[Federal Register Volume 69, Number 126 (Thursday, July 1, 2004)]
[Rules and Regulations]
[Pages 40084-40171]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14279]



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Part III





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for Three Threatened Mussels and Eight Endangered Mussels in 
the Mobile River Basin; Final Rule

  Federal Register / Vol. 69, No. 126 / Thursday, July 1, 2004 / Rules 
and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI73


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Three Threatened Mussels and Eight Endangered 
Mussels in the Mobile River Basin

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 26 
river and stream segments (units) in the Mobile River Basin, 
encompassing a total of approximately 1,760 kilometers (km) (1,093 
miles (mi)) of river and stream channels, as critical habitat for three 
threatened (fine-lined pocketbook, orange-nacre mucket, and Alabama 
moccasinshell) and eight endangered freshwater mussels (Coosa 
moccasinshell, ovate clubshell, southern clubshell, dark pigtoe, 
southern pigtoe, triangular kidneyshell, southern acornshell, and 
upland combshell), under the Endangered Species Act of 1973, as amended 
(Act). Critical habitat includes portions of the Tombigbee River 
drainage in Mississippi and Alabama; portions of the Black Warrior 
River drainage in Alabama; portions of the Alabama River drainage in 
Alabama; portions of the Cahaba River drainage in Alabama; portions of 
the Tallapoosa River drainage in Alabama and Georgia; and portions of 
the Coosa River drainage in Alabama, Georgia, and Tennessee. We 
solicited data and comments from the public on all aspects of this 
designation, including data on economic and other impacts of the 
designation. This publication also provides notice of the availability 
of the final economic analysis for this designation.

DATES: This rule is effective August 2, 2004.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are available 
for public inspection, by appointment, during normal business hours at 
the Mississippi Ecological Services Field Office, U.S. Fish and 
Wildlife Service, 6578 Dogwood View Parkway, Suite A, Jackson, MS 
39213.
    You may obtain copies of the final rule or the economic analysis 
from the address above, by calling 601/965-4900, or from our Web site 
at http://southeast.fws.gov/hotissue.
    If you would like copies of the regulations on listed wildlife or 
have questions about prohibitions and permits, please contact the 
appropriate State Ecological Services Field Office: Alabama Field 
Office, U.S. Fish and Wildlife Service, PO Box 1190, Daphne, AL 36526 
(telephone 251-441-5181); Georgia Field Office, USFWS, 247 South 
Milledge Ave., Athens, GA 30605 (706-613-9493); Mississippi Field 
Office (see ADDRESSES section above); Tennessee Field Office, USFWS, 
446 Neal Street, Cookeville, TN 38501 (931-528-6481).

FOR FURTHER INFORMATION CONTACT: Paul Hartfield, Mississippi Field 
Office (telephone 601-321-1125, facsimile 601-965-4340).

SUPPLEMENTARY INFORMATION:

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 significant amounts 
of available conservation resources. The Service's 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 and the courts rather than biology, 
limits our ability to fully evaluate the science involved, consumes 
enormous agency resources, and imposes huge social and economic costs. 
The Service believes that additional agency discretion would allow our 
focus to return 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) 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 446 or 36 percent of the 
1252 listed species in the U.S. under the jurisdiction of the Service 
have designated critical habitat. We address the habitat needs of all 
1,244 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 it is these measures that may make the 
difference between extinction and survival for many species.

Procedural and Resource Difficulties in Designating Critical Habitat

    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 all significantly delayed.
    The accelerated schedules of court ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to 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 the 
National

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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

    This final rule addresses 11 mussels in the family Unionidae that 
are native to the Mobile River Basin, including the threatened fine-
lined pocketbook (Lampsilis altilis), orange-nacre mucket (Lampsilis 
perovalis), and Alabama moccasinshell (Medionidus acutissimus), and the 
endangered Coosa moccasinshell (Medionidus parvulus), southern 
clubshell (Pleurobema decisum), dark pigtoe (Pleurobema furvum), 
southern pigtoe (Pleurobema georgianum), ovate clubshell (Pleurobema 
perovatum), triangular kidneyshell (Ptychobranchus greenii), upland 
combshell (Epioblasma metastriata), and southern acornshell (Epioblasma 
othcaloogensis). It is our intent, in this final rule, to discuss 
information obtained since the proposed critical habitat designation. 
Please refer to our proposed critical habitat rule (68 FR 14752, March 
26, 2003) for a more detailed discussion of the species' taxonomic 
history, physical description, and our current understanding of their 
historic and current range and distribution.

Summary of Factors Affecting the Species

    Please refer to our proposed rule (68 FR 14752, March 26, 2003) for 
a discussion of Factors Affecting the Species for all 11 mussels. We 
have included here where appropriate only new information for these 
mussels.
    Limited habitat and small population size also render these 11 
species vulnerable to competition or predation from nonnative species 
(Neves et al., 1997). The Asian clam, Corbicula fluminea, has invaded 
all major drainages of the Mobile River Basin, however, little is known 
of the effects of competitive interaction between Asian clams and 
native species. Decline and even disappearance of native mussels due to 
competition with the exotic zebra mussel (Dreissena polymorpha) and the 
quagga mussel (D. bugensis) have been documented in the Great Lakes and 
Mississippi River Basin (Neves et al., 1997). Although zebra and quagga 
mussels are not currently known to inhabit the Mobile Basin, the 
Tennessee-Tombigbee Waterway and commercial and recreational boating 
offer an avenue of introduction. Another potential threat is the black 
carp (Mylopharyngodon piceus), a mollusk-eating Asian fish used to 
control snails in commercial fish farms. If introduced or established 
in the Mobile River Basin, the black carp is likely to have a 
considerable impact on native freshwater mussels and snails (67 FR 
49280, July 30, 2002).

Previous Federal Actions

    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 
determinable findings regarding critical habitat for 9 of the 11 Mobile 
River Basin listed mussels. On November 8, 2001, the District Court 
issued an order directing us to make a proposed critical habitat 
designation for these 11 Mobile River Basin mussels no later than March 
17, 2003, and the final designation by March 17, 2004. The District 
Court later extended our deadline on January 8, 2004 to submit the 
final rule to the Office of the Federal Register not later than June 
17, 2004.
    Other Federal actions for these species prior to March 26, 2003, 
are outlined in our proposed rule to designate critical habitat for 11 
Mobile River Basin mussels (68 FR 14752). Publication of the proposed 
rule opened a 60-day comment period, which closed on June 24, 2003. The 
comment period was reopened August 14, 2003, through October 14, 2003, 
in order to receive comments on a draft economic analysis (DEA), and to 
extend the comment period on the proposed designation to accommodate a 
public hearing, which was held October 1, 2003, in Birmingham, Alabama 
(68 FR 48581).
    Following closure of the second comment period on October 14, 2003, 
we became aware that we had not directly notified four of the counties 
affected by the proposed critical habitat designation, as required 
under section 4(b)(5) of the Act. We notified the counties and provided 
them copies of the proposed designation and information on the DEA on 
December 12, 2003. On January 13, 2004, we reopened the comment period 
through January 23, 2004, to receive comments from the counties and 
other interested parties (69 FR 1960).

Summary of Comments and Recommendations

    During the open comment periods for the proposed rule (68 FR 
14752), public hearing and draft economic analysis (68 FR 48581), and 
the January 2004 reopening (69 FR 1960), we requested all interested 
parties to submit comments or information concerning the proposed 
designation of critical habitat for the 11 mussels. We contacted all 
appropriate State and Federal agencies, county governments, elected 
officials, scientific organizations, and other interested parties and 
invited them to comment. We also published newspaper notices inviting 
public comment in the following newspapers: The Clarion-Ledger, 
Jackson, MS; The Commercial Dispatch, Columbus, MS; The Montgomery 
Advertiser, Montgomery, AL; The Birmingham News, Birmingham, AL; The 
Clay Times-Journal, Lineville, AL; The Rome News-Tribune, Rome, GA; The 
Times Georgian, Carolton, GA; The Haralson Gateway Beacon, Bremen, GA; 
The Douglas County Sentinel, Douglasville, GA; The Cleveland Daily 
Banner, Cleveland, TN; and The Chattanooga Times Free Press, 
Chattanooga, TN.
    At the public hearing, we received eight oral comments, including 
three supporting the designation and five opposing it. A transcript of 
the hearing is available for inspection (see ADDRESSES section). During 
the comment periods, we received comments from two State agencies, two 
counties, four cities, three Federal agencies, one business, 12 groups, 
and 43 individuals. Of the 90 written comments we received, 37 
supported critical habitat designation, 47 opposed designation, and 6 
were neutral or provided additional information.
    We directly notified and requested comments from all affected 
States. Georgia Department of Natural Resources submitted comments in 
support of the designation. The Tombigbee River Valley Water Management 
District, an agency of the State of Mississippi, opposed designation of 
units in northeastern Mississippi. The States of Alabama and Tennessee 
expressed no position.

Peer Review

    In accordance with our peer review policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we requested the expert 
opinions of four independent specialists who are recognized authorities 
on freshwater mussels and the Mobile River Basin regarding pertinent 
scientific or commercial data and assumptions relating to the 
supporting biological and ecological information in the proposed 
designation. The purpose of such review is to ensure that the 
designation is based on scientifically sound data, assumptions, and 
analyses, including input of appropriate experts and

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specialists. All four experts submitted written responses that the 
proposal included a thorough and accurate review of the available 
scientific and commercial data on these mussels and their habitats. One 
peer reviewer supplied several specific edits and additional records. 
Comments from peer reviewers are included in the summary below and have 
been incorporated into this final rule.
    We reviewed all comments received for substantive issues and new 
data regarding the mussels and critical habitat, and the draft economic 
analysis. Written comments and oral statements presented at the public 
hearing and received during the comment periods are addressed in the 
following summary. For readers' convenience, we have assigned comments 
to major issue categories and we have combined similar comments into 
single comments and responses.

Peer Review Comments

    (1) Comment: The critical habitat proposal did not outline what 
actions will be taken or proposed subsequent to critical habitat 
designation to implement conservation measures in the 26 units.
    Response: Conservation measures for these species and their 
habitats are outlined in the Mobile River Basin Aquatic Ecosystem 
Recovery Plan (U.S. Fish and Wildlife Service, 2000). Propagation and 
release protocols for mussels are outlined in the Plan for Controlled 
Propagation, Augmentation and Reintroduction for Freshwater Mussels and 
Snails of the Mobile River Basin (U.S. Fish and Wildlife Service, 
2003).
    (2) Comment: There is some taxonomic confusion regarding the ovate 
clubshell in Units 18 and 25 in the Coosa River drainage.
    Response: In the proposed rule, Unit 25 was proposed for 
designation as currently unoccupied habitat for the ovate clubshell, 
while Unit 18 was proposed for designation as occupied habitat. There 
has been some confusion among malacologists over the identity of some 
collections of small mussel species of the genus Pleurobema in the 
Coosa River drainage. Recent collections have been made of a small 
species from the Conasauga River (Unit 25) that has been variously 
identified by researchers as Alabama clubshell (Pleurobema 
troschelianum) or Georgia pigtoe (P. hanleyanum), species similar in 
morphology to the ovate clubshell (P. perovatum). Recent collections of 
mussels referred to as ovate clubshell have also been made in the Coosa 
River below Weiss Dam (Unit 18). Genetic studies, however, have placed 
both populations with the Georgia pigtoe, not with the ovate clubshell 
(Dr. David Campbell, University of Alabama, in litt. 2004). The Coosa 
River drainage is within the historical range of the ovate clubshell, 
therefore, in this final rule, we are changing Unit 18 from occupied to 
unoccupied, so both Units 18 and 25 are designated as unoccupied 
habitat for the ovate clubshell.
    (3) Comment: The upper boundary of Holly Creek in Unit 25 
(confluence of Rock Creek) is incorrectly identified.
    Response: The legal description and map of Unit 25, as published in 
our proposed rule and this final rule, is correct. There are two Rock 
Creeks in the Holly Creek Drainage. The latitudinal and longitudinal 
coordinates provided in our regulation are correct to the appropriate 
Rock Creek confluence.

Public Comments

Issue A: Comments on Adequacy and Extent of Critical Habitat
    (4) Comment: It is not clear that the amount of habitat proposed is 
adequate for conservation of the species.
    Response: Our analysis identified these 26 critical habitat units 
as essential to the conservation of the 11 mussel species (see 
``Analysis Used to Delineate Critical Habitat,'' below). Based on the 
best available information, we believe that with special management 
considerations and protection of these habitats, and the development of 
appropriate species management technology, protocols, and information, 
these 11 species can be conserved within these 26 critical habitat 
units.
    (5) Comment: Threatened mussels will receive more critical habitat 
than the endangered species. This tends to protect threatened species 
more than endangered species.
    Response: The disparity in quantity of critical habitat proposed 
for the individual species is an artifact of the mussel species' 
historical distributions, their habitats, and their status. For 
example, all three threatened species historically occurred in a wider 
variety of habitats (e.g., small headwater streams to large rivers) 
than most of the endangered species. Therefore, there is more habitat 
available for their conservation over a wider area. In contrast, the 
endangered dark pigtoe was restricted to small rivers and large streams 
in only the Black Warrior River drainage. For several of the other 
endangered species, a larger proportion of their historic habitats have 
been rendered unsuitable by impoundment, pollution, etc. Both 
endangered and threatened species receive the same protection under the 
Act.
    (6) Comment: Designation of critical habitat should encompass areas 
in need of significant restoration and structural change (e.g., 
impounded reaches), not just those relatively far from the hydrologic 
control systems. Areas without constituent elements, but with potential 
of restoration, should be included in the designation.
    Response: The Endangered Species Act does not allow us to designate 
areas that do not now have one or more of the primary constituent 
elements, as defined at 50 CFR 424.12(b), which provide essential life 
cycle needs of the species. Areas proposed for designation as critical 
habitat must have one or more primary constituent elements, and the 
areas must be essential to their conservation (see ``Critical 
Habitat,'' below). Constituent elements required by riverine mussel 
species are typically no longer present in impounded reaches (e.g., 
flow, water quality, substrate, host fishes, etc.). In addition, while 
dams and their impounded waters are not permanent structures from a 
geological perspective, large hydropower or navigation dams impounding 
extensive areas and supporting a complex economic infrastructure are 
unlikely to be removed within the foreseeable future.
    (7) Comment: The map of the proposed critical habitat designation 
is a textbook design of fragmentation. The proposed designation fails 
to allow for reestablishment and recovery by only including areas where 
the species are currently found and ignoring the larger historical 
range.
    Response: The Mobile River Basin is an example of endangerment and 
extinction due to habitat fragmentation and population isolation (see 
the Mobile River Basin Aquatic Ecosystem Recovery Plan (U.S. Fish and 
Wildlife Service, 2000)). We considered the past and future effects of 
habitat fragmentation on the historical range of all 11 species (see 
``Factors Affecting the Species'' in the proposed rule, and ``Analysis 
Used to Delineate Critical Habitat'' below), and have designated 
unoccupied habitat for all 11 species (and for all but one unit 
occupied by at least one other mussel) to allow for their 
reestablishment and conservation.
    (8) Comment: The Service should designate areas upstream from 
occupied areas and stream side buffers to protect the species.
    Response: Critical habitat designations have relevance to section 7 
consultations, which apply solely to Federal actions. When evaluating 
the effects of any Federal action subject to

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a section 7 consultation, activities upstream or along the margin of a 
designated area must be considered for adverse impacts to critical 
habitat. Therefore, specific designation of areas above or adjacent to 
stream channel critical habitats are unnecessary. Identification of the 
stream channel as critical habitat will provide notice to Federal 
agencies to review activities conducted within the drainage on their 
potential effects to the channel, and will alert third parties of the 
importance of the area to the survival of the species.
    (9) Comment: A habitat focused Population Viability Analysis (PVA) 
should be conducted to identify areas where habitat restoration should 
occur.
    Response: A great deal of information is necessary before a 
meaningful PVA can be conducted for a species, e.g., life history, 
mortality rates, demographics, habitat, and interactions with other 
species. Most of this information is unavailable for these 11 mussels 
and we are unable to conduct a meaningful PVA at this time. We will 
continue to conduct and support research to develop this information on 
these mussel species.
    (10) Comment: Mussels require a fish host for juvenile survival and 
recruitment. Therefore, the range of fish hosts must be considered in 
the designation.
    Response: Information on fish hosts has been considered in this 
designation (see ``Analysis Used to Delineate Critical Habitat,'' 
below). All of the critical habitat units are within the historic range 
of the host fishes that have been identified for these mussels, and are 
known or believed to currently support the host fish for one or more of 
the mussel species for which they are designated.
    (11) Comment: The Service failed to demonstrate that areas 
currently occupied by the mussels are inadequate for their 
conservation, or that the proposed units are indispensable and 
absolutely necessary for species' conservation.
    Response: The administrative record demonstrates that areas 
currently occupied by the mussels are inadequate for their 
conservation. Our final rule listing these species under the Act (58 FR 
14330) identified loss of habitat as a primary factor in their status. 
Our proposed designation (see ``Factors Affecting the Species'') and 
this final designation (see ``Analysis Used to Delineate Critical 
Habitat,'' below) as well as the Mobile River Basin Aquatic Ecosystem 
Recovery Plan (U.S. Fish and Wildlife Service 2000) note that recovery 
of the 11 mussels in the near future is unlikely due to the extent of 
their decline and the degree of fragmentation and isolation of their 
habitats. We have designated habitat units 1-25, which are currently 
occupied by one or more of the 11 mussels, because they are essential 
for the conservation of the species. However, although each of these 
units supports small populations of one or more of the 11 species, they 
are isolated from each other, and are subject to future chance 
catastrophic events and to changes in human activities and land use 
practices that may result in the elimination. Therefore, it is 
essential to identify all opportunities to conserve these mussels. 
Opportunities for expanding the range of these species outside of 
currently occupied areas are limited due to the degree of habitat 
alteration that has occurred in the Basin. Unit 26 represents a rare 
opportunity in the Basin for extending the range of 9 of the 11 species 
(see ``Analysis Used to Delineate Critical Habitat,'' above), an action 
identified as necessary for the recovery of the species. Areas 
designated as critical habitat have one or more primary constituent 
elements, and are essential to the conservation of the 11 mussels.
Issue B: Procedural and Legal Comments
    (12) Comment: Landowners have not been contacted and given the 
opportunity to respond to the proposed designation. Most landowners and 
the people of Alabama did not know of the comment deadline, therefore, 
the comment period should be extended.
    Response: When we issue a proposed rule, we want to ensure 
widespread knowledge and opportunity for the public to comment, 
particularly among those who may be potentially affected by the action. 
The proposed designation covered portions of four states; therefore, it 
was impossible to personally contact all landowners in the area. We 
attempted to ensure that as many people as possible would be aware of 
the proposed designation through press releases to all major media in 
the affected area, including those in State capitols and major cities, 
publication of newspaper notices, and direct notification of affected 
State and Federal agencies, environmental groups, major industries, 
State Governors, Federal and State elected officials, and County 
Commissions (see ``Previous Federal Actions,'' above). We repeated this 
process upon availability of the draft economic analysis and for the 
October 1, 2003, public hearing. In January 2004, we reopened the 
comment period a third time to ensure that all would have the 
opportunity to comment on the proposed designation and draft economic 
analysis. We have complied with or exceeded all of the notification 
requirements of the Act.
    (13) Comment: The Service did not comply with the National 
Environmental Policy Act (NEPA). Under NEPA, the magnitude of economic 
impacts requires preparation of an Environmental Impact Statement.
    Response: Environmental assessments and environmental impact 
statements, as defined under NEPA, are not required for regulations 
enacted under section 4 of the Act (see 48 FR 49244).
    (14) Comment: The Service has no delegated authority to designate, 
regulate, or confiscate anything on private land.
    Response: The Service is required when prudent to designate 
critical habitat under the Endangered Species Act. Critical habitat 
designation does not regulate private actions on private lands or 
confiscate private property. It does not affect individuals, 
organizations, States, local governments or other non-Federal entities 
that do not require Federal permits or funding.
    (15) Comment: The proposed designation of critical habitat is 
unconstitutional.
    Response: The constitutionality of the Act in authorizing the 
Service's protection of endangered and threatened species has 
consistently been upheld by the courts. See, e.g., GDF Realty 
Investments, Ltd. v. Norton, 326 F.3d 622 (5th Cir. 2003); Gibbs v. 
Babbitt, 214 F.3d 483 (4th Cir. 2000); National Association of 
Homebuilders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 
524 U.S. 937 (1998); Rancho Viejo v. Norton, No. 01-5373 (D.C. Cir. 
2003); and United States v. Hill, 896 F. Supp. 1057 (D. Colo. 1995).
    (16) Comment: The failure to protect these mussels' habitats will 
result in extinction of the species; therefore, the economic analysis 
is irrelevant.
    Response: Section 4(b)(2) of the Act requires us to consider the 
economic, national security, and other relevant impacts of designating 
a particular area as critical habitat.
    (17) Comment: The needs of the mussel species would be better 
addressed in the context of the ongoing Alabama-Coosa-Tallapoosa (ACT) 
River Basin Compact process rather than critical habitat designation.
    Response: In the case of these mussels, the Act requires us to 
designate critical habitat. Critical habitat designation only affects 
Federal actions or activities or those authorized or funded by the 
Federal Government. Identification of critical habitat, therefore, 
should assist Federal agencies

[[Page 40088]]

involved in facilitating the ACT Compact negotiations.
    (18) Comment: The Service must explain why some areas are included 
as critical habitat and others are not.
    Response: The ``Analysis Used to Delineate Critical Habitat'' (see 
below), discusses why these 26 units were proposed. In summary, 25 of 
the 26 units currently support one or more of the species. Many river 
and stream reaches that historically supported the species are 
impounded or otherwise affected by human activities to the extent that 
they no longer provide the physical or biological features essential 
for the species' conservation. In addition, single site occurrence 
records of a single species were also not considered essential because 
of limited habitat availability, isolation, degraded habitat, and/or 
low management value or potential. Unit 26 represents a rare situation 
where some primary constituent elements (i.e., flow, water quality) 
have experienced significant improvements during the past decade.
    (19) Comment: The proposed rule made no determination as to why the 
units may need special management or protection.
    Response: The proposal made a determination that the 26 units may 
require special management or protection (see ``Need for Special 
Management Consideration or Protection,'' below). In this section, we 
referred the reader to ``Effects of Critical Habitat'' section (see 
below), where Federal actions that may destroy or adversely modify 
these units are outlined. Such activities are individually or 
collectively responsible for the extirpation of these species from 
significant portions of their ranges (see ``Summary of Factors 
Affecting the Species,'' in the proposed rule). Habitat fragmentation 
and isolation render all 26 critical habitat units ever more vulnerable 
to activities that may affect the primary constituent elements within 
these units.
    (20) Comment: Neither the current distribution nor the host fish 
are known for the upland combshell and southern acornshell, therefore, 
critical habitat cannot be identified.
    Response: Extant populations of the upland combshell and southern 
acornshell are currently unknown. However, mussels are cryptic species 
living embedded in the bottom of rivers, and rare species may be 
difficult to find. For example, the heavy pigtoe (Pleurobema taitianum) 
had not been collected from the Alabama River for 30 years and was 
thought extirpated prior to being found in 1997. We used collection 
history, surviving mussel species' assemblages, and habitat conditions 
in evaluating streams for the upland combshell and southern acornshell. 
We selected those which have the best potential for, and we believe are 
essential to, the conservation of these two mussels. Fish hosts are 
currently unknown for the upland combshell, southern acornshell, and 
ovate clubshell. However, the units proposed for these species support 
a diverse assemblage of fish species, including fish species and guilds 
(e.g., darters, minnows, sculpins, bass, catfish, etc.) that are known 
as hosts or potential hosts for closely related species.
    (21) Comment: Scattered collections of an endangered mussel over a 
reach of river does not suggest an enduring population throughout the 
reach, therefore, not all of the reach is actually being ``occupied.'' 
Relic collections in currently degraded habitats should not be used to 
declare entire reaches of stream as critical habitat.
    Response: Rare mussels can be very difficult to locate in their 
stream and river habitats. There are recent collections of live or 
freshly dead listed mussel species from all of the occupied units. 
Designating only the specific locations where mussels have been 
collected does not take into consideration the habitat requirements of 
mussels or their host fish, and would not provide for the conservation 
of the species. Although recent collections may be localized, the 
physical conditions where they occur are driven by stream channel 
conditions and dynamics, both up- and downstream. Periodic collections 
of listed species and other mussel species indicate that the occupied 
units contain the primary constituent elements necessary for the 
conservation of the species for which they are designated. The upper 
and lower limits of the units are generally defined by changes in 
habitat that may render the areas less valuable for conservation of the 
species.
    (22) Comment: Unit 11 (North River) should be excluded from the 
designation because the dark pigtoe and orange-nacre mucket were not 
included in the original lawsuit. Therefore, the designation of other 
Units will satisfy the plaintiff's original intent.
    Response: In 1993, we published a final rule listing these 11 
species under the Act. In that rule we found that critical habitat was 
prudent, but not determinable. In making a ``not determinable'' finding 
on critical habitat, the Act requires us to publish a final designation 
of critical habitat within one year of the final regulation 
implementing endangered or threatened status to a species. The lawsuit 
was brought because we did not meet the one-year deadline for 
designating critical habitat for 9 of the 11 species. We are required 
by the Act to designate critical habitat for all 11 species, therefore, 
we have determined critical habitat for the two species that were not 
in the original lawsuit.
Issue C: Comments on Individual Units
    (23) Comment: The mussel fauna of the North River (Unit 11) is 
uncommon to rare, and is currently affected by low seasonal flows, 
heavy siltation, and Asian clams. Therefore, the North River lacks 
constituent elements as defined in the proposal. Exclusion of Unit 11 
will not result in the extinction of the dark pigtoe and orange-nacre 
mucket, therefore, it is not essential to their conservation.
    Response: The primary constituent elements (geomorphology, flow, 
water quality, etc.) in the North River Unit are adequate to support 
small populations of the endangered dark pigtoe and the threatened 
orange-nacre mucket. There are only two known populations of the dark 
pigtoe, the North River (Unit 11), and Sipsey Fork (Unit 10). As noted 
in the ``Summary of Factors Affecting the Species'' in the proposed 
rule, isolated populations are vulnerable to extirpation by random 
catastrophic events. For example, in a recently released report on the 
mussels of the Sipsey Fork of the Black Warrior River drainage, it was 
found that populations of listed mussels, including the dark pigtoe, 
were significantly reduced by the 2000 drought (Haag and Warren 2003b). 
Because of the extent of habitat modification, fragmentation, and 
isolation, multiple populations are necessary to ensure the 
conservation of these mussel species (see ``Analysis Used to Delineate 
Critical Habitat,'' below). Therefore, the North River is essential to 
the conservation of the dark pigtoe and the orange-nacre mucket.
    (24) Comment: Construction and management plans of the Tom Bevill 
Reservoir in the North River have undergone Service consultation on 
effects to the orange-nacre mucket and dark pigtoe. Any further 
modifications to the reservoir will be unreasonable, unwarranted, and 
inappropriate.
    Response: After reviewing the location of the Tom Bevill Reservoir 
(which is 2.4 miles above the upper limit of designated critical 
habitat in the North River) and the Biological Opinion (U.S. Fish and 
Wildlife Service 1994), we now believe that construction of the 
reservoir will not adversely modify critical habitat in the designated 
portion of the North River, if the Reasonable and

[[Page 40089]]

Prudent Measures and Terms and Conditions outlined in the Biological 
Opinion are implemented.
    (25) Comment: It is not apparent that either the Locust Fork (Unit 
12) or Cahaba River (Unit 13) contain viable habitat to sustain the 
listed mussels due to sedimentation and other water quality problems. 
Three reaches of the Locust Fork, and the Cahaba River are currently on 
the draft 2002 Alabama 303d list of impaired waters. Based on existing 
habitat and species requirements, critical habitat does not occur 
within the majority of the Locust Fork or Cahaba River systems.
    Response: The continued presence of the orange-nacre mucket and 
triangular kidneyshell in both the Cahaba River and Locust Fork, and 
the persistence of the fine-lined pocketbook in the Cahaba, indicates 
that constituent elements are present to a degree that allows for the 
survival of these and other mussel species. The mussel populations in 
these two designated reaches have survived decades of periodic water 
pollution. By placing the Cahaba River and portions of the Locust Fork 
on the 303d list, the State of Alabama is recognizing ongoing water 
quality problems and its commitment to address these problems through 
appropriate management. Improving and protecting water quality in the 
Cahaba River and Locust Fork will provide a positive conservation 
benefit to the listed species in these units. Although collections of 
the listed mussels are site-specific in both the Cahaba and Locust Fork 
rivers, the physical conditions of their habitats are driven by the 
conditions and dynamics within the stream channel, both upstream and 
downstream. The designated portions of the Cahaba and Locust Fork 
Rivers contain one or more of the primary constituent elements 
essential to the conservation of these mussels, including flow, water 
quantity, geomorphic stability, substrates, etc. Because of the extent 
of habitat loss and fragmentation, both of these Units are essential to 
the conservation of the species for which they are designated (see 
``Response'' to Issue 12, above).
    (26) Comment: The portion of the Cahaba River (Unit 13) impounded 
by a diversion dam from just below U.S. Highway 280, upstream to the 
Cahaba Heights Pump Station, does not contain the constituent element 
for flow requirements of the mussels and should be removed from the 
designation.
    Response: A low head dam at U.S. 280 impounds a short reach of the 
Cahaba River main channel during low water conditions. Our regulations 
allow us to designate inclusive areas where the species is not present 
if they are adjacent to areas occupied by the species and essential to 
their management and protection (50 CFR 424.12(d)). The low dam is 
inundated several times a year during high water conditions allowing 
movement of host fishes, and possibly attached glochidia. Although the 
impounded portion does not contain all constituent elements and it is 
unlikely that the mussels would occur immediately behind the lowhead 
dam, this short reach is important in maintaining downstream water 
quality and quantity. It also connects the channel above and below the 
low dam during high waters where the triangular kidneyshell, orange-
nacre mucket, and fine-lined pocketbook are known to survive.
    (27) Comment: Fresh dead shells of orange-nacre mucket, fine-lined 
pocketbook and triangular kidneyshell have been recently observed in 
the Cahaba River from St. Clair County Road 10 to U.S. Highway 78 in 
Jefferson County, Alabama. Since these species currently occur in this 
reach, it should be added to Unit 13.
    Response: We selected U.S. Highway 82 as the upper extent of 
critical habitat in the Cahaba River because this was the upper-most 
location of historic collections of most of the endangered mussels that 
historically occurred in the drainage, and because above this point, 
the river undergoes a transition from small river to more stream-like 
conditions. Collections of a few individuals of these species from the 
Cahaba River above U.S. Hwy 82 were reported to us in July of 2003, 
following publication of the proposed rule. At this time, we believe 
the 124 km (77 mi) of the Cahaba River channel we have designated as 
critical habitat is adequate for the conservation of the species in 
this drainage. Endangered or threatened mussels that occur outside of 
designated critical habitat, however, will continue to receive the 
protection of the Act's section 7 consultation requirements and section 
9 take prohibitions. Under the Act, we can revise critical habitat in 
the future if it is appropriate, based on the best available 
information.
    (28) Comment: The Service does not have sufficient data to 
designate Unit 14, Alabama River, as critical habitat.
    Response: The section of the Alabama River designated under Unit 14 
is known to support a small population of the southern clubshell within 
one mussel bed near Selma, Alabama (Hartfield and Garner 1998). The 
Alabama River contains one or more primary constituent elements 
throughout the designated reach, as demonstrated by the presence of 
mussel beds with similar species composition, and it is likely that the 
southern clubshell occurs in other areas within this reach. The Alabama 
River unit supports the last surviving large coastal plain river 
population of southern clubshell, and is representative of the 
historical, geographical and ecological distribution of the species. 
This area also may be suitable for the reintroduction of the orange-
nacre mucket.
    (29) Comment: FWS has not demonstrated that Unit 26, Coosa River, 
is essential to the conservation of the species.
    Response: Conservation of the species requires ensuring survival 
through establishing multiple populations by expanding their ranges 
into currently unoccupied portions of their historic habitats. The 
Coosa moccasinshell occupies one unit, Unit 25, which makes the 
population for this species especially vulnerable to stochastic events. 
The Coosa River in Unit 26 presents the best opportunity for 
reestablishing populations of 9 of the 11 species, including the Coosa 
moccasinshell (see ``Analysis Used to Delineate Critical Habitat,'' 
below). Unit 26 is also representative of a historic habitat (Coosa 
River ``reefs'') that is no longer occupied by any of these 9 species.
Issue D: Comments on Science
    (30) Comment: There is no scientific support for the proposed rule. 
The public cannot comment on science that the Service failed to 
present. The Service has failed to use the best scientific data 
available.
    Response: The Service has conducted, sponsored, and/or funded most 
scientific research performed over the past 10 years for these 11 
species. Information from this research, and all other available 
scientific information, was used to prepare the proposed and final 
designations. During the comment periods, only a single study was 
brought to our attention that was not used in the development of this 
designation. This study was published after the proposed rule was 
published, and it supports our position that host fishes are essential 
components of the mussels' constituent elements. We received no 
additional scientific data during the comment periods that we have not 
previously considered. In addition, all four peer reviewers submitted 
written responses that the proposal included a thorough and accurate 
review of the available scientific and commercial data on these mussels 
and their habitats. Therefore, we believe that we have used the best 
scientific information available in

[[Page 40090]]

making this final rule. A list of scientific literature used to prepare 
this rule is available upon request from the Mississippi Ecological 
Services Field Office (see Addressess, above).
    (31) Comment: Spotted bass and largemouth bass failed to 
successfully transform orange-nacre mucket glochidia in some trials 
conducted by Haag and Warren (1997), indicating they may not be 
suitable hosts.
    Response: Haag and Warren (1997) conducted two glochidia 
transformation trials with spotted bass. In the first, all of the fish 
died for unknown reasons before termination of the trial. In the second 
trial, over 300 orange-nacre mucket juveniles/fish were successfully 
transformed. They also conducted three trials using largemouth bass. In 
the first two trials, all fish died prior to transformation. In the 
third, over 100 juveniles/fish were successfully transformed. Since 
both spotted and largemouth bass occur naturally with the orange-nacre 
mucket, these data indicate, and Haag and Warren (1997) concluded, that 
spotted and largemouth bass are suitable hosts for the mussel.
    (32) Comment: The proposal notes the need to reintroduce species 
into historical portions of their range now proposed for critical 
habitat. If constituent elements are present at these sites then why 
are the mussels no longer present?
    Response: The listing regulation for these 11 species, the Recovery 
Plan (U.S. Fish and Wildlife Service, 2000), the proposed rule (see 
``Factors Affecting the Species''), and basic population biology note 
that small populations, isolated to fragments of their former range are 
vulnerable to extirpation from natural or human-induced catastrophic 
events. Following catastrophic events temporary in nature, such as 
droughts, pollution, and sedimentation, the habitat may recover to a 
point where the species could survive, if reintroduced. The drainages 
of the Mobile River Basin have experienced both natural and human 
perturbations that have changed over time. For example, streams and 
river segments have been affected in the past by droughts, severe 
storms, unregulated coal mining, unregulated pollution discharges, and/
or poor agricultural and silvicultural practices. Many of the human-
induced perturbations that may have led or contributed to the 
extirpation of species from some of the designated units have been 
reduced during the past few decades by State and Federal regulation and 
the adoption of best management practices. Currently, one or more of 
the 11 mussels continue to survive in 25 of the units. Because of the 
extent of habitat modification, fragmentation, and isolation, multiple 
populations are necessary to ensure the conservation of these mussels. 
Therefore, conditions within these units may now be adequate for 
reintroduction of one or more of the extirpated species.
    (33) Comment: Using listed species as transplants into unoccupied 
areas is a highly risky conservation technique. The use of artificially 
propagated individuals for reintroducing species is not addressed in 
the proposed designation.
    Response: Neither the proposed rule nor this final regulation 
address methods and protocols for the reintroduction of endangered or 
threatened mussels into unoccupied habitats. We have developed a Plan 
for Controlled Propagation, Augmentation and Reintroduction for 
Freshwater Mussels and Snails of the Mobile River Basin (U.S. Fish and 
Wildlife Service, 2003), in accordance with our Policy Regarding 
Controlled Propagation of Species Listed Under the Endangered Species 
Act (65 FR 56916). The plan promotes the use of hatchery propagated 
individuals for reintroduction of rare mussels into historic habitats, 
and establishes basic protocols for propagating endangered and 
threatened mussels and snails, and for population augmentation or 
reintroduction. Copies of this working document are available from our 
Jackson, Mississippi Field Office (see Addresses, above).
    (34) Comment: Reintroduction of mussels into historic habitats 
should be declared as nonessential experimental populations.
    Response: Section 10(j)(2) of the Act prohibits designation of 
critical habitat for any nonessential experimental population of an 
endangered or threatened species. With this rule, we have designated 
critical habitat units that are essential to the conservation of the 
mussel species. We will not be determining that any of these units are 
nonessential experimental population areas or reintroducing any 
nonessential experimental populations into these units.
    (35) Comment: The proposal did not adequately convey the growing 
level of threat to mussels. It did not address the impacts of 
impervious area runoff, or the effects of illegal and irresponsible off 
road vehicle (ORVs) use.
    Response: The proposed rule summarize threats to the mussels, 
particularly as they relate to habitat needs, and refer the reader to 
sources for more information (see ``Summary of Factors Affecting the 
Species'' in the proposed rule). We believe that the greatest factor in 
the conservation of these species is the high degree of habitat loss, 
and the resulting fragmentation and isolation of their habitats (see 
``Analysis Used to Delineate Critical Habitat,'' below). Site-specific 
threats, such as impervious surface runoff and ORV use in streams, are 
compounded by habitat fragmentation and isolation.
Issue E: Comments on Primary Constituent Elements
    (36) Comment: The assumption that all 11 listed mussel species each 
possess identical principal biological or physical constituent elements 
essential to their conservation is scientifically invalid. The proposal 
provided no evidence, explanations, or citations quantifying the 
primary constituent elements (e.g., geomorphic stability, water 
quantity and quality, etc.) Broadly stated constituent elements provide 
no guidance whatsoever for needs of individual mussel species.
    Response: The Endangered Species Act and Service implementing 
regulations (50 CFR 424.12) require us to use the best scientific data 
available to identify known primary constituent elements. 
Unfortunately, knowledge of the essential features required for the 
survival of any particular freshwater mussel species consists primarily 
of basic concepts with few specifics (Jenkinson and Todd 1997). Among 
the difficulties in defining habitat parameters for mussels are that 
physical and chemical conditions (e.g., water chemistry, flow, etc.) 
within stream channel habitats may vary widely according to season, 
precipitation, and human activities within the watershed. In addition, 
conditions between different streams, even those occupied by the same 
species, may vary greatly due to geology, geography, and/or human 
population density and land use. A review of the available scientific 
information shows that loss of mussel life stages, species, and even 
entire communities can be attributed to a variety of physical and 
biological factors, including loss of channel stability (e.g., 
Hartfield, 1993; Neves et al., 1997; etc.), changes in flow and water 
quality (e.g., Layzer et al., 1993; McMurray et al., 1999; Williams et 
al., 1993; Naimo, 1995; Strayer, 1999a; etc.), sedimentation and other 
changes in substrate (e.g., Ellis, 1936; Hartfield and Hartfield, 1996; 
Brim Box and Mossa, 1999; etc.), loss of fish hosts, and competition 
from nonnative species (e.g., Neves et al., 1997; Strayer, 1999b; 
etc.). Therefore, we used the best available scientific information to 
broadly define six primary constituent

[[Page 40091]]

elements. Although we are currently unable to quantify them for any of 
these 11 mussel species, these six constituent elements describe 
physical and biological features essential to the conservation of the 
species that may require special management considerations and 
protection.
    We recognize that this situation represents a less than ideal 
situation. The Act requires the use of the best available scientific 
and commercial data, without regard to whether that is sufficient to 
make a fully informed determination. At best, the Act gives us through 
section 4(b)(6)(C)(ii) only a one-year window of opportunity to further 
investigate if we find that critical habitat is not determinable, for 
reasons such as lack of information about the primary constituent 
elements for the species in question.
    Within these limitations, we have utilized the best available 
scientific data in making our determinations here.
    (37) Comment: It appears the Service simply identified 25 reaches 
within the Basin currently occupied by one or more of the 11 species 
and then assumed that those reaches contained primary constituent 
elements.
    Response: In making this designation, we used the best available 
science to describe six primary constituent elements required for the 
conservation of these species in their aquatic habitats. We then 
considered all reaches currently occupied by one or more of the 
species. The long-term persistence of imperiled mussels and mussel 
communities within a stream reach indicates the presence of physical, 
chemical, and biological features essential to the survival of 
freshwater mussels. After considering the mussels' historic ranges, 
conditions within the range, and the value of the occupied reaches for 
the conservation of the species (see ``Analysis Used to Delineate 
Critical Habitat,'' below), we eliminated areas with limited habitat 
availability, degraded habitat, and/or low management value or 
conservation potential (e.g., Etowah River, Big Wills Creek, Little 
River, Euharlee Creek, Limestone Creek, etc.). We believe that the 
primary constituent elements are present in the 26 designated critical 
habitat units to a degree that permits the survival of mussels, and 
with appropriate protection and management will allow conservation of 
the listed species in those reaches.
    (38) Comment: The proposal failed to define ``geomorphically stable 
stream and river channels and banks.''
    Response: Geomorphology refers to the size, shape, and dimensions 
of a river channel and their relationships to valley and channel slope, 
local geology, and water and sediment budgets (Patrick et al., 1994). 
Geomorphic instability can be triggered by impoundment, navigational 
and flood-control improvements, riparian mining operations, regional 
land use, or a combination of these and other human activities (Patrick 
et al., 1982). Such activities may disrupt the energy conditions of the 
affected river or stream channel by changing down-stream base levels, 
channel slopes, or sediment/water balances which, in turn, result in 
accelerated erosion or sedimentation processes. As these geomorphic 
processes occur, freshwater mussels may be adversely affected by the 
loss of stable banks, scouring and deepening of channel beds, and the 
smothering effects of excessive sedimentation (Hartfield 1993). 
Therefore, geomorphically stable channels and banks are not 
experiencing accelerated erosion or sedimentation processes. Stream 
channels in the Mobile River Basin have been variously affected by 
geomorphic instability (U.S. Fish and Wildlife Service, 2000). 
Geomorphic effects of activities that may affect stream channels can be 
reduced and managed with appropriate planning and implementation of 
common engineering practices (e.g., grade control structures) and Best 
Management Practices (e.g., sediment stabilization, and minimization of 
instream work).
    (39) Comment: The Service must identify recovery criteria for 
conservation of the 11 mussels before it can identify the primary 
constituent elements essential for their conservation.
    Response: We considered the recovery and conservation needs of 
these species in preparing this designation (see ``Analysis Used to 
Delineate Critical Habitat,'' below). The recovery objective for these 
11 mussel species is to prevent further decline by protecting their 
surviving populations and the habitats where they occur (U.S. Fish and 
Wildlife Service, 2000). Stable or increasing populations over time 
will demonstrate that the objective is being met. The best available 
scientific information was used to identify physical and biological 
features essential to the conservation of these mussels, including the 
Recovery Plan (U.S. Fish and Wildlife Service, 2000) and other 
documents (see ``Response'' to Comment 36, above).
    (40) Comment: The proposal provided no citations, data, or 
explanation of `` * * * normal behavior, growth and viability of all 
life stages of mussels and their fish hosts * * *'' in the 
identification of primary constituent elements.
    Response: The proposal summarizes the complex life history of 
unionid mussels, which includes sexual reproduction, a parasitic larval 
stage, and a juvenile stage, and identifies host fish where known (see 
proposed rule). A complete list of all references cited in this rule 
including those citations and data on the life history of the mussels 
is available upon request from the Mississippi Ecological Services 
Field Office. The language used in the ``Primary Constituent Elements'' 
section alerts Federal agencies to consider the effects of their 
actions on habitat as they may affect all life stages of the mussels 
and their host fishes.
    (41) Comment: The Service failed to articulate the required 
connection between the primary constituent elements and the proposed 
units, and failed to perform any scientific analysis or review to 
ensure that units contain primary constituent elements for each 
specific mussel.
    Response: In evaluating streams for critical habitat, we considered 
all information available to us on the biology, habitat, and current 
distribution of these 11 mussel species (see ``Background,'' and 
``Response'' to Comment 36, above). We selected as critical habitat 
units 25 stream reaches where one or more of the listed mussel species 
continues to survive. The continued persistence of the mussels in these 
units is evidence of the presence of the primary constituent elements 
for their survival (see ``Analysis Used to Delineate Critical 
Habitat,'' below) now and at the time of the species' listing. We 
selected the unoccupied Unit 26 because it was historically occupied 
and PCEs have improved due to significant improvement in flow and water 
quality (primary constituent elements) over the past decade (see 
``Analysis Used to Delineate Critical Habitat,'' below). We also 
identified the listed mussels currently surviving in each unit and 
those which historically occurred there (see ``Critical Habitat Unit 
Descriptions,'' below).
    (42) Comment: The proposal failed to provide a unit by unit 
assessment of whether or not any nonnative competitors are present.
    Response: The asian clam (Corbicula fluminea) is present in 
portions of most of the designated units. This nonnative species has 
been coexisting with the native mussel fauna for several decades. We 
are also concerned with the spread or introduction of the highly 
competitive zebra mussel (Dreissena polymorpha), quagga mussel 
(Dreissena bugensis), and the mollusk predator,

[[Page 40092]]

black carp (Mylopharyngodon piceus). None of these three nonnative 
species are currently known to inhabit any of the designated units.
    (43) Comment: The proposal states in several places that proposed 
critical habitat units contain one or more of the primary constituent 
elements. All primary constituent elements must be present for 
designation of critical habitat, not just one or more.
    Response: Critical habitat is defined under the Act as those 
specific areas within the geographical area occupied by the species on 
which are found those features essential to the conservation of the 
species (i.e., primary constituent elements) and which may require 
special management or protection (see ``Critical Habitat,'' below). 
Known primary constituent elements must be listed with the critical 
habitat description. We use the language ``* * * one or more * * *'' in 
recognition that all areas essential to the conservation of a species 
may not contain all primary constituent elements, based on the biology 
of the species. For example, a species may require one area for feeding 
and growing, another for reproduction or roosting, and still other 
areas for passage between feeding and growing areas. So while all areas 
may not contain the same constituent elements, they may be important at 
some life stage or during some time of the year and collectively they 
are essential to the conservation of the species. In addition, Service 
regulations allow us to designate inclusive areas where all constituent 
elements are not present if they are adjacent to areas occupied by the 
species and essential to their management and protection (50 CFR 
424.12(d)). For example, upland areas can be designated as critical 
habitat for aquatic species if it is concluded they are essential to 
the conservation of the species. We believe that the primary 
constituent elements enumerated within this rule are essential to the 
conservation of these mussel species and are present in all of the 
units to a degree that allows survival of the mussels. However, all of 
the six primary constituent elements may require special management, 
and can be protected or improved with appropriate management.
    (44) Comment: Listed species that have been collected from a 
proposed unit but are showing no active recruitment may need further 
study to justify designation of critical habitat. The proposal states 
that there is evidence of local population decline within some units, 
therefore, primary constituent elements may not be present.
    Response: With only a few exceptions, there is little information 
on recruitment for these mussel species in most units. As a group, 
mussels are long-lived with life spans of 20 years or more. However, 
their complex reproductive relationships with fish hosts render them 
vulnerable to recruitment failure due to environmental conditions or 
other factors that disrupt interactions between the mussels and their 
host fishes. Therefore mussel populations, particularly those under 
environmental stress, may go several years with low levels of 
recruitment, or even no recruitment. Listed mussel populations 
inhabiting most of the designated units are currently characterized by 
low numbers of individuals and some level of environmental stress, 
conditions that make recruitment difficult to measure. These 11 mussel 
species are threatened and endangered because the limited extent and 
isolation of their populations renders them vulnerable to natural or 
human induced changes in their habitats (see ``Factors Affecting the 
Species'' in the proposed rule). The effects of land uses or weather 
patterns may be reflected in abundance and demographics of a localized 
mussel community, and there is evidence of both positive and negative 
population trends in some units. For example, Haag and Warren (2003b) 
recently documented declines in the abundance of mussels, including 
several listed mussels, in portions of Unit 10 (Sipsey Fork drainage) 
due to drought. The channels and flowing waters of all 26 critical 
habitat units are dynamic and contain a mosaic of habitat conditions. 
The six primary constituent elements that we have identified are 
present within these units, and may require special management 
considerations and protection if these 11 species are to be conserved 
(see ``Response'' to Comment 36 and 37, above).
Issue F: Comments on Economic Impacts and Economic Analysis
    (45) Comment: The proposed designation will harm private landowners 
through increased government regulation, and will add unnecessary red 
tape and bureaucracy in the use of surface waters and the disposal of 
waste waters.
    Response: The designation of critical habitat will not increase 
government regulation of private land. The effects of private 
activities are not subject to the Act's consultation requirements, 
unless they are connected to a Federal action. Federal activities 
conducted in or adjacent to areas designated as critical habitat are 
already subject to section 7 consultation requirements of the Act 
because of the presence of one or more species currently listed under 
the Act. We do not anticipate that this designation will impose any 
additional direct regulatory steps to private landowners.
    (46) Comment: Designation of critical habitat devalues land and 
makes it impossible to sell.
    Response: In some cases, the public may perceive that property 
adjacent to a stream channel designated as critical habitat will have 
lower market value than an identical property that is not adjacent to 
critical habitat. Conversely, others may believe that critical habitat 
designation will increase property values, especially adjacent 
property, if they believe that the designation will slow sprawling 
development in a given community (i.e., protect the rural character of 
an area) or protect and improve water quality of neighborhood streams 
and rivers. As noted above (see ``Response'' to Comment 45), critical 
habitat designation does not affect private land activities that do not 
involve a Federal Action. Most lands adjacent to stream channels 
designated as critical habitat are flood prone and used for 
silviculture and/or agriculture, activities that have little effect on 
the stream channel when Best Management Practices are employed. As the 
public becomes aware of the true regulatory burden imposed by critical 
habitat, the impact of the designation on property markets is 
anticipated to be minimal. Therefore, we do not believe the designation 
of these stream channels as critical habitat will result in any 
significant additional regulatory burden on landowners or affect the 
use or value of their property.
    (47) Comment: Regulatory measures resulting from critical habitat 
designation may hamper expansion of recreational activities in the 
Coosa River.
    Response: Critical habitat applies only to Federal actions and 
activities. This designation will not affect private recreational 
activities in the Coosa River or other designated units.
    (48) Comment: Critical habitat designation could limit or restrict 
use of farm pesticides, and stop dredging in the Alabama River.
    Response: Under the Act, the Environmental Protection Agency (EPA) 
and the U.S. Army Corps of Engineers (USACE) are required to consult 
with us over their actions which may affect listed species or their 
critical habitats. These 11 mussels have been protected under the Act 
since 1993, and we have

[[Page 40093]]

conducted both formal and informal consultations with EPA and the USACE 
regarding their actions, including pesticide registration and 
navigation maintenance. Since actions that might destroy or adversely 
modify these critical habitat units may also jeopardize mussels, it is 
unlikely that critical habitat designation will significantly change 
the outcome of future consultations on these species.
    (49) Comment: Designation of critical habitat will create 
bureaucratic delays in flood reduction measures authorized and funded 
by Congress. For example, there has been an ongoing consultation since 
1988 for the purpose of obtaining a biological opinion to permit 
routine maintenance of the East Fork Tombigbee River (Unit 1).
    Response: Section 7(a)(2) of the Act requires Federal agencies to 
consult with us to insure that their actions do not jeopardize the 
continued existence of listed species or result in the destruction or 
adverse modification of critical habitat. The Act also requires us to 
conclude these consultations in a timely manner, unless an extended 
period of consultation is agreed upon by the Service, the Federal 
agency, and any concerned applicant. In 1988, the USACE, Mobile 
District (Corps), requested formal consultation on the effects of 
channel clearing and snagging operations on five species of listed 
mussels that were believed to be present in the East Fork Tombigbee 
River. During the preparation of a draft biological opinion, 
information became available that the mussels were located in the 
middle reaches of the East Fork, remote from the areas in the 
headwaters that were affected by channel obstructions. The Corps used 
this information to confine the location, and modify the timing and 
method of the action, such that it no longer had the potential to 
jeopardize the mussels. As a result, the consultation was concluded 
informally and a biological opinion was not required, and the clearing 
and snagging of channel obstructions in the East Fork Tombigbee were 
completed.
    (50) Comment: The critical habitat designation may impact future 
water supplies in the Birmingham Metropolitan Area by forcing the 
relocation of a potential water reservoir on the Locust Fork (Unit 12).
    Response: Although there has been no request for consultation, we 
are aware that the Birmingham Water Works Board (BWWB) is considering 
future construction of a water supply reservoir on the Locust Fork 
within critical habitat Unit 12. This reach of the Locust Fork is 
designated as occupied critical habitat for the triangular kidneyshell 
and orange-nacre mucket, and as unoccupied critical habitat for four 
other mussel species. It also supports the only surviving population of 
the plicate rocksnail (Leptoxis plicata), and one of only two known 
populations of the Cahaba shiner (Notropis cahabae). Both of these 
species are listed as endangered, without critical habitat, and must 
also be considered in regard to any future permit to impound this 
habitat. One of the benefits of critical habitat designation is to 
inform Federal agencies and other parties of the importance of habitats 
to the conservation of species, and thus allow for the early 
consideration of alternatives to actions that might destroy or 
adversely affect critical habitat. The costs of a future consultation 
on water supply in the Locust Fork, as well as the costs of alternative 
locations considered by BWWB outside of the critical habitat area, have 
been included in our final Economic Analysis.
    (51) Comment: The draft economic analysis did not consider impacts 
to small entities as a result of the inability of the BWWB to provide 
wholesale water to small counties if the Locust Fork reservoir is not 
built.
    Response: Impacts to small governments were considered in the 
Economic Analysis and are summarized in this rule (see ``Regulatory 
Flexibility Act,'' below). The Economic Analysis does not anticipate 
that the BWWB water supply reservoir will not be built, but rather that 
it may be relocated to a site that will be able to meet the demand for 
water supply to the same extent or greater than if it were located at 
the proposed site at Locust Fork. Although this project is not proposed 
within a small county it is likely that costs of project modifications 
may impact residents of counties that are considered small (i.e., have 
a population below the 50,000 threshold), if they are included in the 
consumer base of the reservoir. The economic impact of regional effects 
to State, local, and tribal governments and the private sector, are 
considered below (see ``Unfunded Mandates Reform Act Analysis,'' 
below).
    (52) Comment: The draft economic analysis did not explain potential 
impacts to minorities or low-income groups that will result from water 
shortages, higher water costs, or the inability to develop and expand 
business.
    Response: Neither minorities nor low-income populations are 
anticipated to be disproportionately affected by this designation. 
Economic impacts to private parties are considered below (see 
``Unfunded Mandates Reform Act Analysis'').
    (53) Comment: The draft Economic Analysis did not include the 
economic impacts to hydropower operations at Carters Lake.
    Response: The draft economic analysis forecast one informal and one 
formal consultation regarding flow regime at Carters Reregulation Dam 
(Rereg Dam) over 10 years. In the final Economic Analysis, we have 
considered impacts to Carters Dam operations that might result from 
modifications to flow rates at the Rereg Dam.
    (54) Comment: The costs associated with coal generation as 
substitute for electric power generation at hydroelectric dams in the 
draft Economic Analysis is appropriate for base load generation, but 
not for peaking power.
    Response: The final Economic Analysis uses gas production as the 
substitute energy source for peaking power, and coal as the most 
appropriate substitute for base load.
    (55) Comment: It is not possible for the Service to quantify 
potential economic impacts of the proposed designation without specific 
information regarding primary constituent elements. It is not possible 
to estimate the economic impact of an uncertain change in flow below 
Weiss Dam to provide for mussels and their habitat.
    Response: We have used the best scientific information available in 
identifying primary constituent elements essential to the conservation 
of these 11 Mobile River Basin mussels (see ``Response'' to Issue 37). 
Mussels live embedded in the river bottom and filter water for food and 
oxygen. Formal and informal consultations that have been conducted 
since these species were listed have focused on minimizing impacts to 
their habitats (i.e., primary constituent elements) in order to avoid 
or reduce incidental take of the species. Therefore, we have used the 
11-year consultation history over a wide array of actions that may 
affect these mussels to identify the outcomes and costs associated with 
previous consultations, and to predict the number and potential costs 
of future consultations. In order to ensure that we captured the full 
cost of designation, we have attempted to use conservative (i.e., high 
end) estimates of future costs. For example, the fine-lined pocketbook 
and southern clubshell mussels have survived in the Coosa River channel 
below Weiss Dam under leakage and tributary flows for about four 
decades. An increase in flow from Weiss Dam would expand riverine 
habitat, improve water quality and flow

[[Page 40094]]

conditions during drier periods, and possibly allow these species to 
expand their range in the Weiss Bypass Channel. However, significant 
increases in flows through Weiss Dam may change patterns of erosion and 
deposition within the channel, affect movement and behavior of fish 
hosts, and affect water temperature and chemistry, possibly to the 
detriment of the species. Consultation on relicensing of Weiss Dam is 
currently ongoing. In order to capture the outcome of potential flow 
recommendations that may result from this consultation, we have 
conservatively used 200 cubic feet per second (cfs) as a low estimate 
of flow recommendations, and 2000 cfs as the high estimate. It is 
likely that the Service will recommend flows closer to the low-end 
estimates used in the economic analysis.
    (56) Comment: The draft Economic Analysis did not distinguish costs 
between Federal dams and Federal Energy Regulatory Commission (FERC) 
licensed dams, and did not include costs of modifications or lost 
energy.
    Response: The final Economic Analysis uses the best available 
information to estimate a range of potential modification costs and 
lost energy production at each hydropower operation within the 
designation.
    (57) Comment: The draft Economic Analysis failed to adequately 
assess the potential economic benefits of the critical habitat 
designation, and did not address whether the benefits of excluding 
areas outweigh the benefits of designation.
    Response: There is little disagreement in the published economic 
literature that real social welfare benefits can result from the 
conservation and recovery of endangered and threatened species. A 
regional economy can benefit from the preservation of healthy 
populations of endangered and threatened species and the habitat on 
which they depend. In the final Economic Analysis of critical habitat 
designation for the mussels, additional discussion has been provided 
concerning the potential economic benefits associated with measures 
implemented for the protection of water and habitat quality that may 
occur and be attributable to the effects of future section 7 
consultations. It is not feasible, however, due to the scarcity of 
available studies and information relating to the size and value of 
potential beneficial changes that are likely to occur as a result of 
the listing of the species or the designation of their critical 
habitat, to fully describe and accurately quantify all the benefits of 
potential future section 7 consultation in the context of the economic 
analysis. While the economic analysis concludes that many of the 
benefits of critical habitat designation are difficult to estimate, it 
does not necessarily lead to the conclusion that the benefits are 
exceeded by the costs. We use the economic analysis and other relevant 
information to conduct analyses under section 4(b)(2) of the Act. If 
relevant to a particular critical habitat designation, these 
considerations are included in the final rule (50 CFR 424.19) (see 
``Exclusions Under Section 4(b)(2),'' below).
    (58) Comment: The ten-year time-frame of the economic analysis is 
inadequate, as it is likely that costs will extend into the future.
    Response: To be credible, the economic analysis must estimate 
economic impacts based on activities that are reasonably foreseeable. A 
ten-year time horizon is used because many landowners and managers do 
not have specific plans for projects beyond ten years, and forecasting 
beyond ten years increases the subjectivity of estimating potential 
economic impacts. In addition, the forecasts in the analysis of future 
economic activity are based on current socioeconomic trends and the 
current level of technology, both of which are likely to change over 
the long term. If information is available for particular projects 
where costs may be incurred over a different period of time, the 
appropriate time-frame is employed. For example, the final Economic 
Analysis applies a 30-year time-frame to annual lost energy production 
costs at Carters and Weiss Dam, as licenses for hydropower projects are 
typically renewed on a 30- to 50-year schedule. Applying the same lost 
power costs over 30 years, however, may overstate the real annual 
impacts as is it likely that changes to rate structures will be brought 
about through broader market adjustments in the long term. Further, 
costs associated with the potential relocation of the water supply 
reservoir at Locust Fork are anticipated to be incurred over a 25-year 
time-frame as the project is anticipated to take 25 years to complete.
    (59) Comment: The economic analysis overestimates the costs 
resulting from designation of critical habitat by including costs of 
listing (i.e., all section 7 costs, regardless of critical habitat 
designation).
    Response: Certain legal decisions, specifically the decision New 
Mexico Cattlegrowers Association v. U.S. Fish and Wildlife Service, 248 
F3d 1277 (10th Cir. 2001), require us to look at co-extensive costs 
(consideration of the impact of all section 7 effects that could be a 
result of the designation), even if they are the same as those that 
arise from the listing.
    (60) Comment: The draft Economic Analysis was based on guesses and 
caveats that can readily and substantially affect cost estimates. The 
solicitation of specific information during the comment periods belies 
uncertainty in the analysis.
    Response: The draft Economic Analysis was based on the best 
available information. Solicitation of additional information during 
the open comment periods ensured that the economic analysis 
incorporates the best available information regarding economic impacts 
of the designation. The final Economic Analysis incorporates new 
information brought to our attention during the open comment periods.
    (61) Comment: The draft Economic Analysis assumed that 
consultations will continue into the future at the same rate and costs 
as in the past, leading to an understatement of potential economic 
activity. It failed to employ forecasting methods that reflect future 
cost increases.
    Response: The economic analysis does not assume that future 
consultations will occur at the same rate as in the past. The estimated 
future consultations are based on conversations with action agencies 
and third parties and reflect, where appropriate, trends in 
consultation rates. As a result, the analysis forecasts a much greater 
rate of consultation in the future than has occurred historically. This 
may be due in part to economic growth and expansion, and in part due to 
education on the specific locations of the species, and on activities 
that require consultation. The economic analysis employs a cost model 
that applies appropriate discount rates to account for the rate of time 
preference in determining the present value of total costs.
    (62) Comment: The draft Economic Analysis ignored costs to third 
parties and relied entirely on the direct costs associated with section 
7 consultations, writing off costs to third parties as insignificant.
    Response: The draft Economic Analysis concluded that the plurality 
of costs associated with critical habitat designation will be borne by 
third parties, including State and local governments (approximately 57 
percent of total estimated costs) and private entities (approximately 
36 percent of total estimated costs). In addition, the final Economic 
Analysis is not limited to direct costs related to complying with 
section 7 consultations. For example, it is noted that the cost of lost 
energy

[[Page 40095]]

production at the affected hydropower projects may be passed on to the 
power consumers as a direct ``fuel adjustment'' increase to their power 
bill.
    (63) Comment: It is unclear how average administrative costs of 
consultations were determined in the economic analysis, and whether 
these averages are representative.
    Response: The economic analysis employs a consultation cost model 
to estimate the likely range of administrative costs of informal and 
formal consultations, and technical assistance efforts associated with 
the designation of critical habitat. This cost model is based on 
anticipated administrative effort at a number of Service Field Offices 
across the country, including those Field Offices relevant to this 
designation. The administrative effort is typically defined in number 
of hours spent, and then translated into a dollar value by applying the 
appropriate average government salary rates. Further, administrative 
costs to action agencies are estimated based on a similar survey of 
agencies across the country. In interviewing the agencies relevant to 
this analysis, the representatives were asked if the estimated 
administrative costs seemed reasonable. In the case that the agency 
anticipated a different range of costs for their particular activities 
within the proposed designation that cost range was applied to the 
relevant consultations in place of the generic cost model estimates.
    (64) Comment: Critical habitat designation could have a detrimental 
impact on future growth and development around the designated units.
    Response: With the exception of cases in which critical habitat 
designation excludes a portion of available land from development, and 
where substitutes are limited, designation is unlikely to substantially 
affect the course of regional economic development. In cases where an 
industry requires the direct use of the natural resources of mussel 
habitat (e.g., large volume of water for cooling or discharge), the 
presence of the mussels or critical habitat may impact a decision to 
locate in that area. Environmental regulations such as critical habitat 
designation likely constitute some fraction of the many factors 
involved in the decision to locate a facility. However, in the absence 
of information on the type of economic activity being considered, it is 
not feasible to determine what level of economic impact the designation 
may create on the activity. Therefore, the economic analysis 
recognizes, but does not quantify, impacts to the future growth and 
development.
    (65) Comment: The critical habitat designation will shut down the 
timber, lumber, and chip business around the affected areas.
    Response: The economic analysis does not anticipate impacts to the 
silviculture industry. The concern of timber harvest activities related 
to the mussels and their habitat is implementation of buffer zones and 
other silvicultural Best Management Practices (BMPs). Silvicultural 
BMPs provide for the protection of riparian buffers and reduce erosion 
and other forms of nonpoint source pollution that result from common 
silvicultural practices. BMPs must be followed in order to retain 
exemption from 404 permits, and they are in general practice within the 
designated areas. The majority of silviculture is practiced on private, 
non-industrial land, without a Federal nexus.
    (66) Comment: In conducting our economic analyses of critical 
habitat designations pursuant to section 4(b)(2) of the Act, we must 
solicit data regarding all economic impacts associated with a listing 
as part of the critical habitat designation, including sections 9 and 
10 of the Act.
    Response: Because it may be difficult to distinguish potential 
economic effects resulting from a species being listed as endangered or 
threatened relative to those potential economic effects resulting from 
designating critical habitat for a species, we often collect economic 
data associated with the species being listed to provide for a better 
understanding of the current economic baseline as we conduct our 
required analyses under section 4(b)(2) of the Act. This approach is 
consistent with the ruling New Mexico Cattlegrowers Association v. U.S. 
Fish and Wildlife Service, 248 F3d 1277 (10th Cir. 2001).
    (67) Comment: The final rule designating critical habitat for the 
11 mussels must include an explanation of the cost/benefit analysis for 
both why an area was included and why an area was excluded.
    Response: Pursuant to section 4(b)(2) of the Act, we are required 
to take into consideration the economic impact, impacts to national 
security, and any other relevant impact of specifying any particular 
area as critical habitat. We may exclude any area from critical habitat 
if we determine that the benefits of such exclusion outweighs the 
benefits of specifying such area as part of the critical habitat, 
providing that the failure to designate such area will not result in 
the extinction of the species. A decision to exclude an area is 
discretionary. We use information from our economic analysis, or other 
sources such as public comments, management plans, etc., to conduct the 
analysis for any exclusion we might consider making. For us to consider 
excluding an area from the designation, we are required to determine 
that the benefits of the exclusion outweighs the benefits (i.e., 
biological or conservation benefits) of including the specific area in 
the designation. This is not simply a cost/benefit analysis, however. 
This is a policy analysis, and can include consideration of the impacts 
of the designation, the benefits to the species of the designation as 
well as policy considerations such as national security, tribal 
relationships, impacts on conservation partnerships and other public 
policy concerns. This evaluation was done on a case-by-case basis for 
particular individual units using the best available scientific and 
commercial data. Based on the best available information including the 
prepared economic analysis, we believe that all of the 26 units are 
essential for the conservation of these species and have identified no 
areas where the benefits of exclusion outweigh the benefits of 
designation (see ``Exclusions under Section 4(b)(2)'' below). Contrary 
to the comment, there is no requirement in the Act that we provide an 
economic justification for including an area in critical habitat, or 
that we perform a traditional cost-benefit analysis as part of our 
determination as to whether to designate or exclude particular areas.

Section 4(i) Comments From States

    (68) Comment: The designation could affect activities the Tombigbee 
River Valley Water Management District (TRVWMD) conducts with Federal 
agencies such as the USACE, and cripple or unnecessarily delay their 
ability to perform future water related projects. The designation of 
units in northeast Mississippi will conflict with existing Federal 
flood control measures.
    Response: Activities which require Federal permits or funding are 
already subject to consultation requirements of the Act within the 
designated units because one or more listed species occur there. 
Consultation outcomes in the Tombigbee drainage units are not likely to 
be significantly affected by the designation, since activities which 
would adversely modify critical habitat would also result in adverse 
effects to the species. TRVWMD activities which do not require Federal 
participation or funding are unaffected by the designation.

[[Page 40096]]

    (69) Comment: TRVWMD is concerned that the designation will have 
adverse effects on attracting new industry to northeast Mississippi.
    Response: See comment 64.
    (70) Comment: The designation will add unnecessary red tape and 
bureaucracy.
    Response: See comment 45.
    (71) Comment: TRVWMD recommended deletion of Units 1, 2, 3, and 4, 
because the mussels could be protected within the other designated 
units.
    Response: ``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. Therefore, we must consider the 
quantity of habitat needed to conserve these species. The primary 
threats affecting the Mobile River Basin mussels are their limited 
distribution, habitat fragmentation, and population isolation. Due to 
these threats, it is unlikely that currently occupied habitat is 
adequate for the conservation of all 11 species. Because small, 
isolated, aquatic populations are subject to chance catastrophic events 
and to changes in human activities and land use practices that may 
result in their elimination, protection of surviving populations and 
their habitats reduces the threat of extinction and increases the 
opportunities for conservation of the species. Therefore, we have 
determined that all 26 units, including those units in northeast 
Mississippi, are essential for the conservation of the species for 
which they are designated. Eliminating Units 1, 2, 3, and 4 would 
increase the risk of extinction and reduce the potential for 
conservation of the species.
    (72) Comment: Designation of the East Fork Tombigbee (Unit 1) will 
exacerbate bureaucratic gridlock and delays that are preventing flood 
damage reduction measures. A consultation to permit routine maintenance 
has been on-going for more than 18 years.
    Response: See comment 49.
    (73) Comment: Substantial future economic benefits associated with 
flood control projects will likely evaporate with critical habitat 
designation. These were not considered in the economic analysis.
    Response: Ongoing flood control projects in northeast Mississippi 
have already considered effects on listed mussels in the critical 
habitat units, and are unlikely to be significantly affected by the 
designation. No significant future projects that are likely to occur in 
the designated units in northeast Mississippi were brought to our 
attention by the USACE or others during the open comment periods for 
the proposed rule or the draft economic analysis. In the absence of 
information on the type of economic activity that might occur in these 
units in the future, it is not feasible to determine what level of 
economic impact the designation may create on the activity. Therefore, 
the economic analysis recognizes, but does not quantify, impacts to 
future growth and development.
    (74) Comment: The Service did not comply with the National 
Environmental Policy Act in making this action.
    Response: See comment 13.

Critical Habitat

    Critical habitat is defined in section 3 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'' means the use of all methods and procedures that are 
necessary to bring an endangered or a threatened species to the point 
at which listing under the Act is no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat.
    To be included in a critical habitat designation, the habitat must 
first be ``essential to the conservation of the species.'' Critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, habitat areas that provide 
essential life cycle needs of the species (i.e., areas on which are 
found the primary constituent elements, as defined at 50 CFR 
424.12(b)).
    Occupied habitat may be included in critical habitat only if the 
essential features thereon may require special management or 
protection. Thus, we do not include areas where existing management is 
sufficient to conserve the species. (As discussed below, such areas may 
also be excluded from critical habitat pursuant to section 4(b)(2).)
    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 and 
commercial data do not demonstrate that the conservation needs of the 
species so require, we will not designate critical habitat in areas 
outside the geographic area occupied by the species.
    Our Policy on Information Standards Under the Endangered Species 
Act, published in the Federal Register on July 1, 1994 (59 FR 34271), 
provides criteria, establishes procedures, and provides guidance to 
ensure that decisions made by the Service represent the best scientific 
and commercial data available. It requires Service biologists, to the 
extent consistent with the Act and with the use of the best scientific 
and commercial data available, to use primary and original sources of 
information as the basis for recommendations to designate critical 
habitat.
    Critical habitat designations do not signal that habitat outside 
the designation is unimportant to these 11 mussels. Areas outside the 
critical habitat designation will continue to be subject to 
conservation actions that may be implemented under section 7(a)(1), and 
to the regulatory protections afforded by the section 7(a)(2) jeopardy 
standard and the section 9 take prohibition, as determined on the basis 
of the best available information at the time of the action. We 
specifically anticipate that federally funded or assisted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Methods and Criteria Used To Identify Critical Habitat for 11 Mussel 
Species

    As required by section 4(b)(2) of the Act and implementing 
regulations (50 CFR 424.12), we used the best scientific and commercial 
information available to determine critical habitat areas that contain 
the physical and biological features that are essential for the 
conservation of the Coosa moccasinshell, southern clubshell, dark

[[Page 40097]]

pigtoe, southern pigtoe, ovate clubshell, triangular kidneyshell, 
southern acornshell, upland combshell, fine-lined pocketbook, orange-
nacre mucket, and Alabama moccasinshell. We reviewed the available 
information pertaining to the historic and current distributions, life 
histories, host fishes, and habitats of, and threats to these species. 
The information used in the preparation of this designation includes: 
our own site-specific species and habitat information; unpublished 
survey reports, notes, and communications with other qualified 
biologists or experts; peer reviewed scientific publications; the final 
listing rule for 11 mussels in the Mobile River Basin (58 FR 14330); 
and the Mobile River Basin Aquatic Ecosystem Recovery Plan (U.S. Fish 
and Wildlife Service, 2000). In determining the areas that are 
essential to the conservation of the 11 mussels, we considered all 
streams currently or historically known to be occupied by one or more 
of the species (see ATaxonomy, Life History, and Distribution'' above). 
It is likely that other occupied stream or stream segments exist that 
may be essential to the survival and conservation of these mussels, but 
we do not currently know where these are, and therefore cannot include 
them in this critical habitat designation.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, we are required to base critical habitat determinations 
on the best scientific and commercial data available and to consider 
those physical and biological features (primary constituent elements 
(PCEs)) that are essential to the conservation of the species, and that 
may require special management considerations and protection. These 
include, but are not limited to: space for individual and population 
growth and for normal behavior; food, water, air, light, minerals, or 
other nutritional or physiological requirements; cover or shelter; 
sites for breeding, reproduction, and rearing (or development) of 
offspring; and habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species.
    As detailed in the Background section in the proposed critical 
habitat rule (refer to 68 FR 14752, March 26, 2003), these 11 mussels, 
in general, live embedded in the bottom sand, gravel, and/or cobble 
substrates of rivers and streams. They also have a unique life cycle 
that involves a parasitic stage on host fish. Juvenile mussels require 
stable substrates with low to moderate amounts of sediment and low 
amounts of filamentous algae, and correct flow and water quality to 
continue to develop. The presence of suitable host fish is considered 
an essential element in these mussels' life cycles. In addition, 
because of their life cycle, small population sizes, and limited 
habitat availability, they are highly susceptible to competitive or 
predaceous nonnative species.
    Unfortunately, knowledge of the essential features required for the 
survival of any particular freshwater mussel species consists primarily 
of basic concepts with few specifics (Jenkinson and Todd 1997). Among 
the difficulties in defining habitat parameters for mussels are that 
physical and chemical conditions (e.g., water chemistry, flow, etc.) 
within stream channel habitats may vary widely according to season, 
precipitation, and human activities within the watershed. In addition, 
conditions between different streams, even those occupied by the same 
species, may vary greatly due to geology, geography, and/or human 
population density and land use. See comment 36 for further detail. 
Therefore, we used the best available scientific information to broadly 
define six primary constituent elements.
    Based on the best available information, primary constituent 
elements essential for the conservation of these 11 mussel species 
include the following:
    1. Geomorphically stable stream and river channels and banks;
    2. 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 mussels and their fish hosts 
in the river environment;
    3. Water quality, including temperature, pH, hardness, turbidity, 
oxygen content, and other chemical characteristics necessary for normal 
behavior, growth, and viability of all life stages;
    4. Sand, gravel, and/or cobble substrates with low to moderate 
amounts of fine sediment, low amounts of attached filamentous algae, 
and other physical and chemical characteristics necessary for normal 
behavior, growth, and viability of all life stages;
    5. Fish hosts with adequate living, foraging, and spawning areas 
for them; and,
    6. Few or no competitive or predaceous nonnative species present.
    All areas designated as critical habitat for the 11 mussels are 
within the species' historic ranges and contain one or more of the 
physical or biological features (primary constituent elements) 
identified as essential for the conservation of these species. We 
believe these physical and biological features are essential to the 
conservation of the species and provide space for individual and 
population growth and for normal behavior [Constituent elements 1, 2, 
3, 4, and 6]; food, water, air, light, minerals, or other nutritional 
or physiological requirements [Constituent elements 1 and 2]; cover or 
shelter; sites for breeding, reproduction, and rearing (or development) 
of offspring [Constituent elements 4 and 5]; and habitats that are 
protected from disturbance [Constituent element 1].
    In identifying these 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.

Analysis Used To Delineate Critical Habitat

    We are proposing to designate critical habitat on lands that we 
have determined are essential to the conservation of the 11 mussels. 
These areas have the primary constituent elements described above.
    Currently, the greatest general threat to the survival and recovery 
of these 11 Mobile River Basin mussel species is the small size, 
extent, and isolation of their remaining populations. With the 
exception of the dark pigtoe, which is believed to be naturally 
restricted to streams and rivers in the Black Warrior drainage, these 
mussel species were once widespread in the Basin, found in a continuum 
of small streams to large rivers in 2 or more major drainages. As 
discussed under the ``Summary of Factors Affecting the Species,'' 
above, and the Mobile River Basin Aquatic Ecosystem Recovery Plan (U.S. 
Fish and Wildlife Service, 2000), 30 major dams were constructed in the 
Basin during the 20th century. These dams and their impounded waters 
present physical barriers to the natural dispersal of mussels (they 
prevent emigration (dispersal) of host fishes), and effectively isolate 
surviving mussel populations in limited portions of the Basin's major 
drainages. Small isolated aquatic populations are subject to natural 
random events (droughts, floods), and to changes in human activities 
and land use practices (urbanization, industrialization, mining, 
certain agricultural activities and

[[Page 40098]]

practices, etc.), that may severely impact aquatic habitats (Neves et 
al., 1997). Without avenues of emigration to less-affected watersheds, 
mussel populations gradually disappear where land use activities result 
in deterioration of aquatic habitats. Local random events, and changes 
in human activities within the Basin's unimpounded watersheds are 
believed to have caused or contributed to the disappearance of mollusks 
from significant portions of isolated stream habitats, resulting in the 
extinction of as many as 13 mussels, as well as a number of freshwater 
snail species (U.S. Fish and Wildlife Service, 2000).
    Most of the 11 mussel species considered in this final designation 
are currently represented by one or more small, restricted, and 
isolated populations. These surviving populations have been isolated 
from one another by dams and impounded reaches for 20 to 50 years, and 
remain vulnerable to the progressive degradation of their habitats from 
land surface runoff or random natural events such as droughts. In many 
of these surviving populations, there is also evidence of local 
population decline during the same time period (e.g., Evans, 2001; 
Hartfield and Jones, 1990; Williams and Hughes, 1998; McGregor et al., 
2000).
    The Mobile River Basin Aquatic Ecosystem Recovery Plan (U.S. Fish 
and Wildlife Service, 2000), recognized the complexity of conserving 
the Basin's imperiled species, and considered that downlisting or 
delisting these 11 mussels was unlikely in the foreseeable future 
because of the extent of their decline, the fragmentation and isolation 
of their habitats, and continuing impacts upon their habitats. 
Compounding these problems is an overall lack of detailed information 
on specific habitat and life history requirements of these species, or 
on the physical threats that confront them (e.g., sediment, nutrient, 
and other pollutant sensitivities, etc.). Threats compounded by habitat 
fragmentation and isolation can be reduced by increasing the number, 
expanding the range, and increasing the density of populations. 
Preventing the extinction of those species listed as endangered, and 
arresting the continued decline of those species listed as threatened 
are the recovery objectives outlined in the recovery plan for these 11 
mussels. The recovery plan emphasizes: (1) Protection of surviving 
populations of these mussels and their stream and river habitats; (2) 
enhancement and restoration of habitats; and (3) population management, 
including augmentation and reintroduction of the 11 mussels into 
portions of their historic ranges to obtain these recovery objectives. 
In determining which areas to propose as critical habitat for these 11 
mussels, we considered the factors discussed in the recovery plan, as 
well as the mussels' historical distributions and the extent of current 
occupied habitats and their management potential.
    We began our analysis by considering the historic ranges of the 11 
mussel species. A large proportion of the Basin's streams and rivers 
that historically supported these mussels has been modified by existing 
dams and their impounded waters. Therefore, extensive portions of the 
upper Tombigbee River, Black Warrior River, Tallapoosa River, Alabama 
River, and Coosa River 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 APrimary Constituent Elements' section).
    Free-flowing river segments and their tributaries peripheral to the 
known historic range of the 11 mussels, and without any records of the 
species, also cannot be considered to be essential to the conservation 
of these species (e.g., Mobile/Tensas River, lower Tombigbee River, 
etc.) and so were not considered further. Several streams with single 
site occurrence records of a single species were also not considered 
essential because of limited habitat availability, isolation, degraded 
habitat, and/or low management value or potential (e.g., Etowah River, 
Big Wills Creek, Little River, Armuchee Creek, Euharlee Creek, 
Limestone Creek, etc.).
    We then evaluated streams and rivers within the historic ranges of 
these 11 species which had evidence that these mussels had occurred 
there at some point (i.e., collection records). We eliminated from 
consideration areas from which there have been no collection records 
for several decades and/or are remote from currently occupied areas 
(e.g., portions of the lower Alabama River, lower Cahaba River, 
Mulberry Fork, Noxubee River, Talladega Creek, and others). In 
evaluating streams for the upland combshell and southern acornshell, 
specifically, we considered their historic ranges (Black Warrior, 
Cahaba, and Coosa River drainages). We selected those areas which have 
the best potential for and we believe are essential to the conservation 
of these two mussels based on collection history, surviving mussel 
species assemblages, and habitat conditions.
    This analysis resulted in the identification of 25 stream or river 
reaches within the Basin (habitat units) occupied by one or more of the 
11 species and that contain one or more of the primary constituent 
elements as indicated by the presence and persistence of one or more of 
the listed mussels (Figure 1, Units 1 to 25). We believe that these 
areas also support darters, minnows, and other fishes that have been 
identified as hosts or potential hosts for one or more of the mussels, 
as evidenced by fish collection records (Mettee et al., 1996), the 
persistence of the mussels over extended periods of time, or field 
evidence of recruitment (Evans, 2001; Hartfield and Jones, 1990; and 
Herod et al., 2001). We consider all of these 25 reaches essential for 
the conservation of these species. As discussed in the Recovery Plan, 
long-term conservation of these 11 mussels is unlikely in their 
currently reduced and fragmented state. Therefore, at a minimum, it is 
essential to designate the reaches within the historic range that still 
contain mussels and the primary constituent elements of the habitat.
    We then considered whether this essential area was adequate for the 
conservation of each of the 11 mussel species. Given that threats to 
the species are compounded by their limited distribution and isolation, 
it is unlikely that currently occupied habitat is adequate for the 
conservation of all 11 species. Conservation of these species requires 
expanding their ranges into currently unoccupied portions of their 
historic habitat because small, isolated, aquatic populations 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 
due to habitat fragmentation and isolation.
BILLING CODE 4310-55-P

[[Page 40099]]

[GRAPHIC] [TIFF OMITTED] TR01JY04.000

BILLING CODE 4310-55-C
    Because portions of the historic range of each of the 11 mussels 
were shared with 4 or more of the other mussel species, there is 
considerable overlap

[[Page 40100]]

between species' current and historical distributions within these 25 
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 Alabama moccasinshell historically inhabited 16 of the 
units, and currently inhabits 7; fine-lined pocketbook was known from 
12 of the units, and currently inhabits 10; orange-nacre mucket 
historically occupied 15 units, and is currently found in 12; and Coosa 
moccasinshell historically occupied 9 of the units, but is currently 
found in only 1. Successful reintroduction of the species into units 
that they historically occupied (and that are currently occupied by 1 
or more of the 11 species) would expand the number of populations, 
thereby reducing threat of extinction. Each of the 25 habitat units 
(Units 1-25) are currently occupied by 1 or more of the listed mussels. 
Only two occupied habitat units and one unoccupied habitat unit are 
designated for the dark pigtoe because its range was naturally 
restricted to the Black Warrior River drainage, and we are unable to 
identify any other unoccupied habitat units in the drainage that 
provide constituent elements.
    As noted above, conservation of these species requires expanding 
their ranges into unoccupied portions of historic habitat. Therefore, 
in addition to these 25 habitat units, we also designate the Coosa 
River below Jordan Dam (Unit 26) as critical habitat for 9 of the 11 
mussel species. Shells of the fine-lined pocketbook were last collected 
from this reach in 1989 (Pierson, 1991a), and it is also within the 
historic range of 8 other species. This is the only unit currently not 
occupied by at least 1 of the 11 species (Johnson, 2002). This area has 
recently been identified as presenting high potential for the 
successful reintroduction of imperiled mussels in the Coosa River 
drainage (Johnson, 2002). In 1990, the Alabama Power Company increased 
minimum flows below Jordan Dam into the Coosa River channel from about 
70 cubic feet per second (cfs) to 2000 cfs (Federal Energy Regulatory 
Commission (FERC), 1990), greatly improving aquatic habitat quality. 
The lower Coosa River not only offers high-quality riverine habitat, 
but due to local geology, it is relatively protected from non-point 
runoff, a major threat to all existing populations of these species. 
There are historic records of fine-lined pocketbook and southern 
clubshell from this 13 km (8 mi) reach of river (Johnson, 2002; 
Pierson, 1991a), and it is within the historic range of Alabama 
moccasinshell, Coosa moccasinshell, ovate clubshell, southern pigtoe, 
triangular kidneyshell, southern acornshell, and upland combshell. As 
noted above, threats to these species can be reduced by expanding their 
current ranges through reintroduction into suitable habitats. Since the 
Coosa River below Jordan Dam is viewed by experts as a high-quality 
example of remaining mussel habitat in the Basin, and is recognized as 
presenting the best opportunity for reestablishing mussel populations 
(Johnson 2002), we believe it is also essential for the conservation of 
these 9 mussel species, and designate it as unoccupied habitat.
    As a result, we have defined 26 habitat units encompassing 
approximately 1,760 km (1,093 mi) of stream and river channels in 
Alabama, Mississippi, Georgia, and Tennessee, for these 11 mussel 
species (Figure 1). Although this represents only a small proportion of 
each species' historic range, these habitat units include a significant 
proportion of the Basin'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 (i.e., 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.
    We recognize that both historic and recent collection records upon 
which we relied are incomplete, and that there are river segments or 
small tributaries not included in this final designation that may 
harbor small, limited populations of one or more of the 11 species 
considered in this designation, or that others may become suitable in 
the future. The exclusion of such areas does not diminish their 
potential individual or cumulative importance to the conservation of 
these species. However, we believe that with proper management each of 
the 26 habitat units are capable of supporting 1 or more of these 11 
species, and will serve as source populations for artificial 
reintroduction into designated stream units, as well as assisted or 
natural migration into adjacent undesignated streams within the Basin.
    At this time, the habitat areas contained within the units 
described below constitute our best evaluation of areas needed for the 
conservation of these species at this time. Critical habitat may be 
revised for any or all of these species should new information become 
available.

Need for Special Management Consideration or Protection

    When designating critical habitat, we assess whether the areas 
determined to be essential for conservation may require special 
management considerations or protections. All 26 critical habitat units 
identified in this final designation may require special management 
considerations or protection to maintain geomorphic stability, water 
quantity or quality, substrates, presence of fish hosts, or to prevent 
or control exotic competing or predaceous species. All of these units 
are threatened by actions that alter he stream slope (e.g., 
channelization, instream mining, impoundment) or create significant 
changes in the annual water or sediment budget (e.g., urbanization, 
deforestation, water withdrawal); point and/or nonpoint source 
pollution that results in contamination, nutrification, or 
sedimentation; and the introduction or augmentation of nonnative 
species that may compete with or prey on the mussel species inhabiting 
the units (e.g., Asian clams, zebra or quagga mussels, black carp). 
Habitat fragmentation, population isolation, and small population size 
compounds these threats to the species. Various activities in or 
adjacent to each of the critical habitat units described in this final 
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 below in the ``Effects of Critical Habitat'' section 
as ``Federal Actions That May Affect Critical Habitat and Require 
Consultation.'' None of the critical habitat units is presently under 
special management or protection provided by a legally operative plan 
or agreement for the conservation of these mussels. These threats may 
render the habitat less suitable for these 11 mussels, therefore, we 
have determined that the critical habitat units may require special 
management or protection. At this time, special management 
considerations under 3(5)(a) of the Act warrant designating these units 
as critical habitat.

Critical Habitat Designation

    The areas that we are designating as critical habitat for the 11 
mussel species provide one or more of the primary constituent elements 
described above. In accordance with the Mobile River Aquatic Ecosystem 
Recovery Plan

[[Page 40101]]

(2000), protection of the habitat in these units and their surviving 
populations is essential to the conservation of these 11 mussel 
species. All of the designated areas require special management 
considerations to ensure their contribution to the conservation of 
these mussels. For each stream reach identified as a critical habitat 
unit, the up- and downstream boundaries are described in general detail 
below; more precise estimates are provided in the Regulation 
Promulgation of this rule.

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 designating the following areas as critical habitat for 
the 11 mussel species (Refer to Table 1 for the location and extent of 
critical habitat designated for each species and more specifically to 
Sec.  17.95, Critical habitat-fish and wildlife, at the end of this 
rule).

   Table 1.--Approximate River Distances, by Drainage, for Occupied and Unoccupied Critical Habitat for the 11
                                               Mussel Species \*\
----------------------------------------------------------------------------------------------------------------
                                                              Current occupied           Currently unoccupied
   Species, status, critical habitat unit, and state   ---------------------------------------------------------
                                                         Kilometers        Miles       Kilometers       Miles
----------------------------------------------------------------------------------------------------------------
                                        Alabama moccasinshell--THREATENED
----------------------------------------------------------------------------------------------------------------
1. East Fork Tombigbee River, MS......................  ............  ..............            26            16
2. Bull Mountain Creek, MS............................            34             21
3. Buttahatchee River, MS, AL.........................           110             68
4. Luxapalila Creek, MS, AL...........................            29             18
5. Coalfire Creek, AL.................................  ............  ..............            32            20
6. Lubbub Creek, AL...................................            31             19
7. Sipsey River, AL...................................            90             56
8. Trussels Creek, AL.................................  ............  ..............            21            13
9. Sucarnoochee River, AL.............................  ............  ..............            90            56
10. Sipsey Fork, AL...................................           147             91
11. North River, AL...................................  ............  ..............            47            29
12. Locust Fork, AL...................................  ............  ..............           102            63
13. Cahaba River, AL..................................  ............  ..............           124            77
15. Bogue Chitto Creek, AL............................  ............  ..............            52            32
25. Oostanuala complex, GA, TN........................            16             10            191           119
26. Lower Coosa River, AL.............................  ............  ..............            13             8
                                                       ---------------
    Total.............................................           457            283            698           433
-------------------------------------------------------
                                        Fine-lined pocketbook--THREATENED
----------------------------------------------------------------------------------------------------------------
13. Cahaba River, AL..................................           124             77
16. Tallapoosa River, AL, GA..........................           161            100
17. Uphapee complex, AL...............................            74             46
18. Coosa River, AL...................................            78             48
19. Hatchet Creek, AL.................................            66             41
20. Shoal Creek, AL...................................            26             16
21. Kelly Creek, AL...................................            34             21
22. Cheaha Creek, AL..................................            27             17
23. Yellowleaf Creek, AL..............................            39             24
24. Big Canoe Creek, AL...............................  ............  ..............            29            18
25. Oostanaula complex, GA, TN........................           115             71             92            57
26. Lower Coosa River, AL.............................  ............  ..............            13             8
                                                       ---------------
    TOTAL.............................................           744            461            134            83
-------------------------------------------------------
                                         Orange-nacre mucket--THREATENED
----------------------------------------------------------------------------------------------------------------
1. East Fork Tombigbee River, MS......................            26             16
2. Bull Mountain Creek, MS............................  ............  ..............            34            21
3. Buttahatchee River, MS, AL.........................            87             54             23            14
4. Luxapalila Creek, MS, AL...........................            29             18
5. Coalfire Creek, AL.................................            32             20
6. Lubbub Creek, AL...................................            31             19
7. Sipsey River, AL...................................            90             56
8. Trussels Creek, AL.................................            21             13
9. Sucarnoochee River, AL.............................  ............  ..............            90            56
10. Sipsey Fork, AL...................................           147             91
11. North River, AL...................................            47             29
12. Locust Fork, AL...................................           102             63
13. Cahaba River, AL..................................           124             77
14. Alabama River, AL.................................  ............  ..............            73            45

[[Page 40102]]

 
15. Bogue Chitto Creek, AL............................            52             32
                                                       ---------------
    Total.............................................           788            480            220           136
-------------------------------------------------------
                                         Coosa moccasinshell--ENDANGERED
----------------------------------------------------------------------------------------------------------------
18. Coosa River, AL...................................  ............  ..............            78            48
19. Hatchet Creek, AL.................................  ............  ..............            66            41
20. Shoal Creek, AL...................................  ............  ..............            26            16
21. Kelly Creek, AL...................................  ............  ..............            34            21
22. Cheaha Creek, AL..................................  ............  ..............            27            17
23. Yellowleaf Creek, AL..............................  ............  ..............            39            24
24. Big Canoe Creek, AL...............................  ............  ..............            29            18
25. Oostanaula Complex, GA, TN........................           115             71             92            57
26. Lower Coosa River, AL.............................  ............  ..............            13             8
                                                       ---------------
    Total.............................................           115             71            404           250
-------------------------------------------------------
                                             Dark pigtoe--ENDANGERED
----------------------------------------------------------------------------------------------------------------
10. Sipsey Fork, AL...................................           147             91
11. North River, AL...................................            47             29
12. Locust Fork, AL...................................  ............  ..............           102            63
                                                       ---------------
    Total.............................................           194            120            102            63
-------------------------------------------------------
                                           Ovate clubshell--ENDANGERED
----------------------------------------------------------------------------------------------------------------
1. East Fork Tombigbee River, MS......................  ............  ..............            26            16
2. Bull Mountain Creek, MS............................  ............  ..............            34            21
3. Buttahatchee River, MS, AL.........................            87             54             23            14
4. Luxapalila Creek, MS, AL...........................            29             18
5. Coalfire Creek, AL.................................            32             20
6. Lubbub Creek, AL...................................  ............  ..............            31            19
7. Sipsey River, AL...................................            90             56
8. Trussels Creek, AL.................................  ............  ..............            21            13
9. Sucarnoochee River, AL.............................            90             56
10. Sipsey Fork, AL...................................  ............  ..............           147            91
11. North River, AL...................................  ............  ..............            47            29
12. Locust Fork, AL...................................  ............  ..............           102            63
13. Cahaba River, AL..................................  ............  ..............           124            77
17. Uphapee complex, AL...............................            74             46
18. Coosa River, AL...................................  ............  ..............            78            48
19. Hatchet Creek, AL.................................  ............  ..............            66            41
21. Kelly Creek, AL...................................  ............  ..............            34            21
24. Big Canoe Creek, AL...............................  ............  ..............            29            18
25. Oostanaula complex, GA, TN........................  ............  ..............           206           128
26. Lower Coosa River, AL.............................  ............  ..............            13             8
                                                       ---------------
    Total.............................................           402            250            981           607
-------------------------------------------------------
                                         Southern clubshell--ENDANGERED
----------------------------------------------------------------------------------------------------------------
1. East Fork Tombigbee River, MS......................            26             16
2. Bull Mountain Creek, MS............................            34             21
3. Buttahatchee River, MS, AL.........................            87             54             23            14
4. Luxapalila Creek, MS, AL...........................            29             18
5. Coalfire Creek, AL.................................  ............  ..............            32            20
6. Lubbub Creek, AL...................................            31             19
7. Sipsey River, AL...................................            90             56
8. Trussels Creek, AL.................................  ............  ..............            21            13
9. Sucarnoochee River, AL.............................  ............  ..............            90            56
13. Cahaba River, AL..................................  ............  ..............           124            77
14. Alabama River, AL.................................            73             45
15. Bogue Chitto Creek, AL............................            52             32
17. Uphapee Complex, AL...............................            74             46
18. Coosa River, AL...................................            71             44              7             4
19. Hatchet Creek, AL.................................  ............  ..............            66            41
21. Kelly Creek, AL...................................            26             16              8             5
24. Big Canoe Creek, AL...............................            29             18

[[Page 40103]]

 
25. Oostanaula Complex, GA, TN........................            15              9            193           120
26. Lower Coosa River, AL.............................  ............  ..............            13             8
                                                       ---------------
    Total.............................................           637            394            577           358
-------------------------------------------------------
                                           Southern pigtoe--ENDANGERED
----------------------------------------------------------------------------------------------------------------
18. Coosa River, AL...................................  ............  ..............            78            48
19. Hatchet Creek, AL.................................  ............  ..............            66            41
20. Shoal Creek, AL...................................            26             16
21. Kelly Creek, AL...................................  ............  ..............            34            21
22. Cheaha Creek, AL..................................            27             17
23. Yellowleaf Creek, AL..............................  ............  ..............            39            24
24. Big Canoe Creek, AL...............................            29             18
25. Oostanaula Complex, GA, TN........................           115             71             92            57
26. Lower Coosa River, AL.............................  ............  ..............            13             8
                                                       ---------------
    Total.............................................           197            122            322           199
-------------------------------------------------------
                                       Triangular kidneyshell--ENDANGERED
----------------------------------------------------------------------------------------------------------------
10. Sipsey Fork, AL...................................           147             91
11. North River, AL...................................  ............  ..............            47            29
12. Locust Fork, AL...................................           102             63
13. Cahaba River, AL..................................           105             65             19            12
18. Coosa River, AL...................................  ............  ..............            78            48
19. Hatchet Creek, AL.................................  ............  ..............            66            41
20. Shoal Creek, AL...................................            26             16
21. Kelly Creek, AL...................................            26             16              8             5
22. Cheaha Creek, AL..................................  ............  ..............            27            17
23. Yellowleaf Creek, AL..............................  ............  ..............            39            24
24. Big Canoe Creek, AL...............................            29             18
25. Oostanaula Complex, GA, TN........................           206            128
26. Lower Coosa River, AL.............................  ............  ..............            13             8
                                                       ---------------
    Total.............................................           641            397            297           184
-------------------------------------------------------
                                         Southern acornshell--ENDANGERED
----------------------------------------------------------------------------------------------------------------
13. Cahaba River, AL..................................  ............  ..............           124            77
18. Coosa River, AL...................................  ............  ..............            78            48
19. Hatchet Creek, AL.................................  ............  ..............            66            41
21. Kelly Creek, AL...................................  ............  ..............            34            21
24. Big Canoe Creek, AL...............................  ............  ..............            29            18
25. Oostanaula Complex, GA, TN........................  ............  ..............           205           128
26. Lower Coosa River, AL.............................  ............  ..............            13             8
                                                       ---------------
    Total.............................................  ............  ..............           549           341
-------------------------------------------------------
                                          Upland combshell--ENDANGERED
----------------------------------------------------------------------------------------------------------------
12. Locust Fork, AL...................................  ............  ..............           102            63
13. Cahaba River, AL..................................  ............  ..............           124            77
18. Coosa River, AL...................................  ............  ..............            78            48
19. Hatchet Creek, AL.................................  ............  ..............            66            41
21. Kelly Creek, AL...................................  ............  ..............            34            21
24. Big Canoe Creek, AL...............................  ............  ..............            29            18
25. Oostanaula Complex, GA, TN........................  ............  ..............           205           128
26. Lower Coosa River, AL.............................  ............  ..............            13             8
                                                       ---------------
    Total.............................................  ............  ..............           651          404
----------------------------------------------------------------------------------------------------------------
\*\ Table 1 refers to the location and extent of critical habitat designated for each species. For more detail,
  refer to Sec.   17.95. Table 1 will reflect totals on a species level only, because units are listed under
  each species as appropriate.


[[Page 40104]]

Upper Tombigbee River Drainage, Alabama, Mississippi

    The Tombigbee River and several of its tributaries above the 
confluence of the Black Warrior River historically supported robust 
populations of the orange-nacre mucket, Alabama moccasinshell, southern 
clubshell, and ovate clubshell. Construction of navigation dams has 
eliminated these species from the mainstem river, and the dams and 
impounded waters isolate all surviving tributary populations from each 
other. The river and stream reaches identified in the nine units below 
contain primary constituent elements (e.g., flow, water quality, 
substrate, channel stability) to a degree that allows the survival of 
one or more of the four species listed above and may be suitable for 
reintroduction of one or more of the four mussels. Fish hosts for these 
species are known or believed to be present (Mettee et. al, 1996; Ross, 
2001). The introduced Asian clam is locally present in low to moderate 
numbers.

Unit 1. East Fork Tombigbee River, Monroe, Itawamba Counties, 
Mississippi

    Unit 1 encompasses 26 km (16 mi) of the East Fork Tombigbee River 
channel in Mississippi extending from Mississippi Highway 278, Monroe 
County, upstream to the confluence of Mill Creek, Itawamba County, 
Mississippi. This reach of the East Fork Tombigbee River continues to 
support the southern clubshell and orange-nacre mucket (Hartfield and 
Jones, 1989; Miller and Hartfield, 1988; Mississippi Museum of Natural 
Science (MMNS) mussel collections, 1984-2001). This unit is within the 
historic range of the Alabama moccasinshell and ovate clubshell.

Unit 2. Bull Mountain Creek, Itawamba County, Mississippi

    Unit 2 encompasses 34 km (21 mi) of the Bull Mountain Creek stream 
channel in Mississippi extending from Mississippi Highway 25, upstream 
to U.S. Highway 78, Itawamba County, Mississippi. Bull Mountain Creek 
supports the southern clubshell and Alabama moccasinshell (Jones and 
Majure, 1999). This unit is within the historic range of the orange-
nacre mucket (records are from the early 1980's (MMNS mussel 
collections)) and the ovate clubshell.

Unit 3. Buttahatchee River and tributary, Lowndes/Monroe County, 
Mississippi; Lamar County, Alabama

    Unit 3 encompasses 110 km (68 mi) of river and stream channel in 
Mississippi and Alabama, including 87 km (54 mi) of the Buttahatchee 
River, extending from its confluence with the impounded waters of 
Columbus Lake (Tombigbee River), Lowndes/Monroe County, Mississippi, 
upstream to the confluence of Beaver Creek, Lamar County, Alabama; and 
23 km (14 mi) of Sipsey Creek, extending from its confluence with the 
Buttahatchee River, upstream to the Mississippi/Alabama State Line, 
Monroe County, Mississippi. The Buttahatchee River continues to support 
and provide habitat for the southern clubshell, orange-nacre mucket, 
ovate clubshell, and Alabama moccasinshell (Haag and Warren, 2001; 
Hartfield and Jones, 1989; Jones, 1991; McGregor, 2000). The current 
distribution of the Alabama moccasinshell also extends into its 
tributary Sipsey Creek (McGregor, 2000).

Unit 4. Luxapalila Creek and tributary, Lowndes County, Mississippi; 
Lamar County, Alabama

    Unit 4 encompasses 29 km (18 mi) of stream channel, including 15 km 
(9 mi) of Luxapalila Creek, extending from Waterworks Road, Columbus, 
Mississippi, upstream to approximately 1.0 km (0.6 mi) above Steens 
Road, Lowndes County, Mississippi; and 15 km (9 mi) of Yellow Creek 
extending from its confluence with Luxapalila Creek, upstream to the 
confluence of Cut Bank Creek, Lamar County, Alabama. Luxapalila and 
Yellow Creeks support and provide habitat for the southern clubshell, 
orange-nacre mucket, ovate clubshell, and Alabama moccasinshell 
(Hartfield and Bowker, 1992; McGregor, 2000; Miller, 2000; Yokley 
2001).

Unit 5. Coalfire Creek, Pickens County, Alabama

    Unit 5 encompasses 32 km (20 mi) of the Coalfire Creek stream 
channel extending from its confluence with the impounded waters of 
Aliceville Lake (Tombigbee River), upstream to U.S. Highway 82, Pickens 
County, Alabama. Coalfire Creek supports the orange-nacre mucket and 
ovate clubshell (P. Hartfield, Service field records 1991; McGregor, 
2000). The creek is in the historic range of the southern clubshell and 
Alabama moccasinshell.

Unit 6. Lubbub Creek, Pickens County, Alabama

    Unit 6 encompasses 31 km (19 mi) of the Lubbub Creek stream channel 
extending from its confluence with the impounded waters of Gainesville 
Lake (Tombigbee River), upstream to the confluence of Little Lubbub 
Creek, Pickens County, Alabama. This stream supports the southern 
clubshell, orange-nacre mucket, and Alabama moccasinshell (P. 
Hartfield, Service field records, 1991; McGregor, 2000; Pierson, 
1991a). It is in the historic range of the ovate clubshell.

Unit 7. Sipsey River, Greene/Pickens, Tuscaloosa Counties, Alabama

    Unit 7 encompasses 90 km (56 mi) of the Sipsey River channel from 
the confluence with the impounded waters of Gainesville Lake (Tombigbee 
River), Greene/Pickens County, upstream to Alabama Highway 171 
crossing, Tuscaloosa County, Alabama. This small river supports and 
provides some of the best remaining habitat for the southern clubshell, 
orange-nacre mucket, ovate clubshell, and Alabama moccasinshell (Haag 
and Warren, 1997; McCullagh et al., 2002; McGregor, 2000; MMNS Mussel 
Collection; Pierson, 1991 a, b).

Unit 8. Trussels Creek, Greene County, Alabama

    Unit 8 encompasses 21 km (13 mi) of creek channel extending from 
its confluence with the impounded waters of Demopolis Lake (Tombigbee 
River), upstream to Alabama Highway 14, Greene County, Alabama. The 
orange-nacre mucket continues to survive in Trussels Creek, and it is 
in the historic range of the ovate clubshell, Alabama moccasinshell, 
and southern clubshell (P. Hartfield field records, 1993; McGregor, 
2000).

Unit 9. Sucarnoochee River, Sumter County, Alabama

    Unit 9 encompasses 90 km (56 mi) of the Sucarnoochee River channel 
in Alabama, extending from its confluence with the Tombigbee River, 
upstream to the Mississippi/Alabama State Line, Sumter County, Alabama. 
The ovate clubshell continues to survive in the Sucarnoochee River 
(McGregor et al., 1996). The river is within the historic range of the 
southern clubshell, orange-nacre mucket, and Alabama moccasinshell.

Black Warrior River Drainage, Alabama

    The Black Warrior River and its tributaries historically supported 
populations of the orange-nacre mucket, Alabama moccasinshell, Coosa 
moccasinshell, southern clubshell, ovate clubshell, dark pigtoe, 
triangular kidneyshell, and upland combshell. There are also records of 
the fine-lined pocketbook from the drainage. Dam construction for 
navigation and hydropower and episodic water pollution resulted in the 
extirpation of the Coosa moccasinshell, southern

[[Page 40105]]

clubshell, ovate clubshell, and upland combshell from this drainage. 
The tributary drainages identified in the three units below contain 
primary constituent elements (e.g., flow, water quality, substrate, 
channel stability) to a degree that allows the survival of two or more 
endangered or threatened mussels and may be suitable for reintroduction 
of one or more of the mussels. Fish hosts for these species are also 
known to be present (Mettee et. al., 1996). The introduced Asian clam 
is locally present in these drainages in low to high densities. Dams 
and impounded waters currently isolate these drainages from each other.

Unit 10. Sipsey Fork drainage, Winston, Lawrence Counties, Alabama

    Unit 10 encompasses 147 km (91 mi) of stream channel in Alabama, 
including: Sipsey Fork, 31 km (19 mi), from section 11/12 line, T10S 
R8W, Winston County, upstream to the confluence of Hubbard Creek, 
Lawrence County, Alabama; Thompson Creek, 8 km (5 mi), from confluence 
with Hubbard Creek, upstream to section 2 line, T8S R9W, Lawrence 
County, Alabama; Brushy Creek, 35 km (22 mi), from the confluence of 
Glover Creek, Winston County, Alabama, upstream to section 9, T8S R7W, 
Lawrence County, Alabama; Capsey Creek, 15 km (9 mi), from confluence 
with Brushy Creek, Winston County, upstream to the confluence of Turkey 
Creek, Lawrence County, Alabama; Rush Creek, 10 km (6 mi), from 
confluence with Brushy Creek, upstream to Winston/Lawrence County Line, 
Winston County, Alabama; Brown Creek, 5 km (3 mi), from confluence with 
Rush Creek, Winston County, upstream to section 24 line, T8S R7W 
Lawrence County, Alabama; Beech Creek, 3 km (2 mi), from confluence 
with Brushy Creek, to confluence of East and West Forks, Winston 
County, Alabama; Caney Creek and North Fork Caney Creek, 13 km (8 mi), 
from confluence with Sipsey Fork, upstream to section 14 line, Winston 
County, Alabama; Borden Creek, 18 km (11 mi), from confluence with 
Sipsey Fork, Winston County, Alabama, upstream to the confluence of 
Montgomery Creek, Lawrence County, Alabama; Flannagin Creek, 10 km (6 
mi), from confluence with Borden Creek, upstream to confluence of Dry 
Creek, Lawrence County, Alabama. The upper Sipsey Fork drainage 
currently supports the most robust and extensive populations of the 
dark pigtoe, orange-nacre mucket, Alabama moccasinshell, and triangular 
kidneyshell (Haag and Warren, 1997; Haag et al., 1995; Hartfield, 1991; 
Hartfield and Butler, 1997; Hartfield and Hartfield, 1996; McGregor, 
1992; Warren and Haag, 1994). Ovate clubshell have been reported from 
this drainage (Dodd et al., 1986).

Unit 11. North River and tributary, Tuscaloosa, Fayette Counties, 
Alabama

    Unit 11 encompasses 47 km (29 mi) of river and stream channel in 
Alabama, including: North River, 42 km (26 mi) extending from 
Tuscaloosa County Road 38, Tuscaloosa County, upstream to confluence of 
Ellis Creek, Fayette County, Alabama; Clear Creek, 5 km (3 mi), from 
its confluence with North River, to Bays Lake Dam, Fayette County, 
Alabama. Small numbers of the dark pigtoe and orange-nacre mucket 
continue to survive in the North River and Clear Creek (McGregor and 
Pierson, 1999; Pierson, 1992a; Vittor and Associates, 1993). This area 
is in the historic range of the Alabama moccasinshell, triangular 
kidneyshell, and ovate clubshell.

Unit 12. Locust Fork and tributary, Jefferson, Blount Counties, Alabama

    Unit 12 encompasses 102 km (63 mi) of river and stream channel in 
Alabama, including: Locust Fork, 94 km (58 mi) extending from U.S. 
Highway 78, Jefferson County, upstream to the confluence of Little 
Warrior River, Blount County, Alabama; Little Warrior River, 8 km (5 
mi), from its confluence with the Locust Fork, upstream to the 
confluence of Calvert Prong and Blackburn Fork, Blount County, Alabama. 
Scattered collections of the orange-nacre mucket and triangular 
kidneyshell suggest an enduring population of these species in the 
Locust Fork (P. Johnson pers. comm., 2002; Hartfield, 1991; Shepard et 
al., 1988). This stream is also in the historic range of the dark 
pigtoe, Alabama moccasinshell, ovate clubshell, and upland combshell.

Cahaba River Drainage, Alabama

    The Cahaba River and tributaries historically supported the orange-
nacre mucket, fine-lined pocketbook, Alabama moccasinshell, southern 
clubshell, ovate clubshell, triangular kidneyshell, upland combshell, 
and southern acornshell. Episodic and persistent pollution events have 
caused the decline of the mussel community throughout the drainage, as 
well as the extirpation of five of the listed mussels. The habitat unit 
described below contains primary constituent elements (e.g., flow, 
water quality, substrate, channel stability) to a degree that allows 
the survival of the orange-nacre mucket, fine-lined pocketbook, and 
triangular kidneyshell and may be suitable for reintroduction of five 
of the 11 mussels. Fish hosts for these species are also known to be 
present (Mettee et. al., 1996). The introduced Asian clam is locally 
present in these drainages in low to high densities.

Unit 13. Cahaba River and tributary, Jefferson, Shelby, Bibb Counties, 
Alabama

    Unit 13 encompasses 124 km (77 mi) of river channel in Alabama, 
including: Cahaba River, 105 km (65 mi) extending from U.S. Highway 82, 
Centerville, Bibb County, upstream to Jefferson County Road 143, 
Jefferson County, Alabama; Little Cahaba River, 19 km (12 mi), from its 
confluence with the Cahaba River, upstream to the confluence of Mahan 
and Shoal Creeks, Bibb County, Alabama. Scattered individuals of 
triangular kidneyshell, orange-nacre mucket, and fine-lined pocketbook 
continue to be collected from the Cahaba drainage (R. Haddock, Cahaba 
River Society, pers. comm., 2002; McGregor et al., 2000; Shepard et 
al., 1994). The river is historic habitat for the Alabama 
moccasinshell, southern clubshell, ovate clubshell, upland combshell, 
and southern acornshell.

Alabama River Drainage, Alabama

    The Alabama River mollusk community has been reduced due to the 
effects of historic pollution events and impoundment for navigation. 
Historical records from this river include the Alabama moccasinshell, 
orange-nacre mucket, fine-lined pocketbook, triangular kidneyshell, and 
southern clubshell. The habitat units defined below contain primary 
constituent elements (e.g., flow, water quality, substrate, channel 
stability) to a degree that allows the survival of two of these 
mussels. Fish hosts for these species are also known to be present 
(Mettee et al., 1996). The introduced Asian clam is locally present in 
these drainages in low to moderate densities.

Unit 14. Alabama River, Autauga, Lowndes, Dallas Counties, Alabama

    Unit 14 encompasses 73 km (45 mi) of the Alabama River channel, 
extending from the confluence of the Cahaba River, Dallas County, 
upstream to the confluence of Big Swamp Creek, Lowndes County, Alabama. 
The southern clubshell is known to occur within this reach (Hartfield 
and Garner, 1998). This area may become suitable for reintroduction of 
the orange-nacre mucket.

[[Page 40106]]

Unit 15. Bogue Chitto Creek, Dallas County, Alabama

    Unit 15 encompasses 52 km (32 mi) of the Bogue Chitto Creek channel 
in Alabama, extending from its confluence with the Alabama River, 
Dallas County, upstream to U.S. Highway 80, Dallas County, Alabama. 
This stream continues to support the southern clubshell and orange-
nacre mucket (McGregor et al., 1996; P. Hartfield field notes, 1984; 
Pierson, 1991a). The habitat offers potential for the Alabama 
moccasinshell.

Tallapoosa River Drainage, Alabama, Georgia

    Historical and recent records indicate that the Tallapoosa River 
drainage supported a diverse mussel community, although numbers of all 
mussel species have apparently always been low in this system. The two 
habitat units identified below contain primary constituent elements 
(e.g., flow, water quality, substrate, channel stability) to a degree 
that allows the survival of three of the listed mussels and may be 
suitable for reintroduction of one or more of the 11 mussels. Fish 
hosts for these species are also known to be present (Mettee et al., 
1996). The introduced Asian clam is locally present in these drainages 
in low to moderate densities.

Unit 16. Tallapoosa River and tributary, Cleburne County, Alabama and 
Haralson and Paulding Counties, Georgia

    Unit 16 encompasses 161 km (100 mi) of river and stream channel in 
Alabama and Georgia, including: Tallapoosa River, 137 km (85 mi) 
extending from U.S. Highway 431, Cleburne County, Alabama, upstream to 
the confluence of McClendon and Mud Creeks, Paulding County, Georgia; 
and Cane Creek, 24 km (15 mi), from confluence with Tallapoosa River, 
upstream to Section 33/4 Line (T15S, R11E), Cleburne County, Alabama. 
This extensive area of main channel and tributary habitat supports 
scattered, small numbers of the fine-lined pocketbook (Devris, 1997; 
Irwin et al., 1998; Irwin pers. comm., 2000). There have been site 
collections of fine-lined pocketbook in the extreme lowest reaches of 
several small tributaries to the Tallapoosa Unit, including Little Cane 
Creek, Big Creek, McClendon Creek, and Muscadine Creek, and there are 
likely to be others. We believe these small populations are dependent 
upon the main stem Tallapoosa River for recruitment.

Unit 17. Uphapee/Choctafaula/Chewacla Creeks, Macon, Lee Counties, 
Alabama

    Unit 17 encompasses 74 km (46 mi) of stream channel in Alabama, 
including: Uphapee Creek, 18 km (11 mi) of river channel extending from 
Alabama Highway 199, upstream to confluence of Opintlocco and Chewacla 
Creeks, Macon County, Alabama; Choctafaula Creek, 11 km (7 mi), from 
confluence with Uphapee Creek, upstream to Macon County Road 54, Macon 
County, Alabama; Chewacla Creek, 29 km (18 mi), from confluence with 
Opintlocco Creek, Macon County, Alabama, upstream to Lee County Road 
159, Lee County, Alabama; Opintlocco Creek, 16 km (10 mi), from 
confluence with Chewacla Creek, upstream to Macon County Road 79, Macon 
County, Alabama. This stream network supports small and localized 
populations of the fine-lined pocketbook, ovate clubshell, and southern 
clubshell (M. Gangloff, Auburn University, in litt., 2001; Gangloff, 
2002; McGregor, 1993; Pierson, 1991a).

Coosa River Drainage, Alabama, Georgia, Tennessee

    Extensive impoundment for hydropower during the 20th century along 
with episodic pollution events severely reduced one of the most diverse 
endemic freshwater mollusk communities in the world. The river and 
stream reaches in eight of the nine units identified below contain 
primary constituent elements (e.g., flow, water quality, substrate, 
channel stability) to a degree that allows the survival of two or more 
endangered or threatened mussels and may be suitable for reintroduction 
of one or more of the 11 mussels. Fish hosts for these species are also 
known to be present (Mettee et al., 1996). Constituent elements in Unit 
26 have improved to a degree that survival of extirpated endangered and 
threatened species may now be possible (Johnson, 2002). The introduced 
Asian clam is locally present in these units in low to high densities.

Unit 18. Coosa River (Old River Channel) and tributary, Cherokee, 
Calhoun, Cleburne Counties, Alabama

    Unit 18 encompasses 78 km (48 mi) of river channel in Alabama, 
including: Coosa River, 18 km (11 mi) extending from the powerline 
crossing southeast of Maple Grove, Alabama, upstream to Weiss Dam, 
Cherokee County, Alabama; Terrapin Creek, 53 km (33 mi) extending from 
its confluence with the Coosa River, Cherokee County, upstream to 
Cleburne County Road 49, Cleburne County, Alabama; South Fork Terrapin 
Creek, 7 km (4 mi) from its confluence with Terrapin Creek, upstream to 
Cleburne County Road 55, Cleburne County, Alabama. The short reach of 
the Coosa River continues to support a fairly robust population of the 
southern clubshell, and a few individuals of the fine-lined pocketbook 
(Herod et al., 2001). The fine-lined pocketbook and southern clubshell 
have also been recently collected from Terrapin Creek (Feminella and 
Gangloff, 2000). This area is within the range of the Coosa 
moccasinshell, southern pigtoe, ovate clubshell, triangular 
kidneyshell, upland combshell, and southern acornshell.

Unit 19. Hatchet Creek, Coosa, Clay Counties, Alabama

    Unit 19 encompasses 66 km (41 mi) of the Hatchet Creek channel in 
Alabama, extending from the confluence of Swamp Creek at Coosa County 
Road 29, Coosa County, Alabama, upstream to Clay County Road 4, Clay 
County, Alabama. The fine-lined pocketbook occurs within this reach 
(Feminella and Gangloff, 2000; Pierson, 1992b). Hatchet Creek is within 
the historic range of the Coosa moccasinshell, southern pigtoe, ovate 
clubshell, southern clubshell, triangular kidneyshell, upland 
combshell, and southern acornshell.

Unit 20. Shoal Creek, Calhoun, Cleburne Counties, Alabama

    Unit 20 encompasses 26 km (16 mi) of stream channel in Alabama, 
extending from the headwater of Whitesides Mill Lake, Calhoun County, 
Alabama, upstream to the tailwater of Coleman Lake Dam, Cleburne 
County, Alabama. The fine-lined pocketbook, southern pigtoe, and 
triangular kidneyshell survive in Shoal Creek (Haag et al., 1999; 
Feminella and Gangloff, 2000; Gangloff in litt., 2001; Pierson, 1992b). 
Shoal Creek is within historic range of the Coosa moccasinshell.

Unit 21. Kelly Creek and tributary, Shelby, St. Clair Counties, Alabama

    Unit 21 encompasses 34 km (21 mi) of stream channel in Alabama, 
including: Kelly Creek, 26 km (16 mi) extending from the confluence 
with the Coosa River, upstream to the confluence of Shoal Creek, St. 
Clair County, Alabama; Shoal Creek, 8 km (5 mi), from confluence with 
Kelly Creek, St. Clair County, Alabama, upstream to St. Clair/Shelby 
County Line, St. Clair County, Alabama. Kelly/Shoal Creeks continue to 
support scattered individuals of the fine-lined pocketbook, and the 
southern clubshell and triangular kidneyshell

[[Page 40107]]

survive in Kelly Creek (Pierson pers. comm., 1995; Feminella and 
Gangloff, 2000; Gangloff in litt., 2001). This stream complex is 
historic habitat for the southern pigtoe, Coosa moccasinshell, ovate 
clubshell, upland combshell, and southern acornshell.

Unit 22. Cheaha Creek, Talladega, Clay Counties, Alabama

    Unit 22 encompasses 27 km (17 mi) of the Cheaha Creek channel, 
extending from its confluence with Choccolocco Creek, Talladega County, 
Alabama, upstream to the tailwater of Chinnabee Lake, Clay County, 
Alabama. The fine-lined pocketbook and southern pigtoe survive within 
this reach (Feminella and Gangloff, 2000; Gangloff in litt., 2001; 
Pierson, 1992b, 1993). Cheaha Creek is in the historic range of the 
Coosa moccasinshell and triangular kidneyshell.

Unit 23. Yellowleaf Creek and tributary, Shelby County, Alabama

    Unit 23 encompasses 39 km (24 mi) of stream channel, including: 
Yellowleaf Creek, 32 km (20 mi), extending from Alabama Highway 25, 
upstream to Shelby County Road 49; Muddy Prong, 7 km (4 mi), extending 
from confluence with Yellowleaf Creek, upstream to U.S. Highway 280, 
Shelby County, Alabama. Yellowleaf and Muddy Prong Creeks are currently 
inhabited by the fine-lined pocketbook (Feminella and Gangloff, 2000; 
Gangloff in litt., 2001; Pierson in litt., 2000). Yellowleaf Creek is 
in the historic range of the Coosa moccasinshell, southern pigtoe, and 
triangular kidneyshell.

Unit 24. Big Canoe Creek, St. Clair County, Alabama

    Unit 24 encompasses 29 km (18 mi) of the Big Canoe Creek channel, 
extending from its confluence with Little Canoe Creek at the St. Clair/
Etowah County line, St. Clair County, upstream to the confluence of 
Fall Branch, St. Clair County, Alabama. The southern clubshell, 
southern pigtoe, and triangular kidneyshell are surviving in low 
numbers in Big Canoe Creek (Feminella and Gangloff, 2000; Gangloff in 
litt., 2001). This stream is also historic habitat for the fine-lined 
pocketbook, ovate clubshell, Coosa moccasinshell, upland combshell, and 
southern acornshell.

Unit 25. Oostanaula River/Coosawattee River/Conasauga River/Holly 
Creek, Floyd, Gordon, Whitfield, Murray Counties, Georgia; Bradley, 
Polk Counties, Tennessee

    Unit 25 encompasses 206 km (128 mi) of river and stream channel in 
Georgia and Tennessee, including: Oostanaula River, 77 km (48 mi) 
extending from its confluence with the Etowah River, Floyd County, 
upstream to the confluence of the Conasauga and Coosawattee River, 
Gordon County, Georgia; Coosawattee River, 15 km (9 mi), from 
confluence with the Conasauga River, upstream to Georgia State Highway 
136, Gordon County, Georgia; Conasauga River, 98 km (61 mi), from 
confluence with the Coosawattee River, Gordon County, Georgia, upstream 
through Bradley and Polk Counties, Tennessee, to the Murray County Road 
2, Murray County, Georgia; Holly Creek, 16 km (10 mi), from confluence 
with Conasauga River, upstream to its confluence with Rock Creek, 
Murray County, Georgia. This extensive riverine reach continues to 
support small and localized populations of fine-lined pocketbook, 
southern pigtoe, triangular kidneyshell, Alabama moccasinshell, and 
Coosa moccasinshell. The triangular kidneyshell survives throughout 
this unit, while the fine-lined pocketbook, southern pigtoe, and Coosa 
moccasinshell appear to be currently restricted to the Conasauga River 
and Holly Creek and the southern clubshell appears restricted to a 
small 15 km (9 mi) reach of the Conasauga River (Evans, 2001; Johnson 
and Evans, 2000; Pierson in litt., 1993; Williams and Hughes, 1998). 
The Alabama moccasinshell is currently known to survive only in the 
Holly Creek portion of this Unit (Evans, 2001; Johnson and Evans, 
2000). The Oostanaula/Coosawattee/Conasauga Unit also contains historic 
habitat for the southern clubshell, ovate clubshell, upland combshell, 
and southern acornshell.

Unit 26. Lower Coosa River, Elmore County, Alabama

    Unit 26 encompasses 13 km (8 mi) of the Lower Coosa River channel, 
extending from Alabama State Highway 111 bridge, upstream to Jordan 
Dam, Elmore County, Alabama. This river reach is within the historic 
range of fine-lined pocketbook, southern clubshell, Alabama 
moccasinshell, Coosa moccasinshell, ovate clubshell, southern pigtoe, 
triangular kidneyshell, upland combshell, and southern acornshell. 
(Johnson, 2002; Pierson, 1991a).

Land Ownership

    Table 2 summarizes primary adjacent riparian landowners in each of 
the proposed critical habitat units by private, State, or Federal 
ownership.

 Table 2.--Adjacent Riparian Land Ownership (km[mi]) in Critical Habitat Units for 11 Threatened and Endangered
                                        Mussels in the Mobile River Basin
----------------------------------------------------------------------------------------------------------------
                 Critical habitat unit                    Private       State       Federal          Total
----------------------------------------------------------------------------------------------------------------
1. East Fork Tombigbee River..........................       19(12)  ...........         6(4)             26(16)
2. Bull Mountain Creek................................       34(21)  ...........  ...........             34(21)
3. Buttahatchee River.................................      110(68)  ...........  ...........            110(68)
4. Luxapalila Creek...................................       29(18)  ...........  ...........             29(18)
5. Coalfire Creek.....................................       32(20)  ...........  ...........             32(20)
6. Lubbub Creek.......................................       31(19)  ...........  ...........             31(19)
7. Sipsey River.......................................      74/(46)       16(10)  ...........             90(56)
8. Trussels Creek.....................................       21(13)  ...........  ...........             21(13)
9. Sucarnoochee River.................................       90(56)  ...........  ...........             90(56)
10. Sipsey Fork.......................................        15(9)  ...........      132(82)            147(91)
11. North River.......................................       47(29)  ...........  ...........             47(29)
12. Locust Fork.......................................      102(63)  ...........  ...........            102(63)
13. Cahaba River......................................       92(57)       26(16)         6(4)            124(77)
14. Alabama River.....................................       73(45)  ...........  ...........             73(45)
15. Bogue Chitto......................................       52(32)  ...........  ...........             52(32)
16. Tallapoosa River..................................     161(100)  ...........  ...........           161(100)
17. Uphapee complex...................................       56(35)  ...........       18(11)             74(46)
18. Coosa River.......................................       63(39)  ...........        15(9)             78(48)

[[Page 40108]]

 
19. Hatchet Creek.....................................       55(34)  ...........        11(7)             66(41)
20. Shoal Creek.......................................  ...........  ...........       26(16)             26(16)
21. Kelly Creek.......................................       34(21)  ...........  ...........             34(21)
22. Cheaha Creek......................................       16(10)  ...........        11(7)             27(17)
23. Yellowleaf Creek..................................       39(24)  ...........  ...........             39(24)
24. Big Canoe Creek...................................       29(18)  ...........  ...........             29(18)
25. Oostanaula Complex................................     188(117)  ...........       18(11)           206(128)
26. Lower Coosa River.................................        13(8)  ...........  ...........              13(8)
                                                       --------------
    Total.............................................   1,475(914)       42(26)     243(151)       1,760(1,093)
----------------------------------------------------------------------------------------------------------------

    Public lands adjacent to critical habitat units consist of 
approximately 288 km (179 mi) of riparian lands, including Canal 
Section Wildlife Management Area in Unit 1 (6 km (4 mi)); Sipsey River 
Natural Area in Unit 7 (16 km (10 mi)); William B. Bankhead National 
Forest in Unit 10 (134 km (83 mi)); Cahaba River National Wildlife 
Refuge (6 km (4 mi)) and Cahaba River Wildlife Management Area (28 km 
(17 mi)) in Unit 13; Tuskegee National Forest in Unit 17 (16 km (10 
mi)); Talladega National Forest in Unit 18 (15 km (9 mi)), Unit 19 (11 
km (7 mi)), Unit 20 (27 km (17mi)), and Unit 22 (11 km (7 mi)); and 
Chattahoochee National Forest in Unit 25 (18 km (11 mi)).

Effects of Critical Habitat Designation

Section 7 Consultation

    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.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402. Section 7(a)(4) of the Act requires 
Federal agencies to confer with us on any action that is likely to 
jeopardize the continued existence of a proposed species or result in 
destruction or adverse modification of proposed critical habitat. 
Conference reports provide conservation recommendations to assist the 
agency in eliminating conflicts that may be caused by the proposed 
action. The conservation recommendations in a conference report are 
advisory. If a species is listed or critical habitat is designated, 
section 7(a)(2) requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. Through this consultation, the 
action agency ensures that the permitted actions do not destroy or 
adversely modify critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. ``Reasonable and prudent 
alternatives'' are defined at 50 CFR 402.02 as alternative actions 
identified during consultation that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that the Director believes would avoid destruction or adverse 
modification of critical habitat. Reasonable and prudent alternatives 
can vary from slight project modifications to extensive redesign or 
relocation of the project. Costs associated with implementing a 
reasonable and prudent alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    We may issue a formal conference report if requested by a Federal 
agency. Formal conference reports on proposed critical habitat contain 
an opinion that is prepared according to 50 CFR 402.14, as if critical 
habitat were designated. We may adopt the formal conference report as 
the biological opinion when the critical habitat is designated, if no 
substantial new information or changes in the action alter the content 
of the opinion (see 50 CFR 402.10(d)).
    Activities on Federal lands that may affect these 11 mussels or 
their critical habitat will require section 7 consultation. Activities 
on private or State lands requiring a permit from a Federal agency, 
such as a permit from the USACE under section 404 of the Clean Water 
Act, a section 10(a)(1)(B) permit from the Service, or some other 
Federal action, including funding (e.g., Federal Highway Administration 
or Federal Emergency Management Agency funding), will also continue to 
be subject to the section 7 consultation process. Federal actions not 
affecting listed species or critical habitat and actions on non-Federal 
and private lands that are not federally funded, authorized, or 
permitted do not require section 7 consultation.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat include those that appreciably reduce the value of critical 
habitat to the 11 mussels. We note that such activities may also 
jeopardize the continued existence of the species.
    To properly portray the effects of critical habitat designation, we 
must first compare the section 7 requirements for actions that may 
affect critical

[[Page 40109]]

habitat with the requirements for actions that may affect a listed 
species. Section 7 prohibits actions funded, authorized, or carried out 
by Federal agencies from jeopardizing the continued existence of a 
listed species or destroying or adversely modifying the listed species' 
critical habitat. Actions likely to ``jeopardize the continued 
existence'' of a species are those that would appreciably reduce the 
likelihood of the species' survival and recovery. Actions likely to 
``destroy or adversely modify'' critical habitat are those that would 
appreciably reduce the value of critical habitat to the listed species.
    Common to both definitions is an appreciable detrimental effect on 
both survival and recovery of a listed species. Given the similarity of 
these definitions, actions likely to destroy or adversely modify 
critical habitat would often result in jeopardy to the species 
concerned when the area of the proposed action is occupied by the 
species concerned.
    Federal agencies already consult with us on activities in areas 
currently occupied by the species to ensure that their actions do not 
jeopardize the continued existence of the species. These actions 
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, 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 
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, 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, destruction of 
riparian vegetation.
    (6) Actions that would introduce, spread, or augment nonnative 
aquatic species into critical habitat 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, stocking for sport, biological control, or 
other purposes; aquaculture; and construction and operation of canals.
    We consider 25 of the 26 critical habitat units to be occupied by 
the species because at least one of the 11 mussels occurs in these 
units. Federal agencies already consult with us on activities in areas 
currently occupied by the species or if the species may be affected by 
the action to ensure that their actions do not jeopardize the continued 
existence of the species.

Previous Section 7 Consultations

    Federal actions that we have reviewed since these 11 mussel species 
received protection under the Act include Federal land management 
plans, Federal land acquisition and disposal, road and bridge 
maintenance and construction, water diversion, timber harvest on 
Federal land, channelization, flood control, channel maintenance, water 
quality standards, dam construction and operation, 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 (USACE), U.S. Forest Service, Natural Resources Conservation 
Service, Environmental Protection Agency, and Federal Highway 
Administration. Since the original listing of these 11 mussel species, 
seven formal consultations have been conducted. None of these resulted 
in a finding that the proposed action would jeopardize the continued 
existence of any of the 11 species.
    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 11 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 17.3) 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, minimizing work in the wetted channel, 
restricting riparian clearing, monitoring channel morphology and mussel 
populations, installing signage, protecting buffer zones, avoiding 
pollution, using cooperative planning efforts, minimizing ground 
disturbance, using sediment barriers, relocating recreational trails, 
using best management practices to minimize erosion, and funding 
research useful for mussel conservation.
    The designation of critical habitat will have no impact on private 
landowner activities that do not require 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 
the following Service offices:

Alabama--Daphne, FWS Ecological Services Office (251/441-5181)
Georgia--Athens, FWS Ecological Services Office (706/613-9493)
Mississippi--Jackson, FWS Ecological Services Office (601/965-4900)
Tennessee--Cookeville, FWS Ecological Services Office (931/528-6481)

[[Page 40110]]

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 and commercial information 
available, and that we consider the economic and any other relevant 
impacts of designating a particular area as critical habitat. We may 
exclude areas from critical habitat if the benefits of exclusion 
outweigh the benefits of designation, provided the exclusion will not 
result in the extinction of the species. We have prepared an economic 
analysis that is consistent with the ruling of the 10th Circuit Court 
of Appeals in N.M. Cattle Growers Ass'n v. USFWS, and that was 
available for public review and comment during the comment periods for 
the proposed rule. The final economic analysis is available from our 
Web site at http://southeast.fws.gov/hotissue. Since the critical 
habitat designation includes only aquatic areas that are generally held 
in public trust, involves no Tribal lands, and includes no areas 
presently under special management or protection provided by a legally 
operative plan or agreement for the conservation of these mussels, we 
believe, other than economics, there are no other relevant impacts to 
evaluate under section 4(b)(2).
    Based on the best available information including the prepared 
economic analysis, we believe that all of the 26 units are essential 
for the conservation of these species and have identified no areas 
where the benefits of exclusion outweigh the benefits of designation. 
As detailed in our economic analysis, Units 12 and 18 are likely to 
engender the highest costs on a unit-by-unit basis, accounting for 
approximately 81 percent of the total costs of the designation. The 
high cost associated with Unit 12 is attributed to the relocation of a 
potential reservoir from the Locust Fork River outside of critical 
habitat to an alternate site in the drainage. The economic analysis for 
this action includes a range of impacts for this project of $0 to $154 
million. However, a previous proposal to impound the Locust Fork River 
was withdrawn due to public opposition for reasons other than impacts 
to endangered or threatened species. Exclusion of Unit 12 from the 
designation will not resolve the existing concerns associated with the 
potential reservoir site and will not reduce any regulatory 
requirements under section 7 of the Act because these would already be 
required due to the existing presence of federally listed species. 
Moreover, Unit 12 is currently occupied by one endangered and one 
threatened mussel, in addition to an endangered fish and an endangered 
snail; all of which are extremely limited in range and threatened with 
increasing habitat loss, fragmentation, and modification. Therefore, it 
is not reasonably foreseeable that exclusion of Unit 12 from 
designation would prevent relocation of the reservoir. On the other 
hand, Unit 12 is essential to the conservation of both the threatened 
orange-nacre mucket and endangered triangular kidneyshell, and may be 
suitable for reintroduction of the dark pigtoe, Alabama moccasinshell, 
ovate clubshell, and upland combshell.
    As to Unit 18, power production losses resulting in annual costs to 
consumers of up to $2.84 million are attributable to a range of minimum 
flows that might be recommended for Weiss Dam. The high costs for Unit 
18 detailed in our economic analysis are attributed to the use of 
conservative high-end estimates of potential minimum flow 
recommendations at Weiss Dam. However due to concerns over negative 
impacts to mussels and their habitats that might result from high 
increases in minimum flows from Weiss Dam, it is likely that the 
Service will recommend flows closer to the low-end estimates used in 
the economic analysis (see response to Comment 56 above). Exclusion of 
Unit 18 from the designation will have little impact on consultation 
issues or outcomes under section 7 of the Act due to relicensing 
because the unit is currently occupied by two federally listed mussels. 
On the other hand, Unit 18 is essential to the conservation of both the 
threatened fine-lined pocketbook and endangered southern clubshell, and 
may be suitable for reintroduction of 6 of the 11 mussel species.
    Similarly, in Unit 25 decreased power generation and lost 
dependable capacity at Carters Dam stemming from anticipated flow 
changes at Carters ReRegulation Dam led to an estimate of potential 
costs of up to $794,000 per year, representing nine percent of the 
total costs as detailed in our economic analysis. Exclusion of Unit 25 
from the designation will have little impact on consultation issues or 
outcomes under section 7 of the Act due to relicensing. The unit is 
currently occupied by four federally listed mussels, so consultation 
would already be necessary and costs incurred regardless of whether 
this unit was designated. On the other hand, Unit 25 is essential to 
the conservation of the fine-lined pocketbook, southern pigtoe, 
triangular kidneyshell, Alabama moccasinshell, and Coosa moccasinshell, 
and may be suitable for reintroduction of 4 of the 11 mussel species.
    Finally, economic activity in Unit 14, including the USACE dredging 
of the Federal Navigation Channel on the Alabama River, contributes 
approximately three percent of the total costs, as estimated in the 
economic analysis. The high costs attributed to Unit 14, over $8 
million, is due to concerns by the USACE that the Service may require 
upland disposal of maintenance dredge material if this reach of the 
Alabama River is designated as critical habitat. We believe that 
current navigation channel maintenance, specifically dredging and 
dredge material disposal in channel, in Unit 14 has little effect on 
mussels and their habitats, due to the location and limited frequency 
and extent of the activity. In addition, there is evidence that the 
removal of dredge materials from the channel may cause an increase in 
bed and bank erosion, to the detriment of the mussel community 
(Hartfield and Garner 1988). We do not anticipate recommending upland 
disposal of dredge material associated with Federal Navigation Channel 
maintenance in the Alabama River. These costs were included in our 
economic analysis for conservative purposes only. Exclusion of Unit 14, 
which is occupied by two listed mussels, will not alter consultation 
requirements under section 7 of the Act.
    Other than the high-end, conservative estimates, our economic 
analysis indicates an overall small economic impact will result from 
this designation. Furthermore, the remaining designated Units are 
anticipated to generate less than one percent of the total costs of 
section 7 consultation regarding the mussels. In our economic analysis, 
we have conservatively included all costs attributed to consultation 
requirements resulting from the listing of these species and 
designation of critical habitat; because of this, the economic impacts 
that may result from this designation alone are minimal. The recovery 
of these 11 mussels in the near future, however, is unlikely due to the 
extent of their decline and the degree of fragmentation and isolation 
of their habitats. As explained in this rule, the areas currently 
occupied by the mussels are inadequate for their conservation. 
Therefore, we believe all 26 units are essential to the conservation of 
these species and have identified no areas where the benefits of 
exclusion outweigh the benefits of this designation.

[[Page 40111]]

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is found to 
be a significant regulatory action. Because of the Court Ordered 
deadline, formal Office of Management and Budget (OMB) review was not 
undertaken. We prepared an economic analysis of this action. The draft 
economic analysis was made available for public comment and we 
considered those comments during the preparation of this rule. The 
economic analysis indicates that this rule will not have an annual 
economic effect of $100 million or more; the economic analysis 
indicates that this rule will have an annual economic effect of $2 to 
$13.6 million. This rule is not expected to adversely affect an 
economic sector, productivity, jobs, the environment, or other units of 
government. Under the Act, critical habitat may not be destroyed or 
adversely modified by a Federal agency action; the Act does not impose 
any restrictions related to critical habitat on non-Federal persons 
unless they are conducting activities funded or otherwise sponsored or 
permitted by a Federal agency. Because of the potential for impacts on 
other Federal agencies' activities, we reviewed this action for any 
inconsistencies with other Federal agency actions. We believe that this 
rule will not materially affect entitlements, grants, user fees, loan 
programs, or the rights and obligations of their recipients, except 
those involving Federal agencies, which would be required to ensure 
that their activities do not destroy or adversely modify designated 
critical habitat. As discussed above, we do not anticipate that the 
adverse modification prohibition (from critical habitat designation) 
will have any significant economic effects such that it will have an 
annual economic effect of $100 million or more. The final rule follows 
the requirements for designating critical habitat required in the Act.

Regulatory Flexibility Act

    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 rule will not have a 
significant effect on a substantial number of small entities. The 
following discussion explains our rationale for certification.
    According to the Small Business Administration, small entities 
include small organizations, such as independent non-profit 
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 and http://www.sba.gov/size/). 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.
    The economic analysis determined whether this critical habitat 
designation potentially affects a ``substantial number'' of small 
entities in counties supporting critical habitat areas. It also 
quantified the probable number of small businesses that experience a 
``significant effect.'' 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, this 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 America Trucking 
Associations, Inc. v. EPA.).
    The economic analysis identified activities that are within, or 
will otherwise be affected by, section 7 of the Act for the mussels. 
After excluding exclusively Federal consultations and those that do not 
involve small businesses or governments from the total universe of 
potential impacts identified in the body of the economic analysis, the 
following consultations and Action agencies remain: (1) Agriculture and 
ranching-related activities (USACE and USDA); (2) Hydropower (FERC and 
USACE); (3) Water supply dams (USACE); and (4) Dredging activities 
(USACE). This subset represents the group of consultations and Action 
agencies that may produce significant impacts on small entities. 
Specifically, these actions feature activities that do not occur 
exclusively on Federal lands and may directly regulate small entities.
    To be conservative, this analysis assumes that a unique entity will 
undertake each of the projected consultations in a given year, and so 
the number of entities affected is equal to the total annual number of 
consultations (both formal and informal). While it is possible that the 
same entity could consult with the Service more than once, it is 
unlikely to do so during the one-year timeframe addressed in this 
analysis. However, should such multiple consultations occur, effects of 
the designation would be concentrated on fewer entities. In such a 
case, the approach outlined here likely would overstate the number of 
affected entities. This analysis also limits the universe of 
potentially affected entities to include only those within the 36 
counties in which critical habitat units occur. This interpretation 
produces more conservative results than including all entities 
nationwide.
    For the analysis, the first step was to estimate the number of 
small entities affected. As shown in Table 3, the following 
calculations yield this estimate:
     Estimate the number of entities within the study area 
affected by section 7 implementation annually (assumed to be equal to 
the number of annual consultations);
     Calculate the percent of entities in the affected industry 
that are likely to be small;
     Calculate the number of affected small entities in the 
affected industry;
     Calculate the percent of small entities likely to be 
affected by critical habitat.

[[Page 40112]]



 Table 3.--Estimated Annual Number Of Small Entities Affected By Critical Habitat Designation: The ``Substantial
                                                  Number'' Test
----------------------------------------------------------------------------------------------------------------
                                       Agriculture and     Hydro-electric                            Heavy
                                        ranching NAICS    power generation     Water supply       construction
            Industry Name             111, 112 (SIC 01,  NAICS 221111 (SIC  activities: small  NAICS 234990 (SIC
                                             02)             4911) \1\          government           1629)
----------------------------------------------------------------------------------------------------------------
By formal consultation:
    Annual number of affected                       0.6                0.1                0.1                0.0
     entities in industry...........
    (Equal to number of annual                      3.8                0.1  .................                0.1
     consultations).................
-------------------------------------
Total number of all entities in                   1,712                106                 36                223
 industry within study area.........
Number of small entities in industry              1,637  .................                 22                210
 within study area..................
Percent of entities that are small                  96%               100%                61%                94%
 (Number of small entities)/(Total
 number of entities)................
Annual number of small entities                     4.2                0.2               0.06                0.1
 affected (Number of affected
 entities)* (Percent of small
 entities)..........................
Annual percentage of small entities                0.6%               0.2%               0.3%             0.04%
 affected (Number of small entities
 affected)/(Total number of small
 entities)..........................
----------------------------------------------------------------------------------------------------------------
\1\ Actual estimates of small hydroelectric power generation facilities are not available, therefore this
  analysis conservatively assumes 100% of hydroelectric power generation facilities in the affected areas to be
  small.

    This calculation reflects conservative assumptions and nonetheless 
yields an estimate that less than one percent of small entities in 
affected areas will potentially be affected by implementation of 
section 7 of the Act for the mussels. As a result, this analysis 
concludes that a significant economic impact on a substantial number of 
small entities will not result from the designation of critical habitat 
for the 11 mussels. Nevertheless, an estimate of the number of small 
businesses that will experience effects at a significant level is 
provided below.
    Costs of critical habitat designation to individual small 
businesses consist primarily of the cost of participating in section 7 
consultations and the cost of project modifications. To calculate the 
likelihood that a small business will experience a significant effect 
from critical habitat designation for the mussels, the following 
calculations were made:
     Calculate the per-business cost. This consists of the cost 
to a third party of participating in a section 7 consultation and the 
cost of associated project modifications. To be conservative, this 
analysis uses the high-end estimate for each cost, and includes all 
project modifications for that activity.
     Distribute the total number of affected small businesses 
across revenue levels. This is done by distributing the annual number 
of affected small businesses across different revenue bins as 
categorized by Robert Morris Associates (RMA) Annual Statement Studies: 
2001-2002, which provides data on the distribution of annual sales 
within an industry across the following ranges: $0-1 million, $1-3 
million, $3-5 million, $5-10 million, $10-25 million, and greater than 
$25 million (for some industries, fewer bins are included when revenues 
are much lower than $25 million). The SBA sets the small business size 
standard for ``crop production'' and ``animal production'' at $0.75 
million in annual receipts, with the exception of ``cattle feedlots'' 
and ``chicken egg production'' that are set at $1.5 million and $10.5 
million respectively. In these industries, 96 percent of small 
businesses have annual revenues less than $1 million. The size standard 
for ``hydroelectric power generation'' is set at less than four million 
megawatt hours generated per year. ``Hydroelectric power generation'' 
is identified by North American Industry Classification System (NAICS) 
code 221111. U.S. Small Business Administration, ``Small 
Business Size Standards matched to North American Industry 
Classification System,'' accessed at http://www.sba.gov/size/sizetable2002.html on March 14, 2003. A firm is small if, including its 
affiliates, it is primarily engaged in the generation, transmission, 
and/or distribution of electric energy for sale and its total electric 
output for the preceding fiscal year did not exceed four million 
megawatt hours. In the case of the heavy construction industry, the SBA 
sets the small business size standard at $17 million in annual 
receipts. ``Heavy construction'' which includes ``dredging and surface 
clean-up activities'' is identified by NAICS code 234990. U.S. Small 
Business Administration, ``Small Business Size Standards matched to 
NAICS,'' accessed at http://www.sba.gov/size/sizetable2002.html on May 
13, 2003.
     Estimate the level of effect on small businesses per bin 
level. This is calculated by taking the per-business cost and dividing 
it by the per-business revenue in each bin to determine the percent of 
revenue represented by the per-business cost.
    Calculations for costs associated with section 7 implementation for 
the mussels are provided in Table 4 below.

                                 Table 4.--Estimated Annual Effects On Small Businesses: The ``Significant Effect'' Test
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                  Agriculture and Ranching NAICS 111, 112 (SIC 01, 02)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annual Number of Small Businesses                                                                4.1
 Affected.
----------------------------------
Per-Business Cost................                                                            $14,000
----------------------------------
RMA Revenue Bin..................  $0-1M               $1-3M               $3-5M               $5-10M              $10-25M             $25+M
Per Business Revenue\1\..........  $0.5M \3\           $1M                 $3M                 $5M                 $10M                $25M
Distribution.....................  96%                 2%                  1%                  2%
Annual number of affected small    3.9                 0.1                 0.0                 0.1
 businesses.

[[Page 40113]]

 
Per-Business effect..............  2.8%                1.4%                0.5%                0.3%
----------------------------------
                                               Hydroelectric Power Generation NAICS 221111 (SIC 4911) \2\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annual Number of Small Businesses                                                                0.2
 Affected.
----------------------------------
Per-Business Cost................                                                             $4,100
----------------------------------
RMA Revenue Bin..................  $0-1M               $1-3M               $3-5M               $5-10M              $10-25M             $25+M
Per Business Revenue\1\..........  $0.5M \3\           $1M                 $3M                 $5M                 $10M                $25M
Distribution.....................  9%                  17%                 10%                 5%                  22%                 37%
Annual number of affected small    0.02                0.03                0.02                0.01                0.04                0.07
 businesses.
Per-Business effect..............  0.8%                0.4%                0.1%                0.08%               0.04%               0.01%
----------------------------------
                                                     Heavy Construction, nec NAICS 234990 (SIC 1629)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Annual Number of Small Businesses                                                                0.1
 Affected.
----------------------------------
Per-Business Cost................                                                           $248,000
----------------------------------
RMA Revenue Bin..................  $0-1M               $1-3M               $3-5M               $5-10M              $10-25M             $25+M
Per Business Revenue\1\..........  $0.5M \3\           $1M                 $3M                 $5M                 $10M                $25M
Distribution.....................  4%                  26%                 16%                 41%                 13%
Annual number of affected small    0.004               0.03                0.02                0.04                0.01
 businesses.
Per-Business effect..............  49.6%               24.8%               8.3%                5.0%                2.5%
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ In order to be conservative, this analysis assumes that the small businesses in each bin have revenue equal to the low end of the range within a
  bin. Thus, percent of revenue impacts may appear larger than would be likely for that business.
\2\ Actual estimates of small hydroelectric power generation facilities are not available, therefore this analysis conservatively assumes 100% of
  hydroelectric power generation facilities in the affected areas to be small.
\3\ Because this bin ranges from $0 to $1 million, this analysis uses the mid-point of the range.

    As presented in Exhibit 4, of the four agriculture and ranching 
industries impacted annually by this designation, an average of 3.9 
businesses with revenues less than $1 million will experience a 2.8 
percent effect on revenues, and less than one business per year with 
greater than $1 million in revenues will experience an effect on 
revenues of less than two percent. Therefore, the economic analysis 
concludes that a significant economic impact on a substantial number of 
small businesses will not result from the designation of critical 
habitat for the 11 mussels.

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

    Under SBREFA, this rule is not a major rule (see Regulatory 
Flexibility Act section). Our assessment of the economic effects of 
this designation is described in the economic analysis. Based upon the 
effects identified in the economic analysis, this rule will not have an 
effect on the economy of $100 million or more, will not cause a major 
increase in costs or prices for consumers, and will not have 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of U.S.-based enterprises to 
compete with foreign-based enterprises. Please refer to the final 
economic analysis for a discussion of the effects of this 
determination.

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. The purpose of this 
requirement is to ensure that all Federal agencies ``appropriately 
weigh and consider the effects of the Federal Government's regulations 
on the supply, distribution, and use of energy.'' The Office of 
Management and Budget has provided guidance for implementing this 
executive order that outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared without the regulatory 
action under consideration:

     Reductions in crude oil supply in excess of 10,000 barrels 
per day;
     Reductions in fuel production in excess of 4,000 barrels 
per day;
     Reductions in coal production in excess of 5 million tons 
per year;
     Reductions in natural gas production in excess of 25 
million metric cubic feet;
     Reductions in electricity production in excess of 1 
billion kilowatt-hours per year or in excess of 500 megawatts of 
installed capacity;
     Increases in energy use required by the regulatory action 
that exceed the thresholds above;
     Increases in the cost of energy production in excess of 
one percent;
     Increases in the cost of energy distribution in excess of 
one percent; or
     Other similarly adverse outcomes.

    Three of these criteria are relevant to this analysis: (1) 
Reductions in electricity production in excess of 1 billion kilowatt-
hours per year or in excess of 500 megawatts of installed capacity; (2) 
increases in the cost of energy production in excess of one percent; 
and (3) increases in the cost of energy distribution in excess of one 
percent. The following analysis determines whether the electricity 
industry, specifically related to hydroelectric production and 
distribution, is likely to experience ``a significant adverse effect'' 
as a result of section 7 implementation for the mussels.
    The relicensing of hydropower facilities is subject to the 
requirements of the Clean Water Act, Dam Safety Control Act and the 
Federal Power Act as well as implementation of section 7 of the 
Endangered Species Act. Hydropower facility owners/operators are 
therefore required to consider the impacts of their actions on 
sensitive species, regardless of the implementation of section 7 of the 
Act. As it is difficult to separate the economic impacts associated 
with the baseline regulations from the requirement of section 7, 
however, the analysis makes the conservative assumption that all of the 
costs for

[[Page 40114]]

project modifications to hydropower facilities are attributable to 
implementation of section 7 of the Act.

Evaluation of Whether Section 7 Implementation Will Result in a 
Reduction in Electricity Production in Excess of 500 Megawatts of 
Installed Capacity

    Installed capacity is ``the total manufacturer-rated capacity for 
equipment such as turbines, generators, condensers, transformers, and 
other system components'' and represents the maximum rate of flow of 
energy from the plant or the maximum output of the plant. Table 5 lists 
the installed capacity of each of the hydropower projects likely to 
impact critical habitat for the mussels. The Alabama Power Company 
(APC) owns and operates two hydropower facilities within the critical 
habitat designation for the mussels, Jordan Dam in Unit 26 and Weiss 
Dam in Unit 18. The Fall Line Hydro Company has been licensed to 
operate a hydropower facility at Carters Reregulation Dam on the 
Coosawattee River in Unit 25. The Fall Line Hydro facility is licensed 
by FERC, but has not yet been constructed. The USACE owns and operates 
Carters Dam approximately 1.5 miles upstream of the Carters 
Reregulation Dam on the Coosawattee River.
    The total installed capacity of the Jordan, Weiss, Carters, and 
Carters Reregulation dams is 692.25 MW (692,250 KW) of 
hydroelectricity. The average annual generation at these facilities is 
760.3 million KWhr. The impact threshold for installed capacity is 500 
MW (500,000 KW) and the threshold for annual generation is one billion 
KWhr. For this analysis, annual generation is the most appropriate 
metric for evaluating the impact on energy production as the affected 
parties provided information on the potential impact of critical 
habitat in terms of anticipated decreased power generation, and not 
impact on installed capacity.
    Using the most conservative assumption of future flow requirements 
for the mussels, the APC estimates that a change in minimum flow regime 
to 2000 cfs at Weiss Dam will result in a reduction in average annual 
energy production of 53,336,000 kilowatt-hours and has not estimated 
potential impact to installed capacity. However, it is likely that the 
Service will recommend flows closer to the low-end estimates used in 
the economic analysis (see response to Comment 56 above). No changes in 
operations are anticipated at Jordan Dam as the current flow regime 
provides adequate habitat for the mussels. Accordingly, no decreases in 
annual power generation are anticipated at Jordan Dam. Specific impacts 
to energy production at Carters Dam and Carters Reregulation Dam are 
unknown as the level of flow that may be recommended to provide for the 
mussels is unclear.
    For the purpose of this screening analysis, the most conservative 
assumption is applied that both Carters Dam and Carters Reregulation 
Dam will not be able to produce power. Annual hydropower generation is 
expected to decrease approximately by a total of 446 million Kwhr 
assuming losses in production of 53.3 kilowatt-hours at Weiss Dam and 
complete losses at Carters Dam and Carters Reregulation Dam. The impact 
to hydropower production is therefore not expected to surpass the 
threshold of one billion KWhr. Table 5 outlines the installed capacity 
for all four hydropower projects. Table 6 outlines the change in 
average annual production that may result.

Table 5.--Installed Capacity of Hydropower Projects Likely To Impact Critical Habitat for the Mobile River Basin
                                                     Mussels
----------------------------------------------------------------------------------------------------------------
                                                                        Installed capacity            Average
                                                                 --------------------------------     annual
           Name of facility                       Owner                                             generation
                                                                        MW              KW          1,000 KWhr
----------------------------------------------------------------------------------------------------------------
Jordan Dam............................  Alabama Power Company             100            100,000         152,600
                                         (APC).
Weiss Dam.............................  Alabama Power Company              87.75          87,750         215,500
                                         (APC).
Carters Dam...........................  USACE...................          500            500,000         375,700
Carters Reregulation Dam..............  Fall Line Hydro Company.            4.5            4,500          16,500
                                       ---------------------------
    Total.............................  ........................          692.25         692,250        760,300
----------------------------------------------------------------------------------------------------------------
Source: Federal Energy Regulatory Commission, ``Hydroelectric Power Resources of the United States: Developed
  and Undeveloped,'' January 1, 1992. Federal Energy Regulatory Records Information System (FERRIS) on-line
  database, http://www.ferc.gov/Ferris.htm; Individual Conventional Developed and Undeveloped Hydroelectric
  Plants and Sites by Geographic Division, State, and Stream, Federal Energy Regulatory Commission; Army Corps
  of Engineers Pertinent Data on Carters Dam, accessed at http://water.sam.usace.army.mil/cart-pert.htm on
  December 4, 2003; Public comment letter from U.S. Army Corps of Engineers, Mobile District, October 14, 2003.


   Table 6.--Average Annual Generation of Hydropower Projects Likely To Impact Critical Habitat for the Mobile
                                               River Basin Mussels
----------------------------------------------------------------------------------------------------------------
                                                                                                     Deceased
                                                                                                      average
            Name of facility                         Owner                 Assumed  project           annual
                                                                             modifications          generation
                                                                                                    1,000 KWhr
----------------------------------------------------------------------------------------------------------------
Jordan Dam..............................  Alabama Power Company       None......................               0
                                           (APC).
Weiss Dam...............................  Alabama Power Company       Increase flow to 2,000 cfs          53,336
                                           (APC).
Carters Dam.............................  USACE.....................  Natural stream flow.......             283
Carters Reregulation Dam................  Fall Line Hydro Company...  Natural stream flow.......  ..............
    Total...............................  ..........................  ..........................         53,619
----------------------------------------------------------------------------------------------------------------
Source: Federal Energy Regulatory Commission, ``Hydroelectric Power Resources of the United States: Developed
  and Undeveloped,'' January 1, 1992. Personal communication with John D. Grogan, Manager of Environmental
  Compliance, Alabama Power Company, December 11, 2003.


[[Page 40115]]

Evaluation of Whether Section 7 Implementation Will Result in an 
Increase in the Cost of Energy Production in Excess of One Percent

    In order to determine whether implementation of section 7 of the 
Act will result in an increase in the cost of energy production, this 
analysis considers the maximum possible increase in energy production 
costs. Under the high-cost scenario, all decreased hydropower 
generation is substituted with the more expensive gas-driven turbine 
combustion production. Gas-driven turbine combustion production has 
production costs of $0.07 per kilowatt-hour, $0.06 greater than the 
cost of hydropower production. Under this scenario, $3.1 million in 
additional production costs will be incurred, an increase in production 
costs of approximately 0.07 percent. This analysis therefore does not 
anticipate an increase in the cost of energy production in excess of 
one percent. Table 7 summarizes the cost of energy production in 
Alabama and Georgia according to two scenarios, Scenario I in which 
there is no change due to critical habitat, and Scenario II in which 
the lost power generation due to the designation of critical habitat is 
substituted with gas-driven turbine combustion production.

          Table 7.--Average Production and Associated Costs for Energy Producers in Alabama and Georgia
----------------------------------------------------------------------------------------------------------------
                                                                Weighted
                                           Net generation   average of total  Production costs
                Fuel type                   (1000 KWhrs)       production          ($/KWhr)        Total costs
                                                                (percent)
----------------------------------------------------------------------------------------------------------------
                                                   SCENARIO I
----------------------------------------------------------------------------------------------------------------
Hydro...................................         3,454,699              1.56             $0.01       $34,536,990
Gas.....................................         6,706,320              3.02             $0.04       268,252,800
Coal....................................       149,336,218             67.31             $0.02     2,986,726,360
Nuclear.................................        62,371,516             28.11             $0.02     1,247,410,320
                                         -------------------
    Total...............................       221,866,753               100  ................     4,536,924,470
-----------------------------------------
                                                   SCENARIO II
----------------------------------------------------------------------------------------------------------------
Hydro...................................         3,400,080             1.353             $0.01        34,000,800
Gas Powered Turbine Combustion..........            53,619              0.02             $0.07         3,608,021
Gas.....................................         6,706,320              3.02             $0.04       268,252,800
Coal....................................       149,336,218             67.31             $0.02     2,986,724,360
Nuclear.................................        62,370,516             28.11             $0.02     1,247,410,320
                                         -------------------
    Total...............................       221,866,753               100  ................    4,539,996,301
----------------------------------------------------------------------------------------------------------------
Sources: Federal Energy Regulatory Commission, ``Hydroelectric Power Resources of the United States: Developed
  and Undeveloped,'' January 1, 1992. Electric Power Annual 2000: Volume I, Energy Information Administration,
  U.S. Department of Energy, August 2001, accessed at http://www.eia.doe.gov/cneaf/electricity/epav2/html_tables/epav2t13p.html; State Electricity Profiles, Alabama and Georgia, Energy Information Administration,
  U.S. Department of Energy, May 2003; Average Operating Expenses for Major U.S. Investor-Owned Electric
  Utilities, 1996 Through 2000, http://www.eia.doe.gov/cneaf/electricity/epav2/html_tables/epav2t13pl.html; New
  York Mercantile Exchange, Natural Gas Futures accessed at http://nymex.com/jsp/markets/ng_fut_csf.jsp.

    The difference in total costs between these two scenarios 
represents an estimate of the total increased costs of power production 
in the region of $3.1 million. This additional production cost 
represents a high-end estimate due to the following conservative 
assumptions:
     This methodology estimates whether the designation will 
result in a one percent increase in energy costs within Alabama and 
Georgia, as opposed to nationwide. The nationwide change in power 
production cost is, therefore, even less than the 0.07 percent change 
as estimated.
     This methodology assumes that all lost hydropower 
production will be replaced by gas-powered turbine combustion, a high-
cost energy substitute typically used to mitigate losses in peaking 
power production. Whereas Carters Dam supplies peaking power, Weiss Dam 
generates base load power.

Evaluation of Whether Section 7 Implementation Will Result in an 
Increase in the Cost of Energy Distribution in Excess of One Percent

    As described in the final economic analysis, TVA anticipates two 
informal consultations on transmission line construction and 
maintenance with no project modifications. Thus, the total costs 
incurred by TVA as a result of section 7 implementation range from 
$2,600 to $7,800. Total operating expenses for TVA in 2002 were $5.2 
billion. The total costs incurred as a result of section 7 are less 
than one ten-thousandth of one percent of TVA's operating expenses. The 
impact to energy distribution is therefore not anticipated to exceed 
the one percent threshold.
    Even in the highest cost scenario, where all lost hydropower 
production is replaced with gas-driven combustion turbine facilities, 
implementation of section 7 for the mussels will not result in 
``reductions in electricity production in excess of 1 billion kilowatt-
hours per year,'' an ``increase in the cost of energy production in 
excess of one percent,'' or an ``increase in the cost of energy 
distribution in excess of one percent.'' Consequently, this rule is not 
anticipated to have a significant adverse effect on the supply, 
distribution, or use of energy.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    a. Based on information contained in our economic analysis, this 
rule will not ``significantly or uniquely'' affect small governments. A 
Small Government Agency Plan is not required. Small governments will be 
affected only to the extent that any of their actions involving Federal 
funding or authorization must not destroy or adversely modify the 
critical habitat or take the species under section 9.

[[Page 40116]]

    b. This rule will not produce a Federal mandate of $100 million or 
greater in any year (i.e., it is not a ``significant regulatory 
action'' under the Unfunded Mandates Reform Act).

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 
designating approximately 1,760 kilometers (km) (1,093 miles (mi)) of 
river and stream channels in portions of the Tombigbee River drainage 
in Mississippi and Alabama; portions of the Black Warrior River 
drainage in Alabama; portions of the Alabama River drainage in Alabama; 
portions of the Cahaba River drainage in Alabama; portions of the 
Tallapoosa River drainage in Alabama and Georgia; and portions of the 
Coosa River drainage in Alabama, Georgia, and Tennessee, as critical 
habitat for these 11 Mobile River Basin mussels, in a takings 
implication assessment. The takings implications assessment concludes 
that this final rule does not pose significant takings implications.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior and Department of 
Commerce policy, we requested information from, and coordinated 
development of this critical habitat designation with, appropriate 
State resource agencies in Mississippi, Alabama, Tennessee, and 
Georgia, as well as during the listing process. The impact of the 
designation on State and local governments and their activities was 
fully considered in the Economic Analysis. The designation may have 
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 survival of the 
species are specifically identified. While making this definition and 
identification does not alter where and what federally sponsored 
activities may occur, it may assist these local governments in long-
range planning, rather than waiting for case-by-case section 7 
consultations to occur.

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We 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 these 11 
mussels.

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

    This rule does not contain new or revised collections of 
information that require OMB approval under the Paperwork Reduction 
Act. Information collections associated with certain permits pursuant 
to the Endangered Species Act are covered by an existing OMB approval, 
and are assigned clearance No. 1018-0094, with an expiration date of 
July 31, 2004. Detailed information for Act documentation appears at 50 
CFR 17. An agency may not conduct or sponsor, and a person is not 
required to respond to, a collection of information unless it displays 
a currently valid OMB control number.

National Environmental Policy Act

    We have determined that we do not need to prepare an Environmental 
Assessment or an Environmental Impact Statement as defined by the 
National Environmental Policy Act of 1969 (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 the 11 
mussels and have not designated critical habitat on Tribal lands.

References Cited

    A complete list of all references is available upon request from 
the Mississippi Ecological Services Field Office (see ADDRESSES 
section).

Author

    The author of this notice is the Mississippi Ecological Services 
Field Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

0
For the reasons outlined in the preamble, we amend part 17, subchapter 
B of chapter I, title 50 of the Code of Federal Regulations, as 
follows:

PART 17--[AMENDED]

0
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.


0
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 to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species                                                 Vertebrate
------------------------------------------------------                      population where                      When         Critical        Special
                                                         Historic range       endangered or        Status        listed         habitat         rules
           Common name              Scientific name                            threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              CLAMS
Acornshell, southern............  Epioblasma           U.S.A. (AL,GA,TN).  NA................  E                      495  17.95 (f)                  NA
                                   othcaloogensis.
 

[[Page 40117]]

 
                                                                      * * * * * * *
Clubshell, ovate................  Pleurobema           U.S.A.              NA................  E                      495  17.95 (f)                  NA
                                   perovatum.           (AL,TN,GA,MS).
Clubshell, southern.............  Pleurobema decisum.  U.S.A.              NA................  E                      495  17.95 (f)                  NA
                                                        (AL,TN,GA,MS).
 
                                                                      * * * * * * *
Combshell, upland...............  Epioblasma           U.S.A. (AL,GA,TN).  NA................  E                      495  17.95 (f)                  NA
                                   metastriata.
 
                                                                      * * * * * * *
Kidneyshell, triangular.........  Ptychobranchus       U.S.A. (AL,GA,TN).  NA................  E                      495  17.95 (f)                  NA
                                   greenii.
 
                                                                      * * * * * * *
Moccasinshell, Alabama..........  Medionidus           U.S.A. (AL,GA,MS).  NA................  T                      495  17.95 (f)                  NA
                                   acutissimus.
Moccasinshell, Coosa............  Medionidus parvulus  U.S.A. (AL,GA,TN).  NA................  E                      495  17.95 (f)                  NA
 
                                                                      * * * * * * *
Mucket, orange-nacre............  Lampsilis perovalis  U.S.A. (AL,MS)....  NA................  T                      495  17.95 (f)                  NA
 
                                                                      * * * * * * *
Pigtoe, dark....................  Pleurobema furvum..  U.S.A. (AL).......  NA................  E                      495  17.95 (f)                  NA
 
                                                                      * * * * * * *
Pigtoe, southern................  Pleurobema           U.S.A. (AL,GA,TN).  NA................  E                      495  17.95 (f)                  NA
                                   georgianum.
 
                                                                      * * * * * * *
Pocketbook, fine-lined..........  Lampsilis altilis..  U.S.A. (AL,GA)....  NA................  T                      495  17.95 (f)                  NA
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. In Sec.  17.95, at the end of paragraph (f), add an entry for Eleven 
Mobile River Basin mussel species'' to read as follows:


Sec.  17.95  Critical habitat-fish and wildlife.

* * * * *
    (f) Clams and snails.
* * * * *
    Eleven Mobile River Basin mussel species: Southern acornshell 
(Epioblasma othcaloogensis), ovate clubshell (Pleurobema perovatum), 
southern clubshell (Pleurobema decisum), upland combshell (Epioblasma 
metastriata), triangular kidneyshell (Ptychobranchus greenii), Alabama 
moccasinshell (Medionidus acutissimus), Coosa moccasinshell (Medionidus 
parvulus), orange-nacre mucket (Lampsilis perovalis), dark pigtoe 
(Pleurobema furvum), southern pigtoe (Pleurobema georgianum), and fine-
lined pocketbook (Lampsilis altilis)
    (1) The primary constituent elements essential for the conservation 
of the southern acornshell (Epioblasma othcaloogensis), ovate clubshell 
(Pleurobema perovatum), southern clubshell (Pleurobema decisum), upland 
combshell (Epioblasma metastriata); triangular kidneyshell 
(Ptychobranchus greenii), Alabama moccasinshell (Medionidus 
acutissimus), Coosa moccasinshell (Medionidus parvulus), orange-nacre 
mucket (Lampsilis perovalis), dark pigtoe (Pleurobema furvum), southern 
pigtoe (Pleurobema georgianum), and fine-lined pocketbook (Lampsilis 
altilis) 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:
    (i) Geomorphically stable stream and river channels and banks;
    (ii) 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 mussels and their fish hosts 
in the river environment;
    (iii) Water quality, including temperature, pH, hardness, 
turbidity, oxygen content, and other chemical characteristics, 
necessary for normal behavior, growth, and viability of all life 
stages;
    (iv) Sand, gravel, and/or cobble substrates with low to moderate 
amounts of fine sediment, low amounts of attached filamentous algae, 
and other physical and chemical characteristics necessary for normal 
behavior, growth, and viability of all life stages;
    (v) Fish hosts, with adequate living, foraging, and spawning areas 
for them; and
    (vi) Few or no competitive nonnative species present.
    (2) Critical habitat unit descriptions and maps.
    (i) Index map. The index map showing critical habitat units in the 
States of Mississippi, Alabama, Georgia, and Tennessee for the 11 
Mobile River Basin mussel species follows:
BILLING CODE 4310-55-P

[[Page 40118]]

[GRAPHIC] [TIFF OMITTED] TR01JY04.001

    (ii) 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

[[Page 40119]]

descriptions and maps appear below the table.

 
------------------------------------------------------------------------
                                 Critical habitat
            Species                   units                States
------------------------------------------------------------------------
Southern acornshell             Units 13, 18, 19,  AL, GA, TN
 (Epioblasma othcaloogensis).    21, 24, 25, 26.
Ovate clubshell (Pleurobema     Units 1, 2, 3, 4,  AL, GA, MS, TN
 perovatum).                     5, 6, 7, 8, 9,
                                 10, 11, 12, 13,
                                 17, 18, 19, 21,
                                 24, 25, 26.
Southern clubshell (Pleurobema  Units 1, 2, 3, 4,  AL, GA, MS, TN
 decisum).                       5, 6, 7, 8, 9,
                                 13, 14, 15, 17,
                                 18, 19, 21, 24,
                                 25, 26.
Upland combshell (Epioblasma    Units 12, 13, 18,  AL, GA, TN
 metastriata).                   19, 21, 24, 25,
                                 26.
Triangular kidneyshell          Units 10, 11, 12,  AL, GA, TN
 (Ptychobranchus greenii).       13, 18, 19, 20,
                                 21, 22, 23, 24,
                                 25, 26.
Alabama moccasinshell           Units 1, 2, 3, 4,  AL, GA, MS, TN
 (Medionidus acutissimus).       5, 6, 7, 8, 9,
                                 10, 11, 12, 13,
                                 15, 25, 26.
Coosa moccasinshell             Units 18, 19, 20,  AL, GA, TN
 (Medionidus parvulus).          21, 22, 23, 24,
                                 25, 26.
Orange-nacre mucket (Lampsilis  Units 1, 2, 3, 4,  AL, MS
 perovalis).                     5, 6, 7, 8, 9,
                                 10, 11, 12, 13,
                                 14, 15.
Dark pigtoe (Pleurobema         Units 10, 11, 12.  AL
 furvum).
Southern pigtoe (Pleurobema     Units 18, 19, 20,  AL, GA, TN
 georgianum).                    21, 22, 23, 24,
                                 25, 26.
Fine-lined pocketbook           Units 13, 16, 17,  AL, GA, TN
 (Lampsilis altilis).            18, 19, 20, 21,
                                 22, 23, 24, 25,
                                 26.
------------------------------------------------------------------------

    (iii) Unit 1. East Fork Tombigbee River, Monroe, Itawamba County, 
Mississippi. This is a critical habitat unit for the ovate clubshell, 
southern clubshell, Alabama moccasinshell, and orange-nacre mucket.
    (A) Unit 1 includes the East Fork Tombigbee River main stem from 
Mississippi Highway 278 (T13S R7E S3), Monroe County, upstream to the 
confluence of Mill Creek (T11S R8E S24), Itawamba County, Mississippi.
    (B) Map of Unit 1 follows:

[[Page 40120]]

[GRAPHIC] [TIFF OMITTED] TR01JY04.002


[[Page 40121]]


    (iv) Unit 2. Bull Mountain Creek, Itawamba County, Mississippi. 
This is a critical habitat unit for the ovate clubshell, southern 
clubshell, Alabama moccasinshell, and orange-nacre mucket.
    (A) Unit 2 includes the main stem of Bull Mountain Creek from 
Mississippi Highway 25 (T11S R9E S30), upstream to U.S. Highway 78 
(T10S R10E S6), Itawamba County, Mississippi.
    (B) Map of Unit 2 follows:

[[Page 40122]]

[GRAPHIC] [TIFF OMITTED] TR01JY04.003


[[Page 40123]]


    (v) Unit 3. Buttahatchee River and Sipsey Creek, Lowndes/Monroe 
County, Mississippi; Lamar County, Alabama. This is a critical habitat 
unit for the ovate clubshell, southern clubshell, Alabama 
moccasinshell, and orange-nacre mucket.
    (A) Unit 3 includes the Buttahatchee River main stem from its 
confluence with the impounded waters of Columbus Lake (Tombigbee River, 
T16S R19W S23), Lowndes/Monroe County, Mississippi, upstream to the 
confluence of Beaver Creek (T13S R15W S17), Lamar County, Alabama; and 
Sipsey Creek, from its confluence with the Buttahatchee River (T14S 
R17W S2), upstream to the Mississippi/Alabama State Line (T12S R10E 
S21), Monroe County, Mississippi.
    (B) Map of Unit 3 follows:

[[Page 40124]]

[GRAPHIC] [TIFF OMITTED] TR01JY04.004

    (vi) Unit 4. Luxapalila Creek and Yellow Creek, Lowndes County, 
Mississippi; Lamar County, Alabama. This is a critical habitat unit for 
the ovate clubshell, southern clubshell,

[[Page 40125]]

Alabama moccasinshell, and orange-nacre mucket.
    (A) Unit 4 includes the Luxapalila Creek main stem from Waterworks 
Road (T18S R18W S11), Columbus, Mississippi, upstream to approximately 
1.0 km (0.6 mi) above Steens Road (T17S R17W S27), Lowndes County, 
Mississippi; and the Yellow Creek main stem from its confluence with 
Luxapalila Creek (T17S R17W S21), Lowndes County, Mississippi, upstream 
to the confluence of Cut Bank Creek (T16S R16W S30), Lamar County, 
Alabama.
    (B) Map of Unit 4 follows:

[[Page 40126]]

[GRAPHIC] [TIFF OMITTED] TR01JY04.005


[[Page 40127]]


    (vii) Unit 5. Coalfire Creek, Pickens County, Alabama. This is a 
critical habitat unit for the ovate clubshell, southern clubshell, 
Alabama moccasinshell, and orange-nacre mucket.
    (A) Unit 5 includes the Coalfire Creek main stem from its 
confluence with the impounded waters of Aliceville Lake (Tombigbee 
River, T20S R17W S26), upstream to U.S. Highway 82 (T19S R15W S15), 
Pickens County, Alabama.
    (B) Map of Unit 5 follows:

[[Page 40128]]

[GRAPHIC] [TIFF OMITTED] TR01JY04.006


[[Page 40129]]


    (viii) Unit 6. Lubbub Creek, Pickens County, Alabama. This is a 
critical habitat unit for the ovate clubshell, southern clubshell, 
Alabama moccasinshell, and orange-nacre mucket.
    (A) Unit 6 includes the main stem of Lubbub Creek from its 
confluence with the impounded waters of Gainesville Lake (Tombigbee 
River, T24N R2W S11), upstream to the confluence of Little Lubbub Creek 
(T21S R1W S34), Pickens County, Alabama.
    (B) Map of Unit 6 follows:

[[Page 40130]]

[GRAPHIC] [TIFF OMITTED] TR01JY04.007


[[Page 40131]]


    (ix) Unit 7. Sipsey River, Greene/Pickens, Tuscaloosa Counties, 
Alabama. This is a critical habitat unit for the ovate clubshell, 
southern clubshell, Alabama moccasinshell, and orange-nacre mucket.
    (A) Unit 7 includes the Sipsey River main stem from its confluence 
with impounded waters of Gainesville Lake (Tombigbee River, T24N R1W 
S30), Greene/Pickens County, upstream to Alabama Highway 171 crossing 
(T18S R12W S34), Tuscaloosa County, Alabama.
    (B) Map of Unit 7 follows:

[[Page 40132]]

[GRAPHIC] [TIFF OMITTED] TR01JY04.008


[[Page 40133]]


    (x) Unit 8. Trussels Creek, Greene County, Alabama. This is a 
critical habitat unit for the ovate clubshell, southern clubshell, 
Alabama moccasinshell, and orange-nacre mucket.
    (A) Unit 8 includes the Trussels Creek main stem from its 
confluence with the impounded waters of Demopolis Lake (Tombigbee 
River, T21N R2W S15), upstream to Alabama Highway 14 (T22N R1E S4), 
Greene County, Alabama.
    (B) Map of Unit 8 follows:

[[Page 40134]]

[GRAPHIC] [TIFF OMITTED] TR01JY04.009


[[Page 40135]]


    (xi) Unit 9. Sucarnoochee River, Sumter County, Alabama. This is a 
critical habitat unit for the ovate clubshell, southern clubshell, 
Alabama moccasinshell, and orange-nacre mucket.
    (A) Unit 9 includes the Sucarnoochee River main stem from its 
confluence with the Tombigbee River (T17N R1W S26), upstream to the 
Mississippi/Alabama State Line (T19N R4W S15), Sumter County, Alabama.
    (B) Map of Unit 9 follows:

[[Page 40136]]

[GRAPHIC] [TIFF OMITTED] TR01JY04.010

    (xii) Unit 10. Sipsey Fork and tributaries, Winston, Lawrence 
Counties, Alabama. This is a critical habitat unit for the ovate 
clubshell, triangular kidneyshell, Alabama

[[Page 40137]]

moccasinshell, orange-nacre mucket, and dark pigtoe.
    (A) Unit 10 includes the Sipsey Fork main stem from the section 11/
12 line (T10S R8W), Winston County, Alabama, upstream to the confluence 
of Hubbard Creek (T8S R9W S27), Lawrence County, Alabama; Thompson 
Creek, from its confluence with Hubbard Creek (T8S R9W S27), upstream 
to section 2 line (T8S R9W) Lawrence County; Brushy Creek, from the 
confluence of Glover Creek (T10S R7W S11), Winston County, upstream to 
section 9 (T8S R7W), Lawrence County; Capsey Creek, from confluence 
with Brushy Creek (T9S R7W S23), Winston County, upstream to the 
confluence of Turkey Creek (T8S R6W S33), Lawrence County; Rush Creek, 
from confluence with Brushy Creek (T9S R7W S15), upstream to Winston/
Lawrence County Line (T9S R7W S1), Winston County; Brown Creek, from 
confluence with Rush Creek (T9S R7W S2), Winston County, upstream to 
section 24 line (T8S R7W), Lawrence County; Beech Creek, from 
confluence with Brushy Creek (T9S R7W S8), to confluence of East and 
West Forks (T9S R7W S6), Winston County; Caney Creek and North Fork 
Caney Creek, from confluence with Sipsey Fork (T9S R8W S28), upstream 
to section 14 line (T9S R9W), Winston County; Borden Creek, from 
confluence with Sipsey Fork (T8S R8W S5), Winston County, upstream to 
the confluence of Montgomery Creek (T8S R8W S10), Lawrence County; and 
Flannagin Creek, from confluence with Borden Creek (T8S R8W S28), 
upstream to confluence of Dry Creek (T8S R8W S4), Lawrence County.

[[Page 40138]]

[GRAPHIC] [TIFF OMITTED] TR01JY04.011


[[Page 40139]]


[GRAPHIC] [TIFF OMITTED] TR01JY04.012


[[Page 40140]]


    (xiii) Unit 11. North River and Clear Creek, Tuscaloosa, Fayette 
Counties, Alabama. This is a critical habitat unit for the ovate 
clubshell, triangular kidneyshell, Alabama moccasinshell, orange-nacre 
mucket, and dark pigtoe.
    (A) Unit 11 includes the main stem of the North River from 
Tuscaloosa County Road 38 (T18S R10W S16), Tuscaloosa County, upstream 
to confluence of Ellis Creek (T16S R10W S6), Fayette County, Alabama; 
and Clear Creek from its confluence with North River (T16S R11W S13) to 
Bays Lake Dam (T16S R11W S2), Fayette County, Alabama.
    (B) Map of Unit 11 follows:

[[Page 40141]]

[GRAPHIC] [TIFF OMITTED] TR01JY04.013


[[Page 40142]]


    (xiv) Unit 12. Locust Fork and Little Warrior Rivers, Jefferson, 
Blount Counties, Alabama. This is a critical habitat unit for the ovate 
clubshell, upland combshell, triangular kidneyshell, Alabama 
moccasinshell, orange-nacre mucket, and dark pigtoe.
    (A) Unit 12 includes the Locust Fork main stem from U.S. Highway 78 
(T15S R4W S30), Jefferson County, upstream to the confluence of Little 
Warrior River (T13S R1W S3), Blount County, Alabama; and Little Warrior 
River from its confluence with the Locust Fork (T13S R1W S3), upstream 
to the confluence of Calvert Prong and Blackburn Fork (T13S R1W S12), 
Blount County, Alabama.
    (B) Map of Unit 12 follows:

[[Page 40143]]

[GRAPHIC] [TIFF OMITTED] TR01JY04.014


[[Page 40144]]


    (xv) Unit 13. Cahaba River and Little Cahaba River, Jefferson, 
Shelby, Bibb Counties, Alabama. This is a critical habitat unit for the 
southern acornshell, ovate clubshell, southern clubshell, upland 
combshell, triangular kidneyshell, Alabama moccasinshell, orange-nacre 
mucket, and fine-lined pocketbook.
    (A) Unit 13 includes the Cahaba River from U.S. Highway 82 (T23N 
R9E S26), Centerville, Bibb County, upstream to Jefferson County Road 
143 (T18S R1E S33), Jefferson County, Alabama; and the Little Cahaba 
River from its confluence with the Cahaba River (T24N R10E S21), 
upstream to the confluence of Mahan and Shoal Creeks (T24N R11E S14), 
Bibb County, Alabama.
    (B) Map of Unit 13 follows:

[[Page 40145]]

[GRAPHIC] [TIFF OMITTED] TR01JY04.015


[[Page 40146]]


    (xvi) Unit 14. Alabama River, Autauga, Lowndes, Dallas Counties, 
Alabama. This is a critical habitat unit for the southern clubshell and 
orange-nacre mucket.
    (A) Unit 14 includes the Alabama River from the confluence of the 
Cahaba River (T16N R10E S32), Dallas County, upstream to the confluence 
of Big Swamp Creek (T15N R12E S1), Lowndes County, Alabama.
    (B) Map of Unit 14 follows:

[[Page 40147]]

[GRAPHIC] [TIFF OMITTED] TR01JY04.016


[[Page 40148]]


    (xvii) Unit 15. Bogue Chitto Creek, Dallas County, Alabama. This is 
a critical habitat unit for the southern clubshell, Alabama 
moccasinshell, and orange-nacre mucket.
    (A) Unit 15 includes the Bogue Chitto Creek main stem from its 
confluence with the Alabama River (T14N R8E S24), Dallas County, 
upstream to U.S. Highway 80 (T17N R7E S24), Dallas County, Alabama.
    (B) Map of Unit 15 follows:

[[Page 40149]]

[GRAPHIC] [TIFF OMITTED] TR01JY04.017

    (xviii) Unit 16. Tallapoosa River, Cleburne County, Alabama, and 
Paulding, Haralson Counties, Georgia; Cane Creek, Cleburne County, 
Alabama. This is a critical habitat unit for the fine-lined pocketbook.

[[Page 40150]]

    (A) Unit 16 includes the main stem Tallapoosa River from U.S. 
Highway 431 (T17S R10E S31), Cleburne County, Alabama, upstream to the 
confluence of McClendon and Mud Creeks (33 [deg]50' 43'' N 85 
[deg]00'45''W), Paulding County, Georgia; and Cane Creek from its 
confluence with Tallapoosa River (T16S R10E S24), upstream to section 
33/4 Line (T15S, R11E), Cleburne County, Alabama.
    (B) Map of Unit 16 follows:

[[Page 40151]]

[GRAPHIC] [TIFF OMITTED] TR01JY04.018


[[Page 40152]]


    (xix) Unit 17. Uphapee, Choctafaula, and Chewacla Creeks, Macon, 
Lee Counties, Alabama. This is a critical habitat unit for the ovate 
clubshell, southern clubshell, and fine-lined pocketbook.
    (A) Unit 17 includes the mainstem of Uphapee Creek from Alabama 
Highway 199 (T17N R23E S3), upstream to the confluence of Opintlocco 
and Chewacla Creeks (T17N R24E S26), Macon County, Alabama; Choctafaula 
Creek, from confluence with Uphapee Creek (T17N R24E S8), upstream to 
Macon County Road 54 (T18N R 25E S31), Macon County, Alabama; Chewacla 
Creek, from confluence with Opintlocco Creek (T17N R24E S26), Macon 
County, Alabama, upstream to Lee County Road 159 (T18N R26E S18), Lee 
County, Alabama; Opintlocco Creek, from confluence with Chewacla Creek 
(T17N R24E S26), upstream to Macon County Road 79 (T16N R25E S25) Macon 
County, Alabama.
    (B) Map of Unit 17 follows:

[[Page 40153]]

[GRAPHIC] [TIFF OMITTED] TR01JY04.019


[[Page 40154]]


    (xx) Unit 18. Coosa River (Old River Channel) and Terrapin Creek, 
Cherokee, Calhoun, Cleburne Counties, Alabama. This is a critical 
habitat unit for the southern acornshell, ovate clubshell, southern 
clubshell, upland combshell, triangular kidneyshell, Coosa 
moccasinshell, southern pigtoe, and fine-lined pocketbook.
    (A) Unit 18 includes the Coosa River main stem from the power line 
crossing southeast of Maple Grove, Alabama (T10S R8E S35), upstream to 
Weiss Dam (T10S R8E S13), Cherokee County, Alabama; Terrapin Creek, 53 
km (33 mi) extending from its confluence with the Old Coosa River 
channel (T10S R9E S28), Cherokee County, upstream to Cleburne County 
Road 49 (T13S R11E S15), Cleburne County, Alabama; South Fork Terrapin 
Creek, 7 km (4 mi), from its confluence with Terrapin Creek (T13S R11E 
S18), upstream to Cleburne County Road 55 (T13S R11E S30), Cleburne 
County, Alabama.
    (B) Map of Unit 18 follows:

[[Page 40155]]

[GRAPHIC] [TIFF OMITTED] TR01JY04.020


[[Page 40156]]


    (xxi) Unit 19. Hatchet Creek, Coosa, Clay Counties, Alabama. This 
is a critical habitat unit for the southern acornshell, ovate 
clubshell, southern clubshell, upland combshell, triangular 
kidneyshell, Coosa moccasinshell, southern pigtoe, and fine-lined 
pocketbook.
    (A) Unit 19 includes the main stem of Hatchet Creek from the 
confluence of Swamp Creek at Coosa County Road 29 (T22N R17E S26), 
Coosa County, Alabama, upstream to Clay County Road 4 (T22S R6E S17) 
Clay County, Alabama.
    (B) Map of Unit 19 follows:

[[Page 40157]]

[GRAPHIC] [TIFF OMITTED] TR01JY04.021


[[Page 40158]]


    (xxii) Unit 20. Shoal Creek, Calhoun, Cleburne Counties, Alabama. 
This is a critical habitat unit for the triangular kidneyshell, Coosa 
moccasinshell, southern pigtoe, and fine-lined pocketbook.
    (A) Unit 20 includes the main stem of Shoal Creek from the 
headwater of Whitesides Mill Lake (T15S R9E S12), Calhoun County, 
Alabama, upstream to the tailwater of Coleman Lake Dam (T14S R10E S26), 
Cleburne County, Alabama.
    (B) Map of Unit 20 follows:

[[Page 40159]]

[GRAPHIC] [TIFF OMITTED] TR01JY04.022


[[Page 40160]]


    (xxiii) Unit 21. Kelly Creek and Shoal Creek, Shelby, St. Clair 
Counties, Alabama. This is a critical habitat unit for the southern 
acornshell, ovate clubshell, southern clubshell, upland combshell, 
triangular kidneyshell, Coosa moccasinshell, southern pigtoe, and fine-
lined pocketbook.
    (A) Unit 21 includes the Kelly Creek main stem extending from the 
confluence with the Coosa River (T19S R3E S5), upstream to the 
confluence of Shoal Creek (T17S R2E S28), St. Clair County, Alabama; 
and the main stem of Shoal Creek from the confluence with Kelly Creek 
(T17S R2E S28), St. Clair County, Alabama, upstream to the St. Clair/
Shelby County Line (T17S R2E S30), St. Clair County, Alabama.
    (B) Map of Unit 21 follows:

[[Page 40161]]

[GRAPHIC] [TIFF OMITTED] TR01JY04.023

    (xxiv) Unit 22. Cheaha Creek, Talladega, Clay Counties, Alabama. 
This is a critical habitat unit for the triangular kidneyshell, Coosa 
moccasinshell, southern pigtoe, and fine-lined pocketbook.

[[Page 40162]]

    (A) Unit 22 includes the main stem of Cheaha Creek from its 
confluence with Choccolocco Creek (T17S R6E S19), Talladega County, 
Alabama, upstream to the tailwater of Chinnabee Lake Dam (T18S R7E 
S14), Clay County, Alabama.
    (B) Map of Unit 22 follows:

[[Page 40163]]

[GRAPHIC] [TIFF OMITTED] TR01JY04.024


[[Page 40164]]


    (xxv) Unit 23. Yellowleaf Creek and Mud Creek, Shelby County, 
Alabama. This is a critical habitat unit for the triangular 
kidneyshell, Coosa moccasinshell, southern pigtoe, and fine-lined 
pocketbook.
    (A) Unit 23 includes the Yellowleaf Creek main stem from Alabama 
Highway 25 (T20S R2E S29), upstream to Shelby County Road 49 (T20S R1W 
S13); and the Muddy Prong main stem extending from its confluence with 
Yellowleaf Creek (T20S R1E S1), upstream to U.S. Highway 280 (T19S R1E 
S28), Shelby County, Alabama.
    (B) Map of Unit 23 follows:

[[Page 40165]]

[GRAPHIC] [TIFF OMITTED] TR01JY04.025


[[Page 40166]]


    (xxvi) Unit 24. Big Canoe Creek, St. Clair County, Alabama. This is 
a critical habitat unit for the southern acornshell, ovate clubshell, 
southern clubshell, upland combshell, triangular kidneyshell, Coosa 
moccasinshell, southern pigtoe, and fine-lined pocketbook.
    (A) Unit 24 includes the main stem of Big Canoe Creek from its 
confluence with Little Canoe Creek at the St. Clair/Etowah County line 
(T13S R5E S17), St. Clair County, upstream to the confluence of Fall 
Branch (T14S R1E S28) St. Clair County, Alabama.
    (B) Map of Unit 24 follows:

[[Page 40167]]

[GRAPHIC] [TIFF OMITTED] TR01JY04.026

    (xxvii) Unit 25. Oostanaula, Coosawattee, and Conasauga Rivers, and 
Holly Creek, Floyd, Gordon, Whitfield, Murray Counties, Georgia; 
Bradley, Polk Counties, Tennessee. This is a critical habitat unit for 
the southern acornshell,

[[Page 40168]]

ovate clubshell, southern clubshell, upland combshell, triangular 
kidneyshell, Alabama moccasinshell, Coosa moccasinshell, southern 
pigtoe, and fine-lined pocketbook.
    (A) Unit 25 includes the Oostanaula River main stem from its 
confluence with the Etowah River, Floyd County, Georgia (34[deg]15'13'' 
N, 85[deg]10'35'' W), upstream to the confluence of the Conasauga and 
Coosawattee River, Gordon County, Georgia (34[deg]32'32'' N, 
84[deg]54'12 '' W); the Coosawattee River main stem from its confluence 
with the Conasauga River (34[deg]32'32 '' N, 84[deg]54'12 '' W), 
upstream to Georgia State Highway 136, Gordon County, Georgia 
(34[deg]36'49 '' N, 84[deg]46'43 '' W); the Conasauga River main stem 
from confluence with the Coosawattee River (34[deg]32'32 '' N, 
84[deg]54'13 '' W), Gordon County, Georgia, upstream through Bradley 
and Polk Counties, Tennessee, to Murray County Road 2 (34[deg]58'27 '' 
N, 84[deg]38'43 '' W), Murray County, Georgia; and the mainstem of 
Holly Creek from its confluence with the Conasauga River (34[deg]42'12 
'' N, 84[deg]53'29 '' W), upstream to its confluence with Rock Creek, 
Murray County, Georgia (34[deg]46'59 '' N, 84[deg]45'25 '' W).
    (B) Map of Unit 25 follows:

[[Page 40169]]

[GRAPHIC] [TIFF OMITTED] TR01JY04.027


[[Page 40170]]


    (xxviii) Unit 26. Lower Coosa River, Elmore County, Alabama. This 
is a critical habitat unit for the southern acornshell, ovate 
clubshell, southern clubshell, upland combshell, triangular 
kidneyshell, Alabama moccasinshell, Coosa moccasinshell, southern 
pigtoe, and fine-lined pocketbook.
    (A) Unit 26 includes the Coosa River main stem from Alabama State 
Highway 111 bridge (T18N R18/19E S24/19), upstream to Jordan Dam (T19N 
R18E S22), Elmore County, Alabama.
    (B) Map of Unit 26 follows:

[[Page 40171]]

[GRAPHIC] [TIFF OMITTED] TR01JY04.028

* * * * *

    Dated: June 17, 2004.
Craig Manson,
Assistant Secretary, Fish, Wildlife, and Parks.
[FR Doc. 04-14279 Filed 6-30-04; 8:45 am]
BILLING CODE 4310-55-C