[Federal Register Volume 67, Number 188 (Friday, September 27, 2002)]
[Rules and Regulations]
[Pages 61016-61040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-24362]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH33


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Appalachian Elktoe

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), are designating 
critical habitat for the Appalachian elktoe (Alasmidonta raveneliana) 
under the Endangered Species Act of 1973, as amended (Act). The areas 
designated as critical habitat for the Appalachian elktoe total 
approximately 231.1 kilometers (144.3 miles) of various segments of 
rivers in North Carolina and one river in Tennessee.
    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 us, ensure 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 impacts of 
specifying any area as critical habitat.
    We solicited data and comments from the public on all aspects of 
the proposal, including data on economic and other impacts of the 
designation.

DATES: This rule is effective on October 28, 2002.

[[Page 61017]]


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, Asheville Field Office (see ADDRESSES) (telephone 828/258-
3939, extension 225; facsimile 828/258-5330).

SUPPLEMENTARY INFORMATION:

Background

    The Appalachian elktoe (Alasmidonta raveneliana) is a freshwater 
mussel that has a thin, kidney-shaped shell, reaching up to about 10 
centimeters (4 inches) (J.A. Fridell, Service, pers. observation 1999). 
Juveniles generally have a yellowish-brown periostracum (outer shell 
surface), while the periostracum of the adults is usually dark brown to 
greenish-black in color. Although rays are prominent on some shells, 
particularly in the posterior portion of the shell, many individuals 
have only obscure greenish rays. The shell nacre (inside shell surface) 
is shiny, often white to bluish-white, changing to a salmon, pinkish, 
or brownish color in the central and beak cavity portions of the shell; 
some specimens may be marked with irregular brownish blotches (adapted 
from Clarke 1981). Clarke (1981) provides a detailed description of the 
species' shell, with illustrations; Ortmann (1921) discussed soft 
parts.

Distribution, Habitat, and Life History

    The Appalachian elktoe is known only from the mountain streams of 
western North Carolina and eastern Tennessee. Although the complete 
historical range of the Appalachian elktoe is unknown, available 
information suggests that the species once lived in the majority of the 
rivers and larger creeks of the upper Tennessee River system in North 
Carolina, with the possible exception of the Hiwassee and Watauga River 
systems (the species has not been recorded from either of these river 
systems). In Tennessee, the species is known only from its present 
range in the main stem of the Nolichucky River.
    Currently, the Appalachian elktoe has a very fragmented, relict 
distribution. The species still survives in scattered pockets of 
suitable habitat in portions of the Little Tennessee River system, 
Pigeon River system, and the Little River in North Carolina and the 
Nolichucky River system in North Carolina and Tennessee. In the Little 
Tennessee River system in North Carolina, populations survive in the 
reach of the main stem of the Little Tennessee River, between the city 
of Franklin and Fontana Reservoir, in Swain and Macon Counties (Service 
1994, 1996; McGrath 1999; Fridell, pers. observation, 2002), and in 
scattered reaches of the main stem of the Tuckasegee River in Jackson 
and Swain Counties, from below the town of Cullowhee downstream to 
Bryson City (M. Cantrell, Service, pers. comm. 1996; Fridell, pers. 
observation 1996, 1997; McGrath 1998; T. Savidge, North Carolina 
Department of Transportation (NCDOT), pers. comm. 2001). The species 
was recently discovered (in 2000) in the Cheoah River, below Santeetlah 
Lake, in Graham County (W. Pennington, Pennington and Associates, Inc., 
Knoxville, Tennessee, pers. comm. 2000). On August 7, 2002, biologists 
with the NCDOT, U.S. Forest Service, and the Service recorded eleven 
live individuals and four shells from the Cheoah River below Santeetlah 
Dam, during a survey of portions of the river (Fridell, pers. 
observation 2002).
    In the Pigeon River system in North Carolina, a small population of 
the Appalachian elktoe occurs in small, scattered sites in the West 
Fork Pigeon River and in the main stem of the Pigeon River, above 
Canton, in Haywood County (Fridell, pers. observation 1999; McGrath 
1999). The Little River (upper French Broad River system) population of 
the species, in Transylvania County, NC, is restricted to small, 
scattered pockets of suitable habitat downstream of Cascade Lake 
(Fridell, pers. observation 2000; C. McGrath, North Carolina Wildlife 
Resources Commission (NCWRC), pers. comm. 2000).
    In the Nolichucky River system, the Appalachian elktoe survives in 
a few scattered areas of suitable habitat in the Toe River, Yancey and 
Mitchell Counties, NC (Service 1994, 1996; McGrath 1996, 1999); Cane 
River, Yancey County, NC (Service 1994, 1996; McGrath 1997); and the 
main stem of the Nolichucky River, Yancey and Mitchell Counties, NC, 
extending downstream to the vicinity of Erwin in Unicoi County, TN 
(Service 1994, 1996; Fridell, pers. observation 1998; S. Ahlstedt, U.S. 
Geological Survey, pers. comm. 2002). Two individuals have been found 
recently in the North Toe River, Yancey and Mitchell Counties, NC, 
below the confluence of Crabtree Creek (McGrath 1999), and 15 live 
individuals, with no more than 2 to 3 at each site (Fridell, pers. 
observation 2000), and one shell (S. Fraley, Tennessee Valley 
Authority, Norris, TN, pers. comm. 1999) have been recorded from the 
South Toe River, Yancey County, NC. The majority of the surviving 
occurrences of the Appalachian elktoe appear to be small to extremely 
small and restricted to scattered pockets of suitable habitat.
    Historically, the species has been recorded from Tulula Creek 
(Tennessee River drainage), the main stem of the French Broad River, 
and the Swannanoa River (French Broad River system) (Clarke 1981), but 
it has apparently been eliminated from these streams (Service 1994, 
1996). There is also a historical record of the Appalachian elktoe from 
the North Fork Holston River in Tennessee (S.S. Haldeman collection); 
however, this record is believed to represent a mislabeled locality 
(Gordon 1991). If the historical record for the species in the North 
Fork Holston River was a good record, the species has apparently been 
eliminated from this river as well.
    The Appalachian elktoe has been reported from relatively shallow, 
medium-sized creeks and rivers with cool, clean, well-oxygenated, 
moderate-to fast-flowing water. The species is most often found in 
riffles, runs, and shallow flowing pools with stable, relatively silt-
free, coarse sand and gravel substrate associated with cobble, 
boulders, and/or bedrock (Gordon 1991; Service 1994 and 1996; J.M. 
Alderman, NCWRC, pers. comm. 2000; McGrath, pers. comm. 2000; Savidge, 
pers. comm. 2000; Fridell, pers. observation 1989 through 2002). 
Stability of the substrate appears to be critical to the Appalachian 
elktoe, and the species is seldom found in stream reaches with 
accumulations of silt or shifting sand, gravel, or cobble (Fridell, 
pers. observation 1989 through 2001). Individual specimens that have 
been encountered in these areas are believed to have been scoured out 
of upstream areas during periods of heavy rain and have not been found 
on subsequent surveys (McGrath, pers. comm. 1996; Fridell, pers. 
observation 1995, 1996, 1999).
    Like other freshwater mussels, the Appalachian elktoe feeds by 
filtering food particles from the water column. The specific food 
habits of the species are unknown, but other freshwater mussels have 
been documented to feed on detritus (decaying organic matter), diatoms 
(various minute algae) and other algae and phytoplankton (microscopic 
floating aquatic plants), and zooplankton (microscopic floating aquatic 
animals). The reproductive cycle of the Appalachian elktoe is similar 
to that of other native freshwater

[[Page 61018]]

mussels. Males release sperm into the water column, and the sperm are 
then taken in by the females through their siphons during feeding and 
respiration. The females retain the fertilized eggs in their gills 
until the larvae (glochidia) fully develop. The mussel glochidia are 
released into the water, and within a few days they must attach to the 
appropriate species of fish, which they then parasitize for a short 
time while they develop into juvenile mussels. They then detach from 
their fish host and sink to the stream bottom where they continue to 
develop, provided they land in a suitable substrate with the correct 
water conditions.
    Personnel with the Tennessee Technological University at 
Cookeville, TN, identified the banded sculpin (Cottus carolinae) as a 
host species for glochidia of the Appalachian elktoe (M. Gordon, 
Tennessee Technological University, pers. comm. 1993). The U.S. 
Environmental Protection Agency's (EPA) Science and Ecosystem Support 
Division's Aquatic Lab in Athens, Georgia, also documented the mottled 
sculpin (C. bairdi), a species more common within the majority of the 
range of the Appalachian elktoe than the banded sculpin, as a suitable 
host for the Appalachian elktoe (A. Keller, EPA, Athens, Georgia, pers. 
comm. 1999). The general habitat requirements of the mottled sculpin 
are very similar to those of the Appalachian elktoe and are described 
by several authors (Lee et al. 1980, Etnier and Starnes 1993, Rohde et 
al. 1994, Jenkins and Burkhead 1994) as riffles, runs, and flowing 
portions of pools with gravel and rocky substrata in cool, clean, well-
oxygenated, moderate-to fast-gradient streams. The banded sculpin has 
similar habitat requirements but is considered to be more tolerant of 
warmer stream temperatures than the mottled sculpin (Lee et al. 1980, 
Etnier and Starnes 1993, Rohde et al. 1994, Jenkins and Burkhead 1994). 
Where the distribution of the two species overlap in streams supporting 
the Appalachian elktoe, the mottled sculpin is typically the most 
abundant, with the banded sculpin being generally more common in the 
downstream reaches of the streams, below the Appalachian elktoe 
occurrences. Of the two sculpin species, it is the mottled sculpin that 
most likely/most commonly serves as the host species for the 
Appalachian elktoe. Additional studies are needed to determine if any 
other native fish species may also serve as hosts for the glochidia of 
the Appalachian elktoe. The life span and many other aspects of the 
Appalachian elktoe's life history are currently unknown.

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 Appalachian 
elktoe 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 and the run-off 
of silt, fertilizers, pesticides, and other pollutants from land 
disturbance activities implemented without adequate measures to control 
erosion and/or storm water (Service 1994, 1996).
    Mussels are known to be sensitive to numerous pollutants, 
including, but not limited to, a wide variety of heavy metals, high 
concentrations of nutrients, ammonia, and chlorine--pollutants commonly 
found in many domestic and industrial effluents (Havlik and Marking 
1987). In the early 1900s, Ortmann (1909) noted that the disappearance 
of unionids (mussels) is the first and most reliable indicator of 
stream pollution. Keller and Zam (1991) concluded that mussels are more 
sensitive to metals than commonly tested fish and aquatic insects. The 
life cycle of native mussels makes the reproductive stages especially 
vulnerable to pesticides and other pollutants (Ingram 1957, Stein 1971, 
Fuller 1974, Gardner et al. 1976). Effluent from sewage treatment 
facilities can be a significant source of pollution that can severely 
affect the diversity and abundance of aquatic mollusks. The toxicity of 
chlorinated sewage effluents to aquatic life is well documented (Brungs 
1976, Tsai 1975, Bellanca and Bailey 1977, EPA 1985, Goudreau et al. 
1988), and mussel glochidia (larvae) rank among the most sensitive 
invertebrates in their tolerance to toxicants present in sewage 
effluents (Goudreau et al. 1988). Goudreau et al. (1988) found that the 
recovery of mussel populations may not occur for up to 3.2 kilometers 
(km) (2 miles (mi)) below the discharge points of chlorinated sewage 
effluent.
    Land-clearing and disturbance activities carried out without proper 
sedimentation and storm-water control pose a significant threat to the 
Appalachian elktoe and other freshwater mussels. Mussels are sedentary 
and are not able to move long distances to more suitable areas in 
response to heavy silt loads. Natural sedimentation resulting from 
seasonal storm events probably does not significantly affect mussels, 
but human activities often create excessively heavy silt loads that can 
have severe effects on mussels and other aquatic organisms. Siltation 
has been documented to adversely affect native freshwater mussels both 
directly and indirectly (Ellis 1936, Marking and Bills 1979, Kat 1982, 
Aldridge et al. 1987). Siltation degrades water and substrate quality, 
limiting the available habitat for freshwater mussels (and their fish 
hosts), thereby limiting their distribution and potential for expansion 
and maintenance of their populations; 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) 
found that less than 2.5 centimeters (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 the 
recruitment of juvenile mussels into the population. Also, sediment 
loading in rivers and streams during periods of high discharge is 
abrasive to mussel shells. Erosion of the outer shell allows acids to 
reach and corrode underlying layers that are composed primarily of 
calcium, which dissolves under acid conditions (Harman 1974).
    The effects of impoundments on mussels are also well documented. 
For the most part, lakes do not occur naturally in western North 
Carolina and eastern Tennessee (most lakes in western North Carolina 
and eastern Tennessee are man-made), and the Appalachian elktoe, like 
the majority of our other native mussels, fish, and other aquatic 
species in these areas, is adapted to stream conditions (flowing, 
highly oxygenated water and coarse sand and gravel bottoms). Dams 
change the habitat from flowing to still water. Water depth increases, 
flow decreases, and silt accumulates on the bottom (Williams et al. 
1992), altering the quality and stability of the remaining stream 
reaches by affecting water flow regimes, velocities, temperature, and 
chemistry. Dams that operate by releasing cold water from near the 
bottom of the reservoirs lower the water temperature downstream, 
changing downstream reaches from warm-or cool-water streams to cold-
water streams and affecting their suitability for many of the native 
species historically inhabiting these stream reaches (Miller et al. 
1984, Layzer et al. 1993). The effects of impoundments result in 
changes in fish communities (fish host species may be eliminated) 
(Brimm 1991), and in

[[Page 61019]]

mussel communities (species requiring clean gravel and sand substrates 
are eliminated) (Bates 1962). In addition, dams result in the 
fragmentation and isolation of populations of species and act as 
effective barriers to the natural upstream and downstream expansion or 
recruitment of mussel and fish species.
    The information available demonstrates that habitat deterioration 
resulting from sedimentation and pollution from numerous point and 
nonpoint sources, when combined with the effects of other factors 
(including habitat destruction, alteration, and fragmentation resulting 
from impoundments, channelization projects, etc.), has played a 
significant role in the decline of the Appalachian elktoe. We believe 
this is particularly true of the extirpation of the Appalachian elktoe 
from the Swannanoa and French Broad Rivers and portions of the Pigeon, 
upper Little River, and upper Little Tennessee River systems. We 
believe these factors also have contributed to the extirpation of the 
species from parts of the upper Tuckasegee River, Cheoah River, and 
Tulula Creek, though the effects of impoundments are believed to have 
played an even more significant role in the loss of the species in the 
upper reaches of these streams.
    The most immediate threats to the remaining populations of the 
Appalachian elktoe are associated with sedimentation and other 
pollutants (i.e., fertilizers, pesticides, heavy metals, oil, salts, 
organic wastes, etc.) from nonpoint sources. Much of the Nolichucky 
River in North Carolina contains heavy loads of sediment, primarily 
from past land disturbance activities within its watershed, and 
suitable habitat for the Appalachian elktoe appears to be very limited 
in this river system. The species has not been found in the Nolichucky 
River system in substrates with accumulations of silt and shifting 
sand; it is restricted to small, scattered pockets of stable, 
relatively clean, and gravelly substrates. The same is true of the 
other surviving populations of the species.

Previous Federal Actions

    In the May 22, 1984, Animal Notice of Review published in the 
Federal Register (49 FR 21675) and again in the January 6, 1989, Animal 
Notice of Review (54 FR 579), we recognized the Appalachian elktoe as a 
species under review for potential addition to the Federal List of 
Endangered and Threatened Wildlife and Plants. In those notices, we 
designated the Appalachian elktoe as a category 2 candidate for Federal 
listing. We no longer maintain a list of category 2 candidate species. 
At that time, category 2 was defined as including species for which we 
had some information indicating that the taxa may be under threat, but 
not enough information was available to determine if they warranted 
Federal listing and the preparation of a proposed rule. Subsequently, 
surveys of historical and potential Appalachian elktoe habitat were 
conducted, revealing that the species had undergone a significant 
decline throughout its historical range and that the remaining 
occurrences were threatened by many of the same factors that are 
believed to have resulted in this decline. Accordingly, on June 10, 
1992, we reclassified the Appalachian elktoe as a category 1 candidate. 
At that time, category 1 candidates were those species for which we had 
adequate information on biological vulnerability and threats to support 
proposals to list them as endangered or threatened species. On April 
20, 1992, and again on August 21, 1992, we notified appropriate 
Federal, State, and local governmental agencies that we were gathering 
information on the Appalachian elktoe and that the species might be 
proposed for Federal listing. We received a total of six written 
comments in response to these two notices. The NCWRC (two written 
comments), the North Carolina Natural Heritage Program (two written 
comments), and an interested biologist expressed their support for the 
species' being proposed for protection under the Act. The Natural 
Resources Conservation Service stated that they did not have any 
additional information on this species.
    On September 3, 1993, we published a proposed rule to list the 
Appalachian elktoe as an endangered species (58 FR 46940). 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 Appalachian 
elktoe. We solicited comments and suggestions concerning the proposed 
rule from the public, concerned governmental agencies, the scientific 
community, industry, and other interested parties. We requested 
comments from appropriate Federal and State agencies, county 
governments, scientific organizations, and interested parties by 
letters dated September 14, 1993, and January 27, 1994. We published a 
legal notice, which invited general public comment, in the following 
newspapers--Erwin Record, Erwin, TN, September 22, 1993; Mitchell News 
Journal, Spruce Pine, NC, September 22, 1993; Yancey Common Times 
Journal, Burnsville, NC, September 22, 1993; Smoky Mountain Times, 
Bryson City, NC, September 23, 1993; and Franklin Press, Inc., 
Franklin, NC, September 24, 1993.
    We received four comments in response to the proposed rule, one 
supporting the listing and three requesting a public hearing. On 
January 21, 1994, we published a notice announcing the public hearing 
and the reopening of the comment period through February 21, 1994, to 
ensure that all interested parties had ample time to provide 
information on the proposed rule (59 FR 3326). On February 8, 1994, we 
held a public hearing at the Mitchell High School in Bakersville, NC. 
We received 20 verbal statements and written comments during the public 
hearing; 14 of them expressed opposition to the listing of the 
Appalachian elktoe, 5 expressed support for the listing, and 1 
expressed an interest but offered neither support nor opposition. We 
received 40 additional written comments during the reopened comment 
period; 8 opposed the listing, 31 supported the listing, and 1 
expressed neither opposition nor support.
    Following our review of all the comments and information received 
throughout the listing process, we incorporated appropriate changes and 
on November 23, 1994, we published a final rule listing the Appalachian 
elktoe as endangered (59 FR 60324). That decision included our 
determination that the designation of critical habitat was not prudent 
for the Appalachian elktoe because, after a review of all the available 
information, we determined that such designation 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 the 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 Appalachian 
elktoe (Alasmidonta raveneliana), Carolina heelsplitter (Lasmigona 
decorata), spruce-fir moss spider (Microhexura montivaga), 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 February 1, 
2001, a withdrawal of the

[[Page 61020]]

existing not prudent determination for the Appalachian elktoe, together 
with a new proposed critical habitat determination. We agreed further 
that if we determined that the designation of critical habitat would be 
prudent for the Appalachian elktoe, we would send a final rule of this 
finding to the Federal Register by November 1, 2001.
    On February 8, 2001, we published a prudency determination and a 
proposed designation of critical habitat for the Appalachian elktoe (66 
FR 9540). This proposed rule included maps and a description of all 
areas under consideration for designation as critical habitat for the 
species. By letter of February 9, 2001, 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--Erwin 
Record, Erwin, TN; Franklin Press, Inc., Franklin, NC; Graham Star, 
Robbinsville, NC; Mitchell News Journal, Spruce Pine, NC; Mountaineer, 
Waynesville, NC; Smoky Mountain Times, Bryson City, NC; Transylvania 
Times, Brevard, NC; and Yancey Common Times Journal, Burnsville, NC. At 
the request of the Transylvania County (NC) Board of Commissioners, we 
attended a Board of Commissioners public meeting on March 26, 2001, in 
Brevard, NC, where we gave a presentation on the proposed designation 
of critical habitat for the Appalachian elktoe and responded to 
questions concerning the proposal from the commissioners and the public 
in attendance.
    In the proposed rule and associated notifications, all interested 
parties were requested to submit factual reports or information by 
April 9, 2001, that might contribute to our determination and the 
development of a final rule. In response to the proposed rule, we 
received 49 written comments, including two requests for public 
hearings.
    On August 29, 2001, we entered into an agreement (referred to as 
the ``mini-global'' agreement) with the plaintiffs from the June 30, 
1999, lawsuit that allowed us to reallocate funding to complete listing 
decisions on 14 species, proceed with proposed listing decisions on 8 
species, take action on 4 listing petitions, and extend the deadline on 
8 critical habitat designations, including the final determination 
concerning the designation of critical habitat for the Appalachian 
elktoe. Pursuant to this agreement, our deadline for submitting the 
final determination concerning the designation of critical habitat for 
the Appalachian elktoe to the Federal Register was extended to July 6, 
2002. However, because we were unable to spend fiscal year 2001 funding 
on the required draft economic analysis of the potential effects of the 
designation of critical habitat for the Appalachian elktoe and approval 
for spending fiscal year 2002 appropriated funds for listing was not 
received until mid-November 2001, the development of the draft economic 
analysis was delayed. We then 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 us an extension until September 20, 2002, to finalize the 
critical habitat designation for the Appalachian elktoe.
    On May 16, 2002, we published a notice in the Federal Register (67 
FR 34893) announcing the availability of a draft economic analysis for 
the proposed designation of critical habitat for the Appalachian 
elktoe; announcing the purpose, time, and location of public hearings 
requested during the initial comment period on the proposed rule; and 
announcing the reopening of the formal comment period on the proposed 
rule from May 16, 2002, to July 1, 2002. We notified appropriate 
agencies, governmental officials, institutions, and other interested 
parties, by letters dated May 6, 2002, of the reopening of the comment 
period, availability of the draft economic analysis, and the public 
hearings. In addition, we published legal notices in the newspapers 
listed above announcing the reopening of the comment period, the public 
hearings, and the availability of the draft economic analysis and 
inviting public participation and comments.
    In response to the requests for public hearings, we held two 
hearings, the first on June 4, 2002, in Erwin, TN, and the second on 
June 6, 2002, in Bryson City, NC. Twenty-three individuals presented 
oral comments at the two hearings (three of these individuals provided 
comments at both hearings), and we received 28 written comments during 
the reopened comment period. In addition, at the request of the Yancey 
County (NC) Manager, we attended a public meeting of the Yancey County 
Board of Commissioners on June 11, 2002, where we gave a presentation 
about the proposed designation of critical habitat for the Appalachian 
elktoe and an overview of past and potential future activities within 
the general area, with Federal involvement, that have required or are 
likely to require consultation under section 7 of the Act.

Summary of Comments and Recommendations

    We received 26 oral comments at the two public hearings and a total 
of 78 written comments during the two comment periods-49 during the 
initial comment period and 29 during the reopened comment period. Of 
the responses/comments received, 71 supported the designation of 
critical habitat for the Appalachian elktoe, 25 expressed opposition to 
the designation, and 8 expressed neither support nor opposition but 
requested or provided additional information. Comments were received 
from The Eastern Band of Cherokee Indians, 1 congressional 
representative from Georgia, 1 Federal agency, 1 State agency, 3 
elected county officials, 9 private organizations or businesses, and 62 
private individuals. Several of the respondents provided comments 
during the initial comment period on the proposed rule and additional 
comments on the draft economic analysis and/or proposed rule during the 
reopened comment period. Some respondents provided both oral comments 
(during one or both of the public hearings) and written comments.
    We also contacted, by phone and letters dated February 26, 2001, 
four 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 Appalachian elktoe. 
However, none of the four submitted comments on the proposal.
    We reviewed all comments received for substantive issues and any 
new information regarding the Appalachian elktoe. Similar comments were 
grouped into issues relating specifically to the proposed critical 
habitat determination and the draft economic analysis with regard to 
the proposed determination. These issues and our response to each are 
presented below.
    Issue 1: One respondent pointed out that while the proposed rule 
states that the available information suggests that the Appalachian 
elktoe once lived in the majority of the rivers and larger creeks of 
the upper Tennessee River system in North Carolina, the species has not 
been recorded in the Watauga or Hiwassee Rivers.
    Response: The respondent is correct, and we have mentioned these 
two river systems in this rule as possible exceptions to the historical 
range of the Appalachian elktoe.

[[Page 61021]]

    Issue 2: One respondent recommended that, because of the critical 
role of fish hosts in the mussel's life cycle, the final rule should 
include a discussion about the habitat and ecological requirements of 
the mottled sculpin. The same respondent suggested that other more 
motile fish species may serve as hosts for the glochidia of the 
Appalachian elktoe and may have some effect on which areas should be 
considered critical habitat.
    Response: We agree with the respondent's first recommendation and 
have included a brief discussion of the habitat requirements of the 
mottled sculpin and banded sculpin in the ``Background'' section of 
this rule. However, while we also agree that it is possible that other 
fish species may also serve as hosts for the glochidia of the 
Appalachian elktoe, additional research is needed to determine this. 
The two studies that have been conducted (see the ``Background'' 
section above) have identified only the two sculpin species--the 
mottled sculpin and the banded sculpin--as suitable hosts for the 
Appalachian elktoe. The areas we are designating as critical habitat 
constitute our best assessment of the areas needed for the conservation 
of the Appalachian elktoe based on the best scientific information 
currently available to us. These areas contain the habitat elements 
essential to the life cycle needs of the Appalachian elktoe, as they 
are currently known, including habitat for the species' fish hosts, as 
they are known. To the extent feasible, we will continue, with the 
assistance of other Federal, State, and private researchers, to conduct 
research on the life cycle needs of the species. Should new information 
become available indicating that other areas are essential to the 
conservation of the Appalachian elktoe, we may revise the designated 
critical habitat accordingly in a subsequent rule.
    Issue 3: Two respondents recommended that the final rule would be 
more informative if it described the specific impacts in the streams 
and stream reaches where the Appalachian elktoe is believed to have 
been adversely affected or has been extirpated. Another respondent 
requested information about what has caused the decline in Appalachian 
elktoe populations and why, if water quality has improved in the 
Nolichucky River system, the Appalachian elktoe populations have 
declined.
    Response: We have included some additional information in the 
``Background'' section of this rule (see ``Reasons for Decline and 
Threats to Surviving Populations'' section) concerning the factors that 
are believed to have contributed to the decline of the species 
throughout its range and that threaten the surviving occurrences.
    The available information demonstrates that the decline of the 
Appalachian elktoe throughout its range can be attributed to several 
factors, including siltation resulting from past logging, mining, 
agricultural, and construction activities; the run-off and discharge of 
organic and inorganic pollutants from industrial, municipal, 
agricultural, and other point and nonpoint sources; habitat alterations 
associated with impoundments, channelization, and dredging; and other 
natural and human-related factors that adversely modify the aquatic 
environment. It is true that there have been significant improvements 
in both water and substrate (stream bottom) quality in portions of the 
Nolichucky River system and other river systems supporting the species 
as a result of the implementation of Federal and State regulations for 
controlling sediment and other pollutants and an increased awareness 
and/or interest in, and voluntary implementation of, conservation 
measures. Many of the industries, landowners, builders, etc., in the 
watersheds of these rivers are to be commended for implementing 
measures for controlling the run-off of sediment and other pollutants 
into the rivers and their tributaries. The status of the Appalachian 
elktoe population in the Nolichucky River system appears to be in the 
process of recovering as a result of these improvements, and the 
species appears to be in the process of recolonizing portions of these 
rivers. However, the population in the Nolichucky River system is still 
very small and scattered. Despite intensive surveys by biologists with 
the Service, NCWRC, NCDOT, and Tennessee Valley Authority, no more than 
one to three specimens of the Appalachian elktoe have been found at 
most of the sites where it presently occurs in the Toe, Cane, North 
Toe, and South Toe Rivers. Also, while there have been improvements, 
activities are still occurring within the Nolichucky River watershed 
that continue to adversely affect the quality of portions of these 
rivers, and other activities are proposed that have the potential to 
adversely affect them.
    Issue 4: One respondent requested more specific information on the 
habitat requirements of the species and another respondent stated that 
the Service lacks the fundamental scientific qualifications necessary 
to determine Appalachian elktoe habitat requirements and to specify 
``critical habitat'' for the species. Specifically, the latter 
respondent stated that there is little or no available quantifiable 
data on the species' habitat requirements, such as ``stream order, 
hydrology, water depth, water velocity, substrate preferences, and 
water temperature and chemistry.'' This respondent stated the Service's 
determination of critical habitat appears to rely solely on 
observations of general habitat conditions in streams where the 
Appalachian elktoe has been found.
    Response: The Act requires us to base our critical habitat 
designations on the best scientific information available. While there 
is still much that we do not know or understand about the habitat 
requirements of the Appalachian elktoe (in particular, the species' 
microhabitat requirements), the primary constituent elements, as they 
are identified in the rule, are based on descriptions of the species' 
habitat provided by biologists with the Service, NCWRC, NCDOT, and 
Tennessee Technological University who have been involved in conducting 
surveys and monitoring populations of the species; they represent the 
best information on the habitat requirements of the species currently 
available to us. They are not observations of the general habitat 
conditions within the streams where the Appalachian elktoe occurs; 
rather, they represent a description of the habitat conditions present 
at the sites within these streams where the Appalachian elktoe occurs 
as compared to the other sites and/or reaches of these streams where 
the species is not found. While we will continue (with the assistance 
of other Federal, State, and private researchers) to conduct studies of 
the species and its habitat requirements, we do not believe it is 
likely that more specific information on the species' habitat 
requirements would result in a change to the stream reaches designated 
as critical habitat for the Appalachian elktoe. The continued presence 
of the Appalachian elktoe in these streams indicates the presence of 
the habitat requirements for the species, though we may currently 
understand these requirements only in relatively general terms. Rather, 
more specific information would allow us to better assess potential 
effects to the species and its habitat and to better identify and 
implement recovery and management activities for the species within 
these stream reaches. However, if new information becomes available 
indicating that other areas are essential to the conservation of the 
Appalachian elktoe, we may revise the designated critical habitat 
accordingly through a subsequent rulemaking. Similarly, if new 
information indicates any of the

[[Page 61022]]

areas we have designated should not be included in the critical habitat 
designation because they no longer meet the definition of critical 
habitat and do not provide the habitat elements essential to the life-
cycle needs of the species, we may, through a subsequent rulemaking, 
revise the critical habitat designation to omit these areas.
    Issue 5: One respondent stated that the Act defines critical 
habitat as ``(i) the specific areas within the geographical area 
occupied by the species, at the time it is listed * * * and (ii) 
specific areas outside the geographical area occupied by the species at 
the time it is listed * * *'' The respondent further stated that the 
Service has insufficient information to make a finding that the 
Appalachian elktoe in fact occupied Unit 3, the Cheoah River below 
Santeetlah Dam in Graham County, NC, at the time it was listed.
    Response: While it is true that we were unaware of the Appalachian 
elktoe's occurrence in the Cheoah River when the species was listed on 
November 23, 1994 (FR 59 60324), the subsequent discovery of the 
species in the Cheoah River (Pennington, pers. comm. 2000) and the fact 
that the species is documented to have historically occurred in Tulula 
Creek (Clarke 1981), a tributary to the upper Cheoah River, indicates 
that the occurrence of the Appalachian elktoe in the Cheoah River is a 
natural occurrence of the species that existed both historically and at 
the time of listing.
    Issue 6: One respondent stated that the conditions in the 
Nolichucky River system seem to vary considerably from the primary 
constituent element items 2 (geomorphically stable stream channels and 
banks) and 4 (sand, gravel, cobble, boulder, and bedrock substrates 
with no more than low amounts of fine sediment) in the list of primary 
constituent elements in the proposed rule and that conditions in the 
Cheoah River may not agree with items 1 (permanent flowing, cool, clean 
water), 3 (pool, riffle, and run sequences within the channel), and 6 
(periodic natural flooding).
    Response: Stream conditions throughout the Nolichucky River system 
do vary and where all of the constituent elements do not exist, the 
Appalachian elktoe is rarely found, though there have been rare 
instances in both the Toe (Nolichucky River system) and Little 
Tennessee Rivers that single individual specimens of the elktoe have 
been observed in unstable, sifting sand substrates. However, these 
individuals were not found during subsequent surveys and were believed 
to be individuals that had been displaced and deposited by storm flows 
(McGrath, pers. comm. 1996; Fridell, pers. observation 1995, 1996, 
1999). Within the areas we are designating as critical habitat, the 
sites that support the majority, and healthiest, of the occurrences of 
the species provide all of the primary constituent elements, though at 
some sites (especially those sites and stream reaches supporting the 
lowest numbers of individuals) one or more of the constituent elements, 
though present, appear to be limited or of marginal quality and may 
require additional management and enhancement for full recovery of the 
species. At the sites in the streams within the Nolichucky River 
system, as well as elsewhere in the stream reaches that we are 
designating as critical habitat, the Appalachian elktoe is found 
consistently, with the few exceptions mentioned above, in stable 
substrates (most often comprised of sand and gravel interspersed in 
areas of cobble, boulders, or exposed bedrock) along reaches with 
overall stable, well-vegetated stream banks.
    Concerning the questions raised about the conditions in the Cheoah 
River, the habitat conditions within the reach of the river that is 
being designated as critical habitat have been characterized as riffle, 
run, and pool habitat in varying sequences, with interspersed ledge/
step habitat in some reaches (Normandeau Associates Inc. 2001). Flow 
within the designated reach of the Cheoah River is maintained by 
leakage--2 cubic feet per second (cfs)--from Santeetlah Dam (Normandeau 
Associates Inc. 1999) and by flows from numerous tributary streams, 
including Cochran, Rock, Yellow, Deep, Barker, and Bear Creeks and 
several unnamed tributaries. Data from the U.S. Geological Survey 
(USGS) gage (0351706800) located on the river near Bear Pen 
Gap, approximately 1.7 miles upstream the river's confluence with the 
Little Tennessee River, show that the subject reach of the Cheoah River 
has maintained a continuous flow during the period of record (October 
1999 through October 2001), with the lowest recorded daily flow of 8.8 
cfs and the maximum recorded flow of 1,280 cfs (lowest daily mean flow 
of 9.1 cfs; maximum daily mean flow of 612 cfs; mean annual flow of 
55.8 cfs) (USGS 2002). Bank-full flow/discharge (bank-full stage is the 
point or elevation on the bank where flooding begins and corresponds to 
the flow at which channel maintenance is most effective) on the subject 
reach of the Cheoah River is estimated at 838 cfs, and from October 
1999 through July 15, 2002 (USGS 2002), discharges gaged on the Cheoah 
River have reached or exceeded that volume of stream flow on at least 6 
days. Accordingly, while it is true that the construction and operation 
of the Santeetlah Dam on the Cheoah River have had a significant effect 
on both the high and low flows in the Cheoah River downstream of the 
dam, we believe the reach of the Cheoah River that we are designating 
as critical habitat for the Appalachian elktoe does provide the primary 
constituent elements, including items 1, 3, and 6 (see ``Primary 
Constituent Elements'' section below); however, one or more of the 
constituent elements, though currently present, may be limited or of 
marginal quality and may require enhancement for full recovery of the 
species.
    Issue 7: We received several comments requesting that additional 
streams and/or stream reaches be included in the critical habitat 
designation for the Appalachian elktoe. Specifically, we received 
requests to include in the critical habitat designation the main stem 
of the Nolichucky River in Washington and Greene Counties, TN, and the 
main stem and tributaries of the French Broad River, Swannanoa River, 
Tulula Creek, and the remainder of the Pigeon River in North Carolina. 
Four of these respondents stated that the designation of critical 
habitat should connect populations.
    Response: Connecting the surviving populations of the Appalachian 
elktoe is not feasible because all of the surviving populations are 
separated from one another by major impoundments. All of the additional 
areas that we have been requested to include in the critical habitat 
designation for the Appalachian elktoe are, based on the most recent 
survey data, currently unoccupied by the species and do not appear to 
provide suitable habitat for the elktoe. In accordance with the 
definition of critical habitat (see ``Critical Habitat'' section 
below), we can only designate unoccupied habitat of the species if, 
based on the best available information, it is determined that such 
areas are essential to the conservation of the species.
    The recovery plan for the Appalachian elktoe (Service 1996) states 
that the species will be considered for delisting (recovered) when a 
total of six distinct, viable populations of the species exist within 
the species' historical range (with at least one each in the Little 
Tennessee, French Broad, and Nolichucky River systems) that meet the 
criteria outlined in the plan. There are currently six known surviving 
populations of the Appalachian elktoe--the Nolichucky River system

[[Page 61023]]

population, Little River population, West Fork Pigeon River/Pigeon 
River population, Tuckasegee River population, Little Tennessee River 
population, and the Cheoah River population. The areas that we are 
designating as critical habitat for the Appalachian elktoe are 
distributed in different portions of the species' known historical 
range (three populations in the Little Tennessee River system, two in 
the French Broad River system, and one in the Nolichucky River system) 
and contain the habitat elements essential to the life cycle needs of 
the species as they are currently known. We consider the six areas that 
we are designating as critical habitat as the most likely sites for 
focusing conservation efforts for maintaining and recovering the 
Appalachian elktoe in accordance with the goals outlined in our 
recovery plan for the species and based on the best scientific 
information currently available to us concerning the species' known 
historical range and habitat requirements.
    Other than the stream reaches that we are designating as critical 
habitat, we are not aware of any other streams or stream reaches that 
provide suitable habitat for the Appalachian elktoe. 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 historical range. Should additional information become available 
that indicates other areas within the Appalachian elktoe's historical 
range provide suitable habitat and are essential to the conservation of 
the species, we may revise the critical habitat designation 
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 8. Several of the comments we received expressed concern 
about the potential effect the proposed designation of critical habitat 
could have on the mining industry in Yancey and Mitchell Counties, NC.
    Response: For the reasons described below, we do not believe that 
our designation of critical habitat for the Appalachian elktoe will 
result in any additional effects on mining activities beyond what 
already is required. Designated critical habitat receives regulatory 
protection only under section 7(a)(2) of the Act, which requires that 
Federal agencies shall, in consultation with the Service, insure that 
any action they authorize, fund, or carry out is not likely to 
jeopardize the continued existence of any species listed as endangered 
or threatened or result in the destruction or adverse modification of 
critical habitat. Aside from the protection that may be provided under 
section 7, the Act does not provide other forms of protection to areas 
designated as critical habitat. Thus, the section 7 requirement does 
not apply to mining operations for quartz, feldspar, mica, and other 
minerals carried out on private or other non-Federal land unless a 
Federal action is involved.
    Currently, there are no coal mining operations carried out in 
Yancey and Mitchell Counties, NC. If subsurface coal mining was 
proposed, the Office of Surface Mining (OSM) would consult with us 
under section 7. If surface mining of coal was proposed, the OSM would 
be guided by a section 7 biological opinion (BO) we issued to them in 
1996 for a consultation addressing surface coal mining and reclamation 
operations under State and Federal regulatory programs adopted pursuant 
to the Surface Mining Control and Reclamation Act of 1977, as amended, 
and its implementing regulations. In situations where the potential 
effects of a proposed new action are consistent with the evaluation and 
requirements of the prior consultation and BO, no additional 
consultation by OSM is needed.
    We are not aware of any past or current applications by any of the 
mining companies in Yancey and Mitchell Counties to conduct mining 
operations in waters or wetlands that may be subject to permits issued 
by the U.S. Army Corps of Engineers (COE) pursuant to section 404 of 
the Clean Water Act. If mining in waters or wetlands were proposed, the 
COE would be required to consult with us if an action by them triggered 
the section 7(a)(2) requirement of the Act.
    Direct discharge into creeks and rivers associated with the 
processing of minerals requires a National Pollution Discharge 
Elimination System (NPDES) permit, pursuant to section 402 of the Clean 
Water Act. Although NPDES permits are issued by the State of North 
Carolina, the EPA has oversight authority of the State's permitting 
program. Under the provisions of an interagency Memorandum of Agreement 
(MOA) adopted by the Service, the EPA, and the National Marine 
Fisheries Service in 2001, the EPA agreed to consult with us on their 
decision to delegate to the States the authority to issue Clean Water 
Act permits. Once a State has been delegated this authority, the 
State's issuance of such permits is not considered to be a Federal 
action subject to section 7 consultation. The EPA has approved the 
State of North Carolina NPDES permit program, and consequently has not 
found it necessary to consult under section 7 regarding NPDES permits 
issued by the State of North Carolina for mining discharges. The MOA 
also provides that if the Service or EPA have concerns that an NPDES 
permit is likely to have a more than minor detrimental effect on a 
Federally listed species or critical habitat, a series of steps will be 
followed to resolve the situation with the State.
    Furthermore, regardless of whether critical habitat has been 
designated, Federal agencies are required by section 7 of the Act to 
evaluate the direct and indirect effects of their actions and ensure 
that their actions are not likely to ``jeopardize the continued 
existence'' of a listed species. Because the Appalachian elktoe is 
already listed as an endangered species, a Federal agency already is 
required to consult with us if it determines that a proposed activity 
within its regulatory authority is likely to adversely affect the 
Appalachian elktoe, and to insure that the activity will not jeopardize 
the continued existence of the species. Under the regulations for 
section 7 consultations (50 CFR 402.02), ``jeopardize the continued 
existence'' is defined as any activity that would reasonably be 
expected, directly or indirectly, to appreciably reduce the likelihood 
of survival and recovery of a listed species in the wild. ``Destruction 
or adverse modification of critical habitat'' is defined as a direct or 
indirect alteration that appreciably diminishes the value of critical 
habitat for the survival and recovery of a listed species. Common to 
the definitions of ``jeopardy'' and ``destruction or adverse 
modification of critical habitat'' is the likelihood that both the 
``survival and recovery'' of the species are appreciably reduced by the 
proposed action. Because of this common threshold, the restricted range 
of the Appalachian elktoe, and the fact that all of the areas that we 
are designating as critical habitat support populations of the species, 
any action that is likely to destroy or adversely modify critical 
habitat would also likely result in jeopardy to this species and, 
therefore, would already be prohibited by the Act through the jeopardy 
standard regardless of whether the area is designated as critical 
habitat.
    In summary, for the reasons explained above, we do not believe that 
our

[[Page 61024]]

designation of critical habitat for the Appalachian elktoe will have 
any regulatory effect on mining activities that have no Federal 
involvement, and we do not believe the designation of critical habitat 
will have any additional regulatory effect on mining activities that 
require Federal permits beyond what already is required as a result of 
the listing of the species.
    Issue 9. Three respondents stated that the designation of critical 
habitat ``would, and will put a stop to all agriculture in the area; 
this could include the family garden.'' The same respondents also 
stated that the designation of critical habitat would adversely affect 
apple growers and Christmas tree farmers.
    Response: As stated above, the regulatory requirements associated 
with critical habitat do not apply to any agricultural activities, 
including apple orchards, Christmas tree farms, or other tree farming, 
row crop farming, livestock farming, or any other activity carried out 
on private land that does not require and/or involve a Federal permit 
or Federal funding. Generally, the only Federal regulations associated 
with agricultural activities with the potential to trigger the section 
7 consultation requirements of the Act involve the use of pesticides 
and herbicides. The EPA consults with us on the registration of certain 
pesticides and herbicides that have been identified by the EPA to have 
the potential to harm listed species. In such cases, the potential 
effects to listed species and their habitat are addressed through 
warnings and restrictions placed on the label of the subject pesticides 
and herbicides (i.e., restrictions on application rates, application 
methods, frequency of application, disposal of containers, etc.). 
Further, as explained in our response to Issue 8, above, section 7 
consultations on the registration of pesticides or herbicides, or on 
any other Federal activity with the potential to adversely affect the 
Appalachian elktoe or any federally listed species, is required 
regardless of whether critical habitat has been designated. For these 
reasons, we do not believe our designation of critical habitat for the 
Appalachian elktoe will result in any additional effects on agriculture 
beyond existing requirements related to the listing of the species.
    Issue 10: Several respondents stated that the designation of 
critical habitat will infringe on private property rights, and one 
respondent stated that the designation will jeopardize the private 
property rights of a landowner even when that landowner is not in any 
way contributing to the endangerment of an endangered species.
    Response: As explained in the response to Issues 8 and 9, the only 
regulatory consequence of the designation of critical habitat is the 
requirement under section 7 of the Act for Federal agencies to insure, 
in consultation with us, that any action they authorize, fund, or carry 
out is not likely to result in the destruction or adverse modification 
of critical habitat. With regard to critical habitat, this requirement 
has no regulatory impact on a private landowner who takes action on his 
or her land that does not involve Federal funding or authorization. 
Because the Appalachian elktoe already is listed as endangered, Federal 
agencies already are required to consult with us on any of their 
actions that are likely to adversely affect the species and to insure 
that their actions do not jeopardize the species' continued existence, 
regardless of whether critical habitat has been designated. Therefore, 
we do not believe the designation of critical habitat for the 
Appalachian elktoe will result in any significant additional regulatory 
burden on landowners or affect the use of their property.
    Issue 11: Several respondents stated that they agreed with the 
Service's original determination, made when the species was listed, 
that the designation of critical habitat was not prudent for the 
Appalachian elktoe. One of these respondents expressed concern that the 
designation of critical habitat and the associated publication of maps 
of critical habitat could increase the threat of collecting of the 
Appalachian elktoe and that it would be far safer for the Appalachian 
elktoe if critical habitat were not designated for the species.
    Response: Section 4(a)(3)(A) of the Act requires that, to the 
maximum extent prudent and determinable, we designate critical habitat 
at the time a species is determined to be endangered or threatened. The 
regulations state that the designation of critical habitat is not 
prudent when one or both of the following situations exist: (1) The 
species is threatened by taking or other human activity and the 
identification of critical habitat can be expected to increase the 
degree of such threat to the species or (2) such designation of 
critical habitat would not be beneficial to the species (see ``Critical 
Habitat'' section below).
    When we listed the Appalachian elktoe as endangered on November 23, 
1994 (59 FR 60324), we concurrently determined that the designation of 
critical habitat was not prudent because such a designation would not 
be beneficial to the species. In addition, we expressed our concern 
that the rarity and uniqueness of the Appalachian elktoe could generate 
interest in the species and that the publicity associated with the 
designation of critical habitat, together with the publication of maps 
and descriptions of critical habitat, could increase the vulnerability 
of the species to collection, vandalism, or other disturbance. Although 
we did not base our ``not prudent'' determination on an increased 
threat to the Appalachian elktoe, we did consider the potential 
increased threat to the species from critical habitat designation in 
making our determination that the designation of critical habitat was 
not prudent for the Appalachian elktoe because it would not benefit the 
species.
    In the last few years, court decisions have overturned our 
determinations regarding a variety of species, concluding that the 
designation of critical habitat would not be prudent (e.g., Natural 
Resources Defense Council v. U.S. Department of the Interior, 113 F. 3d 
1121 [9th Cir. 1997]; Conservation Council for Hawaii v. Babbitt, 2 F. 
Supp. 2d 1280 [D. Hawaii 1998]).
    In Conservation Council of Hawaii v. Babbitt, 2 F. Supp. 2d 1280, 
1284 (D. Hawaii 1998), the United States District Court for the 
District of Hawaii ruled that the Service could not rely on the 
``increased threat'' rationale for a ``not prudent'' determination 
without evidence of a specific threat to the species at issue or a 
similarly situated species. In Natural Resources Defense Council v. 
U.S. Department of the Interior, 113 F. 3d 1121, 1125 (9th Cir. 1997), 
the United States Court of Appeals for the Ninth Circuit ruled that, in 
order to invoke the ``increased threat rationale'' the Service must 
balance the threat against the benefit to the species of designating 
critical habitat. The recent court decisions have stated that, in the 
absence of a finding that the designation of critical habitat would 
increase threats to a species, if there are any benefits to critical 
habitat designation (e.g., an educational or informational benefit that 
can assist in the conservation of the species), then a prudent finding 
is warranted and the existence of another type of protection, even if 
potentially greater, does not justify a not prudent finding.
    At this time we do not have documented evidence for the collection, 
trade, vandalism, or other unauthorized human disturbance specific to 
the Appalachian elktoe, or a similarly situated species. Consequently, 
we cannot make a ``not prudent'' determination for the designation of 
critical habitat for the Appalachian

[[Page 61025]]

elktoe on the basis of an expected increase in the degree of threat to 
the species from collecting, vandalism, or other take as a result of 
the designation of critical habitat. Because the designation of 
critical habitat may provide some conservation benefit to the 
Appalachian elktoe by providing additional information about its 
habitat requirements to individuals, local and State governments, and 
others interested in assisting in conservation efforts for the species, 
we cannot support a determination that the designation of critical 
habitat would not be beneficial to the species.
    Issue 12: One respondent requested information concerning the steps 
taken to determine the status of the Appalachian elktoe and ``who is 
using, has used, or has stated intent to use it (the species' status) 
for what stated purpose.''
    Response: In listing the Appalachian elktoe as an endangered 
species (59 FR 60324) and determining the areas we consider essential 
for the conservation of the species (the areas we are designating as 
critical habitat), we used the best scientific and commercial 
information available to us concerning the species' historical range, 
present range, life history and habitat requirements, and factors that 
have contributed to its decline and those that pose a threat to its 
continued existence. This information was obtained from a variety of 
sources, including surveys and studies conducted by State, Federal, 
university, and private biologists and researchers and a review of 
published and unpublished literature. A summary of this information and 
the sources used is provided in the recovery plan for the Appalachian 
elktoe (Service 1996) and in the ``Background'' sections of the final 
rule listing the Appalachian elktoe as an endangered species (59 FR 
60324), the proposed rule to designate critical habitat for the 
Appalachian elktoe (66 FR 9540), and in this final rule designating 
critical habitat for the Appalachian elktoe. The steps taken in 
compiling, analyzing, and disseminating this information, as well as 
the dates of the steps taken, are outlined in the ``Previous Federal 
Actions'' section of the final rule listing the Appalachian elktoe as 
endangered, the proposed rule to designate critical habitat for the 
Appalachian elktoe, and this final rule.
    We cannot speak for other agencies, organizations, or individuals, 
but our purpose and intent in listing the Appalachian elktoe as an 
endangered species and in designating critical habitat for the species 
is to fulfill our obligations and responsibilities under the Act and to 
assist other agencies, organizations, and individuals in fulfilling 
their obligations under the Act.
    In enacting the Act, Congress declared that species of fish, 
wildlife, and plants in the United States in danger of, or threatened 
with, extinction are of esthetic, ecological, educational, historical, 
recreational, and scientific value to the Nation and its people. The 
Service and the National Marine Fisheries Service are the two primary 
agencies responsible for administering the Act. Our purposes and 
responsibilities through the Act are to identify endangered and 
threatened species, protect these species, and provide a means to 
conserve their ecosystems.
    Issue 13: Several respondents questioned the economic benefits of 
the designation of critical habitat for the Appalachian elktoe 
mentioned by supporters of the proposed designation. Three of these 
respondents specifically mentioned a citation of the potential economic 
benefit of the designation to ``mussel harvest in the State of 
Tennessee.''
    Response: There is little disagreement in the published economic 
literature that real social welfare benefits can result from the 
conservation and recovery of endangered or 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. However, these 
benefits 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.
    With regard to the comments concerning ``mussel harvest,'' we have 
not identified, either in the proposed rule to designate critical 
habitat for the Appalachian elktoe or in the draft economic analysis of 
the proposed designation of critical habitat for the Appalachian elktoe 
(or any other document associated with the proposed designation), the 
potential benefit to the commercial harvest of freshwater mussels that 
may be derived from the protection of Appalachian elktoe habitat. While 
certain species of freshwater mussels are harvested in some 
southeastern States (including some areas in western Tennessee) for 
their shells for use in the cultured pearl industry (plugs are cut from 
the shells, formed into beads, and inserted into marine oysters to 
assist in the formation of pearls), the shell of the Appalachian elktoe 
is not thick enough to be of value to this industry. Furthermore, no 
mussel species and no areas where their collection is permitted (the 
nearest river reach where the harvesting of mussels for the cultured 
pearl industry is allowed is the Tennessee River in northern Alabama) 
occur in close enough proximity to the areas that support the 
Appalachian elktoe to receive benefit from water and habitat quality 
protection that may be attributable to measures implemented for the 
protection of the Appalachian elktoe and its habitat.
    Issue 14: One respondent questioned why a public hearing on the 
proposed designation of critical habitat was not held in the Nolichucky 
River watershed in Mitchell County or Yancey County, NC.
    Response: Our regulations require that we hold at least one public 
hearing, if a public hearing is requested. Because the majority of the 
comments we received were from organizations and individuals in 
Tennessee and because a portion of the Nolichucky River was the only 
area in Tennessee proposed for the designation of critical habitat for 
the Appalachian elktoe, we elected to hold one of the hearings in 
Erwin, TN. Erwin is within the Nolichucky River system and is located 
in Unicoi County, TN, immediately across the State line from Mitchell 
and Yancey Counties, NC. We elected to hold the second public hearing 
in Bryson City, Swain County, NC, as a central location to cover the 
portions of the Cheoah River (Graham County), Little Tennessee River 
(Swain and Macon Counties), Tuckasegee River (Swain and Jackson 
Counties), and West Fork Pigeon River and Pigeon River (Haywood County) 
being proposed for the designation of critical habitat. Also, following 
the public hearings, at the request of the County Manager, Yancey 
County, NC, we attended a meeting of the Yancey County Board of 
Commissioners where we gave a presentation about the proposed 
designation of critical habitat for the Appalachian elktoe to the 
commissioners and the public in attendance.
    Issue 15: We received several comments addressing the economic and 
demographic data for Mitchell County, NC, that were presented in the 
draft economic analysis.
    Response: In response to the information received, we have revised 
the data concerning the human population, population growth, and per 
capita income for Mitchell County, NC,

[[Page 61026]]

in the addendum to the economic analysis of critical habitat 
designation for the Appalachian elktoe.
    Issue 16: Several of the respondents stated that the draft economic 
analysis failed to adequately assess the potential economic benefits of 
the designation of critical habitat for the Appalachian elktoe.
    Response: In the addendum to the draft economic analysis, we have 
provided additional information concerning, and an analysis of, the 
potential economic benefits associated with measures implemented for 
the protection of water and habitat quality that may occur and be 
attributable to the effects of future section 7 consultations under the 
Act for the Appalachian elktoe and its designated critical habitat. 
However, it is not possible to fully describe and accurately quantify 
all the benefits of potential future section 7 consultations in the 
context of the economic analysis. And, as stated in the draft economic 
analysis, we believe the benefits are best expressed in biological 
terms that can be weighed against the potential costs of the 
rulemaking.

Critical Habitat

    Critical habitat is defined in section 3(5)(A) of the Act as (i) 
the specific areas within the geographical 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 data available, habitat areas that provide essential 
life cycle needs of the species (i.e., areas on which are found the 
primary constituent elements, as defined at 50 CFR 424.12(b)).
    Section 4 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. Essential areas should already have the features 
and habitat characteristics that are necessary to sustain the species. 
We will not speculate about what areas might be found to be essential 
if better information became available or what areas may become 
essential over time.
    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 data 
demonstrate that the conservation needs of the species cannot be met 
within currently occupied areas, we will not designate critical habitat 
in areas outside the geographical area presently occupied by the 
species.
    Our 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 us represent the best scientific and 
commercial data available. This policy requires our 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 us. Additional 
information may be obtained from articles in peer-reviewed journals, 
conservation plans developed by States and counties, scientific status 
surveys and studies, 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 that it 
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 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 Appalachian elktoe. This included 
information from the listing package for the species, the recovery 
plan, scientific publications, recent surveys and reports, and 
conversations with other Federal, State, and private biologists and 
researchers familiar with the species.
    The areas of critical habitat described below constitute our best 
assessment of the areas needed for the conservation of

[[Page 61027]]

the Appalachian elktoe in accordance with the goals outlined in our 
recovery plan for the species (Service 1996) and are based on the best 
scientific information currently available to us concerning the 
species' known present and historical range, habitat, biology, and 
threats. The recovery plan for the Appalachian elktoe 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 1996). Based on the most recent survey data for the 
Appalachian elktoe, there are currently six surviving populations of 
the species (see ``Background'' section above). The areas in the six 
units that we are designating as critical habitat for the species 
include habitat for each of these populations. All of the areas we are 
designating as critical habitat are within what we believe to be the 
geographical area occupied by the Appalachian elktoe, include all known 
surviving occurrences of the species, are essential for the 
conservation of the species, and provide for the species' essential 
life cycle needs. These designated areas are distributed throughout the 
Appalachian elktoe's range, with at least one occurring in each of the 
Little Tennessee, French Broad, and Nolichucky River systems. In 
addition, given the threats to the species' habitat discussed in the 
final listing rule (59 FR 60324) and the recovery plan for the species 
(Service 1996), and summarized in the ``Background'' section above, we 
believe these areas may need special management consideration or 
protection.
    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 Appalachian elktoe'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 critical habitat 
designation for the Appalachian elktoe 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 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 Appalachian 
elktoe, particularly the microhabitat requirements, based on the best 
available information concerning the habitat and life history of the 
Appalachian elktoe (see ``Background'' section above), the primary 
constituent elements essential for the conservation of the Appalachian 
elktoe are:
    1. Permanent, flowing, cool, clean water;
    2. Geomorphically stable stream channels and banks;
    3. Pool, riffle, and run sequences within the channel;
    4. Stable sand, gravel, cobble, and boulder or bedrock substrates 
with no more than low amounts of fine sediment;
    5. Moderate to high stream gradient;
    6. Periodic natural flooding; and
    7. Fish hosts, with adequate living, foraging, and spawning areas 
for them.

Critical Habitat Designation

    The areas designated as critical habitat for the Appalachian elktoe 
total approximately 231.1 km (144.3 mi) of rivers. Table 1 summarizes 
the location and extent of designated critical habitat. All of the 
designated areas require special management considerations to ensure 
their contribution to the conservation of the Appalachian elktoe.

       Table 1.--Approximate Lengths of Streams Designated as Critical Habitat for the Appalachian Elktoe
----------------------------------------------------------------------------------------------------------------
                                                                                          Approximate length in
                      State                             County         Unit and stream      kilometers (miles)
----------------------------------------------------------------------------------------------------------------
North Carolina..................................  Macon and Swain...  Unit 1-Little                    38.5 (24)
                                                                       Tennessee River.
                                                  Jackson and Swain.  Unit 2-Tuckasegee                41.6 (26)
                                                                       River.
                                                  Graham............  Unit 3-Cheoah                   14.6 (9.1)
                                                                       River.
                                                  Transylvania......  Unit 4-Little                    7.5 (4.7)
                                                                       River.
                                                  Haywood...........  Unit 5-West Fork               17.8 (11.1)
                                                                       Pigeon River and
                                                                       Pigeon River.
                                                  Yancey............  Unit 6-South Toe               22.6 (14.1)
                                                                       River.
                                                  Yancey............  Unit 6-Cane River              26.4 (16.5)
                                                  Yancey and          Unit 6-North Toe                 5.9 (3.7)
                                                   Mitchell.           River.
                                                  Yancey and          Unit 6-Toe River.              34.6 (21.6)
                                                   Mitchell.

[[Page 61028]]

 
North Carolina and Tennessee....................  Yancey and          Unit 6-Nolichucky              21.6 (13.5)
                                                   Mitchell (NC) and   River.
                                                   Unicoi (TN).
----------------------------------------------------------------------------------------------------------------

    The lateral extent of designated critical habitat within units 1 to 
6 is the ordinary high water line on each bank. As defined in 33 CFR 
329.11, the ordinary high water line on non-tidal rivers is the line on 
the shore established by the fluctuations of water and indicated by 
physical characteristics such as a clear, natural line impressed on the 
bank; shelving; changes in the character of soil; destruction of 
terrestrial vegetation; the presence of litter and debris; or other 
appropriate means that consider the characteristics of the surrounding 
areas.
    We are designating the following areas as critical habitat for the 
Appalachian elktoe:

Unit 1. Macon County and Swain County, NC

    Unit 1 encompasses approximately 38.5 km (24 mi) of the main stem 
of the Little Tennessee River, from the Lake Emory Dam at Franklin, 
Macon County, NC, downstream to the backwaters of Fontana Reservoir in 
Swain County, NC. This unit is part of the currently occupied range of 
the Appalachian elktoe 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 supports one of the only 
three known surviving populations of the Appalachian elktoe in the 
Little Tennessee River system. Based on our consideration of the best 
available information, including the recovery goals and criteria 
outlined in the recovery plan for the Appalachian elktoe (Service 
1996), protection of this unit is essential to the conservation of the 
species.

Unit 2. Jackson County and Swain County, NC

    Unit 2 encompasses approximately 41.6 km (26 mi) of the main stem 
of the Tuckasegee River (Little Tennessee River system), from the N.C. 
State Route 1002 Bridge in Cullowhee, Jackson County, NC, downstream to 
the N.C. Highway 19 Bridge, north of Bryson City, Swain County, NC. 
This unit is part of the currently occupied range of the Appalachian 
elktoe 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 supports one of the only three known 
surviving populations of the Appalachian elktoe in the Little Tennessee 
River system. Based on our consideration of the best available 
information, including the recovery goals and criteria outlined in the 
recovery plan for the Appalachian elktoe (Service 1996), protection of 
this unit is essential to the conservation of the species.

Unit 3. Graham County, NC

    Unit 3 encompasses approximately 14.6 km (9.1 mi) of the main stem 
of the Cheoah River (Little Tennessee River system), from the 
Santeetlah Dam, downstream to its confluence with the Little Tennessee 
River. This unit is part of the currently occupied range of the 
Appalachian elktoe 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 supports one of the only 
three known surviving populations of the Appalachian elktoe in the 
Little Tennessee River system. Based on our consideration of the best 
available information, including the recovery goals and criteria 
outlined in the recovery plan for the Appalachian elktoe (Service 
1996), protection of this unit is essential to the conservation of the 
species.

Unit 4. Transylvania County, NC

    Unit 4 encompasses approximately 7.5 km (4.7 mi) of the main stem 
of the Little River (French Broad River system), from the Cascade Lake 
Power Plant, downstream to its confluence with the French Broad River. 
This unit is part of the currently occupied range of the Appalachian 
elktoe 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 supports one of the only two known 
surviving populations of the Appalachian elktoe in the French Broad 
River system. Based on our consideration of the best available 
information, including the recovery goals and criteria outlined in the 
recovery plan for the Appalachian elktoe (Service 1996), protection of 
this unit is essential to the conservation of the species.

Unit 5. Haywood County, NC

    Unit 5 encompasses approximately 17.8 km (11.1 mi) of the main stem 
of the West Fork Pigeon River (French Broad River system), from the 
confluence of the Little East Fork Pigeon River, downstream to the 
confluence of the East Fork Pigeon River, and the main stem of the 
Pigeon River, from the confluence of the West Fork Pigeon River and the 
East Fork Pigeon River, downstream to the N.C. Highway 215 Bridge 
crossing, south of Canton, NC. This unit is part of the currently 
occupied range of the Appalachian elktoe 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 
supports one of the only two known surviving populations of the 
Appalachian elktoe in the French Broad River system. Based on our 
consideration of the best available information, including the recovery 
goals and criteria outlined in the recovery plan for the Appalachian 
elktoe (Service 1996), protection of this unit is essential to the 
conservation of the species.

Unit 6. Yancey County and Mitchell County, NC, and Unicoi County, TN

    Unit 6 encompasses approximately 5.9 km (3.7 mi) of the main stem 
of the North Toe River, Yancey and Mitchell Counties, NC, from the 
confluence of Big Crabtree Creek, downstream to the confluence of the 
South Toe River; approximately 22.6 km (14.1 mi) of the main stem of 
the South Toe River, Yancey County, NC, from the N.C. State Route 1152 
Bridge, downstream to its confluence with the North Toe River; 
approximately 34.6 km (21.6 mi) of the main stem of the Toe River, 
Yancey and Mitchell Counties, NC, from the confluence of the North Toe 
River and the South Toe River, downstream to the confluence of the Cane 
River; approximately 26.4 km (16.5 mi) of the

[[Page 61029]]

main stem of the Cane River, Yancey County, NC, from the N.C. State 
Route 1381 Bridge, downstream to its confluence with the Toe River; and 
approximately 21.6 km (13.5 mi) of the main stem of the Nolichucky 
River from the confluence of the Toe River and the Cane River in Yancey 
County and Mitchell County, NC, downstream to the U.S. Highway 23/19W 
Bridge southwest of Erwin, Unicoi County, TN. This unit is part of the 
currently occupied range of the Appalachian elktoe 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 supports the only two known surviving populations of the 
Appalachian elktoe in the Nolichucky River system. Based on our 
consideration of the best available information, including the recovery 
goals and criteria outlined in the recovery plan for the Appalachian 
elktoe (Service 1996), protection of this unit is essential to the 
conservation of the species.

Land Ownership

    Of the areas that we are designating as critical habitat for the 
Appalachian elktoe, approximately 67 percent--14.4 km (9.0 mi)--of the 
Nolichucky River is bordered by the Pisgah National Forest in North 
Carolina and the Cherokee National Forest in Tennessee; 88 percent--
12.8 km (8.0 mi)--of the Cheoah River is bordered by the Nantahala 
National Forest; and a small percentage of the Tuckasegee River is 
bordered by land belonging to The Eastern Band of Cherokee Indians. The 
remaining areas that we are designating as critical habitat for the 
Appalachian elktoe, with the exception of State road and highway 
rights-of-way, are bordered by land 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 consultations and section 10 
permits.
    Critical habitat receives regulatory protection only under section 
7 of the Act through the prohibition against the 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 the designated 
critical habitat of the Appalachian elktoe 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 the surviving 
populations of the Appalachian elktoe, 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 Appalachian elktoe currently support populations of the 
species, actions that are likely to destroy or adversely modify the 
Appalachian elktoe's critical habitat are also likely to jeopardize 
this 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 Appalachian 
elktoe, 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 or activity they are proposing 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 
that is consistent with the intended purpose of the action, that is 
consistent with the scope of the Federal agency's legal authority and 
jurisdiction, that is economically and 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 Appalachian elktoe is 
appreciably diminished. This may include any activity, regardless of 
the location of the activity in relation to designated critical

[[Page 61030]]

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 and/or stream-bank 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 
Appalachian elktoe, 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 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 prepared to estimate the potential 
economic effect of the designation. The draft analysis was made 
available for public review on May 16, 2002 (67 FR 34893). We accepted 
comments on the draft analysis until July 1, 2002. 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.
    Our draft economic analysis and final addendum evaluated the 
potential future effects associated with the listing of the Appalachian 
elktoe 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 Appalachian elktoe 
are likely to address road and bridge construction, Federal forestry 
activities, residential development requiring a Federal permit, and 
hydropower relicensings. The draft analysis estimated that, over a 10-
year period, approximately four formal consultations and 71 to 89 
informal consultations will occur on projects with the potential to 
affect the Appalachian elktoe and its proposed critical habitat. In 
addition, the draft analysis estimated that we will provide technical 
assistance to various parties on 99 to 107 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 
Appalachian elktoe and its designated critical habitat could 
potentially range from $1.943 to $5.121 million over the next 10 years. 
However, the draft economic analysis indicates that the listing of the 
Appalachian elktoe and the resultant Federal responsibility to avoid 
projects that would jeopardize the continued existence of the species 
are likely to trigger these impacts regardless of whether critical 
habitat is designated.
    A detailed discussion of our analysis is contained in the Draft 
Economic Analysis of Proposed Critical Habitat Designation for the 
Appalachian Elktoe (April 2002) and the Final Addendum to the Economic 
Analysis of Critical Habitat Designation for the Appalachian Elktoe 
(August 2002). Both documents are included in the supporting 
documentation for this rulemaking and are available for inspection at 
the Asheville Field Office (see ADDRESSES).

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 those comments 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 that the rule will not have a significant economic 
impact on a substantial number of small entities. The 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. The SBREFA also amended the RFA to require a 
certification statement. We are hereby certifying that this rule 
designating critical habitat for the

[[Page 61031]]

Appalachian elktoe 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 
nonprofit organizations; small governmental jurisdictions, including 
school boards and city and town governments that serve fewer than 
50,000 residents; and 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. The designation of critical habitat has the potential to 
affect only activities conducted, funded, or permitted by Federal 
agencies. Some kinds of activities are not likely to have any Federal 
involvement; therefore, they will not be affected by the critical 
habitat designation. Activities with Federal involvement that may 
require consultation regarding the Appalachian elktoe 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 future section 7 consultations resulting 
from the listing of the Appalachian elktoe and the proposed designation 
of critical habitat could potentially impose total economic costs for 
consultations and modifications to projects ranging between 
approximately $1.943 and $5.121 million over a 10-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 the SBREFA does not explicitly define 
``substantial number,'' the Small Business Administration, as well as 
other Federal agencies, has 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 Appalachian elktoe, 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; thus, 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 4.8 
percent of the small businesses 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 
Appalachian elktoe 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 Appalachian elktoe. The draft Economic Analysis and the 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 Asheville 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 Appalachian elktoe 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))

    OMB's Office of Information and Regulatory Affairs has determined 
that this rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This final designation of 
critical habitat: (1) Does not have an annual effect on the economy of 
$100 million; (2) will not cause a major increase in costs or prices 
for consumers; individual industries; Federal, State, or local 
governmental agencies; or geographic regions; and (3) 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 Appalachian elktoe are 
anticipated to have a total estimated economic effect ranging between 
approximately $1.943 and $5.121 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 Appalachian 
elktoe, we 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.

[[Page 61032]]

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211, which 
applies to ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use.'' In order to ensure that Federal 
agencies ``appropriately weigh and consider the effects of the Federal 
Government's regulations on the supply, distribution, and use of 
energy,'' the President has directed agencies to prepare and submit to 
the OMB's Office of Information and Regulatory Affairs a ``Statement of 
Energy Effects'' for their ``significant energy actions.'' The OMB has 
provided guidance for implementing this executive order that outlines 
nine outcomes that may constitute ``a significant adverse effect'' when 
compared without the regulatory action under consideration:
    Reductions in crude oil supply in excess of 10,000 barrels per day;
    Reductions in fuel production in excess of 4,000 barrels per day;
    Reductions in coal production in excess of 5 million tons per year;
    Reductions in natural gas production in excess of 25 million mcf 
per day;
    Reductions in electricity production in excess of 1 billion 
kilowatts per year or in excess of 500 megawatts of installed capacity;
    Increases in energy use required by the regulatory action that 
exceed the thresholds above;
    Increases in the cost of energy production in excess of one 
percent;
    Increases in the cost of energy distribution in excess of one 
percent; or
    Other similarly adverse outcomes.
    There are a total of eight hydropower projects located within, 
upstream, and downstream of critical habitat Units 1, 2, and 3. 
Accordingly, two of the criteria for assessing potential significant 
effect to energy supply, distribution, or use are relevant to this 
analysis and were assessed in the final addendum to the economic 
analysis--(1) reductions in electricity production in excess of 1 
billion kilowatts per year or in excess of 500 megawatts of installed 
capacity and--(2) increases in the cost of energy production in excess 
of one percent.
    Nantahala Power and Light, a subsidiary of Duke Power, owns one 
hydropower project--the Franklin Dam, on the main stem of the Little 
Tennessee River, immediately upstream of Unit 1--and four projects 
within the Tuckasegee River system--the Dillsboro Dam that occurs 
within Unit 2, the Bryson Dam that occurs downstream on Unit 2, and the 
West Fork Project and East Fork Project (the East Fork and West Fork 
hydropower projects include multiple hydropower dams) that occur 
upstream of Unit 2. Tapoco-APGI owns two dams--the Santeetlah Dam on 
the Cheoah River, immediately upstream of Unit 3, and the Cheoah Dam on 
the Little Tennessee River, located downstream of Unit 3. In addition, 
the TVA operates the Fontana Dam on the Little Tennessee River 
downstream of Unit 1.
    The combined installed capacity for all eight hydropower projects 
is 445.48 MW (445,480 KW). Therefore, even when viewed in the context 
of a worst-case scenario, in which implementation of section 7 of the 
Act results in significant operational changes of all eight hydropower 
projects, the total capacity is 445.48 MW (445,480 KW) of 
hydroelectricity, so the impact on these hydropower facilities could 
not exceed the 500 MW (500,000 KW) threshold.
    In order to determine whether implementation of section 7 of the 
Act will result in a significant increase in the cost of energy 
production, this analysis considered the maximum possible increase in 
energy production costs under the same scenario above where the 
implementation of section 7 causes significant operational changes to 
all eight hydropower facilities. Natural gas represents the next 
cheapest fuel source for generating electricity (hydropower is the 
cheapest), but also accounts for the smallest portion of electricity 
production, at roughly two percent. Nuclear-generated electricity 
accounts for approximately 33 percent of overall generation and 
represents the most expensive fuel source. Electricity generated by 
coal-fired facilities makes up the largest portion of electricity 
generated in North Carolina and Tennessee, accounting for approximately 
66 percent of overall production. Accordingly, professional judgment 
suggests that coal would be the likely fuel substitute to make up for 
any decrease in hydroelectric energy production. The final addendum to 
the economic analysis determined that if even all current hydroelectric 
energy production from the eight hydroelectric projects were to cease, 
coal-fired facilities would experience approximately $72,244,000 in 
additional costs to meet this energy demand, which represents 
approximately 0.70 percent increase in production costs.
    Therefore, even in the worst case scenario, implementation of 
section 7 for the Appalachian elktoe will not result in a ``reduction 
in electricity production in excess of 500 megawatts of installed 
capacity'' or an ``increase in the cost of energy production in excess 
of one percent.'' Consequently, this rule will not have a ``significant 
adverse effect'' on the supply, distribution, or use of energy, 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 using 
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 
Tennessee in six units of critical habitat for the Appalachian elktoe. 
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 only regulatory consequence of the 
designation of critical habitat is that Federal agencies must consult 
with us before undertaking actions, issuing permits, or providing 
funding for activities that might destroy or adversely modify critical 
habitat. This regulation has no regulatory impact on a private 
landowner who takes action on his or her land that does not involve 
Federal funding or authorization. Because the Appalachian elktoe is 
already listed as endangered, Federal agencies are already required to 
consult with us on any of their actions that are likely to adversely 
affect the species and to ensure that their actions do not jeopardize 
the species' continued existence regardless of whether critical habitat 
has been designated. Therefore,

[[Page 61033]]

we do not believe the designation of critical habitat for the 
Appalachian elktoe will result in any significant additional regulatory 
burden on landowners or affect the use of property, whether private or 
Federal.
    Furthermore, only those activities with Federal involvement that 
are likely to adversely affect a listed species or result in the 
destruction or adverse modification of critical habitat require 
consultation under section 7 of the Act. Landowners proposing or 
carrying out activities, even with Federal involvement, are not 
affected by the consultation requirements under section 7 of the Act, 
or any other provisions of the Act, if their activities are not in any 
way adversely affecting a listed species or designated critical 
habitat.
    This rule will not increase or decrease the current restrictions 
concerning taking of the Appalachian elktoe on private property 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 the opportunity 
to use his or her property in ways consistent with the survival of the 
Appalachian elktoe.

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 Tennessee. We will continue to 
coordinate any future changes in the designation of critical habitat 
for the Appalachian elktoe with the appropriate State agencies. The 
designation of critical habitat for the Appalachian elktoe 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 does not alter where and what 
federally sponsored activities may occur, it may assist these local 
governments in long-range planning rather than having to wait 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 
of 1973, 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 Appalachian elktoe. 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 so that the risk of litigation 
is minimized.

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 recordkeeping 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 of 1973, 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. The Cherokee Indian 
Reservation occurs in the watershed of the reach of the Tuckasegee 
River (Unit 2) that we are designating as critical habitat for the 
Appalachian elktoe, and The Eastern Band of Cherokee Indians owns a 
small parcel of land bordering the subject reach. We have coordinated 
the designation of critical habitat for the Appalachian elktoe with 
representatives of The Eastern Band of Cherokee Indians and have 
assessed potential effects of the designation to tribal resources.
    We have consulted with the Bureau of Indian Affairs in the recent 
past regarding a timber management plan for the Cherokee Indian 
Reservation. The project plans included the maintenance of forested 
buffers and measures to control sediment and erosion in order to 
protect aquatic resources, including the Appalachian elktoe and its 
habitat, and we concurred that the plan was not likely to adversely 
affect the Appalachian elktoe. Because potential effects to the 
species' habitat were addressed, we do not believe reinitiation of 
consultation due to the designation of critical habitat is required.
    In addition, it is expected that the EPA may initiate a section 7 
consultation in the future regarding the issuance of NPDES permits for 
The Eastern Band of Cherokee Indians (the EPA, rather than the State of 
North Carolina, issues NPDES permits for discharges on the Cherokee 
Indian Reservation). However, we do not anticipate an adverse impact to 
the elktoe or its designated critical habitat because The Eastern Band 
of Cherokee Indians' wastewater treatment facility utilizes UV 
treatment (rather than chlorine) and the discharge from their 
wastewater treatment facility is located on a tributary stream that is 
separated (by an impoundment) from the reach of the Tuckasegee River 
that is designated as critical habitat.
    Furthermore, as discussed elsewhere in this rule and in the 
economic analysis of the potential effects of the designation of 
critical habitat for the Appalachian elktoe, we do not believe the 
designation of critical habitat will have any additional regulatory 
effect on activities that require Federal permits or any other Federal 
actions or permitted activities beyond what is already required through 
the listing of the species. In view of this, The Eastern Band of 
Cherokee Indians stated, by

[[Page 61034]]

letter of July 2, 2002, that they did not object to the designation of 
critical habitat for the Appalachian elktoe.

References Cited

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

Author

    The primary author of this document is John A. Fridell, Asheville 
Field Office (see ADDRESSES ).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping 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 ``Elktoe, 
Appalachian'' 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
                                                                  Historical range       endangered or       Status    When listed    habitat     rules
             Common name                  Scientific name                                  threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
                Clams
 
                                                                      * * * * * * *
Elktoe, Appalachian.................  Alasmidonta raveneliana  U.S.A. (NC, TN).......  Entire                       E          563     17.95(f)   NA.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    3. Amend Sec.  17.95(f) by adding critical habitat for the 
Appalachian elktoe (Alasmidonta raveneliana) 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.
* * * * *
    Appalachian elktoe (Alasmidonta raveneliana)
    (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.
    (i) Index map follows:

[[Page 61035]]

[GRAPHIC] [TIFF OMITTED] TR27SE02.007

    (2) Unit 1.
    (i) Macon County and Swain County, NC--the main stem of the Little 
Tennessee River (Tennessee River system), from the Lake Emory Dam at 
Franklin, Macon County, NC, downstream to the backwaters of Fontana 
Reservoir in Swain County, NC.
    (3) Unit 2.
    (i) Jackson County and Swain County, NC--the main stem of the 
Tuckasegee River (Little Tennessee River system), from the N.C. State 
Route 1002 Bridge in Cullowhee, Jackson County, NC, downstream to the 
N.C. Highway 19 Bridge, north of Bryson City, Swain County, NC.
    (ii) Map of Unit 1 and Unit 2 follows:

[[Page 61036]]

[GRAPHIC] [TIFF OMITTED] TR27SE02.008

    (4) Unit 3.
    (i) Graham County, NC--the main stem of the Cheoah River (Little 
Tennessee River system), from the Santeetlah Dam, downstream to its 
confluence with the Little Tennessee River.
    (ii) Map of Unit 3 follows:

[[Page 61037]]

[GRAPHIC] [TIFF OMITTED] TR27SE02.009

    (5) Unit 4.
    (i) Transylvania County, NC--the main stem of the Little River 
(French Broad River system), from the Cascade Lake Power Plant, 
downstream to its confluence with the French Broad River.
    (ii) Map of Unit 4 follows:

[[Page 61038]]

[GRAPHIC] [TIFF OMITTED] TR27SE02.010

    (6) Unit 5.
    (i) Haywood County, NC--the main stem of the West Fork Pigeon River 
(French Broad River system), from the confluence of the Little East 
Fork Pigeon River, downstream to the confluence of the East Fork Pigeon 
River, and the main stem of the Pigeon River, from the confluence of 
the West Fork Pigeon River and the East Fork Pigeon River, downstream 
to the N.C. Highway 215 Bridge crossing, south of Canton, NC.
    (ii) Map of Unit 5 follows:

[[Page 61039]]

[GRAPHIC] [TIFF OMITTED] TR27SE02.011

    (7) Unit 6.
    (i) Yancey County and Mitchell County, NC, and Unicoi County, TN--
the main stem of the North Toe River, Yancey and Mitchell Counties, NC, 
from the confluence of Big Crabtree Creek, downstream to the confluence 
of the South Toe River; the main stem of the South Toe River, Yancey 
County, NC, from the N.C. State Route 1152 Bridge, downstream to its 
confluence with the North Toe River; the main stem of the Toe River, 
Yancey and Mitchell Counties, NC, from the confluence of the North Toe 
River and the South Toe River, downstream to the confluence of the Cane 
River; the main stem of the Cane River, Yancey County, NC, from the 
N.C. State Route 1381 Bridge, downstream to its confluence with the Toe 
River; and the main stem of the Nolichucky River from the confluence of 
the Toe River and the Cane River in Yancey County and Mitchell County, 
NC, downstream to the U.S. Highway 23/19W Bridge southwest of Erwin, 
Unicoi County, TN.
    (ii) Map of Unit 6 follows:

[[Page 61040]]

[GRAPHIC] [TIFF OMITTED] TR27SE02.012

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

    Dated: September 18, 2002.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 02-24362 Filed 9-26-02; 8:45 am]
BILLING CODE 4310-55-P