[Federal Register Volume 87, Number 128 (Wednesday, July 6, 2022)]
[Rules and Regulations]
[Pages 40115-40138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-14312]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2020-0078; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BE82


Endangered and Threatened Wildlife and Plants; Endangered Species 
Status for the Canoe Creek Clubshell and Designation of Critical 
Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
that the Canoe Creek clubshell (Pleurobema athearni), a freshwater 
mussel species endemic to a single watershed in north-central Alabama, 
is an endangered species under the Endangered Species Act of 1973 
(Act), as amended. We also designate critical habitat for the species 
under the Act. In total, approximately 58.5 river kilometers (36.3 
river miles) in St. Clair and Etowah Counties, Alabama, fall within the 
boundaries of the critical habitat designation. This rule extends the 
Act's protections to the species and its designated critical habitat.

DATES: This rule is effective August 5, 2022.

ADDRESSES: This final rule is available on the internet at https://www.regulations.gov under Docket No. FWS-R4-ES-2020-0078. Comments and 
materials we received, as well as supporting documentation we used in 
preparing this rule, are available for public inspection at https://www.regulations.gov at Docket No. FWS-R4-ES-2020-0078.
    The coordinates or plot points from which the maps are generated 
are included in the decision file for this critical habitat designation 
and are available at https://www.regulations.gov at Docket No. FWS-R4-
ES-2020-0078 and on the Service's website at https://www.fws.gov/office/alabama-ecological-services. Any additional tools or supporting 
information that we developed for the critical habitat designation will 
also be available at the Service's website set out above and may also 
be included in the preamble and at https://www.regulations.gov, or 
both.

FOR FURTHER INFORMATION CONTACT: William J. Pearson, Field Supervisor, 
U.S. Fish and Wildlife Service, Alabama Ecological Services Field 
Office, 1208 Main Street, Daphne, AL 36526; telephone 251-441-5181. 
Individuals in the United States who are deaf, deafblind, hard of 
hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, a species warrants 
listing if it meets the definition of an endangered species (in danger 
of extinction throughout all or a significant portion of its range) or 
a threatened species (likely to become endangered in the foreseeable 
future throughout all or a significant portion of its range). We have 
determined that the Canoe Creek clubshell meets the definition of an 
endangered species; therefore, we are listing it as such. To the 
maximum extent prudent and determinable, we must designate critical 
habitat for any species that we determine to be an endangered or 
threatened species under the Act. Listing a species and designation of 
critical habitat can be completed only by issuing a rule.
    What this document does. This rule lists the Canoe Creek clubshell 
(Pleurobema athearni) as an endangered species and designates critical 
habitat for this species under the Endangered Species Act. We are 
designating critical habitat in 2 units totaling approximately 58.5 
river kilometers (km) (36.3 river miles (mi)) in St. Clair and Etowah 
Counties, Alabama.
    The basis for our action. Under section 4(a)(1) of the Act, we may 
determine that a species is an endangered or threatened species based 
on any of five factors: (A) The present or threatened destruction, 
modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence. We have determined that habitat 
degradation through changes in water quality and quantity (Factor A), 
increased sedimentation (Factor A), and climate events (Factor E) are 
the primary threats to the species.
    Section 4(a)(3) of the Act requires the Secretary of the Interior 
(Secretary) to designate critical habitat concurrent with listing to 
the maximum extent prudent and determinable. Section 3(5)(A) of the Act 
defines critical habitat as (i) the specific areas within the 
geographical area occupied by the species, at the time it is listed, on 
which are found those physical or biological features (I) essential to 
the conservation of the species and (II) which may require special 
management considerations or protections; and (ii) specific areas 
outside the geographical area occupied by the species at the time it is 
listed, upon a determination by the Secretary that such areas are 
essential for the conservation of the species. Section 4(b)(2) of the 
Act states that the Secretary must make the designation on the basis of 
the best scientific data available and after taking into consideration 
the economic impact, the impact on national security, and any other 
relevant impacts of specifying any particular area as critical habitat.
    Economic analysis. In accordance with section 4(b)(2) of the Act, 
we prepared an economic analysis of the impacts of designating critical 
habitat. We made the draft economic analysis

[[Page 40116]]

available for public comments on November 3, 2020 (85 FR 69540).
    Peer review and public comment. We sought the expert opinions of 
eight appropriate specialists with expertise in biology, habitat, and 
threats to the species regarding the species status assessment report. 
We did not receive any responses to our peer review requests. We also 
considered all comments and information we received from the public 
during the comment period for the proposed listing and critical habitat 
for the Canoe Creek clubshell.

Previous Federal Actions

    On November 3, 2020, we published in the Federal Register a 
proposed rule (85 FR 69540) to list the Canoe Creek clubshell as an 
endangered species and to designate critical habitat for the species 
under the Act (16 U.S.C. 1531 et seq.). Please refer to that proposed 
ruled for a detailed description of other previous Federal actions 
concerning the Canoe Creek clubshell prior to the proposal's 
publication.

Summary of Changes From the Proposed Rule

    In preparing this final rule, we reviewed and fully considered 
comments from the public on our November 3, 2020, proposed rule 
regarding Canoe Creek clubshell (85 FR 69540). This final rule 
incorporates minor, non-substantive changes to the critical habitat 
unit descriptions (see Critical Habitat Designation) based on the 
comments we received. However, the information we received during the 
comment period for the proposed rule did not change our determination 
that the Canoe Creek clubshell is an endangered species.

Supporting Documents

    A species status assessment (SSA) team prepared an SSA report for 
the Canoe Creek clubshell. The SSA team was composed of Service 
biologists, in consultation with other species experts. The SSA report 
represents a compilation of the best scientific and commercial data 
available concerning the status of the species, including the impacts 
of past, present, and future factors (both negative and beneficial) 
affecting the species. The SSA report and other materials relating to 
this rule can be found at https://www.regulations.gov under Docket No. 
FWS-R4-ES-2020-0078.

Summary of Comments and Recommendations

    In the November 3, 2020, proposed rule, we requested that 
interested parties submit written comments by January 4, 2021. We also 
contacted appropriate Federal and State agencies, scientific experts 
and organizations, and other interested parties and invited them to 
comment on the proposed rule. A newspaper notice inviting general 
public comment was published in the The St. Clair Times legal notice 
section on November 12, 2020. Although we invited requests for a public 
hearing in the rule, we did not receive any requests for a public 
hearing. All substantive information provided during the comment period 
has either been incorporated directly into this final determination, in 
the final economic analysis, or is addressed below.

Public Comments

    We received 60 public comments in response to the proposed rule. We 
reviewed all comments we received during the public comment period for 
substantive issues and new information regarding the proposed rule. No 
new information concerning the proposed listing and designation of 
critical habitat for the Canoe Creek clubshell was received. Fifty-
eight commenters were supportive of the proposal to list the Canoe 
Creek clubshell as endangered, to designate critical habitat, or both. 
Two commenters provided information about forestry practices but 
offered neither support nor opposition to the proposed rule. We did not 
receive any comments in opposition of the proposed rule. Below, we 
provide a summary of public comments we received; however, comments 
outside the scope of the proposed rule and those without supporting 
information did not warrant an explicit response and, thus, are not 
presented here. Identical or similar comments have been consolidated 
and a single response provided.
    (1) Comment: One commenter indicated that the Service should 
consider forestry best management practices (BMPs) as part of the 
overall conservation benefit for the species and account for these 
beneficial actions in any threat analysis as done in past rules. A 
related comment recommended that the Service expressly recognize 
silviculture conducted in accordance with State-approved BMPs as a 
category of activities not expected to negatively impact the species' 
conservation and recovery efforts in the final rule's preamble and that 
these BMPs can ameliorate threats. Similarly, another commenter 
recommended the Service include a discussion of not only the ability of 
forest management to retain adequate conditions but also to improve 
forest conditions, which may redound to the benefit of species.
    Our Response: We have considered the conservation benefits of 
implementing BMPs in our analyses. For example, in the SSA report, we 
explain that forestry BMPs will likely reduce sediments originating 
from forestry activities. We recognize that silvicultural operations 
(forestry activities) are widely implemented in accordance with State-
approved best management practices (BMPs), and the adherence to these 
BMPs broadly protects water quality particularly related to 
sedimentation to an extent that does not impair the species' 
conservation. Consistent with how we have addressed this issue in other 
relevant rules, we identified normal silvicultural practices that are 
carried out in accordance with BMPs as an example of an action that is 
unlikely to result in a violation of section 9 and the use of BMPs as 
an example of an activity that could ameliorate threats to physical and 
biological features essential to the conservation of the Canoe Creek 
clubshell. However, given the species' low abundance and lack of 
successful reproduction and recruitment, the potential protection of 
water quality provided by BMPs do not appear to offset factors of 
decline. Therefore, we did not include a discussion of the ability of 
forest management to improve forest conditions to an extent that they 
may benefit the Canoe Creek clubshell.
    (2) Comment: One commenter recommended that the description of 
designated critical habitat be clarified to state that critical habitat 
is limited to the bankfull width of the designated streams.
    Our Response: We have clarified in this final rule that the 
boundaries of critical habitat extend laterally to the bankfull width. 
The critical habitat proposed for designation was not intended to 
include adjacent terrestrial components.
    (3) Comment: One commenter recommended the Service note in the 
final rule its willingness to work collaboratively with forest owners 
adjacent to designated critical habitat to develop streamlined 
agreements, similar to Safe Harbor Agreements, that provided regulatory 
assurances to landowners and recognize that forest management conducted 
with approved BMPs will not be subject to enforcement under the 
prohibition on take in section 9 of the ESA.
    Our Response: It is our mission to collaborate with public and 
private partners to conserve, protect, and enhance fish and wildlife 
and the habitats on which they depend. Tools are available through 
Section 10 of the

[[Page 40117]]

Act for private landowners to coordinate with the Service to facilitate 
conservation of listed species and receive regulatory assurances and 
certainty for their actions. A discussion of these conservation tools 
is outside the scope of this rulemaking, but they will be identified 
and discussed in forthcoming recovery documents. We agree that when 
used and properly implemented, BMPs can offer a substantial improvement 
to water quality compared to forestry operations where BMPs are not 
properly implemented. Normal silvicultural practices that are carried 
out in accordance with BMPs as an action that can maintain favorable 
habitat conditions for the Canoe Creek clubshell. In addition, we 
recognize that silvicultural operations are widely implemented in 
accordance with State-approved best management practices (BMPs; as 
reviewed by Cristan et al. 2018, entire), and the adherence to these 
BMPs broadly protects water quality, particularly related to 
sedimentation (as reviewed by Cristan et al. 2016, entire; Warrington 
et al. 2017, entire; and Schilling et al. 2021, entire), to an extent 
that does not impair the species' conservation. However, if adverse 
effects to listed species or critical habitat are likely or if take is 
reasonably certain to occur, formal consultation under section 7 with 
an accompanying biological opinion or a take permit under section 10 of 
the Act would be necessary to avoid violating section 9 of the Act.

I. Final Listing Determination

Background

    The Canoe Creek clubshell is a narrow endemic mussel that is only 
known from the Big Canoe Creek watershed in St. Clair and Etowah 
counties, Alabama. The species' current distribution is similar to its 
historical distribution, which has likely always been narrow. However, 
the current range of the species is disjunct; the eastern and western 
portions of its range are separated by a stretch of river that exceeds 
the dispersal distance of the species' host fish (the clubshell's 
primary mode of dispersal in the larval stage) and contains an 
inhabitable portion. As a result, we believe there is no genetic 
exchange occurring between the western and eastern portions of the 
species' range and we characterize these portions as subpopulations.
    Please refer to our November 3, 2020, proposed rule (85 FR 69540) 
and the species status assessment report (Service 2020, entire) for a 
summary of species background information.
[GRAPHIC] [TIFF OMITTED] TR06JY22.000

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species is an ``endangered species'' or a ``threatened 
species.'' The Act defines an ``endangered species'' as a species that 
is in danger of extinction throughout all or a significant portion of 
its range, and a ``threatened species'' as a species that is likely to 
become an endangered species within the foreseeable future throughout 
all or a significant portion of its range. The Act requires that we 
determine whether any species is an

[[Page 40118]]

``endangered species'' or a ``threatened species'' because of any of 
the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the expected response by the species, 
and the effects of the threats--in light of those actions and 
conditions that will ameliorate the threats--on an individual, 
population, and species level. We evaluate each threat and its expected 
effects on the species, then analyze the cumulative effect of all of 
the threats on the species as a whole. We also consider the cumulative 
effect of the threats in light of those actions and conditions that 
will have positive effects on the species, such as any existing 
regulatory mechanisms or conservation efforts. The Secretary determines 
whether the species meets the definition of an ``endangered species'' 
or a ``threatened species'' only after conducting this cumulative 
analysis and describing the expected effect on the species now and in 
the foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as the 
Services can reasonably determine that both the future threats and the 
species' responses to those threats are likely. In other words, the 
foreseeable future is the period of time in which we can make reliable 
predictions. ``Reliable'' does not mean ``certain''; it means 
sufficient to provide a reasonable degree of confidence in the 
prediction. Thus, a prediction is reliable if it is reasonable to 
depend on it when making decisions.
    It is not always possible or necessary to define foreseeable future 
as a particular number of years. Analysis of the foreseeable future 
uses the best scientific and commercial data available and should 
consider the timeframes applicable to the relevant threats and to the 
species' likely responses to those threats in view of its life-history 
characteristics. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of the species, including an assessment of the potential 
threats to the species. The SSA report does not represent a decision by 
the Service on whether the species should be proposed for listing as an 
endangered or threatened species under the Act. It does, however, 
provide the scientific basis that informs our regulatory decisions, 
which involve the further application of standards within the Act and 
its implementing regulations and policies. The following is a summary 
of the key results and conclusions from the SSA report; the full SSA 
report can be found at Docket No. FWS-R4-ES-2020-0078 on https://www.regulations.gov.
    To assess the Canoe Creek clubshell's viability, we used the three 
conservation biology principles of resiliency, redundancy, and 
representation (Shaffer and Stein 2000, pp. 306-310). Briefly, 
resiliency supports the ability of the species to withstand 
environmental and demographic stochasticity (e.g., wet or dry, warm or 
cold years), redundancy supports the ability of the species to 
withstand catastrophic events (e.g., droughts, large pollution events), 
and representation supports the ability of the species to adapt over 
time to long-term changes in the environment (e.g., climate changes). 
In general, the more resilient and redundant a species is and the more 
representation it has, the more likely it is to sustain populations 
over time, even under changing environmental conditions. Using these 
principles, we identified the species' ecological requirements for 
survival and reproduction at the individual, population, and species 
levels, and described the beneficial and risk factors influencing the 
species' viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences. Throughout all of these 
stages, we used the best available information to characterize 
viability as the ability of a species to sustain populations in the 
wild over time. We use this information to inform our regulatory 
decision.

Summary of Biological Status and Threats

    In this discussion, we review the biological condition of the 
species and its resources, and the threats that influence the species' 
current and future condition, in order to assess the species' overall 
viability and the risks to that viability.

Individual, Subpopulation, and Species Needs

    Juvenile and adult Canoe Creek clubshells need stable instream 
substrates, including, but not limited to, coarse sand and gravel for 
settlement and sheltering. Clean, flowing water is needed to keep these 
substrates free from excess sedimentation that may reduce the amount of 
available habitat for sheltering, hinder a mussel's ability to feed, 
and, in severe instances, cause smothering and death (see Risk Factors 
for the Canoe Creek Clubshell, below, for information on impacts of 
sedimentation). Clean, flowing water is also needed to attract host 
fish and disperse juveniles throughout stream reaches. In addition, 
freshwater mussels are sensitive to changes in water quality parameters 
such as temperature, dissolved oxygen, ammonia, and

[[Page 40119]]

pollutants. Therefore, while the precise tolerance thresholds for these 
water quality parameters are unknown for the Canoe Creek clubshell, we 
know the species requires water of sufficient quality to sustain its 
natural physiological processes for normal behavior, growth, and 
survival at all life stages (see Risk Factors for the Canoe Creek 
Clubshell, below, for more information on water quality impairments). 
Food and nutrients are needed for individuals at all life stages for 
survival and growth. Lastly, the presence of host fish is needed for 
successful reproduction and dispersal. Host fish used by the Canoe 
Creek clubshell include the tricolor shiner (Cyprinella trichroistia), 
Alabama shiner (C. callistia), and striped shiner (Luxilus 
chrysocephalus), among others.
    To be healthy at the subpopulation and species levels, the Canoe 
Creek clubshell needs individuals to be present in sufficient numbers 
throughout the subpopulations; reproduction, which is evidenced by the 
presence of multiple age classes within a subpopulation; and 
connectivity among mussel beds (local aggregations) within a 
subpopulation and between subpopulations. Mussel abundance facilitates 
reproduction. Mussels do not actively seek mates; males release sperm 
into the water column, where it drifts until a female takes it in 
(Moles and Layzer 2008, p. 212). Therefore, successful reproduction and 
subpopulation growth requires a sufficient number of females to be 
downstream of a sufficient number of males.
    There must also be multiple mussel beds of sufficient density such 
that local stochastic events do not eliminate most or all the beds. 
Connectivity among beds within each subpopulation is also needed to 
allow mussel beds within a stream reach to be recolonized by one 
another and recover from stochastic events. A nonlinear distribution of 
beds over a sufficiently large area helps buffer against stochastic 
events that may impact portions of a clubshell subpopulation. 
Similarly, having multiple subpopulations that are connected to one 
another protects the species from catastrophic events, such as spills, 
because subpopulations can recolonize one another following events that 
impact the entirety or portions of one subpopulation.

Risk Factors for the Canoe Creek Clubshell

    We identified several factors that are influencing the viability of 
the Canoe Creek clubshell. The primary factors include sedimentation, 
water quality, and climate events. For a complete discussion on the 
factors influencing the Canoe Creek clubshell, including the impacts of 
connectivity and conservation efforts, see the species status 
assessment report (Service 2020, pp. 30-53).
Sedimentation
    Under a natural flow regime, sediments are washed through river and 
stream systems, and the overall amount of sediment in the substrate 
remains relatively stable over time. However, some past and ongoing 
activities or practices can result in elevated levels of sediment in 
the substrate. This excessive stream sedimentation (or siltation) can 
be caused by soil erosion associated with upland activities (e.g., 
agriculture, poor forest management practices, unpaved roads, road 
construction, development, unstable streambanks, and urbanization) and 
stream channel destabilization associated with other activities (e.g., 
dredging, poorly installed culverts, pipeline crossings, or other 
instream structures) (Brim Box and Mossa 1999, p. 102; Wynn et al. 
2016, pp. 36-52). In severe cases, stream bottoms can become 
``embedded,'' whereby substrate features including larger cobbles, 
gravel, and boulders are surrounded by, or buried in, sediment, which 
eliminates interstitial spaces (small openings between rocks and 
gravels).
    The negative effects of increased sedimentation on mussels are 
relatively well-understood (Brim Box and Mossa 1999, entire; Gascho 
Landis et al. 2013, entire; Poole and Downing 2004, pp. 118-124). 
First, the river processes and sediment dynamics caused by increased 
sedimentation degrade and reduce the amount of habitat available to 
mussels. Juvenile mussels burrow into interstitial spaces in the 
substrate. Therefore, juveniles are particularly susceptible to excess 
sedimentation that removes those spaces, and they are unable to find 
adequate habitat to survive and become adults (Brim Box and Mossa 1999, 
p. 100). Second, sedimentation interferes with juvenile and adult 
physiological processes and behaviors. Mussels can die from being 
physically buried and smothered by excessive sediment. However, the 
primary impacts of excess sedimentation on individuals are sublethal; 
sedimentation can reduce a mussel's ability to feed (Brim Box and Mossa 
1999, p. 101) and reproduce (by reducing the success of glochidial 
attachment and metamorphosis; Beussink 2007, pp. 19-20).
    The primary activities causing sedimentation that have occurred, 
and continue to occur, in the Big Canoe Creek watershed include 
urbanization and development, agricultural practices, and forest 
management (Wynn et al. 2016, pp. 9-10, 50-51). Approximately 59 
percent of the Big Canoe Creek watershed is in evergreen or mixed 
deciduous forest, and forestry activities are common in central Big 
Canoe Creek and Little Canoe Creek West. Agriculture is also common, 
with pasture and small farms comprising 18 percent, and cultivated 
crops comprising 2.3 percent, of land use in the watershed. Urban 
development comprises 6 percent of the watershed's land use and is 
concentrated near the cities of Ashville and Springville near the 
western clubshell subpopulation, and Steele near the eastern 
subpopulation (Wynn et al. 2016, p. 9).
    A rapid habitat assessment survey that included an evaluation of 
sedimentation deposition was completed at multiple sites in the Big 
Canoe Creek watershed from 2008-2013 (Wynn et al. 2016, pp. 37-39). 
Overall habitat quality varied from poor to optimal throughout Big 
Canoe Creek's nine subwatersheds, but six subwatersheds were reported 
impaired by sedimentation (Wynn et al. 2016, p. 51).
Water Quality
    Water quality in freshwater systems can be impaired through 
contamination or alteration of water chemistry. Chemical contaminants 
are ubiquitous throughout the environment and are a major reason for 
the current declining status of freshwater mussel species nationwide 
(Augspurger et al. 2007, p. 2025). Chemicals such as ammonia enter the 
environment through both point and nonpoint discharges, including 
spills, industrial sources, municipal effluents, and agricultural 
runoff. These sources contribute organic compounds, heavy metals, 
pesticides, herbicides, and a wide variety of newly emerging 
contaminants to the aquatic environment.
    Alteration of water chemistry parameters is another type of 
impairment. Reduced dissolved oxygen levels and increased water 
temperatures are of particular concern. Runoff and wastewater can wash 
nutrients (e.g., nitrogen and phosphorus) into the water column, which 
can stimulate excessive plant growth (Carpenter et al. 1998, p. 561). 
The decomposition of this plant material can lead to reduced dissolved 
oxygen levels and eutrophication. Increased temperatures from climate 
changes (Alder and Hostetler 2013, U.S. Geological Survey (USGS) 
National Climate Change Viewer) and low flow events during periods of 
drought can

[[Page 40120]]

also reduce dissolved oxygen levels (Haag and Warren 2008, p. 1176).
    The effects of water quality impairments on freshwater mussels is 
well studied (Naimo 1995, entire; Havlik and Marking 1987, entire; 
Milam et al. 2005, entire; Markich 2017, entire). Contaminants, reduced 
dissolved oxygen levels, and increased temperatures are primary types 
of impairments that affect mussel survival, reproduction, and fitness. 
Freshwater mussels in their early life stages are among the most 
sensitive organisms to contaminants, but all life stages are vulnerable 
and can suffer from both acute and chronic effects (Augspurger et al. 
2003, p. 2569). Depending on the type and concentration, contaminants 
can cause mortality of or sublethal effects (e.g., reduced filtration 
efficiency, growth, and reproduction) on mussels at all life stages.
    In addition to contaminants, alterations in water chemistry, 
especially reduced dissolved oxygen levels and increased temperatures, 
can have negative impacts on mussels. Although juveniles tend to be 
more vulnerable, reduced dissolved oxygen levels can have lethal and 
sublethal impacts on mussels in all life stages. Mussels require oxygen 
for metabolism and when levels are low, normal functions and behaviors 
(e.g., ventilation, filtration, oxygen consumption, feeding, growth, 
and reproduction) are impaired. Below a certain level, mortality can 
occur. Lastly, increased water temperatures can impact mussel health. 
Young juveniles (less than 3 weeks old) are particularly sensitive, 
with upper and lower thermal limits 2 to 3 degrees Celsius ([deg]C) 
higher or lower than juveniles 1 to 2 years older (Martin 2016, pp. 14-
17). While drastic increases in temperatures beyond thermal tolerances 
can cause mortality, the most common negative effects of temperatures 
on mussels is caused by relatively minor increases that exacerbate 
impacts caused by other issues, such as contamination. For example, 
temperature increases impair physiological functions like immune 
response, filtration and excretion rates, oxygen consumption, and 
growth (Pandolfo et al. 2012, p. 73). Temperature increases have been 
linked to increased respiration rates and have also been linked to 
increased toxicity of some metals, like copper (Rao and Khan 2000, pp. 
176-177).
    In the Big Canoe Creek watershed, water quality impairments have 
historically impacted the Canoe Creek clubshell and continue to do so. 
Rapid habitat assessments conducted from 2008-2013 found 24 of 34 sites 
to have suboptimal, marginal, or poor habitat and sedimentation and 
elevated nutrient levels were documented throughout the watershed. For 
further discussion on water quality impairments within the range of the 
Canoe Creek clubshell, see the species status assessment report 
(Service 2020, pp. 35-43). Historically, point source discharges and 
pesticide and herbicide applications were not well regulated. The Clean 
Water Act (CWA; 33 U.S.C. 1251 et seq.) is the primary Federal law in 
the United States governing water pollution. A primary role of the CWA 
is to regulate the point source discharge of pollutants to surface 
waters through a permit process pursuant to the National Pollutant 
Discharge Elimination System (NPDES). The NPDES permit process may be 
delegated by the Environmental Protection Agency (EPA) to the States. 
In Alabama, this authority has been delegated to the Alabama Department 
of Environmental Management. Currently, Alabama Department of 
Environmental Management requires that discharges not exceed state 
water quality standards or criteria. However, it has been found that 
organisms commonly used in toxicity testing for determining water 
quality criteria may be less sensitive to tested toxicants than some 
freshwater mussels (Wang et al. 2007). Because there is no information 
on the Canoe Creek clubshell's sensitivity to common pollutants, we are 
not sure whether Federal and State water quality parameters are 
protective for this species.
    The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA; 7 
U.S.C. 136 et seq.) is intended to protect against unreasonable human 
health or environmental effects. While pesticides are usually tested on 
standard biological media (e.g., honey bees (Apis sp.), daphnia 
(Daphnia magna), bluegill sunfish (Lepomis macrochirus), rainbow trout 
(Oncorhynchus mykiss), mice (Mus musculus)), often endangered and 
threatened species are more susceptible to pollutants than test 
organisms commonly used in bioassays. While State and Federal 
regulations have become more stringent and toxicity and environmental 
consequences of contaminants are better understood, the use of many 
pesticides and herbicides are more commonplace. Runoff and discharges 
are also concerns now and into the future with the ongoing urbanization 
of the area.
Climate Events
    Climate events such as droughts and floods can have significant 
impacts on freshwater systems and their fundamental ecological 
processes (Poff et al. 2002, pp. ii-v). Drought can cause dewatering of 
freshwater habitats and low flows, which exacerbate water quality 
impairments (e.g., dissolved oxygen, temperature, contaminants). 
Streams with smaller drainage areas are especially vulnerable to 
drought because they are more likely to experience extensive dewatering 
than larger streams that maintain substantial flow (Haag and Warren 
2008, pp. 1172-1173). Floods can cause excessive erosion, destabilize 
banks and bed materials, and lead to increases in sedimentation and 
suspended solids. Climate change can affect the frequency and duration 
of drought and floods, as well as alter normal temperature regimes. 
Higher water temperatures, which are common during the low flow periods 
of droughts, decrease mussel survival (Gough et al. 2012, p. 2363).
    Severe drought and major floods can have significant impacts on 
mussel communities (Haag and Warren 2008, p. 1165; Hastie et al. 2001, 
p. 107; Hastie et al. 2003, pp. 40-45). Reduced flows from drought can 
isolate or eliminate areas of suitable habitat for mussels in all life 
stages and render individuals exposed and vulnerable to drying and 
predation (Golladay et al. 2004, pp. 503-504). Drought can also degrade 
water quality (e.g., decreased dissolved oxygen levels and increased 
temperatures), which can reduce mussel survival, reproduction, and 
fitness (Golladay et al. 2004, p. 501; Haag and Warren 2008, pp. 1174-
1176) (see discussion above under ``Water Quality''). If severe or 
frequent, droughts can cause substantial declines in mussel abundance. 
Flooding can also affect mussels by dislodging individuals and 
depositing them in unsuitable habitat, which can affect their ability 
to survive and reproduce (Hastie et al. 2001, pp. 108, 114). Higher 
turbidity and reduced visibility during high flows reduce the chances 
of successful fertilization of the female and impede the host fish's 
ability to find and take up conglutinates.
    The stream segments within Big Canoe Creek where clubshells occur 
have relatively small drainage sizes, which render them particularly 
vulnerable to drought. Combined with other stressors such as water 
quality degradation that occur within the watershed, severe droughts 
can have significant impacts on the species (Haag and Warren 2008, p. 
1175). No studies have been conducted specifically on the impacts of 
drought events to Canoe Creek clubshells within Big Canoe Creek. 
However, neighboring streams of similar size and condition experienced 
drastic declines in the density and

[[Page 40121]]

abundance of the warrior pigtoe (Pleurobema rubellum, a mussel species 
similar to the clubshell). Following a severe drought event in 2000, 
warrior pigtoe abundance declined by 65 to 83 percent (Haag and Warren 
2008, p. 1165), and multiple sites were extirpated. We presume that Big 
Canoe Creek faced similar conditions following this and other severe 
drought events because of its geographic proximity and similar size and 
condition. Additionally, we presume the Canoe Creek clubshell's 
response to the drought event was comparable to that of the warrior 
pigtoe given its similar life-history characteristics and physiological 
and habitat needs.
    While the impacts on mussels following the drought in 2000 were 
well documented (Golladay et al. 2004, entire; Haag and Warren 2008, 
entire), drought events have been occurring in the area and affecting 
mussel communities for decades. The severity and frequency of droughts 
is closely monitored and recorded at the local and State levels by 
multiple initiatives (NDMC 2019; USGS 2019). The National Oceanic and 
Atmospheric Administration's (NOAA) National Integrated Drought 
Information System (NIDIS) program keeps one of the most extensive 
records (beginning in 1895) of drought in Alabama. The program uses the 
Palmer Drought Severity Index (PDSI), which is a measurement of dryness 
based on evapotranspiration (NOAA 2020). These data indicate that over 
the past 100 years (1918-2018), approximately 6 percent of years 
experienced severe drought.
    While severe droughts are natural events that these streams have 
always experienced, this part of Alabama has undergone more frequent 
severe drought events over the last 20 years; the number of severe 
drought years has increased to approximately 11 percent (NOAA 2020, 
unpaginated). Water flow gauge data at a Big Canoe Creek gauging site 
reported low flows that correlate to the severe and exceptional 
droughts in the Big Canoe Creek watershed during 2000, 2007, and 2008 
(USGS 2019). The severe drought events that occurred in relatively 
short succession during a prolonged dry period likely caused severe 
impacts to the survival, reproduction, and abundance of Canoe Creek 
clubshells. Although we do not have specific data on the Canoe Creek 
clubshell in response to these drought events, the decline of other 
freshwater mussel species was documented in a nearby watershed. The 
dark pigtoe (Pleurobema furvum), a freshwater mussel with similar life 
history characteristics of the Canoe Creek clubshell, was extirpated at 
sites with low densities following the 2000 severe drought event (Haag 
and Warran 2008, pp. 1173).
Cumulative Effects
    It is likely that individual stressors identified are synergistic 
and have cumulative impacts on the species. For instance, an increase 
in drought frequency would amplify water quality issues predicted to 
occur with increases in developed land use. Decreased stream flows 
would be even less able to accommodate increasing levels of non-point 
source pollution associated with and expected from increased human 
populations within the range of the Canoe Creek clubshell. Further, 
increasing water temperatures from drought events have been and will 
continue to exacerbate water quality issues such as decreases in 
dissolved oxygen in Big Canoe Creek (see ``Climate Events,'' above).

Species Condition

    The Canoe Creek clubshell's ability to withstand, or be resilient 
to, stochastic events and disturbances such as drought and fluctuations 
in reproductive rates is extremely limited. The species has likely 
always been a rare, narrow endemic of the Big Canoe Creek watershed; 
however, past and ongoing stressors, including decreased water quality 
from drought events, development, and agriculture, among other sources, 
have greatly reduced the resiliency of the species. At present, the 
clubshell has extremely low abundance, shows no signs of successful 
reproduction, and has poor connectivity within and among 
subpopulations.
    During comprehensive mussel surveys conducted in 2017 and 2018 in 
the Big Canoe Creek watershed, only 25 Canoe Creek clubshells were 
found (Fobian et al. 2017, entire; Fobian 2018, entire). In the western 
subpopulation, 9 individuals were found in 2 of the 40 sites that were 
surveyed. In the eastern subpopulation, 16 individuals were found at 
only 1 of the 8 sites that were surveyed. In the 25 years prior to 
these surveys, fewer than 15 live individuals were found (Fobian et al. 
2017, pp. 9-10). Further, the age structure of the individuals located 
consisted of aged adults and the surveys found no evidence of 
successful recruitment (i.e., sub adults (Fobian et al. 2017, pp. 9-
10)).
    In addition to a low abundance, the clubshell is experiencing 
recruitment failure; juveniles are not surviving to reproductive ages 
and joining the adult population (Strayer and Malcom 2012, pp. 1783-
1785). This is evidenced by the species' heavily skewed age class 
distribution. Of the 25 individuals found in recent surveys, all were 
aging adults (Fobian et al. 2017, entire; Fobian 2018, entire). This 
skewed age class distribution is indicative of a species that is not 
successfully reproducing and is in decline.
    Lastly, the resiliency of each subpopulation is limited by their 
disjunct distribution. The stretch of unsuitable habitat separating the 
subpopulations prevents individuals from dispersing from one 
subpopulation to another. This isolation renders the subpopulations 
vulnerable to extirpation because individuals are unable to recolonize 
portions of the range following stochastic disturbances that eliminate 
entire mussel beds or a subpopulation.
    The Canoe Creek clubshell's ability to withstand catastrophic 
events (redundancy) is also limited, primarily because of its narrow 
range. Severe droughts resulting in decreased water quality and direct 
mortality were likely the primary causes of the species' recent 
decline. Compared to a more wide-ranging species whose risk is spread 
over multiple populations across its range, the entirety of the 
clubshell's range is impacted by a severe drought event. However, the 
impacts of other potential catastrophic events, such as contaminant 
spills, may be restricted to a portion of the clubshell's range, 
especially because the species' subpopulations are not directly 
downstream from one another.
    The ability of the Canoe Creek clubshell to adapt to changing 
environmental conditions (representation) over time is also likely 
limited. There are no studies that have explicitly explored the 
species' adaptive capacity or the fundamental components--phenotypic 
plasticity, dispersal ability, and genetic diversity--by which it is 
characterized. The clubshell is a narrow endemic, inhabiting a single 
watershed, and we do not observe any ecological, behavioral, or other 
form of diversity that may indicate adaptive capacity across its range; 
thus, we presume the species currently has limited ability to adapt to 
changing environmental conditions.

Future Condition

    As part of the SSA, we also developed three future condition 
scenarios to capture the range of uncertainties regarding future 
threats and the projected responses by the Canoe Creek clubshell. Our 
scenarios assumed a moderate or enhanced probability of severe drought, 
and either propagation

[[Page 40122]]

or no propagation of the species. Because we determined that the 
current condition of the Canoe Creek clubshell was consistent with an 
endangered species (see Determination of Canoe Creek Clubshell's 
Status, below), we are not presenting the results of the future 
scenarios in this rule. Please refer to the SSA report (Service 2020) 
for the full analysis of future scenarios.
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have not 
only analyzed individual effects on the species, but we have also 
analyzed their potential cumulative effects. We incorporate the 
cumulative effects into our SSA analysis when we characterize the 
current and future condition of the species. To assess the current and 
future condition of the species, we undertake an iterative analysis 
that encompasses and incorporates the threats individually and then 
accumulates and evaluates the effects of all the factors that may be 
influencing the species, including threats and conservation efforts. 
Because the SSA framework considers not just the presence of the 
factors, but to what degree they collectively influence risk to the 
entire species, our assessment integrates the cumulative effects of the 
factors and replaces a standalone cumulative effects analysis.

Conservation Efforts and Regulatory Mechanisms

State Protections
    The Canoe Creek clubshell is currently ranked as a priority 1 
(highest conservation concern) species of greatest conservation need in 
Alabama (Shelton-Nix 2017, p. 51; ANHP 2017, p. 41), but is not 
currently listed as State threatened or endangered (ADCNR 2015, p. 23, 
ANHP 2017, p. 41). However, all mussel species not listed as a 
protected species under the Invertebrate Species Regulation are 
partially protected by other regulations of the Alabama Game, Fish, and 
Fur Bearing Animals Regulations. Regulation 220-2-.104 prohibits the 
commercial harvest of all but the 11 mussel species for which 
commercial harvest is legal (ADCNR 2015, p. 438). The Canoe Creek 
clubshell is not one of the 11 mussel species for which commercial 
harvest is legal.
Conservation Actions
    The Service and numerous partners are working to provide technical 
guidance and offering conservation tools to meet both species and 
habitat needs in aquatic systems of Alabama. The Big Canoe Creek 
watershed has been designated as a Strategic Habitat Unit by the 
Alabama Rivers and Streams Network (a group of non-profit 
organizations, private companies, State and Federal agencies and 
concerned citizens that recognize the importance of clean water and 
working together to maintain healthy water supplies and investigate 
water quality, habitat conditions, and biological quality in rivers and 
streams and make these findings to the public) for the purpose of 
facilitating and coordinating watershed management and restoration 
efforts as well as focus funding to address habitat and water quality 
issues (Wynn et al. 2016, p. 11, Wynn et al. 2018, entire). In 2016, 
the Geological Survey of Alabama completed a watershed assessment of 
the Big Canoe Creek system for the recovery and restoration of 
imperiled aquatic species (Wynn et al. 2016, entire). This assessment 
is being used by multiple Federal, State, and non-government 
organizations to contribute to restoration projects that will improve 
habitat and water quality for at risk and listed species like the Canoe 
Creek clubshell. An example of organizations working together under 
Alabama Rivers and Streams Network is the removal of the Goodwin's Mill 
Dam in 2013 on Big Canoe Creek, which restored connectivity to a 
portion of the range of the Canoe Creek clubshell within Little Canoe 
Creek (west). Multiple agencies and groups came together for this 
removal including: the Service's Partners for Fish and Wildlife 
Program, Ecological Services, and Fisheries programs, Alabama 
Department of Conservation and Natural Resources (ADCNR), Geological 
Survey of Alabama, Alabama Department of Environmental Management, 
Alabama Power Company, The Nature Conservancy, Coosa River Keeper, and 
Friends of Big Canoe Creek.
    The Nature Conservancy is very active in Alabama and has listed Big 
Canoe Creek as a priority watershed for focused conservation efforts. 
The Nature Conservancy has been awarded a National Fish and Wildlife 
Foundation grant to create a watershed coordinator position for the Big 
Canoe Creek watershed that will work with landowners on headwater 
protection through land acquisition and easements; protect water 
quality by restoring and bolstering riparian buffers on public and 
private lands; install on the ground restoration projects that 
stabilize eroding streambanks and increase overall water quality and 
instream habitat on public and private lands; and promote public access 
and recreational use of the river through conservation and protection 
of the water resource. The Nature Conservancy has also received funding 
from Natural Resources Conservation Service's Regional Conservation 
Partnership Program to restore degrading streambanks in several 
watersheds in Alabama, including the Big Canoe Creek watershed. These 
efforts are in their early stages and have not yet resulted in 
improvements to the status of the Canoe Creek clubshell.
    The Friends of Big Canoe Creek is a non-governmental organization 
formed in 2008 for purpose of preserving and protecting the Big Canoe 
Creek watershed through education and participation of on the ground 
conservation efforts that was instrumental in advocating for and 
nominating land along the creek for inclusion into Forever Wild, a 
State program that buys land to protect and preserve it. As of 2018, a 
382-acre tract of land was established as the Big Canoe Creek Nature 
Preserve with about a mile of creek frontage near Springville in St. 
Clair County. The preserve will be retained by the Alabama Land Trust 
and maintained by the City of Springville. While the Canoe Creek 
clubshell is not known to occupy the Big Canoe Creek Nature preserve, 
it is expected that the species will benefit from the habitat 
protections the preserve provides.
    In 2021, the Alabama Aquatic Biodiversity Center (a program of the 
ADCNR) submitted a final report detailing aspects of the species' 
reproductive periodicity, fish host relationships, and propagation 
methods. The Alabama Aquatic Biodiversity Center has been successful in 
propagating individuals of the species and has begun releasing them 
into the Big Canoe Creek watershed. In March 2020, approximately 1,500 
individuals of the Canoe Creek clubshell were stocked into Big Canoe 
Creek. Annual monitoring to evaluate growth and survival is planned, 
and additional propagation and stocking efforts will continue in 
upcoming years.
    In summary, the Canoe Creek clubshell is currently comprised of a 
critically low number of older adults that are failing to recruit 
young. The severity and frequency of drought events in the past two 
decades, combined with other ongoing habitat-related stressors such as 
sedimentation and water quality degradation and the mussel's naturally 
inefficient reproductive strategy, likely caused the decline of the 
species to its current vulnerable condition. The Canoe Creek 
clubshell's vulnerability to ongoing

[[Page 40123]]

stressors is heightened to such a degree that it is currently on the 
brink of extinction in the wild as a result of its narrow range and 
critically low numbers.

Determination of the Canoe Creek Clubshell's Status

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

Canoe Creek Clubshell's Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors, we find that past and ongoing stressors including decreased 
water quality from drought, development, and agriculture, among other 
sources (Factor A), have reduced the resiliency of the Canoe Creek 
clubshell to such a degree that the species is particularly vulnerable 
to extinction. The Canoe Creek clubshell has likely always been a rare, 
narrow endemic within the Big Canoe Creek, and the species has some 
natural ability to withstand stochastic demographic fluctuations and 
catastrophic events such as a severe drought, which are characteristic 
of the environment in which it evolved. However, the frequency of 
severe drought events in the past two decades, combined with other 
ongoing habitat-related stressors and the mussel's naturally 
inefficient reproductive strategy, likely caused the decline of the 
species to its current vulnerable condition from which it is likely 
unable to recover naturally. The species' declining trend and tenuous 
status is evidenced by the results of recent comprehensive surveys in 
both the western and eastern subpopulations that reveal the species is 
comprised of a limited number of older adults that are failing to 
recruit young. We anticipate these threats will continue to act on the 
species in the future. The Canoe Creek clubshell's vulnerability to 
ongoing stressors is heightened as a result of its narrow range and 
critically low numbers such that it is currently in danger of 
extinction throughout its range. Thus, after assessing the best 
available information, we conclude that the Canoe Creek clubshell is in 
danger of extinction throughout all of its range.

Canoe Creek Clubshell's Status Throughout a Significant Portion of Its 
Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. We have determined the Canoe Creek clubshell is in danger of 
extinction throughout all of its range and, accordingly, did not 
undertake an analysis to determine whether there is a significant 
portion of its range that may have a different status. Because we have 
determined the Canoe Creek clubshell warrants listing as endangered 
throughout all of its range, our determination does not conflict with 
the decision in Center for Biological Diversity v. Everson, 2020 WL 
437289 (D.D.C. Jan. 28, 2020), because that decision related to the SPR 
analyses for a species that warrants listing as threatened, not 
endangered, throughout all of its range.

Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the Canoe Creek clubshell meets the Act's 
definition of an endangered species. Therefore, we are listing the 
Canoe Creek clubshell as an endangered species in accordance with 
sections 3(6) and 4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness, and 
conservation by Federal, State, tribal, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies and 
the prohibitions against certain activities are discussed, in part, 
below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning consists of preparing draft and final recovery 
plans, beginning with the development of a recovery outline and making 
it available to the public subsequent to a final listing determination. 
The recovery outline guides the immediate implementation of urgent 
recovery actions and describes the process used to develop a recovery 
plan. Revisions of the plan may be done to address continuing or new 
threats to the species, as new substantive information becomes 
available. The recovery plan also identifies, to the maximum extent 
practicable, recovery criteria for review of when a species may be 
ready for reclassification from endangered to threatened 
(``downlisting'') or removal from protected status (``delisting''), and 
methods for monitoring recovery progress. Recovery plans also establish 
a framework for agencies to coordinate their recovery efforts and 
provide estimates of the cost of implementing recovery tasks. Recovery 
teams (composed of species experts, Federal and State agencies, 
nongovernmental organizations, and stakeholders) are often established 
to develop recovery plans. When completed, the recovery outline, draft 
recovery plan, and the final recovery plan will be available on our 
website (https://ecos.fws.gov/ecp/species/4693), or from our Alabama 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (e.g., restoration of

[[Page 40124]]

native vegetation), research, captive propagation and reintroduction, 
and outreach and education. The recovery of many listed species cannot 
be accomplished solely on Federal lands because their range may occur 
primarily or solely on non-Federal lands. To achieve recovery of these 
species requires cooperative conservation efforts on private, State, 
and Tribal lands.
    Following publication of this final rule, funding for recovery 
actions will be available from a variety of sources, including Federal 
budgets, State programs, and cost-share grants for non-Federal 
landowners, the academic community, and nongovernmental organizations. 
In addition, pursuant to section 6 of the Act, the State of Alabama 
would be eligible for Federal funds to implement management actions 
that promote the protection or recovery of the Canoe Creek clubshell. 
Information on our grant programs that are available to aid species 
recovery can be found at: https://www.fws.gov/service/financial-assistance.
    Please let us know if you are interested in participating in 
recovery efforts for the Canoe Creek clubshell. Additionally, we invite 
you to submit any new information on this species whenever it becomes 
available and any information you may have for recovery planning 
purposes (see FOR FURTHER INFORMATION CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as an 
endangered or threatened species and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. 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 any endangered or 
threatened species or 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 consult with the Service.
    Federal agency actions within the species' habitat that may require 
consultation, as described in the preceding paragraph include 
management and any other landscape-altering activities. These actions 
include, but are not limited to, work authorized by the U.S. Army Corps 
of Engineers that administers the issuance of section 404 Clean Water 
Act permits that regulate fill of wetlands and the Federal Highway 
Administration that regulates the construction and maintenance of roads 
or highways. Additional actions that may require consultation are those 
conducted by the U.S. Fish and Wildlife Service under the Partners for 
Fish and Wildlife Program. This program provides technical and 
financial assistance to private landowners and Tribes who are willing 
to help meet habitat needs of Federal trust species. The Farm Service 
Agency administers the Conservation Reserve Program, which includes 
providing incentives for farmers and private landowners to use their 
environmentally sensitive agricultural land for conservation benefit. 
The Natural Resources Conservation Service works with private 
landowners under multiple Farm Bill programs, all aimed at the 
conservation of water and soil.
    The Act and its implementing regulations set forth a series of 
general prohibitions and exceptions that apply to endangered wildlife. 
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 
17.21, make it illegal for any person subject to the jurisdiction of 
the United States to take (which includes harass, harm, pursue, hunt, 
shoot, wound, kill, trap, capture, or collect; or to attempt any of 
these) endangered fish or wildlife within the United States or on the 
high seas. In addition, it is unlawful to import; export; deliver, 
receive, carry, transport, or ship in interstate or foreign commerce in 
the course of commercial activity; or sell or offer for sale in 
interstate or foreign commerce any species listed as an endangered 
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 employees of the Service, the National 
Marine Fisheries Service, other Federal land management agencies, and 
State conservation agencies.
    We may issue permits to carry out otherwise prohibited activities 
involving endangered wildlife under certain circumstances. Regulations 
governing permits are codified at 50 CFR 17.22. With regard to 
endangered wildlife, a permit may be issued for the following purposes: 
For scientific purposes, to enhance the propagation or survival of the 
species, and for incidental take in connection with otherwise lawful 
activities. There are also certain statutory exemptions from the 
prohibitions, which are found in sections 9 and 10 of the Act.
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a listing on 
proposed and ongoing activities within the range of the listed species. 
Based on the best available information, the following actions are 
unlikely to result in a violation of section 9, if these activities are 
carried out in accordance with existing regulations and permit 
requirements; this list is not comprehensive:
    (1) Normal agricultural and silvicultural practices, including 
herbicide and pesticide use, that are carried out in accordance with 
any existing regulations, permit and label requirements, and best 
management practices.
    (2) Normal residential development and landscape activities that 
are carried out in accordance with any existing regulations, permit 
requirements, and best management practices.
    (3) Normal recreational hunting, fishing, or boating activities 
that are carried out in accordance with all existing hunting, fishing, 
and boating regulations, and following reasonable practices and 
standards.
    Based on the best available information, the following activities, 
which are activities that the Service finds could potentially harm the 
Canoe Creek clubshell and result in ``take'' of the species, may 
potentially result in a violation of section 9 of the Act if they are 
not authorized in accordance with applicable law; this list is not 
comprehensive:
    (1) Unauthorized collecting, handling, possessing, selling, 
delivering, carrying, or transporting of the Canoe Creek clubshell, 
including import or export across State lines and international 
boundaries, except for properly documented antique specimens of the 
taxon at least 100 years old, as defined by section 10(h)(1) of the 
Act.
    (2) Unauthorized modification of the channel, substrate, 
temperature, or water flow of any stream or water body in which the 
Canoe Creek clubshell is known to occur.
    (3) Unauthorized discharge of chemicals or fill material into any 
waters in which the Canoe Creek clubshell is known to occur.
    (4) Introduction of nonnative species that compete with or prey 
upon the Canoe Creek clubshell, such as the zebra mussel (Dreissena 
polymorpha) and Asian clam (Corbicula fluminea).
    (5) Pesticide applications in violation of label restrictions.
    Questions regarding whether specific activities would constitute a 
violation of section 9 of the Act should be directed to the Alabama 
Ecological Services

[[Page 40125]]

Field Office (see FOR FURTHER INFORMATION CONTACT).

II. Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (i.e., 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (e.g., 
migratory corridors, seasonal habitats, and habitats used periodically, 
but not solely by vagrant individuals).
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that 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, wilderness, reserve, preserve, or 
other conservation area. Designation also does not allow the government 
or public to access private lands, nor does designation 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 Federal agency would be required to consult 
with the Service under section 7(a)(2) of the Act. However, even if the 
Service were to conclude that the proposed activity would result in 
destruction or adverse modification of the critical habitat, the 
Federal action agency and the landowner are not required to abandon the 
proposed activity, or to restore or recover the species; instead, they 
must implement ``reasonable and prudent alternatives'' to avoid 
destruction or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) which are essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical or biological features that occur in specific occupied areas, 
we focus on the specific features that are essential to support the 
life-history needs of the species, including, but not limited to, water 
characteristics, soil type, geological features, prey, vegetation, 
symbiotic species, or other features. A feature may be a single habitat 
characteristic or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity.
    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. The implementing regulations at 50 CFR 424.12(b)(2) further 
delineate unoccupied critical habitat by setting out three specific 
parameters: (1) when designating critical habitat, the Secretary will 
first evaluate areas occupied by the species; (2) the Secretary will 
only consider unoccupied areas to be essential where a critical habitat 
designation limited to geographical areas occupied by the species would 
be inadequate to ensure the conservation of the species; and (3) for an 
unoccupied area to be considered essential, the Secretary must 
determine that there is a reasonable certainty both that the area will 
contribute to the conservation of the species and that the area 
contains one or more of those physical or biological features essential 
to the conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information from the SSA report and information developed during the 
listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; the recovery plan for the 
species; articles in peer-reviewed journals; conservation plans 
developed by States and counties; scientific status surveys and 
studies; biological assessments; other unpublished materials; or 
experts' opinions or personal knowledge.
    Habitat is dynamic, and species may move from one area to another 
over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are

[[Page 40126]]

occupied by the species and important to the conservation of the 
species, both inside and outside the critical habitat designation, will 
continue to be subject to: (1) Conservation actions implemented under 
section 7(a)(1) of the Act; (2) regulatory protections afforded by the 
requirement in section 7(a)(2) of the Act for Federal agencies to 
ensure their actions are not likely to jeopardize the continued 
existence of any endangered or threatened species; and (3) the 
prohibitions found in section 9 of the Act. Federally funded or 
permitted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. These protections and conservation tools will continue to 
contribute to recovery of 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 Essential to the Conservation of the 
Species

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas we will designate as 
critical habitat from within the geographical area occupied by the 
species at the time of listing, we consider the physical or biological 
features that are essential to the conservation of the species and that 
may require special management considerations or protection. The 
regulations at 50 CFR 424.02 define ``physical or biological features 
essential to the conservation of the species'' as the features that 
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water 
characteristics, soil type, geological features, sites, prey, 
vegetation, symbiotic species, or other features. A feature may be a 
single habitat characteristic, or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity.
    For example, physical features essential to the conservation of the 
species might include gravel of a particular size required for 
spawning, alkaline soil for seed germination, protective cover for 
migration, or susceptibility to flooding or fire that maintains 
necessary early-successional habitat characteristics. Biological 
features might include prey species, forage grasses, specific kinds or 
ages of trees for roosting or nesting, symbiotic fungi, or a particular 
level of nonnative species consistent with conservation needs of the 
listed species. The features may also be combinations of habitat 
characteristics and may encompass the relationship between 
characteristics or the necessary amount of a characteristic essential 
to support the life history of the species. In considering whether 
features are essential to the conservation of the species, the Service 
may consider an appropriate quality, quantity, and spatial and temporal 
arrangement of habitat characteristics in the context of the life-
history needs, condition, and status of the species. These 
characteristics include, but are not limited to, space for individual 
and population growth and for normal behavior; food, water, air, light, 
minerals, or other nutritional or physiological requirements; cover or 
shelter; sites for breeding, reproduction, or rearing (or development) 
of offspring; and habitats that are protected from disturbance.
    Canoe Creek clubshells live in freshwater rivers and streams. 
Clubshells, like many other freshwater mussels, live in aggregations 
called mussel beds, which can be patchily distributed throughout an 
occupied river or stream reach, but together comprise a mussel 
population. Mussel beds are connected to one another when host fish 
infested by mussel larvae in one bed disperse the larvae to another 
bed. While adults are mostly sedentary, larval dispersal among beds 
causes mussel density and abundance to vary dynamically throughout an 
occupied reach over time. Connectivity among beds and populations is 
essential for maintaining resilient populations because it allows for 
recolonization of areas following stochastic events. Populations that 
do not occupy a long enough reach or have too few or sparsely 
distributed beds are vulnerable to extirpation.
    The primary requirements for individual Canoe Creek clubshells 
include the following: stable instream substrate for attaching and 
sheltering; clean, flowing water to keep substrates free from excess 
sedimentation and to facilitate host fish interactions and feeding; 
appropriate water quality and temperatures to meet physiological needs 
for survival, growth, and reproduction; food and nutrients to survive 
and grow; and host fish for reproduction and dispersal (see Individual, 
Subpopulation, and Species Needs, above, for more discussion of these 
needs).

Summary of Essential Physical or Biological Features

    We derive the specific physical or biological features essential to 
the conservation of the Canoe Creek clubshell from studies of the 
species' habitat, ecology, and life history as described below. 
Additional information can be found in the SSA report (Service 2020, 
entire; available on https://www.regulations.gov under Docket No. FWS-
R4-ES-2020-0078). We have determined that the following physical or 
biological features are essential to the conservation of the Canoe 
Creek clubshell:
    (1) Suitable substrates and connected instream habitats, 
characterized by a geomorphically stable stream channel (a channel that 
maintains its lateral dimensions, longitudinal profile, and spatial 
pattern over time without aggrading or degrading bed elevation) and 
connected instream habitats (e.g., stable riffle-run-pool habitats that 
provide flow refuges consisting of silt-free gravel and coarse sand 
substrates).
    (2) A hydrologic flow regime (i.e., the magnitude, frequency, 
duration, and seasonality of discharge over time) necessary to maintain 
benthic habitats where the species is found; to maintain connectivity 
of streams with the floodplain; and to provide for normal behavior, 
growth, and survival of all life stages of Canoe Creek clubshell 
mussels and their fish hosts.
    (3) Water quality (including, but not limited to, temperature, 
conductivity, hardness, turbidity, ammonia, heavy metals, oxygen 
content, and other chemical characteristics) necessary to sustain 
natural physiological processes for normal behavior, growth, and 
viability of all life stages of Canoe Creek clubshell mussels and their 
fish hosts.
    (4) Sediment quality (including, but not limited to, coarse sand 
and/or gravel substrates with low to moderate amounts of fine sediment, 
low amounts of attached filamentous algae, and other physical and 
chemical characteristics) necessary for normal behavior, growth, and 
viability of all life stages of Canoe Creek clubshell mussels and their 
fish hosts.
    (5) The presence and abundance of known fish hosts, which may 
include the tricolor shiner (Cyprinella trichroistia), Alabama shiner 
(C. callistia), and striped shiner (Luxilus chrysocephalus), necessary 
for

[[Page 40127]]

recruitment of the Canoe Creek clubshell mussel.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and which may require special management considerations or 
protection. The features essential to the conservation of the Canoe 
Creek clubshell may require special management considerations or 
protections to ensure that conditions are improved. Examples of these 
threats include excessive amounts of fine sediment deposited in the 
channel, changes in water quality (impairment), activities that cause a 
destabilization of the stream channel and/or its banks, loss of 
riparian cover, and altered hydrology from inundation, channelization, 
withdrawals, or flow loss/scour resulting from other human-induced 
perturbations.
    Management activities that could ameliorate these threats include, 
but are not limited to: Use of best management practices designed to 
reduce sedimentation, erosion, and bank-side destruction; protection of 
riparian corridors and retention of sufficient canopy cover along 
banks; exclusion of livestock and nuisance wildlife (feral hogs, exotic 
ungulates); moderation of surface and ground water withdrawals to 
maintain natural flow regimes; increased use of stormwater management 
and reduction of stormwater flows into the systems; use of highest 
water quality standards for wastewater and other return flows; and 
reduction of other watershed and floodplain disturbances that release 
sediments, pollutants, or nutrients into the water.
    In summary, we find that the areas we are designating as critical 
habitat contain the physical and biological features that are essential 
to the conservation of the species and that may require special 
management considerations or protection. Special management 
considerations or protection may be required of the Federal action 
agency to eliminate, or to reduce to negligible levels, the threats 
affecting the physical and biological features of each unit.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b), we 
review available information pertaining to the habitat requirements of 
the species and identify specific areas within the geographical area 
occupied by the species at the time of listing and any specific areas 
outside the geographical area occupied by the species to be considered 
for designation as critical habitat. We are not designating any areas 
outside the geographical area occupied by the species because we have 
not identified any unoccupied areas that meet the definition of 
critical habitat.
    To inform our designation, we reviewed observations of one or more 
live individuals, or recent dead shell material, from 1999 to the 
present because Canoe Creek clubshells may be difficult to detect and 
some sites have not been visited multiple times. Recently dead shell 
material at a site indicates the species is likely present in that 
area, given their average life span of 25 to 35 years. We confirmed 
that these areas continued to be occupied in 2017 and 2018 from surveys 
(Fobian et al. 2017, pp 26-29; Fobian 2018 pers. comm.; Fobian 2019, 
unpaginated). Therefore, we consider portions of the Big Canoe Creek 
mainstem and portions of Little Canoe Creek in its eastern and western 
reaches as occupied by the Canoe Creek clubshell at the time of 
listing.
    The Canoe Creek clubshell has likely always been a narrow endemic 
within its single watershed. Therefore, the species' redundancy and 
representation is limited, but likely similar to that which it was 
historically. However, the species has an extremely limited ability to 
withstand stochastic events and disturbances because of its now 
critically low numbers. Conserving the species will therefore require 
increasing the species' abundance throughout its range and successful 
recruitment. Although conservation of the Canoe Creek clubshell will 
require improving the species' resiliency, we concluded that the 
occupied areas designated as critical habitat are sufficient to ensure 
the conservation of the species because these areas represent the 
maximum extent of the historical range that is capable or likely to 
become capable of supporting the Canoe Creek clubshell. Inundation of 
the lower reaches of the Big Canoe Creek watershed after the completion 
of Neely Henry Dam removed the physical and biological features 
necessary for the species for food, shelter, and reproduction in the 
intervening stream reaches between the occupied reaches of habitat. 
Based on the information available, the extent of designated CH is the 
best estimate of the extent of habitat that is essential to the 
conservation of the species.
    Sources of data for this critical habitat designation include 
multiple databases maintained by the Service, museums, universities, 
nongovernmental organizations, and State agencies; scientific and 
agency reports; peer-reviewed journal articles; and numerous survey 
reports on streams throughout the species' range.
    In summary, for areas within the geographic area occupied by the 
species at the time of listing, we delineated critical habitat unit 
boundaries as follows: We evaluated habitat suitability of stream 
segments within the geographic area occupied at the time of listing and 
retained those segments that contain some or all of the physical and 
biological features to support life-history functions essential for 
conservation of the species. Host fish species (minnows in the genus 
Cyprinella and Luxilus) are distributed throughout the occupied reaches 
and provide additional support that these areas are also occupied by 
the Canoe Creek clubshell. Then, we assessed those occupied stream 
segments retained through the above analysis and refined the starting 
and ending points by evaluating the presence or absence of appropriate 
physical and biological features. We selected upstream and downstream 
cutoff points to reference existing easily recognizable landmarks, 
including stream confluences, highway crossings, and the Federal Energy 
Regulatory Commission boundary of H. Neely Henry Reservoir. Unless 
otherwise specified, any stream beds located directly beneath bridge 
crossings or other landmark features used to describe critical habitat 
spatially, such as stream confluences, are considered to be wholly 
included within the critical habitat unit. Critical habitat stream 
segments were then mapped using ArcGIS Pro version 2.3.3 (ESRI, Inc.), 
a Geographic Information Systems program.
    When determining critical habitat boundaries, we made every effort 
to avoid including developed areas such as lands covered by buildings, 
pavement, and other structures because such lands lack physical or 
biological features necessary for the Canoe Creek clubshell. The scale 
of the maps we prepared under the parameters for publication within the 
Code of Federal Regulations may not reflect the exclusion of such 
developed lands. Any such lands inadvertently left inside critical 
habitat boundaries shown on the maps of this final rule have been 
excluded by text in the rule and are not designated as critical 
habitat. With the publication of

[[Page 40128]]

this final rule, a Federal action involving these lands would not 
trigger section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification unless the specific action would 
affect the physical or biological features in the adjacent critical 
habitat.
    We designate as critical habitat streams that are occupied at the 
time of listing (i.e., currently occupied) and contain one or more of 
the physical or biological features that are essential to support life-
history processes of the species. Both designated units contain all of 
the identified physical or biological features and support multiple 
life-history processes and therefore meet the definition of critical 
habitat.
    The final critical habitat designation is defined by the map or 
maps, as modified by any accompanying regulatory text, presented at the 
end of this document under Regulation Promulgation. We include more 
detailed information on the boundaries of the critical habitat 
designation in the preamble of this document. We will make the 
coordinates or plot points or both on which each map is based available 
to the public on https://www.regulations.gov at Docket No. FWS-R4-ES-
2020-0078 and on our internet site at https://www.fws.gov/office/alabama-ecological-services.

Critical Habitat Designation

    We are designating approximately 58.5 river kilometers (km) (36.3 
river miles (mi)) in two units as critical habitat for the Canoe Creek 
clubshell. The critical habitat areas we describe below constitute our 
current best assessment of areas that meet the definition of critical 
habitat for the Canoe Creek clubshell. The two units we designate as 
critical habitat are: (1) Little Canoe Creek East and (2) Big Canoe 
Creek/Little Canoe Creek West. Table 1 shows the critical habitat units 
and the approximate size of each unit. In Alabama, all waters are held 
within the public trust. The Service consulted with the State to 
confirm the status of ownership of the river bottoms in these river 
segments. However, this information was not available at the time of 
publication of this final rule.

                          Table 1--Critical Habitat Units for the Canoe Creek Clubshell
                    [Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
                                                                     Size of unit
         Critical habitat unit            Adjacent land ownership    in kilometers            Occupied?
                                                  by type               (miles)
----------------------------------------------------------------------------------------------------------------
1. Little Canoe Creek East.............  Private, County..........       9.7 (6.0)  Yes.
2. Big Canoe Creek/Little Canoe Creek    Private..................     48.8 (30.3)  Yes.
 West.
                                                                   ---------------------------------------------
    Total..............................  .........................     58.5 (36.3)  Yes.
----------------------------------------------------------------------------------------------------------------
Note: Sizes may not sum due to rounding.

    We present brief descriptions of both units, and reasons why they 
meet the definition of critical habitat for the Canoe Creek clubshell, 
below.

Unit 1: Little Canoe Creek East

    Unit 1 consists of 9.7 river km (6.0 river mi) of Little Canoe 
Creek East, due east of the Town of Steele, in St. Clair and Etowah 
Counties, Alabama. The unit consists of the Little Canoe Creek mainstem 
to the bankfull width from the intersection with the Federal Energy 
Regulatory Commission boundary of H. Neely Henry Reservoir (at 
elevation 155 meters (m) (509 feet (ft)) above mean sea level and 
approximately 4.4 river km (2.7 river mi) upstream of its confluence 
with Big Canoe Creek), upstream 9.7 river km (6.0 river mi) to the U.S. 
Highway 11 bridge crossing.
    This unit is currently occupied by the Canoe Creek clubshell. The 
majority of the adjacent land surrounding this unit is privately owned. 
A small amount of the adjacent land is publicly owned in the form of 
bridge crossings and easements, and portions of the eastern bank of 
Little Canoe Creek between U.S. Highway 11 to Interstate 59, in Etowah 
County, Alabama. Approximately 2.4 river km (1.5 river mi) of Little 
Canoe Creek borders property to the east owned by Etowah County, 
Alabama.
    Unit 1 contains all physical or biological features essential to 
the conservation of the species. The channel within Unit 1 is 
relatively stable and provides the necessary riffle-run-pool sequences 
required by the Canoe Creek clubshell. A continued hydrologic flow 
regime with adequate water quality and limited fine sediments are 
present within this unit, providing habitat features that support the 
Canoe Creek clubshell. The unit also contains fish hosts for the 
clubshell. The physical and biological features in this unit may 
require special management considerations or protections to ensure that 
conditions do not further degrade. Examples of threats within this unit 
include excessive amounts of fine sediment deposited in the channel, 
changes in water quality (impairment), activities that cause a 
destabilization of the stream channel and/or its banks, loss of 
riparian cover, and altered hydrology from either inundation, 
channelization, withdrawals, or flow loss/scour resulting from other 
human-induced perturbations (see Special Management Considerations or 
Protection, above).

Unit 2: Big Canoe Creek/Little Canoe Creek West

    Unit 2 consists of 48.8 river km (30.3 river mi) of Big Canoe Creek 
and its tributary Little Canoe Creek West, which are located 
geographically between the cities of Springville and Ashville, St. 
Clair County, Alabama. The unit consists of the main channel of Big 
Canoe Creek to the bankfull width from the Double Bridge Road bridge 
crossing near Ashville, Alabama, upstream 32.2 river km (20.0 river mi) 
to the Washington Valley Rd (St. Clair County Road 23) bridge crossing 
near Springville, Alabama; and Little Canoe Creek West from its 
confluence with Big Canoe Creek, upstream 16.6 river km (10.3 river mi) 
to the confluence of Stovall Branch. This unit is currently occupied by 
the Canoe Creek clubshell. The majority of this unit is adjacent to 
private land, except for any small amount of adjacent land that is 
publicly owned in the form of bridge crossings and easements.
    Unit 2 contains all physical or biological features essential to 
the conservation of the species. The channel within Unit 2 is 
relatively stable and provides the necessary riffle-run-pool sequences 
required by the Canoe Creek clubshell. A continued hydrologic flow 
regime with adequate water quality and

[[Page 40129]]

limited fine sediments is present within this unit, providing habitat 
features that support the Canoe Creek clubshell. A diverse fish fauna, 
including fish hosts for the clubshell, are known from this unit. The 
physical and biological features in this unit may require special 
management considerations or protections to ensure that conditions do 
not degrade. Examples of threats within this unit include excessive 
amounts of fine sediment deposited in the channel, changes in water 
quality (impairment), activities that cause a destabilization of the 
stream channel and/or its banks, loss of riparian cover, and altered 
hydrology from either inundation, channelization, withdrawals, or flow 
loss/scour resulting from other human-induced perturbations (see 
Special Management Considerations or Protection, above).

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.
    We published a final rule revising the definition of ``destruction 
or adverse modification'' on August 27, 2019 (84 FR 44976). Destruction 
or adverse modification means a direct or indirect alteration that 
appreciably diminishes the value of critical habitat as a whole for the 
conservation of a listed species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must consult 
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 U.S. 
Army Corps of Engineers under section 404 of the Clean Water Act (33 
U.S.C. 1251 et seq.) or a permit from the Service under section 10 of 
the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat--and actions 
on State, tribal, local, or private lands that are not federally 
funded, authorized, or carried out by a Federal agency--do not require 
section 7 consultation.
    Compliance with the requirements of section 7(a)(2), is documented 
through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Service Director's opinion, avoid the likelihood 
of jeopardizing the continued existence of the listed species and/or 
avoid the likelihood of destroying or adversely modifying critical 
habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 set forth requirements for Federal 
agencies to reinitiate formal consultation on previously reviewed 
actions. These requirements apply when the Federal agency has retained 
discretionary involvement or control over the action (or the agency's 
discretionary involvement or control is authorized by law) and, 
subsequent to the previous consultation: (1) if the amount or extent of 
taking specified in the incidental take statement is exceeded; (2) if 
new information reveals effects of the action that may affect listed 
species or critical habitat in a manner or to an extent not previously 
considered; (3) if the identified action is subsequently modified in a 
manner that causes an effect to the listed species or critical habitat 
that was not considered in the biological opinion; or (4) if a new 
species is listed or critical habitat designated that may be affected 
by the identified action.
    In such situations, Federal agencies sometimes may need to request 
reinitiation of consultation with us, but the regulations also specify 
some exceptions to the requirement to reinitiate consultation on 
specific land management plans after subsequently listing a new species 
or designating new critical habitat. See the regulations for a 
description of those exceptions.

Application of the ``Adverse Modification'' Standard

    The key factor related to the destruction or adverse modification 
determination is whether implementation of the proposed Federal action 
directly or indirectly alters the designated critical habitat in a way 
that appreciably diminishes the value of the critical habitat as a 
whole for the conservation of the listed species. As discussed above, 
the role of critical habitat is to support physical or biological 
features essential to the conservation of a listed species and provide 
for the conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may violate section 
7(a)(2) of the Act by destroying or adversely modifying such habitat, 
or that may be affected by such designation.
    Activities that the Service may, during a consultation under 
section 7(a)(2) of the Act, consider likely to destroy or adversely 
modify critical habitat include, but are not limited to:
    (1) Actions that would alter the geomorphology of stream and river 
habitats. Such activities could 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 and result in 
entrainment or burial of this mussel, and could cause other direct or 
cumulative adverse effects to this species and its life cycles.
    (2) Actions that would significantly alter the existing flow regime 
where this species occurs. Such activities could include, but are not 
limited to, impoundment, urban development, water diversion, and water 
withdrawal. These activities could eliminate or reduce the habitat 
necessary for growth and reproduction of this mussel and its fish 
hosts.

[[Page 40130]]

    (3) Actions that would significantly alter water chemistry or water 
quality (for example, temperature, pH, contaminants, and excess 
nutrients). Such activities could include, but are not limited to, 
hydropower discharges, 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 this mussel, its fish hosts, or both, and result in 
direct or cumulative adverse effects to the species throughout its life 
cycle.
    (4) Actions that would significantly alter stream bed material 
composition and quality by increasing sediment deposition or 
filamentous algal growth. Such activities could include, but are not 
limited to, construction projects, gravel and sand mining, oil and gas 
development, coal mining, livestock grazing and other agricultural 
practices, irresponsible timber harvest, and other watershed and 
floodplain disturbances that release sediments or nutrients into the 
water. These activities could eliminate or reduce habitats necessary 
for the growth and reproduction of this mussel, its fish hosts, or 
both, by causing excessive sedimentation and burial of the species or 
its habitat, or nutrification leading to excessive filamentous algal 
growth. Excessive filamentous algal growth can cause reduced nighttime 
dissolved oxygen levels through respiration, and prevent juvenile 
mussels 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 (DoD), or designated for its use, that are subject to an 
integrated natural resources management plan (INRMP) prepared under 
section 101 of the Sikes Act (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 
DoD lands within the final critical habitat designation.

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

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from critical habitat if we determine 
that the benefits of such exclusion outweigh the benefits of specifying 
such area as part of the critical habitat, unless we determine, 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 the determination to exclude a particular area, the 
statute on its face, as well as the legislative history, are clear that 
the Secretary has broad discretion regarding which factor(s) to use and 
how much weight to give to any factor.
    On December 18, 2020, we published a final rule in the Federal 
Register (85 FR 82376) revising portions of our regulations pertaining 
to exclusions of critical habitat. These final regulations became 
effective on January 19, 2021 and apply to critical habitat rules for 
which a proposed rule was published after January 19, 2021. 
Consequently, these new regulations do not apply to this final rule.
    Under section 4(b)(2) of the Act, 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 discretion to exclude 
the area only if such exclusion would not result in the extinction of 
the species. We describe below the process that we undertook for taking 
into consideration each category of impacts and our analyses of the 
relevant impacts.
    In this final rule, we have not considered any areas for exclusion 
from critical habitat.

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. To assess the probable economic impacts of a 
designation, we must first evaluate specific land uses or activities 
and projects that may occur in the area of the critical habitat. We 
then must evaluate the impacts that a specific critical habitat 
designation may have on restricting or modifying specific land uses or 
activities for the benefit of the species and its habitat within the 
areas designated. We then identify which conservation efforts may be 
the result of the species being listed under the Act versus those 
attributed solely to the designation of critical habitat for this 
particular species. The probable economic impact of a critical habitat 
designation is analyzed by comparing scenarios both ``with critical 
habitat'' and ``without critical habitat.''
    The ``without critical habitat'' scenario represents the baseline 
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource 
users potentially affected by the designation of critical habitat 
(e.g., under the Federal listing as well as other Federal, State, and 
local regulations). The baseline, therefore, represents the costs of 
all efforts attributable to the listing of the species under the Act 
(i.e., conservation of the species and its habitat incurred regardless 
of whether critical habitat is designated). The ``with critical 
habitat'' scenario describes the incremental impacts associated 
specifically with the designation of critical habitat for the species. 
The incremental conservation efforts and associated impacts would not 
be expected without the designation of critical habitat for the 
species. In other words, the incremental costs are those attributable 
solely to the designation of critical habitat, above and beyond the 
baseline costs. These are the costs we use when evaluating the benefits 
of inclusion and exclusion of particular areas from the final 
designation of critical habitat when conducting a discretionary 4(b)(2) 
exclusion analysis.
    For this particular designation, we developed an incremental 
effects memorandum (IEM) considering the probable incremental economic 
impacts that may result from this designation of critical habitat. The 
information contained in our IEM was then used to develop a screening 
analysis of the probable effects of the designation of critical habitat 
for the Canoe Creek clubshell, which was revised based on comments 
received during the comment period (IEc 2021, entire). We began by 
conducting a screening analysis of the designation of critical habitat 
in order to focus our analysis on the key factors that are likely to 
result in incremental economic impacts. The purpose of the screening 
analysis is to filter out particular geographic areas of critical 
habitat that are already subject to such protections and are, 
therefore, unlikely to incur incremental economic impacts.

[[Page 40131]]

In particular, the screening analysis considers baseline costs (i.e., 
absent critical habitat designation) and includes probable economic 
impacts where land and water use may be subject to conservation plans, 
land management plans, best management practices, or regulations that 
protect the habitat area as a result of the Federal listing status of 
the species. Ultimately, the screening analysis allows us to focus our 
analysis on evaluating the specific areas or sectors that may incur 
probable incremental economic impacts as a result of the designation. 
If there are any unoccupied units in the critical habitat designation, 
the screening analysis assesses whether any additional management or 
conservation efforts may incur incremental economic impacts. This 
screening analysis, combined with the information contained in our IEM, 
constitutes what we consider our economic analysis of the critical 
habitat designation for the Canoe Creek clubshell and is summarized in 
the narrative below.
    Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to 
assess the costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. Consistent 
with the E.O. regulatory analysis requirements, our effects analysis 
under the Act may take into consideration impacts to both directly and 
indirectly affected entities, where practicable and reasonable. If 
sufficient data are available, we assess to the extent practicable the 
probable impacts to both directly and indirectly affected entities.
    As part of our screening analysis, we considered the types of 
economic activities that are likely to occur within the areas likely 
affected by the critical habitat designation. In our evaluation of the 
probable incremental economic impacts that may result from the 
designation of critical habitat for the Canoe Creek clubshell, first we 
identified, in the IEM dated November 27, 2019, probable incremental 
economic impacts associated with the following categories of 
activities: (1) Agriculture, (2) poultry farming, (3) grazing, (4) 
development, (5) recreation, (6) restoration activities, (7) flood 
control, (8) transportation, and (9) utilities. We considered each 
industry or category individually. Additionally, we considered whether 
their activities have any Federal involvement. Critical habitat 
designation generally will not affect activities that do not have any 
Federal involvement; under the Act, designation of critical habitat 
only affects activities conducted, funded, permitted, or authorized by 
Federal agencies. In areas where the Canoe Creek clubshell is present, 
Federal agencies would be required to consult with the Service under 
section 7 of the Act on activities they fund, permit, or implement that 
may affect the species. When this rule becomes effective (see DATES, 
above), consultations to avoid the destruction or adverse modification 
of Canoe Creek clubshell critical habitat would be incorporated into 
the existing consultation process.
    In our IEM, we attempted to clarify the distinction between the 
effects that will result from the species being listed and those 
attributable to the critical habitat designation (i.e., difference 
between the jeopardy and adverse modification standards) for the Canoe 
Creek clubshell's critical habitat. Because the designation of critical 
habitat for the Canoe Creek clubshell is finalized concurrently with 
the listing, it has been our experience that it is more difficult to 
discern which conservation efforts are attributable to the species 
being listed and those which will result solely from the designation of 
critical habitat. However, the following specific circumstances in this 
case help to inform our evaluation: (1) The essential physical or 
biological features identified for critical habitat are the same 
features essential for the life requisites of the species, and (2) any 
actions that would result in sufficient harm or harassment to 
constitute jeopardy to the Canoe Creek clubshell would also likely 
adversely affect the essential physical or biological features of 
critical habitat. The IEM outlines our rationale concerning this 
limited distinction between baseline conservation efforts and 
incremental impacts of the designation of critical habitat for this 
species. This evaluation of the incremental effects has been used as 
the basis to evaluate the probable incremental economic impacts of this 
designation of critical habitat.
    The evaluation of incremental costs of designating critical habitat 
for the Canoe Creek clubshell indicates costs are relatively low. The 
critical habitat designation for the Canoe Creek clubshell totals 
approximately 58.5 river kilometers (36.3 river miles) of river up to 
the bankfull width adjacent to private property across two currently 
occupied units in the Big Canoe Creek watershed. Numerous other listed 
species co-occur with the Canoe Creek clubshell in these areas (e.g. 
Georgia pigtoe, finelined pocketbook (Hamiota altilis), and triangular 
kidneyshell (Ptychobranchus greenii)). As a result, all activities with 
a Federal nexus occurring in these areas are already subject to section 
7 consultation requirements regardless of a critical habitat 
designation for the Canoe Creek clubshell. Based on historical 
consultation rates for co-occurring species, we anticipate 
approximately five or fewer section 7 consultation actions per year in 
the critical habitat areas for the Canoe Creek clubshell.
    In addition, any actions that may affect the Canoe Creek clubshell 
or its habitat in these areas would also affect designated critical 
habitat, and it is unlikely that any additional conservation efforts 
would be recommended to address the adverse modification standard over 
and above those recommended as necessary to avoid jeopardizing the 
continued existence of the species. Therefore, when section 7 
consultations occur, the only costs expected are those associated with 
the additional administrative effort needed to consider adverse 
modification during the consultation process. While this additional 
analysis would require time and resources by both the Federal action 
agency and the Service, we believe that in most circumstances, these 
costs would be predominantly administrative in nature and would not be 
significant.
    Further, we do not expect the designation of critical habitat for 
the Canoe Creek clubshell to trigger additional requirements under 
State or local regulations or have perceptional effects on markets. We 
also do not predict the designation would result in additional section 
7 efforts needed to conserve the species. Thus, the annual 
administrative burden is unlikely to reach $100 million.
    In conclusion, based on our estimate of the number of consultations 
and their costs, which would likely be limited to those associated with 
administrative efforts, we estimate that the annual costs to the 
Service and Action agencies from designating critical habitat for the 
Canoe Creek clubshell would be approximately $18,300. Therefore, the 
designation is unlikely to meet the threshold of $100 million in a 
single year for an economically significant rule, with regard to costs, 
under E.O. 12866.

Consideration of National Security Impacts

    Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or 
areas that pose potential national-security concerns (e.g., a DoD 
installation that is in the process of revising its INRMP for a newly 
listed species or a species previously not covered). If a particular 
area is not covered under section 4(a)(3)(B)(i), national-security or 
homeland-security concerns are not a factor in the process of 
determining

[[Page 40132]]

what areas meet the definition of ``critical habitat.'' Nevertheless, 
when designating critical habitat under section 4(b)(2), the Service 
must consider impacts on national security, including homeland 
security, on lands or areas not covered by section 4(a)(3)(B)(i). 
Accordingly, we will always consider for exclusion from the designation 
areas for which DoD, Department of Homeland Security (DHS), or another 
Federal agency has requested exclusion based on an assertion of 
national-security or homeland-security concerns.
    We cannot, however, automatically exclude requested areas. When 
DoD, DHS, or another Federal agency requests exclusion from critical 
habitat on the basis of national-security or homeland-security impacts, 
it must provide a reasonably specific justification of an incremental 
impact on national security that would result from the designation of 
that specific area as critical habitat. That justification could 
include demonstration of probable impacts, such as impacts to ongoing 
border-security patrols and surveillance activities, or a delay in 
training or facility construction, as a result of compliance with 
section 7(a)(2) of the Act. If the agency requesting the exclusion does 
not provide us with a reasonably specific justification, we will 
contact the agency to recommend that it provide a specific 
justification or clarification of its concerns relative to the probable 
incremental impact that could result from the designation. If the 
agency provides a reasonably specific justification, we will defer to 
the expert judgment of DoD, DHS, or another Federal agency as to: (1) 
Whether activities on its lands or waters, or its activities on other 
lands or waters, have national-security or homeland-security 
implications; (2) the importance of those implications; and (3) the 
degree to which the cited implications would be adversely affected in 
the absence of an exclusion. In that circumstance, in conducting a 
discretionary section 4(b)(2) exclusion analysis, we will give great 
weight to national-security and homeland-security concerns in analyzing 
the benefits of exclusion.
    In preparing this rule, we have determined that the lands within 
the designation of critical habitat for the Canoe Creek clubshell are 
not owned, managed, or used by the DoD or DHS, 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 the final designation based on impacts on national 
security.

Consideration of Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security discussed above. We consider a number of factors, including 
whether there are permitted conservation plans (such as HCPs, safe 
harbor agreements (SHAs), or candidate conservation agreements with 
assurances (CCAAs)) covering the species in the area, or whether there 
are non-permitted conservation agreements and partnerships that would 
be encouraged by designation of, or exclusion from, critical habitat. 
In addition, we look at the existence of Tribal conservation plans and 
partnerships 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 HCPs or other management plans for the Canoe Creek 
clubshell, and the designation does not include any Tribal lands or 
trust resources. Therefore, we anticipate no impact on Tribal lands, 
partnerships, or HCPs from this critical habitat designation and thus, 
as described above, we are not excluding any particular areas on the 
basis of the presence of conservation agreements or impacts to trust 
resources.

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

    During the development of this final rule, we considered any 
additional information we received through the public comment period to 
determine whether any specific areas should be excluded from the final 
critical habitat designation under authority of the Act's section 
4(b)(2) and our implementing regulations at 50 CFR 424.19. We are not 
excluding any areas from the critical habitat designation under section 
4(b)(2) of the Act based on economic impacts, national security 
impacts, or other relevant impacts, such as partnerships, management, 
or protection afforded by cooperative management efforts.

Required Determinations

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget 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 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 of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities 
(i.e., small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual

[[Page 40133]]

sales less than $750,000. To determine if potential economic impacts to 
these small entities are significant, we considered the types of 
activities that might trigger regulatory impacts under this designation 
as well as types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    Under the RFA, as amended, and as understood in light of recent 
court decisions, Federal agencies are required to evaluate the 
potential incremental impacts of rulemaking on those entities directly 
regulated by the rulemaking itself; in other words, the RFA does not 
require agencies to evaluate the potential impacts to indirectly 
regulated entities. The regulatory mechanism through which critical 
habitat protections are realized is section 7 of the Act, which 
requires Federal agencies, in consultation with the Service, to ensure 
that any action authorized, funded, or carried out by the agency is not 
likely to destroy or adversely modify critical habitat. Therefore, 
under section 7, only Federal action agencies are directly subject to 
the specific regulatory requirement (avoiding destruction and adverse 
modification) imposed by critical habitat designation. Consequently, it 
is our position that only Federal action agencies will be directly 
regulated by this designation. There is no requirement under the RFA to 
evaluate the potential impacts to entities not directly regulated. 
Moreover, Federal agencies are not small entities. Therefore, because 
no small entities will be 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 on the 
November 3, 2020, proposed rule (85 FR 69540) 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 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. The economic analysis finds that none of 
these criteria are relevant to this analysis. Thus, based on 
information in the economic analysis, energy-related impacts associated 
with Canoe Creek clubshell 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 finding:
    (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 otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule would significantly or 
uniquely affect small governments because the units do not occur within 
the jurisdiction of small governments. Therefore, a Small Government 
Agency Plan is not required.

Takings--Executive Order 12630

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

[[Page 40134]]

critical habitat. A takings implications assessment has been completed 
and concludes that this designation of critical habitat for the Canoe 
Creek clubshell does not pose significant takings implications for 
lands within or affected by the designation.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this 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 the critical habitat designation with, 
appropriate State resource agencies. From a federalism perspective, the 
designation of critical habitat directly affects only the 
responsibilities of Federal agencies. The Act imposes no other duties 
with respect to critical habitat, either for States and local 
governments, or for anyone else. As a result, the 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 for the conservation of the species 
are specifically identified. This information does not alter where and 
what federally sponsored activities may occur. However, it may assist 
State and local governments in long-range planning because they no 
longer have to wait for case-by-case section 7 consultations to occur.
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) of the Act would be required. While 
non-Federal entities that receive Federal funding, assistance, or 
permits, or that otherwise require approval or authorization from a 
Federal agency for an action, may be indirectly impacted by the 
designation of critical habitat, the legally binding duty to avoid 
destruction or adverse modification of critical habitat rests squarely 
on the Federal agency.

Civil Justice Reform--Executive Order 12988

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

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

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

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

    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 the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with regulations 
adopted pursuant to section 4(a) of the Act. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244). 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)).

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 have determined that no Tribal 
lands fall within the boundaries of the critical habitat for the Canoe 
Creek clubshell, so no Tribal lands will be affected by the 
designation.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at https://www.regulations.gov under Docket No. FWS-R4-
ES-2020-0078 and upon request from the Alabama Ecological Services 
Field Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this rule are the staff members of the U.S. 
Fish and Wildlife Service Species Assessment Team and Alabama 
Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

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

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--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

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

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


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


Sec.  17.11   Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 40135]]



----------------------------------------------------------------------------------------------------------------
                                                                                               Listing citations
           Common name              Scientific name      Where listed           Status          and applicable
                                                                                                     rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
CLAMS
 
                                                  * * * * * * *
Clubshell, Canoe Creek..........  Pleurobema          Wherever found....  E.................  87 FR [INSERT
                                   athearni.                                                   Federal Register
                                                                                               PAGE WHERE THE
                                                                                               DOCUMENT BEGINS],
                                                                                               July 6, 2022; 50
                                                                                               CFR 17.95(f).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.95, in paragraph (f), by adding an entry for ``Canoe 
Creek Clubshell (Pleurobema athearni)'' before the entry for 
``Appalachian Elktoe (Alasmidonta raveneliana)'' to read as follows:


Sec.  17.95   Critical habitat--fish and wildlife.

* * * * *
    (f) Clams and Snails.
Canoe Creek Clubshell (Pleurobema athearni)
    (1) Critical habitat units are depicted for St. Clair and Etowah 
Counties, Alabama, on the maps in this entry.
    (2) Within these areas, the physical or biological features 
essential to the conservation of the Canoe Creek clubshell consist of 
the following components:
    (i) Suitable substrates and connected instream habitats, 
characterized by a geomorphically stable stream channel (a channel that 
maintains its lateral dimensions, longitudinal profile, and spatial 
pattern over time without aggrading or degrading bed elevation) and 
connected instream habitats (such as stable riffle-run-pool habitats 
that provide flow refuges consisting of silt-free gravel and coarse 
sand substrates).
    (ii) A hydrologic flow regime (i.e., the magnitude, frequency, 
duration, and seasonality of discharge over time) necessary to maintain 
benthic habitats where the species is found; to maintain connectivity 
of streams with the floodplain; and to provide for normal behavior, 
growth, and survival of all life stages of Canoe Creek clubshell 
mussels and their fish hosts.
    (iii) Water quality (including, but not limited to, temperature, 
conductivity, hardness, turbidity, ammonia, heavy metals, oxygen 
content, and other chemical characteristics) necessary to sustain 
natural physiological processes for normal behavior, growth, and 
viability of all life stages of Canoe Creek clubshell mussels and their 
fish hosts.
    (iv) Sediment quality (including, but not limited to, coarse sand 
and/or gravel substrates with low to moderate amounts of fine sediment, 
low amounts of attached filamentous algae, and other physical and 
chemical characteristics) necessary for normal behavior, growth, and 
viability of all life stages of Canoe Creek clubshell mussels and their 
fish hosts.
    (v) The presence and abundance of fish hosts, which may include the 
tricolor shiner (Cyprinella trichroistia), Alabama shiner (C. 
callistia), and striped shiner (Luxilus chrysocephalus), necessary for 
recruitment of the Canoe Creek clubshell mussel.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of the final rule.
    (4) Data layers defining map units were created from the National 
Hydrography High Resolution Dataset, and critical habit units were 
mapped using North American Datum (NAD) 1983 Universal Transverse 
Mercator (UTM) Zone 16N coordinates. The maps in this entry, as 
modified by any accompanying regulatory text, establish the boundaries 
of the critical habitat designation. The coordinates or plot points or 
both on which each map is based are available to the public at the 
Service's internet site at https://www.fws.gov/daphne, at https://www.regulations.gov at Docket No. FWS-R4-ES-2020-0078, and at the field 
office responsible for this designation. You may obtain field office 
location information by contacting one of the Service regional offices, 
the addresses of which are listed at 50 CFR 2.2.
    (5) Index map follows:
BILLING CODE 4333-15-P

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    (6) Unit 1: Little Canoe Creek East, St. Clair and Etowah Counties, 
Alabama.
    (i) Unit 1 consists of 9.7 river km (6.0 river mi) of Little Canoe 
Creek East, due east of the Town of Steele, in St. Clair and Etowah 
Counties, Alabama.
    (ii) Map of Unit 1 follows:

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    (7) Unit 2: Big Canoe Creek/Little Canoe Creek West, St. Clair 
County, Alabama.
    (i) Unit 2 consists of 48.8 river km (30.3 river mi) of Big Canoe 
Creek and its tributary Little Canoe Creek West.
    (ii) Map of Unit 2 follows:

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* * * * *

Martha Williams
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-14312 Filed 7-5-22; 8:45 am]
BILLING CODE 4333-15-C