Federal Register, Volume 62 Issue 7 (Friday, January 10, 1997)

[Federal Register Volume 62, Number 7 (Friday, January 10, 1997)]
[Rules and Regulations]
[Pages 1647-1658]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-565]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC64

Endangered and Threatened Wildlife and Plants; Determination of
Endangered Status for the Cumberland Elktoe, Oyster Mussel,
Cumberlandian Combshell, Purple Bean, and Rough Rabbitsfoot

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The Fish and Wildlife Service (Service) determines endangered
status for five freshwater mussels--Cumberland elktoe (Alasmidonta
atropurpurea), oyster mussel (Epioblasma capsaeformis), Cumberlandian
combshell (Epioblasma brevidens), purple bean (Villosa perpurpurea),
and rough rabbitsfoot (Quadrula cylindrica strigillata)--under the
Endangered Species Act of 1973, as amended (Act). All five species have
undergone significant reductions in range and numbers. They now exist
as relatively small, isolated populations. The Cumberland elktoe exists
in very localized portions of the Cumberland River system in Kentucky
and Tennessee. The oyster mussel and Cumberlandian combshell persist at
extremely low numbers in portions of the Cumberland and Tennessee river
basins in Kentucky, Tennessee, and Virginia. The purple bean and rough
rabbitsfoot currently survive in a few river reaches in the upper
Tennessee River system in Tennessee and Virginia. These species were
eliminated from much of their historic range by impoundments.
Presently, these species and their habitats are being impacted by
deteriorated water quality, primarily resulting from poor land-use
practices. Because the species have such restricted ranges, they are
vulnerable to toxic chemical spills.

DATES: Effective February 10, 1997.

ADDRESSES: The complete administrative file for this rule is available
for inspection, by appointment, during normal business hours at the
U.S. Fish and Wildlife Service, Asheville Field Office, 160 Zillicoa
Street, Asheville, North Carolina 28801.

FOR FURTHER INFORMATION CONTACT: Mr. Richard G. Biggins at the above
address, or telephone 704/258-3939, Ext. 228.

SUPPLEMENTARY INFORMATION:

Background

Cumberland elktoe (Alasmidonta atropurpurea)
The Cumberland elktoe, described by Rafinesque (1831), has a thin
but not fragile shell. The shell's surface is smooth, somewhat shiny,
and covered with greenish rays. Young specimens have a yellowish brown
shell, and the shells of adults are generally black. The inside of the
shell is shiny with a white, bluish white, or sometimes peach or salmon
color (see Clarke (1981) for a

[[Page 1648]]

more complete description of the species).
The Cumberland elktoe is endemic to the Cumberland River system in
Tennessee and Kentucky and is considered endangered in the State of
Kentucky (Kentucky State Nature Preserves Commission (KSNPC) 1991).
Historic records exist from the Cumberland River and from its
tributaries entering from the south between the Big South Fork
Cumberland River upstream to Cumberland Falls. Specimens have also been
taken from Marsh Creek above Cumberland Falls. Old records of a related
species, Alasmidonta marginata, exist from other creeks above
Cumberland Falls; and there is speculation that these specimens were
probably the Cumberland elktoe (Gordon 1991). Because the area above
the falls has been severely impacted by coal mining, any populations of
A. atropurpurea that might have existed there were likely lost (Gordon
1991). A record of one fresh dead specimen exists from the Collins
River, Grundy County, Tennessee. However, extensive searches of the
collection site and other sites in the Collins River and adjacent
rivers have failed to find another specimen. If the species did exist
in the Collins River, it has likely been extirpated.
Presently, three populations of the Cumberland elktoe are known to
persist. The species survives in the middle sections of Rock Creek,
McCreary County, Kentucky; the upper portions of the Big South Fork
Cumberland River basin in McCreary County, Kentucky; and Scott,
Fentress, and Morgan counties, Tennessee; and in Marsh Creek, McCreary
County, Kentucky (Gordon 1991). Marsh Creek likely contains the best
surviving elktoe population (Robert McCance, KSNPC, in litt., 1994).
Any Cumberland elktoe populations that may have existed in the main
stem of the Cumberland River were likely lost when Wolf Creek Dam was
completed. Other tributary populations were likely lost due to the
impacts of coal mining, pollution, and spills from oil wells. The upper
Big South Fork basin population is threatened by coal mining runoff and
could also be threatened by impoundments. The Marsh Creek population
has been adversely affected and is still threatened by potential spills
from oil wells. The Rock Creek population could be threatened by
logging. All three populations, especially Rock Creek and Marsh Creek,
are restricted to such short stream reaches that they could be
eliminated by naturally occurring events such as toxic chemical spills.
Oyster mussel (Epioblasma capsaeformis)
The oyster mussel (Lea 1834) has a dull to sub-shiny yellowish- to
green-colored shell with numerous narrow dark green rays. The shells of
females are slightly inflated and quite thin towards the shell's
posterior margin. The inside of the shell is whitish to bluish white in
color (see Johnson (1978) for a more complete description of the
species). The species is considered endangered in the States of
Kentucky (KSNPC 1991) and Virginia (Neves 1991; Sue Bruenderman,
Virginia Department of Game and Inland Fisheries (VDGIF), in litt.,
1992).
This species historically occurred throughout much of the
Cumberlandian region of the Tennessee and Cumberland river drainages in
Alabama, Kentucky, Tennessee, and Virginia (Gordon 1991), and Ortmann
(1918) considered the species to be very abundant in the upper
Tennessee River drainage.
Currently, within the Cumberland River, the oyster mussel survives
as a very rare component of the benthic community in Buck Creek,
Pulaski County, Kentucky; and it still survives in a few miles of the
Big South Fork Cumberland River, McCreary County, Kentucky, and Scott
County, Tennessee (Bakaletz 1991; McCance, in litt., 1994). Within the
Tennessee River system, only small populations survive at a few sites
in the Powell River, Lee County, Virginia; and Hancock and Claiborne
counties, Tennessee; in the Clinch River system, Scott County,
Virginia, and Hancock County, Tennessee; Copper Creek (a Clinch River
tributary), Scott County, Virginia; and Duck River, Marshall County,
Tennessee. Although not seen in recent years, the species may still
persist at extremely low numbers in the lower Nolichucky river, Cocke
and Hamblem counties, Tennessee, and in the Little Pigeon River, Sevier
County, Tennessee (Gordon 1991).
Much of the oyster mussel's historic range has been impounded by
the Tennessee Valley Authority (TVA) and the U.S. Army Corps of
Engineers (Corps). Other populations were lost due to various forms of
pollution and siltation. The present populations are threatened by the
adverse impacts of coal mining, poor land-use practices, and pollution,
primarily from nonpoint sources. The Duck River population could be
lost if the proposed Columbia Dam on the Duck River at Columbia,
Tennessee, is completed as presently proposed. All the known
populations are small and could be decimated by naturally occurring
events such as toxic chemical spills.
Cumberlandian combshell (Epioblasma brevidens)
The Cumberlandian combshell (Lea 1831) has a thick, solid shell
with a smooth to cloth-like outer surface. It is yellow to tawny brown
in color with narrow green broken rays. The inside of the shell is
white. The shells of females are inflated with serrated teeth-like
structures along a portion of the shell margin (see Johnson (1978) for
a more complete description of the species). The species is considered
endangered in the States of Kentucky (KSNPC 1991) and Virginia (Neves
1991; Bruenderman, in litt., 1992) and a species of special concern in
Tennessee (Bogan and Parmalee 1983).
The Cumberlandian combshell historically existed throughout much of
the Cumberlandian portion of the Tennessee and Cumberland river systems
in Alabama, Kentucky, Tennessee, and Virginia (Gordon 1991). Presently,
it survives in the Cumberland River basin, as a very rare component of
the benthic community in Buck Creek, Pulaski County, Kentucky, and in a
few miles of the Big South Fork Cumberland River, McCreary County,
Kentucky, and Scott County, Tennessee (Bakaletz 1991; Gordon 1991;
McCance, in litt., 1994). A few old, non-reproducing individuals may
also survive in Old Hickory Reservoir on the Cumberland River, Smith
County, Tennessee (Gordon 1991).
Within the Tennessee River basin, the species still survives in
very low numbers in the Powell and Clinch rivers, Lee and Scott
counties, Virginia; and Claiborne and Hancock counties, Tennessee. The
Clinch and Powell river populations are very small and in decline
(Neves 1991; Richard Neves, Virginia Cooperative Fish and Wildlife
Research Unit, personal communication, 1991).
Many of the Cumberlandian combshell's historic populations were
lost when impoundments were constructed on the Tennessee and Cumberland
rivers by TVA and the Corps. Other populations were lost due to various
forms of pollution and siltation. The present populations are
threatened by the adverse impacts of coal mining, poor land-use
practices, and pollution, primarily from nonpoint sources. All the
known populations are small and could be decimated by naturally
occurring events such as toxic chemical spills.

[[Page 1649]]

Purple bean (Villosa perpurpurea)
The purple bean mussel (Lea 1861) has a small- to medium-sized
shell. The shell's outer surface is usually dark brown to black with
numerous closely spaced fine green rays. The inside of the shell is
purple, but the purple may fade to white in dead specimens (see Bogan
and Parmalee (1983) for a more complete description of the species).
The species is considered endangered in Tennessee (Bogan and Parmalee
1983) and Virginia (Neves 1991; and Bruenderman, in litt., 1992).
The purple bean historically occupied the upper Tennessee River
basin in Tennessee and Virginia upstream of the confluence of the
Clinch River (Gordon 1991). Ortmann (1918) considered the species ``not
rare'' in Virginia. Presently, it survives in limited numbers at a few
locations in the upper Clinch River basin, Scott, Tazewell, and Russell
counties, Virginia; Copper Creek (a Clinch River tributary), Scott
County, Virginia; Indian Creek (a Clinch River tributary), Tazewell
County, Virginia (the Indian Creek location information was received
from the Service's Abingdon Field Office, Abingdon, Virginia, after the
close of the comment period. However, the purple bean was known to
occur in the Clinch River, Tazewell County, Virginia, near the mouth of
Indian Creek during the open comment period, and another federally
listed mussel (tan riffleshell) was also found in the same reach of
Indian Creek. The Service has determined that, because this new
information did not substantially affect the listing decision,
extending the public comment period was not warranted); Obed River,
Cumberland and Morgan counties, Tennessee; Emory River just below its
confluence with the Obed River, Morgan County, Tennessee; and Beech
Creek, Hawkins County, Tennessee (Gordon 1991).
The purple bean populations in the lower Clinch, Powell, and
Holston rivers were extirpated by reservoirs. The decline of the
species throughout the rest of its range was likely due to the adverse
impacts of coal mining, poor land-use practices, and pollution;
primarily from nonpoint sources. The population centers that remain are
so limited that they are very vulnerable to naturally occurring events
such as toxic chemical spills.
Rough rabbitsfoot (Quadrula cylindrica strigillata)
The rough rabbitsfoot (Wright 1898) has an elongated heavy, rough
textured, yellow- to greenish-colored shell. The shell's surface is
covered with green rays, blotches, and chevron patterns. The inside of
the shell is silvery to white with an iridescence in the posterior area
of the shell (see Bogan and Parmalee (1983) for a more complete species
description). The species is considered threatened in Virginia (Neves
1991; Bruenderman, in litt., 1992) and a species of special concern in
Tennessee (Bogan and Parmalee 1983).
Historically, this mussel was restricted to the upper Tennessee
River basin in the Clinch, Powell, and Holston river systems (Gordon
1991). It still survives in all three of these systems, but only in
limited areas and at low population levels. Populations persist in the
Powell River, Lee County, Virginia; and Claiborne and Hancock counties,
Tennessee; Clinch River, Scott County, Virginia; and Hancock County,
Tennessee; Copper Creek (a Clinch River tributary), Scott County,
Virginia; and North Fork Holston River, Washington County, Virginia
(Gordon 1991).
The rough rabbitsfoot populations in the lower Clinch, Powell, and
Holston river systems were extirpated by reservoirs. The decline of the
species throughout the rest of its range was likely due to the adverse
impacts of coal mining, poor land-use practices, and pollution,
primarily from nonpoint sources. The population centers that remain are
so limited that they are vulnerable to extirpation from naturally
occurring events such as toxic chemical spills.

Previous Federal Action

In the Service's notice of review for animal candidates, published
in the Federal Register of November 21, 1991 (56 FR 58804), the
Cumberland elktoe, oyster mussel, Cumberlandian combshell, purple bean,
and rough rabbitsfoot were included as Category 2 species. At that
time, a Category 2 species was one that was being considered for
possible addition to the Federal List of Endangered and Threatened
Wildlife. Designation of Category 2 species was discontinued in the
February 28, 1996, Federal Register notice (61 FR 7596). These mussels
were approved for elevation to candidate status by the Service on
August 30, 1993. A candidate species is a species for which the Service
has sufficient information to propose it for protection under the Act.
On August 25, 1992, the Service notified by mail (129 letters),
potentially affected Federal and State agencies and local governments
within the species' present range, and interested individuals that a
status review of the above mentioned five mussels and the slabside
pearlymussel (Lexingtonia dolabelloides) was being conducted. (The
slabside pearlymussel has not been included in this final rule.
Additional populations of this species were discovered and further
evaluation is needed before a decision can be made regarding the
species' need for Federal protection.)
Seven agencies responded to the August 25, 1992, notification. The
U.S. Natural Resources Conservation Service (formerly the U.S. Soil
Conservation Service) stated: ``It is not anticipated that any planned
or current activities will adversely affect these species or their
habitat.'' The KSNPC, the Kentucky Department of Environmental
Protection, Tennessee Wildlife Resources Agency (TWRA), Virginia
Department of Conservation and Recreation (VDCR), and VDGIF provided
information on the decline and status of the species in their States.
The Duck River Agency (DRA) provided comments on the status of the
oyster mussel in the Duck River. It stated that, as the Duck River
population of the oyster mussel is extremely small, it is believed
highly unlikely that the stream supports a viable population of E.
capsaeformis. In contrast to DRA's statement, Don Hubbs (TWRA, in
litt., 1992) stated that fresh dead oyster mussel individuals (from
young and older cohorts) were not uncommon in muskrat middens on the
Duck River in Marshall County, Tennessee. The Service, however,
currently has insufficient information to judge the species' long-term
viability either in the Duck River or on a rangewide basis.
The DRA took issue with the Service's statement in the notification
that the proposed Columbia Dam on the Duck River could eliminate the
oyster mussel from the Duck River. It stated that current project
alternatives under consideration by the DRA and TVA could result in a
project that would flood less than one third of the area and would
enhance the future viability of the population segment above the pool.
The Service agrees that a smaller Columbia Dam pool would reduce the
amount of the oyster mussel population lost to the direct effects of
the dam. However, the details of these Columbia Dam alternatives have
not been provided to the Service.
The DRA commented that statements in the mussel species accounts
(Gordon 1991) used as an information source to prepare the August 25,
1992, notification contained language that appeared to indicate that
the Service had already made a decision to list the species prior to
receiving any comments

[[Page 1650]]

from the notification. The Service agrees that the species accounts,
which were prepared by a non-Service biologist under contract to the
Service, contain language regarding the need to reverse the species'
decline as a means to preserve and recover the mussels. However, these
statements, made by a Service contractor, do not represent a
predecisional statement by the Service. Statements in the species
accounts were considered along with all presently available information
on these species, as well as information obtained through the
notification and the proposed rule, when making the final decision
regarding the status of the species.
The processing of this final rule conforms with the Service's final
listing priority guidance published in the Federal Register on May 16,
1996 (61 FR 24722). The guidance clarifies the order in which the
Service will process rulemakings following two related events--(1) the
lifting, on April 26, 1996, of the moratorium on final listings imposed
on April 10, 1995 (Public Law 104-6), and (2) the restoration of
significant funding for listing through the passage of the omnibus
budget reconciliation law on April 26, 1996, following severe funding
constraints imposed by a number of continuing resolutions between
November 1995 and April 1996. The guidance calls for giving highest
priority to handling emergency situations (Tier 1) and second highest
priority (Tier 2) to resolving the listing status of the outstanding
proposed listings. This final rule falls under Tier 2. At this time,
there are no pending Tier 1 actions.
In the development of this final rule, the Service has conducted an
internal review of a draft of this rule and other Service-generated
information. Based on this review, the Service has determined that
there is no new information that would substantively affect this
listing decision and that additional public comment is not warranted.

Summary of Comments and Recommendations

On July 14, 1994, a proposed rule was published in the Federal
Register (59 FR 35901) stating that the Cumberland elktoe, oyster
mussel, Cumberlandian combshell, purple bean, and rough rabbitsfoot
were being considered for endangered species status under the Act. In
the proposed rule, in legal notices (published in the Kingsport Daily
News, Kingsport, Tennessee, on August 2, 1994; Crossville Chronicle,
Crossville, Tennessee, and Bristol Herald Courier, Bristol, Virginia,
on August 3, 1994; Knoxville Journal, Knoxville, Tennessee, on August
8, 1994; Columbia Herald, Columbia, Tennessee, on August 10, 1994; and
Nashville Banner, Nashville, Tennessee, on August 17, 1994) and in
letters dated July 26, 1994, the Service requested Federal and State
agencies, local governments, scientific organizations, and interested
parties to comment and submit factual reports and information that
might contribute to development of a final determination for these five
mussels, and provided notification that a public hearing on the
proposal could be held, if requested.
In response to the above notifications, the Service received
several public hearing requests from within the following counties--
Fentress, Cumberland, and Marshall counties, Tennessee; and McCreary
County, Kentucky. The Service held two public hearings (December 13,
1994, at the York Institute, Jamestown, Tennessee; and December 15,
1994, at the Marshall County Courthouse, Lewisburg, Tennessee), and
reopened the comment period from November 23, 1994, to December 30,
1994. Notices of these hearings and the reopening of the comment period
were published in the Federal Register on November 18, 1994, (59 FR
59200) and in the following newspapers--Daily Herald, Columbia,
Tennessee, and Bristol Herald Courier, Bristol, Virginia, on November
20, 1994; Knoxville News Sentinel, Knoxville, Tennessee, and
Commonwealth Journal, Somerset, Kentucky, on November 21, 1994; and
Nashville Banner, Nashville, Tennessee, Daily News of Kingsport,
Kingsport, Tennessee, and Crossville Chronicle, Crossville, Tennessee,
on November 22, 1994. Additionally, the Service, by letters dated
November 21, 1994, notified Federal and state agencies, local
governments, scientific organizations, and interested parties of the
public hearings and the reopening of the comment period.
The Service received nineteen written comments and eight oral
comments on the proposal to list the five mussels. Numerous questions
on the proposal and related issues were asked at the public hearings.
Comments in support of the proposed rule were received from the
Environmental Protection Agency (EPA); National Park Service, Big South
Fork National River and Recreation Area; KSNPC; Kentucky Department of
Fish and Wildlife Resources (KDFWR); Department of Fisheries and
Wildlife Sciences, Virginia Polytechnic Institute and State University;
Tennessee Department of Environment and Conservation (TDEC); VDCR;
VDGIF; and two private individuals. The listing of one or more of these
species was opposed by the DRA; Fentress County Utility District,
Jamestown, Tennessee; and one individual. The remainder of the
respondents expressed concerns over what impact these listings would
have on various activities. The following is a summary of the comments,
concerns, and questions (referred to as ``Issues'' for the purposes of
this summary) regarding the proposed rule that were expressed in
writing or presented orally at the public hearings. Comments of similar
content have been grouped together.
Issue 1: One respondent expressed concern that listing the purple
bean could significantly impact efforts to build a water supply
reservoir on Clear Creek, an Obed River tributary, in Morgan County,
Tennessee, and asked specific questions regarding how this reservoir
project would impact the species.
Response: The purple bean is the only one of these five species
that occurs in the Obed River system. However, based on available
information, this species does not exist at the proposed reservoir site
or in the area downstream of the site that would be significantly
affected by the project. Therefore, because the Service does not
anticipate that the project will have a significant impact on the
purple bean, the listing will not significantly impact the reservoir
project. Specific questions on how a reservoir, which will likely have
only minimal, if any, impact to the species, might negatively or
possibly positively affect the species cannot be fully evaluated until
detailed project plans are available for review. These issues, however,
would be addressed in any biological opinion that may be developed for
this proposed project.
Issue 2: Several respondents expressed concern that listing these
five mussels could have a significant impact on private landowners.
Response: Currently, there are 24 federally listed mussels in the
Tennessee and Cumberland river systems. These species, many of which
have been listed for over 10 years, have not had a significant impact
on private lands activities (e.g., logging, agriculture, land
development, and home construction). Therefore, based on this historic
perspective, the Service does not anticipate that listing these
additional species will have a significant impact on private
landowners. In fact most individuals that own or farm lands along
streams that are inhabited by listed aquatic species are unaware of the
species' existence because their presence has never affected their
activities.

[[Page 1651]]

Issue 3: One respondent requested information on the impact of this
listing on mining activities.
Response: If a mining activity comes under the jurisdiction of a
state or Federal agency and one of these five mussels or any other
listed species may be in the project area, the project's impacts to the
species must be considered. However, it has been the Service's
experience, after dealing with hundreds of mining projects, that in
nearly all cases where there is a conflict between endangered species
and a mining project, the project is permitted with only minor
modifications.
Issue 4: Several respondents expressed concern that the listing of
the Cumberland elktoe could adversely impact the completion of a
proposed water supply reservoir on Crooked Creek, a tributary of the
Big South Fork of the Cumberland River, Fentress County, Tennessee.
Response: The Service does not believe the listing of the
Cumberland elktoe will stop completion of the proposed Crooked Creek
Reservoir. The Service is consulting with the Farm Services Agency on
this project. A segment of the Cumberland elktoe population does exist
at the site of the proposed reservoir. However, this population segment
is small and likely is not essential to the species' survival and
recovery. Therefore, based on available information, the Service does
not anticipate that a jeopardy biological opinion will result from this
consultation. The Service's biological opinion will outline measures to
minimize incidental take of the elktoe and suggest conservation
recommendations, but the project will not be blocked by the Federal
listing of the elktoe.
Issue 5: Listing the Duck River population of the oyster mussel was
questioned because it was felt that this population was not viable.
Response: The Duck River oyster mussel population may be currently
below the number of individuals necessary to maintain long-term
viability. However, that does not disqualify this population from
protection under the Act. If the population is below the threshold
number needed for long-term viability, the population could be
augmented with juveniles produced through artificial propagation or
with adults from another population.
Issue 6: In the proposed rule, the Service made reference to oyster
mussels collected from a muskrat midden. One respondent questioned the
Service's use of this information in its assessment of the Duck River's
oyster mussel population.
Response: It is a common practice of the Service, other Federal and
state agencies, and mussel researchers to utilize information from
muskrat middens. Mussels deposited in middens by muskrats can not
provide a quantitative assessment of mussel density, but observations
of the numbers of specimens in a midden can provide insight into a
species' status in the adjacent river reach.
Issue 7: Requests were made that the Service identify--(1) those
activities that will not be considered likely to result in a violation
of section 9 of the Act and (2) those activities that will be
considered likely to result in violation of section 9 of the Act.
Response: This issue is addressed in the ``Available Conservation
Measures'' section of this rule.
Issue 8: One respondent wanted to know what impact these listings
would have on the placement of docks and piers into rivers inhabited by
these mussels.
Response: There should be minimal impact on dock and pier
construction as a result of this listing. The construction of piers and
docks involves work in navigable waters of the United States and
includes the discharge of dredge material back into the waterway. Thus,
dock and pier construction comes under the Corps' permit authority
pursuant to section 10 of the Rivers and Harbors Act (RHA) (33 U.S.C.
403) and section 404 of the Clean Water Act (CWA) (33 U.S.C. 1344).
Thus, a permit must be received from the Corps prior to the
construction of a dock or pier. If a federally listed species may be
adversely impacted by this activity, the Corps must consult with the
Service to determine if the project is likely to jeopardize the
species' continued existence.
It is possible that construction of a few piers or docks could be
delayed due to the presence of one of these species. However, it is
unlikely that any projects would be stopped. Most piers and docks are
constructed in pool habitat, and these mussels primarily inhabit
relatively shallow riffles. Most piers and docks constructed on the
rivers and streams inhabited by these mussels would be relatively small
and have only minimal impact on the mussels. Additionally, from an
historical perspective, the 24 mussel species that are already listed
in the Tennessee and Cumberland river systems have had little impact on
the issuance of permits for these structures.
Issue 9: One respondent asked what impact these listings would have
on dredging and in-stream gravel mining projects.
Response: In-stream dredging and gravel mining involves work in
navigable waters of the United States and can result in the discharge
of dredge material back into the water. Thus, in-stream dredging and
gravel mining comes under the Corps' permit authority pursuant to
section 10 of the RHA (33 U.S.C. 403) and section 404 of the CWA (33
U.S.C. 1344). If a federally listed species may be adversely impacted
by this activity, the Corps must consult with the Service to determine
if the project is likely to jeopardize the species' continued
existence.
It is possible that a few in-stream dredging and gravel mining
projects could be impacted due to the presence of one of these species.
However, it has been the experience of the Service that most of these
projects can be designed in such a way (i.e., removing the gravel only
from above the water line) that the project objectives and the needs of
the species can be met. Additionally, as some of these newly listed
species exist in areas that are already inhabited by listed mussels,
the listing of these species that coexist with currently listed mussels
will not add any additional permit restrictions to these areas.
Issue 10: Several respondents were concerned with the potential
impacts these listings could have on water withdrawal projects.
Response: As water withdrawal projects often require construction
of a structure in the water, these projects typically require a permit
from the Corps under section 10 of the RHA (33 U.S.C. 403) and section
404 of the CWA (33 U.S.C. 1344). If a federally listed species may be
adversely impacted by this activity, the Corps must consult with the
Service to determine if the project is likely to jeopardize the
species' continued existence. It is possible that a few water
withdrawal projects that propose to extract a significant portion of a
river's flow could be affected due to the presence of one of these
species. However, if the water withdrawal project meets state water
quality standards, it has generally been the Service's experience that
endangered species will be protected without further significant
restrictions.
Issue 11: Several respondents were concerned with the potential
impacts these listings could have on waste water discharge projects.
Response: The potential exists for point discharges to impact these
species, and there is an increasing demand for discharge permits in the
Tennessee and Cumberland river systems. However, the States of

[[Page 1652]]

Kentucky, Tennessee, and Virginia, with assistance from and oversight
by the EPA, set water quality standards that are presumably protective
of aquatic life, including the 24 mussel species that are already
listed in the Tennessee and Cumberland river systems. Thus, there
should be no significant increase in regulatory burden regarding waste
water discharge permits as a result of listing these five species in
areas where these species coexist with one or more of the mussels that
are currently listed. If new information indicates that current water
quality criteria are insufficient to prevent the likelihood of jeopardy
to these freshwater mussels, new standards may be needed. If revised
standards are implemented, some discharge permits could be further
regulated if these species are present. However, in areas where listed
mussels already exist, the listing of these five mussels will not add
any significant additional burden.
Issue 12: Several respondents were concerned with the degree of
impact these listings might have on landowners who have erosion
problems on their land.
Response: Siltation can negatively impact the aquatic environment.
However, based on a historical perspective, the Act has not impacted
individual landowners with erosion problems that might affect the 24
mussel species that are currently listed in the Tennessee and
Cumberland river systems. Thus, the Service does not anticipate that
the listing of these species will burden private landowners regarding
this issue.
The Service, through a proactive and coordinated effort with other
agencies, conservation groups, and local governmental bodies, is
assisting willing private landowners in the restoration of riparian
habitat to control siltation. This program (``Partners for Wildlife'')
is currently funding projects on the Clinch River (a Tennessee River
tributary in eastern Tennessee and southwestern Virginia) and the
Little Tennessee River (a Tennessee River tributary in western North
Carolina). Both rivers have endangered fish and mussel fauna and this
program has developed cooperative agreements with willing landowners to
improve stream side habitat for the benefit of all aquatic species.
Issue 13: One respondent wanted to know what impact these listings
would have on the use of pesticides.
Response: The EPA, during its pesticide registration process,
consults with the Service to determine if a pesticide will likely
jeopardize the continued existence of any federally listed species. If
it is determined that the application of the chemical is likely to
jeopardize a species, the Service provides reasonable and prudent
chemical application alternatives that would avoid the likelihood of
jeopardy. These recommendations generally suggest some type of
application restriction (i.e., prohibit pesticide application within a
prescribed distance from an inhabited stream reach) that would protect
the species.
Although there may be some added restrictions to pesticide use as a
result of these listings, the Service believes that the resulting
impacts to pesticide users should be minimal. Many of the stream
reaches inhabited by these five mussels are populated with previously
listed mussels that have already been assessed for pesticide
restrictions; many pesticides reviewed for registration are not
believed to be harmful to mussels and no restrictions are applied to
their use; and if a pesticide is found to be harmful to a species,
there are often unrestricted, alternative chemicals that can be used to
control the same pest.
Issue 14: One respondent wanted to know if the information that
these rules are based on had been peer reviewed.
Response: The information utilized in determining to propose these
species has been peer reviewed. On August 25, 1992, the Service mailed
a summary of the available status information on the five species to 47
agencies, organizations, and individuals familiar with the status of
freshwater mussels and solicited their comments on the need to propose
these species. Prior and subsequent to the August 25, 1992,
notification, a copy of the status report used to make the
determination to propose these five species was sent to biologists and
agencies familiar with the plight of these species. With the exception
of the DRA, none of the respondents questioned the need to propose
these species for Federal protection. (See the last paragraph under the
``Summary of Comments and Recommendations'' section for further
information.)
Issue 15: One respondent was concerned that these listings could
restrict the farming communities' use of fords (stream crossings).
Response: There are numerous active fords in the Tennessee and
Cumberland river systems used by the farming community, and many of
these fords are in streams inhabited by federally protected mussels.
The Act has not restricted the use of these fords, and the listing of
these five mussels will not alter this situation.
Issue 16: One respondent wanted to know if the Service planned to
designate critical habitat for these five mussels.
Response: The Service is not and has no plans to designate critical
habitat for these species (see the ``Critical Habitat'' section of this
rule).
Issue 17: Several respondents were concerned that these listings
would affect current farming methods in the watershed.
Response: The Service will encourage the use of buffer strips along
water courses, reduction of pesticide and herbicide applications, and
soil conservation practices that help control soil loss and siltation.
Issue 18: One respondent questioned the statement in the proposed
rule that implicated poor land-use practices as a threat to these
mussels, and the individual was concerned that the farming community
might have been the primary target of this statement.
Response: Siltation from soil erosion is not just or primarily an
agricultural problem. Any activity that removes natural vegetated
ground cover (e.g., logging, bridge and road construction, mining, and
land clearing for industrial and residential construction) can cause
significant stream siltation if adequate control measures are not
taken. Silt can have a devastating impact on aquatic ecosystems,
especially those species that evolved in a relatively silt free
environment. Mussels are filter feeders and they can live in one
location for most of their lives. High silt loads disrupt their ability
to feed and reproduce, and at extreme silt levels, they can be
smothered under deep layers of silt.
As mentioned in response to Issue 12, the Service, through its
``Partners for Wildlife'' program, is working with willing landowners
to assist in restoration of stream side habit to control siltation. The
Service also encourages the use of ``Best Management Practices'' to
control erosion and minimize the impacts of silt to aquatic resources.
Issue 19: One respondent wanted to know how the listing of the
oyster mussel would affect the completion of Columbia Dam.
Response: The Service stated in a 1979 Biological Opinion that
completion of a proposed reservoir project (Columbia Dam) on the Duck
River in Maury and Marshall counties, Tennessee, would likely
jeopardize the continued existence of two federally listed mussels.
Although our Biological Opinion included reasonable and prudent
alternatives that would have allowed the project to go forward, TVA has
not implemented those measures and has been reevaluating the project
and considered other alternatives to meet the project objectives. (A
third

[[Page 1653]]

mussel listed prior to the issuance of the Biological Opinion is now
known from the proposed flood pool.) Although the presence of a fourth
endangered mussel (oyster mussel) may somewhat complicate this issue,
any measures needed to avoid a jeopardy situation for the currently
listed mussels would not be expected to change significantly with the
addition of a fourth listed species.
Issue 20: One respondent noted that since species go extinct
because of natural causes why should these species receive special
protection.
Response: It is true that natural and catastrophic events over
geological time have resulted in the extinction of millions of species.
However, the rate of extinctions in the past couple of centuries has
accelerated dramatically as a direct result of human activities. The
Act specifically states that species of fish, wildlife, and plant are
of value to this nation, and the Act requires the Department of the
Interior to maintain a list of endangered and threatened species. The
Service believes that these five mussels meet the criteria for the
Act's protection (see the ``Summary of Factors Affecting the Species''
section of these rules).
Issue 21: One respondent suggested that the Service should postpone
the decision to list the five species until Congress reauthorizes the
Act.
Response: The Act as currently written requires the Department of
the Interior to maintain a list of endangered and threatened species
and the Act provides five criteria to consider when determining to list
a species (see the ``Summary of Factors Affecting the Species'' section
of these rules). Based on the best available information, these five
species meet these criteria and qualify for the Act's protection. The
Service believes that delaying these listings to await Congressional
reauthorization would be a violation of existing Federal law.
Issue 22: One respondent wanted to know if a biological survey was
required when a Federal permit was needed in areas inhabited by listed
species and if a survey was needed, who would conduct the survey.
Response: Often the Service or other agencies have sufficient
status information on the species in a project area, and no addtional
site specific surveys are needed to determine project impacts to the
species. However, if site-specific species information is unavailable
or insufficient, a survey of the project impact area may be needed to
fully assess the project's impacts. If a survey is needed, it is
generally not conducted by the Service. Survey responsibility falls
onto the permitting agency. However, the permitting agency usually
requires the permit applicant to obtain the needed status information
as part of the application process.
Issue 23: One respondent commented that the Service should initiate
a massive education effort with the farm community to help build trust
and encourage community involvement regarding the protection and
recovery of aquatic species.
Response: The Service agrees that local community support is
essential to fully protect and recover listed species. The Service has
increased its efforts in this area through ``Partners for Wildlife''
and other programs that work with community leaders and willing
landowners to build the necessary partnerships.
Issue 24: The VDCR stated that the rough rabbitsfoot was listed as
threatened by the VDGIF. Thus, they felt it might be more appropriate
to list this species as threatened rather than endangered.
Response: The rough rabbitsfoot is listed as a threatened species
by the VDGIF. However, this list was developed in the late 1980's and
published in 1991 (Neves 1991). Since the publication of the state
list, the rough rabbitsfoot has declined significantly in the Clinch
River and may no longer survive in Copper Creek (Neves, personal
communication, 1995). Neves (personal communication, 1995), was a
primary consultant used by the VDGIF in determining state status for
the rough rabbitsfoot, and he plans to recommend State endangered
status for this species when the state list is revised. Additionally,
he recommended Federal endangered status for this species in response
to the proposed rule (Neves, in litt., 1994). Based on this information
and the information presented in the ``Background'' and the ``Summary
of Factors Affecting the Species'' sections of these rules, the Service
believes that endangered status is appropriate for the rough
rabbitsfoot.
Issue 25: The EPA requested that the Service clarify what it meant
by the following statement that appeared in the July 14, 1994, proposed
rule:

Existing authorities available to protect aquatic systems, such
as the Clean Water Act, administered by the Environmental Protection
Agency (EPA) and the Army Corps of Engineers, have not been fully
utilized and may have led to the degradation of aquatic environments
in the Southeast Region, thus resulting in a decline of aquatic
species.

Response: Through EPA's implementation of the CWA, water quality
has been improved and mussel populations have benefited. However, in
spite of general water quality improvements, numerous freshwater mussel
populations in the southeastern United States are continuing to decline
even in areas that appear to have suitable physical habitat. The
Service believes that it is likely that some insidious environmental
factor(s), possibly contaminants, may be adversely affecting the
growth, reproduction, or survival of these populations. Of all the
potential impacts to mussels, less is known about the potential effects
of contaminants on these species. The Service believes that EPA could,
through the CWA, play a more active role in identifying potential
contaminant impacts to mussels.
Issue 26: The EPA also requested that the Service identify in any
final rule specific deficiencies and/or inadequacies in the following
areas related to their implementation of the CWA in the States of
Tennessee and Kentucky--state adopted narrative and numeric water
quality criteria; state water use classifications by streams occupied
by the five mussels; aquatic life criteria guidance values; and
National Pollutant Discharge Elimination System (NPDES) permit
procedures.
Response: As mentioned in response to Issue 25, little is known
about the potential impacts of contaminants on freshwater mussels.
Research is needed to address the lethal and sublethal effects of acute
and chronic exposure of toxins to all life stages of freshwater
mussels. This research will entail identifying appropriate surrogate
species, devising test protocols, and conducting studies to evaluate
the protectiveness of these criteria. Additionally, the Service is
currently working with EPA to develop a memorandum of agreement (MOA)
that will address how EPA and the Service will interact relative to CWA
water quality criteria, standards, and NPDES permits within the
Service's Southeast Region. Until the MOA is developed and data are
available to fully evaluate the effectiveness of current national water
quality criteria and standards and the need for site-specific criteria,
the Service believes it is premature to attempt, in this final rule, to
address any specific deficiencies and/or inadequacies that may exist in
EPA's implementation of the CWA regarding the protection of water
quality.
The Service also solicited the expert opinions of ten appropriate
and independent mussel specialists regarding the pertinent scientific
or commercial data and assumptions relating to taxonomy, population
status, and biological and ecological information on these five
mussels. One

[[Page 1654]]

response from a specialist was received, and those comments were
incorporated into this final rule.

Summary of Factors Affecting the Species

Section 4(a)(1) of the Act (16 U.S.C. 1531 et seq.) and regulations
(50 CFR Part 424) issued to implement the listing provisions of the Act
set forth the procedures for adding species to the Federal lists. A
species may be determined to be an endangered or threatened species due
to one or more of the five factors described in Section 4(a)(1). These
factors and their application to the Cumberland elktoe (Alasmidonta
atropurpurea), oyster mussel (Epioblasma capsaeformis), Cumberlandian
combshell (Epioblasma brevidens), purple bean (Villosa perpurpurea),
and rough rabbitsfoot (Quadrula cylindrica strigillata) are as follows:
A. The present or threatened destruction, modification, or
curtailment of its habitat or range. Mussel populations throughout the
Central and Eastern United States have been declining since modern
civilization began to significantly alter aquatic habitats. The Ohio
River drainage, which includes the Tennessee and Cumberland rivers, was
a center for freshwater mussel evolution and historically contained
about 127 distinct mussel species and subspecies. Of this once rich
mussel fauna, 11 mussels are extinct, and 33 mussels (including the 5
species covered in this final rule) are classified as Federal
endangered species. In less than 100 years, 35 percent of the Ohio
River system's mussel fauna has either become extinct or federally
endangered. No other wide-ranging faunal group in the continental
United States has experienced this degree of loss within the last 100
years.
The mussel fauna in most streams of the Ohio River basin has been
directly impacted by impoundments, siltation, channelization, and water
pollution. Reservoir construction is the most obvious cause of the loss
of mussel diversity in the basin's larger rivers. Most of the main stem
of both the Tennessee and Cumberland rivers and many of their
tributaries are impounded. For example, over 2,300 river miles or about
20 percent of the Tennessee River and its tributaries with drainage
areas of 25 square miles or greater are impounded (TVA 1971). In
addition to the loss of riverine habitat within impoundments, most
impoundments also seriously alter downstream aquatic habitat; and
mussel populations upstream of reservoirs may be adversely affected by
changes in the fish fauna essential to a mussel's reproductive cycle.
Coal mining-related siltation and associated toxic runoff have
adversely impacted many stream reaches. Numerous streams have
experienced mussel and fish kills from toxic chemical spills, and poor
land-use practices have fouled many waters with silt. Runoff from large
urban areas has degraded water and substrate quality. Because of the
extent of habitat destruction, the overall aquatic faunal diversity in
many of the basins' rivers has declined significantly. As a result of
this destruction of riverine habitat, 8 fishes and 24 mussels in the
Tennessee and Cumberland river basins have already required the Act's
protection, and numerous other aquatic species in these two basins are
currently considered species of concern and could warrant listing in
the future.
The mussel fauna in the Tennessee and Cumberland rivers has been
extensively sampled, and much is known about the historic and present
distribution of this rich fauna. Gordon (1991) provided an extensive
review of the literature regarding the past and present ranges of the
Cumberland elktoe, oyster mussel, Cumberlandian combshell, purple bean,
and rough rabbitsfoot. Based on Gordon's (1991) review and personal
communications with numerous Federal, State, and independent
biologists, it is clear that these five mussel species have undergone
significant reductions in range and that they now exist as only remnant
isolated populations. (See ``Background'' section for a discussion of
current and historic distribution and threats to the remaining
populations.)
B. Overutilization for commercial, recreational, scientific, or
educational purposes. These five mussels are not commercially valuable;
but as they are extremely rare, they could be sought by collectors. The
specific areas inhabited by these species are presently unknown to the
general public. As a result, their overutilization has not been a
problem to date. Most stream reaches inhabited by these mussels are
extremely small. Thus, populations of the species could be easily
eliminated or significantly reduced using readily available toxic
chemicals. Although scientific collecting is not presently identified
as a threat, take by private and institutional collectors could pose a
threat if left unregulated. Federal protection of these species will
help to minimize illegal and inappropriate take.
C. Disease and predation. Disease occurrence in freshwater mussels
is virtually unknown. However, since 1982, biologists and commercial
mussel fishermen have reported extensive mussel die-offs in rivers and
lakes throughout the United States. The cause(s) of many of these die-
offs is unknown, but disease has been suggested as a possible factor.
Shells of all five species are often found in muskrat middens. The
species are also presumably consumed by other mammals, such as raccoons
and mink. While predation is not thought to be a significant threat to
a healthy mussel population, Neves and Odum (1989) suggest it could
limit the recovery of endangered mussel species or contribute to the
local extirpation of already depleted mussel populations. Predation
would be of particular concern to oyster mussel, Cumberlandian
combshell, and purple bean, which exist only as extremely small,
remnant populations.
D. The inadequacy of existing regulatory mechanisms. The States of
Kentucky, Alabama, Tennessee, and Virginia prohibit the taking of fish
and wildlife, including freshwater mussels, for scientific purposes
without a State collecting permit. However, enforcement of this permit
requirement is difficult. Also, State regulations do not generally
protect these mussels from other threats.
Existing authorities available to protect aquatic systems, such as
the CWA, administered by the EPA and the Corps, may not have been fully
utilized. This may have contributed to the degradation of aquatic
environments and the decline of aquatic species in the Southeast (see
response to Issue 25 in the ``Summary of Comments and Recommendations''
of this final rule). As these mussels (Cumberland elktoe, Cumberlandian
combshell, oyster mussel, purple bean, and rough rabbitsfoot) coexist
with other federally listed species throughout most or all of their
range, some of the habitats of these species are indirectly provided
some Federal protection from Federal actions and activities through
section 7 of the Act. However, Federal listing will provide additional
protection for all five species throughout their range by requiring
Federal permits to take the species and by requiring Federal agencies
to consult with the Service when activities they fund, authorize, or
carry out may specifically adversely affect these species.
E. Other natural or manmade factors affecting its continued
existence. The populations of these species (Cumberland elktoe, oyster
mussel, Cumberlandian combshell, purple bean, and rough rabbitsfoot)
are small and geographically isolated. This isolation prohibits the
natural interchange of genetic material between populations,

[[Page 1655]]

and the small population sizes reduce the reservoir of genetic
variability within the populations. It is likely that some of the
populations of the Cumberland elktoe, oyster mussel, Cumberlandian
combshell, purple bean, and rough rabbitsfoot may be below the level
required to maintain long-term genetic viability. Also, because most of
the extant populations of these mussels are restricted to short river
reaches, they are very vulnerable to extirpation from a single
catastrophic event, such as a toxic chemical spill or a major stream
channel modification. Because the populations of each species are
isolated from one another because of impoundments, natural repopulation
of any extirpated population is impossible without human intervention.
The invasion of the exotic zebra mussel (Dreissena polymorpha) into
the Great Lakes poses a potential threat to the Ohio River's mussel
fauna. The zebra mussel has recently been reported from the Tennessee
and Cumberland rivers, but the extent of its impact on the basin's
freshwater mussels is unknown. Zebra mussels in the Great Lakes have
been found attached in large numbers to the shells of live and freshly
dead native mussels, and zebra mussels have been implicated in the loss
of entire mussel beds.
The Service has carefully assessed the best scientific and
commercial information available regarding the past, present, and
future threats faced by these mussels in determining to make this rule
final. Based on these evaluations, the preferred action is to list the
Cumberland elktoe (Alasmidonta atropurpurea), oyster mussel (Epioblasma
capsaeformis), Cumberlandian combshell (Epioblasma brevidens), purple
bean (Villosa perpurpurea), and rough rabbitsfoot (Quadrula cylindrica
strigillata) as endangered species. The Cumberland elktoe, purple bean,
and rough rabbitsfoot are known from three populations each, and the
Cumberlandian combshell and oyster mussel are known from five
populations each. These five species and their habitat have been and
continue to be impacted by habitat destruction and range reduction.
Their limited distribution also makes them very vulnerable to possible
extinction from toxic chemical spills. Because of their restricted
distributions and their vulnerability to extinction, endangered status
appears to be the most appropriate classification for these species.

Critical Habitat

Section 4(a)(3) of the Act, as amended, requires that, to the
maximum extent prudent and determinable, the Secretary designate
critical habitat at the time the species is determined to be endangered
or threatened. The Service's regulations (50 CFR 424.12(a)(1)) state
that designation of critical habitat is not prudent when one or both of
the following situations exist: (1) The species is threatened by taking
or other activity and the identification of critical habitat can be
expected to increase the degree of threat to the species or (2) such
designation of critical habitat would not be beneficial to the species.
The Service finds that designation of critical habitat is not prudent
for these species. Such a determination would result in no known
benefit to these species, and designation of critical habitat could
pose a further threat to them through publication of their site-
specific localities.
Section 7(a)(2) and regulations codified at 50 CFR Part 402 require
Federal agencies to ensure, in consultation with and with the
assistance of the Service, that activities they authorize, fund, or
carry out are not likely to jeopardize the continued existence of
listed species or destroy or adversely modify their critical habitat,
if designated. Section 7(a)(4) requires Federal agencies to confer
informally with the Service on any action that is likely to jeopardize
the continued existence of a proposed species or result in the
destruction or adverse modification of proposed critical habitat. (See
``Available Conservation Measures'' section for a further discussion of
section 7.) As part of the development of this final rule, Federal and
state agencies were notified of the mussels' general distributions, and
they were requested to provide data on proposed Federal actions that
might adversely affect the species. Should any future projects be
proposed in areas inhabited by these mussels, the involved Federal
agency will already have the general distributional data needed to
determine if the species may be impacted by its action; and if needed,
more specific distributional information would be provided.
Each of these mussels occupies very restricted stream reaches.
Thus, because any significant adverse modification or destruction of
these species' habitat would likely jeopardize their continued
existence, no additional protection for the species would accrue from
critical habitat designation that would not also accrue from listing
these species. Therefore, habitat protection for these species would be
accomplished through the section 7 jeopardy standard and section 9
prohibitions against take.
In addition, these mussels are rare, and taking for scientific
purposes and private collection could pose a threat if specific site
information were released. The publication of critical habitat maps in
the Federal Register and local newspapers, and other publicity
accompanying critical habitat designation could increase the collection
threat and increase the potential for vandalism, especially during the
often controversial critical habitat designation process. The locations
of populations of these species have consequently been described only
in general terms in this rule. Any existing precise locality data would
be available to appropriate Federal, state, and local governmental
agencies from the following offices--the Service office described in
the Addresses section of these rules; the Service's Cookeville Field
Office, 446 Neal Street, Cookeville, Tennessee 38501; the Service's
White Marsh Field Office, P.O. Box 480, Mid-County Center, U.S. Route
17, White Marsh, Virginia 23183; the Service's Southeastern Virginia
Field Office, P.O. Box 2345, 332 Cummings Street, Abingdon, Virginia
24212; KDFWR; KSNPC; TWRA; TDEC; VDGIF; and VDCR.

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing encourages and results in
conservation actions by Federal, state, and private agencies, groups,
and individuals. The Act provides for possible land acquisition and
cooperation with the states and requires that recovery actions be
carried out for all listed species. The protection required of Federal
agencies and the prohibitions against taking and harm are discussed, in
part, below.
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as
endangered or threatened and with respect to its critical habitat, if
any is being designated. Regulations implementing this interagency
cooperation provision of the Act are codified at 50 CFR Part 402.
Section 7(a)(4) requires Federal agencies to confer informally with the
Service on any action that is likely to jeopardize the continued
existence of a proposed species or result in destruction or adverse
modification of

[[Page 1656]]

proposed critical habitat. If a species is listed subsequently, section
7(a)(2) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency must enter into
formal consultation with the Service.
The Service notified Federal agencies that may have programs which
could affect these species. One major Federal project, a proposed TVA
impoundment on the Duck River, Columbia, Tennessee, could have a
significant impact on the oyster mussel. Construction of Columbia Dam
was suspended in the late 1970's after the Service issued a Biological
Opinion stating that the dam's completion would likely jeopardize the
continued existence of two federally listed mussels. Although our
Biological Opinion included reasonable and prudent alternatives that
would have allowed the project to go forward, TVA has not implemented
those measures and has been reevaluating the project and considered
other alternatives to meet the project objectives. (A third mussel
listed prior to the issuance of the Biological Opinion is now known
from the proposed flood pool.) Although the presence of a fourth
endangered mussel (oyster mussel) may somewhat complicate this issue,
any measures needed to avoid a jeopardy situation for the currently
listed mussels would not be expected to change significantly with the
addition of a fourth listed species (see response to Issue 19 in the
``Summary of Comments and Recommendations'' section of these rules).
A water supply reservoir is under consideration on Crooked Creek in
the upper Big South Fork of the Cumberland River watershed, Fentress
County, Tennessee. This project would inundate and adversely impact a
portion of the Cumberland elktoe population that exists in the upper
Big South Fork basin. This water supply project, proposed by the
Fentress County Utility District, is one of a series of water supply
alternatives currently under review for a permit pursuant to section
404 of the CWA. However, the Service does not believe the listing of
the Cumberland elktoe will stop completion of the Crooked Creek
Reservoir (see response to Issue 4 in the ``Summary of Comments and
Recommendations'' of these rules).
Another water supply reservoir is under consideration by the
Catoosa Utility District for Clear Creek, an Obed River tributary,
Morgan County, Tennessee. The purple bean occurs in the Obed River
system. However, based on available information, this species does not
exist at the proposed reservoir site or in the area downstream of the
site that would be significantly affected by the project. Therefore, as
the Service does not anticipate that the project will have a
significant impact on the purple bean, the listing will not have any
significant impact on this reservoir project (see response to Issue 1
in the ``Summary of Comments and Recommendations'' of this rule).
Since the close of the comment period on this rule, the
Southeastern Virginia Field Office has become involved in an informal
section 7 consultation regarding a proposed Federal prison in Lee
County, Virginia, and its potential impacts to eight federally listed
mussels that live in the Powell River. The Cumberlandian combshell,
oyster mussel, and purple bean are also known from the Powell River and
will now need to be considered in this consultation. However, since the
eight listed mussels are already being considered with regard to this
project, the outcome of the consultation should not be affected by the
addition of these three more listed mussels. Based on this review, the
Service has determined that there is no information that would
substantively affect these listing decisions and that additional public
comment is not warranted.
No other specific proposed Federal actions were identified that
would likely affect any of the species. Federal activities that could
occur and impact the species include, but are not limited to, the
carrying out or the issuance of permits for reservoir construction,
stream alterations, waste water facility development, water withdrawal
projects, pesticide registration, mining, and road and bridge
construction. However, it has been the experience of the Service that
nearly all section 7 consultations have been resolved so that the
species have been protected and the project objectives have been met.
The Act and implementing regulations found at 50 CFR 17.21 set
forth a series of general prohibitions and exceptions that apply to all
endangered wildlife. These prohibitions, in part, make it illegal for
any person subject to the jurisdiction of the United States to take
(includes harass, harm, pursue, hunt, shoot, wound, kill, trap, or
collect; or to attempt any of these), import or export, ship in
interstate commerce in the course of commercial activity, or sell or
offer for sale in interstate or foreign commerce any listed species. It
is also illegal to possess, sell, deliver, carry, transport, or ship
any such wildlife that has been taken illegally. Certain exceptions
apply to agents of the Service and State conservation agencies.
Permits may be issued to carry out otherwise prohibited activities
involving endangered wildlife species under certain circumstances.
Regulations governing permits are at 50 CFR 17.22 and 17.23. Such
permits are available for scientific purposes, to enhance the
propagation or survival of the species, and/or for incidental take in
connection with otherwise lawful activities.
It is the policy of the Service published in the Federal Register
on July 1, 1994,(59 FR 34272) to identify at the time of listing, to
the maximum extent practicable, those activities that would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness as to the effects of these
listings on proposed and ongoing activities within a species' range.
During the public comment periods, comments were received questioning
the effect these listings would have on private landowners (see
response to Issue 2 and 12 in the ``Summary of Comments and
Recommendations'' section of this rule), pesticide application (see
response to Issue 13), use of existing river fords by the farming
community (see response to Issue 15), and traditional farming practices
(see response to Issue 17). The Service believes, based on the best
available information as outlined in the ``Summary of Comments and
Recommendations'' section of this rule, that the aforementioned actions
will not result in a violation of section 9 provided the activities are
carried out in accordance with any existing regulations and permit
requirements. In addition, the Service also believes that certain other
activities will not result in a section 9 violation. They include use
of the river by boaters, anglers, and other existing recreational uses.
Activities that the Service believes could potentially result in
``take'' of these mussels, include, but are not limited to, the
unauthorized collection or capture of the species; unauthorized
destruction or alteration of the species' habitat (e.g., in-stream
dredging, channelization, discharge of fill material); violation of any
discharge or water withdrawal permit; and illegal discharge or dumping
of toxic chemicals or other pollutants into waters supporting the
species.
Other activities not identified in the above two paragraphs will be
reviewed on a case-by-case basis to determine if a violation of section
9 of the Act may

[[Page 1657]]

be likely to result from such activity. The Service does not consider
these lists to be exhaustive and provides them as information to the
public.
Questions regarding whether specific activities will constitute a
violation of section 9 should be directed to the Field Supervisor of
the Service's Asheville Field Office (see ADDRESSES section). Requests
for copies of the regulations on listed species and inquiries regarding
prohibitions and permits should be addressed to the U.S. Fish and
Wildlife Service, Ecological Services (TE), 1875 Century Boulevard,
Atlanta, Georgia 30345-3301 (404/679-7096).

National Environmental Policy Act

The Service has determined that an Environmental Assessment, as
defined under the authority of the National Environmental Policy Act of
1969, need not be prepared in connection with regulations adopted
pursuant to section 4(a) of the Act. A notice outlining the Service's
reasons for this determination was published in the Federal Register on
October 25, 1983 (48 FR 49244).

Required Determinations

The Service has examined this regulation under the Paperwork
Reduction Act of 1995 and found it to contain no information collection
requirements. This rulemaking was not subject to review by the Office
of Management and Budget under Executive Order 12866.

References Cited

Bakaletz, S. 1991. Mussel survey of the Big South Fork National
River Recreation Area. M.S. Thesis. Tennessee Technological
University, Cookeville, Tennessee. 62 pp.
Bogan, A. E., and P. W. Parmalee. 1983. Tennessee's rare wildlife,
Volume II: the mollusks. 123 pp.
Clarke, A. H. 1981. The Tribe Alasmidontini (Unionidae:
Anodontinae), Part I: Pegias, Alasmidonta, and Arcidens. Smithsonian
Contributions to Zoology, No. 326. 101 pp.
Gordon, M. E. 1991. Species accounts for Cumberland elktoe
(Alasmidonta atropurpurea), Cumberlandian combshell (Epioblasma
brevidens), oyster mussel (Epioblasma capsaeformis), rough
rabbitsfoot (Quadrula cylindrica strigillata), and purple bean
(Villosa perpurpurea). Unpublished reports to The Nature
Conservancy. 75 pp.
Johnson, R. I. 1978. Systematics and zoogeography of Plagiola
(=Dysnomia=Epioblasma), an almost extinct genus of mussels
(Bivalvia: Unionides) from middle North America. Bull. Mus. Comp.
Zool. 148:239-320.
Kentucky State Nature Preserves Commission. 1991. Endangered,
Threatened, and Special Concern Plant and Animal Species of
Kentucky. March 1991. 15 pp.
Neves, R. J. 1991. Mollusks. In Virginia's endangered species,
proceedings of a symposium. Coordinated by Karen Terwilliger.
McDonald & Woodward Publ. Co., Blacksburg, Virginia. 672 pp.
Neves, R. J., and M. C. Odum. 1989. Muskrat predation on endangered
freshwater mussels in Virginia. Jour. Wildl. Manage. 53(4):939-940.
Ortmann, A. E. 1918. The nayades (freshwater mussels) of the upper
Tennessee drainage with notes on synonymy and distribution.
Proceedings of the American Philosophical Society. 57:521-626.
Tennessee Valley Authority. 1971. Stream length in the Tennessee
River Basin. Tennessee River Authority, Knoxville, Tennessee, 25 pp.

Author

The primary author of this final rule is Richard G. Biggins, U.S.
Fish and Wildlife Service, Asheville Field Office, 160 Zillicoa Street,
Asheville, North Carolina 28801 (704/258-3939, Ext. 228).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, and Transportation.

Regulation Promulgation

Accordingly, part 17, subchapter B of chapter I, title 50 of the
Code of Federal Regulations, is amended as set forth below:

PART 17--[AMENDED]

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500, unless otherwise noted.

2. Section 17.11(h) is amended by adding the following, in
alphabetical order under ``CLAMS,'' to the List of Endangered and
Threatened Wildlife to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
SPECIES Vertebrate
---------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
CLAMS:

* * * * * * *
Bean, purple.................. Villosa perpurpurea.. U.S.A. (TN and VA)... NA E 602 NA NA

* * * * * * *
Combshell, Cumberland......... Epioblasma brevidens. U.S.A. (AL, KY, TN, NA E 602 NA NA
and VA).

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

* * * * * * *
Mussel, oyster................ Epioblasma U.S.A. (AL, KY, TN, NA E 602 NA NA
capsaeformis. and VA).

[[Page 1658]]

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

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

Dated: December 6, 1996.
John G. Rogers,
Acting Director, Fish and Wildlife Service.
[FR Doc. 97-565 Filed 1-9-97; 8:45 am]
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