[Federal Register Volume 68, Number 106 (Tuesday, June 3, 2003)]
[Proposed Rules]
[Pages 33234-33282]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-12944]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Proposed Designation of 
Critical Habitat for Five Endangered Mussels in the Tennessee and 
Cumberland River Basins; Proposed Rule

  Federal Register / Vol. 68, No. 106 / Tuesday, June 3, 2003 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI76


Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for Five Endangered Mussels in the 
Tennessee and Cumberland River Basins

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose 
designation of critical habitat for five mussels in the Tennessee and 
Cumberland River Basins: the Cumberland elktoe (Alasmidonta 
atropurpurea), oyster mussel (Epioblasma capsaeformis), Cumberlandian 
combshell (Epioblasma brevidens), purple bean (Villosa perpurpurea), 
and rough rabbitsfoot (Quadrula cylindrica strigillata), all of which 
are species listed as endangered under the Endangered Species Act of 
1973, as amended (Act or ESA). We propose to designate 13 geographic 
areas (units) that include rivers and streams in the Tennessee and/or 
Cumberland River Basins as critical habitat for these five mussel 
species. These 13 units encompass approximately 892 river kilometers 
(rkm) (544 river miles (rmi)). Proposed critical habitat includes 
portions of Bear Creek (Mississippi, Alabama), the Duck River 
(Tennessee), Obed River (Tennessee), Powell River (Tennessee, 
Virginia), Clinch River and its tributaries (Copper Creek and Indian 
Creek) (Tennessee, Virginia), Nolichucky River (Tennessee), and Beech 
Creek (Tennessee) in the Tennessee River System and portions of Rock 
Creek (Kentucky), the Big South Fork and its tributaries (Bone Camp 
Creek, White Oak Creek, North White Oak Creek, New River, Crooked 
Creek, Clear Fork, and North Prong Clear Fork) (Kentucky, Tennessee), 
Buck Creek (Kentucky), Marsh Creek (Kentucky), Sinking Creek 
(Kentucky), and Laurel Fork (Kentucky) in the Cumberland River System.
    Critical habitat identifies specific areas that are essential to 
the conservation of a listed species, and that may require special 
management considerations or protection. If this proposal is made 
final, section 7(a)(2) of the Act requires that Federal agencies ensure 
that actions they fund, authorize, or carry out are not likely to 
jeopardize the continued existence of an endangered or threatened 
species or result in the destruction or adverse modification of 
critical habitat. State or private actions, with no Federal 
involvement, are not affected.
    Section 4 of the Act requires us to consider the economic and other 
relevant impacts of specifying any area as critical habitat. We will 
conduct an analysis of the economic impacts of designating these areas, 
in a manner that is consistent with the ruling of the 10th Circuit 
Court of Appeals in N.M. Cattle Growers Ass'n v. USFWS. We hereby 
solicit data and comments from the public on all aspects of this 
proposal, including data on the economic and other impacts of the 
designation.

DATES: We will consider comments received by September 2, 2003. We must 
receive requests for public hearings, in writing, at the address shown 
in the ADDRESSES section by July 18, 2003.

ADDRESSES: If you wish to submit comments and information:
    1. You may submit written comments and information to the Field 
Supervisor, U.S. Fish and Wildlife Service, 446 Neal Street, 
Cookeville, TN 38501.
    2. You may hand-deliver written comments and information to our 
Tennessee Field Office, at the above address, or fax your comments to 
(931) 528-7075.
    3. You may send comments by electronic mail (e-mail) to [email protected]. For directions on how to submit electronic filing of 
comments, see the ``Public Comments Solicited'' section.
    All comments and materials received, as well as supporting 
documentation used in preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the above address.

FOR FURTHER INFORMATION CONTACT: Rob Tawes, at the above address 
(telephone (931) 528-6481, extension 213; facsimile (931) 528-7075).

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We intend for any final action resulting from this proposal to be 
as accurate and as effective as possible. Therefore, we solicit 
comments or suggestions from the public, other concerned governmental 
agencies, the scientific community, industry, or any other interested 
party concerning this proposed rule. We are particularly interested in 
comments concerning:
    (1) The reasons why any area should or should not be determined to 
be critical habitat as provided by section 4 of the Act and 50 CFR 
424.12(a)(1), including whether the benefits of designation will 
outweigh any threats to the species resulting from designation.
    (2) Specific information on the amount and distribution of habitat 
for these five mussel and what habitat is essential to the conservation 
and why.
    (3) Whether areas within proposed critical habitat are currently 
being managed to address conservation needs of these five mussel.
    (4) Current or planned activities in the subject areas and their 
possible impacts on proposed critical habitat.
    (5) Any foreseeable economic or other impacts resulting from the 
proposed designation, in particular, any impacts on small entities.
    (6) Economic and other values associated with designating critical 
habitat for the mussels, such as those derived from nonconsumptive uses 
(e.g., hiking, camping, enhanced watershed protection, increased soil 
retention, ``existence values,'' and reductions in administrative 
costs).
    If you wish to comment on this proposed rule, you may submit your 
comments and materials concerning this proposal by any one of several 
methods (see ADDRESSES section). Electronic comments (e-mail) should 
avoid the use of special characters and encryption. Please also include 
``Attn: RIN 1018-AI76'' and your name and return address in your e-mail 
message. Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Respondents may request that we withhold their home 
addresses, which we will honor to the extent allowable by law. There 
also may be circumstances in which we would withhold a respondent's 
identity, as allowable by law. If you wish for us to withhold your name 
and/or address, you must state this request prominently at the 
beginning of your comment. However, we will not consider anonymous 
comments. To the extent consistent with applicable law, we will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety.

Disclaimer

    Designation of critical habitat provides little additional 
protection to species. In 30 years of implementing the Act, the Service 
has found that the designation of statutory critical habitat provides 
little additional protection to most listed species, while consuming

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significant amounts of scarce conservation resources. The present 
system for designating critical habitat has evolved since its original 
statutory prescription into a process that provides little real 
conservation benefit, is driven by litigation rather than biology, 
forces decisions to be made before complete scientific information is 
available, consumes enormous agency resources that would otherwise be 
applied to actions of much greater conservation benefit, and imposes 
huge social and economic costs. The Service believes that rational 
public policy demands serious attention to this issue in order to allow 
our limited resources to be applied to those actions that provide the 
greatest benefit to the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. [Sidle (1987. Env. Manage.11(4):429-437) 
stated, ``Because the ESA can protect species with and without critical 
habitat designation, critical habitat designation may be redundant to 
the other consultation requirements of section 7.''] Currently, only 
306 species or 25 percent of the 1,211 listed species in the U.S. under 
the jurisdiction of the Service have designated critical habitat. We 
address the habitat needs of all 1,211 listed species through 
conservation mechanisms such as listing, section 7 consultations, the 
section 4 recovery planning process, the section 9 protective 
prohibitions of unauthorized take, section 6 funding to the States, and 
the section 10 incidental take permit process. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.

Procedural and Resource Difficulties in Designating Critical Habitat

    With a budget consistently inadequate to fund all of the petition 
review, listing, and critical habitat designation duties required of us 
by statute, we have in the past prioritized our efforts and focused our 
limited resources on adding species in need of protection to the lists 
of threatened or endangered species. We have been inundated with 
lawsuits for our failure to designate critical habitat, and we face a 
growing number of lawsuits challenging critical habitat determinations 
once they are made. These lawsuits have subjected the Service to an 
ever-increasing series of court orders and court-approved settlement 
agreements, compliance with which now consumes nearly the entire 
listing program budget. This leaves the Service with little ability to 
prioritize its activities to direct scarce listing resources to the 
listing program actions with the most biologically urgent species 
conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are significantly delayed. Litigation over critical 
habitat issues for species already listed and receiving the Act's full 
protection has precluded or delayed many listing actions nationwide.
    The accelerated schedules of court ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or ensure a defect-free rulemaking process before making 
decisions on listing and critical habitat proposals due to the risks 
associated with noncompliance with judicially-imposed deadlines. This 
in turn fosters a second round of litigation in which those who fear 
adverse impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, is very 
expensive, and in the final analysis provides relatively little 
additional protection to listed species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with National 
Environmental Policy Act (NEPA), all are part of the cost of critical 
habitat designation. None of these costs result in any benefit to the 
species that is not already afforded by the protections of the Act 
enumerated earlier, and they directly reduce the funds available for 
direct and tangible conservation actions.

Background

    We previously provided information on these species in our Final 
rule (January 10, 1997; 62 FR 1647). The following presents new 
information.
    The Cumberland elktoe, Cumberlandian combshell, oyster mussel, 
purple bean, and rough rabbitsfoot are all bivalve mussels (possessing 
a soft body enclosed by two shells) in the family Unionidae. Unionid 
mussels, in general, live embedded in the bottom (mud, sand, gravel, 
cobble/boulder substrates) of rivers, streams, and other bodies of 
water. These mussels siphon water into their shells and across four 
gills that are specialized for respiration. Mussels are known to 
consume detritus (organic decomposed debris), diatoms, phytoplankton, 
zooplankton, and other microorganisms (i.e. bacteria and algae) (Coker 
et al. 1921; Churchill and Lewis 1924; Fuller 1974).
    Sexes in unionid mussels are usually separate. Males release sperm 
into the water; the sperm are then taken in by the females through 
their siphons during feeding and respiration. Eggs are held in the 
gills of the female where they come into contact with the sperm. Once 
eggs are fertilized, females retain them in their gills until the 
larvae (glochidia) fully develop. The change (metamorphosis) of the 
larvae of most unionid species into juvenile mussels requires a 
parasitic stage on the fins, gills, or skin of a fish. Late stage 
mussel glochidia are released into the water column and they must find 
and attach to a suitable host fish in order to develop into a juvenile 
mussel. Glochidia may be released separately or in masses termed 
conglutinates. Developed juvenile mussels normally detach from their 
fish host and sink to the stream bottom, where they continue to 
develop, provided they land in a suitable substrate with correct water 
conditions. Consequently, unionid mussels are specialized to only 
parasitize one or a few suitable host fish that occupy similar habitats 
as the mussels.
    These 5 mussels are historically native to portions of the 
``Cumberlandian'' Region of the Tennessee and Cumberland River Systems. 
The Cumberlandian Region, considered to be the center of freshwater 
mussel diversity in North America, historically contained over 100 
species, 45 of which were found nowhere else (Starnes and Bogan 1988; 
Parmalee and Bogan 1998; Cicerello and Laudermilk 2001). The 
Cumberlandian Region encompasses the Cumberland River and its 
tributaries downstream to the vicinity of Clarksville, Montgomery 
County, Tennessee; the Tennessee River and its tributaries downstream 
to the vicinity of Muscle Shoals, Colbert and Lauderdale Counties, 
Alabama; the Duck River (Tennessee River system)

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downstream to just below Columbia, Maury County, Tennessee (Ortmann 
1924); and the Buffalo River (a lower Duck River tributary) (van der 
Schalie 1973). Biological factors relevant to these freshwater mussels' 
habitat needs are discussed in the ``Methods and Analysis used to 
Identify Proposed Critical Habitat'' section of this proposed rule. We 
present information below on taxonomy, life history, and distribution 
specific to these 5 Cumberlandian mussels. Additional information can 
be found in our final listing determination for these mussels (62 FR 
1647) and agency draft recovery plan (April 22, 2003, 68 FR 19844) 
(Service 2003).

Taxonomy, Life History, and Distribution

Cumberland Elktoe (Alasmidonta atropurpurea (Rafinesque 1831))

    Adult Cumblerand elktoe may reach lengths of up to 10.0 centimeters 
(cm) (3.9 inches (in)) (Parmalee and Bogan 1998). Gravid females 
(females with larvae) have been observed between October and May, but 
fish infected with glochidia of the Cumberland elktoe have not been 
encountered until March (Gordon and Layzer 1993). While glochidial 
infestation from this species has been recorded on 5 native fish 
species, glochidia successfully transformed or developed only on the 
northern hogsucker (Hypentelium nigricans) under laboratory conditions 
(Gordon and Layzer 1993). This species appears to prefer habitats in 
medium-sized streams that contain sand and mud substrata interspersed 
with cobbles and large boulders (Call and Parmalee 1981; Parmalee and 
Bogan 1998).
    The Cumberland elktoe is endemic to the upper Cumberland River 
system in southeast Kentucky and north-central Tennessee. It appears to 
have historically occurred only in the main stem of the Cumberland 
River and primarily its southern tributaries upstream from the 
hypothesized original location of Cumberland Falls near Burnside, 
Pulaski County, Kentucky (Cicerello and Laudermilk 2001). This species 
has apparently been extirpated from the main stem of the Cumberland 
River as well as Laurel River and its tributary, Lynn Camp Creek 
(Service 2003). Based on recent records, the Cumberland elktoe 
continues to persist in 12 Cumberland River tributaries: Laurel Fork, 
Claiborne County, Tennessee and Whitley County, Kentucky; Marsh Creek, 
McCreary County, Kentucky; Sinking Creek, Laurel County, Kentucky; Big 
South Fork, Scott County, Tennessee, and McCreary County, Kentucky; 
Rock Creek, McCreary County, Kentucky; North Fork White Oak Creek, 
Morgan and Fentress County, Tennessee; Clear Fork, Fentress, Morgan, 
and Scott Counties, Tennessee; North Prong Clear Fork and Crooked 
Creek, Fentress County, Tennessee; White Oak Creek, Scott County, 
Tennessee; Bone Camp Creek, Morgan County, Tennessee; and the New 
River, Scott County, Tennessee (Call and Parmalee 1981; Bakaletz 1991; 
Gordon 1991; Cicerello 1996; Parmalee and Bogan 1998; Cicerello and 
Laudermilk 2001; Ronald Cicerello, Kentucky State Nature Preserves 
Commission, pers. comm. 2002, 2003; Service 2003).

Oyster Mussel (Epioblasma capsaeformis (Lea 1834))

    According to Parmalee and Bogan (1998), adult oyster mussels can 
reach lengths of up to 7.0 cm (2.8 in). Ortmann (1924) was the first to 
note color differences in female oyster mussel mantle pads (shell 
lining). The mantle color appears to be bluish or greenish white in the 
Clinch River, grayish to blackish in the Duck River, and nearly white 
in the Big South Fork population (Ortmann 1924; Service 2003). In 
addition, the Duck River form achieves nearly twice the size of 
specimens from other populations. Two small projections 
(microattractants) at the junction of the mantle pads serve to attract 
host fish. Subtle differences in the morphology of these projections or 
structures also exist in these two populations (J.W. Jones, Virginia 
Tech, pers.comm. 2002).
    Spawning probably occurs in the oyster mussel in late spring or 
early summer (Gordon and Layzer 1989). Glochidia of the oyster mussel 
have been identified on seven native host fish species, including the 
wounded darter (Etheostoma vulneratum), redline darter (E. 
rufilineatum), bluebreast darter (E. camurum), dusky darter (Percina 
sciera), banded sculpin (Cottus carolinae), black sculpin (C. baileyi), 
and mottled sculpin (C. bairdi) (Yeager and Saylor 1995; J.W. Jones and 
R.J. Neves, U.S. Geological Survey (USGS), unpublished (unpub.) data 
1998). Oyster mussels typically occur in sand and gravel substrate in 
streams ranging from medium-sized creeks to large rivers (Gordon 1991; 
Parmalee and Bogan 1998). They apparently prefer shallow riffles and 
shoals and have been found associated with water willow (Justicia 
americana) beds (Ortmann 1924; Gordon 1991; Parmalee and Bogan 1998).
    The oyster mussel was one of the most widely distributed 
Cumberlandian mussel species, with historical records existing from six 
States (Alabama, Georgia, Kentucky, North Carolina, Tennessee, and 
Virginia). It has apparently been eliminated from both main stems of 
the Cumberland and Tennessee Rivers and a large number of their 
tributaries (Fraley and Ahlstedt 2001; S.A. Ahlstedt, USGS, pers. comm. 
2002; Service 2003). This mussel is now only extant in a handful of 
stream and river reaches in four States in the Tennessee and Cumberland 
River systems, including the Duck River, Maury and Marshall Counties, 
Tennessee; Powell River, Claiborne and Hancock Counties, Tennessee, and 
Lee County, Virginia; Clinch River, Hancock County, Tennessee, and 
Scott, Russell, and Tazewell Counties, Virginia; Nolichucky River, 
Hamblen and Cocke Counties, Tennessee; and Big South Fork of the 
Cumberland River, McCreary County, Kentucky, and Scott County, 
Tennessee (Wolcott and Neves 1990; Ahlstedt 1991; Bakaletz 1991; Gordon 
1991; Ahlstedt and Tuberville 1997; S.A. Ahlstedt, pers. comm. 2002; 
Service 2003).

Cumberlandian Combshell (Epioblasma brevidens (Lea 1831))

    Most mature Cumberlandian combshell are approximately 5 cm (2 in) 
in length, but may reach 8 cm (3.1 in) (Parmalee and Bogan, 1998). 
Spawning in this species most likely occurs in late winter (Gordon 
1991). Glochidia of the Cumberlandian combshell have been identified on 
several native host fish species, including the wounded darter, redline 
darter, bluebreast darter, snubnose darter (Etheostoma simoterum), 
greenside darter (E. blennioides), logperch (Percina caprodes), banded 
sculpin, black sculpin, and mottled sculpin (Yeager and Saylor 1995; 
J.W. Jones and R.S. Neves, USGS, unpub. data 1998). This species is 
typically associated with riffle and shoal areas in medium to large-
sized rivers (Gordon 1991; Parmalee and Bogan 1998). It is found in 
substrata ranging from coarse sand to cobble (Gordon 1991).
    This species, like the oyster mussel, was once widely distributed, 
historically occurring in five States (Alabama, Kentucky, Mississippi, 
Tennessee, and Virginia). It has likewise apparently been eliminated 
from the mainstems of the Tennessee and Cumberland Rivers and several 
of their tributaries (Service 2003). It is now restricted to five 
stream reaches. The Cumberlandian combshell persists in Bear Creek, 
Colbert County, Alabama, and Tishomingo County, Mississippi; Powell 
River, Claiborne and Hancock

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counties, Tennessee, and Lee County, Virginia; Clinch River, Hancock 
County, Tennessee, and Scott, Russell, and Tazewell Counties, Virginia; 
Big South Fork, Scott County, Tennessee and McCreary County, Kentucky; 
and Buck Creek, Pulaski County, Kentucky (Isom and Yokely 1968; 
Schuster et al. 1989; Ahlstedt 1991; Bakaletz 1991; Gordon 1991; 
Ahlstedt and Tuberville 1997; Hagman 2000; Ahlstedt, pers. comm. 2002; 
B. Jones, Mississippi Museum of Natural Science, pers. comm. 2002; 
Cicerello, pers.comm. 2003; Garner and McGregor, in press).

Purple Bean (Villosa perpurpurea (Lea 1861))

    Adult purple beans are typically 2.5 to 7.5 cm (1.0 to 3.0 in) in 
length (R. Tawes, personal observation, 2003). Gravid females have been 
observed in January and February (Ahlstedt, 1991; Bob Butler, Service, 
pers. comm. 2003). Glochidia of the purple bean have been identified on 
the fantail darter (Etheostoma flabellare), greenside darter, and 
mottled sculpin (Watson and Neves 1996). This species inhabits small 
creeks to medium-sized rivers and can be found in a variety of 
substrates (Gordon 1991; Parmalee and Bogan 1998).
    The purple bean is endemic to the upper Tennessee River drainage in 
Tennessee and Virginia. Its historical range included the Powell River, 
Lee County, Virginia; Clinch River system, Claiborne, Grainger, and 
Hancock Counties, Tennessee, and Russell, Scott, Tazewell, and Wise 
Counties, Virginia; Emory and Obed Rivers, Morgan and Cumberland 
counties, Tennessee; and Holston River System, Hawkins and Sullivan 
Counties, Tennessee, and Scott and Washington Counties, Virginia. It 
has apparently been extirpated from the Powell River, Emory River, 
North Fork Beech Creek (Holston River System) and North Fork Holston 
River (Service 2003). The purple bean persists in portions of the 
Clinch River mainstem, Hancock County, Tennessee, and Scott, Russell, 
and Tazewell Counties, Virginia; Copper Creek (a Clinch River 
tributary), in Scott County, Virginia; Indian Creek (a Clinch River 
tributary), in Tazewell County, Virginia; in the Obed River, Morgan and 
Cumberland Counties, Tennessee; and in Beech Creek, a tributary of the 
Holston River, Hawkins County, Tennessee (Ahlstedt 1991; Gordon 1991; 
Winston and Neves 1997; Watson and Neves 1998; Ahlstedt and Tuberville 
1997; S.A. Ahlstedt, pers. comm. 2000, 2002, 2003; Fraley and Ahlstedt 
2001).

Rough Rabbitsfoot (Quadrula cylindrica strigillata (Wright, 1898))

    The rough rabbitsfoot is the largest of the five mussels, with 
adult specimens sometimes reaching 12 cm (5 in) in length (Parmalee and 
Bogan, 1998). Spawning in this species apparently occurs from May 
through June (Yeager and Neves 1986). Glochidia of rough rabbitsfoot 
have been identified on the whitetail shiner (Cyprinella galactura), 
spotfin shiner (Cyprinella spiloptera), and bigeye chub (Hybopsis 
amblops) (Yeager and Neves 1986). This species prefers clean sand and 
gravel substrate in streams ranging from medium-sized creeks to medium-
sized rivers (Parmalee and Bogan 1998).
    Like the purple bean, the rough rabbitsfoot is endemic to the upper 
Tennessee River system. The rough rabbitsfoot historically occupied the 
Powell River, Hancock and Claiborne Counties, Tennessee, and Lee 
County, Virginia; Clinch River system, Hancock and Claiborne Counties, 
Tennessee, and Russell, Scott, and Tazewell Counties, Virginia; and 
Holston River System, Hawkins and Sullivan Counties, Tennessee, and 
Scott and Washington Counties, Virginia. It is apparently extirpated 
from the entire Holston River system (Service, 2003). It currently 
persists in portions of the Powell River, Claiborne and Hancock 
Counties, Tennessee and Lee County, Virginia; Clinch River, Hancock 
County, Tennessee and Scott, Russell, and Tazewell Counties, Virginia; 
and in Indian Creek, Tazewell County, Virginia (Ahlstedt 1981; Gordon 
1991; Ahlstedt and Tuberville 1997; Winston and Neves 1997; Watson and 
Neves 1998; S.A. Ahlstedt, pers. comm. 2000, 2002, 2003; Fraley and 
Ahlstedt 2001).
    The summary of these five mussels presented above represents our 
current understanding of their historical and current range and 
distribution. Research is ongoing regarding identification of some 
species. For example, varying mantle coloration, microattractant 
configuration, size differential, and spawning cycles may indicate that 
the oyster mussel is actually a species complex (more than one species 
represented). Researchers from Virginia Tech are in the process of 
formally describing the Duck River variety (J.W. Jones, Virginia Tech, 
in press), and some malacologists, molluscs biologists, believe that 
the Big South Fork variety is actually a distinct, undescribed species, 
or possibly a variant of the tan riffleshell (Epioblasma florentina 
walkeri), a closely related species (S.A. Ahlstedt, USGS, pers. comm. 
2002). A recent genetic investigation on the genus Epioblasma using 
mitochondrial DNA markers suggested that the tan riffleshell and the 
oyster mussel may be the same species (Buhay et al. 2002). Because 
these observations have not yet been published or peer reviewed and/or 
are not conclusive, we believe for the purposes of this proposed rule 
that the Duck River and Big South Fork populations are true E. 
capsaeformis. The distributions presented above are based upon shell 
morphology as described and currently recognized in the scientific 
literature. Therefore, we will consider these species' current ranges 
as outlined above, until presented with new information.

Summary of Decline and Threats to Surviving Populations

    These five mussels, like many other Cumberlandian Region mussel 
taxa, have undergone significant reductions in total range and 
population density (Layzer et al. 1993; Williams et al. 1993; Neves et 
al. 1997; Fraley and Ahlstedt 2000; Cicerello and Laudermilk 2001; 
Service 2003), primarily resulting from human-induced changes in stream 
and river channels, including channel modifications (e.g., dams, 
dredging, mining) and historic or episodic water pollution events 
(Schuster et al. 1989; Gordon 1991; Neves et al. 1997; Parmalee and 
Bogan 1998; Cicerello and Laudermilk 2001). The entire length of the 
main stems of the Tennessee and Cumberland Rivers and many of their 
largest tributaries are now impounded or greatly modified by the 
discharge of tailwaters (Service 2003). For example, more than 3,700 
rkm (2,300 rmi) (about 20 percent) of the Tennessee River and its 
tributaries were impounded by the Tennessee Valley Authority by 1971 
(Service 2003). Dams permanently alter the free-flowing aquatic habitat 
required by many mussels and their host fish. None of the five mussels 
are known to survive in impounded waters. Riverine mussels are killed 
during construction of dams; they may be suffocated by sediments that 
accumulate behind the dams and the reduced water flow behind dams 
limits food and oxygen available to mussels. Mussel populations in 
free-flowing river sections below dams can be adversely affected or 
extirpated from reduced dissolved oxygen levels, unnatural flow 
regimes, and colder temperatures, or greatly modified by the dams or 
their tailwater releases (Neves et al. 1997). Many fish species that 
serve as hosts to mussel larvae are also eliminated by dams and 
impounded waters.
    Other forms of habitat modification, such as channelization, 
channel clearing and de-snagging (woody debris

[[Page 33238]]

removal), and gravel mining, caused stream bed scour and erosion, 
increased turbidity, reduction of groundwater levels, and 
sedimentation, often resulting in severe local impacts to and even 
extirpation of mussel species. Sedimentation may also eliminate or 
reduce recruitment of juvenile mussels (Negus 1966), and suspended 
sediments can also interfere with feeding (Dennis 1984).
    Water pollution from various point-sources such as mines, 
industrial plants, and municipal sewage treatment facilities also have 
contributed to the demise or decline of the five species in certain 
portions of their historical ranges. Freshwater mussels, especially in 
their early life stages, are extremely sensitive to many pollutants 
(e.g., chlorine, ammonia, heavy metals, high concentrations of 
nutrients) commonly found in municipal and industrial wastewater 
effluents (Havlik and Marking 1987; Goudreau et al. 1988; Keller and 
Zam 1991). Stream discharges from these sources could result in 
decreased dissolved oxygen concentration, increased acidity and 
conductivity, and other changes in water chemistry, which may impact 
mussels or their host fish.
    An additional major impact on individual populations of the five 
mussels that has resulted from historic activities (especially dam 
construction) was separation and isolation of populations by 
impoundments or large stretches of unsuitable habitat, rendering 
natural reproduction between those populations (and associated genetic 
interchange) problematic (Service 2003). Once existing in hundreds of 
river kilometers, these five mussels now survive in only a few 
relatively small, isolated populations of questionable long-term 
viability which cover portions of Virginia, Kentucky, Alabama, 
Tennessee, and Mississippi (Service 2003). Small populations are more 
vulnerable to natural random events such as droughts, as well as to 
changes in human activities and land-use practices that impact aquatic 
habitats (Neves et al. 1997). Current threats to surviving populations 
of these five mussels include continued habitat loss and fragmentation, 
cumulative effects of land use activities on aquatic environments, 
population isolation and associated deleterious genetic effects such as 
inbreeding depression, and competition with invasive exotic mussel 
species (Foose et al. 1995; Neves et al. 1997). Non-point source 
pollution, such as sediment and agrochemical run-off, which are known 
to adversely affect aquatic invertebrates (Waters 1995; Folkerts 1997) 
also poses a continuing threat to the long-term survival of these 
remaining mussel populations (Wolcott and Neves 1990; Neves et al. 
1997; Service 2003). More detailed information on the threats to these 
species can be found in the January 10, 1997, final listing 
determination (62 FR 1647) and the agency draft recovery plan for these 
five species (Service 2003).

Previous Federal Actions

    We discussed our previous Federal actions in the Final listing rule 
for these 5 mussel species (62 FR 1649). The following discuss our 
Federal actions since the Final listing rule.
    On January 10, 1997, we published a final rule listing the 5 
mussels as endangered. At that time, we determined that critical 
habitat was not prudent because it would result in no known benefit to 
the five species and that designation could pose a further threat to 
the five mussels by publishing their site-specific localities.
    In June 1998, a technical draft recovery plan for the five mussels 
was written and underwent a technical review dealing primarily with the 
biological accuracy and sufficiency of the plan. We released an agency 
draft recovery plan on April 22, 2003, and disseminated to State and 
Federal agencies, universities, public officials, nongovernmental 
organizations, and knowledgeable individuals for review and comment on 
all aspects of the plan. We published in the Federal Register a Notice 
of Draft Recovery Plan Availability (68 FR 19844). The comment period 
will close on June 23, 2003.
    On October 12, 2000, the Southern Appalachian Biodiversity Project 
filed a lawsuit in U.S. District Court for the Eastern District of 
Tennessee against the Service, the Director of the Service, and the 
Secretary of the Department of the Interior, challenging our not-
prudent critical habitat determination for the Cumberlandian combshell, 
Cumberland elktoe, purple bean, rough rabbitsfoot, and oyster mussel 
(United States District Court, Eastern District of Tennessee (Southern 
Appalachian Biodiveristy Project v. U.S. Fish and Wildlife Service et 
al., No. 2:00-CV-361). On November 8, 2001, the District Court issued 
an order directing us to re-evaluate our prudency determination for 
these five mussels and submit new proposed prudency determinations for 
the Cumberland elktoe to the Federal Register no later than May 19, 
2003, and for the remaining four mussels to the Federal Register no 
later than June 16, 2003. We were also directed to submit by those same 
dates new proposed critical habitat designations, if prudent. 
Additionally, for these mussels in which critical habitat was found to 
be prudent, we were directed to finalize our designation not less than 
12 months following the prudency determination.
    This proposal is the product of our re-evaluation of our 1997 
determination that critical habitat for these five mussels was not 
prudent. It reflects our interpretation of recent judicial opinions on 
critical habitat designation and the standards placed on us for making 
a prudency determination. If additional information becomes available 
on the species' biology or distribution, or threats to the species, we 
may reevaluate this proposal to propose additional critical habitat, 
propose boundary refinements that substantially change existing 
proposed critical habitat, or withdraw our proposal to designate 
critical habitat.

Critical Habitat

    Critical habitat is defined in section 3(5)(A) of the Act as (i) 
the specific areas within the geographic area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographic area occupied by a species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. ``Conservation'' is defined in section 3(3) of the Act as the 
use of all methods and procedures that are necessary to bring any 
endangered or threatened species to the point at which listing under 
the Act is no longer necessary.
    The designation of critical habitat does not affect land ownership 
or establish a refuge, wilderness, reserve, preserve, or other 
conservation area. It does not allow government or public access to 
private lands. Federal agencies must consult with the Service on 
activities they undertake, fund, or permit that may affect critical 
habitat. However, the Act prohibits unauthorized take of listed species 
and requires consultation for activities that may affect them, 
including habitat alterations, regardless of whether critical habitat 
has been designated. The Service has found that the designation of 
critical habitat provides little additional protection to most listed 
species.
    In order for habitat to be included in a critical habitat 
designation, the habitat features must be ``essential to the 
conservation of the species.'' Such

[[Page 33239]]

critical habitat designations identify, to the extent known and 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)).
    Regulations at 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. When we designate critical 
habitat, we may not have the information necessary to identify all 
areas which are essential for the conservation of the species. 
Nevertheless, we are required to designate those areas we consider to 
be essential, using the best information available to us.
    Within the geographic area of the species, we will designate only 
currently known essential areas. We will not speculate about which 
areas might be found to be essential if better information became 
available, or which areas may become essential over time. If the 
information available at the time of designation does not show that an 
area provides essential life cycle needs of the species, then we will 
include the area in the critical habitat designation. Our regulations 
state that ``The Secretary shall designate as critical habitat areas 
outside the geographic area presently occupied by the species only when 
a designation limited to its present range would be inadequate to 
ensure the conservation of the species'' (50 CFR 424.12(e)). 
Accordingly, when the best available scientific data do not demonstrate 
that the conservation needs of the species require designation of 
critical habitat outside of occupied areas, we will not designate 
critical habitat in areas outside the geographic area currently 
occupied by the species.
    Section 4(b)(2) of the Act requires that we take into consideration 
the economic impact, and any other relevant impact, of specifying any 
particular area as critical habitat. We may exclude areas from critical 
habitat designation when the benefits of exclusion outweigh the 
benefits of including the areas within critical habitat, provided the 
exclusion will not result in extinction of the species.
    Our Policy on Information Standards Under the Endangered Species 
Act, published on July 1, 1994 (59 FR 34271), provides guidance to 
ensure that our decisions are based on the best scientific and 
commercial data available. It requires that our biologists, to the 
extent consistent with the Act and with the use of the best scientific 
and commercial data available, use primary and original sources of 
information as the basis for recommendations to designate critical 
habitat. When determining which areas are critical habitat, information 
that should be considered includes the listing package for the species; 
the recovery plan; articles in peer-reviewed journals; conservation 
plans developed by States and counties; scientific status surveys, 
studies, and biological assessments; unpublished materials; and expert 
opinion or personal knowledge.
    Section 4 of the Act generally requires that we designate critical 
habitat at the time of listing and based on what we know at the time of 
designation. There are several thousands of kilometers of perennial 
streams in the Cumberlandian Region. Many of these flow through private 
property and may not have been adequately surveyed for mussels. We 
recognize that additional small, limited populations for some of these 
species could exist in some of these streams and may be discovered over 
time. Furthermore, we recognize that designation of critical habitat 
may not include all of the habitat areas that may eventually be 
determined to be necessary for the recovery of the species. Therefore, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery. Areas 
outside the critical habitat designation will continue to be subject to 
conservation actions that may be implemented under section 7(a)(1) of 
the Act and to the regulatory protections afforded by the section 
7(a)(2) jeopardy standard and the take prohibitions pursuant to section 
9 of the Act, as determined on the basis of the best available 
information at the time of the action. It is possible that federally 
funded or assisted projects affecting listed species outside their 
designated critical habitat areas could jeopardize those species. 
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 and recovery efforts if 
new information available to these planning efforts calls for a 
different outcome.

Prudency Determination

    Section 4(a)(3) of the Act and its implementing regulations (50 CFR 
424.12) require that, to the maximum extent prudent and determinable, 
we designate critical habitat at the time a species is listed as 
endangered or threatened. Our regulations at 50 CFR 424.12(a)(1) state 
that the designation of critical habitat is not prudent when one or 
both of the following situations exist: (1) The species is threatened 
by taking or other activity and the identification of critical habitat 
can be expected to increase the degree of threat to the species or (2) 
such designation of critical habitat would not be beneficial to the 
species. In our January 10, 1997, final rule (62 FR 1647), we 
determined that both situations applied to these five mussels, and 
consequently indicated that the designation of critical habitat was not 
prudent.
    However, in the past few years, several of our determinations that 
the designation of critical habitat would not be prudent have been 
overturned by court decisions. For example, in Conservation Council for 
Hawaii v. Babbitt, the United States District Court for the District of 
Hawaii ruled that the Service could not rely on the ``increased 
threat'' rationale for a ``not prudent'' determination without specific 
evidence of the threat to the species at issue (2 F. Supp. 2d 1280 [D. 
Hawaii 1998]). Additionally, in Natural Resources Defense Council v. 
U.S. Department of the Interior, the United States Court of Appeals for 
the Ninth Circuit ruled that the Service must balance, in order to 
invoke the ``increased threat rationale,'' the threat against the 
benefit to the species of designating critical habitat 113 F. 3d 1121, 
1125 (9th Cir. 1997).
    We continue to be concerned that the five mussels are vulnerable to 
unrestricted collection, vandalism, or disturbance of their habitat and 
that these threats might be increased by the designation of critical 
habitat, publication of critical habitat maps, and further 
dissemination of location and habitat information. The low numbers and 
restricted range of these mussels make it unlikely that their 
populations could withstand even moderate collecting pressure, or 
vandalism. However, at this time we do not have specific evidence for 
the taking, collection, trade, vandalism, or other unauthorized human 
disturbance specific to these five mussels.
    The courts also have ruled that, in the absence of a finding that 
the designation of critical habitat would increase threats to a 
species, the existence of another type of protection, even if it offers 
potentially greater protection to the species, does not justify a ``not 
prudent'' finding (Conservation Council for Hawaii v. Babbitt 2 F. 
Supp. 2d 1280). We are already working with Federal and State agencies, 
private individuals, and organizations in carrying out conservation 
activities for these five mussels and in conducting surveys for

[[Page 33240]]

additional occurrences of the species and to assess habitat conditions. 
These entities are fully aware of the distribution, status, and habitat 
requirements for these mussels, as currently known. However, the 
designation may provide additional information to individuals, local 
and State governments, and other entities engaged in long-range 
planning, since areas essential to the conservation of the species are 
more clearly defined and, to the extent currently feasible, the primary 
constituent elements of the habitat necessary to the survival of the 
species are specifically identified. Accordingly, we withdraw our 
previous determination that the designation of critical habitat will 
not benefit these five mussel species. Therefore, we determine that the 
designation of critical habitat is prudent for the Cumberland elktoe, 
oyster mussel, Cumberlandian combshell, purple bean, and rough 
rabbitsfoot and propose to designate critical habitat for these 
mussels. At this time, we have sufficient information necessary to 
identify specific areas as essential to the conservation of these five 
mussel species and are therefore proposing critical habitat (see 
``Methods and Analysis used to Identify Proposed Critical Habitat'' 
section below for a discussion of information used in our 
reevaluation).

Methods and Analysis Used To Identify Proposed Critical Habitat for 
Five Mussel Species

    As required by section 4(b)(2) of the Act and its implementing 
regulations (50 CFR 424.12), we used the best scientific information 
available to determine critical habitat areas that contain the physical 
and biological features that are essential for the conservation of 
these 5 mussels. We reviewed the available information pertaining to 
the historic and current distributions, life histories, host fishes, 
habitats of, and threats to these species. The information used in the 
preparation of this proposed designation includes our own site-specific 
species and habitat information; recent biological surveys and reports 
and communications with other qualified biologists or experts; 
Statewide Geographic Information System (GIS) species occurrence 
coverages provided by the Kentucky State Nature Preserves Commission, 
Tennessee Department of Environment and Conservation, and Tennessee 
Valley Authority; peer-reviewed scientific publications; the final 
listing rule for the five mussels; and our draft agency recovery plan 
for these mussels. We considered all collection records within the last 
15 years from streams currently and historically known to be occupied 
by one or more of the species (see ``Taxonomy, Life History, and 
Distribution'' section above).
    As discussed in part under the ``Summary of Decline'' section of 
this rule and the agency draft recovery plan (Service 2003), the five 
mussels are highly restricted in distribution, generally occur in small 
populations, and show little evidence of recovering from historic 
habitat loss without significant human intervention. In fact, the draft 
recovery plan states that recovery for the five mussels is not likely 
in the near future because of the extent of their decline, the relative 
isolation of remaining populations, and varied threats to their 
continued existence. Therefore, the recovery plan emphasizes protection 
of surviving populations of these five mussels and their stream and 
river habitats, enhancement and restoration of habitats, and population 
management, including augmentation and reintroduction of the mussels.
    Much of what is known about the specific physical and biological 
habitat requirements of these five mussels is summarized above in the 
``Background'' section of this rule and in the agency draft recovery 
plan. 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 focus on 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, in accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of 
the Act and regulations at 50 CFR 424.12. Such requirements include, 
but are not limited to, space for individual and population growth and 
for normal behavior; food, water, air, light, minerals, or other 
nutritional or physiological requirements; cover or shelter; sites for 
breeding; and habitats that are protected from disturbance or are 
representative of the historical geographical and ecological 
distribution of a species.
    On the basis of the best available information, we include the 
following as primary constituent elements essential for the 
conservation of the five mussels:
    1. Permanent, flowing stream reaches with a flow regime (i.e, the 
magnitude, frequency, duration, and seasonality of discharge over time) 
necessary for normal behavior, growth, and survival of all life stages 
of the five mussels and their host fish;
    2. Geomorphically stable stream and river channels and banks 
(structurally stable stream cross section);
    3. Stable substrates, consisting of mud, sand, gravel, and/or 
cobble/boulder, with low amounts of fine sediments or attached 
filamentous algae;
    4. Water quality (including temperature, turbidity, oxygen content, 
and other characteristics) necessary for the normal behavior, growth, 
and survival of all life stages of the five mussels and their host 
fish; and
    f. Fish hosts with adequate living, foraging, and spawning areas 
for them.
    In considering and identifying primary constituent elements, we 
have taken into account the dynamic nature of riverine systems. We 
recognize that riparian areas and floodplains are integral parts of the 
stream ecosystem, important in maintaining channel geomorphology; and 
providing nutrient input and buffering from sediments and pollution and 
that side channel and backwater habitats may be important in the life 
cycle of fish that serve as hosts for mussel larvae.
    We considered several factors in the selection and proposal of 
specific areas for critical habitat for these five mussels. We assessed 
the recovery strategy outlined in the agency draft recovery plan for 
these species, which emphasizes: (1) Protection and stabilization of 
surviving populations (2) protection and management of their habitat 
(3) augmentation of existing small populations (4) reestablishment/
reintroduction of new populations within their historic ranges, and (5) 
research on species biology and ecology. Small, isolated populations 
are subject to the loss of unique genetic material (genetic drift) 
(Soule 1980; Lacy et al. 1995) and the gradual loss of reproductive 
success or fecundity due to limited genetic diversity (Foose et al. 
1995). They are likewise more vulnerable to extirpation from random 
catastrophic events and to changes in human activities and land-use 
practices (Soule 1980; Lacy et al. 1995). The ultimate goal of the 
agency draft recovery plan is to restore enough viable (self-
sufficient) populations of these five mussels such that each species no 
longer needs protection under the Act.
    In the agency draft recovery plan, we selected the number of 
distinct viable stream populations required for delisting of each of 
the five mussels on the basis primarily of the historic distribution of 
each species (Table 1). For example, the rough rabbitsfoot is narrowly 
endemic to the upper Tennessee River basin. It historically occupied 
only three river reaches and, therefore, its conservation can be

[[Page 33241]]

achieved with fewer populations. We have concluded that identification 
of critical habitat that would provide for the number of populations 
outlined in Table 1 for each species is essential to their 
conservation.

     Table 1.--Number of Distinct Viable Stream Populations of Five
Cumberlandian Mussels Required Before Delisting Can Occur as Outlined in
                Draft Agency Recovery Plan (Service 2003)
------------------------------------------------------------------------
                                                             Number of
                                                            populations
                         Species                           required for
                                                             delisting
------------------------------------------------------------------------
Cumberland elktoe.......................................             10
Oyster mussel...........................................             11
Cumberlandian combshell.................................             10
Purple bean.............................................              4
Rough rabbitsfoot.......................................              3
------------------------------------------------------------------------

    Our approach to delineating specific critical habitat units, based 
on the recovery strategy outlined above, focused first on considering 
the historic ranges of the five mussels. We evaluated streams and 
rivers within the historic ranges of these five mussels for which there 
was evidence that these species had occurred there at some point (i.e., 
collection records). Within the historic range of these species, we 
found that a large proportion of the streams and rivers in the 
Tennessee and Cumberland River Basins that historically supported these 
mussels has been modified by existing dams and their impounded waters. 
Extensive portions of the Tennessee and Cumberland River drainages, 
including the mainstem of the Cumberland River, segments of the Holston 
River, the Powell River, the Tennessee River mainstem, and numerous 
tributaries of these rivers, cannot be considered essential to the 
conservation of these species because they no longer provide the 
physical and biological features that are essential for their 
conservation (see Primary Constituent Elements discussion above). We 
also did not consider several streams with single site occurrence 
records of a single species as essential to the conservation of these 
species because these areas exhibited limited habitat availability, 
isolation, degraded habitat, and/or low management value or potential 
(e.g., Cedar Creek in Colbert County, Alabama; Little Pigeon River in 
Sevier County, Tennessee). Similarly, we did not consider as essential 
areas from which there have been no collection records of these species 
for several decades (e.g., portions of the upper Holston River system 
in Tennessee and Virginia, Buffalo River, Little South Fork of the 
Cumberland River, Laurel River).
    We then identified 13 stream or river reaches (units) within the 
historic range of these species for which our data (i.e., collection 
records over the last 15 years and view of experts) indicate that one 
or more of the 5 mussel species are present along with the primary 
constituent elements (see Table 2; Index map). These units total 
approximately 892 rkm (544 rmi), in Alabama, Kentucky, Mississippi, 
Tennessee, and Virginia. We believe that these areas support darters, 
minnows, sculpins, and other fishes that have been identified as hosts 
or potential hosts for one or more of the mussels, as evidenced by 
known fish distributions (Etnier and Starnes 1998), the persistence of 
the mussels over extended periods of time, or field evidence of 
recruitment (Ahlstedt pers. comm. 2002, B. Butler, pers.comm. 2002). We 
consider all of these 13 reaches essential for the conservation of 
these 5 mussels. As discussed in the agency draft recovery plan, long-
term conservation of these five mussels is unlikely in their currently 
reduced and fragmented state. Therefore, it is essential to include in 
this designation these 13 reaches within the historic range of all 5 
mussels that still contain mussels and the primary constituent elements 
of habitat.
    We then considered whether these essential areas were adequate for 
the conservation of these five mussels. As indicated in the agency 
draft recovery plan, threats to the five species are compounded by 
their limited distribution and isolation and it is unlikely that 
currently occupied habitat is adequate for the conservation of all five 
species. Conservation of these species requires expanding their ranges 
into currently unoccupied portions of their historic habitat because 
small, isolated, fragmented aquatic populations, as discussed 
previously, are subject to chance catastrophic events and to changes in 
human activities and land use practices that may result in their 
elimination. Larger, more contiguous populations can reduce the threat 
of extinction.
    Each of the 13 habitat units is currently occupied by 1 or more of 
the 5 listed mussels. Because portions of the historic range of each of 
the 5 mussels are shared with three or more of the other mussel 
species, there is considerable overlap between species' current and 
historic distribution within the 13 habitat units. This offers 
opportunities to increase each species' current range and number of 
extant populations into units currently occupied by other listed 
species included in this designation. For example, the oyster mussel 
historically inhabited seven units and currently inhabits five. 
Successful reintroduction of the species into units that they 
historically occupied (and that are currently occupied by one or more 
of the five mussels) would expand the number of populations, thereby 
reducing the threat of extinction.
    We believe that the habitat proposed for designation in these 13 
units is essential to the conservation of all 5 mussels and that the 13 
units encompass sufficient habitat necessary for the recovery of 3 of 
these 5 species (the Cumberland elktoe, purple bean, and rough 
rabbitsfoot.) However, we do not believe that the 13 units provide 
sufficient essential habitat for the conservation of the oyster mussel 
and Cumberlandian combshell, based on the number of viable populations 
required for conservation and recovery of these two species (Table 1). 
For example, these 13 proposed units include occupied habitat for 5 
existing oyster mussel populations and include unoccupied habitat in 
three other areas that could support oyster mussel populations. Our 
agency draft recovery plan, however, requires 11 viable populations of 
the oyster mussel before it may be delisted. The essential area as 
defined by our 13 units is not adequate to ensure the conservation of 
the oyster mussel and Cumberlandian combshell. Therefore, we then 
considered free-flowing river reaches that historically contained the 
Cumberlandian combshell and oyster mussel but that have had no 
collection records for the past 15 years, and that, resulting from 
water quality and quantity improvements, likely contain suitable 
habitat for these mussels. Through our analysis, we identified 4 such 
reaches that are separated by dams and impoundments from free-flowing 
habitats that contain extant populations of oyster mussels and 
Cumberlandian combshells. These areas are the lower French Broad River 
below Douglas Dam to its confluence with the Holston River, Sevier and 
Knox Counties, Tennessee; the free-flowing reach of the Holston River 
below Cherokee Dam to its confluence with the French Broad River, 
Jefferson, Grainger, and Knox Counties, Tennessee; the Tennessee River 
mainstem below Wilson Dam in Colbert and Lauderdale Counties, Alabama; 
and a stretch of the Rockcastle River in Laurel, Rockcastle, and 
Pulaski Counties, Kentucky. Natural recolonization of these areas by 
these two species is unlikely; however, these

[[Page 33242]]

species can be reintroduced into these areas to create the additional 
viable populations necessary to conserve and recover the species. We 
have therefore concluded that these four reaches are also essential to 
the conservation of the oyster mussel and Cumberlandian combshell.
    Although we have concluded that they are essential, we are not 
proposing to designate critical habitat in each of these 4 reaches, due 
to their current or potential status as nonessential experimental 
population areas. Section 10(j) of the Act states critical habitat 
shall not be designated for any experimental population determined to 
be not essential to the continued existence of the species. On June 14, 
2001, we published a final rule to designate nonessential experimental 
population status under section 10(j) of the Act for the reintroduction 
of 17 Federally listed species (including the oyster mussel and 
Cumberlandian combshell) to the free-flowing reach below Wilson Dam, in 
the Tennessee River (66 FR 32250). Therefore, we are not proposing 
critical habitat for the oyster mussel and Cumberlandian combshell in 
the Tennessee River mainstem below Wilson Dam in Colbert and Lauderdale 
Counties, Alabama.
    In addition, we are actively considering the remaining three 
reaches (the lower French Broad, lower Holston, and Rockcastle Rivers) 
for designation as nonessential experimental populations in order to 
facilitate the reintroduction of the oyster mussel and Cumberlandian 
combshell, as well as numerous other listed mussels, fishes, and 
snails. Therefore, while we recognize their likely importance to our 
recovery strategy for these species, we are not proposing these three 
river reaches as critical habitat. A further discussion of these areas 
can be found below (see Exclusions under 4(b)(2) section).
    In summary, the habitat contained within the 13 proposed units 
described below and the habitat within the 4 historic reaches 
designated or under consideration for nonessential experimental 
population status constitute our best determination of areas essential 
for the conservation, and eventual recovery, of these 5 Cumberlandian 
mussels. We are proposing as critical habitat only 13 habitat units 
encompassing approximately 849 rkm (528 rmi) of stream and river 
channels in Alabama, Mississippi, Tennessee, Kentucky, and Virginia. 
Each of these units is occupied by one or more of the 5 mussels. 
Although these 13 areas represent only a small proportion of each 
species' historic range, these habitat units include a significant 
proportion of the Cumberlandian Region's remaining highest-quality 
free-flowing rivers and streams, and reflect the variety of small-
stream-to-large-river habitats historically occupied by each species. 
Because mussels are naturally restricted by certain physical conditions 
within a stream or river reach (e.g., flow, substrate), they may be 
unevenly distributed within these habitat units. Uncertainty on 
upstream and downstream distributional limits of some populations may 
have resulted in small areas of occupied habitat excluded from, or 
areas of unoccupied habitat included in, the designation. Proposed 
critical habitat may be revised for any or all of these species should 
new information become available prior to the final rule, and existing 
critical habitat may be revised if new information becomes available 
after the final rule.

Need for Special Management Consideration or Protection

    An area designated as critical habitat contains one or more of the 
primary constituent elements that are essential to the conservation of 
the species (see ``Primary Constituent Elements'' section), and that 
may require special management considerations or protection. Various 
activities in or adjacent to each of the critical habitat units 
described in this proposed rule may affect one or more of the primary 
constituent elements that are found in the unit. These activities 
include, but are not limited to, those listed in the ``Effects of 
Critical Habitat'' section as ``Federal Actions That May Affect 
Critical Habitat and Require Consultation.'' None of the proposed 
critical habitat units is presently under special management or 
protection provided by a legally operative plan or agreement for the 
conservation of the five mussel species. Therefore, we have determined 
that the proposed units require special management or protection.

Proposed Critical Habitat Designation

    The areas that we are proposing for designation as critical habitat 
for the five mussels provide one or more of the primary constituent 
elements described above. Table 2 summarizes the location and extent of 
proposed critical habitat, and whether or not that critical habitat is 
currently occupied or unoccupied. These areas require special 
management considerations to ensure their contribution to the 
conservation of these mussels. For each stream reach proposed as a 
critical habitat unit, the up-stream and downstream boundaries are 
described in general detail below; more precise estimates are provided 
in the Regulation Promulgation section of this rule.

 Table 2*.--Approximate River Distances, by Drainage Area, for Occupied and Unoccupied Proposed Critical Habitat
                                     for the Five Endangered Mussel Species
----------------------------------------------------------------------------------------------------------------
                                                                  Approximate river         Approximate river
                                                                 distances currently       distances currently
                                                               occupied by the species      unoccupied by the
                           Species                           --------------------------          species
                                                                                       -------------------------
                                                                 River     River miles     River
                                                               kilometers                kilometers  River miles
----------------------------------------------------------------------------------------------------------------
Cumberland elktoe...........................................          204          128
Oyster mussel...............................................          511          322          119         74.5
Cumberlandian combshell.....................................          527          330           82           51
Purple bean.................................................          330          216          154           94
Rough rabbitsfoot...........................................          390        244.5           21           13
    Total...................................................         1962       1240.5          376       232.5
----------------------------------------------------------------------------------------------------------------
* Table 2 refers to the location and extent of proposed critical habitat for each species. For more detail,
  refer to Sec.   17.95


[[Page 33243]]


----------------------------------------------------------------------------------------------------------------
                                                                 Currently occupied       Currently unoccupied
              Species, Stream (Unit), and State              ---------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Cumberland elktoe:
    Rock Creek (Unit 8), KY.................................           11            7
    Big South Fork (Unit 9), TN, KY.........................           43           27
    North Fork White Oak Creek (Unit 9), TN.................           11            7
    New River (Unit 9), TN..................................         14.5            9
    Clear Fork (Unit 9), TN.................................           40           25
    White Oak Creek (Unit 9), TN............................           10            6
    Bone Camp Creek (Unit 9), TN............................            6            4
    Crooked Creek (Unit 9), TN..............................         14.5            9
    North Prong Clear Fork (Unit 9), TN.....................         14.5            9
    Sinking Creek (Unit 11), KY.............................           13            8
    Marsh Creek (Unit 12), KY...............................           19           12
    Laurel Fork (Unit 13), TN, KY...........................            8            5
                                                             --------------
        Total...............................................          204          128
=============================================================
Oyster mussel:
    Duck River (Unit 1), TN.................................           74           46
    Bear Creek (Unit 2), AL, MS.............................  ...........  ...........           40           25
    Powell River (Unit 4), TN, VA...........................          154           94
    Clinch River (Unit 5), TN, VA...........................          242          150
    Copper Creek (Unit 5), VA...............................  ...........  ...........           21           13
    Nolichucky River (Unit 6), TN...........................            8            5
    Big South Fork (Unit 9), TN, KY.........................           43           27
    Buck Creek (Unit 10), KY................................  ...........  ...........           58           36
                                                             --------------
        Total...............................................          511          322          119         74.5
=============================================================
Cumberlandian combshell:
    Duck River (Unit 1), TN.................................  ...........  ...........           74           46
    Bear Creek (Unit 2), AL, MS.............................           40           25
    Powell River (Unit 4), TN, VA...........................          154           94
    Clinch River (Unit 5), TN, VA...........................          242          148
    Nolichucky River (Unit 6), TN...........................  ...........  ...........            8            5
    Big South Fork (Unit 9), TN, KY.........................           43           27
    Buck Creek (Unit 10), KY................................           58           36
                                                             --------------
        Total...............................................          527          330           82           51
=============================================================
Purple bean:
    Obed River (Unit 3), TN.................................           40           25
    Powell River (Unit 4), TN, VA...........................  ...........  ...........          154           94
    Clinch River (Unit 5), TN, VA...........................          242          148
    Copper Creek (Unit 5), VA...............................           21           13
    Indian Creek (Unit 5), VA...............................            4          2.5
    Beech Creek (Unit 7), TN................................           23           14
                                                             --------------
        Total...............................................          330          216          154           94
=============================================================
Rough rabbitsfoot:
    Powell River (Unit 4), TN, VA...........................          154           94
    Clinch River (Unit 5), TN, VA...........................          242          148
    Copper Creek (Unit 5), VA...............................  ...........  ...........           21           13
    Indian Creek (Unit 5), VA...............................            4          2.5
        Total...............................................          390        244.5           21           13
----------------------------------------------------------------------------------------------------------------

Critical Habitat Unit Descriptions

    The critical habitat units described below include the stream and 
river channels within the ordinary high water line. As defined in 33 
CFR 329.11, the ordinary high water line on nontidal 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 proposing the following units for designation as critical 
habitat for these five mussels.

Unit 1. Duck River, Maury and Marshall Counties, Tennessee

    Unit 1 encompasses 74 rkm (46 rmi) of the mainstem of the Duck 
River channel from rkm 214 (rmi 133) (0.3 rkm (0.2 rmi) upstream of the 
First Street Bridge) in the City of Columbia, Maury County, Tennessee, 
upstream to Lillards Mill Dam at rkm 288 (rmi 179), Marshall County, 
Tennessee. This reach of the Duck River contains a robust, viable 
population of the oyster mussel (Ahlstedt 1991; Gordon 1991; S.A. 
Ahlstedt USGS, pers. comm. 2002) and historically supported the 
Cumberlandian combshell (Hinkley and Marsh 1885; Ortmann 1925; Isom and

[[Page 33244]]

Yokley 1968; van der Schalie 1973; Gordon 1991).

Unit 2. Bear Creek, Colbert County, Alabama, and Tishomingo County, 
Mississippi

    Unit 2 encompasses 40 rkm (25 rmi) of the mainstem of Bear Creek 
from the backwaters of Pickwick Lake at rkm 37 (rmi 23), Colbert 
County, Alabama, upstream through Tishomingo County, Mississippi, 
ending at the Mississippi/Alabama State line. Recent mussel surveys in 
the Mississippi section of Bear Creek confirmed that the Cumberlandian 
combshell is still extant there (R.M. Jones, MMNS, pers. comm. 2002), 
and continues to be present in the Colbert County, Alabama portion of 
the unit (Isom and Yokley 1968; Garner and McGregor, in press). Bear 
Creek is in the historical range of the oyster mussel (Ortmann 1925).

Unit 3. Obed River, Cumberland and Morgan Counties, Tennessee

    Unit 3 encompasses 40 rkm (25 rmi) and begins at the confluence of 
the Obed with the Emory River, Morgan County, Tennessee, and continues 
upstream to Adams Bridge, Cumberland County, Tennessee. This unit 
currently contains a population of the purple bean (Gordon 1991; S.A. 
Ahlstedt, USGS, pers. comm. 2002) and is also within designated 
critical habitat for the Federally listed spotfin chub (Erimonax 
monacha) (see ``Existing Critical Habitat'' and Table 3). Unit 3 is 
located within the Obed National Wild and Scenic River, a unit of the 
National Park Service, and the Catoosa Wildlife Management Area, which 
is owned by the Tennessee Wildlife Resources Agency.

Unit 4. Powell River, Claiborne and Hancock Counties, Tennessee, and 
Lee County, Virginia

    Unit 4 encompasses 154 rkm (94 rmi) and includes the Powell River 
from the U.S. 25E Bridge in Claiborne County, Tennessee, upstream to 
river mile 159 (upstream of Rock Island in the vicinity of Pughs) Lee 
County, Virginia. This reach is currently occupied by the Cumberlandian 
combshell (Ahlstedt 1991; Gordon 1991), rough rabbitsfoot (Service 
2003), and oyster mussel (Wolcott and Neves 1990), and was historically 
occupied by the purple bean (Ortmann 1918). It is also existing 
critical habitat for the Federally listed slender chub (Erimystax 
cahni) and yellowfin madtom (Noturus flavipinnis)(see ``Existing 
Critical Habitat'' and Table 3).

Unit 5. Clinch River and tributaries, Hancock County, Tennessee, and 
Scott, Russell, and Tazewell Counties, Virginia

    Unit 5 totals 272 rkm (171 rmi), including 242 rkm (148 rmi) of the 
Clinch River from rkm 255 (rmi 159) immediately below Grissom Island, 
Hancock County, Tennessee, upstream to its confluence with Indian Creek 
in Cedar Bluff, Tazewell County, Virginia; 4 rkm (2.5 rmi) of Indian 
Creek from its confluence with the Clinch River upstream to the fourth 
Norfolk Southern Railroad crossing at Van Dyke, Tazewell County, 
Virginia; and 21 rkm (13 rmi) of Copper Creek from its confluence with 
the Clinch River upstream to Virginia State Route 72, Scott County, 
Virginia. The Clinch mainstem currently contains the oyster mussel, 
rough rabbitsfoot, Cumberlandian combshell, and purple bean (Gordon 
1991; Ahlstedt and Tuberville 1997; S.A. Ahlstedt, USGS, pers. comm. 
2002). Indian Creek currently supports populations of the purple bean 
and rough rabbitsfoot (Winston and Neves 1997; Watson and Neves 1998). 
Copper Creek is currently occupied by a low density population of the 
purple bean, and contains historic records of both the oyster mussel 
and rough rabbitsfoot (Ahlstedt 1981; Fraley and Ahlstedt 2001; 
Ahlstedt, pers. comm. 2003). Copper Creek is critical habitat for the 
yellowfin madtom and a portion of the proposed Clinch River mainstem 
section is critical habitat for both the slender chub and the yellowfin 
madtom (see ``Existing Critical Habitat'' and Table 3).

Unit 6. Nolichucky River, Hamblen and Cocke Counties, Tennessee

    Unit 6 includes 8 rkm (5 rmi) of the mainstem of the Nolichucky 
River and extends from rkm 14 (rmi 9) (approximately 0.6 rkm (0.4 rmi) 
upstream of Enka Dam) to Susong Bridge in Hamblen, Cocke Counties, 
Tennessee. The Nolichucky River currently supports a small population 
of the oyster mussel (S.A. Ahlstedt, USGS, pers. comm. 2002) and was 
historically occupied by the Cumberlandian combshell (Gordon 1991).

Unit 7. Beech Creek, Hawkins County, Tennessee

    Unit 7 encompasses 23 rkm (14 rmi) and extends from rkm 4 (rmi 2) 
of Beech Creek (in the vicinity of Slide, Tennessee) upstream to the 
dismantled railroad bridge at rkm 27 (rmi 16). It supports the best 
remaining population of purple bean and the only remaining population 
of this species in the Holston River drainage (Ahlstedt 1991; S.A. 
Ahlstedt, USGS, pers. comm. 2002).

Unit 8. Rock Creek, McCreary County, Kentucky

    Unit 8 includes 11 rkm (7 rmi) of the mainstem of Rock Creek and 
begins at the Rock Creek/White Oak Creek confluence and extends 
upstream to Dolan Branch at rkm 18 (rmi 11) in McCreary County, 
Kentucky. This unit, which is bounded by the Daniel Boone National 
Forest and some private inholdings, is currently occupied by the 
Cumberland elktoe (Cicerello 1996).

Unit 9. Big South Fork and Tributaries, Fentress, Morgan, and Scott 
Counties, Tennessee, and McCreary County, Kentucky

    Unit 9 encompasses 153 rkm (95 rmi) and consists of 43 rkm (27 rmi) 
of the Big South Fork of the Cumberland River mainstem from its 
confluence with Laurel Crossing Branch (downstream of Big Shoals), 
McCreary County, Kentucky, upstream to its confluence with the New 
River and Clear Fork, Scott County, Tennessee; 11 rkm (7 rmi) of North 
Fork White Oak Creek from its confluence with the Big South Fork 
upstream to Panther Branch, Fentress County, Tennessee; 14.5 rkm (9 
rmi) of the New River from its confluence with Clear Fork upstream to 
U.S. Highway 27, Scott County, Tennessee; 40 rkm (25 rmi) of Clear Fork 
from its confluence with the New River upstream to its confluence with 
North Prong Clear Fork, Morgan, Fentress Counties, Tennessee; 10 rkm (6 
rmi) of White Oak Creek from its confluence with Clear Fork upstream to 
its confluence with Bone Camp Creek, Morgan County, Tennessee; 6 rkm (4 
rmi) of Bone Camp Creek from its confluence with White Oak Creek 
upstream to Massengale Branch, Morgan County, Tennessee; 14.5 rkm (9 
rmi) of Crooked Creek from its confluence with Clear Fork upstream to 
Buttermilk Branch, Fentress County, Tennessee; and 14.5 rkm (9 rmi) of 
North Prong Clear Fork from its confluence with Clear Fork upstream to 
Shoal Creek, Fentress County, Tennessee. The mainstem of the Big South 
Fork currently supports the Cumberland elktoe and the best remaining 
Cumberlandian combshell population in the Cumberland system (Bakaletz 
1991; Gordon 1991; R.R. Cicerello, Kentucky State Nature Preserves 
Commission (KSNPC), pers. comm. 2003). The mainstem of the Big South 
Fork also currently contains the oyster mussel (S.A. Ahlstedt, USGS, 
pers. comm. 2002; Service 2003). The remainder of the unit contains 
habitat currently occupied by the Cumberland elktoe (Call and Parmalee 
1981; Bakaletz 1991; Gordon 1991). The largest population of

[[Page 33245]]

Cumberland elktoe in Tennessee is in the headwaters of the Clear Fork 
system (Call and Parmalee 1981; Bakaletz 1991). The Big South Fork and 
its many tributaries may actually serve as habitat for one large 
interbreeding population of the Cumberland elktoe (Service 2003).

Unit 10. Buck Creek, Pulaski County, Kentucky

    Unit 10 encompasses 58 rkm (36 rmi) and includes Buck Creek from 
the State Route 192 Bridge upstream to the State Route 328 Bridge in 
Pulaski County, Kentucky. Buck Creek is currently occupied by the 
Cumberlandian combshell (Gordon 1991; Hagman 2000; R.R. Cicerello, 
KSNPC, pers. comm. 2003) and historically supported the oyster mussel 
(Schuster et al. 1989; Gordon 1991).

Unit 11. Sinking Creek, Laurel County, Kentucky

    Unit 11 encompasses 13 rkm (8 rmi) and extends from the Sinking 
Creek/Rockcastle River confluence upstream to Sinking Creek's 
confluence with Laurel Branch in Laurel County, Kentucky. This unit 
contains a strong population of Cumberland elktoe (R.R. Cicerello, 
KSNPC, pers. comm. 2002). This unit is primarily within land owned by 
the Daniel Boone National Forest, but also includes private lands.

Unit 12. Marsh Creek, McCreary County, Kentucky

    Unit 12 includes 24 rkm (15 rmi) and consists of Marsh Creek from 
its confluence with the Cumberland River upstream to the State Road 92 
bridge. This unit, which is bounded by lands owned by the Daniel Boone 
National Forest and private landowners, currently contains the State of 
Kentucky's best population of Cumberland elktoe (R.R. Cicerello, KSNPC, 
pers. comm. 2003) and the best remaining mussel fauna in the Cumberland 
River above Cumberland Falls (Cicerello and Laudermilk 2001).

Unit 13. Laurel Fork, Claiborne County, Tennessee, and Whitley County, 
Kentucky

    Unit 13 includes 8 rkm (5 rmi) of Laurel Fork of the Cumberland 
River from the Campbell/Claiborne County line upstream through 
Claiborne County, Tennessee to 11 rkm (6.85 rmi) in Whitley County, 
Kentucky. The upstream terminus is 2 river miles upstream of the 
Kentucky/Tennessee State line. A ``sporadic'' population of Cumberland 
elktoe currently persists in this area (Cicerello and Laudermilk 2001).

Existing Critical Habitat

    Approximately 206.5 miles (38 percent) of the proposed critical 
habitat for the five mussels (within three units) are already 
designated critical habitat for the yellowfin madtom, slender chub, or 
spotfin chub (Table 3). The spotfin chub, slender chub, and yellowfin 
madtom are listed as threatened species under the Act. Our consultation 
history on these existing critical habitat units is provided in the 
``Effects of Critical Habitat Designation Section.''

    Table 3.--Within Proposed Critical Habitat Designation for the Five Mussels, Reaches and Streams That Are
                    Currently Designated Critical Habitat for Other Federally Listed Species
----------------------------------------------------------------------------------------------------------------
                                                                                                      Length of
         Unit  (unit )                    Species                      Reference              overlap
                                                                                                       (km/mi)
----------------------------------------------------------------------------------------------------------------
Obed River (3).........................  spotfin chub..............  (42 FR 45527).................        40/25
Powell River (4).......................  yellowfin madtom, slender   (42 FR 45527).................       154/94
                                          chub.
Clinch River (5) (and Copper Creek)....  yellowfin madtom, slender   (42 FR 45527).................     142/87.5
                                          chub.
                                                                    ---------------------------------
    Total..............................  ..........................  ..............................    336/206.5
----------------------------------------------------------------------------------------------------------------

Land Ownership

    Streambeds of non-navigable waters and most navigable waters are 
owned by the riparian landowner. Waters of navigable streams are 
considered public waters by the States of Mississippi, Alabama, 
Tennessee, Kentucky, and Virginia. Table 4 summarizes primary riparian 
land ownership in each of the proposed units. Approximately 79 percent, 
671 rkm (418 rmi), of stream channels proposed as critical habitat are 
bordered by private lands.
    Public land adjacent to proposed critical habitat units consists of 
approximately 170 km (107 mi) of riparian lands, including the Obed 
Wild and Scenic River and the Catoosa Wildlife Management Area in the 
Obed River Unit (40 km (25 mi)); Daniel Boone National Forest in the 
Rock Creek, Sinking Creek, and Marsh Creek Units (30 km (19 mi)); and 
the Big South Fork National River and Recreation Area in the Big South 
Fork Unit (109 km (68 mi)).

 Table 4.--Adjacent Riparian Land Ownership in Proposed Critical Habitat
      Units (rkm/rmi) in the Tennessee and Cumberland River Basins
------------------------------------------------------------------------
          Critical habitat units             Private    State    Federal
------------------------------------------------------------------------
1. Duck River.............................     74/46  ........  ........
2. Bear Creek.............................     40/25  ........  ........
3. Obed River.............................  ........     32/20       8/5
4. Powell River...........................    154/94  ........  ........
5. Clinch River and tributaries...........   272/171  ........  ........
6. Nolichucky River.......................       8/5  ........  ........
7. Beech Creek............................     23/14  ........  ........
8. Rock Creek.............................      11/7  ........  ........
9. Big South Fork and tributaries.........     44/27  ........    109/68
10. Buck Creek............................     58/36  ........  ........
11. Sinking Creek.........................       8/5  ........       5/3
12. Marsh Creek...........................      10/6  ........      14/9

[[Page 33246]]

 
13. Laurel Fork...........................       8/5  ........  ........
                                           -----------
    Totals................................   689/434     32/20   170/107
------------------------------------------------------------------------

Effects of Critical Habitat Designation

ESA Section 7 Consultation

    The regulatory effects of a critical habitat designation under the 
Act are triggered through the provisions of section 7, which apply only 
to activities conducted, authorized, or funded by a Federal agency 
(Federal actions). Regulations implementing this interagency 
cooperation provision of the Act are codified at 50 CFR part 402. 
Individuals, organizations, States, local governments, and other non-
Federal entities are not affected by the designation of critical 
habitat unless their actions occur on Federal lands, require Federal 
authorization, or involve Federal funding.
    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. In our 
regulations at 50 CFR 402.02, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations 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.'' However, in a March 15, 2001, decision of the United 
States Court of Appeals for the Fifth Circuit (Sierra Club v. U.S. Fish 
and Wildlife Service et al., F.3d 434), the Court found our definition 
of destruction or adverse modification to be invalid. In response to 
this decision, we are reviewing the regulatory definition of adverse 
modification in relation to the conservation of the species.

Conference for Proposed Critical Habitat

    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to result in the destruction or adverse 
modification of proposed critical habitat. During a conference on the 
effects of a Federal action on proposed critical habitat, we make 
nonbinding recommendations on ways to minimize or avoid adverse effects 
of the action. We document these recommendations and any conclusions 
reached in a conference report provided to the Federal agency and to 
any applicant involved. Also, if we conduct a formal consultation 
during conference, we may adopt an opinion issued at the conclusion of 
the conference as our biological opinion when the critical habitat is 
designated by final rule, but only if new information or changes to the 
proposed Federal action would not significantly alter the content of 
the opinion.

Consultation for Designated Critical Habitat

    If a Federal action may affect a listed species or its designated 
critical habitat, the action agency must initiate consultation with us 
(50 CFR 402.14). Through this consultation, we would advise the agency 
whether the action would likely jeopardize the continued existence of 
the species or adversely modify its critical habitat, or both. The 
Services' Consultation Handbook states that the destruction or adverse 
modification analysis focuses on the entire critical habitat area 
designated unless the critical habitat rule identifies another basis 
for the analysis, such as discrete units or groups of units necessary 
for different life cycle phases or units representing distinctive 
habitat characteristics or gene pools, or units fulfilling essential 
geographic distribution requirements. The extent of the five mussels' 
decline, the fragmentation and isolation of their habitats, and 
continuing impacts upon their habitats, and the importance of every 
unit to the recovery of the species suggests that individual units or 
groups of units that are used by populations which fulfill essential 
geographic distribution requirements are the appropriate scale for the 
analysis. An action occurring only within a unit or group of units may 
appreciably reduce the value of the critical habitat for the recovery 
of the species and therefore result in a determination of adverse 
modification.
    When we issue a biological opinion that concludes that an action is 
likely to result in the destruction or adverse modification of critical 
habitat, we must provide reasonable and prudent alternatives to the 
action, if any are identifiable. Reasonable and prudent alternatives 
are actions identified during consultation that can be implemented in a 
manner consistent with the intended purpose of the proposed action, are 
consistent with the scope of the action agency's authority and 
jurisdiction, are economically and technologically feasible, and would 
likely avoid the destruction or adverse modification of critical 
habitat (50 CFR 402.02).

Reinitiation of Prior Consultations

    A Federal agency may request a conference with us for any 
previously reviewed action that is likely to destroy or adversely 
modify proposed critical habitat and over which the agency retains 
discretionary involvement or control, as described above under 
``Conference for Proposed Critical Habitat.'' Following designation of 
critical habitat, regulations at 50 CFR 402.16 require a Federal agency 
to reinitiate consultation for previously reviewed actions that may 
affect critical habitat and over which the agency has retained 
discretionary involvement or control.

Federal Actions That May Destroy or Adversely Modify Critical Habitat 
for the Five Mussels

    Section 4(b)(8) of the Act requires us, in any proposed or final 
rule designating critical habitat, to briefly describe and evaluate 
those activities that may adversely modify such habitat, or that may be 
affected by such designation.
    Federal actions that, when carried out, funded or authorized by a 
federal agency, may destroy or adversely modify critical habitat for 
the five mussels include, but are not limited to:
    (1) Actions that would alter the minimum flow or the existing flow 
regime to a degree that appreciably reduces the value of the critical 
habitat for both the long-term survival and recovery of the species. 
Such activities could include, but are not limited to, impoundment, 
channelization, water diversion, water withdrawal, and hydropower 
generation.
    (2) Actions that would significantly alter water chemistry or 
temperature to a degree that appreciably reduces the value of the 
critical habitat for both the long-term survival and recovery of the

[[Page 33247]]

species. Such activities could include, but are not limited to, release 
of chemicals, biological pollutants, or heated effluents into the 
surface water or connected groundwater at a point source or by 
dispersed release (non-point).
    (3) Actions that would significantly increase sediment deposition 
within the stream channel to a degree that appreciably reduces the 
value of the critical habitat for both the long-term survival and 
recovery of the species. Such activities could include, but are not 
limited to, excessive sedimentation from livestock grazing, road 
construction, channel alteration, timber harvest, off-road vehicle use, 
and other watershed and floodplain disturbances.
    (4) Actions that would significantly increase the filamentous algal 
community within the stream channel to a degree that appreciably 
reduces the value of the critical habitat for both the long-term 
survival and recovery of the species. Such activities could include, 
but are not limited to, release of nutrients into the surface water or 
connected groundwater at a point source or by dispersed release (non-
point).
    (5) Actions that would significantly alter channel morphology or 
geometry to a degree that appreciably reduces the value of the critical 
habitat for both the long-term survival and recovery of the species. 
Such activities could include but are not limited to channelization, 
impoundment, road and bridge construction, mining, dredging, and 
destruction of riparian vegetation.

Previous Section 7 Consultations

    We have consulted on over 100 Federal actions (or activities that 
required Federal permits) involving these 5 species since they received 
protection under the Act. Nine of these were formal consultations. 
Federal actions that we have reviewed include Federal land management 
plans, road and bridge construction and maintenance, water quality 
standards, recreational facility development, dam construction and 
operation, surface mining proposals, and issuance of permits under 
section 404 of the Clean Water Act. Federal agencies involved with 
these activities included the U.S. Army Corps of Engineers; Tennessee 
Valley Authority; U.S. Forest Service; Environmental Protection Agency; 
Office of Surface Mining, Reclamation and Enforcement; National Park 
Service; Federal Highway Administration; and the Service. The nine 
formal consultations that have been conducted all involved Federal 
projects, including five bridge replacements in Tennessee, Kentucky, 
and Virginia; two Federal land management plans; and the review of two 
scientific collecting permits for one or more of the five mussel 
species. None of these formal consultations resulted in a finding that 
the proposed action would jeopardize the continued existence of any of 
the five species or destroy or adversely modify existing critical 
habitat previously designated in the area.
    In each of the biological opinions resulting from these 
consultations, we included discretionary conservation recommendations 
to the action agency. Conservation recommendations are activities that 
would avoid or minimize the adverse effects of a proposed action on a 
listed species or its critical habitat, help implement recovery plans, 
or develop information useful to the species' conservation.
    Previous biological opinions also included nondiscretionary 
reasonable and prudent measures, with implementing terms and 
conditions, which are designed to minimize the proposed action's 
incidental take of these five mussels. Section 3(18) of the Act defines 
the term take as ``to harass, harm, pursue, hunt, shoot, wound, kill, 
trap, capture or collect, or to attempt to engage in any such 
conduct.'' Harm is further defined in our regulations (50 CFR 7.3) to 
include significant habitat modification or degradation that results in 
death or injury to listed species by significantly impairing essential 
behavioral patterns, including breeding, feeding, or sheltering.
    Conservation recommendations and reasonable and prudent measures 
provided in previous biological opinions for these mussels have 
included maintaining State water quality standards, maintaining 
adequate stream flow rates, minimization of work in the wetted channel, 
restriction of riparian clearing, monitoring of channel morphology and 
mussel populations, sign installation, protection of buffer zones, 
avoidance of pollution, cooperative planning efforts, minimization of 
ground disturbance, use of sediment barriers, use of best management 
practices to minimize erosion, mussel relocation from bridge pier 
footprints, and funding research useful for mussel conservation. In 
reviewing past formal consultations, we anticipate the need to 
reinitiate only one consultation on Federal actions as a result of this 
proposed designation. The Daniel Boone National Forest in Kentucky is 
in the process of finalizing their Forest Plan. The Forest Service may 
be required to revise this plan to account for proposed critical 
habitat designations in Rock Creek, Sinking Creek, and Marsh Creek.
    As mentioned in the ``Existing Critical Habitat'' section, 36 
percent of the areas proposed critical habitat is currently designated 
critical habitat for the spotfin chub, yellowfin madtom, or slender 
chub. We have conducted 56 informal consultations involving existing 
critical habitat for these fish in the areas proposed as critical 
habitat for the five mussels in the Obed River, Powell River, and 
Clinch River in Tennessee. All of these consultations involved both the 
potential adverse effects to the species and the potential adverse 
modification or destruction of critical habitat. These consultations, 
which were similar to consultations carried out for the five mussel 
species, primarily included utility lines, bridge replacements and 
reconstructions, gravel dredging, and an oil spill on Clear Creek (a 
tributary of the Obed River and designated critical habitat for the 
spotfin chub). We have consulted on seven projects that involved 
existing critical habitat for the yellowfin madtom and/or slender chub 
in Virginia. Three of these consultations were formal, involving 
projects like bridge crossing on the Clinch and Powell Rivers. None of 
these formal consultations resulted in a finding that the proposed 
activity would destroy or adversely modify existing critical habitat 
previously designated in the area.
    The designation of critical habitat for these five mussels will 
have no impact on private landowner activities that do not involve 
Federal funding or permits. Designation of critical habitat is only 
applicable to activities approved, funded, or carried out by Federal 
agencies.
    If you have questions regarding whether specific activities would 
constitute adverse modification of critical habitat, you may contact: 
Alabama--Daphne, FWS Ecological Services Office (251/441-5181); 
Kentucky--Frankfort, FWS Ecological Services Office (502/695-0468); 
Mississippi--Jackson, FWS Ecological Services Office (601/965-4900); 
Tennessee--Cookeville, FWS Ecological Services Office (931/528-6481); 
Virginia--Abingdon, FWS Ecological Services Office (276/623-1233).

Exclusions Under Section 4(b)(2)

    Section 4(b)(2) of the Act requires that we designate critical 
habitat on the basis of the best scientific data available, and after 
taking into consideration the economic and any other relevant impact of 
specifying any particular area as critical habitat. We may exclude 
areas from critical habitat if the benefits of

[[Page 33248]]

exclusion outweigh the benefits of designation, provided the exclusion 
will not result in the extinction of the species. Our preliminary 
analysis (discussed below) of the following three river reaches: the 
free-flowing reach of the French Broad River below Douglas Dam to its 
confluence with the Holston River, Sevier and Knox Counties, Tennessee; 
the free-flowing reach of the Holston River below Cherokee Dam to its 
confluence with the French Broad River, Jefferson, Grainger, and Knox 
Counties, Tennessee; and the free flowing reach of the Rockcastle River 
from the backwaters of Cumberland Lake upstream to Kentucky Route 1956 
Bridge, in Laurel, Rockcastle, and Pulaski Counties, Kentucky, finds 
that the benefits of excluding these areas from the designation of 
critical habitat for the oyster mussel and Cumberlandian combshell 
outweighs the benefits of including them. Therefore, on the basis of 
our analysis below, we are proposing to exclude these three river 
reaches from critical habitat.

Benefits of Inclusion

    The principal benefit of designating these portions of the lower 
French Broad, lower Holston, and Rockcastle Rivers as critical habitat 
would result from the requirement under section 7(a)(2) of the Act that 
Federal agencies consult with us to ensure that any actions that they 
fund, authorize, or carry out do not destroy or adversely modify 
critical habitat. No consultations have occurred for the oyster mussel 
and Cumberlandian combshell in these areas since they are not occupied 
by these two species. However, consultations are already occurring for 
other federally listed species, like the endangered pink mucket 
(Lampsilis abrupta) mussel (found in the Holston River), the threatened 
snail darter (Percina tanasi) (found in both the French Broad and 
Holston Rivers), and the Cumberland bean (Villosa trabalis) mussel 
(found in the Rockcastle River) in these areas. Even though these 
species do not have designated critical habitat, consultations 
evaluating impacts to the species would still take into consideration 
habitat and habitat impacts which may constitute take of the species. 
Projects that would adversely affect critical habitat for the 
Cumberlandian combshell and oyster mussel (if it were designated) would 
likely also trigger consultation with us under section 7 of the Act 
because of their potential to adversely affect the listed species 
already present. Thus, we find that the additional benefit through 
section 7 consultation due to designation of critical habitat for the 
oyster mussel and Cumberland combshell would be minimal.
    Since 1997, we have been involved in 25 consultations regarding the 
snail darter and pink mucket in the lower French Broad and Holston 
Rivers. Approximately 10 of these consultations have involved the 
Tennessee Valley Authority (TVA). TVA manages the dams upstream of the 
area on the lower French Broad and Holston Rivers, and issues permits 
for docks and recreational structures along these two river reaches. 
The TVA has improved water quality in the two subject reaches by 
instituting minimum flows for the protection of aquatic life and by 
increasing the dissolved oxygen content of the water. In a letter to us 
dated December 9, 1998, TVA expressed its support for mussel recovery 
efforts in the Tennessee Valley streams and tailwaters. TVA would 
likely be involved in consultations regarding critical habitat (if it 
were designated) on the Holston and French Broad Rivers. Because TVA is 
already working with us to improve water quality in the two subject 
reaches and below other dams in Tennessee, designation may reduce the 
success of these continued cooperative efforts.
    Similarly, the segment of the Rockcastle River is listed as a State 
Scenic River and designated as an ``Outstanding State Resource Water'' 
(OSRW) by the State of Kentucky because of the presence of federally 
protected species. OSRWs are given more consideration during the State 
environmental review process, and their designation provides some 
additional protections for streams from proposed development 
activities, all of which affords them increased recognition and 
additional protections under the State's environmental review process. 
Since 1994, we have had only 12 informal consultations on this stretch 
of the Rockcastle River, all involving the Cumberland bean. These 
consultations included a forest management plan for the Daniel Boone 
National Forest. Oyster mussels and Cumberlandian combshells placed 
into the Rockcastle River through NEP designations would be treated as 
species proposed for listing by the Forest Service, and therefore would 
still be considered during Federal management actions under section 7 
of the Act. Because this stretch has very little consultation history 
and possesses current protections from existing State designations and 
the presence of the Cumberland bean, the benefit that would be gained 
for the oyster mussel and Cumberlandian combshell through section 7 
protections provided by a critical habitat designation is relatively 
minor.
    The identification of habitat essential to the conservation of the 
species can provide some informational benefits to the public, State 
and local governments, scientific organizations, and Federal agencies, 
and may facilitate conservation efforts. However, we believe that there 
would be little additional informational benefit from including the 
lower Holston, lower French Broad River, and Rockcastle Rivers as 
critical habitat, because this proposal identifies all areas that are 
essential to the conservation of the species, regardless of whether all 
of these areas are designated as critical habitat. Consequently, we 
believe that informational benefits will be provided to the lower 
Holston, French Broad, and Rockcastle Rivers, even though these areas 
are not proposed as critical habitat.

Benefits of Exclusion

    Congress made significant changes to the Act, with the addition of 
section 10(j) in 1982, which provides for the designation of specific 
reintroduced populations of listed species as ``experimental 
populations.'' This section was designed to provide us with innovative 
means to introduce a listed species into unoccupied habitat within its 
historic range when doing so would foster the conservation and recovery 
of the species. Experimental populations provide us with a flexible, 
proactive means to meet recovery criteria while not alienating 
stakeholders, such as municipalities and landowners, whose cooperation 
is essential for eventual success of the reintroduced population.
    Section 10(j) increases our flexibility in managing an experimental 
population by allowing us to treat the population as threatened, 
regardless of the species' status elsewhere in its range. Threatened 
status gives us more discretion in developing and implementing 
management programs and special regulations for a population and allows 
us to develop any regulations we consider necessary to provide for the 
conservation of a threatened species. This flexibility allows us to 
manage the experimental population in a manner that will ensure that 
current and future land, water, or air uses and activities will not be 
unnecessarily restricted and the population can be managed for recovery 
purposes.
    When we designate a population as experimental, section 10(j) of 
the Act requires that we determine whether that population is either 
essential or nonessential to the continued existence

[[Page 33249]]

of the species, on the basis of the best available information. 
Nonessential experimental populations located outside the National 
Wildlife Refuge System or National Park System lands are treated, for 
the purposes of section 7 of the Act, as if they are proposed for 
listing, while on National Wildlife Refuges or National Parks the 
species is treated as threatened. Section 7(a)(2) of the Act, which 
requires Federal agencies to ensure that their activities are not 
likely to jeopardize the continued existence of a listed species, would 
not apply except on National Wildlife Refuge System and National Park 
System lands only. Experimental populations determined to be 
``essential'' to the survival of the species would remain subject to 
the consultation provisions of section 7(a)(2) of the Act.
    The flexibility gained by establishment of an experimental 
population through section 10(j) would be of little value if a 
designation of critical habitat overlaps it. This is because Federal 
agencies would still be required to consult with us on any actions that 
may adversely affect critical habitat. In effect, the flexibility 
gained from section 10(j) would be rendered useless by the designation 
of critical habitat. In fact, section 10(j)(2)(C)(ii) of the Act states 
that critical habitat shall not be designated under the Act for any 
experimental population determined to be not essential to the continued 
existence of a species.
    As mentioned above, the recovery strategy for the oyster mussel and 
Cumberlandian combshell outlined in the agency draft recovery plan 
requires the reestablishment/reintroduction of these two mussels into 
areas of their historic ranges. Because of their currently reduced and 
fragmented state, the mussels face enhanced threats and would never be 
able to repopulate these reaches naturally. We strongly believe that, 
in order to achieve recovery for these mussels, in accordance with the 
Service's Recovery Plan we would need the flexibility provided for in 
section 10(j) of the Act to help ensure the success of reestablishing 
these mussels in the specified areas of the lower French Broad, 
Rockcastle, and Holston Rivers which have been identified as having 
medium to high recovery potential. Use of section 10(j) is meant to 
encourage local cooperation through management flexibility. 
Nonessential experimental populations in certain areas are often our 
only mechanism to achieve recovery. We believe it is crucial for 
recovery of these two mussels that we have the support of the public in 
these three river reaches when we move forward in the reintroduction 
efforts required in our agency draft recovery plan. However, critical 
habitat is often viewed negatively by the public since it is not well 
understood and there are many misconceptions about how it affects 
private landowners (Patlis 2001).
    The specified areas in the lower Holston and French Broad Rivers 
represent years of planning and coordination between the Service, the 
State of Tennessee, TVA, and others to recover aquatic species and 
their habitat. We have cooperation and support from the State of 
Tennessee, TVA, and others in considering these areas an NEP. We 
continue to have extensive cooperation and support from these 
stakeholders in working towards aquatic species recovery in general in 
the Tennessee and Cumberland River Basins. Due to work done in large 
part by these agencies as well as by landowners, municipalities, and 
other stakeholders, we have collectively improved the water and habitat 
quality in these areas to the point where there are suitable 
reintroduction sites in certain areas for a host of listed species, 
including 1 federally listed, endangered, aquatic snail, 5 federally 
listed fishes (2 endangered and 3 threatened), and 14 additional 
federally listed, endangered, freshwater mussels. Designating these 2 
reaches as critical habitat could jeopardize the establishment and 
success of the reintroductions as well as this cooperative effort that 
we are considering for the Cumberlandian combshell and oyster mussel as 
well as these other species to achieve their recovery criteria.
    Similarly, the Rockcastle River contains a robust mussel community 
(Thompson 1985; Cicerello 1992) second only to the Big South Fork as 
the best remaining representation of preimpoundment (before the water 
was dammed) mussel fauna in the Cumberland River System (R.R. 
Cicerello, KSNPC, pers. comm. 2003). However, the oyster mussel and 
Cumberlandian combshell no longer occur in this river. We have worked 
for years with the Daniel Boone National Forest to protect the water 
quality and unique mussel community found in the Rockcastle River. 
Designating unoccupied critical habitat in the Rockcastle River would 
be viewed as an unnecessary regulatory intrusion into a cooperative 
relationship between our agencies. It would also likely be viewed 
negatively by local stakeholders, whose very support we need to effect 
the recovery of these rare mussel taxa by reintroducing them into 
suitable historic habitat found there.
    In summary, we believe that the benefits of excluding the lower 
French Broad, Rockcastle, and Holston Rivers areas outweigh the 
benefits of their inclusion as critical habitat. Including these areas 
may result in some benefit through additional consultations with 
Federal agencies whose activities may affect critical habitat. However, 
overall this benefit is minimal because of the presence of other listed 
species with similar habitat requirements which are, and will continue 
to be, considered in consultation. A proposed designation in these two 
river reaches would also provide little additional informational 
benefit to the public, State and governmental agencies, and others. On 
the other hand, an exclusion will greatly benefit the overall recovery 
of the oyster mussel and Cumberlandian combshell (as well as 20 other 
federally listed species) by allowing us to use the flexibility and 
greater public acceptance of section 10(j) of the Act to reestablish 
the oyster mussel and Cumberlandian combshell in other portions of 
their historic range where they no longer occur. We also believe that 
the exclusion of the specified areas in the lower French Broad, lower 
Holston, and Rockcastle Rivers will not lead to the extinction of these 
two mussels based on their occurrences in other river and stream 
stretches, and the cooperative partnerships in place for establishing 
these NEPs. We seek comment on our preliminary determination to exclude 
these areas from critical habitat.

Peer Review

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

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if

[[Page 33250]]

requested. Requests must be filed within 45 days of the date of this 
proposal. Such requests must be made in writing and should be addressed 
to the Field Supervisor, Tennessee Field Office (see ADDRESSES 
section). Written comments submitted during the comment period receive 
equal consideration with those comments presented at a public hearing. 
We will schedule public hearings on this proposal, if any are 
requested, and announce the dates, times, and places of those hearings 
in the Federal Register and local newspapers at least 15 days prior to 
the first hearing.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations/
notices that are easy to understand. We invite your comments on how to 
make proposed rules easier to understand, including answers to 
questions such as the following: (1) Are the requirements in the 
document clearly stated? (2) Does the proposed rule contain technical 
language or jargon that interferes with the clarity? (3) Does the 
format of the proposed rule (e.g., grouping and order of sections, use 
of headings, paragraphing) aid or reduce its clarity? (4) Is the 
description of the proposed rule in the ``Supplementary Information'' 
section of the preamble helpful in understanding the proposed rule? (5) 
What else could we do to make the proposed rule easier to understand?
    Send a copy of any comments that concern how we could make this 
notice easier to understand to: Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street, NW., Washington, 
DC 20240. You may e-mail your comments to this address: 
[email protected].

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is not a 
significant rule and, therefore, was not reviewed by the Office of 
Management and Budget (OMB). The Service is preparing a draft economic 
analysis of this proposed action, and will use this analysis to meet 
the requirement of section 4(b)(2) of the ESA to determine the economic 
consequences of designating the specific areas as critical habitat and 
excluding any area from critical habitat if it is determined that the 
benefits of such exclusion outweigh the benefits of specifying such 
areas as part of the critical habitat, unless failure to designate such 
area as critical habitat will lead to the extinction of any of these 
five mussels. We will make this analysis available for public comment 
before we finalize this designation.

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. SBREFA amended the 
Regulatory Flexibility Act (RFA) to require Federal agencies to provide 
a statement of the factual basis for certifying that the rule will not 
have a significant economic impact on a substantial number of small 
entities. SBREFA also amended the RFA to require a certification 
statement. We are hereby certifying that this proposed rule will not 
have a significant effect on a substantial number of small entities.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR 121.201). 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.
    SBREFA does not explicitly define either ``substantial number'' or 
``significant economic impact.'' Consequently, to assess whether a 
``substantial number'' of small entities is affected by this 
designation, this analysis considers the relative number of small 
entities likely to be impacted in the area. Similarly, the analysis 
considers the relative cost of compliance on the revenues/profit 
margins of small entities in determining whether or not entities incur 
a ``significant economic impact.'' Only small entities that are 
expected to be directly affected by the designation are considered in 
this portion of the analysis. This approach is consistent with several 
judicial opinions related to the scope of the RFA. (Mid-Tex Electric 
Co-Op, Inc. v. F.E.R.C. and American Trucking Associations, Inc. v. 
EPA).
    To determine if the rule would affect a substantial number of small 
entities, we considered the number of small entities affected within 
particular types of economic activities (e.g., housing development, 
grazing, oil and gas production, timber harvesting). We applied the 
``substantial number'' test individually to each industry to determine 
if certification is appropriate. In estimating the numbers of small 
entities potentially affected, we also considered whether their 
activities have any Federal involvement; some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation. Designation of critical habitat only 
affects activities conducted, funded, or permitted by Federal agencies; 
non-Federal activities are not affected by the designation. Federal 
agencies are already required to consult with the Services under 
section 7 of the Act on activities that they fund, permit, or implement 
that may affect the five mussels.
    If this critical habitat designation is finalized, Federal agencies 
must also consult with us if their activities may affect designated 
critical habitat. However, we believe this will result in only minimal 
additional regulatory burden on Federal agencies or their applicants 
because consultation would already be required because of the presence 
of the listed mussel species. Consultations to avoid the destruction or 
adverse modification of critical habitat would be incorporated into the 
existing consultation process and trigger only minimal additional 
regulatory impacts beyond the duty to avoid jeopardizing the species.
    Since the five mussels were listed (1997), we have conducted nine 
formal consultations involving one or more of these species. These 
formal consultations, which all involved Federal projects, included 
five bridge replacements, two Federal land management plans, an intra-
agency review of the Wilson Dam NEP and associated collecting permits, 
and an intra-agency review of collection

[[Page 33251]]

permits needed by researchers involved in endangered mussel 
propagation. These nine consultations resulted in non-jeopardy 
biological opinions.
    We also reviewed approximately 100 informal consultations that have 
been conducted since these 5 species were listed involving private 
businesses and industries, counties, cities, towns, or municipalities. 
At least 15 of these were with entities that likely met the definition 
of small entities. These informal consultations concerned activities 
such as excavation or fill, docking facilities, transmission lines, 
pipelines, mines, and road and utility development authorized by 
various Federal agencies, or review of National Pollution Discharge 
Elimination System permit applications to State water quality agencies 
by developers, municipalities, mines, businesses, and others. Informal 
consultations regarding the mussels usually resulted in recommendations 
to employ Best Management Practices for sediment control, relied on 
current State water quality standards for protection of water quality, 
and resulted in little to no modification of the proposed activities. 
In reviewing these past informal consultations and the activities 
involved in light of proposed critical habitat, we do not believe the 
outcomes would have been different in areas designated as critical 
habitat.
    In summary, we have considered whether this proposed designation 
would result in a significant economic impact on a substantial number 
of small entities and find that it would not. Informal consultations on 
approximately 100 activities in the Tennessee and Cumberland River 
Basins, by businesses and governmental jurisdictions that might affect 
these species and their habitats, resulted in little to no economic 
effect on small entities. In the 6 years since the five mussels were 
listed, there have been no formal consultations regarding actions by 
small entities. This does not meet the definition of ``substantial.'' 
In addition, we see no indication that the types of activities we 
review under section 7 of the Act will change significantly in the 
future. There would be no additional section 7 consultations resulting 
from this rule as all 13 of the proposed critical habitat units are 
currently occupied by one or more listed mussels, so the consultation 
requirement has already been triggered. Future consultations are not 
likely to affect a substantial number of small entities. This rule 
would result in major project modifications only when proposed 
activities with a Federal nexus would destroy or adversely modify 
critical habitat. While this may occur, it is not expected to occur 
frequently enough to affect a substantial number of small entities. 
Therefore, we are certifying that the proposed designation of critical 
habitat for these 5 mussels will not have a significant economic impact 
on a substantial number of small entities, and an initial regulatory 
flexibility analysis is not required. This determination will be 
revisited after the close of the comment period and revised, if 
necessary, in the final rule.
    This discussion is based upon the information regarding potential 
economic impact that is available to us at this time. This assessment 
of economic effect may be modified prior to final rulemaking based upon 
review of the draft economic analysis prepared pursuant to section 
4(b)(2) of the Act and Executive Order 12866. This analysis is for the 
purposes of compliance with the Regulatory Flexibility Act and does not 
reflect our position on the type of economic analysis required by New 
Mexico Cattle Growers Assn. v. U.S. Fish & Wildlife Service 248 F.3d 
1277 (10th Cir. 2001).

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2))

    In the draft economic analysis, we will determine whether 
designation of critical habitat will cause (a) any effect on the 
economy of $100 million or more; (b) any increases in costs or prices 
for consumers, individual industries, Federal, State, or local 
government agencies, or geographic regions; or (c) any significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or the ability of U.S.-based enterprises to compete with 
foreign-based enterprises.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This rule is not a 
significant regulatory action under Executive Order 12866, and it is 
not expected to significantly affect energy supplies, distribution, or 
use. Therefore, this action is not a significant energy action, 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.), the Service will use the economic analysis to further 
evaluate this rule's effect on nonfederal governments.

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
proposing to designate approximately 544 rmi in 13 river and stream 
reaches in Alabama, Mississippi, Tennessee, Kentucky, and Virginia. 
This preliminary assessment concludes that this proposed rule does not 
pose significant takings implications. However, we have not yet 
completed the economic analysis for this proposed rule. Once the 
economic analysis is available, we will review and revise this 
preliminary assessment as warranted.

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 policies, the 
Service requested information from, and coordinated development of this 
critical habitat proposal with, appropriate State resource agencies in 
Mississippi, Alabama, Tennessee, Kentucky, and Virginia. The 
designation of critical habitat for these five species imposes no 
additional restrictions to those currently in place, and, therefore, 
has little additional impact on State and local governments and their 
activities. The designation may provide some benefit to these 
governments in that the areas essential to the conservation of the 
species are more clearly defined, and the primary constituent elements 
of the habitat necessary to the conservation of the species are 
specifically identified. While this definition and this identification 
do not alter where and what federally sponsored activities may occur, 
they may assist these local governments in long-range planning, rather 
than leaving them to wait for case-by-case section 7 consultations to 
occur.

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system, and that it meets the requirements of sections 3(a) 
and 3(b)(2) of the Order. We are proposing to designate critical 
habitat in accordance with the provisions of the Act. 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 of the five mussel species.

[[Page 33252]]

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

    This proposed rule does not contain new or revised information 
collection for which Office of Management and Budget approval is 
required under the Paperwork Reduction Act. Information collections 
associated with certain Act permits are covered by an existing OMB 
approval and are assigned clearance No. 1018-0094, Forms 3-200-55 and 
3-200-56, with an expiration date of July 31, 2004. Detailed 
information for Act documentation appears at 50 CFR part 17. The 
Service 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 (NEPA)

    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 (NEPA) in connection with 
regulations adopted pursuant to section 4(a) of the Act. We published a 
notice outlining our reasons for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. We have determined that 
there are no Tribal lands essential for the conservation of these five 
mussels. Therefore, designation of critical habitat for the five 
mussels has not been proposed on Tribal lands.

References Cited

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

Author

    The primary author of this notice is Rob Tawes (931/528-6481, 
extension 213) (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    For the reasons outlined in the preamble, we propose to amend part 
17, subchapter B of chapter I, title 50 of the Code of Federal 
Regulations, as follows:

PART 17--[AMENDED]

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

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

    2. In Sec.  17.11(h), revise each of the entries here, listed in 
alphabetical order under ``CLAMS'' in the List of Endangered and 
Threatened Wildlife, so that they read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                     Vertebrate
--------------------------------------------------------                         population where                                   Critical    Special
                                                            Historic range         endangered or         Status      When listed    habitat      rules
           Common name                Scientific name                               threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              CLAMS
 
 
                                                                      * * * * * * *
Bean, Purple.....................  Villosa perpurpurea.  U.S.A. (TN, VA).....  NA..................  E                       602     17.95(f)         NA
 
                                                                      * * * * * * *
Combshell, Cumberlandian.........  Epioblasma brevidens  U.S.A. (AL, KY, MS,   NA..................  E                       602     17.95(f)         NA
                                                          TN, VA).
 
                                                                      * * * * * * *
Elktoe, Cumberland...............  Alasmidonta           U.S.A. (KY, TN).....  NA..................  E                       602     17.95(f)         NA
                                    atropurpurea.
 
                                                                      * * * * * * *
Mussel, oyster...................  Epioblasma            U.S.A. (AL, GA, KY,   NA..................  E                       602     17.95(f)         NA
                                    capsaeformis.         MS, NC, TN, VA).
 
                                                                      * * * * * * *
Rabbitsfoot, rough...............  Quadrula cylindrica   U.S.A. (TN, VA).....  NA..................  E                       602     17.95(f)         NA
                                    strigillata.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. In Sec.  17.95, at the end of paragraph (f), add an entry for 
five Cumberland and Tennessee River Basin mussels species to read as 
follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (f) Clams and snails.
* * * * *
    Five Tennessee and Cumberland River Basin mussels species: Purple 
bean (Villosa perpurpurea), Cumberlandian combshell (Epioblasma 
brevidens), Cumberland elktoe (Alasmidonta atropurpurea), oyster mussel 
(Epioblasma capsaeformis), and rough rabbitsfoot (Quadrula cylindrica 
strigillata).
    (1) Primary constituent elements.
    (i) The primary constituent elements essential for the conservation 
of the

[[Page 33253]]

purple bean (Villosa perpurpurea), Cumberlandian combshell (Epioblasma 
brevidens), Cumberland elktoe (Alasmidonta atropurpurea), oyster mussel 
(Epioblasma capsaeformis), and rough rabbitsfoot (Quadrula cylindrica 
strigillata) are those habitat components that support feeding, 
sheltering, reproduction, and physical features for maintaining the 
natural processes that support these habitat components. The primary 
constituent elements include:
    (A) Permanent, flowing stream reaches with a flow regime (i.e, the 
magnitude, frequency, duration, and seasonality of discharge over time) 
necessary for normal behavior, growth, and survival of all life stages 
of the five mussels and their host fish;
    (B) Geomorphically stable stream and river channels and banks;
    (C) Stable substrates consisting of mud, sand, gravel, and/or 
cobble/boulder, with low amounts of fine sediments or attached 
filamentous algae;
    (D) Water quality (including temperature, turbidity, oxygen 
content, and other characteristics) necessary for the normal behavior, 
growth, and survival of all life stages of the five mussels and their 
host fish; and
    (E) Fish hosts with adequate living, foraging, and spawning areas.
    (ii) [Reserved]
    (2) Critical habitat unit descriptions and maps.
    (i) Index map. The index map showing critical habitat units in the 
States of Mississippi, Alabama, Tennessee, Kentucky, and Virginia for 
the five Tennessee and Cumberland River Basin mussels follows:
[GRAPHIC] [TIFF OMITTED] TP03JN03.000

    (ii) Table of protected species and critical habitat units. A table 
listing the protected species, their respective critical habitat units, 
and the States that contain those habitat units follows. Detailed 
critical habitat unit descriptions and maps appear below the table.

 Table of Five Tennessee and Cumberland River Basin Mussels, Their Critical Habitat Units, and States Containing
                                          Those Critical Habitat Units
----------------------------------------------------------------------------------------------------------------
                 Species                      Critical habitat units                      States
----------------------------------------------------------------------------------------------------------------
Purple bean, (Villosa perpurpurea).......  Units 3, 4, 5, 7............  TN, VA.
Cumberlandian combshell, (Epioblasma       Units 1, 2, 4, 5, 6, 9, 10..  AL, KY, MS, TN, VA.
 brevidens).

[[Page 33254]]

 
Cumberland elktoe, (Alasmidonta            Units 8, 9, 11, 12, 13......  KY, TN.
 atropurpurea).
Oyster mussel, (Epioblasma capsaeformis).  Units 1, 2, 4, 5, 6, 9, 10..  AL, KY, MS, TN, VA.
Rough rabbitsfoot (Quadrula cylindrica     Units 4, 5..................  TN, VA.
 strigillata).
----------------------------------------------------------------------------------------------------------------

    (iii) Unit 1. Duck River, Marshall and Maury Counties, Tennessee. 
This is a critical habitat unit for the oyster mussel and Cumberlandian 
combshell.
    (A) Unit 1 includes the mainstem of the Duck River from rkm 214 
(rmi 133) (0.3 rkm (0.2 rmi) upstream of the First Street Bridge) (-
87.03 longitude, 35.63 latitude) in the City of Columbia, Maury County, 
Tennessee, upstream to Lillards Mill Dam at rkm 288 (rmi 179) (-86.78 
longitude, 35.58 latitude), Marshall County, Tennessee.
    (B) Map of Unit 1 follows:

[[Page 33255]]

[GRAPHIC] [TIFF OMITTED] TP03JN03.001

    (iv) Unit 2. Bear Creek, Colbert County, Alabama, and Tishomingo 
County, Mississippi. This is a critical habitat unit for the oyster 
mussel and Cumberlandian combshell.

[[Page 33256]]

    (A) Unit 2 consists of the mainstem of Bear Creek from the 
backwaters of Pickwick Lake at rkm 37 (rmi 23) (-88.09 longitude, 34.81 
latitude), Colbert County, Alabama, upstream through Tishomingo County, 
Mississippi, ending at the Mississippi/Alabama state line.
    (B) Map of Unit 2 follows:

[[Page 33257]]

[GRAPHIC] [TIFF OMITTED] TP03JN03.002


[[Page 33258]]


    (v) Unit 3. Obed River, Cumberland and Morgan Counties, Tennessee. 
This is a critical habitat unit for the purple bean.
    (A) Unit 3 includes the Obed River mainstem from its confluence 
with the Emory River (-84.69 longitude, 36.09 latitude), Morgan County, 
Tennessee, upstream to Adams Bridge, Cumberland County, Tennessee (-
84.95 longitude, 36.07 latitude).
    (B) Map of Unit 3 follows:

[[Page 33259]]

[GRAPHIC] [TIFF OMITTED] TP03JN03.003


[[Page 33260]]


    (vi) Unit 4. Powell River, Claiborne and Hancock Counties, 
Tennessee, and Lee County, Virginia. This is a critical habitat unit 
for the purple bean, Cumberlandian combshell, oyster mussel, and rough 
rabbitsfoot.
    (A) Unit 4 includes the mainstem of the Powell River from the U.S. 
25E bridge in Claiborne County, Tennessee (-83.63 longitude, 36.53 
latitude), upstream to river mile 159 (upstream of Rock Island in the 
vicinity of Pughs) Lee County, Virginia.
    (B) Map of Unit 4 follows:

[[Page 33261]]

[GRAPHIC] [TIFF OMITTED] TP03JN03.004


[[Page 33262]]


    (vii) Unit 5. Clinch River, Hancock County, Tennessee, and Scott, 
Russell, and Tazewell Counties, Virginia; Copper Creek, Scott County, 
Virginia; and Indian Creek, Tazewell County, Virginia. This is a 
critical habitat unit for the purple bean, Cumberlandian combshell, 
oyster mussel, and rough rabbitsfoot.
    (A) Unit 5 includes the Clinch River mainstem from rkm 255 (rmi 
159) (-83.36 longitude, 36.43 latitude) immediately below Grissom 
Island, Hancock County, Tennessee, upstream to its confluence with 
Indian Creek in Cedar Bluff, Tazewell County, Virginia (-81.80 
longitude, 37.10 latitude); Copper Creek in Scott County, Virginia, 
from its confluence with the Clinch River (-82.74 longitude, 36.67 
latitude) upstream to Virginia State Route 72 (-82.56 longitude, 36.68 
latitude); and Indian Creek from its confluence with the Clinch River 
upstream to the fourth Norfolk Southern Railroad crossing at Van Dyke, 
Tazewell County, Virginia (-81.77 longitude, 37.14 latitude).
    (B) Map of Unit 5 follows:

[[Page 33263]]

[GRAPHIC] [TIFF OMITTED] TP03JN03.005

    (viii) Unit 6. Nolichucky River, Hamblen and Cocke Counties, 
Tennessee. This is a critical habitat unit for the Cumberlandian 
combshell and oyster mussel.

[[Page 33264]]

    (A) Unit 6 consists of the mainstem of the Nolichucky River from 
rkm 14 (rmi 9) (-83.18 longitude, 36.18 latitude) (approximately 0.6 
rkm (0.4 rmi) upstream of Enka Dam) upstream to Susong Bridge (-83.20 
longitude, 36.14 latitude) in Hamblen and Cocke Counties, Tennessee.
    (B) Map of Unit 6 follows:

[[Page 33265]]

[GRAPHIC] [TIFF OMITTED] TP03JN03.006


[[Page 33266]]


    (ix) Unit 7. Beech Creek, Hawkins County, Tennessee. This is a 
critical habitat unit for the purple bean.
    (A) Unit 7 includes the Beech Creek mainstem from rkm 4 (rmi 2) (-
82.92 longitude, 36.40 latitude) of Beech Creek (in the vicinity of 
Slide, Tennessee) upstream to the dismantled railroad bridge at rkm 27 
(rmi 16) (-82.77 longitude, 36.40 latitude).
    (B) Map of Unit 7 follows:

[[Page 33267]]

[GRAPHIC] [TIFF OMITTED] TP03JN03.007


[[Page 33268]]


    (x) Unit 8. Rock Creek, McCreary County, Kentucky. This is a 
critical habitat unit for the Cumberland elktoe.
    (A) Unit 8 includes the mainstem of Rock Creek from its confluence 
with White Oak Creek (-84.59 longitude, 36.71 latitude), upstream to 
Sinking Creek rkm 18 (rmi 11) (-84.69 longitude, 36.65 latitude), 
McCreary County, Kentucky.
    (B) Map of Unit 8 follows:

[[Page 33269]]

[GRAPHIC] [TIFF OMITTED] TP03JN03.008

    (xi) Unit 9. Big South Fork of the Cumberland River and its 
tributaries, Fentress, Morgan, and Scott Counties, Tennessee, and 
McCreary County, Kentucky. This is a critical habitat unit

[[Page 33270]]

for the Cumberlandian combshell, Cumberland elktoe, and oyster mussel.
    (A) Unit 9 consists of the Big South Fork of the Cumberland River 
mainstem from its confluence with Laurel Crossing Branch (-84.54 
longitude, 36.64 latitude), McCreary County, Kentucky, upstream to its 
confluence with the New River and Clear Fork, Scott County, Tennessee; 
North White Oak Creek from its confluence with the Big South Fork 
upstream to Panther Branch (-84.75 longitude, 36.42 latitude), Fentress 
County, Tennessee; New River from its confluence with Clear Fork 
upstream to U.S. Highway 27 (-84.55 longitude, 36.38 latitude), Scott 
County, Tennessee; Clear Fork from its confluence with the New River 
upstream to its confluence with North Prong Clear Fork, Morgan and 
Fentress Counties, Tennessee; White Oak Creek from its confluence with 
Clear Fork upstream to its confluence with Bone Camp Creek, Morgan 
County, Tennessee; Bone Camp Creek from its confluence with White Oak 
Creek upstream to Massengale Branch (-84.71 longitude, 36.28 latitude), 
Morgan County, Tennessee; Crooked Creek from its confluence with Clear 
Fork upstream to Buttermilk Branch (-84.92 longitude, 36.36 latitude), 
Fentress County, Tennessee; and North Prong Clear Fork from its 
confluence with Clear Fork upstream to Shoal Creek (-84.97 longitude, 
36.26 latitude), Fentress County, Tennessee.
    (B) Maps of Unit 9 follow:

[[Page 33271]]

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[[Page 33272]]


[GRAPHIC] [TIFF OMITTED] TP03JN03.010


[[Page 33273]]


[GRAPHIC] [TIFF OMITTED] TP03JN03.011


[[Page 33274]]


    (xii) Unit 10. Buck Creek, Pulaski County, Kentucky. This is a 
critical habitat unit for the Cumberlandian combshell and oyster 
mussel.
    (A) Unit 10 includes the Buck Creek mainstem from the State Road 
192 Bridge (-84.43 longitude, 37.06 latitude) upstream to the State 
Road 328 Bridge (-84.56 longitude, 37.32 latitude) in Pulaski County, 
Kentucky.
    (B) Map of Unit 10 follows:

[[Page 33275]]

[GRAPHIC] [TIFF OMITTED] TP03JN03.012


[[Page 33276]]


    (xiii) Unit 11. Sinking Creek, Laurel County, Kentucky. This is a 
critical habitat unit for the Cumberland elktoe.
    (A) Unit 11 includes the mainstem of Sinking Creek from its 
confluence with the Rockcastle River (-84.28 longitude, 37.10 latitude) 
upstream to its confluence with Laurel Branch (-84.17 longitude, 37.09 
latitude) in Laurel County, Kentucky.
    (B) Map of Unit 11 follows:

[[Page 33277]]

[GRAPHIC] [TIFF OMITTED] TP03JN03.013


[[Page 33278]]


    (xiv) Unit 12. Marsh Creek, McCreary County, Kentucky. This is a 
critical habitat unit for the Cumberland elktoe.
    (A) Unit 12 includes the Marsh Creek mainstem from its confluence 
with the Cumberland River (-84.35 longitude, 36.78 latitude) upstream 
to State Road 92 bridge (-84.35 longitude, 36.66 latitude) in McCreary 
County, Kentucky.
    (B) Map of Unit 12 follows:

[[Page 33279]]

[GRAPHIC] [TIFF OMITTED] TP03JN03.014


[[Page 33280]]


    (xv) Unit 13. Laurel Fork, Claiborne County, Tennessee, and Whitley 
County, Kentucky. This is a critical habitat unit for the Cumberland 
elktoe.
    (A) Unit 13 includes the mainstem of the Laurel Fork of the 
Cumberland River from the boundary between Claiborne and Campbell 
Counties (-84.00 longitude, 36.58 latitude) upstream to rkm 11 (rmi 
6.85) in Whitley County, Kentucky. The upstream terminus is 2 river 
miles upstream of the Kentucky/Tennessee State line (-84.00 longitude, 
36.60 latitude).
    (B) Map of Unit 13 follows:

[[Page 33281]]

[GRAPHIC] [TIFF OMITTED] TP03JN03.015


[[Page 33282]]


* * * * *

    Dated: May 19, 2003.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 03-12944 Filed 6-2-03; 8:45 am]
BILLING CODE 4310-55-P