[Federal Register Volume 88, Number 142 (Wednesday, July 26, 2023)]
[Proposed Rules]
[Pages 48294-48349]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15143]



[[Page 48293]]

Vol. 88

Wednesday,

No. 142

July 26, 2023

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; Threatened Species 
Status With Section 4(d) Rule for Green Floater and Designation of 
Critical Habitat; Proposed Rule

  Federal Register / Vol. 88, No. 142 / Wednesday, July 26, 2023 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R5-ES-2023-0012; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BF80


Endangered and Threatened Wildlife and Plants; Threatened Species 
Status With Section 4(d) Rule for Green Floater and Designation of 
Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list the green floater (Lasmigona subviridis), a mussel species from as 
many as 10 States in the eastern United States and the District of 
Columbia, as a threatened species with a rule issued under section 4(d) 
of the Endangered Species Act of 1973, as amended (Act). This document 
also serves as our 12-month finding on a petition to list the green 
floater. After a review of the best available scientific and commercial 
information, we find that listing the species is warranted. We also 
propose to designate critical habitat for the green floater under the 
Act. In total, approximately 2,553 kilometers (1,586 miles) of streams 
in Maryland, New York, North Carolina, Pennsylvania, Virginia, and West 
Virginia fall within the boundaries of the proposed critical habitat 
designation. We also announce the availability of a draft economic 
analysis of the proposed designation of critical habitat for the green 
floater. If we finalize this rule as proposed, it would add this 
species to the List of Endangered and Threatened Wildlife and extend 
the Act's protections to the species and its designated critical 
habitat.

DATES: We will accept comments received or postmarked on or before 
September 25, 2023. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. eastern time on the closing date. We must receive requests for a 
public hearing, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by September 11, 2023.

ADDRESSES: You may submit comments by one of the following methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R5-ES-2023-0012, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the panel on the left side of 
the screen, under the Document Type heading, check the Proposed Rule 
box to locate this document. You may submit a comment by clicking on 
``Comment.''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R5-ES-2023-0012, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on https://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Availability of supporting materials: Supporting materials, such as 
the species status assessment report, are available at https://www.regulations.gov at Docket No. FWS-R5-ES-2023-0012. For the proposed 
critical habitat designation, the coordinates or plot points or both 
from which the maps are generated are included in the decision file for 
this proposed critical habitat designation and are available at https://www.regulations.gov at Docket No. FWS-R5-ES-2023-0012 and on our 
internet site at https://www.fws.gov/office/new-york-ecological-services-field.

FOR FURTHER INFORMATION CONTACT: Ian Drew, Field Supervisor, U.S. Fish 
and Wildlife Service, New York Ecological Services Field Office, 3817 
Luker Road, Cortland, NY 13045; telephone 607-753-9334. Individuals in 
the United States who are deaf, deafblind, hard of hearing, or have a 
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access 
telecommunications relay services. Individuals outside the United 
States should use the relay services offered within their country to 
make international calls to the point-of-contact in the United States.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Act, a species warrants 
listing if it meets the definition of an endangered species (in danger 
of extinction throughout all or a significant portion of its range) or 
a threatened species (likely to become endangered within the 
foreseeable future throughout all or a significant portion of its 
range). If we determine that a species warrants listing, we must list 
the species promptly and designate the species' critical habitat to the 
maximum extent prudent and determinable. We have determined that the 
green floater meets the Act's definition of a threatened species; 
therefore, we are proposing to list it as such and proposing a 
designation of its critical habitat. Both listing a species as an 
endangered or threatened species and making a critical habitat 
designation can be completed only by issuing a rule through the 
Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
    What this document does. We propose the listing of the green 
floater as a threatened species with a rule under section 4(d) of the 
Act (a ``4(d) rule''), and we propose the designation of critical 
habitat for the species.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that habitat degradation 
(Factor A), resulting from the cumulative impacts of land use change 
and associated watershed-level effects on water quality, habitat 
connectivity, and stream conditions, poses the greatest risk to the 
future viability of the green floater. Habitat degradation can occur as 
a result of increased surface runoff, sedimentation, and pollution, and 
decreased substrate stability, both instream and along streambanks. 
These degraded conditions negatively impact the green floater by, for 
example, smothering the organism or washing the organism downstream. In 
the future, climate change (Factor A) is expected to exacerbate the 
degradation of the green floater's habitat through increased water 
temperatures, changes and shifts in seasonal patterns of precipitation 
and runoff, and extreme weather events such as flood or droughts.
    Section 4(a)(3) of the Act requires the Secretary of the Interior 
(Secretary), to the maximum extent prudent and determinable, to 
designate critical habitat concurrent with listing. Section 3(5)(A) of 
the Act defines critical habitat as (i) the specific areas within the 
geographical area occupied by the species, at the time it is listed, on 
which are found those physical or biological features (I) essential to 
the conservation of the species and (II) which may

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require special management considerations or protections; and (ii) 
specific areas outside the geographical area occupied by the species at 
the time it is listed, upon a determination by the Secretary that such 
areas are essential for the conservation of the species. Section 
4(b)(2) of the Act states that the Secretary must make the designation 
on the basis of the best scientific data available and after taking 
into consideration the economic impact, the impact on national 
security, and any other relevant impacts of specifying any particular 
area as critical habitat.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other governmental agencies, Native 
American Tribes, the scientific community, industry, or any other 
interested parties concerning this proposed rule. We particularly seek 
comments, including additional information, concerning:
    (1) The species' biology, range, and population trends, including:
    (a) Biological or ecological requirements of the species, including 
habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns 
and the locations of any additional populations of this species;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (2) Threats and conservation actions affecting the species, 
including:
    (a) Factors that may affect the continued existence of the species, 
which may include habitat modification or destruction, overutilization, 
disease, predation, the inadequacy of existing regulatory mechanisms, 
or other natural or manmade factors.
    (b) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to this species.
    (c) Existing regulations or conservation actions that may be 
addressing threats to this species.
    (3) The historical and current status of this species.
    (4) Regulations that may be necessary and advisable to provide for 
the conservation of the green floater and that we can consider in 
developing a 4(d) rule for the species. In particular, we seek 
information concerning the extent to which we should include any of the 
section 9 prohibitions in the 4(d) rule or whether we should consider 
any additional exceptions from the prohibitions in the 4(d) rule.
    (5) Specific information on the species' habitat, including:
    (a) The amount and distribution of green floater habitat;
    (b) Any additional areas occurring within the range of the species 
(the States of Alabama, Georgia, Maryland, New Jersey, New York, North 
Carolina, Pennsylvania, Tennessee, Virginia, and West Virginia, and the 
District of Columbia) that should be included in the designation 
because they (i) are occupied at the time of listing and contain the 
physical or biological features that are essential to the conservation 
of the species and that may require special management considerations, 
or (ii) are unoccupied at the time of listing and are essential for the 
conservation of the species;
    (c) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change; and
    (d) Whether occupied areas are adequate for the conservation of the 
species. This information may help us evaluate the potential to include 
areas not occupied at the time of listing. Additionally, please provide 
specific information regarding whether or not unoccupied areas would, 
with reasonable certainty, contribute to the conservation of the 
species and contain at least one physical or biological feature 
essential to the conservation of the species. We also seek comments or 
information regarding whether areas not occupied at the time of listing 
qualify as habitat for the species.
    (6) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (7) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation, and the related benefits of including or excluding 
specific areas.
    (8) Information on the extent to which the description of probable 
economic impacts in the draft economic analysis is a reasonable 
estimate of the likely economic impacts.
    (9) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act. If you think we should exclude any 
additional areas, please provide information supporting a benefit of 
exclusion.
    (10) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, do not provide substantial 
information necessary to support a determination. Section 4(b)(1)(A) of 
the Act directs that determinations as to whether any species is an 
endangered or a threatened species must be made solely on the basis of 
the best scientific and commercial data available, and section 4(b)(2) 
of the Act directs that the Secretary shall designate critical habitat 
on the basis of the best scientific data available.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via https://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on https://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on https://www.regulations.gov.
    Our final determinations may differ from this proposal because we 
will consider all comments we receive during the comment period as well 
as any information that may become available after this proposal. Based 
on the new information we receive (and, if relevant, any comments on 
that new information), we may conclude that the species is endangered 
instead of threatened, or we may conclude that the

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species does not warrant listing as either an endangered species or a 
threatened species. For critical habitat, our final designation may not 
include all areas proposed, may include some additional areas that meet 
the definition of critical habitat, or may exclude some areas if we 
find the benefits of exclusion outweigh the benefits of inclusion and 
exclusion will not result in the extinction of the species. In 
addition, we may change the parameters of the prohibitions or the 
exceptions to those prohibitions in the 4(d) rule if we conclude it is 
appropriate in light of comments and new information received. For 
example, we may expand the prohibitions to include prohibiting 
additional activities if we conclude that those additional activities 
are not compatible with conservation of the species. Conversely, we may 
establish additional exceptions to the prohibitions in the final rule 
if we conclude that the activities would facilitate or are compatible 
with the conservation and recovery of the species. In our final rule, 
we will clearly explain our rationale and the basis for our final 
decision, including why we made changes, if any, that differ from this 
proposal.

Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing on this 
proposal, if requested. Requests must be received by the date specified 
in DATES. Such requests must be sent to the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this 
proposal, if requested, and announce the date, time, and place of the 
hearing, as well as how to obtain reasonable accommodations, in the 
Federal Register and local newspapers at least 15 days before the 
hearing. We may hold the public hearing in person or virtually via 
webinar. We will announce any public hearing on our website, in 
addition to the Federal Register. The use of virtual public hearings is 
consistent with our regulations at 50 CFR 424.16(c)(3).

Previous Federal Actions

    In our November 21, 1991, candidate notice of review (CNOR; 
published at 56 FR 58804) we identified the green floater as a Category 
2 candidate species. Category 2 candidate species were those taxa for 
which listing was possibly appropriate, but for which conclusive data 
on biological vulnerability and threats were not available to support 
proposed rules. In the February 28, 1996, CNOR (61 FR 7596), we 
discontinued the designation of species as Category 2 candidates; 
therefore, the green floater was no longer a candidate species.
    On April 20, 2010, we were petitioned to list 404 aquatic species 
in the southeastern United States, including the green floater. In 
response to the petition, we published a partial 90-day finding on 
September 27, 2011 (76 FR 59836), in which we announced our finding 
that the petition contained substantial information that listing might 
be warranted for numerous species, including the green floater.

Peer Review

    A species status assessment (SSA) team prepared an SSA report for 
the green floater (Service 2021, entire). The SSA team was composed of 
Service biologists, in consultation with other species experts. The SSA 
report represents a compilation of the best scientific and commercial 
data available concerning the status of the species, including the 
impacts of past, present, and future factors (both negative and 
beneficial) affecting the species.
    In accordance with our joint policy on peer review published in the 
Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 
2016, memorandum updating and clarifying the role of peer review of 
listing actions under the Act, we solicited independent scientific 
review of the information contained in the green floater SSA report. We 
sent the SSA report to five independent peer reviewers and received one 
response. Results of this structured peer review process can be found 
at https://www.regulations.gov under Docket No. FWS-R5-ES-2023-0012. In 
preparing this proposed rule, we incorporated the results of this 
review, as appropriate, into the SSA report, which is the foundation 
for this proposed rule.

Summary of Peer Reviewer Comments

    As discussed in Peer Review above, we received comments from one 
peer reviewer on the draft SSA report. We reviewed all comments we 
received from the peer reviewer for substantive issues and new 
information regarding the information contained in the SSA report. The 
peer reviewer generally concurred with our methods and conclusions and 
provided additional information and other editorial suggestions. No 
substantive changes to our analysis and conclusions within the SSA 
report were necessary, and peer reviewer comments are addressed in 
version 1.0 of the SSA report (Service 2021, entire).

I. Proposed Listing Determination

Background

    The green floater is a freshwater mussel found in small streams to 
large rivers in the eastern United States. It is historically native to 
the District of Columbia and 10 States (Alabama, Georgia, Maryland, New 
Jersey, New York, North Carolina, Pennsylvania, Tennessee, Virginia, 
and West Virginia). Today, however, green floaters are considered 
extirpated in Alabama and Georgia, and there are no recent records from 
New Jersey or the District of Columbia.
    Green floaters are small freshwater mussels with ovate trapezoidal 
shaped shells. Their shells are yellowish brown to olive green with 
green rays (Bogan and Ashton 2016, p. 43). Adults rarely exceed 5.5 
centimeters (cm) (2.2 inches (in)) (Johnson 1970, p. 344) but can grow 
to 7.0 cm (2.8 in) in length (Watters et al. 2009, p. 347). Like all 
freshwater mussels, the green floater is an omnivore that feeds on a 
wide variety of microscopic particulate matter (i.e., bacteria and 
algae).
    The best available information suggests the green floater is a 
short-lived, fast-growing species compared to similar mussels. The 
green floater is considered a long-term brooder because individuals 
produce eggs that develop as larvae in the adult mussels and are then 
released after several months (Haag 2012, pp. 40-41, 203-204). In 
contrast, short-term brooders are similar in that larvae develop in the 
adult mussels, but the brood period is shorter, lasting several days or 
weeks. While some mussels can live to 100 years old, green floaters 
typically live just 3 to 4 years (Watters et al. 2009, p. 349). In 
laboratory settings, green floaters can mature and release sperm at 
less than 1 year of age (Mair 2020, pers. comm.)
    Green floaters are hermaphroditic (Ortmann 1919, p. 122; van der 
Schalie 1970, p. 106) and have the ability to self-fertilize, which 
increases the probability of fertilization (Haag 2012, p. 191). 
Spawning and reproduction occur during the late summer or early fall. 
In the winter, green floaters can directly metamorphose larvae, called 
glochidia, meaning that adults keep the glochidia in their gills until 
they mature into juveniles and then release them into the water column 
in the spring (Barfield and Watters 1998, p. 22; Lellis and King 1998, 
p. 23; Haag 2012, p. 150). For most freshwater mussels, glochidia are 
released into the water column and must attach to the gills of a host 
fish in order to undergo metamorphosis and transform into juveniles. 
Several weeks or months

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later, the juveniles detach from the fish and burrow into the 
substrate. Green floater adults have the ability to expel glochidia 
that use fish hosts, too (J. Jones 2020, unpublished data), but it is 
not known what proportion of green floaters use this method of 
reproduction. The added ability to directly metamorphose glochidia 
without requiring an intermediate fish host is unique to the green 
floater. This life strategy may allow the green floater to occur in 
small streams with small populations and few fish (Haag 2012, pp. 150, 
191), although the use of fish hosts is necessary for periodic upstream 
dispersal.
    Green floaters likely maximize population growth during periods of 
favorable conditions (Haag 2012, pp. 208, 284). Adult green floaters 
can produce between 2,600 and 33,300 juveniles per individual each year 
(R. Mair, Service, unpublished data), and the number of juveniles 
produced can vary greatly from year to year. For example, researchers 
at Harrison Lake National Fish Hatchery in Virginia observed that the 
average number of juveniles released per individual jumped from 4,600 
to 22,500 per individual in a 2-year span. These numbers do not 
represent the total number of juveniles expected to survive to 
adulthood, a number which is unknown but is likely to be a small 
proportion of the juveniles released. When they are found in natural 
environments, green floaters can occur singly or in small aggregations 
of a few individuals.
    Streams with slow to medium flows and good water quality provide 
the best habitat for green floaters (Ortmann 1919, p. 124; Johnson 
1970, p. 345; Clarke 1985, p. 56; Kerferl 1990, p. 47). They are often 
found in sand or small gravel substrates where they establish a 
foothold and bury themselves as deep as 38 cm (15 in) (Haag 2012, p. 
31; Lord 2020, pers. comm.). Their mobility is limited, and fast 
flowing currents or high-water events can cause them to be washed 
downstream (Strayer 1999, pp. 468, 472). When they occur in larger 
streams and rivers, they are found in quieter pools and eddies, away 
from strong currents (WVDNR 2008, p. 2).
    For more information, please refer to the SSA report (version 1.0; 
Service 2021, pp. 1-30), which presents a thorough review of the 
taxonomy, life history, and ecology of the green floater.

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and the implementing 
regulations in title 50 of the Code of Federal Regulations set forth 
the procedures for determining whether a species is an endangered 
species or a threatened species, issuing protective regulations for 
threatened species, and designating critical habitat for endangered and 
threatened species. In 2019, jointly with the National Marine Fisheries 
Service, the Service issued a final rule that revised the regulations 
in 50 CFR part 424 regarding how we add, remove, and reclassify 
endangered and threatened species and the criteria for designating 
listed species' critical habitat (84 FR 45020; August 27, 2019). On the 
same day, the Service also issued final regulations that, for species 
listed as threatened species after September 26, 2019, eliminated the 
Service's general protective regulations automatically applying to 
threatened species the prohibitions that section 9 of the Act applies 
to endangered species (84 FR 44753; August 27, 2019).
    The Act defines an ``endangered species'' as a species that is in 
danger of extinction throughout all or a significant portion of its 
range, and a ``threatened species'' as a species that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether any species is an endangered species or a threatened 
species because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the species' expected response and 
the effects of the threats--in light of those actions and conditions 
that will ameliorate the threats on an individual, population, and 
species level. We evaluate each threat and its expected effects on the 
species, then analyze the cumulative effect of all of the threats on 
the species as a whole. We also consider the cumulative effect of the 
threats in light of those actions and conditions that will have 
positive effects on the species, such as any existing regulatory 
mechanisms or conservation efforts. The Secretary determines whether 
the species meets the definition of an ``endangered species'' or a 
``threatened species'' only after conducting this cumulative analysis 
and describing the expected effect on the species now and in the 
foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as we can 
reasonably determine that both the future threats and the species' 
responses to those threats are likely. In other words, the foreseeable 
future is the period of time in which we can make reliable predictions. 
``Reliable'' does not mean ``certain''; it means sufficient to provide 
a reasonable degree of confidence in the prediction. Thus, a prediction 
is reliable if it is reasonable to depend on it when making decisions.
    It is not always possible or necessary to define the foreseeable 
future as a particular number of years. Analysis of the foreseeable 
future uses the best scientific and commercial data available and 
should consider the timeframes applicable to the relevant threats and 
to the species' likely responses to those threats in view of its life-
history characteristics. Data that are typically relevant to assessing 
the species' biological response include species-specific factors such 
as lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.

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Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent our decision 
on whether the species should be proposed for listing as an endangered 
or threatened species under the Act. However, it does provide the 
scientific basis that informs our regulatory decisions, which involve 
the further application of standards within the Act and its 
implementing regulations and policies.
    To assess the green floater's viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency is the ability of the species to withstand environmental and 
demographic stochasticity (for example, wet or dry, warm or cold 
years), redundancy is the ability of the species to withstand 
catastrophic events (for example, droughts, large pollution events), 
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment 
(for example, climate change, pathogens). In general, species viability 
will increase with increases in resiliency, redundancy, and 
representation (Smith et al. 2018, p. 306). Using these principles, we 
identified the species' ecological requirements for survival and 
reproduction at the individual, population, and species levels, and 
described the beneficial and risk factors influencing the species' 
viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences. Throughout all of these 
stages, we use the best available information to characterize viability 
as the ability of a species to sustain populations in the wild over 
time. We use this information to inform our regulatory decision.
    The following is a summary of the key results and conclusions from 
the SSA report; the full SSA report can be found at Docket No. FWS-R5-
ES-2023-0012 on https://www.regulations.gov.

Summary of Biological Status and Threats

    In this discussion, we review the biological condition of the 
species and its resources, and the threats that influence the species' 
current and future condition, in order to assess the species' overall 
viability and the risks to that viability. We analyze these factors 
both individually and cumulatively to determine the current condition 
of the species and project the future condition of the species under 
several plausible future scenarios.

Species Needs

    We assessed the best available information to identify the physical 
and biological needs to support all life stages for the green floater. 
Green floaters occur in a variety of habitats across the species' large 
range, but they require specific conditions for the habitat to be 
suitable. Water flow, streambed substrate, water quality, water 
temperature, and conditions that support their host fish are all 
important habitat components for the health of green floaters.
    Green floaters occur in small streams to large rivers, pools, 
eddies, and canals with current speeds that are low or moderate 
(Ortmann 1919, p. 124; Clarke 1985, p. 56; WVDNR 2008, p. 2). The 
optimal current is stable, not flashy, and responds slowly to 
precipitation events (Strayer 1993, pp. 241, 244). Green floaters 
require slow and stable flows because they spend most of their lives 
buried just below the surface of the streambed with their posterior end 
angled upward and their anterior end in the substrate. This position 
allows them to siphon water through their incurrent aperture, secrete 
waste through their excurrent aperture, and stabilize themselves using 
their foot. The incoming current speeds must be adequate to deliver a 
steady supply of food and oxygen.
    Green floaters are able to survive high flow events by burying into 
the substrate. Adult green floaters have been found buried between 8 
and 13 cm (3 and 5 in) while juveniles have been found as deep as 38 cm 
(15 in) (Barber 2020, pers. comm.; Lord 2020, pers. comm.). They are 
associated with substrates composed primarily of sand or small gravel 
(Holst 2020, pers. comm.). They can be found in both quiet, backwater 
areas (e.g., eddies) with more silt and large, boulder-dominated 
streams, but some amount of sand or gravel is necessary for them to 
establish a foothold (Clayton 2020, pers. comm.). If they become 
dislodged from the substrate, they can take up to 30 minutes to rebury 
themselves, possibly requiring less time in sand and silt substrates 
(Haag 2012, p. 32). If they become dislodged during a high water event 
or flood, they could be washed downstream (Strayer 1999, pp. 468, 472).
    Like all freshwater mussels, green floaters are sensitive to 
certain water quality parameters and need clean water with low levels 
of contaminants, adequate dissolved oxygen, and low salinity. Juvenile 
mussels may be more sensitive than adults to the presence of 
contaminants, especially copper and ammonia, which can cause 
physiological effects or death (Goudreau et al. 1993, pp. 224, 226-227; 
Jacobson et al. 1993, p. 882). The specific dissolved oxygen 
requirements for green floaters are unknown; however, other freshwater 
mussels begin to exhibit stress when dissolved oxygen levels fall below 
6 milligrams per liter (mg/L) (Chen et al. 2001, pp. 213-214). Stress 
is apparent through behavioral changes such as gaping (i.e., opening of 
the shells to maintain oxygen levels) and lying on the surface of the 
substrate (Sparks and Strayer 1998, pp. 131-133). Green floaters are 
also intolerant to brackish water and require the low salinity levels 
that occur naturally in freshwater streams.
    Green floaters require water temperatures that are warm enough for 
glochidia release but not so warm that they kill or stress the adults. 
Research from lab and field studies indicate that the appropriate 
temperature for glochidia release is likely between 15 and 20 degrees 
Celsius ([deg]C) (59 and 68 degrees Fahrenheit ([deg]F)). Adult mussels 
begin to exhibit the gaping behaviors described above when water 
temperatures get too warm. Lethal maximum water temperatures for green 
floaters have not been studied but are expected to be between 25.3 and 
42.7 [deg]C (77.5 and 106.0 [deg]F), similar to those reported for 
comparable species. Maximum temperatures are related to the duration of 
exposure. Mussels can survive temperatures on the higher end of the 
spectrum for short periods of time (i.e., minutes or hours) and can 
survive temperatures on the lower end for days or weeks. Juvenile 
mussels may be more sensitive to warm temperatures.
    Adequate water quality and temperatures are important habitat 
components for the health of host fish as well, which green floaters 
require for upstream dispersal. In laboratory studies, green floaters 
successfully used mottled sculpin (Cottus bairdii), rock bass 
(Ambloplites rupestris), central

[[Page 48299]]

stoneroller (Campostoma anomalum), blacknose dace (Rhinichthys 
atratulus), and margined madtom (Noturus insignis) for glochidia 
metamorphosis (J. Jones 2020, unpublished data). These species all 
occur within the range of the green floater and could function as hosts 
in natural settings as well.
    The green floater historically occurred in four major drainages: 
the Atlantic Slope (i.e., watersheds along the east coast of the United 
States), St. Lawrence-Great Lakes, Mississippi River (Clarke 1985, p. 
57), and Gulf (i.e., hydrologically connected to the Gulf of Mexico) 
(Brim Box and Williams 2000, p. 59). We delineated analysis units for 
the green floater in these drainages based on recent occupancy 
information. We used data from surveys conducted by partners, including 
State agencies, Federal agencies, nonprofit organizations, and 
contractors, between 1999 to 2019. This period covers approximately 
three generations of green floaters, which are thought to live up to 7 
years (Watters et al. 2009, p. 349). Using these survey data, we 
determined the green floater historically existed in 179 watersheds 
across 10 States and the District of Columbia; 85 of these watersheds 
have had no sightings since 1999 (see figure 1, below, and Service 
2021, appendix C).
BILLING CODE 4333-15-P

[[Page 48300]]

[GRAPHIC] [TIFF OMITTED] TP26JY23.000

BILLING CODE 4333-15-C
    To assess resiliency, we evaluated relevant environmental and 
demographic factors to determine the condition of populations across 
the range of the species. Green floater populations must be able to 
survive varying habitat conditions (i.e., good and bad years) to 
respond to and recover from stochastic events (e.g., seasonal events 
such as heavy rain or severe drought). They must have a healthy 
demography, i.e., a population that includes organisms at a range of 
life stages and occupy areas with suitable habitat conditions for all 
life stages and seasons. Healthy demography is achieved by having a 
sufficient number

[[Page 48301]]

of adults, recruitment (i.e., presence of adults and juveniles), and 
habitat connectivity that supports genetic exchange within and between 
populations. Genetic exchange is needed to preserve genetic diversity, 
without which the health of populations can decrease. Barriers, such as 
large dams and blocked culvert pipes, can impede genetic exchange by 
limiting the dispersal of juvenile mussels and preventing host fish 
migration. Some populations are found between barriers and downstream 
of dams, but the healthiest green floater populations are likely to be 
found in free-flowing streams and rivers.
    To assess representation, we evaluated the ecological and genetic 
diversity across the current range of the species. It is important to 
have sufficiently resilient populations (referred to in figure 1, 
above, as analysis units) where both genetic and ecological differences 
are apparent to maintain the existing adaptive capacity. To evaluate 
representation in the current condition of the green floater, we 
consider both genetic information and the geographic distribution of 
populations. The green floater must have healthy populations 
distributed across the range to capture the breadth of genetic, 
climate, elevation, and habitat diversity, and sufficient connectivity 
for periodic genetic exchange across the range of the species.
    To assess redundancy, we considered the number and distribution of 
populations across the range of the species and the potential for 
catastrophic events to impact the green floater's ability to persist. 
To have high redundancy, the species needs to have multiple populations 
distributed across a large area relative to the scale of anticipated 
catastrophic events.

Factors Influencing Species Viability

Excessive Sedimentation
    Excessive sedimentation is one of the primary factors affecting 
green floater viability. Sedimentation originates from instream (e.g., 
bank erosion, shifting channels) and upland sources (e.g., soil 
erosion). Increases in sediment load can accumulate on the stream/river 
bottom and may lead to bottom scour; lead to embeddedness of rocks, 
gravel, and cobble; and affect some baseline water quality parameters 
(e.g., turbidity). Excess sedimentation can harm mussels in multiple 
ways: suspended particles can abrade mussels and clog the gills and 
respiratory systems of both mussels and host fish, while deposited 
sediment can bury mussels and smother host fish eggs (Wood and Armitage 
1997, p. 211; Burkhead and Jelks 2001, p. 965). Even where 
sedimentation does not clog gills so severely as to kill mussels, it 
may still significantly impact their feeding efficiency and filtering 
clearance rates (Aldridge et al. 1987, p. 25; Brim Box and Mossa 1999, 
pp. 100-101).
    Increases in suspended sediment can also adversely affect mussels' 
ability to feed and reproduce. Mussels must have their valves open to 
feed, but in heavily silted water, they are forced to close their 
valves to wait for conditions to improve. Mussels in turbid water have 
been observed closing their valves up to 90 percent of the time, 
compared to 50 percent of the time for individuals in silt-free 
environments (Ellis 1936, p. 40). Extended valve closure can lead to 
decreased health or starvation. Increases in suspended particles can 
also reduce mussels' ability to encounter sperm, become gravid, and 
reproduce (Landis et al. 2013, p. 74).
    However, a reduced sediment load can also destabilize the stream 
channel. When a decrease in sediment supply coincides with increased 
stream flow, the imbalance can cause streams to narrow and deepen 
(Rakovan and Renwick 2011, p. 40), channeling the flow of water and 
making the habitat unsuitable for green floaters. Other activities, 
like dredging, channelization, or storm damage, can also adversely 
affect physical habitat. Changes in primary productivity (i.e., algae 
and aquatic plant growth) as a result of nutrient loads or reduced 
stream flows can limit the suitability of stream habitats for the green 
floater and other aquatic species (Bogan 1993, p. 604; Wood and 
Armitage 1997, pp. 209-210; Taylor et al. 2007, p. 374). Fine sediment 
suspension and deposition affect the primary producers by reducing the 
amount of sunlight and damaging leaves of plants, which reduces 
photosynthesis (Lewis 1973, p. 253; Davies-Colley et al. 1992, p. 232), 
and, in extreme cases, by smothering and eliminating algae and plants 
(Yamada and Nakamura 2002, p. 489).
    During periods of stress, green floaters bury themselves deeper in 
the substrate and take refuge in interstitial spaces (i.e., small 
openings between rocks and gravels). While in interstitial spaces, they 
rely on available pore water (i.e., the water in interstitial spaces 
between rock and gravel substrates) for oxygen and food particles. 
Interstitial spaces provide essential habitat for adults and juvenile 
green floaters by protecting them from high water events and periods of 
drought, and allowing water loaded with oxygen and food particles to 
reach the mussels. Excess sedimentation adversely affects mussel 
habitat by blocking or filling in the interstitial spaces. Excess sand 
or silt can reduce or block these areas (Brim Box and Mossa 1999, p. 
100), which may cause them to become unsuitable for green floaters by 
having reduced dissolved oxygen levels and limited food availability 
(Strayer and Malcom 2012, p. 1781).
    Pollutants bound to fine sediment and pore water inside 
interstitial spaces can also be toxic to mussels. The degree of 
bioavailability of pollutants bound to sediments can be affected by 
environmental characteristics such as oxygen, temperature, hardness, 
alkalinity, dissolved organic carbon, chloride, and acidity (Farris and 
van Hassel 2006, p. 206; Archambault et al. 2017, p. 403).
    Excessive sedimentation can be caused by land-disturbing activities 
associated with development (i.e., residential/commercial, energy, and 
transportation development). These types of activities increase the 
amount of impervious surfaces and leave areas of bare, unvegetated soil 
exposed to direct rainfall. Energy development, agriculture, and 
forestry activities all take place within the range of the green 
floater. Energy development is a source of sediment because solar 
farms, oil and gas pipelines, and transmission lines can cause soil 
disturbance during installation and maintenance of equipment. 
Agriculture activities can also cause excessive sedimentation when best 
management practices are not implemented to minimize soil erosion and 
increased overland flow, and some forestry practices have the potential 
to result in increased siltation in riparian systems through the cycle 
of forest thinning, final harvest, site preparation, and re-planting 
activities. However, implementation of best management practices and 
establishment of streamside management zones can minimize the impacts 
from forestry (Service 2018 and 2019, chapter 6). Adherence to these 
best management practices and streamside management zones broadly 
protects water quality, particularly related to sedimentation (as 
reviewed by Cristan et al. 2016, entire; Warrington et al. 2017, 
entire; Schilling et al. 2021, entire).
    Impervious surfaces (e.g., roads, concrete) are a source of 
pollutants such as oil and gas because the surfaces prevent liquids 
from entering the ground. During precipitation events, the pollutants 
collect in the rainfall, and because water is unable to absorb into the 
impervious surfaces too, the mixture flows into overland and subsurface 
drainage runoff. In addition, sediments, which come from the bare, 
unvegetated

[[Page 48302]]

soil, join the polluted runoff and flow into rivers and streams. The 
increased surface and drainages waters lead to higher stream flows 
which erode streambanks and riverbanks, increasing turbidity and 
decreasing streambed stability, all of which negatively impact green 
floaters.
Water Quality Degradation
    In addition to impacts to water quality from sedimentation, water 
quality can be degraded due to contamination or changes in temperature. 
Chemical contaminants are widespread and are a major reason for the 
current declining status of freshwater mussel species nationwide 
(Augspurger et al. 2007, p. 2025). Chemical contamination of waterways 
can greatly impact aquatic organisms, and freshwater mussels appear to 
be more sensitive to some of these chemical contaminants than other 
test organisms. As sedentary benthic feeders, mussels are exposed to 
toxic pollutants that enter aquatic environments through direct 
discharges and stormwater runoff. Contaminants can enter waterways 
through both point and nonpoint sources, including spills, industrial 
discharges, municipal effluents, agricultural runoff, and atmospheric 
deposition from precipitation. These sources contribute excess 
nutrients, organic compounds, heavy metals, pesticides, and a wide 
variety of newly emerging contaminants (e.g., antibiotics and hormones 
from wastewater treatment facilities) to the aquatic environment.
    Green floaters are negatively affected by low levels of dissolved 
oxygen. Dissolved oxygen levels become reduced when nutrients in the 
water column increase, causing eutrophication and algal blooms. Both 
natural and anthropogenic sources of organic matter can increase 
nutrient levels in waterways, but most nutrient pollution is the result 
of ongoing and large-scale discharges of nitrogen from anthropogenic 
sources, such as fertilizers and livestock waste. Depletion of 
dissolved oxygen affects the chemistry and increases the 
bioavailability of some contaminants. Dissolved oxygen may have the 
greatest impact on juvenile mussels, which are more sensitive to low 
levels than adults (Dimock and Wright 1993, p. 189; Sparks and Strayer 
1998, pp. 131-133). When there is low dissolved oxygen, juveniles 
exhibit stress behaviors, such as surfacing, gaping, and exposing their 
foot and siphons, that expose them to predators (Sparks and Strayer 
1998, pp. 132-133).
    Freshwater mollusks, including the green floater, are sensitive to 
chemical pollutants, including chlorine, ammonia, copper, fungicides, 
and herbicide surfactants (Augspurger et al. 2007, pp. 2025-2028). 
These chemicals occur in sediments and water and are ingested when 
mussels filter and feed on particles (Yeager et al. 1994, p. 217; 
Newton et al. 2003, p. 2553). Ammonia occurs naturally in aquatic 
systems as a waste product from bacteria. Additional ammonia is 
deposited into streams through surface water runoff from sources such 
as industrial, municipal, and agricultural wastewater; decomposition of 
organic nitrogen; and atmospheric ammonia (Newton 2003, p. 2543; Yao 
and Zhang 2019, p. 22139). Ammonia is suspended in the atmosphere and 
returns to the ground as either gaseous ammonia or ammonium ions in 
precipitation (Air Quality Research Subcommittee 2000, pp. 8-9). 
Domestic livestock is the largest global contributor to atmospheric 
ammonia and a growing source of atmospheric deposition (Bouwman et al. 
1997, p. 561). Excess nitrogen (in the form of nitrates) in waterways 
causes plants and algae to flourish and die off, using up dissolved 
oxygen sources in the water, depleting sources of oxygen for other 
aquatic organisms, causing eutrophication, and increasing the risk of 
die offs of fish and aquatic invertebrates (USGS 2022, unpaginated). 
Excessive inputs of organic matter can also cause ammonia in waterways 
to reach levels that are detrimental to freshwater mussels (Haag 2012, 
p. 379). However, the degree of ammonia toxicity varies depending on 
temperature and pH conditions, which influence the proportion of 
ammonia in its less toxic (ionized ammonium, NH4+) or more 
toxic (un-ionized ammonia, NH3) state (Augspurger et al. 
2003, pp. 2569-70; Haag 2012, p. 379). When temperature and pH levels 
increase, concentrations of the more highly toxic un-ionized ammonia 
also increase and can reach levels that are lethal to the green floater 
and other freshwater mussels (Strayer 2020, pers. comm.). High 
concentrations of un-ionized ammonia are thought to be a contributing 
cause of widespread decline of mussels in the Hudson River (Strayer and 
Malcom 2012, p. 1786). When un-ionized ammonia reached concentrations 
of 0.2 mg/L, recruitment in wild mussel populations failed (Strayer and 
Malcom 2012, p. 1787). Juvenile mussels are highly sensitive to un-
ionized ammonia, and chronic exposure at concentrations of 0.57 mg/L in 
25 [deg]C (77 [deg]F) water was lethal to juveniles in the lab 
(Augspurger et al. 2003, p. 2572). The Lasmigona genus, of which the 
green floater is a member, was the most sensitive of 12 genera tested 
for ammonia toxicity of juveniles and adults (Augspurger et al. 2003, 
p. 2573).
    In addition to ammonia, manganese, nickel, chlorine, and sodium 
dodecyl sulfate have also been linked to mussel declines and/or 
toxicity (Archambault et al. 2017, entire; Gibson 2015, pp. 90-91; 
Gibson et al. 2016, p. 33). Sediments that contain manganese and 
ammonia as a result of mining and agriculture can negatively affect 
mussel survival and biomass, as observed in the Clinch River and its 
tributaries (Archambault et al. 2017, pp. 403-405). Manganese and 
nickel generally enter waterways in the wastewater from various 
industries, including alloy, glass, and battery manufacturing; via 
atmospheric deposition as a result of the combustion of fossil fuels; 
and in the runoff from agriculture and mining operations (Rollin 2011, 
pp. 618-619). Long-term exposure to ammonia and manganese could reduce 
immunity and fecundity in mussels (Archambault et al. 2017, p. 405). 
Sodium dodecyl sulfate, a surfactant found in household detergents and 
herbicides, can be lethal to some mussels after acute exposure (Gibson 
et al. 2016, p. 30).
    State and Federal regulatory mechanisms (e.g., the Clean Water Act 
(33 U.S.C. 1251 et seq.)) have helped to reduce the negative effects of 
point source discharges since the 1970s. However, while new water 
quality criteria are being developed that consider more sensitive 
aquatic species, most criteria currently do not have any limits 
associated with them. On August 22, 2013, the U.S. Environmental 
Protection Agency (EPA) published in the Federal Register (78 FR 52192) 
national recommended ambient water quality criteria for the protection 
of aquatic life from the effects of ammonia in fresh water. These 
criteria incorporate the latest scientific knowledge on the toxicity of 
ammonia to freshwater aquatic species, including freshwater mollusks. 
So far, few States have adopted the new criteria, which are 
considerably more stringent than previous criteria. Nickel and chlorine 
have been shown to be toxic to juvenile mussels at levels below the 
EPA's current water quality criteria (Gibson 2015, pp. 90-91). Water 
quality criteria for other compounds that are harmful to mussels, such 
as sodium dodecyl sulfate, do not currently exist (Gibson et al. 2016, 
p. 33).
    Increased water temperature caused by loss of riparian trees, 
impoundments, climate change, stormwater, wastewater effluents, and low 
flows during drought

[[Page 48303]]

periods can exacerbate low dissolved oxygen levels and negatively 
affect juvenile and adult green floaters. Higher water temperatures 
increase metabolic processes in freshwater mussels and can outstrip 
energy reserves if they remain above the natural thermal tolerance of a 
mussel for extended periods of time. Because ammonia toxicity in 
freshwater environments increases as temperature and pH increase 
(Newton 2003, p. 2543), temperature increases may exacerbate existing 
pollution, compounding the threats to green floater growth and 
survival.
    Salt, which enters waterways from road runoff and industrial 
discharges, can be toxic to freshwater mussels, and concentrations 
observed in streams and rivers have resulted in death of glochidia in 
laboratory settings (Gillis 2011, pp. 1704-1707). The largest chloride 
spikes happen in the winter (Kaushal et al. 2005, pp. 13518-13519), 
when road salt washes into waterways, keeping chloride levels elevated 
in months when green floaters release glochidia.
    Discharges of high salinity wastewater (called brine), a waste 
product from oil and gas drilling operations, into streams can also 
adversely affect freshwater mussels. In Pennsylvania, mussel abundance 
and diversity were found to be lower downstream of a brine treatment 
facility (Patnode et al. 2015, p. 59). In northern Appalachia, natural 
gas operations have negatively affected groundwater and surface water 
quality through wastewater disposal and increased sedimentation (Vidic 
et al. 2013, p. 1235009-6; Olmstead et al. 2013, p. 4966), likely 
impacting mussels in the region.
    Organic contaminants such as polycyclic aromatic hydrocarbons 
(PAHs) and polychlorinated biphenyls (PCBs) are toxic to humans and 
organisms and can bioaccumulate in plants and animals (Newton and Cope 
2007, entire; Maryland DNR 2020, unpaginated). These toxins contaminate 
water via petroleum spills and discharges, industrial and municipal 
wastewater, and atmospheric deposition (e.g., coal plants, 
incinerators) (Albers 2003, p. 346). Natural sources of PAHs are forest 
and grassland fires, oil seeps, volcanoes, plants, fungi, and bacteria. 
Anthropogenic sources are petroleum, electric power generation, burning 
of waste, home heating oil, coke (a fuel derived from coal), carbon, 
coal tar, asphalt, and internal combustion engines (Albers 2003, p. 
345). Oil and gas that drip from automobiles onto pavement eventually 
enter waterways, especially in urban environments. Where roads cross 
over streams, PAHs are found in significantly higher concentrations 
than in upstream reaches (Archambault et al. 2018, p. 470). Cumulative 
concentrations of PAHs in streams can cause adverse effects to mussels, 
including reduced immune system function and reduced reproduction 
(Archambault et al. 2018, p. 474).
    In use between approximately 1929 until 1978, PCBs are long-lasting 
toxic compounds that have significantly degraded major waterbodies 
throughout the range of the green floater. Despite having been banned, 
PCBs have accumulated and persist in sediment, affecting aquatic life 
(including mussels) to this day (Jahn 2020, pers. comm.). For example, 
up to 1.3 million pounds of PCBs were discharged into the Hudson River 
between the 1940s and 1970s (USEPA 2016, entire). The area is now a 
Federal Superfund remediation site, and cleanup activities, which began 
in 2009, include dredging of the riverbed. Because PCBs exist in the 
sediment, they are released into the water and continue to persist in 
the environment.
Alteration of Water Flows
    Mussels typically experience low flow and high flow periods and are 
adapted to deal with seasonal variability. However, extreme drought or 
flooding can adversely affect mussel populations that are already 
stressed (Hastie et al. 2001, p. 114; Golladay et al. 2004, p. 504) and 
can eliminate appropriate habitats. Green floaters may be able to 
survive extreme low or high flow events if the duration is short (in 
the case of stream drying), but populations that experience these 
events regularly or for extended durations may be at risk.
    Very low water levels can be caused by severe drought or water use. 
During low water flow periods, mussel mortality is primarily caused by 
dehydration, thermal stress, and exposure to predation (Golladay et al. 
2004, p. 504; Pandolfo et al. 2010, p. 965; Galbraith et al. 2015, pp. 
49-50). Water withdrawals are associated with public and private water 
uses, sewage treatment, and power generation (e.g., dams), and may be 
exacerbated by climate change (Neff et al. 2000, p. 207). Rapid 
dewatering can lead to increased stress and mortality, especially in 
more sensitive mussel species (Galbraith et al. 2015, p. 50), and 
prevent dispersal. While green floaters can survive short periods of 
low flows, persistent low flows can cause them to experience oxygen 
deprivation and increased water temperatures, ultimately stranding them 
in place if conditions do not improve or they are unable to relocate. 
If deeper water is unavailable, they may bury themselves for long 
periods of time, which can cause mortality, stress, and reduced 
reproduction and recruitment in the population.
    High flows can be caused by extreme precipitation (i.e., snowmelt 
or rainfall) events or regulated dam releases. These events cause water 
levels to rise, increasing flow velocities which can substantially 
change, destabilize, or destroy mussel habitat. High flow velocities 
can completely change the course of the stream, scour streambeds, erode 
stream banks, and fill interstitial spaces with sediment. Where a 
channel is no longer connected to floodplains, peak flows are higher 
and faster, which can degrade or eliminate green floater habitat 
(Clayton 2020, pers. comm.).
    High flows may also result in dislodgement or displacement of 
mussels. Flooding can bury mussels in silt, crush them with large rocks 
moved by the current, or dislodge and relocate them to downstream areas 
that may or may not provide suitable habitat (Hastie et al. 2001, pp. 
113-114).
    Barriers, such as improperly installed or maintained culverts, and 
impoundments associated with dams (reservoirs), reduce the diversity 
and abundance of mussels by altering habitat both upstream and 
downstream (Bogan 1993, p. 605; Neves et al. 1997, p. 63). Culverts and 
dams can inundate upstream shallow-water habitats, increasing sediment 
deposition behind the barrier. The excess sediment can smother green 
floaters by filling the interstitial spaces where they occur, thereby 
depriving them of oxygen and nutrients. Besides sedimentation, the 
increase in depth can degrade mussel habitat in a few ways. For 
instance, in large reservoirs, deep water is very cold and often devoid 
of oxygen and necessary nutrients. Smaller reservoirs often accumulate 
excess nutrients, and hence lower dissolved oxygen, and have higher 
water temperatures than adjacent stream reaches, all of which can 
stress mussel populations.
    Dams and other barriers also tend to reduce the water available to 
mussel populations downstream. In addition, the frequency, duration, 
timing, and location of water releases from dams can affect the 
suitability of downstream habitats for green floaters. Sudden, high-
volume releases can increase scour in some places by washing away 
sediment, then smother other areas by depositing sediment, filling 
interstitial spaces, and burying the sandy and gravelly habitats that 
mussels prefer. Large fluctuations in flow regimes from dam releases 
can also cause seasonal dissolved oxygen depletion, lead to significant 
variation in water temperatures, and change the

[[Page 48304]]

species of fish present in the stream, all of which can lead to 
unsuitable conditions and negatively impact green floaters. The 
instability of sediment from scour, flushing, and deposition of eroded 
bank material can result in juvenile mussels failing to settle and stay 
in interstitial spaces (Hastie et al. 2001, p. 114).
    Nevertheless, there are cases of populations of other mussel 
species thriving in stable conditions downstream of some dams, 
especially small, low head dams (Gangloff 2013, p. 476 and references 
therein; Bowers-Altman 2020, pers. comm.). Smaller dams have fewer 
adverse effects because they do not tend to act as complete barriers 
for water flow. Small dams and their impoundments can benefit mussel 
habitat by filtering and lowering nutrient loads, oxygenating streams 
during low-water periods, and stabilizing stream beds (Gangloff 2013, 
pp. 478-479). Impoundments can also benefit the habitat by retaining 
fine sediments and associated toxins, inhibiting the spread of invasive 
species, and slowing or weakening water flows during flood events 
(Fairchild and Velinsky 2006, p. 328; Jackson and Pringle 2010, 
entire). Although dams and impoundments are considered to have an 
overall negative impact across the range of the green floater, altered 
or reduced hydrologic connectivity can be preferable to natural 
connectivity regimes in highly developed landscapes.
Loss and Fragmentation of Habitat
    Habitat fragmentation isolates mussel populations, which 
contributes to their risk of extirpation from stochastic events (Haag 
2012, pp. 336-338). Streams are naturally dynamic, frequently creating, 
destroying, or shifting areas of quality habitat over a particular 
timeframe. However, human-caused factors can lead to permanent 
fragmentation of suitable habitat. For instance, barriers (e.g., dams, 
improperly installed or maintained culverts with poor fish passage) can 
disrupt the connectivity of green floater habitat and isolate mussel 
populations by preventing host fish from moving upstream or downstream. 
Dams have caused genetic isolation in river systems for fish and could 
have the same effect on mussel populations. The alteration in fish 
populations can be a threat to the survival of mussels and their 
overall reproductive success over time (Haag 2009, pp. 117-118).
    Fragmentation has other causes, too. Pollution or other habitat 
degradation at specific points can completely separate stream reaches 
from one another (Fagan 2002, p. 3246). Similarly, drought conditions 
can temporarily fragment habitat by reducing or eliminating flows and 
preventing movement of fish hosts carrying glochidia. Where mussel 
populations are small, habitat fragmentation can cause local 
extirpation because populations cannot be reestablished by colonization 
from other areas. Connectivity between mussel beds or occupied habitats 
is thus particularly important where reaches of suitable habitat are 
created and destroyed frequently.
Invasive Species
    Several invasive species, including zebra and quagga mussels 
(Dreissena spp.), Asian clams (Corbicula fluminea), invasive crayfish 
species (especially the rusty crayfish (Faxonius rusticus)), and 
various species of bass, catfish, and carp are present in the green 
floater's range and are likely to prey upon or compete with green 
floater and alter the green floater's habitat (Strayer 2020, pers. 
comm). Although the extent of the effects of these invasive species on 
the green floater are unknown, their influence on the green floater is 
likely to be detrimental and is expected to increase in the future. 
Populations of these species and others are expanding their ranges and 
becoming established in more watersheds inhabited by green floaters 
over time. When invasive species are introduced to natural systems, 
they may have many advantages over native species, such as the ability 
to adapt to varying environments and a high tolerance of conditions 
that allows them to thrive outside of their native range. There may not 
be natural predators adapted to control the invasive species; thus, 
they have the potential to live longer and reproduce more often, 
rapidly increasing their populations and range. Native species may 
become an easy food source for invasive species, and the invasive 
species can carry diseases that could potentially spread to native 
species. Some invasive species can drastically alter aquatic habitats 
by affecting flow dynamics and can contaminate streams by dying in mass 
mortality events that change the amount of dissolved oxygen and ammonia 
in the water.
Effects of Climate Change
    There are a multitude of ongoing and anticipated changes in the 
environment resulting from climate change. Likely impacts of these 
changes on aquatic systems that could affect green floaters include 
increases in water temperatures, changes in seasonal precipitation, and 
changes in extreme precipitation events. Sedentary freshwater mussels 
have limited refugia from disturbances such as droughts and floods, and 
since their physiological processes are constrained by water 
temperature, increases in water temperature caused by climate change 
can further stress vulnerable populations and lead to shifts in mussel 
community structure (Galbraith et al. 2010, p. 1176). Extreme events 
have become more common as the climate changes, and both floods and 
droughts can degrade habitat and affect water quality parameters, like 
dissolved oxygen (see ``Alteration of Water Flows,'' above). Low water 
flows (e.g., following a prolonged summer drought) can expose mussels 
to intense opportunistic predation (Wicklow et al. 2017, pp. 45, 47, 
55, 137). All of these predicted impacts of climate change are already 
occurring in the range of the green floater, and they are expected to 
worsen over time (Poff et al. 2002, pp. ii-v), and human alteration of 
channels and flow regimes may limit the ability of green floater and 
host fish species to adapt and relocate.

Inherent Factors

    Green floaters exhibit several inherent traits that likely 
influence population viability, including hermaphroditism, direct 
development of juvenile mussels in the marsupia (i.e., brood chamber in 
the outer gills), and low fecundity compared to some other mussel 
species. When habitat conditions are favorable, their abilities to 
develop glochidia without host fish and to self-fertilize allow green 
floaters to persist in small streams with small populations and few 
fish, which positively impacts the species' viability (Haag 2012, pp. 
150, 191). However, low fecundity rates limit the ability of 
populations to quickly rebound after stochastic events. In addition, 
hermaphroditism can lead to lower genetic diversity, and reliance on 
juvenile development without a host fish can lead to a diminished 
distribution.
    Green floaters are frequently found in low numbers within their 
occupied habitats, with some found in mussel beds along with other 
mussel species and some found individually. Smaller population size 
puts sites at greater risk of extirpation from demographic or 
environmental stochasticity (e.g., periods of poor reproductive success 
or periods of severe flooding or drought) or genetic drift. The 
smallest populations of green floaters also face greater threats from 
anthropogenic changes and management activities that affect habitat. In 
addition, smaller populations may have reduced genetic diversity and

[[Page 48305]]

fitness and thus are more susceptible to environmental changes.

Conservation Efforts and Regulatory Mechanisms

    There are several regulatory mechanisms that protect the green 
floater or its habitat. The green floater is State-listed as endangered 
or threatened in 8 States (Maryland, New Jersey, New York, North 
Carolina, Pennsylvania, Tennessee, Virginia, and West Virginia) of the 
10 States where it historically occurred. In these eight States, the 
green floater receives some level of protection due to the State 
listing, though this varies by State. The green floater has been 
identified on the lists of Northeast and Southeast Regional Species of 
Greatest Conservation Need, which enables States in those regions to 
prioritize research and conservation of the species through State 
wildlife action plans.
    Green floaters may be afforded some protection by the Clean Water 
Act's (CWA) dredge or fill permitting framework. CWA section 404 
established a program to regulate the discharge of dredged and fill 
material into waters of the United States. Permits to fill wetlands or 
streams are issued by the U.S. Army Corps of Engineers, and mitigation 
is required to offset impacts above minimal levels. Such mitigation 
could include preservation or restoration of stream reaches inhabited 
by the green floater. CWA section 401 requires that an applicant for a 
Federal dredge or fill permit under section 404 obtain a certification 
that any discharges from the facility will not violate water-quality 
standards, including some established by States. Current State water 
quality standards are designed to be protective of aquatic organisms; 
however, freshwater mollusks may be more susceptible to the effects of 
some pollutants than organisms for which the CWA standards were 
developed. In addition, several State laws require setbacks or buffers 
for development in or near aquatic systems but allow variances/waivers 
for those restrictions. Accordingly, both Federal and State laws and 
regulations afford some protection to water quality in the green 
floater's habitat; however, because these laws do not prohibit 
development, and because it is not known whether existing water quality 
standards are adequate to protect the green floater, the impacts caused 
and protections afforded by the regulatory framework are not precisely 
known.
    Several States are taking additional actions to improve habitat for 
freshwater mussels, including green floaters. For example, the West 
Virginia Department of Natural Resources has created a West Virginia 
Conservation Strategy (2019) and works with partners to implement 
watershed protection, stream protection, the restoration and 
maintenance of natural flow regimes, and the reduction of pollutants 
(e.g., road salt, industrial and agricultural effluents, and sewage) to 
improve aquatic habitat for mussels. In a bridge project on the 
Rappahannock River, for instance, the Virginia Department of Wildlife 
Resources collected and relocated a total of 30 green floaters. Agency 
staff subsequently documented recruitment of green floaters at the 
relocation site in the Rappahannock River (Watson 2020, pers. comm.).
    A variety of agencies and organizations (e.g., the Service, the 
U.S. Department of Agriculture's Natural Resources Conservation 
Service, The Nature Conservancy, Trout Unlimited, and American Rivers) 
fund and implement projects to remove barriers to fish passage, plant 
and maintain sufficient riparian buffers, and improve water quality by 
capturing and treating wastewater and sediment before they enter rivers 
and streams. These efforts have the effect of improving habitat for 
freshwater mussels, among other aquatic species. For instance, Federal 
and State agencies (Delaware, the District of Columbia, Maryland, 
Pennsylvania, New York, Virginia, and West Virginia), local 
governments, nonprofit organizations, and academic institutions have 
worked together since 1983 to implement the Chesapeake Bay Watershed 
Agreement, with the goal of reducing pollution (in particular, nutrient 
pollution), restoring wetland and other aquatic habitats, and promoting 
environmentally friendly land-use practices in the Chesapeake Bay 
watershed. In 2017, a system was put in place to monitor progress and 
document adaptive management strategies. These efforts have 
demonstrated continued improvement of the habitat over time, which has 
likely benefited green floater populations in the area.
    Several captive breeding efforts have been conducted to determine 
the feasibility of propagating green floaters. In 2017 and 2018, the 
White Sulphur Springs National Fish Hatchery grew over 80,000 juvenile 
green floaters in West Virginia. The Harrison Lake National Fish 
Hatchery in Richmond has successfully propagated and released juvenile 
green floaters into Virginia rivers and streams. These efforts have the 
potential to restore populations of green floater in the future; 
however, they are currently limited in scope, and long-term population 
increases in the wild have yet to be documented.

Summary

    Our analysis of the factors influencing the green floater revealed 
multiple threats to the current and future viability of the species: 
habitat loss or fragmentation; changes in water flows; degraded water 
quality; and impacts of climate change. Factors like low fecundity that 
are inherent to the species contribute to the likelihood of populations 
becoming extirpated, especially when populations consist of just a few 
individuals. Secondary factors that may pose a threat are the impacts 
that invasive species may have on the green floater. Other potential 
factors such as disease and predation were also considered but the 
extent of these issues and their effects on green floater populations 
are unknown. There are conservation programs and water quality 
standards that may benefit freshwater mussels but few that target the 
green floater specifically.
    Many of the above-summarized risk factors may act synergistically 
or additively on the green floater. The combined impact of multiple 
stressors is likely more harmful than a single stressor acting alone. 
For the green floater, the inherent factor of having low fecundity is 
likely to work in conjunction with each of the other stressors to limit 
the species' ability to recover from catastrophes (e.g., severe floods, 
droughts) or to expand the population when conditions are favorable. 
For a full explanation of the impact of stressors on the viability of 
the species, see chapter 4 of the SSA report (Service 2021, pp. 36-57).
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have 
analyzed the cumulative effects of identified threats and conservation 
actions on the species. To assess the current and future condition of 
the species, we evaluate the effects of all the relevant factors that 
may be influencing the species, including threats and conservation 
efforts. Because the SSA framework considers not just the presence of 
the factors, but to what degree they collectively influence risk to the 
entire species, our assessment integrates the cumulative effects of the 
factors and replaces a standalone cumulative-effects analysis.

Current Condition

    To evaluate the current condition of the green floater, we 
considered the resiliency of the known population, the redundancy of 
populations or analysis

[[Page 48306]]

units, and the ecological or genetic representation within the species 
across its range. We assessed the resiliency of the 179 analysis units 
by evaluating the number of live green floaters reported per year and 
trend, the length of occupied stream segments, and habitat quality that 
were established based on evidence from documented studies, available 
unpublished information, and expert opinion (see Service 2021, appendix 
C). Metrics were evaluated in sequential order. Abundance and trend 
data from surveys were considered the most accurate indicators of 
current condition and the occupied habitat and habitat quality metrics 
were only assessed if abundance and trend data were lacking. Then 
current condition categories of high, medium, low, presumed extirpated, 
and historical/unknown were assigned to the analysis units. Condition 
categories were assigned as high, medium, or low resiliency in places 
where one or more live individuals were found in a geographic area 
since 1999. High resiliency indicates that green floaters are abundant 
(more than 100 individuals) in the analysis unit and that the 
population appears to be stable or increasing. For analysis units that 
meet the requirements for high resiliency, the amount of occupied 
habitat and habitat quality are not considered. Medium resiliency 
indicates either that green floaters are common (10 to 100 individuals) 
in the analysis unit and the population is stable or increasing, or 
that green floaters are abundant in the analysis unit and the 
population is decreasing. Medium resiliency also indicates that 
occupied steams are greater or equal to 1 km (0.62 mi) in length. Low 
resiliency indicates that green floaters are rare (fewer than 10 
individuals) and that the likelihood of the population withstanding a 
stochastic event is low. Low resiliency also indicates that occupied 
steams are less than 1 km (0.62 mi) in length or observations are 
highly fragmented, and that the habitat is considered by experts to be 
less suitable for green floaters. Presumed extirpated was assigned to 
geographic areas where green floaters have not been found recently 
(1999 to 2019), and multiple surveys have been conducted and local 
experts do not expect to find them there in the future. Historical/
unknown was assigned to geographic areas in which green floaters have 
not been found recently (1999 to 2019), but sufficient surveys have not 
been conducted to declare the analysis unit as having the condition 
``presumed extirpated.''
    The results of our analysis show that across the range of the green 
floater, 16 percent of analysis units are designated as having medium 
(13 percent) or high (3 percent) resiliency. The condition of the other 
84 percent of analysis units is low (36 percent), presumed extirpated 
(14 percent), or historical/unknown (34 percent). In many of the 
analysis units where the green floater's condition is designated as 
medium or high, distribution is not continuous and small groups of 
green floaters are found in pockets of habitat. It is common to find 
fewer than 10 live individuals at a location in a survey year, and in 
many analysis units, few green floaters are found over long stretches 
of river. For example, in several analysis units in New York (including 
the Cohocton and Unadilla Rivers), green floaters were found in very 
low numbers dispersed over 20 to 30 miles of suitable habitat. In 
addition, there is one analysis unit in West Virginia (Knapp Creek) in 
which green floaters were found in 2014 in high numbers but, due to 
habitat alterations, were not found the subsequent year. In these 
unique cases, information provided by local experts helped determine 
the appropriate condition category.
    Green floaters have not been found in approximately half (47 
percent) of the analysis units since before 1999. However, many of 
these analysis units were categorized as historical/unknown because not 
enough surveys have been conducted to determine with high confidence 
that the species no longer occurs. Of the 179 analysis units, 60 are 
considered historical/unknown. Using present land use (e.g., landscape 
attributes and water quality) and climate projections, we modeled the 
probabilities of the historical/unknown units being in each category 
(high, medium, low, or presumed extirpated). The results suggest that 
almost all of the analysis units designated as historical/unknown are 
likely in low condition, with a small subset of eight analysis units 
having a high likelihood of being presumed extirpated. The analysis 
indicates that green floaters currently occupy the majority (53 to 82 
percent) of analysis units in their historical range (see full results 
in table 1).

  Table 1--Summary of the Current Condition of the Resiliency of Green
 Floater Analysis Units, Including Modeled Results for Analysis Units in
                     the Historical/Unknown Category
------------------------------------------------------------------------
                                        Number of analysis units
                              ------------------------------------------
                                                               Presumed
                                 High     Medium      Low     extirpated
------------------------------------------------------------------------
Current condition of high,            6        24        64           25
 medium, low, and presumed
 extirpated analysis units...
Modeled condition of                * 1       * 1        51            8
 historical/unknown analysis
 units.......................
                              ------------------------------------------
    Totals...................         7        25       115           33
------------------------------------------------------------------------
* One analysis unit (South Branch Potomac, West Virginia) was predicted
  to have lower risk of being in the presumed extirpated or low
  categories. Therefore, the unit is likely in medium or high condition,
  but the model was not designed to predict one over the other.

    The green floater must be able to respond to physical (e.g., 
climate conditions, habitat conditions or structure across large areas) 
and biological changes (e.g., novel diseases, pathogens, predators) in 
its environment into the future. The species' adaptive capacity is 
shown through its multiple reproductive strategies (i.e., direct 
development of glochidia and use of host fish) and ability to occur 
over a large geographical range. The green floater occurs in both sides 
of the Eastern Continental Divide in the Atlantic Slope and Mississippi 
River drainages, a rare distribution for mussels, where it endures a 
wide array of climatic conditions (e.g., temperatures) and elevational 
gradients (e.g., 200 to 900 meters (650 to 3,000 feet) above sea level 
in West Virginia). We assume that there is little connectivity between 
populations separated by the Continental Divide now and there is 
significant genetic information indicating the species does not exist 
as a single continuous population as well. A zone of discontinuity 
exists suggesting individuals in the northern part of the

[[Page 48307]]

range are evolving separately from those in the southern parts (King et 
al. 1999, pp. S69-73, S76).
    We considered the green floater's reproductive strategies as well 
as its broad historical geographic range to determine the breadth of 
the species' representation and adaptive capacity in five regions, 
which we refer to as representation units (Great Lakes, Mid-Atlantic, 
South Atlantic, Mississippi, and Gulf). The boundaries of these units 
are based on the major watersheds and locations of known genetic 
differences among green floater populations. The genetic differences 
that exist among populations north and south of the Potomac River 
indicate that populations in the Mid-Atlantic and South Atlantic 
representation units may be adapted to local environmental conditions 
(e.g., temperature).
    As discussed in the paragraphs above, the majority of the analysis 
units considered in the resiliency analysis are categorized as low or 
presumed extirpated, and these are scattered throughout four 
representation units (Great Lakes, Mid-Atlantic, South Atlantic, and 
Mississippi). The green floater is likely extirpated entirely from the 
Gulf representation unit. Analysis units designated as medium and high 
are unevenly distributed across the representation units: 17 are found 
in the Mid-Atlantic, 9 are found in the South Atlantic, 4 are found in 
the Mississippi, and none are found in the Great Lakes representation 
unit.
    We considered the green floater's current redundancy by assessing 
the number of and distribution of healthy populations across the 
species' range. Thirty of the 179 analysis units (16 percent) were 
found to be sufficiently resilient (in medium or high condition). Green 
floater populations in six of these analysis units (designated as high 
condition) are thought to be capable of expanding their range if 
suitable adjacent habitat is available. Should a large-scale 
catastrophic event occur, the species would be best able to recover 
without human intervention in the Mid-Atlantic, South Atlantic, and 
Mississippi representation units.

Future Condition Projections

    To assess the future condition of the green floater, we projected 
changes in land use and climate to model future conditions for each 
analysis unit to year 2060. We first modeled the probability that an 
analysis unit would be classified in each condition category based on 
historical land use and climate patterns. These probabilities produced 
by the present condition model represent the species' current (or 
baseline) risk profile. We then modeled future condition for each 
analysis unit out to year 2060 and incorporated a range of plausible 
scenarios for each parameter, including land use projections under four 
emission scenarios (A1B, A2, B1, and B2), and climate projections under 
12 climate scenarios derived from six global climate models (bcc-csm1-
1-m, BNU-ESM, CanESM2, GFDL-ESM2G, GFDL-ESM2M, inmcm4) and two 
representative concentration pathways (RCP 4.5 and 8.5) (see Service 
2021, Appendix D). The presentation of the results focused on the 
probability that an analysis unit would be classified as either 
presumed extirpated or low condition, combining the two categories 
discussed in the current condition analysis. Presumed extirpated and 
low were grouped together in the results to accurately represent the 
uncertainty of the model for each category.
    The variables most likely to have negative effects on green floater 
condition were the percentage of developed land, the patch density of 
developed land (i.e., proportional cover of development and its spatial 
pattern), and mean runoff, which likely reflect deteriorating habitat 
quality from increased erosion, decreased substrate stability, and poor 
water quality.
    The results of the present condition model indicated that all 
analysis units (179 total), except 4 in West Virginia and North 
Carolina, have a mean probability greater than 50 percent of being 
classified as presumed extirpated or low resiliency based on 
surrounding land use. Sixty-four of the 94 analysis units with 
confirmed occurrence are currently classified as having low resiliency, 
and the remaining 30 appear to be at high risk of becoming so, based on 
land use patterns. Most analysis units (97 of 179) are located within 
the Mid-Atlantic representative unit, which is the central region that 
has the greatest future risk. According to the future condition model, 
2 of the 179 analysis units (1 percent) are projected to be in high 
condition in 2060, 4 analysis units (2 percent) are projected to be in 
medium condition, and 173 analysis units (97 percent) are projected to 
be in presumed extirpated or low condition. The future risk of an 
analysis unit being classified as presumed extirpated or low condition 
at 2060 was generally similar to baseline risk throughout the range; 
however, variation tended to be wider for most analysis units due to 
the added uncertainty across multiple future scenarios. The major 
rangewide trends indicate there is a high risk that future populations 
will have low resiliency in the central portion of the range and, 
according to the future condition model, a projected increase in risk 
in the remaining southern portion. Most populations have already been 
extirpated from regions where there is projected increase in 
development (the metro areas of Washington, District of Columbia; 
Philadelphia, Pennsylvania; New York, New York; and Albany, New York). 
The major exceptions are analysis units in the southern portion of the 
range surrounding Greensboro, North Carolina; Raleigh-Durham, North 
Carolina; and Lynchburg, Virginia. The risk of extirpation (presumed 
extirpated) is projected to increase 20 to 30 percent in populations in 
these metro areas (James, Dan, Eno, Neuse, and Tar River watersheds) by 
2060. This suggests that increased risk in the southern portion of the 
range could have large impacts on species-level resilience and 
representation.
    In summary, there are very few locations where the green floater is 
expected to continue to be healthy and sufficiently resilient into the 
future. By the year 2060, 97 percent of the known locations are likely 
to have low resiliency or will be extirpated. We anticipate a continued 
declining status of the green floater due to ongoing and increasing 
threats primarily related to increases in developed land use. Due to 
the biology and current distribution of the species, it is unlikely 
that green floaters will be able to disperse and shift their range in 
response to predicted habitat changes or novel threats in most 
watersheds.

Determination of Green Floater's Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of an endangered species or a 
threatened species. The Act defines an ``endangered species'' as a 
species in danger of extinction throughout all or a significant portion 
of its range, and a ``threatened species'' as a species likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether a species meets the definition of an endangered 
species or a threatened species because of any of the following 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence.

[[Page 48308]]

Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors, our analysis indicates that the most important risk factor 
affecting the green floater's current and future status and trends is 
the destruction and modification of its habitat (Factor A). The primary 
drivers of the status of the species to the present have been excessive 
sedimentation, water quality degradation, alteration of water flows, 
loss and fragmentation of habitat, invasive species, and the effects of 
climate change (Factor A). Land-disturbing activities associated with 
development (e.g., residential/commercial, energy, and transportation 
development) have contributed to soil erosion and excessive 
sedimentation in many areas of the green floater's range. Development 
and an increase in impervious surfaces have created conditions in which 
heavy rain events cause higher stream flows, which have eroded 
streambanks and riverbanks, increased turbidity, and decreased 
streambed stability at numerous sites. These conditions have also 
caused sediment and pollutants from a wide variety of anthropogenic 
sources (e.g., mining, agriculture, wastewater, industrial discharge, 
oil and gas drilling operations) to wash into rivers and streams. Many 
of these stressors have directly killed green floaters while others 
have reduced the fitness of individuals or reduced fecundity.
    We considered whether the green floater is presently in danger of 
extinction and determined that, despite the stressors acting upon the 
species, proposing endangered status is not appropriate. Green floaters 
currently occupy the majority (53 to 82 percent) of analysis units in 
their historical range. They are currently found in seven States, 
primarily occurring in the Atlantic Slope. Individuals have recently 
been found in New York, Pennsylvania, Maryland, West Virginia, 
Virginia, North Carolina, and Tennessee, although the range has 
contracted, and the species occurs as disjunct populations in rivers 
and streams in these States. Green floaters have been observed recently 
(since 1999) in 94 of the 179 analysis units and are likely to occur in 
another 52 units for which the status was modeled based on current land 
use patterns. Populations in 30 of the observed locations (32 percent) 
are currently healthy and resilient to stochastic events. Populations 
in six of the observed locations (6 percent) are likely capable of 
expanding their range if suitable adjacent habitat is available. These 
moderately to highly resilient populations are scattered across the 
Mid-Atlantic, South Atlantic, and Mississippi regions, an area covering 
both sides of the Eastern Continental Divide in the Atlantic Slope and 
Mississippi River drainages. Given the number and distribution of 
sufficiently resilient populations, the green floater is likely to 
persist at multiple locations should a large-scale catastrophic event 
occur, and it is unlikely that a single catastrophic event would affect 
the entire species across its large range.
    The species' current representation (adaptive capacity) is evident 
through its use of two reproductive strategies (i.e., direct 
development of glochidia and use of host fish) and continued 
persistence over a large geographical range where the climatic and 
habitat conditions vary widely. While threats are currently acting on 
the species and many of those threats are expected to continue into the 
future (see below), we did not find that the green floater is currently 
in danger of extinction throughout all of its range. With 30 moderately 
or highly resilient populations in three physiographic regions, the 
current condition of the species provides for enough resiliency, 
redundancy, and representation such that it is not currently at risk of 
extinction.
    While the green floater is not currently in danger of extinction, 
under the Act we must determine whether the species is likely to become 
in danger of extinction within the foreseeable future throughout all of 
its range (i.e., whether the species warrants listing as threatened). 
In the foreseeable future, we anticipate the status of the green 
floater to continue to decline due to ongoing and increasing threats 
primarily related to increases in developed land use (Factor A). By the 
year 2060, 173 (97 percent) of green floater analysis units have a mean 
probability greater than 50 percent of being in low condition or 
extirpated, and only 6 analysis units (3 percent) are expected to be 
moderately or highly resilient. Green floater populations in the Mid-
Atlantic and South Atlantic regions that are currently the most highly 
resilient, especially those near growing metropolitan areas in North 
Carolina and Virginia, are expected to experience the greatest change. 
Loss of green floaters from these regions could impact the species' 
resilience and representation by severely decreasing its distribution 
in the central and southern parts of the range.
    Concurrent with the growing threat of loss and degradation of 
habitat caused by development, climate change (Factor A) is expected to 
further exacerbate the degradation of green floater habitat through 
increased water temperatures, changes and shifts in seasonal patterns 
of precipitation and runoff, and extreme weather events such as flood 
or droughts. These changes will make the habitat less hospitable to the 
species in the future by disrupting fundamental ecological processes 
upon which the species relies to meet basic needs such as food and 
oxygen. The effects of climate change on the environment are expected 
to disrupt and limit green floater reproduction as well. Because of 
biological factors inherent to the species' life history, the green 
floater has likely always occurred in smaller populations compared to 
other mussel species. However, in conjunction with the climate-related 
stressors such as floods and droughts, small population size puts the 
species at high risk of becoming extirpated from sites where the 
habitat is in poor condition, such as those conditions expected with 
increased development. The cumulative effect of these threats will be 
continued decreases in the green floater's resiliency, redundancy, and 
representation, which will negatively impact the species' viability 
into the future. Thus, after assessing the best available information, 
we conclude that the green floater is not currently in danger of 
extinction but is likely to become in danger of extinction within the 
foreseeable future throughout all of its range.

Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. The court in Center for Biological Diversity v. Everson, 435 
F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the provision of the 
Final Policy on Interpretation of the Phrase ``Significant Portion of 
Its Range'' in the Endangered Species Act's Definitions of ``Endangered 
Species'' and ``Threatened Species'' (hereafter ``Final Policy''; 79 FR 
37578, July 1, 2014) that provided if the Service determines that a 
species is threatened throughout all of its range, the Service will not 
analyze whether the species is endangered in a significant portion of 
its range.
    Therefore, we proceed to evaluating whether the species is 
endangered in a significant portion of its range--that is, whether 
there is any portion of the species' range for which both (1) the 
portion is significant; and (2) the species

[[Page 48309]]

is in danger of extinction in that portion. Depending on the case, it 
might be more efficient for us to address the ``significance'' question 
or the ``status'' question first. We can choose to address either 
question first. Regardless of which question we address first, if we 
reach a negative answer with respect to the first question that we 
address, we do not need to evaluate the other question for that portion 
of the species' range.
    Following the court's holding in Everson, we now consider whether 
there are any significant portions of the species' range where the 
species is in danger of extinction now (i.e., endangered). In 
undertaking this analysis for the green floater, we choose to address 
the status question first--we consider information pertaining to the 
geographic distribution of both the species and the threats that the 
species faces to identify any portions of the range where the species 
may be endangered.
    We evaluated the range of the green floater to determine if the 
species is in danger of extinction now in any portion of its range. The 
range of a species can theoretically be divided into portions in an 
infinite number of ways. We focused our analysis on portions of the 
species' range that may meet the definition of an endangered species. 
For the green floater, we considered whether the threats or their 
effects on the species are greater in any biologically meaningful 
portion of the species' range. We examined the following threats: 
excessive sedimentation, water quality degradation, alteration of water 
flows, the loss and fragmentation of habitat, invasive species, climate 
change, and factors inherent to the species, including cumulative 
effects.
    We identified one portion of the species' range that warranted 
further consideration as a potentially significant portion of the 
range. We identified the Great Lakes representation unit as a portion 
of the range for further analysis because no populations with moderate 
or high resiliency are located there. We analyzed whether the Great 
Lakes representation unit might be a biologically meaningful portion of 
the species' range where threats are impacting individuals differently 
from how they are affecting the species elsewhere in its range. 
Overall, we found that the loss and degradation of suitable habitats 
caused by the threats is pervasive across the green floater's range and 
we did not identify any threats that were concentrated in any of the 
five representation units analyzed or other portions of the range, 
including the Great Lakes. However, although we did not identify any 
particular threats that are concentrated in the Great Lakes 
representation unit, all six analysis units in that area have low 
resiliency. It is possible that the threats affecting the Great Lakes 
region could be having a disproportionate impact in that area compared 
to the rest of the species' range. Therefore, the species' response to 
those threats may be causing the species in that portion of the range 
to have a different biological status than its biological status 
rangewide.
    Because we concluded that the biological status of the green 
floater in the Great Lakes representation unit may differ from its 
biological status rangewide, we next evaluated whether or not this area 
is significant. Of the representation units that are currently occupied 
by green floaters, the Great Lakes unit is the smallest, covering the 
smallest land area and containing only 6 percent of the analysis units 
with confirmed occupancy rangewide. Although all representation units 
provide some contribution to the species' resiliency, representation, 
and redundancy, the Great Lakes representation unit encompasses only a 
small portion of the total range, the habitat there is not high quality 
relative to the other portions of the range, and the unit does not 
constitute high or unique value habitat for the species. Therefore, we 
concluded that the Great Lakes representation unit is not significant 
in the context of our ``significant portion of the range'' analysis.
    The Gulf representation unit, which is part of the green floater's 
larger historical range, has no resilient populations, but because it 
is completely extirpated, we cannot consider it as part of this 
analysis to be a significant portion of the range.
    While there may be some variation in the intensity of threats in 
the five representation units, we found that the loss and degradation 
of suitable habitats caused by the threats is pervasive across the 
species' range. Consequently, no portion of the species' range provides 
a basis for determining that the species is in danger of extinction in 
a significant portion of its range, and we determine that the species 
is likely to become in danger of extinction within the foreseeable 
future throughout all of its range. This does not conflict with the 
courts' holdings in Desert Survivors v. U.S. Department of the 
Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. Cal. 2018) and Center for 
Biological Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz. 
2017) because, in reaching this conclusion, we did not need to consider 
whether any portions are significant, and, therefore, we did not apply 
the aspects of the Final Policy, including the definition of 
``significant'' that those court decisions held to be invalid.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the green floater meets the Act's definition 
of a threatened species. Therefore, we propose to list the green 
floater as a threatened species in accordance with sections 3(20) and 
4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition as a listed 
species, planning and implementation of recovery actions, requirements 
for Federal protection, and prohibitions against certain practices. 
Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies, 
including the Service, and the prohibitions against certain activities 
are discussed, in part, below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The goal of this process is to restore listed 
species to a point where they are secure, self-sustaining, and 
functioning components of their ecosystems.
    The recovery planning process begins with development of a recovery 
outline made available to the public soon after a final listing 
determination. The recovery outline guides the immediate implementation 
of urgent recovery actions while a recovery plan is being developed. 
Recovery teams (composed of species experts, Federal and State 
agencies, nongovernmental organizations, and stakeholders) may be 
established to develop and implement recovery plans. The recovery 
planning process involves the identification of actions that are 
necessary to halt and reverse the species' decline by addressing the 
threats to its survival and recovery. The recovery plan identifies

[[Page 48310]]

recovery criteria for review of when a species may be ready for 
reclassification from endangered to threatened (``downlisting'') or 
removal from protected status (``delisting''), and methods for 
monitoring recovery progress. Recovery plans also establish a framework 
for agencies to coordinate their recovery efforts and provide estimates 
of the cost of implementing recovery tasks. Revisions of the plan may 
be done to address continuing or new threats to the species, as new 
substantive information becomes available. The recovery outline, draft 
recovery plan, final recovery plan, and any revisions will be available 
on our website as they are completed (https://www.fws.gov/program/endangered-species), or from our New York Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of native vegetation), research, captive 
propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    If this species is listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, State 
programs, and cost-share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the States of Alabama, Georgia, 
Maryland, New Jersey, New York, North Carolina, Pennsylvania, 
Tennessee, Virginia, and West Virginia would be eligible for Federal 
funds to implement management actions that promote the protection or 
recovery of the green floater. Information on our grant programs that 
are available to aid species recovery can be found at: https://www.fws.gov/service/financial-assistance.
    Although the green floater is only proposed for listing under the 
Act at this time, please let us know if you are interested in 
participating in recovery efforts for this species. Additionally, we 
invite you to submit any new information on this species whenever it 
becomes available and any information you may have for recovery 
planning purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7 of the Act is titled Interagency Cooperation and mandates 
all Federal action agencies to use their existing authorities to 
further the conservation purposes of the Act and to ensure that their 
actions are not likely to jeopardize the continued existence of listed 
species or adversely modify critical habitat. Regulations implementing 
section 7 are codified at 50 CFR part 402.
    Section 7(a)(2) states that each Federal action agency shall, in 
consultation with the Secretary, ensure that any action they authorize, 
fund, or carry out is not likely to jeopardize the continued existence 
of a listed species or result in the destruction or adverse 
modification of designated critical habitat. Each Federal agency shall 
review its action at the earliest possible time to determine whether it 
may affect listed species or critical habitat. If a determination is 
made that the action may affect listed species or critical habitat, 
formal consultation is required (50 CFR 402.14(a)), unless the Service 
concurs in writing that the action is not likely to adversely affect 
listed species or critical habitat. At the end of a formal 
consultation, the Service issues a biological opinion, containing its 
determination of whether the federal action is likely to result in 
jeopardy or adverse modification.
    In contrast, section 7(a)(4) of the Act requires Federal agencies 
to confer with the Service on any action which is likely to jeopardize 
the continued existence of any species proposed to be listed under the 
Act or result in the destruction or adverse modification of critical 
habitat proposed to be designated for such species. Although the 
conference procedures are required only when an action is likely to 
result in jeopardy or adverse modification, action agencies may 
voluntarily confer with the Service on actions that may affect species 
proposed for listing or critical habitat proposed to be designated. In 
the event that the subject species is listed or the relevant critical 
habitat is designated, a conference opinion may be adopted as a 
biological opinion and serve as compliance with section 7(a)(2).
    Examples of discretionary actions for the green floater that may be 
subject to conference and consultation procedures under section 7 are 
land management or other landscape-altering activities on Federal lands 
administered by the U.S. Fish and Wildlife Service, U.S. Forest 
Service, and National Park Service, as well as actions on State, 
Tribal, local, or private lands that require a Federal permit (such as 
a permit from the U.S. Army Corps of Engineers under section 404 of the 
Clean Water Act or a permit from the Service under section 10 of the 
Act) or that involve some other Federal action (such as funding from 
the Federal Highway Administration, Federal Aviation Administration, or 
the Federal Emergency Management Agency). Federal actions not affecting 
listed species or critical habitat--and actions on State, Tribal, 
local, or private lands that are not federally funded, authorized, or 
carried out by a Federal agency--do not require section 7 consultation. 
Examples of Federal agency actions that may require consultation for 
the green floater could include replacing and repairing bridges and 
culverts, road construction projects, and managing vegetation near 
streams. Federal agencies should coordinate with the local Service 
Field Office (see FOR FURTHER INFORMATION CONTACT, above) with any 
specific questions on section 7 consultation and conference 
requirements.
    It the policy of the Service, as published in the Federal Register 
on July 1, 1994 (59 FR 34272), to identify to the extent known at the 
time a species is listed, specific activities that will not be 
considered likely to result in violation of section 9 of the Act. To 
the extent possible, activities that will be considered likely to 
result in violation will also be identified in as specific a manner as 
possible. The intent of this policy is to increase public awareness of 
the effect of a proposed listing on proposed and ongoing activities 
within the range of the species proposed for listing. Although most of 
the prohibitions in section 9 of the Act apply to endangered species, 
sections 9(a)(1)(G) and 9(a)(2)(E) of the Act prohibit the violation of 
any regulation under section 4(d) pertaining to any threatened species 
of fish or wildlife, or threatened species of plant, respectively. 
Section 4(d) of the Act directs the Secretary to promulgate protective 
regulations that are necessary and advisable for the conservation of 
threatened species. As a result, we interpret our policy to mean that, 
when we list a species as a threatened species, to the extent possible, 
we identify activities that will or will not be considered likely to 
result in violation of the protective regulations under section 4(d) 
for that species.
    At this time, we are unable to identify specific activities that 
will or will not be considered likely to result in violation of section 
9 of the Act beyond what is already clear from the descriptions of 
prohibitions and exceptions established by protective regulation under 
section 4(d) of the Act.

[[Page 48311]]

    Questions regarding whether specific activities would constitute 
violation of section 9 of the Act should be directed to the New York 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

II. Proposed Rule Issued Under Section 4(d) of the Act

Background

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the Secretary shall issue such regulations as she deems 
necessary and advisable to provide for the conservation of species 
listed as threatened species. The U.S. Supreme Court has noted that 
statutory language similar to the language in section 4(d) of the Act 
authorizing the Secretary to take action that she ``deems necessary and 
advisable'' affords a large degree of deference to the agency (see 
Webster v. Doe, 486 U.S. 592, 600 (1988)). Conservation is defined in 
the Act to mean the use of all methods and procedures which are 
necessary to bring any endangered species or threatened species to the 
point at which the measures provided pursuant to the Act are no longer 
necessary. Additionally, the second sentence of section 4(d) of the Act 
states that the Secretary may by regulation prohibit with respect to 
any threatened species any act prohibited under section 9(a)(1), in the 
case of fish or wildlife, or section 9(a)(2), in the case of plants. 
Thus, the combination of the two sentences of section 4(d) provides the 
Secretary with wide latitude of discretion to select and promulgate 
appropriate regulations tailored to the specific conservation needs of 
the threatened species. The second sentence grants particularly broad 
discretion to the Service when adopting one or more of the prohibitions 
under section 9.
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, courts have upheld, as a valid 
exercise of agency authority, rules developed under section 4(d) that 
included limited prohibitions against takings (see Alsea Valley 
Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington 
Environmental Council v. National Marine Fisheries Service, 2002 WL 
511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do 
not address all of the threats a species faces (see State of Louisiana 
v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative 
history when the Act was initially enacted, ``once an animal is on the 
threatened list, the Secretary has an almost infinite number of options 
available to [her] with regard to the permitted activities for those 
species. [She] may, for example, permit taking, but not importation of 
such species, or [she] may choose to forbid both taking and importation 
but allow the transportation of such species'' (H.R. Rep. No. 412, 93rd 
Cong., 1st Sess. 1973).
    The provisions of this proposed 4(d) rule would promote 
conservation of the green floater by encouraging management of the 
habitat in ways that meet both stream management considerations and the 
conservation needs of the green floater. The provisions of this 
proposed rule are one of many tools that we would use to promote the 
conservation of the green floater. This proposed 4(d) rule would apply 
only if and when we make final the listing of the green floater as a 
threatened species.
    As mentioned above in Available Conservation Measures, section 
7(a)(2) of the Act requires Federal agencies, including the Service, to 
ensure that any action they authorize, fund, or carry out is not likely 
to jeopardize the continued existence of any endangered species or 
threatened species or result in the destruction or adverse modification 
of designated critical habitat of such species. In addition, even 
before the listing of any species or the designation of its critical 
habitat is finalized, section 7(a)(4) of the Act requires Federal 
agencies to confer with the Service on any agency action that is likely 
to jeopardize the continued existence of any species proposed to be 
listed under the Act or result in the destruction or adverse 
modification of critical habitat proposed to be designated for such 
species.
    These requirements are the same for a threatened species with a 
species-specific 4(d) rule. For example, as with an endangered species, 
if a Federal agency determines that an action is ``not likely to 
adversely affect'' a threatened species, it will require the Service's 
written concurrence (50 CFR 402.13(c)). Similarly, if a Federal agency 
determinates that an action is ``likely to adversely affect'' a 
threatened species, the action will require formal consultation with 
the Service and the formulation of a biological opinion (50 CFR 
402.14(a)).

Provisions of the Proposed 4(d) Rule

    Exercising the Secretary's authority under section 4(d) of the Act, 
we have developed a proposed rule that is designed to address the green 
floater's conservation needs. As discussed above in Summary of 
Biological Status and Threats, we have concluded that the green floater 
is likely to become in danger of extinction within the foreseeable 
future primarily due to habitat degradation caused by development and 
climate change. Section 4(d) requires the Secretary to issue such 
regulations as she deems necessary and advisable to provide for the 
conservation of each threatened species and authorizes the Secretary to 
include among those protective regulations any of the prohibitions that 
section 9(a)(1) of the Act prescribes for endangered species. We find 
that, if finalized, the protections, prohibitions, and exceptions in 
this proposed rule as a whole satisfy the requirement in section 4(d) 
of the Act to issue regulations deemed necessary and advisable to 
provide for the conservation of the green floater.
    The protective regulations we are proposing for green floater 
incorporate prohibitions from the Act's section 9(a)(1) to address the 
threats to the species. Section 9(a)(1) prohibits the following 
activities for endangered wildlife: importing or exporting; take; 
possession and other acts with unlawfully taken specimens; delivering, 
receiving, carrying, transporting, or shipping in interstate or foreign 
commerce in the course of commercial activity; or selling or offering 
for sale in interstate or foreign commerce. This protective regulation 
includes all of these prohibitions because the green floater is at risk 
of extinction within the foreseeable future and putting these 
prohibitions in place will help prevent further declines, preserve the 
species' remaining populations, slow its rate of decline, and decrease 
synergistic, negative effects from other ongoing or future threats.
    In particular, this proposed 4(d) rule would provide for the 
conservation of the green floater by prohibiting the following 
activities, unless they fall within specific exceptions or are 
otherwise authorized or permitted: importing or exporting; take; 
possession and other acts with unlawfully taken specimens; delivering, 
receiving, carrying, transporting, or shipping in interstate or foreign 
commerce in the course of commercial activity; or selling or offering 
for sale in interstate or foreign commerce.
    Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or to attempt to engage in any 
such conduct. Some of these provisions have been further defined in 
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by 
direct and indirect impacts, intentionally or incidentally.

[[Page 48312]]

Regulating take would help preserve the species' remaining populations, 
slow their rate of decline, and decrease synergistic, negative effects 
from other ongoing or future threats. Therefore, we propose to prohibit 
take of the green floater, except for take resulting from those actions 
and activities specifically excepted by the 4(d) rule.
    Exceptions to the prohibition on take would include all of the 
general exceptions to the prohibition against take of endangered 
wildlife, as set forth in 50 CFR 17.21 and certain other specific 
activities that we propose for exception, as described below.
    The proposed 4(d) rule would also provide for the conservation of 
the species by allowing exceptions that incentivize conservation 
actions or that, while they may have some minimal level of take of the 
green floater, are not expected to rise to the level that would have a 
negative impact (i.e., would have only de minimis impacts) on the 
species' conservation. The proposed exceptions to these prohibitions 
include streambank restoration projects and bridge and culvert 
replacement or removal projects (described below) that are expected to 
have negligible impacts to the green floater and its habitat.
    A major threat to the green floater is the degradation of stream 
habitat, particularly the erosion of banks, which leads to excessive 
sedimentation and poor water quality that can bury green floaters or 
deprive them of oxygen and nutrients. Stream bank restoration projects 
that stabilize and vegetate bare or incised stream banks help to reduce 
bank erosion and concomitant instream sedimentation and improve habitat 
conditions for the species. Streambank projects that use vegetation and 
bioengineering techniques (e.g., instream structures to redirect flows) 
rather than hardscapes (e.g., rock revetments and riprap) to stabilize 
the habitat create more suitable conditions for green floaters. 
Vegetated banks contribute to cooler water temperatures and provide 
habitat for other wildlife. When streambanks are stable, the streams 
are more resilient to damage caused by catastrophic events related to 
climate change like heavy precipitation and floods.
    Bridge and culvert replacement or removal projects can benefit the 
green floater by restoring water flow to stream segments that have 
become disconnected from the larger watershed or improving fish passage 
or both. In places where bridges and culverts have collapsed, become 
blocked, or in some other way prevent the flow of water, green floater 
glochidia are not able to disperse to other suitable habitat, and 
reproduction and gene flow become limited. Water flows that are too 
slow to hold adequate oxygen can cause green floaters to become 
stressed or die. Before conducting instream activities in places where 
green floaters may occur, surveys are required to determine if they are 
present. Survey plans must be submitted to and approved by the local 
Service field office before conducting surveys. All surveys must be 
conducted by a qualified and permitted biologist, as allowed by Section 
10(a)(1)(A) of the Act. If green floaters are found, the biologist must 
coordinate with their local Service field office regarding salvage and 
relocation of individuals to suitable habitat before project 
implementation. Should green floaters be relocated, monitoring must be 
conducted after project implementation. In most cases where water flows 
are very low, we would not expect conditions to support live green 
floaters. This step is meant to prevent unintended harm where 
individuals have survived and preserve potential adaptive traits to 
low-quality habitats.
    Despite these prohibitions regarding threatened species, we may 
under certain circumstances issue permits to carry out one or more 
otherwise prohibited activities, including those described above. The 
regulations that govern permits for threatened wildlife state that the 
Director may issue a permit authorizing any activity otherwise 
prohibited with regard to threatened species. These include permits 
issued for the following purposes: for scientific purposes, to enhance 
propagation or survival, for economic hardship, for zoological 
exhibition, for educational purposes, for incidental taking, or for 
special purposes consistent with the purposes of the Act (50 CFR 
17.32). The statute also contains certain exemptions from the 
prohibitions, which are found in sections 9 and 10 of the Act.
    We recognize the special and unique relationship with our State 
natural resource agency partners in contributing to conservation of 
listed species. State agencies often possess scientific data and 
valuable expertise on the status and distribution of endangered, 
threatened, and candidate species of wildlife and plants. State 
agencies, because of their authorities and their close working 
relationships with local governments and landowners, are in a unique 
position to assist us in implementing all aspects of the Act. In this 
regard, section 6 of the Act provides that we must cooperate to the 
maximum extent practicable with the States in carrying out programs 
authorized by the Act. Therefore, any qualified employee or agent of a 
State conservation agency that is a party to a cooperative agreement 
with us in accordance with section 6(c) of the Act, who is designated 
by his or her agency for such purposes, would be able to conduct 
activities designed to conserve green floater that may result in 
otherwise prohibited take without additional authorization.
    Nothing in this proposed 4(d) rule would change in any way the 
recovery planning provisions of section 4(f) of the Act, the 
consultation requirements under section 7 of the Act, or our ability to 
enter into partnerships for the management and protection of the green 
floater. However, interagency cooperation may be further streamlined 
through planned programmatic consultations for the species between us 
and other Federal agencies, where appropriate. We ask the public, 
particularly State agencies and other interested stakeholders that may 
be affected by the proposed 4(d) rule, to provide comments and 
suggestions regarding additional guidance and methods that we could 
provide or use, respectively, to streamline the implementation of this 
proposed 4(d) rule (see Information Requested, above).

III. Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures

[[Page 48313]]

that are necessary to bring an endangered or threatened species to the 
point at which the measures provided pursuant to the Act are no longer 
necessary. Such methods and procedures include, but are not limited to, 
all activities associated with scientific resources management such as 
research, census, law enforcement, habitat acquisition and maintenance, 
propagation, live trapping, and transplantation, and, in the 
extraordinary case where population pressures within a given ecosystem 
cannot be otherwise relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that each Federal agency ensure, in 
consultation with the Service, that any action they authorize, fund, or 
carry out is not likely to result in the destruction or adverse 
modification of critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation also 
does not allow the government or public to access private lands. Such 
designation does not require implementation of restoration, recovery, 
or enhancement measures by non-Federal landowners. Rather, designation 
requires that, where a landowner requests Federal agency funding or 
authorization for an action that may affect an area designated as 
critical habitat, the Federal agency consult with the Service under 
section 7(a)(2) of the Act. If the action may affect the listed species 
itself (such as for occupied critical habitat), the Federal agency 
would have already been required to consult with the Service even 
absent the designation because of the requirement to ensure that the 
action is not likely to jeopardize the continued existence of the 
species. Even if the Service were to conclude after consultation that 
the proposed activity is likely to result in destruction or adverse 
modification of the critical habitat, the Federal action agency and the 
landowner are not required to abandon the proposed activity, or to 
restore or recover the species; instead, they must implement 
``reasonable and prudent alternatives'' to avoid destruction or adverse 
modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat).
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information from the SSA report and information developed during the 
listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; the recovery plan for the 
species; articles in peer-reviewed journals; conservation plans 
developed by States and counties; scientific status surveys and 
studies; biological assessments; other unpublished materials; or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act; (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species; and (3) the prohibitions found in the 4(d) rule. Federally 
funded or permitted projects affecting listed species outside their 
designated critical habitat areas may still result in jeopardy findings 
in some cases. These protections and conservation tools will continue 
to contribute to recovery of the species. Similarly, critical habitat 
designations made on the basis of the best available information at the 
time of designation will not control the direction and substance of 
future recovery plans, habitat conservation plans (HCPs), or other 
species conservation planning efforts if new information available at 
the time of those planning efforts calls for a different outcome.

Physical or Biological Features Essential to the Conservation of the 
Species

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas we will designate as 
critical habitat from within the geographical area occupied by the 
species at the time of listing, we consider the physical or biological 
features that are essential to the conservation of the species and 
which may require special management considerations or protection. The 
regulations at 50 CFR 424.02 define ``physical or biological features 
essential to the conservation of the species'' as the features that 
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water 
characteristics, soil type, geological features, sites, prey, 
vegetation, symbiotic species, or other features. A feature may be a 
single habitat characteristic or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity. For example, 
physical features essential to the conservation of the species might 
include gravel of a particular size required for spawning, alkaline 
soil for

[[Page 48314]]

seed germination, protective cover for migration, or susceptibility to 
flooding or fire that maintains necessary early-successional habitat 
characteristics. Biological features might include prey species, forage 
grasses, specific kinds or ages of trees for roosting or nesting, 
symbiotic fungi, or absence of a particular level of nonnative species 
consistent with conservation needs of the listed species. The features 
may also be combinations of habitat characteristics and may encompass 
the relationship between characteristics or the necessary amount of a 
characteristic essential to support the life history of the species.
    In considering whether features are essential to the conservation 
of the species, we may consider an appropriate quality, quantity, and 
spatial and temporal arrangement of habitat characteristics in the 
context of the life-history needs, condition, and status of the 
species. These characteristics 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, or 
rearing (or development) of offspring; and habitats that are protected 
from disturbance.
    As described above under Summary of Biological Status and Threats, 
the green floater occurs in small streams to large rivers with stable 
flow regimes and suitable substrates. When they occur in larger streams 
and rivers, they are found in quieter pools and eddies, away from 
strong currents. Their mobility is limited, and fast flowing currents 
or high-water events can cause them to lose their foothold and be 
washed downstream.
    The primary habitat elements that influence resiliency of the green 
floater include water flow, streambed substrate, water quality, water 
temperature, and conditions that support their host fish. All life 
stages of green floaters require aquatic habitats with stable sand and 
gravel substrates, a sufficient amount of clean water with slow to 
moderate flow and refugia (i.e., eddies and ponded areas in streams), 
and sufficient food resources (i.e., microscopic particulates from 
plankton, bacteria, detritus, or dissolved organic matter). Based on 
what is known from studying surrogate species, glochidia require 
temperatures between 59 and 68 [deg]F (15 and 20 [deg]C) for release, 
and juvenile mussels cannot survive temperatures above 86 [deg]F (30 
[deg]C). Green floaters have the ability reproduce by directly 
metamorphosing glochidia without requiring an intermediate fish host, 
but the use of fish hosts is necessary for upstream dispersal of the 
species. These features are also described above as species needs under 
Summary of Biological Status and Threats, and a full description is 
available in the SSA report (Service 2021, pp. 18-35).

Summary of Essential Physical or Biological Features

    We derive the specific physical or biological features essential to 
the conservation of green floater from studies of the species' habitat, 
ecology, and life history as described below. Additional information 
can be found in the SSA report (Service 2021, entire; available on 
https://www.regulations.gov under Docket No. FWS-R5-ES-2023-0012). We 
have determined that the following physical or biological features are 
essential to the conservation of green floater:
    (1) Flows adequate to maintain both benthic habitats and stream 
connectivity, allow glochidia and juveniles to become established in 
their habitats, allow the exchange of nutrients and oxygen to mussels, 
and maintain food availability and spawning habitat for host fishes. 
The characteristics of such flows include a stable, not flashy, flow 
regime, with slow to moderate currents to provide refugia during 
periods of higher flows.
    (2) Suitable sand and gravel substrates and connected instream 
habitats characterized by stable stream channels and banks and by 
minimal sedimentation and erosion.
    (3) Sufficient amount of food resources, including microscopic 
particulate matter (plankton, bacteria, detritus, or dissolved organic 
matter).
    (4) Water and sediment quality necessary to sustain natural 
physiological processes for normal behavior, growth, and viability of 
all life stages, including, but not limited to, those general to other 
mussel species:
     Adequate dissolved oxygen;
     Low salinity;
     Low temperature (generally below 86 [deg]F (30 [deg]C));
     Low ammonia (generally below 0.5 parts per million total 
ammonia-nitrogen), PAHs, PCBs, and heavy metal concentrations; and
     No excessive total suspended solids and other pollutants, 
including contaminants of emerging concern.
    (5) The presence and abundance of fish hosts necessary for 
recruitment of the green floater (including, but not limited to, 
mottled sculpin (Cottus bairdii), rock bass (Ambloplites rupestris), 
central stoneroller (Campostoma anomalum), blacknose dace (Rhinichthys 
atratulus), and margined madtom (Noturus insignis)).

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and which may require special management considerations or 
protection. The features essential to the conservation of the green 
floater may require special management considerations or protection to 
reduce the following threats: (1) land-disturbing activities associated 
with development (i.e., residential/commercial, energy, and 
transportation development); (2) agriculture and forestry activities 
that do not implement best management practices to minimize soil 
erosion and increased overland flow and (3) barriers that fragment 
streams and rivers (e.g., dams and improperly installed or maintained 
culverts); (4) contaminants from point and non-point sources (e.g., 
spills, industrial discharges, municipal effluents, agricultural 
runoff, and atmospheric deposition from precipitation); (5) impacts of 
climate change; and (6) potential effects of nonnative species.
    Special management considerations or protection may be required 
within critical habitat areas to address these threats. Management 
activities that could ameliorate these threats include, but are not 
limited to, protecting and restoring streams and streambank habitats, 
including stable sand and gravel substrates; maintaining and restoring 
slow to moderate, not flashy, water flows in streams that may support 
the species; maintaining and restoring connectivity between streams; 
reducing or removing contaminants from waterways and sediments; 
coordinating with landowners and local managers to implement best 
management practices during agriculture and forestry activities; and 
minimizing the likelihood that agriculture or energy development 
projects will impact the quality or quantity of suitable habitat.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b), we 
review available information pertaining to the habitat requirements of 
the species and identify specific areas within the geographical

[[Page 48315]]

area occupied by the species at the time of listing and any specific 
areas outside the geographical area occupied by the species to be 
considered for designation as critical habitat. We are not currently 
proposing to designate any areas outside the geographical area occupied 
by the species because we have not identified any unoccupied areas that 
meet the definition of critical habitat, and we have determined that 
the occupied areas are sufficient to conserve the species.
    We anticipate that recovery will require maintaining and, where 
necessary, improving habitat and habitat connectivity to ensure the 
long-term viability of the green floater. We have determined that the 
areas containing one or more of the essential physical or biological 
features and occupied by the green floater are sufficient to maintain 
the species' resiliency, redundancy, and representation and to conserve 
the species. Therefore, we are not currently proposing to designate any 
areas outside the geographical area occupied by the species.
    In summary, for areas within the geographic area occupied by the 
species at the time of listing, we delineated critical habitat stream 
segment boundaries using the following criteria: Evaluate suitability 
of streams within the hydrologic units occupied at the time of listing 
and delineate those areas that contain some or all of the physical or 
biological features necessary to support life-history functions 
essential to the conservation of the species. All stream segments 
proposed for designation contain one or more of the physical or 
biological features and support multiple life-history processes.
    From the complete list of occupied watersheds (see Service 2021, 
appendix C), which were based on HUC 10 watersheds, we identified a 
subset of watersheds that provide the most highly suitable green 
floater habitat and present the best opportunities for the species' 
recovery. This subset includes all the analysis units classified as 
being in medium or high condition according to the SSA report (version 
1.0; Service 2021, pp. 61-76). This subset also includes analysis units 
classified or modeled as being in low condition that are between or 
adjacent to units in medium or high condition. These low condition 
areas represent areas where green floaters are expected to be able to 
increase in numbers with the protections afforded by the Act, 
potentially increasing the future resiliency of the species. We then 
also identified analysis units classified or modeled as being in low 
condition in the SSA report, but that are disconnected from watersheds 
determined to be in better condition, that present opportunities to 
increase the species' future resiliency, redundancy, and 
representation.
    The critical habitat designation does not include all rivers and 
streams currently occupied by the species, nor all rivers and streams 
known to have been occupied by the species historically. Instead, it 
includes only the occupied rivers and streams within the current range 
that we determined have the physical or biological features that are 
essential to the conservation of these species and meet the definition 
of critical habitat. These rivers and streams contain populations most 
likely to be self-sustaining over time and populations that will allow 
for the maintenance and expansion of the species. Adjacent units and 
disconnected units in low condition that are not being proposed as 
critical habitat have been omitted because they are located near highly 
developed areas or have very low-quality habitat that is unlikely to be 
restored to a condition suitable to support a healthy population of 
green floaters. Analysis units where green floater occupancy has not 
been confirmed since before 1999 have also been omitted because they 
are not considered currently occupied. The time period between 1999 and 
2019 was selected to represent recent occurrences because this period 
covers approximately three generations of green floaters and is notable 
for the relative increase in mussel survey effort. We are not 
designating any areas outside the areas confirmed occupied by the green 
floater during this time period because we determined that these areas 
are sufficient to conserve the species.
    In the selected analysis units, we identified the coordinates of 
the occupied rivers and streams and then refined the length of each 
segment by matching the starting and ending points to locations of 
known green floater occurrences collected between 1999 and 2019. We 
then expanded the area upstream to the next named tributary and 
downstream to the next confluence, stream intersection, or barrier. We 
assumed that where green floaters have been observed or collected, the 
entire stream is occupied upstream to the next named tributary and 
downstream to the next confluence, stream intersection, or barrier. 
Thus, we have interpreted ``occupied'' in a conservative manner and 
have assumed green floaters to be present in all stream segments with 
similar conditions that are physically accessible to the ones in which 
they have been documented.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including developed areas such as lands covered 
by buildings, pavement, and other structures because such lands lack 
the physical or biological features necessary for green floaters. The 
scale of the maps we prepared under the parameters for publication 
within the Code of Federal Regulations may not reflect the exclusion of 
such developed lands. Any such lands inadvertently left inside critical 
habitat boundaries shown on the maps of this proposed rule have been 
excluded by text in the proposed rule and are not proposed for 
designation as critical habitat. Therefore, if the critical habitat is 
finalized as proposed, a Federal action involving these lands would not 
trigger section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification unless the specific action would 
affect the physical or biological features in the adjacent critical 
habitat.
    We propose to designate as critical habitat stream and river 
segments that we have determined are occupied at the time of listing 
(i.e., currently occupied) and that contain one or more of the physical 
or biological features that are essential to support life-history 
processes of the species.
    Stream and river segments are proposed for designation based on one 
or more of the physical or biological features being present to support 
the green floater's life-history processes. All of the segments contain 
one or more of the physical or biological features necessary to support 
the green floater's particular use of that habitat. Because all of the 
proposed segments are currently occupied by the species, they are 
likely to contain all of the physical or biological features necessary 
to support the species to some degree, but the quality of those 
physical or biological features may not be in optimal condition. For 
example, a unit may have some sand and gravel substrates but the 
suitability of these substrates for green floaters may be improved if 
sources of sedimentation and erosion were minimized.
    The proposed critical habitat designation is defined by the map or 
maps, as modified by any accompanying regulatory text, presented at the 
end of this document under Proposed Regulation Promulgation. We include 
more detailed information on the boundaries of the critical habitat 
designation in the preamble of this document. We will make the 
coordinates or plot points or both on which each map is based available 
to the public on https://www.regulations.gov at Docket No. FWS-R5-ES-
2023-0012 and on our

[[Page 48316]]

internet site at https://www.fws.gov/office/new-york-ecological-services-field.

Proposed Critical Habitat Designation

    We are proposing to designate approximately 2,553 river km (1,586 
river mi) in eight units as critical habitat for the green floater. The 
critical habitat areas we describe below constitute our current best 
assessment of areas that meet the definition of critical habitat for 
green floater. The eight areas we propose as critical habitat are the 
following watersheds: (1) Southwestern Lake Ontario, (2) Susquehanna, 
(3) Potomac, (4) Kanawha, (5) Lower Chesapeake, (6) Chowan-Roanoke, (7) 
Neuse-Pamlico, and (8) Upper Tennessee. Table 2 shows the proposed 
critical habitat units and subunits and the approximate area of each.

     Table 2--Proposed Critical Habitat Units for the Green Floater
            [All proposed units are occupied by the species]
------------------------------------------------------------------------
                                Adjacent riparian
    Critical habitat unit       land ownership by   Approximate river km
                                      type                  (mi)
------------------------------------------------------------------------
Unit 1: Southwestern Lake
 Ontario Watershed (NY):
    1. Genesee River........  Private.............           55.6 (34.6)
Unit 2: Susquehanna
 Watershed (NY and PA):
    2a. Susquehanna River...  Public (State)......            10.3 (6.4)
                              Private.............         335.5 (208.5)
    2b. Fivemile Creek......  Private.............            13.9 (8.7)
    2c. Cohocton River......  Public (State,                   6.6 (4.1)
                               Local).                       41.1 (25.6)
                              Private.............
    2d. Tioga River.........  Public (State)......             0.6 (0.4)
                              Private.............            15.1 (9.4)
    2e. Chemung River.......  Public (State,                  11.0 (6.8)
                               Local).                       62.0 (38.5)
                              Private.............
    2f. Catatonk Creek......  Private.............           34.2 (21.2)
    2g. Tunkhannock Creek...  Private.............             4.5 (2.8)
    2h. Tioughnioga River...  Public (Local)......             0.2 (0.1)
                              Private.............          59.2 (36.8 )
    2i. Chenango River......  Public (State)......             6.3 (3.9)
                              Private.............          134.7 (83.7)
    2j. Unadilla River......  Private.............           93.7 (58.2)
    2k. Upper Susquehanna     Private.............           99.3 (61.7)
     River.
    2l. Pine Creek..........  Public (State)......           39.1 (24.3)
                              Private.............           76.4 (47.5)
    2m. Marsh Creek.........  Public (State)......             1.7 (1.1)
                              Private.............             2.7 (1.7)
    2n. West Branch           Private.............           45.8 (28.5)
     Susquehanna.
    2o. Buffalo Creek.......  Public (Local)......             7.4 (4.6)
                              Private.............             5.8 (3.5)
    2p. Penns Creek.........  Public (Local)......             0.3 (0.2)
                              Private.............           35.2 (21.9)
Unit 3: Potomac Watershed
 (PA, MD, and WV):
    3a. Potomac River.......  Public (Federal,               52.7 (32.7)
                               State).                       27.6 (17.1)
                              Private.............
    3b. Patterson Creek.....  Private.............           22.3 (13.9)
    3c. Sideling Hill Creek.  Public (State)......           16.5 (10.3)
                              Private.............           34.8 (21.6)
    3d. Cacapon River.......  Private.............          123.0 (76.5)
    3e. Licking Creek.......  Private.............             6.7 (4.1)
    3f. Back Creek..........  Private.............           46.8 (29.1)
Unit 4: Kanawha Watershed
 (NC, VA, and WV):
    4a. Greenbrier..........  Public (Federal,             258.0 (160.3)
                               State).                         1.7 (1.1)
                              Private.............
    4b. Deer Creek..........  Public (Federal,               17.4 (10.8)
                               State).
    4c. Knapp Creek.........  Public (Federal,               30.3 (18.8)
                               State, Local).                  1.9 (1.2)
                              Private.............
    4d. New River...........  Public (State)......             6.5 (4.0)
                              Private.............             9.0 (5.6)
    4e. Little River          Private.............           17.9 (11.1)
     (Kanawha).
    4f. South Fork New River  Private.............          146.7 (90.5)
Unit 5: Lower Chesapeake
 Watershed (VA):
    5a. Tye River...........  Public (Federal)....             0.6 (0.4)
                              Private.............           53.5 (33.2)
    5b. Pedlar River........  Private.............             8.6 (5.4)
Unit 6: Chowan-Roanoke
 Watershed (NC and VA):
    6a. Dan River...........  Public (State,                   2.5 (1.6)
                               Local).                     218.8 (135.9)
                              Private.............
    6b. South Mayo..........  Public (State)......             1.8 (1.1)
                              Private.............             2.8 (1.8)
    6c. North Mayo..........  Public (State)......             2.5 (1.6)
                              Private.............             3.4 (2.1)

[[Page 48317]]

 
    6d. Mayo River..........  Public (State)......            15.9 (9.9)
                              Private.............             9.2 (5.7)
    6e. Meherrin River......  Private.............          106.1 (65.9)
Unit 7: Neuse-Pamlico
 Watershed (NC):
    7a. Neuse River.........  Public (State,                  16.0 (9.9)
                               Local).                        10.8 (6.7)
                              Private.............
    7b. Eno River...........  Public (Federal,               33.1 (20.6)
                               State, Local).                21.3 (13.2)
                              Private.............
    7c. Flat River..........  Public (Federal,               17.6 (10.9)
                               State, Local).                 13.3 (8.3)
                              Private.............
    7d. Little River (Neuse-  Public (State,                   7.4 (4.6)
     Pamlico).                 Local).                         1.2 (0.8)
                              Private.............
Unit 8: Upper Tennessee
 Watershed (NC):
    8. Watauga River........  Private.............            16.0 (9.9)
        Total...............  ....................     2,552.6 (1,586.1)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

    We present brief descriptions of all proposed units, and reasons 
why they meet the definition of critical habitat for the green floater, 
below. Each of these proposed units and subunits are occupied by the 
species and currently support the breeding, feeding, and sheltering 
needs for the species.

Unit 1: Southwestern Lake Ontario Watershed

    Unit 1 consists of 55.6 stream km (34.6 mi) of the Genesee River in 
the Southwestern Lake Ontario watershed in Livingston County, New York, 
from New York Route 36 downstream to the river's confluence with White 
Creek. It includes the river channel up to the ordinary high water 
mark. Riparian lands that border the unit are all (100 percent) 
privately owned. This unit contains one or more of the physical or 
biological features essential to the species' conservation.
    Special management considerations or protection may be required 
within Unit 1 to address excess nutrients, sediment, and pollutants 
that enter the river as well as recreation and management activities. 
Sources of these types of pollution are wastewater, agricultural 
runoff, and urban stormwater runoff that could come from the nearby 
towns of Avon, Geneseo, and Mount Morris adjacent to the river or towns 
located upstream. The Mount Morris Lake and Dam and Genesee River Gorge 
are approximately 2.4 km (1.5 mi) upstream of Unit 1. Management 
activities, such as debris and sediment removal at the dam and lake, as 
well as water releases from the dam, have the potential to impact the 
water quality and quantity in Unit 1.

Unit 2: Susquehanna Watershed

    Unit 2 consists of 16 subunits of the Susquehanna watershed in New 
York (Broome, Chemung, Chenango, Cortland, Delaware, Herkimer, Madison, 
Otsego, Steuben, and Tioga Counties) and Pennsylvania (Bradford, 
Clinton, Columbia, Dauphin, Lackawanna, Luzerne, Lycoming, Montour, 
Northumberland, Perry, Snyder, Tioga, Union, and Wyoming Counties). 
Each of the subunits in this unit contain one or more of the physical 
or biological features essential to the species' conservation.
    Special management considerations or protection may be required 
within Unit 2 to address excess nutrients, sediment, and pollutants 
that enter the river, construction projects, and conservation 
activities. Several major urban areas are encompassed by Unit 2, 
including Scranton, Pennsylvania, and Binghamton, New York, in addition 
to numerous small towns adjacent to rivers and streams that have the 
potential to influence the water quality and quantity in the unit. 
Future construction projects to repair or replace bridges, roads, 
culverts, and embankments; to remove debris; and to repair or remove 
hazard dams have the potential to impact habitat in this unit as well.
    In New York, the U.S. Department of Agriculture's Natural Resources 
Conservation Service supports several programs designed to restore and 
conserve rivers and streams. Future restoration plans include 
construction of stream crossings, planting of riparian buffers, 
installation of streambank and shoreline protection, channel bed 
stabilization, and clearing and snagging woody debris from streams. 
During construction, these restoration activities may result in short-
term impacts to water quality but are expected to benefit the green 
floater in the long term.
    The subunits of Unit 2 overlap with numerous public lands for which 
existing protections and management will likely maintain habitat 
conditions that support the green floater (water quality, water 
quantity/flow, instream substrate, and connectivity) into the future. 
In Pennsylvania, these public lands include State-owned forests and 
natural areas (e.g., Tioga and Tiadaghton State Forests, Pine Gorge 
State Natural Area, Algerine Wild Area) and State Parks (e.g., Colton 
Point and L. Harrison State Parks). In New York, public lands include 
the Chenango Valley State Park and a series of easements associated 
with the Federal Wetlands Reserve Program. Each of these land types 
ensure some protection from development and land-disturbing activities. 
Activities on Wetlands Reserve Program easements that would affect 
vegetation or hydrology, or would alter wildlife patterns, would first 
require a compatible use permit, and only activities consistent with 
the long-term protection and enhancement of the easement area are 
authorized.
    Subunit 2a is a total length of 345.8 km (214.9 mi) of the 
Susquehanna River in Tioga County, New York, and Columbia, Montour, and 
Northumberland Counties, Pennsylvania. This subunit includes the river 
channel up to the ordinary high water mark. The upper section of 
subunit 2a flows from the entrance of Owego Creek to Harvey's Creek. 
The lower section starts at Nescopeck Creek and flows to the confluence 
of Fishing Creek. The land adjacent to the Susquehanna River in this 
subunit is primarily private (97 percent), although

[[Page 48318]]

some land along the river is owned by the State of Pennsylvania (3 
percent).
    Subunit 2b consists of a 13.9-km (8.7-mi) segment of Fivemile Creek 
in Steuben County, New York. This subunit includes the river channel up 
to the ordinary high water mark. It starts at the entrance of an 
unnamed tributary and ends at the confluence of Fivemile Creek and the 
Cohocton River. Riparian lands that border the subunit are all (100 
percent) privately owned.
    Subunit 2c consists of a 47.6-km (29.6-mi) segment of the Cohocton 
River in Steuben County, New York. This subunit includes the river 
channel up to the ordinary high water mark. It starts at the confluence 
of Cotton Creek and Tenmile Creek and ends at the confluence of the 
Tioga River and Middle Cohocton Creek. The land adjacent to the 
Cohocton River in this subunit is primarily private (86 percent), 
although some land along the river is owned by the State of New York (6 
percent) and local governments (8 percent).
    Subunit 2d consists of a 15.7-km (9.7-mi) segment of the Canisteo 
and Tioga Rivers in Steuben County, New York. This subunit includes the 
river channel up to the ordinary high water mark. It starts at the 
confluence of Tuscarora Creek at the Canisteo River and ends at the 
confluence of the Tioga River and Chemung River. The land adjacent to 
the Canisteo and Tioga Rivers in this subunit is primarily private (96 
percent), although some land along the river is owned by the State (4 
percent).
    Subunit 2e consists of a 73.0-km (45.4-mi) segment of the Chemung 
River in Steuben and Chemung Counties, New York, and Bradford County, 
Pennsylvania. This subunit includes the river channel up to the 
ordinary high water mark. It starts at the confluence of the Tioga 
River with the Cohocton River and ends at the confluence of the Chemung 
River and the Susquehanna River. The land adjacent to the Tioga River 
in this subunit is primarily private (85 percent), although some land 
along the river is owned by the State (9 percent) and local governments 
(6 percent).
    Subunit 2f consists of a 34.2-km (21.2-mi) segment of Catatonk 
Creek in Tioga County, New York, and Bradford County, Pennsylvania. 
This subunit includes the river channel up to the ordinary high water 
mark. It starts at the confluence of Miller Creek and Michigan Creek 
and ends at the confluence of Fishing Creek and West Branch Owego 
Creek. Riparian lands that border the subunit are all (100 percent) 
privately owned.
    Subunit 2g consists of a 4.5-km (2.8-mi) segment of Tunkhannock 
Creek in Bradford, Wyoming, Lackawanna, and Luzerne Counties, 
Pennsylvania. This subunit includes the river channel up to the 
ordinary high water mark. It starts at the entrance of Billings Mill 
Brook and ends at the confluence of Tunkhannock Creek and the 
Susquehanna River. Riparian lands that border the subunit are all (100 
percent) privately owned.
    Subunit 2h consists of a 59.4-km (36.9-mi) segment of the 
Tioughnioga River in Broome and Cortland Counties, New York. This 
subunit includes the river channel up to the ordinary high water mark. 
It starts at the confluence of the East Branch Tioughnioga and West 
Branch Tioughnioga Rivers and ends at the confluence of the Tioughnioga 
River and the Chenango River. The land adjacent to the Tioughnioga 
River in this subunit is primarily private (nearly 100 percent), 
although some land along the river is owned by local governments (less 
than 1 percent).
    Subunit 2i consists of a 140.9-km (87.6-mi) segment of the Chenango 
River in Broome, Chenango, and Madison Counties, New York. This subunit 
includes the river channel up to the ordinary high water mark. It 
starts in the Sangerfield River downstream of Ninemile Swamp and ends 
at the confluence of the Chenango River and the Susquehanna River. The 
land adjacent to the Chenango River in this subunit is primarily 
private (96 percent), although some land along the river is owned by 
the State of New York (4 percent).
    Subunit 2j consists of a 93.7-km (58.2-mi) segment of the Unadilla 
River in Chenango, Herkimer, and Otsego Counties, New York. This 
subunit includes the river channel up to the ordinary high water mark. 
It starts at the entrance of North Winfield Creek and ends at the 
confluence of the Unadilla River and the Susquehanna River. Riparian 
lands that border the subunit are all (100 percent) privately owned.
    Subunit 2k consists of a 99.3-km (61.7-mi) segment of the Upper 
Susquehanna River in Broome, Chenango, Delaware, and Otsego Counties, 
New York, and Susquehanna County, Pennsylvania. This subunit includes 
the river channel up to the ordinary high water mark. It starts at the 
entrance of Mill Creek and ends at the entrance of Starrucca Creek. 
Riparian lands that border the subunit are all (100 percent) privately 
owned.
    Subunit 2l consists of a 115.5-km (71.8-mi) segment of Pine Creek 
in Clinton, Lycoming, and Tioga Counties, Pennsylvania. This subunit 
includes the river channel up to the ordinary high water mark. It 
starts at the entrance of Phoenix Run and ends at the confluence of 
Pine Creek and the Susquehanna River. The land adjacent to Pine Creek 
in this subunit is owned by private entities (66 percent) and the State 
of Pennsylvania (34 percent).
    Subunit 2m consists of a 4.4-km (2.7-mi) segment of Marsh Creek in 
Tioga County, New York. This subunit includes the river channel up to 
the ordinary high water mark. It starts at the entrance of Asaph Run 
and ends at the confluence of Marsh Creek and Pine Creek. The land 
adjacent to Marsh Creek in this subunit is owned by private entities 
(62 percent) and the State of Pennsylvania (38 percent).
    Subunit 2n consists of a 45.8-km (28.5-mi) segment of the West 
Branch Susquehanna River in Lycoming, Northumberland, and Union 
Counties, Pennsylvania. This subunit includes the river channel up to 
the ordinary high water mark. It starts at the entrance of Muncy Creek 
and ends at the confluence of the West Branch Susquehanna River and the 
Susquehanna River. Riparian lands that border the subunit are all (100 
percent) privately owned.
    Subunit 2o consists of a 13.2-km (8.2-mi) segment of Buffalo Creek 
in Union County, Pennsylvania. This subunit includes the river channel 
up to the ordinary high water mark. It starts at the intersection of 
Johnson Mill Road and Buffalo Creek and ends at the confluence of 
Buffalo Creek and the West Branch Susquehanna River. The last segment 
of Buffalo Creek is also known as Mill Race. The land adjacent to 
Buffalo Creek in this subunit is owned by local governments (56 
percent), nongovernmental organizations (5 percent), and private 
entities (39 percent).
    Subunit 2p consists of a 35.5-km (22.1-mi) segment of Penns Creek 
in Dauphin, Northumberland, Perry, Snyder, and Union Counties, 
Pennsylvania. This subunit includes the river channel up to the 
ordinary high water mark. It starts at the entrance of an unnamed 
tributary near the intersection of Penns Creek Road and Wildwood Road 
and ends at the confluence of Penns Creek and the Susquehanna River. 
The land adjacent to Penns Creek in this subunit is primarily private 
(99 percent), although some land along the creek is owned by local 
governments (1 percent).

Unit 3: Potomac Watershed

    Unit 3 consists of six subunits of the Potomac watershed in 
Pennsylvania (Bedford and Fulton Counties),

[[Page 48319]]

Maryland (Allegany and Washington Counties), and West Virginia 
(Berkeley, Hampshire, Hardy, Mineral, and Morgan Counties). Each of the 
subunits in this unit contain one or more of the physical or biological 
features essential to the species' conservation.
    Special management considerations or protection may be required 
within Unit 3 to address excess nutrients, sediment, and pollutants 
that enter the river, as well as maintenance and construction projects. 
Sources of these types of pollution are wastewater, agricultural 
runoff, and urban stormwater runoff that come from Cumberland, 
Maryland; Martinsburg, West Virginia; and numerous small towns adjacent 
to rivers and streams that influence the water quality and quantity in 
the unit. The Potomac River is adjacent to the Chesapeake and Ohio 
(C&O) Canal National Historical Park, a federally owned property 
managed by the National Park Service. In support of a recent project to 
stabilize a retaining wall within the banks of the Potomac River, 
National Park Service staff surveyed for freshwater mussels and 
observed 10 green floaters. Anticipated maintenance projects in the 
National Historical Park include dredging of sediment and repairs of 
utility lines, walls, and boat ramps along the C&O Canal. Future 
construction projects throughout the watershed to repair or remove 
hazard dams and canals, dredge sections of the river, install 
pipelines, and replace bridges have the potential to impact water 
quality and quantity in this unit as well.
    The subunits of Unit 3 overlap with public lands for which 
protections and management will likely enable habitat conditions that 
support the green floater to remain high into the future. In Maryland, 
overlapping public lands include State-owned forests and parks (e.g., 
Green Ridge State Forest and Fort Frederick State Park) and the C&O 
Canal National Historical Park. Beginning in Pennsylvania and 
continuing into Maryland, the forests and streams of Sideling Hill 
Creek are maintained as a nature preserve by The Nature Conservancy. 
These land types ensure some protection from development and land-
disturbing activities.
    Subunit 3a consists of an 80.3-km (49.9-mi) segment of the Potomac 
River in Washington County, Maryland, and Berkeley County, West 
Virginia. This subunit includes the river channel up to the ordinary 
high water mark. It starts at the entrance of the Cacapon River and 
ends at the entrance of Downey Branch. The land adjacent to the Potomac 
River in this subunit is owned by the Federal (62 percent) and State (4 
percent) governments and private entities (34 percent).
    Subunit 3b consists of a 22.3-km (13.9-mi) segment of Patterson 
Creek in Mineral County, West Virginia. This subunit includes the river 
channel up to the ordinary high water mark. It starts at the entrance 
of Cabin Run and ends at the confluence of Patterson Creek and the 
Potomac River. Riparian lands that border the subunit are all (100 
percent) privately owned.
    Subunit 3c consists of a 51.3-km (31.9-mi) segment of Sideling Hill 
Creek in Allegany County, Maryland, and Bedford and Fulton Counties, 
Pennsylvania. This subunit includes the river channel up to the 
ordinary high water mark. It starts at the Rice Road crossing of West 
Branch Sideling Hill Creek and ends at the confluence of Sideling Hill 
Creek and the Potomac River. The land adjacent to Sideling Hill Creek 
in this subunit is owned by State governments (32 percent), 
nongovernmental organizations (7 percent), and private entities (61 
percent).
    Subunit 3d consists of a 123.0-km (76.5-mi) segment of the Cacapon 
River in Washington County, Maryland; and Hardy, Hampshire, and Morgan 
Counties, West Virginia. This subunit includes the river channel up to 
the ordinary high water mark. It starts at the entrance of Trout Run 
and ends at the confluence of the Cacapon River and the Potomac River. 
Riparian lands that border the subunit are all (100 percent) privately 
owned.
    Subunit 3e consists of a 6.7-km (4.1-mi) segment of Licking Creek 
in Washington County, Maryland. This subunit includes the river channel 
up to the ordinary high water mark. It starts at the crossing of 
Pecktonville Road and ends at the confluence of Licking Creek and the 
Potomac River. Riparian lands that border the subunit are all (100 
percent) privately owned.
    Subunit 3f consists of a 46.8-km (29.1-mi) segment of Back Creek in 
Berkeley County, West Virginia. This subunit includes the river channel 
up to the ordinary high water mark. It starts at the entrance of Big 
Run and ends at the confluence of Back Creek and the Potomac River. 
Riparian lands that border the subunit are all (100 percent) privately 
owned.

Unit 4: Kanawha Watershed

    Unit 4 consists of six subunits of the Kanawha watershed in North 
Carolina (Allegany, Ashe, and Watauga Counties), Virginia (Carroll and 
Grayson Counties), and West Virginia (Greenbrier, Monroe, Pocahontas, 
and Summers Counties). Each of the subunits in this unit contain one or 
more of the physical or biological features essential to the species' 
conservation.
    Special management considerations or protection may be required 
within Unit 4 to address excess nutrients, sediment, and pollutants 
that enter the river, as well as land-disturbing activities. Sources of 
these types of pollution are wastewater, agricultural runoff, and urban 
stormwater runoff from the nearby towns of Boone, North Carolina; 
Lewisburg, West Virginia; and numerous small towns in the watershed 
that influence the water quality and quantity in the unit. Parts of the 
Kanawha waterhead are encompassed by the Monongahela National Forest, a 
federally owned property managed by the U.S. Forest Service. 
Anticipated projects within the National Forest that could impact water 
quality and quantity in this unit include vegetation management and 
removal, and maintenance of locks and dams.
    In addition to the Monongahela National Forest, the subunits of 
Unit 4 overlap with numerous other public lands for which protections 
and management will help maintain habitat conditions that support the 
green floater. In West Virginia, overlapping public lands include 
State-owned forests (e.g., Calvin Price and Seneca State Forests), 
parks (e.g., Cass Scenic Railroad and Watoga State Parks), and wildlife 
management areas (e.g., Rimel, Little River, and Neola Wildlife 
Management Areas). In Virginia, overlapping public lands include the 
New River Trail State Park. Each of these land types ensures some 
protection from development and land-disturbing activities.
    Subunit 4a consists of a 259.7-km (161.4-mi) segment of the 
Greenbrier River in Greenbrier, Monroe, Pocahontas, and Summers 
Counties, West Virginia. This subunit includes the river channel up to 
the ordinary high water mark. It starts at the entrance of Cove Run and 
ends at the confluence of the Greenbrier River and the New River. The 
land adjacent to the Greenbrier River in this subunit is owned by the 
Federal (30 percent) and State (69 percent) governments and private 
entities (1 percent).
    Subunit 4b consists of a 17.4-km (10.8-mi) segment of Deer Creek in 
Pocahontas County, West Virginia. This subunit includes the river 
channel up to the ordinary high water mark. It starts at the entrance 
of Hospital Run and ends at the confluence of Deer Creek and the 
Greenbrier River. The land adjacent to Deer Creek in this subunit is

[[Page 48320]]

owned by the Federal (34 percent) and State (66 percent) governments.
    Subunit 4c consists of a 32.2-km (20-mi) segment of Knapp Creek in 
Pocahontas County, West Virginia. This subunit includes the river 
channel up to the ordinary high water mark. It starts at the confluence 
of Moore Run and Knapp Creek and ends at the confluence of Knapp Creek 
and the Greenbrier River. The land adjacent to Knapp Creek in this 
subunit is owned by the Federal (31 percent), State (62 percent), and 
local (1 percent) governments and private entities (6 percent).
    Subunit 4d consists of a 15.5-km (9.7-mi) segment of the New River 
in Carroll and Grayson Counties, Virginia. This subunit includes the 
river channel up to the ordinary high water mark. It starts at Sarasota 
Lane and ends at the confluence of Chestnut Creek and the New River. 
The land adjacent to the New River in this subunit is owned by the 
State of Virginia (42 percent) and private entities (58 percent).
    Subunit 4e consists of a 17.9-km (11.1-mi) segment of the Little 
River in the Kanawha watershed in Alleghany County, North Carolina, and 
Grayson County, Virginia. This subunit includes the river channel up to 
the ordinary high water mark. It starts at the entrance of Brush Creek 
and ends at the confluence of the Little River and the New River. 
Riparian lands that border the subunit are all (100 percent) privately 
owned.
    Subunit 4f consists of a 145.7-km (90.5-mi) segment of the South 
Fork New River in Alleghany, Ashe, and Watauga Counties, North 
Carolina. This subunit includes the river channel up to the ordinary 
high water mark. It starts at the confluence of the East Fork South 
Fork New River, Middle Fork South Fork New River, and Winkler Creek and 
ends at the confluence of the South Fork New River and North Fork New 
River. Riparian lands that border the subunit are all (100 percent) 
privately owned.

Unit 5: Lower Chesapeake Watershed

    Unit 5 consists of two subunits of the Lower Chesapeake watershed 
in Virginia (Amherst, Buckingham, and Nelson Counties). Each of the 
subunits in this unit contain one or more of the physical or biological 
features essential to the species' conservation.
    Special management considerations or protection may be required 
within Unit 5 to address excess nutrients, sediment, and pollutants 
that enter the river. Sources of these types of pollution are 
wastewater, agricultural runoff, and urban stormwater runoff that come 
from Lynchburg, Virginia, and numerous small towns adjacent to rivers 
and streams that have the potential to influence the water quality and 
quantity in the unit.
    Unit 5 overlaps with public lands for which protections and 
management will help to maintain habitat conditions that support the 
green floater. The George Washington and Jefferson National Forest, a 
federally owned property managed by the U.S. Forest Service, overlaps 
with Subunit 5a.
    Subunit 5a consists of a 54.1-km (33.6-mi) segment of the Tye River 
in Amherst, Buckingham, and Nelson Counties, Virginia. This subunit 
includes the river channel up to the ordinary high water mark. It 
starts at the confluence of Coxs Creek and Campbell Creek and ends at 
the confluence of the Tye River and the James River. The land adjacent 
to the Tye River in this subunit is primarily private (99 percent), 
although some land along the river is owned by the Federal government 
(1 percent).
    Subunit 5b consists of a 8.6-km (5.4-mi) segment of the Pedlar 
River in Amherst County, Virginia. This subunit includes the river 
channel up to the ordinary high water mark. It starts at the entrance 
of Horsley Creek and ends at the confluence of the Pedlar River and 
James River. Riparian lands that border the subunit are all (100 
percent) privately owned.

Unit 6: Chowan-Roanoke Watershed

    Unit 6 consists of five subunits in the Chowan-Roanoke watershed of 
North Carolina (Caswell, Rockingham, and Stokes Counties) and Virginia 
(Brunswick, Greensville, Halifax, Henry, Patrick, Pittsylvania, and 
Southampton Counties). Each of the subunits in this unit contain one or 
more of the physical or biological features essential to the species' 
conservation.
    Special management considerations or protection may be required 
within Unit 6 to address excess nutrients, sediment, and pollutants 
that enter the river, as well as land-disturbing activities. Sources of 
these types of pollution are wastewater, agricultural runoff, and urban 
stormwater runoff from the nearby towns Eden, North Carolina; Danville, 
Virginia; and numerous small towns adjacent to rivers and streams that 
have the potential to influence the water quality and quantity in the 
unit. Land-disturbing activities to maintain locks and dams have the 
potential to impact water quality and quantity in this unit as well.
    The subunits of Unit 6 overlap with public lands for which 
protections and management will likely enable habitat conditions that 
support the green floater to remain high into the future. State Parks 
along the Mayo River exist in both Virginia and North Carolina. In 
North Carolina, overlapping public lands include the Hanging Rock State 
Park. This designation as a State Park ensures some protection from 
development and land-disturbing activities.
    Subunit 6a consists of a 221.3-km (137.5-mi) segment of the Dan 
River in Caswell, Rockingham, and Stokes Counties, North Carolina, and 
Halifax, Henry, Patrick, and Pittsylvania Counties, Virginia. This 
subunit includes the river channel up to the ordinary high water mark. 
It starts at the entrance of Squall Creek and ends at the entrance of 
County Line Creek. The land adjacent to the Dan River in this subunit 
is primarily private (98 percent), although some land along the river 
is owned by nongovernmental organizations (1 percent) and State and 
local governments (1 percent).
    Subunit 6b consists of a 4.6-km (2.9-mi) segment of the South Mayo 
River in Henry County, Virginia, and Rockingham County, North Carolina. 
This subunit includes the river channel up to the ordinary high water 
mark. It starts at the entrance of Crooked Creek and ends at the 
confluence of the South Mayo River and the Mayo River. The land 
adjacent to the South Mayo River in this subunit is owned by State 
governments (39 percent) and private entities (61 percent).
    Subunit 6c consists of a 5.9-km (3.7-mi) segment of the North Mayo 
River in Henry County, Virginia, and Rockingham County, North Carolina. 
This subunit includes the river channel up to the ordinary high water 
mark. It starts at the entrance of Jumping Branch and ends at the 
confluence of the North Mayo River and the Mayo River. The land 
adjacent to the North Mayo River in this subunit is owned by State 
governments (42 percent) and private entities (58 percent).
    Subunit 6d consists of a 25.1-km (15.6-mi) segment of the Mayo 
River in Rockingham County, North Carolina. This subunit includes the 
river channel up to the ordinary high water mark. It starts at the 
confluence of the North Mayo and South Mayo Rivers and ends at the 
confluence of the Mayo River and the Dan River. The land adjacent to 
the Mayo River in this subunit is owned by the State of North Carolina 
(63 percent) and private entities (37 percent).
    Subunit 6e consists of a 106.1-km (65.9-mi) segment of the Meherrin 
River in Brunswick, Greensville, and Southampton Counties, Virginia. 
This subunit includes the river channel up to the ordinary high water 
mark. It starts at the entrance of Shining Creek and ends at the 
entrance of Fountains Creek.

[[Page 48321]]

Riparian lands that border the subunit are all (100 percent) privately 
owned.

Unit 7: Neuse-Pamlico Watershed

    Unit 7 consists of four subunits of the Neuse-Pamlico watershed in 
North Carolina (Durham, Johnston, Orange, Person, and Wake Counties). 
Each of the subunits in this unit contain one or more of the physical 
or biological features essential to the species' conservation.
    Special management considerations or protection may be required 
within Unit 7 to address excess nutrients, sediment, and pollutants 
that enter the river, as well as urban development. Several major urban 
areas are encompassed by Unit 7, including the Raleigh-Durham metro 
area, in addition to numerous small towns adjacent to rivers and 
streams that have the potential to influence the water quality and 
quantity in the unit. Growth and development in the Raleigh-Durham area 
are expected to continue and special management protections may be 
required to address potential decreases of forest cover and increases 
of impervious surfaces.
    The subunits of Unit 7 overlap with numerous public lands for which 
protections and management will likely help maintain habitat conditions 
that support the green floater. Overlapping public lands include State-
owned properties such as the Falls Lake Recreation Area, Occoneechee 
Mountain and Mitchell Mill Natural Areas, Eno River State Park, and Eno 
River Diabase Sill Plant Conservation Preserve. Numerous county-owned 
properties (e.g., Neuse River Greenway, Lake Michie Recreation Area, 
Durham County Parks, and Wake County Parks) overlap in Unit 7 as well. 
The Falls Lake Natural Area is part of a larger reservoir that is owned 
and managed by a network of partners, including the State and local 
governments and the U.S. Army Corps of Engineers. Each of these land 
types ensure some protection from development and land-disturbing 
activities.
    Subunit 7a consists of a 26.8-km (16.6-mi) segment of the Neuse 
River in Johnston and Wake Counties, North Carolina. This subunit 
includes the river channel up to the ordinary high water mark. It 
starts at the entrance of Crabtree Creek and ends near Prestwick Drive. 
The land adjacent to the Neuse River in this subunit is owned by local 
governments (50 percent), the State of North Carolina (10 percent), 
nongovernmental organizations (10 percent), and private entities (30 
percent).
    Subunit 7b consists of a 54.4-km (33.8-mi) segment of the Eno River 
in Durham and Orange Counties, North Carolina. This subunit includes 
the river channel up to the ordinary high water mark. It starts at the 
entrance of McGowan Creek and ends at Falls Lake. The land adjacent to 
the Eno River in this subunit is owned by Federal (3 percent), State 
(40 percent), and local (18 percent) governments, nongovernmental 
organizations (1 percent), and private entities (38 percent).
    Subunit 7c consists of a 30.9-km (19.2-mi) segment of the Flat 
River in Durham and Person Counties, North Carolina. This subunit 
includes the river channel up to the ordinary high water mark. It 
starts at the confluence of the North Flat River and South Flat River 
and ends at Falls Lake. The land adjacent to the Flat River in this 
subunit is owned by Federal (8 percent), State (18 percent), and local 
(31 percent) governments, and private entities (43 percent).
    Subunit 7d consists of an 8.6-km (5.4-mi) segment of the Little 
River in the Neuse-Pamlico watershed in Wake County, North Carolina. 
This subunit includes the river channel up to the ordinary high water 
mark. It starts at the confluence with Perry Creek and ends at the 
entrance of Big Branch. The land adjacent to the Little River in this 
subunit is owned by State (17 percent) and local (69 percent) 
governments, nongovernmental organizations (3 percent), and private 
entities (11 percent).

Unit 8: Upper Tennessee Watershed

    Unit 8 consists of 16.0-km (9.9-mi) of the Watauga River in the 
Upper Tennessee Watershed in Watauga County, North Carolina, from the 
entrance of Baird Creek to the entrance of Beech Creek. It includes the 
river channel up to the ordinary high water mark. Riparian lands that 
border the unit are all (100 percent) privately owned. This unit 
contains one or more of the physical or biological features essential 
to the species' conservation.
    Special management considerations or protection may be required 
within Unit 8 to address excess nutrients, sediment, and pollutants 
that enter the river. Sources of these types of pollution are 
wastewater, agricultural runoff, and urban stormwater runoff from 
numerous small towns and farms adjacent to rivers and streams.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they authorize, fund, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    We published a final rule revising the definition of destruction or 
adverse modification on August 27, 2019 (84 FR 44976). Destruction or 
adverse modification means a direct or indirect alteration that 
appreciably diminishes the value of critical habitat as a whole for the 
conservation of a listed species.
    Compliance with the requirements of section 7(a)(2) is documented 
through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Service Director's opinion, avoid the likelihood 
of jeopardizing the continued existence of the listed species and/or 
avoid the likelihood of destroying or adversely modifying critical 
habitat.
    Reasonable and prudent alternatives can vary from slight project

[[Page 48322]]

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 set forth requirements for Federal 
agencies to reinitiate consultation if any of the following four 
conditions occur: (1) the amount or extent of taking specified in the 
incidental take statement is exceeded; (2) new information reveals 
effects of the action that may affect listed species or critical 
habitat in a manner or to an extent not previously considered; (3) the 
identified action is subsequently modified in a manner that causes an 
effect to the listed species or critical habitat that was not 
considered in the biological opinion or written concurrence; or (4) a 
new species is listed or critical habitat designated that may be 
affected by the identified action. The reinitiation requirement applies 
only to actions that remain subject to some discretionary Federal 
involvement or control. As provided in 50 CFR 402.16, the requirement 
to reinitiate consultations for new species listings or critical 
habitat designation does not apply to certain agency actions (e.g., 
land management plans issued by the Bureau of Land Management in 
certain circumstances.

Application of the ``Destruction or Adverse Modification'' Standard

    The key factor related to the destruction or adverse modification 
determination is whether implementation of the proposed Federal action 
directly or indirectly alters the designated critical habitat in a way 
that appreciably diminishes the value of the critical habitat for the 
conservation of the listed species. As discussed above, the role of 
critical habitat is to support physical or biological features 
essential to the conservation of a listed species and provide for the 
conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may violate section 
7(a)(2) of the Act by destroying or adversely modifying such habitat, 
or that may be affected by such designation.
    Activities that we may, during a consultation under section 7(a)(2) 
of the Act, consider likely to destroy or adversely modify critical 
habitat 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 the green floater 
and its fish hosts by decreasing or altering flows to levels that would 
adversely affect their ability to complete their life cycles.
    (2) Actions that would significantly alter water chemistry or 
temperature. Such activities could include, but are not limited to, 
release of chemicals (including pesticides, pharmaceuticals, metals, 
and salts), 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 to levels that are beyond the tolerances of the mussel or 
its host fish and result in direct or cumulative adverse effects 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 and 
other construction projects, oil and gas exploration and extraction, 
channel alteration, timber harvest, off-road vehicle use, and other 
watershed and floodplain disturbances. When appropriate best management 
practices are not followed, these activities could eliminate or reduce 
the habitat necessary for the growth and reproduction of the green 
floater and its host fish 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 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 algal growth, which 
degrades or reduces habitat for the green floater and its fish hosts, 
by generating nutrients during their decay and decreasing dissolved 
oxygen levels to levels below the tolerances of the mussel and/or its 
fish hosts. Algae can also directly compete with mussel offspring by 
covering the sediment, thereby preventing 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, pipeline and 
utility maintenance, oil and gas extraction, mining, dredging, and 
destruction of riparian vegetation. These activities may lead to 
changes in water flows and levels that would degrade or eliminate the 
mussel or its fish hosts 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 green floater or its fish 
hosts.
    (6) Actions that result in the introduction, spread, or 
augmentation of nonnative aquatic species in occupied stream segments, 
or in stream segments that are hydrologically connected to occupied 
stream segments, even if those segments are occasionally intermittent, 
or introduction of other species that compete with or prey on the green 
floater. Possible actions could include, but are not limited to, 
stocking of nonnative fishes, stocking of sport fish, or other related 
actions. These activities can introduce parasites or disease for host 
fish, and could result in direct predation, or affect the growth, 
reproduction, and survival, of green floaters.

Exemptions

Application of Section 4(a)(3) of the Act

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that the Secretary shall not designate as critical habitat any 
lands or other geographical areas owned or controlled by the Department 
of Defense (DoD), or designated for its use, that are subject to an 
integrated natural resources management plan (INRMP) prepared under 
section 101 of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a), 
if the Secretary determines in writing that such plan provides a 
benefit to the species for which critical habitat is proposed for 
designation. No DoD lands with a completed INRMP are within the 
proposed critical habitat designation.

Consideration of Impacts Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from designated critical habitat based on 
economic impacts, impacts on national security, or any other relevant 
impacts. Exclusion decisions are governed by the regulations at 50 CFR 
424.19 and the Policy Regarding Implementation of

[[Page 48323]]

Section 4(b)(2) of the Endangered Species Act (hereafter, the ``2016 
Policy''; 81 FR 7226, February 11, 2016), both of which were developed 
jointly with the National Marine Fisheries Service (NMFS). We also 
refer to a 2008 Department of the Interior Solicitor's opinion 
entitled, ``The Secretary's Authority to Exclude Areas from a Critical 
Habitat Designation under Section 4(b)(2) of the Endangered Species 
Act'' (M-37016).
    In considering whether to exclude a particular area from the 
designation, we identify the benefits of including the area in the 
designation, identify the benefits of excluding the area from the 
designation, and evaluate whether the benefits of exclusion outweigh 
the benefits of inclusion. If the analysis indicates that the benefits 
of exclusion outweigh the benefits of inclusion, the Secretary may 
exercise discretion to exclude the area only if such exclusion would 
not result in the extinction of the species. In making the 
determination to exclude a particular area, the statute on its face, as 
well as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor. In our final rules, we explain any decision to exclude 
areas, as well as decisions not to exclude, to make clear the rational 
basis for our decision. We describe below the process that we use for 
taking into consideration each category of impacts and any initial 
analyses of the relevant impacts.

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. To assess the probable economic impacts of a 
designation, we must first evaluate specific land uses or activities 
and projects that may occur in the area of the critical habitat. We 
then must evaluate the impacts that a specific critical habitat 
designation may have on restricting or modifying specific land uses or 
activities for the benefit of the species and its habitat within the 
areas proposed. We then identify which conservation efforts may be the 
result of the species being listed under the Act versus those 
attributed solely to the designation of critical habitat for this 
particular species. The probable economic impact of a proposed critical 
habitat designation is analyzed by comparing scenarios both ``with 
critical habitat'' and ``without critical habitat.''
    The ``without critical habitat'' scenario represents the baseline 
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource 
users potentially affected by the designation of critical habitat 
(e.g., under the Federal listing as well as other Federal, State, and 
local regulations). Therefore, the baseline represents the costs of all 
efforts attributable to the listing of the species under the Act (i.e., 
conservation of the species and its habitat incurred regardless of 
whether critical habitat is designated). The ``with critical habitat'' 
scenario describes the incremental impacts associated specifically with 
the designation of critical habitat for the species. The incremental 
conservation efforts and associated impacts would not be expected 
without the designation of critical habitat for the species. In other 
words, the incremental costs are those attributable solely to the 
designation of critical habitat, above and beyond the baseline costs. 
These are the costs we use when evaluating the benefits of inclusion 
and exclusion of particular areas from the final designation of 
critical habitat should we choose to conduct a discretionary 4(b)(2) 
exclusion analysis.
    Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to 
assess the costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. Consistent 
with the E.O. regulatory analysis requirements, our effects analysis 
under the Act may take into consideration impacts to both directly and 
indirectly affected entities, where practicable and reasonable. If 
sufficient data are available, we assess to the extent practicable the 
probable impacts to both directly and indirectly affected entities. 
Section 3(f) of E.O. 12866 identifies four criteria for when a 
regulation is considered a ``significant regulatory action,'' and if 
any one of these criteria are met, the regulation requires additional 
analysis, review, and approval. The criterion relevant here is whether 
the designation of critical habitat may have an economic effect of $200 
million or more in any given year. Therefore, our consideration of 
economic impacts uses a screening analysis to assess whether a 
designation of critical habitat for the green floater is likely to have 
an annual effect on the economy of $200 million or more.
    For this particular designation, we developed an incremental 
effects memorandum (IEM) considering the probable incremental economic 
impacts that may result from this proposed designation of critical 
habitat. The information contained in our IEM was then used to develop 
a screening analysis of the probable effects of the designation of 
critical habitat for the green floater (IEc 2022, entire). We began by 
conducting a screening analysis of the proposed designation of critical 
habitat in order to focus our analysis on the key factors that are 
likely to result in incremental economic impacts. The purpose of the 
screening analysis is to filter out particular geographic areas of 
critical habitat that are already subject to such protections and are, 
therefore, unlikely to incur incremental economic impacts. In 
particular, the screening analysis considers baseline costs (i.e., 
absent critical habitat designation) and includes any probable 
incremental economic impacts where land and water use may already be 
subject to conservation plans, land management plans, best management 
practices, or regulations that protect the habitat area as a result of 
the Federal listing status of the species. Ultimately, the screening 
analysis allows us to focus our analysis on evaluating the specific 
areas or sectors that may incur probable incremental economic impacts 
as a result of the designation. The presence of the listed species in 
occupied areas of critical habitat means that any destruction or 
adverse modification of those areas is also likely to jeopardize the 
continued existence of the species. Therefore, designating occupied 
areas as critical habitat typically causes little if any incremental 
impacts above and beyond the impacts of listing the species. As a 
result, we generally focus the screening analysis on areas of 
unoccupied critical habitat (unoccupied units or unoccupied areas 
within occupied units). Overall, the screening analysis assesses 
whether designation of critical habitat is likely to result in any 
additional management or conservation efforts that may incur 
incremental economic impacts. This screening analysis combined with the 
information contained in our IEM constitute what we consider to be our 
draft economic analysis (DEA) of the proposed critical habitat 
designation for the green floater; our DEA is summarized in the 
narrative below.
    As part of our screening analysis, we considered the types of 
economic activities that are likely to occur within the areas likely 
affected by the critical habitat designation. In our evaluation of the 
probable incremental economic impacts that may result from the proposed 
designation of critical habitat for the green floater, first we 
identified, in the IEM dated June 7, 2022, probable incremental 
economic impacts associated with the following categories of 
activities: (1) culvert and bridge replacement; (2) pipeline 
maintenance;

[[Page 48324]]

(3) bank stabilization; (4) stream crossing; (5) watershed restoration; 
(6) road construction and maintenance; (7) pesticide use; (8) 
streambank and shoreline protection; (9) channel bed stabilization; and 
(10) riparian forest buffer. We considered each industry or category 
individually. Additionally, we considered whether their activities have 
any Federal involvement. Critical habitat designation generally will 
not affect activities that do not have any Federal involvement; under 
the Act, designation of critical habitat only affects activities 
conducted, funded, permitted, or authorized by Federal agencies. If we 
list the species, in areas where the green floater is present, Federal 
agencies would be required to consult with the Service under section 7 
of the Act on activities they authorize, fund, or carry out that may 
affect the species. If, when we list the species, we also finalize this 
proposed critical habitat designation, Federal agencies would be 
required to consider the effects of their actions on the designated 
habitat, and if the Federal action may affect critical habitat, our 
consultations would include an evaluation of measures to avoid the 
destruction or adverse modification of critical habitat.
    In our IEM, we attempted to clarify the distinction between the 
effects that would result from the species being listed and those 
attributable to the critical habitat designation (i.e., difference 
between the jeopardy and adverse modification standards) for the green 
floater's critical habitat. Because the designation of critical habitat 
for green floater is being proposed concurrently with the listing, it 
has been our experience that it is more difficult to discern which 
conservation efforts are attributable to the species being listed and 
those which will result solely from the designation of critical 
habitat. However, the following specific circumstances in this case 
help to inform our evaluation: (1) The essential physical or biological 
features identified for critical habitat are the same features 
essential for the life requisites of the species, and (2) any actions 
that would likely adversely affect the essential physical or biological 
features of occupied critical habitat are also likely to adversely 
affect the green floater itself. The IEM outlines our rationale 
concerning this limited distinction between baseline conservation 
efforts and incremental impacts of the designation of critical habitat 
for this species. This evaluation of the incremental effects has been 
used as the basis to evaluate the probable incremental economic impacts 
of this proposed designation of critical habitat.
    The proposed critical habitat designation for the green floater 
totals approximately 2,553 km (1,586 mi) of stream in eight units, all 
of which are currently occupied by the species. Ownership of riparian 
lands adjacent to the proposed units includes 2,007 km (1,247 mi; 79 
percent) in private ownership and 546 km (339 mi; 21 percent) in public 
(Federal, State, or local government) ownership.
    The total incremental costs of critical habitat designation for the 
green floater is anticipated to be less than $8.8 million per year. The 
costs are reflective of the proposed critical habitat area, the 
presence of the species (i.e., already occupied) in these areas, and 
the presence of other federally listed species and designated critical 
habitats. Since consultation is already required in some of these areas 
as a result of the presence of three other aquatic listed species 
(i.e., candy darter (Etheostoma osburni), Carolina madtom (Noturus 
furiosus), and Neuse River waterdog (Necturus lewisi)) and their 
critical habitats and would be required as a result of the listing of 
the green floater, the economic costs of the critical habitat 
designation would likely be primarily limited to additional 
administrative efforts to consider adverse modification for the green 
floater in section 7 consultations. In total, 4,198 section 7 
consultation actions (approximately 58 formal consultations, 3,100 
informal consultations, and 1,040 technical assistance efforts) are 
anticipated to occur annually in proposed critical habitat areas. 
Critical habitat may also trigger additional regulatory changes. For 
example, the designation may cause other Federal, State, or local 
permitting or regulatory agencies to expand or change standards or 
requirements. Regulatory uncertainty generated by critical habitat may 
also have impacts. For example, landowners or buyers may perceive that 
the rule would restrict land or water use activities in some way and 
therefore value the use of the land less than they would have absent 
critical habitat. This is a perception, or stigma, effect of critical 
habitat on markets.
    We are soliciting data and comments from the public on the DEA 
discussed above, as well as on all aspects of this proposed rule and 
our required determinations. During the development of a final 
designation, we will consider the information presented in the DEA and 
any additional information on economic impacts we receive during the 
public comment period to determine whether any specific areas should be 
excluded from the final critical habitat designation under authority of 
section 4(b)(2), our implementing regulations at 50 CFR 424.19, and the 
2016 Policy. We may exclude an area from critical habitat if we 
determine that the benefits of excluding the area outweigh the benefits 
of including the area, provided the exclusion will not result in the 
extinction of this species.

Consideration of National Security Impacts

    Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or 
areas that pose potential national-security concerns (e.g., a DoD 
installation that is in the process of revising its INRMP for a newly 
listed species or a species previously not covered). If a particular 
area is not covered under section 4(a)(3)(B)(i), then national-security 
or homeland-security concerns are not a factor in the process of 
determining what areas meet the definition of ``critical habitat.'' 
However, the Service must still consider impacts on national security, 
including homeland security, on those lands or areas not covered by 
section 4(a)(3)(B)(i) because section 4(b)(2) requires the Service to 
consider those impacts whenever it designates critical habitat. 
Accordingly, if DoD, Department of Homeland Security (DHS), or another 
Federal agency has requested exclusion based on an assertion of 
national-security or homeland-security concerns, or we have otherwise 
identified national-security or homeland-security impacts from 
designating particular areas as critical habitat, we generally have 
reason to consider excluding those areas.
    However, we cannot automatically exclude requested areas. When DoD, 
DHS, or another Federal agency requests exclusion from critical habitat 
on the basis of national-security or homeland-security impacts, we must 
conduct an exclusion analysis if the Federal requester provides 
information, including a reasonably specific justification of an 
incremental impact on national security that would result from the 
designation of that specific area as critical habitat. That 
justification could include demonstration of probable impacts, such as 
impacts to ongoing border-security patrols and surveillance activities, 
or a delay in training or facility construction, as a result of 
compliance with section 7(a)(2) of the Act. If the agency requesting 
the exclusion does not provide us with a reasonably specific 
justification, we will contact the agency to recommend that it provide 
a specific justification or clarification of its concerns relative to 
the probable incremental impact that

[[Page 48325]]

could result from the designation. If we conduct an exclusion analysis 
because the agency provides a reasonably specific justification or 
because we decide to exercise the discretion to conduct an exclusion 
analysis, we will defer to the expert judgment of DoD, DHS, or another 
Federal agency as to: (1) Whether activities on its lands or waters, or 
its activities on other lands or waters, have national-security or 
homeland-security implications; (2) the importance of those 
implications; and (3) the degree to which the cited implications would 
be adversely affected in the absence of an exclusion. In that 
circumstance, in conducting a discretionary section 4(b)(2) exclusion 
analysis, we will give great weight to national-security and homeland-
security concerns in analyzing the benefits of exclusion.
    In preparing this proposal, we have determined that the lands 
within the proposed designation of critical habitat for green floater 
are not owned or managed by the DoD or DHS, and, therefore, we 
anticipate no impact on national security or homeland security.

Consideration of Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security discussed above. To identify other relevant impacts that may 
affect the exclusion analysis, we consider a number of factors, 
including whether there are permitted conservation plans covering the 
species in the area--such as HCPs, safe harbor agreements (SHAs), or 
candidate conservation agreements with assurances (CCAAs)--or whether 
there are non-permitted conservation agreements and partnerships that 
may be impaired by designation of, or exclusion from, critical habitat. 
In addition, we look at whether Tribal conservation plans or 
partnerships, Tribal resources, or government-to-government 
relationships of the United States with Tribal entities may be affected 
by the designation. We also consider any State, local, social, or other 
impacts that might occur because of the designation.

Summary of Exclusions Considered Under 4(b)(2) of the Act

    In preparing this proposal, we have determined that no HCPs or 
other management plans for the green floater currently exist, and the 
proposed designation does not include any Tribal lands or trust 
resources or any lands for which designation would have any economic or 
national security impacts. Therefore, we anticipate no impact on Tribal 
lands, partnerships, or HCPs from this proposed critical habitat 
designation and thus, as described above, we are not considering 
excluding any particular areas on the basis of the presence of 
conservation agreements or impacts to trust resources.
    However, if through the public comment period we receive 
information that we determine indicates that there are potential 
economic, national security, or other relevant impacts from designating 
particular areas as critical habitat, then as part of developing the 
final designation of critical habitat, we will evaluate that 
information and may conduct a discretionary exclusion analysis to 
determine whether to exclude those areas under authority of section 
4(b)(2) and our implementing regulations at 50 CFR 424.19. If we 
receive a request for exclusion of a particular area and after 
evaluation of supporting information we do not exclude, we will fully 
describe our decision in the final rule for this action.

Required Determinations

Clarity of the Rule

    We are required by E.O.s 12866 and 12988 and by the Presidential 
Memorandum of June 1, 1998, to write all rules in plain language. This 
means that each rule we publish must:

    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.

    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

Regulatory Planning and Review--Executive Orders 12866, 13563, and 
14094

    Executive Order 14094 reaffirms the principles of E.O. 12866 and 
E.O. 13563 and states that regulatory analysis should facilitate agency 
efforts to develop regulations that serve the public interest, advance 
statutory objectives, and are consistent with E.O. 12866, E.O. 13563, 
and the Presidential Memorandum of January 20, 2021 (Modernizing 
Regulatory Review). Regulatory analysis, as practicable and 
appropriate, shall recognize distributive impacts and equity, to the 
extent permitted by law. E.O. 13563 emphasizes further that regulations 
must be based on the best available science and that the rulemaking 
process must allow for public participation and an open exchange of 
ideas. We have developed this final rule in a manner consistent with 
these requirements.
    E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides 
that the Office of Information and Regulatory Affairs (OIRA) in the 
Office of Management and Budget (OMB) will review all significant 
rules. OIRA has determined that this rule is not significant.

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (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 whether potential 
economic impacts to these small entities are significant, we considered 
the types of activities that

[[Page 48326]]

might trigger regulatory impacts under this designation as well as 
types of project modifications that may result. In general, the term 
``significant economic impact'' is meant to apply to a typical small 
business firm's business operations.
    Under the RFA, as amended, and as understood in light of recent 
court decisions, Federal agencies are required to evaluate the 
potential incremental impacts of rulemaking on those entities directly 
regulated by the rulemaking itself; in other words, the RFA does not 
require agencies to evaluate the potential impacts to indirectly 
regulated entities. The regulatory mechanism through which critical 
habitat protections are realized is section 7 of the Act, which 
requires Federal agencies, in consultation with the Service, to ensure 
that any action authorized, funded, or carried out by the agency is not 
likely to destroy or adversely modify critical habitat. Therefore, 
under section 7, only Federal action agencies are directly subject to 
the specific regulatory requirement (avoiding destruction and adverse 
modification) imposed by critical habitat designation. Consequently, it 
is our position that only Federal action agencies would be directly 
regulated if we adopt the proposed critical habitat designation. The 
RFA does not require evaluation of the potential impacts to entities 
not directly regulated. Moreover, Federal agencies are not small 
entities. Therefore, because no small entities would be directly 
regulated by this rulemaking, the Service certifies that, if made final 
as proposed, the proposed critical habitat designation will not have a 
significant economic impact on a substantial number of small entities.
    In summary, we have considered whether the proposed designation 
would result in a significant economic impact on a substantial number 
of small entities. For the above reasons and based on currently 
available information, we certify that, if made final, the proposed 
critical habitat designation would not have a significant economic 
impact on a substantial number of small business entities. Therefore, 
an initial regulatory flexibility analysis is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare statements of energy effects when undertaking 
certain actions. Facilities that provide energy supply, distribution, 
or use (e.g., dams, pipelines) occur within some units of the proposed 
critical habitat designation and may potentially be affected. We 
determined that consultations, technical assistance, and requests for 
species lists may be necessary in some instances. However, in our 
economic analysis, we did not find that this proposed critical habitat 
designation would significantly affect energy supplies, distribution, 
or use and will not have an annual effect on the economy of $200 
million or more. 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.), we make the following finding:
    (1) This proposed rule would 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, or 
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; Aid to Families 
with Dependent Children 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 onto State governments.
    (2) We do not believe that this rule would significantly or 
uniquely affect small governments because it will not produce a Federal 
mandate of $200 million or greater in any year, that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The designation of critical habitat imposes no obligations on 
State or local governments and, as such, a Small Government Agency Plan 
is not required. Therefore, a Small Government Agency Plan is not 
required.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for the green floater in a takings implications assessment. The 
Act does not authorize the Service to regulate private actions on 
private lands or confiscate private property as a result of critical 
habitat designation. Designation of critical habitat does not affect 
land ownership, or establish any closures, or restrictions on use of or 
access to the designated areas. Furthermore, the designation of 
critical habitat does not affect landowner actions that do not require 
Federal funding or permits, nor does it preclude development of habitat 
conservation programs or issuance of incidental take permits to permit 
actions that do require Federal funding or permits to go forward. 
However, Federal agencies are prohibited from carrying out, funding, or 
authorizing actions that

[[Page 48327]]

would destroy or adversely modify critical habitat. A takings 
implications assessment has been completed for the proposed designation 
of critical habitat for green floater, and it concludes that, if 
adopted, this designation of critical habitat does not pose significant 
takings implications for lands within or affected by the designation.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this proposed rule does 
not have significant Federalism effects. A federalism summary impact 
statement is not required. In keeping with Department of the Interior 
and Department of Commerce policy, we requested information from, and 
coordinated development of this proposed critical habitat designation 
with, appropriate State resource agencies. From a federalism 
perspective, the designation of critical habitat directly affects only 
the responsibilities of Federal agencies. The Act imposes no other 
duties with respect to critical habitat, either for States and local 
governments, or for anyone else. As a result, the proposed rule does 
not have substantial direct effects either on the States, or on the 
relationship between the Federal government and the States, or on the 
distribution of powers and responsibilities among the various levels of 
government. The proposed designation may have some benefit to these 
governments because the areas that contain the features essential to 
the conservation of the species are more clearly defined, and the 
physical or biological features of the habitat necessary for the 
conservation of the species are specifically identified. This 
information does not alter where and what federally sponsored 
activities may occur. However, it may assist State and local 
governments in long-range planning because they no longer have to wait 
for case-by-case section 7 consultations to occur.
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) of the Act would be required. 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.

Civil Justice Reform--Executive Order 12988

    In accordance with E.O. 12988 (Civil Justice Reform), the Office of 
the Solicitor has determined that the rule would not unduly burden the 
judicial system and that it meets the requirements of sections 3(a) and 
3(b)(2) of the Order. We have proposed designating critical habitat in 
accordance with the provisions of the Act. To assist the public in 
understanding the habitat needs of the species, this proposed rule 
identifies the physical or biological features essential to the 
conservation of the species. The proposed areas of critical habitat are 
presented on maps, and the proposed rule provides several options for 
the interested public to obtain more detailed location information, if 
desired.

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

    This rule does not contain information collection requirements, and 
a submission to the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not 
required. We may not conduct or sponsor and you are not required to 
respond to a collection of information unless it displays a currently 
valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    Regulations adopted pursuant to section 4(a) of the Act are exempt 
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et 
seq.) and do not require an environmental analysis under NEPA. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This includes 
listing, delisting, and reclassification rules, as well as critical 
habitat designations and species-specific protective regulations 
promulgated concurrently with a decision to list or reclassify a 
species as threatened. The courts have upheld this position (e.g., 
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical 
habitat); Center for Biological Diversity v. U.S. Fish and Wildlife 
Service, 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d) 
rule)).

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), E.O. 13175 (Consultation and Coordination 
with Indian Tribal Governments), and the Department of the Interior's 
manual at 512 DM 2, we readily acknowledge our responsibility to 
communicate meaningfully with federally recognized Tribes on a 
government-to-government basis. In accordance with Secretaries' Order 
3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal 
Trust Responsibilities, and the Endangered Species Act), we readily 
acknowledge our responsibilities to work directly with Tribes in 
developing programs for healthy ecosystems, to acknowledge that Tribal 
lands are not subject to the same controls as Federal public lands, to 
remain sensitive to Indian culture, and to make information available 
to Tribes. We have determined that no Tribal lands fall within the 
boundaries of the proposed critical habitat for the green floater, so 
no Tribal lands would be affected by the proposed designation.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov and upon request from 
the New York Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the Fish and Wildlife Service's Species Assessment Team and the New 
York Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless 
otherwise noted.

0
2. In Sec.  17.11, in paragraph (h), amend the List of Endangered and 
Threatened Wildlife by adding an entry for ``Floater, green'' in 
alphabetical order under CLAMS to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *

[[Page 48328]]

    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name       Where listed        Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
              Clams
 
                                                  * * * * * * *
Floater, green..................  Lasmigona            Wherever found....            T   [Federal Register
                                   subviridis.                                            citation when
                                                                                          published as a final
                                                                                          rule]; 50 CFR
                                                                                          17.45(h); \4d\ 50 CFR
                                                                                          17.95(f).CH
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Amend Sec.  17.45 by adding a new paragraph (h) to read as follows:


Sec.  17.45  Special rules--snails and clams.

* * * * *
    (h) Green floater (Lasmigona subviridis)--(1) Prohibitions. The 
following prohibitions that apply to endangered wildlife also apply to 
the green floater. Except as provided under paragraph (h)(2) of this 
section and Sec. Sec.  17.4 and 17.5, it is unlawful for any person 
subject to the jurisdiction of the United States to commit, to attempt 
to commit, to solicit another to commit, or cause to be committed, any 
of the following acts in regard to this species:
    (i) Import or export, as set forth at Sec.  17.21(b) for endangered 
wildlife.
    (ii) Take, as set forth at Sec.  17.21(c)(1) for endangered 
wildlife.
    (iii) Possession and other acts with unlawfully taken specimens, as 
set forth at Sec.  17.21(d)(1) for endangered wildlife.
    (iv) Interstate or foreign commerce in the course of commercial 
activity, as set forth at Sec.  17.21(e) for endangered wildlife.
    (v) Sale or offer for sale, as set forth at Sec.  17.21(f) for 
endangered wildlife.
    (2) Exceptions from prohibitions. In regard to this species, you 
may:
    (i) Conduct activities as authorized by a permit under Sec.  17.32.
    (ii) Take, as set forth at Sec.  17.21(c)(2) through (4) for 
endangered wildlife.
    (iii) Take, as set forth at Sec.  17.31(b).
    (iv) Possess and engage in other acts with unlawfully taken 
wildlife, as set forth at Sec.  17.21(d)(2) for endangered wildlife.
    (v) Take incidental to an otherwise lawful activity caused by:
    (A) Stream bank restoration projects that use bioengineering 
methods to replace preexisting, bare, eroding stream banks with 
vegetated, stable stream banks, thereby reducing bank erosion and 
instream sedimentation and improving habitat conditions for the 
species. Following these bioengineering methods, stream banks must be 
stabilized using native species appropriate for the region (e.g., 
native species live stakes (live, vegetative cuttings inserted or 
tamped into the ground in a manner that allows the stake to take root 
and grow), native species live fascines (live branch cuttings, usually 
willows, bound together into long, cigar-shaped bundles), or native 
species brush layering (cuttings or branches of easily rooted tree 
species layered between successive lifts of soil fill)). These methods 
must not include the sole use of quarried rock (riprap) or the use of 
rock baskets (e.g., gabion baskets). Stream bank restoration projects 
must also satisfy all Federal, State, and local permitting 
requirements.
    (B) Bridge or culvert replacement/removal projects that remove 
migration barriers (e.g., collapsing, blocked, or perched culverts) or 
generally allow for improved connectivity and upstream and downstream 
movements of green floaters or their fish hosts while maintaining 
normal stream flows, preventing bed and bank erosion, and improving 
habitat conditions for the species (using aquatic organism passage 
methods). Before starting stream crossing activities, surveys to 
determine presence of green floaters must be performed by a qualified 
and permitted biologist (defined as a biologist or aquatic resources 
manager that has been approved by the Service to locate, identify, and 
handle green floaters as allowed by Section 10(a)(1)(A) of the 
Endangered Species Act). Before conducting instream activities in 
places where green floaters may occur, surveys are required to 
determine if they are present. Survey plans must be submitted to and 
approved by the local Service field office before conducting surveys. 
If green floaters are found, the biologist must coordinate with their 
local Service field office regarding salvage and relocation of 
individuals to suitable habitat before project implementation. Should 
green floaters be relocated, monitoring must be conducted after project 
implementation. Bridge or culvert replacement/removal projects must 
also satisfy all Federal, State, and local permitting requirements.
0
4. In Sec.  17.95, amend paragraph (f) by adding an entry for ``Green 
Floater (Lasmigona subviridis)'' immediately before the entry for 
``Carolina Heelsplitter (Lasmigona decorata)'', to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (f) Clams and Snails.
* * * * *
Green Floater (Lasmigona subviridis)
    (1) Critical habitat units are depicted on the maps in this entry 
for Allegany and Washington Counties, Maryland; Broome, Chemung, 
Chenango, Cortland, Delaware, Herkimer, Livingston, Madison, Otsego, 
Steuben, and Tioga Counties, New York; Allegany, Ashe, Caswell, Durham, 
Johnston, Orange, Person, Rockingham, Stokes, Wake, and Watauga 
Counties, North Carolina; Bedford, Bradford, Clinton, Columbia, 
Dauphin, Fulton, Lackawanna, Luzerne, Lycoming, Montour, 
Northumberland, Perry, Snyder, Susquehanna, Tioga, Union, and Wyoming 
Counties, Pennsylvania; Amherst, Brunswick, Buckingham, Carroll, 
Grayson, Greensville, Halifax, Henry, Nelson, Patrick, Pittsylvania, 
and Southampton Counties, Virginia; and Berkeley, Greenbrier, 
Hampshire, Hardy, Mineral, Monroe, Morgan, Pocahontas, and Summers 
Counties, West Virginia.
    (2) Within these areas, the physical or biological features 
essential to the conservation of the green floater consist of the 
following components:
    (i) Flows adequate to maintain both benthic habitats and stream 
connectivity, allow glochidia and juveniles to become established in 
their habitats, allow the exchange of nutrients and oxygen to mussels, 
and maintain food availability and spawning habitat for host fishes. 
The characteristics of

[[Page 48329]]

such flows include a stable, not flashy, flow regime, with slow to 
moderate currents to provide refugia during periods of higher flows.
    (ii) Suitable sand and gravel substrates and connected instream 
habitats characterized by stable stream channels and banks and by 
minimal sedimentation and erosion.
    (iii) Sufficient amount of food resources, including microscopic 
particulate matter (plankton, bacteria, detritus, or dissolved organic 
matter).
    (iv) Water and sediment quality necessary to sustain natural 
physiological processes for normal behavior, growth, and viability of 
all life stages, including, but not limited to, those general to other 
mussel species:
    (A) Adequate dissolved oxygen;
    (B) Low salinity;
    (C) Low temperature (generally below 86 [deg]F (30 [deg]C));
    (D) Low ammonia (generally below 0.5 parts per million total 
ammonia-nitrogen), polycyclic aromatic hydrocarbons (PAHs), 
polychlorinated biphenyls (PCBs), and heavy metal concentrations; and
    (E) No excessive total suspended solids and other pollutants, 
including contaminants of emerging concern.
    (v) The presence and abundance of fish hosts necessary for 
recruitment of the green floater (including, but not limited to, 
mottled sculpin (Cottus bairdii), rock bass (Ambloplites rupestris), 
central stoneroller (Campostoma anomalum), blacknose dace (Rhinichthys 
atratulus), and margined madtom (Noturus insignis)).
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of the final rule.
    (4) Data layers defining map units were created by overlaying 
Natural Heritage Element Occurrence data and U.S. Geological Survey 
hydrologic data for stream reaches. The hydrologic data used in the 
critical habitat maps were extracted from the U.S. Environmental 
Protection Agency's National Hydrography Dataset Plus Version 2 
(NHDPlusV2) 1:100k scale nationwide hydrologic layer (USEPA 2012, 
unpaginated) with a projection of NAD83 Geographic. Natural Heritage 
program and State mussel database species presence data from Maryland, 
New York, North Carolina, Pennsylvania, Virginia, and West Virginia 
were used to select specific river and stream segments for inclusion in 
the critical habitat layer. The U.S. Major Rivers database is from 
ArcGIS Online (last modified February 22, 2018) with a projection of 
World Geodetic System (WGS) 1984 Web Mercator Auxiliary Sphere. The 
maps in this entry, as modified by any accompanying regulatory text, 
establish the boundaries of the critical habitat designation. The 
coordinates or plot points or both on which each map is based are 
available to the public at the Service's internet site at https://fws.gov/office/new-york-ecological-services-field, at https://www.regulations.gov at Docket No. FWS-R5-ES-2023-0012, and at the field 
office responsible for this designation. You may obtain field office 
location information by contacting one of the Service regional offices, 
the addresses of which are listed at 50 CFR 2.2.
    (5) Index map follows:

Figure 1 to Green Floater (Lasmigona subviridis) paragraph (5)
BILLING CODE 4333-15-P

[[Page 48330]]

[GRAPHIC] [TIFF OMITTED] TP26JY23.001

    (6) Unit 1: Southwestern Lake Ontario Watershed (Livingston County, 
New York).
    (i) Unit 1 consists of 55.6 stream kilometers (km) (34.6 stream 
miles (mi)) of the Genesee River in Livingston County, New York, from 
New York Route 36 downstream to the river's confluence with White 
Creek. It includes the river channel up to the ordinary high water 
mark.
    (ii) Map of Unit 1 follows:


[[Page 48331]]


Figure 2 to Green Floater (Lasmigona subviridis) paragraph (6)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.002

    (7) Unit 2: Susquehanna Watershed (Broome, Chemung, Chenango, 
Cortland, Delaware, Herkimer, Madison, Otsego, Steuben, and Tioga 
Counties, New York; and Bradford, Clinton, Columbia, Dauphin, 
Lackawanna, Luzerne, Lycoming, Montour, Northumberland, Perry, Snyder, 
Susquehanna, Tioga, Union, and Wyoming Counties, Pennsylvania).
    (i) Unit 2 consists of the following 16 subunits:
    (A) Subunit 2a is a total length of 345.8 km (214.9 mi) of the 
Susquehanna River in Tioga County, New York, and Columbia, Montour, and 
Northumberland Counties, Pennsylvania. This subunit includes the

[[Page 48332]]

river channel up to the ordinary high water mark. The upper section of 
Subunit 2a flows from the entrance of Owego Creek to Harvey's Creek. 
The lower section starts at Nescopeck Creek and flows to the confluence 
of Fishing Creek.
    (B) Subunit 2b consists of a 13.9-km (8.7-mi) segment of Fivemile 
Creek in Steuben County, New York. This subunit includes the river 
channel up to the ordinary high water mark. It starts at the entrance 
of an unnamed tributary and ends at the confluence of Fivemile Creek 
and the Cohocton River.
    (C) Subunit 2c consists of a 47.6-km (29.6-mi) segment of the 
Cohocton River in Steuben County, New York. This subunit includes the 
river channel up to the ordinary high water mark. It starts at the 
confluence of Cotton Creek and Tenmile Creek and ends at the confluence 
of the Tioga River and Middle Cohocton Creek.
    (D) Subunit 2d consists of a 15.7-km (9.7-mi) segment of the 
Canisteo and Tioga Rivers in Steuben County, New York. This subunit 
includes the river channel up to the ordinary high water mark. It 
starts at the confluence of Tuscarora Creek at the Canisteo River and 
ends at the confluence of the Tioga River and Chemung River.
    (E) Subunit 2e consists of a 73.0-km (45.4-mi) segment of the 
Chemung River in Steuben and Chemung Counties, New York, and Bradford 
County, Pennsylvania. This subunit includes the river channel up to the 
ordinary high water mark. It starts at the confluence of the Tioga 
River with the Cohocton River and ends at the confluence of the Chemung 
River and the Susquehanna River.
    (F) Subunit 2f consists of a 34.2-km (21.2-mi) segment of Catatonk 
Creek in Tioga County, New York, and Bradford County, Pennsylvania. 
This subunit includes the river channel up to the ordinary high water 
mark. It starts at the confluence of Miller Creek and Michigan Creek 
and ends at the confluence of Fishing Creek with West Branch Owego 
Creek.
    (G) Subunit 2g consists of a 4.5-km (2.8-mi) segment of Tunkhannock 
Creek in Bradford, Wyoming, Lackawanna, and Luzerne Counties, 
Pennsylvania. This subunit includes the river channel up to the 
ordinary high water mark. It starts at the entrance of Billings Mill 
Brook and ends at the confluence of Tunkhannock Creek and the 
Susquehanna River.
    (H) Subunit 2h consists of a 59.4-km (36.9-mi) segment of the 
Tioughnioga River in Broome and Cortland Counties, New York. This 
subunit includes the river channel up to the ordinary high water mark. 
It starts at the confluence of the East Branch Tioughnioga and West 
Branch Tioughnioga Rivers and ends at the confluence of the Tioughnioga 
River and the Chenango River.
    (I) Subunit 2i consists of a 140.9-km (87.6-mi) segment of the 
Chenango River in Broome, Chenango, and Madison Counties, New York. 
This subunit includes the river channel up to the ordinary high water 
mark. It starts in the Sangerfield River downstream of Ninemile Swamp 
and ends at the confluence of the Chenango River and the Susquehanna 
River.
    (J) Subunit 2j consists of a 93.7-km (58.2-mi) segment of the 
Unadilla River in Chenango, Herkimer, and Otsego Counties, New York. 
This subunit includes the river channel up to the ordinary high water 
mark. It starts at the entrance of North Winfield Creek and ends at the 
confluence of the Unadilla River and the Susquehanna River.
    (K) Subunit 2k consists of a 99.3-km (61.7-mi) segment of the Upper 
Susquehanna River in Broome, Chenango, Delaware, and Otsego Counties, 
New York, and Susquehanna County, Pennsylvania. This subunit includes 
the river channel up to the ordinary high water mark. It starts at the 
entrance of Mill Creek and ends at the entrance of Starrucca Creek.
    (L) Subunit 2l consists of a 115.5-km (71.8-mi) segment of Pine 
Creek in Clinton, Lycoming, and Tioga Counties, Pennsylvania. This 
subunit includes the river channel up to the ordinary high water mark. 
It starts at the entrance of Phoenix Run and ends at the confluence of 
Pine Creek and the Susquehanna River.
    (M) Subunit 2m consists of a 4.4-km (2.7-mi) segment of Marsh Creek 
in Tioga County, New York. This subunit includes the river channel up 
to the ordinary high water mark. It starts at the entrance of Asaph Run 
and ends at the confluence of Marsh Creek and Pine Creek.
    (N) Subunit 2n consists of a 45.8-km (28.5-mi) segment of the West 
Branch Susquehanna River in Lycoming, Northumberland, and Union 
Counties, Pennsylvania. This subunit includes the river channel up to 
the ordinary high water mark. It starts at the entrance of Muncy Creek 
and ends at the confluence of the West Branch Susquehanna River and the 
Susquehanna River.
    (O) Subunit 2o consists of a 13.2-km (8.2-mi) segment of Buffalo 
Creek in Union County, Pennsylvania. This subunit includes the river 
channel up to the ordinary high water mark. It starts at the 
intersection of Johnson Mill Road and Buffalo Creek and ends at the 
confluence of Buffalo Creek and the West Branch Susquehanna River. The 
last segment of Buffalo Creek is also known as Mill Race.
    (P) Subunit 2p consists of a 35.5-km (22.1-mi) segment of Penns 
Creek in Dauphin, Northumberland, Perry, Snyder, and Union Counties, 
Pennsylvania. This subunit includes the river channel up to the 
ordinary high water mark. It starts at the entrance of an unnamed 
tributary near the intersection of Penns Creek Road and Wildwood Road 
and ends at the confluence of Penns Creek and the Susquehanna River.
    (ii) Maps of Unit 2 follow:


[[Page 48333]]


Figure 3 to Green Floater (Lasmigona subviridis) paragraph (7)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.003


[[Page 48334]]


Figure 4 to Green Floater (Lasmigona subviridis) paragraph (7)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.004


[[Page 48335]]


Figure 5 to Green Floater (Lasmigona subviridis) paragraph (7)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.005


[[Page 48336]]


Figure 6 to Green Floater (Lasmigona subviridis) paragraph (7)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.006


[[Page 48337]]


Figure 7 to Green Floater (Lasmigona subviridis) paragraph (7)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.007


[[Page 48338]]


Figure 8 to Green Floater (Lasmigona subviridis) paragraph (7)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.008

    (8) Unit 3: Potomac Watershed (Bedford and Fulton Counties, 
Pennsylvania; Allegany and Washington Counties, Maryland; and Berkeley, 
Hampshire, Hardy, Mineral, and Morgan Counties, West Virginia).
    (i) Unit 3 consists of the following six subunits:
    (A) Subunit 3a consists of an 80.3-km (49.9-mi) segment of the 
Potomac River in Washington County, Maryland, and Berkeley County, West 
Virginia. This subunit includes the river channel up to the ordinary 
high water mark. It starts at the entrance of the Cacapon River and 
ends at the entrance of Downey Branch.
    (B) Subunit 3b consists of a 22.3-km (13.9-mi) segment of Patterson 
Creek in

[[Page 48339]]

Mineral County, West Virginia. This subunit includes the river channel 
up to the ordinary high water mark. It starts at the entrance of Cabin 
Run and ends at the confluence of Patterson Creek and the Potomac 
River.
    (C) Subunit 3c consists of a 51.3-km (31.9-mi) segment of Sideling 
Hill Creek in Allegany County, Maryland, and Bedford and Fulton 
Counties, Pennsylvania. This subunit includes the river channel up to 
the ordinary high water mark. It starts at the Rice Road crossing of 
West Branch Sideling Hill Creek and ends at the confluence of Sideling 
Hill Creek and the Potomac River.
    (D) Subunit 3d consists of a 123.0-km (76.5-mi) segment of the 
Cacapon River in Washington County, Maryland, and in Hardy, Hampshire, 
and Morgan Counties, West Virginia. This subunit includes the river 
channel up to the ordinary high water mark. It starts at the entrance 
of Trout Run and ends at the confluence of the Cacapon River and the 
Potomac River.
    (E) Subunit 3e consists of a 6.7-km (4.1-mi) segment of Licking 
Creek in Washington County, Maryland. This subunit includes the river 
channel up to the ordinary high water mark. It starts at the crossing 
of Pecktonville Road and ends at the confluence of Licking Creek and 
the Potomac River.
    (F) Subunit 3f consists of a 46.8-km (29.1-mi) segment of Back 
Creek in Berkeley County, West Virginia. This subunit includes the 
river channel up to the ordinary high water mark. It starts at the 
entrance of Big Run and ends at the confluence of Back Creek and the 
Potomac River.
    (ii) Map of Unit 3 follows:


[[Page 48340]]


Figure 9 to Green Floater (Lasmigona subviridis) paragraph (8)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.009

    (9) Unit 4: Kanawha Watershed (Allegany, Ashe, and Watauga 
Counties, North Carolina; Carroll and Grayson Counties, Virginia; and 
Greenbrier, Monroe, Pocahontas, and Summers Counties, West Virginia).
    (i) Unit 4 consists of the following six subunits:
    (A) Subunit 4a consists of a 259.7-km (161.4-mi) segment of the 
Greenbrier River in Greenbrier, Monroe, Pocahontas, and Summers 
Counties, West Virginia. This subunit includes the river channel up to 
the ordinary high water mark. It starts at the entrance of Cove Run and 
ends at the confluence of the Greenbrier River and the New River.

[[Page 48341]]

    (B) Subunit 4b consists of a 17.4-km (10.8-mi) segment of Deer 
Creek in Pocahontas County, West Virginia. This subunit includes the 
river channel up to the ordinary high water mark. It starts at the 
entrance of Hospital Run and ends at the confluence of Deer Creek and 
the Greenbrier River.
    (C) Subunit 4c consists of a 32.2-km (20-mi) segment of Knapp Creek 
in Pocahontas County, West Virginia. This subunit includes the river 
channel up to the ordinary high water mark. It starts at the entrance 
of Moore Run and Knapp Creek and ends at the confluence of Knapp Creek 
and the Greenbrier River.
    (D) Subunit 4d consists of a 15.5-km (9.7-mi) segment of the New 
River in Carroll and Grayson Counties, Virginia. This subunit includes 
the river channel up to the ordinary high water mark. It starts at 
Sarasota Lane and ends at the confluence of Chestnut Creek and the New 
River.
    (E) Subunit 4e consists of a 17.9-km (11.1-mi) segment of the 
Little River in the Kanawha watershed in Alleghany County, North 
Carolina, and Grayson County, Virginia. This subunit includes the river 
channel up to the ordinary high water mark. It starts at the entrance 
of Brush Creek and ends at the confluence of the Little River and the 
New River.
    (F) Subunit 4f consists of a 145.7-km (90.5-mi) segment of the 
South Fork New River in Alleghany, Ashe, and Watauga Counties, North 
Carolina. This subunit includes the river channel up to the ordinary 
high water mark. It starts at the confluence of the East Fork South 
Fork New River, Middle Fork South Fork New River, and Winkler Creek and 
ends at the confluence of the South Fork New River and North Fork New 
River.
    (ii) Maps of Unit 4 follow:


[[Page 48342]]


Figure 10 to Green Floater (Lasmigona subviridis) paragraph (9)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.010


[[Page 48343]]


Figure 11 to Green Floater (Lasmigona subviridis) paragraph (9)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.011

    (10) Unit 5: Lower Chesapeake Watershed (Amherst, Buckingham, and 
Nelson Counties, Virginia).
    (i) Unit 5 consists of the following two subunits:
    (A) Subunit 5a consists of a 54.1-km (33.6-mi) segment of the Tye 
River in Amherst, Buckingham, and Nelson Counties, Virginia. This 
subunit includes the river channel up to the ordinary high water mark. 
It starts at the confluence of Coxs Creek and Campbell Creek and ends 
at the confluence of the Tye River and the James River.
    (B) Subunit 5b consists of a 8.6-km (5.4-mi) segment of the Pedlar 
River in Amherst County, Virginia. This subunit

[[Page 48344]]

includes the river channel up to the ordinary high water mark. It 
starts at the entrance of Horsley Creek and ends at the confluence of 
the Pedlar River and James River.
    (ii) Map of Unit 5 follows:

Figure 12 to Green Floater (Lasmigona subviridis) paragraph (10)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.012

    (11) Unit 6: Chowan-Roanoke Watershed (Caswell, Rockingham, and 
Stokes Counties, North Carolina; and Brunswick, Greensville, Halifax, 
Henry, Patrick, Pittsylvania, and Southampton Counties, Virginia).
    (i) Unit 6 consists of the following five subunits:
    (A) Subunit 6a consists of a 221.3-km (137.5-mi) segment of the Dan 
River in Caswell, Rockingham, and Stokes Counties, North Carolina, and 
in Halifax, Henry, Patrick, and Pittsylvania

[[Page 48345]]

Counties, Virginia. This subunit includes the river channel up to the 
ordinary high water mark. It starts at the entrance of Squall Creek and 
ends at the entrance of County Line Creek.
    (B) Subunit 6b consists of a 4.6-km (2.9-mi) segment of the South 
Mayo River in Henry County, Virginia, and Rockingham County, North 
Carolina. This subunit includes the river channel up to the ordinary 
high water mark. It starts at the entrance of Crooked Creek and ends at 
the confluence of the South Mayo River and the Mayo River.
    (C) Subunit 6c consists of a 5.9-km (3.7-mi) segment of the North 
Mayo River in Henry County, Virginia, and Rockingham County, North 
Carolina. This subunit includes the river channel up to the ordinary 
high water mark. It starts at the entrance of Jumping Branch and ends 
at the confluence of the North Mayo River and the Mayo River.
    (D) Subunit 6d consists of a 25.1-km (15.6-mi) segment of the Mayo 
River in Rockingham County, North Carolina. This subunit includes the 
river channel up to the ordinary high water mark. It starts at the 
confluence of the North Mayo and South Mayo Rivers and ends at the 
confluence of the Mayo River and the Dan River.
    (E) Subunit 6e consists of a 106.1-km (65.9-mi) segment of the 
Meherrin River in Brunswick, Greensville, and Southampton Counties, 
Virginia. This subunit includes the river channel up to the ordinary 
high water mark. It starts at the entrance of Shining Creek and ends at 
the entrance of Fountains Creek.
    (ii) Maps of Unit 6 follow:

Figure 13 to Green Floater (Lasmigona subviridis) paragraph (11)(ii)

[[Page 48346]]

[GRAPHIC] [TIFF OMITTED] TP26JY23.013

Figure 14 to Green Floater (Lasmigona subviridis) paragraph (11)(ii)

[[Page 48347]]

[GRAPHIC] [TIFF OMITTED] TP26JY23.014

    (12) Unit 7: Neuse-Pamlico Watershed (Durham, Johnston, Orange, 
Person, and Wake Counties, North Carolina).
    (i) Unit 7 consists of the following four subunits:
    (A) Subunit 7a consists of a 26.8-km (16.6-mi) segment of the Neuse 
River in Johnston and Wake Counties, North Carolina. This subunit 
includes the river channel up to the ordinary high water mark. It 
starts at the entrance of Crabtree Creek and ends near Prestwick Drive.
    (B) Subunit 7b consists of a 54.4-km (33.8-mi) segment of the Eno 
River in Durham and Orange Counties, North Carolina. This subunit 
includes the river channel up to the ordinary high water mark. It 
starts at the entrance of McGowan Creek and ends at Falls Lake.
    (C) Subunit 7c consists of a 30.9-km (19.2-mi) segment of the Flat 
River in Durham and Person Counties, North Carolina. This subunit 
includes the river channel up to the ordinary high water mark. It 
starts at the confluence of the North Flat River and South Flat River 
and ends at Falls Lake.
    (D) Subunit 7d consists of an 8.6-km (5.4-mi) segment of the Little 
River in

[[Page 48348]]

the Neuse-Pamlico watershed in Wake County, North Carolina. This 
subunit includes the river channel up to the ordinary high water mark. 
It starts at the confluence with Perry Creek and ends at the entrance 
of Big Branch.
    (ii) Map of Unit 7 follows:

Figure 15 to Green Floater (Lasmigona subviridis) paragraph (12)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.015

    (13) Unit 8: Upper Tennessee Watershed (Watauga County, North 
Carolina).
    (i) Unit 8 consists of 16.0-km (9.9-mi) of the Watauga River in 
Watauga County, North Carolina, from the entrance of Baird Creek to the 
entrance of Beech Creek. It includes the river channel up to the 
ordinary high water mark.
    (ii) Map of Unit 8 follows:

Figure 16 to Green Floater (Lasmigona subviridis) paragraph (13)(ii)

[[Page 48349]]

[GRAPHIC] [TIFF OMITTED] TP26JY23.016

* * * * *

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-15143 Filed 7-25-23; 8:45 am]
BILLING CODE 4333-15-C