[Federal Register Volume 63, Number 208 (Wednesday, October 28, 1998)]
[Rules and Regulations]
[Pages 57610-57620]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-28884]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE36


Endangered and Threatened Wildlife and Plants; Endangered Status 
for Three Aquatic Snails, and Threatened Status for Three Aquatic 
Snails in the Mobile River Basin of Alabama

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The Fish and Wildlife Service (Service) determines the 
cylindrical lioplax (Lioplax cyclostomaformis), flat pebblesnail 
(Lepyrium showalteri), and plicate rocksnail (Leptoxis plicata) to be 
endangered species; and the painted rocksnail (Leptoxis taeniata), 
round rocksnail (Leptoxis ampla), and lacy elimia (Elimia crenatella) 
to be threatened species under the authority of the Endangered Species 
Act of 1973, as amended (Act). These aquatic snails are found in 
localized portions of the Black Warrior, Cahaba, Alabama, and Coosa 
rivers or their tributaries in central Alabama. Impoundment and water 
quality degradation have eliminated the six snails from 90 percent or 
more of their historic habitat. Surviving populations are currently 
threatened by pollutants such as sediments and nutrients that wash into 
streams from the land surface. This action implements the protection of 
the Act for these six snail species.

DATES: This rule is effective November 27, 1998.

ADDRESSES: The complete file for this rule is available for inspection, 
by

[[Page 57611]]

appointment, during normal business hours at the Jackson Field Office, 
U.S. Fish and Wildlife Service, 6578 Dogwood View Parkway, Jackson, 
Mississippi 39213.

FOR FURTHER INFORMATION CONTACT: Mr. Paul Hartfield (see ADDRESSES 
section), 601/965-4900, extension 25.

SUPPLEMENTARY INFORMATION:

Background

    The Mobile River Basin (Basin) historically supported the greatest 
diversity of freshwater snail species in the world (Bogan et al. 1995), 
including six genera and over 100 species that were endemic to the 
Basin. During the past few decades, publications in the scientific 
literature have primarily dealt with the apparent decimation of this 
fauna following the construction of dams within the Basin and the 
inundation of extensive shoal (a shallow place in a body of water) 
habitats by impounded waters (Goodrich 1944, Athearn 1970, Heard 1970, 
Stein 1976, Palmer 1986, Garner 1990).
    In 1990, the Service initiated a status review of the endemic 
freshwater snails of the Basin. An extensive literature survey 
identified sources of information on taxonomy, distribution, ecology, 
and status of the fauna and was used to assemble a checklist of the 
Basin's snails and their distributions (Bogan 1992). Field surveys and 
collections were made for snails and other freshwater mollusks 
throughout the Basin (Bogan and Pierson, 1993a,b; McGregor et al. 1996; 
Service Field Records, Jackson, Mississippi 1989-1996; Bogan in litt. 
1995; M. Pierson Field Records, Calera, Alabama, in litt. 1993-1994; J. 
Garner, Alabama Department of Conservation, pers. comm. 1996; J. 
Johnson, Auburn University, in litt. 1996).
    Bogan et al. (1995) summarized the results of their efforts noting 
the apparent extinction of numerous snail species in the Coosa and 
Cahaba River drainages, and the imperiled state of many other aquatic 
snails in the Basin.
    The taxonomy used in this final rule follows Burch (1989), which 
relies almost exclusively on shell morphology. Many of the Basin's 
freshwater snail species, particularly in the family Pleuroceridae, are 
known to exhibit marked clinal variation (gradual change in characters 
of a species that manifests itself along a geographic gradient) in 
shell form, some of which has been described as environmentally induced 
(e.g., Goodrich 1934, 1937). Four of the six species considered in this 
final rule belong to the family Pleuroceridae and their relationships 
to each other, as well as to other Pleuroceridae, are poorly 
understood. In order to better document taxonomic relationships among 
these snails, a genetic study was conducted during the status review of 
a select group of the Basin's Pleuroceridae (Lydeard et al. 1997). The 
four snails within this family considered herein (lacy elimia, round 
rocksnail, plicate rocksnail, and painted rocksnail) were included in 
the genetic study. This study supported their current taxonomic status 
(Lydeard et al. 1997).
    The cylindrical lioplax (Lioplax cyclostomaformis (Lea 1841)) is a 
gill-breathing snail in the family Viviparidae. The shell is elongate, 
reaching about 28 millimeters (mm) (1.1 inches (in)) in length. Shell 
color is light to dark olivaceous-green externally, and bluish inside 
of the aperture (shell opening). The cylindrical lioplax is 
distinguished from other viviparid (eggs hatch internally and the young 
are born as juveniles) snails in the Basin by the number of whorls, and 
differences in size, sculpture, microsculpture, and spire angle. No 
other species of lioplax snails are known to occur in the Mobile Basin 
(see Clench and Turner 1955 for a more detailed description).
    Habitat for the cylindrical lioplax is unusual for the genus, as 
well as for other genera of viviparid snails. It lives in mud under 
large rocks in rapid currents over stream and river shoals. Other 
lioplax species are usually found in exposed situations or in mud or 
muddy sand along the margins of rivers. Little is known of the biology 
or life history of the cylindrical lioplax. It is believed to brood its 
young and filter-feed, as do other members of the Viviparidae. Life 
spans have been reported from 3 to 11 years in various species of 
Viviparidae (Heller 1990).
    Collection records for the cylindrical lioplax exist from the 
Alabama River (Dallas County, Alabama), Black Warrior River (Jefferson 
County, Alabama) and tributaries (Prairie Creek, Marengo County, 
Alabama; Valley Creek, Jefferson County, Alabama), Coosa River (Shelby, 
Elmore counties, Alabama) and tributaries (Oothcalooga Creek, Bartow 
County, Georgia; Coahulla Creek, Whitfield County, Georgia; Armuchee 
Creek, Floyd County, Georgia; Little Wills Creek, Etowah County, 
Alabama; Choccolocco Creek, Talladega County, Alabama; Yellowleaf 
Creek, Shelby County, Alabama), and the Cahaba River (Bibb, Shelby 
counties, Alabama) and its tributary, Little Cahaba River (Jefferson 
County, Alabama) (Clench and Turner 1955). A single collection of this 
species has also been reported from the Tensas River, Madison Parish, 
Louisiana (Clench 1962), however, there are no previous or subsequent 
records outside of the Alabama-Coosa system, and searches of the Tensas 
River in Louisiana by Service biologists (1995) and others (Vidrine 
1996) have found no evidence of the species or its typical habitat.
    The cylindrical lioplax is currently known only from approximately 
24 kilometers (km) (15 miles (mi)) of the Cahaba River above the Fall 
Line in Shelby and Bibb counties, Alabama (Bogan and Pierson 1993b). 
Survey efforts by Davis (1974) failed to locate this snail in the Coosa 
or Alabama rivers, and more recent survey efforts have also failed to 
relocate the species at historic localities in the Alabama, Black 
Warrior, Little Cahaba, and Coosa rivers and their tributaries (Bogan 
and Pierson 1993a, 1993b; M. Pierson in litt. 1993, 1994; Service Field 
Records 1991, 1992, 1993).
    The flat pebblesnail (Lepyrium showalteri (Lea 1861)) is a small 
snail in the family Hydrobiidae; however, the species has a large and 
distinct shell, relative to other hydrobiid species. This snail's shell 
is also distinguished by its depressed spire and expanded, flattened 
body whorl. The shells are ovate in outline, flattened, and grow to 3.5 
to 4.4 mm (0.1-0.2 in) high and 4 to 5 mm (0.2 in) wide. The umbilical 
area is imperforate (no opening), and there are 2 to 3 whorls which 
rapidly expand. The anatomy of this species has been described in 
detail by Thompson (1984). The flat pebblesnail is found attached to 
clean, smooth stones in rapid currents of river shoals. Eggs are laid 
singly in capsules on hard surfaces (Thompson 1984). Little else is 
known of the natural history of this species.
    The flat pebblesnail was historically known from the mainstem Coosa 
River in Shelby and Talladega counties, the Cahaba River in Bibb and 
Dallas counties, and Little Cahaba River in Bibb County, Alabama 
(Thompson 1984). The flat pebblesnail has not been found in the Coosa 
River portion of its range since the construction of Lay and Logan 
Martin Dams, and recent survey efforts have failed to locate any 
surviving populations outside of the Cahaba River drainage (Bogan and 
Pierson, 1993a,b; McGregor et al. 1996; Service Field Records, Jackson, 
Mississippi 1989-1996; Bogan in litt. 1995; M. Pierson Field Records, 
Calera, Alabama, in litt. 1993-1994; J. Garner pers. comm. 1996; J. 
Johnson in litt. 1996). The flat pebblesnail is currently known from 
one site on the Little Cahaba River, Bibb County, and from a single 
shoal series on the Cahaba River above the Fall Line, Shelby County, 
Alabama (Bogan and Pierson 1993b).

[[Page 57612]]

    The lacy elimia (Elimia crenatella (Lea 1860)) is a small species 
in the family Pleuroceridae. Growing to about 1.1 centimeters (cm) (0.4 
in) in length, the shell is conic in shape, strongly striate, and often 
folded in the upper whorls. Shell color is dark brown to black, often 
purple in the aperture, and without banding. The aperture is small and 
ovate. The lacy elimia is easily distinguished from other elimia 
species by a combination of characters (i.e., size, ornamentation, 
color).
    In a recent genetic sequence study of the 16S rRNA gene, the lacy 
elimia was found to be very similar to the compact elimia (Elimia 
showalteri) (Lydeard et al. 1997). Despite their apparent close genetic 
relationship, the authors made no suggestion that the two species 
represented a single species. Upon review of Lydeard et al. (1997), 
Dillon (College of Charleston, Charleston, South Carolina, in litt. 
1997) suggested that additional genetic studies were needed to 
demonstrate the genetic uniqueness of the lacy elimia. However, the 
Lydeard et al. (1997) genetic study addressed only one small genetic 
character of the genome (entire genetic make-up of an individual) of 
these species, and other characters strongly support the taxonomic 
status of the lacy elimia. The two species are allopatric (do not 
overlap in distribution--the compact elimia occurs in the Cahaba River, 
whereas the lacy elimia was found in the Coosa River and tributaries), 
and are strikingly different in size, appearance, and behavior. The 
compact elimia has a large, robust, smooth shell boldly colored brown 
and/or green, whereas the lacy elimia has a small, delicate, darkly 
colored, and ornamented shell. The lacy elimia is one of the few elimia 
snails in the Basin that does not exhibit clinal variation (Goodrich 
1936). In addition, compact elimia are found grazing individually 
throughout shoal habitats, whereas the lacy elimia is usually found in 
tight clusters or colonies on larger rocks within a shoal (P. 
Hartfield, Jackson, MS, pers. obsv.). Allopatry, morphology, and 
behavior are strong characters supporting species specific status of 
the lacy elimia.
    Elimia snails are gill breathing snails that typically inhabit 
highly oxygenated waters on rock shoals and gravel bars. Most species 
graze on periphyton growing on benthic (bottom) substrates. Individual 
snails are either male or female. Eggs are laid in early spring and 
hatch in about 2 weeks. Snails apparently become sexually mature in 
their first year, but, in some species, females may not lay until their 
second year. Some elimia may live as long as 5 years (Dillon 1988).
    The lacy elimia was historically abundant in the Coosa River main 
stem from St. Clair to Chilton County, Alabama, and was also known in 
several Coosa River tributaries--Big Will's Creek, DeKalb County; 
Kelley's Creek, St. Clair County; and Choccolocco and Tallaseehatchee 
creeks, Talladega County, Alabama (Goodrich 1936). The lacy elimia has 
not been recently located at any historic collection site. However, as 
a result of the recent survey efforts, previously unreported 
populations were discovered in three Coosa River tributaries--Cheaha, 
Emauhee, and Weewoka creeks, Talladega County, Alabama (Bogan and 
Pierson 1993a). The species is locally abundant in the lower reaches of 
Cheaha Creek. This stream originates within the Talladega National 
Forest; however, no specimens of the lacy elimia have been collected on 
Forest Service lands. The species has also been found at single sites 
in Emauhee and Weewoka creeks, where specimens are rare, and difficult 
to locate.
    The painted rocksnail (Leptoxis taeniata (Conrad 1834)) is a small 
to medium snail about 19 mm (0.8 in) in length, and subglobose to oval 
in shape. The aperture is broadly ovate, and rounded anteriorly. 
Coloration varies from yellowish to olive-brown, and usually with four 
dark bands. Some shells may not have bands and some have the bands 
broken into squares or oblongs (see Goodrich 1922 for a detailed 
description). All of the rocksnails that historically inhabited the 
Basin had broadly rounded apertures, oval shaped shells, and variable 
coloration. Although the various species were distinguished by relative 
sizes, coloration patterns, and ornamentation, identification could be 
confusing. However, the painted rocksnail is the only known survivor of 
the 15 rocksnail species that were historically known from the Coosa 
River drainage.
    Rocksnails are gill breathing snails found attached to cobble, 
gravel, or other hard substrates in the strong currents of riffles (a 
shallow area in a streambed that causes ripples in the water) and 
shoals. Adult rocksnails move very little, and females probably glue 
their eggs to stones in the same habitat (Goodrich 1922). Heller (1990) 
reported a short life span (less than 2 years) in a Tennessee River 
rocksnail. Longevity in the painted and the Basin's other rocksnails is 
unknown.
    The painted rocksnail had the largest range of any rocksnail in the 
Mobile River Basin (Goodrich 1922). It was historically known from the 
Coosa River and tributaries from the northeastern corner of St. Clair 
County, Alabama, downstream into the mainstem of the Alabama River to 
Claiborne, Monroe County, Alabama, and the Cahaba River below the Fall 
Line in Perry and Dallas counties, Alabama (Goodrich 1922, Burch 1989). 
Surveys by Service biologists and others (Bogan and Pierson 1993a, 
1993b; M. Pierson, in litt. 1993) in the Cahaba River, unimpounded 
portions of the Alabama River, and a number of free-flowing Coosa River 
tributaries have located only three localized Coosa River drainage 
populations.
    The painted rocksnail is currently known from the lower reaches of 
three Coosa River tributaries--Choccolocco Creek, Talladega County; 
Buxahatchee Creek, Shelby County (Bogan and Pierson 1993a); and 
Ohatchee Creek, Calhoun County, Alabama (Pierson in litt. 1993).
    The round rocksnail (Leptoxis ampla (Anthony 1855)) grows to about 
20 mm (0.8 in) in length. The shell is subglobose, with an ovately 
rounded aperture. The body whorl is shouldered at the suture, and may 
be ornamented with folds or plicae. Color may be yellow, dark brown, or 
olive green, usually with four entire or broken bands (Goodrich 1922). 
Round rocksnails inhabit riffles and shoals over gravel, cobble, or 
other rocky substrates.
    Lydeard et al. (1997) found slight differences in DNA sequencing 
between the painted rocksnail and the round rocksnail, and considered 
them to be sister species. Following analysis by allozyme 
electrophoresis on these same species, Dillon (in litt. 1997) 
speculated that the two species represented isolated populations 
belonging to a single species. The two species are geographically 
separated, with the painted rocksnail inhabiting Coosa River 
tributaries, while the round rocksnail is the only surviving rocksnail 
species in the Cahaba River drainage. Both species are currently 
recognized by the malacological community (e.g., Burch 1989; Turgeon et 
al. 1988, revision in review), and are treated as distinct in this 
final rule.
    The round rocksnail was historically found in the Cahaba River, and 
its tributary, Little Cahaba River, Bibb County, Alabama; and the Coosa 
River, Elmore County, and tributaries--Canoe Creek and Kelly's Creek, 
St. Clair County; Ohatchee Creek, Calhoun County; Yellowleaf Creek, 
Shelby County; and Waxahatchee Creek, Shelby/Chilton counties, Alabama 
(Goodrich 1922).
    The round rocksnail is currently known from a shoal series in the 
Cahaba

[[Page 57613]]

River, Bibb and Shelby counties, Alabama, and from the lower reach of 
the Little Cahaba River, and the lower reaches of Shade and Six-mile 
creeks in Bibb County, Alabama (Bogan and Pierson 1993b).
    The plicate rocksnail (Leptoxis plicata (Conrad, 1834)) grows to 
about 20 mm (0.8 in) in length. Shells are subglobose with broadly 
rounded apertures. The body whorl may be ornamented with strong folds 
or plicae. Shell color is usually brown, occasionally green, and often 
with four equidistant color bands. The columella (central column or 
axis) is smooth, rounded, and typically pigmented in the upper half. 
The aperture is usually bluish-white, occasionally pink or white. The 
operculum (plate that closes the shell when the snail is retracted) is 
dark red, and moderately thick (Goodrich 1922). Although 
morphologically similar to the Basin's other three surviving rocksnail 
species, the plicate rocksnail is genetically distinct (Lydeard et al. 
1997, Dillon in litt. 1997).
    The plicate rocksnail historically occurred in the Black Warrior 
River and its tributary, the Little Warrior River, and the Tombigbee 
River (Goodrich 1922). Status survey efforts found populations of 
plicate rocksnails only in an approximately 88km (55 mi) reach of the 
Locust Fork of the Black Warrior River, Jefferson and Blount counties, 
Alabama (Service Field Records, Jackson, Mississippi 1991, 1992; 
Malcolm Pierson, Calera, Alabama, Field Notes 1993). Surveys during 
1996 and 1997 indicate that the snail has recently disappeared from the 
upstream two-third portion of that habitat and now appears restricted 
to an approximately 32 km (20 mi) reach in Jefferson County (Garner in 
litt. 1998).

Previous Federal Action

    The six aquatic snails were identified as Category 2 species in 
notices of review published in the Federal Register on November 21, 
1991 (56 FR 58804), and November 15, 1994 (59 FR 58982). 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, but 
for which conclusive data on biological vulnerability and threat were 
not available to support a proposed rule. Designation of Category 2 
species was discontinued in the February 28, 1996, Notice of Review (61 
FR 7596). The six snails considered in this final rule were approved as 
Candidate species by the Service on November 9, 1995, and identified as 
Candidates in the 1996 Notice of Review (61 FR 7601). A Candidate 
species is defined as a species for which the Service has on file 
sufficient information on biological vulnerability and threats to 
support issuance of a proposed rule.
    A status review summary, that included these six snails, was mailed 
on August 23, 1994 (62 letters), to appropriate species authorities, 
State and Federal agencies, private organizations, and interested 
individuals. A cover letter provided notification that a status review 
was in progress by the Service, stated that the species appeared to 
qualify for listing under the Act, and requested a review of the status 
review summary for accuracy regarding taxonomy, distribution, threats, 
and status. Three species authorities responded by telephone concurring 
with the status reviews. No other comments were received as a result of 
this notification.
    An updated status report, along with a review request, was mailed 
on March 11, 1997 (157 letters), following elevation of the snails to 
Candidate status. One snail authority concurred with the status review 
analysis; however, he recommended additional genetic studies on the 
lacy elimia (see ``Background'' section above). Two other snail 
authorities responded concurring with the analysis, as well as the 
taxonomic treatment of the six species.
    On September 5, 1995, the Service received two petitions, dated 
August 31, 1995, from a coalition of environmental organizations 
(Coosa-Tallapoosa Project, Biodiversity Legal Foundation, and Alabama 
Wilderness Alliance) represented by Mr. Ray Vaughan. The petitioners 
requested the Service to list the plicate rocksnail as endangered and 
to designate critical habitat for this species. The second petition 
requested the Service to list the lacy elimia as a threatened species 
and to designate critical habitat.
    Section 4 (b)(3)(A) of the Act and implementing regulations at 50 
CFR 424.14 require that, to the extent practicable, the Service make a 
finding of substantiality on any petition within 90 days of its 
receipt, and publish a notice of its finding in the Federal Register. 
If a substantial 90-day finding is made, the Service is required, to 
the extent practicable, within 12 months of receipt of the petition, to 
make a finding as to whether the action requested in the petition is: 
(a) Not warranted; (b) warranted; or (c) warranted but precluded. 
Because of reductions in funding and the lasting effects of a 
congressionally imposed listing moratorium from April 10, 1995, to 
April 26, 1996, the Service's listing program was essentially shut down 
and the Service was precluded from processing petitions and developing 
proposed rules from October 1, 1995, through April 26, 1996. When the 
moratorium was lifted and funds were appropriated for the 
administration of the listing program, the Service was faced with a 
significant backlog of listing activities. Petitions and other listing 
actions were processed according to the listing priority guidance 
published in the Federal Register on December 5, 1996 (61 FR 64475). 
The guidance clarified the order in which the Service processed listing 
actions during fiscal year 1997. The guidance called for giving highest 
priority (Tier 1) to handling emergency situations and second highest 
priority (Tier 2) to resolving the status of outstanding proposed 
listings. Third priority (Tier 3) was given to resolving the 
conservation status of Candidate species and processing administrative 
findings on petitions to add species to the lists or reclassify 
threatened species to endangered status. The processing of these two 
petitions and the proposed rule fell under Tier 3. A proposal to list 
three aquatic snails as endangered, and three aquatic snails as 
threatened was published in the Federal Register (62 FR 54020) on 
October 17, 1997. The proposal constituted the 90-day and 12-month 
finding on the petitioned actions. The processing of this final rule 
conforms with the Service's final listing priority guidance for fiscal 
years 1998 and 1999 published in the Federal Register on May 8, 1998 
(63 FR 25502). The guidance calls for giving highest priority (Tier 1) 
to handling emergency situations, second highest priority (Tier 2) to 
resolving the listing status of outstanding proposed listings, 
resolving the conservation status of candidate species, processing 
administrative findings on petitions, and processing a limited number 
of delistings and reclassifications, and third priority (Tier 3) to 
processing proposed and final designations of critical habitat. The 
processing of this final rule falls under Tier 2. The Southeast Region 
has no pending Tier 1 actions.

Summary of Comments and Recommendations

    In the October 17, 1997, proposed rule (62 FR 54020) and associated 
notifications, all interested parties were requested to submit factual 
information that might assist the Service in determining whether these 
taxa warrant listing. Direct notification of the proposal was made to 
205 institutions and individuals, including State and Federal agencies, 
county governments,

[[Page 57614]]

scientific organizations, and other interested parties. Newspaper legal 
notices announcing the proposal and inviting public comment were 
published in The Birmingham News, Daily Home, Montgomery Advertiser, 
and Anniston Star. The comment period closed on December 16, 1997. 
During the initial comment period, a public hearing was requested by 
Gorham & Waldrep, a legal firm representing The Birmingham Water Works 
Board. The public comment period was reopened on December 19, 1997 (62 
FR 66583), and extended until January 23, 1998, to accommodate the 
public hearing. The Service notified by letter appropriate State and 
Federal agencies, county governments, scientific organizations, and 
other interested parties of the public hearing and the reopening of the 
comment period. In addition, newspaper notices announcing the public 
hearing and reopening of the comment period were published in The 
Birmingham News, Anniston Daily Star, Montgomery Advertiser, and Daily 
Home. The hearing was held at the Dwight Beeson Hall Auditorium on the 
campus of Samford University in Birmingham, Alabama, on January 13, 
1998, with 23 people in attendance. Oral comments were received from 
six individuals, four in support of the proposed action, and two 
requesting clarification of language in the proposal.
    During the comment periods, the Service received over 200 cards and 
letters concerning the proposal. Most individuals expressed support for 
the proposed listing; however, one individual expressed concern over 
the listing of the plicate rocksnail, another individual supported 
preservation of the species but opposed the listing on constitutional 
grounds, and several individuals expressed concern over specific 
statements within the proposal.
    Written comments and oral statements presented at the public 
hearing and received during the comment periods are either incorporated 
into the appropriate section of this rule, or are addressed in the 
following summary. Comments of a similar nature or point are grouped 
into a number of general issues. These issues and the Service's 
response to each are discussed below:
    Issue 1: The Service lacks authority to regulate these species 
under the Commerce Clause of Article I, Section 8 of the United States 
Constitution.
    Response: On June 22, 1998, the Supreme Court, without comment, 
rejected the argument that using the Act to protect species that live 
only in one State goes beyond Congress' authority to regulate 
interstate commerce. This decision upholds a decision made by the 
United States Court of Appeals for the District of Columbia Circuit 
(National Association of Homebuilders vs. Babbitt, 97-1451) that 
regulation under the Act is within Congress' Commerce Clause power and 
that loss of animal diversity has a substantial effect on interstate 
commerce. Thus, although these six snails are found only within the 
State of Alabama, the Service's application of the Act to list these 
species is constitutional.
    Issue 2: Emergency listing is appropriate for the cylindrical 
lioplax, flat pebblesnail, and the plicate rocksnail.
    Response: Emergency listing is appropriate only in cases where 
imminent threats to a species have been identified requiring the 
immediate protection of the Act for the species. As noted in the 
proposed rule, nonpoint source pollution is the primary threat to all 
known populations of these six species. The deleterious effects of 
nonpoint source pollution on these snails are gradual and cumulative, 
and cannot be easily eliminated or specifically identified. Federal and 
State agencies are currently working with the Service in attempts to 
identify and address similar problems of nonpoint source pollutants on 
other listed species within the Mobile River Basin. Emergency listing 
would not accelerate this process.
    Issue 3: Endangered status is more appropriate for the lacy elimia 
and round rocksnail.
    Response: There are three known populations of the lacy elimia, and 
four known populations of the round rocksnail. The primary threat to 
populations of both species is from nonpoint source pollution. This is 
an insidious but unpredictable threat, and no two of the distinct 
populations of these species are likely to be faced with identical 
impacts from stormwater runoff since they all occupy distinct 
watersheds. Although both species have declined significantly in 
overall range, one or more populations of each species is currently 
vigorous, with high numbers of individuals and strong recruitment. 
Therefore, the Service believes that threatened status is appropriate 
for these species. If conditions should deteriorate in the future, the 
status of one or both species could be elevated to endangered.
    Issue 4: Critical habitat should be designated for all six species 
because the Alabama Department of Environmental Management (ADEM) would 
have to maintain and protect designated critical habitat as an existing 
use under Federal and State water quality regulations. The U.S. 
Environmental Protection Agency (EPA) commented that it does not have 
the authority to require water use classifications higher than the 
minimum goal of Fish and Wildlife or Swimmable, and suggested that 
designation of critical habitat might encourage the State to elevate 
the use classifications of streams where the snails occur to higher 
levels.
    Response: As discussed in the proposed rule and in this final rule 
(see ``Critical Habitat'' section), critical habitat designation, by 
definition, directly affects only Federal actions. The presence of 
listed species is already an existing use of a water body which ADEM, 
under authority delegated by EPA, is responsible to maintain. ADEM has 
been informed of the location of the six species, and the threats 
confronting them. Therefore, critical habitat designation will have no 
effect on ADEM's responsibilities to maintain State water quality that 
do not already accrue from the listing. The Service, through 
coordination and cooperation with the EPA and ADEM, will continue to 
define water quality impacts and work to revise State and Federal water 
quality standards and stream use classifications where appropriate.
    Issue 5: The Service should not construe its mandate to designate 
critical habitat as narrowly as was done in the proposed rule, i.e., 
there are benefits to critical habitat designation beyond the section 7 
consultation process. The prior controversy surrounding the proposed 
listing of the Alabama sturgeon should not be a factor in determining 
critical habitat for the snails.
    Response: The Service recognized and discussed benefits that might 
accrue from identifying stream and river reaches currently unoccupied 
by these species as critical habitat. However, because stream and river 
habitats change rapidly in response to watershed land use, and it is 
difficult to project watershed conditions and stream habitat values 
into the future, the Service is working through a dynamic process with 
State and other Federal agencies and private parties. In a cooperative 
relationship, these entities periodically survey, assess, and protect 
habitat, as well as potential habitat, for listed aquatic species and 
species of concern within the Mobile River Basin. Additionally, the 
Service believes that any benefits that might be derived from 
designation of critical habitat for these species would be outweighed 
by increasing the threat of vandalism that might result from such a 
designation. The proposed listing and designation of

[[Page 57615]]

critical habitat for the Alabama sturgeon was used as an example of 
increased potential for vandalism that can result from proposed 
designation of critical habitat. Other examples can also be given; 
however, the Alabama sturgeon inhabits the same drainage basin as these 
snails, and reflects the public mood within the basin.
    Issue 6: EPA requested clarification regarding the potential that 
these snails may be more susceptible to common pollutants than 
organisms currently used in bioassays. EPA provided a table 
demonstrating that at least nine species of snails have been used for 
bioassays in the development of criterion for arsenic, copper, lead, 
mercury, ammonia, aluminum, as well as several other chemicals, and 
showing them less sensitive than other species, e.g., guppy, crayfish, 
bluegill, etc.
    Response: None of the six snails addressed herein have been used 
for bioassays. Of the nine snail species referenced in the table 
provided by EPA, all are widespread, most occur far north of the Mobile 
River Basin, and only one is closely related to any of the six species 
considered herein. The liver elimia, Elimia livescens, is within the 
same genus as the lacy elimia, but is a widely distributed and locally 
abundant species in the Great Lakes and its drainages. The other 
species that have been used for bioassays included five pulmonate (lung 
breathing and include land and freshwater snails) snails, which are 
often considered tolerant species, two hydrobiid (small aquatic snail 
in Hydrobiidae family) species, and one viviparid species. The high 
tolerance demonstrated by the snails in the data provided by EPA 
supports the Service's assertion that current standards must be assumed 
protective until further evidence proves otherwise. The Service and EPA 
are working to identify appropriate surrogates for listed species for 
use in bioassays.
    Issue 7: Dams and impoundment may not be the primary cause of 
decline of the six snail species. The plicate rocksnail has continued 
to decline in the unimpounded Locust Fork, suggesting that nonpoint 
source pollution, or other factors not addressed in the proposed rule, 
such as flood scour, loss of food source, water temperature changes, 
etc., represent the primary threats to this species. Dams can increase 
habitat suitability for aquatic snails by providing flood flow control, 
flow augmentation, and retention of sediments and toxins.
    Response: Dams and impounded waters have long been recognized as a 
cause of decline, extirpation, and extinction of aquatic snails in the 
Basin (see discussion under Factor A in the ``Summary of Factors 
Affecting the Species'' section). Pollution, particularly nonpoint 
source pollution, is the primary threat to surviving populations of the 
six species in unimpounded stream and river habitats. Flood scour was 
not addressed in the proposed rule, and may have been, and continue to 
be a factor in the decline of the species. However, all six species 
inhabit the most dynamic portions of the stream channel and are well 
adapted to strong flows.
    The Service agrees that there are situations in which dams can 
serve to moderate or augment flows, and retain sediments and 
contaminants. However, it must also be recognized that none of the six 
snail species addressed in this rule survive in tailwaters below any of 
the many dams constructed within their historic ranges.

Summary of Factors Affecting the Species

    After a thorough review and consideration of all information 
available, the Service has determined that the cylindrical lioplax 
(Lioplax cyclostomaformis), flat pebblesnail (Lepyrium showalteri), and 
plicate rocksnail (Leptoxis plicata) should be classified as endangered 
species, and the painted rocksnail (Leptoxis taeniata), round rocksnail 
(Leptoxis ampla), and lacy elimia (Elimia crenatella) should be 
classified as threatened species. Procedures found at section 4(a)(1) 
of the Act and regulations implementing the listing provisions of the 
Act (50 CFR part 424) were followed. 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 cylindrical lioplax, flat pebblesnail, plicate 
rocksnail, painted rocksnail, round rocksnail, and lacy elimia are as 
follows:
    A. The present or threatened destruction, modification, or 
curtailment of its habitat or range. The cylindrical lioplax, flat 
pebblesnail, lacy elimia, round rocksnail, painted rocksnail, and 
plicate rocksnail have all disappeared from more than 90 percent of 
their historic ranges. All of these snails were historically, and 
continue to be, strongly associated with river or stream habitats 
characterized by flowing currents, and hard, clean bottoms (e.g., 
bedrock, boulder, gravel) (Goodrich 1922, 1936; Clench and Turner 
1955). The curtailment of habitat and range for these six species in 
the Basin's larger rivers (Coosa, Alabama, Tombigbee, and Black 
Warrior) is primarily due to extensive construction of dams and the 
inundation of the snail's shoal habitats by impounded waters. Thirty 
dams have changed this system from a continuum of free-flowing riverine 
habitats into a series of impoundments connected by short, free-flowing 
reaches. On the Alabama River, there are 3 dams (built between 1968-
1971); the Black Warrior has 5 (1915-1959); the Coosa 10 (1914-1966), 
and the Tombigbee 12 (1954-1979). Dams impound approximately 1,650 km 
(1,022 mi) of river channel in the Basin.
    These six snail species have disappeared from all portions of their 
historic habitats that have been impounded by dams. As noted earlier, 
they are all associated with fast currents over clean, hard bottom 
materials. Dams change such areas by eliminating or reducing currents, 
and allowing sediments to accumulate on inundated channel habitats. 
Impounded waters also experience changes in water chemistry which could 
affect survival or reproduction of riverine snails. For example, many 
reservoirs in the Basin currently experience eutrophic (enrichment of a 
water body with nutrients) conditions, including chronically low 
dissolved oxygen levels (Alabama Department of Environmental Management 
(ADEM) 1994, 1996). Such physical and chemical changes can affect 
feeding, respiration, and reproduction of these riffle and shoal snail 
species.
    A site on the Locust Fork River is being considered for the 
construction of a water supply impoundment, however, no formal proposal 
has been made and no permits have been issued (C. Waldrep, Gorham & 
Waldrep, P.C., Montgomery, Alabama, in litt. 1995; G. Hanson, 
Birmingham Water Works Board, in litt. 1998). Plicate rocksnails 
occurred in riffle and shoal habitats above and below the reservoir 
site in 1994. In 1996, plicate rocksnails could not be relocated in the 
portion of the river to be flooded by the reservoir; however, they were 
confirmed to continue to survive in an approximately 32 km (20 mi) 
reach of river below the potential dam site, which would be subject to 
impacts from construction activities and post-construction changes in 
water quality (Garner in litt. 1998).
    In addition to directly altering snail habitats, dams and their 
impounded waters also formed barriers to the movement of snails that 
continued to live below dams or in unimpounded tributaries. It is 
suspected that many such isolated colonies gradually disappear as a 
result of local water and habitat quality changes. Unable to emigrate 
(move out of the area), the

[[Page 57616]]

isolated snail populations are vulnerable to local discharges as well 
as any detrimental land surface runoff within their watersheds. 
Although many watershed impacts have been temporary, eventually 
improving or even disappearing with the advent of new technology, 
management practices, or laws, dams and their impounded waters prevent 
natural recolonization by snail populations surviving elsewhere.
    Prior to the passage of the Clean Water Act and the adoption of 
State water quality criteria, water pollution may have been a 
significant factor in the disappearance of snail populations from 
unimpounded tributaries of the Basin's impounded mainstem rivers. For 
example, Hurd (1974) noted the extirpation of freshwater mussel 
communities from several Coosa River tributaries, including the 
Conasauga River below Dalton, Georgia, the Chatooga River, and 
Tallaseehatchee Creek, apparently as a result of textile and carpet 
mill waste discharges. He also attributed the disappearance of the 
mussel fauna from the Etowah River, Talladega and Swamp creeks, and 
from many of the lower tributaries of the Coosa River, to organic 
pollution and siltation.
    Short-term and long-term impacts of point and nonpoint source water 
and habitat degradation continue to be a primary concern for the 
survival of all these snails, compounded by their isolation and 
localization. Point source discharges and land surface runoff (nonpoint 
pollution) can cause nutrification, decreased dissolved oxygen 
concentration, increased acidity and conductivity, and other changes in 
water chemistry that are likely to seriously impact aquatic snails. 
Point sources of water quality degradation include municipal and 
industrial effluents.
    Nonpoint source pollution from land surface runoff can originate 
from virtually all land use activities, and may include sediments, 
fertilizers, herbicides, pesticides, animal wastes, septic tank and 
gray water leakage, and oils and greases (ADEM 1996). During many 
recent surveys for these snails, sediment deposition and nutrient 
enrichment of stream reaches was noted as being associated with the 
absence of snails from historic collection localities (Bogan and 
Pierson 1993a, 1993b; Hartfield 1991; Service Field Observations 1992-
1994, Jackson Field Office, MS).
    Excessive sediments are believed to impact riverine snails 
requiring clean, hard shoal stream and river bottoms, by making the 
habitat unsuitable for feeding or reproduction. Similar impacts 
resulting from sediments have been noted for many other components of 
aquatic communities. For example, sediments have been shown to abrade 
and/or suffocate periphyton (organisms attached to underwater surfaces, 
upon which snails may feed); affect respiration, growth, reproductive 
success, and behavior of aquatic insects and mussels; and affect fish 
growth, survival, and reproduction (Waters 1995).
    Sediment is the most abundant pollutant produced in the Basin (ADEM 
1989). Potential sediment sources within a watershed include virtually 
all activities that disturb the land surface, and all localities 
currently occupied by these snails are affected to varying degrees by 
sedimentation. The amount and impact of sedimentation on snail habitats 
may be locally correlated with the land use practice. For example, the 
use of agriculture, forestry, and construction Best Management 
Practices can reduce sediment amounts and impacts.
    Land surface runoff contributes the majority of human-induced 
nutrients to water bodies throughout the country (Louisiana Department 
of Environmental Quality 1995). Excessive nutrient input (from 
fertilizers, sewage waste, animal manure, etc.) can result in periodic 
low dissolved oxygen levels that are detrimental to aquatic species 
(Hynes 1970). Nutrients also promote heavy algal growth that may cover 
and eliminate clean rock or gravel habitats of shoal dwelling snails. 
Nutrient and sediment pollution may have synergistic effects (a 
condition in which the toxic effect of two or more pollutants is much 
greater than the sum of the effects of the pollutants when operating 
individually) on freshwater snails and their habitats, as has been 
suggested for aquatic insects (Waters 1995).
    The cylindrical lioplax, flat pebblesnail, and the round rocksnail 
currently survive in localized reaches of the Cahaba River drainage. 
Water quality studies in the upper Cahaba River drainage by the 
Geological Survey of Alabama (Shepard et al. 1996) found that 
discharges from 34 waste water treatment plants (WWTPs) in the upper 
drainage have contributed to water quality impairment. This was 
reflected by low levels of dissolved oxygen downstream of Birmingham; 
ammonia and chlorination by-products in excess of recommended water 
quality criteria; and eutrophication due to excessive levels of 
phosphorus and nitrogen. The study noted that these problems are 
chronic and have been a factor in a loss of mollusk and fish diversity 
throughout the drainage. Their results indicate that the upper Cahaba 
River drainage is primarily impacted by nonpoint runoff and WWTPs 
through physical habitat destruction by sedimentation, and chronic 
stress from exposure to toxics and low dissolved oxygen. The middle 
Cahaba River is primarily impacted by eutrophication and associated 
affects.
    The lacy elimia is now restricted to three small stream channels in 
Talladega County, Alabama--Cheaha, Emauhee, and Weewoka creeks (Coosa 
River drainage). The painted rocksnail currently survives in localized 
reaches of three other Coosa River tributaries, Choccolocco, 
Buxahatchee, and Ohatchee creeks. The plicate rocksnail inhabits a 
single short reach of the Locust Fork River in Jefferson County, 
Alabama (Black Warrior River drainage). All of these streams are 
variously impacted by sediments and nutrients from a variety of 
upstream rural, suburban, and/or urban sources. The streams are all 
small to moderate in size and volumes of flow, and their water and 
habitat quality can be rapidly affected by local and offsite pollution 
sources.
    B. Overutilization for commercial, recreational, scientific, or 
educational purposes. The six aquatic snail species are currently not 
of commercial value, and overutilization has not been a problem. 
However, as their rarity becomes known, they may become more attractive 
to collectors. Unregulated collecting by private and institutional 
collectors poses a threat. The cylindrical lioplax, flat pebblesnail, 
plicate rocksnail, painted rocksnail, round rocksnail, and lacy elimia 
inhabit shallow, fast-flowing waters of shoals and riffles. Because of 
their occurrence and exposure in such areas, they are readily 
vulnerable to overcollecting and/or vandalism. In these areas, the 
snails are also exposed to crushing by recreational activities such as 
canoeing, wading, swimming, or fishing; however, normal recreational 
activities are not believed to be a factor in their decline.
    C. Disease or predation. Aquatic snails are consumed by various 
vertebrate predators, including fishes, mammals, and possibly birds. 
Predation by naturally occurring predators is a normal aspect of the 
population dynamics of a species and is not considered a threat to 
these species. However, the potential now exists for black carp 
(Mylopharyngodon piceus), a nonselective molluskivore recently 
introduced into waters of the United States, to eventually enter the 
Mobile River Basin. Exotic black carp recently escaped to the Osage 
River in Missouri when hatchery ponds were flooded during a 1994 spring 
flood of the river

[[Page 57617]]

(LMRCC newsletter, 1994). The extent of stocking black carp for snail 
control in aquaculture ponds within the Basin is unknown; however, 
black carp are currently cultured and sold within the State of 
Mississippi (D. Reike, Mississippi Department of Wildlife, Fisheries, 
and Parks, 1997).
    D. The inadequacy of existing regulatory mechanisms. Although the 
negative effects of point source discharges on aquatic communities have 
probably been reduced over time by compliance with State and Federal 
regulations pertaining to water quality, there is currently no 
information on the sensitivity of the Mobile River Basin snail fauna to 
common industrial and municipal pollutants. Current State and Federal 
regulations regarding such discharges are assumed to be protective; 
however, these snails may be more susceptible to some pollutants than 
test organisms currently used in bioassays. A lack of adequate research 
and data currently may prevent existing authorities, such as the Clean 
Water Act (CWA), administered by EPA and the Army Corps of Engineers 
(Corps), from being fully utilized. The Service is currently working 
with EPA to develop a Memorandum of Agreement that will address how EPA 
and the Service will interact relative to CWA water quality criteria 
and standards within the Service's Southeast Region.
    Lacking State or Federal recognition, these snails are not 
currently given any special consideration under other environmental 
laws when project impacts are reviewed.
    E. Other natural or manmade factors affecting its continued 
existence. The narrow distribution of extant populations of all six 
snail species and the nature of their habitats (i.e., small to moderate 
sized streams) renders them vulnerable to a natural catastrophic event 
(e.g., flood, drought).
    Habitat fragmentation and population isolation are a significant 
threat to the continued survival of the lacy elimia and painted 
rocksnail. The known populations of these two species are isolated by 
extensive areas of impoundment, and there is little, if any, 
possibility of genetic exchange between them. Over time, this isolation 
may result in genetic drift, with each population becoming unique and 
vulnerable to environmental disturbance.
    The Service has carefully assessed the best scientific and 
commercial information available regarding the past, present, and 
future threats faced by these species in determining to make this rule 
final. Based on these evaluations, the preferred action is to list the 
cylindrical lioplax, flat pebblesnail, and plicate rocksnail as 
endangered; and the painted rocksnail, round rocksnail, and lacy elimia 
as threatened. All of these species have been rendered vulnerable due 
to significant loss of habitat and severe range restriction.
    The cylindrical lioplax is confined in distribution to a short 
reach of the Cahaba River. The flat pebblesnail currently survives in 
localized portions of the Cahaba River and the Little Cahaba River. 
Both species are vulnerable to extinction by their confined ranges, and 
current impacts from water quality degradation in the Cahaba River 
drainage. The single known population of the plicate rocksnail has 
experienced a significant reduction in range within the past 2 years, 
apparently due to pollution of its habitat from nonpoint sources. 
Habitat that was, until recently, occupied by the species is within a 
potential site for reservoir construction. Endangered status is 
appropriate for these three species due to their single populations, 
restricted numbers within these populations, existing threats to their 
occupied habitats, and in the case of the plicate rocksnail, an ongoing 
decline in range.
    The lacy elimia, painted rocksnail, and round rocksnail are each 
currently known from three distinct drainage localities. Extant 
populations and colonies of these three species are localized, 
isolated, and are vulnerable to water quality degradation, future human 
activities that would degrade their habitats, and random catastrophic 
events. Threatened status is considered more appropriate for these 
species due to the larger number of populations or colonies, and the 
less immediate nature of these threats.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) the 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
consideration or protection; and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. ``Conservation'' means the use of all methods and 
procedures that are necessary to bring the species to the point at 
which the measures provided pursuant to the Act are no longer 
necessary.
    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require 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. Service 
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: (i) 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 (ii) such designation of critical 
habitat would not be beneficial to the species. The Service finds that 
designation of critical habitat is not presently prudent for any of 
these six aquatic snails.
    Critical habitat designation, by definition, directly affects only 
Federal agency actions. Since these snail species are aquatic 
throughout their life cycles, Federal actions that might affect these 
species and their habitats include those with impacts on stream channel 
geometry, bottom substrate composition, water quantity and quality, and 
stormwater runoff. Such activities would be subject to review under 
section 7(a)(2) of the Act, whether or not critical habitat was 
designated. Section 7(a)(2) requires Federal agencies to ensure that 
activities they authorize, fund, or carry out are not likely to 
jeopardize the continued existence of a listed species or to destroy or 
adversely modify its critical habitat. The cylindrical lioplax, flat 
pebblesnail and plicate rocksnail have become so restricted in 
distribution that any significant adverse modification or destruction 
of their occupied habitats would likely jeopardize their continued 
existence. The round rocksnail, painted rocksnail, and lacy elimia are 
not as restricted in distribution as the other three snails, none the 
less, projects found to cause a significant adverse modification or 
destruction of their occupied habitats would also likely jeopardize 
their continued existence. This would also hold true as the species 
recovers and its numbers increase. Therefore, habitat protection for 
these six species can be accomplished through the section 7 jeopardy 
standard and there is no benefit in designating currently occupied 
habitat of these species as critical habitat.
    Recovery of these species will require the identification of 
unoccupied stream and river reaches appropriate for reintroduction. 
Critical habitat designation of unoccupied stream and river reaches 
might benefit these species by alerting permitting agencies to

[[Page 57618]]

potential sites for reintroduction and allow them the opportunity to 
evaluate projects which may affect these areas. The Service is 
currently working with the State and other Federal agencies to 
periodically survey and assess habitat potential of stream and river 
reaches for listed and candidate aquatic species within the Mobile 
River basin. This process provides up to date information on instream 
habitat conditions in response to land use changes within watersheds. 
Information generated from surveys and assessments is disseminated 
through Service coordination with other agencies. The Service will 
continue to work with State and Federal agencies, as well as private 
property owners and other affected parties, through the recovery 
process to identify stream reaches and potential sites for 
reintroduction of these species. Thus, any benefit that might be 
provided by designation of unoccupied habitat as critical will be 
accomplished more effectively with the current coordination process and 
is preferable for aquatic habitats which change rapidly in response to 
watershed land use practices. In addition, the Service believes that 
any potential benefits to critical habitat designation are outweighed 
by additional threats to the species that would result from such 
designation, as discussed below.
    Though critical habitat designation directly affects only Federal 
agency actions, this process can arouse concern and resentment on the 
part of private landowners and other interested parties. The 
publication of critical habitat maps in the Federal Register and local 
newspapers, and other publicity or controversy accompanying critical 
habitat designation may increase the potential for vandalism as well as 
other collection threats (See Factor B under ``Summary of Factors 
Affecting the Species'' section). For example, on June 15, 1993, the 
Alabama sturgeon was proposed for endangered status with critical 
habitat (59 FR 33148). Proposed critical habitat included the lower 
portions of the Alabama, Cahaba, and Tombigbee rivers in south Alabama. 
The proposal generated thousands of comments with the primary concern 
that the actions would devastate the economy of the State of Alabama 
and severely impact adjoining States. There were reports from State 
conservation agents and other knowledgeable sources of rumors inciting 
the capture and destruction of Alabama sturgeon. A primary contributing 
factor to this controversy was the proposed designation of critical 
habitat for the sturgeon.
    The six snail species addressed in this rule are especially 
vulnerable to vandalism. They all are found in shallow shoals or 
riffles in restricted stream and river segments. The flat pebblesnail, 
plicate rocksnail, round rocksnail, painted rocksnail, and lacy elimia 
attach to the surfaces of bedrock, cobble, or gravel, while the 
cylindrical lioplax is found under large boulders. The six species are 
relatively immobile and unable to escape collectors or vandals. They 
inhabit remote but easily accessed areas, and they are sensitive to a 
variety of easily obtained commercial chemicals and products. Because 
of these factors, vandalism or collecting could be undetectable and 
uncontrolled. For example, the plicate rocksnail recently disappeared 
from approximately 80 percent of its known occupied habitat. While the 
Service has been unable to determine the cause of this decline, the 
disappearance illustrates the vulnerability of this and the other snail 
species.
    All known populations of these six snail species occur in streams 
flowing through private lands. The primary threat to all surviving 
populations appears to be pollutants in stormwater runoff that 
originate from private land activities (see Factor A). Therefore, the 
survival and recovery of these snails will be highly dependent on 
landowner cooperation in reducing land use impacts. Controversy 
resulting from critical habitat designation has been known to reduce 
private landowner cooperation in the management of species listed under 
the Act (e.g., spotted owl, golden cheeked warbler). The Alabama 
sturgeon experience suggests that critical habitat designation could 
affect landowner cooperation within watersheds occupied by these six 
snails.
    Based on the above analysis, the Service has concluded critical 
habitat designation would provide little additional benefit for these 
species beyond those that would accrue from listing under the Act. The 
Service also concludes that any potential benefit from such a 
designation would be offset by an increased level of vulnerability to 
vandalism or collecting, and by a possible reduction in landowner 
cooperation to manage and recover these species. The designation of 
critical habitat for these six snail species is not prudent.

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, as amended, 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)(2) 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 
adversely affect a listed species or its critical habitat, the 
responsible Federal agency must enter into formal consultation with the 
Service.
    Federal activities that could occur and impact these species 
include, but are not limited to, the carrying out or the issuance of 
permits for reservoir construction, stream alterations, discharges, 
wastewater facility development, water withdrawal projects, pesticide 
registration, mining, and road and bridge construction. Activities 
affecting water quality may also impact these species and are subject 
to the Corps and EPA's regulations and permit requirements under 
authority of the CWA and the National Pollutant Discharge Elimination 
System (NPDES). It has been the experience of the Service, however, 
that nearly all section 7 consultations have been resolved so that the 
species have been protected and the project objectives have been met. 
Other than a potential dam on the Locust Fork River, Jefferson and 
Blount counties, Alabama, no other Federal activities that may affect 
these species are currently known to be under consideration.
    The Act and its implementing regulations found at 50 CFR 17.21 for 
endangered species, and 17.21 and 17.31 for threatened species, set 
forth a series of general prohibitions and exceptions that apply to all 
endangered or threatened 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,

[[Page 57619]]

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 also is illegal to possess, sell, deliver, 
carry, transport, or ship any 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 or threatened wildlife species under certain 
circumstances. Regulations governing permits are at 50 CFR 17.22 for 
endangered species and 17.32 for threatened species. 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. For threatened species, there are also 
permits for zoological exhibition, educational purposes, or special 
purposes consistent with the purposes of the Act.
    It is the policy of the Service, published in the Federal Register 
on July 1, 1994 (59 FR 34272), to identify, to the maximum extent 
practicable, those activities that would or 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 future 
and ongoing activities within a species' range.
    Activities which the Service believes are unlikely to result in a 
violation of section 9 for these six snails are:
    (1) Existing discharges into waters supporting these species, 
provided these activities are carried out in accordance with existing 
regulations and permit requirements (e.g., activities subject to 
sections 402, 404, and 405 of the Clean Water Act and discharges 
regulated under the NPDES.
    (2) Actions that may affect these six snail species and are 
authorized, funded or carried out by a Federal agency when the action 
is conducted in accordance with any reasonable and prudent measures 
given by the Service in accordance with section 7 of the Act.
    (3) Normal agricultural and silvicultural practices that are 
carried out in accordance with any existing regulations, permit 
requirements, and best management practices.
    (4) Development and construction activities designed and 
implemented pursuant to Federal, State, and local water quality 
regulations.
    (5) Existing recreational activities such as swimming, wading, 
canoeing, and fishing.
    Activities that the Service believes could potentially result in 
``take'' of these snails include:
    (1) The unauthorized collection or capture of the species;
    (2) Unauthorized destruction or alteration of the species habitat 
(e.g., instream dredging, channelization, discharge of fill material);
    (3) Violation of any discharge or water withdrawal permit;
    (4) Illegal discharge or dumping of toxic chemicals or other 
pollutants into waters supporting the species.
    Other activities not identified above will be reviewed on a case-
by-case basis to determine if a violation of section 9 of the Act may 
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 may constitute a 
violation of section 9 should be directed to the Field Supervisor of 
the Service's Jackson Field Office (see ADDRESSES section). Requests 
for copies of regulations regarding listed species and inquiries about 
prohibitions and permits should be addressed to the U.S. Fish and 
Wildlife Service, Ecological Services Division, 1875 Century Boulevard, 
Atlanta, Georgia 30345 (Phone 404/679-7313; Fax 404/679-7081).

National Environmental Policy Act

    The Fish and Wildlife 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).

Paperwork Reduction Act

    This rule does not contain any new collections of information other 
than those already approved under the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq., and assigned Office of Management and Budget 
clearance number 1018-0094. An agency may not conduct or sponsor, and a 
person is not required to respond to a collection of information, 
unless it displays a currently valid control number. For additional 
information concerning permit and associated requirements for 
endangered and threatened species, see 50 CFR 17.22 and 17.32, 
respectively.

References Cited

    A complete list of all references cited herein, as well as others, 
is available upon request from the Field Supervisor (see ADDRESSES 
section).

Author

    The primary author of this final rule is Paul Hartfield (see 
ADDRESSES section)(601/965-4900, extension 25).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

    Accordingly, the Service amends part 17, subchapter B of chapter I, 
title 50 of the Code of Federal Regulations, as follows:

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. Amend section 17.11(h) by adding the following, in alphabetical 
order under SNAILS, 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
--------------------------------------------------------------------------------------------------------------------------------------------------------
                   *                  *                  *                  *                  *                  *                  *
              Snails
                   *                  *                  *                  *                  *                  *                  *
Elimia, lacy.....................  Elimia crenatella...  U.S.A. (AL)........  NA.................  T                       651           NA           NA

[[Page 57620]]

                   *                  *                  *                  *                  *                  *                  *
Lioplax, cylindrical.............  Lioplax               U.S.A. (AL)........  NA.................  E                       651           NA           NA
                                    cyclostomaformis.
                   *                  *                  *                  *                  *                  *                  *
Pebblesnail, flat................  Lepyrium showalteri.  U.S.A. (AL)........  NA.................  E                       651           NA           NA
                   *                  *                  *                  *                  *                  *                  *
Rocksnail, painted...............  Leptoxis taeniata...  U.S.A. (AL)........  NA.................  T                       651           NA           NA
                   *                  *                  *                  *                  *                  *                  *
Rocksnail, plicate...............  Leptoxis plicata....  U.S.A. (AL)........  NA.................  E                       651           NA           NA
                   *                  *                  *                  *                  *                  *                  *
Rocksnail, round.................  Leptoxis ampla .....  U.S.A. (AL)........  NA.................  T                       651           NA           NA
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Dated: October 16, 1998.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 98-28884 Filed 10-27-98; 8:45 am]
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