[Federal Register Volume 80, Number 83 (Thursday, April 30, 2015)]
[Rules and Regulations]
[Pages 24692-24774]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-09200]



[[Page 24691]]

Vol. 80

Thursday,

No. 83

April 30, 2015

Part III





Department of the Interior





-----------------------------------------------------------------------





 Fish and Wildlife Service





-----------------------------------------------------------------------





50 CFR Part 17





 Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for Neosho Mucket and Rabbitsfoot; Final Rule

Federal Register / Vol. 80 , No. 83 / Thursday, April 30, 2015 / 
Rules and Regulations

[[Page 24692]]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2013-0007; 4500030114]
RIN 1018-AZ30


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Neosho Mucket and Rabbitsfoot

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for two species of mussels, the Neosho mucket 
(Lampsilis rafinesqueana) and rabbitsfoot (Quadrula cylindrica 
cylindrica), under the Endangered Species Act of 1973, as amended 
(Act). In total, approximately 777 river kilometers (483 river miles) 
in Arkansas, Kansas, Missouri, and Oklahoma fall with the boundaries of 
the critical habitat designation for the Neosho mucket and 
approximately 2,312 river kilometers (1,437 river miles) in Alabama, 
Arkansas, Illinois, Indiana, Kansas, Kentucky, Mississippi, Missouri, 
Ohio, Oklahoma, Pennsylvania, and Tennessee, fall within the boundaries 
of the critical habitat designation for the rabbitsfoot. The effect of 
this rule is to extend the Act's protections to these mussels' critical 
habitats.

DATES: This rule is effective on June 1, 2015.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov and the Arkansas Ecological Services Field Office's 
Web site at http://www.fws.gov/arkansas-es/. Comments and materials 
received, as well as some supporting documentation we used in preparing 
this rule, are available for public inspection at http://www.regulations.gov. All of the comments, materials, and documentation 
we considered in this rulemaking are available by appointment, during 
normal business hours, at: U.S. Fish and Wildlife Service, Arkansas 
Ecological Service Field Office, 110 South Amity Road, Suite 300, 
Conway, AR 72032; telephone 501-513-4470; facsimile 501-513-4480.
    The coordinates, plot points, or both from which the maps are 
generated are included in the administrative record for this critical 
habitat designation and are available at http://www.fws.gov/arkansas-es/, at http://www.regulations.gov at Docket No. FWS-R4-ES-2013-0007, 
and at the Arkansas Ecological Services Field Office (see FOR FURTHER 
INFORMATION CONTACT). Any additional tools or supporting information we 
developed for this critical habitat designation will also be available 
at the U.S. Fish and Wildlife Service Web site and Field Office 
outlined above, and also may be included in the preamble, at http://www.regulations.gov, or both.

FOR FURTHER INFORMATION CONTACT: For general information about this 
rule, and information about the final designation in Arkansas, contact 
Melvin Tobin, Acting Field Supervisor, U.S. Fish and Wildlife Service, 
Arkansas Ecological Services Field Office, 110 South Amity Road, Suite 
300, Conway, AR 72032; telephone 501-513-4470; facsimile 501-513-4480. 
If you use a telecommunications device for the deaf (TDD), call the 
Federal Information Relay Service (FIRS) at 800-877-8339.
    For information about the final designation in Alabama, contact 
Bill Pearson, Field Supervisor, U.S. Fish and Wildlife Service, Alabama 
Ecological Services Field Office, 1208 Main Street, Daphne, AL 36526; 
telephone 251-441-5181; facsimile 251-441-6222.
    For information about the final designation in Illinois, contact 
Richard C. Nelson, Field Supervisor, U.S. Fish and Wildlife Service, 
Rock Island Ecological Services Field Office, 1511 47th Avenue, Moline, 
IL 61265; telephone 309-757-5800; facsimile 309-757-5807.
    For information about the final designation in Indiana, contact 
Scott Pruitt, Field Supervisor, U.S. Fish and Wildlife Service, 
Bloomington Ecological Services Field Office, 602 South Walker Street, 
Bloomington, IN 47403-2121; telephone 812-334-4261; facsimile 812-334-
4273.
    For information about the final designation in Kansas, contact 
Heather Whitlaw, Field Supervisor, U.S. Fish and Wildlife Service, 
Kansas Ecological Services Field Office, 2609 Anderson Avenue, 
Manhattan, KS 66502; telephone 785-539-3474; facsimile 785-839-8567.
    For information about the final designation in Kentucky, contact 
Lee Andrews, Field Supervisor, U.S. Fish and Wildlife Service, Kentucky 
Ecological Services Field Office, 330 West Broadway, Suite 265, 
Frankfort, KY 40601; telephone 502-695-0468; facsimile 502-695-1024.
    For information about the final designation in Mississippi, contact 
Stephen Ricks, Field Supervisor, U.S. Fish and Wildlife Service, 
Mississippi Ecological Services Field Office, 6578 Dogwood View 
Parkway, Suite A, Jackson, MS 39123; telephone 601-965-4900; facsimile 
601-965-4340.
    For information about the final designation in Missouri, contact 
Amy Salveter, Field Supervisor, U.S. Fish and Wildlife Service, 
Columbia Ecological Services Field Office, 101 Park DeVille Drive, 
Suite A, Columbia, MO 65203-0057; telephone 573-234-2132; facsimile 
573-234-2181.
    For information about the final designation in Ohio, contact Dan 
Everson, Field Supervisor, U.S. Fish and Wildlife Service, 4625 Morse 
Road, Suite 104, Columbus, OH 43230; telephone 614-416-8993; facsimile 
614-416-8994.
    For information about the final designation in Oklahoma, contact 
Jontie Aldrich, Acting Field Supervisor, U.S. Fish and Wildlife 
Service, Oklahoma Ecological Services Field Office, 9014 East 21st 
Street, Tulsa, OK 74129-1428; telephone 918-382-4500; facsimile 918-
581-7467.
    For information about the final designation in Pennsylvania, 
contact Lora Zimmerman, Field Supervisor, U.S. Fish and Wildlife 
Service, Pennsylvania Ecological Services Field Office, 315 South Allen 
Street, Suite 322, State College, PA 16801; telephone 814-234-4090; 
facsimile 814-234-0748.
    For information about the final designation in Tennessee, contact 
Mary Jennings, Field Supervisor, U.S. Fish and Wildlife Service, 
Tennessee Ecological Services Field Office, 446 Neal Street, 
Cookeville, TN 38501; telephone 931-528-6481; facsimile 931-528-7075.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Why we need to publish a rule. Under the Endangered Species Act of 
1973, as amended (Act), when we determine that a species is an 
endangered or threatened species, we are required to designate critical 
habitat, to the maximum extent prudent and determinable. Designations 
of critical habitat can only be completed by issuing a rule.
    On October 16, 2012, we published in the Federal Register a 
proposed rule to list the Neosho mucket and rabbitsfoot and designate 
critical habitat (77 FR 63440). We issued the final rule listing the 
Neosho mucket as endangered and the rabbitsfoot as threatened on 
September 17, 2013 (78 FR 57076).
    The critical habitat units we are designating in this rule 
constitute our current best assessment of the areas that meet the 
definition of critical habitat for

[[Page 24693]]

Neosho mucket and rabbitsfoot. We are designating:
    <bullet> For the Neosho mucket, in total, approximately 777 river 
kilometers (rkm) (483 river miles (rmi)) in 7 units in the Elk, Fall, 
Illinois, Neosho, Shoal, Spring, North Fork Spring, and Verdigris 
Rivers as critical habitat in Benton and Washington Counties, Arkansas; 
Allen, Cherokee, Coffey, Elk, Greenwood, Labette, Montgomery, Neosho, 
Wilson, and Woodson Counties, Kansas; Jasper, Lawrence, McDonald, and 
Newton Counties, Missouri; and Adair, Cherokee, and Delaware Counties, 
Oklahoma.
    <bullet> For the rabbitsfoot, in total, approximately 2,312 rkm 
(1,437 rmi) in 31 units (3 with 2 subunits each) in the Neosho, Spring 
(Arkansas River system), Verdigris, Black, Buffalo, Little, Ouachita, 
Saline, Middle Fork Little Red, Spring (White River system), South Fork 
Spring, Strawberry, White, St. Francis, Big Sunflower, Big Black, Paint 
Rock, Duck, Tennessee, Red, Ohio, Allegheny, Green, Tippecanoe, 
Walhonding, Middle Branch North Fork Vermilion, and North Fork 
Vermilion Rivers and Bear, French, Muddy, Little Darby, and Fish Creeks 
as critical habitat in Colbert, Jackson, Madison, and Marshall 
Counties, Alabama; Arkansas, Ashley, Bradley, Clark, Cleburne, 
Cleveland, Drew, Fulton, Hot Spring, Independence, Izard, Jackson, 
Lawrence, Little River, Marion, Monroe, Newton, Ouachita, Randolph, 
Searcy, Sevier, Sharp, Van Buren, White, and Woodruff Counties, 
Arkansas; Massac, Pulaski, and Vermilion Counties, Illinois; Carroll, 
Pulaski, Tippecanoe, and White Counties, Indiana; Allen and Cherokee 
Counties, Kansas; Ballard, Edmonson, Green, Hart, Livingston, Logan, 
Marshall, McCracken, and Taylor Counties, Kentucky; Hinds, Sunflower, 
Tishomingo, and Warren Counties, Mississippi; Jasper, Madison, and 
Wayne Counties, Missouri; Coshocton, Madison, Union, and Williams 
Counties, Ohio; McCurtain and Rogers Counties, Oklahoma; Crawford, 
Erie, Mercer, and Venango Counties, Pennsylvania; and Hardin, Hickman, 
Humphreys, Marshall, Maury, Montgomery, Perry, and Robertson Counties, 
Tennessee.
    <bullet> Compared to the proposed rule, this rule results in a net 
decrease of approximately 3 rkm (2 rmi) for the Neosho mucket and a net 
decrease of approximately 349 rkm (217 rmi) for the rabbitsfoot.
    What this rule contains: This rule designates critical habitat for 
the Neosho mucket and rabbitsfoot.
    We have prepared an economic analysis and environmental assessment 
for the designation of critical habitat. In accordance with Section 
4(b)(2) of the Act, we prepared an analysis of the economic impacts of 
the critical habitat designations and related factors. We announced the 
availability of the draft economic analysis (DEA) and draft 
environmental assessment in the Federal Register on May 9, 2013 (78 FR 
27171), allowing the public to provide comments on these documents. In 
response to requests we received, we reopened the comment period for 
the proposed critical habitat rule, DEA, and draft environmental 
assessment from August 27, 2013, to October 28, 2013 (78 FR 52894), and 
again from May 14, 2014, to July 14, 2014 (79 FR 27547). We have 
incorporated the comments and completed the final economic analysis 
(FEA) and associated summary memorandum describing our revised forecast 
calculations concurrently with this final determination.
    Additionally, we have prepared an environmental assessment pursuant 
to the National Environmental Policy Act (NEPA). Based on the review 
and evaluation of the information contained in the environmental 
assessment, we determined that the designation of critical habitat for 
the Neosho mucket and rabbitsfoot does not constitute a major Federal 
action having a significant impact on the human environment under the 
meaning of section 102(2)(c) of NEPA.
    Peer review and public comment. We sought comments from three 
independent specialists to ensure our designation is based on 
scientifically sound data and analyses. We obtained opinions from one 
knowledgeable individual with scientific expertise to review our 
technical assumptions and analysis, and to determine whether or not we 
had used the best available information. The peer reviewer generally 
concurred with our methods and conclusions and provided additional 
information, clarifications, and suggestions to improve this final 
rule. Information we received from peer review is incorporated in this 
final designation. We also considered all comments and information we 
received from the public during the comment period.

Previous Federal Actions

    Please refer to the proposed listing and critical habitat rule for 
the Neosho mucket and rabbitsfoot published in the Federal Register on 
October 16, 2012 (77 FR 63440), for a detailed description of previous 
Federal actions concerning these species and protection under the Act 
(16 U.S.C. 1531 et seq.). The final rule listing the Neosho mucket as 
an endangered species and rabbitsfoot as a threatened species under the 
Act was published in the Federal Register on September 17, 2013 (78 FR 
57076).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the Neosho mucket and rabbitsfoot 
during four comment periods. The first comment period opened with the 
publication of the proposed rule on October 16, 2012, and closed on 
December 17, 2012 (77 FR 63440). Second, we requested comments on the 
proposed critical habitat designation and associated DEA and draft 
environmental assessment during a comment period that opened May 9, 
2013, and closed on June 10, 2013 (78 FR 27171). Third, we re-opened 
the comment period for another 60 days from August 27, 2013, through 
October 28, 2013 (78 FR 52894). Based on continued significant interest 
in Arkansas regarding the proposed rule, we announced an additional 
reopening of the comment period for 60 days from May 14, 2014, through 
July 14, 2014 (79 FR 27547). We held public information meetings in 
Joplin, Missouri, on May 21, 2013; Greenville, Missouri, on May 23, 
2013; Batesville, Arkansas, on June 4, 2014; and Benton, Arkansas, on 
June 5, 2014. The dates, times, and locations of these meetings were 
coordinated with interested stakeholders and noticed in newspapers and 
other media outlets. We also contacted appropriate Federal, State, and 
local agencies; tribes; scientific organizations; and other interested 
parties and invited them to comment on the proposed rule, DEA, and 
draft environmental assessment. In addition, we published a total of 27 
legal public notices in the affected States at the beginning of the 
comment period for the proposed rule published on October 16, 2012.
    During the first comment period, we received 10 comment letters 
directly addressing the proposed listing and critical habitat 
designation. During the second, third, and fourth comment periods, we 
received 11, 6, and 68 comment letters, respectively, addressing the 
proposed critical habitat designation, DEA, or draft environmental 
assessment. All substantive information provided during the comment 
periods has either been incorporated directly into this final 
determination or is addressed below. Comments are addressed in the 
following summary and incorporated into the final rule as appropriate.

[[Page 24694]]

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinions from three knowledgeable 
individuals with scientific expertise on freshwater mussel conservation 
and biology, with familiarity of Neosho mucket and rabbitsfoot, the 
geographic region and river basins in which they occur, and 
conservation biology principles associated with these species. We 
received responses from all of the peer reviewers we contacted, but 
only one peer reviewer commented on the proposed critical habitat 
designation.
    We reviewed all comments we received from the peer reviewer for 
substantive issues and new information regarding critical habitat for 
the Neosho mucket and rabbitsfoot. The peer reviewer generally 
concurred with our methods and conclusions, and provided additional 
information, clarifications, and suggestions to improve the final 
critical habitat rule. The peer reviewer's comments on the designation 
of critical habitat for these mussels are addressed in the following 
summary and incorporated into the final rule as appropriate.

Peer Reviewer Comments

    (1) Comment: The peer reviewer noted the proposed critical habitat 
designation for rabbitsfoot references the oyster mussel (Epioblasma 
capsaeformis) as a listed species with overlapping critical habitat in 
the Duck River unit. The reviewer noted the oyster mussel in this river 
has been renamed the Duck River dartersnapper (Epioblasma ahlstedti) 
and is separate and distinct from the oyster mussel.
    Our Response: We agree with the reviewer and acknowledge the oyster 
mussel and Duck River dartersnapper are distinct and separate species. 
However, the Service has not yet made a listing and critical habitat 
determination for the new entity, the Duck River dartersnapper. We 
incorporated language in this final determination to clarify the 
species distinction and name change, but at this time, the Duck River 
dartersnapper and oyster mussel are considered synonymous according to 
our regulations. Until such time as the regulations are revised, the 
critical habitat that overlaps rabbitsfoot critical habitat in the Duck 
River will be identified as that of the oyster mussel.

General Comments

    (2) Comment: Multiple commenters expressed concern about 
interagency consultation under section 7 of the Act, particularly any 
differences in process between consultation on impacts to the listed 
species and consultation on the species' designated critical habitat. 
They also expressed concern about impacts on non-Federal property 
owners and other entities from the new restrictions resulting from the 
designation of critical habitat.
    Our Response: Section 7(a)(2) of the Act, and its implementing 
regulations at 50 CFR part 402, subpart B, requires Federal agencies to 
consult with the Service to ensure that they are not undertaking, 
funding, permitting, or authorizing actions likely to jeopardize the 
continued existence of listed species or destroy or adversely modify 
designated critical habitat. Only projects that have a Federal nexus 
(projects that are funded, authorized, or carried out by Federal 
agencies) are subject to this requirement under section 7 consultation. 
In fulfilling these consultation requirements, each Federal action 
agency and the Service must use the best scientific and commercial data 
available.
    In occupied critical habitat, consultation for potential impacts to 
the species and potential impacts to critical habitat occur at the same 
time. The health of both mussels is closely tied to the health of their 
habitat. Therefore, the Service does not expect to recommend additional 
conservation efforts for projects to avoid adverse modification of 
critical habitat above and beyond what would already be required to 
avoid jeopardizing the continued existence of the listed species. In 
addition, other federally listed mussels occur in the same reaches as 
certain areas of designated critical habitat for Neosho mucket or 
rabbitsfoot; the conservation efforts already required for these listed 
mussels through consultation will provide the same conservation for 
Neosho mucket or rabbitsfoot.
    As a result, we conclude that additional (incremental) project 
modification costs are unlikely from this designation of critical 
habitat. Any incremental costs, as predicted in our final economic 
analysis (FEA), are primarily a result of the additional requirement of 
considering impacts to critical habitat during these section 7 
consultations. These costs are borne by the Service, the Federal action 
agency, and the third-party participants (generally the project 
proponents), including State and local governments and private parties. 
For a summary of the parties involved in section 7 consultations and 
their respective unit costs, see Exhibit 2-1 of the FEA. Chapter 3 of 
the FEA provides a detailed discussion of the types of third parties 
participating in consultations.

Federal Agency Comments

    (3) Comment: The U.S. Army Corps of Engineers (ACOE) Pittsburgh 
District (COEPD) expressed concern that designating critical habitat 
for the rabbitsfoot may affect the COEPD's navigation and maintenance 
dredging activities in the Alleghany River, its operation of Alleghany 
Reservoir, and its regulatory program. ACOE stated that additional 
avoidance measures will be required to adequately protect habitat for 
rabbitsfoot.
    Our Response: The federally endangered clubshell (Pleurobema 
clava), northern riffleshell (Epioblasma torulosa rangiana), rayed bean 
(Villosa fabalis), and snuffbox (Epioblasma triquetra) mussels occur in 
the same reach of the Allegheny River as rabbitsfoot. Therefore, 
section 7 requires consultation by Federal agencies for these listed 
species (see our response to Comment 2). Project modifications that 
minimize effects to these species would also minimize effects to 
rabbitsfoot. Thus, we do not expect any conservation measures or 
project modifications and costs for rabbitsfoot critical habitat beyond 
those already required for these other endangered mussels.
    (4) Comment: The COEPD asked how tributary streams to the Allegheny 
River will be affected by designation of critical habitat for 
rabbitsfoot.
    Our Response: French Creek (proposed Unit RF23; Unit RF22 in this 
rule) and Muddy Creek (proposed Unit RF25; Unit 24 in this rule) are 
the only two tributaries of the Allegheny River designated as critical 
habitat for rabbitsfoot. The Service will work with COEPD to determine 
whether any of the current, ongoing, or planned COEPD projects may have 
an effect on other tributaries within their district. As stated 
previously, the Service does not expect to recommend any project 
modifications in order to minimize effects to rabbitsfoot beyond those 
already required for other listed mussels in the Allegheny River basin.
    (5) Comment: The ACOE Huntington District stated that the 
designation of critical habitat for rabbitsfoot in the Walhonding River 
(proposed Unit RF27) is not consistent with the definition of critical 
habitat (that lakes and impoundments are not included). They stated 
that 40 percent of the Walhonding River upstream of Mohawk Dam in Ohio 
is impounded for flood control.
    Our Response: Mohawk Dam is a dry dam, meaning during normal flows,

[[Page 24695]]

water passes through the dam unimpeded and there are no permanent pools 
of water (areas of inundation) upstream resulting from the structure. 
During high flow events, the dam temporarily reduces flows downstream 
of the structure to maintain flows within the river banks. Hoggarth 
(1995-1996, pp. 163-164) found a stable and diverse mussel assemblage, 
including adult and juvenile rabbitsfoot, upstream of Mohawk Dam. 
Because Mohawk Dam does not inundate riverine habitat by forming a lake 
or reservoir and a diverse and abundant mussel assemblage inhabits 
upstream reaches behind the dam, we believe the habitat there contains 
the primary constituent elements for rabbitsfoot critical habitat (see 
Primary Constituent Elements for Neosho Mucket and Rabbitsfoot, below).
    Section 3.3.1 of the FEA has been amended to add information about 
the presence of the dam in the study area of proposed Unit RF27; 
however, the Service does not expect to recommend additional 
conservation efforts for the dam, above and beyond what would be 
required to protect against jeopardy of the species, to protect against 
adverse modification of critical habitat.
    (6) Comment: The ACOE Little Rock District stated that the 
designation will result in increased costs for energy development and 
that the estimated cost of timing restrictions and limiting project 
scope are too low, as projects may be delayed or denied due to 
permitting and modification issues.
    Our Response: The discussion of potential baseline impacts in the 
FEA has been updated to reflect additional information provided by the 
ACOE regarding impacts to energy development associated with avoidance 
and delays related to the presence of the species. Exhibit 4-2 of the 
FEA (``Ranges of Costs of Common Conservation Efforts for Mussel 
Species'') notes that the cost of conservation efforts may be higher 
than the estimates shown. A key conclusion of the analysis is that the 
listing of the species may lead to many conservation efforts (such as 
those presented in Exhibit 4-2) that would not have been required 
previously. However, as outlined in our response to Comment 2, 
designation of critical habitat is not anticipated to generate 
additional conservation measures for these two mussels beyond those 
generated by the species' listing.

State Agency Comments

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for [her] failure to adopt 
regulations consistent with the agency's comments or petition.'' The 
designation of critical habitat for Neosho mucket includes streams in 
Arkansas, Kansas, Missouri, and Oklahoma, and for rabbitsfoot includes 
streams in Alabama, Arkansas, Illinois, Indiana, Kansas, Kentucky, 
Louisiana, Mississippi, Missouri, Ohio, Oklahoma, Pennsylvania, and 
Tennessee. We received comments from the States of Illinois, Kansas, 
Pennsylvania, Ohio, and Oklahoma regarding the proposal and address 
them below.
    (7) Comment: The Pennsylvania Fish and Boat Commission (PFBC) 
supported the designation of critical habitat for rabbitsfoot. PFBC 
recommended extending the critical habitat designation for rabbitsfoot 
upstream from Kidds Mill Road to Pymatuning Dam on the Shenango River. 
Western Pennsylvania Conservancy (WPC) submitted a public comment with 
the same recommendation. PFBC provided a report by Bursey (1987) 
documenting the presence of rabbitsfoot at Porter Road, 8.5 rkm (5.3 
rmi) upstream of Kidds Mill Road. PFBC stated that without critical 
habitat designation in this location, any newly discovered rabbitsfoot 
populations in this river reach would not be protected by the Act.
    Our Response: We appreciate PFBC's support and look forward to 
continuing work with the PFBC and WPC to recover rabbitsfoot. 
Considering the information in Bursey (1987), we agree the extent of 
critical habitat designation in the Shenango River should be extended 
8.8 rkm (5.4 rmi) upstream to Porter Road. This modification is 
reflected in this final determination. As described under Criteria Used 
to Identify Critical Habitat, we reviewed available information 
pertaining to the habitat requirements of rabbitsfoot. In accordance 
with the Act and its implementing regulation at 50 CFR 424.12(e), we 
considered whether designating additional areas--outside those 
currently occupied as well as those occupied at the time of listing--
are necessary to ensure the conservation of the species. However, we 
respectfully disagree that there is sufficient scientific information 
from which to conclude that the reach from Pymatuning Dam to Porter 
Road is occupied by rabbitsfoot. While this reach appears to contain 
sufficient physical or biological features to support the life history 
of mussels, possibly including rabbitsfoot, we determined that 
designating unoccupied critical habitat for rabbitsfoot was not 
essential for the conservation of the species in this reach due to the 
altered natural stream hydrology and geomorphology. Unoccupied areas 
exhibit limited habitat availability, degraded habitat, or low 
potential value for management, and there are no historical records of 
occurrence within the stream reach for rabbitsfoot (see also Criteria 
Used to Identify Critical Habitat).
    This does not mean, however, that this reach will be without 
protection if the rabbitsfoot is later found to occupy that reach. The 
protections of the Act brought about by the species' listing are in 
effect wherever the species is found. In addition, the reach upstream 
of Porter Road will continue to be protected through the conservation 
actions implemented for the other listed mussels (e.g., clubshell) that 
currently occur in that area.
    (8) Comment: PFBC suggested that by restricting critical habitat to 
occupied areas, the Service appears to be unintentionally inhibiting 
recovery of rabbitsfoot, as habitat loss outside of critical habitat 
areas cannot be avoided under a section 7 jeopardy analysis.
    Our Response: It is correct that section 7 consultation would not 
be triggered for potential rabbitsfoot habitat that is not occupied by 
the species or designated as critical habitat (although some areas may 
be occupied by other listed species and/or critical habitat for other 
listed species that would trigger section 7 consultations on Federal 
actions). However, we disagree that recovery of either species will be 
inhibited because we are not designating unoccupied habitat. We have 
found that unoccupied stream reaches are not essential for the 
conservation of either species for one or more of the following 
reasons:
    (a) Unoccupied habitats are isolated from occupied habitats due to 
reservoir construction and dam operations;
    (b) Unoccupied areas exhibit limited habitat availability, degraded 
habitat, or low potential value for management;
    (c) Collection records for both species indicate that these species 
have been extirpated from unoccupied areas for several decades or more, 
and, in some cases, reintroduction efforts have not been successful at 
re-establishing populations; or
    (d) There are no historical records of occurrence within the stream 
reach for Neosho mucket, rabbitsfoot, or both.
    While we recognize the importance of unoccupied habitat to recovery 
of listed species, in this case unoccupied habitat does not at this 
time provide habitat for reintroduction or reduce the level of 
stochastic and human-induced threats (see Criteria Used to Identify 
Critical Habitat for more detailed information).

[[Page 24696]]

    (9) Comment: The Ohio Department of Transportation (ODOT) inquired 
about costs for highway departments and other public infrastructure 
entities and whether normal consultation time would increase due to the 
designation of critical habitat. ODOT believes the estimated economic 
impact of $1.4 million to the transportation and utility sectors over 
the next 20 years is an underestimate. This conclusion is based on the 
assumption that no instream work will be allowed for any project over 
or near critical habitat. ODOT provides an example of replacing a 
multiple span bridge with a single span structure increases cost by an 
average of 260 percent, or from $2.2 million to $5.6 million, exceeding 
the Service's estimate of economic impacts. The agency also expressed 
the belief that replacement or maintenance costs to improve or maintain 
23 bridge structures over designated critical habitat areas will 
increase and the economic impact to ODOT alone will exceed the 
estimated $1.4 million forecast in the economic analysis for 
transportation and utility activities without considering increased 
costs associated with coordination, survey, reporting, mitigation, and 
monitoring.
    Our Response: Future section 7 consultations concerning 
transportation and utilities are expected to occur in 35 critical 
habitat units, including the Walhonding River and Little Darby and Fish 
Creeks (proposed Units RF27, RF28, and RF30; Units RF26, RF27, and RF29 
in the final rule) in Ohio. Collectively, transportation and utilities 
consultations in these three critical habitat units are forecast to 
cost $15,000 over the next 20 years or $980 annually (one percent of 
total transportation and utilities costs). For comparison, the total 
transportation and utilities cost for all critical habitat units are 
forecast to cost $1,400,000 over the next 20 years or $93,000 annually 
(Exhibit 3-9 in the FEA). The designation of critical habitat will not 
preclude the construction of instream bridge support structures or 
maintenance to existing piers.
    The designation of critical habitat does not change the time frames 
required to complete consultation under section 7 of the Act and its 
implementing regulations at 50 CFR part 402, subpart B. As previously 
stated, conservation measures required to avoid jeopardizing the 
continued existence of the species are expected to be similar to those 
required to avoid adversely modifying critical habitat (that is, we 
foresee no conservation actions specifically due to critical habitat). 
We do not expect the designation of critical habitat to lengthen the 
consultation process. Thus, the best available economic data do not 
support ODOT's assertion.
    (10) Comment: The ODOT inquired about how the Service ensures 
consistent consultation on critical habitat throughout the range of 
rabbitsfoot. ODOT concluded that the term ``adverse modification'' is 
vague and interpretations, policies, and level of effort could vary 
among Service offices.
    Our Response: In 1986, the Service and the National Marine 
Fisheries Service (collectively referred to as the Services) 
established a definition for ``destruction or adverse modification'' 
(50 CFR 402.02) that was later found to be invalid by the U.S. Court of 
Appeals for the Fifth (2001) and Ninth (2004) Circuits. The Services 
each issued guidance to discontinue the use of the 1986 adverse 
modification regulation. Specifically, in evaluating an action's 
effects on critical habitat as part of interagency consultation, the 
Services began applying the definition of ``conservation'' as set out 
in the Act, which defines conservation (and conserve and conserving) to 
mean ``to use and the use of all methods and procedures which are 
necessary to bring any endangered species or threatened species to the 
point at which the measures provided pursuant to this Act are no long 
necessary'' (16 U.S.C. 1532(3)). Further, after examining the baseline 
and effects of the action, the Services began analyzing whether the 
implementation of the Federal action under consultation, together with 
any cumulative effects, would result in the critical habitat remaining 
``functional'' (or retain the current ability for the primary 
constituent elements to be functionally established) to serve the 
intended conservation role for the species.
    Section 7(a)(2) of the Act defines the consultation process, which 
is further developed in regulations set forth at 50 CFR part 402 and in 
the Service's section 7 handbook (guidance). The handbook ensures 
consistent implementation of consultation procedures by Service field 
offices responsible for carrying out section 7 activities throughout 
the range of rabbitsfoot. Furthermore, the Service and the Federal 
action agency are required to use the best available science in 
conducting the consultations (see our response to Comment 2).
    On May 12, 2014, we published a proposed rule in the Federal 
Register (79 FR 27060) to adopt the following definition of destruction 
or adverse modification: ``Destruction or adverse modification means a 
direct or indirect alteration that appreciably diminishes the 
conservation value of critical habitat for listed species. Such 
alterations may include, but are not limited to, effects that preclude 
or significantly delay the development of physical or biological 
features that support the life-history needs of the species for 
recovery.'' On June 26, 2014 (79 FR 36284) we extended the public 
comment period on the proposal to October 9, 2014. We have not yet 
published a final rule for this action, but expect to do so in the 
spring of 2015.
    (11) Comment: The ODOT requested an exclusion from critical habitat 
designation for portions of the river underneath and directly adjacent 
to roadway bridges in the Walhonding River and Little Darby and Fish 
Creeks. ODOT concluded that since bridge structures already exist and 
areas under the bridge are subject to regular maintenance activities 
that section 7 consultation for other listed mussels in these streams 
would be adequate to protect rabbitsfoot while streamlining 
consultation.
    Our Response: Under section 4(b)(2) of the Act and its implementing 
regulations at 50 CFR 424.19, we may exclude an area from designated 
critical habitat based on economic impacts, impacts on national 
security, or any other relevant impacts. 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 her discretion to 
exclude the area only if such exclusion would not result in the 
extinction of the species.
    This area is not subject to exclusion based on impacts to national 
security or other relevant impacts, such as the presence of a 
conservation plan (for example, a habitat conservation plan (HCP)), 
status as a tribal land, or an existing partnership. In evaluating 
whether it should be excluded due to economic impacts, we concluded 
that no change in economic activity levels or the management of 
economic activities is expected to result from the critical habitat 
designation (see our response to Comment 2). Some additional costs 
reflect additional administrative effort as part of future section 7 
consultations in order to consider the potential for activities to 
result in adverse modification of critical habitat. Section 7 
consultation is required in occupied habitat with or without a critical 
habitat

[[Page 24697]]

designation. We acknowledge it is unlikely additional conservation 
measures beyond those identified to avoid jeopardy for the species 
would be required to avoid adverse modification. Accordingly, the 
Secretary is not exerting her discretion to exclude any areas in the 
Walhonding River and Little Darby and Fish Creeks from the designation 
based on economic impact, national security impact, or other relevant 
impacts.
    (12) Comment: The Oklahoma Department of Wildlife Conservation 
(ODWC) stated that it does not support designation of critical habitat 
for Neosho mucket and rabbitsfoot. ODWC questioned potential benefits 
of critical habitat designation cited in the proposed rule (77 FR 
63472), which ODWC stated are not compelling arguments in favor of 
designation. ODWC concluded:
    (a) The presence of Neosho mucket or rabbitsfoot in a stream 
segment already is a trigger for section 7 consultation and the 
designation of critical habitat does not change this requirement;
    (b) The focusing of conservation activities on the most essential 
features and area for each mussel species should be addressed through 
development and implementation of a recovery plan, and the designation 
of critical habitat is not essential to this prioritization process and 
can be articulated just as effectively in the recovery plan;
    (c) The educational benefits derived from critical habitat can be 
conveyed through Federal, State, and private entities more effectively 
with an informative, detailed, and publicly accessible Web site; and
    (d) It is not clear how designation of critical habitat prevents 
``people from causing inadvertent harm to the species'' as the 
designation only applies to Federal actions and not those of the 
general public.
    ODWC further concluded, based on these four arguments, that there 
is no unique added value to the designation of critical habitat.
    Our Response: Section 4(a)(3)(A) of the Act requires that, to the 
maximum extent prudent and determinable, we designate critical habitat 
at the time a species is determined to be endangered or threatened. Our 
regulations at 50 CFR 424.12(a)(1) state that designation of critical 
habitat is not prudent when one or both of the following situations 
exist: (1) The species is threatened by taking or other human activity, 
and identification of critical habitat can be expected to increase the 
degree of threat to the species, or (2) such designation of critical 
habitat would not be beneficial to the species. The Service determined 
that there is no threat of take attributed to collection or vandalism 
under Factor B for either species, and identification and mapping of 
critical is not expected to initiate any such threat. We also believe 
that designating critical habitat will be beneficial to the species, as 
described in the proposed rule (77 FR 63440, p. 63472) (see also our 
response to Comment 52, below). We address ODWC's specific conclusions 
below.
    (a) We acknowledge that presence of Neosho mucket or rabbitsfoot is 
a trigger for section 7 consultation with or without the designation of 
occupied critical habitat. We also acknowledge occupied areas outside 
the final critical habitat designation will continue to be subject to 
conservation actions implemented under section 7(a)(1) of the Act, 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, and the prohibitions of section 9 of the Act. However, if 
designated critical habitat should become unoccupied at some point in 
the future, the designation of critical habitat ensures regulatory 
protections afforded by section 7(a)(2).
    (b) We acknowledge that critical habitat designation is not 
essential to establish recovery criteria and prioritize recovery 
actions during development and implementation of recovery plans. 
However, 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), which can be very 
beneficial both in focusing conservation efforts on specific 
activities, areas, or features and in establishing future recovery 
efforts. Designation can often help to focus recovery efforts and 
ensure these features, areas, and activities receive priority during 
section 7 consultations and the planning efforts of both the Service 
and its partners.
    (c) We agree that the Internet and social media are effective 
venues to convey the benefits of designating critical habitat. We also 
agree there are many misperceptions by entities and individuals 
regarding designation of critical habitat. The Service maintains a 
publicly accessible Internet site, social media, and other educational 
materials related to critical habitat and the Act, in general, to 
inform the public and abate concerns. In outlining benefits of 
designating critical habitat for Neosho mucket and rabbitsfoot, our 
intent was not to imply that designation of critical habitat is only an 
educational tool for the recovery of Neosho mucket and rabbitsfoot. To 
the contrary, critical habitat is a tool within the Act which 
identifies areas essential to the conservation of endangered and 
threatened species and that may require special management 
considerations. Through identification of physical or biological 
features essential to the conservation of Neosho mucket and 
rabbitsfoot, critical habitat informs agencies, entities, and 
individuals about habitats and specific features of these habitats 
essential to the conservation of Neosho mucket and rabbitsfoot and 
helps focus efforts. Accordingly, even though designation is not the 
sole educational tool in the recovery process, it may still provide 
educational benefits.
    (d) Federal agencies must consult with the Service to ensure that 
any action authorized, funded, or carried out will not destroy or 
adversely modify critical habitat for listed species. This rule 
identifies the primary constituent elements of the physical or 
biological features essential to the conservation of Neosho mucket and 
rabbitsfoot. These primary constituent elements will help Federal 
agencies (and those for which they are providing funding, providing 
authorization, or completing activities) in planning or evaluating 
projects. In addition, it may be beneficial to those who wish to 
conserve this species to know which areas have been determined to be 
essential to the conservation of the species through this designation. 
The maps in the designation spatially depict the areas we have 
identified as critical habitat, assisting with these efforts.
    (13) Comment: ODWC stated that the Service (a) did not identify and 
quantify the relative importance of potential threats in each critical 
habitat unit, and (b) cannot determine whether Federal actions are 
important to the recovery of Neosho mucket and rabbitsfoot. ODWC 
further concluded that if Federal actions are not relevant then 
designation of critical habitat has no recovery value.
    Our Response: In each unit description in the proposed designation, 
the Service identified physical or biological features that may require 
special management considerations or protections to address threats 
such as land use conversion; alteration of water chemistry and water 
and sediment quality; changes in stream bed material composition and 
quality from activities that release sediments and nutrients into the 
water, such as urban development and associated construction projects; 
livestock grazing; and releases from municipal effluents. In addition, 
in the Effects of Critical Habitat Designation, Section 7 Consultation 
and Application of the ``Adverse Modification'' Standard sections in 
the proposed designation (77

[[Page 24698]]

FR 63440), we discuss the Federal process concerning section 7 
consultations and review of projects for adverse modification of 
designated critical habitat. We provide a description of the actions 
and activities that may result in adverse effects to occupied Neosho 
mucket and rabbitsfoot critical habitat. This is not an exhaustive 
list, and we note that the activities listed may be able to be modified 
by measures which would sufficiently offset the potential adverse 
effects so that the value of the habitat for its intended conservation 
function is not appreciably reduced. The occurrence of the actions we 
described will not always result in adverse modification of critical 
habitat if the available compensation can reduce the effects of these 
actions on the habitat.
    These types of activities would require section 7 consultation only 
in cases where there is Federal involvement (see response to Comment 
2). The FEA examined the Service's section 7 consultation record as a 
means to project future consultations. The FEA also accounts for 
projected increases in section 7 consultations, by activity category, 
based on communication with Service field offices and Federal agencies. 
Additional supporting information and documentation for the FEA is 
contained within our administrative record. The ACOE, Bureau of Land 
Management, U.S. Department of Energy, Federal Energy Regulatory 
Commission, U.S. Department of Transportation (DOT), U.S. Department of 
Agriculture (USDA) Forest Service, Environmental Protection Agency 
(EPA), and Tennessee Valley Authority are Federal agencies who may 
fund, permit, or conduct actions that may potentially affect designated 
critical habitat for Neosho mucket or rabbitsfoot and are expected to 
consult with the Service under section 7 of the Act. Recovery of these 
mussels will not be attained without the valuable contribution of our 
Federal partners, in accordance with section 7(a)(1) of the Act, as 
well as our State and nongovernmental partners.
    (14) Comment: The ODWC recommended modification to Unit RF2 
(Verdigris River) for rabbitsfoot. ODWC indicated that the critical 
habitat unit includes a portion of the Verdigris River downstream of 
Oklahoma Highway 266, which has been substantially modified by dredging 
and channel modification to create the upper end of the McClellan-Kerr 
Arkansas River Navigation System.
    Our Response: In response to this comment, we have re-evaluated 
Unit RF2, and, based on the best available scientific information, we 
are modifying it in this final rule. For further information, see 
Summary of Changes from Proposed Rule, below.
    (15) Comment: The ODWC questioned the biological benefit of 
including Unit NM1 for Neosho mucket due to existing State water 
quality standards. ODWC also suggested that the designation of critical 
habitat may hinder recreational activity in the Illinois River.
    Our Response: Please refer to our responses for Comments 12 and 13. 
Since recreational activities on the Illinois River are not regulated 
by a Federal agency, we do not anticipate any effects to recreational 
activities due to the designation of critical habitat in Unit NM1.
    (16) Comment: The Pennsylvania Department of Transportation (PDOT) 
opposed the designation of critical habitat for the rabbitsfoot due to 
the financial hardship it believes the designation will bring to 
Pennsylvania taxpayers. PDOT concluded it would not be a prudent 
expense of transportation dollars to engage in all the coordination and 
expense associated with the critical habitat designation.
    Our Response: All PDOT activities authorized or funded, in whole or 
part, by the Federal Highway Administration (FHA) or permitted by a 
Federal agency such as the ACOE (such as, placement of bridge piers in 
a navigable stream) are required to adhere to section 7(a)(2) of the 
Act (see our response to Comment 2). PDOT projects that have no Federal 
nexus are not subject to section 7 consultation. However, as previously 
stated, four other federally endangered mussels occur in the same 
reaches of the Allegheny and Shenango Rivers and French and Muddy 
Creeks as the rabbitsfoot. Although no critical habitat has been 
designated for these mussels, we believe that project modifications 
that have been implemented to minimize effects to these listed mussel 
species are the same types of measures that would be implemented to 
minimize effects to rabbitsfoot and its critical habitat. Therefore, we 
expect the additional cost to taxpayers to be minimal.
    (17) Comment: The PDOT stated there will be additional costs 
associated with section 7 consultation with FHA due to the requirement 
to prepare a biological assessment in designated critical habitat 
regardless of species presence. PDOT requested evaluation of all 
financial impacts to the agency associated with designating critical 
habitat. PDOT also suggested adverse modification has not occurred 
previously at completed bridge projects as evidenced by the Service's 
willingness to utilize these sites for reintroduction of endangered 
mussels.
    Our Response: FHA is required under section 7(a)(2) of the Act to 
evaluate beneficial and adverse effects associated with their actions 
in areas containing listed species. While the Service agrees some 
completed bridge project sites may serve as suitable sites for mussel 
augmentation and reintroduction, potential effects of future bridge 
projects to listed species and their critical habitat will vary 
depending on a variety of factors, including, but not limited to, the 
location and type of structure being proposed, as well as the extent to 
which rabbitsfoot occurs in the project area. Under section 7(a)(2) of 
the Act and its implementing regulations at 50 CFR part 402, subpart B, 
Federal agencies are not required to prepare biological assessments for 
actions that they determine will have no effect, or that may affect but 
are not likely to adversely affect, a species and its designated 
critical habitat. Therefore, if a bridge project is deemed not likely 
to adversely affect this species or other listed species or their 
critical habitat, no biological assessment would be required by the 
agency.
    One of the main conclusions of the FEA is that the Service does not 
expect critical habitat designation to result in project modification 
costs beyond what would be requested to avoid jeopardy to the species. 
As a result, we expect incremental economic impacts of considering 
critical habitat as part of the forecast section 7 consultations will 
be limited to additional administrative costs to the Service, Federal 
agencies, and third parties. Future section 7 consultations concerning 
transportation and utilities are expected to occur in 34 critical 
habitat units, including French Creek, the Allegheny River, and Muddy 
Creek (Units RF22, RF23, and RF24 in this rule) that occur in 
Pennsylvania. Collectively, transportation and utilities consultations 
in these three critical habitat units are forecast to cost $196,000 
over the next 20 years or $12,500 annually. For comparison, the total 
transportation and utilities cost for all critical habitat units are 
forecast to cost $1,400,000 over the next 20 years or $93,000 annually 
(Exhibit 3-9 in the FEA; IEc 2014a, p. 1). As outlined in the FEA, 
these costs are the incremental costs of the critical habitat 
designation (that is, those costs, such as expenditures related to 
consultation, which can be attributed solely to critical habitat).
    (18) Comment: PDOT asked the Service ``that if the Rabbitsfoot 
Mussel is listed and critical habitats are designated, that there is 
solid scientific

[[Page 24699]]

evidence that the species for which the critical habitat is being 
designated is present and/or uses the habitat.'' PDOT asserted that it 
committed significant monetary resources in the past to mitigate 
effects to endangered and threatened species in areas with no evidence 
of species presence.
    Our Response: The Act and its implementing regulations require the 
Service to use the best available scientific and commercial data during 
consultation (see response to Comment 2). The Service will continue to 
work with PDOT and other partners to ensure procedures to document 
presence or absence of the mussels is scientifically supported and to 
avoid and minimize effects to the rabbitsfoot in areas where this and 
other listed species are present and critical habitat is designated.
    (19) Comment: PDOT requested minor road work (such as 
rehabilitation or resurfacing) and bridge work (such as replacement and 
repair) on existing roads be exempt from formal coordination 
(consultation), including areas 100 feet (ft) upstream and downstream 
of the project foot print.
    Our Response: Only PDOT projects that have a Federal nexus are 
subject to consultation (see our response to Comment 2). There is no de 
minimis exception from the consultation requirement. However, to 
streamline the consultation process, a Federal agency's determination 
of ``no effect'' or ``no adverse modification'' does not require 
concurrence by the Service.
    (20) Comment: PDOT expressed concern with its ability to quickly 
issue hauling permits for oversize and overweight loads and to restrict 
routing for materials such as fracking brine. The need to restrict 
routing for a subset of haulers such as hazardous material haulers 
would preclude PDOT's ability to electronically permit and route these 
haulers, resulting in extensive time delays and subsequently a need for 
a significant increase in manpower. PDOT concluded that manual permit 
review to assure limited section 9 liability represents significant 
economic burden to both the State of Pennsylvania (due to increases in 
manpower) and to many other industries (due to permit delays).
    PDOT also identified the DOT's Federal Motor Carrier Safety 
Administration and Pipeline and Hazardous Material Safety 
Administration as the regulatory agencies with oversight for 
transportation of hazardous materials on main traffic routes. PDOT 
concluded that a section 7 consultation is required for each load in 
response to the designation of critical habitat and each tanker truck 
is subject to those consultation procedures or detour routes around 
critical habitat (for example, to avoid crossing designated critical 
habitat in French Creek).
    Our Response: The Service appreciates PDOT's input. We respectfully 
disagree that the designation of critical habitat for rabbitsfoot would 
increase PDOT's section 9 liability and create or increase an economic 
burden on the State of Pennsylvania and industries transporting 
hazardous materials. A key conclusion of the FEA for rabbitsfoot 
critical habitat designation is that the Service does not expect 
critical habitat designation to generate additional requests for 
project modification in any of the critical habitat units, including 
the Allegheny and Shenango Rivers and French and Muddy Creeks. Our 
conclusion is based on the FEA and that the creeks and rivers where 
rabbitsfoot occurs are already inhabited by other federally listed 
mussels. Project modifications that minimize effects to other listed 
mussel species within these reaches also would minimize effects to 
rabbitsfoot (see our response to Comment 2).
    (21) Comment: PDOT indicated it has pre- and post-Marcellus and 
Utica shale drilling truck accident reports that may be useful in 
identifying whether increased oil and gas exploration has or has not 
translated to an increased threat of crashes that may release 
contaminants.
    Our Response: The Service appreciates PDOT's cooperation to further 
identify potential threats to rabbitsfoot and designated critical 
habitat. Your comments have been forwarded to our Pennsylvania 
Ecological Services Field Office so that they may review the 
information and, if appropriate, work cooperatively with PDOT to 
minimize any potential threats to rabbitsfoot and its designated 
critical habitat and other listed mussels from contamination that may 
result from these accidents.
    (22) Comment: PDOT stated that the information and data it provided 
refines the Service's analysis regarding the proposed designation of 
critical habitat for rabbitsfoot in proposed Units RF23, RF24, RF25, 
and RF32 and provided evidence that diminishes, to a significant 
extent, the threat from chemical contamination as a result of spills at 
bridge crossings over critical habitat. PDOT requested a detailed list 
of hazardous materials that pose a threat of adverse modification in 
order to plan and prepare for actions PDOT must take to reduce their 
potential liability under section 9 of the Act.
    Our Response: Due to the vast number of hazardous materials hauled 
on the nation's roads and limited toxicity data available for different 
life stages of freshwater mussels and their potential sensitivity to 
many of these compounds and effects to their habitat, the Service is 
unable to provide a comprehensive list of hazardous materials that may 
affect rabbitsfoot designated critical habitat. However, please refer 
to the Chemical Contaminants section of the proposed listing and 
designation of critical habitat rule (77 FR 63440) for further detail 
on compounds known to adversely affect freshwater mussels and their 
habitats.
    (23) Comment: ODOT and PDOT expressed concern that the DEA 
underestimated impacts to the transportation sector associated with the 
proposed designation. They asserted that the DEA does not account for 
the additional consultation, coordination, surveying, reporting, 
assessment, mitigation, and monitoring costs that will result from the 
rule. According to one comment, there are 23 existing structures 
crossing critical habitat in Ohio that will be affected by the rule due 
to project modifications that will discontinue in-water work. Another 
comment asserted that permits for roadwork in Pennsylvania will be 
interrupted as a result of the rule, and that this will result in time 
delays and traffic diversions.
    Our Response: Section 3.3.6 of the FEA provides information on the 
likely incremental impacts of the designation to transportation and 
utility-related activities. The analysis forecasts future section 7 
consultations on these activities using both historical consultation 
data and information from the Service's field offices that have 
jurisdiction in the study area regarding likely future consultations. 
As the commenters did not provide specific information regarding the 
number or rate of future consultations in the study area (including 
Ohio) over the next 20 years, the analysis relies on the estimates 
provided in section 3.3.6 of the FEA. Specifically, the FEA estimates 
that over the next 20 years, approximately 13.3 consultations are 
likely to occur for transportation projects in proposed critical 
habitat units RF27 and RF28, which are located in Ohio, in addition to 
approximately 3.3 consultations in proposed critical habitat unit RF30, 
which is located in Indiana and Ohio.
    The designation of critical habitat is not anticipated to generate 
additional conservation measures for the two mussels beyond those that 
would be generated by the species being listed.

[[Page 24700]]

Regardless of whether critical habitat is designated, the time period 
for consultation does not change. Therefore, the designation is 
unlikely to result in incremental project delays due to the 
consultation process. As a result, we expect the quantified direct 
incremental impacts of the designation will be limited to additional 
administrative costs to the Service, Federal agencies, and third 
parties of considering critical habitat as part of future section 7 
consultations (see our response to Comment 2).
    (24) Comment: The Kansas Department of Wildlife, Parks and Tourism 
(KDWPT) expressed concern regarding the proposed designation of 
critical habitat for Neosho mucket in the Cottonwood River (Unit NM8). 
KDWPT provided data from 2013 surveys of two Neosho mucket 
reintroduction sites. Only one live Neosho mucket was located from the 
original reintroduction effort. KDWPT contended that this river reach 
does not support a self-sustaining population and that there are no 
data available to suggest reintroduction efforts have been successful; 
therefore, this habitat should not be considered occupied.
    Our Response: We agree that the Cottonwood River should not be 
considered occupied, and we are not designating critical habitat for 
Neosho mucket in the Cottonwood River. We have clarified our definition 
of occupied for the Neosho mucket (see Summary of Changes from Proposed 
Rule).
    (25) Comment: KDWPT suggested that the Cottonwood River population 
of Neosho mucket be considered an experimental population and 
propagated individuals be exempted from take under the Act. KDWPT also 
suggested that safe harbor agreements should be made available to any 
landowner agreeing to release Neosho mucket individuals in the 
Cottonwood River.
    Our Response: We are not designating critical habitat for Neosho 
mucket in the Cottonwood River (proposed Unit NM8), Chase County, 
Kansas. Recent KDWPT data from 2013 (Tabor 2013, pers. comm.) do not 
support that released individual mussels into the Cottonwood River were 
able to survive and become established (thriving and sufficiently 
viable to suggest continuation or permanence without human 
intervention), and the future success of the reintroduction efforts are 
unknown at this time (see Summary of Changes from Proposed Rule, 
below).
    The Secretary may authorize the establishment of an experimental 
population (including offspring arising solely therefrom) by regulation 
under section 10(j) of the Act if the location of that population is 
wholly separate geographically from nonexperimental populations of the 
same species. However, the Cottonwood River is not outside the current 
range of Neosho mucket, so such a regulation is not appropriate. If any 
of the released Neosho mucket individuals are found to have survived, 
they are protected by the provisions of the Act as an endangered 
species.
    If determined to be appropriate for the landowner and conservation 
of the mussel, the Service will work with interested property owners to 
develop a safe harbor agreement and to apply for an enhancement of 
survival permit pursuant to section 10(a)(1)(A) of the Act. The Service 
will also assist property owners in identifying actions they can 
voluntarily undertake or forego to benefit species covered by the safe 
harbor agreement and permit.

Public Comments

    (26) Comment: Several commenters expressed concern that the 
designation of critical habitat in Arkansas and Kansas gives the 
Service authority to restrict activities on privately owned land. The 
commenters specifically expressed concern regarding landowner water 
development projects, development or modification of livestock and 
irrigation water rights, normal aquaculture, farming and ranching 
activities, timber harvests, housing development projects, and 
development of mineral rights. They wanted to know whether these 
activities would trigger section 7 consultation and, if so, what the 
costs would be to private landowners for these consultations.
    Our Response: The designation of critical habitat will not increase 
government regulation of private land. Private activities are not 
subject to the Act's section 7 consultation requirements unless the 
activities are authorized, funded, or carried out by a Federal agency. 
Most normal operations for rearing of livestock or fish, or for other 
land uses common in Arkansas and Kansas, do not require Federal permits 
or funding and are not carried out by a Federal agency. Therefore, we 
do not anticipate this designation will impose any additional direct 
regulatory burdens to private landowners in Arkansas and Kansas (see 
our response to Comment 2).
    (27) Comment: One commenter requested that the Service designate 
critical habitat only in stream reaches with recent live specimen 
collections and that the designation extend no more than 3 miles 
upstream and downstream of collection sites. Similarly, other 
commenters suggested that the Service should limit the designation to 
areas that are or have historically been inhabited by the species and 
that the designation should not include the entire geographical region 
where a species can or may reside.
    Our Response: We are designating as critical habitat areas that we 
have determined to be occupied at the time of listing and contain 
sufficient elements of physical or biological features to support life-
history processes essential to the conservation of the Neosho mucket 
and rabbitsfoot. River habitats are highly dependent upon upstream and 
downstream channel habitat conditions for their maintenance. Therefore, 
where one occurrence record was known from a river reach, we considered 
the entire reach between the uppermost and lowermost locations of the 
mussel as occupied habitat, except in lakes and reservoirs. The nearest 
stream confluence or highway crossing to known localities was used to 
delineate the upstream and downstream extent of critical habitat. For 
the Neosho mucket, we have defined occupied habitat as those stream 
reaches known to be currently extant. For the rabbitsfoot, we have 
defined occupied habitat as those stream reaches that contain sizeable 
and small populations as defined by Butler (2005, pp. 88-89), and the 
marginal populations of Fish Creek and Red River that are the last 
extant populations in their respective basins (Great Lakes and 
Cumberland) and Allegheny River as a metapopulation (interconnected 
populations where there is gene flow). All other areas where 
populations are classified as marginal are not considered as occupied 
habitat (see Criteria Used to Identify Critical Habitat, below).
    (28) Comment: One commenter stated a belief that the protections 
afforded Neosho mucket and rabbitsfoot under Kansas Nongame and 
Endangered Species Conservation Act (K.S.A. 32-957 through 32-963, 32-
1009 through 32-1003) preclude the need to designate critical habitat 
for these mussels under the Act.
    Our Response: The Act requires that critical habitat be designated 
to the maximum extent prudent and determinable for any species that is 
determined to be an endangered or threatened species under the Act. We 
acknowledge Kansas State law affords State level protections similar to 
those afforded by the Act, but there are differences. For example, 
Kansas State law does not require Federal action agencies to consult 
with the Service.

[[Page 24701]]

    Further, Federal listing and designation of critical habitat 
affords opportunity for funding of recovery actions from Federal 
sources, and may include cost share grants for non-Federal landowners, 
the academic community, and nongovernmental organizations.
    (29) Comment: One commenter asserted there is no information, other 
than personal communication from the KDWPT, to support the presence of 
a stable, reproductive Neosho mucket population in the Cottonwood 
River, Kansas. The commenter contended the 1.6-rmi (2.6-rkm) reach of 
proposed critical habitat in the Cottonwood River is not occupied by 
Neosho mucket or is only occupied due to reintroduction and, therefore, 
should not be designated as critical habitat.
    Our Response: We are not designating critical habitat for the 
Neosho mucket in the Cottonwood River (see also our response to Comment 
24, above, and Summary of Changes from Proposed Rule, below).
    (30) Comment: One commenter stated our estimate of $4.4 million for 
informal and formal section 7 consultations is high, and questioned how 
these consultations can generate this cost.
    Our Response: The final total estimated economic impact of the 
designation related to consultation under the Act is $4.4 million over 
the 20-year period of analysis, or $290,000 on an annualized basis. 
These figures represent the estimated costs of consultation associated 
with eight categories of economic activity across the 12 States where 
critical habitat was proposed. Chapter 3 of the FEA provides detailed 
information regarding the portion of total cost associated with each 
category of activity and how many consultation actions are projected to 
occur over the 20-year period.
    (31) Comment: Two commenters from Kansas and Missouri stated that 
the Service did little, if any, outreach to the agricultural community.
    Our Response: The Service published legal notices during the first 
comment period in the Southeastern Missourian and Joplin Globe in 
Missouri, and The Morning Sun (Pittsburgh, Kansas), Wichita Eagle, and 
Topeka Capitol Journal in Kansas. The Service sent news releases to 17 
additional Missouri and 18 additional Kansas newspapers with readership 
in the areas affected by the proposed rule, including farmers. Advance 
notification of the proposed rule and the document making available the 
draft economic analysis and extending the proposal's comment period was 
provided to the Kansas Forestry Commission and Missouri Conservation 
Commission--Forest Management.
    The Service's Missouri field office held two public informational 
meetings in the area affected by this rule during the second comment 
period. The first meeting was held in Joplin, Missouri, on May 21, 
2013, and the second meeting was held in Greenville, Missouri, on May 
23, 2013. Information pertaining to both meetings was disseminated 
through typical media outlets in the region where the meetings were 
held, which is predominately agricultural.
    At the request of the Kansas Farm Bureau, the Service's Kansas 
field office scheduled public informational meetings for October 9 and 
10, 2013, in Parsons and Strong City, Kansas, respectively, during the 
third comment period. These meetings were cancelled due to a lapse in 
appropriations and partial government shutdown. The Service's Kansas 
field office attempted to reschedule the meetings with the Kansas Farm 
Bureau during the week of October 22, 2013, but was unable to 
reschedule the meetings prior to the comment period closing. As an 
alternative, the Service responded via email on October 22, 2013, to a 
list of Kansas Farm Bureau questions related to the proposed rule and 
draft economic analysis.
    (32) Comment: One commenter expressed concern that the designation 
of critical habitat in Unit RF4a (Ouachita River) will interfere with 
many of Camp Ozark's river activities, including expansion in coming 
years. The commenter asserted the camp is a significant local economic 
driver, and the inability to both use the river for recreation and to 
pursue development plans will stymie its ability to provide jobs and 
wealth to the local economy.
    Our Response: The originally proposed RF4b has been separated into 
two units (RF4a and RF4b) in this final designation. The Service has 
removed the originally proposed critical habitat Unit RF4a from the 
final designation based on recent survey efforts suggesting the 
rabbitsfoot population in this area should be classified as marginal 
based on Butler's (2005) classification (see Summary of Changes from 
Proposed Rule, below). As a result, the area the commenter expressed 
concerns about is not included in the final designation of critical 
habitat.
    (33) Comment: One commenter stated that the designation of critical 
habitat will significantly increase the number of consultations 
required for permitted and non-permitted activities.
    Our Response: As other listed species already occur in all 
designated critical habitat units for Neosho mucket and rabbitsfoot, we 
do not expect the number of consultations to increase due to this 
designation.
    (34) Comment: One group of commenters stated that the Service fails 
to meet the Act's requirements for lawful designation of critical 
habitat in two respects: (a) By designating areas occupied by the 
rabbitsfoot in Arkansas as critical habitat absent an appropriate 
determination that such areas include features essential to the 
conservation of the species and which require special management 
considerations or protection, and (b) by designating areas unoccupied 
by rabbitsfoot in Arkansas as critical habitat absent an appropriate 
determination those areas are essential for the conservation of the 
species.
    Our Response: In accordance with 50 CFR 424.12(d), the Service 
concluded designating critical habitat in river reaches between, or in 
close proximity to, the uppermost and lowermost occupied areas 
represent an inclusive area essential to the conservation of Neosho 
mucket and rabbitsfoot. In accordance with 50 CFR 424.12(b), the 
Service determined all or some primary constituent elements were 
present in each unit as evidenced by occupied space (that is, stable 
habitat) for individual growth, feeding, and reproduction, presence of 
gravid females, availability of fish hosts, and water quality. While 
all water quality needs may not be completely understood, we estimate 
some numeric standards have been adopted under the Clean Water Act (33 
U.S.C. 1251 et seq.) that represent levels essential to the 
conservation of these mussels (such as dissolved oxygen, ammonia, pH, 
metals) (see Physical or Biological Features). In this final 
determination and in accordance with 50 CFR 424.12(b), we have 
identified nine categories of primary threats affecting Neosho mucket 
and rabbitsfoot habitat that may necessitate special management or 
protection (see Special Management Considerations or Protection). We 
did not designate as critical habitat any areas that are unoccupied by 
either species.
    (35) Comment: One group of commenters stated that the Service's 
record for the rule does not include sufficient information for the 
Service to determine critical habitat features essential to the 
conservation of the species based on descriptions of the physical or 
biological features, which state ``little is known of the specific 
habitat requirements for the Neosho mucket and rabbitsfoot'' and ``the 
ranges of many water quality parameters that define suitable habitat 
conditions for Neosho mucket and rabbitsfoot have not

[[Page 24702]]

been investigated or are poorly understood.'' Accordingly, the 
commenters expressed the belief that the critical habitat units are 
overly broad and unnecessary for preservation and propagation of these 
mussels.
    Our Response: Generally, the Neosho mucket is found embedded in 
stable substrates associated with shallow riffles (areas where shallow, 
generally less than 1 meter (m) (3.3 ft) in depth, turbulent water 
passes through and over stones or gravel of somewhat similar size) and 
runs (intermediate areas between pools and riffles with moderate 
current) with gravel and sand substrate and moderate to swift currents 
(Oesch 1984, p. 221; Harris 1998, p. 5; Obermeyer 2000, pp. 15-16). 
However, in Shoal Creek and the Illinois River, the Neosho mucket 
prefers near-shore areas or areas out of the main current (Harris 1998, 
p. 5). The rabbitsfoot usually occurs in shallow areas along the bank 
and adjacent runs and riffles with gravel and sand substrates where the 
water velocity is reduced, but it also may occur in deep runs (Parmalee 
and Bogan 1998, pp. 211-212). Unlike the Neosho mucket (Barnhart 2003, 
p. 17), the rabbitsfoot seldom burrows in the substrate, but lies on 
its side (Watters 1988, p. 13; Fobian 2007, p. 24). Neosho mucket and 
rabbitsfoot, similar to other mussels, are dependent on areas with flow 
refuges where shear stress (the stream's ability to entrain and 
transport bed material created by the flow acting on the bed material) 
is low and sediments remain stable during flood events (Layzer and 
Madison 1995, p. 341; Strayer 1999, pp. 468 and 472; Hastie et al. 
2001, pp. 111-114). Habitat conditions described above provide space, 
cover, shelter, and sites for breeding, reproduction, and growth of 
offspring for the Neosho mucket and rabbitsfoot; are essential to their 
conservation; and may require special management considerations or 
protection. These habitat conditions have been accurately captured in 
the physical or biological features that we have identified to be 
essential to the conservation of the species. Based on the best 
available scientific information, we conclude the designation of 
critical habitat for Neosho mucket and rabbitsfoot meets the criteria 
set forth in 50 CFR 424.12.
    (36) Comment: One group of commenters suggested that the Service 
should limit critical habitat designations for rabbitsfoot in Arkansas 
to areas where successful host species and rabbitsfoot coexist.
    Our Response: Based on the best available information, suitable 
fish hosts for the rabbitsfoot occur in all areas that we are 
designating as critical habitat. The Arkansas Game and Fish Commission 
(AGFC) fish database (2014) includes numerous records for rabbitsfoot 
fish hosts in the critical habitat units designated in Arkansas. Our 
administrative record documents the coexistence of rabbitsfoot and its 
fish hosts in these critical habitat units.
    (37) Comment: One group of commenters suggested that the Service 
should remove streams impacted and/or controlled by hypolimnetic (lower 
thermally stratified portion of a lake) or other cold water releases 
(such as Mammoth Spring in Arkansas) because those streams are not 
preferred habitat for rabbitsfoot. Specifically, they referenced the 
Spring River (proposed Unit RF12) from Hardy downstream to Ravenden, 
Arkansas, and Ouachita River (proposed Unit RF4b) from Interstate 30 
downstream to the Little Missouri River confluence. They stated that 
the rabbitsfoot cannot survive in these two cold water reaches.
    Our Response: Our decision record documents the presence of a 
diverse and abundant mussel assemblage in the Spring River from Hardy, 
Arkansas, downstream to Ravenden, Arkansas (Rust 1993, Appendix 1.2 and 
1.4; Harris et al. 2007; AGFC Mussel Database 2014; various museum 
records). The Ouachita River mussel and fish fauna from Remmel Dam 
downstream to Interstate 30 is affected by cold water releases (Harris 
1999, p. 4-2). Mussel species richness and abundance increases 
downstream of Interstate 30 (Harris 1999, p. 3-8). Harris (1999, p. 4-
2) reported double-digit species richness and higher relative abundance 
of mussels downstream of the Tenmile Creek confluence compared to sites 
upstream. Live rabbitsfoot occur in the Spring River between Hardy and 
Ravenden, Arkansas, and in the Ouachita River downstream of Tenmile 
Creek to the confluence of the Caddo River (Harris et al. 2007, pp. 14-
16; AGFC Mussel Database 2014; Harris 1999, p. 3-8). Therefore, the 
best available scientific information supports that mussels, including 
rabbitsfoot, can survive in these reaches.
    (38) Comment: One group of commenters recommended modifications to 
six critical habitat units for rabbitsfoot. They asserted that the 
critical habitat units should be restricted to stream reaches where 
live rabbitsfoot individuals are known to occur. The units are as 
follows:
    (a) Ouachita River (proposed Unit RF4a): Remove entire designation 
because occurrence of rabbitsfoot is only reported from Arkansas 
Highway 379 and 298.
    (b) Ouachita River (proposed Unit RF4b): Restrict designation to 
the confluence of Little Missouri River downstream to U.S. Highway 79.
    (c) Saline River (proposed Unit RF5): Restrict designation to 2 
miles upstream of Arkansas Highway 15 to the Snake Creek confluence 
north of the Felsenthal National Wildlife Refuge boundary.
    (d) Black River (proposed Unit RF9): Restrict designation to 
Pocahontas, Arkansas, downstream to Black Rock, Arkansas.
    (e) Spring River (proposed Unit RF10): Restrict designation to 
Ravenden, Arkansas, downstream to confluence with Black River. They 
also believe water temperatures from Hardy to Ravenden, Arkansas, do 
not support propagation of rabbitsfoot and, thus, are not essential to 
the conservation of the species.
    (f) South Fork Spring River (proposed Unit RF11): Remove entire 
designation based on the lack of documentation of live rabbitsfoot 
despite multiple surveys.
    Our Response: We have re-evaluated the critical habitat units in 
question and, based on the best available scientific information, we 
are removing or modifying the following units in this final rule. For 
further information, see Summary of Changes from Proposed Rule, below.
    (a) Ouachita River (proposed Unit RF4a): We agree, in part, with 
the commenters and in this final designation have removed the 
originally proposed Unit RF4a.
    (b) Ouachita River (Unit RF4b): We agree, in part, with the 
commenters and have revised proposed Unit RF4b into two units. The 
Ouachita River from Arkadelphia downstream to the Little Missouri River 
confluence has not been comprehensively surveyed for mussels. While the 
absence of rabbitsfoot from this reach is likely a result of no survey 
data and not actual absence, the best available scientific information 
supports designating critical habitat in two Ouachita River units, 
revised Unit RF4a and revised Unit RF4b (see Summary of Changes from 
Proposed Rule, below).
    (c) Saline River (Unit RF5): We agree, in part, with the commenters 
and have modified Unit RF5 in this final designation so that the 
upstream boundary is at the Frazier Creek confluence near Mt. Elba, 
Arkansas, and the downstream boundary is at the Mill Creek confluence 
near Stillions, Arkansas.
    (d) Black River (Unit RF9): We agree, in part, with the commenters 
and have modified Unit RF9 in this final

[[Page 24703]]

designation so that the downstream boundary is at the Flat Creek 
confluence downstream of Powhatan, Arkansas.
    (e) Spring River (Unit RF10): The best available scientific 
information supports the designation with a slight adjustment to the 
upstream boundary of Unit RF10 downstream approximately 3.72 rkm (6 
rmi) to the Ott Creek confluence. We have made this change in this 
final designation.
    (f) South Fork Spring River (proposed Unit RF11): The best 
available scientific information supports categorizing the South Fork 
Spring River rabbitsfoot population as marginal. Therefore, the Service 
has removed proposed Unit RF11 (the South Fork Spring River) from this 
final designation. (Note that units have been renumbered for this final 
rule and final Unit RF11 is not the same location as proposed Unit 
RF11).
    (39) Comment: One group of commenters stated that the Service 
failed to acknowledge protections afforded to proposed Units RF10 and 
RF4a under Arkansas Pollution Control and Ecology Commission (APCEC) 
Regulation 2 (waters designated as Extraordinary Resource Waters (ERW) 
and Ecologically Sensitive Waterbodies (ESW)), which they stated 
provide sufficient protection to preserve the physical or biological 
features essential to the conservation of rabbitsfoot.
    Our Response: The Service acknowledges there are some protections 
afforded to ERW and ESW under APCEC's Regulation 2, which was developed 
pursuant to the Arkansas Water and Air Pollution Control Act and the 
Clean Water Act (CWA). Significant physical alterations of habitat are 
not allowed unless: (a) The proposed physical alteration of habitat 
will not impair water quality, natural flow regime, and the habitat of 
fish, shellfish, or aquatic life; and (b) there is no feasible 
alternative to the proposed project. Regulation 2 also allows the 
short-term activity authorization for a variety of activities that are 
permitted to exceed water quality standards provided there is no 
permanent or long-term impairment. However, despite provisions in 
Regulation 2 that explicitly prohibit short-term activity authorization 
for activities that result in adverse effects to federally endangered 
and threatened species or their critical habitat, short-term activity 
authorizations in ERW and ESW watersheds have been linked to documented 
take of endangered species (see U.S. v. Hawk Field Services, LLC 2011). 
Furthermore, Regulation 2 allows for the removal of an ERW or ESW 
designation for the purpose of constructing a reservoir to provide 
domestic drinking water, if it can be demonstrated: (a) The sole 
purpose is to provide domestic drinking water supply; and (b) there is 
no feasible alternative to constructing a reservoir to meet the 
domestic water needs of the citizens of Arkansas. Given that a goal of 
the CWA is to establish water quality standards that protect shellfish 
and given documented declines of these mussel species still continue 
due to poor water quality and other factors, we take a conservative 
approach in favor of the species and conclude that Regulation 2 has 
been insufficient to significantly reduce or remove threats to the 
Neosho mucket and rabbitsfoot in Units RF4a and RF10.
    (40) Comment: One group of commenters commissioned its own study of 
the economic impacts of the critical habitat designation. Their study 
compared their results to the Service's DEA and concluded that the DEA 
``vastly understates'' costs of the regulatory action because it does 
not take into account direct and indirect costs to businesses, State 
and local governments, and other private property owners resulting from 
section 7 consultation requirements. Furthermore, these impacts would 
lead to additional damages to the regional economy in the form of lost 
tax revenue, increased unemployment claims, damage from unrepaired 
roads and bridges, increases in transportation costs, and tax 
increases. Specifically, the evaluation estimated, based on a sample of 
affected projects, the total cost to affected Arkansas counties would 
exceed $19 million, approximately 5 times the cost of $4.4 million 
estimated in the DEA for the entire 12-State region of the designation.
    Our Response: The commenter's evaluation describes the economic 
impacts that would occur if a variety of hypothetical scenarios were to 
result from critical habitat designation (for example, if visitation at 
Camp Ozark declined by 25 percent; visitation at the Pond Creek 
National Wildlife Refuge decreased by 20 percent; an oil well is not 
drilled; a poultry farm is closed; the construction of a planned 
county-road bridge over the Osage River is delayed; or city or county 
discharges under the National Pollution Discharge Elimination System 
(NPDES) are restricted). However, the evaluation does not provide 
evidence to suggest such restrictions will actually occur as a result 
of the critical habitat designation.
    The Service considered whether restrictions are likely to result 
from the designation of critical habitat and found this to be unlikely. 
Specifically, the Service prepared a memorandum describing the likely 
outcome of future section 7 consultations (see Appendix D of the FEA). 
The Service is designating critical habitat in river segments that are 
occupied by the mussels. Section 7 consultation requirements take 
effect once the mussels are listed under the Act, even if critical 
habitat is not designated (see response to Comment 2). Thus, the 
incremental costs of additional regulation designating critical habitat 
are limited to the administrative costs to the Service, the Federal 
action agencies, and third parties involved in consultations. The FEA's 
estimate of $4.4 million (present value impacts assuming a 7 percent 
discount rate) results from this additional administrative burden.
    (41) Comment: Multiple commenters stated that the DEA 
underestimates the impacts of the proposed critical habitat designation 
because it utilizes an incremental approach that ``only estimates the 
likely costs of agencies consulting with each other'' and does not 
consider the actual opportunity costs to businesses, State and local 
governments, and other private property owners related to the required 
consultations.
    Our Response: The Service's focus on the incremental impacts of the 
critical habitat rule is consistent with the U.S. Office of Management 
and Budget's (OMB's) guidelines for best practices concerning the 
conduct of economic analysis of Federal regulations. As described in 
section 2.1 of the FEA, OMB guidelines direct Federal agencies to 
measure the costs of a regulatory action against a baseline, which it 
defines as the ``best assessment of the way the world would look absent 
the proposed action.'' The baseline utilized in the FEA is the existing 
regulatory and socio-economic burden imposed on landowners, managers, 
or other resource users potentially affected by the designation of 
critical habitat absent the designation of critical habitat. The 
baseline includes protections afforded the species under the Act, as 
well as under other Federal, State, and local laws and guidelines.
    In recognition of the divergent opinions of the courts and to 
address the Presidential memorandum dated February 28, 2012, the 
Service promulgated final regulations specifying that it is appropriate 
for the Secretary to consider impacts of a critical habitat designation 
on an incremental basis (78 FR 53058, August 28, 2013). This rule 
discusses the impact analysis for proposed critical habitat through 
completion of an ``incremental analysis.'' This method of determining

[[Page 24704]]

the probable impacts of the designation seeks to identify and focus 
solely on the impacts over and above those resulting from existing 
protections.
    Accordingly, the FEA employs ``without critical habitat'' 
(baseline) and ``with critical habitat'' (incremental) scenarios. The 
analysis qualitatively describes how baseline conservation efforts for 
the two mussels may be implemented across the proposed designation, 
and, where possible, provides examples of the potential magnitude of 
costs of these baseline conservation efforts (Chapter 4). The FEA 
focuses, however, on the incremental analysis, describing and 
monetizing the incremental impacts due specifically to the designation 
of critical habitat for the species (Chapter 3). Sections 2.2 and 2.3 
of the FEA describe in detail how the analysis defines and identifies 
incremental effects of the proposed designation.
    The incremental approach employed by the Service in its analyses of 
proposed critical habitat designations does not necessarily limit 
impacts to administrative costs of consultation. In some cases, 
designation of critical habitat does result in new project 
modifications that need to be implemented to avoid possible adverse 
modification of the habitat. The costs of these project modifications 
would then be counted in the incremental analysis, regardless of who 
incurs the cost. In the case of the Neosho mucket and rabbitsfoot, all 
of the designated critical habitat is occupied by the species, and 
therefore any project modifications will be required even absent 
critical habitat (in the baseline) to avoid possibly jeopardizing the 
species' existence (see response to Comment 2).
    (42) Comment: Multiple commenters expressed concern that the 
proposed critical habitat designation will have an economic impact on 
Arkansas counties, cities, communities, businesses, and industry 
sectors through effects on employment, tax revenues, business and 
industrial operations, and overall quality of life. Commenters 
suggested that these impacts will occur as a result of new critical 
habitat-related restrictions, prohibitions, delays, cancellations of 
activities, and/or additional requirements for conservation and 
consultation.
    Our Response: The commenters do not provide information regarding 
how or why they believe critical habitat will result in new 
restrictions, prohibitions, delays, cancellations, or conservation 
requirements. Within the FEA, the Service specifically considered 
whether additional or different conservation measures would be needed 
to avoid destruction or adverse modification of critical habitat above 
and beyond those measures needed to avoid jeopardizing the continued 
existence of the species, and found this to be unlikely (see our 
response to Comment 2). Because all of the units are occupied by at 
least one of the mussel species, any measures needed to protect habitat 
would be requested by the Service, even if critical habitat was not 
designated, to avoid jeopardizing the continued existence of the 
species.
    (43) Comment: Multiple commenters expressed concern that the DEA 
does not address impacts to private landowners (such as farmers and 
ranchers), and in particular, those impacts associated with property 
value or third party lawsuits resulting from critical habitat 
designation. One commenter expressed concern that no small landowners 
were contacted in accordance with the provisions of the Regulatory 
Flexibility Act (RFA; 5 U.S.C. 601 et seq.).
    Our Response: Incremental impacts of the designation are expected 
to be limited to additional administrative costs to the Service, 
Federal agencies, and third parties of considering critical habitat as 
part of future section 7 consultations (see our response to Comment 2). 
The FEA incorporates potential impacts to private landowners as third 
parties in forecasted consultations on water quality; timber, 
agriculture, and grazing; and development activities. In addition, 
Appendix A of the FEA includes an analysis of the distributional 
impacts of the proposed critical habitat designation on small entities. 
As described in Appendix A, the only costs expected to be borne by 
third parties as a result of the proposed designation are portions of 
the total cost of forecasted section 7 consultations. These costs are 
relatively minor, ranging from $260 to $2,080 per consultation.
    Section 2.3.2 of the FEA discusses how the designation of critical 
habitat may, under certain circumstances, result in indirect impacts 
such as time delays, regulatory uncertainty, and stigma effects (such 
as property value impacts). The Service does not expect indirect 
impacts to result from critical habitat designation for the two 
mussels. However, as a result of the concern expressed in these 
comments, we have added new language to the FEA concerning to the 
potential for indirect costs associated with third party lawsuits or 
property value impacts. Because the nature, timing, and likelihood of 
future litigation or property value impacts are highly uncertain, the 
FEA does not quantify these impacts but instead describes them 
qualitatively and notes that these are uncertainties in the analysis.
    (44) Comment: One commenter asserted that the DEA is flawed because 
it limits the physical scope of its enquiry to the riparian watersheds 
and census tracts included in those watersheds. The commenter argued 
that standard practice for an economic impact analysis has been to use 
county boundaries or a defined local market area as the basis for any 
comprehensive evaluation of costs and benefits. The use of such narrow 
boundaries is an attempt to limit the estimated effects by omitting 
consideration of the interconnectedness of modern economies.
    Our Response: The commenter is correct that the DEA defines its 
``study area'' as including the watersheds encompassing proposed 
critical habitat (either the fourth level (8-digit) or sixth level (12-
digit) Hydrologic Unit Code (HUC) watersheds defined by the U.S. 
Geological Survey (USGS)). The study area is used to identify projects 
(such as oil wells, roads, bridges, etc.) that could have a hydrologic 
connection to critical habitat. For example, these projects may be 
sufficiently close to a critical habitat river segment that runoff from 
the construction site would increase sediment loads to the river, 
potentially affecting the mussels. If such a hydrologic connection 
exists, these projects are more likely to require consultation. 
Defining the study area more broadly would result in the inclusion of 
projects with no hydrologic connection to critical habitat, and thus no 
reason for consultation.
    Importantly, while the identification of projects requiring 
consultation is limited to the study area, the consideration of 
economic impacts that might result if these projects are modified is 
not limited to this geographic area. However, in the case of Neosho 
mucket and rabbitsfoot, incremental project modifications are unlikely. 
Incremental costs are limited to administrative costs, which would be 
incurred by the agencies or private entities pursuing the projects, 
regardless of where those entities are headquartered.
    (45) Comment: One commenter provided an analysis of the economic 
impacts of the proposed critical habitat designation based on 
hypothetical project modifications using IMPLAN (an input-output 
modeling system) multipliers. Such an analysis measures the change in 
economic output resulting from a policy change. The authors argued that 
such multiplier analysis is the appropriate framework for answering 
impact analysis questions,

[[Page 24705]]

noting the DOT recommends this approach for construction planning.
    Our Response: The commenter is correct that economic impact 
analyses generally rely on input-output or multiplier analysis using 
tools such as IMPLAN. Examples of such analyses include estimates of 
the changes in economic output generated by the construction of a new 
stadium or the loss of a manufacturing facility.
    In contrast, the method of economic analysis of proposed Federal 
regulations is subject to the direction provided by Executive Order 
12866 and associated guidance provided by OMB in Circular A-4. As 
described in Circular A-4, ``opportunity cost'' is the appropriate 
concept for valuing benefits and costs of regulatory actions. Costs are 
incurred when resources are used for one purpose and hence cannot be 
used for another purpose. The opportunity cost is the value of the 
benefit that could have been provided by devoting the resources to 
their best alternative use. Estimates of the change in opportunity cost 
are sometimes referred to as economic efficiency effects or changes in 
social welfare.
    For example, assume section 7 consultations are required prior to 
drilling at oil and gas sites potentially affecting the mussels. If 
delays caused by section 7 consultation cause oil and gas operators to 
forego the activity without pursuing production at substitute sites, 
net change in oil and gas production at a national level would 
represent the opportunity cost of the regulation. If operators pursue 
production at substitute sites, resulting in no net change in 
production but redistributing activity away from sites near the 
mussels, then the marginal cost of reduced profitability associated 
with the next best alternative location represents the opportunity 
cost. In either case, the resources used to produce the oil and gas 
(for example, materials and labor necessary to drill for and transport 
the oil and gas) are not lost to society. Rather, these resources are 
still available for other productive uses. As a result, estimates of 
changes in efficiency effects, or social welfare, are fundamentally 
different than the estimate of the distributional effects using tools 
like IMPLAN, and the results are not directly comparable.
    Given that the designation of critical habitat for the mussels is 
unlikely to result in additional project modifications beyond those 
related to the listing of these species, the types of distributional 
effects measured using IMPLAN multipliers are likely to be minimal. The 
opportunity cost of the regulation is limited to the resources 
(primarily labor) needed to address the administrative requirements of 
the section 7 process. Thus, the DEA appropriately captured the 
incremental opportunity costs of the proposed regulation.
    (46) Comment: One commenter noted that the DEA predicts an increase 
in future section 7 consultations on Natural Resources Conservation 
Service (NRCS) Farm Bill activities in Arkansas. The commenter 
expressed concern because these consultations are new, and the Service 
has no way to predict the incremental costs to private landowners 
associated with new conditions (such as a 180-foot buffer along stream, 
discharge zones, and karst features and methods to prevent soil erosion 
and runoff) that will be recommended during section 7 consultation on 
Farm Bill-related activities.
    Our Response: Section 3.3.3 of the DEA includes the likely increase 
in section 7 consultations in Arkansas due to new NRCS Farm Bill 
program work under the Agricultural Act of 2014 (H.R. 2642, Pub. L. 
113-79, which is also known as the 2014 Farm Bill), an act that 
authorizes nutrition and agriculture programs in the United States for 
2014 through 2018, and this section of the DEA provides an estimate of 
the administrative costs associated with the forecasted consultations. 
Additionally, the discussion provides information on the likely 
incremental impacts of the proposed critical habitat designation on 
timber, agriculture, and grazing activities. As described in section 
2.3.2 of the DEA, the designation of critical habitat is not 
anticipated to generate additional conservation measures for the two 
mussels beyond those that would be generated by the listing.
    We note that the conditions identified by the commenter from the 
DEA as ``specific conservation recommendations identified by the 
Service'' (i.e., a minimum 180-foot buffer and methods to prevent soil 
erosion and runoff) are mischaracterized in the economic analysis as 
having been made by the Service, which is incorrect. We have included 
an Addendum to the FEA (IEc 2014b) to correct information regarding the 
programmatic consultation with NRCS. It is important to note, however, 
that although the information was not correctly presented in the 
economic analysis, it had no bearing on the results of the incremental 
effects analysis, as that information was incorporated in the baseline.
    (47) Comment: One commenter stated that the costs presented in the 
DEA are based on ``an unrealistic discount rate of seven percent'' and 
costs should be presented instead using a discount rate of 5 percent or 
less.
    Our Response: The DEA demonstrated the sensitivity of the results 
of the analysis to the choice of discount rate by presenting costs 
using discounts rates of both 7 and 3 percent. Specifically, results 
estimated using both rates are presented in the Executive Summary (see 
Exhibit ES-3). For presentation purposes, the remainder of the report 
presents detailed cost estimates using a 7 percent discount rate; 
however, Appendix B replicates all detailed tables using a 3 percent 
discount rate for comparison.
    The choice of discount rates is consistent with OMB's Circular A-4, 
which states: ``As a default position, OMB Circular A-4 states a real 
discount rate of seven percent should be used as a base-case for 
regulatory analysis. The seven percent rate is an estimate of the 
average before-tax rate of return to private capital in the U.S. 
economy. The effects of regulation do not always fall exclusively or 
primarily on the allocation of capital. When regulation primarily and 
directly affects private consumption (for example, through higher 
consumer prices for goods and services), a lower discount rate is 
appropriate. For regulatory analysis, you should provide estimates of 
net benefits using both three percent and seven percent.'' The rate of 
5 percent recommended by the commenter is captured in this range.
    (48) Comment: One commenter asserted the RFA analysis does not 
consider whether or not the proposed critical habitat designation would 
have a substantial impact on local government jurisdictions because, as 
stated in the DEA, ``potential financial impacts to local government 
agencies and private landowners are not estimated as a proportion of 
annual revenues due to lack of data.''
    Our Response: The purpose of the Small Business Regulatory 
Enforcement Fairness Act (5 U.S.C. 801 et seq.) analysis, provided in 
Appendix A of the DEA, is to assess whether or not the proposed 
critical habitat designation will have a significant economic impact on 
a substantial number of small entities. As described in section A.1, 
the analysis provides information regarding the potential number of 
third parties participating in consultations on an annual basis in 
order to ensure a robust examination of the effects of the proposed 
rule. In addition, the analysis provides information to assist the 
Service in determining whether these entities are likely to be 
``small'' and whether the number of potentially affected small entities 
is ``substantial.''

[[Page 24706]]

Importantly, the impacts of the rule must be both significant and 
substantial to prevent certification of the rule under the RFA and to 
require the preparation of an initial regulatory flexibility analysis.
    As shown in Exhibit A-2 of the DEA, the proportion of small 
entities in the study area that may be affected in one year by the 
proposed designation ranges from 0.1 percent to 3.1 percent, which is 
not considered to be a substantial number. Despite this conclusion, the 
analysis also provides information on whether the economic impact on 
these entities is likely to be significant. Specifically, the analysis 
estimates the likely annualized impact per entity as a proportion of 
estimated annual revenue. Due to lack of data on the annual revenues of 
each entity that may be involved in section 7 consultations across the 
designation, we perform a ``threshold analysis''; that is, we determine 
that for impacts to exceed one percent of an entity's annual revenues, 
those annual revenues would have to be less than $47,000. We assume 
this is very unlikely to be the case for local government agencies in 
the study area. For example, one of the least populous counties in the 
study area in Arkansas is Calhoun County, whose total revenues for 2011 
were reported at $8,863,000 (Center for Governmental Research Inc., 
2013: http://www.govistics.com/AR/CALHOUN).
    (49) Comment: One commenter stated that for private timber, 
agricultural, and grazing entities, the RFA analysis relies on the 
flawed assumptions in chapter 3 of the DEA. The Service concludes there 
will be no significant impact to small entities when the DEA clearly 
states the Service has no data with which to predict future incremental 
costs to such private landowners because there is no history of 
consultation between the Service and NRCS.
    Our Response: In Appendix A of the DEA, we note that we are unable 
to estimate potential financial impacts to local government agencies 
and private landowners as a proportion of annual revenues due to a lack 
of data. However, for any entity with greater than $47,000 in annual 
revenue, the financial burden of undertaking a project requiring 
consultation on the mussels would constitute less than one percent of 
annual revenue because the designation of critical habitat is not 
anticipated to generate additional conservation measures for the two 
mussels beyond those that would be generated by the species being 
listed. Less than one percent of annual revenue would not be considered 
a significant impact. Therefore, we have determined there would not be 
a significant impact to a substantial number of small entities.
    (50) Comment: One commenter provided information about NPDES 
permits for direct and indirect discharges into rivers containing 
proposed critical habitat. The commenter asserted that ``serious 
economic and fiscal impacts will accompany any water-system adjustments 
that would have to be instituted to divert or avoid discharges into the 
host rivers.'' In addition, the commenter stated that the NPDES permits 
will ``be subjected to an increased level of regulation, including 
potential need for formal and/or informal consultation with [the 
Service].''
    Our Response: The commenter does not provide any information 
regarding the likelihood or nature of ``water-system adjustments'' 
resulting from critical habitat designation that would aid in providing 
greater clarification to address the concern. As outlined in our 
response to Comment 2 and elsewhere in this document, the designation 
of critical habitat is not anticipated to generate additional 
conservation measures for the two mussels beyond those that would be 
generated by the species being listed. In addition, section 3.3.2 of 
the DEA provided an estimated number of future water quality-related 
section 7 consultations, including those on NPDES permit programs. The 
DEA forecast costs related to water quality activities for all units in 
which future section 7 consultations concerning water quality 
management activities are expected to occur.
    (51) Comment: One commenter stated that although the DEA does 
address benefits of designating critical habitat, the analysis should 
account for benefits to other species from the designation of critical 
habitat for the mussels. Studies have shown these protections promote 
stream health by preventing erosion, filtering runoff, and providing 
shade and microhabitats. Other benefits include areas for scientific 
study and aesthetic value to residents.
    Our Response: The primary goal of critical habitat designation for 
the mussels is to support their long-term conservation. Theoretically, 
conservation and recovery of the species may result in benefits, 
including use benefits (wildlife-viewing), non-use benefits (existence 
values), and ancillary ecosystem service benefits (such as public 
safety benefits of reduced wildfire risks). Section 5.3 of the DEA 
contained a discussion of potential ancillary benefits of mussel 
conservation, including improved water quality and aesthetic benefits.
    (52) Comment: One commenter asked why the critical habitat 
designation is necessary when no additional conservation measures are 
required beyond those associated with the listing.
    Our Response: The Act requires that critical habitat be designated 
to the maximum extent prudent and determinable for any species that is 
determined to be an endangered or threatened species under the Act. In 
the October 16, 2012, proposed rule to list these species and designate 
critical habitat (77 FR 63440), we identified ``the potential 
benefits'' of designating critical habitat to ``include: (1) Triggering 
consultation under section 7 of the Act in new areas for actions in 
which there may be a Federal nexus where it would not otherwise occur 
because, for example, it is or has become unoccupied or the occupancy 
is in question; (2) focusing conservation activities on the most 
essential features and areas; (3) providing educational benefits to 
State or county governments or private entities; and (4) preventing 
people from causing inadvertent harm to the species'' (see Prudency 
Determination, 77 FR 63472).
    (53) Comment: Several commenters contended that the designation of 
critical habitat in Arkansas is an attempt by the Service or Federal 
government to ``take'' privately owned property.
    Our Response: The designation of critical habitat does not 
authorize the Service or Federal government to purchase, condemn, take 
through eminent domain, or otherwise confiscate private property 
through the use of legislation, regulation, or other legal means. In 
accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for Neosho mucket and rabbitsfoot in a 
takings implications assessment. As discussed above, the designation of 
critical habitat affects only Federal actions. Although private parties 
that receive Federal funding, assistance, or 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 on the Federal agency.
    (54) Comment: Multiple commenters requested that the Service 
conduct a ``complete impact study'' to include all property owners and 
businesses.
    Our Response: Based on a review and evaluation of the information 
contained in the environmental assessment, we

[[Page 24707]]

determined the designation of critical habitat for the Neosho mucket 
and rabbitsfoot does not constitute a major Federal action 
significantly affecting the quality of the human environment under the 
meaning of section 102(2)(c) of NEPA. Accordingly, an environmental 
impact statement is not required. See our responses to Comments 41 and 
42 regarding economic impacts to private landowners and businesses.
    (55) Comment: One commenter stated that the designation of critical 
habitat in Arkansas will close rivers to fishing.
    Our Response: As discussed above, designating critical habitat has 
no impact on landowner or citizen activities that do not require 
Federal funding or permits.
    (56) Comment: One commenter expressed concern that oral comments 
were not recorded during public meetings held in Arkansas. Furthermore, 
the commenter requested policy changes to require public meetings be 
recorded and entered into the public record.
    Our Response: The commenter appears to be confusing the 
requirements for a ``public hearing'' with those for the ``public 
information meeting'' that was actually held. A public hearing, which 
may be requested on any proposed rule within 45 days after the opening 
of the comment period, includes oral testimony from participants which 
is recorded by a court reporter and entered into the public record. 
With regard to the proposed critical habitat designation for the two 
mussels, no public hearings were requested during any of the four open 
comment periods. Instead, the Service was asked to reopen the comment 
periods to allow additional time for interested parties to review the 
proposed rule, DEA, and draft environmental assessment. The Service 
agreed to hold public information meetings during the open comment 
periods to facilitate a better understanding of the proposed action. In 
a public information meeting, which is a less formal process than a 
public hearing, there is no requirement for recording oral testimony. 
However, the Service voluntarily provided comment cards that 
participants could fill out during the meetings and submit as formal 
comments to be entered into the record. These comments have been 
uploaded onto http://www.regulations.gov along with all other comments 
we received during the comment periods.
    (57) Comment: One commenter stated predation by raccoon, otter, 
beaver, and other predators is a greater threat to Neosho mucket and 
rabbitsfoot than habitat loss or degradation.
    Our Response: The Service determined predation was not a 
significant threat to the overall status of Neosho mucket and 
rabbitsfoot. A more detailed discussion of this threat is presented in 
the final listing rule under Summary of Factors Affecting the Species 
(78 FR 57076, September 17, 2013).
    (58) Comment: One commenter expressed concern about additional 
restrictions on the aquaculture industry in Arkansas, specifically on 
water withdraw or diversion, pond cleanout, pond effluent discharge, 
and inspection requirements, due to the designation of critical 
habitat.
    Our Response: As discussed above, designating critical habitat has 
no impact on landowner activities that do not require Federal funding 
and permits. For aquaculture activities that require a Federal permit 
or assistance, the Service may recommend conservation actions in a 
section 7 consultation for the affected species that protect not only 
the species, but also its habitats, regardless of whether or not there 
is designated critical habitat. Currently, such conservation measures 
to protect the species and their habitats are in place for other listed 
mussel species that occur within the Arkansas critical habitat units 
such that no additional conservation measures or regulatory 
restrictions are expected to result from this critical habitat 
designation.
    (59) Comment: One commenter stated that the Service should release 
data used to determine critical habitat for Neosho mucket and 
rabbitsfoot.
    Our Response: All of the comments, materials, and documentation we 
considered in this rulemaking are available at the Arkansas Ecological 
Services Field Office (see ADDRESSES, above). Comments and materials 
received, as well as some supporting documentation we used in preparing 
this rule, are also available for public inspection at http://www.regulations.gov.
    (60) Comment: Several commenters expressed concern about fluoride 
as a chemical contaminant affecting Neosho mucket and rabbitsfoot.
    Our Response: While all the water quality needs for these two 
mussels may not be completely understood, we estimate some numeric 
standards have been adopted under the CWA that represent levels 
essential to conservation of these mussels (such as dissolved oxygen, 
ammonia, pH, metals) (see Physical or Biological Features). In a North 
Carolina study, effective concentrations for growth effects were found 
to be 17 and 8 times as high as the State's and EPA's water quality 
criteria for fluoride, respectively (Keller and Augspurger 2005 in 
Farris and Van Hassel 2007, p. 162). Fluoride, at concentrations 
typical of most streams meeting state and EPA water quality criteria, 
is not toxic to glochidia (freshwater mussel larvae) and juveniles of 
Unionidae mussels such as the Neosho mucket and rabbitsfoot. In this 
final designation, and in accordance with 50 CFR 424.12(b), we have 
identified nine categories of primary threats affecting Neosho mucket 
and rabbitsfoot habitat that may necessitate special management or 
protection (see Special Management Considerations or Protection--
Chemical Contaminants).
    (61) Comment: Multiple commenters expressed concern regarding ``sue 
and settle'' agreements between Federal agencies and nongovernmental 
organizations. They contend this process is a binding out-of-court 
settlement that prohibits farmers, small businesses, and private 
property owners from participating in discussions and providing 
meaningful input prior to the publication of a proposed rule.
    Our Response: The multiyear listing workplan under which this 
critical habitat rule was proposed was developed through settlement 
agreements with Wild Earth Guardians and the Center for Biological 
Diversity to resolve multidistrict litigation. It established deadlines 
for completing listing determinations for each candidate species, 
including the Neosho mucket (first included in the 2001 CNOR; 66 FR 
54808, October 30, 2001) and rabbitsfoot (first included in the 2009 
CNOR; 74 FR 57804, November 9, 2009). The Service published a final 
listing rule for these mussels on September 17, 2013 (78 FR 57076), in 
accordance with these deadlines. Section 4(a)(3)(A) of the Act requires 
that we designate critical habitat, when prudent and determinable, 
concurrently with making a determination to list a species as 
endangered or threatened. Therefore, in making this final designation 
at this time, the Service is adhering to the requirements of the 
listing workplan and settlement agreement and the Act.
    (62) Comment: One commenter contended that the greatest threat to 
the Neosho mucket and rabbitsfoot is White River (Arkansas) minimum 
flows regulated by the ACOE.
    Our Response: Neosho mucket does not occur in the White River. The 
construction of a series of six flood control reservoirs on the upper 
White River in the 1940s and 1950s, including

[[Page 24708]]

Bull Shoals and Norfork Lakes, led to the extirpation of rabbitsfoot 
from a large section of the White River upstream of Batesville, 
Arkansas. White River minimum flows provide adequate low flow releases 
from Bull Shoals and Norfork Lakes dams to enhance trout habitat and 
survival in cold tailwater reaches of the White River located upstream 
of Unit RF8a. There is no evidence to support minimum flows 
contributing to declines in rabbitsfoot. Minimum flows may be 
beneficial to the species by providing higher and more consistent flow 
during low flow periods when mussels may become stranded and be 
subjected to desiccation (drying).

Summary of Changes From Proposed Rule

    The information below is provided as a result of the peer and 
public review process. In this final designation, we have made changes 
to maps, units, and the rule itself. A change in mapping methodology 
resulted in a revision to the total number of river kilometers (river 
miles) for the designation of rabbitsfoot critical habitat. The 
beginning and ending points of the proposed critical habitat 
designation, as well as the unit descriptions (as described in the 
proposed critical habitat rule) will remain the same except where 
modified for other reasons.
    (1) We have made changes to Unit RF7 to correct an oversight in 
mapping methodology, specifically in methods used for estimating the 
unit length. The new method uses a better technique for following the 
curve and meander of the river channel, which results in an additional 
1.5 rkm (0.9 rmi) designated as critical habitat for the rabbitsfoot. 
In addition, this correction resulted in a corresponding increase to 
the private ownership lands (expressed as river km/mi) adjacent to Unit 
RF7.
    (2) We are not designating critical habitat for Neosho mucket in 
the Cottonwood River (Unit NM8), Chase County, Kansas, as originally 
proposed. Recent KDWPT data from 2013 (Tabor 2013, pers. comm.) do not 
indicate that released individual mussels into the Cottonwood River 
were able to survive and become established, and the future success of 
the reintroduction efforts are unknown at this time. We have clarified 
our definition of extant Neosho mucket populations in this final 
designation to address reintroduced populations and selection criteria 
for critical habitat for this mussel (see the Criteria Used to Identify 
Critical Habitat).
    (3) We are not designating critical habitat for rabbitsfoot in the 
Ouachita River (Unit RF4a), Montgomery County, Arkansas, as originally 
proposed. Rabbitsfoot was collected live at two sites in 1988 (AGFC 
Mussel Database 2014). However, an AGFC and Service comprehensive 
survey in 2007 failed to find any live rabbitsfoot in this reach. In 
2013, AGFC resurveyed the two 1988 sites and failed to locate any live 
or fresh dead (shells still have flesh attached to the valves, retain a 
luster to their nacre (pearly, innermost layer of the shell), and their 
periostracum (outermost layer of the shell) is not peeling, indicating 
relatively recent death (within months)) rabbitsfoot (Harris 2013, 
pers. comm.). Based on recent survey efforts, the rabbitsfoot 
population in the Ouachita River upstream of Lake Ouachita should be 
classified as marginal based on Butler's (2005) classification.
    (4) We are not designating critical habitat for rabbitsfoot in the 
South Fork Spring River (Unit RF11), Fulton County, Arkansas, as 
originally proposed. Butler (2005, pp. 75-76) categorized the South 
Fork Spring River as a small population based on a 2002 collection of 
seven fresh dead specimens upstream of Arkansas Highway 289. Harris et 
al. (2007, p. 22) collected the only live rabbitsfoot from this same 
reach in 2006. The best available scientific information supports 
categorizing the South Fork Spring River rabbitsfoot population as 
marginal based on Butler's (2005) classification.
    (5) We have modified or revised six critical habitat units for 
rabbitsfoot (originally proposed Units RF2, RF4b, RF5, RF9, RF10, and 
RF32) due to new biological information.
    <bullet> Verdigris River (Unit RF2): We have revised the downstream 
extent of Unit RF2. A portion of the Verdigris River from near the Bird 
Creek confluence downstream to Interstate 44 has been altered by the 
upper extent of the McClellan-Kerr Arkansas River Navigation System and 
continues to be dredged. There are no rabbitsfoot records from this 
reach. Therefore, the Service has modified Unit RF2 in this final 
designation so that the downstream boundary is at Oklahoma Highway 266 
northwest of Catoosa, Oklahoma. This change represents a net reduction 
of 7.6 rkm (4.7 rmi) from the originally proposed Unit RF2.
    <bullet> Ouachita River (Unit RF4b): We have divided Unit RF4b into 
two units (Units RF4a and RF4b in this rule). Harris (1999, pp. 3-8 and 
3-9) collected live rabbitsfoot at three sites located from near the 
confluence of Tenmile Creek downstream to the Caddo River confluence. 
However, the Ouachita River from Caddo River confluence downstream to 
the Little Missouri River confluence has not been comprehensively 
surveyed for mussels. While the absence of rabbitsfoot from this reach 
is likely a result of no survey data and not actual absence, the best 
available scientific information supports designating critical habitat 
in two Ouachita River subunits due to the distance between the reaches 
known to be occupied. Therefore, the Service has created Unit RF4a to 
be from the Tenmile Creek confluence downstream to the Caddo River 
confluence (22.7 rkm (14.1 rmi)), and Unit RF4b to be from the Little 
Missouri River confluence downstream to U.S. Highway 79 near Camden, 
Arkansas (revised Unit RF4b; 43 rkm (26.7 rmi)). Together, the new 
Units RF4a and RF4b represent a net reduction of 92.2 rkm (57.3 rmi) 
from the originally proposed Unit RF4b.
    <bullet> Saline River (Unit RF5): We have revised the upstream and 
downstream extent of Unit RF5. Collections by several surveyors since 
2002 support the presence of a small population of rabbitsfoot in the 
Saline River from the Frazier Creek confluence near Mount Elba, 
Arkansas, to the Mill Creek confluence near Stillions, Arkansas 
(Service, unpublished data, 2013). One live specimen was collected in 
Grant County in 1993 (Illinois Natural History Survey Mollusk 
Collection 14549). One live specimen also was collected at U.S. Highway 
167 in 2006 (AGFC Mussel Database 2014), but this record and the 1993 
Grant County record are disjunct (approximately 48.3 rkm (30 rmi)) from 
the aforementioned reach downstream of Mount Elba. Historically, 
rabbitsfoot was reported from sites at Benton, Arkansas, and Jenkins 
Ferry State Park (University of Michigan Museum of Zoology 67254, 
75750). Based on the best available scientific information, the Service 
has revised the upstream and downstream extent of Unit RF5 in this 
final designation due to the lack of live records downstream of the 
Mill Creek confluence near Stillions, Arkansas, and sporadic disjunct 
records upstream of the core population. This change represents a net 
reduction of 168.9 rkm (105.0 rmi) from the originally proposed Unit 
RF5.
    <bullet> Black River (Unit RF9): We have revised the downstream 
boundary of Unit RF9. Rust (1993 in AGFC Mussel Database 2014) 
collected one live rabbitsfoot approximately 0.78 rkm (1.25 rmi) 
downstream of Powhatan, Arkansas. One live rabbitsfoot was collected 
near Powhatan in 1984 (AGFC Mussel Database 2014). There are no records 
from the Flat Creek confluence with the Black River downstream to the 
Strawberry River confluence with the Black River. Therefore, the 
Service has

[[Page 24709]]

modified Unit RF9 in this final designation so that the downstream 
boundary is at the Flat Creek confluence with the Black River 
downstream of Powhatan, Arkansas. This change represents a net 
reduction of 41.0 rkm (25.5 rmi) from the originally proposed Unit RF9.
    <bullet> Spring River (Unit RF10): We have changed the upstream 
boundary of the originally proposed Unit RF10. Harris et al. (2007, pp. 
14-16) collected three live rabbitsfoot in 2005 from a site 
approximately 1.55 rkm (2.5 rmi) upstream of Williford, Arkansas (or 
Arkansas Highway 58). They also reported numerous rabbitsfoot from 
muskrat middens in the reach from Williford to Ravenden Springs, 
Arkansas. One live specimen was collected in 1983, near the confluence 
of Ott Creek (AGFC Mussel Database 2014). The AGFC Mussel Database 
(2014) also contains a 1983 record from near the Pierce Creek 
confluence located upstream of Ott Creek near Hardy, Arkansas. The 
Spring River downstream of Hardy, Arkansas, supports a diverse and 
abundant mussel community as evidenced in our records. Thus, the best 
available scientific information supports the designation with a slight 
adjustment (net reduction) to the upstream extent of Unit RF10 
downstream by approximately 11.3 rkm (7.0 rmi) to the Ott Creek 
confluence. Therefore, the Service has revised the upstream boundary of 
the originally proposed Unit RF10 in this final designation.
    <bullet> Shenango River (Unit RF32): We have changed the upstream 
boundary of the originally proposed Unit RF32. Considering new 
information in Bursey (1987), the best available scientific information 
supports extending the extent of the originally proposed Unit RF32 (now 
Unit RF31 in this final designation) upstream 8.6 rkm (5.3 rmi).
    The new unit descriptions are provided below in Final Critical 
Habitat Designation. Because of the removal of the originally proposed 
Unit RF11, originally numbered Units RF12 to RF32 have been renumbered 
Units RF11 to RF31. In addition, these revisions resulted in a net 
decrease of designated critical habitat for the Neosho mucket of 
approximately 3 rkm (2 rmi) and a net decrease of critical habitat for 
the rabbitsfoot of 349 rkm (217 rmi). The majority of the changes from 
the proposed rule are to units occurring in Arkansas, with a net 
reduction of approximately 350 rkm (218 rmi; a 27 percent decrease). 
There was only one increase in critical habitat length (originally 
proposed Unit RF32, now Unit RF31, in this final designation).
    (6) The critical habitat in the originally proposed Unit RF19 (now 
Unit RF18 in this final designation) for rabbitsfoot in the Duck River 
overlaps with the oyster mussel (Epioblasma capsaeformis) critical 
habitat. In the Duck River, the oyster mussel has been renamed the Duck 
River dartersnapper (Epioblasma ahlstedti) and is separate and distinct 
from the oyster mussel. We agree that the oyster mussel and Duck River 
dartersnapper are distinct and separate species. However, the Service 
has not yet made a listing and critical habitat determination for the 
new entity, the Duck River dartersnapper. We incorporated language in 
this final rule to clarify the species distinction and name change, but 
at this time, the Duck River dartersnapper and oyster mussel are 
considered synonymous according to our regulations.
    (7) In the proposed rule, we inadvertently left out the description 
of a physical or biological feature for both species that addresses 
habitats protected from disturbance or representative of the 
historical, geographic, and ecological distributions of the species. We 
have added the description into this final rule (see Physical or 
Biological Features, below).
    (8) In the proposed rule, Primary Constituent Element 4 for both 
species stated that fish hosts for each mussel were ``currently 
unknown'' and provided a statement regarding natural fish assemblages 
``until appropriate host fish can be identified.'' While we do not 
currently know all fish species that may act as hosts for one or both 
of the glochidia of these mussels, this final rule identifies those 
fish species we believe are or may be host species (see Primary 
Constituent Elements for Neosho Mucket and Rabbitsfoot in this rule and 
General Biology in the proposed rule (77 FR 63442)).
    (9) In the proposed rule, we incorrectly labeled the Pond Creek 
National Wildlife Refuge (NWR) as Cossatot NWR. This has been corrected 
in this final rule.
    (10) Several Counties were inadvertently left out of the Executive 
Summary of the proposed rule; we added them in this final designation.
    (11) In the proposed rule, we incorrectly named Mammoth Cave 
National Park North Entrance Road as Maple Springs Ranger Station Road 
in the unit description for Unit RF21. The correct road name is used in 
this final rule.

Summary of the Species' Status

    Please refer to the proposed listing and critical habitat rule (77 
FR 63440; October 16, 2012) and final listing rule (78 FR 57076, 
September 17, 2013) for the Neosho mucket and rabbitsfoot for a summary 
of species information. Additional information on the associated draft 
economic analysis and draft environmental assessment for the proposed 
rule was published in the Federal Register on May 9, 2013 (78 FR 
27171).
    For more information on relative abundance and trends of extant 
populations of Neosho mucket and rabbitsfoot by river basin please 
refer to the Taxonomy, Life History, and Distribution section of the 
proposed rule published in the Federal Register on October 16, 2012 (77 
FR 63440).

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.
    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 Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge,

[[Page 24710]]

wilderness, reserve, preserve, or other conservation area. Such 
designation 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. Where a 
landowner requests Federal agency funding or authorization for an 
action that may affect a listed species or critical habitat, the 
consultation requirements of section 7(a)(2) of the Act would apply, 
but even in the event of a destruction or adverse modification finding, 
the obligation of the Federal action agency and the landowner is not to 
restore or recover the species, but to implement reasonable and prudent 
alternatives to avoid destruction or adverse modification of critical 
habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical or biological features within an area, we focus on the 
principal biological or physical constituent elements (primary 
constituent elements such as roost sites, nesting grounds, seasonal 
wetlands, water quality, tide, soil type) that are essential to the 
conservation of the species. Primary constituent elements are those 
specific elements of the physical or biological features that provide 
for a species' life-history processes and are essential to the 
conservation of the species.
    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. For example, an area currently occupied by the species but 
that was not occupied at the time of listing may be essential for the 
conservation of the species and may be included in the critical habitat 
designation. We designate critical habitat in areas outside the 
geographical area occupied by a species only when a designation limited 
to its range would be inadequate to ensure the conservation of the 
species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial 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 developed during the listing process for the species. 
Additional information sources may include the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, other unpublished materials, or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act, (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to insure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species, and (3) section 9 of the Act's prohibitions on taking any 
individual of the species, including taking caused by actions that 
affect habitat. 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 this 
species. Similarly, critical habitat designations made on the basis of 
the best available information at the time of designation will not 
control the direction and substance of future recovery plans, habitat 
conservation plans (HCPs), or other species conservation planning 
efforts if new information available at the time of these planning 
efforts calls for a different outcome.

Physical or Biological Features

    In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied by the species at the time of listing to 
designate as critical habitat, we consider the physical or biological 
features essential to the conservation of the species and which may 
require special management considerations or protection. These include, 
but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of a species.
    We derive the specific physical or biological features essential to 
Neosho mucket and rabbitsfoot from studies of these species' habitat, 
ecology, and life history as described in the Critical Habitat section 
of the proposed rule to designate critical habitat published in the 
Federal Register on October 16, 2012 (77 FR 63440), and in the 
information presented below. Additional information can be found in the 
final listing rule published in the Federal Register on September 17, 
2013 (78 FR 57076). We have determined that Neosho mucket and 
rabbitsfoot require the following physical or biological features:
Space for Individual and Population Growth and for Normal Behavior
    The Neosho mucket is historically associated with the Illinois, 
Neosho, and Verdigris Rivers and their larger tributaries (Arkansas 
River basin). Generally, the Neosho mucket is found embedded in stable 
substrates associated with shallow riffles (areas

[[Page 24711]]

where shallow, generally less than 1 m (3.3 ft) in depth, turbulent 
water passes through and over stones or gravel of somewhat similar 
size) and runs (intermediate areas between pools and riffles with 
moderate current) with gravel and sand substrate and moderate to swift 
currents (Oesch 1984, p. 221; Harris 1998, p. 5; Obermeyer 2000, pp. 
15-16). However, in Shoal Creek and the Illinois River, the Neosho 
mucket prefers near-shore areas or areas out of the main current 
(Harris 1998, p. 5). These habitats are formed and maintained by water 
quantity, channel slope, and normal sediment input to the system.
    The rabbitsfoot is historically associated with small- to medium-
sized streams and some larger rivers in the Lower Great Lakes and Lower 
Mississippi River sub-basins and Ohio, Cumberland, Tennessee, White, 
Arkansas, and Red River basins. The rabbitsfoot usually occurs in 
shallow areas along the bank and adjacent runs and riffles with gravel 
and sand substrates where the water velocity is reduced, but it also 
may occur in deep runs (Parmalee and Bogan 1998, pp. 211-212). Unlike 
the Neosho mucket (Barnhart 2003, p. 17), the rabbitsfoot seldom 
burrows in the substrate, but lies on its side (Watters 1988, p. 13; 
Fobian 2007, p. 24).
    Neosho mucket and rabbitsfoot, similar to other mussels, are 
dependent on areas with flow refuges where shear stress (the stream's 
ability to entrain and transport bed material created by the flow 
acting on the bed material) is low and sediments remain stable during 
flood events (Layzer and Madison 1995, p. 341; Strayer 1999, pp. 468 
and 472; Hastie et al. 2001, pp. 111-114). Flow refuges conceivably 
allow relatively immobile mussels such as the Neosho mucket and 
rabbitsfoot to remain in the same general location throughout their 
entire lives. These patches of stable habitat may be highly important 
for the rabbitsfoot since it typically does not burrow, making it more 
susceptible to displacement into unsuitable habitat. However, flow 
refuges are not created equally and there are likely other habitat 
variables that are important, but poorly understood (Roberts 2008, 
pers. comm.).
    Natural river and creek channel stability are achieved by allowing 
the river or creek to develop a stable dimension, pattern, and profile, 
such that, over time, channel features are maintained and the river or 
creek system neither aggrades nor degrades. Channel instability occurs 
when the scouring (flushing) process leads to degradation or excessive 
sediment deposition results in aggradation. Stable rivers and creeks 
consistently transport their sediment load, both in size and type, 
associated with local deposition and scour (Rosgen 1996, pp. 1-3).
    Habitat conditions described above provide space, cover, shelter, 
and sites for breeding, reproduction, and growth of offspring for the 
Neosho mucket and rabbitsfoot. These habitats are formed and maintained 
by water quantity, channel features (dimension, pattern, and profile), 
and sediment input to the system through periodic flooding, which 
maintains connectivity and interaction with the flood plain, and are 
dynamic. Changes in one or more of these parameters can result in 
channel degradation or aggradation, with serious effects to mussels. 
Therefore, we identify adequate water quantity, stream channel 
stability, and floodplain connectivity to be physical or biological 
features for Neosho mucket and rabbitsfoot that are essential in 
accommodating feeding, breeding, growth, and other normal behaviors of 
these species and in promoting gene flow within each species' 
populations and movement of their fish hosts.
Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements
    The Neosho mucket and rabbitsfoot are riverine-adapted species that 
depend upon adequate water flow and are not found in ponds or lakes. 
Continuously flowing water is a habitat feature associated with all 
surviving populations of these species. Flowing water maintains the 
river and creek bottoms and flow refuge habitats in riffles and runs 
where these species are found, transports food items to the sedentary 
juvenile and adult life stages, removes wastes, and provides oxygen for 
respiration of the Neosho mucket and rabbitsfoot. A natural flow regime 
that includes periodic flooding and maintains connectivity and 
interaction with the floodplain is critical for the exchange of 
nutrients, movement of and spawning activities for potential fish 
hosts, and maintenance of flow refuges in riffle and run habitats.
    Mussels, such as the Neosho mucket and rabbitsfoot, filter algae, 
detritus, microscopic animals, and bacteria from the water column 
(Fuller 1974, p. 221; Silverman et al. 1997, pp. 1862-1865; Nichols and 
Garling 2000, pp. 874-876; Strayer et al. 2004 pp. 430-431). Encysted 
(attached) glochidia are nourished by their fish hosts and feed for a 
period of one week to several months. Nutrient uptake by glochidia is 
not well understood, but probably occurs through the microvillae 
(fingerlike outward projections of a cell's surface) of the mantle (the 
part of the outer layer of skin (epidermis) of a mollusk that secretes 
the shell) (Watters 2007, p. 55). For the first several months, 
juvenile mussels partially employ pedal (foot) feeding, extracting 
bacteria, algae, and detritus from the sediment, although they also may 
filter interstitial (pore) water (Yeager et al. 1994, pp. 217-221). 
However, their gills are rudimentary and generally incapable of 
filtering particles (Watters 2007, p. 56). Adult mussels also can 
obtain their food by deposit feeding, siphoning in food from the 
sediment and its interstitial (pore) water and pedal feeding directly 
from the sediment (Yeager et al. 1994, pp. 217-221; Vaughn and 
Hakenkamp 2001, pp. 1432-1438). Food availability and quality for the 
Neosho mucket and rabbitsfoot in their habitats are affected by habitat 
stability, floodplain connectivity, flow, and water and sediment 
quality.
    The ranges of many water quality parameters that define suitable 
habitat conditions for the Neosho mucket and rabbitsfoot have not been 
investigated or are poorly understood. The pathways of exposure to a 
variety of environmental pollutants for all four mussel life stages 
(free and encysted glochidia, juveniles, and adults) and differences in 
exposure and sensitivity were previously discussed in the proposed rule 
(77 FR 63440, see Factor A). Environmental contamination is a causal 
(contributing) factor in the decline of mussel populations. We estimate 
most numeric standards for pollutants and water quality parameters (for 
example, dissolved oxygen, pH, heavy metals) adopted by States under 
the CWA represent levels essential to the conservation of these 
mussels. However, some regulatory mechanisms may not adequately protect 
mollusks in some reaches (77 FR 63440, see Factor D). Other factors 
that can potentially alter water quality are droughts and periods of 
low flow, nonpoint-source runoff from adjacent land surfaces (excessive 
amounts of sediments, nutrients, and pesticides), point-source 
discharges from municipal and industrial wastewater treatment 
facilities (excessive amounts of ammonia, chlorine, and metals), and 
random spills or unregulated discharge events. This could be 
particularly harmful during drought conditions when flows are depressed 
and pollutants are more concentrated.
    As relatively sedentary animals, mussels must tolerate the full 
range of environmental stressors that occur within the streams where 
they persist. Both the amount (flow) and the physical

[[Page 24712]]

and chemical conditions (sediment and water quality) where these 
species currently exist vary widely according to season, precipitation 
events, and seasonal human activities within the various watersheds. 
Conditions across their historical ranges vary even more due to 
geology, geography, and differences in human population densities and 
land uses. In general, these species survive in areas where the 
severity, frequency, duration, and seasonality of water flow is 
adequate to maintain stable flow refuges in riffle and run habitats 
(sufficient flow to remove fine particles and sediments without causing 
degradation), and where sediment and water quality is adequate for 
year-round survival (moderate to high levels of dissolved oxygen; low 
to moderate exposure to environmental pollutants such as nutrients, 
dissolved metals, and pharmaceuticals; and relatively unpolluted water 
and sediments). Adequate water flow, water quality, and sediment 
quality (as defined above) is essential for normal behavior, growth, 
and viability during all life stages of the Neosho mucket and 
rabbitsfoot and their potential larva fish hosts. Therefore, based on 
the information above, we identify water flow, water quality, and 
sediment quality to be physical or biological features for both these 
species.
Sites for Breeding, Reproduction, or Rearing
    Mussels require a fish host for transformation of larval mussels 
(glochidia) to juvenile mussels (Williams et al. 2008, p. 68); 
therefore, presence of the appropriate fish host(s) is essential to the 
conservation of the Neosho mucket and rabbitsfoot (77 FR 63440, see 
Taxonomy, Life History, and Distribution). Neosho mucket and 
rabbitsfoot juveniles require stable habitats with adequate water 
quantity and quality as previously described for growth and survival. 
Excessive sediments or dense growth of filamentous algae can expose 
juvenile mussels to entrainment or predation and be detrimental to the 
survival of juvenile mussels (Hartfield and Hartfield 1996, pp. 372-
374). Geomorphic instability can result in the loss of interstitial 
habitats and juvenile mussels due to scouring or deposition (Hartfield 
1993, pp. 372-373). Water quality, sediment quality, stable habitat, 
health of fish hosts, and diet (of all life stages) all influence 
survival of each life stage and subsequent reproduction and recruitment 
(Cope et al. 2008, p. 452).
    Connections between the rivers and adjacent flood plains occur 
periodically during wet years and provide habitat for spawning and 
foraging fish hosts that require flood plain habitats for successful 
reproduction and recruitment to adulthood. Barko et al. (2006, pp. 252-
256) found that several fish host or potential host species benefited 
from exploiting the resources of flood plain habitats that were not 
typically available for use during normal hydrology years. Furthermore, 
Kwak (1988, pp. 243-247) and Slipke et al. (2005, p. 289) indicated 
that periodic inundation of floodplain habitats increased successful 
fish reproduction, which leads to increased availability of native host 
fishes for mussel reproduction. However, Rypel et al. (2009, p. 502) 
indicated that mussels tended to exhibit minimal growth during high 
flow years. Therefore, optimal flooding of these habitats would not be 
too frequent and should occur at similar frequencies to that of the 
natural hydrologic regime of the rivers and creeks inhabited by the 
Neosho mucket and rabbitsfoot. Based on the information above, we 
identify water quality, sediment quality, stable habitat, health of 
fish hosts, diet (of all life stages), and periodic flooding of 
floodplain habitat to be physical or biological features for these 
species.

Primary Constituent Elements for Neosho Mucket and Rabbitsfoot

    Under the Act and its implementing regulations, we are required to 
identify the physical or biological features essential to the 
conservation of Neosho mucket and rabbitsfoot in areas occupied at the 
time of listing, focusing on the features' primary constituent 
elements. Primary constituent elements are those specific elements of 
the physical or biological features that provide for a species' life-
history processes and are essential to the conservation of the species.
    Based on the above needs and our current knowledge of the physical 
or biological features and habitat characteristics required to sustain 
the species' life-history processes, we determine that the primary 
constituent elements specific to the Neosho mucket and rabbitsfoot are:
    (1) Geomorphically stable river channels and banks (channels that 
maintain lateral dimensions, longitudinal profiles, and sinuosity 
patterns over time without an aggrading or degrading bed elevation) 
with habitats that support a diversity of freshwater mussel and native 
fish (such as stable riffles, sometimes with runs, and mid-channel 
island habitats that provide flow refuges consisting of gravel and sand 
substrates with low to moderate amounts of fine sediment and attached 
filamentous algae).
    (2) A hydrologic flow regime (the severity, frequency, duration, 
and seasonality of discharge over time) necessary to maintain benthic 
habitats where the species are found and to maintain connectivity of 
rivers with the floodplain, allowing the exchange of nutrients and 
sediment for maintenance of the mussel's and fish host's habitat, food 
availability, spawning habitat for native fishes, and the ability for 
newly transformed juveniles to settle and become established in their 
habitats.
    (3) Water and sediment quality (including, but not limited to, 
conductivity, hardness, turbidity, temperature, pH, ammonia, heavy 
metals, and chemical constituents) necessary to sustain natural 
physiological processes for normal behavior, growth, and viability of 
all life stages.
    (4) The occurrence of natural fish assemblages, reflected by fish 
species richness, relative abundance, and community composition, for 
each inhabited river or creek that will serve as an indication of 
appropriate presence and abundance of fish hosts necessary for 
recruitment of the Neosho mucket and rabbitsfoot. Suitable fish hosts 
for Neosho mucket glochidia include smallmouth bass (Micropterus 
dolomieu), largemouth bass (Micropterus salmoides), and spotted bass 
(Micropterus punctulatus). Suitable fish host for rabbitsfoot may 
include, but are not limited to, blacktail shiner (Cyprinella venusta) 
from the Black and Little River and cardinal shiner (Luxilus 
cardinalis), red shiner (C. lutrensis), spotfin shiner (C. spiloptera), 
bluntface shiner (C. camura), rainbow darter (Etheostoma caeruleum), 
rosyface shiner (Notropis rubellus), striped shiner (L. 
chrysocephalus), and emerald shiner (N. atherinoides).
    (5) Competitive or predaceous invasive (nonnative) species in 
quantities low enough to have minimal effect on survival of freshwater 
mussels.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographic 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.
    For Neosho mucket and rabbitsfoot, we have grouped the primary 
threats affecting their habitat, thus potentially the need to implement 
special management or protection, into nine categories.

[[Page 24713]]

    (1) Impoundments (primary constituent elements 1-4). Dams eliminate 
and alter river flow within impounded areas, trap silt leading to 
increased sediment deposition, alter water quality, change hydrology 
and channel geomorphology, decrease habitat heterogeneity, affect 
normal flood patterns, and block upstream and downstream movement of 
mussels and fish (Layzer et al. 1993, pp. 68-69; Neves et al. 1997, pp. 
63-64; Watters 2000, pp. 261-264). Within impounded waters, decline of 
mussels has been attributed to direct loss of supporting habitat, 
sedimentation, decreased dissolved oxygen, temperature levels, and 
alteration in resident fish populations (Neves et al. 1997, pp. 63-64; 
Pringle et al. 2000, pp. 810-815; Watters 2000, pp. 261-264). 
Downstream of dams, mussel declines are associated with changes and 
fluctuation in flow regime, channel scouring and bank erosion, reduced 
dissolved oxygen levels and water temperatures, and changes in resident 
fish assemblages (Williams et al. 1992, p. 7; Layzer et al. 1993, p. 
69; Neves et al. 1997, pp. 63-64; Watters 2000, pp. 265-266; Pringle et 
al. 2000, pp. 810-815). Dams that are low to the water surface, or have 
water passing over them (small low head or mill dams) can have some of 
these same effects on mussels and their fish hosts, particularly 
reducing species richness and evenness and blocking fish host movements 
(Watters 2000, pp. 261-264; Dean et al. 2002, pp. 235-238). Examples of 
special management actions that would minimize or ameliorate these 
threats include: (a) Modified reservoir releases from dams to improve 
water quality and habitat conditions in many tailwaters, and (b) 
modified dam operations (for example, TVA's Tims Ford Dam on the Elk 
River, where water temperature is monitored and dam operation is 
adjusted to support endangered mussels downstream) and water quality 
and biological monitoring.
    (2) Channelization (primary constituent elements 1-4). Dredging and 
channelization activities have profoundly altered riverine habitats 
nationwide. Hartfield (1993, pp. 131-139), Neves et al. (1997, pp. 71-
72), and Watters (2000, pp. 268-269) reviewed the specific upstream and 
downstream effects of channelization on freshwater mussels. 
Channelization affects a stream physically (accelerates erosion, 
increases sediment bed load, reduces water depth, decreases habitat 
diversity, creates geomorphic (natural channel dimensions) instability, 
and eliminates riparian canopy) and biologically (decreases fish and 
mussel diversity, changes species composition and abundance, decreases 
biomass, and reduces growth rates) (Hartfield 1993, pp. 131-139). 
Channel modification for navigation has been shown to increase flood 
heights (Belt 1975, p. 684), partly as a result of an increase in 
stream bed slope (Hubbard et al. 1993, p. 137). Flood events are 
exacerbated, conveying large quantities of sediment, potentially with 
adsorbed contaminants, into streams. Channel maintenance often results 
in increased turbidity and sedimentation that often smothers mussels 
(Stansbery 1970, p. 10). Examples of special management actions that 
would minimize or ameliorate these threats include: (a) Determining 
distribution and abundance of mussels, (b) developing dredging 
protocols and mussel identification booklets to help minimize effects 
(for example, ACOE-Memphis District in the White River avoids dredging 
known mussel beds), and (c) funding research on geomorphological 
requirements of mussels to better inform management decisions.
    (3) Sedimentation (primary constituent elements 3-4). Excessive 
sediments are believed to negatively impact riverine mussel populations 
requiring clean, stable streams (Ellis 1936, pp. 39-40; Brim-Box and 
Mossa 1999, p. 99). Adverse effects resulting from sediments have been 
noted for many components of aquatic communities. Potential sediment 
sources within a watershed include virtually all activities that 
disturb the land surface. Most localities occupied by the Neosho mucket 
and rabbitsfoot, including viable populations, are currently being 
affected to varying degrees by sedimentation. Specific biological 
effects include reduced feeding and respiratory efficiency from clogged 
gills, disrupted metabolic processes, reduced growth rates, limited 
burrowing activity, physical smothering, and disrupted host fish 
attraction mechanisms (Ellis 1936, pp. 39-40; Marking and Bills 1979, 
p. 210; Vannote and Minshall 1982, pp. 4105-4106; Waters 1995, pp. 173-
175; Hartfield and Hartfield 1996, p. 373). Examples of special 
management actions that would minimize or ameliorate these threats 
include: (a) Restoration and protection of riparian corridors, (b) 
implementation of best management practices to minimize erosion (such 
as State and industry practices for forestry activities), (c) stream 
bank restoration projects, and (d) private landowner programs to 
promote watershed and soil conservation.
    (4) Chemical Contaminants (primary constituent elements 3-4). 
Chemical contaminants are ubiquitous in the environment and are 
considered a major contributor to the decline of mussel species 
(Richter et al. 1997, p. 1081; Strayer et al. 2004, p. 436; Wang et al. 
2007, p. 2029; Cope et al. 2008, p. 451). Chemicals enter the 
environment through point- and nonpoint-source discharges including 
spills, industrial and municipal effluents, and residential and 
agricultural runoff. These sources contribute organic compounds, heavy 
metals, nutrients, pesticides, and a wide variety of newly emerging 
contaminants such as pharmaceuticals to the aquatic environment. As a 
result, water and sediment quality can be degraded to the extent that 
results in adverse effects to mussel populations. Examples of special 
management actions that would minimize or ameliorate these threats 
include: (a) Revising water quality standards (such as EPA's new 
ammonia aquatic life criteria), (b) implementing storm water best 
management practices, (c) promoting green areas along riparian 
corridors in rapidly developing urban areas (such as the Illinois 
River), (d) upgrading industrial and municipal treatment facilities to 
improve water quality in effluents, and (e) participating in private 
landowner programs to promote watershed conservation (such as USDA Farm 
Bill programs).
    (5) Mining (primary constituent elements 1-4). Gravel, coal, and 
metal mining are activities negatively affecting water quality in 
Neosho mucket and rabbitsfoot habitat. Instream and alluvial gravel 
mining has been implicated in the destruction of mussel populations 
(Hartfield 1993, pp. 136-138; Brim-Box and Mossa 1999, pp. 103-104). 
Negative effects associated with gravel mining include stream channel 
modifications (altered habitat, disrupted flow patterns, sediment 
transport), water quality modifications (increased turbidity, reduced 
light penetration, increased temperature), macroinvertebrate population 
changes (elimination), and changes in fish populations, resulting from 
adverse effects to spawning and nursery habitat and food web 
disruptions (Kanehl and Lyons 1992, pp. 4-10). Coal mining activities, 
resulting in heavy metal-rich drainage, and associated sedimentation 
has adversely affected many drainages with rabbitsfoot populations 
(Ortmann 1909 in Butler 2005, p. 102; Gordon 1991, pp. 4 and 5; Layzer 
and Anderson 1992 in Butler 2005, p. 102). Numerous mussel toxicants, 
such as polycyclic aromatic hydrocarbons and heavy metals (copper, 
manganese, and zinc) from coal mining,

[[Page 24714]]

contaminate sediments when released into streams (Ahlstedt and 
Tuberville 1997, p. 75). Acid mine runoff may have local effects on 
mussel recruitment and may lead to mortality due to improper shell 
development or erosion (Huebner and Pynnonen 1990, pp. 2350-2353). 
Examples of special management actions that would minimize or 
ameliorate these threats include: (a) Remediating soils contaminated 
with heavy metals (such as Tri-State Mining Area's reclamation of 
contaminated areas to improve water quality), and (b) partnering with 
industry to identify mussel locations to avoid during instream and 
alluvial sand and gravel mining operations.
    (6) Oil and Natural Gas Development (primary constituent elements 
1-4). Exploration and extraction of these energy resources can result 
in increased siltation, a changed hydrograph (graph showing changes in 
the discharge of a river over a period of time), and altered water 
quantity and quality even at considerable distances from the mine or 
well field because effects are carried downstream from the original 
source. Examples of special management actions that would minimize or 
ameliorate these threats include: (a) Developing and implementing best 
management practices for oil and natural gas development activities 
(such as Fayetteville Shale located in the upper Little Red River 
watershed), (b) partnering with industry and nongovernmental 
organizations to restore mussel habitat (such as Southwestern Energy's 
ECH<INF>2</INF>0 (Energy Conserving Water) and the Archey Fork Little 
Red River Restoration Project), (c) creating conservation memoranda of 
agreement with industry to conserve mussel habitat (such as Crestwood 
Midstream in the upper Little Red River watershed), and (d) developing 
ecologically sustainable flow requirements for mussels.
    (7) Invasive, nonindigenous species (primary constituent element 
5). Invasive, nonindigenous species, such as zebra mussel, black carp, 
and Asian clam, have potentially adversely affected populations of the 
Neosho mucket and rabbitsfoot and their fish hosts, and these effects 
are expected to persist into the future. Examples of special management 
actions that would minimize or ameliorate these threats include: (a) 
Implementation of nonregulatory conservation measures to control Asian 
carp and other invasive, nonindigenous species, and (b) continued State 
engagement in efforts to minimize effects of Asian carp (such as 
eradication) on native fish resources.
    (8) Temperature (primary constituent elements 3-4). Natural 
temperature regimes can be altered by impoundments, tailwater releases 
from dams, industrial and municipal effluents, and changes in riparian 
habitat. Low temperatures can significantly delay or prevent 
metamorphosis in mussels (Watters and O'Dee 1999, pp. 454-455). Cold 
water effluent below dams may negatively impact populations; 
rabbitsfoot were less abundant and in poor condition below a cold water 
outflow on the Little River, compared to two other sites upstream 
(Galbraith and Vaughn 2011, p. 198). Low water temperatures caused by 
dam releases also may disrupt seasonal patterns in reproduction 
(Galbraith and Vaughn 2009, pp. 43-44).
    High temperatures can reduce dissolved oxygen concentrations in the 
water, which slows growth, reduces glycogen stores, impairs 
respiration, and may inhibit reproduction (Fuller 1974, pp. 240-241). 
Water temperature increases have been documented to shorten the period 
of glochidial encystment, reduce righting speed (various reflexes that 
tend to bring the body into normal position in space and resist forces 
acting to displace it out of normal position), and slow burrowing and 
movement responses (Bartsch et al. 2000, p. 237; Watters et al. 2001, 
p. 546; Schwalb and Pusch 2007, pp. 264-265). Several studies have 
documented the influence of temperature on the timing aspects of mussel 
reproduction (van Snik et al. 2002, p. 156; Allen et al. 2007, p. 85; 
Steingraeber et al. 2007, pp. 303-309). Peak glochidial releases are 
associated with water temperature thresholds that can be thermal 
minimums or maximums, depending on the species (Watters and O'Dee 2000, 
p. 136). Examples of special management actions that would minimize or 
ameliorate these threats include: (a) Increase cold water temperature 
to optimal range for mussels by modification to tailwater releases, (b) 
improve industrial and municipal water treatment, and (c) protect and 
restore riparian habitat.
    (9) Climate change (primary constituent elements 2-4). As 
temperature increases due to climate change throughout the range of 
Neosho mucket and rabbitsfoot, both species may experience population 
declines as warmer rivers become more suitable for thermally tolerant 
species. Overall, the distribution of fish species is expected to 
change, including range shifts and local extirpations (Ficke et al. 
2005, pp. 67-69; 2007, pp. 603-605). Because freshwater mussels are 
entirely dependent upon a fish host for successful reproduction and 
dispersal, any changes in local fish populations would also affect 
freshwater mussel populations. Examples of special management actions 
that would minimize or ameliorate these threats include: (a) Reduce 
habitat fragmentation; (b) maintain ecosystem function and resiliency; 
(c) develop and implement strategies to help our native fish, wildlife, 
and habitats adapt to a changing climate; and (d) reduce non-climate 
stressors.
    The reduction of these threats will require the implementation of 
special management considerations or protections within each of the 
critical habitat areas identified in this rule. All critical habitat 
requires active management to address some or all of the ongoing 
threats listed. Some of these activities include, but are not limited 
to, those previously discussed in the Summary of Factors Affecting the 
Species section in the final listing rule (78 FR 57076, September 17, 
2013).
    In summary, we find the areas we are designating as critical 
habitat were occupied at the time of listing and contain the features 
essential to the conservation of the Neosho mucket and rabbitsfoot, and 
these features may require special management considerations or 
protection. Special management considerations or protection may be 
required to eliminate, or to reduce to negligible levels, the threats 
affecting each unit and to preserve and maintain the essential physical 
or biological features the critical habitat units provide to the Neosho 
mucket and rabbitsfoot. A more detailed discussion of these threats is 
presented in the final listing rule under Summary of Factors Affecting 
the Species (78 FR 57076, September 17, 2013). Additional discussions 
of threats facing individual sites are provided in the individual unit 
descriptions.

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 occupied areas at the time of listing that 
contain the features essential to the conservation of the species. As 
discussed above, we are designating critical habitat areas that we have 
determined to be occupied at the time of listing in 2013 and that 
contain sufficient elements of physical or biological features to 
support life-

[[Page 24715]]

history processes essential to the conservation of the Neosho mucket 
and the rabbitsfoot. If after identifying areas occupied by the species 
at the time of listing, we determine that those areas are inadequate to 
ensure conservation of the species, in accordance with the Act and our 
implementing regulations at 50 CFR 424.12(e), we then consider whether 
designating additional areas--outside those occupied at the time of 
listing--are essential for the conservation of the species. In this 
rule, we are not designating any areas outside the geographic area 
occupied by the species at the time of listing because occupied areas 
are sufficient for the conservation of the species.
    In this rule, we have defined occupied habitat for the Neosho 
mucket as those stream reaches known to be currently extant. Extant 
Neosho mucket populations are naturally occurring populations 
represented by live or fresh dead specimens collected since 1985. For 
the rabbitsfoot, we have defined occupied habitat as those stream 
reaches that are sizeable and small populations as defined by Butler 
(2005, pp. 88-89), and the marginal populations of Fish Creek and Red 
River that are the last extant populations in their respective basins 
(Great Lakes and Cumberland) and Allegheny River, a metapopulation 
(interconnected populations where there is gene flow). All other 
populations classified as marginal are not considered as occupied 
habitat.
    No unoccupied stream, as defined in the proposed critical habitat 
rule (77 FR 63440, October 16, 2012), is being designated as critical 
habitat for Neosho mucket or rabbitsfoot. We find that unoccupied 
stream reaches are not essential for the conservation of either species 
for one or more of the following reasons:
    (1) Unoccupied habitats are isolated from occupied habitats due to 
reservoir construction and dam operations (dam water releases have 
altered natural stream hydrology, geomorphology, water temperature, and 
native mollusk and fish communities);
    (2) Unoccupied areas exhibit limited habitat availability, degraded 
habitat, or low potential value for management (Muskingum, Elk, Scioto, 
Little Miami, Licking, East Fork White, Cumberland, Holston, Clinch, 
Sequatchie, and Buffalo (Duck River system) Rivers);
    (3) Collection records for both species indicate that these species 
have been extirpated from unoccupied areas for several decades or more 
and, in some cases (such as Cottonwood River), reintroduction efforts 
have not been successful at re-establishing populations; or
    (4) There are no historical records of occurrence within the stream 
reach for Neosho mucket, rabbitsfoot, or both.
    (5) While we recognize the importance of unoccupied habitat to 
recovery of listed species, in this case, unoccupied habitat does not 
provide habitat for reintroduction at this time and does not reduce the 
level of stochastic and human-induced threats for the following 
reasons:
    (a) Unoccupied habitat does not currently contain sufficient 
physical or biological features or have the ability to be restored to 
support life-history functions of the Neosho mucket and rabbitsfoot 
(such characteristics as geomorphically stable channels, perennial 
water flows, adequate water quality, and appropriate benthic 
substrates);
    (b) Unoccupied habitat does not support the once diverse mollusk 
communities, including the presence of closely related species 
requiring physical or biological features similar to the Neosho mucket 
and rabbitsfoot; or
    (c) Unoccupied habitat is not adjacent to currently occupied areas 
where there is potential for natural dispersal and reoccupation by the 
Neosho mucket and rabbitsfoot.
    Based on the above analysis, a total of 38 units, all of which were 
occupied at the time of listing, are being designated based on 
sufficient elements of physical or biological features being present to 
support Neosho mucket (7 units) and rabbitsfoot (31 units) life-history 
processes. Some units contain all of the identified elements of 
physical or biological features and support multiple life-history 
processes. Some units contain only some elements of the physical or 
biological features necessary to support the Neosho mucket's or 
rabbitsfoot's particular use of that habitat.
    When determining critical habitat boundaries within this final 
rule, we made every effort to avoid including developed areas such as 
dams, piers, and bridges, and other structures because such areas 
usually lack physical or biological features for the species. Areas 
designated as critical habitat for the Neosho mucket and rabbitsfoot 
include only stream channels within the ordinary high-water line and do 
not contain manmade structures (such as dams, piers and docks, bridges, 
or other similar structures), or areas inundated by lakes and 
reservoirs. The ordinary high-water line defines the stream channel and 
is the point on the stream bank where water is continuous and leaves 
some evidence, such as erosion or aquatic vegetation. The scale of the 
maps we prepared under the parameters for publication within the Code 
of Federal Regulations may not reflect the exclusion of structures or 
other developed areas. Any such areas inadvertently left inside 
critical habitat boundaries shown on the maps of this final rule have 
been excluded by text in the final rule and are not designated as 
critical habitat. Therefore, a Federal action involving these areas 
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 critical habitat designation is defined by the map or maps, as 
modified by any accompanying regulatory text, presented at the end of 
this document in the rule portion. We include more detailed information 
on the boundaries of the critical habitat designation in the preamble 
of this document. We will make the coordinates, plot points, or both on 
which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R4-ES-2013-0007 on our Internet 
site http://www.fws.gov/arkansas-es/, and at the field office 
responsible for the designation (see FOR FURTHER INFORMATION CONTACT, 
above).
    Three critical habitat units for the Neosho mucket and rabbitsfoot 
are currently designated as critical habitat for the oyster mussel 
(Epioblasma capsaeformis; now recognized by the scientific community as 
the Duck River dartersnapper (Epioblasma ahlstedti) in the Duck River) 
and Cumberlandian combshell (Epioblasma brevidens) encompassing the 
Duck River, Tennessee (74 rkm (46 rmi)) and Bear Creek, Alabama and 
Mississippi (40 rkm (25 rmi)) (50 CFR 17.95(f)), and for the 
yellowcheek darter (Etheostoma moorei) in the Middle Fork Little Red 
River, Arkansas (23.2 rkm (14.5 rmi)) (50 CFR 17.95(e)). The existing 
critical habitat for the oyster mussel and Cumberlandian combshell 
completely overlaps the originally proposed Unit RF16 (Bear Creek, now 
Unit RF15), but the exact unit descriptions (length) differ due to 
mapping refinement since the earlier designation. In addition, five 
critical habitat units being designated for the Neosho mucket and 
rabbitsfoot are currently designated by the State of Kansas as critical 
habitat for both species in the Fall, Spring, Neosho, and Verdigris 
Rivers and for Neosho mucket in Shoal Creek (K.S.A. 32-959; Table 1) 
and are afforded similar State-level protections as those provided 
under the Act.

Final Critical Habitat Designation

[[Page 24716]]



 Table 1--Critical Habitat Areas for the Neosho Mucket and Rabbitsfoot That Are Currently Designated as Critical
                              Habitat for Other Federally and State Listed Species
----------------------------------------------------------------------------------------------------------------
                                                                                                          Length
                                                                                                            of
          Unit (unit #)             Species present in unit     Federal reference     State reference    overlap
                                                                                                          in rkm
                                                                                                          (rmi)
----------------------------------------------------------------------------------------------------------------
Shoal Creek (NM3)................  Neosho mucket, fluted      ....................  K.S.A. 32-959......   9.7
                                    shell, Ouachita                                                      (6.0)
                                    kidneyshell, Western
                                    fanshell, redspot chub.
Spring River (NM4 and RF1).......  Neosho mucket,             ....................  K.S.A. 32-959......  11.6
                                    rabbitsfoot, elktoe,                                                 (7.2)
                                    ellipse shell, Neosho
                                    madtom, fluted shell,
                                    Ouachita kidneyshell,
                                    Western fanshell,
                                    redspot chub.
Fall River (NM6).................  Neosho mucket, Western     ....................  K.S.A. 32-959......  90.4
                                    fanshell.                                                            (56.2)
Verdigris River (NM6 and RF2)....  Neosho mucket,             ....................  K.S.A. 32-959......  80.6
                                    rabbitsfoot, Ouachita                                                (50.1)
                                    kidneyshell, western
                                    fanshell, butterfly.
Neosho River (NM7 and RF3).......  Neosho mucket,             ....................  K.S.A. 32-959......  245.9
                                    rabbitsfoot, butterfly,                                              (152.8)
                                    Neosho madtom, Ouachita
                                    kidneyshell, western
                                    fanshell.
Middle Fork Little Red River       Yellowcheek darter.......  50 CFR 17.95(e).....  ...................  23.3
 (RF7).                                                                                                  (14.5)
Bear Creek (RF15)................  Oyster mussel (Duck River  50 CFR 17.95(f).....  ...................  49.7
                                    dartersnapper),                                                      (30.9)
                                    Cumberlandian combshell.
Duck River (RF18)................  Oyster mussel (Duck River  50 CFR 17.95(f).....  ...................  74.0
                                    dartersnapper),                                                      (46.0)
                                    Cumberlandian combshell.
                                                                                                        --------
    Total........................  .........................  ....................  ...................  585.2
                                                                                                         (363.7)
----------------------------------------------------------------------------------------------------------------

    We are designating seven units, totaling approximately 777 rkm (483 
rmi), in four States (Arkansas, Kansas, Missouri, and Oklahoma) as 
critical habitat for the Neosho mucket (Table 2). We are designating 31 
units (3 with subunits), totaling approximately 2,312 rkm (1,437 rmi), 
in 12 States (Alabama, Arkansas, Illinois, Indiana, Kansas, Kentucky, 
Mississippi, Missouri, Ohio, Oklahoma, Pennsylvania, and Tennessee) as 
critical habitat for the rabbitsfoot (Table 2). Four of the 31 units 
(Units NM4, NM7, RF1, and RF3) are occupied by both Neosho mucket and 
rabbitsfoot.
    Public lands adjacent to Neosho mucket and rabbitsfoot critical 
habitat units consist of approximately 469 rkm (291 rmi) of riparian 
lands in the following units:
    <bullet> Unit NM1: Ozark National Forest, 20.4 rkm (12.7 rmi); 
ACOE's Lake Tenkiller Project, 9.0 rkm (5.6 rmi); and Sparrowhawk 
Wildlife Management Area (WMA), 2.2 rkm (1.4 rmi);
    <bullet> Units NM4 and RF1: Spring River Wildlife Area, 1.4 rkm 
(0.9 rmi);
    <bullet> Unit RF2: ACOE's Oologah Lake Project, 0.6 rkm (0.4 rmi);
    <bullet> Unit NM7: Neosho Wildlife Area, 6.1 rkm (3.8 rmi);
    <bullet> Unit RF6: Little River NWR, 37.6 rkm (23.5 rmi); Ouachita 
National Forest, 16.1 rkm (10.0 rmi); and Pond Creek NWR, 11.4 rkm (7.2 
rmi);
    <bullet> Unit RF8a: Jacksonport State Park, 2.9 rkm (1.8 rmi) and 
Henry Gray-Hurricane Lake WMA, 7.9 rkm (4.9 rmi);
    <bullet> Unit RF8b: White River NWR, 57.9 rkm (36.0 rmi);
    <bullet> Unit RF10: Harold Alexander WMA, 1.1 rkm (0.7 rmi);
    <bullet> Unit RF12: Buffalo National River, 113.6 rkm (70.6 rmi);
    <bullet> Unit RF13: Sam A. Baker State Park, 1.0 rkm (0.6 rmi) and 
ACOE's Wappapello Lake Project, 25.3 rkm (15.7 rmi);
    <bullet> Unit RF15: Tishomingo State Park, 6.1 rkm (3.8 rmi); NPS 
Natchez Trace Parkway, 4.5 rkm (2.8 rmi); and TVA Pickwick Lake 
Project, 7.4 rkm (4.6 rmi);
    <bullet> Unit RF17: Fern Cave NWR, 0.5 rkm (0.3 rmi);
    <bullet> Unit RF18: Yanahli WMA, 38.9 rkm (24.3 rmi) and Santa Fe 
County Park, 1.4 rkm (0.9 rmi);
    <bullet> Unit RF19a: Shiloh National Military Park, 2.6 rkm (1.6 
rmi);
    <bullet> Unit RF19b: Kentucky Dam Village State Resort Park, 0.6 
rkm (0.4 rmi) and unnamed TVA land downstream of Kentucky Lake Dam, 2.4 
rkm (1.5 rmi);
    <bullet> Unit RF20: Massac Forest Nature Preserve, 2.2 rkm (1.4 
rmi); West Kentucky WMA, 5.6 rkm (3.5 rmi); Ballard WMA, 2.6 rkm (1.6 
rmi); and Chestnut Hills Nature Preserve, 2.4 rkm (1.5 rmi);
    <bullet> Unit RF21: Mammoth Cave National Park, 17.0 rkm (10.6 
rmi);
    <bullet> Unit RF22: Pennsylvania State Game Land, 277, 2.9 rkm (1.8 
rmi) and Pennsylvania State Game Land 85, 0.6 rkm (0.4 rmi);
    <bullet> Unit RF23: Clear Creek State Forest, 9.9 rkm (6.2 rmi);
    <bullet> Unit RF24: Erie NWR, 16.2 rkm (10.1 rmi);
    <bullet> Unit RF25: Prophetstown State Park, 2.1 rkm (1.3 rmi);
    <bullet> Unit RF26: Muskingum Watershed Conservancy Land, 5.0 rkm 
(3.1 rmi);
    <bullet> Unit RF27: Little Darby State Scenic Waterway-River Lands, 
8.7 rkm (5.4 rmi);
    <bullet> Unit RF29: Fish Creek Wildlife Area, 1.6 rkm (1.0 rmi); 
and
    <bullet> Unit RF31: ACOE's Shenango River Lake Project, 8.8 rkm 
(5.5 rmi).

[[Page 24717]]



Table 2--Approximate River Distances Currently Occupied by Neosho Mucket
                             and Rabbitsfoot
------------------------------------------------------------------------
                                            Approximate river distances
                                             currently occupied by the
                 Species                              species
                                         -------------------------------
                                             River km       River miles
------------------------------------------------------------------------
Neosho mucket...........................           776.5           482.5
Rabbitsfoot.............................         2,312.1         1,436.7
                                         -------------------------------
    Total...............................         3,088.6         1,919.2
------------------------------------------------------------------------
    Species, Stream (Unit), and State           Currently occupied
------------------------------------------------------------------------
Neosho mucket:
    Unit NM1, Illinois River AR, OK.....           146.1            90.8
    Unit NM2, Elk River, MO, OK.........            20.3            12.6
    Unit NM3, Shoal Creek, KS, MO.......            75.8            47.1
    Unit NM4, Spring River, KS, MO......           102.3            63.6
    Unit NM5, North Fork Spring River,              16.4            10.2
     MO.................................
    Unit NM6, Fall and Verdigris Rivers,           171.1           106.3
     KS.................................
    Unit NM7, Neosho River, KS..........           244.5           151.9
                                         -------------------------------
        Total...........................           776.5           482.5
Rabbitsfoot:
    Unit RF1, Spring River, MO, KS......            56.5            35.1
    Unit RF2, Verdigris River, OK.......            38.0            23.6
    Unit RF3, Neosho River, KS..........            26.6            16.5
    Unit RF4a, Ouachita River, AR.......            22.7            14.1
    Unit RF4b, Ouachita River, AR.......            43.0            26.7
    Unit RF5, Saline River, AR..........           119.4            74.2
    Unit RF6, Little River, OK, AR......           139.7            86.8
    Unit RF7, Middle Fork Little Red                24.8            15.4
     River, AR..........................
    Unit RF8a, White River, AR..........           188.3           117.0
    Unit RF8b, White River, AR..........            68.9            42.8
    Unit RF9, Black River, AR...........            51.2            31.8
    Unit RF10, Spring River, AR.........            51.5            32.0
    Unit RF11, Strawberry River, AR.....           123.8            76.9
    Unit RF12, Buffalo River, AR........           113.6            70.6
    Unit RF13, St. Francis River, MO....            64.3            40.0
    Unit RF14, Big Sunflower River, MS..            51.5            32.0
    Unit RF15, Bear Creek, AL, MS.......            49.7            30.9
    Unit RF16, Big Black River, MS......            43.3            26.9
    Unit RF17, Paint Rock River, AL.....            81.0            50.3
    Unit RF18, Duck River, TN...........           235.3           146.2
    Unit RF19a, Tennessee River, TN.....            26.7            16.6
    Unit RF19b, Tennessee River, KY.....            35.6            22.1
    Unit RF20, Ohio River, KY, IL.......            45.9            28.5
    Unit RF21, Green River, KY..........           175.6           109.1
    Unit RF22, French Creek, PA.........           120.4            74.8
    Unit RF23, Allegheny River, PA......            57.3            35.6
    Unit RF24, Muddy Creek, PA..........            20.1            12.5
    Unit RF25, Tippecanoe River, IN.....            75.6            47.0
    Unit RF26, Walhonding River, OH.....            17.5            10.9
    Unit RF27, Little Darby Creek, OH...            33.3            20.7
    Unit RF28, North Fork Vermilion                 28.5            17.7
     River and Middle Branch North Fork
     Vermilion River, IL................
    Unit RF29, Fish Creek, OH...........             7.7             4.8
    Unit RF30, Red River, KY, TN........            50.2            31.2
    Unit RF31, Shenango River, PA.......            24.8            15.4
                                         -------------------------------
        Total...........................         2,312.1         1,436.7
------------------------------------------------------------------------

    These critical habitat units include the river channels within the 
ordinary high-water line. As defined at 33 CFR 329.11, the ordinary 
high-water mark on nontidal rivers is the line on the shore established 
by the fluctuations of water and indicated by physical characteristics, 
such as a clear, natural line impressed on the bank; shelving; changes 
in the character of soil; destruction of terrestrial vegetation; the 
presence of litter and debris; or other appropriate means that consider 
the characteristics of the surrounding areas. States were granted 
ownership of lands beneath navigable waters up to the ordinary high-
water line upon achieving Statehood (Pollard v. Hagan, 44 U.S. (3 How.) 
212 (1845)). Prior to Statehood, the American colonies may have made 
grants to private parties that included lands below the ordinary high-
water mark of some navigable waters that are included in this final 
rule. However, most, if not all, lands beneath the navigable waters 
included in this final rule are owned by the States. Although areas 
designated as critical habitat for the Neosho mucket and rabbitsfoot 
include only stream channels within the

[[Page 24718]]

ordinary high-water line, riparian lands along the waters adjacent to, 
but not included in, the critical habitat units are either in private 
ownership, or owned by municipalities, States, or Federal entities. 
Table 3 summarizes primary adjacent riparian landowners in each of the 
Neosho mucket and rabbitsfoot critical habitat units by private, State, 
Tribal (jurisdictional, not ownership), or Federal ownership. One 
Neosho mucket and two rabbitsfoot critical habitat units, respectively, 
are located within Tribal jurisdictional areas: Unit NM1 (Illinois 
River, Oklahoma; 103.0 rkm (64.0 rmi)), Unit RF2 (Verdigris River, 
Oklahoma; 38.0 rkm (23.6 rmi)), and Unit RF6 (Little River, Oklahoma; 
41.4 rkm (25.7 rmi)).

  Table 3--Ownership of Riparian Lands Adjacent to--but not Included in--the Critical Habitat Units for Neosho
                                             Mucket and Rabbitsfoot
----------------------------------------------------------------------------------------------------------------
                                                                                                 Adjacent tribal
                                          Adjacent federal  Adjacent state &  Adjacent private    *  (subset of
         Critical habitat units               rkm (rmi)     local government      rkm (rmi)       Private) rkm
                                                                rkm (rmi)                             (rmi)
----------------------------------------------------------------------------------------------------------------
                                                  Neosho Mucket
----------------------------------------------------------------------------------------------------------------
Unit NM1: Illinois River................       29.4 (18.3)         2.3 (1.4)      114.4 (71.1)      103.0 (64.0)
Unit NM2: Elk River.....................                 0                 0       20.3 (12.6)                 0
Unit NM3: Shoal Creek...................                 0                 0       75.8 (47.1)                 0
Unit NM4: Spring River..................                 0         1.4 (0.9)      100.9 (62.7)                 0
Unit NM5: North Fork Spring River.......                 0                 0       16.4 (10.2)                 0
Unit NM6: Fall and Verdigris Rivers.....                 0                 0     171.1 (106.3)                 0
Unit NM7: Neosho River..................                 0         6.1 (3.8)     238.3 (148.1)                 0
----------------------------------------------------------------------------------------------------------------
    Total...............................       29.4 (18.3)         9.8 (6.1)     737.3 (458.1)      103.0 (64.0)
----------------------------------------------------------------------------------------------------------------
                                                   Rabbitsfoot
----------------------------------------------------------------------------------------------------------------
Unit RF1: Spring River..................                 0         1.4 (0.9)       55.0 (34.2)                 0
Unit RF2: Verdigris River...............         0.6 (0.4)                 0       37.3 (23.2)       37.3 (23.2)
Unit RF3: Neosho River..................                 0                 0       26.6 (16.5)                 0
Unit RF4a: Ouachita River...............                 0                 0       22.7 (14.1)                 0
Unit RF4b: Ouachita River...............                 0                 0       43.0 (26.7)                 0
Unit RF5: Saline River..................                 0                 0      119.4 (74.2)                 0
Unit RF6: Little River..................       63.9 (39.7)                 0       75.8 (47.1)       41.4 (25.7)
Unit RF7: Middle Fork Little Red River..                 0                 0       24.8 (15.4)                 0
Unit RF8a: White River..................                 0        10.8 (6.7)     177.5 (110.3)                 0
Unit RF8b: White River..................       57.9 (36.0)                 0        10.9 (6.8)                 0
Unit RF9: Black River...................                 0                 0       51.2 (31.8)                 0
Unit RF10: Spring River.................                 0         1.1 (0.7)       50.4 (31.3)                 0
Unit RF11: Strawberry River.............                 0                 0      123.8 (76.9)                 0
Unit RF12: Buffalo River................      113.6 (70.6)                 0                 0                 0
Unit RF13: St. Francis River............       25.2 (15.7)         1.0 (0.6)       38.1 (23.7)                 0
Unit RF14: Big Sunflower River..........                 0                 0       51.5 (32.0)                 0
Unit RF15: Bear Creek...................        11.9 (7.4)         6.1 (3.8)       31.7 (19.7)                 0
Unit RF16: Big Black River..............                 0                 0       43.3 (26.9)                 0
Unit RF17: Paint Rock River.............         0.5 (0.3)                 0       80.5 (50.0)                 0
Unit RF18: Duck River...................                 0       40.5 (25.2)     194.7 (121.0)                 0
Unit RF19a: Tennessee River.............         2.6 (1.6)                 0       24.1 (15.0)                 0
Unit RF19b: Tennessee River.............         2.4 (1.5)         0.6 (0.4)       32.5 (20.2)                 0
Unit RF20: Ohio River...................                 0        12.9 (8.0)       33.0 (20.5)                 0
Unit RF21: Green River..................       17.0 (10.6)                 0      158.5 (98.5)                 0
Unit RF22: French Creek.................                 0         3.5 (2.2)      116.8 (72.6)                 0
Unit RF23: Allegheny River..............                 0        10.0 (6.2)       47.3 (29.4)                 0
Unit RF24: Muddy Creek..................       16.3 (10.1)                 0         3.9 (2.4)                 0
Unit RF25: Tippecanoe River.............                 0         2.1 (1.3)       73.5 (45.7)                 0
Unit RF26: Walhonding River.............                 0         5.0 (3.1)        12.6 (7.8)                 0
Unit RF27: Little Darby Creek...........                 0         8.7 (5.4)       24.6 (15.3)                 0
Unit RF28: North Fork Vermilion River                    0                 0       28.5 (17.7)                 0
 and Middle Branch North Fork Vermilion
 River..................................
Unit RF29: Fish Creek...................                 0         1.6 (1.0)         6.1 (3.8)                 0
Unit RF30: Red River....................                 0                 0       50.2 (31.2)                 0
Unit RF31: Shenango River...............         8.8 (5.5)                 0        15.9 (9.9)                 0
                                         -----------------------------------------------------------------------
    Total...............................     320.7 (199.4)      105.3 (65.5)           1,885.8       82.7 (48.9)
                                         -----------------------------------------------------------------------
                                                                                     (1,171.8)
    Total for both species..............     350.1 (217.7)      115.1 (71.6)           2,623.1     185.7 (112.9)
                                                                                     (1,629.9)
----------------------------------------------------------------------------------------------------------------
Note: Distances may not sum due to rounding.
* Tribal Jurisdictional Area only, does not represent riparian land ownership by any tribe and is a subset of
  the private lands category.


[[Page 24719]]

    We present brief descriptions of all units, including the upstream 
and downstream boundaries of each stream reach, and reasons why they 
meet the definition of critical habitat for the Neosho mucket and 
rabbitsfoot.
Neosho Mucket
Unit NM1: Illinois River--Benton and Washington Counties, Arkansas; and 
Adair, Cherokee, and Delaware Counties, Oklahoma
    Unit NM1 includes 146.1 rkm (90.8 rmi) of the Illinois River from 
the Muddy Fork Illinois River confluence with the Illinois River south 
of Savoy, Washington County, Arkansas, downstream to the Baron Creek 
confluence southeast of Tahlequah, Cherokee County, Oklahoma. This unit 
contains all or some components of all four physical or biological 
features and contains primary constituent elements 2, 3, 4, and 5. The 
physical or biological features in this unit may require special 
management considerations or protection to address changes in stream 
channel stability associated with urban development and clearing of 
riparian areas due to land use conversion in the watershed; alteration 
of water chemistry or water and sediment quality; and changes in stream 
bed material composition and quality from activities that would release 
sediments or nutrients into the water, such as urban development and 
associated construction projects, livestock grazing, confined animal 
operations, and timber harvesting. The majority of the riparian lands 
adjacent to, but not included in, this unit are in private ownership or 
private lands under tribal jurisdiction (Table 3).
Unit NM2: Elk River--McDonald County, Missouri; and Delaware County, 
Oklahoma
    Unit NM2 includes a total of 20.3 rkm (12.6 rmi) of the Elk River 
from Missouri Highway 59 at Noel, McDonald County, Missouri, to the 
confluence of Buffalo Creek immediately downstream of the Oklahoma and 
Missouri State line, Delaware County, Oklahoma. This unit contains all 
or some components of all four physical or biological features and 
contains all five primary constituent elements. The primary biological 
or physical features in this unit may require special management 
considerations or protection to address changes in the existing flow 
regime due to such activities as impoundment, water diversion, or water 
withdrawal; alteration of water chemistry or water quality; and changes 
in stream bed material composition and sediment quality from activities 
that would release sediments or nutrients into the water, such as urban 
development and associated construction projects, livestock grazing, 
confined animal operations (turkey and chicken), timber harvesting, and 
mining. All the riparian lands adjacent to, but not included in, this 
unit are in private ownership (Table 3).
Unit NM3: Shoal Creek--Cherokee County, Kansas; and Newton County, 
Missouri
    Unit NM3 includes approximately 75.8 rkm (47.1 rmi) of Shoal Creek 
from Missouri Highway W near Ritchey, Newton County, Missouri, to 
Empire Lake where inundation begins in Cherokee County, Kansas. This 
unit contains all or some components of all four physical or biological 
features and contains all five primary constituent elements. The 
physical or biological features in this unit may require special 
management considerations or protection to address changes to the same 
activities as discussed in Unit NM2, above, and releases of chemical 
contaminants from industrial and municipal effluents (77 FR 63440, see 
Factor A). All riparian lands adjacent to, but not included in, this 
unit are in private ownership (Table 3).
Unit NM4: Spring River--Jasper and Lawrence Counties, Missouri; and 
Cherokee County, Kansas
    Unit NM4 includes 102.3 rkm (63.6 rmi) of the Spring River from 
Missouri Highway 97 north of Stotts City, Lawrence County, Missouri, 
downstream to the confluence of Turkey Creek north of Empire, Cherokee 
County, Kansas. This unit contains all or some components of all four 
physical or biological features and contains all five primary 
constituent elements. The physical or biological features in this unit 
may require special management considerations or protection to address 
changes to the same activities as discussed in Unit NM2, above, and 
releases of chemical contaminants from industrial and municipal 
effluents. Almost all (99 percent) of the riparian lands adjacent to, 
but not included in, this unit are in private ownership (Table 3).
Unit NM5: North Fork Spring River--Jasper County, Missouri
    Unit NM5 includes 16.4 rkm (10.2 rmi) of the North Fork Spring 
River from the confluence of Buck Branch southwest of Jasper, Missouri, 
downstream to its confluence with the Spring River near Purcell, Jasper 
County, Missouri. This unit contains all or some components of all four 
physical or biological features and contains all five primary 
constituent elements. The physical or biological features in this unit 
may require special management considerations or protection to address 
changes to the same activities as discussed in Unit NM2, above. All 
riparian lands adjacent to, but not included in, this unit are in 
private ownership (Table 3).
Unit NM6: Fall River--Elk, Greenwood, and Wilson Counties, Kansas; 
Verdigris River--Montgomery and Wilson Counties, Kansas
    Unit NM6 includes a total of 171.1 rkm (106.3 rmi), including 90.4 
rkm (56.2 rmi) of the Fall River from Fall River Lake dam northwest of 
Fall River, Greenwood County, Kansas, downstream to its confluence with 
the Verdigris River near Neodesha, Wilson County, Kansas. Unit NM6 also 
includes 80.6 rkm (50.1 rmi) of the Verdigris River from Kansas Highway 
39 near Benedict, Wilson County, Kansas downstream to the Elk River 
confluence near Independence, Montgomery County, Kansas. This unit 
contains all or some components of all four physical or biological 
features and contains all five primary constituent elements. The 
physical or biological features in this unit may require special 
management considerations or protection to address changes to the same 
activities as discussed in Unit NM2, above. All riparian lands adjacent 
to, but not included in, this unit are in private ownership (Table 3).
Unit NM7: Neosho River--Allen, Cherokee, Coffey, Labette, Neosho, and 
Woodson Counties, Kansas
    Unit NM7 includes 244.5 rkm (151.9 rmi) of the Neosho River from 
Kansas Highway 58 west of LeRoy, Coffey County, Kansas, downstream to 
the Kansas and Oklahoma State line, Cherokee County, Kansas. This unit 
contains all or some components of all four physical or biological 
features and contains all five primary constituent elements. The 
physical or biological features in this unit may require special 
management considerations or protection to address changes to the same 
activities as discussed in Unit NM2, above, and releases of chemical 
contaminants from industrial and municipal effluents and tail water 
releases downstream of John Redmond Reservoir. All riparian lands 
adjacent to, but not included in, this unit are in private ownership 
(Table 3).

[[Page 24720]]

Rabbitsfoot
    The physical or biological features in units RF1 through RF31 may 
require special management considerations to address changes in the 
existing flow regime due to such activities as impoundment, water 
diversion, or water withdrawal; alteration of water chemistry or water 
quality; and changes in stream bed material composition and sediment 
quality from activities that would release sediments or nutrients into 
the water, such as urban development and associated construction 
projects, livestock grazing, confined animal operations (turkey and 
chicken), timber harvesting, and mining, and releases of chemical 
contaminants from industrial and municipal effluents. Where there are 
other activities in individual units requiring special management 
considerations, they are set forth in the individual unit descriptions.
Unit RF1: Spring River--Jasper County, Missouri; and Cherokee County, 
Kansas
    Unit RF1 includes 56.5 rkm (35.1 rmi) of the Spring River from 
Missouri Highway 96 at Carthage, Jasper County, Missouri, downstream to 
the confluence of Turkey Creek north of Empire, Cherokee County, 
Kansas. This unit contains all or some components of all four physical 
or biological features and contains all five primary constituent 
elements. The physical or biological features in this unit may require 
special management considerations or protection described above. The 
majority of the riparian lands adjacent to, but not included in, this 
unit are in private ownership or private lands under tribal 
jurisdiction (Table 3).
Unit RF2: Verdigris River--Rogers County, Oklahoma
    Unit RF2 includes 38.0 rkm (23.6 rmi) of the Verdigris River from 
Oologah Lake dam north of Claremore, Oklahoma, downstream to Oklahoma 
Highway 266 northwest of Catoosa, Rogers County, Oklahoma. This unit 
contains all or some components of all four physical or biological 
features and in part, contains primary constituent elements 3, 4, and 
5. It is possible that primary constituent elements 1 and 2 are 
limiting factors for rabbitsfoot distribution and abundance from 
Oologah Lake dam downstream to the confluence of the Caney River; thus 
we are unable to determine at this time whether this reach contains 
primary constituent elements 1 and 2. The physical or biological 
features in this unit may require special management considerations or 
protection as described above and changes in the existing flow regime 
due to such activities as impoundment, tail water releases from Oologah 
Lake dam, and channelization associated with the McClellan-Kerr 
Arkansas River Navigation System. The majority of the riparian lands 
adjacent to, but not included in, this unit are in private ownership or 
private lands under tribal jurisdiction (Table 3).
Unit RF3: Neosho River--Allen County, Kansas
    Unit RF3 includes 26.6 rkm (16.5 rmi) of the Neosho River from the 
Deer Creek confluence northwest of Iola, Kansas, downstream to the 
confluence of Owl Creek southwest of Humboldt, Allen County, Kansas. 
This unit contains all or some components of all four physical or 
biological features and contains all five primary constituent elements. 
The physical or biological features in this unit may require special 
management considerations or protection to address changes described 
above except for releases of chemical contaminants from industrial and 
municipal effluents. Approximately 97 percent of the riparian lands 
adjacent to, but not included in, this unit are in private ownership 
and the remaining lands in State or local ownership (Table 3).
Unit RF4a: Ouachita River--Clark and Hot Spring Counties, Arkansas
    Unit RF4a includes 22.7 rkm (14.1 rmi) of the Ouachita River from 
the Tenmile Creek confluence north of Donaldson downstream to the Caddo 
River confluence near Caddo Valley, Hot Spring and Clark Counties, 
Arkansas. This unit contains all or some components of all four 
physical or biological features and contains all five primary 
constituent elements. The physical or biological features in this unit 
may require special management considerations or protection to address 
changes described above. Approximately 82 percent of the riparian lands 
adjacent to, but not included in, this unit are in private ownership 
and the remaining 18 percent are in Federal ownership (Table 3).
Unit RF4b: Ouachita River--Ouachita County, Arkansas
    Unit RF4b includes 43.0 rkm (26.7 rmi) of the Ouachita River from 
the Little Missouri River confluence downstream to U.S. Highway 79 at 
Camden, Ouachita County, Arkansas. This unit contains all or some 
components of all four physical or biological features and contains all 
five primary constituent elements. The physical or biological features 
in this unit may require special management considerations or 
protection to address changes described above. All the riparian lands 
adjacent to, but not included in, this unit are in private ownership 
(Table 3).
Unit RF5: Saline River--Ashley, Bradley, Cleveland, and Drew Counties, 
Arkansas
    Unit RF5 includes 119.4 rkm (74.2 rmi) of the Saline River from 
Frazier Creek confluence near Mount Elba, Cleveland County, Arkansas, 
to the Mill Creek confluence near Stillions, Ashley and Bradley 
Counties, Arkansas. This unit contains all or some components of all 
four physical or biological features and contains all five primary 
constituent elements. The physical or biological features in this unit 
may require special management considerations or protection to address 
changes described above. All the riparian lands adjacent to, but not 
included in, this unit are in private ownership (Table 3).
Unit RF6: Little River--McCurtain County, Oklahoma; and Little River 
and Sevier Counties, Arkansas
    Unit RF6 includes 139.7 rkm (86.8 rmi) of the Little River from the 
Glover River confluence northwest of Idabel, McCurtain County, 
Oklahoma, downstream to U.S. Highway 71 north of Wilton, Little River 
and Sevier Counties, Arkansas. This unit contains all or some 
components of all four physical or biological features and contains all 
five primary constituent elements. The physical or biological features 
in this unit may require special management considerations or 
protection to address changes described above. Riparian lands adjacent 
to, but not included in, this unit are in private ownership (42 
percent), Federal (35 percent), and private land under tribal 
jurisdiction (23 percent) (Table 3).
Unit RF7: Middle Fork Little Red River--Cleburne and Van Buren 
Counties, Arkansas
    Unit RF7 includes 24.8 rkm (15.4 rmi) of the Middle Fork Little Red 
River from the confluence of Little Tick Creek north of Shirley, 
Arkansas, downstream to Greers Ferry Reservoir (where inundation 
begins), Van Buren County, Arkansas. This unit contains all or some 
components of all four physical or biological features and contains all 
five primary constituent elements. The physical or biological features 
in this unit may require special management considerations or 
protection to address changes described above and natural gas 
development and hillside rock harvesting. All riparian lands adjacent

[[Page 24721]]

to, but not included in, this unit are in private ownership (Table 3).
Unit RF8a: White River--Independence, Jackson, White, and Woodruff 
Counties, Arkansas
    Unit RF8a includes 188.3 rkm (117.0 rmi) of the White River from 
the Batesville Dam at Batesville, Independence County, Arkansas, 
downstream to the Little Red River confluence north of Georgetown, 
White, and Woodruff Counties, Arkansas. This unit contains all or some 
components of all four physical or biological features and contains 
primary constituent elements 2, 3, 4, and 5. The ACOE maintains a 
navigation channel, which involves routine dredging and snag removal, 
from Newport, Arkansas, to its confluence with the Mississippi River. 
The physical or biological features in this unit may require special 
management considerations or protection described above except for 
releases of chemical contaminants from industrial and municipal 
effluents and including tail water releases from a series of reservoirs 
on the upper White River; row crop agriculture; increasing demand for 
instream sand from the White River upstream of Newport, Arkansas, to 
support natural gas development needs; natural gas development; and 
channelization. Riparian lands adjacent to, but not included in, this 
unit are in private ownership (94 percent) and State and local 
ownership (6 percent) (Table 3).
Unit RF8b: White River--Arkansas and Monroe Counties, Arkansas
    There are no records of rabbitsfoot from the 160-rkm (100-rmi) 
reach separating Unit RF8a from Unit RF8b (Butler 2005, p. 66). Unit 
RF8b includes 68.9 rkm (42.8 rmi) of the White River from U.S. Highway 
79 at Clarendon, Monroe County, Arkansas, downstream to Arkansas 
Highway 1 near St. Charles, Arkansas County, Arkansas. This unit 
contains all or some components of all four physical or biological 
features and contains primary constituent elements 2, 3, 4, and 5. The 
ACOE maintains a navigation channel, which involves routine dredging 
and snag removal, from Newport, Arkansas, to its confluence with the 
Mississippi River. The physical or biological features in this unit may 
require special management considerations or protection described above 
except for releases of chemical contaminants from industrial and 
municipal effluents and including tail water releases from a series of 
reservoirs on the upper White River; row crop agriculture; increasing 
demand for instream sand from the White River upstream of Newport, 
Arkansas, to support natural gas development needs; natural gas 
development; and channelization. Approximately 84 percent of the 
riparian lands adjacent to, but not included in, this unit are in 
Federal ownership and 16 percent are in private ownership (Table 3).
Unit RF9: Black River--Lawrence and Randolph Counties, Arkansas
    Unit RF9 includes 51.2 rkm (31.8 rmi) of the Black River from U.S. 
Highway 67 at Pocahontas, Randolph County, Arkansas, downstream to the 
Flat Creek confluence southeast of Powhatan, Lawrence County, Arkansas. 
This unit contains all or some components of all four physical or 
biological features and contains all five primary constituent elements. 
The physical or biological features in this unit may require special 
management considerations or protection to address changes described 
above and including row crop agriculture. All riparian lands adjacent 
to, but not included in, this unit are in private ownership (Table 3).
Unit RF10: Spring River--Lawrence, Randolph, and Sharp Counties, 
Arkansas
    Unit RF10 includes 51.5 rkm (32.0 rmi) of the Spring River from the 
Ott Creek confluence southwest of Hardy in Sharp County, Arkansas, 
downstream to its confluence with the Black River east of Black Rock, 
Lawrence and Randolph Counties, Arkansas. This unit contains all or 
some components of all four physical or biological features and 
contains all five primary constituent elements. The physical or 
biological features in this unit may require special management 
considerations or protection to address changes described above. All 
riparian lands adjacent to, but not included in, this unit are in 
private ownership (Table 3).
Unit RF11: Strawberry River--Independence, Izard, Lawrence, and Sharp 
Counties, Arkansas
    Unit RF11 includes 123.8 rkm (76.9 rmi) of the Strawberry River 
from Arkansas Highway 56 south of Horseshoe Bend, Izard County, 
Arkansas, downstream to its confluence with the Black River southeast 
of Strawberry, Lawrence County, Arkansas. This unit contains all or 
some components of all four physical or biological features and 
contains all five primary constituent elements. The physical or 
biological features in this unit may require special management 
considerations or protection to address changes described above. All 
riparian lands adjacent to, but not included in, this unit are in 
private ownership (Table 3).
Unit RF12: Buffalo River--Marion, Newton, and Searcy Counties, Arkansas
    Unit RF12 includes 113.6 rkm (70.6 rmi) of the Buffalo River from 
the Cove Creek confluence southeast of Erbie, Newton County, Arkansas, 
downstream to U.S. Highway 65 west of Gilbert, Searcy County, Arkansas 
and Arkansas Highway 14 southeast of Mull, Arkansas, downstream to the 
Leatherwood Creek confluence in the Lower Buffalo Wilderness Area, 
Arkansas. This unit contains all or some components of all four 
physical or biological features and contains all five primary 
constituent elements. The physical or biological features in this unit 
may require special management considerations or protection to address 
changes described above. All riparian lands adjacent to, but not 
included in, this unit are in Federal ownership (Table 3).
Unit RF13: St. Francis River--Madison and Wayne Counties, Missouri
    Unit RF13 includes 64.3 rkm (40.0 rmi) of the St. Francis River 
from the Twelvemile Creek confluence west of Saco, Madison County, 
Missouri, downstream to Lake Wappepello (where inundation begins), 
Wayne County, Missouri. This unit contains all or some components of 
all four physical or biological features and contains all five primary 
constituent elements. The physical or biological features in this unit 
may require special management considerations or protection to address 
changes described above. Riparian lands adjacent to, but not included 
in, this unit are in private (59 percent), Federal (39 percent), and 
less than 2 percent in State or local ownership (Table 3).
Unit RF14: Big Sunflower River--Sunflower County, Mississippi
    Unit RF14 includes 51.5 rkm (32.0 rmi) of the Big Sunflower River 
from Mississippi Highway 442 west of Doddsville, Mississippi, 
downstream to the Quiver River confluence east of Indianola, Sunflower 
County, Mississippi. This unit contains all or some components of all 
four physical or biological features and contains all five primary 
constituent elements. The physical or biological features in this unit 
may require special management considerations or protection to address 
changes described above and row crop agriculture and channelization. 
All riparian lands adjacent to, but not included in, this unit are in 
private ownership (Table 3).

[[Page 24722]]

Unit RF15: Bear Creek--Tishomingo County, Mississippi; and Colbert 
County, Alabama
    Unit RF15 includes 49.7 rkm (30.9 rmi) of Bear Creek from the 
Alabama and Mississippi State line east of Golden, Tishomingo County, 
Mississippi, downstream to Alabama County Road 4 southwest of Sutton 
Hill, Colbert County, Alabama (just upstream of Pickwick Lake). Unit 
RF15 in its entirety is currently designated as critical habitat for 
the oyster mussel (Duck River dartersnapper) and Cumberlandian 
combshell. Unit RF15 contains all or some components of all four 
physical or biological features, except in the Bear Creek Floodway, 
which has been channelized for flood control and only contains 
components of physical or biological features associated with the 
species' nutritional or physiological requirements and contains all 
five primary constituent elements, except in the Bear Creek Floodway, 
which has been channelized for flood control and only contains primary 
constituent elements 3, 4, and 5. The physical or biological features 
in this unit may require special management considerations or 
protection to address changes described above. Riparian lands adjacent 
to, but not included in, this unit are in private (64 percent), Federal 
(24 percent), and 12 percent in State or local ownership (Table 3).
Unit RF16: Big Black River--Hinds and Warren Counties, Mississippi
    Unit RF16 includes 43.3 rkm (26.9 rmi) of Big Black River from 
Porter Creek confluence west of Lynchburg, Hinds County, Mississippi, 
downstream to Mississippi Highway 27 west of Newman, Warren County, 
Mississippi. This unit contains all or some components of all four 
physical or biological features and contains all five primary 
constituent elements. The physical or biological features in this unit 
may require special management considerations or protection to address 
changes described above, as well as row crop agriculture and 
channelization. All riparian lands adjacent to, but not included in, 
this unit are in private ownership (Table 3).
Unit RF17: Paint Rock River--Jackson, Madison, and Marshall Counties, 
Alabama
    Unit RF17 includes 81.0 rkm (50.3 rmi) of the Paint Rock River from 
the convergence of Estill Fork and Hurricane Creek north of Skyline, 
Jackson County, Alabama, downstream to U.S. Highway 431 south of New 
Hope, Madison and Marshall Counties, Alabama. This unit contains all or 
some components of all four physical or biological features and 
contains all five primary constituent elements. The physical or 
biological features in this unit may require special management 
considerations or protection to address changes described above as well 
as row crop agriculture and channelization. Approximately 99 percent of 
the riparian lands adjacent to, but not included in, this unit are in 
private ownership and 1 percent is in Federal ownership (Table 3).
Unit RF18: Duck River--Hickman, Humphreys, Marshall, Maury, and Perry 
Counties, Tennessee
    Unit RF18 includes 235.3 rkm (146.2 rmi) of the Duck River from 
Lillard Mill (rkm 288; rmi 179) west of Tennessee Highway 272, Marshall 
County, Tennessee, downstream to Interstate 40 near Bucksnort, Hickman 
County, Tennessee. Seventy-four rkm (46 rmi) in Unit RF18 from rkm 214 
(rmi 133) upstream to Lillards Mill at rkm 288 (rmi 179) is currently 
designated as critical habitat for the oyster mussel and Cumberlandian 
combshell (50 CFR 17.95(f)). Unit RF18 contains all or some components 
of all four physical or biological features and contains all five 
primary constituent elements. The physical or biological features in 
this unit may require special management considerations or protection 
to address changes described above as well as row crop agriculture and 
channelization. Approximately 83 percent of the riparian lands adjacent 
to, but not included in, this unit are in private ownership and 17 
percent are in State or local ownership (Table 3).
Unit RF19a: Tennessee River--Hardin County, Tennessee
    Unit RF19a includes 26.7 rkm (16.6 rmi) of Tennessee River from 
Pickwick Lake Dam downstream to U.S. Highway 64 near Adamsville, Hardin 
County, Tennessee. This unit contains all or some components of all 
four physical or biological features and contains primary constituent 
elements 1, 3, 4, and 5. The physical or biological features in this 
unit may require special management considerations or protection to 
address changes described above as well as row crop agriculture, 
channelization, and channel stability associated with tail water 
releases. Approximately 90 percent of the riparian lands adjacent to, 
but not included in, this unit are in private ownership and 10 percent 
are in State or local ownership (Table 3).
Unit RF19b: Tennessee River--Livingston, Marshall, and McCracken 
Counties, Kentucky
    Unit RF19b includes 35.6 rkm (22.1 rmi) of the Tennessee River from 
Kentucky Lake Dam downstream to its confluence with the Ohio River, 
McCracken and Livingston Counties, Kentucky. This unit contains all or 
some components of all four physical or biological features, and in 
part, contains all five primary constituent elements. The physical or 
biological features in this unit may require special management 
considerations or protection to address changes described above. 
Approximately 93 percent of the riparian lands adjacent to, but not 
included in, this unit are in private ownership, 7 percent are in 
Federal ownership, and less than 1 percent is in State or local 
ownership (Table 3).
Unit RF20: Ohio River--Ballard and McCracken Counties, Kentucky; Massac 
and Pulaski Counties, Illinois
    Unit RF20 includes 45.9 rkm (28.5 rmi) of the Ohio River from the 
Tennessee River confluence at the downstream extent of Owens Island 
downstream to Lock and Dam 53 near Olmstead, Illinois. This unit 
contains all or some components of all four physical or biological 
features, and in part, contains all five primary constituent elements. 
The physical or biological features in this unit may require special 
management considerations or protection to address changes described 
above, as well as row crop agriculture, channelization, and channel 
stability associated with tail water releases. Approximately 72 percent 
of the riparian lands adjacent to, but not included in, this unit are 
in private ownership and 28 percent are in State or local ownership 
(Table 3).
Unit RF21: Green River--Edmonson, Green, Hart, and Taylor Counties, 
Kentucky
    Unit RF21 includes 175.6 rkm (109.1 rmi) of the Green River from 
Green River Lake Dam south of Campbellsville, Taylor County, Kentucky, 
downstream to Mammoth Cave National Park North Entrance Road in Mammoth 
Cave National Park, Kentucky. This unit contains all or some components 
of all four physical or biological features, and in part, contains all 
five primary constituent elements. Releases from Green River Lake dam 
have altered hydrologic flows and temperature regimes in the tail water 
reach (Butler 2005, p. 39). The physical or biological features in this 
unit may require special management

[[Page 24723]]

considerations or protection to address changes described above and row 
crop agriculture, channelization, and channel stability associated with 
tail water releases. Approximately 90 percent of the riparian lands 
adjacent to, but not included in, this unit are in private ownership 
and 10 percent are in Federal ownership (Table 3).
Unit RF22: French Creek--Crawford, Erie, Mercer, and Venango Counties, 
Pennsylvania
    Unit RF22 includes 120.4 rkm (74.8 rmi) of French Creek from Union 
City Reservoir Dam northeast of Union City, Erie County, Pennsylvania, 
downstream to its confluence with the Allegheny River near Franklin, 
Venango County, Pennsylvania. The Allegheny River rabbitsfoot 
population (Unit RF23) is likely a single metapopulation with the 
French Creek population (Unit RF22) (Butler 2005, p. 31). This unit 
contains all or some components of all four physical or biological 
features and contains all five primary constituent elements. The 
physical or biological features in this unit may require special 
management considerations or protection to address changes described 
above as well as row crop agriculture and oil and gas development. 
Approximately 97 percent of the riparian lands adjacent to, but not 
included in, this unit are in private ownership and 3 percent are in 
Federal ownership (Table 3).
Unit RF23: Allegheny River--Venango County, Pennsylvania
    Unit RF23 includes 57.3 rkm (35.6 rmi) of the Allegheny River from 
the French Creek confluence near Franklin, Venango County, 
Pennsylvania, downstream to Interstate 80 near Emlenton, Venango 
County, Pennsylvania. The lower Allegheny River and French Creek (Unit 
RF22) populations likely represent a single metapopulation because no 
barriers exist between the streams (Butler 2005, p. 29). This unit 
contains all or some components of all four physical or biological 
features and likely functions as a metapopulation to French Creek (Unit 
RF22). This unit contains primary constituent elements 1, 3, 4, and 5 
for the rabbitsfoot. A series of nine locks and dams and Kinzua Dam 
constructed over the past century has resulted in altered hydrologic 
flow regimes in the Allegheny River (Butler 2005, p. 29). The physical 
or biological features in this unit may require special management 
considerations or protection to address changes described above as well 
as row crop agriculture, oil and gas development, and channelization. 
Approximately 83 percent of the riparian lands adjacent to, but not 
included in, this unit are in private ownership and 17 percent are in 
State or local ownership (Table 3).
Unit RF24: Muddy Creek--Crawford County, Pennsylvani
    Unit RF24 includes 20.1 rkm (12.5 rmi) of Muddy Creek from 
Pennsylvania Highway 77 near Little Cooley, Crawford County, 
Pennsylvania, downstream to its confluence with French Creek east of 
Cambridge Springs, Crawford County, Pennsylvania. This unit contains 
all or some components of all four physical or biological features and 
contains all five primary constituent elements. The physical or 
biological features in this unit may require special management 
considerations or protection to address changes described above and oil 
and gas development. Approximately 81 percent of the riparian lands 
adjacent to, but not included in, this unit are in Federal ownership 
and 19 percent are in private ownership (Table 3).
Unit RF25: Tippecanoe River--Carroll, Pulaski, Tippecanoe, and White 
Counties, Indiana
    Unit RF25 includes 75.6 rkm (47.0 rmi) of the Tippecanoe River from 
Indiana Highway 14 near Winamac, Pulaski County, Indiana, downstream to 
its confluence with the Wabash River northeast of Battle Ground, 
Tippecanoe County, Indiana, excluding Lakes Shafer and Freeman and the 
stream reach between the two lakes. This unit contains all or some 
components of all four physical or biological features and contains all 
five primary constituent elements. The physical or biological features 
in this unit may require special management considerations or 
protection to address changes described above. Approximately 97 percent 
of the riparian lands adjacent to, but not included in, this unit are 
in private ownership and 3 percent are in State or local ownership 
(Table 3).
Unit RF26: Walhonding River--Coshocton County, Ohio
    Unit RF26 includes 17.5 rkm (10.9 rmi) of the Walhonding River from 
the convergence of the Kokosing and Mohican Rivers downstream to Ohio 
Highway 60 near Warsaw, Coshocton County, Ohio. This unit contains all 
or some components of all four physical or biological features and 
contains all five primary constituent elements. The physical or 
biological features in this unit may require special management 
considerations or protection to address changes described above. 
Approximately 83 percent of the riparian lands adjacent to, but not 
included in, this unit are in private ownership and 17 percent are in 
State or local ownership (Table 3).
Unit RF27: Little Darby Creek--Madison and Union Counties, Ohio
    Unit RF27 includes 33.3 rkm (20.7 rmi) of Little Darby Creek from 
Ohio Highway 161 near Chuckery, Union County, Ohio, downstream to U.S. 
Highway 40 near West Jefferson, Madison County, Ohio. This unit 
contains all or some components of all four physical or biological 
features and contains all five primary constituent elements. The 
physical or biological features in this unit may require special 
management considerations or protection to address changes described 
above and row crop agriculture. All riparian lands adjacent to, but not 
included in, this unit are in private ownership (Table 3).
Unit RF28: North Fork Vermilion River and Middle Branch North Fork 
Vermilion River, respectively, Vermilion County, Illinois
    Unit RF28 includes a total of 28.5 rkm (17.7 rmi). Unit RF28 
includes 21.2 rkm (13.2 rmi) of the North Fork Vermilion River from the 
confluence of Middle Branch North Fork Vermilion River downstream to 
Illinois Highway 1 and U.S. Highway 136 upstream of Lake Vermilion, 
Vermilion County, Illinois. Unit RF28 also includes 7.2 rkm (4.5 rmi) 
of the Middle Branch North Fork Vermilion River from the Jordan Creek 
confluence northwest of Alvin, Illinois, downstream to its confluence 
with North Fork Vermilion River west of Alvin, Vermilion County, 
Illinois. The rabbitsfoot in the North Fork Vermilion River is 
considered a metapopulation with the Middle Branch North Fork Vermilion 
River population (Butler 2005, p. 47). This unit contains all or some 
components of all four physical or biological features, including 
connectivity between North Fork Vermilion River and Middle Branch North 
Fork Vermilion River. This unit contains all five primary constituent 
elements. The physical or biological features in this unit may require 
special management considerations or protection to address changes 
described above and channelization and row crop agriculture. All 
riparian lands adjacent to, but not included in, this unit are in 
private ownership (Table 3).
Unit RF29: Fish Creek--Williams County, Ohio
    Unit RF29 includes 7.7 rkm (4.8 rmi) of Fish Creek from the Indiana 
and Ohio

[[Page 24724]]

State line northwest of Edgerton, Ohio, downstream to its confluence 
with the St. Joseph's River north of Edgerton, Williams County, Ohio. 
This unit contains all or some components of all four physical or 
biological features and sustains genetic diversity and historical 
distribution as the only remaining rabbitsfoot population in the Great 
Lakes sub-basin. This unit contains all five primary constituent 
elements. The physical or biological features in this unit may require 
special management considerations or protection to address changes 
described above as well as row crop agriculture and confined animal 
operations (hogs). Approximately 90 percent of the riparian lands 
adjacent to, but not included in, this unit are in private ownership 
and 10 percent are in State or local ownership (Table 3).
Unit RF30: Red River--Logan County, Kentucky; and Montgomery and 
Robertson Counties, Tennessee
    Unit RF30 includes 50.2 rkm (31.2 rmi) of the Red River from the 
South Fork Red River confluence west of Adairville, Kentucky, 
downstream to the Sulphur Fork confluence southwest of Adams, 
Tennessee. This unit contains all or some components of all four 
physical or biological features and sustains genetic diversity and 
historical distribution as the largest of two remaining rabbitsfoot 
populations within the Cumberland River basin. This unit contains all 
five primary constituent elements. The physical or biological features 
in this unit may require special management considerations or 
protection to address changes described above as well as row crop 
agriculture and channelization. All riparian lands adjacent to, but not 
included in, this unit are in private ownership (Table 3).
Unit RF31: Shenango River--Mercer County, Pennsylvania
    Unit RF31 includes 24.8 rkm (15.4 rmi) of the Shenango River from 
Porter Road near Greenville, Pennsylvania, downstream to the point of 
inundation by Shenango River Lake near Big Bend, Mercer County, 
Pennsylvania. This unit contains all or some components of all four 
physical or biological features and contains all five primary 
constituent elements. The physical or biological features in this unit 
may require special management considerations or protections to address 
changes described above as well consumptive water uses. Approximately 
54 percent of the riparian lands adjacent to, but not included in, this 
unit are in Federal ownership and 46 percent are in private ownership 
(Table 3).

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 fund, authorize, 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.
    Decisions by the 5th and 9th Circuit Courts of Appeals have 
invalidated our regulatory definition of ``destruction or adverse 
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. 
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service, 245 F.3d 434 (5th Cir. 2001)), 
and we do not rely on this regulatory definition when analyzing whether 
an action is likely to destroy or adversely modify critical habitat. 
Under the provisions of the Act, we determine destruction or adverse 
modification on the basis of whether, with implementation of the 
proposed Federal action, the effected critical habitat would continue 
to serve its intended conservation role for the species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
ACOE 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 or authorized, do not 
require section 7 consultation.
    As a result of section 7 consultation, we document compliance with 
the requirements of section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid the likelihood of 
jeopardizing the continued existence of the listed species and/or avoid 
the likelihood of destroying or adversely modifying critical habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies sometimes may need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical

[[Page 24725]]

habitat would continue to serve its intended conservation role for the 
species. Activities that may destroy or adversely modify critical 
habitat are those that alter the physical or biological features to an 
extent that appreciably reduces the conservation value of critical 
habitat for Neosho mucket and the rabbitsfoot. As discussed above, the 
role of critical habitat is to support life-history needs of the 
species and provide for the conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that may affect critical habitat, when carried out, 
funded, or authorized by a Federal agency, should result in 
consultation for the Neosho mucket and rabbitsfoot. These activities 
include, but are not limited to:
    (1) Actions that would alter the geomorphology of their stream and 
river habitats. Such activities may include, but are not limited to, 
instream excavation or dredging, impoundment, channelization, sand and 
gravel mining, clearing riparian vegetation, and discharge of fill 
materials. These activities could cause aggradation or degradation of 
the channel bed elevation or significant bank erosion, result in 
entrainment or burial of these mollusks, and cause other direct or 
cumulative adverse effects to these species and their life cycles.
    (2) Actions that would significantly alter the existing flow regime 
where these species occur. Such activities may include, but are not 
limited to, impoundment, channelization, urban development, water 
diversion, water withdrawal, and tail water releases downstream of 
dams. These activities could eliminate or reduce the habitat necessary 
for growth and reproduction of these mollusks and their life cycles 
including fish hosts.
    (3) Actions that would significantly alter water chemistry or water 
quality (for example, temperature, pH, contaminants, conductivity, and 
excess nutrients). Such activities may include, but are not limited to, 
tail water releases downstream of dams, or the release of chemicals, 
biological pollutants, or heated effluents into surface water or 
connected groundwater at a point source or by dispersed release 
(nonpoint source). These activities could alter water conditions that 
are beyond the tolerances of these mussels or their fish hosts or both, 
and result in direct or cumulative adverse effects to the species and 
their life cycles.
    (4) Actions that would significantly alter stream bed material 
composition and quality by increasing sediment deposition or 
filamentous algal growth. Such activities may include, but are not 
limited to, construction projects, gravel and sand mining, oil and gas 
development, livestock grazing, timber harvest, off-road vehicle use, 
and other watershed and floodplain disturbances that release sediments 
or contaminants into the water. These activities could eliminate or 
reduce habitats necessary for the survival, growth, and reproduction of 
these mollusks or their fish hosts or both by causing excessive 
sedimentation and burial of Neosho mucket and rabbitsfoot or their 
habitats, sublethal effects from sediment exposure that are not readily 
apparent, acute and chronic exposure to chemical contaminants resulting 
in sublethal and lethal effects, and nutrification leading to excessive 
filamentous algal growth. Excessive filamentous algal growth can cause 
reduced nighttime dissolved oxygen levels and prevent mussel glochidia 
from settling into stream sediments.

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, or designated for its use, that are subject to 
an integrated natural resources management plan (INRMP) prepared under 
section 101 of the Sikes Act (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.'' There are no 
Department of Defense lands with a completed INRMP within the 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 must 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 critical habitat if she determines that the 
benefits of such exclusion outweigh the benefits of specifying such 
area as part of the critical habitat, unless she determines, based on 
the best scientific data available, that the failure to designate such 
area as critical habitat will result in the extinction of the species. 
In making that determination, 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.

Consideration of Economic Impacts

    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts of the proposed designation, we prepared a 
DEA (Industrial Economics Incorporated (IEc) 2012). The DEA, dated 
February 6, 2013, was made available for public review from May 9, 
2013, through June 10, 2013 (78 FR 27171), from August 27, 2013, 
through October 28, 2013 (78 FR 52894), and from May 14, 2014, to July 
14, 2014 (79 FR 27547). Following the close of the last comment period, 
an FEA was developed, taking into consideration the public comments and 
any new information (IEc 2013, entire). By analyzing economic impacts 
of the proposed designation, which differs from the final designation, 
the FEA does not capture the exact incremental impacts of the final 
designation. Therefore, a final summary memorandum has been prepared 
describing our revised forecast calculations (IEc 2014a and 2014b, 
entire).
    The intent of the FEA is to quantify the economic impacts of all 
potential conservation efforts for Neosho mucket and rabbitsfoot; some 
of these costs will likely be incurred regardless of whether we 
designate critical habitat (baseline). The economic impact of the 
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, considering protections already in place for 
the species (for example, under the Federal listing and other Federal, 
State, and local regulations). The baseline, therefore, represents the 
costs incurred regardless of whether critical habitat is designated. 
The ``with critical habitat'' scenario describes the incremental 
impacts associated specifically with the proposed designation of 
critical habitat for the species. The incremental conservation efforts 
and associated impacts are those not expected to occur absent the 
designation of critical habitat for the species. In other words, the 
incremental costs are those attributable solely to the designation of 
critical

[[Page 24726]]

habitat above and beyond the baseline costs; these are the costs we 
consider in the final designation of critical habitat. The analysis 
looks retrospectively at baseline impacts incurred since the species 
was listed, and forecasts both baseline and incremental impacts likely 
to occur with the designation of critical habitat.
    The FEA also addresses how potential economic impacts are likely to 
be distributed, including an assessment of any local or regional 
impacts of habitat conservation and the potential effects of 
conservation activities on government agencies, private businesses, and 
individuals. The FEA measures lost economic efficiency associated with 
residential and commercial development and public projects and 
activities, such as economic impacts on water management and 
transportation projects, Federal lands, small entities, and the energy 
industry. Decisionmakers can use this information to assess whether the 
effects of the proposed designation might unduly burden a particular 
group or economic sector. Finally, the FEA looks retrospectively at 
costs that occurred between the publication of the final listing rule 
and the final rule designating critical habitat, and considers those 
costs that may occur in the 20 years following the designation of 
critical habitat, which was determined to be the appropriate period for 
analysis because limited planning information was available for most 
activities to forecast activity levels for projects beyond a 20-year 
timeframe. The FEA quantifies economic impacts of Neosho mucket and 
rabbitsfoot conservation efforts associated with the following 
categories of activity:
    (1) Water flow management;
    (2) Water quality management;
    (3) Timber, agriculture, and grazing;
    (4) Mining;
    (5) Oil and gas;
    (6) Transportation and utilities;
    (7) Development and recreation; and
    (8) Other activities (such as animal and biological control, 
prescribed burns, land clearing, habitat or shoreline restoration, 
among others).
    Baseline protections for the Neosho mucket and rabbitsfoot address 
a broad range of threats within a significant portion of the critical 
habitat area. The key conclusion for the incremental analysis is that 
critical habitat designation is not expected to generate additional 
requests for conservation efforts in any of the proposed critical 
habitat units. All critical habitat units are occupied by at least one 
of the two mussel species. In addition, incremental economic impacts of 
the designation will likely be limited to additional administrative 
costs to the Service, Federal agencies, and third parties. This result 
is attributed to the following key findings: (1) Baseline protections 
exist for Neosho mucket and rabbitsfoot, and (2) all designated 
critical habitat is occupied by at least one of the two mussel species.
    In total, the incremental impacts to all economic activities are 
estimated to be $4,400,000 over the 20-year timeframe, or $290,000 on 
an annualized basis (assuming a 7 percent discount rate) for the 
proposed critical habitat. Units RF2 (Verdigris River) and NM1 
(Illinois River) are expected to generate the largest incremental 
impacts, due to section 7 consultations expected to occur in all 
categories within these units. The majority of incremental impacts 
across all units are related to transportation and utilities, followed 
by timber, agriculture, and grazing. Incremental costs associated with 
transportation are estimated to be $1,400,000 over the 20-year 
timeframe; $960,000 is associated with timber, agriculture, and grazing 
over the 20-year timeframe.
    Incremental conservation costs of avoiding impacts to mussels and 
their habitat will vary depending on a variety of factors, including, 
but not limited to, location, size, and type of project being proposed, 
as well as the extent to which mussels occur in the project area. These 
include the costs for mussel surveys, relocation, monitoring and 
reporting, mussel propagation and population augmentation, best 
management practices for erosion and sedimentation controls, timing 
restrictions, and limiting project scope, or in-stream work.

Exclusions Based on Economic Impacts

    Our economic analysis did not identify any disproportionate costs 
that are likely to result from the designation. Consequently, the 
Secretary is not exercising her discretion to exclude any areas from 
this designation of critical habitat for the Neosho mucket and 
rabbitsfoot based on economic impacts.
    A copy of the FEA with supporting documents may be obtained by 
contacting the Arkansas Ecological Services Field Office (see 
ADDRESSES, above) or by downloading from the Internet at http://www.regulations.gov.

Exclusions Based on National Security Impacts

    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense or Department of 
Homeland Security where a national security impact might exist. In 
preparing this final rule, we have determined that no lands within the 
designated critical habitat for the Neosho mucket and rabbitsfoot are 
owned or managed by the Department of Defense or Department of Homeland 
Security, and, therefore, we anticipate no impact on national security 
or homeland security. Consequently, the Secretary is not exercising her 
discretion to exclude any areas from this final designation based on 
impacts on national security or homeland security.

Exclusions Based on Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts resulting from the designation of critical habitat. We consider 
a number of factors, including whether the landowners have developed 
any HCPs or other management plans for the area, or whether there are 
conservation partnerships that would be encouraged by designation of, 
or exclusion from, critical habitat. In addition, we look at any tribal 
issues, and consider the government-to-government relationship of the 
United States with tribal entities. We also consider any social impacts 
that might occur because of the designation.
    In preparing this final rule, we have determined that there are 
currently no permitted HCPs or other approved management plans for 
Neosho mucket and rabbitsfoot, and the final designation includes only 
tribal jurisdictional areas, not lands managed by any Tribe or trust 
resources. We anticipate no effect to tribal lands, partnerships, or 
HCPs from this critical habitat designation. Accordingly, the Secretary 
is not exercising her discretion to exclude any areas from this final 
designation based on other relevant impacts.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) will review all significant rules. The Office 
of Information and Regulatory Affairs has determined that this rule is 
not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that

[[Page 24727]]

reduce burdens and maintain flexibility and freedom of choice for the 
public where these approaches are relevant, feasible, and consistent 
with regulatory objectives. 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 rule in a manner consistent 
with these requirements.

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 
(SBREFA) of 1996 (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 (small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of an 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; as well as small businesses. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than $27.5 million in 
annual business, special trade contractors doing less than $11.5 
million in annual business, and agricultural businesses with annual 
sales less than $750,000. To determine if potential economic impacts on 
these small entities are significant, we consider the types of 
activities that might trigger regulatory impacts under this rule, as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    The Service's current understanding of the requirements under the 
RFA, as amended, and following recent court decisions, is that Federal 
agencies are only required to evaluate the potential incremental 
impacts of rulemaking on those entities directly regulated by the 
rulemaking itself, and therefore, not required 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 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 will be directly regulated by this designation. There 
is no requirement under RFA to evaluate the potential impacts to 
entities not directly regulated. Moreover, Federal agencies are not 
small entities. Therefore, because no small entities are directly 
regulated by this rulemaking, the Service certifies that this final 
critical habitat designation will not have a significant economic 
impact on a substantial number of small entities.
    During the development of this final rule, we reviewed and 
evaluated all information submitted during the comment period that may 
pertain to our consideration of the probable incremental economic 
impacts of this critical habitat designation. Based on this 
information, we affirm our certification that this final critical 
habitat designation will not have a significant economic impact on a 
substantial number of small entities, and a regulatory flexibility 
analysis is not required.

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

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. OMB has provided guidance for implementing this 
Executive Order that outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared to not taking the regulatory 
action under consideration. Appendix A of the FEA discusses the 
potential for critical habitat to affect utilities through the 
additional cost of considering adverse modification in section 7 
consultation. Critical habitat designation for the mussels is 
anticipated to affect oil and gas activities. The Service does not 
anticipate consulting with the Federal Energy Regulatory Commission on 
hydropower operations as a result of the designation. Impacts to oil 
and gas development are limited to the administrative costs of 
consultation, and, therefore, reductions in oil and natural gas 
production are not anticipated. This analysis projects approximately 14 
actions each year on oil and gas related activities, totaling 
approximately $7,000 per year. The magnitude of these consultation 
costs is not anticipated to increase the cost of energy production or 
distribution in the United States in excess of one percent.
    The economic analysis finds that none of the nine outcomes is 
relevant to this analysis. Thus, based on information in the economic 
analysis, energy-related impacts associated with Neosho mucket and 
rabbitsfoot conservation activities within critical habitat are not 
expected. As such, the designation of critical habitat is not expected 
to significantly affect energy supplies, distribution, or use. 
Therefore, this action is not a significant energy action, and no 
Statement of Energy Effects is required.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (1) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, 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

[[Page 24728]]

otherwise decrease, the Federal Government's responsibility to provide 
funding,'' and the State, local, or tribal governments ``lack 
authority'' to adjust accordingly. At the time of enactment, these 
entitlement programs were: Medicaid; Aid to Families with Dependent 
Children work programs; Child Nutrition; Food Stamps; Social Services 
Block Grants; Vocational Rehabilitation State Grants; Foster Care, 
Adoption Assistance, and Independent Living; Family Support Welfare 
Services; and Child Support Enforcement. ``Federal private sector 
mandate'' includes a regulation that ``would impose an enforceable duty 
upon the private sector, except (i) a condition of Federal assistance 
or (ii) a duty arising from participation in a voluntary Federal 
program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule will significantly or uniquely 
affect small governments because it would not produce a Federal mandate 
of $100 million or greater 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 
programs having Federal funds, permits, or other authorized activities 
must ensure that their actions will not adversely affect the critical 
habitat. The FEA concludes incremental impacts may occur due to 
administrative costs of section 7 consultations for activities related 
to water flow management; water quality; timber, agriculture, and 
grazing; mining; oil and gas; transportation and utilities; development 
and recreation; and other activities; however, these are not expected 
to significantly affect small government entities. Consequently, we do 
not believe that the critical habitat designation will significantly or 
uniquely affect small government entities. As such, a Small Government 
Agency Plan is not required.

Takings--Executive Order 12630

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for Neosho mucket and rabbitsfoot in a 
takings implications assessment. As discussed above, the designation of 
critical habitat affects only Federal actions. Although private parties 
that receive Federal funding, assistance, or 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.
    The majority of the designation occurs in navigable waterways whose 
stream bottoms are owned by the States. Impacts of this designation 
could occur on non-Federal riparian lands adjacent to, but not included 
in, the critical habitat designation where there is Federal involvement 
(such as Federal funding or permitting) subject to section 7 of the 
Act, or where a decision on a proposed action on federally owned land 
could affect economic activity on adjoining non-Federal land. However, 
in general, we believe that the takings implications associated with 
this critical habitat designation will be insignificant. Based on the 
best available information, the takings implications assessment 
concludes that this designation of critical habitat for the Neosho 
mucket and rabbitsfoot does not pose significant takings implications.

Federalism--Executive Order 13132

    In accordance with Executive Order 13132 (Federalism), this 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 critical habitat designation 
with appropriate State resource agencies in Alabama, Arkansas, 
Illinois, Indiana, Kansas, Kentucky, Mississippi, Missouri, Ohio, 
Oklahoma, Pennsylvania, and Tennessee. We received comments from 
Kansas, Illinois, Ohio, Oklahoma, and Pennsylvania and have addressed 
them in the Summary of Comments and Recommendations and Summary of 
Changes from Proposed Rule sections of this rule. 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, this rule does not have 
substantial direct effects either on the States, or on the relationship 
between the national government and the States, or on the distribution 
of powers and responsibilities among the various levels of government. 
The 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 to 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 
local governments in long-range planning (because these local 
governments 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) 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 Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule does not 
unduly burden the judicial system and that it meets the applicable 
standards set forth in sections 3(a) and 3(b)(2) of the Order. We are 
designating critical habitat in accordance with the provisions of the 
Act. To assist the public in understanding the habitat needs of the 
species, the rule identifies the elements of physical or biological 
features essential to the conservation of the Neosho mucket and 
rabbitsfoot. The designated areas of critical habitat are presented on 
maps, and the rule provides several options for the

[[Page 24729]]

interested public to obtain more detailed location information, if 
desired.

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

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

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

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to NEPA in connection with designating 
critical habitat under the Act. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This position was upheld by the U.S. Court of 
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). However, when the 
range of the species includes States within the Tenth Circuit, such as 
that of Neosho mucket and rabbitsfoot, under the Tenth Circuit ruling 
in Catron County Board of Commissioners v. U.S. Fish and Wildlife 
Service, 75 F.3d 1429 (10th Cir. 1996), we undertake a NEPA analysis 
for critical habitat designation and notify the public of the 
availability of the draft environmental assessment for a proposal when 
it is finished.
    We performed this NEPA analysis and made the draft environmental 
assessment available for public comment on May 9, 2013 (78 FR 27171), 
August 27, 2013 (78 FR 52894), and May 14, 2014 (79 FR 27547). The 
final environmental assessment has been completed and is available with 
the publication of this final rule. You may obtain a copy of the final 
environmental assessment online at http://www.regulations.gov, by mail 
from the Arkansas Ecological Services Field Office (see ADDRESSES, 
above), or by visiting the office Web site at http://www.fws.gov/arkansas-es/.
    The final environmental assessment included a detailed analysis of 
the potential effects of the proposed critical habitat designation on 
resource categories, including:
    (1) Water flow management;
    (2) Water quality management;
    (3) Timber, agriculture, and grazing;
    (4) Mining;
    (5) Oil and gas;
    (6) Transportation and utilities;
    (7) Development and recreation; and
    (8) Other activities (such as animal and biological control, 
prescribed burns, land clearing, habitat or shoreline restoration, 
among others, environmental justice, and cumulative effects).
    The scope of the effects were primarily limited to those activities 
involving Federal actions, because critical habitat designation does 
not have any impact on the environment other than through the Act's 
section 7 consultation process conducted for Federal actions. Private 
actions that have no Federal involvement are not affected by critical 
habitat designation.
    Based on the review and evaluation of the information contained in 
the environmental assessment, we determined that the designation of 
critical habitat for the Neosho mucket and rabbitsfoot does not 
constitute a major Federal action having a significant impact on the 
human environment under the meaning of section 102(2)(c) of NEPA, and 
so an environmental impact statement is not required.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination With Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial 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 determined that there are no tribal lands occupied by the Neosho 
mucket and rabbitsfoot at the time of listing that contain the physical 
or biological features essential to conservation of the species, and no 
tribal lands unoccupied by the Neosho mucket and rabbitsfoot that are 
essential for the conservation of the species. Therefore, we are not 
designating critical habitat for the Neosho mucket and rabbitsfoot on 
tribal lands.

References Cited

    A complete list of all references cited is available on the 
Internet at http://www.regulations.gov and upon request from the 
Arkansas Ecological Services Field Office (see FOR FURTHER INFORMATION 
CONTACT).

Authors

    The primary authors of this rulemaking are the staff members of the 
Arkansas Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

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

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


0
2. Amend Sec.  17.11(h) by revising the entries for ``Mucket, Neosho'' 
and ``Rabbitsfoot'' under CLAMS in the List of Endangered and 
Threatened Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 24730]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              Clams
 
                                                                      * * * * * * *
Mucket, Neosho...................  Lampsilis             U.S.A. (AR, KS, MO,  NA.................  E                       816     17.95(f)           NA
                                    rafinesqueana.        OK).
 
                                                                      * * * * * * *
Rabbitsfoot......................  Quadrula cylindrica   U.S.A. (AL, AR, GA,  NA.................  T                       816     17.95(f)           NA
                                    cylindrica.           IN, IL, KS, KY,
                                                          LA, MO, MS, OH,
                                                          OK, PA, TN, WV).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *

0
3. In Sec.  17.95, amend paragraph (f) by adding entries for ``Neosho 
Mucket (Lampsilis rafinesqueana)'' and ``Rabbitsfoot (Quadrula 
cylindrica cylindrica)'', immediately following the entry for 
``Slabside Pearlymussel (Pleuronaia dolabelloides),'' to read as 
follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (f) Clams and Snails.
* * * * *
Neosho Mucket (Lampsilis rafinesqueana)
    (1) Critical habitat units are depicted for the Neosho mucket on 
the maps below in the following Counties:
    (i) Benton and Washington Counties, Arkansas;
    (ii) Allen, Cherokee, Coffey, Elk, Greenwood, Labette, Montgomery, 
Neosho, Wilson, and Woodson Counties, Kansas;
    (iii) Jasper, Lawrence, McDonald, and Newton Counties, Missouri; 
and
    (iv) Adair, Cherokee, and Delaware Counties, Oklahoma.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of the 
Neosho mucket consist of five components:
    (i) Geomorphically stable river channels and banks (channels that 
maintain lateral dimensions, longitudinal profiles, and sinuosity 
patterns over time without an aggrading or degrading bed elevation) 
with habitats that support a diversity of freshwater mussel and native 
fish (such as stable riffles, sometimes with runs, and mid-channel 
island habitats that provide flow refuges consisting of gravel and sand 
substrates with low to moderate amounts of fine sediment and attached 
filamentous algae).
    (ii) A hydrologic flow regime (the severity, frequency, duration, 
and seasonality of discharge over time) necessary to maintain benthic 
habitats where the species are found and to maintain connectivity of 
rivers with the floodplain, allowing the exchange of nutrients and 
sediment for maintenance of the mussel's and fish host's habitat, food 
availability, spawning habitat for native fishes, and the ability for 
newly transformed juveniles to settle and become established in their 
habitats.
    (iii) Water and sediment quality (including, but not limited to, 
conductivity, hardness, turbidity, temperature, pH, ammonia, heavy 
metals, and chemical constituents) necessary to sustain natural 
physiological processes for normal behavior, growth, and viability of 
all life stages.
    (iv) The occurrence of natural fish assemblages, reflected by fish 
species richness, relative abundance, and community composition, for 
each inhabited river or creek that will serve as an indication of 
appropriate presence and abundance of fish hosts necessary for 
recruitment of the Neosho mucket. Suitable fish hosts for Neosho mucket 
glochidia include smallmouth bass (Micropterus dolomieu), largemouth 
bass (Micropterus salmoides), and spotted bass (Micropterus 
punctulatus).
    (v) Competitive or predaceous invasive (nonnative) species in 
quantities low enough to have minimal effect on survival of freshwater 
mussels.
    (3) Critical habitat does not include manmade structures (such as 
dams, piers and docks, bridges, or other similar structures) within the 
legal boundaries on June 1, 2015.
    (4) Critical habitat map units. Data layers defining map units were 
developed using ESRI ArcGIS mapping software along with various spatial 
data layers. Critical habitat unit upstream and downstream limits were 
delineated at the nearest road crossing or stream confluence of each 
occupied reach. Data layers defining map units were created with U.S. 
Geological Survey National Hydrography Dataset (NHD) Medium Flowline 
data. ArcGIS was also used to calculate river kilometers (rkm) and 
river miles (rmi) from the NHD dataset, and it was used to determine 
longitude and latitude coordinates in decimal degrees. The projection 
used in mapping and calculating distances and locations within the 
units was North American Albers Equal Area Conic, NAD 83. The maps in 
this entry, as modified by any accompanying regulatory text, establish 
the boundaries of the critical habitat designation. The coordinates, 
plot points, or both on which each map is based are available to the 
public at the Service's Internet site (http://www.fws.gov/arkansas-es/te_listing.html), the Federal eRulemaking Portal (http://www.regulations.gov at Docket No. FWS-R4-ES-2013-0007), and at the 
field office responsible for this designation. You may obtain field 
office location information by contacting one of the Service regional 
offices, the addresses of which are listed at 50 CFR 2.2.

[[Page 24731]]

    (5) Note: Index map of all critical habitat units for the Neosho 
mucket follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.007

    (6) Unit NM1: Illinois River--Benton and Washington Counties, 
Arkansas; and Adair, Cherokee, and Delaware Counties, Oklahoma.
    (i) General Description: Unit NM1 includes 146.1 rkm (90.8 rmi) of 
the Illinois River from the Muddy Fork Illinois River confluence south 
of Savoy, Washington County, Arkansas, downstream to the Baron Creek 
confluence southeast of Tahlequah, Cherokee County, Oklahoma.

[[Page 24732]]

    (ii) Map of Unit NM1 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.008
    
    (7) Unit NM2: Elk River--McDonald County, Missouri; and Delaware 
County, Oklahoma.
    (i) General Description: Unit NM2 includes 20.3 rkm (12.6 rmi) of 
the Elk River from Missouri Highway 59 at Noel, McDonald County, 
Missouri, to the confluence of Buffalo Creek immediately downstream of 
the Oklahoma and Missouri State line, Delaware County, Oklahoma.

[[Page 24733]]

    (ii) Map of Unit NM2 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.009
    
    (8) Unit NM3: Shoal Creek--Cherokee County, Kansas; and Newton 
County, Missouri.
    (i) General Description: Unit NM3 includes 75.8 rkm (47.1 rmi) of 
Shoal Creek from Missouri Highway W near Ritchey, Newton County, 
Missouri, to Empire Lake where inundation begins in Cherokee County, 
Kansas.

[[Page 24734]]

    (ii) Map of Unit NM3 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.010
    
    (9) Unit NM4: Spring River--Jasper and Lawrence Counties, Missouri; 
and Cherokee County, Kansas.
    (i) General Description: Unit NM4 includes 102.3 rkm (63.6 rmi) of 
the Spring River from Missouri Highway 97 north of Stotts City, 
Lawrence County, Missouri, downstream to the confluence of Turkey Creek 
north of Empire, Cherokee County, Kansas.

[[Page 24735]]

    (ii) Map of Unit NM4 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.011
    
    (10) Unit NM5: North Fork Spring River--Jasper County, Missouri.
    (i) General Description: Unit NM5 includes 16.4 rkm (10.2 rmi) of 
the North Fork Spring River from the confluence of Buck Branch 
southwest of Jasper, Missouri, downstream to its confluence with the 
Spring River near Purcell, Jasper County, Missouri.

[[Page 24736]]

    (ii) Map of Unit NM5 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.012
    
    (11) Unit NM6: Fall River--Elk, Greenwood, and Wilson Counties, 
Kansas; Verdigris River--Montgomery and Wilson Counties, Kansas.
    (i) General Description: Unit NM6 includes a total of 171.1 rkm 
(106.3 rmi) including 90.4 rkm (56.2 rmi) of the Fall River from Fall 
River Lake dam northwest of Fall River, Greenwood County, Kansas, 
downstream to its confluence with the Verdigris River near Neodesha, 
Wilson County, Kansas. Unit NM6 also includes 80.6 rkm (50.1 rmi) of 
the Verdigris River from Kansas Highway 39 near Benedict, Wilson 
County, Kansas, downstream to the Elk River confluence near 
Independence, Montgomery County, Kansas.

[[Page 24737]]

    (ii) Map of Unit NM6 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.013
    
    (12) Unit NM7: Neosho River--Allen, Cherokee, Coffey, Labette, 
Neosho, and Woodson Counties, Kansas.
    (i) General Description: Unit NM7 includes 244.5 rkm (151.9 rmi) of 
the Neosho River from Kansas Highway 58 west of LeRoy, Coffey County, 
Kansas, downstream to the Kansas and Oklahoma State line, Cherokee 
County, Kansas.

[[Page 24738]]

    (ii) Map of Unit NM7 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.014
    
Rabbitsfoot (Quadrula cylindrica cylindrica)
    (1) Critical habitat units are depicted for rabbitsfoot on the maps 
below in the following Counties:
    (i) Colbert, Jackson, Madison, and Marshall Counties, Alabama;
    (ii) Arkansas, Ashley, Bradley, Clark, Cleburne, Cleveland, Drew, 
Hot Spring, Independence, Izard, Jackson, Lawrence, Little River, 
Marion, Monroe, Newton, Ouachita, Randolph, Searcy, Sevier, Sharp, Van 
Buren, White, and Woodruff Counties, Arkansas;
    (iii) Massac, Pulaski, and Vermilion Counties, Illinois;
    (iv) Carroll, Pulaski, Tippecanoe, and White Counties, Indiana;
    (v) Allen and Cherokee Counties, Kansas;
    (vi) Ballard, Edmonson, Green, Hart, Livingston, Logan, Marshall, 
McCracken, and Taylor Counties, Kentucky;
    (vii) Hinds, Sunflower, Tishomingo, and Warren Counties, 
Mississippi;
    (viii) Jasper, Madison, and Wayne Counties, Missouri;
    (ix) Coshocton, Madison, Union, and Williams Counties, Ohio;
    (x) McCurtain and Rogers Counties, Oklahoma;
    (xi) Crawford, Erie, Mercer, and Venango Counties, Pennsylvania; 
and
    (xii) Hardin, Hickman, Humphreys, Marshall, Maury, Montgomery, 
Perry, and Robertson Counties, Tennessee.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the

[[Page 24739]]

conservation of the rabbitsfoot consist of five components:
    (i) Geomorphically stable river channels and banks (channels that 
maintain lateral dimensions, longitudinal profiles, and sinuosity 
patterns over time without an aggrading or degrading bed elevation) 
with habitats that support a diversity of freshwater mussel and native 
fish (such as stable riffles, sometimes with runs, and mid-channel 
island habitats that provide flow refuges consisting of gravel and sand 
substrates with low to moderate amounts of fine sediment and attached 
filamentous algae).
    (ii) A hydrologic flow regime (the severity, frequency, duration, 
and seasonality of discharge over time) necessary to maintain benthic 
habitats where the species are found and to maintain connectivity of 
rivers with the floodplain, allowing the exchange of nutrients and 
sediment for maintenance of the mussel's and fish host's habitat, food 
availability, spawning habitat for native fishes, and the ability for 
newly transformed juveniles to settle and become established in their 
habitats.
    (iii) Water and sediment quality (including, but not limited to, 
conductivity, hardness, turbidity, temperature, pH, ammonia, heavy 
metals, and chemical constituents) necessary to sustain natural 
physiological processes for normal behavior, growth, and viability of 
all life stages.
    (iv) The occurrence of natural fish assemblages, reflected by fish 
species richness, relative abundance, and community composition, for 
each inhabited river or creek that will serve as an indication of 
appropriate presence and abundance of fish hosts necessary for 
recruitment of the rabbitsfoot. Suitable fish hosts for rabbitsfoot may 
include, but are not limited to, blacktail shiner (Cyprinella venusta) 
from the Black and Little River and cardinal shiner (Luxilus 
cardinalis), red shiner (C. lutrensis), spotfin shiner (C. spiloptera), 
bluntface shiner (C. camura), rainbow darter (Etheostoma caeruleum), 
rosyface shiner (Notropis rubellus), striped shiner (L. 
chrysocephalus), and emerald shiner (N. atherinoides).
    (v) Competitive or predaceous invasive (nonnative) species in 
quantities low enough to have minimal effect on survival of freshwater 
mussels.
    (3) Critical habitat does not include manmade structures (such as 
dams, piers and docks, bridges, or other similar structures) within the 
legal boundaries on June 1, 2015.
    (4) Critical habitat map units. Data layers defining map units were 
developed using ESRI ArcGIS mapping software along with various spatial 
data layers. Critical habitat unit upstream and downstream limits were 
delineated at the nearest road crossing or stream confluence of each 
occupied reach. Data layers defining map units were created with U.S. 
Geological Survey National Hydrography Dataset (NHD) Medium Flowline 
data. ArcGIS was also used to calculate river kilometers (rkm) and 
river miles (rmi) from the NHD dataset, and it was used to determine 
longitude and latitude coordinates in decimal degrees. The projection 
used in mapping and calculating distances and locations within the 
units was North American Albers Equal Area Conic, NAD 83. The maps in 
this entry, as modified by any accompanying regulatory text, establish 
the boundaries of the critical habitat designation. The coordinates, 
plot points, or both on which each map is based are available to the 
public at the Service's Internet site (http://www.fws.gov/arkansas-es/te_listing.html), the Federal eRulemaking Portal (http://www.regulations.gov at Docket No. FWS-R4-ES-2013-0007), and at the 
field office responsible for this designation. You may obtain field 
office location information by contacting one of the Service regional 
offices, the addresses of which are listed at 50 CFR 2.2.

[[Page 24740]]

    (5) Note: Index map of all critical habitat units for the 
rabbitsfoot follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.015

    (6) Unit RF1: Spring River--Jasper County, Missouri; and Cherokee 
County, Kansas.
    (i) General Description: Unit RF1 includes 56.5 rkm (35.1 rmi) of 
the Spring River from Missouri Highway 96 at Carthage, Jasper County, 
Missouri, downstream to the confluence of Turkey Creek north of Empire, 
Cherokee County, Kansas.

[[Page 24741]]

    (ii) Map of Unit RF1 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.016
    
    (7) Unit RF2: Verdigris River--Rogers County, Oklahoma.
    (i) General Description: Unit RF2 includes 38.0 rkm (23.6 rmi) of 
the Verdigris River from Oologah Lake dam north of Claremore, Oklahoma, 
downstream to Oklahoma Highway 266 northwest of Catoosa, Rogers County, 
Oklahoma.

[[Page 24742]]

    (ii) Map of Unit RF2 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.017
    
    (8) Unit RF3: Neosho River--Allen County, Kansas.
    (i) General Description: Unit RF3 includes 26.6 rkm (16.5 rmi) of 
the Neosho River from the Deer Creek confluence northwest of Iola, 
Kansas, downstream to the confluence of Owl Creek southwest of 
Humboldt, Allen County, Kansas.

[[Page 24743]]

    (ii) Map of Unit RF3 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.018
    
    (9) Unit RF4a: Ouachita River--Clark and Hot Spring Counties, 
Arkansas.
    (i) General Description: Unit RF4a includes 22.7 rkm (14.1 rmi) of 
the Ouachita River from the Tenmile Creek confluence north of Donaldson 
downstream to the Caddo River confluence near Caddo Valley, Hot Spring 
and Clark Counties, Arkansas.

[[Page 24744]]

    (ii) Map of Unit RF4a follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.019
    
    (10) Unit RF4b: Ouachita River--Ouachita County, Arkansas.
    (i) General Description: Unit RF4b includes 43.0 rkm (26.7 rmi) of 
the Ouachita River from the Little Missouri River confluence downstream 
to U.S. Highway 79 at Camden, Ouachita County, Arkansas.

[[Page 24745]]

    (ii) Map of Unit RF4b follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.020
    
    (11) Unit RF5: Saline River--Ashley, Bradley, Cleveland, and Drew 
Counties, Arkansas.
    (i) General Description: Unit RF5 includes 119.4 rkm (74.2 rmi) of 
the Saline River from the Frazier Creek confluence near Mount Elba, 
Cleveland County, Arkansas, to the Mill Creek confluence near 
Stillions, Ashley and Bradley Counties, Arkansas.

[[Page 24746]]

    (ii) Map of Unit RF5 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.021
    
    (12) Unit RF6: Little River--McCurtain County, Oklahoma; and Little 
River and Sevier Counties, Arkansas.
    (i) General Description: Unit RF6 includes 139.7 rkm (86.8 rmi) of 
the Little River from the Glover River confluence northwest of Idabel, 
McCurtain County, Oklahoma, downstream to U.S. Highway 71 north of 
Wilton, Little River and Sevier Counties, Arkansas.

[[Page 24747]]

    (ii) Map of Unit RF6 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.022
    
    (13) Unit RF7: Middle Fork Little Red River--Cleburne and Van Buren 
Counties, Arkansas.
    (i) General Description: Unit RF7 includes 24.8 rkm (15.4 rmi) of 
the Middle Fork Little Red River from the confluence of Little Tick 
Creek north of Shirley, Arkansas, downstream to Greers Ferry Reservoir 
(where inundation begins), Van Buren County, Arkansas.

[[Page 24748]]

    (ii) Map of Unit RF7 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.023
    
    (14) Unit RF8a: White River--Independence, Jackson, White, and 
Woodruff Counties, Arkansas.
    (i) General Description: Unit RF8a includes 188.3 rkm (117.0 rmi) 
of the White River from the Batesville Dam at Batesville, Independence 
County, Arkansas, downstream to the Little Red River confluence north 
of Georgetown, White, and Woodruff Counties, Arkansas.

[[Page 24749]]

    (ii) Map of Unit RF8a follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.024
    
    (15) Unit RF8b: White River--Arkansas and Monroe Counties, 
Arkansas.
    (i) General Description: Unit RF8b includes 68.9 rkm (42.8 rmi) of 
the White River from U.S. Highway 79 at Clarendon, Monroe County, 
Arkansas, downstream to Arkansas Highway 1 near St. Charles, Arkansas 
County, Arkansas.

[[Page 24750]]

    (ii) Map of Unit RF8b follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.025
    
    (16) Unit RF9: Black River--Lawrence and Randolph Counties, 
Arkansas.
    (i) General Description: Unit RF9 includes 51.2 rkm (31.8 rmi) of 
the Black River from U.S. Highway 67 at Pocahontas, Randolph County, 
Arkansas, downstream to the Flat Creek confluence southeast of 
Powhatan, Lawrence County, Arkansas.

[[Page 24751]]

    (ii) Map of Unit RF9 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.026
    
    (17) Unit RF10: Spring River--Lawrence, Randolph, and Sharp 
Counties, Arkansas.
    (i) General Description: Unit RF10 includes 51.5 rkm (32.0 rmi) of 
the Spring River from the Ott Creek confluence southwest of Hardy in 
Sharp County, Arkansas, downstream to its confluence with the Black 
River east of Black Rock, Lawrence and Randolph Counties, Arkansas.

[[Page 24752]]

    (ii) Map of Unit RF10 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.027
    
    (18) Unit RF11: Strawberry River--Independence, Izard, Lawrence, 
and Sharp Counties, Arkansas.
    (i) General Description: Unit RF11 includes 123.8 rkm (76.9 rmi) of 
the Strawberry River from Arkansas Highway 56 south of Horseshoe Bend, 
Izard County, Arkansas, downstream to its confluence with the Black 
River southeast of Strawberry, Lawrence County, Arkansas.

[[Page 24753]]

    (ii) Map of Unit RF11 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.028
    
    (19) Unit RF12: Buffalo River--Marion, Newton, and Searcy Counties, 
Arkansas.
    (i) General Description: Unit RF12 includes 113.6 rkm (70.6 rmi) of 
the Buffalo River from the Cove Creek confluence southeast of Erbie, 
Newton County, Arkansas, downstream to U.S. Highway 65 west of Gilbert, 
Searcy County, Arkansas, and Arkansas Highway 14 southeast of Mull, 
Arkansas, downstream to the Leatherwood Creek confluence in the Lower 
Buffalo Wilderness Area, Arkansas.

[[Page 24754]]

    (ii) Map of Unit RF12 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.029
    
    (20) Unit RF13: St. Francis River--Madison and Wayne Counties, 
Missouri.
    (i) General Description: Unit RF13 includes 64.3 rkm (40.0 rmi) of 
the St. Francis River from the Twelvemile Creek confluence west of 
Saco, Madison County, Missouri, downstream to Lake Wappepello (where 
inundation begins), Wayne County, Missouri.

[[Page 24755]]

    (ii) Map of Unit RF13 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.030
    
    (21) Unit RF14: Big Sunflower River--Sunflower County, Mississippi.
    (i) General Description: Unit RF14 includes 51.5 rkm (32.0 rmi) of 
the Big Sunflower River from Mississippi Highway 442 west of 
Doddsville, Mississippi, downstream to the Quiver River confluence east 
of Indianola, Sunflower County, Mississippi.

[[Page 24756]]

    (ii) Map of Unit RF14 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.031
    
    (22) Unit RF15: Bear Creek--Tishomingo County, Mississippi; and 
Colbert County, Alabama.
    (i) General Description: Unit RF15 includes 49.7 rkm (30.9 rmi) of 
Bear Creek from the Alabama and Mississippi State line east of Golden, 
Tishomingo County, Mississippi, downstream to Alabama County Road 4 
southwest of Sutton Hill, Colbert County, Alabama (just upstream of 
Pickwick Lake).

[[Page 24757]]

    (ii) Map of Unit RF15 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.032
    
    (23) Unit RF16: Big Black River--Hinds and Warren Counties, 
Mississippi.
    (i) General Description: Unit RF16 includes 43.3 rkm (26.9 rmi) of 
the Big Black River from Porter Creek confluence west of Lynchburg, 
Hinds County, Mississippi, downstream to Mississippi Highway 27 west of 
Newman, Warren County, Mississippi.

[[Page 24758]]

    (ii) Map of Unit RF16 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.033
    
    (24) Unit RF17: Paint Rock River--Jackson, Madison, and Marshall 
Counties, Alabama.
    (i) General Description: Unit RF17 includes 81.0 rkm (50.3 rmi) of 
the Paint Rock River from the convergence of Estill Fork and Hurricane 
Creek north of Skyline, Jackson County, Alabama, downstream to U.S. 
Highway 431 south of New Hope, Madison and Marshall Counties, Alabama.

[[Page 24759]]

    (ii) Map of Unit RF17 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.034
    
    (25) Unit RF18: Duck River--Hickman, Humphreys, Marshall, Maury, 
and Perry Counties, Tennessee.
    (i) General Description: Unit RF18 includes 235.3 rkm (146.2 rmi) 
of the Duck River from Lillard Mill (rkm 288.1; rmi 179) west of 
Tennessee Highway 272, Marshall County, Tennessee, downstream to 
Interstate 40 near Bucksnort, Hickman County, Tennessee.

[[Page 24760]]

    (ii) Map of Unit RF18 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.035
    
    (26) Unit RF19a: Tennessee River--Hardin County, Tennessee.
    (i) General Description: Unit RF19a includes 26.7 rkm (16.6 rmi) of 
the Tennessee River from Pickwick Lake Dam downstream to U.S. Highway 
64 near Adamsville, Hardin County, Tennessee.

[[Page 24761]]

    (ii) Map of Unit RF19a follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.036
    
    (27) Unit RF19b: Tennessee River--Livingston, Marshall, and 
McCracken Counties, Kentucky.
    (i) General Description: Unit RF19b includes 35.6 rkm (22.1 rmi) of 
the Tennessee River from Kentucky Lake Dam, downstream to its 
confluence with the Ohio River, McCracken and Livingston Counties, 
Kentucky.

[[Page 24762]]

    (ii) Map of Unit RF19b follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.037
    
    (28) Unit RF20: Ohio River--Ballard, and McCracken Counties, 
Kentucky; Massac and Pulaski Counties, Illinois.
    (i) General Description: Unit RF20 includes 45.9 rkm (28.5 rmi) of 
the Ohio River from the Tennessee River confluence at the downstream 
extent of Owens Island downstream to Lock and Dam 53 near Olmstead, 
Illinois.

[[Page 24763]]

    (ii) Map of Unit RF20 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.038
    
    (29) Unit RF21: Green River--Edmonson, Green, Hart, and Taylor 
Counties, Kentucky.
    (i) General Description: Unit RF21 includes 175.6 rkm (109.1 rmi) 
of the Green River from Green River Lake Dam south of Campbellsville, 
Taylor County, Kentucky, downstream to Mammoth Cave National Park North 
Entrance Road in Mammoth Cave National Park, Kentucky.

[[Page 24764]]

    (ii) Map of Unit RF21 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.039
    
    (30) Unit RF22: French Creek--Crawford, Erie, Mercer, and Venango 
Counties, Pennsylvania.
    (i) General Description: Unit RF22 includes 120.4 rkm (74.8 rmi) of 
French Creek from Union City Reservoir Dam northeast of Union City, 
Erie County, Pennsylvania, downstream to its confluence with the 
Allegheny River near Franklin, Venango County, Pennsylvania.

[[Page 24765]]

    (ii) Map of Unit RF22 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.040
    
    (31) Unit RF23: Allegheny River--Venango County, Pennsylvania.
    (i) General Description: Unit RF23 includes 57.3 rkm (35.6 rmi) of 
the Allegheny River from the French Creek confluence near Franklin, 
Venango County, Pennsylvania, downstream to Interstate 80 near 
Emlenton, Venango County, Pennsylvania.

[[Page 24766]]

    (ii) Map of Unit RF23 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.041
    
    (32) Unit RF24: Muddy Creek--Crawford County, Pennsylvania.
    (i) General Description: Unit RF24 includes 20.1 rkm (12.5 rmi) of 
Muddy Creek from Pennsylvania Highway 77 near Little Cooley, Crawford 
County, Pennsylvania, downstream to its confluence with French Creek 
east of Cambridge Springs, Crawford County, Pennsylvania.

[[Page 24767]]

    (ii) Map of Unit RF24 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.042
    
    (33) Unit RF25: Tippecanoe River--Carroll, Pulaski, Tippecanoe, and 
White Counties, Indiana.
    (i) General Description: Unit RF25 includes 75.6 rkm (47.0 rmi) of 
the Tippecanoe River from Indiana Highway 14 near Winamac, Pulaski 
County, Indiana, downstream to its confluence with the Wabash River 
northeast of Battle Ground, Tippecanoe County, Indiana, excluding Lakes 
Shafer and Freeman and the stream reach between the two lakes.

[[Page 24768]]

    (ii) Map of Unit RF25 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.043
    
    (34) Unit RF26: Walhonding River--Coshocton County, Ohio.
    (i) General Description: Unit RF26 includes 17.5 rkm (10.9 rmi) of 
the Walhonding River from the convergence of the Kokosing and Mohican 
Rivers downstream to Ohio Highway 60 near Warsaw, Coshocton County, 
Ohio.

[[Page 24769]]

    (ii) Map of Unit RF26 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.044
    
    (35) Unit RF27: Little Darby Creek--Madison and Union Counties, 
Ohio.
    (i) General Description: Unit RF27 includes 33.3 rkm (20.7 rmi) of 
Little Darby Creek from Ohio Highway 161 near Chuckery, Union County, 
Ohio, downstream to U.S. Highway 40 near West Jefferson, Madison 
County, Ohio.

[[Page 24770]]

    (ii) Map of Unit RF27 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.045
    
    (36) Unit RF28: North Fork Vermilion River and Middle Branch North 
Fork Vermilion River, respectively--Vermilion County, Illinois.
    (i) General Description: Unit RF28 includes a total of 28.5 rkm 
(17.7 rmi). Unit RF28 includes 21.2 rkm (13.2 rmi) of the North Fork 
Vermilion River from the confluence of Middle Branch North Fork 
Vermilion River downstream to Illinois Highway 1 and U.S. Highway 136 
upstream of Lake Vermilion, Vermilion County, Illinois. Unit RF28 also 
includes 7.2 rkm (4.5 rmi) of the Middle Branch North Fork Vermilion 
River from the Jordan Creek confluence northwest of Alvin, Illinois, 
downstream to its confluence with North Fork Vermilion River west of 
Alvin, Vermilion County, Illinois.

[[Page 24771]]

    (ii) Map of Unit RF28 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.046
    
    (37) Unit RF29: Fish Creek--Williams County, Ohio.
    (i) General Description: Unit RF29 includes 7.7 rkm (4.8 rmi) of 
Fish Creek from Indiana and Ohio State line northwest of Edgerton, 
Ohio, downstream to its confluence with the St. Joseph's River north of 
Edgerton, Williams County, Ohio.

[[Page 24772]]

    (ii) Map of Unit RF29 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.047
    
    (38) Unit RF30: Red River--Logan County, Kentucky; and Montgomery 
and Robertson Counties, Tennessee.
    (i) General Description: Unit RF30 includes 50.2 rkm (31.2 rmi) of 
the Red River from the South Fork Red River confluence west of 
Adairville, Kentucky, downstream to the Sulphur Fork confluence 
southwest of Adams, Tennessee.

[[Page 24773]]

    (ii) Map of Unit RF30 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.048
    
    (39) Unit RF31: Shenango River--Mercer County, Pennsylvania.
    (i) General Description: Unit RF31 includes 24.8 rkm (15.4 rmi) of 
the Shenango River from Porter Road near Greenville, Pennsylvania, 
downstream to the point of inundation by Shenango River Lake near Big 
Bend, Mercer County, Pennsylvania.

[[Page 24774]]

    (ii) Map of Unit RF31 follows:
    [GRAPHIC] [TIFF OMITTED] TR30AP15.049
    
* * * * *

    Dated: February 25, 2015.
Michael J. Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2015-09200 Filed 4-29-15; 8:45 am]
 BILLING CODE 4310-55-P