1997; Winston and issued an order directing us to re- Claiborne, Grainger, and Hancock Neves 1997; Watson and Neves 1996; evaluate our prudency determination for

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these five mussels and submit new these, two also supported an expansion critical habitat, and the draft economic proposed prudency determinations for of critical habitat, ten comments analysis. Written comments and oral the Cumberland elktoe to the Federal expressed opposition, and four either statements presented at the public Register no later than May 19, 2003, and provided additional information, were hearing and received during the for the remaining four mussels to the noncommittal, or expressed both comment periods are addressed in the Federal Register no later than June 16, opposition to and support of certain following summary. For readers’ 2003. We were also directed to submit aspects of the proposed designation. convenience, we have assigned by those same dates new proposed Four of the responses were from the comments to major issue categories and critical habitat designations, if prudent. peer reviewers. Comments were we have combined similar comments Additionally, for the mussels in which received from five private organizations, into single comments and responses. critical habitat was found to be prudent, four Federal agencies, three State Peer Review Comments we were directed to finalize our governmental agencies, one business, designation not less than 12 months three local governments, and four (1) Comment: The current distribution following the prudency determination. individuals. Several of the respondents of the Cumberland elktoe in Rock Creek On January 8, 2004, the District Court commented on more than one occasion extends upstream from Dolen Branch. It extended our deadline to submit the (e.g., at the public hearing and during is described inaccurately in the text, but final rule to the Office of the Federal the first comment period). it is depicted accurately on the Unit 8 Register to not later than August 19, We directly notified and requested map. 2004. comments from all affected States. The Response: After our proposed rule Other Federal actions for these State comments can be found in the was published, we were informed by the species prior to June 3, 2003, are Comment Section under numbers 1, 2, U.S. Forest Service (USFS) that we did outlined in our proposed rule to and 3 for Kentucky State Nature not include a reach of Rock Creek designate critical habitat for these 5 Preserves Commission (KNPC), 13 and upstream of Dolen Branch that contains mussel species (68 FR 33234). 34 for the Virginia Department of a 1998 record of a live Cumberland Publication of the proposed rule opened Transportation (VDOT), and 14 and 35 elktoe. This specimen was collected a 60-day comment period, which closed for the Tennessee Department of approximately 5 rkm (3 rmi) upstream on September 2, 2003. The comment Environment and Conservation (TDEC). of Dolen Branch, southwest of Bell period was reopened October 6, 2003, TDEC and KNPC both submitted Farm. In an October 6, 2003, Federal through December 5, 2003, in order to comments in support of the designation. Register notice (68 FR 57643), we receive comments on a draft economic KNPC also supported an expansion of announced that we were considering a analysis, a technical correction and designated areas. The States of Virginia, 6.4 rkm (4.0 rmi) upstream extension to possible modification of Unit 8 Rock Alabama, and Mississippi expressed no Unit 8. We visited the proposed Creek, and to accommodate a public position. extension and found that it contains one hearing which was held on October 29, or more of the primary constituent Peer Review 2003, in Tazewell County, Virginia (68 elements and is of similar quality FR 57643). In accordance with our peer review habitat and character as the remainder policy published in the Federal Register of the Unit. We are, therefore, including Summary of Comments and on July 1, 1994 (59 FR 34270), we the upstream extension in our final Recommendations requested the expert opinions of four designation (see Map Unit 8). During the open comment periods for independent specialists who are (2) Comment: The Sinking Creek (Unit the proposed rule (68 FR 33234), public recognized authorities on freshwater 11) Cumberland elktoe population is hearing, and draft economic analysis (68 mussels and the Tennessee and described as ‘‘strong,’’ but it should be FR 57643), and the October 2003 Cumberland River Basins regarding considered ‘‘uncommon.’’ reopening (68 FR 57643), we requested pertinent scientific or commercial data Response: We concur and have all interested parties to submit and assumptions relating to the modified the text accordingly (see comments or information concerning supporting biological and ecological ‘‘Critical Habitat Unit Description’’ the proposed designation of critical information in the proposed section). habitat for the 5 mussels. We contacted designation. The purpose of such review (3) Comment: Critical habitat must all appropriate Federal, State, and local is to ensure that the designation is based include the upstream watershed to agencies, county governments, elected on scientifically sound data, conserve aquatic organisms. officials, scientific organizations, and assumptions, and analyses, including Response: Critical habitat other interested parties and invited input of appropriate experts and designations have relevance to section 7 them to comment. We also sent specialists. All four experts submitted consultations, which apply solely to notifications to the following written responses that the proposal Federal actions, including those funded newspapers: TimesDaily, Florence, included a thorough and accurate or authorized by Federal agencies. Alabama; The Tennessean, Nashville, review of the available scientific and When evaluating the effects of any Tennessee; The Knoxville News- commercial data on these mussels and Federal action subject to a section 7 Sentinel, Knoxville, Tennessee; The their habitats. The peer reviewers consultation, activities upstream or Kingsport Times-News, Kingsport, neither endorsed nor opposed the along the margin of a designated area Tennessee; The Columbia Daily Herald, proposed designation, but provided must be considered for adverse impacts Columbia, Tennessee; and The technical corrections and additional to critical habitat. Therefore, specific Commonwealth Journal, Somerset, information for consideration. designation of areas above or adjacent to Kentucky. Comments from peer reviewers are stream channel critical habitats is We received a total of 27 comments at included in the summary below and unnecessary. Identification of the stream the public hearing and during the two have been incorporated into this final channel as critical habitat will provide comment periods. A transcript of the rule. notice to Federal agencies to review hearing is available for inspection (see We reviewed all comments received activities conducted within the drainage ADDRESSES section). Nine comments for substantive issues and any new on their potential effects to the channel, supported the proposed designation. Of information regarding the mussels and and will alert third parties of the

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importance of the area to the survival of Response: We concur and have be not essential to the continued the species. modified the rule accordingly (see existence of a species. We are actively (4) Comment: The identified ‘‘Taxonomy, Life History, and working with partners and pursuing an spawning period for the oyster mussel Distribution’’ section). NEP designation in the lower French and Cumberlandian combshell is really Broad and lower Holston Rivers in the glochidial release period. Public Comments Tennessee as well as the Rockcastle Response: We have made the Issue A: Comments on Adequacy and River in Kentucky. We believe that the appropriate change to the ‘‘Taxonomy, Extent of Critical Habitat benefits of excluding the remaining Life History, and Distribution’’ section. river reaches from the designation, from (5) Comment: The Duck River (10) Comment: It is premature to consider the lower Holston River, lower a conservation standpoint, outweigh the population of the oyster mussel will be benefits of their inclusion (See the French Broad River, and Tennessee described as a new species within the Benefits of Inclusion and Benefits of River below Wilson Dam as potential next year or so. Exclusion Sections in the Proposed components of critical habitat for any of Response: We concur that there are Rule, 68 FR 33234). Experimental differences between the oyster mussel in these species. Response: We have determined that populations provide us with a flexible, the Duck River and in other extant proactive means to meet recovery these areas are essential to the populations of the oyster mussel in the criteria while not alienating conservation of the oyster mussel and Tennessee River System. However, for stakeholders, such as municipalities and Cumberlandian combshell. These areas the purpose of this rule, we continue to landowners, whose cooperation is are some of the only river sections consider the oyster mussel in the Duck essential for eventual success of the remaining that contain the primary River as true E. capsaeformis (see reintroduced population. Taxonomy, Life History, and constituent elements that are needed for (12) Comment: Consider using NEPs Distribution section). reintroducing these species into their of nonendangered species and, on (6) Comment: The taxonomic status of historical habitat. The Tennessee River occasion, endangered species in the tan riffleshell (Epioblasma florentina below Wilson Dam is an established tailwaters of the lower French Broad walkeri) in the Big South Fork National nonessential experimental population River, lower Holston River, and River and Recreation Area (BSFNRRA) (NEP) for 16 mussel species, which Tennessee River downstream of Wilson is unambiguous; therefore, this includes the oyster mussel and Dam to determine the realistic limits of population is not the oyster mussel Cumberlandian combshell. Under their potential use as habitat. (Epioblasma capsaeformis). section 10(j) of the Act, we cannot Response: NEPs, as specified in Response: We concur and have made designate critical habitat for section 10(j) of the Act, are only used for the appropriate changes to the text (see nonessential experimental populations. federally listed species. A NEP already ‘‘Taxonomy, Life History, and We are also actively considering the exists in the Tennessee River Distribution’’ and ‘‘Critical Habitat Unit lower French Broad, lower Holston, and downstream of Wilson Dam for 16 Descriptions’’ sections). Rockcastle Rivers for designation as federally listed mussels and under (7) Comment: The mantle pad color of NEPs to create additional viable section 10(j) of the Act, we can not the tan riffleshell (Epioblasma populations necessary to conserve and designate critical habitat for florentina walkeri) in the Big South Fork recover the species. Therefore, with this nonessential experimental populations. is mottled-brown, not white. rule, we are not designating the free- The lower French Broad and lower Response: We have modified the text flowing reach of the French Broad River Holston Rivers are presently being accordingly (see ‘‘Taxonomy, Life below Douglas Dam to its confluence considered for designation as NEPs. We History, and Distribution’’ section). with the Holston River, the free-flowing have concluded that these three areas, (8) Comment: The oyster mussel is reach of the Holston River below in addition to the Rockcastle River, are likely extirpated from the Clinch River Cherokee Dam to its confluence with the essential to the conservation of the in Russell and Tazewell counties, French Broad River, and the free- oyster mussel and Cumberlandian Virginia, and perhaps from the entire flowing reach of the Rockcastle River combshell and are important to our Powell River in Virginia and Tennessee. from the backwaters of Cumberland recovery strategy. These areas are some Response: We believe that the oyster Lake upstream to Kentucky Route 1956 of the only river sections remaining that mussel is likely extirpated from the bridge as critical habitat due to their contain the primary constituent Powell River, since no live individuals current or potential status as NEPs. elements that are needed for or shells have been found there in the Based on our evaluation under section reintroducing these species into their last 14 years. The last time it was found 4(b)(2) of the Act, we have excluded historical habitat. Based on our in the Powell River was in Tazewell these potential NEP areas from evaluation under section 4(b)(2) of the County, Virginia, in 1990. However, consideration as critical habitat. See Act, we have excluded these potential mussels are cryptic species living ‘‘Exclusions Under Section 4(b)(2).’’ NEP areas from consideration as critical embedded in the bottom of rivers, and (11) Comment: It is unclear why habitat. rare species, the oyster mussel in suitable river areas (e.g., Knox County (13) Comment: The Service should particular, may be difficult to find. The sections of the French Broad for the exclude any roadway and bridge oyster mussel may be found again in oyster mussel) should be excluded from projects in the Powell and Clinch River this stretch of the Powell in the near critical habitat consideration because of systems from the section 7 consultations future. It has been found recently in ‘‘potential status as nonessential that might result from the critical Scott County, Virginia, in the Clinch experimental population area.’’ habitat designation because of the River. We have revised the appropriate Response: Section 10(j)(2) of the Act precautions implemented by the VDOT sections in the rule to reflect this provides for the designation of specific during design, construction, and information. reintroduced populations of listed maintenance activities to minimize (9) Comment: Black sculpin (Cottus species as ‘‘experimental populations.’’ projects’ effects on the mussel species. baileyi) and banded sculpin (Cottus It also states that critical habitat shall Response: Only projects that have a carolinae) also serve as host fish for not be designated under the Act for any Federal nexus (i.e., Federal funding, purple bean. experimental population determined to Federal permit required, etc.) will

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trigger section 7 of the Act. Federal (15) Comment: The areas designated streams located in Tazewell County, agencies consult on actions that may as critical habitat should be larger to Virginia, and wouldn’t any potential affect listed species of its designated include historical habitat. expansion of the areas likewise critical habitat. One of the benefits of Response: Each of the 13 critical negatively impact the county? critical habitat designation is to inform habitat units contains one or more of the Response: Under the Act, we can, Federal agencies and other third parties primary constituent elements and is from time to time as appropriate, revise of the importance of habitats to the currently occupied by one or more of critical habitat based on the best conservation of species, and thus allow the five listed mussels. Because portions available information. Such a revision for the early consideration of of the historical range of each of the five would require us to complete the same alternatives to actions that might mussels are shared with two or more of rulemaking procedures that occurred destroy or adversely affect critical the other mussel species, there is with this rule. These procedures include habitat. We acknowledge the considerable overlap between species’ publishing a proposed designation, precautions taken by the VDOT to current and historical distribution requesting public comment on a protect these species and encourage within the 13 habitat units (e.g., the proposed rule, peer-reviewing the early planning and coordination that critical habitat for the oyster mussel proposed rule, conducting public can help by resulting in projects that includes the Powell River, even though hearings if requested, and publishing a may be determined ‘‘not likely to this mussel has not been found in the final rule. We are required under the adversely affect’’ under section 7 and Powell River in 14 years). We believe Act when designating or revising critical thus avoid a formal consultation. that we have an adequate mix of habitat to evaluate economic or any However, we cannot exempt an entity occupied and unoccupied habitat other relevant impacts associated with entirely from provisions of section 7 of (historical) in our final critical habitat specifying an area as critical habitat. the Act if there is a Federal nexus. designation to establish additional Therefore, we would also conduct a new These areas are being retained in the viable populations necessary to economic analysis as part of this final critical habitat designation because conserve the species. Including a mix of process. occupied and unoccupied habitat offers the Powell and Clinch Rivers represent Issue B: Procedural and Legal opportunities to increase each species’ some of the best remaining habitat for Comments four of the five mussels in question. current range and number of extant (18) Comment: Several commenters Both streams contain one or more populations into units currently stated that the critical habitat primary constituent elements along with occupied by other listed species designation will place undue populations of the mussels and are included in this designation. We are bureaucratic requirements on small essential to their conservation. either designating critical habitat or actively pursuing NEPs for all the businesses. (14) Comment: The TDEC and others remaining habitat that could support Response: Small businesses will only commented that the Service should these five mussel species. be involved in a section 7 requirement exclude the Old Columbia Dam and its (16) Comment: The designation of if a project or activity that they are impoundment from the final critical habitat for the Cumberland working on is federally funded or designation because it does not contain elktoe mussel in upper Crooked Creek permitted or otherwise involves a the primary constituent elements or and upper North Prong of Clear Fork Federal nexus. The designation of mussels in question. will preclude future construction of a critical habitat for these five mussels Response: The Old Columbia Dam in water supply reservoir potentially will not have a significant economic Unit 1, at approximately 4.3 meters located in these headwaters and should impact on a substantial number of small (14.0 feet) in height, impounds an area be moved downstream to accommodate entities. Impacts to small businesses are from rkm 211 (rmi 131) to rkm 220 (rmi this need. included in the small business analysis 136.4). Our regulations allow us to Response: The Cumberland elktoe in Appendix C of the economic analysis. designate inclusive areas where the presently occurs in both Crooked Creek We refer the reader to the sections species is not present if they are and the North Prong of Clear Fork. below entitled ‘‘Regulatory Flexibility adjacent to areas occupied by the Section 7 of the Act already applies to Act’’ (5 U.S.C. 601 et seq.) and ‘‘Small species and essential to their Federal agencies and their actions as a Business Regulatory Enforcement management and protection (50 CFR result of the presence of this federally Fairness Act’’ (5 U.S.C. 802(2)) for more 424.12(d)). The dam is inundated during listed mussel. The habitat designated in details. extreme high water conditions and has Crooked Creek and North Prong Clear (19) Comment: Comments were flow-through during lower water Fork contains one or more of the received regarding the accuracy of the conditions which allows for at least primary constituent elements and has Service’s disclaimer and the belief that downstream movement of host been found to be essential to the the text in the sections ‘‘Designation of and possibly attached glochidia. This conservation of this mussel. After Critical Habitat Provides Little short reach does contain one or more of reviewing the best available Additional Protection to Species,’’ ‘‘Role the primary constituent elements and is information, including all public of Critical Habitat in Actual Practice of important in maintaining downstream comments, new information, and the Administering and Implementing the water quality and quantity. It also serves economic analysis, we are designating Act,’’ and ‘‘Procedural and Resource as a downstream corridor between the critical habitat for the Cumberland Difficulties in Designating Critical areas below and above the dam where elktoe in these two streams. We refer the Habitat’’ of the proposed rule is the oyster mussel is known to survive. reader to the ‘‘Methods and Analysis factually inaccurate on three specific Including this reach in the designation Used to Identify Critical Habitat for Five topics: (1) That critical habitat provides will not preclude its continued use for Mussel Species’’ section in which we little additional protection to species, water supply, and the dam itself, which explain our rationale for designating (2) that there are insufficient budgetary was constructed in 1925, is not included critical habitat. resources and time to designate critical in the critical habitat designation (see (17) Comment: Can the area habitat for listed species, and (3) that ‘‘Critical Habitat Unit Descriptions’’ designated as critical habitat be the statement ‘‘these measures * * * section discussion of existing features). expanded in the future to include other may make the difference between

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extinction and survival for many final economic analysis, we have again implemented and effective. We found species’’ applies a standard of survival certified that the designation of critical that though the plan was generic in that is different from the standard of habitat for these five mussel species will nature and does provide indirect conservation that is mandated by the not have a significant economic impact benefits to overall aquatic systems, it Act. on a substantial number of small entities did not specifically address the mussel Response: As discussed in the and that a regulatory flexibility analysis species. For example, a riparian corridor sections ‘‘Designation of Critical Habitat is not required (see ‘‘Regulatory prescription area was established that Provides Little Additional Protection to Flexibility Analysis’’ section). includes the watercourse and, for Species,’’ ‘‘Role of Critical Habitat in (23) Comment: CPWS is concerned varying widths, its associated uplands; Actual Practice of Administering and about the possibility of ‘‘taking’’ (as standards were developed for the Implementing the Act,’’ and defined under the Act) implications of prescription area to lessen the impacts ‘‘Procedural and Resource Difficulties in this proposed designation. of various activities on water quality Designating Critical Habitat’’ and other Response: As defined under section and the physical characteristics of the sections of this and other critical habitat 3(18) of the Act: the term ‘‘take’’ means corridor. However, these standards were designations, we believe that, in most to harass, harm, pursue, hunt, shoot, not specifically developed for the cases, conservation mechanisms wound, kill, trap, capture, or collect, or mussel species, and do not address all provided through section 7 attempt to engage in any such conduct. the threats to mussels in that area. consultations, the section 4 recovery Section 9 of the Act applies to the Furthermore, the plan does not planning process, the section 9 species itself and not to the critical commit the DBNF to any specific project protective prohibitions of unauthorized habitat. Since federally listed species or local action, thus there are no take, section 6 funding to the States, the already exist in this reach of the Duck assurances that any conservation section 10 incidental take permit River, section 9 of the Act already management strategies will be process, and cooperative programs with applies and will not change as a result implemented for the area, nor these private and public landholders and of the designation of critical habitat. For mussel species. In Chapter 1 of the plan, tribal nations provide greater incentives the same reasons, section 7 already the DBNF states that ‘‘As a framework and conservation benefits than does the applies to any Federal activity. The for decision-making, this Plan does not designation of critical habitat. designation of critical habitat will not commit the Forest Service to any (20) Comment: Existing public affect the operation of existing specific project or local action. Rather, facilities serving essential needs of the structures such as the Old Columbia it describes general management community would be considered to be Dam, as they are presently being direction; estimates production levels, in noncompliance by the Service when operated. Any additions, modifications, and assesses the availability and the critical habitat designation is made new structures, etc., would be subject to suitability of lands for resource official. section 7. management practices.’’ Since the plan Response: The areas designated as (24) Comment: The critical habitat does not specifically address mussels critical habitat do not include existing designation for the entire Duck River and does not provide for measures to features such as water intakes and reach could prevent development of reduce threats to mussels, we have not outfalls, low-level dams, bridge footings, several of the Tennessee Valley excluded this area from the designation. piers and abutments, boat ramps, and Authority (TVA) water supply (26) Comment: Several commenters exposed pipelines. Federal actions alternatives. suggested that critical habitat could limited to these existing features would Response: These alternatives were impact private property. not trigger consultation pursuant to already subject to section 7 of the Act Response: The consultation history section 7 of the Act, unless they due to the fact that federally listed for these species does not include any adversely modify or destroy critical species occur in the Duck River. The consultations for private activities on habitat. inclusion of a reach of the Duck River private lands and few such (21) Comment: The Columbia Power as critical habitat will not affect this consultations are anticipated for the and Water Systems (CPWS) requested requirement for Federal agencies. They future. No Federal nexus exists for that they be allowed to provide input will still have to comply with section 7, activities on private lands that do not into the regulatory flexibility analysis but their consultation with the Service require a Federal permit or involve the on behalf of the local small entities that now must include a determination on use of Federal funds. Streambeds of would be affected by the proposed whether the proposed action may affect non-navigable waters and most designation. critical habitat as well as the species. navigable waters are owned by the Response: No regulatory flexibility (25) Comment: Areas proposed as riparian landowner, which can include analysis is required if the head of the critical habitat in the Daniel Boone private lands. Though streambeds Federal agency certifies that the rule National Forest (DBNF) should be designated can include private lands, will not have a significant economic excluded from the designation because without a Federal nexus, these impact on a substantial number of small they currently are, and will continue to streambeds will not be affected by the entities. We have certified that this rule be, managed to protect endangered designation. Waters of navigable streams will not have a significant effect on a mussels. are considered public waters by the substantial number of small entities. We Response: The DBNF final forest States of Mississippi, Alabama, refer the reader to the ‘‘Regulatory management plan was completed in Tennessee, Kentucky, and Virginia. The Flexibility Act’’ section of this rule in April 2004 after our proposed critical designation includes streams and river which we explain why we came to that habitat rule for the five mussel species channels within the ordinary high water conclusion. was published. We reviewed this plan line. No private upland areas were (22) Comment: CPWS requested that prior to completing our final critical proposed. In addition, development we revisit our initial certification that a habitat rule to determine if it provided activities with the greatest potential to regulatory flexibility analysis is not sufficient conservation benefits specific affect the mussels and habitat revolve required. to the mussel species and if there were around the increased construction of Response: We have revisited that assurances that the conservation pipelines, water supply and wastewater decision and, relying upon data in the management strategies would be infrastructure, and roads and bridges

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within the proposed critical habitat. burden to either the Federal agency or oxygen and continuous flow and These activities involved Federal the permit applicant. therefore possesses one or more of the entities or have a Federal nexus, and (29) Comment: Tazewell County, primary constituent elements for the thus do not impact entirely private Virginia, currently has no zoning. What Cumberlandian combshell. This reach, activity. Increased costs of these will be the method of enforcement for although currently devoid of the activities due to the presence of species the critical habitat? Cumberlandian combshell, is essential and habitat is captured through the Response: The burden to comply with to its conservation. The Duck River is anticipated consultations and project the section 7 of the Act falls only on also occupied by the oyster mussel. modifications as quantified within the Federal agencies and projects that they (33) Comment: Critical habitat is not economic analysis. fund or authorize. Likewise, the burden needed because this measure will not (27) Comment: The City of Columbia, to enforce the Act is a Federal add to the overall or site-specific Tennessee, commented that the responsibility that has been given to the protection already afforded to the three designation of critical habitat for the Service. The county is not responsible federally listed mussels (Cumberland mussels may engender additional State for enforcement of the Act regardless of elktoe, Cumberlandian combshell, and water quality requirements under the the zoning laws. oyster mussel) that occur in Units 8, 10, 11, and 12. Clean Water Act (CWA) involving total Issue C: Comments on Individual Units maximum daily load (TMDL) approvals Response: The Act has given us the (30) Comment: For the proposed and antidegradation language. requirement to designate critical habitat critical habitat in Unit 1 Duck River, Response: As discussed in Section once we found that the designation of Table 4 does not indicate that any of the 4.3.3 of the economic analysis, the critical habitat for these five mussels 74 rkm (46 rmi) is bordered by State or designation of critical habitat can result was prudent (68 FR 33234) in Federal land. accordance with standards established in greater State protection to a stream Response: We acknowledge this by the courts. Once a prudency segment. Critical habitat is one of many discrepancy and have modified the text determination was made, we set about considerations used by TDEC when accordingly (see ‘‘Land Ownership’’ determining what the primary determining whether a water body is a section and Table 4). constituent elements were and deciding high quality water (Tier II or Tier III, (31) Comment: There does not appear what areas were essential to the also known as Outstanding National to be adequate justification for the conservation of these species. Units 8, Resource Waters) and thus to determine designation of critical habitat for the 10, 11, and 12 all contain one or more the level of water quality protection, oyster mussel and the Cumberlandian of the primary constituent elements and including the application of TMDLs and combshell in the Duck River Unit. The we have determined that all these units antidegradation language. However, Service states in the rule that from a are essential to the conservation of these there are stream sections in Tennessee resource perspective, critical habitat three mussels. Therefore, critical habitat that contain critical habitat, but are designation is ineffective. is warranted for all four of these units. listed on the State’s 303(d) list of Response: We noted in our prudency (34) Comment: VDOT commented that impaired streams. Therefore, the determination that, according to the 425 projects in the Powell River System designation of critical habitat does not standards placed upon us by the courts, and 275 projects in the Clinch River automatically mean that the water body a designation for these five mussels is System may be impacted by the is classified as high quality water. The warranted (see ‘‘Prudency designation of critical habitat for the designation of critical habitat will not Determination’’ in the proposed rule). mussels. The commenter also noted that affect the State water quality The Duck River contains a highly existing critical habitat for the spotfin requirements on existing discharges. It diverse mussel fauna that is one of the chub (Erimonax monacha), yellowfin could result in greater State protections best remaining in the Cumberlandian madtom (Noturus flavipinnis), and for new discharges or modifications to Region, perhaps in the country. It slender chub (Erimystax cahni) overlap existing discharges. However, since this contains one or more of the primary with the proposed designation for the section of the Duck River already constituent elements and is currently mussels by 36 percent and none of the contains federally listed species, we occupied by the oyster mussel and past consultations for roadway projects believe that the addition of critical historically contained the found that the proposed action would habitat will not significantly increase Cumberlandian combshell. It is essential adversely modify habitat. the State’s water quality requirements. to the conservation of both taxa. We Response: The final economic (28) Comment: Will the area acknowledge that critical habitat, from a analysis addresses the estimated total designated as critical habitat be required resource perspective, is often ineffective costs of section 7 projects, which to comply with or be subject to more (see ‘‘Designation of Critical Habitat include the VDOT projects that might be stringent conditions or regulations, Provides Little Additional Protection to affected by the designation of critical either now or in the future, and will this Species’’ section). habitat in the Clinch and Powell River stop or delay economic development (32) Comment: The Cumberlandian systems. Most of the cost of the along the Clinch River or within the combshell does not currently occur in designation (77 percent) is comprised of identified drainage area? the Duck River; therefore, critical the administrative costs. The analysis Response: The designation of critical habitat for this species should not be found that existing State and Federal habitat on private land will have no designated there. regulations provide sufficient protection impact on private landowner activities Response: The Cumberlandian of these waterways, and as a result that do not involve federally funded or combshell historically occurred in the section 7 project modifications are authorized activities. Section 7 of the Duck River. Water quality and habitat unlikely for most activities. The Act already applies to projects that are conditions in the Duck River have commenter points out that there is federally funded or authorized due to improved since the TVA instituted existing critical habitat and that there the existing presence of federally listed minimum flows for Normandy Dam. have been no past consultations for species in the stream. Thus, the The section of the Duck River roadway projects that have resulted in designation of critical habitat will not designated as critical habitat now an adverse modification of critical increase the section 7 consultation contains higher levels of dissolved habitat. This fact points to the excellent

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working relationship between our two eliminate those threats in our effort to The economic analysis does not agencies and the mutual desire to insure recover the species. We are aware that conclude that the mussels or their that areas that are essential to the exotic species may pose threats to the critical habitat have no economic value; conservation of a federally listed species native mussel fauna and that critical rather, it simply states that the value are adequately protected. habitat may not address that threat. We cannot be quantified at this time. (35) Comment: Multiple commenters are working closely with our State Further, while the economic analysis provided information on the status of partners to address these threats. concludes that many of the benefits of the Yanahli Wildlife Management Area critical habitat designation are difficult Issue E: Comments on Economic (YWMA) in Unit 1 Duck River. In 2001, to estimate, it does not necessarily lead Impacts and Economic Analysis TVA transferred the area from rmi 137 to the conclusion that the benefits are to rmi 166 to the Tennessee Wildlife (38) Comment: Tazewell County, exceeded by the costs. We also note that Resource Agency (TWRA). Virginia, provided a list of 55 businesses we did not exclude any area due to Response: We acknowledge this new that may potentially be affected by economic reasons. information regarding YWMA and have critical habitat designation for the (40) Comment: If the stream reach incorporated that information into the mussels and inquired as to whether any below the Old Columbia Dam is final rule and Appendix B of the of these businesses had been contacted designated critical habitat, it is believed economic analysis. TWRA is managing in the process of conducting the that gravel removal will not be YWMA for wildlife, recreation, and economic analysis. permitted. Failure to remove the gravel natural and cultural preservation. The Response: The Tazewell County buildup will cause long-term economic deed transfer from TVA to TWRA Administrator was contacted February loss to the CPWS and impair our rights requires no land be sold or used for 27, 2003, and interviewed regarding under the Federal Energy Regulatory residential development. In addition, no potential impacts of critical habitat on Commission (FERC) license. industrial use will be allowed on the the county, as were representatives of Response: The Old Columbia Dam is land. In total, 2,752 ha (6,800 ac) are each of the 20 other counties in which a FERC licensed hydropower facility protected through development and use critical habitat is being designated. In with a generating capacity of 300 restrictions, 809 ha (2,000 ac) are addition, all relevant State and Federal kilowatts. The dam is not currently in protected as State Natural Areas, and regulatory agencies were contacted production for two reasons, (1) a flood 1,538 ha (3,800 ac) that includes regarding potential impacts to projects in March of 2002 damaged the system Fountain Creek are protected for water they authorize or fund. It is not feasible and repairs have yet to be made, and (2) supply. This will aid in the protection to contact every small business which a gravel bar has formed at the tailwater of the designated critical habitat on the might be affected, nor is there any area of the dam, causing a 1.2 m (4.0- Duck River. requirement to do so. foot) elevation of the water level against A management plan for this site is (39) Comment: The draft economic the downstream side of the turbine, still in development. We anticipate that analysis should assess potential resulting in a loss of power production. this plan will be generic in nature to economic benefits of the critical habitat The second issue could impact the protect overall water quality, and will designation. mussels, as the oyster mussel currently not specifically address the mussel Response: The published economic occupies the gravel bar. A formal species. Thus, we have not excluded and conservation biology literature consultation with the U.S. Army Corps this area from the designation. indicates that welfare benefits can result of Engineers (Corps) and the CPWS from the conservation of endangered would result if the CPWS were to apply Issue D: Comments on Science and threatened species. A regional for a 404 permit to remove the gravel (36) Comment: The introduction of economy can benefit from the bar. A potential project modification for cultured mussels and host fish will preservation of healthy populations of this permit is mussel relocation of half provide much greater hope for the endangered and threatened species and a mile of habitat. It is also possible that preservation of these species than a the habitat on which they depend. In the permit may not be issued. The total critical habitat designation. the final economic analysis of critical project modification cost, if the permit Response: We believe the habitat designation for the mussels, was issued and mussels were relocated, reintroduction of captively propagated additional discussion has been provided could be $75,500 per relocation effort. mussels and host fish is an essential concerning the potential economic The present value of the opportunity part of the conservation strategy for benefits associated with measures cost of lost power production if the these mussels. In the 13 critical habitat implemented for the protection of water permit was not issued and power units and the potential NEP areas in and habitat quality that may occur and generation did not commence would be lower French Broad, lower Holston, and be attributable to the effects of future $452,000 over the next 40 years. Rockcastle River areas that contain one section 7 consultations. It is not feasible, Therefore, the costs associated with the or more of the primary constituent however, due to the scarcity of available Old Columbia Dam hydropower project elements essential for the conservation studies and information relating to the could be $75,500 (if the permit was of these mussels, we have identified size and value of potential beneficial issued and mussels were relocated as a areas that are suitable for changes that are likely to occur as a result of a formal consultation) to reintroductions for the conservation of result of the listing of the species or the $452,000 (opportunity cost of all of these mussels. designation of their critical habitat, to hydropower generation). However, it (37) Comment: The designation of fully describe and accurately quantify has not been determined whether the critical habitat will not stop the decline all the benefits of potential future CPWS will pursue this project based on of these species, which is due to of the section 7 consultation in the context of the costs required to rebuild the introduction of exotic clams and other the economic analysis. Although there equipment damaged in the 2002 flood. species. are existing studies valuing ecosystem (41) Comment: The draft economic Response: Our recovery biologists are services related to the mussels, such as analysis completely omits any tasked with identifying threats to water filtration, they have limited discussion of water-supply reservoirs federally listed species and using the applicability for valuing the benefits of and any analysis of potential indirect Service’s resources to reduce or the critical habitat designation. economic impacts of this designation

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resulting from the denial of municipal National Park Service’s (NPS) January we included the Clinch River was water supply impoundments by 2003 Supplemental Draft General because it contained one or more of the regulatory authorities. Management Plan Environmental primary constituent elements and was Response: A discussion of water- Impact Statement Big South Fork found to be essential to the conservation supply reservoirs is addressed in the National River and Recreation Area. of, and occupied by, four of the five final economic analysis. Any possible Response: The Draft General mussel species. The Clinch River is one denial of municipal water supply Management Plan states that the Station of the last strongholds for impoundments by regulatory authorities Camp Ford is a designated river crossing Cumberlandian Region mussels. is based on many different issues (e.g., for horses and that the riverbed at this (45) Comment: A regional economic water quality, federally listed species, location is habitat for endangered analysis is not appropriate in the loss of free-flowing streams, etc.). In mussels. The draft plan states that an economic analysis for this rule. each critical habitat unit that we ‘‘interim method for addressing this Response: The economic analysis designated, there are existing federally issue, i.e., a flagged trail and educational conducted with this rule assesses listed species. As a result, section 7 of signs, continues to provide for visitor economic impacts incurred by the the Act already applies to any project use across, or through, the river’’ and Service, action agencies, and third that has a Federal nexus (e.g., federally that additional studies are planned. The parties conducting affected activities in, funded or authorized) in these units. preferred alternative is to continue the and adjacent to, the critical habitat The potential indirect economic interim trail crossing method and designation for the 5 mussels. A impacts cannot be quantified since continue to investigate the most regional economic analysis was not proposals do not presently exist for a appropriate long-term crossing method. performed for this rule. municipal water supply impoundment The NPS is still exploring a range of (46) Comment: The Birmingham, in any of the designated critical habitat alternatives for this crossing, including Alabama, Field Office of the Office of units. Additionally, there is no way to ‘‘(1) construction of horse bridges over Surface Mining commented that no quantify any potential permit denials the river, (2) hardening of crossings in impacts to coal mining in Alabama and from regulatory authorities based on the the river, (3) relocation of the horse Mississippi are anticipated due to the single criteria of critical habitat. We crossings to a less sensitive location, (4) designation of critical habitat for the have stated in the final economic removal of horse crossings from the mussels. analysis that the section 7 consultations river, and (5) relocation of mussels to a Response: This comment confirms the would be greater due to the critical more suitable location.’’ Therefore, the findings discussed in section 4.2.6 of habitat designation. These costs are economic analysis and the General the economic analysis with which we clearly spelled out in section 4 of the Management Plan do consider a concur. economic analysis and were considered consistent set of possible planning (47) Comment: There are 28 active in the final critical habitat designation. outcomes. mines within Tazewell County, (42) Comment: The economic analysis (44) Comment: Areas with strong Virginia, affecting 588 ha (1,454 ac) in should go beyond direct and indirect economies, such as the lower French the Clinch River System. How will costs of the consultation process and Broad River below Douglas Dam and the critical habitat designation impact these address the wide-ranging potential Holston River below Cherokee Dam in operations? impacts on equestrian visitation to the Grainger, Jefferson, and Knox Counties, Response: The critical habitat does Big South Fork National River and were excluded from the proposed not include existing features of the Recreation Area (BSFNRRA.) critical habitat designation while human-built environment. These Response: River crossings in mussel economically depressed areas (e.g., existing mine sites would not be subject habitat may be altered but will not be Clinch River, Tazewell County) were to the reinitiation of section 7 precluded in the BSFNRRA. The included. The proposal appears to give consultation as long as the companies economic analysis does not anticipate a preferential treatment to these met all their existing permit conditions. measurable reduction in equestrian economically strong areas. States are allowed to assume exclusive visitation to the Big South Fork due to Response: The reasons for excluding jurisdiction over the regulation of alteration of certain river crossings in three river reaches from the proposed, surface coal mining and reclamation mussel habitat. Therefore, the economic and this final, critical habitat operations on non-Federal lands, analysis does not quantify potential designation had nothing to do with the contingent upon the State regulation impacts on equestrian visitation. We do economics of the areas. We excluded the being as effective and no less stringent not believe that there will be any wide- French Broad River below Douglas Dam than the Federal regulation of the Office ranging impacts on equestrian visitation and Holston River below Cherokee Dam of Surface Mining with the Department to the BSFNRRA due to the critical in Tennessee, and a 24-km (15-mi) of the Interior. We do not anticipate any habitat designation. The critical habitat stretch of the Rockcastle River in adverse effect on these existing unit already contains existing federally Kentucky, because of our intent to operations. We believe that these 28 listed species, so section 7 already establish NEPs for these areas. While it active mines are included in the applied to equestrian projects such as is true that the economic impact of Viriginia’s Division of Mined Land river crossings and has not resulted in including these areas would be high Reclamation estimate of 300 permits the termination of any river crossings to (estimated costs top $4.5 million), they associated with Unit 5 (Clinch River) date. were not excluded on economic and are expected to require technical (43) Comment: The draft economic grounds, but because of their potential assistance efforts with the Service analysis anticipated that a river crossing status as NEPs for the oyster mussel and during their review process. project within the BSFNRRA may lead Cumberlandian combshell under section (48) Comment: The impact analysis to such project modifications as 10(j)(2) of the Act. The historical (economic) did not include the current temporary mussel relocation in order to populations of these two species have gas well operations in the Clinch River minimize disturbance to the mussels, or been extirpated from (and are not able drainage, and the impact on these types termination of the project altogether. to naturally recolonize) the referenced of operations should be considered. The potential termination of the segments of the Rockcastle, French Response: In Virginia, oil and gas crossing project is inconsistent with the Broad, and Holston Rivers. The reason drilling permits are issued by the

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Division of Gas and Oil. Because protection; and (ii) specific areas basis for recommendations to designate Virginia has regulatory authority, there outside the geographic area occupied by critical habitat. is no nexus to require section 7 a species at the time it is listed, upon Critical habitat designations do not consultation unless a project involves a determination that such areas are signal that habitat outside the constructing or modifying a FERC- essential for the conservation of the designation is unimportant to these five licensed interstate gas line. While FERC species. ‘‘Conservation’’ means the use mussels. Areas outside the critical maintains a short-term ‘‘On the of all methods and procedures that are habitat designation will continue to be Horizon’’ listing of major pipeline necessary to bring any endangered or subject to conservation actions that may projects, the agency is unable to threatened species to the point at which be implemented under section 7(a)(1) of estimate the number or location of listing under the Act is no longer the Act and to the regulatory protections projects which may require consultation necessary. afforded by the section 7(a)(2) jeopardy with the Service in the critical habitat Critical habitat receives protection standard and the section 9 take units over the next 10 years. If a under section 7 of the Act through the prohibitions, as determined on the basis consultation were required, the project prohibition against destruction or of the best available information at the modifications likely to be recommended adverse modification of critical habitat time of the action. We specifically include minimizing stream crossings, with regard to actions carried out, anticipate that federally funded or spanning lines along existing bridges to funded, or authorized by a Federal assisted projects affecting listed species avoid instream work, and constructing agency. Section 7 requires consultation outside their designated critical habitat catchment basins around wells. on Federal actions that are likely to areas may still result in jeopardy (49) Comment: Comments were also result in the destruction or adverse findings. Similarly, critical habitat received stating that critical habitat for modification of critical habitat. designations made on the basis of the the mussels may impact Tazewell To be included in a critical habitat best available information at the time of County, Virginia. Tazewell County designation, the habitat must first be designation will not control the commented that the designation of ‘‘essential to the conservation of the direction and substance of future critical habitat will be ‘‘devastating to species.’’ Critical habitat designations recovery plans, habitat conservation Tazewell County’s economic growth identify, to the extent known and using plans, or other species conservation and development.’’ Comments were also the best scientific and commercial data planning efforts if new information submitted stating that the designation of available, habitat areas that provide available to these planning efforts calls critical habitat will not have a negative essential life cycle needs of the species for a different outcome. impact on the economy of Tazewell (i.e., areas on which are found the Methods and Criteria Used To Identify County. primary constituent elements, as Response: With the exception of cases defined at 50 CFR 424.12(b)). Critical Habitat for the Five Mussel in which critical habitat designation Occupied habitat may be included in Species excludes a portion of available land critical habitat only if the essential As required by section 4(b)(2) of the from development, and where features thereon may require special Act and its implementing regulations substitutes are limited, designation is management or protection. Thus, we do (50 CFR 424.12), we used the best unlikely to substantially affect the not include areas where existing scientific and commercial information course of regional economic management is sufficient to conserve available to determine critical habitat development. In cases where an the species. (As discussed below, such areas that contain the physical and industry requires the direct use of the areas may also be excluded from critical biological features that are essential for natural resources of mussel habitat (e.g., habitat pursuant to section 4(b)(2).) the conservation of these five mussels. large volume of water for cooling or Our regulations state that ‘‘The We reviewed the available information discharge), the presence of the mussels Secretary shall designate as critical pertaining to the historical and current or critical habitat may impact a decision habitat areas outside the geographic area distributions, life histories, host fishes, to locate in that area. Environmental presently occupied by the species only habitats of, and threats to these species. regulations such as critical habitat when a designation limited to its The information used in the preparation designation likely constitute some present range would be inadequate to of this designation includes: our own fraction of the many factors involved in ensure the conservation of the species’’ site-specific species and habitat the decision to locate a facility. (50 CFR 424.12(e)). Accordingly, when information; unpublished survey However, in the absence of information the best available scientific and reports, notes, and communications on the type of economic activity being commercial data do not demonstrate with other qualified biologists or considered, it is not feasible to that the conservation needs of the experts; statewide Geographic determine what level of economic species so require, we will not designate Information System (GIS) species impact the designation may create on critical habitat in areas outside the occurrence coverages provided by the the activity. Therefore, the economic geographic area currently occupied by KSNPC, TDEC, and TVA; peer-reviewed analysis recognizes, but does not the species. scientific publications; the final listing quantify, potential impacts to the future Our Policy on Information Standards rule for the five mussels; and our growth and development. Under the Endangered Species Act, recovery plan for these mussels (Service published on July 1, 1994 (59 FR 2004). We considered all collection Critical Habitat 34271), provides criteria, establishes records within the last 15 years from Critical habitat is defined in section 3 procedures, and provides guidance to streams currently and historically of the Act as: (i) The specific areas ensure that decisions made by the known to be occupied by one or more within the geographic area occupied by Service represent the best scientific and of the species (see ‘‘Taxonomy, Life a species, at the time it is listed in commercial data available. It requires History, and Distribution’’ section). accordance with the Act, on which are Service biologists, to the extent As discussed in part under the found those physical or biological consistent with the Act and with the use ‘‘Summary of Decline’’ section of the features (I) essential to the conservation of the best scientific and commercial proposed rule (68 FR 33237) and the of the species and (II) that may require data available, to use primary and recovery plan (Service 2004), the five special management considerations or original sources of information as the mussels are highly restricted in

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distribution, generally occur in small (Jenkinson and Todd 1997). Among the geomorphology, providing nutrient populations, exhibit limited difficulties in defining habitat input, and buffering from sediments and recruitment, and show little evidence of parameters for mussels are that specific pollution. Further, side channel and recovering from historical habitat loss physical and chemical conditions (e.g., backwater habitats may be important in without significant human intervention. water chemistry, flow, etc.) within the life cycle of fish that serve as hosts In fact, the recovery plan states that stream channel habitats may vary for mussel larvae. recovery for the five mussels is not widely according to season, likely in the near future because of the precipitation, and human activities Analysis Used To Delineate Critical extent of their decline, the relative within the watershed. In addition, Habitat isolation of remaining populations, and conditions between different streams, varied threats to their continued even those occupied by the same We considered several factors in the existence (Service 2004). Therefore, the species, may vary greatly due to selection of specific areas for critical recovery plan emphasizes protection of geology, geography, and/or human habitat for these five mussels. We surviving populations of these five population density and land use. Based assessed the recovery strategy outlined mussels and their stream and river on the best available information at this in the recovery plan for these species, habitats, enhancement and restoration time, the primary constituent elements which emphasizes: (1) Protection and of habitats, and population of critical habitat for all five species stabilization of surviving populations; management, including augmentation discussed herein consist of: (2) protection and management of their and reintroduction of the mussels. 1. Permanent, flowing stream reaches habitat; (3) augmentation of existing with a flow regime (i.e, the magnitude, Primary Constituent Elements small populations; (4) reestablishment/ frequency, duration, and seasonality of reintroduction of new populations In accordance with sections 3(5)(A)(I) discharge over time) necessary for within their historical ranges; and (5) and 4(b)(1)(A) of the Act and regulations normal behavior, growth, and survival research on species biology and ecology. at 50 CFR 424.12, we are required to of all life stages of the five mussels and Small, isolated populations are subject base critical habitat determinations on their host fish; to the loss of unique genetic material the best scientific and commercial data 2. Geomorphically stable stream and (genetic drift) (Soule´ 1980; Lacy et al. available and to consider those physical river channels and banks (structurally and biological features (primary stable stream cross section); 1995) and the gradual loss of constituent elements) that are essential 3. Stable substrates, consisting of reproductive success or fecundity due to to the conservation of the species and mud, sand, gravel, and/or cobble/ limited genetic diversity (Foose et al. that may require special management boulder, with low amounts of fine 1995). They are likewise more considerations or protection. These sediments or attached filamentous algae; vulnerable to extirpation from random include, but are not limited to: Space for 4. Water quality (including catastrophic events and to changes in individual and population growth and temperature, turbidity, oxygen content, human activities and land-use practices for normal behavior; food, water, air, and other characteristics) necessary for (Soule´ 1980; Lacy et al. 1995). The light, minerals, or other nutritional or the normal behavior, growth, and ultimate goal of the recovery plan is to physiological requirements; cover or survival of all life stages of the five restore enough viable (self-sufficient) shelter; sites for breeding, reproduction, mussels and their host fish; and populations of these five mussels such and rearing (or development) of 5. Fish hosts with adequate living, that each species no longer needs offspring; and habitats that are protected foraging, and spawning areas for them. protection under the Act (Service 2004). from disturbance or are representative of All areas designated as critical habitat the historical geographical and for the five mussels are within the In the recovery plan, we selected the ecological distribution of a species. species’ historic ranges and contain one number of distinct viable stream As detailed in the Background section or more of the physical or biological populations required for delisting of in the proposed critical habitat rule features (primary constituent elements) each of the five mussels on the basis (refer to 68 FR 33234, June 3, 2003) and identified as essential for the primarily of the historical distribution in this final rule, these five mussels, in conservation of these species. We of each species (Table 1). For example, general, live embedded in the bottom believe these physical and biological the rough rabbitsfoot is narrowly sand, gravel, and/or cobble substrates of features are essential to the conservation endemic to the upper Tennessee River rivers and streams. They also have a of the species and provide space for System. It historically occupied only unique life cycle that involves a individual and population growth and three river reaches and, therefore, its parasitic stage on host fish. Juvenile for normal behavior [Constituent conservation can be achieved with mussels require stable substrates with elements 1, 2, 3, and 5]; food, water, air, fewer populations than the historically low to moderate amounts of sediment light, minerals, or other nutritional or wider-ranging oyster mussel. We have and low amounts of filamentous algae, physiological requirements [Constituent concluded that identification of critical and correct flow and water quality to elements 1, 3, and 4]; cover or shelter; habitat that would provide for the continue to develop. The presence of sites for breeding, reproduction, and number of populations outlined in suitable host fish is considered an rearing (or development) of offspring Table 1 for each species is essential to essential element in these mussels’ life [Constituent elements 3 and 5]; and their conservation. cycles. In addition, because of their life habitats that are protected from cycle, small population sizes, and disturbance [Constituent element 1, 2, limited habitat availability, they are and 3]. highly susceptible to competitive or In identifying primary constituent predaceous nonnative species. elements, we have taken into account Unfortunately, knowledge of the the dynamic nature of riverine systems. essential features required for the We recognize that riparian areas and survival of any particular freshwater floodplains are integral parts of the mussel species consists primarily of stream ecosystem because they are basic concepts with few specifics important in maintaining channel

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TABLE 1.—NUMBER OF DISTINCT VIA- are present along with the primary expand the number of populations, BLE STREAM POPULATIONS OF THE constituent elements (see Table 2, Index thereby reducing the threat of FIVE CUMBERLANDIAN MUSSELS RE- map). These units total approximately extinction. QUIRED BEFORE DELISTING CAN 885 rkm (550 rmi) in Alabama, We believe that the habitat Kentucky, Mississippi, Tennessee, and OCCUR AS OUTLINED IN RECOVERY designation in these 13 units is essential Virginia. We believe that these areas to the conservation of all five mussels PLAN (SERVICE 2004) support darters, minnows, sculpins, and and that the 13 units encompass other fishes that have been identified as Number of sufficient habitat necessary for the populations hosts or potential hosts for one or more recovery of three of these five species Species required for of the mussels, as evidenced by known (e.g., Cumberland elktoe, purple bean, delisting fish distributions (Etnier and Starnes rough rabbitsfoot). However, we do not 1993), the persistence of the mussels believe that the 13 units provide Cumberland elktoe ...... 7 over extended periods of time, or field sufficient essential habitat for the Oyster mussel ...... 9 evidence of recruitment (S.A. Ahlstedt Cumberlandian combshell ...... 9 conservation of the oyster mussel and Purple bean ...... 5 pers. comm. 2002, Butler pers. comm. Cumberlandian combshell, based on the Rough rabbitsfoot ...... 4 2002). We consider all of these 13 number of viable populations required reaches essential for the conservation of for conservation and recovery of these Our approach to delineating specific these five mussels. As discussed in the more widespread species (Table 1). For critical habitat units, based on the recovery plan, recovery in the near example, these 13 units include recovery strategy outlined above, future is not likely for these five mussel occupied habitat for four existing oyster focused first on considering the species in their currently reduced and mussel populations and include historical ranges of the five mussels. We fragmented state. Nonetheless, it is unoccupied habitat in four other areas evaluated streams and rivers within the essential to include in this designation that could support oyster mussel historical ranges of these five mussels these 13 reaches within the historical populations. Our recovery plan, for which there was evidence that these range of all five mussels that still however, requires nine viable species had occurred there at some contain mussels and the primary populations of the oyster mussel before point (i.e., museum collection records). constituent elements. it may be delisted. Therefore, we have We then considered whether these Within the historical range of these determined it is essential to identify all essential areas were adequate for the species, we found that a large opportunities outside our 13 units to conservation of these five mussels. As proportion of the streams and rivers in conserve the oyster mussel and indicated in the recovery plan, threats to Cumberlandian combshell. the Tennessee and Cumberland River the five species are compounded by Basins that historically supported these their limited distribution and isolation We then considered free-flowing river mussels have been modified by existing and it is unlikely that currently reaches that historically contained the dams and their impounded waters. occupied habitat is adequate for the Cumberlandian combshell and oyster Extensive portions of these drainages, conservation of all five species. mussel but that have had no collection including the Cumberland and Conservation of these species requires records for the past 15 years, and that, Tennessee River main stems, segments expanding their ranges into currently resulting from water quality and of the Holston River and Powell River, unoccupied portions of their historical quantity improvements, likely contain and numerous tributaries of these rivers, habitat because small, isolated, suitable habitat for these mussels. cannot be considered essential to the fragmented aquatic populations, as Through our analysis, we identified four conservation of these species because discussed previously, are subject to such reaches that contain one or more they no longer provide the physical and chance catastrophic events and to of the primary continuant elements, and biological features that are essential for changes in human activities and land- are separated by dams and their conservation (see ‘‘Primary use practices that may result in their impoundments from free-flowing Constituent Elements’’ section). We also elimination. Larger, more contiguous habitats that contain extant populations did not consider several streams with populations can reduce the threat of of oyster mussels and Cumberlandian single site occurrence records of a single extinction. combshells. These areas are the lower species as essential to the conservation Each of the 13 habitat units is French Broad River below Douglas Dam of these species because these areas currently occupied by one or more of to its confluence with the Holston River, exhibited limited habitat availability, the five listed mussels. Because portions Sevier and Knox counties, Tennessee; isolation, degraded habitat, and/or low of the historical range of each of the five the free-flowing reach of the Holston management value or potential (e.g., mussels are shared with two or more of River below Cherokee Dam to its Cedar Creek, Colbert County, Alabama; the other mussel species, there is confluence with the French Broad River, Little Pigeon River, Sevier County, considerable overlap between species’ Jefferson, Grainger, and Knox Counties, Tennessee). Similarly, we did not current and historical distribution Tennessee; the Tennessee River main consider as essential areas from which within the 13 habitat units. This offers stem below Wilson Dam in Colbert and there have been no collection records of opportunities to increase each species’ Lauderdale counties, Alabama; and a these species for several decades (e.g., current range and number of extant stretch of the lower Rockcastle River in portions of the upper Holston River populations into units currently Laurel, Rockcastle, and Pulaski System in Tennessee and Virginia, occupied by other listed species Counties, Kentucky. Natural Buffalo River, Little South Fork of the included in this designation. For recolonization of these areas by these Cumberland River, Laurel River). example, the oyster mussel historically two species is unlikely; however, these We then identified 13 stream or river inhabited seven units and currently species can be reintroduced into these reaches (units) within the historical inhabits three. Successful areas to create the additional viable ranges of these species for which our reintroduction of the species into units populations necessary to conserve and data (i.e., collection records over the last that they historically occupied (and that recover the species. We have therefore 15 years, expert opinion) indicate that are currently occupied by another one concluded that these four reaches are one or more of the five mussel species or more of the five mussels) would also essential to the conservation of the

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oyster mussel and Cumberlandian stream and river channels in Alabama, contamination, nutrification, or combshell. Mississippi, Tennessee, Kentucky, and sedimentation. Habitat fragmentation, Although we have concluded that Virginia. Each of these units is occupied population isolation, and small they are essential, we are not by one or more of the five mussels. population size compounds these designating critical habitat in any of Although these 13 units represent only threats to the species. Various activities these four reaches due to their current a small proportion of each species’ in or adjacent to each of the critical or potential status as NEP areas. Section historical range, these habitat units habitat units described in this final rule 10(j) of the Act states critical habitat include a significant proportion of the may affect one or more of the primary shall not be designated for any Cumberlandian Region’s remaining constituent elements that are found in experimental population determined to highest-quality free-flowing rivers and the unit. These activities include, but be not essential to the continued streams and reflect the variety of small- are not limited to, those listed below in existence of the species. On June 14, stream-to-large-river habitats the ‘‘Effects of Critical Habitat’’ section 2001, we published a final rule to historically occupied by each species. as ‘‘Federal Actions That May Affect designate NEP status under section 10(j) Because mussels are naturally restricted Critical Habitat and Require of the Act for the reintroduction of 16 by certain physical conditions within a Consultation.’’ None of the critical federally listed mussels (including the stream or river reach (e.g., flow, stable habitat units is presently under special oyster mussel and Cumberlandian substrate), they may be unevenly management or protection provided by combshell) to the free-flowing reach distributed within these habitat units. a legally operative, adequate plan or below Wilson Dam, in the Tennessee Uncertainty on upstream and agreement for the conservation of these River (66 FR 32250). Therefore, we are downstream distributional limits of mussels. These threats may render the not designating critical habitat for the some populations may have resulted in habitat less suitable for these five oyster mussel and Cumberlandian small areas of occupied habitat mussels, therefore, we have determined combshell in the Tennessee River main excluded from, or areas of unoccupied that the critical habitat units may stem below Wilson Dam in Colbert and habitat included in, the designation. require special management or Lauderdale Counties, Alabama. The habitat areas contained within protection. At this time, special the units described below constitute our In addition, we are actively management considerations under best evaluation of areas needed for the considering the remaining three reaches 3(5)(a) of the Act warrant designating conservation of these species at this (the lower French Broad, lower Holston, these units as critical habitat. time. Critical habitat may be revised for and Rockcastle Rivers) for designation any or all of these species should new Critical Habitat Designation as NEPs in order to facilitate the information become available. reintroduction of the oyster mussel and In accordance with our recovery plan, Cumberlandian combshell, as well as Special Management Consideration or protection of the habitat in these units numerous other listed mussels, fishes, Protection and their surviving populations is and snails. Therefore, while we When designating critical habitat, we essential to the conservation of the five recognize their likely importance to our assess whether the areas determined to mussels. The areas that we are recovery strategy for these species, we be essential for conservation may designating as critical habitat for the are not designating these three river require special management five mussels provide one or more of the reaches as critical habitat. A further considerations or protections. All 13 primary constituent elements described discussion of these areas can be found critical habitat units identified in this above. Table 2 summarizes the location below (see ‘‘Exclusions under 4(b)(2)’’ final designation may require special and extent of critical habitat and section). management considerations or whether or not that critical habitat is In summary, the habitat contained protection to maintain geomorphic currently occupied or unoccupied. All within the 13 units described below and stability, water quantity or quality, of the designated areas require special the habitat within the four historical substrates, or presence of fish hosts. All management considerations to ensure reaches designated or under of these units are threatened by actions their contribution to the conservation of consideration for NEP status constitute that alter the stream slope (e.g., these mussels. For each stream reach our best determination of areas essential channelization, instream mining, designated as a critical habitat unit, the for the conservation, and eventual impoundment) or create significant upstream and downstream boundaries recovery, of these five Cumberlandian changes in the annual water or sediment are described in general detail below; mussels. We are designating as critical budget (e.g., urbanization, deforestation, more precise estimates are provided in habitat 13 habitat units encompassing water withdrawal); and point and/or the ‘‘Regulation Promulgation’’ section approximately 885 rkm (550 rmi) of nonpoint source pollution that results in of this rule.

*TABLE 2.—APPROXIMATE RIVER DISTANCES, BY DRAINAGE AREA, FOR OCCUPIED AND UNOCCUPIED CRITICAL HABITAT FOR THE FIVE ENDANGERED MUSSEL SPECIES

Currently occupied Currently unoccupied Species, stream (unit), and State River River kilo- kilometers River miles meters River miles

Cumberland elktoe: Rock Creek (Unit 8), KY ...... 17 11 ...... Big South Fork (Unit 9), TN, KY ...... 43 27 ...... North Fork White Oak Creek (Unit 9), TN ...... 11 7 ...... New River (Unit 9), TN ...... 14.5 9 ...... Clear Fork (Unit 9), TN ...... 40 25 ...... White Oak Creek (Unit 9), TN ...... 10 6 ...... Bone Camp Creek (Unit 9), TN ...... 6 4 ......

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*TABLE 2.—APPROXIMATE RIVER DISTANCES, BY DRAINAGE AREA, FOR OCCUPIED AND UNOCCUPIED CRITICAL HABITAT FOR THE FIVE ENDANGERED MUSSEL SPECIES—Continued

Currently occupied Currently unoccupied Species, stream (unit), and State River River kilo- kilometers River miles meters River miles

Crooked Creek (Unit 9), TN ...... 14.5 9 ...... North Prong Clear Fork (Unit 9), TN ...... 14.5 9 ...... Sinking Creek (Unit 11), KY ...... 13 8 ...... Marsh Creek (Unit 12), KY ...... 24 15 ...... Laurel Fork (Unit 13), TN, KY ...... 8 5 ......

Total ...... 215.5 135 ...... Oyster mussel: Duck River (Unit 1), TN ...... 74 46 ...... Bear Creek (Unit 2), AL, MS ...... 40 25 Powell River (Unit 4), TN, VA ...... 154 94 Clinch River (Unit 5), TN, VA ...... 242 150 ...... Copper Creek (Unit 5), VA ...... 21 13 Nolichucky River (Unit 6), TN ...... 8 5 ...... Big South Fork (Unit 9), TN, KY ...... 43 27 Buck Creek (Unit 10), KY ...... 58 36

Total ...... 324 201 316 195 Cumberlandian combshell: Duck River (Unit 1), TN ...... 74 46 Bear Creek (Unit 2), AL, MS ...... 40 25 ...... Powell River (Unit 4), TN, VA ...... 154 94 ...... Clinch River (Unit 5), TN, VA ...... 242 148 ...... Nolichucky River (Unit 6), TN ...... 8 5 Big South Fork (Unit 9), TN, KY ...... 43 27 ...... Buck Creek (Unit 10), KY ...... 58 36 ......

Total ...... 537 330 82 51 Purple bean: Obed River (Unit 3), TN ...... 40 25 ...... Powell River (Unit 4), TN, VA ...... 154 94 Clinch River (Unit 5), TN, VA ...... 242 148 ...... Copper Creek (Unit 5), VA ...... 21 13 ...... Indian Creek (Unit 5), VA ...... 4 2.5 ...... Beech Creek (Unit 7), TN ...... 23 14 ......

Total ...... 330 202.5 154 94 Rough rabbitsfoot: Powell River (Unit 4), TN, VA ...... 154 94 ...... Clinch River (Unit 5), TN, VA ...... 242 148 ...... Copper Creek (Unit 5), VA ...... 21 13 Indian Creek (Unit 5), VA ...... 4 2.5 ......

Total ...... 400 244.5 21 13 *Table 2 refers to the location and extent of critical habitat for each species. For more detail, refer to § 17.95. Table 2 will reflect totals on a species level only, because units are listed under each species as appropriate.

Critical Habitat Unit Descriptions existing features of the human-built Unit 1. Duck River, Maury and Marshall environment such as water intakes and Counties, Tennessee The critical habitat units described outfalls, low-level dams, bridge footings, below include the stream and river Unit 1 encompasses 74 rkm (46 rmi) channels within the ordinary high-water piers and abutments, boat ramps, and of the main stem of the Duck River line. As defined in 33 CFR 329.11, the exposed pipelines. As such, Federal channel from rkm 214 (rmi 133) (0.3 ordinary high water line on nontidal actions limited to these areas would not rkm (0.2 rmi) upstream of the First rivers is the line on the shore trigger consultation pursuant to section Street Bridge in the City of Columbia, established by the fluctuations of water 7 of the Act, unless they affect the Maury County, Tennessee, upstream to and indicated by physical species or destroy or adversely modify Lillard Mill Dam at rkm 288 (rmi 179), characteristics such as a clear, natural its critical habitat. We are designating Marshall County, Tennessee. This reach line impressed on the bank; shelving; the following units as critical habitat for of the Duck River contains a robust, changes in the character of soil; these five mussels (refer to Table 2 for viable population of the oyster mussel destruction of terrestrial vegetation; the the location and extent of critical habitat (Ahlstedt 1991b; Gordon 1991; S.A. presence of litter and debris; or other designated for each species and more Ahlstedt, pers. comm. 2002) and appropriate means that consider the specifically to § 17.95, Critical habitat— historically supported the characteristics of the surrounding areas. fish and wildlife, at the end of this rule). Cumberlandian combshell (Hinkley and The critical habitat does not include Marsh 1885; Ortmann 1925; Isom and

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Yokley 1968; van der Schalie 1973; Unit 5. Clinch River and tributaries, (Ahlstedt 1991b; S.A. Ahlstedt, pers. Gordon 1991). Approximately 59 Hancock County, Tennessee, and Scott, comm. 2002). percent of this Unit is now bounded by Russell, and Tazewell Counties, Virginia Unit 8. Rock Creek, McCreary County, the YWMA (recently transferred from Kentucky the TVA to TWRA). Unit 5 totals 272 rkm (171 rmi), including 242 rkm (148 rmi) of the Unit 8 includes 17.4 rkm (11.0 rmi) of Unit 2. Bear Creek, Colbert County, Clinch River from rkm 255 (rmi 159) the main stem of Rock Creek and begins Alabama, and Tishomingo County, immediately below Grissom Island, at the Rock Creek/White Oak Creek Mississippi Hancock County, Tennessee, upstream confluence and extends upstream to the Unit 2 encompasses 40 rkm (25 rmi) to its confluence with Indian Creek in low water crossing at rkm 25.6 (rmi of the main stem of Bear Creek from the Cedar Bluff, Tazewell County, Virginia; 15.9) approximately 2.6 km (1.6 mi) backwaters of Pickwick Lake at rkm 37 4 rkm (2.5 rmi) of Indian Creek from its southwest of Bell Farm in McCreary (rmi 23), Colbert County, Alabama, confluence with the Clinch River County, Kentucky. This unit, which is upstream through Tishomingo County, upstream to the fourth Norfolk Southern bounded by the DBNF and some private Mississippi, ending at the Mississippi/ Railroad crossing at Van Dyke, Tazewell inholdings, is currently occupied by the Alabama State line. Recent mussel County, Virginia; and 21 rkm (13 rmi) of Cumberland elktoe (Cicerello 1996). surveys in the Mississippi section of Copper Creek from its confluence with Unit 9. Big South Fork and Tributaries, Bear Creek confirmed that the the Clinch River upstream to Virginia Fentress, Morgan, and Scott Counties, Cumberlandian combshell is still extant State Route 72, Scott County, Virginia. Tennessee, and McCreary County, (R.M. Jones, pers. comm. 2002), and The Clinch River main stem currently Kentucky contains the oyster mussel, rough continues to be present in the Colbert Unit 9 encompasses 153 rkm (95 rmi) County, Alabama portion of the unit rabbitsfoot, Cumberlandian combshell, and purple bean (Gordon 1991; Ahlstedt and consists of 43 rkm (27 rmi) of the (Isom and Yokley 1968; McGregor and Big South Fork of the Cumberland River Garner 2004). Bear Creek is in the and Tuberville 1997; S.A. Ahlstedt, pers. comm. 2002). Indian Creek main stem from its confluence with historical range of the oyster mussel Laurel Crossing Branch downstream of (Ortmann 1925). currently supports populations of the purple bean and rough rabbitsfoot Big Shoals, McCreary County, Kentucky, Unit 3. Obed River, Cumberland and (Winston and Neves 1997; Watson and upstream to its confluence with the New Morgan Counties, Tennessee Neves 1996). Copper Creek is currently River and Clear Fork, Scott County, Tennessee; 11 rkm (7 rmi) of North Unit 3 encompasses 40 rkm (25 rmi) occupied by a low-density population of the purple bean and contains historical White Oak Creek from its confluence and begins at the confluence of the with the Big South Fork upstream to Obed River with the Emory River, records of both the oyster mussel and rough rabbitsfoot (Ahlstedt 1981; Fraley Panther Branch, Fentress County, Morgan County, Tennessee, and Tennessee; 14.5 rkm (9.0 rmi) of the continues upstream to Adams Bridge, and Ahlstedt 2001; S.A. Ahlstedt, pers. comm. 2003). Copper Creek is critical New River from its confluence with Cumberland County, Tennessee. This Clear Fork upstream to U.S. Highway unit currently contains a population of habitat for the yellowfin madtom and a portion of the Clinch River main stem 27, Scott County, Tennessee; 40 rkm (25 the purple bean (Gordon 1991; S.A. rmi) of Clear Fork from its confluence Ahlstedt, pers. comm. 2002) and is also section is critical habitat for both the slender chub and the yellowfin madtom with the New River upstream to its within designated critical habitat for the confluence with North Prong Clear Fork, (see ‘‘Existing Critical Habitat’’ and federally listed spotfin chub (see Morgan and Fentress Counties, Table 3). ‘‘Existing Critical Habitat’’ and Table 3). Tennessee; 10 rkm (6 rmi) of White Oak Unit 3 is located within the Obed Unit 6. Nolichucky River, Hamblen and Creek from its confluence with Clear National Wild and Scenic River Cocke Counties, Tennessee Fork upstream to its confluence with (ONWSR), a unit of the NPS, and the Bone Camp Creek, Morgan County, Catoosa Wildlife Management Area Unit 6 includes 8 rkm (5 rmi) of the Tennessee; 6 rkm (4 rmi) of Bone Camp (CWMA), which is owned by the main stem of the Nolichucky River and Creek from its confluence with White TWRA. extends from rkm 14 (rmi 9) Oak Creek upstream to Massengale (approximately 0.6 rkm (0.4 rmi) Unit 4. Powell River, Claiborne and Branch, Morgan County, Tennessee; upstream of Enka Dam to Susong Bridge 14.5 rkm (9.0 rmi) of Crooked Creek Hancock Counties, Tennessee, and Lee in Hamblen and Cocke counties, County, Virginia from its confluence with Clear Fork Tennessee. The Nolichucky River upstream to Buttermilk Branch, Fentress Unit 4 encompasses 154 rkm (94 rmi) currently supports a small population of County, Tennessee; and 14.5 rkm (9 rmi) and includes the Powell River from the the oyster mussel (S.A. Ahlstedt, pers. of North Prong Clear Fork from its U.S. 25E Bridge in Claiborne County, comm. 2002) and was historically confluence with Clear Fork upstream to Tennessee, upstream to rkm 256 (rmi occupied by the Cumberlandian Shoal Creek, Fentress County, 159) (upstream of Rock Island in the combshell (Gordon 1991). Tennessee. The main stem of the Big vicinity of Pughs), Lee County, Virginia. Unit 7. Beech Creek, Hawkins County, South Fork currently supports the This reach is currently occupied by the Tennessee Cumberland elktoe and the best Cumberlandian combshell (Ahlstedt remaining Cumberlandian combshell 1991b; Gordon 1991) and rough Unit 7 encompasses 23 rkm (14 rmi) population in the Cumberland River rabbitsfoot (Service 2004), and was and extends from rkm 4 (rmi 2) of Beech System (Bakaletz 1991; Gordon 1991; historically occupied by the oyster Creek in the vicinity of Slide, Hawkins R.R. Cicerello, pers. comm. 2003). The mussel (Wolcott and Neves 1990) and County, Tennessee, upstream to the main stem of the Big South Fork the purple bean (Ortmann 1918). It is dismantled railroad bridge at rkm 27 historically contained the oyster mussel also existing critical habitat for the (rmi 16). It supports the best remaining (S.A. Ahlstedt, pers. comm. 2002; federally listed slender chub and population of purple bean and the only Service 2004). The Epioblasma mussel yellowfin madtom (see ‘‘Existing remaining population of any of these that currently inhabits the Big South Critical Habitat’’ and Table 3). species in the Holston River drainage Fork main stem, and that is occasionally

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referred to as the oyster mussel, is now Unit 11. Sinking Creek, Laurel County, Unit 13. Laurel Fork, Claiborne County, recognized as a sister species of the tan Kentucky Tennessee, and Whitley County, riffleshell (see ‘‘Taxonomy, Life History, Kentucky and Distribution’’ section) (Service Unit 11 encompasses 13 rkm (8 rmi) 2004; J. Jones, pers. comm. 2003). The and extends from the Sinking Creek/ Unit 13 includes 8 rkm (5 rmi) of remainder of the unit contains habitat Rockcastle River confluence upstream to Laurel Fork of the Cumberland River currently occupied by the Cumberland Sinking Creek’s confluence with Laurel from the Campbell/Claiborne County elktoe (Call and Parmalee 1981; Bakaletz Branch in Laurel County, Kentucky. The line upstream 11.0 rkm (6.9 rmi) 1991; Gordon 1991). The largest Cumberland elktoe is present but through Claiborne County, Tennessee, population of Cumberland elktoe in uncommon in this Unit (R.R. Cicerello, to Whitley County, Kentucky. The Tennessee is in the headwaters of the pers. comm. 2003). This unit is upstream terminus is 3 rkm (2 rmi) Clear Fork System (Call and Parmalee primarily within land owned by the upstream of the Kentucky/Tennessee 1981; Bakaletz 1991). The Big South DBNF, but also includes private lands. State line. A ‘‘sporadic’’ population of Fork and its many tributaries may Cumberland elktoe currently persists in Unit 12. Marsh Creek, McCreary County, actually serve as habitat for one large this area (Cicerello and Laudermilk Kentucky interbreeding population of the 2001). Cumberland elktoe (Service 2004). Unit 12 includes 24 rkm (15 rmi) and Existing Critical Habitat Unit 10. Buck Creek, Pulaski County, consists of Marsh Creek from its Kentucky confluence with the Cumberland River Approximately 332.0 rkm (206.5 rmi) Unit 10 encompasses 58 rkm (36 rmi) upstream to the State Road 92 Bridge in (38 percent) of the critical habitat for the and includes Buck Creek from the State McCreary County, Kentucky. This unit, five mussels (within three units) are Route 192 Bridge upstream to the State which is bounded by lands owned by already designated critical habitat for Route 328 Bridge in Pulaski County, the DBNF and private landowners, the yellowfin madtom, slender chub, or Kentucky. Buck Creek is currently currently contains the State of spotfin chub (Table 3). The spotfin occupied by the Cumberlandian Kentucky’s best population of chub, slender chub, and yellowfin combshell (Gordon 1991; Hagman 2000; Cumberland elktoe (R.R. Cicerello, pers. madtom are listed as threatened species R.R. Cicerello, pers. comm. 2003) and comm. 2003) and the best remaining under the Act. Our consultation history historically supported the oyster mussel mussel fauna in the Cumberland River on these existing critical habitat units is (Schuster et al. 1989; Gordon 1991). above Cumberland Falls (Cicerello and provided in the ‘‘Effects of Critical This unit is adjacent to the DBNF. Laudermilk 2001). Habitat Designation’’ section.

TABLE 3.—CRITICAL HABITAT DESIGNATION FOR THE FIVE MUSSELS THAT OVERLAP REACHES AND STREAMS THAT ARE CURRENTLY DESIGNATED CRITICAL HABITAT FOR OTHER FEDERALLY LISTED SPECIES

Length of Unit (unit #) Species Reference overlap (rkm/rmi)

Obed River (3) ...... Spotfin chub ...... 42 FR 45527 ...... 40/25 Powell River (4) ...... Yellowfin madtom, slender chub 42 FR 45527 ...... 154/94 Clinch River (5) (and Copper Creek) ...... Yellowfin madtom, slender chub 42 FR 45527 ...... 142.0/87.5

Total ...... 336/206.5

Land Ownership riparian land ownership in each of the including the ONWSR and the CWMA Streambeds of non-navigable waters critical habitat units. Approximately 75 in the Obed River Unit (40 rkm (25 and most navigable waters are owned by percent, 655 rkm (407 rmi), of stream rmi)); DBNF in the Rock Creek, Sinking the riparian landowner. Waters of channels designated as critical habitat Creek, and Marsh Creek Units (30 rkm navigable streams are considered public are bordered by private lands. (19 rmi)); the YWMA along the Duck waters by the States of Mississippi, Public land adjacent to final critical River Unit (43 rkm (27 rmi)); and the Alabama, Tennessee, Kentucky, and habitat units consists of approximately BSFNRRA in the Big South Fork Unit Virginia. Table 4 summarizes primary 230 km (143 mi) of riparian lands, (109 rkm (68 rmi)).

TABLE 4.—ADJACENT RIPARIAN LAND OWNERSHIP IN CRITICAL HABITAT UNITS (RKM/RMI) IN THE TENNESSEE AND CUMBERLAND RIVER BASINS

Critical habitat units Private State Federal

1. Duck River ...... 31/19 43/27 ...... 2. Bear Creek ...... 40/25 ...... 3. Obed River ...... 32/20 8/5 4. Powell River ...... 154/94 ...... 5. Clinch River and tributaries ...... 272/171 ...... 6. Nolichucky River ...... 8/5 ...... 7. Beech Creek ...... 23/14 ...... 8. Rock Creek ...... 18/11 9. Big South Fork and tributaries ...... 44/27 ...... 109/68 10. Buck Creek ...... 58/36 ...... 11. Sinking Creek ...... 8/5 ...... 5/3

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TABLE 4.—ADJACENT RIPARIAN LAND OWNERSHIP IN CRITICAL HABITAT UNITS (RKM/RMI) IN THE TENNESSEE AND CUMBERLAND RIVER BASINS—Continued

Critical habitat units Private State Federal

12. Marsh Creek ...... 10/6 ...... 14/9 13. Laurel Fork ...... 8/5 ......

Totals ...... 656/407 75/47 154/96

Effects of Critical Habitat Designation actions do not destroy or adversely habitat will require section 7 modify critical habitat. consultation. Activities on private or Section 7 Consultation When we issue a biological opinion State lands requiring a permit from a Section 7 of the Act requires Federal concluding that a project is likely to Federal agency, such as a permit from agencies, including the Service, to result in the destruction or adverse the USACE under section 404 of the ensure that actions they fund, authorize, modification of critical habitat, we also Clean Water Act, a section 10(a)(1)(B) or carry out are not likely to destroy or provide reasonable and prudent permit from the Service, or some other adversely modify critical habitat. In our alternatives to the project, if any are Federal action, including funding (e.g., regulations at 50 CFR 402.2, we define identifiable. ‘‘Reasonable and prudent Federal Highway Administration or destruction or adverse modification as alternatives’’ are defined at 50 CFR Federal Emergency Management Agency ‘‘a direct or indirect alteration that 402.02 as alternative actions identified funding), will also continue to be appreciably diminishes the value of during consultation that can be subject to the section 7 consultation critical habitat for both the survival and implemented in a manner consistent process. Federal actions not affecting recovery of a listed species. Such with the intended purpose of the action, listed species or critical habitat and alterations include, but are not limited that are consistent with the scope of the actions on non-Federal and private to: Alterations adversely modifying any Federal agency’s legal authority and lands that are not federally funded, of those physical or biological features jurisdiction, that are economically and authorized, or permitted do not require that were the basis for determining the technologically feasible, and that the section 7 consultation. habitat to be critical.’’ We are currently Director believes would avoid Section 4(b)(8) of the Act requires us reviewing the regulatory definition of destruction or adverse modification of to briefly evaluate and describe in any adverse modification in relation to the critical habitat. Reasonable and prudent proposed or final regulation that alternatives can vary from slight project designates critical habitat those conservation of the species. modifications to extensive redesign or activities involving a Federal action that Section 7(a) of the Act requires relocation of the project. Costs may destroy or adversely modify such Federal agencies, including the Service, associated with implementing a habitat, or that may be affected by such to evaluate their actions with respect to reasonable and prudent alternative are designation. Activities that may destroy any species that is proposed or listed as similarly variable. or adversely modify critical habitat endangered or threatened and with Regulations at 50 CFR 402.16 require include those that appreciably reduce respect to its critical habitat, if any is Federal agencies to reinitiate the value of critical habitat to the 5 proposed or designated. Regulations consultation on previously reviewed mussels. We note that such activities implementing this interagency actions in instances where critical may also jeopardize the continued cooperation provision of the Act are habitat is subsequently designated and existence of the species. codified at 50 CFR part 402. Section the Federal agency has retained To properly portray the effects of 7(a)(4) of the Act requires Federal discretionary involvement or control critical habitat designation, we must agencies to confer with us on any action over the action or such discretionary first compare the section 7 requirements that is likely to jeopardize the continued involvement or control is authorized by for actions that may affect critical existence of a proposed species or result law. Consequently, some Federal habitat with the requirements for in destruction or adverse modification agencies may request reinitiation of actions that may affect a listed species. of proposed critical habitat. Conference consultation or conference with us on Section 7 prohibits actions funded, reports provide conservation actions for which formal consultation authorized, or carried out by Federal recommendations to assist the agency in has been completed, if those actions agencies from jeopardizing the eliminating conflicts that may be caused may affect designated critical habitat or continued existence of a listed species by the proposed action. The adversely modify or destroy proposed or destroying or adversely modifying the conservation recommendations in a critical habitat. listed species’ critical habitat. Actions conference report are advisory. If a We may issue a formal conference likely to ‘‘jeopardize the continued species is listed or critical habitat is report if requested by a Federal agency. existence’’ of a species are those that designated, section 7(a)(2) requires Formal conference reports on proposed would appreciably reduce the Federal agencies to ensure that activities critical habitat contain an opinion that likelihood of the species’ survival and they authorize, fund, or carry out are not is prepared according to 50 CFR 402.14, recovery. Actions likely to ‘‘destroy or likely to jeopardize the continued as if critical habitat were designated. We adversely modify’’ critical habitat are existence of such a species or to destroy may adopt the formal conference report those that would appreciably reduce the or adversely modify its critical habitat. as the biological opinion when the value of critical habitat to the listed If a Federal action may affect a listed critical habitat is designated, if no species. species or its critical habitat, the substantial new information or changes Common to both definitions is an responsible Federal agency (action in the action alter the content of the appreciable detrimental effect on both agency) must enter into consultation opinion (see 50 CFR 402.10(d)). survival and recovery of a listed species. with us. Through this consultation, the Activities on Federal lands that may Given the similarity of these definitions, action agency ensures that the permitted affect these 11 mussels or their critical actions likely to destroy or adversely

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modify critical habitat would often fish host. Algae can also directly the adverse effects of a proposed action result in jeopardy to the species compete with mussel offspring by on a listed species or its critical habitat, concerned when the area of the covering the sediment that prevents the help implement recovery plans, or proposed action is occupied by the glochidia from settling into the develop information useful to the species concerned. sediment. species’ conservation. Federal agencies already consult with (5) Actions that would significantly Previous biological opinions also us on activities in areas currently alter channel morphology or geometry. included nondiscretionary reasonable occupied by the species to ensure that Such activities could include but are not and prudent measures, with their actions do not jeopardize the limited to channelization, implementing terms and conditions, continued existence of the species. impoundment, road and bridge which are designed to minimize the These actions include, but are not construction, mining, dredging, and proposed action’s incidental take of limited to: destruction of riparian vegetation. These these five mussels. Section 3(18) of the (1) Actions that would alter the activities may lead to changes in water Act defines the term take as ‘‘to harass, minimum flow or the existing flow flows and levels that would degrade or harm, pursue, hunt, shoot, wound, kill, regime. Such activities could include, eliminate the mussels or their fish host trap, capture or collect, or to attempt to but are not limited to, impoundment, and/or their habitats. These actions can engage in any such conduct.’’ Harm is channelization, water diversion, water also lead to increased sedimentation further defined in our regulations (50 withdrawal, and hydropower and degradation in water quality to CFR 17.3) to include significant habitat generation. These activities could levels that are beyond the tolerances of modification or degradation that results eliminate or reduce the habitat the mussels or their fish host. in death or injury to listed species by necessary for the growth and We consider the 13 critical habitat significantly impairing essential reproduction of these mussels and their units to be occupied by the species behavioral patterns, including breeding, fish host. because at least one of the 5 mussels feeding, or sheltering. (2) Actions that would significantly occurs in these units. Federal agencies Conservation recommendations and alter water chemistry or temperature. already consult with us on activities in reasonable and prudent measures Such activities could include, but are areas currently occupied by the species provided in previous biological not limited to, release of chemicals, or if the species may be affected by the opinions for these mussels have biological pollutants, or heated effluents action to ensure that their actions do not included maintaining State water into the surface water or connected jeopardize the continued existence of quality standards, maintaining adequate groundwater at a point source or by the species. stream flow rates, minimization of work dispersed release (non-point source). in the wetted channel, restriction of Previous Section 7 Consultations These activities could alter water riparian clearing, monitoring of channel conditions that are beyond the We have consulted on approximately morphology and mussel populations, tolerances of the mussels or their fish 129 Federal actions (or activities that sign installation, protection of buffer host and result in direct or cumulative required Federal permits) involving zones, avoidance of pollution, adverse affects to these individuals and these five species since they received cooperative planning efforts, their life cycles. protection under the Act. Nine of these minimization of ground disturbance, (3) Actions that would significantly were formal consultations. Federal use of sediment barriers, use of best increase sediment deposition within the actions that we have reviewed include management practices to minimize stream channel. Such activities could Federal land management plans, road erosion, mussel relocation from bridge include, but are not limited to, excessive and bridge construction and pier footprints, and funding research sedimentation from livestock grazing, maintenance, water quality standards, useful for mussel conservation. In road construction, channel alteration, recreational facility development, dam reviewing past formal consultations, we timber harvest, off-road vehicle use, and construction and operation, surface anticipate the need in our proposed rule other watershed and floodplain mining proposals, and issuance of to reinitiate only one consultation on disturbances. These activities could permits under section 404 of the CWA. Federal actions as a result of this final eliminate or reduce the habitat Federal agencies involved with these designation. The DBNF in Kentucky necessary for the growth and activities included the Corps; TVA; since then has finalized their Forest reproduction of these mussels and their USFS; EPA; Office of Surface Mining, Plan. The USFS has accounted for fish host by increasing the sediment Reclamation and Enforcement; NPS; critical habitat designations in Rock deposition to levels that would Federal Highway Administration; and Creek, Buck Creek, Sinking Creek, and adversely affect their ability to complete the Service. The nine formal Marsh Creek in their plan. their life cycles. consultations that have been conducted As mentioned in the ‘‘Existing Critical (4) Actions that would significantly all involved Federal projects, including Habitat’’ section, 36 percent of the increase the filamentous algal five bridge replacements in Tennessee, critical habitat being designated for community within the stream channel. Kentucky, and Virginia; two Federal these five mussels is currently Such activities could include, but are land management plans; and the review designated critical habitat for the spotfin not limited to, release of nutrients into of two scientific collecting permits for chub, yellowfin madtom, or slender the surface water or connected one or more of the five mussel species. chub. We have conducted 56 informal groundwater at a point source or by None of these formal consultations consultations involving existing critical dispersed release (non-point source). resulted in a finding that the proposed habitat for these fish in the areas These activities can result in excessive action would jeopardize the continued designated as critical habitat for the five filamentous algae filling streams and existence of any of the five species. mussels in the Obed River, Powell reducing habitat for mussels and their In each of the biological opinions River, and Clinch River in Tennessee. fish hosts, degrading water quality resulting from these consultations, we All of these consultations involved both during their decay, and decreasing included discretionary conservation the potential adverse effects to the oxygen levels at night from their recommendations to the action agency. species and the potential adverse respiration to levels below the Conservation recommendations are modification or destruction of critical tolerances of the mussels and/or their activities that would avoid or minimize habitat. These consultations, which

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were similar to consultations carried out under special management or protection and Cumberlandian combshell. Under for the five mussel species, primarily provided by a legally operative, section 10(j) of the Act, we cannot included utility lines, bridge adequate plan or agreement for the designate critical habitat for replacements and reconstructions, conservation of these mussels, we nonessential experimental populations. gravel dredging, and an oil spill on believe, other than economics and Required Determinations Clear Creek (a tributary of the Obed preservation of conservation River and designated critical habitat for partnerships, there are no other relevant Regulatory Planning and Review the spotfin chub). We have consulted on impacts to evaluate under section In accordance with Executive Order seven projects that involved existing 4(b)(2). 12866, this document is a significant critical habitat for the yellowfin madtom Based on the best available rule in that it may raise novel legal and and/or slender chub in Virginia; three of information, including the prepared policy issues, but it is not anticipated to these consultations were formal, economic analysis, we have excluded have an annual effect on the economy involving projects such as bridge three river reaches: the free-flowing of $100 million or more or affect the crossings on the Clinch and Powell reach of the French Broad River below economy in a material way. Due to the rivers. None of these formal Douglas Dam to its confluence with the tight timeline for publication in the consultations resulted in a finding that Holston River, Sevier and Knox Federal Register, the Office of the proposed activity would destroy or Counties, Tennessee; the free-flowing Management and Budget (OMB) has not adversely modify existing critical reach of the Holston River below reviewed this rule. We prepared an habitat previously designated in the Cherokee Dam to its confluence with the economic analysis of this action. The area. French Broad River, Jefferson, Grainger, The designation of critical habitat will draft economic analysis was made and Knox Counties, Tennessee; and the have no impact on private landowner available for public comment and we free-flowing reach of the Rockcastle activities that do not involve Federal considered those comments during the River from the backwaters of funding or permits. Designation of preparation of this rule. The economic Cumberland Lake upstream to Kentucky critical habitat is only applicable to analysis indicates that this rule will not Route 1956 Bridge, in Laurel, activities approved, funded, or carried have an annual economic effect of $100 Rockcastle, and Pulaski Counties, out by Federal agencies. million or more; the economic analysis If you have questions regarding Kentucky, because of their potential indicates that this rule will have an whether specific activities would status as NEP areas for the oyster mussel annual economic effect of $0.7 to $1.6 constitute adverse modification of and Cumberlandian combshell. When million. This rule is not expected to critical habitat, you may contact the these river reaches are designated NEP adversely affect an economic sector, following Service field offices: areas and the oyster mussel and productivity, jobs, the environment, or Cumberlandian combshell are Alabama Field Office (251–441–5181) other units of government. Under the Kentucky Field Office (502–695–0468) reintroduced, these two species will be Act, critical habitat may not be Mississippi Field Office (601–965–4900) treated as species proposed for listing. destroyed or adversely modified by a Tennessee Field Office (931–528–6481) However, these areas are already Federal agency action; the Act does not Southwest Virginia Field Office (276– occupied by other federally listed impose any restrictions related to 623–1233). species, namely the Cumberland bean critical habitat on non-Federal persons mussel in the Rockcastle and pink unless they are conducting activities Exclusions Under Section 4(b)(2) mucket mussel and snail darter in the funded or otherwise sponsored or Section 4(b)(2) of the Act requires that Holston and French Broad Rivers; thus permitted by a Federal agency. Because we designate critical habitat on the basis the oyster mussel and Cumberlandian of the potential for impacts on other of the best scientific and commercial combshell will receive protections from Federal agencies’ activities, we information available and that we these other listed species. Furthermore, reviewed this action for any consider the economic impact, effects to these exclusions will preserve existing inconsistencies with other Federal national security, and any other relevant conservation partnerships and facilitate agency actions. We believe that this rule impacts of designating a particular area (through increased public support) the will not materially affect entitlements, as critical habitat. We may exclude areas successful reintroduction of these grants, user fees, loan programs, or the from critical habitat based on these and species, as well as 18 other federally rights and obligations of their recipients, other reasons (e.g., the preservation of listed species, into their historic habitat. except those involving Federal agencies, conservation partnerships) if the We therefore continue to find that the which would be required to ensure that benefits of exclusion outweigh the benefits of excluding these areas their activities do not destroy or benefits of designation, provided the outweigh the benefits of designating adversely modify designated critical exclusion will not result in the them as critical habitat. For more habitat. As discussed above, we do not extinction of the species. We have information on this exclusion, please anticipate that the adverse modification prepared an economic analysis that is refer to the proposed rule to designate prohibition (from critical habitat consistent with the ruling of the 10th critical habitat (June 3, 2003; 68 FR designation) will have any significant Circuit Court of Appeals in New Mexico 33234). We have concluded, after economic effects such that it will have Cattle Growers Association v. U.S. Fish careful analysis of the best available an annual economic effect of $100 and Wildlife Service, 248 F. 3d 1277 information including the economic million or more. The final rule follows (10th Cir. 2001) and that was available analysis, to exclude the 3 areas listed the requirements for designating critical for public review and comment during above and include the remaining 13 habitat required in the Act. the comment period for the proposed units that we have determined are rule. The final economic analysis is essential to the conservation of the Regulatory Flexibility Act (5 U.S.C. 601 available from our Web site at http:// species in this final designation of et seq.) cookeville.fws.gov. Since the critical critical habitat. The Tennessee River Under the Regulatory Flexibility Act habitat designation involves no Tribal below Wilson Dam was not proposed for (5 U.S.C. 601 et seq., as amended by the lands and no lands pertinent to national critical habitat because it is an Small Business Regulatory Enforcement security and includes no areas presently established NEP for the oyster mussel Fairness Act (SBREFA) of 1996),

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whenever an agency is required to compliance on the revenues/profit any Federal involvement; some kinds of publish a notice of rulemaking for any margins of small entities in determining activities are unlikely to have any proposed or final rule, it must prepare whether or not entities incur a Federal involvement and so will not be and make available for public comment ‘‘significant economic impact.’’ Only affected by critical habitat designation. a regulatory flexibility analysis that small entities that are expected to be Designation of critical habitat only describes the effects of the rule on small directly affected by the designation are affects activities conducted, funded, or entities (i.e., small businesses, small considered in this portion of the permitted by Federal agencies; non- organizations, and small government analysis. This approach is consistent Federal activities are not affected by the jurisdictions). However, no regulatory with several judicial opinions related to designation. Federal agencies are flexibility analysis is required if the the scope of the RFA (Mid-Tex Electric already required to consult with the head of the agency certifies that the rule Co-Op, Inc. v. FERC and American Services under section 7 of the Act on will not have a significant economic Trucking Associations, Inc. v. EPA). activities that they fund, permit, or impact on a substantial number of small The economic analysis identified implement that may affect the five entities. SBREFA amended the activities that are within, or will mussels. Regulatory Flexibility Act (RFA) to otherwise be affected by, section 7 of the Federal agencies must also consult require Federal agencies to provide a Act for the mussels. Third parties are with us if their activities may affect statement of the factual basis for not involved in several of the activities designated critical habitat. However, we certifying that the rule will not have a potentially affected by section 7 believe this will result in only minimal significant economic impact on a implementation for the mussels (i.e., additional regulatory burden on Federal substantial number of small entities. only the Action agency and the Service agencies or their applicants because SBREFA also amended the RFA to are involved in the consultation). Of the consultation would already be required require a certification statement. We are remaining activities potentially affected because of the presence of the listed hereby certifying that this rule will not by section 7 implementation for the mussel species. Consultations to avoid have a significant effect on a substantial mussels and involving a third party, the destruction or adverse modification number of small entities. many have no directly-regulated small of critical habitat would be incorporated According to the Small Business business or government involvement. into the existing consultation process Administration, small entities include Private entities are forecast to incur 15 and trigger only minimal additional small organizations, such as percent of the costs. State and local regulatory impacts beyond the duty to independent nonprofit organizations, governments are expected to incur 50 avoid jeopardizing the species. and small governmental jurisdictions, percent of the costs. Project Since the five mussels were listed including school boards and city and modification costs are associated with (1997), we have conducted nine formal town governments that serve fewer than road and bridge construction and consultations involving one or more of 50,000 residents, as well as small maintenance and dams/reservoirs. The these species. These formal businesses (13 CFR 121.201). Small costs associated with road and bridge consultations, which all involved businesses include manufacturing and construction and maintenance are Federal projects, included five bridge mining concerns with fewer than 500 expected to be borne directly by or replacements, two Federal land employees, wholesale trade entities passed on to the Federal government. management plans, an intra-agency with fewer than 100 employees, retail The costs associated with dams/ review of the Wilson Dam NEP and and service businesses with less than $5 reservoirs are expected to be borne by associated collecting permits, and an million in annual sales, general and municipal utilities and passed on to the intra-agency review of collection heavy construction businesses with less consumer. Thus, small entities should permits needed by researchers involved than $27.5 million in annual business, not be directly impacted by section 7 in endangered mussel propagation. special trade contractors doing less than implementation for these affected These nine consultations resulted in $11.5 million in annual business, and projects: road and bridge construction non-jeopardy biological opinions. agricultural businesses with annual and maintenance; agricultural activities; We also reviewed approximately 129 sales less than $750,000. To determine utilities construction and maintenance; informal consultations that have been if potential economic impacts to these activities in National Forests, National conducted since these five species were small entities are significant, we Parks, Wild and Scenic Rivers, and listed involving private businesses and consider the types of activities that National River and Recreation Areas; industries, counties, cities, towns, or might trigger regulatory impacts under coal mining; gravel dredging and municipalities. At least 15 of these were this rule, as well as the types of project excavation; oil and gas development; with entities that likely met the modifications that may result. power plants; dams/reservoirs; water definition of small entities. These The economic analysis determined quality activities; and conservation and informal consultations concerned whether this critical habitat designation recreation activities (see the economic activities such as excavation or fill, potentially affects a ‘‘substantial analysis for a detailed analysis of docking facilities, transmission lines, number’’ of small entities in counties affected projects). pipelines, mines, and road and utility supporting critical habitat areas. It also To determine if the rule would affect development authorized by various quantified the probable number of small a substantial number of small entities, Federal agencies, or review of NPEDS businesses that experience a ‘‘significant we considered the number of small permit applications to State water effect.’’ SBREFA does not explicitly entities affected within particular types quality agencies by developers, define either ‘‘substantial number’’ or of economic activities (e.g., housing municipalities, mines, businesses, and ‘‘significant economic impact.’’ development, grazing, oil and gas others. Informal consultations regarding Consequently, to assess whether a production, timber harvesting). We the mussels usually resulted in ‘‘substantial number’’ of small entities is applied the ‘‘substantial number’’ test recommendations to employ best affected by this designation, this individually to each industry to management practices for sediment analysis considers the relative number determine if certification is appropriate. control, relied on current State water of small entities likely to be impacted in In estimating the number of small quality standards for protection of water the area. Similarly, the analysis entities potentially affected, we also quality, and resulted in little to no considers the relative cost of considered whether their activities have modification of the proposed activities.

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In reviewing these past informal and an initial regulatory flexibility • Reductions in natural gas consultations and the activities involved analysis is not required. production in excess of 25 million Mcf in light of proposed critical habitat, we per year; Small Business Regulatory Enforcement • Reductions in electricity production do not believe the outcomes would have Fairness Act (5 U.S.C. 802(2)) been different in areas designated as in excess of 1 billion kilowatts per year critical habitat. Under the Small Business Regulatory or in excess of 500 megawatts of Enforcement Fairness Act (5 U.S.C. 801 installed capacity; In summary, we have considered • whether this designation would result et seq.), this rule is not a major rule. Our Increases in energy use required by the regulatory action that exceed the in a significant economic impact on a detailed assessment of the economic thresholds above; substantial number of small entities and effects of this designation is described • Increases in the cost of energy find that it would not. Informal in the economic analysis. Based on the production in excess of one percent; consultations on approximately 129 effects identified in the economic • Increases in the cost of energy activities in the Tennessee and analysis, we believe that this rule will distribution in excess of one percent; or Cumberland River Basins, by businesses not have an effect on the economy of $100 million or more, will not cause a • Other similarly adverse outcomes. and governmental jurisdictions that major increase in costs or prices for Five of these criteria are relevant to might affect these species and their consumers, and will not have significant this analysis: (1) Potential reductions in habitats, resulted in little to no adverse effects on competition, crude oil supply; (2) potential economic effect on small entities. In the employment, investment, productivity, reductions in coal production; (3) seven years since the five mussels were innovation, or the ability of U.S.-based potential reductions in natural gas listed, there have been no formal enterprises to compete with foreign- production; (4) potential increases in consultations regarding actions by small based enterprises. Please refer to the the cost of energy production; and (5) entities. This does not meet the final economic analysis for a discussion potential increases in the cost of energy definition of ‘‘substantial.’’ In addition, of the effects of this determination. distribution. The following analysis we see no indication that the types of determines whether these five relevant activities we review under section 7 of Executive Order 13211 criteria are likely to experience ‘‘a the Act will change significantly in the On May 18, 2001, the President issued significant adverse effect’’ as a result of future. There would be no additional Executive Order 13211 on regulations section 7 implementation for the section 7 consultations resulting from that significantly affect energy supply, mussels. this rule as all 13 of the critical habitat distribution, and use. Executive Order units are currently occupied by one or Evaluation of Whether Section 7 13211 requires agencies to prepare more listed mussels, so the consultation Implementation Will Result in Statements of Energy Effects when requirement has already been triggered. Reductions in Crude Oil Supply, Coal undertaking certain actions. The Office Future consultations are not likely to Production, and Natural Gas Production of Management and Budget has affect a substantial number of small provided guidance for implementing Section 7 consultations with respect entities. This rule would result in major this executive order that outlines nine to oil, gas, and coal operations are project modifications only when outcomes that may constitute ‘‘a anticipated to occur within four proposed activities with a Federal nexus significant adverse effect’’ when Tennessee counties containing proposed would destroy or adversely modify compared without the regulatory action critical habitat for the mussels; critical habitat. While this may occur, it under consideration: Cumberland, Fentress, Morgan, and is not expected to occur frequently • Scott Counties. Exhibit C–1, C–2, and enough to affect a substantial number of Reductions in crude oil supply in C–3 provide an analysis of whether the small entities. Therefore, we are excess of 10,000 barrels per day (bbls); energy industry, specifically, crude oil, certifying that the designation of critical • Reductions in fuel production in natural gas, and coal producers, are habitat for these five mussels will not excess of 4,000 bbls per day; likely to experience ‘‘a significant have a significant economic impact on • Reductions in coal production in adverse effect’’ as a result of section 7 a substantial number of small entities, excess of 5 million tons per year; implementation for the mussels.

TABLE 5.—HISTORIC CRUDE OIL PRODUCTION (FENTRESS, MORGAN, AND SCOTT COUNTIES, TENNESSEE, AND MCCREARY COUNTY, KENTUCKY) [bbls (barrels)]

McCreary Fentress Morgan Scott Total Year County County County County Total bbls bbls/day

1997 ...... 1,457 29,193 65,585 69,198 165,433 453 1998 ...... 2,365 25,973 50,870 60,340 139,548 382 1999 ...... 3,850 26,603 55,275 63,420 149,148 409 2000 ...... 3,998 14,114 35,259 49,758 103,129 283 2001 ...... 5,702 31,920 45,147 48,683 131,452 360 Average ...... 3,475 25,561 50,427 58,280 137,742 377

As Table 5 illustrates, the Tennessee abandonment of future development of Kentucky and Tennessee together and Kentucky counties containing 35 to 50 oil wells within McCreary, produce less oil than the 10,000 bbls proposed critical habitat collectively Fentress, Morgan or Scott Counties, it is threshold (Kentucky produced 7,671 produce less than 500 bbls of crude oil unlikely that crude oil supply will drop bbls per day in 2001 and Tennessee on a daily basis. Therefore, should by more than the threshold of 10,000 produced 1,059 bbls per day). section 7 implementation cause the bbls per day. In fact, the entire States of

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As Table 6 illustrates, the Tennessee Therefore, should section 7 unlikely that natural gas production will and Kentucky counties containing implementation cause the abandonment decrease by more than the threshold of proposed critical habitat collectively of future development of 35 to 50 25 million Mcf per year. produce less than 0.8 million Mcf of natural gas wells within McCreary, natural gas on an annual basis. Fentress, Morgan or Scott counties, it is

TABLE 6.—HISTORIC NATURAL GAS PRODUCTION (FENTRESS, MORGAN, AND SCOTT COUNTIES, TENNESSEE, AND MCCREARY COUNTY, KENTUCKY) [Mcf (thousand cubic feet)]

McCreary Fentress Morgan Scott Total mil- Year County County County County Total Mcf lion Mcf

1997 ...... 22,340 64,401 301,328 331,072 719,141 0.7 1998 ...... 43,263 75,408 289,483 314,213 722,367 0.7 1999 ...... 139,950 62,494 298,609 335,990 837,043 0.8 2000 ...... 217,974 55,018 277,140 307,739 857,871 0.9 2001 ...... 229,874 46,422 280,191 245,831 802,318 0.8 Average ...... 130,680 60,749 289,350 306,969 787,748 0.8

As Table 7 illustrates, the Tennessee abandonment of future development of entire State of Tennessee produces less counties containing proposed critical any two mines within Cumberland, coal than the 5 million ton threshold habitat collectively produce Fentress, Morgan or Scott County, it is (the State produced 3.3 million tons in approximately 0.4 million tons of coal unlikely that coal production will 2001). on an annual basis. Therefore, should decrease by more than the threshold of section 7 implementation cause the 5 million tons per year. In fact, the

TABLE 7.—HISTORIC COAL PRODUCTION (CUMBERLAND, FENTRESS, MORGAN, AND SCOTT COUNTIES, TENNESSEE) [thousand short tons]

Total thou- Year Cumberland Fentress Morgan Scott sand short Total tons County County County County tons

1997 ...... 0 288 56 108 452 452,000 1998 ...... 86 211 11 47 355 355,000 1999 ...... 256 3 8 168 435 435,000 2000 ...... 265 12 31 59 367 367,000 2001 ...... 268 83 0 22 373 373,000 Average ...... 175 119 21 81 396 396,400

Evaluation of Whether Section 7 hydroelectricity. The average annual decreased hydropower generation is Implementation Will Result in a generation at these facilities could be up substituted with the more expensive, Reduction in Electricity Production in to 3.6 million KWhr. The impact but most common, coal production. Excess of 500 Megawatts of Installed threshold for installed capacity is 500 Coal production has production costs of Capacity MW (500,000 KW) and the threshold for $0.02 per kilowatt-hour, $0.01 greater Installed capacity is ‘‘the total annual generation is one billion KWhr. than the cost of hydropower production. manufacturer-rated capacity for The impact to hydropower production Under this scenario, $36,000 in equipment such as turbines, generators, is therefore not expected to surpass the additional production costs will be condensers, transformers, and other threshold of 500 MW. incurred, an increase in production system components’’ and represents the Evaluation of Whether Section 7 costs of approximately 0.002 percent. maximum rate of flow of energy from Implementation Will Result in an This analysis therefore does not the plant or the maximum output of the Increase in the Cost of Energy anticipate an increase in the cost of plant. The Old Columbia dam has 0.3 Production in Excess of One Percent energy production in excess of one megawatts (MW) of installed capacity percent. Table 8 summarizes the cost of and in five years may have 0.6 MW of In order to determine whether energy production in Tennessee installed capacity. The average annual implementation of section 7 of the Act according to two scenarios, Scenario I in generation of the Dam is 1,994,400 will result in an increase in the cost of which there is no change due to critical KWhr and may increase to 3,555,000 energy production, this analysis habitat, and Scenario II in which the KWhr in the next five years. considers the maximum possible lost power generation due to the The total installed capacity of the Old increase in energy production costs. designation of critical habitat is Columbia Dam is 0.6 MW (600 KW) of Under the high cost scenario, all substituted with coal production.

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TABLE 8.—AVERAGE PRODUCTION AND ASSOCIATED COSTS FOR ENERGY PRODUCERS IN TENNESSEE

Weighted average Production Fuel type Net generation of total costs Total costs (1000 KWhrs) production ($/KWhr) (1,000 dollars) (percent)

SCENARIO I

Hydro ...... 5,665,000 5.91 0.01 56,650 Gas ...... 648,000 0.68 0.04 25,920 Coal ...... 62,349,000 65.00 0.02 1,246,980 Petroleum ...... 549,000 0.57 0.02 10,980 Nuclear ...... 25,825,000 26.92 0.02 516,500

Total ...... 95,191,800 99.08 ...... 1,857,030

SCENARIO II

Hydro ...... 5,661,445 5.90 0.01 56,614 Gas ...... 648,000 0.68 0.04 25,920 Coal ...... 62,352,555 65.01 0.02 1,247,051 Petroleum ...... 549,000 0.57 0.02 10,980 Nuclear ...... 25,825,000 26.92 0.02 516,500

Total ...... 95,191,800 99.08 ...... 1,857,065 (Note: totals may not sum because of rounding.)

Evaluation of Whether Section 7 an enforceable duty upon State, local, participation in a voluntary Federal Implementation Will Result in an tribal governments, or the private sector program.’’ Increase in the Cost of Energy and includes both ‘‘Federal The designation of critical habitat Distribution in Excess of One Percent intergovernmental mandates’’ and does not impose a legally binding duty TVA anticipates 38 informal ‘‘Federal private sector mandates.’’ on non-Federal government entities or consultations on transmission line These terms are defined in 2 U.S.C. private parties. Under the Act, the only construction and maintenance with 658(5)–(7). ‘‘Federal intergovernmental regulatory effect is that Federal agencies respect to the mussels during the next mandate’’ includes a regulation that must ensure that their actions do not ten years. The total administrative costs ‘‘would impose an enforceable duty destroy or adversely modify critical incurred by TVA as a result of section upon State, local, or tribal governments’’ habitat under section 7. While non- 7 implementation are $35,000, while with two exceptions. It excludes ‘‘a Federal entities that receive Federal costs associated with project condition of Federal assistance.’’ It also funding, assistance, or permits, or that modifications are anticipated to total excludes ‘‘a duty arising from otherwise require approval or $38,000. In 2002, total operating participation in a voluntary Federal authorization from a Federal agency for expenses for TVA were $5.2 billion. program,’’ unless the regulation ‘‘relates an action, may be indirectly impacted Thus, the total costs incurred by TVA as to a then-existing Federal program by the designation of critical habitat, the a result of section 7 over ten years under which $500,000,000 or more is legally binding duty to avoid ($73,000) are less than one ten- provided annually to State, local, and destruction or adverse modification of critical habitat rests squarely on the thousandth of one percent of TVAs tribal governments under entitlement Federal agency. Furthermore, to the operating expenses. The impact to authority,’’ if the provision would extent that non-Federal entities are energy distribution is therefore not ‘‘increase the stringency of conditions of indirectly impacted because they anticipated to exceed the one percent assistance’’ or ‘‘place caps upon, or threshold. receive Federal assistance or participate otherwise decrease, the Federal in a voluntary Federal aid program, the Based on the above analysis, this rule Government’s responsibility to provide is not a significant regulatory action Unfunded Mandates Reform Act would funding,’’ and the State, local, or tribal not apply; nor would critical habitat under Executive Order 12866, and it is governments ‘‘lack authority’’ to adjust not expected to significantly affect shift the costs of the large entitlement accordingly. At the time of enactment, energy supplies, distribution, or use. programs listed above on to State these entitlement programs were: Therefore, this action is not a significant governments. Medicaid; AFDC work programs; Child energy action, and no Statement of (b) We do not believe that this rule Energy Effects is required. Nutrition; Food Stamps; Social Services will significantly or uniquely affect Block Grants; Vocational Rehabilitation small governments. This determination Unfunded Mandates Reform Act (2 State Grants; Foster Care, Adoption is based on the economic analysis U.S.C. 1501 et seq.) Assistance, and Independent Living; conducted for this designation of critical In accordance with the Unfunded Family Support Welfare Services; and habitat for these five mussel species. As Mandates Reform Act (2 U.S.C. 1501 et Child Support Enforcement. ‘‘Federal such, a Small Government Agency Plan seq.): private sector mandate’’ includes a is not required. (a) This rule will not produce a regulation that ‘‘would impose an Takings Federal mandate. In general, a Federal enforceable duty upon the private mandate is a provision in legislation, sector, except (i) a condition of Federal In accordance with Executive Order statute or regulation that would impose assistance or (ii) a duty arising from 12630 (‘‘Government Actions and

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Interference with Constitutionally determined that the rule does not Interior’s manual at 512 DM 2, we Protected Private Property Rights’’), we unduly burden the judicial system and readily acknowledge our responsibility have analyzed the potential takings meets the requirements of sections 3(a) to communicate meaningfully with implications of designating and 3(b)(2) of the Order. We designate recognized Federal Tribes on a approximately 885 rkm (550 rmi) in 13 critical habitat in accordance with the government-to-government basis. We river and stream reaches in Alabama, provisions of the Act. The rule uses are not aware of any Tribal lands Mississippi, Tennessee, Kentucky, and standard property descriptions and essential for the conservation of the five Virginia as critical habitat for these five identifies the primary constituent mussels. Therefore, the critical habitat mussel species in a takings implication elements within the designated areas to for the five mussels does not contain assessment. The takings implications assist the public in understanding the any Tribal lands or lands that we have assessment concludes that this final habitat needs of these 5 mussels. identified as impacting Tribal trust designation of critical habitat does not resources. pose significant takings implications. Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) References Cited Federalism This rule does not contain new or A complete list of all references cited In accordance with Executive Order revised collections of information that in this final rule is available upon 13132, this rule does not have require OMB approval under the request from the Tennessee Field Office significant Federalism effects. A Paperwork Reduction Act. Information (see ADDRESSES section). Federalism assessment is not required. collections associated with certain In keeping with Department of the permits pursuant to the Endangered Author Interior policies, we requested Species Act are covered by an existing The author of this notice is the information from, and coordinated OMB approval, and are assigned Tennessee Field Office (see ADDRESSES development of this critical habitat clearance No. 1018–0094, with an section). designation with, appropriate State expiration date of July 31, 2004. List of Subjects in 50 CFR Part 17 resource agencies in Alabama, Detailed information for Act Mississippi, Tennessee, Kentucky, and documentation appears at 50 CFR 17. Endangered and threatened species, Virginia. The impact of the designation An agency may not conduct or sponsor, Exports, Imports, Reporting and on State and local governments and and a person is not required to respond recordkeeping requirements, their activities was fully considered in to, a collection of information unless it Transportation. the economic analysis. The designation displays a currently valid OMB control Final Regulation Promulgation of critical habitat for these five species number. imposes no additional restrictions to I For the reasons outlined in the National Environmental Policy Act those currently in place, and, therefore, preamble, we amend part 17, subchapter has little additional impact on State and We have determined that we do not B of chapter I, title 50 of the Code of local governments and their activities. need to prepare an Environmental Federal Regulations, as follows: The designation may provide some Assessment or an Environmental Impact benefit to these governments in that the Statement as defined by the National PART 17—[AMENDED] areas essential to the conservation of the Environmental Policy Act of 1969 in I species are more clearly defined, and connection with regulations adopted 1. The authority citation for part 17 the primary constituent elements of the pursuant to section 4(a) of the Act. We continues to read as follows: habitat necessary to the conservation of published a notice outlining our reasons Authority: 16 U.S.C. 1361–1407; 16 U.S.C. the species are specifically identified. for this determination in the Federal 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– While making this definition and Register on October 25, 1983 (48 FR 625, 100 Stat. 3500; unless otherwise noted. identification does not alter where and 49244). I 2. In § 17.11(h), revise each of the what federally sponsored activities may Government-to-Government entries here listed, in alphabetical order occur, it may assist these local Relationship With Tribes under ‘‘CLAMS’’ in the List of governments in long-range planning, Endangered and Threatened Wildlife, so rather than waiting for case-by-case In accordance with the President’s that they read as follows: section 7 consultations to occur. memorandum of April 29, 1994, ‘‘Government-to-Government Relations § 17.11 Endangered and threatened Civil Justice Reform with Native American Tribal wildlife. In accordance with Executive Order Governments’’ (59 FR 22951), Executive * * * * * 12988, the Office of the Solicitor has Order 13175, and the Department of (h) * * *

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

******* CLAMS

******* Bean, Purple ...... Villosa perpurpurea U.S.A. (TN, VA) ...... NA ...... E 602 17.95 (f) NA

******* Combshell, Epioblasma U.S.A. (AL, KY, MS, NA ...... E 602 17.95 (f) NA Cumberlandian. brevidens. TN, VA).

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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

******* Elktoe, Cumberland Alasmidonta U.S.A. (KY, TN) ...... NA ...... E 602 17.95 (f) NA atropurpurea.

******* Mussel, oyster ...... Epioblasma U.S.A. (AL, GA, KY, NA ...... E 602 17.95 (f) NA capsaeformis. MS, NC, TN, VA).

******* Rabbitsfoot, rough ... Quadrula cylindrica U.S.A. (TN, VA) ...... NA ...... E 602 17.95 (f) NA strigillata.

*******

I 3. In § 17.95, at the end of paragraph Cumberlandian combshell (Epioblasma (iii) Stable substrates consisting of (f), add an entry for five Cumberland and brevidens), Cumberland elktoe mud, sand, gravel, and/or cobble/ Tennessee River Basin mussels species (Alasmidonta atropurpurea), oyster boulder, with low amounts of fine to read as follows: mussel (Epioblasma capsaeformis), and sediments or attached filamentous algae; rough rabbitsfoot (Quadrula cylindrica (iv) Water quality (including § 17.95 Critical habitat—fish and wildlife. strigillata) are those habitat components temperature, turbidity, oxygen content, * * * * * that support feeding, sheltering, and other characteristics) necessary for (f) Clams and snails. reproduction, and physical features for the normal behavior, growth, and * * * * * maintaining the natural processes that survival of all life stages of the five Five Tennessee and Cumberland River support these habitat components. The mussels and their host fish; and Basin mussels species: Purple bean primary constituent elements include: (v) Fish hosts with adequate living, (Villosa perpurpurea), Cumberlandian foraging, and spawning areas for them. (i) Permanent, flowing stream reaches combshell (Epioblasma brevidens), (2) Critical habitat unit descriptions Cumberland elktoe (Alasmidonta with a flow regime (i.e, the magnitude, and maps. atropurpurea), oyster mussel frequency, duration, and seasonality of (i) Index map. The index map (Epioblasma capsaeformis), and rough discharge over time) necessary for showing critical habitat units in the rabbitsfoot (Quadrula cylindrica normal behavior, growth, and survival States of Mississippi, Alabama, strigillata). of all life stages of the five mussels and Tennessee, Kentucky, and Virginia for (1) The primary constituent elements their host fish; the five Tennessee and Cumberland essential for the conservation of the (ii) Geomorphically stable stream and River Basin mussels follows: purple bean (Villosa perpurpurea), river channels and banks; BILLING CODE 4310–55–P

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(ii) Table of protected species and TABLE OF FIVE TENNESSEE AND CUM- (iii) Unit 1. Duck River, Marshall and critical habitat units. A table listing the BERLAND RIVER BASIN MUSSELS, Maury Counties, Tennessee. This is a protected species, their respective THEIR CRITICAL HABITAT UNITS, AND critical habitat unit for the oyster mussel critical habitat units, and the States that STATES CONTAINING THOSE CRIT- and Cumberlandian combshell. contain those habitat units follows. ICAL HABITAT UNITS—Continued (A) Unit 1 includes the main stem of Detailed critical habitat unit the Duck River from rkm 214 (rmi 133) descriptions and maps appear below the Species Critical habitat States (0.3 rkm (0.2 rmi) upstream of the First table. units Street Bridge) (¥87.03 longitude, 35.63 Cumberlandian Units 1, 2, 4, 5, AL, KY, latitude) in the City of Columbia, Maury ABLE OF IVE ENNESSEE AND UM T F T C - combshell 6, 9, 10. MS, County, Tennessee, upstream to Lillard BERLAND RIVER BASIN MUSSELS, (Epioblasma TN, VA Mill Dam at rkm 288 (rmi 179) (¥86.78 THEIR CRITICAL HABITAT UNITS, AND brevidens). longitude, 35.58 latitude), Marshall STATES CONTAINING THOSE CRIT- Cumberland Units 8, 9, 11, KY, TN County, Tennessee. ICAL HABITAT UNITS elktoe 12, 13. (Alasmidonta (B) Map of Unit 1 follows: atropurpurea). Critical habitat oyster mussel Units 1, 2, 4, 5, AL, KY, Species units States (Epioblasma 6, 9,10. MS, capsaeformis). TN, VA purple bean Units 3, 4, 5, 7 TN, VA rough Units 4, 5 ...... TN, VA (Villosa rabbitsfoot perpurpurea). (Quadrula cylindrica strigillata).

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(iv) Unit 2. Bear Creek, Colbert (A) Unit 2 consists of the main stem Tishomingo County, Mississippi, ending County, Alabama, and Tishomingo of Bear Creek from the backwaters of at the Mississippi/Alabama State line. County, Mississippi. This is a critical Pickwick Lake at rkm 37 (rmi 23) (-88.09 (B) Map of Unit 2 follows: habitat unit for the oyster mussel and longitude, 34.81 latitude), Colbert Cumberlandian combshell. County, Alabama, upstream through

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(v) Unit 3. Obed River, Cumberland (A) Unit 3 includes the Obed River upstream to Adams Bridge, Cumberland and Morgan Counties, Tennessee. This main stem from its confluence with the County, Tennessee (-84.95 longitude, is a critical habitat unit for the purple Emory River (-84.69 longitude, 36.09 36.07 latitude). bean. latitude), Morgan County, Tennessee, (B) Map of Unit 3 follows:

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(vi) Unit 4. Powell River, Claiborne Cumberlandian combshell, oyster (-83.63 longitude, 36.53 latitude), and Hancock Counties, Tennessee, and mussel, and rough rabbitsfoot. upstream to river mile 159 (upstream of Lee County, Virginia. This is a critical (A) Unit 4 includes the main stem of Rock Island in the vicinity of Pughs) Lee habitat unit for the purple bean, the Powell River from the U.S. 25E County, Virginia. bridge in Claiborne County, Tennessee (B) Map of Unit 4 follows:

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(vii) Unit 5. Clinch River, Hancock (A) Unit 5 includes the Clinch River River (¥82.74 longitude, 36.67 latitude) County, Tennessee, and Scott, Russell, main stem from rkm 255 (rmi 159) upstream to Virginia State Route 72 and Tazewell Counties, Virginia; Copper (¥83.36 longitude, 36.43 latitude) (¥82.56 longitude, 36.68 latitude); and Creek, Scott County, Virginia; and immediately below Grissom Island, Indian Creek from its confluence with Indian Creek, Tazewell County, Hancock County, Tennessee, upstream the Clinch River upstream to the fourth Virginia. This is a critical habitat unit to its confluence with Indian Creek in Norfolk Southern Railroad crossing at for the purple bean, Cumberlandian Cedar Bluff, Tazewell County, Virginia Van Dyke, Tazewell County, Virginia ¥ combshell, oyster mussel, and rough ( 81.80 longitude, 37.10 latitude); (¥81.77 longitude, 37.14 latitude). rabbitsfoot. Copper Creek in Scott County, Virginia, from its confluence with the Clinch (B) Map of Unit 5 follows:

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(viii) Unit 6. Nolichucky River, (A) Unit 6 consists of the main stem Susong Bridge (¥83.20 longitude, 36.14 Hamblen and Cocke Counties, of the Nolichucky River from rkm 14 latitude) in Hamblen and Cocke Tennessee. This is a critical habitat unit (rmi 9) (¥83.18 longitude, 36.18 Counties, Tennessee. for the Cumberlandian combshell and latitude) (approximately 0.6 rkm (0.4 (B) Map of Unit 6 follows: oyster mussel. rmi) upstream of Enka Dam) upstream to

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(ix) Unit 7. Beech Creek, Hawkins (A) Unit 7 includes the Beech Creek Tennessee) upstream to the dismantled County, Tennessee. This is a critical main stem from rkm 4 (rmi 2) (¥82.92 railroad bridge at rkm 27 (rmi 16) habitat unit for the purple bean. longitude, 36.40 latitude) of Beech (¥82.77 longitude, 36.40 latitude). Creek (in the vicinity of Slide, (B) Map of Unit 7 follows:

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(x) Unit 8. Rock Creek, McCreary White Oak Creek (¥84.59 longitude, longitude, 36.65 latitude), McCreary County, Kentucky. This is a critical 36.71 latitude), upstream to the low- County, Kentucky. habitat unit for the Cumberland elktoe. water crossing at rkm 25.6 (rmi 15.9) (B) Map of Unit 8 follows: (A) Unit 8 includes the main stem of approximately 2.6 km (1.6 mi) Rock Creek from its confluence with southwest of Bell Farm (¥84.69

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(xi) Unit 9. Big South Fork of the Oak Creek from its confluence with the Tennessee; Bone Camp Creek from its Cumberland River and its tributaries, Big South Fork upstream to Panther confluence with White Oak Creek Fentress, Morgan, and Scott Counties, Branch (¥84.75 longitude, 36.42 upstream to Massengale Branch (¥84.71 Tennessee, and McCreary County, latitude), Fentress County, Tennessee; longitude, 36.28 latitude), Morgan Kentucky. This is a critical habitat unit New River from its confluence with County, Tennessee; Crooked Creek from for the Cumberlandian combshell, Clear Fork upstream to U.S. Highway 27 its confluence with Clear Fork upstream ¥ Cumberland elktoe, and oyster mussel. ( 84.55 longitude, 36.38 latitude), Scott to Buttermilk Branch (¥84.92 (A) Unit 9 consists of the Big South County, Tennessee; Clear Fork from its longitude, 36.36 latitude), Fentress Fork of the Cumberland River main confluence with the New River County, Tennessee; and North Prong stem from its confluence with Laurel upstream to its confluence with North Clear Fork from its confluence with Crossing Branch (¥84.54 longitude, Prong Clear Fork, Morgan and Fentress Clear Fork upstream to Shoal Creek 36.64 latitude), McCreary County, Counties, Tennessee; White Oak Creek (¥84.97 longitude, 36.26 latitude), Kentucky, upstream to its confluence from its confluence with Clear Fork Fentress County, Tennessee. with the New River and Clear Fork, upstream to its confluence with Bone Scott County, Tennessee; North White Camp Creek, Morgan County, (B) Maps of Unit 9 follow:

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(xii) Unit 10. Buck Creek, Pulaski (A) Unit 10 includes the Buck Creek Bridge (¥84.56 longitude, 37.32 County, Kentucky. This is a critical main stem from the State Road 192 latitude) in Pulaski County, Kentucky. ¥ habitat unit for the Cumberlandian Bridge ( 84.43 longitude, 37.06 (B) Map of Unit 10 follows: combshell and oyster mussel. latitude) upstream to the State Road 328

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(xiii) Unit 11. Sinking Creek, Laurel (A) Unit 11 includes the main stem of confluence with Laurel Branch (¥84.17 County, Kentucky. This is a critical Sinking Creek from its confluence with longitude, 37.09 latitude) in Laurel habitat unit for the Cumberland elktoe. the Rockcastle River (¥84.28 longitude, County, Kentucky. 37.10 latitude) upstream to its (B) Map of Unit 11 follows:

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(xiv) Unit 12. Marsh Creek, McCreary (A) Unit 12 includes the Marsh Creek 92 Bridge (¥84.35 longitude, 36.66 County, Kentucky. This is a critical main stem from its confluence with the latitude) in McCreary County, Kentucky. ¥ habitat unit for the Cumberland elktoe. Cumberland River ( 84.35 longitude, (B) Map of Unit 12 follows: 36.78 latitude) upstream to State Road

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(xv) Unit 13. Laurel Fork, Claiborne from the boundary between Claiborne rkm (2 rmi) upstream of the Kentucky/ County, Tennessee, and Whitley and Campbell Counties (¥84.00 Tennessee State line (¥84.00 longitude, County, Kentucky. This is a critical longitude, 36.58 latitude) upstream to 36.60 latitude). habitat unit for the Cumberland elktoe. rkm 11 (rmi 6.85) in Whitley County, (B) Map of Unit 13 follows: (A) Unit 13 includes the main stem of Kentucky. The upstream terminus is 3 the Laurel Fork of the Cumberland River

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* * * * * Dated: August 17, 2004. Craig Manson, Assistant Secretary, Fish, Wildlife, and Parks. [FR Doc. 04–19340 Filed 8–30–04; 8:45 am] BILLING CODE 4310–55–C

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