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Designation of Critical Habitat for Five Endangered Mussels in the Tennessee and Cumberland River Basins; Final Rule

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Designation of Critical Habitat for Five Endangered Mussels in the Tennessee and Cumberland River Basins; Final Rule Tuesday, August 31, 2004 Part II Department of the Interior Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Five Endangered Mussels in the Tennessee and Cumberland River Basins; Final Rule VerDate jul<14>2003 15:55 Aug 30, 2004 Jkt 203001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\31AUR2.SGM 31AUR2 53136 Federal Register / Vol. 69, No. 168 / Tuesday, August 31, 2004 / Rules and Regulations 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 species. 50 CFR Part 17 Jackson, MS 39213 ((601) 965–4900); We note, however, that a recent 9th RIN 1018–AI76 Southwestern Virginia 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 elktoe (Alasmidonta atropurpurea), statutory prescription into a process that which now consumes nearly the entire oyster mussel (Epioblasma 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 (Villosa 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); Alabama 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); Kentucky Field Office, the section 10 incidental take permit requesting and responding to public VerDate jul<14>2003 15:55 Aug 30, 2004 Jkt 203001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\31AUR2.SGM 31AUR2 Federal Register / Vol. 69, No. 168 / Tuesday, August 31, 2004 / Rules and Regulations 53137 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 wounded darter Background upstream from the hypothesized (Etheostoma vulneratum), redline darter This final rule addresses five mussels original location of Cumberland Falls (E. rufilineatum), bluebreast darter (E. in the family Unionidae that are near Burnside, Pulaski County, camurum), dusky darter (Percina historically native to portions of the Kentucky (Cicerello and Laudermilk sciera), banded sculpin (Cottus ‘‘Cumberlandian’’ Region of the 2001). This species has apparently been carolinae), black sculpin (C. baileyi), Tennessee and Cumberland River extirpated from the main stem of the and mottled sculpin (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
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