[Federal Register Volume 89, Number 180 (Tuesday, September 17, 2024)]
[Proposed Rules]
[Pages 76196-76233]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-20157]



[[Page 76195]]

Vol. 89

Tuesday,

No. 180

September 17, 2024

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; Endangered Species 
Status for Kentucky Creekshell and Designation of Critical Habitat; 
Proposed Rule

Federal Register / Vol. 89 , No. 180 / Tuesday, September 17, 2024 / 
Proposed Rules

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2024-0065; FXES1111090FEDR-245-FF09E21000]
RIN 1018-BH46


Endangered and Threatened Wildlife and Plants; Endangered Species 
Status for Kentucky Creekshell 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 Kentucky creekshell (Leaunio ortmanni [=Villosa ortmanni]), a 
freshwater mussel species from Kentucky and Tennessee, as an endangered 
species and designate critical habitat under the Endangered Species Act 
of 1973, as amended (Act). This determination also serves as our 12-
month finding on a petition to list the Kentucky creekshell. After a 
review of the best available scientific and commercial information, we 
find that listing the species is warranted. Accordingly, we propose to 
list the Kentucky creekshell as an endangered species under the Act. 
Finalizing this rule as proposed would add this species to the List of 
Endangered and Threatened Wildlife and extend the Act's protections to 
the species. We also propose to designate critical habitat for the 
Kentucky creekshell under the Act. In total, approximately 545 river 
miles (877 river kilometers) in Kentucky and Tennessee fall within the 
boundaries of the proposed critical habitat designation. We also 
announce the availability of an economic analysis of the proposed 
designation of critical habitat for the Kentucky creekshell.

DATES: We will accept comments received or postmarked on or before 
November 18, 2024. 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 November 1, 2024.

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-R4-ES-2024-0065, 
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-R4-ES-2024-0065, 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 on the Service's 
website at https://ecos.fws.gov/ecp/species/8209, at https://www.regulations.gov at Docket No. FWS-R4-ES-2024-0065, or both.

FOR FURTHER INFORMATION CONTACT: Lee Andrews, Field Supervisor, U.S. 
Fish and Wildlife Service, Ecological Services Kentucky Field Office, 
330 West Broadway, Room 265, Frankfort, KY 40601; telephone 502-653-
0571. 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. Please see Docket No. FWS-R4-ES-2024-0065 on https://www.regulations.gov for a document that summarizes this proposed rule.

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 an endangered species 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 
Kentucky creekshell meets the definition of an endangered 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 to list the Kentucky creekshell 
as an endangered species under the Act, and we propose designation of 
approximately 545 stream miles (877 river kilometers) in Kentucky and 
Tennessee as 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 Kentucky creekshell is 
endangered due to the following threats: Habitat loss, degradation, and 
fragmentation (Factor A) resulting from stressors, including dams and 
other instream barriers, and degraded water quality from development, 
agriculture, and instream gravel mining. Changes in climate conditions 
and small population size exacerbate the effects of habitat loss, 
degradation, and fragmentation (Factor E).
    Section 4(a)(3) of the Act requires that the Secretary of the 
Interior (Secretary), to the maximum extent prudent and determinable, 
concurrently with listing designate critical habitat for the species. 
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 
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

[[Page 76197]]

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 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 be affecting 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) Additional information concerning the historical and current 
status of this species.
    (4) Specific information on:
    (a) The amount and distribution of Kentucky creekshell habitat;
    (b) Any additional areas occurring within the range of the species 
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 protection, 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 areas not occupied at the time of listing qualify as 
habitat for the species and are essential for the conservation of the 
species.
    (4) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (5) 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.
    (6) 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 and any additional information 
regarding probable economic impacts that we should consider.
    (7) 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. If you 
think we should exclude any additional areas, please provide 
information supporting a benefit of exclusion.
    (8) 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 determination 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 threatened 
instead of endangered or we may conclude that the 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 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).

[[Page 76198]]

Previous Federal Actions

    On April 20, 2010, the Kentucky creekshell was included in a 
listing petition from the Center for Biological Diversity (CBD) and 
others (CBD 2010, entire) requesting that the Service list 404 aquatic, 
riparian, and wetland species as endangered or threatened under the 
Act. In 2011, the Service found that this petition presented 
substantial scientific or commercial information indicating that 
listing may be warranted for 374 species, including the Kentucky 
creekshell (76 FR 59836, September 27, 2011). Based on that finding, we 
conducted a species status assessment (SSA) for the Kentucky creekshell 
to compile the best scientific and commercial data available regarding 
the species' biology and any factors influencing its viability. This 
document constitutes our 12-month finding on the April 20, 2010, 
petition to list the Kentucky creekshell under the Act.

Peer Review

    An SSA team prepared an SSA report for the Kentucky creekshell. 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 in 
listing and recovery actions under the Act, we solicited independent 
scientific review of the information contained in the Kentucky 
creekshell SSA report. We sent the SSA report to two independent peer 
reviewers and received one response. Results of this structured peer 
review process can be found at https://www.regulations.gov. In 
preparing this proposed rule, we incorporated the results of the 
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 provided additional information and clarification 
regarding the propagation of Kentucky creekshell. Otherwise, no 
substantive changes to our analysis and conclusions within the SSA 
report were deemed necessary, and the peer reviewer's comments are 
addressed in version 1.0 of the SSA report.

I. Proposed Listing Determination

Background

    The Kentucky creekshell (Leaunio ortmanni [=Villosa ortmanni]) is a 
member of the Class Bivalvia, Order Unionodia, and Family Unionidae 
(ITIS 2023). It was described by Walker (1925) from specimens collected 
from the Green River at Mammoth Cave, Edmonson County, Kentucky, and 
from Sulphur Fork of Russell Creek, Adair County, Kentucky. The 
Kentucky creekshell was previously placed in the genus Villosa, which 
was a loose amalgam of species generally defined by rayed and elongated 
shells with weak hinged teeth. None of these characteristics were 
unique to Villosa, and not all species possessed all the 
characteristics (Watters 2018, p. 4). As a result, the genus was broken 
into multiple new genera with true Villosa being limited to the extreme 
Southeast with additional nominal taxa being placed into Paetulunio, 
Cambarunio, Leaunio, and Sagittunio (Watters 2018, entire).
    While the 2010 CBD petition referred to Kentucky creekshell 
(Villosa ortmanni), the species' taxonomy, common name, and scientific 
name as Leaunio ortmanni have been accepted by the scientific 
community, as evidenced by the species' inclusion in A Revised List of 
the Freshwater Mussels (Mollusca: Bivalvia: Unionida) of the United 
States and Canada (Williams et al. 2017, p. 45), as well as its 
inclusion in the Freshwater Mollusk Conservation Society Names 
Subcommittee list (FMCS 2021). Therefore, this rulemaking action 
proposes to list the Kentucky creekshell (Leaunio ortmanni). A thorough 
review of the taxonomy, life history, and ecology of the Kentucky 
creekshell is presented in the SSA report (Version 1.0; Service 2023, 
pp. 1-63).
    Kentucky creekshell adult shells are 2-3 inches in length with a 
greenish-yellow to tan color with numerous, fine green rays, mostly 
located on the posterior end of the shell (Watters 2018, p. 42). The 
species is considered relatively fast-growing and short-lived compared 
to other mussel species. It occurs in medium-sized rivers to small 
streams and spring runs. The species can be found in riffles comprised 
of sand and gravel or found in adjacent depositional areas near shore 
(Haag and Cicerello 2016, p. 261). Kentucky creekshell most often 
occurs in suitable habitat influenced by nearby springs due to the 
preferred habitat of its obligate host fish, the banded sculpin (Cottus 
carolinae).
    The Kentucky creekshell is endemic to the Green River basin. 
Historically, the species occurred in the Clifty Creek-Rough River, 
Ugly Creek-Green River, Lower Nolin River, Bays Fork-Barren River, 
Skaggs Creek, Little Muddy Creek-Barren River, Middle Nolin River, 
Upper Nolin River, Russell Creek, East Fork Barren River-Barren River, 
Trammel Creek, Drakes Creek, and Gasper River basins (figure 1). The 
Kentucky creekshell is presumed extirpated from the historically 
occupied Lower Nolin River, Bays Fork-Barren River, Skaggs Creek, and 
Little Muddy Creek-Barren River basins, with no observations of the 
species since 1973 (a 50-year absence).
BILLING CODE 4333-15-P

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[GRAPHIC] [TIFF OMITTED] TP17SE24.000

BILLING CODE 4333-15-C

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.
    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.

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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.
    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, which is 
further described in the 2009 Memorandum Opinion on the foreseeable 
future from the Department of the Interior, Office of the Solicitor (M-
37021, January 16, 2009; ``M-Opinion,'' available online at https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf). 
The foreseeable future extends as far into the future as the Service 
and NMFS (hereafter, the Services) can make reasonably reliable 
predictions about the threats to the species and the species' responses 
to those threats. We need not identify the foreseeable future in terms 
of a specific period of time. We will describe the foreseeable future 
on a case-by-case basis, using the best available data and taking into 
account considerations such as the species' life-history 
characteristics, threat-projection timeframes, and environmental 
variability. In other words, the foreseeable future is the period of 
time over which we can make reasonably reliable predictions. 
``Reliable'' does not mean ``certain''; it means sufficient to provide 
a reasonable degree of confidence in the prediction, in light of the 
conservation purposes of the Act.

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 Kentucky creekshell'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 conditions, 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 used the best available information to characterize 
viability as the ability of a species to sustain populations in the 
wild over time, which we then used 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-R4-
ES-2024-0065 on https://www.regulations.gov and at https://ecos.fws.gov/ecp/species/8209.

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.

Species Needs

    We assessed the best available information to identify the physical 
and biological needs to support individual fitness at all life stages 
for the Kentucky creekshell. Full descriptions of all needs are 
available in chapter 2 of the SSA report (Service 2023, pp. 6-13), 
which can be found in docket number FWS-R4-ES-2024-0065 on https://www.regulations.gov, and on our internet site https://ecos.fws.gov/ecp/species/8209/. We have determined that the resource and demographic 
needs for the Kentucky creekshell include biotic and abiotic habitat 
characteristics as described below.
    (1) Kentucky creekshell individuals of all life stages require 
habitat conditions characterized by clean, flowing water with 
appropriate water quality and temperature conditions and an absence of 
contaminants and fine sediments, as well as natural flow regimes that 
vary with respect to timing, magnitude, durations, and frequency of 
river discharge events. The species occurs in stable sand, cobble, and 
gravel substrates in riffles and runs that are predominantly silt-free.
    (2) As filter feeders, Kentucky creekshells require adequate 
nutrition for survival and growth of juveniles and adults that includes 
suspended food and nutrients including (but not limited to) 
phytoplankton, zooplankton, rotifers, protozoans, detritus, and 
dissolved organic matter from the water column or sediments.
    (3) The Kentucky creekshell requires host fish to complete its life 
cycle. Kentucky creekshell use the banded sculpin as a host fish (Haag 
and Cicerello 2016, p. 261); it is the only sculpin known to occur in 
the Kentucky creekshell range. The Kentucky creekshell requires 
sufficient host fish numbers to provide nutrition to and dispersal of 
glochidia. The presence of life history requirements for the banded 
sculpin influence Kentucky creekshell viability through host fish 
contribution to mussel recruitment. Suitable habitat for the banded 
sculpin is characterized as spring-fed and spring-influenced streams 
with riffle and pool areas with gravel and rubble substrate, adjacent 
riparian cover, and sufficient food items, including macroinvertebrates 
and small fish such as darters. The banded sculpin is susceptible to 
impacts from habitat fragmentation due to its small size and lower 
ability to swim the distance between suitable habitat patches compared 
to larger fishes (Etnier and Starnes 1993, p. 387). Additionally, even 
small vertical drops (2-3 inches) created by culverts can be a 
significant barrier to the banded sculpin's upstream movement. Being a 
benthic species, the banded sculpin is particularly sensitive to silt 
and

[[Page 76201]]

sedimentation (Greenberg and Holtzman 1987, entire).
    (4) Connectivity among Kentucky creekshell populations is also 
important for species viability. Although the species' capability to 
disperse is evident through its historical occurrence in a wide range 
of rivers and streams, instream barriers have fragmented Kentucky 
creekshell populations and suitable habitat, resulting in the isolation 
of populations, loss of access to quality habitat for one or more life 
stages, and prevention of host fish movement, which in turn, influences 
Kentucky creekshell distribution. Barriers to movement can cause 
isolation or patchy distributions of Kentucky creekshells, which may 
limit both genetic exchange and recolonization. Genetic exchange occurs 
between and among Kentucky creekshell beds via sperm drift, host fish 
movement, and movement of Kentucky creekshells during high flow events. 
For genetic exchange to occur, connectivity must be maintained, and 
proximity of males and females is essential.
    (5) Most freshwater mussels, including the Kentucky creekshell, are 
found in mussel beds with other species that vary in size and density. 
The Kentucky creekshell occurs very sporadically within these beds, 
which are often separated by stream reaches in which the species is 
absent or rare. Because the Kentucky creekshell is often a component of 
these healthy mussel assemblages within optimal mussel habitats, 
maintaining the beds and connectivity between these populations is 
necessary for the species to maintain resiliency over time.

Threats

    The following discussions include the evaluations of threats and 
associated stressors that are affecting the Kentucky creekshell and its 
habitats: (1) Habitat loss and degradation, including water quality 
degradation; (2) changing climate conditions; and (3) nonnative 
invasive species (Service 2023, chapter 3). We also considered the 
effects of small population size and enigmatic population declines in 
mussels. Full descriptions of each of the threats and their sources are 
available in chapter 3 of the SSA report (Service 2023, pp. 16-27).

Habitat Loss and Degradation

Land Cover

    Certain land cover types have been correlated with degrading 
aquatic systems including urbanization and development and agricultural 
uses including cultivated crops, hay/pasture land cover, and livestock 
operations.

Urbanization or Development

    As a land cover type, the term ``development'' refers to 
urbanization of the landscape, including (but not limited to) land 
conversion for residential, commercial, and industrial uses and the 
accompanying infrastructure. The effects of urbanization may include 
alterations to water quality, water quantity, and habitat (both in-
stream and streamside) (EPA 2003, entire). Urban development can lead 
to increased variability in streamflow, typically increasing the extent 
and volume of water entering a stream after a storm and decreasing the 
time it takes for the water to travel over the land before entering the 
stream (Giddings et al. 2009, p. 1). Impervious surface refers to all 
hard surfaces like paved roads, parking lots, roofs, and even highly 
compacted soils like sports fields. Impervious surfaces prevent the 
natural soaking of rainwater into the ground and ultimately and 
gradually seeping into streams (Brabec et al. 2002, p. 499). Instead, 
rainwater accumulates and often flows into storm drains, which rapidly 
drain to local streams. This flow results in deleterious effects on 
streams in three important ways (USGS 2014, pp. 2-5):
    (1) Water quantity: Storm drains deliver large volumes of water to 
streams much faster than would naturally occur, often resulting in 
flooding and bank erosion that reshapes the channel and causes 
substrate instability. Increased high-velocity discharges can cause 
species living in streams (including mussels) to be stressed, 
displaced, or killed by fast-moving water and the debris and sediment 
carried in it. Displaced individuals may be left stranded out of the 
water once floodwaters recede or displaced into less suitable or 
unsuitable habitat.
    (2) Water quality: Pollutants (e.g., gasoline, oil, road salts) 
that accumulate on impervious surfaces may be washed directly into 
streams during storm events. Freshwater mussels, as a group, are 
particularly sensitive to changes in water quality parameters 
including, but not limited to, dissolved oxygen, salinity, ammonia, 
elevated temperature, excessive suspended solids, and other pollutants.
    (3) Water temperature: During warm and hot weather, the temperature 
of rainwater that falls on impervious surfaces rapidly warms to 
temperatures outside the species' tolerance and can stress or kill 
freshwater species when it enters streams.
    Urbanization increases the quantity of impervious surfaces (Center 
for Watershed Protection 2003, p. 1). The resulting storm water runoff 
affects water quality parameters such as temperature, pH, dissolved 
oxygen, and salinity, which in turn alters the water chemistry such 
that it is less able to support aquatic biota, including mussels. The 
rapid runoff also reduces the amount of infiltration into the soil and 
into the water table, resulting in lower sustained streamflow, 
especially during droughts and dry periods (Giddings et al. 2009, p. 
1). Within the Kentucky creekshell's range, there is one major city, 
Bowling Green, Kentucky (U.S. Census Bureau 2022). Bowling Green has a 
population of approximately 75,000 people and is the third most 
populated city in Kentucky. Bowling Green is located on the mainstem 
Barren River between the Gasper River and Drakes Creek, which both have 
populations of Kentucky creekshell. This city, along with other, 
smaller towns, ultimately contribute to the degradation of the aquatic 
conditions of the nearby rivers and streams due to the relatively high 
amounts of impervious surfaces.

Agricultural Land Cover

    Cultivated crops, hay/pasture land cover types, and large crop 
farming operations contribute to nutrient pollution when best 
management practices are not properly implemented (EPA 2016, entire). 
Fertilizers from these operations are both rich in nitrogen and 
phosphorus and are the primary sources of nutrient pollution from 
agricultural sources. If fertilizers are not applied according to best 
management practices, including the appropriate rate, timing, and 
application method, water quality in stream systems can be negatively 
affected by excess nutrients from fertilizers.
    Excess nutrients are transported to streams when it rains or when 
water and soil containing nitrogen and phosphorus wash into nearby 
waters or leach into groundwater. Excess nitrogen and phosphorus affect 
water quality and may cause lethal algal blooms in surface waters, 
which can reduce the dissolved oxygen to fatal levels for aquatic life 
(Carpenter et al. 1998, entire). Fertilized soils and livestock can 
also contribute significant sources of nitrogen-based compounds like 
ammonia and nitrogen oxides (Carpenter et al. 1998, entire). Ammonia is 
extremely toxic to freshwater mussels and other aquatic life and can be 
extremely detrimental if large amounts are deposited to surface waters 
(Augspurger et al. 2003, entire). Stream banks with unstable slopes 
from

[[Page 76202]]

agricultural clearing with no vegetative riparian buffer or the lack of 
stable cover crops between rotations on farmed lands can increase the 
amount of nutrients that enter nearby streams by way of increased soil 
erosion. Conversely, cover crops and other vegetation will use excess 
nutrients and increase soil stability (Barling and Moore 1994, p. 543). 
Livestock often use streams, which degrades water quality and stream 
bank stability and reduces water quantity available for mussels and 
other aquatic fauna that may occur downstream from these agricultural 
activities.
Siltation/Sedimentation
    Excess siltation is a threat to mussel survival and can be a 
significant factor affecting mussel distribution when siltation 
prevents mussel life history needs from being met in habitat reaches 
(Dennis 1984, p. 150). Major sources of siltation and sedimentation 
(when silt and sediment particles accumulate on the stream bottom) are 
development and agriculture (Hasse and Lathrop 2003, p. 159) and 
instream gravel mining (see Instream Gravel Mining below). Legacy 
sediment resulting from past landscape development persists in the 
Green River drainage, but much of the current siltation/sedimentation 
is caused by activities that directly destabilize stream channels and 
remove riparian vegetation (e.g., channelization, construction 
projects, land development). Stream bank erosion and stream scour are 
the primary generators of excess sediment in the Green River basin. 
According to the Kentucky Division of Water list of impaired streams 
that meet section 305(b) of the Clean Water Act (33 U.S.C. 1251 et 
seq.), the most prevalent pollutant in impaired streams in the Green 
River drainage is sedimentation/siltation, affecting 18 percent of 
assessed stream miles (KDOW 2022). Based on these data, 134 of 222 
stream segments with known causes of impairment in the Green River 
drainage are impaired due to siltation and sedimentation, and the 
leading sources of the impairment include agriculture, coal mining, 
channelization, and loss of riparian habitat.
    Sedimentation causes several negative effects on freshwater 
mussels, including reduced reproduction, reduced feeding, reduced 
respiration, and decreased survival (Goldsmith et al. 2021 pp. 104-
105). The Kentucky creekshell relies on sight-feeding fishes as part of 
its life cycle; therefore, turbidity and high levels of suspended 
solids during critical reproductive periods may affect glochidial 
attachment to host fish and ultimately decrease recruitment in any 
given population (McLeod et al. 2017, p. 348). Sedimentation affects 
mussel reproduction as elevated levels of suspended sediment may cause 
host fish to avoid such areas, thereby decreasing the likelihood of 
physical interaction between host fishes and gravid female mussels 
(Goldsmith et al. 2021, p. 12).
    Elevated levels of suspended sediment affect the ability of 
freshwater mussels to filter sperm and food items from the water 
column. Suspended silt can interfere with mussel filtration and 
respiration and reduce mussel food consumption rates (Dennis 1984, p. 
212; McMahon and Bogan 2001, p. 382). Stream beds can become inundated 
with fine sediment, which may lead to smothering of mussels (Goldsmith 
et al. 2021 p. 18). For example, one live Kentucky creekshell was found 
in the Upper Nolin River among stable substrates; however, the site was 
covered in shifting sands one year later and the individual was 
presumed dead (Compton 2023, pers. comm.). Additionally, silt hinders 
surface water infiltration into groundwater, and increased 
sedimentation can reduce or stop groundwater recharge, causing a 
decline in groundwater levels (Abdalla and Rawahi 2013, p. 1956; 
Rajendran et al. 2020, p. 1). The presence of groundwater and spring-
fed streams are vitally important to the Kentucky creekshell as this is 
the preferred habitat of its host fish, the banded sculpin. In the 
future, siltation and sedimentation in rivers and streams are expected 
to increase due to associated human disturbance.
Instream Gravel Mining
    Instream sand and alluvial gravel mining has been implicated in the 
destruction of mussel populations in the Southeast (Hartfield 1993, p. 
138). Negative effects associated with gravel mining include stream 
channel modifications such as altered habitat, disrupted flow patterns, 
and sediment transport. Additionally, gravel mining degrades water 
quality, including increased turbidity, reduced light penetration, 
increased temperature, and increased sedimentation. This habitat and 
water quality degradation results in reductions in aquatic 
macroinvertebrate and fish populations, as well as negatively affects 
fish spawning and nursery habitats, causing cumulative food web 
disruptions (Kondolf 1997, p. 541; Brown et al. 1998, p. 988). Instream 
gravel mining has negatively affected Kentucky creekshell habitat for 
many years. (Cicerello 2005, p. 14).
    Multiple instream gravel mining operations have been observed 
throughout the species' range within the last 10 years. For example, in 
2021, evidence of heavy machinery in the stream and severely altered 
streambed was noted at one gravel mine site immediately upstream of a 
known Kentucky creekshell population (Compton 2023, pers. comm.). This 
type of habitat alteration reduces the amount of suitable habitat and 
limits the ability of the species to move farther upstream. An 
additional gravel mining operation occurs in a stream valley 
immediately adjacent to a known Kentucky creekshell population. The 
Kentucky creekshell has not been observed in the mined stream valley; 
however, based on proximity to known populations and habitat 
conditions, the species very likely occurred there historically 
(Dinkins 2023, pers. comm.). Consequently, instream mining may be 
linked to the loss of the species from areas where it was historically 
present.
Impoundment Effects
    The negative effects of impoundments and barriers on aquatic 
habitats and freshwater mussels are well-documented (Watters 2000, p. 
261). Extinction/extirpation of North American freshwater mussels can 
be traced to impoundment and inundation of riffle habitats in all major 
river basins of the central and eastern United States (Haag 2009, p. 
107; North Carolina Wildlife Resources Commission 2015, p. 109). Dams, 
either natural (by beavers or aggregations of woody debris) or manmade, 
can have various effects on stream ecosystems, many of them negative. 
Reductions in the diversity and abundance of mussels are primarily 
attributed to habitat loss caused by human-made impoundments (Neves et 
al. 1987, p. 63).
    The Kentucky creekshell requires rivers and streams with natural 
flow regimes because the species requires a lotic (flowing water) 
environment. Perturbations that disrupt natural water flow patterns 
(e.g., dams) thus have a negative influence on the Kentucky creekshell 
and its host fish species, the banded sculpin. Effects from instream 
barriers include population isolation, hydrological instability, high 
shear stress, scour, and cold-water releases, all of which suppress 
mussel recruitment (Hardison and Layzer 2001, p. 79; Smith and Meyer 
2010, p. 543; Hubbs 2012, p. 8). Consequently, the construction and 
continued operation of dams has resulted in the likely extirpation of 
the Kentucky creekshell in many portions of its historical range 
including the decline of the species in the Green River which can be 
partly attributed to long-term altered flows from the Green River Lake

[[Page 76203]]

Dam (Konrad et al. 2011, entire; Haag and Cicerello 2016, p. 261). 
Furthermore, Kentucky creekshell occurrences have not been reported 
from heavily dam-influenced reaches on the mainstem Barren, Nolin, and 
Rough Rivers indicating dam-influenced reaches do not provide 
conditions that meet the species' life-history needs.
    The construction and presence of dams had a substantial negative 
impact on the Kentucky creekshell and was a primary driver of its 
condition historically. The historical negative impact of dams 
continues through isolation of populations and the degradation and 
fragmentation of habitat throughout the range of the species. Although 
some obsolete navigation locks and dams on the Green and Barren Rivers 
have been removed, the historical negative effects associated with 
large reservoir dams and smaller, more numerous low-head dams continue 
to negatively influence the species and its habitats.
Changing Climate Conditions
    Changing climate conditions can affect freshwater mussels, their 
habitat, and their host fish by altering water temperatures and 
precipitation patterns that increase flooding, prolong droughts, or 
reduce stream flows (Nobles and Zhang 2011, pp. 147-148). Increases in 
water temperatures alter fundamental ecological processes, thermal 
suitability of aquatic habitats for resident species, and their 
geographic distribution, thus increasing the likelihood of species 
extinction and loss of biodiversity.
    Climate change may cause changes and shifts in seasonal patterns of 
precipitation and runoff, which can alter the hydrology of stream 
systems, affecting species composition and ecosystem productivity. 
Aquatic organisms are sensitive to changes in frequency, duration, and 
timing of extreme precipitation events such as floods or droughts, 
potentially resulting in interference of reproduction. Further, 
increased water temperatures and seasonally reduced streamflow can 
alter many ecosystem processes, including increases in nuisance algal 
blooms.
    Some nonnative invasive species may be better adapted to the 
effects of climate change, including more tolerance to higher 
temperatures (Ferreira-Rodriguez et al. 2017, entire). Changes in 
presence or combinations of native and nonnative invasive species could 
result in specific ecological responses to changing climate conditions 
that cannot be easily predicted at this time. Shifts in mussel 
community structure may occur in response to climate-induced changes in 
water temperatures since sedentary freshwater mussels have limited 
refugia from disturbances such as droughts and floods, and because they 
are thermo-conformers whose physiological processes are constrained by 
water temperature within species-specific thermal preferences 
(Galbraith et al. 2010, p. 1,176).
    The Kentucky creekshell is particularly vulnerable to climate 
change given its limited spatial distribution as an endemic to the 
Green River basin. The expected effects of climate change in this 
region will lead to more frequent and severe storms and droughts, which 
will destabilize suitable habitat, dewater headwater streams occupied 
by the species, and negatively affect host fish distribution. The 
species is susceptible to droughts that affect smaller streams to a 
greater degree, as well as flooding/scouring events, as the species is 
found in streams with unstable and mobile substrates. Conversely, the 
species is associated with spring-influenced habitats, which may 
provide cool, flowing water during long dry periods.
    Overall, we expect the effects of climate change will negatively 
impact the Kentucky creekshell through changes in hydrology and stream 
flow, water temperature, mussel community structure (including invasive 
species), and drought. These impacts are anticipated to increase in the 
future.
Invasive Species
    Approximately 42 percent of federally threatened or endangered 
species are estimated to be significantly affected by invasive species 
(Pimentel et al. 2004). When an invasive species is introduced into an 
ecosystem, it may have many advantages over native species, such as 
easy adaptation to varying environments and a high tolerance of living 
conditions that allow it to thrive in its new habitat. There may not be 
natural predators to keep the invasive species in check; therefore, it 
can potentially live longer and reproduce more often, further reducing 
the biodiversity in the system. The native species may become an easy 
food source for invasive species, or the invasive species may carry 
diseases that extirpate populations of native species. There are 
several invasive species that affect freshwater mussels (Service 2023, 
p. 23). Currently, only the Asian clam is likely to pose a significant 
risk to the Kentucky creekshell.
    The Asian clam has several competitive advantages over freshwater 
mussels including competing for space and food resources while being 
more tolerant of higher temperatures (Fuller and Richardson 1976, p. 
52, Strayer 1999, p. 82; Ferreira-Rodriguez and Pardo 2017, p. 171; 
Ferreira-Rodriguez et al. 2017, p. 941; Haag et al. 2020, entire). 
While feeding, the Asian clam may ingest large numbers of freshwater 
mussel sperm, glochidia, and newly metamorphosed juveniles that could 
severely alter the reproductive ability of nearby mussel populations 
(Strayer 1999, p. 82). The effect of Asian clams on freshwater mussel 
habitat may also contribute to the below-described enigmatic decline 
(Haag 2019, entire).
    Asian clams grow rapidly and experience a rapid die-off following 
reproduction, causing toxic ammonia spikes in the streams and rivers 
(Scheller 1997, p. 2; Strayer 1999, p. 82; Cherry et al. 2005, p. 377). 
Although we do not have information that the Asian clam is currently 
impacting Kentucky creekshell populations, the clam has been documented 
to outcompete other freshwater mussels and occurs throughout the 
Kentucky creekshell range. We expect the negative effects of this 
nonnative invasive species will continue into the future as well as to 
receive more documented information about the Asian clam's effect on 
native mussel populations once studies are published.
Enigmatic Population Declines
    Enigmatic population declines have been documented in freshwater 
river mussel populations since the 1960s. Mussel populations 
occasionally experience declines in the absence of any obvious cause. 
These declines are termed enigmatic population declines, due to their 
mysterious and currently puzzling nature (Haag 2012, p. 341). The cause 
of these die-offs is unknown, but researchers suspect either disease or 
the introduction of the Asian clam (see section 3.4 of the SSA report) 
are likely factors (Haag 2019, entire; Service 2023, pp. 22-24). 
Contaminants that are not easily observable, such as metals bound in 
sediments, a result of past land cover, could also be a contributor 
(Price et al. 2014, p. 855). Characteristics of enigmatic declines 
include fauna-wide collapse affecting all mussel species, recruitment 
failure leading to a senescent fauna, rapid onset often leading to 
faunal collapse within 10 years, and a faunal collapse that proceeds 
upstream over 10 to 20 years in most cases (Haag 2019, entire). These 
enigmatic declines have been documented within rivers and streams 
occupied by the Kentucky creekshell including: the Nolin River, Drakes 
Creek, and Gasper River, all which have extant Kentucky creekshell 
populations characterized as low resiliency (Haag 2019, p. 49).

[[Page 76204]]

Cumulative/Synergistic Effects

    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.
    Populations that have a small effective population size (number of 
breeding individuals) and that are geographically isolated from one 
another are more vulnerable than more robust populations. The 
fragmentation of habitat segments and isolation caused by instream 
barriers and inundation of riffle habitats contribute to the extinction 
risk that mussel populations face from stochastic events (Haag 2008, p. 
107) and restrict or prevent the movement of host fish.
    Cumulative or synergistic impacts can occur when climate change 
acts as an additional stressor to sensitive freshwater systems, which 
are already adversely affected by a variety of other human impacts, 
such as altered flow regimes and deterioration of water quality. 
Changes in presence or combinations of native and nonnative invasive 
species could result in specific ecological responses to changing 
climate conditions. These types of changes (e.g., increased 
temperatures that are more favorable or more tolerated by a nonnative 
invasive species compared to a native species) can result in novel 
interactions or situations that may necessitate adaptive management 
strategies.
    Depletion of energetic reserves of native mussels to cope with 
increasing temperatures could compromise native mussels' tolerance to 
additional stressors such as competition with invasive species, 
including the Asian clam, or food reduction (Ferreira-Rodriguez and 
Pardo 2017, p. 171) (see Changing Climate Conditions above).

Conservation Efforts and Regulatory Mechanisms

    Large dams in the Green River basin fall into two general 
categories: reservoir dams and navigation dams. Reservoir dams such as 
Rough River Dam, Nolin River Dam, Green River Dam, and Barren River Dam 
are used primarily for hydropower production, flood control, and/or 
municipal water supply. Navigation dams in the species' range include 
the Green River Locks and Dams 1-6 and Barren River Lock and Dam 1. 
Several conservation efforts are occurring in the range of the Kentucky 
creekshell that address habitat fragmentation and isolation of 
populations as well as Kentucky creekshell reintroduction efforts. 
Green River Lock and Dam (L&D) 6 and Barren River L&D 1 were removed in 
2017 and 2022, respectively, through a collaborative effort between 
State and Federal agencies and nongovernmental partners (Compton et al. 
2017, entire). Additionally, a substantial portion of Green River L&D 5 
was removed in 2022 with plans to complete the removal in the fall of 
2024. These dam removals have expanded free-flowing hydrological 
conditions of the Green and Barren Rivers by more than 40 kilometers 
(km) (25 miles (mi)) and have provided increased aquatic habitat 
connectivity throughout much of the Kentucky creekshell range. For 
example, the removal of Barren River L&D 1 in 2022 restored 
approximately 24 continuous km (15 mi) of stream habitat, changing this 
reach from a lentic (still water) habitat into a lotic (moving water) 
habitat suitable for the Kentucky creekshell and its host fish. 
Additionally, this dam removal now connects the Gasper River Kentucky 
creekshell population with the Drakes Creek and Trammel Creek 
populations.
    The Center for Mollusk Conservation (CMC) is a mussel propagation 
facility operated by the Kentucky Department of Fish and Wildlife 
Resources since 2002 with the mission to restore and recover rare and 
imperiled freshwater mollusks. The CMC has been working on propagation 
efforts for the Kentucky creekshell for more than 10 years and has 
reared juveniles for release since 2016 using the banded sculpin and in 
vitro (outside the body) culturing methods since 2021resulting in 
higher numbers of juveniles (McGregor 2023, pers. comm.). Approximately 
4,888 juveniles have been released in 14 locations in the Green River, 
Rough River, South Fork Nolin River, Middle Creek, Russel Creek, 
Walter's Creek, and Nolin River. Propagation efforts are ongoing with 
reintroductions and augmentations scheduled to be released in the fall 
of 2024. However, the post-release survival and reproduction of 
propagated Kentucky creekshell juveniles and the establishment of new 
Kentucky creekshell populations as a result of these releases have not 
been fully assessed.

State Conservation Actions and Laws

    The Kentucky creekshell is State-listed as endangered in Kentucky. 
This listing status protects the species by prohibiting any person from 
the import, transport, possession for resale or sale of the Kentucky 
creekshell or parts (shell, etc.) (KRS Sec.  150.180). The Kentucky 
creekshell is not currently listed by the State of Tennessee. The 
Kentucky creekshell and its habitats are afforded some protection from 
water quality and habitat degradation under Kentucky's Forest 
Conservation Act of 1998 (KRS Sec. Sec.  149.330-149.355), Kentucky's 
Agriculture Water Quality Act of 1994 (KRS Sec. Sec.  224.71-224.140) 
and the Tennessee Water Quality Control Act of 1971 (TN Code Sec.  69-
3-121). Although the protections afforded by these statutes and 
regulations are not directed specifically towards Kentucky creekshell 
and have not prevented the degradation of some habitats used by the 
Kentucky creekshell, there have been some improvements in water quality 
and habitat conditions in areas occupied by the species stemming from 
these regulatory mechanisms.
    The Kentucky creekshell is identified as a Species of Greatest 
Conservation Need in Kentucky's State Wildlife Action Plan (SWAP). By 
identifying declining or rare species and management or protection 
needed to improve their conservation status, the SWAP intends to guide 
management and conservation of species and habitats before they become 
too rare or costly to restore. The Kentucky creekshell has a State rank 
of S1S2 (imperiled) with the highest priority for the State. Actions 
outlined in the SWAP to benefit Kentucky creekshell include population 
monitoring, propagation, augmentation of existing low-resilient 
populations, and further genetic or taxonomic studies. Conservation 
issues identified by the SWAP include dams and water management/use, 
ecosystem modifications, and pollution (Kentucky Department of Fish and 
Wildlife Resources 2023, entire). The Kentucky creekshell is not listed 
in the Tennessee SWAP plan as it was not known to occur in the State at 
the time the latest SWAP plan was written.

Federal Laws

    The Kentucky creekshell and its habitats are afforded some 
protection from water quality and habitat degradation under the Clean 
Water Act. While the protections afforded are not directed specifically 
towards Kentucky creekshell and have not prevented the

[[Page 76205]]

degradation of some habitats used by the Kentucky creekshell, there 
have been certain improvements in water quality and habitat conditions 
stemming from these regulatory mechanisms.
    The Kentucky creekshell receives incidental protection under the 
Endangered Species Act because populations in portions of the Barren 
River and Green River share habitats with multiple federally listed 
mussels and critical habitat. Some of these mussels include the 
fanshell (Cyprogenia stegaria), rough pigtoe (Pleurobema plenum), 
spectaclecase (Cumberlandia monodonta), pink mucket (Lampsilis 
abrupta), and sheepnose mussel (Plethobasus cyphyus); and critical 
habitat for the longsolid (Fusconaia subrotunda) and round hickorynut 
(Obovaria subrotunda). Section 7 of the Act requires Federal agencies 
to consult with the Service on any action that may affect a listed 
species or any action that may destroy or adversely modify critical 
habitat. Section 9 of the Act also provides protection against ``take'' 
of the species (``take'' means to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or attempt to engage in any 
such conduct). In Kentucky, streams supporting federally threatened or 
endangered species receive additional protection under Kentucky's water 
quality standards. Pursuant to 401 KAR Sec. Sec.  10:031, Section 8, 
the existing water quality and habitat of these Outstanding State 
Resource Waters (OSRWs) shall be maintained and protected, unless it 
can be demonstrated that lowering of water quality or a habitat 
modification will not have a harmful effect on the threatened or 
endangered species that the water supports. Kentucky Pollutant 
Discharge Elimination System permits associated with OSRWs typically 
contain additional requirements designed to protect waters supporting 
listed species.
    It is also unlawful under the Lacey Act (see 16 U.S.C. 
3372(a)(2)(A)) to import, export, transport, sell, receive, acquire, or 
purchase in interstate or foreign commerce any fish or wildlife taken, 
possessed, transported, or sold in violation of any law or regulation 
of any State. Because the possession of Kentucky creekshell is illegal 
in Kentucky, interstate or international sale of individuals collected 
is prohibited by the Lacey Act.

Current Condition

    The Kentucky creekshell's range and distribution has declined over 
time. Four of 13 analytical units (AUs) are now extirpated. In our SSA 
analyses, we considered an analytical unit extant if it contained 
records after 2003. We considered AUs with observations prior to 2003 
(and no more recent observations) as historical. We considered 
analytical units to be extirpated if no individuals were detected since 
1973, indicating a 50-year absence. This species was formerly the most 
abundant species found in the Nolin River in the 1960s, and hundreds of 
shells were found in the 1980s. Very few individuals have been found in 
this system since 2003. On the Green River mainstem at Munfordville, 
hundreds of live individuals were found, and hundreds of shells were 
collected multiple times during the 1960s, whereas a 2022 survey 
targeting the species for propagation efforts in the same general 
location found just three individuals in 24 person-hours search time.
    In our SSA, we describe the current condition of the species using 
categories that estimate overall condition (resiliency) of the Kentucky 
creekshell populations. We identified five major factors that act or 
will act on the viability of Kentucky creekshell populations. These 
include habitat loss and degradation (i.e., aquatic degrading land 
cover, siltation/sedimentation, gravel mining, impoundment effects), 
climate change, invasive species, enigmatic population declines, and 
conservation actions. See chapter 4 in the SSA report for further 
explanation of the analysis methodology (Service 2023, pp. 28-31). The 
Kentucky creekshell is known historically from 13 AUs. Historical 
populations in the Lower Nolin River, Bays Fork-Barren River, Skaggs 
Creek, Little Muddy Creek-Barren River are now considered to be 
extirpated, and current condition was not assessed for these AUs. 
Currently, the Kentucky creekshell occurs in nine AUs in the Green 
River Basin. We assessed the current condition of these nine AUs to 
inform species' current viability. We determined no AU currently 
exhibits high resiliency, two AUs exhibit moderate resiliency, and 
seven AUs exhibit low resiliency. To assess resiliency, we considered 
five variables for each AU--instream habitat (substrates), percent of 
suitable land cover, length of occupied reaches, abundance of 
individuals on surveys, and connectivity as a result of the presence or 
absence of dams/barriers. The two moderately resilient AUs are 
characterized by higher habitat condition scores (substrates, land 
cover, and connectivity) and higher extent of occupancy than low-
resiliency AUs. The Kentucky creekshell currently occurs in a limited 
number of populations/watersheds that are disjunct from each other. 
Each of those populations is very small, and only a small portion of 
those populations is reproducing. It is not clear or expected that 
these populations can sustain themselves at such low levels, which 
elevates the risk of local extirpations. In addition, the majority of 
AUs have low resiliency (seven of nine), and the two moderate-
resiliency AUs are impacted by existing and ongoing threats, such as 
low population numbers and sedimentation, as well as increasing threats 
from urbanization and incompatible land use changes.
    Representation describes the ability of a species to adapt to 
changing environmental conditions over time and is characterized by the 
breadth of genetic and environmental diversity within and among 
populations. The more representation a species has, the more it is 
capable of adapting to changes (natural or human caused) in its 
environment. We determined the Kentucky creekshell's current 
representation by assessing attributes that demonstrate a species' 
inherent adaptive capacity. These attributes relate to the species' 
ability to shift in space or persist in place in response to changing 
environmental conditions. We found that the species' representation is 
moderate given its inherent ability to adapt to change. Movement and 
abiotic niche are deemed to be low for the species because it cannot 
readily move away from stressors, and it relies on a fish host with a 
relatively small home range. However, many characteristics such as 
minimal parental investment, high fecundity, and multiple reproductive 
cycles in lifetime are high abilities to adapt to change for the 
species. The combination of high and low abilities to adapt to change 
bring us to conclude that the species exhibits moderate representation.
    We have determined the species' current redundancy to be low based 
on its geographically small range, limiting preferred habitat; lack of 
connectivity between and among populations; and lack of highly 
resilient AUs. Low redundancy means the Kentucky creekshell is more 
vulnerable to catastrophic events than species with higher redundancy. 
Potential catastrophes that could affect the species include extreme, 
range-wide drought or a chemical or other hazardous waste spill that 
affects water quality conditions across multiple populations.
    In summary, the Kentucky creekshell currently occurs in a limited 
number of populations/watersheds that are disjunct from each other. The 
majority

[[Page 76206]]

of AUs have low resiliency (seven of nine), and the two moderate-
resiliency AUs are impacted by existing and ongoing threats, such as 
low population numbers and sedimentation, as well as increasing threats 
from urbanization and incompatible land use changes.
    As part of the SSA, we also developed two plausible future-
condition scenarios to capture the range of future viability including 
future threats and the projected responses by the Kentucky creekshell. 
We evaluated the future condition of the Kentucky creekshell in 2040 
and 2060 by assessing future land cover change and climate change under 
high emissions and lower emissions scenarios. Because we determined 
that the current condition of the Kentucky creekshell is consistent 
with an endangered species (see Determination of the Kentucky 
Creekshell's Status), we are not presenting the results of the future 
scenarios in this proposed rule. Please refer to the SSA report 
(Service 2023, pp. 43-49) for the full analysis of future scenarios.

Determination of the Kentucky Creekshell'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.

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, we determined the Kentucky creekshell currently has limited 
resiliency, redundancy, and representation and is expected to decline 
further. Historically, the Kentucky creekshell was known from 13 AUs in 
the Green River basin. Historical populations in the Lower Nolin River, 
Bays Fork-Barren River, Skaggs Creek, and Little Muddy Creek-Barren 
River are now considered to be extirpated, and the species is currently 
known from 9 AUs. Current factors affecting the species' viability 
include loss and degradation of suitable habitat, low connectivity 
(i.e., isolation by dams), and small population size. There is not 
enough evidence yet to assess the direct effects of invasive species, 
enigmatic population declines, or conservation actions on Kentucky 
creekshell or its host fish. We determined that seven analytical units 
exhibit low current resiliency, two analytical units exhibit moderate 
resiliency, and no units exhibit high resiliency. Current resiliency is 
driven by poor instream habitat, low percent of suitable land cover, 
abundance as detected on recent surveys, shorter occupied reaches, and 
lack of connectivity due to dams/barriers.
    With regard to the species' adaptive capacity, the Kentucky 
creekshell has moderate representation at the species level, with an 
inherent capacity to adapt in place. The species' redundancy is low 
based on its geographically small range, limiting preferred habitat; 
lack of connectivity with other populations; and lack of highly 
resilient analytical units or populations.
    Thus, after evaluating the best available information and as a 
result of the combination of these factors, the threats have a high 
imminence and magnitude such that they are significantly affecting the 
species' current viability. Accordingly, the species meets the 
definition of an endangered species.
    We do not find the Kentucky creekshell meets the definition of a 
threatened species because the species has already shown dramatic 
declines in abundance and resiliency of its populations. With the 
majority of populations in low resiliency, the species' condition is 
currently in poor condition and is expected to decline over time due to 
existing threats, such as low population numbers and sedimentation, as 
well as increasing threats in some of the watersheds from increasing 
urbanization and incompatible land use changes. The Kentucky creekshell 
has low redundancy and moderate species-level representation, with an 
inherent capacity to adapt to changing environmental conditions but 
increased vulnerability to catastrophic events because it cannot 
readily move away from stressors, and it relies on a fish host with a 
relatively small home range. Thus, after assessing the best available 
information, we determine that Kentucky creekshell is in danger of 
extinction 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. We have determined that the Kentucky creekshell is in danger 
of extinction throughout all of its range and accordingly did not 
undertake an analysis of any significant portion of its range. Because 
the Kentucky creekshell warrants listing as endangered throughout all 
of its range, our determination does not conflict with the decision in 
Center for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C. 
2020), because that decision related to significant portion of the 
range analyses for species that warrant listing as threatened, not 
endangered, throughout all of their range.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the Kentucky creekshell meets the definition 
of an endangered species. Therefore, we propose to list the Kentucky 
creekshell as an endangered species in accordance with sections 3(6) 
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, foreign 
governments, 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

[[Page 76207]]

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 
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 Kentucky 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 Kentucky and Tennessee 
would be eligible for Federal funds to implement management actions 
that promote the protection or recovery of the Kentucky creekshell. 
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 Kentucky creekshell 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 Kentucky creekshell 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. Department of Agriculture, Environmental 
Protection Agency, or National Park Service (NPS) 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 (USACE) under 
section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) 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. Federal 
agencies should coordinate with the Kentucky Ecological Services Field 
Office (see FOR FURTHER INFORMATION CONTACT) with any specific 
questions on section 7 consultation and conference requirements.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered wildlife. 
The prohibitions of section 9(a)(1) of the Act, and the Service's 
implementing regulations codified at 50 CFR 17.21, make it illegal for 
any person subject to the jurisdiction of the United States to commit, 
to attempt to commit, to solicit another to commit or to cause to be 
committed any of the following acts with regard to any endangered 
wildlife: (1) import into, or export from, the United States; (2) take 
(which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect) within the United States, within the territorial 
sea of the United States, or on the high seas; (3) possess, sell, 
deliver, carry, transport, or ship, by any means whatsoever, any such 
wildlife that has been taken illegally; (4) deliver, receive, carry, 
transport, or ship in interstate or foreign commerce, by any means 
whatsoever and in the course of commercial activity; or (5) sell or

[[Page 76208]]

offer for sale in interstate or foreign commerce. Certain exceptions to 
these prohibitions apply to employees or agents of the Service, NMFS, 
other Federal land management agencies, and State conservation 
agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered wildlife under certain circumstances. Regulations 
governing permits for endangered wildlife are codified at 50 CFR 17.22, 
and general Service permitting regulations are codified at 50 CFR part 
13. With regard to endangered wildlife, a permit may be issued: for 
scientific purposes, for enhancing the propagation or survival of the 
species, or for take incidental to otherwise lawful activities. The 
statute also contains certain exemptions from the prohibitions, which 
are found in sections 9 and 10 of the Act.

II. 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 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 action 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 designated 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 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 compiled in 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)

[[Page 76209]]

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 section 9 of the Act. 
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 scientific data 
available 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 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.

Summary of Essential Physical or Biological Features

    As described in Summary of Biological Status and Threats, the 
Kentucky creekshell is a freshwater mussel that occurs in rivers and 
streams. Occasional or regular interaction among individuals in 
different reaches not interrupted by a barrier likely occurs, but in 
general, interaction is strongly influenced by habitat fragmentation 
and distance between occupied river or stream reaches. Once released 
from their fish host, freshwater mussels are benthic, generally 
sedentary aquatic organisms and closely associated with appropriate 
habitat patches within a river or stream.
    We derive the specific physical or biological features essential to 
the conservation of the Kentucky creekshell from studies of the 
species' habitat, ecology, and life history as described below. The 
primary habitat elements that influence resiliency of the Kentucky 
creekshell include water quality, water quantity, substrate, habitat 
connectivity, and the presence of host fish species to ensure 
recruitment. Adequate flows ensure delivery of oxygen, enable 
reproduction, deliver food to filter-feeding mussels, and reduce 
contaminants and fine sediments from interstitial spaces. Stream 
velocity is not static over time, and variations may be attributed to 
seasonal changes (with higher flows in winter/spring and lower flows in 
summer/fall), extreme weather events (e.g., drought or floods), or 
anthropogenic influence (e.g., flow regulation via impoundments). 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; the resource and demographic needs for breeding, 
feeding, sheltering, and dispersal of the Kentucky creekshell include 
the following: (1) Adequate freshwater availability (water quantity) 
and sufficient water quality, including spring-influenced river 
sections; (2) appropriate substrates; (3) sufficient food and 
nutrition; (4) availability of sufficient host fish numbers; (5) 
connected instream habitats; and (6) appropriate abundance, density, 
and distribution of mussel beds (aggregations of freshwater mussels).
    Additional information can be found in the SSA report (Service 
2023, entire; available on https://www.regulations.gov under Docket No. 
FWS-R4-ES-2024-0065). We have determined that the following physical or 
biological features are essential to the conservation of the Kentucky 
creekshell:
    (1) Water quantity and quality necessary to sustain natural 
physiological processes for normal behavior, growth, and viability of 
all life stages, including (but not limited to): water conditions in 
the stream that are cool; are well-oxygenated with no evidence of 
excessive sediments or suspended solids, salinity, ammonia, nutrients, 
pesticides, or herbicides; and have a stream flow and pattern 
consistent with natural flow regimes. Spring-influenced river sections 
are important habitat types for this species as most Kentucky 
creekshell populations are associated with this habitat type, and this 
is also the preferred habitat type for the host fish, the banded 
sculpin.
    (2) Suitable substrates and connected instream habitats 
characterized by geomorphically stable stream channels and banks (i.e., 
channels that maintain lateral dimensions, longitudinal profiles, and 
sinuosity patterns over time without an aggrading or degrading bed 
elevation) and stable riffle-run-pool habitats that provide flow 
refuges consisting of predominantly silt-free, stable coarse sand, 
gravel, and cobble substrates.
    (3) Adequate food availability for Kentucky creekshell including 
(but not limited to): suspended phytoplankton, zooplankton, rotifers, 
protozoans, detritus, and dissolved organic matter from the water 
column or sediments.
    (4) Habitat conditions that support the presence and abundance of 
banded sculpin, the host fish necessary for Kentucky creekshell 
recruitment, as well as the actual presence and

[[Page 76210]]

abundance of the banded sculpin in the habitat.
    (5) Connected instream habitats without barriers such as dams and 
perched or undersized culverts to provide suitable lotic rather than 
lentic habitat; access to quality habitat for multiple life stages of 
Kentucky creekshell; access for host fish movement, which in turn, may 
influence Kentucky creekshell distribution and provide genetic exchange 
for both species and recolonization of Kentucky creekshell.
    (6) Appropriate abundance, density, and distribution of mussel beds 
(aggregations of freshwater mussels) such that local stochastic events 
do not necessarily eliminate the bed(s), allowing the mussel beds and 
the overall local population within a stream reach to recover from any 
single event and for resilient populations.

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 Kentucky 
creekshell may require special management considerations or protections 
to reduce the following threats:
    (1) Alteration of the natural flow regime (modifying the natural 
hydrograph and seasonal flows), including groundwater and surface water 
withdrawal as well as water releases from impoundments and reservoirs, 
resulting in hydrological instability, high shear stress, and scour.
    (2) significant alteration of water quality and nutrient pollution 
from a variety of activities, such as urban development, mining, and 
agricultural activities;
    (3) alteration of instream substrate, stream channels, and stream 
banks from a variety of activities, including but not limited to those 
that cause stream siltation and sedimentation, destabilize stream 
channels, and result in the removal of riparian vegetation (e.g., 
instream gravel mining, agriculture, channelization, construction 
projects, and land development);
    (4) urbanization of the landscape, including (but not limited to) 
land conversion for residential, commercial, and industrial uses and 
the accompanying infrastructure (impervious surfaces, pipelines, roads, 
bridges, utilities), and urban water uses (resource extraction 
activities, water supply reservoirs, wastewater treatment, etc.);
    (5) land use activities that remove large areas of forested 
wetlands and riparian systems;
    (6) dam, culvert and pipe, or other instream installations that 
create barriers to movement for the Kentucky creekshell, or their host 
fish, the banded sculpin;
    (7) impacts from invasive species;
    (8) changes and shifts in seasonal temperature and precipitation 
patterns as a result of climate change; and
    (9) other watershed and floodplain disturbances that release 
sediments, pollutants, or nutrients into the water.
    Management activities that could ameliorate these threats include 
but are not limited to: use of best management practices designed to 
reduce sedimentation, erosion, and bank destruction; protection of 
riparian corridors and woody vegetation; protection of groundwater and 
spring-fed streams and moderation of surface and ground water 
withdrawals to maintain natural flow regimes; use of best management 
practices when releasing water from reservoirs/impoundments; improved 
stormwater management; reduction of other watershed and floodplain 
disturbances that release sediments, pollutants, or nutrients into the 
water; removal of instream barriers; prevention of instream gravel 
mining; and controlling invasive species.

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 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 proposing to designate critical habitat in areas within the 
geographical area occupied by the species at the time of listing. We 
also are proposing to designate specific areas outside the geographical 
area occupied by the species because we have determined those areas are 
essential for the conservation of the species. Rangewide recovery 
considerations, such as maintaining existing genetic diversity and 
representation of all major portions of the species' current range, 
were considered in formulating this proposed critical habitat 
designation. Given the Kentucky creekshell's substantial lost 
historical range and currently fragmented populations, we are 
designating unoccupied areas. The unoccupied critical habitat areas we 
are adding each contain one or more physical or biological features 
essential to the conservation of the Kentucky creekshell (although not 
required by 50 CFR 424.12). These features include suitable water 
quality and quantity, substrates, food, host fish, connected instream 
habitat, and/or mussel beds. Designating unoccupied areas would aid in 
increasing the species' currently low redundancy, as having additional 
protected and connected habitat will contribute to the conservation of 
the species as it will allow the species to expand in the future 
through recovery efforts. Thus, the unoccupied units we are designating 
are essential for the conservation of the Kentucky creekshell.
    Sources of data for this proposed critical habitat designation 
include multiple databases maintained by universities, information from 
State agencies throughout the species' range, and survey reports on 
streams throughout the species' range (see SSA report (Service 2023, 
entire)). We have also reviewed available information that pertains to 
the habitat requirements of this species. Sources of information on 
habitat requirements include studies conducted at occupied sites, 
agency reports, and data collected during monitoring efforts (Service 
2023, entire).
    In summary, for areas within the geographical area occupied by the 
species at the time of listing, we delineated occupied critical habitat 
unit boundaries using the following criteria:
    (1) Stream reaches with species occurrences after 2003;
    (2) Suitable habitat with at least one physical or biological 
feature present, such as suitable substrates and spring-influenced 
river reaches;
    (3) A stream reach that provides a connective corridor between 
populations; and/or
    (4) A stream reach that may contain a historical Kentucky 
creekshell occurrence.
    For areas within the geographical area not occupied by the species 
at the time of listing, we delineated unoccupied critical habitat unit 
boundaries using the following criteria:
    (1) Stream reaches with species occurrences before 2003 or expert 
opinion that the species likely once existed in the reach;
    (2) Suitable habitat with at least one physical or biological 
feature present,

[[Page 76211]]

such as suitable substrates and spring-influenced river reaches; and
    (3) A stream reach that provides a connective corridor between 
populations or provides a logical reintroduction location for the 
recovery of a unit.
    In addition, we determined the upstream extent of critical habitat 
units as the first perennial tributary confluence upstream of the 
upstream-most occurrence record and the downstream extent as the mouth 
of the stream of the farthest downstream record. The lateral extent of 
each unit includes the bankfull width of the stream. We considered 
portions of the Kentucky creekshell's historical, current range as well 
as any stream segment that had one or more PBFs that would contribute 
to the continuation of the species. 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. 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 areas 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. We have also identified, and propose for designation as 
critical habitat, four unoccupied areas that are essential for the 
conservation of the species. These unoccupied areas all have one or 
more of the physical or biological features present to support Kentucky 
creekshell's life-history processes.
    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.

Proposed Critical Habitat Designation

    We are proposing 10 units as critical habitat for Kentucky 
creekshell. The critical habitat areas we describe below constitute our 
current best assessment of areas that meet the definition of critical 
habitat for Kentucky creekshell. Critical habitat includes only stream 
channels up to bankfull height, where the stream base flow is contained 
within the channel. The 10 areas that we propose as critical habitat 
are: (1) Green River; (2) Barren River; (3) Gasper River; (4) Drakes 
Creek; (5) Trammel Creek; (6) Salt Lick Creek; (7) Russell Creek; (8) 
Middle Nolin River; (9) Upper Nolin River; and (10) Rough River. Table 
1 shows the proposed critical habitat units and the approximate area of 
each unit.

                        Table 1--Proposed Critical Habitat Units for Kentucky Creekshell
                   [Area estimates reflect all land within critical habitat unit boundaries.]
----------------------------------------------------------------------------------------------------------------
                                        Adjacent riparian land  Length of unit in miles
  Critical habitat unit number/name           ownership               (kilometers)              Occupied?
----------------------------------------------------------------------------------------------------------------
Unit 1: Green River, Subunit 1a        Private, NPS, State                72.21 (116.2)  Yes.
 (Green River).                         agency.
                                                                             0.67 (1.1)
                                                                             0.12 (0.2)
                                                                   Total = 73.0 (117.5)
Unit 1: Green River, Subunit 1b        Private, NPS...........              50.2 (80.8)  No.
 (Green River).
                                                                             7.5 (12.1)
                                                                    Total = 57.7 (92.9)
Unit 2: Barren River.................  Private................             79.9 (128.6)  No.
Unit 3: Gasper River.................  Private................                52.8 (85)  Yes.
Unit 4: Drakes Creek.................  Private................              55.1 (88.7)  Yes.
Unit 5: Trammel Creek................  Private................              15.9 (25.6)  Yes.
Unit 6: Salt Lick Creek..............  Private................              19.1 (30.7)  Yes.
Unit 7: Russell Creek................  Private................              53.7 (86.4)  Yes.
Unit 8: Middle Nolin River, Subunit    Private, USACE, State                53.7 (86.4)  No.
 8a (Nolin River).                      agency.
                                                                            0.38 (0.63)
                                                                            0.39 (0.68)
                                                                    Total = 54.5 (87.7)
Unit 8: Middle Nolin River Subunit 8b  Private, USACE.........               9.8 (15.9)  Yes.
 (Round Stone Creek).
                                                                            0.02 (0.03)
                                                                     Total = 9.9 (15.9)
Unit 9: Upper Nolin River............  Private, State Agency..              21.3 (34.3)  Yes.
                                                                              2.6 (4.2)
                                                                    Total = 23.9 (38.5)
Unit 10: Rough River Subunit 10a       Private, USACE.........              35.8 (57.6)  Yes.
 (Rough River and Meeting Creek).
                                                                              1.6 (2.7)
                                                                    Total = 37.5 (60.4)
Unit 10: Rough River Subunit 10b       Private, USACE.........              11.3 (18.2)  No.
 (Clifty Creek).
                                                                            0.34 (0.54)

[[Page 76212]]

 
                                                                    Total = 11.6 (18.7)
                                                               -------------------------------------------------
    Total............................  .......................            544.6 (876.4)  .......................
----------------------------------------------------------------------------------------------------------------
Note: Miles may not sum due to rounding.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for Kentucky creekshell, below.

Unit 1: Green River

    Unit 1 consists of a total of 130.7 river miles (210.4 km) within 
two subunits; one that is occupied, and one that is unoccupied habitat. 
Subunit 1a (Green River) is occupied, while Subunit 1b (Green River) is 
unoccupied.
    Subunit 1a (Green River): Subunit 1a consists of 73.0 river miles 
(117.5 km) of Green and Hart Counties, Kentucky, from the confluence of 
Russell Creek near Greensburg, Kentucky, downstream to the Edmonson 
County line in Mammoth Cave National Park. Nearly all (approximately 99 
percent) of the lands adjacent to Subunit 1a are privately owned 
including lands managed under the Green River Watershed conservation 
easement by The Nature Conservancy. The remaining lands adjacent to 
this subunit (one percent) include parts of the Mammoth Cave National 
Park, managed by the National Park Service, and Western Kentucky 
University's Upper Green River Biological Preserve, which is managed by 
the State of Kentucky. Subunit 1a is considered occupied by the species 
and contains the physical or biological features 1 through 6 (See 
Summary of Essential Physical or Biological Features) essential to the 
conservation of the species.
    Threats identified within this unit include alteration of the 
natural flow regime; significant alteration of water quality and 
nutrient pollution; urbanization of the landscape; land use activities 
that remove large areas of forested wetlands and riparian systems; dam, 
culvert and pipe, or other instream installations that create barriers 
to movement; impacts from invasive species; changes and shifts in 
seasonal temperature and precipitation patterns as a result of climate 
change; and other watershed and floodplain disturbances that release 
sediments, pollutants, or nutrients into the water. Special management 
considerations or protection measures to reduce or alleviate the 
threats may include use of best management practices designed to reduce 
sedimentation, erosion, and bank destruction; protection of riparian 
corridors and woody vegetation; protection of groundwater and spring-
fed streams and moderation of surface and ground water withdrawals to 
maintain natural flow regimes; use of best management practices when 
releasing water from reservoirs/impoundments; improved stormwater 
management; reduction of other watershed and floodplain disturbances 
that release sediments, pollutants, or nutrients into the water; 
removal of instream barriers; prevention of instream gravel mining; and 
controlling invasive species (see Special Management Considerations or 
Protection).
    Subunit 1b (Green River): Subunit 1b consists of 57.7 river miles 
(92.9 km) of Edmonson, Butler, and Warren Counties, Kentucky. The unit 
is located from the Edmonson County line in Mammoth Cave National Park 
to the confluence with the Barren River in Woodbury, Kentucky. 
Approximately 87 percent of the lands adjacent to Subunit 1b are owned 
by private entities, and the remaining 13 percent is managed by the 
National Park Service for the Mammoth Cave National Park. Subunit 1b is 
currently unoccupied by the species and contains the physical or 
biological features 1 through 4, and 6 (See Summary of Essential 
Physical or Biological Features) essential to the conservation of the 
species. The unit will contain physical and biological feature 5 once 
Green River Lock and Dam 5 is completely removed (see below for more 
details).
    Threats identified within this unit includes alteration of the 
natural flow regime; significant alteration of water quality and 
nutrient pollution; urbanization of the landscape; land use activities 
that remove large areas of forested wetlands and riparian systems; dam, 
culvert and pipe, or other instream installations that create barriers 
to movement; impacts from invasive species; changes and shifts in 
seasonal temperature and precipitation patterns as a result of climate 
change; and other watershed and floodplain disturbances that release 
sediments, pollutants, or nutrients into the water. Special management 
considerations or protection measures to reduce or alleviate the 
threats may include use of best management practices designed to reduce 
sedimentation, erosion, and bank destruction; protection of riparian 
corridors and woody vegetation; protection of groundwater and spring-
fed streams and moderation of surface and ground water withdrawals to 
maintain natural flow regimes; use of best management practices when 
releasing water from reservoirs/impoundments; improved stormwater 
management; reduction of other watershed and floodplain disturbances 
that release sediments, pollutants, or nutrients into the water; 
removal of instream barriers; prevention of instream gravel mining; and 
controlling invasive species.
    Suitable habitat in this area was lost during the construction of 
Green River Lock and Dam (GRLD) 5 and 6 in the early 1900s, which 
isolated the Green River populations from the Barren River populations; 
however, with the removal of GRLD 6 in 2017 and partial removal of GRLD 
5 in 2022 (with full removal expected in fall 2024), suitable habitat 
has been gradually restored. Although some evidence suggests that 
Kentucky creekshell populations in subunit 1b may not have been as 
abundant as in subunit 1a due to changes in karst landscape 
characteristics, experts still believe that they were sufficient to 
facilitate genetic exchange between the Green River and Barren River 
populations (Compton 2023, pers. comm.).
    The Green River mainstem plays a crucial role in the conservation 
of the Kentucky creekshell as it serves as the sole link between 
populations in the Green River and populations in the Barren River. 
Reintroduction efforts in this subunit will help preserve genetic 
diversity and facilitate the exchange of genes between populations in 
Unit 1a, which is occupied and begins at the confluence of Russell 
Creek near Greensburg, and populations in Unit 7, upstream from Unit 
1a, downstream to the confluence of the Barren River near

[[Page 76213]]

Woodbury. For these reasons, this unit is essential for the 
conservation of the species.

Unit 2: Barren River

    Unit 2 consists of 79.9 river miles (128.6 km) of Barren River in 
Butler, Warren, Allen, and Barren Counties, Kentucky, from the Barren 
River Lake dam in Barren and Allen Counties to the confluence of the 
Green River in Butler and Warren Counties. Approximately 79.4 river 
miles (127.8 km; 99 percent) of riparian lands that border the unit are 
in private ownership, and 0.46 stream mile (0.74 km; less than 1 
percent) is in Federal (Barren River Lake; USACE) ownership. Unit 2 is 
considered currently unoccupied by the species and contains the 
physical or biological features 1 through 4, and 6 (See Summary of 
Essential Physical or Biological Features) essential to the 
conservation of the species.
    Threats identified within this unit includes alteration of the 
natural flow regime, alteration of instream substrate, urbanization of 
the landscape, impacts from invasive species, and dam, culvert and 
pipe, or other instream installations. Special management 
considerations or protection measures to reduce or alleviate the 
threats may include the use of best management practices designed to 
reduce sedimentation, erosion, and bank destruction; protection of 
riparian corridors and woody vegetation; protection of ground water and 
spring-fed streams and moderation of surface and ground water 
withdrawals to maintain natural flow regimes; use of best management 
practices when releasing water from reservoirs/impoundments; improved 
stormwater management; reduction of other watershed and floodplain 
disturbances that release sediments, pollutants, or nutrients into the 
water; removal of instream barriers; and controlling impacts from 
invasive species (see Special Management Considerations or Protection).
    This unit serves a critical role in conservation by providing the 
sole connection between populations in the Barren River tributaries and 
those in the Green River; thus, it is essential for the conservation of 
the Kentucky creekshell. The species was extirpated along the mainstem 
Barren River following the construction of Barren River Lock and Dam 1 
in the 1930s, which created extensive unsuitable habitat for the 
Kentucky creekshell and its host fish, leading to the isolation and 
restriction of populations to the tributaries. However, the dam's 
removal in 2022 has led to the rapid restoration of suitable habitat 
along the river.
    An influence on the species in this unit is a small rock dam 
barrier between the Gasper River and the Drakes/Trammel Creek 
populations. While this barrier may impede gene flow, experts believe 
it may still allow for some connectivity, resembling a large riffle 
through which the banded sculpin (Kentucky creekshell host fish) could 
likely pass (Compton 2023, pers. comm.). To reestablish gene flow 
between the Barren River tributaries and the Green River populations, 
reintroductions of captively propagated individuals should be 
undertaken along this section.

Unit 3: Gasper River

    Unit 3 consists of 52.8 river miles (85.0 km) of the Gasper River, 
Wiggington Creek, and Clear Fork Creek in Warren and Logan Counties, 
Kentucky. This unit includes Wigginton Creek from the headwaters near 
Rogers, Kentucky, to the confluence with Gasper River; Clear Fork Creek 
from the headwaters near US HWY 68 bridge to the confluence with Gasper 
River; and the Gasper River from headwaters near Auburn, Kentucky, to 
the confluence with the Barren River. All riparian lands that border 
the unit are in private ownership. Unit 3 is considered occupied by the 
species and contains the physical or biological features 1 through 5 
(see Summary of Essential Physical or Biological Features) essential to 
the conservation of the species.
    Threats identified within this unit includes significant alteration 
of water quality and nutrient pollution; alteration of instream 
substrate, stream channels, and stream banks; impacts from invasive 
species; changes and shifts in seasonal temperature and precipitation 
patterns as a result of climate change; and other watershed and 
floodplain disturbances that release sediments, pollutants, or 
nutrients into the water. Special management considerations or 
protection measures to reduce or alleviate the threats may include best 
management practices designed to reduce sedimentation, erosion, and 
bank destruction; protection of riparian corridors and woody 
vegetation; protection of ground water and spring-fed streams; 
reduction of other watershed and floodplain disturbances that release 
sediments, pollutants, or nutrients into the water; prevention of 
instream gravel mining; and controlling invasive species (see Special 
Management Considerations or Protection).
    The mainstem Gasper River connects Wiggington Creek and Clear Fork 
Creek, and other historically occupied tributaries, with the mainstem 
Barren River. Including this unit protects occupied habitat for 
improved redundancy throughout the range and protects connections to 
other occupied habitat in these areas, all of which contributes to the 
conservation of the Kentucky creekshell.

Unit 4: Drakes Creek

    Unit 4 consists of 55.1 river miles (88.7 km) of Drakes Creek, West 
Fork Drakes Creek, and Lick Creek in Warren and Simpson Counties, 
Kentucky. This unit includes Drakes Creek from the confluence of West 
Fork Drakes Creek and Middle Fork Drakes Creek downstream to the 
confluence with the Barren River near Bowling Green, Kentucky; West 
Fork Drakes Creek from the West Fork Drakes Creek Reservoir in 
Franklin, Kentucky, downstream to the confluence with Drakes Creek; and 
Lick Creek from the Scottsville Road bridge to the confluence with West 
Fork Drakes Creek. All of the riparian lands that border the unit are 
in private ownership. Unit 4 is considered occupied by the species and 
contains the physical or biological features 1 through 4 (see Summary 
of Essential Physical or Biological Features) essential to the 
conservation of the species.
    Threats identified within this unit include significant alteration 
of water quality and nutrient pollution; alteration of instream 
substrate, stream channels, and stream banks; impacts from invasive 
species; changes and shifts in seasonal temperature and precipitation 
patterns as a result of climate change; and other watershed and 
floodplain disturbances that release sediments, pollutants, or 
nutrients into the water. Special management considerations or 
protection measures to reduce or alleviate the threats may include best 
management practices designed to reduce sedimentation, erosion, and 
bank destruction; protection of riparian corridors and woody 
vegetation; protection of ground water and spring-fed streams; 
reduction of other watershed and floodplain disturbances that release 
sediments, pollutants, or nutrients into the water; prevention of 
instream gravel mining; and controlling invasive species (see Special 
Management Considerations or Protection).

Unit 5: Trammel Creek

    Unit 5 consists of 15.9 river miles (25.6 km) of Trammel Creek in 
Warren and Allen Counties, Kentucky, from the

[[Page 76214]]

confluence with John's Creek near Butlersville, Kentucky, downstream to 
its confluence with Drakes Creek. Unit 5 is considered occupied by the 
species and contains the physical or biological features 1 through 5 
(see Summary of Essential Physical or Biological Features).
    Threats identified within this unit include significant alteration 
of water quality and nutrient pollution; alteration of instream 
substrate, stream channels, and stream banks; impacts from invasive 
species; changes and shifts in seasonal temperature and precipitation 
patterns as a result of climate change; and other watershed and 
floodplain disturbances that release sediments, pollutants, or 
nutrients into the water. Special management considerations or 
protection measures to reduce or alleviate the threats may include best 
management practices designed to reduce sedimentation, erosion, and 
bank destruction; protection of riparian corridors and woody 
vegetation; protection of ground water and spring-fed streams; 
reduction of other watershed and floodplain disturbances that release 
sediments, pollutants, or nutrients into the water; prevention of 
instream gravel mining; and controlling invasive species (see Special 
Management Considerations or Protection).
    This stream is a major tributary of Drakes Creek, which allows for 
genetic exchange and redundancy in the Drakes Creek system and Barren 
River system.

Unit 6: Salt Lick Creek

    Unit 6 consists of 19.1 river miles (30.7 km) of Salt Lick Creek in 
Monroe County, Kentucky, and Macon County, Tennessee, from the 
headwaters south of Red Boiling Springs, Tennessee, to the confluence 
with Long Fork, Kentucky. All of the riparian lands that border the 
unit are in private ownership. Unit 6 is considered occupied by the 
species and contains the physical or biological features 1 through 5 
(see Summary of Essential Physical or Biological Features) essential to 
the conservation of the species.
    Threats identified within this unit include alteration of instream 
substrate, stream channels, and stream banks; land use activities that 
remove large areas of forested wetlands and riparian systems; changes 
and shifts in seasonal temperature and precipitation patterns as a 
result of climate change; and other watershed and floodplain 
disturbances that release sediments, pollutants, or nutrients into the 
water. Special management considerations or protection measures to 
reduce or alleviate the threats may include best management practices 
designed to reduce sedimentation, erosion, and bank destruction; 
protection of riparian corridors and woody vegetation; protection of 
ground water and spring-fed streams; reduction of other watershed and 
floodplain disturbances that release sediments, pollutants, or 
nutrients into the water; and prevention of instream gravel mining (see 
Special Management Considerations or Protection).
    This unit is one of the most isolated units within the Kentucky 
creekshell range as it is the only known population upstream of Barren 
River Lake. This population is also the most recently discovered 
population, found in 2019 during a survey of the upper Barren River 
basin in Tennessee. This unit provides improved redundancy and 
potential representation across the species' range and could be used as 
a source population for future propagation efforts upstream of Barren 
River Lake,, both of which will contribute to the conservation of the 
species.

Unit 7: Russell Creek

    Unit 7 consists of 53.7 river miles (86.4 km) of Russell Creek in 
Green and Adair Counties, Kentucky, from the confluence with Cabin Fork 
Creek approximately 5 miles southeast of Columbia downstream to the 
confluence with the Green River south of Greensburg, Kentucky. All the 
riparian lands that border the unit are in private ownership. Unit 7 is 
considered occupied by the species and contains the physical or 
biological features 1 through 5 (see Summary of Essential Physical or 
Biological Features) essential to the conservation of the species.
    Threats identified within this unit include alteration of the 
natural flow regime; significant alteration of water quality and 
nutrient pollution; alteration of instream substrate, stream channels, 
and stream banks; urbanization of the landscape; land use activities 
that remove large areas of forested wetlands and riparian systems; 
changes and shifts in seasonal temperature and precipitation patterns 
as a result of climate change; and other watershed and floodplain 
disturbances that release sediments, pollutants, or nutrients into the 
water. Special management considerations or protection measures to 
reduce or alleviate the threats may include best management practices 
designed to reduce sedimentation, erosion, and bank destruction; 
protection of riparian corridors and woody vegetation; protection of 
ground water and spring-fed streams; changes and shifts in seasonal 
temperature and precipitation patterns as a result of climate change; 
reduction of other watershed and floodplain disturbances that release 
sediments, pollutants, or nutrients into the water; and prevention of 
instream gravel mining (see Special Management Considerations or 
Protection).
    Experts believe the species can be found all the way to the 
confluence of the Green River, given the flow regimes and suitable 
substrates throughout the reach, although in likely very small numbers 
(Compton 2023, pers. comm.). This unit provides improved redundancy 
across the species' range as it is the only known population upstream 
of the mainstream Green River population. Additionally, this unit 
offers the shortest distance to connect with the mainstem Green River 
population to reestablish gene flow between these units and contributes 
to the conservation of the species.

Unit 8: Middle Nolin River

    Unit 8 consists of a total of 64.4 river miles (103.6 km) with two 
subunits: one occupied and one unoccupied by the Kentucky creekshell. 
Subunit 8a (Nolin River) is occupied, while Subunit 8b (Round Stone 
Creek) is unoccupied.
    Subunit 8a(Nolin River): Subunit 8a consists of 54.5 river miles 
(87.7 kilometers) of the Nolin River in Larue, Hardin, Grayson, and 
Hart Counties, Kentucky. Subunit 8a extends from the confluence of the 
north and south fork of the Nolin River west of Hodgenville, Kentucky, 
downstream to the confluence of Round Stone Creek south of Millerstown, 
Kentucky. Approximately 99 percent of the lands adjacent to subunit 8a 
are privately owned, and the remaining are Federal lands managed by the 
USACE for Nolin River Recreation Area and State lands of Kentucky State 
Department of Natural Resources. Subunit 8a is considered occupied by 
the species and contains the physical or biological features 1 through 
4 (see Summary of Essential Physical or Biological Features) essential 
to the conservation of the species.
    Threats identified within this unit include alteration of the 
natural flow regime; alteration of instream substrate, stream channels, 
and stream banks; land use activities that remove large areas of 
forested wetlands and riparian systems; urbanization of the landscape; 
dam, culvert and pipe, or other instream installations that create 
barriers to movement for the Kentucky creekshell or its host fish; 
impacts from invasive species; changes and shifts in seasonal

[[Page 76215]]

temperature and precipitation patterns as a result of climate change; 
and other watershed and floodplain disturbances that release sediments, 
pollutants, or nutrients into the water. Special management 
considerations or protection measures to reduce or alleviate the 
threats may include the use of best management practices designed to 
reduce sedimentation, erosion, and bank destruction; protection of 
riparian corridors and woody vegetation; protection of ground water and 
spring-fed streams and moderation of surface and ground water 
withdrawals to maintain natural flow regimes; reduction of other 
watershed and floodplain disturbances that release sediments, 
pollutants, or nutrients into the water; removal of instream barriers; 
prevention of instream gravel mining; and controlling invasive species 
(see Special Management Considerations or Protection).
    Subunit 8b (Round Stone Creek): Subunit 8b consists of 9.9 river 
miles (15.9 km) of Round Stone Creek in Hart County, Kentucky. Subunit 
8b extends from the origins of the stream at Blue Hole Spring to the 
confluence with the mainstem Nolin River. Approximately 99 percent of 
riparian lands adjacent to subunit 8b are in private ownership. The 
rest (less than 0.5 percent) are managed by the USACE in the Nolin 
River Recreation Area. Subunit 8b is considered unoccupied by the 
species and contains the physical or biological features 1 through 4 
(see Summary of Essential Physical or Biological Features) essential to 
the conservation of the species.
    Threats identified within this unit include alteration of the 
natural flow regime; alteration of instream substrate, stream channels, 
and stream banks; land use activities that remove large areas of 
forested wetlands and riparian systems; urbanization of the landscape; 
dam, culvert and pipe, or other instream installations that create 
barriers to movement for the Kentucky creekshell or their host fish; 
impacts from invasive species; changes and shifts in seasonal 
temperature and precipitation patterns as a result of climate change; 
and other watershed and floodplain disturbances that release sediments, 
pollutants, or nutrients into the water. Special management 
considerations or protection measures to reduce or alleviate the 
threats may include the use of best management practices designed to 
reduce sedimentation, erosion, and bank destruction; protection of 
riparian corridors and woody vegetation; protection of ground water and 
spring-fed streams and moderation of surface and ground water 
withdrawals to maintain natural flow regimes; reduction of other 
watershed and floodplain disturbances that release sediments, 
pollutants, or nutrients into the water; removal of instream barriers; 
prevention of instream gravel mining; and controlling invasive species 
(see Special Management Considerations or Protection).
    Round Stone Creek, a tributary in the lower section of the Nolin 
River may provide a location for reintroduction that would augment the 
overall Nolin River population. Relic shells have been found in the 
mouth of Round Stone Creek, and the stream's source is two springs, the 
species' associated habitats. Protection of spring-fed habitat in this 
tributary off the main stem channel could reduce the effects of 
potential catastrophic events. Experts believe this stream segment may 
still hold Kentucky creekshell (Compton 2023, pers. comm.), which would 
contribute genetic variation (representation) to the species, as well 
as improved redundancy in a degraded system. In addition, this stream 
is the most logical place for augmentation/reintroductions to begin for 
lower sections of the Nolin River, all of which would contribute to the 
conservation of the species. For these reasons, this unit is essential 
to the conservation of the species.

Unit 9: Upper Nolin River

    Unit 9 consists of 23.9 river miles (38.5 km) of the Nolin River, 
South Fork Nolin River, and Walters Creek in Larue County, Kentucky. 
Approximately 21.3 stream miles (34.3 km; 89 percent) of riparian lands 
that border the unit are in private ownership, and 2.6 stream miles 
(4.2 km; 11 percent) are managed by the State Department of Natural 
Resources for the Kentucky Department of Agriculture. This unit 
includes the South Fork Nolin River from Buffalo, Kentucky, downstream 
to its confluence with the North Fork Nolin River and Walters Creek 
from its headwaters near J.E. Jones Road to its confluence with the 
South Fork Nolin Creek. Unit 9 is considered occupied by the species 
and contains the physical or biological features 1 through 5 (see 
Summary of Essential Physical or Biological Features) essential to the 
conservation of the species.
    Threats identified within this unit include significant alteration 
of the natural flow regime; alteration of water quality and nutrient 
pollution; alteration of instream substrate, stream channels, and 
stream banks; land use activities that remove large areas of forested 
wetlands and riparian systems; dam, culvert and pipe, or other instream 
installations that create barriers; changes and shifts in seasonal 
temperature and precipitation patterns as a result of climate change; 
and other watershed and floodplain disturbances that release sediments, 
pollutants, or nutrients into the water. Special management 
considerations or protection measures to reduce or alleviate the 
threats may include use of best management practices designed to reduce 
sedimentation, erosion, and bank destruction; protection of riparian 
corridors and woody vegetation; protection of ground water and spring-
fed streams and moderation of surface and ground water withdrawals to 
maintain natural flow regimes; reduction of other watershed and 
floodplain disturbances that release sediments, pollutants, or 
nutrients into the water; and the removal of instream barriers (see 
Special Management Considerations or Protection).
    This unit is the only area in the upper Nolin River section known 
to have Kentucky creekshell populations. Given the consistent numbers 
of individuals found in this area, this section has been the source 
population for Nolin River stock and augmentation from propagated 
individuals and has been stocked at multiple locations to increase 
species abundance. This area is vitally important for the conservation 
of the species and future recovery of the Nolin River populations.

Unit 10: Rough River

    Unit 10 consists of 49.1 stream miles (79.1 km) with two subunits; 
one occupied and one unoccupied. Subunit 10a (Rough River and Meeting 
Creek) is occupied, while Subunit 10b (Clifty Creek) is unoccupied.
    Subunit 10a (Rough River and Meeting Creek): Subunit 10a consists 
of 37.5 river miles (60.4 km) of the Rough River in Breckinridge, 
Hardin, and Grayson Counties, Kentucky. This subunit includes the Rough 
River from the Hardinsburg Road bridge downstream to its confluence 
with Meeting Creek and Meeting Creek from its confluence with Petty 
Creek downstream to its confluence with Rough River. Approximately 96 
percent of the lands adjacent to subunit 10a are privately owned; the 
remaining 4 percent are managed by the USACE for Rough River Lake. 
Subunit 10a is considered occupied by the species and contains the 
physical or biological features 1 through 4 (see Summary of Essential 
Physical or Biological Features) essential to the conservation of the 
species.
    Threats identified within this unit include alteration of the 
natural flow regime; significant alteration of water

[[Page 76216]]

quality and nutrient pollution from a variety of activities; alteration 
of instream substrate, stream channels, and stream banks from a variety 
of activities; land use activities that remove large areas of forested 
wetlands and riparian systems; dam, culvert and pipe, or other instream 
installations that create barriers to movement for the Kentucky 
creekshell, or their host fish; changes and shifts in seasonal 
temperature and precipitation patterns as a result of climate change; 
and other watershed and floodplain disturbances that release sediments, 
pollutants, or nutrients into the water. Special management 
considerations or protection measures to reduce or alleviate the 
threats may include use of best management practices designed to reduce 
sedimentation, erosion, and bank destruction; protection of riparian 
corridors and woody vegetation; protection of ground water and spring-
fed streams; reduction of other watershed and floodplain disturbances 
that release sediments, pollutants, or nutrients into the water; and 
removal of instream barriers. (see Special Management Considerations or 
Protection).
    This unit has the highest number of individuals found (57) since 
2003 including multiple age classes observed during the collections. It 
could be characterized as the most resilient unit among all 10 
analytical units. Including this unit protects occupied habitat for 
improved redundancy throughout the species' range.
    Subunit 10b (Clifty Creek): Subunit 10b consists of 11.6 river 
miles (18.7 km) of Clifty Creek in Grayson County, Kentucky, from 
Elizabethtown Road bridge downstream to Rough River Lake. Approximately 
97 percent of the lands adjacent to subunit 10b are owned by private 
entities, while the remainder is managed by the USACE for Rough River 
Lake backwaters. Subunit 10b is considered unoccupied by the species 
and contains the physical or biological features 1 through 4 (see 
Summary of Essential Physical or Biological Features) essential to the 
conservation of the species.
    Threats identified within this unit include alteration of the 
natural flow regime; significant alteration of water quality and 
nutrient pollution from a variety of activities; alteration of instream 
substrate, stream channels, and stream banks from a variety of 
activities; land use activities that remove large areas of forested 
wetlands and riparian systems; dam, culvert and pipe, or other instream 
installations that create barriers to movement for the Kentucky 
creekshell or their host fish; impacts from invasive species; changes 
and shifts in seasonal temperature and precipitation patterns as a 
result of climate change; and other watershed and floodplain 
disturbances that release sediments, pollutants, or nutrients into the 
water. Special management considerations or protection measures to 
reduce or alleviate the threats may include use of best management 
practices designed to reduce sedimentation, erosion, and bank 
destruction; protection of riparian corridors and woody vegetation; 
protection of ground water and spring-fed streams and moderation of 
surface and ground water withdrawals to maintain natural flow regimes; 
reduction of other watershed and floodplain disturbances that release 
sediments, pollutants, or nutrients into the water; the removal of 
instream barriers; prevention of instream gravel mining; and 
controlling invasive species. (see Special Management Considerations or 
Protection).
    Clifty Creek is a nearby tributary of the mainstem Rough River with 
suitable substrates and is heavily influenced by springs. Experts 
believe the species could be present in Clifty Creek and was likely 
there historically (Compton 2023, pers. comm.). Clifty Creek is the 
most promising location for reintroduction/augmentation in unit 9, 
which would add redundancy to the most resilient unit. It is essential 
for the conservation of the species.

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.
    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 (50 CFR 402.02).
    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 formal 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 or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 set forth requirements for Federal 
agencies to reinitiate consultation. Reinitiation of consultation is 
required and shall be requested by the Federal agency, where 
discretionary Federal involvement or control over the action has been 
retained or is authorized by law and: (1) If the amount or extent of 
taking specified in the incidental take statement is exceeded; (2) if 
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) if 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) if a new species is listed or critical habitat 
designated that may be affected by the identified action. As provided 
in 50 CFR 402.16, the requirement to reinitiate consultations for new 
species listings or critical

[[Page 76217]]

habitat designation does not apply to certain agency actions (e.g., 
land management plans issued by the Bureau of Land Management in 
certain circumstances).

Destruction or Adverse Modification of Critical Habitat

    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 that our Federal Register 
documents ``shall, to the maximum extent practicable also include a 
brief description and evaluation of those activities (whether public or 
private) which, in the opinion of the Secretary, if undertaken may 
adversely modify [critical] habitat, or may be affected by such 
designation.'' Activities that may be affected by designation of 
critical habitat for the Kentucky creekshell include those that may 
affect the physical or biological features of the Kentucky creekshell's 
critical habitat (see Physical or Biological Features Essential to the 
Conservation of the Species).

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 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 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 section 
4(b)(2) exclusion analysis.
    Executive Order (E.O.) 14094 supplements and reaffirms E.O. 12866 
and E.O. 13563 and directs 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 when a regulation is considered a 
``significant regulatory action'' and requires additional analysis, 
review, and approval if met. 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 (section 3(f)(1) as amended by E.O. 
14094). Therefore, our consideration of economic impacts uses a 
screening analysis to assess whether a designation of critical habitat 
for Kentucky creekshell is likely to exceed the economically 
significant threshold.

[[Page 76218]]

    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 Kentucky creekshell (IEc 2024, 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 geographical 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 economic analysis of the proposed critical habitat 
designation for the Kentucky creekshell and 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 Kentucky creekshell, first we 
identified, in the IEM dated March 26, 2024, probable incremental 
economic impacts associated with the following categories of 
activities: (1) Development along the Interstate 65 corridor; (2) 
installation of expanded broadband internet; (3) solar energy 
development; (4) pipeline maintenance projects; (5) bridge and road 
replacements and rehabilitations; and (6) water control activities. 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 affects only activities conducted, funded, permitted, 
or authorized by Federal agencies. If we list the species, in areas 
where the Kentucky creekshell 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 
Kentucky creekshell's critical habitat. Because the designation of 
critical habitat for Kentucky creekshell 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 species 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 Kentucky 
creekshell totals approximately 544.6 river miles, of which 159.1 miles 
are considered to be unoccupied by the species. Critical habitat 
designation for the Kentucky creekshell is unlikely to generate costs 
exceeding $200 million in a single year. Therefore, the rule is 
unlikely to meet the threshold for an economically significant rule, 
with regard to costs, under E.O. 12866. In fact, the total annual 
incremental cost of critical habitat designation for the Kentucky 
creekshell is anticipated to be a maximum of $51,300 per year (2024 
dollars). The total incremental costs of critical habitat designation 
for the Kentucky creekshell are anticipated to be between approximately 
$438,200 to $513,100 over the next 10 years, or approximately $43,800 
to $51,300 annually.
    We have determined that, in occupied Kentucky creekshell critical 
habitat, costs are likely to be limited to administrative costs. This 
is primarily because, regardless of whether critical habitat is 
designated, all projects with a Federal nexus would be subject to 
section 7 requirements, and conservation efforts requested to avoid 
jeopardizing the continued existence of the species would be 
substantially similar to those that would be recommended to avoid 
adverse modification. In addition, in both occupied and unoccupied 
habitat for Kentucky creekshell, conservation efforts for other listed 
species with ranges and/or proposed critical habitat areas that overlap 
the Kentucky creekshell proposed designation are likely to provide 
protections to the Kentucky creekshell, even absent critical habitat 
designation for the Kentucky creekshell. Of the more than 540 miles of 
proposed designated critical habitat, 13 federally listed mussel 
species' ranges overlap with Kentucky creekshell: between 33 miles and 
208 miles for each species. Additionally, three critical habitat units 
for federally listed mussel species overlap with the Kentucky 
creekshell's critical habitat: between 73 miles and 156 miles for each 
species. Total overlap across all species is 208 miles (38%) and the 
majority of these overlaps occur

[[Page 76219]]

in the mainstem Green River and mainstem Barren River. These species 
have similar habitat requirements to the Kentucky creekshell.
    The incremental costs associated with section 7 consultations for 
the Kentucky creekshell in unoccupied habitat are likely to include 
administrative costs resulting from consultations as well as costs 
associated with potential additional conservation efforts. This is 
primarily because activities with a Federal nexus in unoccupied areas 
would not be subject to section 7 consultation requirements for the 
Kentucky creekshell absent the designation of critical habitat because 
the species is not present. Depending on the action and the level of 
its impact on the habitat, the action agency or project proponent may 
need to undertake conservation activities, which may have an associated 
cost.
    We are soliciting data and comments from the public on the economic 
analysis discussed above. During the development of a final 
designation, we will consider the information presented in the economic 
analysis 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, we 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 us to consider those 
impacts whenever it designates critical habitat. Accordingly, if DoD, 
the 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 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 Kentucky 
creekshell 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 safe harbor agreements (SHAs), candidate 
conservation agreements with assurances (CCAAs) or ``conservation 
benefit agreement'' or ``conservation agreement'' (CBAs) (CBAs are a 
new type of agreement replacing SHAs and CCAAs in use after April 2024 
(89 FR 26070; April 12, 2024)) or HCPs, 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 Kentucky creekshell 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.

[[Page 76220]]

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, and 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 proposed rule in a manner consistent with 
these requirements.
    Executive Order 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 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 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 ``to the extent 
permitted by law'' when undertaking actions identified as significant 
energy actions (66 FR 28355; May 22, 2001). E.O. 13211 defines a 
``significant energy action'' as an action that (i) is a significant 
regulatory action under E.O. 12866 or any successor order; and (ii) is 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. This rule is not a significant 
regulatory action under E.O. 12866 or E.O. 14094 (88 FR 21879; April 
11, 2023). Therefore, this action is not a significant energy action, 
and there is no requirement to prepare a statement of energy effects 
for this action.

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 findings:
    (1) This proposed rule would not produce a Federal mandate. In 
general, a Federal mandate is a provision in legislation, statute, or 
regulation that

[[Page 76221]]

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 are not likely to 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 $100 million or more (adjusted annually for inflation) in 
any year; that is, it is not a ``significant regulatory action'' under 
the Unfunded Mandates Reform Act. Small governments will be affected 
only to the extent that any Federal programs issuing Federal funds or 
permits, or conducting other authorized activities must ensure that 
their actions will not adversely affect the critical habitat. 
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 Kentucky creekshell in a takings implications 
assessment. The Act does not authorize the Services 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 would destroy or adversely modify 
critical habitat. A takings implications assessment has been completed 
for the proposed designation of critical habitat for the Kentucky 
creekshell, 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.

[[Page 76222]]

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. In a line of cases starting with Douglas County 
v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the courts have upheld this 
position.

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, May 4, 1994), E.O. 13175 (Consultation and 
Coordination with Indian Tribal Governments), the President's 
memorandum of November 30, 2022 (Uniform Standards for Tribal 
Consultation; 87 FR 74479, December 5, 2022), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with federally recognized 
Tribes and Alaska Native Corporations (ANCs) on a government-to-
government basis. In accordance with Secretary's 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 Kentucky 
creekshell, 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 Kentucky 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 
Kentucky 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, amend paragraph (h) in the List of Endangered and 
Threatened Wildlife by adding an entry for ``Creekshell, Kentucky'' in 
alphabetical order under CLAMS to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                              Listing citations
           Common name                Scientific name        Where listed         Status        and applicable
                                                                                                    rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
              Clams
 
                                                  * * * * * * *
Creekshell, Kentucky.............  Leaunio ortmanni....  Wherever found......            E   [Federal Register
                                                                                              citation when
                                                                                              published as a
                                                                                              final rule]; 50
                                                                                              CFR 17.95(f).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. In Sec.  17.95, amend paragraph (f) by adding an entry for 
``Kentucky Creekshell (Leaunio ortmanni)'' after the entry for ``Canoe 
Creek Clubshell (Pleurobema athearni)'' to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (f) * * *
* * * * *
Kentucky Creekshell (Leaunio ortmanni)
    (1) Critical habitat units are depicted for Adair, Allen, Barren, 
Breckinridge, Butler, Edmonson, Grayson, Green, Hardin, Hart, Larue, 
Logan, Monroe, Simpson, and Warren Counties, Kentucky, and Macon 
County, Tennessee, on the maps in this entry.
    (2) Within these areas, the physical or biological features 
essential to the conservation of Kentucky creekshell consist of the 
following components:
    (i) Water quantity and quality necessary to sustain natural 
physiological processes for normal behavior, growth, and viability of 
all life stages, including (but not limited to) water conditions in the 
stream that are cool; are well-oxygenated with no evidence of excessive 
sediments or suspended solids, salinity, ammonia, nutrients, 
pesticides, or herbicides; and have a stream flow and pattern 
consistent with natural flow regimes. Spring-influenced river sections 
are important: Most Kentucky creekshell populations are associated with 
this habitat type, and it is also the preferred habitat type for the 
host fish, the banded sculpin (Cottus carolinae).
    (ii) Suitable substrates and connected instream habitats 
characterized by

[[Page 76223]]

geomorphically stable stream channels and banks (i.e., channels that 
maintain lateral dimensions, longitudinal profiles, and sinuosity 
patterns over time without an aggrading or degrading bed elevation); 
stable riffle-run-pool habitats that provide flow refuges consisting of 
predominantly silt-free, stable coarse sand, gravel, and cobble 
substrates.
    (iii) Adequate food availability for Kentucky creekshell including 
(but not limited to): suspended phytoplankton, zooplankton, rotifers, 
protozoans, detritus, and dissolved organic matter from the water 
column or sediments.
    (iv) Habitat conditions that support the presence and abundance of 
banded sculpin, the host fish necessary for Kentucky creekshell 
recruitment, as well as the actual presence and abundance of the banded 
sculpin in the habitat.
    (v) Connected instream habitats without barriers such as dams and 
perched or undersized culverts to provide suitable lotic rather than 
lentic habitat; access to quality habitat for multiple life stages of 
Kentucky creekshell; access for host fish movement, which in turn, may 
influence Kentucky creekshell distribution and provide genetic exchange 
for both species and recolonization of Kentucky creekshell.
    (vi) Appropriate abundance, density, and distribution of mussel 
beds (aggregations of freshwater mussels) such that local stochastic 
events do not necessarily eliminate the bed(s), allowing the mussel 
beds and the overall local population within a stream reach to recover 
from any single event and for resilient populations.
    (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 using ArcGIS 
Profession version 3.2.2 (Environmental Systems Research Institute, 
Inc.), a geographic information systems program on a base of USA Topo 
Maps. Critical habitat units were then mapped by delineating stream 
segments and polygons from the National Hydrography Database high-
resolution flow lines and areas with USA Contiguous Albers Equal Area 
Conic USGS projection and NAD83 datum. The maps in this entry, as 
modified by any accompanying regulatory text, establish the boundaries 
of the critical habitat designation.
    (5) Index map follows:
BILLING CODE 4333-15-P
Figure 1 to Kentucky creekshell (Leaunio ortmanni) paragraph (5)
[GRAPHIC] [TIFF OMITTED] TP17SE24.001


[[Page 76224]]


    (6) Unit 1: Green River; Green, Hart, Edmonson, Butler, and Warren 
Counties, Kentucky.
    (i) Unit 1 consists of 130.7 stream miles (210.4 km) in Green, 
Hart, Edmonson, Butler, and Warren Counties, Kentucky. The unit 
includes both occupied and unoccupied subunits.
    (A) Subunit 1a (Green River) is approximately 73.0 stream miles 
(117.5km) and considered occupied habitat. Nearly all (approximately 99 
percent) of the lands adjacent to subunit 1a are privately owned. The 
remaining lands adjacent to this subunit (one percent) are federally or 
State owned.
    (B) Subunit 1b (Green River) is approximately 57.7 stream miles 
(92.9 km) and considered unoccupied habitat. Approximately 87 percent 
of the lands adjacent to subunit 1b are privately owned. The remaining 
13 percent is federally owned.
    (ii) Map of Unit 1 follows:

Figure 2 to Kentucky creekshell (Leaunio ortmanni) paragraph (6)(ii)
[GRAPHIC] [TIFF OMITTED] TP17SE24.002

    (7) Unit 2: Barren River; Butler, Warren, Allen, and Barren 
Counties, Kentucky.
    (i) Unit 2 consists of 79.9 stream miles (128.6 km) of Barren River 
in Butler, Warren, Allen, and Barren Counties, Kentucky. Approximately 
79.4 stream miles (127.8 km; 99 percent) of riparian lands that border 
the unit is private ownership, and 0.46 stream miles (0.74 km; less 
than 1 percent) are federally owned and managed. Unit 2 is unoccupied 
by the species.
    (ii) Map of Unit 2 follows:

Figure 3 to Kentucky creekshell (Leaunio ortmanni) paragraph (7)(ii)

[[Page 76225]]

[GRAPHIC] [TIFF OMITTED] TP17SE24.003

    (8) Unit 3: Gasper River; Warren and Logan Counties, Kentucky.
    (i) Unit 3 consists of 52.8 stream miles (85.0 km) of the Gasper 
River, Wiggington Creek, and Clear Fork Creek in Warren and Logan 
Counties, Kentucky. All the riparian lands that border the unit are in 
private ownership. Unit 3 is occupied by the species.
    (ii) Map of Unit 3 follows:

Figure 4 to Kentucky creekshell (Leaunio ortmanni) paragraph (8)(ii)

[[Page 76226]]

[GRAPHIC] [TIFF OMITTED] TP17SE24.004

    (9) Unit 4: Drakes Creek; Warren and Simpson Counties, Kentucky.
    (i) Unit 4 consists of 55.1 stream miles (88.7 km) of Drakes Creek, 
West Fork Drakes Creek, and Lick Creek in Warren and Simpson Counties, 
Kentucky. All of the riparian lands that border the unit are in private 
ownership. Unit 4 is occupied by the species.
    (ii) Map of Unit 4 follows:

Figure 5 to Kentucky creekshell (Leaunio ortmanni) paragraph (9)(ii)

[[Page 76227]]

[GRAPHIC] [TIFF OMITTED] TP17SE24.005

    (10) Unit 5: Trammel Creek; Warren and Allen Counties, Kentucky.
    (i) Unit 5 consists of 15.9 stream miles (25.6 km) of Trammel Creek 
in Warren and Allen Counties, Kentucky. All of the riparian lands that 
border the unit are in private ownership. Unit 5 is occupied by the 
species.
    (ii) Map of Unit 5 follows:

Figure 6 to Kentucky creekshell (Leaunio ortmanni) paragraph (10)(ii)

[[Page 76228]]

[GRAPHIC] [TIFF OMITTED] TP17SE24.006

    (11) Unit 6: Salt Lick Creek; Monroe County, Kentucky, and Macon 
County, Tennessee.
    (i) Unit 6 consists of 19.1 stream miles (30.7 km) of Salt Lick 
Creek in Monroe County, Kentucky, and Macon County, Tennessee. All of 
the riparian lands that border the unit are private ownership. Unit 6 
is occupied by the species.
    (ii) Map of Unit 6 follows:

Figure 7 to Kentucky creekshell (Leaunio ortmanni) paragraph (11)(ii)

[[Page 76229]]

[GRAPHIC] [TIFF OMITTED] TP17SE24.007

    (12) Unit 7: Russell Creek; Green and Adair Counties, Kentucky.
    (i) Unit 7 consists of 53.7 stream miles (86.4 km) of Russell Creek 
in Green and Adair Counties, Kentucky. All of the riparian lands that 
border the unit are in private ownership. Unit 7 is occupied by the 
species.
    (ii) Map of Unit 7 follows:

Figure 8 to Kentucky creekshell (Leaunio ortmanni) paragraph (12)(ii)

[[Page 76230]]

[GRAPHIC] [TIFF OMITTED] TP17SE24.008

    (13) Unit 8: Middle Nolin River; Larue, Hardin, Hart, and Grayson 
Counties, Kentucky.
    (i) Unit 8 consists of 64.4 stream miles (103.6 km) in Larue, 
Hardin, Hart, and Grayson Counties, Kentucky. The unit includes both 
occupied and unoccupied subunits.
    (A) Subunit 8a (Nolin River) is approximately 54.5 stream miles 
(87.7 km) and considered occupied habitat. Nearly all (approximately 99 
percent) of the lands adjacent to subunit 8a are privately owned. The 
remaining lands adjacent to this subunit (one percent) are federally 
owned and managed.
    (B) Subunit 8b (Round Stone Creek) is approximately 9.8 stream 
miles (15.9 km) and considered unoccupied habitat. Approximately 99 
percent of the lands adjacent to subunit 8b are owned by private 
entities. The other 1 percent is federally owned and managed.
    (ii) Map of Unit 8 follows:

Figure 9 to Kentucky creekshell (Leaunio ortmanni) paragraph (13)(ii)

[[Page 76231]]

[GRAPHIC] [TIFF OMITTED] TP17SE24.009

    (14) Unit 9: Upper Nolin River; Larue County, Kentucky.
    (i) Unit 9 consists of 23.9 stream miles (38.5 km) of the South 
Fork Nolin River and Walters Creek in Larue County, Kentucky. 
Approximately 21.3 stream miles (34.3 km; 89 percent) of riparian lands 
that border the unit are in private ownership, and 2.6 stream miles 
(4.2 km; 11 percent) are State owned and managed. Unit 9 is occupied by 
the species.
    (ii) Map of Unit 9 follows:

Figure 10 to Kentucky creekshell (Leaunio ortmanni) paragraph (14)(ii)

[[Page 76232]]

[GRAPHIC] [TIFF OMITTED] TP17SE24.010

    (15) Unit 10: Rough River; Breckinridge, Hardin, and Grayson 
Counties, Kentucky.
    (i) Unit 10 consists of 49.1 stream miles (79.0 km) in 
Breckinridge, Hardin, and Grayson Counties, Kentucky. The unit includes 
both occupied and unoccupied subunits.
    (A) Subunit 10a (Rough River and Meeting Creek) is approximately 
37.5 stream miles (60.4 km) and considered occupied habitat. 
Approximately 96 percent of the lands adjacent to subunit 10a are 
privately owned. The remaining lands adjacent to this subunit (four 
percent) are federally owned and managed.
    (B) Subunit 10b (Clifty Creek) is approximately 11.6 stream miles 
(18.7 km) and considered unoccupied habitat. Approximately 97 percent 
of the lands adjacent to subunit 10b are owned by private entities. The 
other 3 percent is federally owned and managed.
    (ii) Map of Unit 10 follows:

Figure 11 to Kentucky creekshell (Leaunio ortmanni) paragraph (15)(ii)

[[Page 76233]]

[GRAPHIC] [TIFF OMITTED] TP17SE24.011

* * * * *

Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2024-20157 Filed 9-16-24; 8:45 am]
BILLING CODE 4333-15-C