[Federal Register Volume 69, Number 168 (Tuesday, August 31, 2004)]
[Rules and Regulations]
[Pages 53136-53180]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-19340]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



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

  Federal Register / Vol. 69, No. 168 / Tuesday, August 31, 2004 / 
Rules and Regulations  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI76


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 13 
river and stream segments (units) in the Tennessee and/or Cumberland 
River Basins, encompassing a total of approximately 885 river 
kilometers (rkm) (550 river miles (rmi)) of river and stream channels, 
as critical habitat for five endangered mussels [Cumberland elktoe 
(Alasmidonta atropurpurea), oyster mussel (Epioblasma capsaeformis), 
Cumberlandian combshell (Epioblasma brevidens), purple bean (Villosa 
perpurpurea), and rough rabbitsfoot (Quadrula cylindrica strigillata)] 
under the Endangered Species Act of 1973, as amended (Act). 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 September 30, 2004.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in preparation of this final rule, are available for 
public inspection, by appointment, during normal business hours at the 
Tennessee Field Office, U.S. Fish and Wildlife Service, 446 Neal 
Street, Cookeville, TN 38501.
    You may obtain copies of the final rule or the economic analysis 
from the field office address above, by calling (931) 528-6481, or from 
our Web site at http://cookeville.fws.gov.
    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: Tennessee Field 
Office (see ADDRESSES section above); Alabama Field Office, U.S. Fish 
and Wildlife Service, P.O. Box 1190, Daphne, AL 36526 (telephone (251) 
441-5181); Kentucky Field Office, USFWS, 3761 Georgetown Road, 
Frankfort, KY 40601 ((502) 695-0468); Mississippi Field Office, USFWS, 
6578 Dogwood View Parkway, Ste. A, Jackson, MS 39213 ((601) 965-4900); 
Southwestern Virginia Field Office, USFWS, 330 Cummings Street, 
Abingdon, VA 24210 ((276) 623-1233).

FOR FURTHER INFORMATION CONTACT: Timothy Merritt, Tennessee Field 
Office (telephone (931) 528-6481, facsimile (931) 528-7075).

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 Act 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 
1,252 listed species in the U.S. under the jurisdiction of the Service 
have designated critical habitat. We address the habitat needs of all 
1,252 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.
    We note, however, that a recent 9th Circuit judicial opinion, 
Gifford Pinchot Task Force v. United State Fish and Wildlife Service, 
has invalidated the Service's regulation defining destruction or 
adverse modification of critical habitat. We are currently reviewing 
the decision to determine what effect it may have on the outcome of 
consultations pursuant to Section 7 of the Act.

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 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

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comment, and in some cases the cost of compliance with the National 
Environmental Policy Act. 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 five mussels in the family Unionidae that 
are historically native to portions of the ``Cumberlandian'' Region of 
the Tennessee and Cumberland River Basins, including the Cumberland 
elktoe (Alasmidonta atropurpurea), oyster mussel (Epioblasma 
capsaeformis), Cumberlandian combshell (Epioblasma brevidens), purple 
bean (Villosa perpurpurea), and rough rabbitsfoot (Quadrula cylindrica 
strigillata). 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 33234, June 
3, 2003) for a more detailed discussion of the species' general life 
history and our current understanding of their historical and current 
range and distribution.
    We present information below on taxonomy, life history, and 
distribution specific to these 5 Cumberlandian mussels. The following 
section incorporates information received during the public comment 
period, thereby updating and/or revising this section from the 
information presented in the proposed rule. Additional information can 
be found in the listing determination (62 FR 1647) and the final 
recovery plan for these five mussels (Service 2004).

Taxonomy, Life History, and Distribution

Cumberland Elktoe (Alasmidonta atropurpurea (Rafinesque 1831))

    Gravid Cumberland elktoe females (females with larvae) have been 
observed between October and May, but fish infected with glochidia of 
the Cumberland elktoe have not been encountered until March (Gordon and 
Layzer 1993). While glochidial infestation from this species has been 
recorded on five native fish species, glochidia successfully 
transformed or developed only on the northern hogsucker (Hypentelium 
nigricans) under laboratory conditions (Gordon and Layzer 1993). This 
species appears to prefer habitats in medium-sized streams to large 
rivers that contain sand and mud substrata interspersed with cobbles 
and large boulders (Call and Parmalee 1981; Parmalee and Bogan 1998).
    The Cumberland elktoe is endemic to the upper Cumberland River 
System in southeast Kentucky and north-central Tennessee. It appears to 
have historically occurred only in the main stem of the Cumberland 
River and primarily its southern tributaries upstream from the 
hypothesized original location of Cumberland Falls near Burnside, 
Pulaski County, Kentucky (Cicerello and Laudermilk 2001). This species 
has apparently been extirpated from the main stem of the Cumberland 
River as well as Laurel River and its tributary, Lynn Camp Creek 
(Service 2004). Based on recent records, the Cumberland elktoe 
continues to persist in 12 Cumberland River tributaries: Laurel Fork, 
Claiborne County, Tennessee, and Whitley County, Kentucky; Marsh Creek, 
McCreary County, Kentucky; Sinking Creek, Laurel County, Kentucky; Big 
South Fork, Scott County, Tennessee, and McCreary County, Kentucky; 
Rock Creek, McCreary County, Kentucky; North Fork White Oak Creek, 
Morgan and Fentress Counties, Tennessee; Clear Fork, Fentress, Morgan, 
and Scott Counties, Tennessee; North Prong Clear Fork and Crooked 
Creek, Fentress County, Tennessee; White Oak Creek, Scott County, 
Tennessee; Bone Camp Creek, Morgan County, Tennessee; and New River, 
Scott County, Tennessee (Call and Parmalee 1981; Bakaletz 1991; Gordon 
1991; Cicerello 1996; Parmalee and Bogan 1998; Cicerello and Laudermilk 
2001; R.R. Cicerello, Kentucky State Nature Preserves Commission 
(KSNPC), personal communication (pers. comm.) 2002, 2003; Service 2004; 
Ahlstedt et al. 2003).

Oyster Mussel (Epioblasma capsaeformis (Lea 1834))

    Ortmann (1924) was the first to note color differences in female 
oyster mussel mantle pads (shell lining). The mantle color appears to 
be bluish or greenish white in the Clinch River, grayish to blackish in 
the Duck River, and mottled brown in the Big South Fork population 
(Ortmann 1924; Service 2004; J.W. Jones, Virginia Polytechnic Institute 
and State University (Virginia Tech), pers. comm. 2003). In addition, 
the Duck River form achieves nearly twice the size of specimens from 
other populations. Two small projections (microattractants) at the 
junction of the mantle pads serve to attract host fish. Subtle 
differences in the morphology of these projections or structures also 
exist in these two populations and coupled with additional data, 
suggest that they are distinct species (J.W. Jones, pers. comm. 2002).
    Spawning probably occurs in the oyster mussel in late spring or 
early summer (Gordon and Layzer 1989; J.W. Jones, pers. comm. 2003). 
Glochidia of the oyster mussel have been identified on seven native 
host fish species, including the wounded darter (Etheostoma 
vulneratum), redline darter (E. rufilineatum), bluebreast darter (E. 
camurum), dusky darter (Percina sciera), banded sculpin (Cottus 
carolinae), black sculpin (C. baileyi), and mottled sculpin (C. bairdi) 
(Yeager and Saylor 1995; J.W. Jones and R.J. Neves, U.S. Geological 
Survey (USGS), unpublished (unpub.) data 1998). Oyster mussels 
typically occur in sand and gravel substrate in streams ranging from 
medium-sized creeks to large rivers (Gordon 1991; Parmalee and Bogan 
1998). They prefer shallow riffles and shoals and have been found 
associated with water willow (Justicia americana) beds (Ortmann 1924; 
Gordon 1991; Parmalee and Bogan 1998).
    The oyster mussel was one of the most widely distributed 
Cumberlandian mussel species, with historical records existing from six 
States (Alabama, Georgia, Kentucky, North Carolina, Tennessee, and 
Virginia). It has been eliminated from the entire Cumberland River 
System and the Tennessee River main stem and a large number of its 
tributaries (Fraley and Ahlstedt 2001; S.A. Ahlstedt, USGS, pers. comm. 
2002, 2003; Service 2004; Ahlstedt 1991a; J.W. Jones, pers. comm. 
2003). This mussel is now extant only in a handful of stream and river 
reaches in two States, including the Duck River, Maury and Marshall 
counties, Tennessee; Clinch River, Hancock County, Tennessee, and Scott 
County, Virginia; and Nolichucky River, Hamblen and Cocke counties, 
Tennessee (Wolcott and Neves 1990; Ahlstedt 1991b; Bakaletz 1991; 
Gordon 1991; Ahlstedt and Tuberville 1997; S.A. Ahlstedt, pers. comm. 
2003; Service 2004; J.W. Jones, pers. comm. 2003).

Cumberlandian Combshell (Epioblasma brevidens (Lea 1831))

    Spawning in Cumberlandian combshell most likely occurs in late 
summer and fall, while the actual release of glochidia takes place 
during the remainder of the year.
    Spawning in Cumberlandian combshell most likely occurs in late 
summer and fall, while the actual release of glochidia takes place 
during the remainder of the year (J.W. Jones, pers. comm. 2003; J. 
Layzer, Tennessee Technological University, pers. comm.

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2003). Glochidia of the Cumberlandian combshell have been identified on 
several native host fish species, including the wounded darter, redline 
darter, bluebreast darter, snubnose darter (Etheostoma simoterum), 
greenside darter (E. blennioides), logperch (Percina caprodes), banded 
sculpin, black sculpin, and mottled sculpin (Yeager and Saylor 1995; 
J.W. Jones and R.J. Neves, unpub. data 1998). This species is typically 
associated with riffle and shoal areas in medium to large-sized rivers 
(Gordon 1991; Parmalee and Bogan 1998). It is found in substrate 
ranging from coarse sand to cobble (Gordon 1991).
    This species, like the oyster mussel, was once widely distributed, 
historically occurring in five States (Alabama, Kentucky, Mississippi, 
Tennessee, and Virginia). It has likewise apparently been eliminated 
from the main stems of the Tennessee and Cumberland rivers and several 
of their tributaries (Service 2004). It is now restricted to five 
stream reaches. The Cumberlandian combshell persists in Bear Creek, 
Colbert County, Alabama, and Tishomingo County, Mississippi; Powell 
River, Claiborne and Hancock Counties, Tennessee, and Lee County, 
Virginia; Clinch River, Hancock County, Tennessee, and Scott and 
Russell Counties, Virginia; Big South Fork, Scott County, Tennessee, 
and McCreary County, Kentucky; and Buck Creek, Pulaski County, Kentucky 
(Isom and Yokely 1968; Schuster et al. 1989; Ahlstedt 1991b; Bakaletz 
1991; Gordon 1991; Ahlstedt and Tuberville 1997; Hagman 2000; S.A. 
Ahlstedt, pers. comm. 2002; R.M. Jones, Mississippi Museum of Natural 
Science, pers. comm. 2002; R.R. Cicerello, pers. comm. 2003; McGregor 
and Garner 2004).

Purple Bean (Villosa perpurpurea (Lea 1861))

    Gravid female purple beans have been observed in January and 
February (Ahlstedt 1991b; R.S. Butler, Service, pers. comm. 2003). 
Glochidia of the purple bean have been identified on the fantail darter 
(Etheostoma flabellare), greenside darter, banded sculpin, black 
sculpin, and mottled sculpin (Watson and Neves 1996; J. W. Jones, pers. 
comm. 2003). This species inhabits small creeks to medium-sized rivers 
and can be found in a variety of substrates (Gordon 1991; Parmalee and 
Bogan 1998).
    The purple bean is endemic to the upper Tennessee River drainage in 
Tennessee and Virginia. Its historical range included Powell River, Lee 
County, Virginia; Clinch River System, Claiborne, Grainger, and Hancock 
Counties, Tennessee, and Russell, Scott, Tazewell, and Wise counties, 
Virginia; Emory River System Morgan and Cumberland Counties, Tennessee; 
and Holston River System, Hawkins and Sullivan Counties, Tennessee, and 
Scott and Washington Counties, Virginia. It has apparently been 
extirpated from Powell River, Emory River, Daddys Creek (Emory River 
System), North Fork Beech Creek (Holston River System), and North Fork 
Holston River (Service 2004). The purple bean persists in portions of 
the Clinch River main stem, Hancock County, Tennessee, and Scott, 
Russell, and Tazewell Counties, Virginia; Copper Creek (a Clinch River 
tributary), Scott County, Virginia; Indian Creek (a Clinch River 
tributary), Tazewell County, Virginia; Obed River (an Emory River 
tributary), Morgan and Cumberland Counties, Tennessee; and Beech Creek 
(a Holston River tributary), Hawkins County, Tennessee (Ahlstedt 1991b; 
Gordon 1991; Winston and Neves 1997; Watson and Neves 1996; Ahlstedt 
and Tuberville 1997; S.A. Ahlstedt, pers. comm. 2000, 2002, 2003; 
Fraley and Ahlstedt 2001).

Rough Rabbitsfoot (Quadrula cylindrica strigillata (Wright 1898))

    Spawning for the rough rabbitsfoot apparently occurs from May 
through June (Yeager and Neves 1986). Glochidia of rough rabbitsfoot 
have been identified on the whitetail shiner (Cyprinella galactura), 
spotfin shiner (Cyprinella spiloptera), and bigeye chub (Hybopsis 
amblops) (Yeager and Neves 1986). This species prefers clean sand and 
gravel substrate in streams ranging from medium-sized creeks to medium-
sized rivers (Parmalee and Bogan 1998).
    Like the purple bean, the rough rabbitsfoot is endemic to the upper 
Tennessee River System. The rough rabbitsfoot historically occupied 
Powell River, Hancock and Claiborne Counties, Tennessee, and Lee 
County, Virginia; Clinch River System, Hancock and Claiborne Counties, 
Tennessee, and Russell, Scott, and Tazewell Counties, Virginia; and 
Holston River System, Hawkins and Sullivan Counties, Tennessee, and 
Scott and Washington Counties, Virginia. It is apparently extirpated 
from the entire Holston River System (Service 2004). It currently 
persists in portions of Powell River, Claiborne and Hancock Counties, 
Tennessee and Lee County, Virginia; Clinch River, Hancock County, 
Tennessee and Scott, Russell, and Tazewell Counties, Virginia; and in 
Indian Creek, Tazewell County, Virginia (Ahlstedt 1981; Gordon 1991; 
Ahlstedt and Tuberville 1997; Winston and Neves 1997; Watson and Neves 
1996; S.A. Ahlstedt, pers. comm. 2000, 2002, 2003; Fraley and Ahlstedt 
2001).
    The summary of these five mussels presented above represents our 
current understanding of their historical and current range and 
distribution. Research is ongoing regarding further taxonomic division 
of some species. For example, varying mantle coloration, 
microattractant configuration, size differential, and spawning cycles 
may indicate that the oyster mussel is actually a species complex (more 
than one species represented). Researchers from Virginia Tech are in 
the process of formally describing the Duck River variety (J.W. Jones, 
unpub. data), and most malacologists (biologists specializing in the 
life history and ecology of mollusks) believe that the Big South Fork 
variety is actually a sister species of the federally listed endangered 
tan riffleshell (Epioblasma florentina walkeri), a closely related 
species (historical records do exist, however, for true oyster mussels 
in the Big South Fork (see Unit 9 description) (S.A. Ahlstedt, pers. 
comm. 2002, 2003; J.W. Jones, pers. comm. 2003). Research focusing on 
the Big South Fork Epioblasma should be completed and published later 
this year (J.W. Jones, pers. comm. 2003). Therefore for this final 
rule, we recognize the extant Epioblasma in the Big South Fork River 
main stem as a sister species of the tan riffleshell. We also believe 
for this final rule that the Duck River oyster mussel population is 
true E. capsaeformis. For the remainder of the species, the 
distributions presented above are based upon shell morphology as 
described and currently recognized in the best available information. 
Therefore, we will consider these species' current ranges as outlined 
above, until presented with new information.

Summary of Decline and Threats to Surviving Populations

    Please refer to our proposed rule (68 FR 33234, June 3, 2003) and 
the recovery plan (Service 2004) for a summary of the decline of and 
threats to all five mussel species.

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-
prudent critical habitat determination for the 5 Cumberlandian Region 
mussel species. On November 8, 2001, the District Court issued an order 
directing us to re-evaluate our prudency determination for

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these five mussels and submit new proposed prudency determinations for 
the Cumberland elktoe to the Federal Register no later than May 19, 
2003, and for the remaining four mussels to the Federal Register no 
later than June 16, 2003. We were also directed to submit by those same 
dates new proposed critical habitat designations, if prudent. 
Additionally, for the mussels in which critical habitat was found to be 
prudent, we were directed to finalize our designation not less than 12 
months following the prudency determination. On January 8, 2004, the 
District Court extended our deadline to submit the final rule to the 
Office of the Federal Register to not later than August 19, 2004.
    Other Federal actions for these species prior to June 3, 2003, are 
outlined in our proposed rule to designate critical habitat for these 5 
mussel species (68 FR 33234). Publication of the proposed rule opened a 
60-day comment period, which closed on September 2, 2003. The comment 
period was reopened October 6, 2003, through December 5, 2003, in order 
to receive comments on a draft economic analysis, a technical 
correction and possible modification of Unit 8 Rock Creek, and to 
accommodate a public hearing which was held on October 29, 2003, in 
Tazewell County, Virginia (68 FR 57643).

Summary of Comments and Recommendations

    During the open comment periods for the proposed rule (68 FR 
33234), public hearing, and draft economic analysis (68 FR 57643), and 
the October 2003 reopening (68 FR 57643), we requested all interested 
parties to submit comments or information concerning the proposed 
designation of critical habitat for the 5 mussels. We contacted all 
appropriate Federal, State, and local agencies, county governments, 
elected officials, scientific organizations, and other interested 
parties and invited them to comment. We also sent notifications to the 
following newspapers: TimesDaily, Florence, Alabama; The Tennessean, 
Nashville, Tennessee; The Knoxville News-Sentinel, Knoxville, 
Tennessee; The Kingsport Times-News, Kingsport, Tennessee; The Columbia 
Daily Herald, Columbia, Tennessee; and The Commonwealth Journal, 
Somerset, Kentucky.
    We received a total of 27 comments at the public hearing and during 
the two comment periods. A transcript of the hearing is available for 
inspection (see ADDRESSES section). Nine comments supported the 
proposed designation. Of these, two also supported an expansion of 
critical habitat, ten comments expressed opposition, and four either 
provided additional information, were noncommittal, or expressed both 
opposition to and support of certain aspects of the proposed 
designation. Four of the responses were from the peer reviewers. 
Comments were received from five private organizations, four Federal 
agencies, three State governmental agencies, one business, three local 
governments, and four individuals. Several of the respondents commented 
on more than one occasion (e.g., at the public hearing and during the 
first comment period).
    We directly notified and requested comments from all affected 
States. The State comments can be found in the Comment Section under 
numbers 1, 2, and 3 for Kentucky State Nature Preserves Commission 
(KNPC), 13 and 34 for the Virginia Department of Transportation (VDOT), 
and 14 and 35 for the Tennessee Department of Environment and 
Conservation (TDEC). TDEC and KNPC both submitted comments in support 
of the designation. KNPC also supported an expansion of designated 
areas. The States of Virginia, Alabama, and Mississippi 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 Tennessee and Cumberland River Basins 
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 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. The peer reviewers neither 
endorsed nor opposed the proposed designation, but provided technical 
corrections and additional information for consideration. 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 any 
new information 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 current distribution of the Cumberland elktoe in 
Rock Creek extends upstream from Dolen Branch. It is described 
inaccurately in the text, but it is depicted accurately on the Unit 8 
map.
    Response: After our proposed rule was published, we were informed 
by the U.S. Forest Service (USFS) that we did not include a reach of 
Rock Creek upstream of Dolen Branch that contains a 1998 record of a 
live Cumberland elktoe. This specimen was collected approximately 5 rkm 
(3 rmi) upstream of Dolen Branch, southwest of Bell Farm. In an October 
6, 2003, Federal Register notice (68 FR 57643), we announced that we 
were considering a 6.4 rkm (4.0 rmi) upstream extension to Unit 8. We 
visited the proposed extension and found that it contains one or more 
of the primary constituent elements and is of similar quality habitat 
and character as the remainder of the Unit. We are, therefore, 
including the upstream extension in our final designation (see Map Unit 
8).
    (2) Comment: The Sinking Creek (Unit 11) Cumberland elktoe 
population is described as ``strong,'' but it should be considered 
``uncommon.''
    Response: We concur and have modified the text accordingly (see 
``Critical Habitat Unit Description'' section).
    (3) Comment: Critical habitat must include the upstream watershed 
to conserve aquatic organisms.
    Response: Critical habitat designations have relevance to section 7 
consultations, which apply solely to Federal actions, including those 
funded or authorized by Federal agencies. When evaluating the effects 
of any Federal action subject to 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 is 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

[[Page 53140]]

importance of the area to the survival of the species.
    (4) Comment: The identified spawning period for the oyster mussel 
and Cumberlandian combshell is really the glochidial release period.
    Response: We have made the appropriate change to the ``Taxonomy, 
Life History, and Distribution'' section.
    (5) Comment: The Duck River population of the oyster mussel will be 
described as a new species within the next year or so.
    Response: We concur that there are differences between the oyster 
mussel in the Duck River and in other extant populations of the oyster 
mussel in the Tennessee River System. However, for the purpose of this 
rule, we continue to consider the oyster mussel in the Duck River as 
true E. capsaeformis (see Taxonomy, Life History, and Distribution 
section).
    (6) Comment: The taxonomic status of tan riffleshell (Epioblasma 
florentina walkeri) in the Big South Fork National River and Recreation 
Area (BSFNRRA) is unambiguous; therefore, this population is not the 
oyster mussel (Epioblasma capsaeformis).
    Response: We concur and have made the appropriate changes to the 
text (see ``Taxonomy, Life History, and Distribution'' and ``Critical 
Habitat Unit Descriptions'' sections).
    (7) Comment: The mantle pad color of the tan riffleshell 
(Epioblasma florentina walkeri) in the Big South Fork is mottled-brown, 
not white.
    Response: We have modified the text accordingly (see ``Taxonomy, 
Life History, and Distribution'' section).
    (8) Comment: The oyster mussel is likely extirpated from the Clinch 
River in Russell and Tazewell counties, Virginia, and perhaps from the 
entire Powell River in Virginia and Tennessee.
    Response: We believe that the oyster mussel is likely extirpated 
from the Powell River, since no live individuals or shells have been 
found there in the last 14 years. The last time it was found in the 
Powell River was in Tazewell County, Virginia, in 1990. However, 
mussels are cryptic species living embedded in the bottom of rivers, 
and rare species, the oyster mussel in particular, may be difficult to 
find. The oyster mussel may be found again in this stretch of the 
Powell in the near future. It has been found recently in Scott County, 
Virginia, in the Clinch River. We have revised the appropriate sections 
in the rule to reflect this information.
    (9) Comment: Black sculpin (Cottus baileyi) and banded sculpin 
(Cottus carolinae) also serve as host fish for purple bean.
    Response: We concur and have modified the rule accordingly (see 
``Taxonomy, Life History, and Distribution'' section).

Public Comments

Issue A: Comments on Adequacy and Extent of Critical Habitat
    (10) Comment: It is premature to consider the lower Holston River, 
lower French Broad River, and Tennessee River below Wilson Dam as 
potential components of critical habitat for any of these species.
    Response: We have determined that these areas are essential to the 
conservation of the oyster mussel and Cumberlandian combshell. These 
areas are some of the only river sections remaining that contain the 
primary constituent elements that are needed for reintroducing these 
species into their historical habitat. The Tennessee River below Wilson 
Dam is an established nonessential experimental population (NEP) for 16 
mussel species, which includes the oyster mussel and Cumberlandian 
combshell. Under section 10(j) of the Act, we cannot designate critical 
habitat for nonessential experimental populations. We are also actively 
considering the lower French Broad, lower Holston, and Rockcastle 
Rivers for designation as NEPs to create additional viable populations 
necessary to conserve and recover the species. Therefore, with this 
rule, we are not designating the free-flowing reach of the French Broad 
River below Douglas Dam to its confluence with the Holston River, the 
free-flowing reach of the Holston River below Cherokee Dam to its 
confluence with the French Broad River, and the free-flowing reach of 
the Rockcastle River from the backwaters of Cumberland Lake upstream to 
Kentucky Route 1956 bridge as critical habitat due to their current or 
potential status as NEPs. Based on our evaluation under section 4(b)(2) 
of the Act, we have excluded these potential NEP areas from 
consideration as critical habitat. See ``Exclusions Under Section 
4(b)(2).''
    (11) Comment: It is unclear why suitable river areas (e.g., Knox 
County sections of the French Broad for the oyster mussel) should be 
excluded from critical habitat consideration because of ``potential 
status as nonessential experimental population area.''
    Response: Section 10(j)(2) of the Act provides for the designation 
of specific reintroduced populations of listed species as 
``experimental populations.'' It also states that critical habitat 
shall not be designated under the Act for any experimental population 
determined to be not essential to the continued existence of a species. 
We are actively working with partners and pursuing an NEP designation 
in the lower French Broad and lower Holston Rivers in Tennessee as well 
as the Rockcastle River in Kentucky. We believe that the benefits of 
excluding the remaining river reaches from the designation, from a 
conservation standpoint, outweigh the benefits of their inclusion (See 
the Benefits of Inclusion and Benefits of Exclusion Sections in the 
Proposed Rule, 68 FR 33234). Experimental populations provide us with a 
flexible, proactive means to meet recovery criteria while not 
alienating stakeholders, such as municipalities and landowners, whose 
cooperation is essential for eventual success of the reintroduced 
population.
    (12) Comment: Consider using NEPs of nonendangered species and, on 
occasion, endangered species in the tailwaters of the lower French 
Broad River, lower Holston River, and Tennessee River downstream of 
Wilson Dam to determine the realistic limits of their potential use as 
habitat.
    Response: NEPs, as specified in section 10(j) of the Act, are only 
used for federally listed species. A NEP already exists in the 
Tennessee River downstream of Wilson Dam for 16 federally listed 
mussels and under section 10(j) of the Act, we can not designate 
critical habitat for nonessential experimental populations. The lower 
French Broad and lower Holston Rivers are presently being considered 
for designation as NEPs. We have concluded that these three areas, in 
addition to the Rockcastle River, are essential to the conservation of 
the oyster mussel and Cumberlandian combshell and are important to our 
recovery strategy. These areas are some of the only river sections 
remaining that contain the primary constituent elements that are needed 
for reintroducing these species into their historical habitat. Based on 
our evaluation under section 4(b)(2) of the Act, we have excluded these 
potential NEP areas from consideration as critical habitat.
    (13) Comment: The Service should exclude any roadway and bridge 
projects in the Powell and Clinch River systems from the section 7 
consultations that might result from the critical habitat designation 
because of the precautions implemented by the VDOT during design, 
construction, and maintenance activities to minimize projects' effects 
on the mussel species.
    Response: Only projects that have a Federal nexus (i.e., Federal 
funding, Federal permit required, etc.) will

[[Page 53141]]

trigger section 7 of the Act. Federal agencies consult on actions that 
may affect listed species of its designated critical habitat. One of 
the benefits of critical habitat designation is to inform Federal 
agencies and other third 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. We acknowledge the precautions taken by the VDOT to protect 
these species and encourage early planning and coordination that can 
help by resulting in projects that may be determined ``not likely to 
adversely affect'' under section 7 and thus avoid a formal 
consultation. However, we cannot exempt an entity entirely from 
provisions of section 7 of the Act if there is a Federal nexus. These 
areas are being retained in the final critical habitat designation 
because the Powell and Clinch Rivers represent some of the best 
remaining habitat for four of the five mussels in question. Both 
streams contain one or more primary constituent elements along with 
populations of the mussels and are essential to their conservation.
    (14) Comment: The TDEC and others commented that the Service should 
exclude the Old Columbia Dam and its impoundment from the final 
designation because it does not contain the primary constituent 
elements or mussels in question.
    Response: The Old Columbia Dam in Unit 1, at approximately 4.3 
meters (14.0 feet) in height, impounds an area from rkm 211 (rmi 131) 
to rkm 220 (rmi 136.4). 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 dam is inundated during extreme high 
water conditions and has flow-through during lower water conditions 
which allows for at least downstream movement of host fishes and 
possibly attached glochidia. This short reach does contain one or more 
of the primary constituent elements and is important in maintaining 
downstream water quality and quantity. It also serves as a downstream 
corridor between the areas below and above the dam where the oyster 
mussel is known to survive. Including this reach in the designation 
will not preclude its continued use for water supply, and the dam 
itself, which was constructed in 1925, is not included in the critical 
habitat designation (see ``Critical Habitat Unit Descriptions'' section 
discussion of existing features).
    (15) Comment: The areas designated as critical habitat should be 
larger to include historical habitat.
    Response: Each of the 13 critical habitat units contains one or 
more of the primary constituent elements and is currently occupied by 
one or more of the five listed mussels. Because portions of the 
historical range of each of the five mussels are shared with two or 
more of the other mussel species, there is considerable overlap between 
species' current and historical distribution within the 13 habitat 
units (e.g., the critical habitat for the oyster mussel includes the 
Powell River, even though this mussel has not been found in the Powell 
River in 14 years). We believe that we have an adequate mix of occupied 
and unoccupied habitat (historical) in our final critical habitat 
designation to establish additional viable populations necessary to 
conserve the species. Including a mix of occupied and unoccupied 
habitat 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. We are either designating 
critical habitat or actively pursuing NEPs for all the remaining 
habitat that could support these five mussel species.
    (16) Comment: The designation of critical habitat for the 
Cumberland elktoe mussel in upper Crooked Creek and upper North Prong 
of Clear Fork will preclude future construction of a water supply 
reservoir potentially located in these headwaters and should be moved 
downstream to accommodate this need.
    Response: The Cumberland elktoe presently occurs in both Crooked 
Creek and the North Prong of Clear Fork. Section 7 of the Act already 
applies to Federal agencies and their actions as a result of the 
presence of this federally listed mussel. The habitat designated in 
Crooked Creek and North Prong Clear Fork contains one or more of the 
primary constituent elements and has been found to be essential to the 
conservation of this mussel. After reviewing the best available 
information, including all public comments, new information, and the 
economic analysis, we are designating critical habitat for the 
Cumberland elktoe in these two streams. We refer the reader to the 
``Methods and Analysis Used to Identify Critical Habitat for Five 
Mussel Species'' section in which we explain our rationale for 
designating critical habitat.
    (17) Comment: Can the area designated as critical habitat be 
expanded in the future to include other streams located in Tazewell 
County, Virginia, and wouldn't any potential expansion of the areas 
likewise negatively impact the county?
    Response: Under the Act, we can, from time to time as appropriate, 
revise critical habitat based on the best available information. Such a 
revision would require us to complete the same rulemaking procedures 
that occurred with this rule. These procedures include publishing a 
proposed designation, requesting public comment on a proposed rule, 
peer-reviewing the proposed rule, conducting public hearings if 
requested, and publishing a final rule. We are required under the Act 
when designating or revising critical habitat to evaluate economic or 
any other relevant impacts associated with specifying an area as 
critical habitat. Therefore, we would also conduct a new economic 
analysis as part of this process.
Issue B: Procedural and Legal Comments
    (18) Comment: Several commenters stated that the critical habitat 
designation will place undue bureaucratic requirements on small 
businesses.
    Response: Small businesses will only be involved in a section 7 
requirement if a project or activity that they are working on is 
federally funded or permitted or otherwise involves a Federal nexus. 
The designation of critical habitat for these five mussels will not 
have a significant economic impact on a substantial number of small 
entities. Impacts to small businesses are included in the small 
business analysis in Appendix C of the economic analysis. We refer the 
reader to the sections below entitled ``Regulatory Flexibility Act'' (5 
U.S.C. 601 et seq.) and ``Small Business Regulatory Enforcement 
Fairness Act'' (5 U.S.C. 802(2)) for more details.
    (19) Comment: Comments were received regarding the accuracy of the 
Service's disclaimer and the belief that the text in the sections 
``Designation of Critical Habitat Provides Little Additional Protection 
to Species,'' ``Role of Critical Habitat in Actual Practice of 
Administering and Implementing the Act,'' and ``Procedural and Resource 
Difficulties in Designating Critical Habitat'' of the proposed rule is 
factually inaccurate on three specific topics: (1) That critical 
habitat provides little additional protection to species, (2) that 
there are insufficient budgetary resources and time to designate 
critical habitat for listed species, and (3) that the statement ``these 
measures * * * may make the difference between

[[Page 53142]]

extinction and survival for many species'' applies a standard of 
survival that is different from the standard of conservation that is 
mandated by the Act.
    Response: As discussed in the sections ``Designation of Critical 
Habitat Provides Little Additional Protection to Species,'' ``Role of 
Critical Habitat in Actual Practice of Administering and Implementing 
the Act,'' and ``Procedural and Resource Difficulties in Designating 
Critical Habitat'' and other sections of this and other critical 
habitat designations, we believe that, in most cases, conservation 
mechanisms provided through section 7 consultations, the section 4 
recovery planning process, the section 9 protective prohibitions of 
unauthorized take, section 6 funding to the States, the section 10 
incidental take permit process, and cooperative programs with private 
and public landholders and tribal nations provide greater incentives 
and conservation benefits than does the designation of critical 
habitat.
    (20) Comment: Existing public facilities serving essential needs of 
the community would be considered to be in noncompliance by the Service 
when the critical habitat designation is made official.
    Response: The areas designated as critical habitat do not include 
existing features such as water intakes and outfalls, low-level dams, 
bridge footings, piers and abutments, boat ramps, and exposed 
pipelines. Federal actions limited to these existing features would not 
trigger consultation pursuant to section 7 of the Act, unless they 
adversely modify or destroy critical habitat.
    (21) Comment: The Columbia Power and Water Systems (CPWS) requested 
that they be allowed to provide input into the regulatory flexibility 
analysis on behalf of the local small entities that would be affected 
by the proposed designation.
    Response: No regulatory flexibility analysis is required if the 
head of the Federal agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
We have certified that this rule will not have a significant effect on 
a substantial number of small entities. We refer the reader to the 
``Regulatory Flexibility Act'' section of this rule in which we explain 
why we came to that conclusion.
    (22) Comment: CPWS requested that we revisit our initial 
certification that a regulatory flexibility analysis is not required.
    Response: We have revisited that decision and, relying upon data in 
the final economic analysis, we have again certified that the 
designation of critical habitat for these five mussel species will not 
have a significant economic impact on a substantial number of small 
entities and that a regulatory flexibility analysis is not required 
(see ``Regulatory Flexibility Analysis'' section).
    (23) Comment: CPWS is concerned about the possibility of ``taking'' 
(as defined under the Act) implications of this proposed designation.
    Response: As defined under section 3(18) of the Act: the term 
``take'' means to harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect, or attempt to engage in any such conduct. Section 
9 of the Act applies to the species itself and not to the critical 
habitat. Since federally listed species already exist in this reach of 
the Duck River, section 9 of the Act already applies and will not 
change as a result of the designation of critical habitat. For the same 
reasons, section 7 already applies to any Federal activity. The 
designation of critical habitat will not affect the operation of 
existing structures such as the Old Columbia Dam, as they are presently 
being operated. Any additions, modifications, new structures, etc., 
would be subject to section 7.
    (24) Comment: The critical habitat designation for the entire Duck 
River reach could prevent development of several of the Tennessee 
Valley Authority (TVA) water supply alternatives.
    Response: These alternatives were already subject to section 7 of 
the Act due to the fact that federally listed species occur in the Duck 
River. The inclusion of a reach of the Duck River as critical habitat 
will not affect this requirement for Federal agencies. They will still 
have to comply with section 7, but their consultation with the Service 
now must include a determination on whether the proposed action may 
affect critical habitat as well as the species.
    (25) Comment: Areas proposed as critical habitat in the Daniel 
Boone National Forest (DBNF) should be excluded from the designation 
because they currently are, and will continue to be, managed to protect 
endangered mussels.
    Response: The DBNF final forest management plan was completed in 
April 2004 after our proposed critical habitat rule for the five mussel 
species was published. We reviewed this plan prior to completing our 
final critical habitat rule to determine if it provided sufficient 
conservation benefits specific to the mussel species and if there were 
assurances that the conservation management strategies would be 
implemented and effective. We found that though the plan was generic in 
nature and does provide indirect benefits to overall aquatic systems, 
it did not specifically address the mussel species. For example, a 
riparian corridor prescription area was established that includes the 
watercourse and, for varying widths, its associated uplands; standards 
were developed for the prescription area to lessen the impacts of 
various activities on water quality and the physical characteristics of 
the corridor. However, these standards were not specifically developed 
for the mussel species, and do not address all the threats to mussels 
in that area.
    Furthermore, the plan does not commit the DBNF to any specific 
project or local action, thus there are no assurances that any 
conservation management strategies will be implemented for the area, 
nor these mussel species. In Chapter 1 of the plan, the DBNF states 
that ``As a framework for decision-making, this Plan does not commit 
the Forest Service to any specific project or local action. Rather, it 
describes general management direction; estimates production levels, 
and assesses the availability and suitability of lands for resource 
management practices.'' Since the plan does not specifically address 
mussels and does not provide for measures to reduce threats to mussels, 
we have not excluded this area from the designation.
    (26) Comment: Several commenters suggested that critical habitat 
could impact private property.
    Response: The consultation history for these species does not 
include any consultations for private activities on private lands and 
few such consultations are anticipated for the future. No Federal nexus 
exists for activities on private lands that do not require a Federal 
permit or involve the use of Federal funds. Streambeds of non-navigable 
waters and most navigable waters are owned by the riparian landowner, 
which can include private lands. Though streambeds designated can 
include private lands, without a Federal nexus, these streambeds will 
not be affected by the designation. Waters of navigable streams are 
considered public waters by the States of Mississippi, Alabama, 
Tennessee, Kentucky, and Virginia. The designation includes streams and 
river channels within the ordinary high water line. No private upland 
areas were proposed. In addition, development activities with the 
greatest potential to affect the mussels and habitat revolve around the 
increased construction of pipelines, water supply and wastewater 
infrastructure, and roads and bridges

[[Page 53143]]

within the proposed critical habitat. These activities involved Federal 
entities or have a Federal nexus, and thus do not impact entirely 
private activity. Increased costs of these activities due to the 
presence of species and habitat is captured through the anticipated 
consultations and project modifications as quantified within the 
economic analysis.
    (27) Comment: The City of Columbia, Tennessee, commented that the 
designation of critical habitat for the mussels may engender additional 
State water quality requirements under the Clean Water Act (CWA) 
involving total maximum daily load (TMDL) approvals and antidegradation 
language.
    Response: As discussed in Section 4.3.3 of the economic analysis, 
the designation of critical habitat can result in greater State 
protection to a stream segment. Critical habitat is one of many 
considerations used by TDEC when determining whether a water body is a 
high quality water (Tier II or Tier III, also known as Outstanding 
National Resource Waters) and thus to determine the level of water 
quality protection, including the application of TMDLs and 
antidegradation language. However, there are stream sections in 
Tennessee that contain critical habitat, but are listed on the State's 
303(d) list of impaired streams. Therefore, the designation of critical 
habitat does not automatically mean that the water body is classified 
as high quality water. The designation of critical habitat will not 
affect the State water quality requirements on existing discharges. It 
could result in greater State protections for new discharges or 
modifications to existing discharges. However, since this section of 
the Duck River already contains federally listed species, we believe 
that the addition of critical habitat will not significantly increase 
the State's water quality requirements.
    (28) Comment: Will the area designated as critical habitat be 
required to comply with or be subject to more stringent conditions or 
regulations, either now or in the future, and will this stop or delay 
economic development along the Clinch River or within the identified 
drainage area?
    Response: The designation of critical habitat on private land will 
have no impact on private landowner activities that do not involve 
federally funded or authorized activities. Section 7 of the Act already 
applies to projects that are federally funded or authorized due to the 
existing presence of federally listed species in the stream. Thus, the 
designation of critical habitat will not increase the section 7 
consultation burden to either the Federal agency or the permit 
applicant.
    (29) Comment: Tazewell County, Virginia, currently has no zoning. 
What will be the method of enforcement for the critical habitat?
    Response: The burden to comply with the section 7 of the Act falls 
only on Federal agencies and projects that they fund or authorize. 
Likewise, the burden to enforce the Act is a Federal responsibility 
that has been given to the Service. The county is not responsible for 
enforcement of the Act regardless of the zoning laws.
Issue C: Comments on Individual Units
    (30) Comment: For the proposed critical habitat in Unit 1 Duck 
River, Table 4 does not indicate that any of the 74 rkm (46 rmi) is 
bordered by State or Federal land.
    Response: We acknowledge this discrepancy and have modified the 
text accordingly (see ``Land Ownership'' section and Table 4).
    (31) Comment: There does not appear to be adequate justification 
for the designation of critical habitat for the oyster mussel and the 
Cumberlandian combshell in the Duck River Unit. The Service states in 
the rule that from a resource perspective, critical habitat designation 
is ineffective.
    Response: We noted in our prudency determination that, according to 
the standards placed upon us by the courts, a designation for these 
five mussels is warranted (see ``Prudency Determination'' in the 
proposed rule). The Duck River contains a highly diverse mussel fauna 
that is one of the best remaining in the Cumberlandian Region, perhaps 
in the country. It contains one or more of the primary constituent 
elements and is currently occupied by the oyster mussel and 
historically contained the Cumberlandian combshell. It is essential to 
the conservation of both taxa. We acknowledge that critical habitat, 
from a resource perspective, is often ineffective (see ``Designation of 
Critical Habitat Provides Little Additional Protection to Species'' 
section).
    (32) Comment: The Cumberlandian combshell does not currently occur 
in the Duck River; therefore, critical habitat for this species should 
not be designated there.
    Response: The Cumberlandian combshell historically occurred in the 
Duck River. Water quality and habitat conditions in the Duck River have 
improved since the TVA instituted minimum flows for Normandy Dam. The 
section of the Duck River designated as critical habitat now contains 
higher levels of dissolved oxygen and continuous flow and therefore 
possesses one or more of the primary constituent elements for the 
Cumberlandian combshell. This reach, although currently devoid of the 
Cumberlandian combshell, is essential to its conservation. The Duck 
River is also occupied by the oyster mussel.
    (33) Comment: Critical habitat is not needed because this measure 
will not add to the overall or site-specific protection already 
afforded to the three federally listed mussels (Cumberland elktoe, 
Cumberlandian combshell, and oyster mussel) that occur in Units 8, 10, 
11, and 12.
    Response: The Act has given us the requirement to designate 
critical habitat once we found that the designation of critical habitat 
for these five mussels was prudent (68 FR 33234) in accordance with 
standards established by the courts. Once a prudency determination was 
made, we set about determining what the primary constituent elements 
were and deciding what areas were essential to the conservation of 
these species. Units 8, 10, 11, and 12 all contain one or more of the 
primary constituent elements and we have determined that all these 
units are essential to the conservation of these three mussels. 
Therefore, critical habitat is warranted for all four of these units.
    (34) Comment: VDOT commented that 425 projects in the Powell River 
System and 275 projects in the Clinch River System may be impacted by 
the designation of critical habitat for the mussels. The commenter also 
noted that existing critical habitat for the spotfin chub (Erimonax 
monacha), yellowfin madtom (Noturus flavipinnis), and slender chub 
(Erimystax cahni) overlap with the proposed designation for the mussels 
by 36 percent and none of the past consultations for roadway projects 
found that the proposed action would adversely modify habitat.
    Response: The final economic analysis addresses the estimated total 
costs of section 7 projects, which include the VDOT projects that might 
be affected by the designation of critical habitat in the Clinch and 
Powell River systems. Most of the cost of the designation (77 percent) 
is comprised of the administrative costs. The analysis found that 
existing State and Federal regulations provide sufficient protection of 
these waterways, and as a result section 7 project modifications are 
unlikely for most activities. The commenter points out that there is 
existing critical habitat and that there have been no past 
consultations for roadway projects that have resulted in an adverse 
modification of critical habitat. This fact points to the excellent

[[Page 53144]]

working relationship between our two agencies and the mutual desire to 
insure that areas that are essential to the conservation of a federally 
listed species are adequately protected.
    (35) Comment: Multiple commenters provided information on the 
status of the Yanahli Wildlife Management Area (YWMA) in Unit 1 Duck 
River. In 2001, TVA transferred the area from rmi 137 to rmi 166 to the 
Tennessee Wildlife Resource Agency (TWRA).
    Response: We acknowledge this new information regarding YWMA and 
have incorporated that information into the final rule and Appendix B 
of the economic analysis. TWRA is managing YWMA for wildlife, 
recreation, and natural and cultural preservation. The deed transfer 
from TVA to TWRA requires no land be sold or used for residential 
development. In addition, no industrial use will be allowed on the 
land. In total, 2,752 ha (6,800 ac) are protected through development 
and use restrictions, 809 ha (2,000 ac) are protected as State Natural 
Areas, and 1,538 ha (3,800 ac) that includes Fountain Creek are 
protected for water supply. This will aid in the protection of the 
designated critical habitat on the Duck River.
    A management plan for this site is still in development. We 
anticipate that this plan will be generic in nature to protect overall 
water quality, and will not specifically address the mussel species. 
Thus, we have not excluded this area from the designation.
Issue D: Comments on Science
    (36) Comment: The introduction of cultured mussels and host fish 
will provide much greater hope for the preservation of these species 
than a critical habitat designation.
    Response: We believe the reintroduction of captively propagated 
mussels and host fish is an essential part of the conservation strategy 
for these mussels. In the 13 critical habitat units and the potential 
NEP areas in lower French Broad, lower Holston, and Rockcastle River 
areas that contain one or more of the primary constituent elements 
essential for the conservation of these mussels, we have identified 
areas that are suitable for reintroductions for the conservation of all 
of these mussels.
    (37) Comment: The designation of critical habitat will not stop the 
decline of these species, which is due to of the introduction of exotic 
clams and other species.
    Response: Our recovery biologists are tasked with identifying 
threats to federally listed species and using the Service's resources 
to reduce or eliminate those threats in our effort to recover the 
species. We are aware that exotic species may pose threats to the 
native mussel fauna and that critical habitat may not address that 
threat. We are working closely with our State partners to address these 
threats.
Issue E: Comments on Economic Impacts and Economic Analysis
    (38) Comment: Tazewell County, Virginia, provided a list of 55 
businesses that may potentially be affected by critical habitat 
designation for the mussels and inquired as to whether any of these 
businesses had been contacted in the process of conducting the economic 
analysis.
    Response: The Tazewell County Administrator was contacted February 
27, 2003, and interviewed regarding potential impacts of critical 
habitat on the county, as were representatives of each of the 20 other 
counties in which critical habitat is being designated. In addition, 
all relevant State and Federal regulatory agencies were contacted 
regarding potential impacts to projects they authorize or fund. It is 
not feasible to contact every small business which might be affected, 
nor is there any requirement to do so.
    (39) Comment: The draft economic analysis should assess potential 
economic benefits of the critical habitat designation.
    Response: The published economic and conservation biology 
literature indicates that welfare benefits can result from the 
conservation 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. Although there 
are existing studies valuing ecosystem services related to the mussels, 
such as water filtration, they have limited applicability for valuing 
the benefits of the critical habitat designation.
    The economic analysis does not conclude that the mussels or their 
critical habitat have no economic value; rather, it simply states that 
the value cannot be quantified at this time. Further, 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 
also note that we did not exclude any area due to economic reasons.
    (40) Comment: If the stream reach below the Old Columbia Dam is 
designated critical habitat, it is believed that gravel removal will 
not be permitted. Failure to remove the gravel buildup will cause long-
term economic loss to the CPWS and impair our rights under the Federal 
Energy Regulatory Commission (FERC) license.
    Response: The Old Columbia Dam is a FERC licensed hydropower 
facility with a generating capacity of 300 kilowatts. The dam is not 
currently in production for two reasons, (1) a flood in March of 2002 
damaged the system and repairs have yet to be made, and (2) a gravel 
bar has formed at the tailwater area of the dam, causing a 1.2 m (4.0-
foot) elevation of the water level against the downstream side of the 
turbine, resulting in a loss of power production. The second issue 
could impact the mussels, as the oyster mussel currently occupies the 
gravel bar. A formal consultation with the U.S. Army Corps of Engineers 
(Corps) and the CPWS would result if the CPWS were to apply for a 404 
permit to remove the gravel bar. A potential project modification for 
this permit is mussel relocation of half a mile of habitat. It is also 
possible that the permit may not be issued. The total project 
modification cost, if the permit was issued and mussels were relocated, 
could be $75,500 per relocation effort. The present value of the 
opportunity cost of lost power production if the permit was not issued 
and power generation did not commence would be $452,000 over the next 
40 years. Therefore, the costs associated with the Old Columbia Dam 
hydropower project could be $75,500 (if the permit was issued and 
mussels were relocated as a result of a formal consultation) to 
$452,000 (opportunity cost of hydropower generation). However, it has 
not been determined whether the CPWS will pursue this project based on 
the costs required to rebuild the equipment damaged in the 2002 flood.
    (41) Comment: The draft economic analysis completely omits any 
discussion of water-supply reservoirs and any analysis of potential 
indirect economic impacts of this designation

[[Page 53145]]

resulting from the denial of municipal water supply impoundments by 
regulatory authorities.
    Response: A discussion of water-supply reservoirs is addressed in 
the final economic analysis. Any possible denial of municipal water 
supply impoundments by regulatory authorities is based on many 
different issues (e.g., water quality, federally listed species, loss 
of free-flowing streams, etc.). In each critical habitat unit that we 
designated, there are existing federally listed species. As a result, 
section 7 of the Act already applies to any project that has a Federal 
nexus (e.g., federally funded or authorized) in these units.
    The potential indirect economic impacts cannot be quantified since 
proposals do not presently exist for a municipal water supply 
impoundment in any of the designated critical habitat units. 
Additionally, there is no way to quantify any potential permit denials 
from regulatory authorities based on the single criteria of critical 
habitat. We have stated in the final economic analysis that the section 
7 consultations would be greater due to the critical habitat 
designation. These costs are clearly spelled out in section 4 of the 
economic analysis and were considered in the final critical habitat 
designation.
    (42) Comment: The economic analysis should go beyond direct and 
indirect costs of the consultation process and address the wide-ranging 
potential impacts on equestrian visitation to the Big South Fork 
National River and Recreation Area (BSFNRRA.)
    Response: River crossings in mussel habitat may be altered but will 
not be precluded in the BSFNRRA. The economic analysis does not 
anticipate a measurable reduction in equestrian visitation to the Big 
South Fork due to alteration of certain river crossings in mussel 
habitat. Therefore, the economic analysis does not quantify potential 
impacts on equestrian visitation. We do not believe that there will be 
any wide-ranging impacts on equestrian visitation to the BSFNRRA due to 
the critical habitat designation. The critical habitat unit already 
contains existing federally listed species, so section 7 already 
applied to equestrian projects such as river crossings and has not 
resulted in the termination of any river crossings to date.
    (43) Comment: The draft economic analysis anticipated that a river 
crossing project within the BSFNRRA may lead to such project 
modifications as temporary mussel relocation in order to minimize 
disturbance to the mussels, or termination of the project altogether. 
The potential termination of the crossing project is inconsistent with 
the National Park Service's (NPS) January 2003 Supplemental Draft 
General Management Plan Environmental Impact Statement Big South Fork 
National River and Recreation Area.
    Response: The Draft General Management Plan states that the Station 
Camp Ford is a designated river crossing for horses and that the 
riverbed at this location is habitat for endangered mussels. The draft 
plan states that an ``interim method for addressing this issue, i.e., a 
flagged trail and educational signs, continues to provide for visitor 
use across, or through, the river'' and that additional studies are 
planned. The preferred alternative is to continue the interim trail 
crossing method and continue to investigate the most appropriate long-
term crossing method. The NPS is still exploring a range of 
alternatives for this crossing, including ``(1) construction of horse 
bridges over the river, (2) hardening of crossings in the river, (3) 
relocation of the horse crossings to a less sensitive location, (4) 
removal of horse crossings from the river, and (5) relocation of 
mussels to a more suitable location.'' Therefore, the economic analysis 
and the General Management Plan do consider a consistent set of 
possible planning outcomes.
    (44) Comment: Areas with strong economies, such as the lower French 
Broad River below Douglas Dam and the Holston River below Cherokee Dam 
in Grainger, Jefferson, and Knox Counties, were excluded from the 
proposed critical habitat designation while economically depressed 
areas (e.g., Clinch River, Tazewell County) were included. The proposal 
appears to give preferential treatment to these economically strong 
areas.
    Response: The reasons for excluding three river reaches from the 
proposed, and this final, critical habitat designation had nothing to 
do with the economics of the areas. We excluded the French Broad River 
below Douglas Dam and Holston River below Cherokee Dam in Tennessee, 
and a 24-km (15-mi) stretch of the Rockcastle River in Kentucky, 
because of our intent to establish NEPs for these areas. While it is 
true that the economic impact of including these areas would be high 
(estimated costs top $4.5 million), they were not excluded on economic 
grounds, but because of their potential status as NEPs for the oyster 
mussel and Cumberlandian combshell under section 10(j)(2) of the Act. 
The historical populations of these two species have been extirpated 
from (and are not able to naturally recolonize) the referenced segments 
of the Rockcastle, French Broad, and Holston Rivers. The reason we 
included the Clinch River was because it contained one or more of the 
primary constituent elements and was found to be essential to the 
conservation of, and occupied by, four of the five mussel species. The 
Clinch River is one of the last strongholds for Cumberlandian Region 
mussels.
    (45) Comment: A regional economic analysis is not appropriate in 
the economic analysis for this rule.
    Response: The economic analysis conducted with this rule assesses 
economic impacts incurred by the Service, action agencies, and third 
parties conducting affected activities in, and adjacent to, the 
critical habitat designation for the 5 mussels. A regional economic 
analysis was not performed for this rule.
    (46) Comment: The Birmingham, Alabama, Field Office of the Office 
of Surface Mining commented that no impacts to coal mining in Alabama 
and Mississippi are anticipated due to the designation of critical 
habitat for the mussels.
    Response: This comment confirms the findings discussed in section 
4.2.6 of the economic analysis with which we concur.
    (47) Comment: There are 28 active mines within Tazewell County, 
Virginia, affecting 588 ha (1,454 ac) in the Clinch River System. How 
will critical habitat designation impact these operations?
    Response: The critical habitat does not include existing features 
of the human-built environment. These existing mine sites would not be 
subject to the reinitiation of section 7 consultation as long as the 
companies met all their existing permit conditions. States are allowed 
to assume exclusive jurisdiction over the regulation of surface coal 
mining and reclamation operations on non-Federal lands, contingent upon 
the State regulation being as effective and no less stringent than the 
Federal regulation of the Office of Surface Mining with the Department 
of the Interior. We do not anticipate any adverse effect on these 
existing operations. We believe that these 28 active mines are included 
in the Viriginia's Division of Mined Land Reclamation estimate of 300 
permits associated with Unit 5 (Clinch River) and are expected to 
require technical assistance efforts with the Service during their 
review process.
    (48) Comment: The impact analysis (economic) did not include the 
current gas well operations in the Clinch River drainage, and the 
impact on these types of operations should be considered.
    Response: In Virginia, oil and gas drilling permits are issued by 
the

[[Page 53146]]

Division of Gas and Oil. Because Virginia has regulatory authority, 
there is no nexus to require section 7 consultation unless a project 
involves constructing or modifying a FERC-licensed interstate gas line. 
While FERC maintains a short-term ``On the Horizon'' listing of major 
pipeline projects, the agency is unable to estimate the number or 
location of projects which may require consultation with the Service in 
the critical habitat units over the next 10 years. If a consultation 
were required, the project modifications likely to be recommended 
include minimizing stream crossings, spanning lines along existing 
bridges to avoid instream work, and constructing catchment basins 
around wells.
    (49) Comment: Comments were also received stating that critical 
habitat for the mussels may impact Tazewell County, Virginia. Tazewell 
County commented that the designation of critical habitat will be 
``devastating to Tazewell County's economic growth and development.'' 
Comments were also submitted stating that the designation of critical 
habitat will not have a negative impact on the economy of Tazewell 
County.
    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, potential impacts to the future 
growth and development.

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 any endangered or 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 and 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 currently occupied by the species.
    Our Policy on Information Standards Under the Endangered Species 
Act, published 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 five mussels. Areas outside the 
critical habitat designation will continue to be subject to 
conservation actions that may be implemented under section 7(a)(1) of 
the Act and to the regulatory protections afforded by the section 
7(a)(2) jeopardy standard and the section 9 take prohibitions, 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. 
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 the Five 
Mussel Species

    As required by section 4(b)(2) of the Act and its implementing 
regulations (50 CFR 424.12), we used the best scientific and commercial 
information available to determine critical habitat areas that contain 
the physical and biological features that are essential for the 
conservation of these five mussels. We reviewed the available 
information pertaining to the historical and current distributions, 
life histories, host fishes, 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; statewide Geographic Information System (GIS) 
species occurrence coverages provided by the KSNPC, TDEC, and TVA; 
peer-reviewed scientific publications; the final listing rule for the 
five mussels; and our recovery plan for these mussels (Service 2004). 
We considered all collection records within the last 15 years from 
streams currently and historically known to be occupied by one or more 
of the species (see ``Taxonomy, Life History, and Distribution'' 
section).
    As discussed in part under the ``Summary of Decline'' section of 
the proposed rule (68 FR 33237) and the recovery plan (Service 2004), 
the five mussels are highly restricted in

[[Page 53147]]

distribution, generally occur in small populations, exhibit limited 
recruitment, and show little evidence of recovering from historical 
habitat loss without significant human intervention. In fact, the 
recovery plan states that recovery for the five mussels is not likely 
in the near future because of the extent of their decline, the relative 
isolation of remaining populations, and varied threats to their 
continued existence (Service 2004). Therefore, the recovery plan 
emphasizes protection of surviving populations of these five mussels 
and their stream and river habitats, enhancement and restoration of 
habitats, and population management, including augmentation and 
reintroduction of the mussels.

Primary Constituent Elements

    In accordance with sections 3(5)(A)(I) and 4(b)(1)(A) of the Act 
and regulations at 50 CFR 424.12, we are required to base critical 
habitat determinations on the best scientific and commercial data 
available and to consider those physical and biological features 
(primary constituent elements) that are essential to the conservation 
of the species and that may require special management considerations 
or protection. These 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 historical geographical 
and ecological distribution of a species.
    As detailed in the Background section in the proposed critical 
habitat rule (refer to 68 FR 33234, June 3, 2003) and in this final 
rule, these five 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 
specific 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. Based on the best available 
information at this time, the primary constituent elements of critical 
habitat for all five species discussed herein consist of:
    1. Permanent, flowing stream reaches with a flow regime (i.e, the 
magnitude, frequency, duration, and seasonality of discharge over time) 
necessary for normal behavior, growth, and survival of all life stages 
of the five mussels and their host fish;
    2. Geomorphically stable stream and river channels and banks 
(structurally stable stream cross section);
    3. Stable substrates, consisting of mud, sand, gravel, and/or 
cobble/boulder, with low amounts of fine sediments or attached 
filamentous algae;
    4. Water quality (including temperature, turbidity, oxygen content, 
and other characteristics) necessary for the normal behavior, growth, 
and survival of all life stages of the five mussels and their host 
fish; and
    5. Fish hosts with adequate living, foraging, and spawning areas 
for them.
    All areas designated as critical habitat for the five 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, and 5]; food, water, air, light, minerals, or other nutritional or 
physiological requirements [Constituent elements 1, 3, and 4]; cover or 
shelter; sites for breeding, reproduction, and rearing (or development) 
of offspring [Constituent elements 3 and 5]; and habitats that are 
protected from disturbance [Constituent element 1, 2, and 3].
    In identifying primary constituent elements, we have taken into 
account the dynamic nature of riverine systems. We recognize that 
riparian areas and floodplains are integral parts of the stream 
ecosystem because they are important in maintaining channel 
geomorphology, providing nutrient input, and buffering from sediments 
and pollution. Further, 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 considered several factors in the selection of specific areas 
for critical habitat for these five mussels. We assessed the recovery 
strategy outlined in the recovery plan for these species, which 
emphasizes: (1) Protection and stabilization of surviving populations; 
(2) protection and management of their habitat; (3) augmentation of 
existing small populations; (4) reestablishment/reintroduction of new 
populations within their historical ranges; and (5) research on species 
biology and ecology. Small, isolated populations are subject to the 
loss of unique genetic material (genetic drift) (Soul[eacute] 1980; 
Lacy et al. 1995) and the gradual loss of reproductive success or 
fecundity due to limited genetic diversity (Foose et al. 1995). They 
are likewise more vulnerable to extirpation from random catastrophic 
events and to changes in human activities and land-use practices 
(Soul[eacute] 1980; Lacy et al. 1995). The ultimate goal of the 
recovery plan is to restore enough viable (self-sufficient) populations 
of these five mussels such that each species no longer needs protection 
under the Act (Service 2004).
    In the recovery plan, we selected the number of distinct viable 
stream populations required for delisting of each of the five mussels 
on the basis primarily of the historical distribution of each species 
(Table 1). For example, the rough rabbitsfoot is narrowly endemic to 
the upper Tennessee River System. It historically occupied only three 
river reaches and, therefore, its conservation can be achieved with 
fewer populations than the historically wider-ranging oyster mussel. We 
have concluded that identification of critical habitat that would 
provide for the number of populations outlined in Table 1 for each 
species is essential to their conservation.

[[Page 53148]]



   Table 1.--Number of Distinct Viable Stream Populations of the Five
Cumberlandian Mussels Required Before Delisting Can Occur as Outlined in
                      Recovery Plan (Service 2004)
------------------------------------------------------------------------
                                                              Number of
                                                             populations
                          Species                           required for
                                                              delisting
------------------------------------------------------------------------
Cumberland elktoe.........................................             7
Oyster mussel.............................................             9
Cumberlandian combshell...................................             9
Purple bean...............................................             5
Rough rabbitsfoot.........................................             4
------------------------------------------------------------------------

    Our approach to delineating specific critical habitat units, based 
on the recovery strategy outlined above, focused first on considering 
the historical ranges of the five mussels. We evaluated streams and 
rivers within the historical ranges of these five mussels for which 
there was evidence that these species had occurred there at some point 
(i.e., museum collection records). Within the historical range of these 
species, we found that a large proportion of the streams and rivers in 
the Tennessee and Cumberland River Basins that historically supported 
these mussels have been modified by existing dams and their impounded 
waters. Extensive portions of these drainages, including the Cumberland 
and Tennessee River main stems, segments of the Holston River and 
Powell River, and numerous tributaries of these rivers, cannot be 
considered essential to the conservation of these species because they 
no longer provide the physical and biological features that are 
essential for their conservation (see ``Primary Constituent Elements'' 
section). We also did not consider several streams with single site 
occurrence records of a single species as essential to the conservation 
of these species because these areas exhibited limited habitat 
availability, isolation, degraded habitat, and/or low management value 
or potential (e.g., Cedar Creek, Colbert County, Alabama; Little Pigeon 
River, Sevier County, Tennessee). Similarly, we did not consider as 
essential areas from which there have been no collection records of 
these species for several decades (e.g., portions of the upper Holston 
River System in Tennessee and Virginia, Buffalo River, Little South 
Fork of the Cumberland River, Laurel River).
    We then identified 13 stream or river reaches (units) within the 
historical ranges of these species for which our data (i.e., collection 
records over the last 15 years, expert opinion) indicate that one or 
more of the five mussel species are present along with the primary 
constituent elements (see Table 2, Index map). These units total 
approximately 885 rkm (550 rmi) in Alabama, Kentucky, Mississippi, 
Tennessee, and Virginia. We believe that these areas support darters, 
minnows, sculpins, and other fishes that have been identified as hosts 
or potential hosts for one or more of the mussels, as evidenced by 
known fish distributions (Etnier and Starnes 1993), the persistence of 
the mussels over extended periods of time, or field evidence of 
recruitment (S.A. Ahlstedt pers. comm. 2002, Butler pers. comm. 2002). 
We consider all of these 13 reaches essential for the conservation of 
these five mussels. As discussed in the recovery plan, recovery in the 
near future is not likely for these five mussel species in their 
currently reduced and fragmented state. Nonetheless, it is essential to 
include in this designation these 13 reaches within the historical 
range of all five mussels that still contain mussels and the primary 
constituent elements.
    We then considered whether these essential areas were adequate for 
the conservation of these five mussels. As indicated in the recovery 
plan, threats to the five species are compounded by their limited 
distribution and isolation and it is unlikely that currently occupied 
habitat is adequate for the conservation of all five species. 
Conservation of these species requires expanding their ranges into 
currently unoccupied portions of their historical habitat because 
small, isolated, fragmented aquatic populations, as discussed 
previously, are subject to chance catastrophic events and to changes in 
human activities and land-use practices that may result in their 
elimination. Larger, more contiguous populations can reduce the threat 
of extinction.
    Each of the 13 habitat units is currently occupied by one or more 
of the five listed mussels. Because portions of the historical range of 
each of the five mussels are shared with two or more of the other 
mussel species, there is considerable overlap between species' current 
and historical distribution within the 13 habitat units. This offers 
opportunities to increase each species' current range and number of 
extant populations into units currently occupied by other listed 
species included in this designation. For example, the oyster mussel 
historically inhabited seven units and currently inhabits three. 
Successful reintroduction of the species into units that they 
historically occupied (and that are currently occupied by another one 
or more of the five mussels) would expand the number of populations, 
thereby reducing the threat of extinction.
    We believe that the habitat designation in these 13 units is 
essential to the conservation of all five mussels and that the 13 units 
encompass sufficient habitat necessary for the recovery of three of 
these five species (e.g., Cumberland elktoe, purple bean, rough 
rabbitsfoot). However, we do not believe that the 13 units provide 
sufficient essential habitat for the conservation of the oyster mussel 
and Cumberlandian combshell, based on the number of viable populations 
required for conservation and recovery of these more widespread species 
(Table 1). For example, these 13 units include occupied habitat for 
four existing oyster mussel populations and include unoccupied habitat 
in four other areas that could support oyster mussel populations. Our 
recovery plan, however, requires nine viable populations of the oyster 
mussel before it may be delisted. Therefore, we have determined it is 
essential to identify all opportunities outside our 13 units to 
conserve the oyster mussel and Cumberlandian combshell.
    We then considered free-flowing river reaches that historically 
contained the Cumberlandian combshell and oyster mussel but that have 
had no collection records for the past 15 years, and that, resulting 
from water quality and quantity improvements, likely contain suitable 
habitat for these mussels. Through our analysis, we identified four 
such reaches that contain one or more of the primary continuant 
elements, and are separated by dams and impoundments from free-flowing 
habitats that contain extant populations of oyster mussels and 
Cumberlandian combshells. These areas are the lower French Broad River 
below Douglas Dam to its confluence with the Holston River, Sevier and 
Knox counties, Tennessee; the free-flowing reach of the Holston River 
below Cherokee Dam to its confluence with the French Broad River, 
Jefferson, Grainger, and Knox Counties, Tennessee; the Tennessee River 
main stem below Wilson Dam in Colbert and Lauderdale counties, Alabama; 
and a stretch of the lower Rockcastle River in Laurel, Rockcastle, and 
Pulaski Counties, Kentucky. Natural recolonization of these areas by 
these two species is unlikely; however, these species can be 
reintroduced into these areas to create the additional viable 
populations necessary to conserve and recover the species. We have 
therefore concluded that these four reaches are also essential to the 
conservation of the

[[Page 53149]]

oyster mussel and Cumberlandian combshell.
    Although we have concluded that they are essential, we are not 
designating critical habitat in any of these four reaches due to their 
current or potential status as NEP areas. Section 10(j) of the Act 
states critical habitat shall not be designated for any experimental 
population determined to be not essential to the continued existence of 
the species. On June 14, 2001, we published a final rule to designate 
NEP status under section 10(j) of the Act for the reintroduction of 16 
federally listed mussels (including the oyster mussel and Cumberlandian 
combshell) to the free-flowing reach below Wilson Dam, in the Tennessee 
River (66 FR 32250). Therefore, we are not designating critical habitat 
for the oyster mussel and Cumberlandian combshell in the Tennessee 
River main stem below Wilson Dam in Colbert and Lauderdale Counties, 
Alabama.
    In addition, we are actively considering the remaining three 
reaches (the lower French Broad, lower Holston, and Rockcastle Rivers) 
for designation as NEPs in order to facilitate the reintroduction of 
the oyster mussel and Cumberlandian combshell, as well as numerous 
other listed mussels, fishes, and snails. Therefore, while we recognize 
their likely importance to our recovery strategy for these species, we 
are not designating these three river reaches as critical habitat. A 
further discussion of these areas can be found below (see ``Exclusions 
under 4(b)(2)'' section).
    In summary, the habitat contained within the 13 units described 
below and the habitat within the four historical reaches designated or 
under consideration for NEP status constitute our best determination of 
areas essential for the conservation, and eventual recovery, of these 
five Cumberlandian mussels. We are designating as critical habitat 13 
habitat units encompassing approximately 885 rkm (550 rmi) of stream 
and river channels in Alabama, Mississippi, Tennessee, Kentucky, and 
Virginia. Each of these units is occupied by one or more of the five 
mussels. Although these 13 units represent only a small proportion of 
each species' historical range, these habitat units include a 
significant proportion of the Cumberlandian Region's remaining highest-
quality free-flowing rivers and streams and reflect the variety of 
small-stream-to-large-river habitats historically occupied by each 
species. Because mussels are naturally restricted by certain physical 
conditions within a stream or river reach (e.g., flow, stable 
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.
    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.

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 13 critical habitat units 
identified in this final designation may require special management 
considerations or protection to maintain geomorphic stability, water 
quantity or quality, substrates, or presence of fish hosts. All of 
these units are threatened by actions that alter the 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); and point and/or 
nonpoint source pollution that results in contamination, nutrification, 
or sedimentation. 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, adequate plan or agreement for the 
conservation of these mussels. These threats may render the habitat 
less suitable for these five 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

    In accordance with our recovery plan, protection of the habitat in 
these units and their surviving populations is essential to the 
conservation of the five mussels. The areas that we are designating as 
critical habitat for the five mussels provide one or more of the 
primary constituent elements described above. Table 2 summarizes the 
location and extent of critical habitat and whether or not that 
critical habitat is currently occupied or unoccupied. All of the 
designated areas require special management considerations to ensure 
their contribution to the conservation of these mussels. For each 
stream reach designated as a critical habitat unit, the upstream and 
downstream boundaries are described in general detail below; more 
precise estimates are provided in the ``Regulation Promulgation'' 
section of this rule.

 *Table 2.--Approximate River Distances, by Drainage Area, for Occupied and Unoccupied Critical Habitat for the
                                         Five Endangered Mussel Species
----------------------------------------------------------------------------------------------------------------
                                                              Currently occupied         Currently unoccupied
                                                         -------------------------------------------------------
            Species, stream (unit), and State                 River                       River
                                                           kilometers    River miles   kilometers    River miles
----------------------------------------------------------------------------------------------------------------
Cumberland elktoe:
    Rock Creek (Unit 8), KY.............................            17            11  ............  ............
    Big South Fork (Unit 9), TN, KY.....................            43            27  ............  ............
    North Fork White Oak Creek (Unit 9), TN.............            11             7  ............  ............
    New River (Unit 9), TN..............................          14.5             9  ............  ............
    Clear Fork (Unit 9), TN.............................            40            25  ............  ............
    White Oak Creek (Unit 9), TN........................            10             6  ............  ............
    Bone Camp Creek (Unit 9), TN........................             6             4  ............  ............

[[Page 53150]]

 
  Crooked Creek (Unit 9), TN............................          14.5             9  ............  ............
  North Prong Clear Fork (Unit 9), TN...................          14.5             9  ............  ............
  Sinking Creek (Unit 11), KY...........................            13             8  ............  ............
  Marsh Creek (Unit 12), KY.............................            24            15  ............  ............
  Laurel Fork (Unit 13), TN, KY.........................             8             5  ............  ............
                                                         ---------------
    Total...............................................         215.5           135  ............  ............
Oyster mussel:
  Duck River (Unit 1), TN...............................            74            46  ............  ............
  Bear Creek (Unit 2), AL, MS...........................  ............  ............            40            25
  Powell River (Unit 4), TN, VA.........................  ............  ............           154            94
  Clinch River (Unit 5), TN, VA.........................           242           150  ............  ............
  Copper Creek (Unit 5), VA.............................  ............  ............            21            13
  Nolichucky River (Unit 6), TN.........................             8             5  ............  ............
  Big South Fork (Unit 9), TN, KY.......................  ............  ............            43            27
  Buck Creek (Unit 10), KY..............................  ............  ............            58            36
                                                         ---------------
    Total...............................................           324           201           316           195
Cumberlandian combshell:
  Duck River (Unit 1), TN...............................  ............  ............            74            46
  Bear Creek (Unit 2), AL, MS...........................            40            25  ............  ............
  Powell River (Unit 4), TN, VA.........................           154            94  ............  ............
  Clinch River (Unit 5), TN, VA.........................           242           148  ............  ............
  Nolichucky River (Unit 6), TN.........................  ............  ............             8             5
  Big South Fork (Unit 9), TN, KY.......................            43            27  ............  ............
  Buck Creek (Unit 10), KY..............................            58            36  ............  ............
                                                         ---------------
    Total...............................................           537           330            82            51
Purple bean:
  Obed River (Unit 3), TN...............................            40            25  ............  ............
  Powell River (Unit 4), TN, VA.........................  ............  ............           154            94
  Clinch River (Unit 5), TN, VA.........................           242           148  ............  ............
  Copper Creek (Unit 5), VA.............................            21            13  ............  ............
  Indian Creek (Unit 5), VA.............................             4           2.5  ............  ............
  Beech Creek (Unit 7), TN..............................            23            14  ............  ............
                                                         ---------------
    Total...............................................           330         202.5           154            94
Rough rabbitsfoot:
  Powell River (Unit 4), TN, VA.........................           154            94  ............  ............
  Clinch River (Unit 5), TN, VA.........................           242           148  ............  ............
  Copper Creek (Unit 5), VA.............................  ............  ............            21            13
  Indian Creek (Unit 5), VA.............................             4           2.5  ............  ............
                                                         ---------------
    Total...............................................           400         244.5            21           13
----------------------------------------------------------------------------------------------------------------
*Table 2 refers to the location and extent of critical habitat for each species. For more detail, refer to Sec.
   17.95. Table 2 will reflect totals on a species level only, because units are listed under each species as
  appropriate.

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. The critical habitat does not include existing features of the 
human-built environment such as water intakes and outfalls, low-level 
dams, bridge footings, piers and abutments, boat ramps, and exposed 
pipelines. As such, Federal actions limited to these areas would not 
trigger consultation pursuant to section 7 of the Act, unless they 
affect the species or destroy or adversely modify its critical habitat. 
We are designating the following units as critical habitat for these 
five mussels (refer to Table 2 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).

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

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

[[Page 53151]]

Yokley 1968; van der Schalie 1973; Gordon 1991). Approximately 59 
percent of this Unit is now bounded by the YWMA (recently transferred 
from the TVA to TWRA).

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

    Unit 2 encompasses 40 rkm (25 rmi) of the main stem of Bear Creek 
from the backwaters of Pickwick Lake at rkm 37 (rmi 23), Colbert 
County, Alabama, upstream through Tishomingo County, Mississippi, 
ending at the Mississippi/Alabama State line. Recent mussel surveys in 
the Mississippi section of Bear Creek confirmed that the Cumberlandian 
combshell is still extant (R.M. Jones, pers. comm. 2002), and continues 
to be present in the Colbert County, Alabama portion of the unit (Isom 
and Yokley 1968; McGregor and Garner 2004). Bear Creek is in the 
historical range of the oyster mussel (Ortmann 1925).

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

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

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

    Unit 4 encompasses 154 rkm (94 rmi) and includes the Powell River 
from the U.S. 25E Bridge in Claiborne County, Tennessee, upstream to 
rkm 256 (rmi 159) (upstream of Rock Island in the vicinity of Pughs), 
Lee County, Virginia. This reach is currently occupied by the 
Cumberlandian combshell (Ahlstedt 1991b; Gordon 1991) and rough 
rabbitsfoot (Service 2004), and was historically occupied by the oyster 
mussel (Wolcott and Neves 1990) and the purple bean (Ortmann 1918). It 
is also existing critical habitat for the federally listed slender chub 
and yellowfin madtom (see ``Existing Critical Habitat'' and Table 3).

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

    Unit 5 totals 272 rkm (171 rmi), including 242 rkm (148 rmi) of the 
Clinch River from rkm 255 (rmi 159) immediately below Grissom Island, 
Hancock County, Tennessee, upstream to its confluence with Indian Creek 
in Cedar Bluff, Tazewell County, Virginia; 4 rkm (2.5 rmi) of Indian 
Creek from its confluence with the Clinch River upstream to the fourth 
Norfolk Southern Railroad crossing at Van Dyke, Tazewell County, 
Virginia; and 21 rkm (13 rmi) of Copper Creek from its confluence with 
the Clinch River upstream to Virginia State Route 72, Scott County, 
Virginia. The Clinch River main stem currently contains the oyster 
mussel, rough rabbitsfoot, Cumberlandian combshell, and purple bean 
(Gordon 1991; Ahlstedt and Tuberville 1997; S.A. Ahlstedt, pers. comm. 
2002). Indian Creek currently supports populations of the purple bean 
and rough rabbitsfoot (Winston and Neves 1997; Watson and Neves 1996). 
Copper Creek is currently occupied by a low-density population of the 
purple bean and contains historical records of both the oyster mussel 
and rough rabbitsfoot (Ahlstedt 1981; Fraley and Ahlstedt 2001; S.A. 
Ahlstedt, pers. comm. 2003). Copper Creek is critical habitat for the 
yellowfin madtom and a portion of the Clinch River main stem section is 
critical habitat for both the slender chub and the yellowfin madtom 
(see ``Existing Critical Habitat'' and Table 3).

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

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

Unit 7. Beech Creek, Hawkins County, Tennessee

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

Unit 8. Rock Creek, McCreary County, Kentucky

    Unit 8 includes 17.4 rkm (11.0 rmi) of the main stem of Rock Creek 
and begins at the Rock Creek/White Oak Creek confluence and extends 
upstream to the low water crossing at rkm 25.6 (rmi 15.9) approximately 
2.6 km (1.6 mi) southwest of Bell Farm in McCreary County, Kentucky. 
This unit, which is bounded by the DBNF and some private inholdings, is 
currently occupied by the Cumberland elktoe (Cicerello 1996).

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

    Unit 9 encompasses 153 rkm (95 rmi) and consists of 43 rkm (27 rmi) 
of the Big South Fork of the Cumberland River main stem from its 
confluence with Laurel Crossing Branch downstream of Big Shoals, 
McCreary County, Kentucky, upstream to its confluence with the New 
River and Clear Fork, Scott County, Tennessee; 11 rkm (7 rmi) of North 
White Oak Creek from its confluence with the Big South Fork upstream to 
Panther Branch, Fentress County, Tennessee; 14.5 rkm (9.0 rmi) of the 
New River from its confluence with Clear Fork upstream to U.S. Highway 
27, Scott County, Tennessee; 40 rkm (25 rmi) of Clear Fork from its 
confluence with the New River upstream to its confluence with North 
Prong Clear Fork, Morgan and Fentress Counties, Tennessee; 10 rkm (6 
rmi) of White Oak Creek from its confluence with Clear Fork upstream to 
its confluence with Bone Camp Creek, Morgan County, Tennessee; 6 rkm (4 
rmi) of Bone Camp Creek from its confluence with White Oak Creek 
upstream to Massengale Branch, Morgan County, Tennessee; 14.5 rkm (9.0 
rmi) of Crooked Creek from its confluence with Clear Fork upstream to 
Buttermilk Branch, Fentress County, Tennessee; and 14.5 rkm (9 rmi) of 
North Prong Clear Fork from its confluence with Clear Fork upstream to 
Shoal Creek, Fentress County, Tennessee. The main stem of the Big South 
Fork currently supports the Cumberland elktoe and the best remaining 
Cumberlandian combshell population in the Cumberland River System 
(Bakaletz 1991; Gordon 1991; R.R. Cicerello, pers. comm. 2003). The 
main stem of the Big South Fork historically contained the oyster 
mussel (S.A. Ahlstedt, pers. comm. 2002; Service 2004). The Epioblasma 
mussel that currently inhabits the Big South Fork main stem, and that 
is occasionally

[[Page 53152]]

referred to as the oyster mussel, is now recognized as a sister species 
of the tan riffleshell (see ``Taxonomy, Life History, and 
Distribution'' section) (Service 2004; J. Jones, pers. comm. 2003). The 
remainder of the unit contains habitat currently occupied by the 
Cumberland elktoe (Call and Parmalee 1981; Bakaletz 1991; Gordon 1991). 
The largest population of Cumberland elktoe in Tennessee is in the 
headwaters of the Clear Fork System (Call and Parmalee 1981; Bakaletz 
1991). The Big South Fork and its many tributaries may actually serve 
as habitat for one large interbreeding population of the Cumberland 
elktoe (Service 2004).

Unit 10. Buck Creek, Pulaski County, Kentucky

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

Unit 11. Sinking Creek, Laurel County, Kentucky

    Unit 11 encompasses 13 rkm (8 rmi) and extends from the Sinking 
Creek/Rockcastle River confluence upstream to Sinking Creek's 
confluence with Laurel Branch in Laurel County, Kentucky. The 
Cumberland elktoe is present but uncommon in this Unit (R.R. Cicerello, 
pers. comm. 2003). This unit is primarily within land owned by the 
DBNF, but also includes private lands.

Unit 12. Marsh Creek, McCreary County, Kentucky

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

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

    Unit 13 includes 8 rkm (5 rmi) of Laurel Fork of the Cumberland 
River from the Campbell/Claiborne County line upstream 11.0 rkm (6.9 
rmi) through Claiborne County, Tennessee, to Whitley County, Kentucky. 
The upstream terminus is 3 rkm (2 rmi) upstream of the Kentucky/
Tennessee State line. A ``sporadic'' population of Cumberland elktoe 
currently persists in this area (Cicerello and Laudermilk 2001).

Existing Critical Habitat

    Approximately 332.0 rkm (206.5 rmi) (38 percent) of the critical 
habitat for the five mussels (within three units) are already 
designated critical habitat for the yellowfin madtom, slender chub, or 
spotfin chub (Table 3). The spotfin chub, slender chub, and yellowfin 
madtom are listed as threatened species under the Act. Our consultation 
history on these existing critical habitat units is provided in the 
``Effects of Critical Habitat Designation'' section.

 Table 3.--Critical Habitat Designation for the Five Mussels That Overlap Reaches and Streams That Are Currently
                         Designated Critical Habitat for Other Federally Listed Species
----------------------------------------------------------------------------------------------------------------
                                                                                                     Length of
          Unit (unit )                     Species                    Reference           overlap (rkm/
                                                                                                       rmi)
----------------------------------------------------------------------------------------------------------------
Obed River (3)..........................  Spotfin chub..............  42 FR 45527...............           40/25
Powell River (4)........................  Yellowfin madtom, slender   42 FR 45527...............          154/94
                                           chub
Clinch River (5) (and Copper Creek).....  Yellowfin madtom, slender   42 FR 45527...............      142.0/87.5
                                           chub
                                                                                                 ---------------
    Total...............................  ..........................  ..........................       336/206.5
----------------------------------------------------------------------------------------------------------------

Land Ownership

    Streambeds of non-navigable waters and most navigable waters are 
owned by the riparian landowner. Waters of navigable streams are 
considered public waters by the States of Mississippi, Alabama, 
Tennessee, Kentucky, and Virginia. Table 4 summarizes primary riparian 
land ownership in each of the critical habitat units. Approximately 75 
percent, 655 rkm (407 rmi), of stream channels designated as critical 
habitat are bordered by private lands.
    Public land adjacent to final critical habitat units consists of 
approximately 230 km (143 mi) of riparian lands, including the ONWSR 
and the CWMA in the Obed River Unit (40 rkm (25 rmi)); DBNF in the Rock 
Creek, Sinking Creek, and Marsh Creek Units (30 rkm (19 rmi)); the YWMA 
along the Duck River Unit (43 rkm (27 rmi)); and the BSFNRRA in the Big 
South Fork Unit (109 rkm (68 rmi)).

  Table 4.--Adjacent Riparian Land Ownership in Critical Habitat Units
         (rkm/rmi) in the Tennessee and Cumberland River Basins
------------------------------------------------------------------------
         Critical habitat units           Private     State     Federal
------------------------------------------------------------------------
1. Duck River..........................      31/19      43/27  .........
2. Bear Creek..........................      40/25  .........  .........
3. Obed River..........................  .........      32/20        8/5
4. Powell River........................     154/94  .........  .........
5. Clinch River and tributaries........    272/171  .........  .........
6. Nolichucky River....................        8/5  .........  .........
7. Beech Creek.........................      23/14  .........  .........
8. Rock Creek..........................  .........  .........      18/11
9. Big South Fork and tributaries......      44/27  .........     109/68
10. Buck Creek.........................      58/36  .........  .........
11. Sinking Creek......................        8/5  .........        5/3

[[Page 53153]]

 
12. Marsh Creek........................       10/6  .........       14/9
13. Laurel Fork........................        8/5  .........  .........
                                        ------------
    Totals.............................    656/407      75/47     154/96
------------------------------------------------------------------------

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. In our 
regulations at 50 CFR 402.2, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to: Alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' We are currently reviewing the regulatory definition of 
adverse modification in relation to the conservation of the species.
    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 5 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 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

[[Page 53154]]

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. Such activities could include, but are not limited to, 
impoundment, channelization, water diversion, water withdrawal, and 
hydropower generation. These activities could eliminate or reduce the 
habitat necessary for the growth and reproduction of these mussels and 
their fish host.
    (2) Actions that would significantly alter water chemistry or 
temperature. 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 source). These activities could alter 
water conditions that are beyond the tolerances of the mussels or their 
fish host and result in direct or cumulative adverse affects to these 
individuals and their life cycles.
    (3) Actions that would significantly increase sediment deposition 
within the stream channel. Such activities could include, but are not 
limited to, excessive sedimentation from livestock grazing, road 
construction, channel alteration, timber harvest, off-road vehicle use, 
and other watershed and floodplain disturbances. These activities could 
eliminate or reduce the habitat necessary for the growth and 
reproduction of these mussels and their fish host by increasing the 
sediment deposition to levels that would adversely affect their ability 
to complete their life cycles.
    (4) Actions that would significantly increase the filamentous algal 
community within the stream channel. 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 source). These activities can result in excessive filamentous 
algae filling streams and reducing habitat for mussels and their fish 
hosts, degrading water quality during their decay, and decreasing 
oxygen levels at night from their respiration to levels below the 
tolerances of the mussels and/or their fish host. Algae can also 
directly compete with mussel offspring by covering the sediment that 
prevents the glochidia from settling into the sediment.
    (5) Actions that would significantly alter channel morphology or 
geometry. Such activities could include but are not limited to 
channelization, impoundment, road and bridge construction, mining, 
dredging, and destruction of riparian vegetation. These activities may 
lead to changes in water flows and levels that would degrade or 
eliminate the mussels or their fish host and/or their habitats. These 
actions can also lead to increased sedimentation and degradation in 
water quality to levels that are beyond the tolerances of the mussels 
or their fish host.
    We consider the 13 critical habitat units to be occupied by the 
species because at least one of the 5 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

    We have consulted on approximately 129 Federal actions (or 
activities that required Federal permits) involving these five species 
since they received protection under the Act. Nine of these were formal 
consultations. Federal actions that we have reviewed include Federal 
land management plans, road and bridge construction and maintenance, 
water quality standards, recreational facility development, dam 
construction and operation, surface mining proposals, and issuance of 
permits under section 404 of the CWA. Federal agencies involved with 
these activities included the Corps; TVA; USFS; EPA; Office of Surface 
Mining, Reclamation and Enforcement; NPS; Federal Highway 
Administration; and the Service. The nine formal consultations that 
have been conducted all involved Federal projects, including five 
bridge replacements in Tennessee, Kentucky, and Virginia; two Federal 
land management plans; and the review of two scientific collecting 
permits for one or more of the five mussel species. None of these 
formal consultations resulted in a finding that the proposed action 
would jeopardize the continued existence of any of the five species.
    In each of the biological opinions resulting from these 
consultations, we included discretionary conservation recommendations 
to the action agency. Conservation recommendations are activities that 
would avoid or minimize the adverse effects of a proposed action on a 
listed species or its critical habitat, help implement recovery plans, 
or develop information useful to the species' conservation.
    Previous biological opinions also included nondiscretionary 
reasonable and prudent measures, with implementing terms and 
conditions, which are designed to minimize the proposed action's 
incidental take of these five mussels. Section 3(18) of the Act defines 
the term take as ``to harass, harm, pursue, hunt, shoot, wound, kill, 
trap, capture or collect, or to attempt to engage in any such 
conduct.'' Harm is further defined in our regulations (50 CFR 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, minimization of work in the wetted channel, 
restriction of riparian clearing, monitoring of channel morphology and 
mussel populations, sign installation, protection of buffer zones, 
avoidance of pollution, cooperative planning efforts, minimization of 
ground disturbance, use of sediment barriers, use of best management 
practices to minimize erosion, mussel relocation from bridge pier 
footprints, and funding research useful for mussel conservation. In 
reviewing past formal consultations, we anticipate the need in our 
proposed rule to reinitiate only one consultation on Federal actions as 
a result of this final designation. The DBNF in Kentucky since then has 
finalized their Forest Plan. The USFS has accounted for critical 
habitat designations in Rock Creek, Buck Creek, Sinking Creek, and 
Marsh Creek in their plan.
    As mentioned in the ``Existing Critical Habitat'' section, 36 
percent of the critical habitat being designated for these five mussels 
is currently designated critical habitat for the spotfin chub, 
yellowfin madtom, or slender chub. We have conducted 56 informal 
consultations involving existing critical habitat for these fish in the 
areas designated as critical habitat for the five mussels in the Obed 
River, Powell River, and Clinch River in Tennessee. All of these 
consultations involved both the potential adverse effects to the 
species and the potential adverse modification or destruction of 
critical habitat. These consultations, which

[[Page 53155]]

were similar to consultations carried out for the five mussel species, 
primarily included utility lines, bridge replacements and 
reconstructions, gravel dredging, and an oil spill on Clear Creek (a 
tributary of the Obed River and designated critical habitat for the 
spotfin chub). We have consulted on seven projects that involved 
existing critical habitat for the yellowfin madtom and/or slender chub 
in Virginia; three of these consultations were formal, involving 
projects such as bridge crossings on the Clinch and Powell rivers. None 
of these formal consultations resulted in a finding that the proposed 
activity would destroy or adversely modify existing critical habitat 
previously designated in the area.
    The designation of critical habitat will have no impact on private 
landowner activities that do not involve Federal funding or permits. 
Designation of critical habitat is only applicable to activities 
approved, funded, or carried out by Federal agencies.
    If you have questions regarding whether specific activities would 
constitute adverse modification of critical habitat, you may contact 
the following Service field offices:

Alabama Field Office (251-441-5181)
Kentucky Field Office (502-695-0468)
Mississippi Field Office (601-965-4900)
Tennessee Field Office (931-528-6481)
Southwest Virginia Field Office (276-623-1233).

Exclusions Under Section 4(b)(2)

    Section 4(b)(2) of the Act requires that we designate critical 
habitat on the basis of the best scientific and commercial information 
available and that we consider the economic impact, effects to national 
security, and any other relevant impacts of designating a particular 
area as critical habitat. We may exclude areas from critical habitat 
based on these and other reasons (e.g., the preservation of 
conservation partnerships) 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 
New Mexico Cattle Growers Association v. U.S. Fish and Wildlife 
Service, 248 F. 3d 1277 (10th Cir. 2001) and that was available for 
public review and comment during the comment period for the proposed 
rule. The final economic analysis is available from our Web site at 
http://cookeville.fws.gov. Since the critical habitat designation 
involves no Tribal lands and no lands pertinent to national security 
and includes no areas presently under special management or protection 
provided by a legally operative, adequate plan or agreement for the 
conservation of these mussels, we believe, other than economics and 
preservation of conservation partnerships, 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 have excluded three river reaches: the free-
flowing reach of the French Broad River below Douglas Dam to its 
confluence with the Holston River, Sevier and Knox Counties, Tennessee; 
the free-flowing reach of the Holston River below Cherokee Dam to its 
confluence with the French Broad River, Jefferson, Grainger, and Knox 
Counties, Tennessee; and the free-flowing reach of the Rockcastle River 
from the backwaters of Cumberland Lake upstream to Kentucky Route 1956 
Bridge, in Laurel, Rockcastle, and Pulaski Counties, Kentucky, because 
of their potential status as NEP areas for the oyster mussel and 
Cumberlandian combshell. When these river reaches are designated NEP 
areas and the oyster mussel and Cumberlandian combshell are 
reintroduced, these two species will be treated as species proposed for 
listing. However, these areas are already occupied by other federally 
listed species, namely the Cumberland bean mussel in the Rockcastle and 
pink mucket mussel and snail darter in the Holston and French Broad 
Rivers; thus the oyster mussel and Cumberlandian combshell will receive 
protections from these other listed species. Furthermore, these 
exclusions will preserve existing conservation partnerships and 
facilitate (through increased public support) the successful 
reintroduction of these species, as well as 18 other federally listed 
species, into their historic habitat. We therefore continue to find 
that the benefits of excluding these areas outweigh the benefits of 
designating them as critical habitat. For more information on this 
exclusion, please refer to the proposed rule to designate critical 
habitat (June 3, 2003; 68 FR 33234). We have concluded, after careful 
analysis of the best available information including the economic 
analysis, to exclude the 3 areas listed above and include the remaining 
13 units that we have determined are essential to the conservation of 
the species in this final designation of critical habitat. The 
Tennessee River below Wilson Dam was not proposed for critical habitat 
because it is an established NEP for the oyster mussel and 
Cumberlandian combshell. Under section 10(j) of the Act, we cannot 
designate critical habitat for nonessential experimental populations.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and policy issues, 
but it is not anticipated to have an annual effect on the economy of 
$100 million or more or affect the economy in a material way. Due to 
the tight timeline for publication in the Federal Register, the Office 
of Management and Budget (OMB) has not reviewed this rule. 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 $0.7 to $1.6 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 (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996),

[[Page 53156]]

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.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we consider the types 
of activities that might trigger regulatory impacts under this rule, as 
well as the types of project modifications that may result.
    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, the analysis considers the relative cost of compliance on 
the revenues/profit margins of small entities in determining whether or 
not entities incur a ``significant economic impact.'' Only small 
entities that are expected to be directly affected by the designation 
are considered in this portion of the analysis. This approach is 
consistent with several judicial opinions related to the scope of the 
RFA (Mid-Tex Electric Co-Op, Inc. v. FERC and American 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. 
Third parties are not involved in several of the activities potentially 
affected by section 7 implementation for the mussels (i.e., only the 
Action agency and the Service are involved in the consultation). Of the 
remaining activities potentially affected by section 7 implementation 
for the mussels and involving a third party, many have no directly-
regulated small business or government involvement. Private entities 
are forecast to incur 15 percent of the costs. State and local 
governments are expected to incur 50 percent of the costs. Project 
modification costs are associated with road and bridge construction and 
maintenance and dams/reservoirs. The costs associated with road and 
bridge construction and maintenance are expected to be borne directly 
by or passed on to the Federal government. The costs associated with 
dams/reservoirs are expected to be borne by municipal utilities and 
passed on to the consumer. Thus, small entities should not be directly 
impacted by section 7 implementation for these affected projects: road 
and bridge construction and maintenance; agricultural activities; 
utilities construction and maintenance; activities in National Forests, 
National Parks, Wild and Scenic Rivers, and National River and 
Recreation Areas; coal mining; gravel dredging and excavation; oil and 
gas development; power plants; dams/reservoirs; water quality 
activities; and conservation and recreation activities (see the 
economic analysis for a detailed analysis of affected projects).
    To determine if the rule would affect a substantial number of small 
entities, we considered the number of small entities affected within 
particular types of economic activities (e.g., housing development, 
grazing, oil and gas production, timber harvesting). We applied the 
``substantial number'' test individually to each industry to determine 
if certification is appropriate. In estimating the number of small 
entities potentially affected, we also considered whether their 
activities have any Federal involvement; some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation. Designation of critical habitat only 
affects activities conducted, funded, or permitted by Federal agencies; 
non-Federal activities are not affected by the designation. Federal 
agencies are already required to consult with the Services under 
section 7 of the Act on activities that they fund, permit, or implement 
that may affect the five mussels.
    Federal agencies must also consult with us if their activities may 
affect designated critical habitat. However, we believe this will 
result in only minimal additional regulatory burden on Federal agencies 
or their applicants because consultation would already be required 
because of the presence of the listed mussel species. Consultations to 
avoid the destruction or adverse modification of critical habitat would 
be incorporated into the existing consultation process and trigger only 
minimal additional regulatory impacts beyond the duty to avoid 
jeopardizing the species.
    Since the five mussels were listed (1997), we have conducted nine 
formal consultations involving one or more of these species. These 
formal consultations, which all involved Federal projects, included 
five bridge replacements, two Federal land management plans, an intra-
agency review of the Wilson Dam NEP and associated collecting permits, 
and an intra-agency review of collection permits needed by researchers 
involved in endangered mussel propagation. These nine consultations 
resulted in non-jeopardy biological opinions.
    We also reviewed approximately 129 informal consultations that have 
been conducted since these five species were listed involving private 
businesses and industries, counties, cities, towns, or municipalities. 
At least 15 of these were with entities that likely met the definition 
of small entities. These informal consultations concerned activities 
such as excavation or fill, docking facilities, transmission lines, 
pipelines, mines, and road and utility development authorized by 
various Federal agencies, or review of NPEDS permit applications to 
State water quality agencies by developers, municipalities, mines, 
businesses, and others. Informal consultations regarding the mussels 
usually resulted in recommendations to employ best management practices 
for sediment control, relied on current State water quality standards 
for protection of water quality, and resulted in little to no 
modification of the proposed activities.

[[Page 53157]]

In reviewing these past informal consultations and the activities 
involved in light of proposed critical habitat, we do not believe the 
outcomes would have been different in areas designated as critical 
habitat.
    In summary, we have considered whether this designation would 
result in a significant economic impact on a substantial number of 
small entities and find that it would not. Informal consultations on 
approximately 129 activities in the Tennessee and Cumberland River 
Basins, by businesses and governmental jurisdictions that might affect 
these species and their habitats, resulted in little to no economic 
effect on small entities. In the seven years since the five mussels 
were listed, there have been no formal consultations regarding actions 
by small entities. This does not meet the definition of 
``substantial.'' In addition, we see no indication that the types of 
activities we review under section 7 of the Act will change 
significantly in the future. There would be no additional section 7 
consultations resulting from this rule as all 13 of the critical 
habitat units are currently occupied by one or more listed mussels, so 
the consultation requirement has already been triggered. Future 
consultations are not likely to affect a substantial number of small 
entities. This rule would result in major project modifications only 
when proposed activities with a Federal nexus would destroy or 
adversely modify critical habitat. While this may occur, it is not 
expected to occur frequently enough to affect a substantial number of 
small entities. Therefore, we are certifying that the designation of 
critical habitat for these five mussels will not have a significant 
economic impact on a substantial number of small entities, and an 
initial regulatory flexibility analysis is not required.

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

    Under the Small Business Regulatory Enforcement Fairness Act (5 
U.S.C. 801 et seq.), this rule is not a major rule. Our detailed 
assessment of the economic effects of this designation is described in 
the economic analysis. Based on the effects identified in the economic 
analysis, we believe that 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 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 (bbls);
     Reductions in fuel production in excess of 4,000 bbls per 
day;
     Reductions in coal production in excess of 5 million tons 
per year;
     Reductions in natural gas production in excess of 25 
million Mcf per year;
     Reductions in electricity production in excess of 1 
billion kilowatts per year or in excess of 500 megawatts of installed 
capacity;
     Increases in energy use required by the regulatory action 
that exceed the thresholds above;
     Increases in the cost of energy production in excess of 
one percent;
     Increases in the cost of energy distribution in excess of 
one percent; or
     Other similarly adverse outcomes.
    Five of these criteria are relevant to this analysis: (1) Potential 
reductions in crude oil supply; (2) potential reductions in coal 
production; (3) potential reductions in natural gas production; (4) 
potential increases in the cost of energy production; and (5) potential 
increases in the cost of energy distribution. The following analysis 
determines whether these five relevant criteria are likely to 
experience ``a significant adverse effect'' as a result of section 7 
implementation for the mussels.
Evaluation of Whether Section 7 Implementation Will Result in 
Reductions in Crude Oil Supply, Coal Production, and Natural Gas 
Production
    Section 7 consultations with respect to oil, gas, and coal 
operations are anticipated to occur within four Tennessee counties 
containing proposed critical habitat for the mussels; Cumberland, 
Fentress, Morgan, and Scott Counties. Exhibit C-1, C-2, and C-3 provide 
an analysis of whether the energy industry, specifically, crude oil, 
natural gas, and coal producers, are likely to experience ``a 
significant adverse effect'' as a result of section 7 implementation 
for the mussels.

 Table 5.--Historic Crude Oil Production (Fentress, Morgan, and Scott Counties, Tennessee, and McCreary County,
                                                    Kentucky)
                                                [bbls (barrels)]
----------------------------------------------------------------------------------------------------------------
                                                 McCreary   Fentress    Morgan     Scott      Total      Total
                     Year                         County     County     County     County      bbls     bbls/day
----------------------------------------------------------------------------------------------------------------
1997..........................................      1,457     29,193     65,585     69,198    165,433        453
1998..........................................      2,365     25,973     50,870     60,340    139,548        382
1999..........................................      3,850     26,603     55,275     63,420    149,148        409
2000..........................................      3,998     14,114     35,259     49,758    103,129        283
2001..........................................      5,702     31,920     45,147     48,683    131,452        360
Average.......................................      3,475     25,561     50,427     58,280    137,742        377
----------------------------------------------------------------------------------------------------------------

    As Table 5 illustrates, the Tennessee and Kentucky counties 
containing proposed critical habitat collectively produce less than 500 
bbls of crude oil on a daily basis. Therefore, should section 7 
implementation cause the abandonment of future development of 35 to 50 
oil wells within McCreary, Fentress, Morgan or Scott Counties, it is 
unlikely that crude oil supply will drop by more than the threshold of 
10,000 bbls per day. In fact, the entire States of Kentucky and 
Tennessee together produce less oil than the 10,000 bbls threshold 
(Kentucky produced 7,671 bbls per day in 2001 and Tennessee produced 
1,059 bbls per day).

[[Page 53158]]

    As Table 6 illustrates, the Tennessee and Kentucky counties 
containing proposed critical habitat collectively produce less than 0.8 
million Mcf of natural gas on an annual basis. Therefore, should 
section 7 implementation cause the abandonment of future development of 
35 to 50 natural gas wells within McCreary, Fentress, Morgan or Scott 
counties, it is unlikely that natural gas production will decrease by 
more than the threshold of 25 million Mcf per year.

Table 6.--Historic Natural Gas Production (Fentress, Morgan, and Scott Counties, Tennessee, and McCreary County,
                                                    Kentucky)
                                           [Mcf (thousand cubic feet)]
----------------------------------------------------------------------------------------------------------------
                                                                                                         Total
                     Year                        McCreary   Fentress    Morgan     Scott    Total Mcf   million
                                                  County     County     County     County                 Mcf
----------------------------------------------------------------------------------------------------------------
1997..........................................     22,340     64,401    301,328    331,072    719,141        0.7
1998..........................................     43,263     75,408    289,483    314,213    722,367        0.7
1999..........................................    139,950     62,494    298,609    335,990    837,043        0.8
2000..........................................    217,974     55,018    277,140    307,739    857,871        0.9
2001..........................................    229,874     46,422    280,191    245,831    802,318        0.8
Average.......................................    130,680     60,749    289,350    306,969    787,748        0.8
----------------------------------------------------------------------------------------------------------------

    As Table 7 illustrates, the Tennessee counties containing proposed 
critical habitat collectively produce approximately 0.4 million tons of 
coal on an annual basis. Therefore, should section 7 implementation 
cause the abandonment of future development of any two mines within 
Cumberland, Fentress, Morgan or Scott County, it is unlikely that coal 
production will decrease by more than the threshold of 5 million tons 
per year. In fact, the entire State of Tennessee produces less coal 
than the 5 million ton threshold (the State produced 3.3 million tons 
in 2001).

        Table 7.--Historic Coal Production (Cumberland, Fentress, Morgan, and Scott Counties, Tennessee)
                                              [thousand short tons]
----------------------------------------------------------------------------------------------------------------
                                                                                           Total
               Year                  Cumberland    Fentress      Morgan       Scott       thousand    Total tons
                                       County       County       County       County     short tons
----------------------------------------------------------------------------------------------------------------
1997..............................            0          288           56          108          452      452,000
1998..............................           86          211           11           47          355      355,000
1999..............................          256            3            8          168          435      435,000
2000..............................          265           12           31           59          367      367,000
2001..............................          268           83            0           22          373      373,000
Average...........................          175          119           21           81          396      396,400
----------------------------------------------------------------------------------------------------------------

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. The Old 
Columbia dam has 0.3 megawatts (MW) of installed capacity and in five 
years may have 0.6 MW of installed capacity. The average annual 
generation of the Dam is 1,994,400 KWhr and may increase to 3,555,000 
KWhr in the next five years.
    The total installed capacity of the Old Columbia Dam is 0.6 MW (600 
KW) of hydroelectricity. The average annual generation at these 
facilities could be up to 3.6 million KWhr. The impact threshold for 
installed capacity is 500 MW (500,000 KW) and the threshold for annual 
generation is one billion KWhr. The impact to hydropower production is 
therefore not expected to surpass the threshold of 500 MW.
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, but most common, 
coal production. Coal production has production costs of $0.02 per 
kilowatt-hour, $0.01 greater than the cost of hydropower production. 
Under this scenario, $36,000 in additional production costs will be 
incurred, an increase in production costs of approximately 0.002 
percent. This analysis therefore does not anticipate an increase in the 
cost of energy production in excess of one percent. Table 8 summarizes 
the cost of energy production in Tennessee 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 coal production.

[[Page 53159]]



               Table 8.--Average Production and Associated Costs for Energy Producers in Tennessee
----------------------------------------------------------------------------------------------------------------
                                                         Weighted  average
                                        Net generation        of total      Production  costs     Total costs
              Fuel type                  (1000 KWhrs)        production          ($/KWhr)       (1,000 dollars)
                                                             (percent)
----------------------------------------------------------------------------------------------------------------
                                                   SCENARIO I
----------------------------------------------------------------------------------------------------------------
Hydro...............................          5,665,000               5.91               0.01             56,650
Gas.................................            648,000               0.68               0.04             25,920
Coal................................         62,349,000              65.00               0.02          1,246,980
Petroleum...........................            549,000               0.57               0.02             10,980
Nuclear.............................         25,825,000              26.92               0.02            516,500
                                     --------------------
    Total...........................         95,191,800              99.08  .................          1,857,030
-------------------------------------
                                                   SCENARIO II
----------------------------------------------------------------------------------------------------------------
Hydro...............................          5,661,445               5.90               0.01             56,614
Gas.................................            648,000               0.68               0.04             25,920
Coal................................         62,352,555              65.01               0.02          1,247,051
Petroleum...........................            549,000               0.57               0.02             10,980
Nuclear.............................         25,825,000              26.92               0.02            516,500
                                     --------------------
    Total...........................         95,191,800              99.08  .................         1,857,065
----------------------------------------------------------------------------------------------------------------
(Note: totals may not sum because of rounding.)

Evaluation of Whether Section 7 Implementation Will Result in an 
Increase in the Cost of Energy Distribution in Excess of One Percent
    TVA anticipates 38 informal consultations on transmission line 
construction and maintenance with respect to the mussels during the 
next ten years. The total administrative costs incurred by TVA as a 
result of section 7 implementation are $35,000, while costs associated 
with project modifications are anticipated to total $38,000. In 2002, 
total operating expenses for TVA were $5.2 billion. Thus, the total 
costs incurred by TVA as a result of section 7 over ten years ($73,000) 
are less than one ten-thousandth of one percent of TVAs operating 
expenses. The impact to energy distribution is therefore not 
anticipated to exceed the one percent threshold.
    Based on the above analysis, this rule is not a significant 
regulatory action under Executive Order 12866, and it is not expected 
to significantly affect energy supplies, distribution, or use. 
Therefore, this action is not a significant energy action, and no 
Statement of Energy Effects is required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute or regulation 
that would impose an enforceable duty upon State, local, tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement. ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply; nor would 
critical habitat shift the costs of the large entitlement programs 
listed above on to State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments. This determination is based on the economic 
analysis conducted for this designation of critical habitat for these 
five mussel species. As such, a Small Government Agency Plan is not 
required.

Takings

    In accordance with Executive Order 12630 (``Government Actions and

[[Page 53160]]

Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating approximately 885 rkm (550 rmi) in 13 river and stream 
reaches in Alabama, Mississippi, Tennessee, Kentucky, and Virginia as 
critical habitat for these five mussel species in a takings implication 
assessment. The takings implications assessment concludes that this 
final designation of critical habitat does not pose significant takings 
implications.

Federalism

    In accordance with Executive Order 13132, this rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior policies, we 
requested information from, and coordinated development of this 
critical habitat designation with, appropriate State resource agencies 
in Alabama, Mississippi, Tennessee, Kentucky, and Virginia. The impact 
of the designation on State and local governments and their activities 
was fully considered in the economic analysis. The designation of 
critical habitat for these five species imposes no additional 
restrictions to those currently in place, and, therefore, has little 
additional impact on State and local governments and their activities. 
The designation may provide some benefit to these governments in that 
the areas essential to the conservation of the species are more clearly 
defined, and the primary constituent elements of the habitat necessary 
to the conservation of the species are specifically identified. While 
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 5 
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 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 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 are not aware of any 
Tribal lands essential for the conservation of the five mussels. 
Therefore, the critical habitat for the five mussels does not contain 
any Tribal lands or lands that we have identified as impacting Tribal 
trust resources.

References Cited

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

Author

    The author of this notice is the Tennessee Field Office (see 
Addresses section).

List of Subjects in 50 CFR Part 17

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

Final 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, so that they read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              Clams
 
                                                                      * * * * * * *
Bean, Purple.....................  Villosa perpurpurea.  U.S.A. (TN, VA)....  NA.................  E                       602    17.95 (f)           NA
 
                                                                      * * * * * * *
Combshell, Cumberlandian.........  Epioblasma brevidens  U.S.A. (AL, KY, MS,  NA.................  E                       602    17.95 (f)           NA
                                                          TN, VA).
 

[[Page 53161]]

 
                                                                      * * * * * * *
Elktoe, Cumberland...............  Alasmidonta           U.S.A. (KY, TN)....  NA.................  E                       602    17.95 (f)           NA
                                    atropurpurea.
 
                                                                      * * * * * * *
Mussel, oyster...................  Epioblasma            U.S.A. (AL, GA, KY,  NA.................  E                       602    17.95 (f)           NA
                                    capsaeformis.         MS, NC, TN, VA).
 
                                                                      * * * * * * *
Rabbitsfoot, rough...............  Quadrula cylindrica   U.S.A. (TN, VA)....  NA.................  E                       602    17.95 (f)           NA
                                    strigillata.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. In Sec.  17.95, at the end of paragraph (f), add an entry for five 
Cumberland and Tennessee River Basin mussels species to read as 
follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (f) Clams and snails.
* * * * *
    Five Tennessee and Cumberland River Basin mussels species: Purple 
bean (Villosa perpurpurea), Cumberlandian combshell (Epioblasma 
brevidens), Cumberland elktoe (Alasmidonta atropurpurea), oyster mussel 
(Epioblasma capsaeformis), and rough rabbitsfoot (Quadrula cylindrica 
strigillata).
    (1) The primary constituent elements essential for the conservation 
of the purple bean (Villosa perpurpurea), Cumberlandian combshell 
(Epioblasma brevidens), Cumberland elktoe (Alasmidonta atropurpurea), 
oyster mussel (Epioblasma capsaeformis), and rough rabbitsfoot 
(Quadrula cylindrica strigillata) are those habitat components that 
support feeding, sheltering, reproduction, and physical features for 
maintaining the natural processes that support these habitat 
components. The primary constituent elements include:
    (i) Permanent, flowing stream reaches with a flow regime (i.e, the 
magnitude, frequency, duration, and seasonality of discharge over time) 
necessary for normal behavior, growth, and survival of all life stages 
of the five mussels and their host fish;
    (ii) Geomorphically stable stream and river channels and banks;
    (iii) Stable substrates consisting of mud, sand, gravel, and/or 
cobble/boulder, with low amounts of fine sediments or attached 
filamentous algae;
    (iv) Water quality (including temperature, turbidity, oxygen 
content, and other characteristics) necessary for the normal behavior, 
growth, and survival of all life stages of the five mussels and their 
host fish; and
    (v) Fish hosts with adequate living, foraging, and spawning areas 
for them.
    (2) Critical habitat unit descriptions and maps.
    (i) Index map. The index map showing critical habitat units in the 
States of Mississippi, Alabama, Tennessee, Kentucky, and Virginia for 
the five Tennessee and Cumberland River Basin mussels follows:
BILLING CODE 4310-55-P

[[Page 53162]]

[GRAPHIC] [TIFF OMITTED] TR31AU04.000


[[Page 53163]]


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

    Table of Five Tennessee and Cumberland River Basin Mussels, Their
  Critical Habitat Units, and States Containing Those Critical Habitat
                                  Units
------------------------------------------------------------------------
                                   Critical habitat
             Species                     units              States
------------------------------------------------------------------------
purple bean (Villosa              Units 3, 4, 5, 7..  TN, VA
 perpurpurea).
Cumberlandian combshell           Units 1, 2, 4, 5,   AL, KY, MS, TN, VA
 (Epioblasma brevidens).           6, 9, 10.
Cumberland elktoe (Alasmidonta    Units 8, 9, 11,     KY, TN
 atropurpurea).                    12, 13.
oyster mussel (Epioblasma         Units 1, 2, 4, 5,   AL, KY, MS, TN, VA
 capsaeformis).                    6, 9,10.
rough rabbitsfoot (Quadrula       Units 4, 5........  TN, VA
 cylindrica strigillata).
------------------------------------------------------------------------

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

[[Page 53164]]

[GRAPHIC] [TIFF OMITTED] TR31AU04.001

    (iv) Unit 2. Bear Creek, Colbert County, Alabama, and Tishomingo 
County, Mississippi. This is a critical habitat unit for the oyster 
mussel and Cumberlandian combshell.
    (A) Unit 2 consists of the main stem of Bear Creek from the 
backwaters of Pickwick Lake at rkm 37 (rmi 23) (-88.09 longitude, 34.81 
latitude), Colbert County, Alabama, upstream through Tishomingo County, 
Mississippi, ending at the Mississippi/Alabama State line.
    (B) Map of Unit 2 follows:

[[Page 53165]]

[GRAPHIC] [TIFF OMITTED] TR31AU04.002

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

[[Page 53166]]

[GRAPHIC] [TIFF OMITTED] TR31AU04.003

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

[[Page 53167]]

[GRAPHIC] [TIFF OMITTED] TR31AU04.004


[[Page 53168]]


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

[[Page 53169]]

[GRAPHIC] [TIFF OMITTED] TR31AU04.005

    (viii) Unit 6. Nolichucky River, Hamblen and Cocke Counties, 
Tennessee. This is a critical habitat unit for the Cumberlandian 
combshell and oyster mussel.
    (A) Unit 6 consists of the main stem of the Nolichucky River from 
rkm 14 (rmi 9) (-83.18 longitude, 36.18 latitude) (approximately 0.6 
rkm (0.4 rmi) upstream of Enka Dam) upstream to Susong Bridge (-83.20 
longitude, 36.14 latitude) in Hamblen and Cocke Counties, Tennessee.
    (B) Map of Unit 6 follows:

[[Page 53170]]

[GRAPHIC] [TIFF OMITTED] TR31AU04.006

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

[[Page 53171]]

[GRAPHIC] [TIFF OMITTED] TR31AU04.007

    (x) Unit 8. Rock Creek, McCreary County, Kentucky. This is a 
critical habitat unit for the Cumberland elktoe.
    (A) Unit 8 includes the main stem of Rock Creek from its confluence 
with White Oak Creek (-84.59 longitude, 36.71 latitude), upstream to 
the low-water crossing at rkm 25.6 (rmi 15.9) approximately 2.6 km (1.6 
mi) southwest of Bell Farm (-84.69 longitude, 36.65 latitude), McCreary 
County, Kentucky.
    (B) Map of Unit 8 follows:

[[Page 53172]]

[GRAPHIC] [TIFF OMITTED] TR31AU04.008


[[Page 53173]]


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

[[Page 53174]]

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[[Page 53175]]


[GRAPHIC] [TIFF OMITTED] TR31AU04.010


[[Page 53176]]


[GRAPHIC] [TIFF OMITTED] TR31AU04.011

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

[[Page 53177]]

[GRAPHIC] [TIFF OMITTED] TR31AU04.012

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

[[Page 53178]]

[GRAPHIC] [TIFF OMITTED] TR31AU04.013

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

[[Page 53179]]

[GRAPHIC] [TIFF OMITTED] TR31AU04.014

    (xv) Unit 13. Laurel Fork, Claiborne County, Tennessee, and Whitley 
County, Kentucky. This is a critical habitat unit for the Cumberland 
elktoe.
    (A) Unit 13 includes the main stem of the Laurel Fork of the 
Cumberland River from the boundary between Claiborne and Campbell 
Counties (-84.00 longitude, 36.58 latitude) upstream to rkm 11 (rmi 
6.85) in Whitley County, Kentucky. The upstream terminus is 3 rkm (2 
rmi) upstream of the Kentucky/Tennessee State line (-84.00 longitude, 
36.60 latitude).
    (B) Map of Unit 13 follows:

[[Page 53180]]

[GRAPHIC] [TIFF OMITTED] TR31AU04.015

* * * * *

    Dated: August 17, 2004.
Craig Manson,
Assistant Secretary, Fish, Wildlife, and Parks.
[FR Doc. 04-19340 Filed 8-30-04; 8:45 am]
BILLING CODE 4310-55-C