[Federal Register Volume 67, Number 127 (Tuesday, July 2, 2002)]
[Rules and Regulations]
[Pages 44502-44522]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-16580]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



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

  Federal Register / Vol. 67, No. 127 / Tuesday, July 2, 2002 / Rules 
and Regulations  

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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; Designation of 
Critical Habitat for the Carolina Heelsplitter

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), designate 
critical habitat for the Carolina heelsplitter (Lasmigona decorata), a 
freshwater mussel, pursuant to the Endangered Species Act of 1973, as 
amended (Act). The areas designated as critical habitat for the 
Carolina heelsplitter total approximately 148.4 kilometers (92.2 miles) 
of streams, including portions of three creeks in North Carolina and 
one river and six creeks in South Carolina.
    Critical habitat identifies specific areas that are essential to 
the conservation of a listed species and that may require special 
management considerations or protection.
    Section 7(a)(2) of the Act requires that each Federal agency shall, 
in consultation with the Service, insure that any action authorized, 
funded or carried out by such agency is not likely to jeopardize the 
continued existence of an endangered or threatened species or result in 
the destruction or adverse modification of critical habitat. Section 4 
of the Act requires us to consider economic and other relevant impacts 
of specifying any particular area as critical habitat.
    We solicited data and comments from the public on all aspects of 
this proposal, including data on economic and other impacts of the 
designation.

DATES: This rule is effective August 1, 2002.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in preparation of this final rule, are available for 
public inspection, by appointment, during normal business hours at the 
Asheville Field Office, U.S. Fish and Wildlife Service, 160 Zillicoa 
Street, Asheville, NC 28801.

FOR FURTHER INFORMATION CONTACT: John Fridell, Fish and Wildlife 
Biologist (see ADDRESSES section), (telephone 828/258-3939, extension 
225; facsimile 828/258-5330).

SUPPLEMENTARY INFORMATION:

Background

    Lea (1852) originally described the Carolina heelsplitter, a native 
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, Lasymigona 
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 distinct 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 in) 
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 that 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) provides a detailed description of the 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, NC; several streams and ``ponds'' in 
the Catawba River system around the Charlotte area of Mecklenburg 
County, NC; one small stream in the Pee Dee River system in Cabarrus 
County, NC; one ``pond'' in the Pee Dee River system in Union County, 
NC; 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, SC, 
previously were 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; J. Fridell 
personal observation 1995, 1998, 2000, 2001). 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, NC, was discovered recently (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 (NCDOT) have failed to find any evidence of a surviving 
population of the species at the site of this record or elsewhere in 
the main stem of the Pee Dee River (John Alderman, NCWRC, personal 
communication 2001; Tim Savidge, NCDOT, 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 are presently known to exist. In Union County, NC, one 
small remnant population occurs in Waxhaw Creek, a tributary to the 
Catawba River, and another small population occurs in both Goose Creek, 
a tributary in the Rocky River, and Duck Creek, a tributary to Goose 
Creek, 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

[[Page 44503]]

Savannah River system, one population is found in Turkey Creek in 
Edgefield and McCormick Counties, and two of its tributaries, Mountain 
Creek and Beaverdam Creek in Edgefield County; another smaller 
population survives in Cuffytown Creek, in Greenwood and McCormick 
Counties. Despite extensive surveys in recent years, no evidence of a 
population has been found in the Saluda River system (Keferl and Shelly 
1988; Keferl 1991; Alderman 1998a).
    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 
nine small streams and one small river. It has been recorded from a 
variety of substrates (including mud, clay, sand, gravel, and 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, SC, 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. 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 substrate 
in the center of the channel has restricted the species to the softer 
substrates found along the portion of the stream banks that receive 
less scouring (Service 1997). The stability of the stream banks and 
stream-bottom appears to be a habitat feature essential 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 rocks.
    Like other freshwater mussels, the Carolina heelsplitter feeds by 
filtering food particles from the water column. The specific food items 
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 
Carolina heelsplitter's life span, their specific fish host species, 
and many other specific aspects of its life history are unknown, but 
likely are similar to that of other native freshwater mussels. For the 
reproductive cycle of mussels in general, 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 host 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 substratum with the correct water conditions.

Reasons for Decline and Threats to Surviving Populations

    Available information indicates that several factors 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; channel and 
streambank scouring associated with increased storm-water runoff; and 
the runoff of silt, fertilizers, pesticides, and other pollutants from 
various land disturbance activities with inadequate or poorly 
maintained erosion and stormwater control (Service 1993, 1997). Many of 
the streams in the area of Charlotte, NC, 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 heelsplitter, have been significantly affected 
by impoundments, as well as the other factors listed above, and have 
lost much of their historic freshwater mussel abundance and diversity 
(Keferl and Shelly 1988; Kerfel 1991; Alderman 1995, 1998a, 1998b; 
North Carolina Wildlife Resources Commission 1999, 2000).
    The species continues to face a number of threats. In 1997, when 
the Recovery Plan for the Carolina Heelsplitter was approved (Service 
1997) only four populations were known. Although two additional 
populations--in Gill Creek and Cuffytown Creek--have been found since 
then, the concerns expressed in the recovery plan regarding the 
vulnerability of the Carolina heelsplitter are still valid. The 
recovery plan states: ``The low number of individuals and the 
restricted range of each of the surviving populations make them 
extremely vulnerable to extirpation from a single catastrophic event or 
activity, such as a toxic chemical spill or major channel alteration. 
Also, the existing and potential future land-uses of the surrounding 
area threaten the habitat and water quality of all four populations 
with increased discharge or runoff of silt, sediments, and organic and 
chemical pollutants.''
    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. The life cycle of native 
mussels makes the reproductive stages particularly vulnerable to 
pesticides and other pollutants (Ingram 1957, Stein 1971, Fuller 1974, 
Gardner et al. 1976). Mussels also have been identified as being more 
sensitive to metals than commonly tested fish and aquatic insects 
(Keller and Zam 1991).
    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. The effects of impoundments on mussels are 
summarized as follows in the recovery plan: ``Closure of dams changes 
the habitat from a lotic [moving water] to lentic [standing water] 
condition. Depth increases, flow decreases, and silt accumulates on the 
bottom. Fish communities change, and host fish species may be 
eliminated. Mussel communities change; species requiring clean gravel 
and sand substrate are eliminated (Bates 1962). In addition, dams 
result in the fragmentation of populations, making the surviving 
isolated population segments more vulnerable to extirpation'' (Service 
1997).
    Agriculture (both crop and livestock) and forestry operations, 
highway and road construction, residential and industrial developments, 
and other

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construction and land-use activities that do not adequately control 
soil erosion and storm-water runoff alter the hydrology of the stream 
and contribute excessive amounts of silt, pesticides, fertilizers, 
heavy metals, and other pollutants. These pollutants can suffocate and 
poison freshwater mussels. Excessive sediment poses a threat to mussels 
because they are not able to move long distances to more suitable areas 
in response to heavy silt loads. Although natural sources of sediment 
resulting from seasonal storms probably do not significantly affect 
mussels, several types of human activities can create heavy silt loads 
that can severely affect native freshwater mussels. As noted in the 
recovery plan, ``Siltation has been documented to adversely affect 
native freshwater mussels both directly and indirectly. Siltation 
degrades water and substrate quality, limiting the available habitat 
for freshwater mussels (and their fish hosts); irritates and clogs the 
gills of filter-feeding mussels, resulting in reduced feeding and 
respiration; smothers mussels if sufficient accumulation occurs; and 
increases the potential exposure of the mussels to other pollutants 
(Ellis 1936, Marking and Bills 1979, Kat 1982). Ellis (1936) found that 
less than 1 inch of sediment deposition caused high mortality in most 
mussel species. Sediment accumulations that are less than lethal to 
adults may adversely affect or prevent recruitment of juvenile mussels 
into the population through the direct mortality of juvenile mussels or 
effects to the species' fish host(s)'' (Service 1997)
    The runoff of storm water from cleared areas, roads, rooftops, 
parking lots, and other developed areas, which often is 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 floodplains 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 releasing rainwater. Also, when storm 
water runoff 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

    In the Animal Notice of Review published in the January 6, 1989, 
Federal Register (54 FR 579), we recognized the Carolina heelsplitter 
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 a proposed rule to list the Carolina 
heelsplitter as an endangered species (57 FR 21925). 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, we incorporated appropriate changes 
and, on June 30, 1993, published a final rule listing the Carolina 
heelsplitter as endangered (58 FR 34926). 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.
    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 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, if appropriate, 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. We agreed further that if, upon consideration of all the 
available information and comments, we determined that the designation 
of critical habitat was prudent for the Carolina heelsplitter, we would 
send a final rule of this finding to the Federal Register by April 1, 
2002.
    On July 11, 2001, we published a prudency determination and a 
proposed designation of critical habitat for the Carolina heelsplitter 
(66 FR 36229). The proposed rule included maps and a description of all 
areas under consideration for designation as critical habitat for the 
species. On the same date, by letter, we also notified appropriate 
Federal and State agencies, local governments, scientific 
organizations, individuals knowledgeable about the species, and other 
interested parties about the proposal and requested their comments. A 
legal notice that announced the availability of the proposed rule and 
invited public comment was published in the following newspapers--
Enquirer-Journal, Monroe, NC; Lancaster News, Lancaster, SC; Chronicle-
Independence, Camden, SC; Cheraw Chronicle, Cheraw, SC; The Index-
Journal, Greenwood, SC; Citizen News, Edgefield, SC; and, McCormick 
Messenger, McCormick, SC.
    In the proposed rule and associated notifications, all interested 
parties were requested to submit, by September 10, 2001, comments, 
factual reports or information that might contribute to our 
determination and the development of a final rule. On March 6, 2002, we 
published a notice in the Federal Register (67 FR 10118) reopening the 
comment period on the proposed rule and announcing the availability of 
a draft economic analysis for the proposed designation of critical 
habitat for the Carolina heelsplitter. We notified appropriate 
agencies, government

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officials, institutions, and other interested parties, by letter dated 
March 6, 2002, of the availability of the draft economic analysis and 
the reopening of the comment period until April 5, 2002, and published 
legal notices in the newspapers listed above inviting comments from the 
public. Because completion of the draft economic analysis for the 
proposed critical habitat designation was delayed, we filed a motion in 
the District Court pursuant to our settlement agreement, requesting an 
extension to complete the final designation. On April 15, 2002, the 
District Court granted the Service an extension until June 17, 2002 to 
finalize the critical habitat designation for the Carolina 
heelsplitter.

Summary of Comments and Recommendations

    We received nine written comments during the two comment periods--
four during the initial comment period and five during the reopened 
comment period. We received written comments from one Federal agency, 
three State agencies, two private organizations, and one private 
individual. One of the respondents provided comments during the initial 
comment period on the proposed rule and also submitted two additional 
letters with comments on the draft economic analysis during the 
reopened comment period. Of the seven respondents, three expressed 
support for the designation of critical habitat for the Carolina 
heelsplitter, while two stated they did not agree that there is a need 
for the designation of critical habitat for the species. The other two 
respondents provided comments on the draft economic analysis but 
expressed neither support nor opposition to the proposed designation of 
critical habitat for the Carolina heelsplitter.
    We also contacted three experts in the field of malacology (native 
freshwater mussel biology and ecology) and requested that they serve as 
peer reviewers of the proposal to designate critical habitat for the 
Carolina heelsplitter. However, none of the three submitted comments on 
the proposal.
    We reviewed all comments received for substantive issues and new 
information regarding the Carolina heelsplitter. Similar comments were 
grouped into issues relating specifically to the proposed critical 
habitat determination and draft economic analysis on the proposed 
determination. These issues and our response to each are presented 
below.
    Issue 1: Two respondents stated that they have been working closely 
with the Service to evaluate, and consult on, their activities with 
regard to their potential to harm the Carolina heelsplitter and its 
habitat since the species was listed as endangered. They indicated that 
they agreed with the Service's 1993 determination that the designation 
of critical habitat would not provide additional protection to the 
Carolina heelsplitter beyond what is already afforded the species by 
the listing. One of these respondents stated that they have been 
involved in numerous section 7 consultations for activities in other 
areas that are already designated as critical habitat for other listed 
aquatic species and that in those cases the manner in which the 
consultations were handled did not differ from the manner in which 
consultations involving listed aquatic species without designated 
critical habitat were handled.
    Response: Both respondents have been working closely with us to 
identify their activities with the potential to affect the Carolina 
heelsplitter and to implement conservation measures to avoid or 
minimize potential effects to the species and further the conservation 
of the species. We agree with their comments that the designation of 
critical habitat is not likely to significantly affect future section 7 
consultations with respect to this species. (See section entitled 
Effects of Critical Habitat Designation, below, for additional 
information on this topic.) We also agree that the benefits to the 
Carolina heelsplitter from the designation of critical habitat may be 
minimal. However, based on our review of all available information, and 
with consideration of the standards for making a ``not prudent'' 
determination and recent court rulings on this topic, we cannot support 
a ``not prudent'' determination for the designation of critical habitat 
for the Carolina heelsplitter. We have not received or obtained any new 
information that alters the prudency determination we included in the 
proposed designation of critical habitat for the Carolina heelsplitter 
that we published in the Federal Register on July 11, 2001 (66 FR 
36229). As we noted in the proposed rule, the designation of critical 
habitat may provide some benefit to the Carolina heelsplitter by 
providing additional information to individuals, local and State 
governments, and others that join conservation efforts for the species, 
to assist these entities in long-range planning since areas essential 
to the conservation of the species are specifically identified and the 
primary constituent elements of the habitat necessary to the 
conservation of the species are more clearly defined.
    Issue 2: One respondent agreed that the identified habitats for the 
Carolina heelsplitter are essential and that the designation (of 
critical habitat) may assist individuals, local and State governments, 
and others that join conservation efforts to protect the Carolina 
heelsplitter, as suggested in the proposed rule.
    Response: No response necessary.
    Issue 3: One respondent expressed support for the designation of 
critical habitat for the Carolina heelsplitter but expressed concern 
that protection of habitat only to the ordinary high-water line will be 
insufficient to protect the species from habitat degradation. The 
respondent commented on the importance of buffers along proposed stream 
reaches and suggested the need for 100-foot buffers to protect the 
Carolina heelsplitter from the effects of sedimentation.
    Response: We agree with the respondent about the importance of 
stream/riparian buffers. Along with other conservation measures as part 
of an ongoing revision to their Land and Resource Management Plan, the 
U.S. Forest Service is currently working with us to establish an 
appropriate minimum width for a forested corridor on each side of all 
perennial streams and intermittent streams in the watersheds of the 
creeks supporting the Carolina heelsplitter on the Sumter National 
Forest in South Carolina. The functions and values of forested buffers 
to stream ecosystems are numerous. They include, for example, providing 
essential nutrients and cover substrates, maintaining stream 
temperature, protecting water quality by capturing and assimilating 
pollutants carried in run-off from the surrounding watershed, 
protecting the hydrology of the stream, and maintaining stream channel 
and bank stability.
    The width of the buffer necessary to perform the functions and 
values necessary for the protection and health of the stream and the 
Carolina heelsplitter depends on several variables; in most cases, 
however, a vegetated buffer by itself is not adequate. In many cases, a 
buffer larger than 100 or 200 feet may be necessary, depending on the 
activity in question and the health of the rest of the watershed, the 
type or lack of measures implemented to control runoff, and other 
relevant factors. However, in other cases, activities carried out in 
closer proximity to the streams may be acceptable. Accordingly, we are 
concerned that designating a standard size buffer as part of the 
designated critical habitat might imply that the fixed width always 
will be adequate to

[[Page 44506]]

protect the Carolina heelsplitter and its habitat. Therefore, we 
elected to designate only habitat directly utilized by the Carolina 
heelsplitter and which, if affected, regardless of the proximity of the 
activity in question, could affect the conservation of species. We note 
also that designated critical habitat is subject to the provisions of 
Section 7(a)(2) of the Act with regard to the actions of Federal 
agencies. Thus, all Federal agencies must, in consultation with the 
Service, ensure that any action they authorize, fund, or carry out is 
not likely to jeopardize the continued existence of the Carolina 
heelsplitter or result in the destruction or adverse modification of 
designated critical habitat (see section entitled Critical Habitat, 
below). This requirement applies regardless of the location of the 
Federal action in relation to designated critical habitat--what is 
important is the likely effect such an action may have on the habitat 
features essential to the conservation of the species. We will continue 
working with Federal agencies and landowners through section 7 of the 
Act, the Service's Partners for Fish and Wildlife Program, Section 10 
permits, and other regulations and/or programs to evaluate activities 
with the potential to affect the Carolina heelsplitter and to recommend 
sufficient size buffers and implement other conservation measures as 
necessary to ensure compliance with the Act and/or further the 
conservation of the species.
    Issue 4: One respondent provided comments stating that to ensure 
the survival and recovery of the Carolina heelsplitter, the Service 
must designate well-distributed, well-connected areas as critical 
habitat regardless of whether they are currently occupied, and to do 
otherwise would consign some populations and perhaps the species to 
extinction.
    Response: The Catawba, Pee Dee, and Savannah River systems are not 
connected and each feeds separately into the Atlantic Ocean. 
Consequently, it is not possible to connect the habitat or populations 
across these three systems. Further, within each river system, each of 
the surviving populations is separated from the other population in the 
same river system by extensive stream reaches that, based on the most 
recent survey data, do not appear to be capable of supporting the 
Carolina heelsplitter.
    The areas we are designating as critical habitat constitute our 
best assessment of the areas needed for the conservation of the 
Carolina heelsplitter in accordance with the goals outlined in our 
recovery plan for the species (Service 1997) and based on the best 
scientific and commercial information currently available to us 
concerning the known historic range of the species and the physical and 
biological features that are essential to its conservation and that may 
require special management considerations or protection. The Service's 
recovery plan for the Carolina heelsplitter, which was written at a 
time when there were four known populations, states that the species 
will be considered for delisting (recovered) when a total of six 
distinct viable populations of the species exist that meet the criteria 
outlined in the plan. (See the section entitled Methods, below, for 
further explanation of recommendations and criteria 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, 
2000), there are six known surviving populations--the Goose Creek/Duck 
Creek population, Waxhaw Creek population, Gills Creek population, 
Lynches River/Flat Creek population, Turkey Creek/Mountain Creek/
Beaverdam Creek population, and Cuffytown Creek population (see 
``Background'' section). The areas that we are designating as critical 
habitat for the Carolina heelsplitter contain the habitat elements 
essential to the life cycle needs of the species, as they are currently 
known. These areas are distributed in different portions of the 
species' known historical range, with two occurring in the Catawba 
River system (Waxhaw Creek population and Gills Creek population), two 
in the Pee Dee River system (Goose Creek/Duck Creek population and the 
Flat Creek/Lynches River population), and two in the Savannah river 
system (Turkey Creek/Mountain Creek/Beaverdam Creek population, and 
Cuffytown Creek population). Extensive surveys have been conducted, but 
we are not currently aware of any other streams/stream reaches within 
the Carolina heelsplitter's historical range that provide suitable 
habitat for the species.
    As discussed in the ``Background'' section of this document (under 
``Reasons for Decline and Threats to Surviving Populations''), the 
majority of the streams known to have historically supported 
occurrences of the Carolina heelsplitter have been significantly 
degraded by a variety of factors and appear to no longer be capable of 
supporting the Carolina heelsplitter. In fact, many appear to no longer 
be capable of supporting any species of native mussels, even the most 
tolerant species. Because, based on the most recent data, the species 
and suitable habitat for the species are still present in each of the 
areas that we are designating as critical habitat, we considered these 
areas as the most likely sites for focusing conservation efforts for 
maintaining and recovering the species.
    However, to the extent feasible, we will continue, with the 
assistance of other Federal, State, and private agencies or 
organizations, to conduct surveys and research on the species and to 
evaluate habitat throughout its historic range. Should additional 
information become available that indicates other areas within the 
Carolina heelsplitter's historical range are essential to the 
conservation of the species, we may revise the designated critical 
habitat accordingly. Similarly, if new information indicates any of the 
areas we have designated should not be included in the critical habitat 
designation because they no longer meet the definition of critical 
habitat, we may revise this final critical habitat designation. If, 
consistent with available funding and program priorities, we elect to 
revise the designation, we will do so through a subsequent rulemaking.
    Issue 5: One respondent commented that the draft economic analysis 
for the proposed designation of critical habitat for the Carolina 
heelsplitter (1) appears to contain contradictory and/or unclear 
statements concerning distinctions made between section 7 consultation 
costs associated with critical habitat designation and section 7 
consultation costs without critical habitat and (2) does a poor job of 
distinguishing between the two (upper bound and lower bound) baselines 
in the reporting of costs. The respondent cited statements in the 
document demonstrating that there are no anticipated costs associated 
solely with the critical habitat designation, while other statements 
(section headings) attribute section 7 costs to the designation of 
critical habitat.
    Response: The Service agrees with the respondent's comments on this 
issue. We have attempted to clarify in the addendum to the economic 
analysis that the statements in the draft economic analysis addressing 
the potential costs analyzed under the upper bound baseline are 
potential future section 7 costs that would occur regardless of whether 
critical habitat was designated.
    Issue 6: Three respondents commented that the draft economic 
analysis did not adequately assess the benefits of implementation of 
measures for the protection and recovery of the Carolina heelsplitter 
and its habitat, and one of these respondents stated that the 
assessment did not adequately address

[[Page 44507]]

the cost to small businesses and to society at large if the 
heelsplitter were to become extinct.
    Response: There is little disagreement in the published economic 
literature that real social welfare benefits can result from the 
conservation and recovery of endangered and threatened species. Such 
benefits have also been ascribed to the preservation of open space and 
biodiversity, both of which are associated with species conservation. 
Likewise, a local and regional economy can benefit from the 
preservation of healthy populations of endangered and threatened 
species and the habitat on which these species depend.
    It is not feasible, however, to fully describe and accurately 
quantify these benefits in the specific context of the economic 
analysis. For example, most of the studies in the economic literature 
do not allow for the separation of the benefits of listing (including 
the Act's take provisions) from the benefits of critical habitat 
designation. As our past experience with other species has shown, the 
designation of critical habitat does not necessarily inhibit the 
development of private property, which makes it difficult to draw from 
the literature the economic value of open space to identify the 
potential benefits of critical habitat designation. Also, while some 
economic studies attempt to measure the social value of protecting 
endangered species, the values identified in these studies would be 
most closely associated with the listing of a species as endangered or 
threatened because listing serves to provide the majority of the 
protection and conservation benefits afforded under the Act. 
Accordingly, the discussion presented in this report provides examples 
of potential benefits, which derive primarily from the listing of the 
species, based on information obtained in the course of developing the 
economic analysis. It is not intended to provide a complete analysis of 
the benefits that could result from section 7 of the Act in general or 
critical habitat designation in particular.
    Issue 7: One respondent commented that their Federal agency 
currently is undertaking an accelerated construction program and 
expressed concern that the designation of critical habitat for the 
Carolina heelsplitter may affect the agency's efforts to complete 
projects. The agency requested that the Service work with them to draft 
an agreement that would allow the projects to proceed without the need 
for formal consultation.
    Response: The Service's role in informal consultation is to assist 
the action agency with the identification of the potential direct and 
indirect effects of the agency's proposed projects and determine what 
measures can be implemented to avoid the potential adverse effects, 
when possible. We are always willing to work with any agency concerning 
a project, at their earliest convenience. The earlier in project 
planning that we are brought into the process, the more likely it is 
that formal consultation will be unnecessary and that project delays 
and modifications at later stages of the project can be avoided. 
Through cooperation during the early design stages of a project, the 
Service usually is able to work with the action agency to develop or 
adjust any project design features that might be needed to avoid or 
minimize adverse impacts to listed species and/or designated critical 
habitat as a result of the project. (See also our response to Issue 9, 
below.) However, section 7 of the Act requires formal consultation on 
any Federal action that is likely to adversely affect a federally 
listed species and/or designated critical habitat. Unless the potential 
adverse effect(s) associated with the proposed projects can be 
eliminated through informal consultation, formal consultation will be 
required. Also, all of the units that we are designating as critical 
habitat for the Carolina heelsplitter currently support populations of 
the species. Any activity that is likely to result in adverse effects 
to designated critical habitat would most likely also result in adverse 
effects to the species and, therefore, would require consultation 
regardless of whether critical habitat is designated.
    Issue 8: One respondent emphasized the difficulty of estimating the 
number of projects that will require formal consultation. This 
respondent noted that there has been only one formal consultation 
involving the Carolina heelsplitter to date, yet the analysis predicts 
six to eight projects in the future (over the next 10 years) that will 
require formal consultation.
    Response: We agree with the respondent that it is extremely 
difficult to estimate the number of potential future section 7 
consultations that are likely to require formal consultation and that 
formal consultation is only rarely required. Based on new information 
provided by the NCDOT, we have revised the estimated number of 
potential future Federal activities over the next 10 years that are 
likely to require formal consultation in the addendum to the draft 
economic analysis. However, while some of the formal consultations 
included in the estimate in the addendum to the economic analysis may 
very likely not be required, as stated in the draft economic analysis, 
the estimates in the analysis are conservative (more likely to be 
overstated) in order to ensure that the costs/effects associated with 
potential future section 7 consultations are not understated.
    Issue 9: One respondent commented that some of the costs in the 
draft economic analysis associated with project modifications to their 
agency's activities were too high, because the estimates were based on 
past projects, where concerns with the Carolina heelsplitter were not 
addressed in the project planning and design stages. The respondent 
stated that their agency has been making a concerted effort to address 
protected species issues early in the project planning stages so that 
these concerns can be addressed through project planning, alternative 
selection, and project design, thereby eliminating many costs 
associated with project delays and design changes.
    Response: We agree with the respondent's comments on this issue and 
commend the agency for their efforts to address endangered species 
concerns early in the project planning stages. We have addressed the 
respondent's comments by amending the costs associated with project 
design changes relative to the respondent agency's actions in the 
addendum to the draft economic analysis.
    Issue 10: One respondent questioned whether some of the costs in 
the draft economic analysis associated with the implementation of 
measures to control erosion and storm water were attributable to 
section 7 consultation or whether they are more appropriately 
attributable to other Federal and State regulations, such as the North 
Carolina Sedimentation Pollution Control Act and the Clean Water Act.
    Response: In the addendum to the draft economic analysis, we have 
acknowledged that some of the costs we are attributing to potential 
future section 7 consultations may likely be incurred in order to 
comply with other Federal, State, and local regulations, even in the 
absence of the listing of the Carolina heelsplitter or designation of 
critical habitat. However, it is difficult to separate the costs 
associated with the implementation of measures that some agencies 
believe they may be required to implement as a result of section 7 
consultation (that they believe may go beyond the sedimentation/
erosion-control measures required by other regulations) from the costs 
associated with these other regulations. Therefore, we have elected to 
be conservative in our estimation of the costs potentially

[[Page 44508]]

associated with future section 7 consultations on the Carolina 
heelsplitter and its designated critical habitat rather than risk 
understating these costs.
    Issue 11: One respondent stated that cost figures for timber sales 
on the Sumter National Forest in the draft economic analysis were 
inaccurate. According to this respondent, the Sumter National Forest 
lost $1.4 million on its timber sales in 1997; therefore, refraining 
from logging riparian zones in order to protect the Carolina 
heelsplitter might actually reduce the net costs of this program to the 
government.
    Response: The draft economic analysis focuses on impacts to the 
local timber economy in the Sumter National Forest and does not attempt 
to calculate whether the National Forest's timber sale program is 
profitable for these particular actions. Such an analysis for these 
particular forecast sales is beyond the scope of this analysis. The 
opportunity cost of lost timber sales due to the protection of a 
riparian buffer zone was derived using cost estimates obtained from 
personnel at the Sumter National Forest and is based on current base 
rates for timber sales.

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, 
at the time it is listed, 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. 
Pursuant to regulations at 50 CFR 424.12(e), areas outside the 
geographical area presently 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 one or more of the primary constituent elements, as defined 
at 50 CFR 424.12(b)).
    Section 4 of the Act requires that we designate critical habitat 
for a species at the time of listing, to the extent such habitat is 
determinable. We are required to designate those areas we know to be 
critical habitat, based on the best information available to us. When 
designating critical habitat, we will designate only areas currently 
known to be essential. 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.
    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, unless the best available scientific and 
commercial data demonstrate that the conservation needs of the species 
can not be met within currently occupied areas, we will not designate 
critical habitat in areas outside the geographical area presently 
occupied by the species.
    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. This policy 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 and the recovery plan, if one has 
been adopted by the Service. Additional information may be obtained 
from 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), and expert opinions.
    Section 4 of the Act requires that we designate critical habitat 
based on what we know at the time of the designation. 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 conservation 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 necessary for the conservation of the species. Areas outside the 
critical habitat designation will continue to be subject to 
conservation actions that may be implemented under section 7(a)(1) of 
the Act 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 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 
designations on the best scientific and commercial data available and 
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 if we determine 
that 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

    As required by section 4(b)(2) of the Act and regulations at 50 CFR 
424.12, we used the best scientific data available to determine areas 
that contain the physical and biological features that are essential 
for the conservation of the Carolina heelsplitter. This included 
information from the listing package for the species, the recovery 
plan, scientific publications, and recent surveys and reports.
    We also reviewed the goals for delisting the Carolina heelsplitter, 
as provided in our recovery plan for this species (Service 1997). The 
plan

[[Page 44509]]

provides five criteria that would need to be met to consider delisting 
the species. The first criterion calls for protection of existing 
populations, successful establishment of reintroduced populations, or 
discovery of additional populations, such that six distinct viable 
populations exist. These six populations must be distributed throughout 
the species' known historic range, with at least one each in the 
Catawba, Pee Dee, and Savannah River systems. The criterion also states 
that these populations must be extensive enough that it is unlikely 
that a single event would eliminate or significantly reduce one or more 
of them. In defining a viable population for the Carolina heelsplitter, 
the recovery plan states: ``A viable population is defined as a 
naturally reproducing population that is large enough to maintain 
sufficient genetic variation to enable it to evolve and respond to 
natural environmental changes. The number of individuals needed to 
reach a viable population will be determined as one of the recovery 
tasks.''
    In addition to the criterion concerning the existence of six viable 
populations, the recovery plan includes four other criteria that would 
need to be achieved to consider removal of the Carolina heelsplitter 
from Endangered Species Act protection. They include: protection of the 
six populations and their habitats from any present and foreseeable 
threats that would jeopardize their continued existence; improvements 
in habitat where certain types of degradation have occurred; completion 
of studies and successful implementation of recovery measures to 
increase population density and/or the length of the river reach 
inhabited by each of the six populations; and the existence of a 
certain age class structure in the populations, as well as the presence 
of appropriate host fish for the mussel's reproductive cycle, over 
specified periods of time.
    The areas we are designating as critical habitat, described below, 
constitute our best assessment of the areas needed for the conservation 
and recovery of the Carolina heelsplitter, are consistent with the 
goals and information 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 are designating 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 designated areas 
are distributed throughout the species' range with at least one 
occurring in the Catawba, Pee Dee, and Savannah river systems. 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 and provide for the essential life 
cycle needs of the species, we will revise the 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. These 
physical and biological features 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 (50 CFR 424.12(b)).
    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 Carolina 
heelsplitter, 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 substrates (see 
``Background'' section), it has only been recorded from stable pockets 
of substrates in stream reaches with stable, well-vegetated stream bank 
and riparian areas, and in substrates 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 substrates 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.

Critical Habitat Designation

    The Service's recovery plan for the Carolina heelsplitter states 
that the species will be considered for delisting when a total of six 
distinct viable populations exist and other criteria outlined in the 
plan are met (Service 1997). The critical habitat areas described below 
constitute our best assessment of the areas essential for the 
conservation of the Carolina heelsplitter. Critical habitat includes 
six units that currently are occupied by the species. 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 
Cuffytown Creek population (see ``Background'' section). The areas in 
the six units that we are designating as critical habitat for the 
Carolina heelsplitter include habitat for each of these populations. 
The lateral extent of designated 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 
designating the following areas as critical habitat for the Carolina 
heelsplitter (see Table 1 below for a summary of approximate stream 
lengths):

[[Page 44510]]

Unit 1. Goose Creek and Duck Creek (Pee Dee River system), Union 
County, NC

    Unit 1 encompasses approximately 7.2 km (4.5 mi) of the main stem 
of Goose Creek, Union County, NC, from the N.C. Highway 218 Bridge, 
downstream to its confluence with the Rocky River, and approximately 
8.8 km (5.5 mi) of the main stem of Duck Creek, Union County, NC, 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. The area is occupied by one of the six 
known populations of the Carolina heelsplitter, and supports one of the 
only two known populations in the Pee Dee River system. Based on our 
consideration of the best available information, including 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, NC

    Unit 2 encompasses approximately 19.6 km (12.2 mi) of the main stem 
of Waxhaw Creek, Union County, NC, 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. The area is occupied by one of the six known populations of 
the Carolina heelsplitter, and supports one of the only two known 
populations in the Catawba River system. Based on our consideration of 
the best available information, including 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, SC

    Unit 3 encompasses approximately 9.6 km (6.0 mi) of the main stem 
of Gills Creek, Lancaster County, SC, 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. The area is occupied by one of the six known 
populations of the Carolina heelsplitter, and supports one of the only 
two known populations in the Catawba River system. Based on our 
consideration of the best available information, including 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, SC, and 
the Lynches River (Pee Dee River system), Lancaster, Chesterfield, and 
Kershaw Counties, SC

    Unit 4 encompasses approximately 18.4 km (11.4 mi) of the main stem 
of Flat Creek, Lancaster County, SC, from the S.C. Route 204 Bridge, 
downstream to its confluence with the Lynches River, and approximately 
23.6 km (14.6 mi) of the main stem of the Lynches River, Lancaster and 
Chesterfield Counties, SC, 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, SC. 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. The area is occupied by one of the six known 
populations of the Carolina heelsplitter, and supports one of the only 
two known populations in the Pee Dee River system. Based on our 
consideration of the best available information, including 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, SC

    Unit 5 encompasses approximately 11.2 km (7.0 mi) of the main stem 
of Mountain Creek, Edgefield County, SC, from the S.C. Route 36 Bridge, 
downstream to its confluence with Turkey Creek; approximately 10.8 km 
(6.7 mi) of Beaverdam Creek, Edgefield County, from the S.C. Route 51 
Bridge, downstream to its confluence with Turkey Creek; and 
approximately 18.4 km (11.4 mi) of Turkey Creek, from the S.C. Route 36 
Bridge, Edgefield County, downstream to the S.C. Route 68 Bridge, 
Edgefield and McCormick Counties, SC. 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. The 
area is occupied by one of the six known populations of the Carolina 
heelsplitter, and supports one of the only two known populations in the 
Savannah River system. Based on our consideration of the best available 
information, including 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, SC

    Unit 6 encompasses approximately 20.8 km (12.9 mi) of the main stem 
of Cuffytown Creek, from the confluence of Horsepen Creek, northeast 
(upstream) of the S.C. Route 62 Bridge in Greenwood County, SC, 
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. The area is occupied by one of the six known 
populations of the Carolina heelsplitter, and supports one of the only 
two known populations in the Savannah River system. Based on our 
consideration of the best available information, including 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.

[[Page 44511]]



      Table 1.--Approximate Lengths of Stream Designated as Critical Habitat for the Carolina Heelsplitter
----------------------------------------------------------------------------------------------------------------
                                                                                                   Length in
              State                           County                    Unit and stream            kilometers
                                                                                                    (miles)
----------------------------------------------------------------------------------------------------------------
North Carolina..................  Union........................  Unit 1--Goose Creek.........          7.2 (4.5)
                                                                 Unit 1--Duck Creek..........          8.8 (5.5)
                                                                 Unit 2--Waxhaw Creek........        19.6 (12.2)
South Carolina..................  Lancaster....................  Unit 3--Gills Creek.........          9.6 (6.0)
                                                                 Unit 4--Flat Creek..........        18.4 (11.4)
                                  Lancaster, Chesterfield, and   Unit 4--Lynches River.......        23.6 (14.6)
                                   Kershaw.
                                  Edgefield....................  Unit 5--Mountain Creek......         11.2 (7.0)
                                                                 Unit 5--Beaverdam Creek.....         10.8 (6.7)
                                  Edgefield and McCormick......  Unit 5--Turkey Creek........        18.4 (11.4)
                                  Greenwood and McCormick......  Unit 6--Cuffytown Creek.....        20.8 (12.9)
----------------------------------------------------------------------------------------------------------------

Land Ownership

    Of the stream reaches we are designating as critical habitat, 
approximately 6.0 km (3.7 mi) of Beaverdam Creek, 13.6 km (8.5 mi) of 
Turkey Creek, and 1.6 km (1.0 mi) of Cuffytown Creek are bordered by 
the Sumter National Forest in South Carolina, and 2.4 km (1.5 mi) of 
Flat Creek that we are designating 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 designating as 
critical habitat for the Carolina heelsplitter, with the exception of 
State road and highway rights-of-way, are bordered by lands 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. 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, 
critical habitat designation would not afford any protection under the 
Act against such activities. Accordingly, the designation of critical 
habitat will not have any regulatory effect on private or State 
activities unless those activities require a Federal permit, 
authorization, or funding.
    Section 7(a)(2) of the Act and regulations at 50 CFR 402.10 require 
Federal agencies to ensure, in consultation with us, that any action 
they authorize, fund, or carry out is not likely to jeopardize the 
continued existence of any threatened or endangered species or result 
in the destruction or adverse modification of designated 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 the listed 
species for which critical habitat was designated. Such alternations 
include, but are not limited to, alterations adversely modifying any of 
those physical or biological features that were the basis for 
determining the habitat to be critical (50 CFR 402.02).
    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 designated 
critical habitat of the Carolina heelsplitter will require consultation 
under section 7 of the Act. However, pursuant to section 7 of the Act 
and the related consultation regulations, Federal agencies also are 
required to consult with us on any action that may affect a listed 
species and to ensure that actions they authorize, fund, or carry out 
do not jeopardize the continued existence of 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.
    Common to the definitions of both ``jeopardy'' and ``destruction or 
adverse modification of critical habitat'' is the concept that the 
likelihood of both survival and recovery of the species are appreciably 
reduced by the action. Because of the small size of surviving 
populations of the Carolina heelsplitter, the species' restricted 
range, and the limited amount of suitable habitat available to the 
species; and because all of the units that we are designating as 
critical habitat for the Carolina heelsplitter currently support 
populations of 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.
    If, through section 7 consultation, a Federal agency determines 
that an action/activity that they propose may adversely affect a listed 
species and/or designated critical habitat, we will issue a biological 
opinion determining whether the effects of the action are likely to 
jeopardize the continued existence of the species and/or destroy or 
adversely modify designated critical habitat. If we issue a biological 
opinion concluding that the action is likely to jeopardize the species 
or destroy or adversely modify designated critical habitat, we will 
also provide reasonable and prudent alternatives to the project, if any 
are identifiable. Reasonable and prudent alternatives are defined as 
alternative actions that can be implemented in a manner consistent with 
the intended purpose of the action, that are consistent with the scope 
of the Federal agency's legal authority and jurisdiction, that are 
economically and

[[Page 44512]]

technologically feasible, and that the Director of the Service believes 
would avoid jeopardizing the species' continued existence and/or the 
destruction or adverse modification of designated critical habitat.
    Section 4(b)(8) of the Act requires us to briefly describe and 
evaluate, in any proposed or final regulation that designates critical 
habitat, those activities involving a Federal action that may destroy 
or 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 critical habitat, 
that would significantly alter the natural flow regime, channel 
morphology or geometry, or water chemistry or temperature of any of the 
six designated critical habitat units, as described by the primary 
constituent elements, or any activity that could result in the 
significant discharge or deposition of sediment, excessive nutrients, 
or other organic or chemical pollutants into any of the six designated 
critical habitat units. Such Federal activities include (but are not 
limited to) carrying out or issuing permits, authorizations, or funding 
for reservoir construction; stream/streambank 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.
    Requests for copies of the regulations on listed wildlife and 
inquiries about prohibitions and permits, or questions regarding 
whether specific activities will constitute adverse modification of 
critical habitat, may be addressed to the U.S. Fish and Wildlife 
Service, Asheville Field Office (see ADDRESSES section).

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.
    Following publication of the proposed critical habitat designation, 
a draft economic analysis was conducted to estimate the potential 
economic effect of the designation. The draft analysis was made 
available for public review on March 6, 2002 (67 FR 10118). We accepted 
comments on the draft analysis until April 5, 2002.
    Our draft economic analysis evaluated the potential future effects 
associated with the listing of the Carolina heelsplitter as an 
endangered species under the Act, as well as any potential effect of 
the designation of critical habitat above and beyond those regulatory 
and economic impacts associated with the listing. To quantify the 
proportion of total potential economic impacts attributable to the 
critical habitat designation, the analysis evaluated a ``without 
critical habitat'' baseline and compared it to a ``with critical 
habitat'' scenario. The ``without critical habitat'' baseline 
represented the current and expected economic activity under all 
modifications prior to the critical habitat designation, including 
protections afforded the species under Federal and State laws. The 
difference between the two scenarios measured the net change in 
economic activity attributable to the designation of critical habitat. 
The categories of potential costs considered in the analysis included 
the costs associated with: (1) Conducting section 7 consultations 
associated with the listing or with the critical habitat, including 
incremental consultations and technical assistance; (2) modifications 
to projects, activities, or land uses resulting from the section 7 
consultations; (3) uncertainty and public perceptions resulting from 
the designation of critical habitat; and (4) potential offsetting 
beneficial costs associated with critical habitat, including 
educational benefits.
    The majority of future section 7 consultations associated with the 
areas being designated as critical habitat for the Carolina 
heelsplitter are likely to address residential development, road and 
bridge construction, water utility expansion, and Federal forestry 
activities. The draft analysis estimated that, over a 10-year period, 
approximately 14 formal consultations and 301 informal consultations 
will occur on projects with the potential to affect the Carolina 
heelsplitter and its proposed critical habitat. In addition, the draft 
analysis estimated that the Service will provide technical assistance 
to various parties on 200 occasions. Our draft analysis assumed that 
many of the potential future consultations are likely to result in 
Service recommendations for certain types of project modifications. 
Based on our draft analysis, we concluded that costs associated with 
future section 7 consultations involving the Carolina heelsplitter and 
its designated critical habitat could potentially range from $9,995,000 
to $66,686,000 over the next 10 years, but that these potential costs 
are most appropriately attributable to the listing of the Carolina 
heelsplitter rather than the designation of critical habitat for the 
species. Accordingly, we determined that the designation of critical 
habitat will not result in a significant economic impact.
    Following the close of the comment period on the draft economic 
analysis, a final addendum was completed that incorporated public 
comments on the draft analysis. Based on new information provided by 
some of the respondents and additional research conducted pursuant to 
the comments received, we reduced the estimated number of formal 
consultations potentially occurring over the next 10 years from 14 to 9 
and reevaluated the potential economic effects and costs associated 
with certain types of project modifications. Based on these changes, in 
the final addendum, we estimate that costs associated with future 
section 7 consultations involving the Carolina heelsplitter and its 
designated critical habitat could potentially range from $9,189,000 to 
$63,791,000 over the next 10 years. However, as stated in the draft 
economic analysis, the listing of the heelsplitter and the resultant 
Federal responsibility to avoid projects that would jeopardize the 
continued existence of the species is likely to trigger these impacts, 
whether or not critical habitat is designated, and the designation of 
critical habitat for the Carolina heelsplitter will not result in a 
significant economic impact.
    A detailed discussion of our analysis is contained in the Draft 
Economic Analysis of Proposed Critical Habitat Designation for the 
Carolina Heelsplitter (February 2002) and the Final Addendum to 
Economic Analysis of Critical Habitat Designation for the Carolina 
Heelsplitter (April 2002). Both documents are included in the 
supporting documentation for this rulemaking and are available for 
inspection at the Asheville Field Office (see ADDRESSES section).

[[Page 44513]]

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule and was reviewed by the Office of Management and 
Budget (OMB), as OMB determined that this rule may raise novel legal or 
policy issues. The Service prepared an economic analysis of this 
action. The Service used this analysis to meet the requirement of 
section 4(b)(2) of the Endangered Species Act to determine the economic 
consequences of designating the specific areas as critical habitat. The 
draft economic analysis was made available for public comment, and we 
considered comments on it during the preparation of this rule.

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. SBREFA amended the 
Regulatory Flexibility Act (RFA) to require Federal agencies to provide 
a statement of the factual basis for certifying that a rule will not 
have a significant economic impact on a substantial number of small 
entities. SBREFA also amended the RFA to require a certification 
statement. We are hereby certifying that this rule designating critical 
habitat for the Carolina heelsplitter will not have a significant 
economic impact on a substantial number of small entities. The 
following discussion explains our rationale for this assertion.
    According to the Small Business Administration (http://www.sba.gov/size/), small entities include small organizations, such as independent 
non-profit organizations, small governmental jurisdictions, including 
school boards and city and town governments that serve fewer than 
50,000 residents, as well as small businesses. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than $27.5 million in 
annual business, special trade contractors doing less than $11.5 
million in annual business, and agricultural businesses with annual 
sales less than $750,000. To determine if potential economic impacts to 
these small entities are significant, we consider the types of 
activities that might trigger regulatory impacts under this rule as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    In estimating the numbers of small entities potentially affected, 
we also considered whether their activities have any Federal 
involvement. Designation of critical habitat only has the potential to 
affect activities conducted, funded, or permitted by Federal agencies. 
Some kinds of activities are unlikely to have any Federal involvement 
and so will not be affected by critical habitat designation. Activities 
with Federal involvement that may require consultation regarding the 
Carolina heelsplitter and its critical habitat include: Regulation of 
activities affecting waters of the United States by the U.S. Army Corps 
of Engineers under section 404 of the Clean Water Act; forestry 
activities carried out by the U.S. Forest Service; and, road 
construction, maintenance, and right of way designation authorized, 
funded, or carried out by a Federal agency. As required under section 
4(b)(2) of the Act, we conducted an analysis of the potential economic 
impacts of this critical habitat designation. In the analysis, we found 
that the future section 7 consultations resulting from the listing of 
the Carolina heelsplitter and the proposed designation of critical 
habitat could potentially impose total economic costs for consultations 
and modifications to projects to range between approximately $9.2 and 
$63.8 million over a ten year period.
    In determining whether this rule could ``significantly affect a 
substantial number of small entities,'' the economic analysis first 
determined whether critical habitat could potentially affect a 
``substantial number'' of small entities in counties supporting 
critical habitat areas. While SBREFA does not explicitly define 
``substantial number,'' the Small Business Administration, as well as 
other Federal agencies, have interpreted this to represent an impact on 
20 percent or greater of the number of small entities in any industry. 
Based on the past consultation history of the Carolina heelsplitter, 
the economic analysis anticipated that future section 7 consultations 
could potentially affect small businesses associated with residential 
development. To be conservative (i.e., more likely to overstate impacts 
than understate them), the economic analysis assumed that a unique 
company will undertake each of the consultations forecasted in a given 
year, and so the number of businesses affected is equal to the total 
annual number of consultations projected in the economic analysis. 
Based on our analysis, the number of small businesses estimated to be 
impacted by future section 7 consultations is approximately 15 percent 
of the small businesses in the residential development industry in the 
affected counties. This finding is based on the extremely conservative 
assumption that the potential universe of affected entities includes 
only those within the counties in which critical habitat units are 
located, and attributes all of the effects of section 7 consultation on 
these activities solely to the critical habitat designation, even 
though these effects would likely occur with or without the designation 
of critical habitat for the heelsplitter due to the listing of the 
species. Because these estimates are less than the 20 percent threshold 
that would be considered ``substantial,'' the analysis provided a basis 
for concluding that this designation will not affect a substantial 
number of small entities as a result of the designation of critical 
habitat for the Carolina heelsplitter. The draft Economic Analysis and 
final Addendum contain the factual bases for this certification and 
contain a complete analysis of the potential economic effects of this 
designation. Copies of these documents are in the supporting record for 
the rulemaking and are available at the Service's Asheville, North 
Carolina, Field Office (see ADDRESSES section).
    In summary, we have considered whether this rule could result in 
significant economic effects on a substantial number of small entities. 
We have determined, for the above reasons, that it will not affect a 
substantial number of small entities. Therefore, we are certifying that 
the designation of critical habitat for the Carolina heelsplitter will 
not have a significant economic impact on a substantial number of small 
entities. Accordingly, a regulatory flexibility analysis is not 
required.

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

    As discussed above, this rule is not a major rule under 5 U.S.C. 
804(2), the

[[Page 44514]]

Small Business Regulatory Enforcement Fairness Act. This final 
designation of critical habitat: (a) Does not have an annual effect on 
the economy of $100 million; (b) will not cause a major increase in 
costs or prices for consumers, individual industries, Federal, State, 
or local government agencies, or geographic regions; and (c) does not 
have 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 in 
the economic analysis, future potential section 7 costs in areas that 
we are designating as critical habitat for the Carolina heelsplitter 
are anticipated to have a total estimated economic effect ranging 
between approximately $9.2 and $63.8 million over a 10-year period. 
Furthermore, because all the areas that we are designating as critical 
habitat in this rule currently support populations of the Carolina 
heelsplitter, the Service would consult on the same range of activities 
in the absence of this critical habitat designation and the above costs 
are most appropriately attributable to the section 7 jeopardy 
provisions of the Act due to the listing of the species (see ``Effects 
of Critical Habitat'' section).
    Proposed and final rules designating critical habitat for listed 
species are issued under the authority of the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.). Competition, employment, 
investment, productivity, innovation, or the ability of U.S.-based 
enterprises to compete with foreign-based enterprises will not be 
affected by the final rule designating critical habitat for this 
species. Therefore, we anticipate that this final rule will not place 
significant additional burdens on any entity.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211, which 
applies to regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
The primary land uses within designated critical habitat for the 
Carolina heelsplitter include residential development and forestry 
operations. No significant energy production, supply, and distribution 
facilities are included within designated critical habitat. Therefore, 
this action is not a significant action affecting energy production, 
supply, and distribution facilities, and no Statement of Energy Effects 
is required.

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 be affected only to the extent that any programs 
having Federal funds, permits, or other authorized activities must 
ensure that their actions will not adversely affect the critical 
habitat. However, as discussed above, these actions are currently 
subject to equivalent restrictions through the listing protections of 
the species, and no further restrictions are anticipated in areas of 
occupied designated critical habitat.
    b. This rule will not produce a Federal mandate 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 obligations on State or local governments.

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the takings implications of designating 
approximately 148.4 km (92.2 mi) of streams in North Carolina and South 
Carolina in six units of critical habitat for the Carolina 
heelsplitter. Based on our consideration of the economic analysis and 
other pertinent information, this rule does not have significant 
takings implications, and a takings implication assessment is not 
required. This rule 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 areas designated as critical habitat for the 
Carolina heelsplitter are considered to be within the geographical 
range occupied by the species and Federal actions 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 designation with, appropriate State natural resources 
agencies in North Carolina and South Carolina. We will continue to 
coordinate any future changes in the 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 the primary constituent elements 
of the habitat necessary to the conservation of the species are 
specifically identified. While this definition and identification does 
not alter where and what federally sponsored activities may occur, it 
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 has 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. We have designated critical 
habitat in accordance with the provisions of the Endangered Species 
Act, as amended. The rule uses standard property descriptions and 
identifies the primary constituent elements within the designated areas 
to assist the public in understanding the habitat needs that are 
essential for the conservation of the Carolina heelsplitter. We have 
made 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.

[[Page 44515]]

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by the OMB under the Paperwork Reduction Act. This 
rule will not impose new record-keeping or reporting requirements on 
State or local governments, individuals, businesses, or organizations. 
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 OMB control number.

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 Endangered Species 
Act, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This determination does not constitute a major federal action 
significantly affecting the quality of the human environment.

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), Executive Order 13175, and the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with federally recognized 
Tribes on a Government-to-Government basis. We are not aware of any 
Tribal lands essential for the conservation of the Carolina 
heelsplitter. Therefore, the designated critical habitat for the 
Carolina heelsplitter does not contain any Tribal lands or lands that 
we have identified as impacting Tribal trust resources.

References Cited

    A complete list of all references cited in this 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.

Regulation Promulgation

    Accordingly, we 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. In Sec. 17.11(h), revise the entry for the ``Heelsplitter, 
Carolina'' under ``CLAMS'' in the List of Endangered and Threatened 
Wildlife to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                 *                  *                   *                   *                  *                   *                   *
              Clams
 
                 *                  *                   *                   *                  *                   *                   *
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.
    (2) Unit 1.
    (i) Union County, NC--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.
    (ii) Map of Unit 1 follows:

BILLING CODE 4310-SS-P

[[Page 44516]]

[GRAPHIC] [TIFF OMITTED] TR02JY02.000

    (3) Unit 2.
    (i) Union County, NC--main stem of Waxhaw Creek (Catawba River 
system) from the N.C. Highway 200 Bridge, downstream to the North 
Carolina/South Carolina State line.
    (ii) Map of Unit 2 follows:

[[Page 44517]]

[GRAPHIC] [TIFF OMITTED] TR02JY02.001

    (4) Unit 3.
    (i) Lancaster County, SC--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.
    (ii) Map of Unit 3 follows:

[[Page 44518]]

[GRAPHIC] [TIFF OMITTED] TR02JY02.002

    (5) Unit 4.
    (i) Lancaster, Chesterfield, and Kershaw Counties, SC--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.
    (ii) Map of Unit 4 follows:

[[Page 44519]]

[GRAPHIC] [TIFF OMITTED] TR02JY02.003

    (6) Unit 5.
    (i) Edgefield and McCormick Counties, SC--main stem of Mountain 
Creek (Savannah River system), Edgefield County, SC, 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.
    (ii) Map of Unit 5 follows:

[[Page 44520]]

[GRAPHIC] [TIFF OMITTED] TR02JY02.004

    (7) Unit 6.
    (i) Greenwood and McCormick Counties, SC--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.
    (ii) Map of Unit 6 follows:

[[Page 44521]]

[GRAPHIC] [TIFF OMITTED] TR02JY02.005

BILLING CODE 4310-SS-C

[[Page 44522]]

    (8) 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 substrates 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 24, 2002.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-16580 Filed 7-1-02; 8:45 am]
BILLING CODE 4310-55-P