[Federal Register Volume 66, Number 133 (Wednesday, July 11, 2001)]
[Proposed Rules]
[Pages 36229-36246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-16867]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH31


Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for the Carolina Heelsplitter

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), propose to 
designate critical habitat for the Carolina heelsplitter (Lasmigona 
decorata), a freshwater mussel, under the Endangered Species Act of 
1973, as amended (Act). The areas proposed for critical habitat 
designation include portions of a river and nine creeks in North 
Carolina and/or South Carolina. This action comes as a result of a 
lawsuit filed against us by the Southern Appalachian Biodiversity 
Project and the Foundation for Global Sustainability. If this proposal 
is made final, Federal agencies must ensure that actions they fund, 
permit, or carry out are not likely to result in the destruction or 
adverse modification of critical habitat. State or private actions, 
with no Federal involvement, would not be affected by this rulemaking 
action.

DATES: We will consider comments received by September 10, 2001. 
Requests for public hearings must be received, in writing, at the 
address shown in the ADDRESSES section by August 27, 2001.

ADDRESSES: If you wish to comment, you may submit your comments by any 
one of several methods:
    1. You may submit written comments and information to the State 
Supervisor, Asheville Field Office, U.S. Fish and Wildlife Service, 160 
Zillicoa Street, Asheville, North Carolina 28801.
    2. You may hand-deliver written comments to our Asheville Field 
Office, at the above address, or fax your comments to 828/258-5330.
    3. You may send comments by electronic mail (e-mail) to 
[email protected]. For directions on how to submit electronic 
filing of comments, see the ``Public Comments Solicited'' section.
    Comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the above address.

FOR FURTHER INFORMATION CONTACT: John A. Fridell, Fish and Wildlife 
Biologist (telephone 828/258-3939).

SUPPLEMENTARY INFORMATION:

Background

    Lea (1852) originally described the Carolina heelsplitter, a 
freshwater mussel, as Unio decoratus. Johnson (1970) synonymized this 
species with Lasmigona subviridis (Conrad 1835). Clarke (1985) 
recognized the Carolina heelsplitter as a distinct species, Lasmigona 
decorata, and synonymized Unio charlottensis (Lea 1863) and Unio 
insolidus (Lea 1872) with Lasmigona decorata. A genetic comparison of a 
specimen of L. decorata with specimens of L. subviridis (Tim King, U.S. 
Geological Survey, Leetown, West Virginia, pers. comm. 2001) supports 
Clarke's (1985) position on the taxonomy (scientific classification) of 
this species.
    The Carolina heelsplitter has an ovate, trapezoid-shaped, 
unsculptured (smooth with no noticeable bumps or protrusions) shell. 
The shell of the largest known specimen measures 11.5 centimeters (cm) 
(4.5 inches (in)) in length, 3.9 cm (1.5 in) in width, and 6.8 cm (2.7 
inches) in height. The shell's outer surface varies from greenish brown 
to dark brown in color, and shells from younger specimens have faint 
greenish brown or black rays. The nacre (inside surface) is often 
pearly white to bluish white, grading to orange in the area of the umbo 
(bulge or beak, protrudes near the hinge of a mussel). However, in 
older specimens the entire nacre may be a mottled pale orange. The 
hinge teeth (pseudocardinal teeth and lateral teeth) of the species are 
well developed but thin and rather delicate. The left valve (half of a 
mussel shell) has two blade-like pseudocardinal teeth and two lateral 
teeth, and the right valve has one of each. The left valve may also 
have an interdental projection, a slight projection located between the 
lateral and pseudocardinal teeth (adapted from Keferl 1991). Clarke 
(1985) contains a detailed description of the species' shell, with 
illustrations.

Distribution, Habitat, and Life History

    The Carolina heelsplitter currently has a very fragmented, relict 
distribution but historically was known from several locations within 
the Catawba and Pee Dee River systems in North Carolina and the Pee Dee 
and Savannah River systems, and possibly the Saluda River system, in 
South Carolina. Historically, the species was collected from the 
Catawba River, Mecklenburg County, North Carolina; several streams and 
``ponds'' in the Catawba River system around the Charlotte area of 
Mecklenburg County, North Carolina; one small stream in the Pee Dee 
River system in Cabarrus County, North Carolina; one ``pond'' in the 
Pee Dee River system in Union County, North Carolina; and an area in 
South Carolina referred to only as the ``Abbeville District,'' a 
terminology no longer employed (Clarke 1985, Keferl and Shelly 1988, 
Keferl 1991). The records from the Abbeville District, South Carolina, 
were previously believed to have been from the Saluda River system 
(Clarke 1985, Keferl and Shelly 1988, Keferl 1991, Service 1993). 
However, biologists discovered a population of the Carolina 
heelsplitter in the spring of 1995 in the Savannah River system 
(Stevens Creek watershed) (Alderman 1995, 1998a, and 1998b). Therefore, 
the historic records from the Abbeville District may have been from 
either the Saluda River system or the Savannah River system or both. An 
additional historic record of the Carolina heelsplitter from the main 
stem of the Pee Dee River in Richmond County, North Carolina, was 
recently discovered (Art Bogan, North Carolina Museum of Science and 
Natural History, pers. comm. 2001); however, surveys by biologists with 
the North Carolina Wildlife Resources Commission (NCWRC) and North 
Carolina Department of Transportation have failed to turn up any 
evidence of a surviving population of the species at,

[[Page 36230]]

or in the vicinity of, the site of this record (John Alderman, NCWRC, 
personal communication 2001).
    Recent collection records (Keferl and Shelly 1988; Keferl 1991; 
Alderman 1995, 1998a, and 1998b; North Carolina Wildlife Resources 
Commission 1999 and 2000) indicate that the Carolina heelsplitter has 
been eliminated from the majority of its historical range, and only six 
populations of the species are presently known to exist. In Union 
County, North Carolina, one small remnant population occurs in the 
Catawba River system in Waxhaw Creek, a tributary to the Catawba River, 
and another small population occurs in both Duck Creek (a tributary to 
Goose Creek) and Goose Creek, a tributary in the Pee Dee River system. 
In South Carolina, there are four small surviving populations--one each 
in the Pee Dee and Catawba River systems and two in the Savannah River 
system. The population in the Pee Dee River system occurs in a 
relatively short reach of the Lynches River in Chesterfield, Lancaster, 
and Kershaw Counties and extends into Flat Creek, a tributary to the 
Lynches River in Lancaster County. In the Catawba River system, the 
species survives only in a short reach of Gills Creek in Lancaster 
County. In the Savannah River system, one population is found in Turkey 
Creek and two of its tributaries, Mountain Creek and Beaverdam Creek in 
Edgefield County, and another smaller population survives in Cuffytown 
Creek, in Greenwood and McCormick Counties. No evidence of a surviving 
population has been found in recent years in the Saluda River system.
    Historically, the Carolina heelsplitter was reported from small to 
large, moderate-gradient streams and rivers as well as ponds. The 
``ponds'' referred to in historic records are believed to have been 
mill ponds on some of the smaller streams within the species' historic 
range (Keferl 1991). Presently, the species is known to occur in only 
ten small streams and one small river. It has been recorded from a 
variety of substrata including mud, clay, sand, gravel, cobble/boulder/
bedrock without significant silt accumulations, along stable, well-
shaded stream banks (Keferl and Shelly 1988, Keferl 1991). However, in 
Mountain Creek in Edgefield County, South Carolina, two young, live 
individuals were found near the center of the stream channel in a 
stable, relatively silt-free substrate comprised primarily of a mixture 
of coarse sand, gravel, and cobble, with scattered areas of exposed 
boulders/bedrock (J.A. Fridell, personal observation, 1995). It is 
conceivable that this is the preferred habitat type for the species and 
that in other areas scouring and degradation of the gravelly substrata 
has restricted the species to softer substrata found along the portions 
of the stream banks that receive less scouring. In either case, the 
stability of the stream banks and stream-bottom substrata appear to be 
critical to the species. Keferl (1991) noted that in his surveys of 
Goose, Waxhaw, and Flat Creeks and the Lynches River, he found the 
highest concentrations of the species in (bank) undercuts and along 
shaded banks stabilized with extensive tree roots, a buried log, and/or 
rocks.
    Like other freshwater mussels, the Carolina heelsplitter feeds by 
filtering food particles from the water column. The specific food 
habits of the species are unknown, but other freshwater mussels have 
been documented to feed on detritus (decaying organic matter), diatoms 
(various minute algae), phytoplankton (microscopic floating aquatic 
plants), and zooplankton (microscopic floating aquatic animals). The 
reproductive cycle of the Carolina heelsplitter is likely similar to 
that of other native freshwater mussels. Males release sperm into the 
water column; the sperm are then taken in by the females through their 
siphons during feeding and respiration. The females retain the 
fertilized eggs in their gills until the larvae (glochidia) fully 
develop. The mussel glochidia are released into the water, and within a 
few days they must attach to the appropriate species of fish, which are 
then parasitized for a short time while the glochidia develop into 
juvenile mussels. They then detach from their ``fish host'' and sink to 
the stream bottom where they continue to develop, provided they land in 
a suitable substrate with the correct water conditions. The Carolina 
heelsplitter's life span, the fish host species, and many other aspects 
of its life history are unknown.

Reasons for Decline and Threats to Surviving Populations

    Available information indicates that several factors adversely 
affect the water and habitat quality of our creeks and rivers and have 
contributed to the decline and loss of populations of the Carolina 
heelsplitter and threaten the remaining populations. These factors 
include pollutants in wastewater discharges (sewage treatment plants 
and industrial discharges); habitat loss and alteration associated with 
impoundments, channelization, and dredging operations; increased storm-
water run-off; and the run-off of silt, fertilizers, pesticides, and 
other pollutants from poorly implemented land-use activities (Service 
1993 and 1997). Many of the streams in the area of Charlotte, North 
Carolina, that are known to have historically supported the Carolina 
heelsplitter, but which no longer do, have been degraded by a 
combination of the factors listed above and appear to no longer 
support, or be capable of supporting, any species of native mussels. 
Additionally, large reaches of the main stems of the Pee Dee, Catawba, 
Saluda, and upper Savannah Rivers, that likely once supported the 
Carolina heelspitter, have been affected by impoundments, as well as 
the other factors listed above, and have lost much of their historic 
freshwater mussel abundance and diversity.
    Freshwater mussels, especially in their early life stages, are 
extremely sensitive to many pollutants (chlorine, ammonia, heavy 
metals, high concentrations of nutrients, etc.) commonly found in 
municipal and industrial wastewater effluents (Havlik and Marking 1987, 
Goudreau et al. 1988, Keller and Zam 1991). In the early 1900s, Ortmann 
(1909) noted that the disappearance of mussels is one of the first and 
most reliable indicators of stream pollution.
    Activities such as impoundments, channelization projects, and in-
stream dredging operations eliminate mussel habitat. These activities 
can also alter the quality and stability of the remaining stream 
reaches by affecting the flow regimes, water velocities, and water 
temperature and chemistry.
    Agriculture (both crop and livestock) and forestry operations, 
highway and road construction, residential and industrial developments, 
and other construction and land-use activities that do not adequately 
control soil erosion and storm-water run-off contribute excessive 
amounts of silt, pesticides, fertilizers, heavy metals, and other 
pollutants. These pollutants suffocate and poison freshwater mussels. 
The run-off of storm water from cleared areas, roads, rooftops, parking 
lots, and other developed areas, that is often ditched or piped 
directly into streams, not only results in stream pollution but also 
results in increased water volume and velocity during heavy rains. This 
change in water volume and velocity causes channel and stream-bank 
scouring that leads to the degradation and elimination of mussel 
habitat. Construction and land-clearing operations are particularly 
detrimental when they result in the alteration of flood plains or the 
removal of forested stream buffers that ordinarily would help maintain 
water quality and the stability of stream banks and channels by 
absorbing, filtering, and slowly

[[Page 36231]]

releasing rainwater. Also, when storm water run-off increases from 
land-clearing activities, less water is absorbed to recharge ground 
water levels. Therefore, flows during dry months can decrease and 
adversely affect mussels and other aquatic organisms.

Previous Federal Actions

    We recognized the Carolina heelsplitter in the Animal Notice of 
Review published in the January 6, 1989, Federal Register (54 FR 579) 
as a species under review for potential addition to the Federal List of 
Endangered and Threatened Wildlife and Plants. In that document, we 
designated the Carolina heelsplitter as a category 2 candidate for 
Federal listing. We no longer maintain a list of category 2 candidate 
species. At that time, category 2 represented those species for which 
we had some information indicating that the taxa may be under threat, 
but sufficient information was lacking to determine if they warranted 
Federal listing and to prepare a proposed rule. Subsequently, surveys 
of historical and potential Carolina heelsplitter habitat were 
conducted and revealed that the species had undergone a significant 
decline throughout its historical range and that the remaining known 
occurrences were threatened by many of the same factors that are 
believed to have resulted in this decline.
    On May 26, 1992, we published in the Federal Register (57 FR 21925) 
a proposed rule to list the Carolina heelsplitter as an endangered 
species. The proposed rule provided information on the species' 
biology, status, and threats to its continued existence and included 
our proposed determination that the designation of critical habitat was 
not prudent for the Carolina heelsplitter. We solicited comments and 
suggestions concerning the proposed rule from the public, concerned 
governmental agencies, the scientific community, industry, and other 
interested parties.
    Following our review of all the comments and information received 
throughout the listing process, by final rule (58 FR 34926) dated June 
30, 1993, we listed the Carolina heelsplitter as endangered. We 
addressed the comments received throughout the listing process and 
incorporated appropriate changes into the final rule. That decision 
included our determination that the designation of critical habitat was 
not prudent for the Carolina heelsplitter because, after a review of 
all the available information, we determined that the Carolina 
heelsplitter was threatened by taking and that the designation of 
critical habitat could be expected to increase the degree of such 
threat to the species and would not be beneficial to the species (see 
``Prudency Determination'' section below).
    On June 30, 1999, the Southern Appalachian Biodiversity Project and 
the Foundation for Global Sustainability filed a lawsuit in United 
States District Court for the District of Columbia against the Service, 
the Director of the Service, and the Secretary of the Department of the 
Interior, challenging the Service's ``not prudent'' critical habitat 
determinations for four species in North Carolina--the Carolina 
heelsplitter (Lasmigona decorata), spruce-fir moss spider (Microhexura 
montivaga), Appalachian elktoe (Alasmidonta raveneliana), and rock 
gnome lichen (Gymnoderma lineare). On February 29, 2000, the U.S. 
Department of Justice entered into a settlement agreement with the 
plaintiffs in which we agreed to reexamine our prudency determination 
and submit to the Federal Register, by July 1, 2001, a withdrawal of 
the existing not prudent determination for the Carolina heelsplitter, 
together with a new proposed critical habitat determination if 
appropriate. We agreed further that if, upon consideration of all the 
available information and comments, we determine that designating 
critical habitat is not prudent for the Carolina heelsplitter, we will 
submit a final rule of that finding to the Federal Register by January 
1, 2002. On the other hand, if we determine that the designation of 
critical habitat is prudent for the Carolina heelsplitter, we will send 
a final rule of this finding to the Federal Register by April 1, 2002.
    This proposal is the product of our reexamination of our prudency 
determination for the Carolina heelsplitter and reflects our 
interpretation of the recent judicial opinions on critical habitat 
designation and the standards placed on us for making a not prudent 
determination. If additional information becomes available on the 
species' biology and distribution and threats to the species, we may 
reevaluate this proposal to designate critical habitat, including 
proposing additional critical habitat, proposing the deletion or 
boundary refinement of existing proposed critical habitat, or 
withdrawing our proposal to designate critical habitat.

Prudency Determination

    Section 4(a)(3) of the Act and implementing regulations (50 CFR 
424.12) require that, to the maximum extent prudent and determinable, 
we designate critical habitat at the time a species is determined to be 
endangered or threatened. Regulations under 50 CFR 424.12(a)(1) state 
that the 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. In our June 30, 1993, final rule, we determined that the 
designation of critical habitat was not prudent for the Carolina 
heelsplitter for both of these reasons.
    A critical habitat designation has no effect on actions on private 
or State land unless these actions require Federal funds or a Federal 
permit. Section 7 of the Act, and the implementing regulations, provide 
for the protection of designated critical habitat as they require 
Federal agencies to ensure, in consultation with us, that activities 
they fund, authorize, or carry out are not likely to result in the 
destruction or adverse modification of designated critical habitat. 
Section 7 also requires Federal agencies to ensure, in consultation 
with us, that activities they fund, authorize, or carry out are not 
likely to jeopardize the continued existence of listed species. 
Regulations for the implementation of section 7 of the Act (50 CFR 
402.2) provide for both a ``jeopardy'' standard and an ``adverse 
modification or destruction of critical habitat'' standard. The 
regulations at 50 CFR 402.2 define ``jeopardize the continued existence 
of'' as meaning to engage in an action that would reasonably be 
expected, directly or indirectly, to appreciably reduce the likelihood 
of both the ``survival and recovery'' of a listed species in the wild 
by reducing the reproduction, numbers, or distribution of that species. 
``Destruction or adverse modification'' is defined as a direct or 
indirect alteration that appreciably diminishes the value of critical 
habitat for both the ``survival and recovery'' of a listed species. 
These regulations require that the analysis of adverse modification or 
destruction of critical habitat, like the jeopardy analysis, consider 
the detrimental effects of a proposed Federal action to both the 
survival and recovery of the listed species. Because of the restricted 
range and limited amount of suitable habitat available to the Carolina 
heelsplitter, we determined in the June 30, 1993, final rule that any 
action that would likely result in the destruction or adverse 
modification of the species' habitat would also likely jeopardize the 
species' continued existence. Because

[[Page 36232]]

Federal actions resulting in jeopardy are also prohibited by section 7, 
we determined that the designation of critical habitat would not 
provide any additional protection benefitting the species beyond that 
provided by the jeopardy standard.
    In addition, we were concerned that the rarity and uniqueness of 
the Carolina heelsplitter could generate interest in the species and 
that the publicity associated with the designation of critical habitat, 
together with the publication of maps and descriptions of critical 
habitat, could increase the vulnerability of the species. The majority 
of the streams that support surviving populations of the species are 
small creeks, and the species is basically immobile and cannot escape 
collectors or vandals. Because all of the surviving populations are 
small, collection of the Carolina heelsplitter or other take would have 
a severe adverse effect on the species.
    However, in the past few years, several of our determinations that 
the designation of critical habitat would not be prudent have been 
overturned by court decisions. For example, in Conservation Council for 
Hawaii v. Babbitt, the United States District Court for the District of 
Hawaii ruled that the Service could not rely on the ``increased 
threat'' rationale for a ``not prudent'' determination without specific 
evidence of the threat to the species at issue (2 F. Supp. 2d 1280 [D. 
Hawaii 1998]). Additionally, in Natural Resources Defense Council v. 
U.S. Department of the Interior, the United States Court of Appeals for 
the Ninth Circuit ruled that the Service must balance, in order to 
invoke the ``increased threat rationale,'' the threat against the 
benefit to the species of designating critical habitat 113 F. 3d 1121, 
1125 (9th Cir. 1997).
    We continue to be concerned that the Carolina heelsplitter is 
vulnerable to unrestricted collection, vandalism, or disturbance of its 
habitat and that these threats might be increased by the designation of 
critical habitat, publication of critical habitat maps, and further 
dissemination of location and habitat information. The low numbers and 
restricted range of the Carolina heelsplitter make it unlikely that its 
populations could withstand even moderate collecting pressure, habitat 
disturbance, or other take. However, at this time we do not have 
specific evidence for the taking, collection, trade, vandalism, or 
other unauthorized human disturbance specific to the Carolina 
heelsplitter. Consequently, we propose to withdraw our previous 
determination that the identification of critical habitat can be 
expected to increase the degree of threat to the species.
    The courts also have ruled that, in the absence of a finding that 
the designation of critical habitat would increase threats to a 
species, the existence of another type of protection, even if it offers 
potentially greater protection to the species, does not justify a ``not 
prudent'' finding (Conservation Council for Hawaii v. Babbitt 2 F. 
Supp. 2d 1280). We are already working with Federal and State agencies, 
private individuals, and organizations in carrying out conservation 
activities for the Carolina heelsplitter and in conducting surveys for 
additional occurrences of the species and to assess habitat conditions. 
These entities are fully aware of the distribution, status, and habitat 
requirements for the Carolina heelsplitter, as currently known. 
However, the designation may provide some benefit to individuals, local 
and state governments, and others that join conservation efforts for 
the species, in that the designation may provide additional information 
to assist these entities in long-range planning since areas essential 
to the conservation of the species are more clearly defined and, to the 
extent currently feasible, the primary constituent elements of the 
habitat necessary to the survival of the species are specifically 
identified. Accordingly, we withdraw our previous determination that 
the designation of critical habitat will not benefit the Carolina 
heelsplitter. Therefore, we propose that the designation of critical 
habitat is prudent for the Carolina heelsplitter.

Proposed Critical Habitat

    Critical habitat is defined in section 3(5)(A) of the Act as (i) 
the specific areas within the geographic area occupied by the species 
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 the species at the time it is listed, 
upon a determination that such areas are essential for the conservation 
of the species. Areas outside the geographic area currently occupied by 
the species shall be designated as critical habitat only when a 
designation limited to its present range would be inadequate to ensure 
the conservation of the species. ``Conservation'' is defined in section 
3(3) of the Act as the use of all methods and procedures necessary to 
bring endangered or threatened species to the point where listing under 
the Act is no longer necessary. Regulations under 50 CFR 424.02(j) 
define ``special management considerations or protection'' to mean any 
methods or procedures useful in protecting the physical and biological 
features of the environment for the conservation of listed species.
    In order to be included in a critical habitat designation, the 
habitat must first be ``essential to the conservation of the species.'' 
Critical habitat designations identify, to the extent known using the 
best scientific and commercial data available, habitat areas that 
provide essential life cycle needs of the species (i.e., areas on which 
are found the primary constituent elements, as defined at 50 CFR 
424.12(b)).
    Section 4 requires that we designate critical habitat at the time 
of listing and based on what we know at the time of the designation. 
When we designate critical habitat at the time of listing or under 
short court-ordered deadlines, we will often not have sufficient 
information to identify all areas of critical habitat. We are required, 
nevertheless, to make a decision and thus must base our designations on 
what, at the time of designation, we know to be critical habitat.
    Within the geographic area occupied by the species, we will 
designate only areas currently known to be essential. Essential areas 
should already have the features and habitat characteristics that are 
necessary to sustain the species. We will not speculate about what 
areas might be found to be essential if better information became 
available or what areas may become essential over time. If the 
information available at the time of designation does not show that an 
area provides essential life cycle needs for the species, then the area 
should not be included in the critical habitat designation. Within the 
geographical area occupied by the species, we will not designate areas 
that do not now have the primary constituent elements, as defined at 50 
CFR 424.12(b), and that do not now provide essential life cycle needs 
for the species.
    Our regulations state that, ``The Secretary shall designate as 
critical habitat areas outside the geographical area presently occupied 
by a species only when a designation limited to its present range would 
be inadequate to ensure the conservation of the species'' (50 CFR 
424.12(e)). Accordingly, when the best available scientific and 
commercial data demonstrate that the conservation needs of the species 
require the designation of critical habitat outside of occupied areas, 
we will designate critical habitat in areas outside the geographical 
area occupied by the species.

[[Page 36233]]

    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), provides criteria, establishes procedures, and provides 
guidance to ensure that decisions made by the Service represent the 
best scientific and commercial data available. It requires Service 
biologists, to the extent consistent with the Act and with the use of 
the best scientific and commercial data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat. When determining which areas are critical 
habitat, a primary source of information should be the listing package 
for the species. Additional information may be obtained from a recovery 
plan, articles in peer-reviewed journals, conservation plans developed 
by States and counties, scientific status surveys and studies, and 
biological assessments or other unpublished materials (i.e., gray 
literature).
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize that the designation of 
critical habitat may not include all of the habitat areas that may 
eventually be determined to be necessary for the recovery of the 
species. For these reasons, it should be understood that critical 
habitat designations do not signal that habitat outside the designation 
is unimportant or may not be required for recovery. Areas outside the 
critical habitat designation will continue to be subject to 
conservation actions that may be implemented under section 7(a)(1) and 
to the regulatory protections afforded by the section 7(a)(2) jeopardy 
standard and the section 9 take prohibition, as determined on the basis 
of the best available information at the time of the action. We 
specifically anticipate that federally funded or assisted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.
    Section 4(b)(2) of the Act requires us to base critical habitat 
proposals on the best scientific and commercial data available after 
taking into consideration the economic impact, and any other relevant 
impact, of specifying any particular area as critical habitat. We may 
exclude areas from critical habitat designation when the benefits of 
excluding those areas outweigh the benefits of including the areas 
within the critical habitat, provided the exclusion will not result in 
the extinction of the species.

Methods

    The proposed areas of critical habitat described below constitute 
our best assessment of the areas needed for the conservation and 
recovery of the Carolina heelsplitter in accordance with the goals 
outlined in our recovery plan for the species (Service 1997) and are 
based on the best scientific and commercial information currently 
available to us concerning the species' known present and historical 
range, habitat, biology, and threats. All of the areas we propose to 
designate as critical habitat are within what we believe to be the 
geographical area occupied by the Carolina heelsplitter, include all 
known surviving occurrences of the species, and are essential for the 
conservation of the species. These proposed areas are distributed 
throughout the species' range with at least one occurring in the 
Catawba, Pee Dee, and Savannah river systems. To the extent feasible, 
we will continue, with the assistance of other Federal, State, and 
private researchers, to conduct surveys and research on the species and 
its habitat. If new information becomes available indicating that other 
areas within the Carolina heelsplitter's historical range are essential 
to the conservation of the species, we will revise the proposed 
critical habitat or designated critical habitat for the Carolina 
heelsplitter accordingly.

Primary Constituent Elements

    In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act 
and regulations at 50 CFR 424.12, in determining which areas to propose 
as critical habitat we are required to base critical habitat 
determinations on the best scientific and commercial data available and 
to consider those physical and biological features (primary constituent 
elements) that are essential to the conservation of the species and 
that may require special management considerations or protection. Such 
requirements include, but are not limited to: space for individual and 
population growth and for normal behavior; food, water, air, light, 
minerals, or other nutritional or physiological requirements; cover or 
shelter; sites for breeding, reproduction, and rearing of offspring; 
and habitats that are protected from disturbance or are representative 
of the historical geographical and ecological distribution of a 
species.
    When considering areas for designation as critical habitat, we are 
required to focus on the principal biological and physical constituent 
elements within the defined area that are essential to the conservation 
of the species (50 CFR 424.12 (b)). Although additional information is 
needed to better define the habitat requirements of the species, 
particularly the microhabitat requirements, all of the stream reaches 
that support occurrences of the Carolina heelsplitter are free flowing 
(no major impoundments) and natural (have not been channelized or 
otherwise significantly altered), and are not associated with (located 
a substantial distance from) significant point (discharges) and non-
point (runoff) sources of pollutants. Although the species has been 
observed in a variety of substrata (see ``Background'' section), it has 
only been recorded from stable pockets of substrata in stream reaches 
with stable, well-vegetated stream bank and riparian areas, and in 
substrata without heavy accumulations of silt. Based on the best 
available information, the primary constituent elements essential for 
the conservation of the Carolina heelsplitter are:
    1. Permanent, flowing, cool, clean water;
    2. Geomorphically stable stream and river channels and banks;
    3. Pool, riffle, and run sequences within the channel;
    4. Stable substrata with no more than low amounts of fine sediment;
    5. Moderate stream gradient;
    6. Periodic natural flooding; and
    7. Fish hosts, with adequate living, foraging, and spawning areas 
for them.

Areas Proposed for Designation as Critical Habitat

    The Service's recovery plan (1997) for the Carolina heelsplitter 
states that the species will be considered for delisting (recovered) 
when there exists a total of six distinct, viable populations of the 
species that meet the criteria outlined in the recovery plan. Based on 
the most recent survey data for the Carolina heelsplitter (Keferl and 
Shelly 1988; Keferl 1991: Alderman 1995, 1998a, and 1998b; North 
Carolina Wildlife Resources Commission 1999 and 2000), there are 
currently six surviving populations: the Goose Creek/Duck Creek 
population, Waxhaw Creek population, Gills Creek population, Flat 
Creek/Lynches River population, Turkey Creek/Mountain Creek/Beaverdam 
Creek population, and Cuffeytown Creek population (see ``Background'' 
section). The areas that

[[Page 36234]]

we are proposing for designation as critical habitat for the Carolina 
heelsplitter include habitat for each of these populations. The lateral 
extent of proposed critical habitat is up to the ordinary high-water 
line on each bank. In addition, given the threats to the species' 
habitat discussed in the final listing rule (58 FR 34926) and 
summarized in the ``Background'' section, we believe these areas may 
need special management considerations or protection. We are proposing 
the following areas for designation as critical habitat for the 
Carolina heelsplitter (see Table 1 below for approximate stream 
lengths):

Unit 1. Goose Creek and Duck Creek (Pee Dee River System), Union 
County, North Carolina

    Unit 1 encompasses the main stem of Goose Creek, Union County, 
North Carolina, from the N.C. Highway 218 Bridge, downstream to its 
confluence with the Rocky River, and the main stem of Duck Creek, Union 
County, North Carolina, from the Mecklenburg/Union County line 
downstream to its confluence with Goose Creek. This unit is part of the 
currently occupied range of the Carolina heelsplitter and, based on the 
best available information, provides the physical and biological 
habitat elements necessary for the life cycle needs of the species. In 
accordance with the recovery goals and criteria outlined in the 
recovery plan for the Carolina heelsplitter (Service 1997), protection 
of this unit is essential to the conservation of the species.

Unit 2. Waxhaw Creek (Catawba River System), Union County, North 
Carolina

    Unit 2 encompasses the main stem of Waxhaw Creek, Union County, 
North Carolina, from the N.C. Highway 200 Bridge, downstream to the 
North Carolina/South Carolina State line. This unit is part of the 
currently occupied range of the Carolina heelsplitter and, based on the 
best available information, provides the physical and biological 
habitat elements necessary for the life cycle needs of the species. In 
accordance with the recovery goals and criteria outlined in the 
recovery plan for the Carolina heelsplitter (Service 1997), protection 
of this unit is essential to the conservation of the species.

Unit 3. Gills Creek (Catawba River System), Lancaster County, South 
Carolina

    Unit 3 encompasses the main stem of Gills Creek, Lancaster County, 
South Carolina, from the County Route S-29-875, downstream to the S.C. 
Route 51 Bridge, east of the city of Lancaster. This unit is part of 
the currently occupied range of the Carolina heelsplitter and, based on 
the best available information, provides the physical and biological 
habitat elements necessary for the life cycle needs of the species. In 
accordance with the recovery goals and criteria outlined in the 
recovery plan for the Carolina heelsplitter (Service 1997), protection 
of this unit is essential to the conservation of the species.

Unit 4. Flat Creek (Pee Dee River System), Lancaster County, South 
Carolina, and the Lynches River (Pee Dee River System), Lancaster, 
Chesterfield, and Kershaw Counties, South Carolina

    Unit 4 encompasses the main stem of Flat Creek, Lancaster County, 
South Carolina, from the S.C. Route 204 Bridge, downstream to its 
confluence with the Lynches River, and the main stem of the Lynches 
River, Lancaster and Chesterfield Counties, South Carolina, from the 
confluence of Belk Branch, Lancaster County, northeast (upstream) of 
the U.S. Highway 601 Bridge, downstream to the S.C. Highway 903 Bridge 
in Kershaw County, South Carolina. This unit is part of the currently 
occupied range of the Carolina heelsplitter and, based on the best 
available information, provides the physical and biological habitat 
elements necessary for the life cycle needs of the species. In 
accordance with the recovery goals and criteria outlined in the 
recovery plan for the Carolina heelsplitter (Service 1997), protection 
of this unit is essential to the conservation of the species.

Unit 5. Mountain and Beaverdam Creeks (Savannah River System), 
Edgefield County, South Carolina, and Turkey Creek (Savannah River 
System), Edgefield and McCormick Counties, South Carolina

    Unit 5 encompasses the main stem of Mountain Creek, Edgefield 
County, South Carolina, from the S.C. Route 36 Bridge, downstream to 
its confluence with Turkey Creek; Beaverdam Creek, Edgefield County, 
from the S.C. Route 51 Bridge, downstream to its confluence with Turkey 
Creek; and Turkey Creek, from the S.C. Route 36 Bridge, Edgefield 
County, downstream to the S.C. Route 68 Bridge, Edgefield and McCormick 
Counties, South Carolina. This unit is part of the currently occupied 
range of the Carolina heelsplitter and, based on the best available 
information, provides the physical and biological habitat elements 
necessary for the life cycle needs of the species. In accordance with 
the recovery goals and criteria outlined in the recovery plan for the 
Carolina heelsplitter (Service 1997), protection of this unit is 
essential to the conservation of the species.

Unit 6. Cuffytown Creek (Savannah River System), Greenwood and 
McCormick Counties, South Carolina

    Unit 6 encompasses the main stem of Cuffytown Creek, from the 
confluence of Horsepen Creek, northeast (upstream) of the S.C. Route 62 
Bridge in Greenwood County, South Carolina, downstream to the U.S. 
Highway 378 Bridge in McCormick County. This unit is part of the 
currently occupied range of the Carolina heelsplitter and, based on the 
best available information, provides the physical and biological 
habitat elements necessary for the life cycle needs of the species. In 
accordance with the recovery goals and criteria outlined in the 
recovery plan for the Carolina heelsplitter (Service 1997), protection 
of this unit is essential to the conservation of the species.

       Table 1.--Approximate Lengths of Stream Proposed as Critical Habitat for the Carolina Heelsplitter
----------------------------------------------------------------------------------------------------------------
                                                                                          Length in kilometers
                State                          County                  Stream                   (miles)
----------------------------------------------------------------------------------------------------------------
North Carolina......................  Union..................  Goose Creek...........  7.2 (4.5)
                                                               Duck Creek............  8.8 (5.5)
                                                               Waxhaw Creek..........  19.6 (12.2)
South Carolina......................  Lancaster..............  Flat Creek............  18.4 (11.4)
                                                               Gills Creek...........  9.6 (6.0)
                                      Lancaster,               Lynches River.........  23.6 (14.6)
                                       Chesterfield, and
                                       Kershaw.
                                      Edgefield..............  Mountain Creek........  11.2 (7.0)
                                                               Beaverdam Creek.......  10.8 (6.7)
                                      Edgefield and McCormick  Turkey Creek..........  18.4 (11.4)

[[Page 36235]]

 
                                      Greenwood and McCormick  Cuffytown Creek.......  20.8 (12.9)
----------------------------------------------------------------------------------------------------------------

Land Ownership

    Approximately 6.0 km (3.7 mi) of Beaverdam Creek and 13.6 km (8.5 
mi) of Turkey Creek that we are proposing for designation as critical 
habitat, are bordered by the Sumter National Forest in South Carolina, 
and 2.4 km (1.5 mi) of Flat Creek that we are proposing for designation 
as critical habitat, are bordered by the Flat Creek Heritage Preserve, 
which is managed by the State of South Carolina. The remainder of the 
areas that we are proposing for designation as critical habitat for the 
Carolina heelsplitter, with the exception of State road and highway 
rights-of-way, are under private ownership.

Effects of Critical Habitat Designation

    Designating critical habitat does not, in itself, lead to the 
recovery of a listed species. The designation does not establish a 
reserve, create a management plan, establish numerical population 
goals, prescribe specific management practices (inside or outside of 
critical habitat), or directly affect areas not designated as critical 
habitat. Specific management recommendations for areas designated as 
critical habitat are most appropriately addressed in recovery and 
management plans and through section 7 consultation and section 10 
permits.
    Critical habitat receives regulatory protection only under section 
7 of the Act through the prohibition against destruction or adverse 
modification of designated critical habitat by actions carried out, 
funded, or authorized by a Federal agency. Section 7 also requires 
conferences on Federal actions that are likely to result in the adverse 
modification or destruction of proposed critical habitat. Aside from 
the protection that may be provided under section 7, the Act does not 
provide other forms of protection to land designated as critical 
habitat. Because consultation under section 7 of the Act does not apply 
to activities on private or other non-Federal land that do not involve 
a Federal action, the critical habitat designation would not afford any 
protection under the Act against such activities. Accordingly, the 
designation of critical habitat on private land will not have any 
regulatory effect on private or State activities in these areas unless 
those activities require a Federal permit, authorization, or funding.
    Section 7(a)(4) of the Act and regulations at 50 CFR 402.10 require 
Federal agencies to confer with us on any action that is likely to 
result in the destruction or adverse modification of proposed critical 
habitat. ``Destruction or adverse modification'' is defined as a direct 
or indirect alteration that appreciably diminishes the value of 
critical habitat for both the survival and recovery of a listed 
species. These conferences, which consist of informal discussions, are 
intended to assist responsible agencies and the applicant, if 
applicable, in identifying and resolving potential conflicts. 
Conference reports resulting from these discussions provide 
conservation recommendations to assist the agency in eliminating 
conflicts that may be caused by the proposed action. The conservation 
recommendations in a conference report are advisory. We may issue a 
formal conference opinion if requested by a Federal agency. Formal 
conference opinions on proposed critical habitat are prepared according 
to 50 CFR 402.14 as if critical habitat were designated. We may adopt 
the formal conference opinion as the biological opinion when the 
critical habitat is designated if no significant new information or 
changes in the action alter the content of the opinion (see 50 CFR 
402.10(d)).
    If this proposal is finalized, activities on Federal land, 
activities on private or State land carried out by a Federal agency, or 
activities receiving funding or requiring a permit from a Federal 
agency that may affect the designated critical habitat of the Carolina 
heelsplitter will require consultation under section 7 of the Act. 
However, section 7 of the Act also requires Federal agencies to ensure 
that actions they authorize, fund, or carry out do not jeopardize the 
continued existence of listed species and to consult with us on any 
action that may affect a listed species. Activities that jeopardize 
listed species are defined as actions that ``directly or indirectly, 
reduce appreciably the likelihood of both the survival and recovery of 
a listed species' (50 CFR 402.02). Federal agencies are prohibited from 
jeopardizing listed species through their actions, regardless of 
whether critical habitat has been designated for the species. Where 
critical habitat is designated, section 7 also requires Federal 
agencies to ensure that activities they authorize, fund, or carry out 
do not result in the destruction or adverse modification of designated 
critical habitat. Activities that destroy or adversely modify critical 
habitat are defined as an action that ``appreciably diminishes the 
value of critical habitat for both the survival and recovery of a 
listed species'' (50 CFR 402.02). Common to the definitions of both 
``jeopardy'' and ``destruction or adverse modification of critical 
habitat'' is the concept that the likelihood of both the survival and 
recovery of the species are appreciably reduced by the action. Because 
of the small size of the majority of the surviving populations of the 
Carolina heelsplitter, the species' restricted range, and the limited 
amount of suitable habitat available to the species, actions that are 
likely to destroy or adversely modify critical habitat are also likely 
to jeopardize the species. Accordingly, even though Federal agencies 
will be required to evaluate the potential effects of their actions on 
any habitat that is designated as critical habitat for the Carolina 
heelsplitter, this designation would not be likely to change the 
outcome of section 7 consultations.
    Section 4(b)(8) of the Act requires us to briefly evaluate, in any 
proposed or final regulation that designates critical habitat, those 
activities that may adversely modify such habitat or may be affected by 
such designation. Activities that may destroy or adversely modify 
critical habitat are, as discussed above, those that alter the primary 
constituent elements to the extent that the value of critical habitat 
for both the survival and recovery of the Carolina heelsplitter is 
appreciably diminished. This may include any activity, regardless of 
the activity's location in relation to designated or proposed critical 
habitat, that would significantly alter the natural flow regime, 
channel morphology or geometry, or water chemistry or temperature of 
any of the six proposed critical habitat units, as described by the 
constituent elements, or any activity that could result in the 
significant discharge or deposition of sediment, excessive nutrients, 
or other organic or

[[Page 36236]]

chemical pollutants into any of the six proposed critical habitat 
units. Such activities include (but are not limited to) carrying out or 
issuing permits, authorization, or funding for reservoir construction; 
stream alterations; wastewater facility development; hydroelectric 
facility construction and operation; pesticide/herbicide applications; 
forestry operations; and road, bridge, and utility construction. These 
same activities also have the potential to jeopardize the continued 
existence of the Carolina heelsplitter, and Federal agencies are 
already required to consult with us on these types of activities, or 
any other activity, that may affect the species.
    Send your requests for copies of the regulations on listed 
wildlife, inquiries about prohibitions and permits, or questions 
regarding whether specific activities will constitute adverse 
modification of critical habitat, to the U.S. Fish and Wildlife 
Service, Asheville Field Office, 160 Zillicoa Street, Asheville, North 
Carolina 28801.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
available and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
as critical habitat upon reaching a determination that the benefits of 
such exclusion outweigh the benefits of specifying such areas as 
critical habitat. We cannot exclude such areas from critical habitat 
when such exclusion will result in the extinction of the species. We 
will conduct an analysis of the economic impacts of designating the 
areas identified above as critical habitat prior to a final 
determination. When a draft economic analysis is completed, we will 
announce its availability with a notice in the Federal Register and 
will open a 30-day comment period at that time.

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we solicit 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule. We particularly seek comments 
concerning:
    1. The reasons why any habitat should or should not be determined 
to be critical habitat as provided by section 4 of the Act;
    2. Specific information on the numbers and distribution of the 
Carolina heelsplitter and what habitat is essential to the conservation 
of the species and why;
    3. Information on specific characteristics of habitat essential to 
the conservation of the Carolina heelsplitter;
    4. Land-use practices and current or planned activities in the 
subject areas and their possible effects on proposed critical habitat;
    5. Any foreseeable economic or other impacts resulting from the 
proposed designation of critical habitat, in particular, any impacts on 
small entities or families;
    6. Economic and other values associated with designating critical 
habitat for the Carolina heelsplitter, such as those derived from 
nonconsumptive uses (e.g., hiking, camping, bird-watching, enhanced 
watershed protection, improved air quality, ``existence values,'' and 
reductions in administrative costs); and
    7. Potential adverse effects to the Carolina heelsplitter and/or 
its habitat associated with designating critical habitat for the 
species; e.g., increased risk to the species from collecting, 
vandalism, or the destruction of its habitat.
    Please submit electronic comments in ASCII file format and avoid 
the use of special characters and encryption. Please also include 
``Attn: [RIN 1018-AH31]'' and your name and return address in your e-
mail message. If you do not receive a confirmation from the system that 
we have received your e-mail message, contact us directly by calling 
our Asheville Field Office (see ADDRESSES section).
    Our practice is to make all comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address from the rulemaking record, which we will honor to 
the extent allowable by law. In some circumstances, we would withhold 
also from the rulemaking record a respondent's identity, as allowable 
by law. If you wish for us to withhold your name and/or address, you 
must state this prominently at the beginning of your comments. However, 
we will not consider anonymous comments. We will make all submissions 
from organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we will seek the expert opinions of at least three appropriate 
and independent specialists regarding this proposed rule. The purpose 
of this review is to ensure that listing decisions are based on 
scientifically sound data, assumptions, and analyses. We will send 
these peer reviewers copies of this proposed rule immediately following 
publication in the Federal Register. We will invite these peer 
reviewers to comment, during the comment period, on the specific 
assumptions and conclusions regarding the proposed designation of 
critical habitat.
    We will consider all comments and information received during the 
60-day comment period on this proposed rule during preparation of a 
final rulemaking. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. If you wish to request a hearing, you must file your 
request in writing within 45 days of the date of this proposal. Send 
your request to the State Supervisor, Asheville Field Office (see 
``Addresses'' section). We will give written comments submitted during 
the comment period equal consideration with those comments presented at 
a public hearing.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations/
notices that are easy to understand. We invite your comments on how to 
make this notice easier to understand, including answers to questions 
such as the following: (1) Are the requirements in the notice clearly 
stated? (2) Does the notice contain unnecessary technical language or 
jargon that interferes with the clarity? (3) Does the format of the 
proposed rule (grouping and order of sections, use of headings, 
paragraphing, etc.) aid or reduce its clarity? (4) Is the description 
of the notice in the SUPPLEMENTARY INFORMATION section of the preamble 
helpful in understanding the notice? (5) What else could we do to make 
the notice easier to understand?
    Send a copy of any comments that concern how we could make this 
notice easier to understand to the Asheville Field Office (see 
ADDRESSES section).

Required Determinations

Regulatory Planning and Review

    In accordance with the criteria in Executive Order 12866, this rule 
is a

[[Page 36237]]

significant regulatory action and has been reviewed by the Office of 
Management and Budget (OMB).
    (a) In the economic analysis, we will determine whether this rule 
will have an annual economic effect of $100 million or more or 
adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government. The Carolina heelsplitter 
was listed as an endangered species in 1993. Since that time we have 
conducted, and will continue to conduct, formal and informal section 7 
consultations with other Federal agencies to ensure that their actions 
will not jeopardize the continued existence of the Carolina 
heelsplitter.
    Under the Act, critical habitat may not be adversely modified by a 
Federal agency action; critical habitat does not impose any 
restrictions on non-Federal persons unless they are conducting 
activities funded or otherwise sponsored or permitted by a Federal 
agency (see Table 1 below). Section 7 of the Act requires Federal 
agencies to ensure that they do not jeopardize the continued existence 
of the species. Based on our experience with the species and its needs, 
we believe that any Federal action or authorized action that could 
potentially cause an adverse modification of the proposed critical 
habitat would currently be considered as ``jeopardy'' to the species 
under the Act.
    Accordingly, we do not expect the designation of areas as critical 
habitat within the geographical range occupied by the species to have 
any incremental impacts on what actions may or may not be conducted by 
Federal agencies or non-Federal persons that receive Federal 
authorization or funding. Non-Federal persons who do not have a Federal 
``sponsorship'' of their actions are not restricted by the designation 
of critical habitat. (However, they continue to be bound by the 
provisions of the Act concerning ``take'' of the species, which came 
into play in 1993 when the species was listed as endangered.)
    (b) This rule will not create inconsistencies with other agencies' 
actions. Federal agencies have been required to ensure that their 
actions do not jeopardize the continued existence of the Carolina 
heelsplitter since the listing in 1993. As shown in Table 2 (below), no 
additional effects on agency actions are anticipated to result from the 
critical habitat designation. However, we will continue to review this 
proposed action for any inconsistencies with other Federal agency 
actions.

 Table 2.--Impacts of Carolina Heelsplitter Listing and Critical Habitat
                               Designation
------------------------------------------------------------------------
                                                   Additional activities
  Categories of        Activities potentially       potentially affected
    activities       affected by species listing    by critical habitat
                              only \1\                designation \2\
------------------------------------------------------------------------
Federal            Activities such as carrying     None.
 Activities         out or issuing permits,
 Potentially        authorization, or funding for
 Affected.\3\       reservoir construction;
                    stream alterations;
                    wastewater facility
                    development; hydroelectric
                    facility construction and
                    operation; pesticide/
                    herbicide applications;
                    forestry operations; road,
                    bridge, and utility
                    construction; or other
                    activities that could result
                    in direct or indirect impacts
                    to the Carolina heelsplitter
                    and/or its habitat.
Private and other  Activities occurring on         None.
 non-Federal        Federal land or that require
 Activities         a Federal action (permit,
 Potentially        authorization, or funding)
 Affected.\4\       and that involve activities
                    such as those listed above
                    that could result in ``take''
                    of the Carolina heelsplitter
                    or damage or destruction of
                    its habitat.
------------------------------------------------------------------------
\1\ This column represents the activities potentially affected by
  listing the Carolina heelsplitter as an endangered species (June 30,
  1993; 58 FR 34926) under the Endangered Species Act.
\2\ This column represents the effects on activities resulting from
  critical habitat designation beyond the effects attributable to the
  listing of the species.
\3\ Activities initiated by a Federal agency.
\4\ Activities initiated by a private or other non-Federal entity that
  may need Federal authorization or funding.

    (c) The proposed rule, if made final, will not significantly impact 
entitlements, grants, user fees, loan programs, or the rights and 
obligations of their recipients. Federal agencies currently are 
required to ensure that their activities do not jeopardize the 
continued existence of the species, and we do not anticipate that the 
adverse modification prohibition (resulting from the critical habitat 
designation) will have any incremental effects in areas of proposed 
critical habitat.
    (d) OMB has determined that this rule will raise novel legal or 
policy issues and, as a result, this rule has undergone OMB review.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    In the draft economic analysis (under section 4 of the Act), we 
will determine whether the designation of critical habitat will have a 
significant effect on a substantial number of small entities. As 
discussed under ``Regulatory Planning and Review'' above, this rule is 
not expected to result in any restrictions in addition to those 
currently in existence for areas of proposed critical habitat.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))

    In the economic analysis, we will determine whether the designation 
of critical habitat will cause (a) any effect on the economy of $100 
million or more, (b) any increases in costs or prices for consumers; 
individual industries; Federal, State, or local government agencies; or 
geographical regions, or (c) any significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. As discussed above, we anticipate that the designation of 
critical habitat will not have any additional effects on these 
activities in areas of critical habitat that are within the 
geographical range occupied by the species.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211) on regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
As this rule is not expected to significantly affect energy supplies, 
distribution, or use, this action is not a significant energy action 
and no Statement of Energy Effects is required.

[[Page 36238]]

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    a. This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. Small 
governments will not be affected unless they propose an action 
requiring Federal funds, permits, or other authorization. Any such 
activity will require that the involved Federal agency ensure that the 
action will not adversely modify or destroy designated critical 
habitat.
    b. This rule will not produce a Federal mandate on State, local, or 
tribal governments or the private sector of $100 million or greater in 
any year; that is, it is not a ``significant regulatory action'' under 
the Unfunded Mandates Reform Act. The designation of critical habitat 
imposes no new obligations on State or local governments.

Takings

    In accordance with Executive Order 12630, this rule does not have 
significant takings implications, and a takings implication assessment 
is not required. This proposed rule, if made final, will not ``take'' 
private property. The designation of critical habitat affects only 
Federal agency actions. Federal actions on private land could be 
affected by the critical habitat designation; however, we expect no 
regulatory effect from this designation because all proposed areas are 
considered to be within the geographical range occupied by the species 
and would be reviewed under both the jeopardy and adverse modification 
standards under section 7 of the Act.
    This rule will not increase or decrease the current restrictions on 
private property concerning taking of the Carolina heelsplitter as 
defined in section 9 of the Act and its implementing regulations (50 
CFR 17.31). Additionally, critical habitat designation does not 
preclude the development of habitat conservation plans and the issuance 
of incidental take permits. Any landowner in areas that are included in 
the designated critical habitat will continue to have opportunity to 
use his or her property in ways consistent with the survival of the 
Carolina heelsplitter.

Federalism

    In accordance with Executive Order 13132, this rule does not have 
significant federalism effects. A Federalism Assessment is not 
required. In keeping with Department of the Interior policy, we 
requested information from, and coordinated the development of this 
critical habitat proposal with, appropriate State natural resources 
agencies in North Carolina and South Carolina. We will continue to 
coordinate any future designation of critical habitat for the Carolina 
heelsplitter with the appropriate State agencies. The designation of 
critical habitat for the Carolina heelsplitter imposes few, if any, 
additional restrictions to those currently in place and therefore has 
little incremental impact on State and local governments and their 
activities. The designation may provide some benefit to these 
governments in that the areas essential to the conservation of the 
species are more clearly defined and, to the extent currently feasible, 
the primary constituent elements of the habitat necessary to the 
survival of the species are specifically identified. While making this 
definition and identification does not alter where and what federally 
sponsored activities may occur, doing so may assist these local 
governments in long-range planning (rather than waiting for case-by-
case section 7 consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor determined that this rule does not 
unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. The Office of the Solicitor 
will review the final determination for this proposal. We will make 
every effort to ensure that the final determination contains no 
drafting errors, provides clear standards, simplifies procedures, 
reduces burdens, and is clearly written, such that the risk of 
litigation is minimized.

Paperwork Reduction Act

    This rule does not contain any new collections of information that 
require approval by the Office of Management and Budget (OMB) under 44 
U.S.C. 3501 et seq. This rule will not impose new record-keeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations.

National Environmental Policy Act

    We have determined that we do not need to prepare an Environmental 
Assessment or an Environmental Impact Statement as defined by the 
National Environmental Policy Act of 1969 in connection with 
regulations adopted pursuant to section 4(a) of the Act. We published a 
notice outlining our reasons for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), E.O. 13175, and 512 DM 2, we understand 
that federally recognized Tribes must be related to on a Government-to-
Government basis. We are not aware of any Tribal lands essential for 
the conservation of the Carolina heelsplitter. Therefore, we are not 
proposing to designate critical habitat for the Carolina heelsplitter 
on Tribal lands.

References Cited

    A complete list of all references cited in this proposed rule is 
available upon request from the Asheville Field Office (see ADDRESSES 
section).

Author

    The primary author of this document is John Fridell (see Addresses 
section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
record-keeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations 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. Amend Sec. 17.11(h), by revising the entry for the 
``Heelsplitter, Carolina'' under ``CLAMS'' to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 36239]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species                                                   Vertebrate
------------------------------------------------------                        population where                                   Cricital      Special
                                                          Historic range        endangered or         Status     When listed     habitat        rules
           Common name              Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
              Clams
 
 
                   *                  *                  *                  *                  *                  *                  *
Heelsplitter, Carolina..........  Lasmigona decorata.  U.S.A. (NC, SC)....  Entire..............  E                      505  17.95(f).....           NA
 
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend Sec. 17.95(f) by adding critical habitat for the Carolina 
heelsplitter (Lasmigona decorata) in the same alphabetical order as the 
species occurs in 17.11(h).


Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *
    (f) Clams and snails.
* * * * *
Carolina Heelsplitter (Lasmigona decorata)
    1. Critical habitat units are described below and depicted in the 
maps that follow, with the lateral extent of each designated unit 
bounded by the ordinary high-water line:


[[Page 36240]]


    Unit 1: Union County, North Carolina--main stem of Goose Creek (Pee 
Dee River system) from the N.C. Highway 218 Bridge, downstream to its 
confluence with the Rocky River, and the main stem of Duck Creek, from 
the Mecklenburg/Union County line, downstream to its confluence with 
Goose Creek.
[GRAPHIC] [TIFF OMITTED] TP11JY01.000


[[Page 36241]]


    Unit 2. Union County, North Carolina--main stem of Waxhaw Creek 
(Catawba River system) from the N.C. Highway 200 Bridge, downstream to 
the North Carolina/South Carolina State line.
[GRAPHIC] [TIFF OMITTED] TP11JY01.001


[[Page 36242]]


    Unit 3. Lancaster County, South Carolina--main stem of Gills Creek 
(Catawba River system) from the County Route S-29-875, downstream to 
the S.C. Route 51 Bridge, east of the city of Lancaster.
[GRAPHIC] [TIFF OMITTED] TP11JY01.002


[[Page 36243]]


    Unit 4. Lancaster, Chesterfield, and Kershaw Counties, South 
Carolina--main stem of Flat Creek (Pee Dee River system), Lancaster 
County, from the S.C. Route 204 Bridge, downstream to its confluence 
with Lynches River, and the main stem of the Lynches River, Lancaster 
and Chesterfield Counties, from the confluence of Belk Branch, 
Lancaster County, northeast (upstream) of the U.S. Highway 601 Bridge, 
downstream to the S.C. Highway 903 Bridge in Kershaw County.
[GRAPHIC] [TIFF OMITTED] TP11JY01.003


[[Page 36244]]


    Unit 5. Edgefield and McCormick Counties, South Carolina, main stem 
of Mountain Creek (Savannah River system), Edgefield County, South 
Carolina, from the S.C. Route 36 Bridge, downstream to its confluence 
with Turkey Creek; Beaverdam Creek, Edgefield County, from the S.C. 
Route 51 Bridge, downstream to its confluence with Turkey Creek; and 
Turkey Creek, from the S.C. Route 36 Bridge, Edgefield County, 
downstream to the S.C. Route 68 Bridge, Edgefield and McCormick 
Counties.
[GRAPHIC] [TIFF OMITTED] TP11JY01.004


[[Page 36245]]


    Unit 6. Greenwood and McCormick Counties, South Carolina--main stem 
of Cuffytown Creek (Savannah River system), from the confluence of 
Horsepen Creek, northeast (upstream) of the S.C. Route 62 Bridge in 
Greenwood County, downstream to the U.S. Highway 378 Bridge in 
McCormick County.
[GRAPHIC] [TIFF OMITTED] TP11JY01.005


[[Page 36246]]


    2. Within these areas, the primary constituent elements include:
    (i) Permanent, flowing, cool, clean water;
    (ii) Geomorphically stable stream and river channels and banks;
    (iii) Pool, riffle, and run sequences within the channel;
    (iv) Stable substrata with no more than low amounts of fine 
sediment;
    (v) Moderate stream gradient;
    (vi) Periodic natural flooding; and
    (vii)Fish hosts, with adequate living, foraging, and spawning areas 
for them.

    Dated: June 28, 2001.
Joseph E. Doddridge,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-16867 Filed 7-10-01; 8:45 am]
BILLING CODE 4310-55-C