Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Rules and Regulations 1647

References Cited

Breckon, G.J. and D.A. Kolterman. 1993.

Cordia bellonis Urban [Boraginaceae].

Final report under cooperative

agreement No. 14–16–0004–92–970

between U.S. Fish and Wildlife Service

and the University of Puerto Rico,

Mayaguez Campus. 14 pp.

Breckon, G.J. and D.A. Kolterman. 1994.

Cordia bellonis Urban [Boraginaceae].

Final report under cooperative

agreement No. 14–16–0004–93–973

between U.S. Fish and Wildlife Service

and the University of Puerto Rico,

Mayaguez Campus. 4 pp.

Britton, N.L. and P. Wilson. 1925. Scientific

survey of Porto Rico and the Virgin

Islands. Volume VI–Part 1. Botany of

Porto Rico and the Virgin Islands.

Descriptive flora-Spermatohyta

(continued). New York Academy of

Sciences, New York. 158 pp.

Federal Highway Administration and the

Puerto Rico Highway and Transportation

Authority. 1994. Biological Assessment

Relocation of PR–10 Utuado, Puerto

Rico. Unpublished Report.

Liogier, H.A. and L.F. Martorell. 1982. Flora

of Puerto Rico and adjacent islands: a

systematic synopsis. Editorial de la

Universidad de Puerto Rico, Rı ́o Piedras,

Puerto Rico. 342 pp.

Proctor, G. 1991. Puerto Rican plant species

of concern: Status and recommendations.

Miscellaneous Scientific Publication No.

2. Department of Natural and

Environmental Resources, San Juan,

Puerto Rico. Pp. 59–61.

Puerto Rico Highway and Transportation

Authority. 1995. Report to U.S. Fish and

Wildlife Service on plant species, Puerto

Rican boa and monitoring program of the

broad-winged hawk PR–10 Highway,

Arecibo-Utuado. Unpublished report.

Urban. 1899. Symb. Antill. 1:393.

Author

The primary author of this final rule is Ms.

Marelisa Rivera, Boquero ́n Field Office, U.S.

Fish and Wildlife Service, P.O. Box 491,

Boquero ́n, Puerto Rico 00622 (809/851–

7297).

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements, and

Transportation.

Regulation Promulgation

Accordingly, part 17, subchapter B of

chapter I, title 50 of the Code of Federal

Regulations, is amended as set forth

below:

PART 17—[AMENDED]

1. The authority citation for part 17

continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 16 U.S.C.

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500; unless otherwise noted.

2. Section 17.12(h) is amended by

adding the following, in alphabetical

order under FLOWERING PLANTS, to

the List of Endangered and Threatened

Plants to read as follows:

§ 17.12 Endangered and threatened plants.

* * * * *

(h) * * *

Species

Historic range Family Status When listed Critical

habitat

Special

rules Scientific name Common name

FLOWERING PLANTS

* * * * * * *

Cordia bellonis ......... None ........................ U.S.A. (PR) ............. Boraginaceae .......... E 601 NA NA

* * * * * * *

Dated: December 6, 1996.

John G. Rogers,

Acting Director, Fish and Wildlife Service.

[FR Doc. 97–564 Filed 1–9–97; 8:45 am]

BILLING CODE 4310–55–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AC64

Endangered and Threatened Wildlife

and Plants; Determination of

Endangered Status for the Cumberland

Elktoe, Oyster Mussel, Cumberlandian

Combshell, Purple Bean, and Rough

Rabbitsfoot

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: The Fish and Wildlife Service

(Service) determines endangered status

for five freshwater mussels—

Cumberland elktoe (Alasmidonta

atropurpurea), oyster mussel

(Epioblasma capsaeformis),

Cumberlandian combshell (Epioblasma

brevidens), purple bean (Villosa

perpurpurea), and rough rabbitsfoot

(Quadrula cylindrica strigillata)—under

the Endangered Species Act of 1973, as

amended (Act). All five species have

undergone significant reductions in

range and numbers. They now exist as

relatively small, isolated populations.

The Cumberland elktoe exists in very

localized portions of the Cumberland

River system in Kentucky and

Tennessee. The oyster mussel and

Cumberlandian combshell persist at

extremely low numbers in portions of

the Cumberland and Tennessee river

basins in Kentucky, Tennessee, and

Virginia. The purple bean and rough

rabbitsfoot currently survive in a few

river reaches in the upper Tennessee

River system in Tennessee and Virginia.

These species were eliminated from

much of their historic range by

impoundments. Presently, these species

and their habitats are being impacted by

deteriorated water quality, primarily

resulting from poor land-use practices.

Because the species have such restricted

ranges, they are vulnerable to toxic

chemical spills.

DATES: Effective February 10, 1997.

ADDRESSES: The complete

administrative file for this rule is

available for inspection, by

appointment, during normal business

hours at the U.S. Fish and Wildlife

Service, Asheville Field Office, 160

Zillicoa Street, Asheville, North

Carolina 28801.

FOR FURTHER INFORMATION CONTACT: Mr.

Richard G. Biggins at the above address,

or telephone 704/258–3939, Ext. 228.

SUPPLEMENTARY INFORMATION:

Background

Cumberland elktoe (Alasmidonta

atropurpurea)

The Cumberland elktoe, described by

Rafinesque (1831), has a thin but not

fragile shell. The shell’s surface is

smooth, somewhat shiny, and covered

with greenish rays. Young specimens

have a yellowish brown shell, and the

shells of adults are generally black. The

inside of the shell is shiny with a white,

bluish white, or sometimes peach or

salmon color (see Clarke (1981) for a
1648 Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Rules and Regulations

more complete description of the

species).

The Cumberland elktoe is endemic to

the Cumberland River system in

Tennessee and Kentucky and is

considered endangered in the State of

Kentucky (Kentucky State Nature

Preserves Commission (KSNPC) 1991).

Historic records exist from the

Cumberland River and from its

tributaries entering from the south

between the Big South Fork Cumberland

River upstream to Cumberland Falls.

Specimens have also been taken from

Marsh Creek above Cumberland Falls.

Old records of a related species,

Alasmidonta marginata, exist from

other creeks above Cumberland Falls;

and there is speculation that these

specimens were probably the

Cumberland elktoe (Gordon 1991).

Because the area above the falls has

been severely impacted by coal mining,

any populations of A. atropurpurea that

might have existed there were likely lost

(Gordon 1991). A record of one fresh

dead specimen exists from the Collins

River, Grundy County, Tennessee.

However, extensive searches of the

collection site and other sites in the

Collins River and adjacent rivers have

failed to find another specimen. If the

species did exist in the Collins River, it

has likely been extirpated.

Presently, three populations of the

Cumberland elktoe are known to persist.

The species survives in the middle

sections of Rock Creek, McCreary

County, Kentucky; the upper portions of

the Big South Fork Cumberland River

basin in McCreary County, Kentucky;

and Scott, Fentress, and Morgan

counties, Tennessee; and in Marsh

Creek, McCreary County, Kentucky

(Gordon 1991). Marsh Creek likely

contains the best surviving elktoe

population (Robert McCance, KSNPC, in

litt., 1994).

Any Cumberland elktoe populations

that may have existed in the main stem

of the Cumberland River were likely lost

when Wolf Creek Dam was completed.

Other tributary populations were likely

lost due to the impacts of coal mining,

pollution, and spills from oil wells. The

upper Big South Fork basin population

is threatened by coal mining runoff and

could also be threatened by

impoundments. The Marsh Creek

population has been adversely affected

and is still threatened by potential spills

from oil wells. The Rock Creek

population could be threatened by

logging. All three populations,

especially Rock Creek and Marsh Creek,

are restricted to such short stream

reaches that they could be eliminated by

naturally occurring events such as toxic

chemical spills.

Oyster mussel (Epioblasma

capsaeformis)

The oyster mussel (Lea 1834) has a

dull to sub-shiny yellowish- to greencolored shell with numerous narrow

dark green rays. The shells of females

are slightly inflated and quite thin

towards the shell’s posterior margin.

The inside of the shell is whitish to

bluish white in color (see Johnson

(1978) for a more complete description

of the species). The species is

considered endangered in the States of

Kentucky (KSNPC 1991) and Virginia

(Neves 1991; Sue Bruenderman,

Virginia Department of Game and

Inland Fisheries (VDGIF), in litt., 1992).

This species historically occurred

throughout much of the Cumberlandian

region of the Tennessee and

Cumberland river drainages in Alabama,

Kentucky, Tennessee, and Virginia

(Gordon 1991), and Ortmann (1918)

considered the species to be very

abundant in the upper Tennessee River

drainage.

Currently, within the Cumberland

River, the oyster mussel survives as a

very rare component of the benthic

community in Buck Creek, Pulaski

County, Kentucky; and it still survives

in a few miles of the Big South Fork

Cumberland River, McCreary County,

Kentucky, and Scott County, Tennessee

(Bakaletz 1991; McCance, in litt., 1994).

Within the Tennessee River system,

only small populations survive at a few

sites in the Powell River, Lee County,

Virginia; and Hancock and Claiborne

counties, Tennessee; in the Clinch River

system, Scott County, Virginia, and

Hancock County, Tennessee; Copper

Creek (a Clinch River tributary), Scott

County, Virginia; and Duck River,

Marshall County, Tennessee. Although

not seen in recent years, the species may

still persist at extremely low numbers in

the lower Nolichucky river, Cocke and

Hamblem counties, Tennessee, and in

the Little Pigeon River, Sevier County,

Tennessee (Gordon 1991).

Much of the oyster mussel’s historic

range has been impounded by the

Tennessee Valley Authority (TVA) and

the U.S. Army Corps of Engineers

(Corps). Other populations were lost

due to various forms of pollution and

siltation. The present populations are

threatened by the adverse impacts of

coal mining, poor land-use practices,

and pollution, primarily from nonpoint

sources. The Duck River population

could be lost if the proposed Columbia

Dam on the Duck River at Columbia,

Tennessee, is completed as presently

proposed. All the known populations

are small and could be decimated by

naturally occurring events such as toxic

chemical spills.

Cumberlandian combshell (Epioblasma

brevidens)

The Cumberlandian combshell (Lea

1831) has a thick, solid shell with a

smooth to cloth-like outer surface. It is

yellow to tawny brown in color with

narrow green broken rays. The inside of

the shell is white. The shells of females

are inflated with serrated teeth-like

structures along a portion of the shell

margin (see Johnson (1978) for a more

complete description of the species).

The species is considered endangered in

the States of Kentucky (KSNPC 1991)

and Virginia (Neves 1991;

Bruenderman, in litt., 1992) and a

species of special concern in Tennessee

(Bogan and Parmalee 1983).

The Cumberlandian combshell

historically existed throughout much of

the Cumberlandian portion of the

Tennessee and Cumberland river

systems in Alabama, Kentucky,

Tennessee, and Virginia (Gordon 1991).

Presently, it survives in the Cumberland

River basin, as a very rare component of

the benthic community in Buck Creek,

Pulaski County, Kentucky, and in a few

miles of the Big South Fork Cumberland

River, McCreary County, Kentucky, and

Scott County, Tennessee (Bakaletz 1991;

Gordon 1991; McCance, in litt., 1994). A

few old, non-reproducing individuals

may also survive in Old Hickory

Reservoir on the Cumberland River,

Smith County, Tennessee (Gordon

1991).

Within the Tennessee River basin, the

species still survives in very low

numbers in the Powell and Clinch

rivers, Lee and Scott counties, Virginia;

and Claiborne and Hancock counties,

Tennessee. The Clinch and Powell river

populations are very small and in

decline (Neves 1991; Richard Neves,

Virginia Cooperative Fish and Wildlife

Research Unit, personal

communication, 1991).

Many of the Cumberlandian

combshell’s historic populations were

lost when impoundments were

constructed on the Tennessee and

Cumberland rivers by TVA and the

Corps. Other populations were lost due

to various forms of pollution and

siltation. The present populations are

threatened by the adverse impacts of

coal mining, poor land-use practices,

and pollution, primarily from nonpoint

sources. All the known populations are

small and could be decimated by

naturally occurring events such as toxic

chemical spills.
Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Rules and Regulations 1649

Purple bean (Villosa perpurpurea)

The purple bean mussel (Lea 1861)

has a small- to medium-sized shell. The

shell’s outer surface is usually dark

brown to black with numerous closely

spaced fine green rays. The inside of the

shell is purple, but the purple may fade

to white in dead specimens (see Bogan

and Parmalee (1983) for a more

complete description of the species).

The species is considered endangered in

Tennessee (Bogan and Parmalee 1983)

and Virginia (Neves 1991; and

Bruenderman, in litt., 1992).

The purple bean historically occupied

the upper Tennessee River basin in

Tennessee and Virginia upstream of the

confluence of the Clinch River (Gordon

1991). Ortmann (1918) considered the

species ‘‘not rare’’ in Virginia. Presently,

it survives in limited numbers at a few

locations in the upper Clinch River

basin, Scott, Tazewell, and Russell

counties, Virginia; Copper Creek (a

Clinch River tributary), Scott County,

Virginia; Indian Creek (a Clinch River

tributary), Tazewell County, Virginia

(the Indian Creek location information

was received from the Service’s

Abingdon Field Office, Abingdon,

Virginia, after the close of the comment

period. However, the purple bean was

known to occur in the Clinch River,

Tazewell County, Virginia, near the

mouth of Indian Creek during the open

comment period, and another federally

listed mussel (tan riffleshell) was also

found in the same reach of Indian Creek.

The Service has determined that,

because this new information did not

substantially affect the listing decision,

extending the public comment period

was not warranted); Obed River,

Cumberland and Morgan counties,

Tennessee; Emory River just below its

confluence with the Obed River, Morgan

County, Tennessee; and Beech Creek,

Hawkins County, Tennessee (Gordon

1991).

The purple bean populations in the

lower Clinch, Powell, and Holston

rivers were extirpated by reservoirs. The

decline of the species throughout the

rest of its range was likely due to the

adverse impacts of coal mining, poor

land-use practices, and pollution;

primarily from nonpoint sources. The

population centers that remain are so

limited that they are very vulnerable to

naturally occurring events such as toxic

chemical spills.

Rough rabbitsfoot (Quadrula cylindrica

strigillata)

The rough rabbitsfoot (Wright 1898)

has an elongated heavy, rough textured,

yellow- to greenish-colored shell. The

shell’s surface is covered with green

rays, blotches, and chevron patterns.

The inside of the shell is silvery to

white with an iridescence in the

posterior area of the shell (see Bogan

and Parmalee (1983) for a more

complete species description). The

species is considered threatened in

Virginia (Neves 1991; Bruenderman, in

litt., 1992) and a species of special

concern in Tennessee (Bogan and

Parmalee 1983).

Historically, this mussel was

restricted to the upper Tennessee River

basin in the Clinch, Powell, and Holston

river systems (Gordon 1991). It still

survives in all three of these systems,

but only in limited areas and at low

population levels. Populations persist in

the Powell River, Lee County, Virginia;

and Claiborne and Hancock counties,

Tennessee; Clinch River, Scott County,

Virginia; and Hancock County,

Tennessee; Copper Creek (a Clinch

River tributary), Scott County, Virginia;

and North Fork Holston River,

Washington County, Virginia (Gordon

1991).

The rough rabbitsfoot populations in

the lower Clinch, Powell, and Holston

river systems were extirpated by

reservoirs. The decline of the species

throughout the rest of its range was

likely due to the adverse impacts of coal

mining, poor land-use practices, and

pollution, primarily from nonpoint

sources. The population centers that

remain are so limited that they are

vulnerable to extirpation from naturally

occurring events such as toxic chemical

spills.

Previous Federal Action

In the Service’s notice of review for

animal candidates, published in the

Federal Register of November 21, 1991

(56 FR 58804), the Cumberland elktoe,

oyster mussel, Cumberlandian

combshell, purple bean, and rough

rabbitsfoot were included as Category 2

species. At that time, a Category 2

species was one that was being

considered for possible addition to the

Federal List of Endangered and

Threatened Wildlife. Designation of

Category 2 species was discontinued in

the February 28, 1996, Federal Register

notice (61 FR 7596). These mussels were

approved for elevation to candidate

status by the Service on August 30,

1993. A candidate species is a species

for which the Service has sufficient

information to propose it for protection

under the Act. On August 25, 1992, the

Service notified by mail (129 letters),

potentially affected Federal and State

agencies and local governments within

the species’ present range, and

interested individuals that a status

review of the above mentioned five

mussels and the slabside pearlymussel

(Lexingtonia dolabelloides) was being

conducted. (The slabside pearlymussel

has not been included in this final rule.

Additional populations of this species

were discovered and further evaluation

is needed before a decision can be made

regarding the species’ need for Federal

protection.)

Seven agencies responded to the

August 25, 1992, notification. The U.S.

Natural Resources Conservation Service

(formerly the U.S. Soil Conservation

Service) stated: ‘‘It is not anticipated

that any planned or current activities

will adversely affect these species or

their habitat.’’ The KSNPC, the

Kentucky Department of Environmental

Protection, Tennessee Wildlife

Resources Agency (TWRA), Virginia

Department of Conservation and

Recreation (VDCR), and VDGIF

provided information on the decline

and status of the species in their States.

The Duck River Agency (DRA)

provided comments on the status of the

oyster mussel in the Duck River. It

stated that, as the Duck River

population of the oyster mussel is

extremely small, it is believed highly

unlikely that the stream supports a

viable population of E. capsaeformis. In

contrast to DRA’s statement, Don Hubbs

(TWRA, in litt., 1992) stated that fresh

dead oyster mussel individuals (from

young and older cohorts) were not

uncommon in muskrat middens on the

Duck River in Marshall County,

Tennessee. The Service, however,

currently has insufficient information to

judge the species’ long-term viability

either in the Duck River or on a

rangewide basis.

The DRA took issue with the Service’s

statement in the notification that the

proposed Columbia Dam on the Duck

River could eliminate the oyster mussel

from the Duck River. It stated that

current project alternatives under

consideration by the DRA and TVA

could result in a project that would

flood less than one third of the area and

would enhance the future viability of

the population segment above the pool.

The Service agrees that a smaller

Columbia Dam pool would reduce the

amount of the oyster mussel population

lost to the direct effects of the dam.

However, the details of these Columbia

Dam alternatives have not been

provided to the Service.

The DRA commented that statements

in the mussel species accounts (Gordon

1991) used as an information source to

prepare the August 25, 1992,

notification contained language that

appeared to indicate that the Service

had already made a decision to list the

species prior to receiving any comments
1650 Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Rules and Regulations

from the notification. The Service agrees

that the species accounts, which were

prepared by a non-Service biologist

under contract to the Service, contain

language regarding the need to reverse

the species’ decline as a means to

preserve and recover the mussels.

However, these statements, made by a

Service contractor, do not represent a

predecisional statement by the Service.

Statements in the species accounts were

considered along with all presently

available information on these species,

as well as information obtained through

the notification and the proposed rule,

when making the final decision

regarding the status of the species.

The processing of this final rule

conforms with the Service’s final listing

priority guidance published in the

Federal Register on May 16, 1996 (61

FR 24722). The guidance clarifies the

order in which the Service will process

rulemakings following two related

events—(1) the lifting, on April 26,

1996, of the moratorium on final listings

imposed on April 10, 1995 (Public Law

104–6), and (2) the restoration of

significant funding for listing through

the passage of the omnibus budget

reconciliation law on April 26, 1996,

following severe funding constraints

imposed by a number of continuing

resolutions between November 1995

and April 1996. The guidance calls for

giving highest priority to handling

emergency situations (Tier 1) and

second highest priority (Tier 2) to

resolving the listing status of the

outstanding proposed listings. This final

rule falls under Tier 2. At this time,

there are no pending Tier 1 actions.

In the development of this final rule,

the Service has conducted an internal

review of a draft of this rule and other

Service-generated information. Based on

this review, the Service has determined

that there is no new information that

would substantively affect this listing

decision and that additional public

comment is not warranted.

Summary of Comments and

Recommendations

On July 14, 1994, a proposed rule was

published in the Federal Register (59

FR 35901) stating that the Cumberland

elktoe, oyster mussel, Cumberlandian

combshell, purple bean, and rough

rabbitsfoot were being considered for

endangered species status under the

Act. In the proposed rule, in legal

notices (published in the Kingsport

Daily News, Kingsport, Tennessee, on

August 2, 1994; Crossville Chronicle,

Crossville, Tennessee, and Bristol

Herald Courier, Bristol, Virginia, on

August 3, 1994; Knoxville Journal,

Knoxville, Tennessee, on August 8,

1994; Columbia Herald, Columbia,

Tennessee, on August 10, 1994; and

Nashville Banner, Nashville, Tennessee,

on August 17, 1994) and in letters dated

July 26, 1994, the Service requested

Federal and State agencies, local

governments, scientific organizations,

and interested parties to comment and

submit factual reports and information

that might contribute to development of

a final determination for these five

mussels, and provided notification that

a public hearing on the proposal could

be held, if requested.

In response to the above notifications,

the Service received several public

hearing requests from within the

following counties—Fentress,

Cumberland, and Marshall counties,

Tennessee; and McCreary County,

Kentucky. The Service held two public

hearings (December 13, 1994, at the

York Institute, Jamestown, Tennessee;

and December 15, 1994, at the Marshall

County Courthouse, Lewisburg,

Tennessee), and reopened the comment

period from November 23, 1994, to

December 30, 1994. Notices of these

hearings and the reopening of the

comment period were published in the

Federal Register on November 18, 1994,

(59 FR 59200) and in the following

newspapers—Daily Herald, Columbia,

Tennessee, and Bristol Herald Courier,

Bristol, Virginia, on November 20, 1994;

Knoxville News Sentinel, Knoxville,

Tennessee, and Commonwealth Journal,

Somerset, Kentucky, on November 21,

1994; and Nashville Banner, Nashville,

Tennessee, Daily News of Kingsport,

Kingsport, Tennessee, and Crossville

Chronicle, Crossville, Tennessee, on

November 22, 1994. Additionally, the

Service, by letters dated November 21,

1994, notified Federal and state

agencies, local governments, scientific

organizations, and interested parties of

the public hearings and the reopening of

the comment period.

The Service received nineteen written

comments and eight oral comments on

the proposal to list the five mussels.

Numerous questions on the proposal

and related issues were asked at the

public hearings. Comments in support

of the proposed rule were received from

the Environmental Protection Agency

(EPA); National Park Service, Big South

Fork National River and Recreation

Area; KSNPC; Kentucky Department of

Fish and Wildlife Resources (KDFWR);

Department of Fisheries and Wildlife

Sciences, Virginia Polytechnic Institute

and State University; Tennessee

Department of Environment and

Conservation (TDEC); VDCR; VDGIF;

and two private individuals. The listing

of one or more of these species was

opposed by the DRA; Fentress County

Utility District, Jamestown, Tennessee;

and one individual. The remainder of

the respondents expressed concerns

over what impact these listings would

have on various activities. The

following is a summary of the

comments, concerns, and questions

(referred to as ‘‘Issues’’ for the purposes

of this summary) regarding the proposed

rule that were expressed in writing or

presented orally at the public hearings.

Comments of similar content have been

grouped together.

Issue 1: One respondent expressed

concern that listing the purple bean

could significantly impact efforts to

build a water supply reservoir on Clear

Creek, an Obed River tributary, in

Morgan County, Tennessee, and asked

specific questions regarding how this

reservoir project would impact the

species.

Response: The purple bean is the only

one of these five species that occurs in

the Obed River system. However, based

on available information, this species

does not exist at the proposed reservoir

site or in the area downstream of the site

that would be significantly affected by

the project. Therefore, because the

Service does not anticipate that the

project will have a significant impact on

the purple bean, the listing will not

significantly impact the reservoir

project. Specific questions on how a

reservoir, which will likely have only

minimal, if any, impact to the species,

might negatively or possibly positively

affect the species cannot be fully

evaluated until detailed project plans

are available for review. These issues,

however, would be addressed in any

biological opinion that may be

developed for this proposed project.

Issue 2: Several respondents

expressed concern that listing these five

mussels could have a significant impact

on private landowners.

Response: Currently, there are 24

federally listed mussels in the

Tennessee and Cumberland river

systems. These species, many of which

have been listed for over 10 years, have

not had a significant impact on private

lands activities (e.g., logging,

agriculture, land development, and

home construction). Therefore, based on

this historic perspective, the Service

does not anticipate that listing these

additional species will have a

significant impact on private

landowners. In fact most individuals

that own or farm lands along streams

that are inhabited by listed aquatic

species are unaware of the species’

existence because their presence has

never affected their activities.
Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Rules and Regulations 1651

Issue 3: One respondent requested

information on the impact of this listing

on mining activities.

Response: If a mining activity comes

under the jurisdiction of a state or

Federal agency and one of these five

mussels or any other listed species may

be in the project area, the project’s

impacts to the species must be

considered. However, it has been the

Service’s experience, after dealing with

hundreds of mining projects, that in

nearly all cases where there is a conflict

between endangered species and a

mining project, the project is permitted

with only minor modifications.

Issue 4: Several respondents

expressed concern that the listing of the

Cumberland elktoe could adversely

impact the completion of a proposed

water supply reservoir on Crooked

Creek, a tributary of the Big South Fork

of the Cumberland River, Fentress

County, Tennessee.

Response: The Service does not

believe the listing of the Cumberland

elktoe will stop completion of the

proposed Crooked Creek Reservoir. The

Service is consulting with the Farm

Services Agency on this project. A

segment of the Cumberland elktoe

population does exist at the site of the

proposed reservoir. However, this

population segment is small and likely

is not essential to the species’ survival

and recovery. Therefore, based on

available information, the Service does

not anticipate that a jeopardy biological

opinion will result from this

consultation. The Service’s biological

opinion will outline measures to

minimize incidental take of the elktoe

and suggest conservation

recommendations, but the project will

not be blocked by the Federal listing of

the elktoe.

Issue 5: Listing the Duck River

population of the oyster mussel was

questioned because it was felt that this

population was not viable.

Response: The Duck River oyster

mussel population may be currently

below the number of individuals

necessary to maintain long-term

viability. However, that does not

disqualify this population from

protection under the Act. If the

population is below the threshold

number needed for long-term viability,

the population could be augmented

with juveniles produced through

artificial propagation or with adults

from another population.

Issue 6: In the proposed rule, the

Service made reference to oyster

mussels collected from a muskrat

midden. One respondent questioned the

Service’s use of this information in its

assessment of the Duck River’s oyster

mussel population.

Response: It is a common practice of

the Service, other Federal and state

agencies, and mussel researchers to

utilize information from muskrat

middens. Mussels deposited in middens

by muskrats can not provide a

quantitative assessment of mussel

density, but observations of the numbers

of specimens in a midden can provide

insight into a species’ status in the

adjacent river reach.

Issue 7: Requests were made that the

Service identify—(1) those activities

that will not be considered likely to

result in a violation of section 9 of the

Act and (2) those activities that will be

considered likely to result in violation

of section 9 of the Act.

Response: This issue is addressed in

the ‘‘Available Conservation Measures’’

section of this rule.

Issue 8: One respondent wanted to

know what impact these listings would

have on the placement of docks and

piers into rivers inhabited by these

mussels.

Response: There should be minimal

impact on dock and pier construction as

a result of this listing. The construction

of piers and docks involves work in

navigable waters of the United States

and includes the discharge of dredge

material back into the waterway. Thus,

dock and pier construction comes under

the Corps’ permit authority pursuant to

section 10 of the Rivers and Harbors Act

(RHA) (33 U.S.C. 403) and section 404

of the Clean Water Act (CWA) (33 U.S.C.

1344). Thus, a permit must be received

from the Corps prior to the construction

of a dock or pier. If a federally listed

species may be adversely impacted by

this activity, the Corps must consult

with the Service to determine if the

project is likely to jeopardize the

species’ continued existence.

It is possible that construction of a

few piers or docks could be delayed due

to the presence of one of these species.

However, it is unlikely that any projects

would be stopped. Most piers and docks

are constructed in pool habitat, and

these mussels primarily inhabit

relatively shallow riffles. Most piers and

docks constructed on the rivers and

streams inhabited by these mussels

would be relatively small and have only

minimal impact on the mussels.

Additionally, from an historical

perspective, the 24 mussel species that

are already listed in the Tennessee and

Cumberland river systems have had

little impact on the issuance of permits

for these structures.

Issue 9: One respondent asked what

impact these listings would have on

dredging and in-stream gravel mining

projects.

Response: In-stream dredging and

gravel mining involves work in

navigable waters of the United States

and can result in the discharge of dredge

material back into the water. Thus, instream dredging and gravel mining

comes under the Corps’ permit authority

pursuant to section 10 of the RHA (33

U.S.C. 403) and section 404 of the CWA

(33 U.S.C. 1344). If a federally listed

species may be adversely impacted by

this activity, the Corps must consult

with the Service to determine if the

project is likely to jeopardize the

species’ continued existence.

It is possible that a few in-stream

dredging and gravel mining projects

could be impacted due to the presence

of one of these species. However, it has

been the experience of the Service that

most of these projects can be designed

in such a way (i.e., removing the gravel

only from above the water line) that the

project objectives and the needs of the

species can be met. Additionally, as

some of these newly listed species exist

in areas that are already inhabited by

listed mussels, the listing of these

species that coexist with currently listed

mussels will not add any additional

permit restrictions to these areas.

Issue 10: Several respondents were

concerned with the potential impacts

these listings could have on water

withdrawal projects.

Response: As water withdrawal

projects often require construction of a

structure in the water, these projects

typically require a permit from the

Corps under section 10 of the RHA (33

U.S.C. 403) and section 404 of the CWA

(33 U.S.C. 1344). If a federally listed

species may be adversely impacted by

this activity, the Corps must consult

with the Service to determine if the

project is likely to jeopardize the

species’ continued existence. It is

possible that a few water withdrawal

projects that propose to extract a

significant portion of a river’s flow

could be affected due to the presence of

one of these species. However, if the

water withdrawal project meets state

water quality standards, it has generally

been the Service’s experience that

endangered species will be protected

without further significant restrictions.

Issue 11: Several respondents were

concerned with the potential impacts

these listings could have on waste water

discharge projects.

Response: The potential exists for

point discharges to impact these

species, and there is an increasing

demand for discharge permits in the

Tennessee and Cumberland river

systems. However, the States of
1652 Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Rules and Regulations

Kentucky, Tennessee, and Virginia, with

assistance from and oversight by the

EPA, set water quality standards that are

presumably protective of aquatic life,

including the 24 mussel species that are

already listed in the Tennessee and

Cumberland river systems. Thus, there

should be no significant increase in

regulatory burden regarding waste water

discharge permits as a result of listing

these five species in areas where these

species coexist with one or more of the

mussels that are currently listed. If new

information indicates that current water

quality criteria are insufficient to

prevent the likelihood of jeopardy to

these freshwater mussels, new standards

may be needed. If revised standards are

implemented, some discharge permits

could be further regulated if these

species are present. However, in areas

where listed mussels already exist, the

listing of these five mussels will not add

any significant additional burden.

Issue 12: Several respondents were

concerned with the degree of impact

these listings might have on landowners

who have erosion problems on their

land.

Response: Siltation can negatively

impact the aquatic environment.

However, based on a historical

perspective, the Act has not impacted

individual landowners with erosion

problems that might affect the 24 mussel

species that are currently listed in the

Tennessee and Cumberland river

systems. Thus, the Service does not

anticipate that the listing of these

species will burden private landowners

regarding this issue.

The Service, through a proactive and

coordinated effort with other agencies,

conservation groups, and local

governmental bodies, is assisting willing

private landowners in the restoration of

riparian habitat to control siltation. This

program (‘‘Partners for Wildlife’’) is

currently funding projects on the Clinch

River (a Tennessee River tributary in

eastern Tennessee and southwestern

Virginia) and the Little Tennessee River

(a Tennessee River tributary in western

North Carolina). Both rivers have

endangered fish and mussel fauna and

this program has developed cooperative

agreements with willing landowners to

improve stream side habitat for the

benefit of all aquatic species.

Issue 13: One respondent wanted to

know what impact these listings would

have on the use of pesticides.

Response: The EPA, during its

pesticide registration process, consults

with the Service to determine if a

pesticide will likely jeopardize the

continued existence of any federally

listed species. If it is determined that

the application of the chemical is likely

to jeopardize a species, the Service

provides reasonable and prudent

chemical application alternatives that

would avoid the likelihood of jeopardy.

These recommendations generally

suggest some type of application

restriction (i.e., prohibit pesticide

application within a prescribed distance

from an inhabited stream reach) that

would protect the species.

Although there may be some added

restrictions to pesticide use as a result

of these listings, the Service believes

that the resulting impacts to pesticide

users should be minimal. Many of the

stream reaches inhabited by these five

mussels are populated with previously

listed mussels that have already been

assessed for pesticide restrictions; many

pesticides reviewed for registration are

not believed to be harmful to mussels

and no restrictions are applied to their

use; and if a pesticide is found to be

harmful to a species, there are often

unrestricted, alternative chemicals that

can be used to control the same pest.

Issue 14: One respondent wanted to

know if the information that these rules

are based on had been peer reviewed.

Response: The information utilized in

determining to propose these species

has been peer reviewed. On August 25,

1992, the Service mailed a summary of

the available status information on the

five species to 47 agencies,

organizations, and individuals familiar

with the status of freshwater mussels

and solicited their comments on the

need to propose these species. Prior and

subsequent to the August 25, 1992,

notification, a copy of the status report

used to make the determination to

propose these five species was sent to

biologists and agencies familiar with the

plight of these species. With the

exception of the DRA, none of the

respondents questioned the need to

propose these species for Federal

protection. (See the last paragraph

under the ‘‘Summary of Comments and

Recommendations’’ section for further

information.)

Issue 15: One respondent was

concerned that these listings could

restrict the farming communities’ use of

fords (stream crossings).

Response: There are numerous active

fords in the Tennessee and Cumberland

river systems used by the farming

community, and many of these fords are

in streams inhabited by federally

protected mussels. The Act has not

restricted the use of these fords, and the

listing of these five mussels will not

alter this situation.

Issue 16: One respondent wanted to

know if the Service planned to

designate critical habitat for these five

mussels.

Response: The Service is not and has

no plans to designate critical habitat for

these species (see the ‘‘Critical Habitat’’

section of this rule).

Issue 17: Several respondents were

concerned that these listings would

affect current farming methods in the

watershed.

Response: The Service will encourage

the use of buffer strips along water

courses, reduction of pesticide and

herbicide applications, and soil

conservation practices that help control

soil loss and siltation.

Issue 18: One respondent questioned

the statement in the proposed rule that

implicated poor land-use practices as a

threat to these mussels, and the

individual was concerned that the

farming community might have been the

primary target of this statement.

Response: Siltation from soil erosion

is not just or primarily an agricultural

problem. Any activity that removes

natural vegetated ground cover (e.g.,

logging, bridge and road construction,

mining, and land clearing for industrial

and residential construction) can cause

significant stream siltation if adequate

control measures are not taken. Silt can

have a devastating impact on aquatic

ecosystems, especially those species

that evolved in a relatively silt free

environment. Mussels are filter feeders

and they can live in one location for

most of their lives. High silt loads

disrupt their ability to feed and

reproduce, and at extreme silt levels,

they can be smothered under deep

layers of silt.

As mentioned in response to Issue 12,

the Service, through its ‘‘Partners for

Wildlife’’ program, is working with

willing landowners to assist in

restoration of stream side habit to

control siltation. The Service also

encourages the use of ‘‘Best

Management Practices’’ to control

erosion and minimize the impacts of silt

to aquatic resources.

Issue 19: One respondent wanted to

know how the listing of the oyster

mussel would affect the completion of

Columbia Dam.

Response: The Service stated in a

1979 Biological Opinion that

completion of a proposed reservoir

project (Columbia Dam) on the Duck

River in Maury and Marshall counties,

Tennessee, would likely jeopardize the

continued existence of two federally

listed mussels. Although our Biological

Opinion included reasonable and

prudent alternatives that would have

allowed the project to go forward, TVA

has not implemented those measures

and has been reevaluating the project

and considered other alternatives to

meet the project objectives. (A third
Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Rules and Regulations 1653

mussel listed prior to the issuance of the

Biological Opinion is now known from

the proposed flood pool.) Although the

presence of a fourth endangered mussel

(oyster mussel) may somewhat

complicate this issue, any measures

needed to avoid a jeopardy situation for

the currently listed mussels would not

be expected to change significantly with

the addition of a fourth listed species.

Issue 20: One respondent noted that

since species go extinct because of

natural causes why should these species

receive special protection.

Response: It is true that natural and

catastrophic events over geological time

have resulted in the extinction of

millions of species. However, the rate of

extinctions in the past couple of

centuries has accelerated dramatically

as a direct result of human activities.

The Act specifically states that species

of fish, wildlife, and plant are of value

to this nation, and the Act requires the

Department of the Interior to maintain a

list of endangered and threatened

species. The Service believes that these

five mussels meet the criteria for the

Act’s protection (see the ‘‘Summary of

Factors Affecting the Species’’ section of

these rules).

Issue 21: One respondent suggested

that the Service should postpone the

decision to list the five species until

Congress reauthorizes the Act.

Response: The Act as currently

written requires the Department of the

Interior to maintain a list of endangered

and threatened species and the Act

provides five criteria to consider when

determining to list a species (see the

‘‘Summary of Factors Affecting the

Species’’ section of these rules). Based

on the best available information, these

five species meet these criteria and

qualify for the Act’s protection. The

Service believes that delaying these

listings to await Congressional

reauthorization would be a violation of

existing Federal law.

Issue 22: One respondent wanted to

know if a biological survey was required

when a Federal permit was needed in

areas inhabited by listed species and if

a survey was needed, who would

conduct the survey.

Response: Often the Service or other

agencies have sufficient status

information on the species in a project

area, and no addtional site specific

surveys are needed to determine project

impacts to the species. However, if sitespecific species information is

unavailable or insufficient, a survey of

the project impact area may be needed

to fully assess the project’s impacts. If

a survey is needed, it is generally not

conducted by the Service. Survey

responsibility falls onto the permitting

agency. However, the permitting agency

usually requires the permit applicant to

obtain the needed status information as

part of the application process.

Issue 23: One respondent commented

that the Service should initiate a

massive education effort with the farm

community to help build trust and

encourage community involvement

regarding the protection and recovery of

aquatic species.

Response: The Service agrees that

local community support is essential to

fully protect and recover listed species.

The Service has increased its efforts in

this area through ‘‘Partners for Wildlife’’

and other programs that work with

community leaders and willing

landowners to build the necessary

partnerships.

Issue 24: The VDCR stated that the

rough rabbitsfoot was listed as

threatened by the VDGIF. Thus, they felt

it might be more appropriate to list this

species as threatened rather than

endangered.

Response: The rough rabbitsfoot is

listed as a threatened species by the

VDGIF. However, this list was

developed in the late 1980’s and

published in 1991 (Neves 1991). Since

the publication of the state list, the

rough rabbitsfoot has declined

significantly in the Clinch River and

may no longer survive in Copper Creek

(Neves, personal communication, 1995).

Neves (personal communication, 1995),

was a primary consultant used by the

VDGIF in determining state status for

the rough rabbitsfoot, and he plans to

recommend State endangered status for

this species when the state list is

revised. Additionally, he recommended

Federal endangered status for this

species in response to the proposed rule

(Neves, in litt., 1994). Based on this

information and the information

presented in the ‘‘Background’’ and the

‘‘Summary of Factors Affecting the

Species’’ sections of these rules, the

Service believes that endangered status

is appropriate for the rough rabbitsfoot.

Issue 25: The EPA requested that the

Service clarify what it meant by the

following statement that appeared in the

July 14, 1994, proposed rule:

Existing authorities available to protect

aquatic systems, such as the Clean Water Act,

administered by the Environmental

Protection Agency (EPA) and the Army Corps

of Engineers, have not been fully utilized and

may have led to the degradation of aquatic

environments in the Southeast Region, thus

resulting in a decline of aquatic species.

Response: Through EPA’s

implementation of the CWA, water

quality has been improved and mussel

populations have benefited. However, in

spite of general water quality

improvements, numerous freshwater

mussel populations in the southeastern

United States are continuing to decline

even in areas that appear to have

suitable physical habitat. The Service

believes that it is likely that some

insidious environmental factor(s),

possibly contaminants, may be

adversely affecting the growth,

reproduction, or survival of these

populations. Of all the potential impacts

to mussels, less is known about the

potential effects of contaminants on

these species. The Service believes that

EPA could, through the CWA, play a

more active role in identifying potential

contaminant impacts to mussels.

Issue 26: The EPA also requested that

the Service identify in any final rule

specific deficiencies and/or

inadequacies in the following areas

related to their implementation of the

CWA in the States of Tennessee and

Kentucky—state adopted narrative and

numeric water quality criteria; state

water use classifications by streams

occupied by the five mussels; aquatic

life criteria guidance values; and

National Pollutant Discharge

Elimination System (NPDES) permit

procedures.

Response: As mentioned in response

to Issue 25, little is known about the

potential impacts of contaminants on

freshwater mussels. Research is needed

to address the lethal and sublethal

effects of acute and chronic exposure of

toxins to all life stages of freshwater

mussels. This research will entail

identifying appropriate surrogate

species, devising test protocols, and

conducting studies to evaluate the

protectiveness of these criteria.

Additionally, the Service is currently

working with EPA to develop a

memorandum of agreement (MOA) that

will address how EPA and the Service

will interact relative to CWA water

quality criteria, standards, and NPDES

permits within the Service’s Southeast

Region. Until the MOA is developed

and data are available to fully evaluate

the effectiveness of current national

water quality criteria and standards and

the need for site-specific criteria, the

Service believes it is premature to

attempt, in this final rule, to address any

specific deficiencies and/or

inadequacies that may exist in EPA’s

implementation of the CWA regarding

the protection of water quality.

The Service also solicited the expert

opinions of ten appropriate and

independent mussel specialists

regarding the pertinent scientific or

commercial data and assumptions

relating to taxonomy, population status,

and biological and ecological

information on these five mussels. One
1654 Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Rules and Regulations

response from a specialist was received,

and those comments were incorporated

into this final rule.

Summary of Factors Affecting the

Species

Section 4(a)(1) of the Act (16 U.S.C.

1531 et seq.) and regulations (50 CFR

Part 424) issued to implement the listing

provisions of the Act set forth the

procedures for adding species to the

Federal lists. A species may be

determined to be an endangered or

threatened species due to one or more

of the five factors described in Section

4(a)(1). These factors and their

application to the Cumberland elktoe

(Alasmidonta atropurpurea), oyster

mussel (Epioblasma capsaeformis),

Cumberlandian combshell (Epioblasma

brevidens), purple bean (Villosa

perpurpurea), and rough rabbitsfoot

(Quadrula cylindrica strigillata) are as

follows:

A. The present or threatened

destruction, modification, or

curtailment of its habitat or range.

Mussel populations throughout the

Central and Eastern United States have

been declining since modern

civilization began to significantly alter

aquatic habitats. The Ohio River

drainage, which includes the Tennessee

and Cumberland rivers, was a center for

freshwater mussel evolution and

historically contained about 127 distinct

mussel species and subspecies. Of this

once rich mussel fauna, 11 mussels are

extinct, and 33 mussels (including the 5

species covered in this final rule) are

classified as Federal endangered

species. In less than 100 years, 35

percent of the Ohio River system’s

mussel fauna has either become extinct

or federally endangered. No other wideranging faunal group in the continental

United States has experienced this

degree of loss within the last 100 years.

The mussel fauna in most streams of

the Ohio River basin has been directly

impacted by impoundments, siltation,

channelization, and water pollution.

Reservoir construction is the most

obvious cause of the loss of mussel

diversity in the basin’s larger rivers.

Most of the main stem of both the

Tennessee and Cumberland rivers and

many of their tributaries are

impounded. For example, over 2,300

river miles or about 20 percent of the

Tennessee River and its tributaries with

drainage areas of 25 square miles or

greater are impounded (TVA 1971). In

addition to the loss of riverine habitat

within impoundments, most

impoundments also seriously alter

downstream aquatic habitat; and mussel

populations upstream of reservoirs may

be adversely affected by changes in the

fish fauna essential to a mussel’s

reproductive cycle.

Coal mining-related siltation and

associated toxic runoff have adversely

impacted many stream reaches.

Numerous streams have experienced

mussel and fish kills from toxic

chemical spills, and poor land-use

practices have fouled many waters with

silt. Runoff from large urban areas has

degraded water and substrate quality.

Because of the extent of habitat

destruction, the overall aquatic faunal

diversity in many of the basins’ rivers

has declined significantly. As a result of

this destruction of riverine habitat, 8

fishes and 24 mussels in the Tennessee

and Cumberland river basins have

already required the Act’s protection,

and numerous other aquatic species in

these two basins are currently

considered species of concern and could

warrant listing in the future.

The mussel fauna in the Tennessee

and Cumberland rivers has been

extensively sampled, and much is

known about the historic and present

distribution of this rich fauna. Gordon

(1991) provided an extensive review of

the literature regarding the past and

present ranges of the Cumberland

elktoe, oyster mussel, Cumberlandian

combshell, purple bean, and rough

rabbitsfoot. Based on Gordon’s (1991)

review and personal communications

with numerous Federal, State, and

independent biologists, it is clear that

these five mussel species have

undergone significant reductions in

range and that they now exist as only

remnant isolated populations. (See

‘‘Background’’ section for a discussion

of current and historic distribution and

threats to the remaining populations.)

B. Overutilization for commercial,

recreational, scientific, or educational

purposes. These five mussels are not

commercially valuable; but as they are

extremely rare, they could be sought by

collectors. The specific areas inhabited

by these species are presently unknown

to the general public. As a result, their

overutilization has not been a problem

to date. Most stream reaches inhabited

by these mussels are extremely small.

Thus, populations of the species could

be easily eliminated or significantly

reduced using readily available toxic

chemicals. Although scientific

collecting is not presently identified as

a threat, take by private and

institutional collectors could pose a

threat if left unregulated. Federal

protection of these species will help to

minimize illegal and inappropriate take.

C. Disease and predation. Disease

occurrence in freshwater mussels is

virtually unknown. However, since

1982, biologists and commercial mussel

fishermen have reported extensive

mussel die-offs in rivers and lakes

throughout the United States. The

cause(s) of many of these die-offs is

unknown, but disease has been

suggested as a possible factor.

Shells of all five species are often

found in muskrat middens. The species

are also presumably consumed by other

mammals, such as raccoons and mink.

While predation is not thought to be a

significant threat to a healthy mussel

population, Neves and Odum (1989)

suggest it could limit the recovery of

endangered mussel species or contribute

to the local extirpation of already

depleted mussel populations. Predation

would be of particular concern to oyster

mussel, Cumberlandian combshell, and

purple bean, which exist only as

extremely small, remnant populations.

D. The inadequacy of existing

regulatory mechanisms. The States of

Kentucky, Alabama, Tennessee, and

Virginia prohibit the taking of fish and

wildlife, including freshwater mussels,

for scientific purposes without a State

collecting permit. However,

enforcement of this permit requirement

is difficult. Also, State regulations do

not generally protect these mussels from

other threats.

Existing authorities available to

protect aquatic systems, such as the

CWA, administered by the EPA and the

Corps, may not have been fully utilized.

This may have contributed to the

degradation of aquatic environments

and the decline of aquatic species in the

Southeast (see response to Issue 25 in

the ‘‘Summary of Comments and

Recommendations’’ of this final rule).

As these mussels (Cumberland elktoe,

Cumberlandian combshell, oyster

mussel, purple bean, and rough

rabbitsfoot) coexist with other federally

listed species throughout most or all of

their range, some of the habitats of these

species are indirectly provided some

Federal protection from Federal actions

and activities through section 7 of the

Act. However, Federal listing will

provide additional protection for all five

species throughout their range by

requiring Federal permits to take the

species and by requiring Federal

agencies to consult with the Service

when activities they fund, authorize, or

carry out may specifically adversely

affect these species.

E. Other natural or manmade factors

affecting its continued existence. The

populations of these species

(Cumberland elktoe, oyster mussel,

Cumberlandian combshell, purple bean,

and rough rabbitsfoot) are small and

geographically isolated. This isolation

prohibits the natural interchange of

genetic material between populations,
Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Rules and Regulations 1655

and the small population sizes reduce

the reservoir of genetic variability

within the populations. It is likely that

some of the populations of the

Cumberland elktoe, oyster mussel,

Cumberlandian combshell, purple bean,

and rough rabbitsfoot may be below the

level required to maintain long-term

genetic viability. Also, because most of

the extant populations of these mussels

are restricted to short river reaches, they

are very vulnerable to extirpation from

a single catastrophic event, such as a

toxic chemical spill or a major stream

channel modification. Because the

populations of each species are isolated

from one another because of

impoundments, natural repopulation of

any extirpated population is impossible

without human intervention.

The invasion of the exotic zebra

mussel (Dreissena polymorpha) into the

Great Lakes poses a potential threat to

the Ohio River’s mussel fauna. The

zebra mussel has recently been reported

from the Tennessee and Cumberland

rivers, but the extent of its impact on the

basin’s freshwater mussels is unknown.

Zebra mussels in the Great Lakes have

been found attached in large numbers to

the shells of live and freshly dead native

mussels, and zebra mussels have been

implicated in the loss of entire mussel

beds.

The Service has carefully assessed the

best scientific and commercial

information available regarding the past,

present, and future threats faced by

these mussels in determining to make

this rule final. Based on these

evaluations, the preferred action is to

list the Cumberland elktoe

(Alasmidonta atropurpurea), oyster

mussel (Epioblasma capsaeformis),

Cumberlandian combshell (Epioblasma

brevidens), purple bean (Villosa

perpurpurea), and rough rabbitsfoot

(Quadrula cylindrica strigillata) as

endangered species. The Cumberland

elktoe, purple bean, and rough

rabbitsfoot are known from three

populations each, and the

Cumberlandian combshell and oyster

mussel are known from five populations

each. These five species and their

habitat have been and continue to be

impacted by habitat destruction and

range reduction. Their limited

distribution also makes them very

vulnerable to possible extinction from

toxic chemical spills. Because of their

restricted distributions and their

vulnerability to extinction, endangered

status appears to be the most

appropriate classification for these

species.

Critical Habitat

Section 4(a)(3) of the Act, as

amended, requires that, to the maximum

extent prudent and determinable, the

Secretary designate critical habitat at the

time the species is determined to be

endangered or threatened. The Service’s

regulations (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

activity and the 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 finds that designation of

critical habitat is not prudent for these

species. Such a determination would

result in no known benefit to these

species, and designation of critical

habitat could pose a further threat to

them through publication of their sitespecific localities.

Section 7(a)(2) and regulations

codified at 50 CFR Part 402 require

Federal agencies to ensure, in

consultation with and with the

assistance of the Service, that activities

they authorize, fund, or carry out are not

likely to jeopardize the continued

existence of listed species or destroy or

adversely modify their critical habitat, if

designated. Section 7(a)(4) requires

Federal agencies to confer informally

with the Service on any action that is

likely to jeopardize the continued

existence of a proposed species or result

in the destruction or adverse

modification of proposed critical

habitat. (See ‘‘Available Conservation

Measures’’ section for a further

discussion of section 7.) As part of the

development of this final rule, Federal

and state agencies were notified of the

mussels’ general distributions, and they

were requested to provide data on

proposed Federal actions that might

adversely affect the species. Should any

future projects be proposed in areas

inhabited by these mussels, the

involved Federal agency will already

have the general distributional data

needed to determine if the species may

be impacted by its action; and if needed,

more specific distributional information

would be provided.

Each of these mussels occupies very

restricted stream reaches. Thus, because

any significant adverse modification or

destruction of these species’ habitat

would likely jeopardize their continued

existence, no additional protection for

the species would accrue from critical

habitat designation that would not also

accrue from listing these species.

Therefore, habitat protection for these

species would be accomplished through

the section 7 jeopardy standard and

section 9 prohibitions against take.

In addition, these mussels are rare,

and taking for scientific purposes and

private collection could pose a threat if

specific site information were released.

The publication of critical habitat maps

in the Federal Register and local

newspapers, and other publicity

accompanying critical habitat

designation could increase the

collection threat and increase the

potential for vandalism, especially

during the often controversial critical

habitat designation process. The

locations of populations of these species

have consequently been described only

in general terms in this rule. Any

existing precise locality data would be

available to appropriate Federal, state,

and local governmental agencies from

the following offices—the Service office

described in the ADDRESSES section of

these rules; the Service’s Cookeville

Field Office, 446 Neal Street,

Cookeville, Tennessee 38501; the

Service’s White Marsh Field Office, P.O.

Box 480, Mid-County Center, U.S. Route

17, White Marsh, Virginia 23183; the

Service’s Southeastern Virginia Field

Office, P.O. Box 2345, 332 Cummings

Street, Abingdon, Virginia 24212;

KDFWR; KSNPC; TWRA; TDEC; VDGIF;

and VDCR.

Available Conservation Measures

Conservation measures provided to

species listed as endangered or

threatened under the Act include

recognition, recovery actions,

requirements for Federal protection, and

prohibitions against certain practices.

Recognition through listing encourages

and results in conservation actions by

Federal, state, and private agencies,

groups, and individuals. The Act

provides for possible land acquisition

and cooperation with the states and

requires that recovery actions be carried

out for all listed species. The protection

required of Federal agencies and the

prohibitions against taking and harm are

discussed, in part, below.

Section 7(a) of the Act requires

Federal agencies to evaluate their

actions with respect to any species that

is proposed or listed as endangered or

threatened and with respect to its

critical habitat, if any is being

designated. Regulations implementing

this interagency cooperation provision

of the Act are codified at 50 CFR Part

402. Section 7(a)(4) requires Federal

agencies to confer informally with the

Service on any action that is likely to

jeopardize the continued existence of a

proposed species or result in

destruction or adverse modification of
1656 Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Rules and Regulations

proposed critical habitat. If a species is

listed subsequently, section 7(a)(2) of

the Act requires Federal agencies to

ensure that activities they authorize,

fund, or carry out are not likely to

jeopardize the continued existence of

such a species or to destroy or adversely

modify its critical habitat. If a Federal

action may affect a listed species or its

critical habitat, the responsible Federal

agency must enter into formal

consultation with the Service.

The Service notified Federal agencies

that may have programs which could

affect these species. One major Federal

project, a proposed TVA impoundment

on the Duck River, Columbia,

Tennessee, could have a significant

impact on the oyster mussel.

Construction of Columbia Dam was

suspended in the late 1970’s after the

Service issued a Biological Opinion

stating that the dam’s completion would

likely jeopardize the continued

existence of two federally listed

mussels. Although our Biological

Opinion included reasonable and

prudent alternatives that would have

allowed the project to go forward, TVA

has not implemented those measures

and has been reevaluating the project

and considered other alternatives to

meet the project objectives. (A third

mussel listed prior to the issuance of the

Biological Opinion is now known from

the proposed flood pool.) Although the

presence of a fourth endangered mussel

(oyster mussel) may somewhat

complicate this issue, any measures

needed to avoid a jeopardy situation for

the currently listed mussels would not

be expected to change significantly with

the addition of a fourth listed species

(see response to Issue 19 in the

‘‘Summary of Comments and

Recommendations’’ section of these

rules).

A water supply reservoir is under

consideration on Crooked Creek in the

upper Big South Fork of the

Cumberland River watershed, Fentress

County, Tennessee. This project would

inundate and adversely impact a portion

of the Cumberland elktoe population

that exists in the upper Big South Fork

basin. This water supply project,

proposed by the Fentress County Utility

District, is one of a series of water

supply alternatives currently under

review for a permit pursuant to section

404 of the CWA. However, the Service

does not believe the listing of the

Cumberland elktoe will stop completion

of the Crooked Creek Reservoir (see

response to Issue 4 in the ‘‘Summary of

Comments and Recommendations’’ of

these rules).

Another water supply reservoir is

under consideration by the Catoosa

Utility District for Clear Creek, an Obed

River tributary, Morgan County,

Tennessee. The purple bean occurs in

the Obed River system. However, based

on available information, this species

does not exist at the proposed reservoir

site or in the area downstream of the site

that would be significantly affected by

the project. Therefore, as the Service

does not anticipate that the project will

have a significant impact on the purple

bean, the listing will not have any

significant impact on this reservoir

project (see response to Issue 1 in the

‘‘Summary of Comments and

Recommendations’’ of this rule).

Since the close of the comment period

on this rule, the Southeastern Virginia

Field Office has become involved in an

informal section 7 consultation

regarding a proposed Federal prison in

Lee County, Virginia, and its potential

impacts to eight federally listed mussels

that live in the Powell River. The

Cumberlandian combshell, oyster

mussel, and purple bean are also known

from the Powell River and will now

need to be considered in this

consultation. However, since the eight

listed mussels are already being

considered with regard to this project,

the outcome of the consultation should

not be affected by the addition of these

three more listed mussels. Based on this

review, the Service has determined that

there is no information that would

substantively affect these listing

decisions and that additional public

comment is not warranted.

No other specific proposed Federal

actions were identified that would

likely affect any of the species. Federal

activities that could occur and impact

the species include, but are not limited

to, the carrying out or the issuance of

permits for reservoir construction,

stream alterations, waste water facility

development, water withdrawal

projects, pesticide registration, mining,

and road and bridge construction.

However, it has been the experience of

the Service that nearly all section 7

consultations have been resolved so that

the species have been protected and the

project objectives have been met.

The Act and implementing

regulations found at 50 CFR 17.21 set

forth a series of general prohibitions and

exceptions that apply to all endangered

wildlife. These prohibitions, in part,

make it illegal for any person subject to

the jurisdiction of the United States to

take (includes harass, harm, pursue,

hunt, shoot, wound, kill, trap, or collect;

or to attempt any of these), import or

export, ship in interstate commerce in

the course of commercial activity, or sell

or offer for sale in interstate or foreign

commerce any listed species. It is also

illegal to possess, sell, deliver, carry,

transport, or ship any such wildlife that

has been taken illegally. Certain

exceptions apply to agents of the

Service and State conservation agencies.

Permits may be issued to carry out

otherwise prohibited activities

involving endangered wildlife species

under certain circumstances.

Regulations governing permits are at 50

CFR 17.22 and 17.23. Such permits are

available for scientific purposes, to

enhance the propagation or survival of

the species, and/or for incidental take in

connection with otherwise lawful

activities.

It is the policy of the Service

published in the Federal Register on

July 1, 1994,(59 FR 34272) to identify at

the time of listing, to the maximum

extent practicable, those activities that

would not constitute a violation of

section 9 of the Act. The intent of this

policy is to increase public awareness as

to the effects of these listings on

proposed and ongoing activities within

a species’ range. During the public

comment periods, comments were

received questioning the effect these

listings would have on private

landowners (see response to Issue 2 and

12 in the ‘‘Summary of Comments and

Recommendations’’ section of this rule),

pesticide application (see response to

Issue 13), use of existing river fords by

the farming community (see response to

Issue 15), and traditional farming

practices (see response to Issue 17). The

Service believes, based on the best

available information as outlined in the

‘‘Summary of Comments and

Recommendations’’ section of this rule,

that the aforementioned actions will not

result in a violation of section 9

provided the activities are carried out in

accordance with any existing

regulations and permit requirements. In

addition, the Service also believes that

certain other activities will not result in

a section 9 violation. They include use

of the river by boaters, anglers, and

other existing recreational uses.

Activities that the Service believes

could potentially result in ‘‘take’’ of

these mussels, include, but are not

limited to, the unauthorized collection

or capture of the species; unauthorized

destruction or alteration of the species’

habitat (e.g., in-stream dredging,

channelization, discharge of fill

material); violation of any discharge or

water withdrawal permit; and illegal

discharge or dumping of toxic chemicals

or other pollutants into waters

supporting the species.

Other activities not identified in the

above two paragraphs will be reviewed

on a case-by-case basis to determine if

a violation of section 9 of the Act may
Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Rules and Regulations 1657

be likely to result from such activity.

The Service does not consider these lists

to be exhaustive and provides them as

information to the public.

Questions regarding whether specific

activities will constitute a violation of

section 9 should be directed to the Field

Supervisor of the Service’s Asheville

Field Office (see ADDRESSES section).

Requests for copies of the regulations on

listed species and inquiries regarding

prohibitions and permits should be

addressed to the U.S. Fish and Wildlife

Service, Ecological Services (TE), 1875

Century Boulevard, Atlanta, Georgia

30345–3301 (404/679–7096).

National Environmental Policy Act

The Service has determined that an

Environmental Assessment, as defined

under the authority of the National

Environmental Policy Act of 1969, need

not be prepared in connection with

regulations adopted pursuant to section

4(a) of the Act. A notice outlining the

Service’s reasons for this determination

was published in the Federal Register

on October 25, 1983 (48 FR 49244).

Required Determinations

The Service has examined this

regulation under the Paperwork

Reduction Act of 1995 and found it to

contain no information collection

requirements. This rulemaking was not

subject to review by the Office of

Management and Budget under

Executive Order 12866.

References Cited

Bakaletz, S. 1991. Mussel survey of the Big

South Fork National River Recreation Area.

M.S. Thesis. Tennessee Technological

University, Cookeville, Tennessee. 62 pp.

Bogan, A. E., and P. W. Parmalee. 1983.

Tennessee’s rare wildlife, Volume II: the

mollusks. 123 pp.

Clarke, A. H. 1981. The Tribe Alasmidontini

(Unionidae: Anodontinae), Part I: Pegias,

Alasmidonta, and Arcidens. Smithsonian

Contributions to Zoology, No. 326. 101 pp.

Gordon, M. E. 1991. Species accounts for

Cumberland elktoe (Alasmidonta

atropurpurea), Cumberlandian combshell

(Epioblasma brevidens), oyster mussel

(Epioblasma capsaeformis), rough

rabbitsfoot (Quadrula cylindrica

strigillata), and purple bean (Villosa

perpurpurea). Unpublished reports to The

Nature Conservancy. 75 pp.

Johnson, R. I. 1978. Systematics and

zoogeography of Plagiola

(=Dysnomia=Epioblasma), an almost

extinct genus of mussels (Bivalvia:

Unionides) from middle North America.

Bull. Mus. Comp. Zool. 148:239–320.

Kentucky State Nature Preserves

Commission. 1991. Endangered,

Threatened, and Special Concern Plant and

Animal Species of Kentucky. March 1991.

15 pp.

Neves, R. J. 1991. Mollusks. In Virginia’s

endangered species, proceedings of a

symposium. Coordinated by Karen

Terwilliger. McDonald & Woodward Publ.

Co., Blacksburg, Virginia. 672 pp.

Neves, R. J., and M. C. Odum. 1989. Muskrat

predation on endangered freshwater

mussels in Virginia. Jour. Wildl. Manage.

53(4):939–940.

Ortmann, A. E. 1918. The nayades

(freshwater mussels) of the upper

Tennessee drainage with notes on

synonymy and distribution. Proceedings of

the American Philosophical Society.

57:521–626.

Tennessee Valley Authority. 1971. Stream

length in the Tennessee River Basin.

Tennessee River Authority, Knoxville,

Tennessee, 25 pp.

Author

The primary author of this final rule

is Richard G. Biggins, U.S. Fish and

Wildlife Service, Asheville Field Office,

160 Zillicoa Street, Asheville, North

Carolina 28801 (704/258–3939, Ext.

228).

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements, and

Transportation.

Regulation Promulgation

Accordingly, part 17, subchapter B of

chapter I, title 50 of the Code of Federal

Regulations, is amended as set forth

below:

PART 17—[AMENDED]

1. The authority citation for part 17

continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 16 U.S.C.

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500, unless otherwise noted.

2. Section 17.11(h) is amended by

adding the following, in alphabetical

order under ‘‘CLAMS,’’ to the List of

Endangered and Threatened Wildlife to

read as follows:

§17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

SPECIES

Historic range

Vertebrate

population

where

endangered

or

threatened

Status When listed Critical

habitat

Special

rules Common name Scientific name

* * * * * * *

CLAMS:

* * * * * * *

Bean, purple ............. Villosa perpurpurea ......... U.S.A. (TN and VA) ........ NA E 602 NA NA

* * * * * * *

Combshell, Cumberland.

Epioblasma brevidens .... U.S.A. (AL, KY, TN, and

VA).

NA E 602 NA NA

* * * * * * *

Elktoe, Cumberland .. Alasmidonta atropurpurea U.S.A. (KY and TN) ........ NA E 602 NA NA

* * * * * * *

Mussel, oyster .......... Epioblasma capsaeformis U.S.A. (AL, KY, TN, and

VA).

NA E 602 NA NA
1658 Federal Register / Vol. 62, No. 7 / Friday, January 10, 1997 / Rules and Regulations

SPECIES

Historic range

Vertebrate

population

where

endangered

or

threatened

Status When listed Critical

habitat

Special

rules Common name Scientific name

* * * * * * *

Rabbitsfoot, rough .... Quadrula cylindrica

strigillata.

U.S.A. (TN and VA) ........ NA E 602 NA NA

* * * * * * *

Dated: December 6, 1996.

John G. Rogers,

Acting Director, Fish and Wildlife Service.

[FR Doc. 97–565 Filed 1–9–97; 8:45 am]

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