64286 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AU87 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Five Endangered and Two 

Threatened Mussels in Four Northeast 

Gulf of Mexico Drainages 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), are 

designating critical habitat for the 

endangered fat threeridge (Amblema 

neislerii), shinyrayed pocketbook 

(Lampsilis subangulata), Gulf 

moccasinshell (Medionidus 

penicillatus), Ochlockonee 

moccasinshell (Medionidus 

simpsonianus), and oval pigtoe 

(Pleurobema pyriforme), and the 

threatened Chipola slabshell (Elliptio 

chipolaensis) and purple bankclimber 

(Elliptoideus sloatianus) (collectively 

referred to as the seven mussels) under 

the Endangered Species Act of 1973, as 

amended (Act). The total length of 

streams designated is approximately 

1,185.9 river miles (river mi) (1,908.5 

river kilometers (river km)). The critical 

habitat is located in Houston and 

Russell counties, Alabama; in Alachua, 

Bay, Bradford, Calhoun, Columbia, 

Franklin, Gadsden, Gulf, Jackson, Leon, 

Liberty, Union, Wakulla, and 

Washington counties, Florida; and in 

Baker, Calhoun, Coweta, Crawford, 

Crisp, Decatur, Dooly, Dougherty, Early, 

Fayette, Grady, Lee, Macon, Marion, 

Meriwether, Miller, Mitchell, Peach, 

Pike, Schley, Spalding, Sumter, Talbot, 

Taylor, Terrell, Thomas, Upson, 

Webster, and Worth counties, Georgia. 

DATES: This rule becomes effective on 

December 17, 2007. 

ADDRESSES: Comments and materials 

received, as well as supporting 

documentation used in the preparation 

of this final rule, will be available for 

public inspection, by appointment, 

during normal business hours, at the 

U.S. Fish and Wildlife Service, Panama 

City Ecological Services Office, 1601 

Balboa Avenue, Panama City, FL 32405 

(telephone 850–769–0552). The final 

rule, economic analysis, and maps will 

also be available via the Internet at 

http://www.fws.gov/panamacity/. 

FOR FURTHER INFORMATION CONTACT: Gail 

Carmody, Field Supervisor, Panama 

City Ecological Services Office, 1601 

Balboa Avenue, Panama City, FL 32405; 

telephone 850–769–0552; facsimile 

850–763–2177. If you use a 

telecommunications device for the deaf 

(TDD), call the Federal Information 

Relay Service (FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Background 

It is our intent to discuss only those 

topics directly relevant to the 

designation of critical habitat in this 

final rule. For additional information on 

the seven mussels, refer to the final 

listing rule published in the Federal 

Register on March 16, 1998 (63 FR 

12664), the final recovery plan that was 

approved September 19, 2003 (available 

from our Panama City, Florida Office or 

online at http://www.fws.gov/ 

endangered/recovery/ 

Index.html#plans), and the proposed 

critical habitat rule published in the 

Federal Register on June 6, 2006 (71 FR 

32746). 

The shinyrayed pocketbook was listed 

as federally endangered under the 

scientific name Lampsilis subangulata. 

The shinyrayed pocketbook and three 

other Lampsilis species are now 

assigned to the newly recognized genus 

Hamiota (Roe and Hartfield 2005, p. 1). 

The Service intends to implement the 

name change in a separate rulemaking. 

In November 2006, an Auburn 

University scientist working under 

contract for the Service identified eight 

mussels as shinyrayed pocketbooks that 

he found in a segment of Econfina Creek 

(M. Gangloff, personal communication 

November 3, 2006). This stream segment 

is within the area designated in this rule 

as critical habitat for the Gulf 

moccasinshell and oval pigtoe. If the 

identification is correct, this find 

represents the first record of the 

shinyrayed pocketbook in the Econfina 

Creek Basin, which was previously 

known only from the ApalachicolaChattahoochee-Flint (ACF) and 

Ochlockonee basins. The Service 

intends to conduct further surveys to 

confirm whether the species is in 

Econfina Creek and, if so, to estimate its 

range and abundance in the basin. In 

this rule, we do not designate Econfina 

Creek as critical habitat for the 

shinyrayed pocketbook. 

Previous Federal Actions 

On March 15, 2004, the Center for 

Biological Diversity (Center) filed a 

lawsuit against the Department of the 

Interior and the Service (Civil Action 

No. 1:04 CV–0729–GET) challenging the 

failure to designate critical habitat for 

the seven mussels. In a settlement 

agreement dated August 31, 2004, the 

Service agreed to reevaluate the 

prudency of critical habitat for the seven 

mussels and, if prudent, submit a 

proposed designation of critical habitat 

to the Federal Register by May 30, 2006, 

and a final designation by May 30, 2007. 

On March 7, 2007, the court granted an 

extension and set the new final 

designation deadline for October 31, 

2007. 

We published the proposed critical 

habitat rule for the seven mussels in the 

Federal Register on June 6, 2006 (71 FR 

32746). We accepted public comments 

on the proposal for 60 days until August 

7, 2007. We completed a draft economic 

analysis (DEA) for the proposed 

designation on June 6, 2007, and 

published a notice of availability for this 

DEA in the Federal Register on June 21, 

2007 (72 FR 34215). The public 

comment period for the DEA was open 

until August 6, 2007. 

For more information on previous 

Federal actions concerning the seven 

mussels, refer to the proposed critical 

habitat designation (71 FR 32746, June 

6, 2006) and our notice of availability of 

the draft economic analysis (72 FR 

34215, June 21, 2007). This final rule 

complies with the settlement agreement. 

Summary of Comments and 

Recommendations 

We requested written comments from 

the public on the proposed designation 

of critical habitat for the seven mussels 

in the proposed rule, and again in the 

subsequent notice of availability (72 FR 

34215). On both occasions, we 

contacted appropriate Federal, State, 

and local agencies; scientific 

organizations; and other interested 

parties and invited them to comment on 

the proposed rule. Three public 

hearings were held during the second 

comment period on July 9, 2007, in 

Columbus, Georgia, July 10, 2007, in 

Albany, Georgia, and July 11, 2007, in 

Tallahassee, Florida. 

During the first comment period that 

opened on June 6, 2006, and closed on 

August 7, 2006, we received comments 

from 30 entities that directly addressed 

the proposed critical habitat 

designation: one from a peer reviewer, 

3 from Federal agencies, 16 from State 

and local governmental agencies, and 10 

from organizations or individuals. We 

received 4 requests for a public hearing, 

all from entities in the LaGrange and 

Columbus, Georgia, area. During the 

second comment period that opened on 

June 21, 2007, and closed on August 6, 

2007, including the three public 

hearings, we received comments from 

25 entities that directly addressed the 

proposed critical habitat designation or 

the draft economic analysis: 4 from peer 

reviewers, 3 from Federal agencies, 7 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64287 

from State and local governmental 

agencies, and 11 from organizations or 

individuals. Of the comments provided 

during both comment periods, six 

commenters supported the designation 

of critical habitat for the seven mussels 

and nine opposed the designation. Forty 

commenters provided suggestions or 

information, but did not indicate 

support or opposition to the critical 

habitat designation. We received 

comments that were grouped into 70 

issues specifically relating to the 

proposed critical habitat designation for 

the seven mussels, and are addressed in 

the following summary and 

incorporated into the final rule as 

appropriate. 

Peer Review 

In accordance with our policy 

published on July 1, 1994 (59 FR 

34270), we solicited expert opinions 

from seven knowledgeable individuals 

with scientific expertise that included 

familiarity with the species, the 

geographic region in which the species 

occurs, and conservation biology 

principles. We received responses from 

four of the peer reviewers. The peer 

reviewers generally concurred with our 

methods and conclusions, and provided 

additional information, clarifications, 

and suggestions to improve the final 

critical habitat rule. We address peer 

reviewer comments in the following 

summary and incorporate into the final 

rule as appropriate. 

We reviewed all comments received 

from the peer reviewers and the public 

for substantive issues and new 

information regarding critical habitat for 

the seven mussels, and address them in 

the following summary. 

Peer Reviewer Comments 

(1) Comment: The Service stated in 

the proposed rule that ‘‘Most of the 

tributary streams in the four basins that 

may support one or more of the seven 

species have never been surveyed.’’ This 

seems to cast doubt on the adequacy of 

the data used to designate critical 

habitat. Most streams in this region that 

are large enough to support these 

species have been surveyed at least to 

some extent. 

Our Response: We acknowledge that a 

substantial fraction of the unsurveyed 

tributary streams in the region are 

probably not large enough to support 

populations of the seven mussels. 

However, the drainage area associated 

with the upstream-most location in most 

of the occupied watersheds is often 

quite small (e.g., less than about 5,000 

ha (20 mi2)), and we have no data for 

a majority of locations in the four basins 

that drain areas of this size. Regardless, 

we have considered all available survey 

data in our analysis for identifying 

critical habitat. We designated only 

where presence is confirmed by surveys. 

(2) Comment: The designation of 

critical habitat should consider whether 

re-establishing populations in streams 

where a species formerly occurred is 

necessary to fully recover the species. 

Our Response: The Act provides for 

designating areas that are unoccupied at 

the time of listing when such areas are 

essential for the conservation of a listed 

species. We listed the seven mussels 

based on a substantial decline in range 

and abundance and threats to their 

habitats. Our recovery plan (USFWS 

2003:76–83) quantifies the amount of 

range expansion into formerly occupied 

areas that we believe is necessary to 

achieve recovery for the five species we 

listed as endangered. By delineating 

critical habitat units as the collective 

extent of occurrence of all seven listed 

species within a sub-basin, our 

proposed critical habitat included a 

stream length that met the recovery 

plan’s geographic range recovery criteria 

for each of the five endangered species. 

We do not believe a substantial increase 

in extent of occurrence is either feasible 

or necessary for the recovery of the two 

threatened species, which have 

experienced a lesser decline in range 

than the five endangered species. The 

seven mussels historically occupied 

overlapping but also different portions 

of the eleven units, and it is not 

necessary for each species to occupy all 

suitable habitat within its designated 

critical habitat units to achieve 

recovery. We considered designating 

units for species that are entirely 

extirpated from those units but 

determined that doing so is not essential 

for their conservation. 

(3) Comment: Characterizing the 

stream substrates that are essential to 

the conservation of the seven mussels as 

composed of predominantly coarse 

materials is too simplistic and 

potentially misleading. Fine sediments 

(silts and clays) are a natural component 

of stream substrates in the coastal plain, 

including substrates used by the seven 

listed species. In this region, very coarse 

substrates are often associated with 

channel scouring and are devoid of 

mussels. 

Our Response: We agree that some 

amount (generally less than 50 percent 

by dry weight) of fine sediment is a 

normal component of the substrate that 

is essential to the conservation of the 

seven mussels. Coarse sands without 

any silt or clay, for example, lack 

cohesiveness and do not appear to 

support many mussels, including the 

listed species. By emphasizing the 

adverse affects of excessive amounts of 

fine sediments, we may have implied 

that the seven mussels are altogether 

intolerant of fine sediments, which is 

not the case. Therefore, we have revised 

the substrate primary constituent 

element (PCE) and our discussion of 

substrate quality to acknowledge the 

appropriate role of fine sediments in 

substrate quality. 

(4) Comment: The proposed rule 

stated that the three other species 

reassigned from the genus Lampsilis to 

the newly recognized genus Hamiota 

are not federally listed, but two of these 

are: H. altilis and H. perovalis. The 

third, H. australis, is considered a 

candidate for protection under the Act. 

Our Response: The comment is 

correct. We erred in stating that the 

three other species are not federally 

listed, and we have revised the text of 

the final rule accordingly. 

(5) Comment: Because other portions 

of the Uchee Creek sub-basin besides 

those proposed for designation have 

supported the shinyrayed pocketbook 

and other listed species as recently as 

1973, but have not been surveyed much 

or at all since then, the rule should 

designate all portions of this sub-basin 

below the Fall Line as critical habitat. 

Our Response: Riverine habitats are 

dynamic and subject to a variety of 

threats, which makes survey data about 

the presence of particular mussel 

species time-specific. It is not feasible to 

routinely survey the full range of the 

seven species, which collectively spans 

over 1,000 river miles. We chose post1990 live occurrence records as a 

criterion for evidence that a site has 

supported recent occupancy because a 

great deal of our data comes from a 

range-wide status survey conducted in 

1991 and 1992, shortly before the 

species were proposed for listing in 

1994. Occurrence records from 1973 do 

not meet the criterion we set for 

evidence of recent occupancy; therefore, 

we did not designate other portions of 

the Uchee Creek sub-basin. Our method 

of identifying stream segments that meet 

the criterion of recent occupancy by one 

or more of the listed species and then 

delineating units as contiguous groups 

of these stream segments resulted in 

designating a total length of stream 

habitat meets our recovery plan’s 

geographic range recovery criteria for 

each of the seven mussels (see response 

to Comment #2). Therefore, we believe 

that designating additional areas for 

which we do not have evidence of 

recent occupancy is not essential to 

their conservation. Listed species that 

may occur outside of designated critical 

habitat still receive protection under the 


sroberts on PROD1PC70 with RULES
64288 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

jeopardy standard of section 7 and the 

take prohibition of section 9 of the Act. 

(6) Comment: Because Sawhatchee 

and Kirkland creeks are separated by 

unsuitable habitat in an impounded 

section of the Chattahoochee River, 

these creeks should be designated as 

separate critical habitat units. 

Our Response: We have grouped 

Sawhatchee and Kirkland creeks in the 

same unit because they share two of 

three listed species in common and flow 

unimpeded by fish passage barriers into 

a common water body. Host fish, such 

as largemouth bass, could conceivably 

transport glochidia between these two 

streams. 

Comments from States 

Section 4(i) of the Act states, ‘‘the 

Secretary shall submit to the State 

agency a written justification for his 

failure to adopt regulations consistent 

with the agency’s comments or 

petition.’’ We address comments 

received from States regarding the 

proposal to designate critical habitat for 

the seven mussels below. 

(7) Comment: The designation is 

overly broad because it includes areas at 

high elevations within the lateral 

boundaries and areas between the 

upstream and downstream boundaries 

that do not support the mussels. 

Our Response: Our regulations allow 

the inclusive designation of occupied 

and unoccupied areas in proximity to 

each other that are each essential to the 

conservation of a species (50 CFR 

424.12(d)). We agree that the adult 

seven mussels are seldom found at or 

near the ordinary high water marks in 

a stream, as this portion of the stream 

bed is inundated only during relatively 

high flows; however, we have 

determined that the entire stream 

channel between the ordinary high 

water marks is essential to their 

conservation as the larval life stage of 

these mussels while attached to a fish 

host or drifting in the current could 

‘‘occupy’’ all habitats that the fish visits 

or the current takes them, including 

places at or near the ordinary high water 

marks during high water conditions. 

The location of suitable areas for mussel 

habitat is dependent on fluvial 

dynamics that occur mostly within the 

channel up to the ordinary high water 

marks. A stable stream bank that is 

laterally adjacent to but vertically above 

a mussel bed is essential to the viability 

of the mussel bed. Further, our 

regulations prescribe the use of 

reference points and lines as found on 

standard topographic maps for 

describing the boundaries of critical 

habitat (50 CFR 424.12(c)). The ordinary 

high water marks as defined in the 

Corps’ navigation regulations (33 CFR 

329.11) roughly correspond to how river 

channels are represented on standard 

topographic maps. We agree also that 

the adult seven mussels are not found 

at all locations between the upstream 

and downstream boundaries given the 

unit descriptions. However, as with the 

lateral boundaries, we have determined 

that the entire stream channel between 

the upstream and downstream limits is 

essential to their conservation. Riverine 

habitats are dynamic, and locations that 

provide suitable conditions for mussels 

may shift over time between these 

upstream and downstream limits. 

Connectivity between the upstream and 

downstream limits provides for host fish 

movement, gametes transport, dispersal 

into newly suitable habitats, and food 

items transport. Therefore, we have kept 

these areas in the designation. 

(8) Comment: The designation is 

contrary to the Act because it includes 

areas that do not contain all of the 

physical and biological features that the 

Service determined are essential to the 

conservation of a listed species and may 

require special management (PCEs). For 

example, Unit 8 (Apalachicola River) 

includes the distributary Swift Slough, 

which has aggraded (filled with 

sediment) in recent years and no longer 

flows continuously. 

Our Response: Each of the 11 units 

designated as critical habitat contains 

all of the PCEs, and each stream 

segment listed in the unit descriptions 

contains one or more of the PCEs. 

Neither the Act nor our regulations 

require that all portions of a designated 

critical habitat unit contain all of the 

PCEs. Mobile animals typically satisfy 

various life history requirements by 

relying upon different habitat features in 

different portions of their range. While 

juveniles and adults of the seven 

mussels are relatively immobile 

animals, their glochidia (larvae) and 

host fish are not. Dispersal via fish hosts 

is how the species colonize new areas 

and is necessary to achieve recovery, 

although mussels are also sometimes 

moved into new areas by high-flow 

events. Mussels will best survive and 

reproduce in specific areas that 

consistently provide all of the PCEs, but 

do not necessarily persist permanently 

in any one area given the dynamic 

nature of the riverine environment. 

Interrupted flow due to the 

accumulation of sediment in the bed of 

Swift Slough has recently led to 

substantial mortality of listed mussels in 

this stream during periods of low-flow 

in the Apalachicola River. However, it 

does not follow that this or any 

particular area within a critical habitat 

unit that lacks all of the PCEs cannot be 

included in a critical habitat unit. 

Stream bed aggradation in Swift Slough 

signals the need for special management 

of the channel stability PCE in at least 

the Swift Slough portion of Unit 8. 

While permanently flowing water, 

channel stability, etc., are features 

essential to the conservation of the 

seven mussels in each designated unit, 

we recognize that some portions of all 

11 units have problems with at least one 

of the PCEs that may require special 

management or protections. 

(9) Comment: Florida Fish and 

Wildlife Conservation Commission 

personnel found shell material of the 

listed species in the Brushy Creek 

‘‘feeders’’ (floodplain distributaries of 

the Apalachicola River that flow into 

Brushy Creek). The Service must 

determine whether the Brushy Creek 

feeders were likely occupied in 1998 

(the time of listing), and if so, designate 

those streams if they otherwise qualify 

as critical habitat. Areas like the Brushy 

Creek feeders, currently unoccupied, 

should be designated anyway if they are 

essential for the conservation of the 

species. Areas like the Brushy Creek 

feeders are key to the recovery of 

mussels because they can act as nursery 

areas and provide for population 

expansion. 

Our Response: We relied upon post1990 live occurrence records to provide 

evidence that areas were likely occupied 

at the time of listing, and we have no 

such evidence for the Brushy Creek 

feeders. Dead shells found recently in 

these distributaries, which receive flow 

directly from a part of the main channel 

of the Apalachicola River where listed 

species are known to occur, is not 

evidence that these streams support the 

listed species now or at the time of 

listing. It is more likely that the shells 

found in the Brushy Creek feeders were 

transported by currents from the main 

channel. We believe that areas for which 

we have no evidence of recent 

occupancy are not essential to the 

conservation of the listed mussels (see 

responses to comments #2 and #5). We 

do not believe that the Brushy Creek 

feeders or other similar sites not 

included in this designation provide 

‘‘nursery’’ areas for mussels that are 

necessary for their recovery. The 

concept of a nursery area implies that 

mussels occupy one area as juveniles 

and another as adults. We have no 

evidence that such movements are 

occurring. 

Public Comments 

(10) Comment: Line Creek in Unit 5 

(Upper Flint River) does not provide 

suitable habitat for the listed mussels. 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64289 

Our Response: Live listed species 

have been found in Line Creek 

downstream of its confluence with 

Whitewater Creek since 1990, and this 

segment contains PCEs. Consistent with 

our criteria for identifying critical 

habitat, we included this section of Line 

Creek in Unit 5. 

(11) Comment: Critical habitat 

designation will add costly delays to 

permitting a recreational reservoir on 

Tired Creek, which is upstream of 

designated habitat in Unit 9 (Upper 

Ochlockonee River). 

Our Response: The Service is 

designating critical habitat only where 

the mussels are currently present. 

Therefore, a Federal action that ‘‘may 

affect’’ critical habitat (and would 

trigger formal interagency consultation) 

would also result in a ‘‘may affect’’

determination for one or more mussel 

species (requiring formal consultation in 

and of itself). Our regulations prescribe 

specific timeframes in which to 

complete the formal consultation 

process with Federal agencies. These 

timeframes are the same whether or not 

critical habitat is designated and 

consulted upon during the required 

consultation process. Critical habitat 

designation does not create a separate 

consultation process. While the need to 

consult on adverse modification on 

critical habitat does not increase the 

statutorily allowed amount of time for 

consultation, it could increase the 

amount of effort that goes into the 

consultation process due to the different 

criteria for a jeopardy consultation 

versus an adverse modification 

consultation. Consideration of 

designated critical habitat in other 

environmental requirements (such as 

National Environmental Policy Act (42 

U.S.C. 4321 et seq.)), similarly would 

not add to the length of time needed to 

comply with those requirements. 

(12) Comment: The proposed critical 

habitat for the seven mussels overlooks 

large areas of potential habitat and 

essentially disregards the Service’s own 

recovery goals for these species. The 

Service should designate unoccupied 

areas containing PCEs within the 

historical range of the seven mussels. 

Our Response: Our June 6, 2006, 

proposed rule explained how we 

delineated the upstream and 

downstream limits of proposed critical 

habitat using the collective current 

distribution (post-1990 surveys) of all 

seven mussels and landscape features 

(e.g., tributary confluence, upstream 

extent of a reservoir) that indicated a 

significant change in aquatic habitat 

conditions (71 FR 32757–32758 

‘‘Criteria Used To Identify Critical 

Habitat’’). This approach resulted in 11 

hydrologically and ecologically 

contiguous units, each of which is a 

collection of stream segments that flow 

unimpeded by fish passage barriers into 

a common reservoir or estuary. 

Moreover, as we noted in our response 

to peer-review comment #2, the total 

stream length delineated by these 

methods meets the geographic range 

recovery criteria in the recovery plan 

(Service 2003) for each of the five 

species listed as endangered. 

(13) Comment: Currently occupied 

habitat is insufficient for conservation of 

the seven mussels and, therefore, the 

critical habitat designation must include 

unoccupied habitat. Unsurveyed 

tributary creeks that likely support the 

seven mussels are excluded from the 

proposed critical habitat because the 

Service cannot confirm that mussels are 

present. 

Our Response: Our recovery plan for 

the seven mussels (Service 2003) notes 

that re-introduction in presently 

unoccupied habitat is needed for the 

conservation of the five mussels listed 

as endangered, but not for the two 

threatened, species. The two threatened 

species, the Chipola slabshell and the 

purple bankclimber, each occupy well 

more than 50 percent of the historical 

range, which is the criterion we adopted 

for range expansion as a measure of 

recovery in the recovery plan. For the 

five endangered species, the stream 

length included in the designation 

meets the recovery plan’s geographic 

range recovery criteria (see our 

responses to peer-review comment #2). 

Therefore, we believe the units 

designated provide a sufficient amount 

of habitat to support recovery, which 

precludes the need to designate 

unsurveyed tributaries that are not 

known to support the seven mussels. 

Nevertheless, we would recognize the 

contribution towards recovery of any 

populations found in previously 

unsurveyed streams in our periodic 

reviews of the conservation status of the 

seven species. 

(14) Comment: While permanently 

flowing water is essential to the seven 

mussels’ survival, flowing water alone is 

insufficient for the conservation of these 

species. The final rule should adopt the 

Service-Environmental Protection 

Agency (EPA) instream flow guidelines 

as the flow-related PCE. 

Our Response: We discussed in the 

June 6, 2006, proposed rule the role of 

natural variability in the flow regime to 

the structure, composition, and 

functioning of riverine biological 

communities. The Service-EPA flow 

guidelines are measures of flow 

variability that may serve as thresholds 

for ‘‘may affect’’ determinations for 

proposed Federal actions that would 

alter a flow regime (e.g., water 

withdrawals, dam operations). It was 

not practical or useful to compute the 

flow guidelines for the entire region that 

this designation spans, because the 

guidelines were designed as a tool for 

site- and project-specific analysis. 

Further, the guidelines do not establish 

a general standard or ‘‘bottom line’’ for 

flow regime features that are essential to 

the conservation of listed species. 

Recognizing the many complexities 

involved in quantifying essential flow 

regime features for the seven mussels, 

we adopted a qualitative expression that 

applies throughout the range of the 

seven mussels and is clearly necessary 

for their recovery: ‘‘permanently flowing 

water.’’

(15) Comment: Riparian buffers are 

essential to the conservation of the 

seven mussels and should be designated 

as primary constituent elements. If the 

final rule does not include intact 

riparian buffers as a primary constituent 

element, it should address riparian 

zones as a necessary element of related 

primary constituent elements. 

Our Response: Many factors operating 

outside the channel in the larger 

watershed affect streams and their 

inhabitants. Conditions in the riparian 

zone are among the most influential of 

these factors by virtue of immediate 

proximity to the stream channel, but the 

seven mussels do not occur in the 

riparian zone. A wide array of riparian 

buffer dimensions and vegetative 

characteristics are associated with the 

mussels. Activities within the riparian 

zone are among those that may 

adversely affect the PCEs, and likewise, 

some conservation actions to protect or 

enhance the PCEs may occur within the 

riparian zone. However, specific 

biological and physical features within 

the riparian zone are themselves not 

essential to the conservation of the 

seven mussels. We have used the 

ordinary high water marks of the 

channel as the lateral bounds for this 

designation (see also our response to 

comment #7), which encompasses all of 

the PCEs that we have defined for this 

designation. 

(16) Comment: One PCE recognizes 

fish hosts as necessary to ‘‘support the 

larval life stages of the seven mussels,’’

but none address the habitat needs of 

the host fish species. The final critical 

habitat designation should be consistent 

with the rule for five Tennessee and 

Cumberland River mussels, which 

defined ‘‘Fish hosts with adequate 

living, foraging, and spawning areas for 

them’’ as a PCE, and also linked the 

‘‘flow regime’’ and ‘‘water quality’’ PCEs 


sroberts on PROD1PC70 with RULES
64290 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

for the mussels with the needs of the 

host fish. 

Our Response: PCEs are essential 

physical and biological features that are 

found within critical habitat, the lateral 

boundaries of which we have delimited 

as the ordinary high water marks of the 

stream channel. The final critical habitat 

rule for five endangered mussels in the 

Tennessee and Cumberland River basins 

also used the same criteria (ordinary 

high water mark) to define the lateral 

boundaries of critical habitat. Therefore, 

while the wording of the PCEs might be 

different, the protection levels are the 

same since both use the ordinary high 

water mark to delineate the lateral 

boundaries of critical habitat. 

Several fish species that have been 

identified through laboratory tests as 

potential hosts for the seven mussels are 

known to spawn most successfully in 

floodplain habitats (e.g., largemouth 

bass), which occur outside the critical 

habitat boundaries. We agree that the 

habitat needs of host fish are important 

considerations in mussel conservation, 

but as with our response to Comment 

#15 regarding riparian buffers, we 

distinguish between PCEs and factors 

that may affect PCEs. The timely 

presence of appropriate host fish is the 

habitat feature that is essential for the 

survival and recovery of the mussels 

(i.e., the PCE itself), whereas the habitat 

requirements of the host fish are factors 

affecting that PCE. 

(17) Comment: The rule does not 

contain the summary of data on which 

the proposal is based, does not show the 

relationship of such data to the rule 

proposed, or provide citations to the 

mussel surveys relied upon, as required 

by the Service’s regulations at 50 CFR 

424.16. 

Our Response: Our summary of data 

supporting the PCEs is provided in the 

‘‘Primary Constituent Elements’’

section. Our summary of data 

supporting the delineation of units is 

given in the ‘‘Criteria Used To Identify 

Critical Habitat’’ section. The mapping 

process involved an overlay of all 

available site-specific locality data for 

the seven mussels, which itself was not 

included in the published proposed rule 

and is not included in this final rule. 

The sources for all mussels survey data 

used in the mapping process are cited 

at the conclusion of each unit’s 

description, where we list the species 

for which each unit is designated. A 

complete list of these and all references 

cited in this rulemaking is available 

upon request from the Panama City 

Ecological Services Office (see 

ADDRESSES). 

(18) Comment: The Service should 

not designate Swift Slough, which is 

part of Unit 8 (Apalachicola River), 

because it does not have the 

permanently flowing water PCE. 

Our Response: It is not necessary for 

all PCEs to be present in all portions of 

critical habitat at all times (see our 

response to Comment #8). Habitat 

features change over time, and different 

portions of a unit will provide a 

different mix of the PCEs. At the time 

we initially drafted the proposed rule, 

we were not yet aware of sediment 

accumulation in Swift Slough that now 

results in its disconnection from the 

main channel of the Apalachicola River 

during low flows. Although mussels in 

Swift Slough have suffered considerable 

mortality since the summer of 2006, 

some animals persist from what was 

apparently a relatively large population. 

Swift Slough still meets the criteria we 

used to identify critical habitat; 

therefore, it is still included in the 

designation. 

(19) Comment: Water withdrawals are 

mentioned as causing changes in 

riverine habitats. This is a mis-statement 

of facts. If water is withdrawn and used 

and properly treated and returned to the 

basin of origin, it does not change the 

riverine habitat. 

Our Response: Most out-of-stream 

uses of water return less than 100 

percent of the water that is withdrawn, 

due to evaporation and other losses. In 

2005, about half of the water withdrawn 

for municipal and industrial use in the 

Chattahoochee Basin upstream of West 

Point Dam was not returned to the river 

(Georgia Environmental Protection 

Division, unpublished data). Water 

withdrawals may affect aquatic habitat 

conditions and aquatic communities, 

depending on their timing and 

magnitude relative to stream flow. For 

example, fish assemblages were 

significantly less diverse downstream 

from relatively large water withdrawals 

and downstream from water supply 

reservoirs in the lower Piedmont region 

of Georgia (Freeman 2005). 

(20) Comment: The fact that the fecal 

coliform bacteria standard is violated in 

some reaches of the critical habitat has 

no effect on mussels. This standard is 

set to protect humans engaging in whole 

body contact with the water such as 

swimming. 

Our Response: We agree that fecal 

coliform bacteria standards are 

established to protect human health and 

violations of these standards do not 

necessarily indicate conditions that are 

harmful to mussels. However, it is 

possible that some of the bacteria and 

protozoans associated with wastewater 

discharges, which often includes fecal 

coliform bacteria, may adversely affect 

mussel reproduction (Goudreau et al. 

1993:221). High fecal coliform levels 

may also derive from non-point sources 

such as pastures and farms following 

rain events. Because the overland runoff 

that delivers fecal coliform bacteria from 

non-point sources to streams may also 

carry pesticides, fertilizers, and other 

pollutants, elevated levels of other 

pollutants are often associated with high 

coliform counts. 

(21) Comment: The statements that 

‘‘Many pollutants in the ACF Basin 

originate from * * * and municipal 

waste water facilities’’ in the proposed 

rule implies that waste water facilities 

are the source of pollutants that are 

harmful to the mussels. This is not 

correct if the waste water facilities are 

in compliance with National Pollutant 

Discharge Elimination System (NPDES) 

permits. All NPDES permits are 

required to ‘‘not violate water quality 

standards,’’ therefore the mussels would 

be protected. The fact that someone 

counted 137 municipal waste water 

facilities in the ACF basin is not 

relevant to the protection of the mussels 

assuming that these facilities all have 

NPDES permits and are in compliance. 

To arbitrarily assume that these 

facilities are not in compliance without 

factual data is wrong and is unscientific. 

Our Response: Municipal waste water 

treatment processes remove most but 

generally not 100 percent of all 

pollutants. Although treatment facilities 

and other point-source discharges may 

comply with NPDES permit conditions, 

the combined pollutant loading from all 

sources in a watershed may contribute 

to a total loading such that some reaches 

do not meet one or more water quality 

standards. When a stream is identified 

as impaired under the Clean Water Act 

(33 U.S.C. 1251 et seq.), the States 

initiate a process for developing total 

maximum daily load regulations under 

their delegated administration of the 

Clean Water Act. Our proposed rule 

indicated which critical habitat units 

contain stream segments on the 

impaired waters lists of the States. Our 

reference to the number of treatment 

facilities in the ACF Basin was part of 

describing the environmental setting of 

the critical habitat units. We did not 

assume or mean to imply that treatment 

facilities in the ACF were or were not 

in compliance with NPDES permits. 

(22) Comment: These two statements 

in the proposed rule contradict each 

other: (1) ‘‘The ranges of several 

standard physical and chemical water 

quality parameters (such as temperature, 

DO, pH, conductivity) that define 

suitable habitat conditions for the seven 

mussels have not been specifically 

investigated;’’ and (2) ‘‘Various 

contaminants in point and non-point 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64291 

source discharges can degrade water 

and substrate quality and adversely 

affect mussel populations.’’

Our Response: Our reference to 

‘‘several standard physical and chemical 

water quality parameters’’ did not 

include contaminant concentrations. 

Parameters are those that aquatic 

biologists routinely measure with 

instruments in the field. Concentrations 

of contaminants that are known to 

adversely affect mussels, such as 

ammonia and heavy metals, are 

generally measured using water or 

sediment samples taken to a laboratory 

and not using instruments in the field. 

We have revised the rule language to 

avoid the apparent contradiction of 

these two statements. 

(23) Comment: There is no scientific 

basis given for implying that septic 

systems are responsible for mussel 

threats. 

Our Response: We include 

maintaining septic systems among the 

management considerations to deal with 

the threat of pollution to mussel habitats 

because inadequately maintained 

systems may contribute nutrients and 

other pollutants to ground water that 

can seep into surface water bodies. 

Nutrient loading can lead to algal 

blooms and low dissolved oxygen levels 

that adversely affect mussels, which we 

discuss under the water quality PCE. 

(24) Comment: The impacts 

associated with Whitewater Creek Park 

are minimal; therefore, the Service 

should exclude Macon County, Georgia, 

from the designation. 

Our Response: We do not include 

Whitewater Creek and Whitewater 

Creek Park in Macon County in 

designated critical habitat for the seven 

mussels. However, we do include a 

different Whitewater Creek in Fayette 

County, Georgia. We also include the 

main channel of the Flint River and 

Hogcrawl Creek in Macon County as 

parts of Unit 5 (Upper Flint River). 

(25) Comment: Critical habitat for the 

seven mussels is not determinable 

because the Service has insufficient 

data. Most of the mussel distributional 

records are from the early 1990s and 

further studies are needed to define 

suitable habitat conditions for the seven 

mussels. 

Our Response: Much of the survey 

data upon which we relied dates from 

the early 1990s, but this does not in and 

of itself render critical habitat 

undeterminable. The Act contemplates 

critical habitat designation ‘‘at the time 

it [the species] is listed’’ (Sect. 

3(5)(A)(i)); therefore, we must 

necessarily rely on distributional data 

from the time of listing as well as more 

recent data. It happens that most of our 

records are from the early 1990s because 

the most comprehensive survey effort in 

the range of the seven mussels 

immediately preceded the listing 

proposal, which was published on 

August 3, 1994 (59 FR 39524). Due to a 

moratorium on listing actions declared 

by Congress shortly thereafter, we did 

not publish a final rule until March 16, 

1998 (63 FR 12664). We agree that 

further studies are needed to more 

quantitatively define the seven mussels 

habitat requirements; however, the best 

available information regarding those 

requirements is sufficient to define 

qualitative but workable and meaningful 

PCEs. Further, the PCEs adopted in this 

rule are generally consistent with those 

adopted in previous rules designating 

critical habitat for freshwater mussels. 

(26) Comment: Contrary to the 

Service’s regulations at 50 CFR 

424.12(c), the Service has used an 

imprecise ephemeral boundary, the 

ordinary high water marks, to define the 

lateral extent of the proposed critical 

habitat area. 

Our Response: Although the ordinary 

high water marks of a stream may shift 

location over time, they do not 

disappear. The intent of the regulation 

cited is avoiding reliance in critical 

habitat descriptions on ephemeral 

features, i.e., features that last a 

relatively short time. We agree that the 

ordinary high water marks are not a 

precise or a fixed set of coordinates over 

time, but they are an appropriate 

descriptor for dynamic riverine habitat. 

A fixed set of coordinates that would 

fully encompass the areas we have 

determined are essential would either 

become quickly obsolete through 

natural or human-induced lateral 

channel migration, or would delineate 

an overly broad area by including a fair 

amount of terrestrial habitat. 

(27) Comment: The analysis of what 

activities may affect the proposed 

critical habitat designation set forth in 

the proposed rule is both misleading 

and incomplete. As a result some 

persons may conclude by default that 

any and all activities affecting portions 

of the critical habitat, however 

minimally, will require consultation 

under section 7 of the Act. 

Our Response: The section 7 

consultation process applies only to 

Federal actions. Federal agencies are 

responsible for determining whether 

their actions may affect listed species or 

designated critical habitats. Action for 

which the action agency makes ‘‘no 

effect’’ determinations does not require 

further consultation with the Service. 

Service concurrence is required for 

other determinations, and the Service 

routinely assists Federal agencies in 

defining classes of actions that may 

comply with section 7 through informal 

consultation. The formal consultation 

process, which requires the Service to 

prepare a biological opinion, applies to 

those actions that Federal agencies 

determine may adversely affect the 

listed species or designated habitat. We 

do not expect the designation of critical 

habitat to appreciably increase either 

the number of actions per year to which 

the consultation process applies or for 

which formal consultation is required. 

(28) Comment: The proposed rule 

provides no guidance for determining 

which features of the flow regime are 

important to mussels and their host 

fishes. Therefore, it is impossible to 

determine whether the Service has 

actually made a determination that 

certain activities presumptively ‘‘may 

affect’’ critical habitat. The ServiceUnited States Environmental Protection 

Agency instream flow guidelines 

referenced in the proposed rule do not 

provide a sufficient or appropriate basis 

for evaluating proposed activities, 

because the guidelines are not selfexplanatory and are not obviously 

relevant to the seven mussels. 

Our Response: The measures of flow 

magnitude, duration, frequency, and 

seasonality that are included in the 

Service-USEPA instream flow 

guidelines (USFWS and USEPA 1999) 

may be used to determine whether 

Federal actions may affect listed 

species. This is the express purpose of 

the guidelines, which is relevant to the 

seven mussels. Application of the 

guidelines for this purpose is a sitespecific and data-intensive process that 

involves computing long-term flow 

statistics for a project area with and 

without a proposed Federal action. 

Actions that would alter the flow 

parameters included in the guidelines, 

e.g., increase the maximum number of 

days per year that flow is less than 25 

percent of average annual discharge, 

may adversely affect listed species and 

require formal consultation. The process 

for computing and applying the 

guidelines is explained in the guidelines 

document. However, to provide more 

information about the guidelines in this 

designation, we have added a listing of 

the flow regime features that are 

included in the guidelines to the flow 

regime PCE discussion. 

(29) Comment: The Service should 

follow the procedures prescribed by the 

National Environmental Policy Act 

(NEPA) as part of this rulemaking. 

Our Response: It is our position that, 

outside the jurisdiction of the Tenth 

Federal Judicial Circuit, we are not 

required to prepare environmental 

analyses as defined by NEPA in 


sroberts on PROD1PC70 with RULES
64292 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

connection with designating critical 

habitat under the Endangered Species 

Act of 1973, as amended (see Required 

Determinations—NEPA). 

(30) Comment: The Service fails to 

note that impoundments are very 

efficient in removing sediment, with 

large southeastern reservoirs trapping 

80–90% of the incoming sediment. 

Our Response: In the ‘‘Summary of 

Threats to Surviving Populations’’

section, we note how impoundments 

block the natural downstream 

movement of sediment, which 

commonly leads to channel degradation 

in the tailwaters of dams built in 

alluvial rivers (Williams and Wolman 

1984, p. 14; Lignon et al. 1995, p. 187). 

Rather than providing a net benefit to 

mussels by trapping excessive sediment 

loads, dams may largely remove native 

riverine mussels from tailwater areas 

through channel scouring processes as 

well as from stream segments inundated 

by reservoirs. For example, the fat 

threeridge was formerly abundant but is 

now rare in the upstream reaches of the 

Apalachicola River, most likely due to 

substantial channel incision resulting 

from the construction of Jim Woodruff 

Lock and Dam. 

(31) Comment: The Service fails to 

note that impoundments with large 

storage capacity may increase base flows 

downstream during periods of drought. 

Increased minimum flow may benefit 

downstream mussel habitat. The storage 

capacity of large reservoirs may also 

reduce the impact of flood flows that 

historically would result in scour and 

bank erosion. 

Our Response: The seven mussels 

evolved under natural flow regimes that 

include droughts and floods. Human 

consumptive uses of water may decrease 

stream flow below naturally occurring 

levels, and releases from reservoirs may 

offset the impact of this depletion, 

depending on how reservoirs are 

operated. However, reservoirs generally 

reduce the average annual discharge of 

a river by increasing evaporative losses 

via a greater water surface area. 

Increasing river flow with releases from 

reservoir storage necessarily requires 

decreasing river flow at other times to 

replenish storage, which may adversely 

affect mussels. However, we are aware 

of no evidence that the magnitude, 

frequency, duration, or timing of flood 

flows has been appreciably altered by 

dams in the stream reaches that are 

included in this critical habitat 

designation. 

(32) Comment: Relative to the 

application of the jeopardy and adverse 

modification standards, the Service 

provides no evidence that the operation 

of dams would alter flows in a manner 

that would destroy or adversely modify 

critical habitat. 

Our Response: Federal actions that 

would destroy or adversely modify 

critical habitat are those that alter the 

PCEs to an extent that the conservation 

value of the habitat is appreciably 

reduced. We included dam operations 

as an activity that could, but does not 

necessarily, significantly alter flow 

regimes. Determining whether dam 

operations may adversely affect critical 

habitat is a site- and project-specific 

analysis. The Service-USEPA instream 

flow guidelines (USFWS and USEPA 

1999) are an appropriate tool for making 

such determinations (see comment #28). 

It is not necessary to establish that an 

action, such as dam operations, is 

certain to adversely modify critical 

habitat in order to name it in our 

designation among the actions that 

could do so. 

(33) Comment: The Service is 

required to list the specific PCEs for 

each individual mussel in each unit 

designated as critical habitat. The 

Service does not provide evidence, 

explanations, or citations detailing the 

requirements of each species relative to 

each of the PCEs. 

Our Response: The Act and our 

regulations do not prohibit multispecies critical habitat designation 

rules, and the Service has previously 

issued several multi-species critical 

habitat rules in which a common set of 

PCEs applies to more than one species 

(for example, July 17, 2007, final rule for 

Peck’s Cave amphipod, Comal Springs 

dryopid beetle, and Comal Springs riffle 

beetle, 72 FR 39248). We acknowledge 

that each of the seven mussels has a 

unique life history and niche in the 

riverine environment, but that these are 

similar enough to describe PCEs for the 

seven mussels as a group. Although the 

PCEs are the same for all seven mussels, 

the mix of units designated as critical 

habitat for each species is unique, 

reflecting differences in their spatial 

distribution. 

(34) Comment: The rule should 

address the threat of dam removal to the 

mussels and include dam removal as an 

action that could appreciably alter the 

channel stability and flow PCEs. 

Our Response: The Service is unaware 

of dam removal proposals within the 

areas we are designating as critical 

habitat. Dam removal could conceivably 

initiate channel instability; however, the 

most likely motivation for a dam 

removal project would be restoration of 

free-flowing conditions that were 

previously impaired by impoundment. 

This is the motivation for the proposed 

removal of the Eagle-Phenix Dam and 

the City Mills Dam, which would 

restore a total of approximately 2.3 

miles of the biologically significant Fall 

Line shoal habitat in the Chattahoochee 

River. Although this area has not been 

designated as critical habitat, it is 

within the historical range of some of 

the seven mussels. Eagle-Phenix and 

City Mills dams do not store an 

appreciable volume of water, and 

removing these dams would not affect 

downstream flow regimes. 

(35) Comment: The proposed rule 

cites no evidence to support the 

assertion that the seven mussels are not 

found in impoundments. 

Our Response: Brim Box and 

Williams (2000) surveyed 324 sites in 

the ACF, including several sites within 

several impoundments, including Lake 

Seminole, Lake Walter F. George, and 

West Point Lake. They found no live 

individuals of the listed species within 

any of the impoundments. 

Economic Analysis—Policy Issues 

(36) Comment: Multiple commenters 

requested the economic analysis 

consider those impacts due solely to the 

designation of critical habitat for the 

seven mussels. 

Our Response: Appendix B of the 

Final Economic Analysis (FEA) 

estimates the potential incremental 

impacts of critical habitat designation 

for the seven mussels. It does so by 

attempting to isolate those direct and 

indirect impacts that are expected to be 

triggered specifically by the critical 

habitat designation. The incremental 

conservation efforts and associated 

impacts included in Appendix B would 

not be expected to occur absent the 

designation of critical habitat for the 

seven mussels. Total present value 

potential incremental impacts are 

estimated to be $501,000. All other 

impacts quantified in the FEA are 

considered baseline impacts and are not 

expected to be affected by the critical 

habitat designation. 

(37) Comment: Several commenters 

stated the Initial Regulatory Flexibility 

Analysis does not adequately estimate 

the potential impacts to small entities. 

Our Response: Appendix C in the 

FEA has been revised and now 

considers the extent to which the 

incremental impacts analysis described 

in Appendix B could be borne by small 

entities and the energy industry as 

opposed to fully co-extensive impacts 

quantified in Sections 3 though 6. The 

incremental impacts of the rulemaking 

are considered most relevant for the 

small business and energy impacts 

analyses as they are expected to stem 

from the critical habitat designation, 

and are therefore not expected to occur 

in the case that critical habitat is not 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64293 

designated for the seven mussels. The 

analysis concludes that one hydropower 

operator and 10 deadhead logging 

companies may be affected by critical 

habitat designation as proposed. 

(38) Comment: One commenter states 

that the Draft Economic Analysis (DEA) 

explains that no estimates of minimum 

flow have been developed by the 

Service or any other entity. In order to 

assess ultimate hydropower impacts, 

these estimates must be made, and 

included in the economic analysis. 

Our Response: In the absence of 

information on minimum flow levels for 

the seven mussels the FEA relies on the 

best available information solicited from 

resource managers on the likely efforts 

that would be needed to protect the 

seven mussels to estimate the potential 

future impacts associated with 

conservation efforts in areas proposed 

for designation. 

(39) Comment: One commenter 

indicates that the impacts of 

implementing the U.S. Army Corps of 

Engineers (USACE) Modified Interim 

Operating Plan (Modified IOP) need to 

be distributed between gulf sturgeon 

and mussels, as it considers both. 

Our Response: The Modified IOP is 

intended to protect the mussels, their 

host fish, and gulf sturgeon. Specific 

information on which species generated 

which conservation efforts in the plan is 

not available. This analysis therefore 

quantifies the full impact of the plan as 

co-extensive with seven mussels 

conservation. Appendix B in the Final 

Economic Analysis (FEA) estimates the 

incremental impacts associated solely 

with the designation of critical habitat 

for the seven mussels; impacts 

associated with the Modified IOP are 

not considered to be incrementally due 

to critical habitat. 

(40) Comment: Several commenters 

state that potential benefits of critical 

habitat designation should be 

quantified. 

Our Response: The economic analysis 

conducted for this rule points out that 

there are some potential benefits of 

critical habitat designation. However, it 

is difficult to develop credible estimates 

of such values, as they are not readily 

observed through typical market 

transactions and can only be inferred 

through advanced, tailor-made studies 

that are time consuming and expensive 

to conduct. We currently lack both the 

budget and time needed to conduct such 

research before meeting our courtordered final rule deadline. The 

economic analysis is done primarily to 

provide decisionmakers with 

information about potential exclusions 

from the rule. Given the impracticality 

of conducting this additional analysis 

we do not believe it is necessary to 

quantify the positive consequences of 

this rule in order to weigh the benefits 

of including versus excluding areas 

from the rule. The Congress has already 

determined that the benefits of species 

recovery are high. Therefore, we do not 

require quantification of how high in 

order to make a sound decision. 

Economic Analysis—Economic Issues 

(41) Comment: One commenter states 

that the DEA did not desegregate 

impacts in Unit 8, Apalachicola River to 

focus on Swift Slough, River Styx, and 

Kennedy Slough. 

Our Response: The water management 

adopted per Reasonable and Prudent 

Measure (RPM) 3 of the Biological 

Opinion for USACE operations at Jim 

Woodruff Dam raised the minimum 

flow in the Apalachicola River to 6,500 

cfs when composite storage (all 

reservoirs combined) is above zone 3, at 

which time it reverts to 5,000 cfs. At 

this time the Service does not anticipate 

maintaining higher minimum flows for 

Swift Slough, River Styx, and Kennedy 

Slough than already considered in the 

Modified IOP. Therefore, the FEA does 

not estimate any additional impacts 

associated with these tributaries. 

(42) Comment: One stakeholder 

commented that the Modified IOP is an 

interim plan and can change soon. 

Another commenter noted that the 

USACE 2007 Environmental 

Assessment quoted in Section 4 of the 

report has not been vetted through an 

official process, and that a May 16, 

2007, letter from USACE to the Service 

indicates that changes to Modified IOP 

operations are ongoing, and make 

USACE statements suspect as they are 

subject to change. 

Our Response: The USACE currently 

manages its operations in accordance 

with the 1989 Draft Water Control Plan 

for the Apalachicola-ChattahoocheeFlint (ACF) reservoir system and makes 

minor adjustments as necessary to 

accommodate changes in current needs. 

Current management under the Draft 

Water Control Plan is set out in the 

Modified IOP. The Modified IOP reflects 

how the USACE is regulating the 

minimum releases and maximum fall 

rates at Jim Woodruff Dam. In 2007, the 

USACE completed an Environmental 

Assessment of the Modified IOP. 

Finalization of the Draft Water Control 

Plan depends on the result of ongoing 

litigation filed by the State of Alabama 

in 1990. Although it is expected that the 

Water Control Plan, and the Modified 

IOP will be updated subsequent to the 

resolution of the litigation process, 

information is not available to identify 

what changes to management may 

occur. The FEA therefore applies the 

best information available, i.e., the 

Modified IOP and Draft Water Control 

Plan, regarding water management and 

acknowledges the uncertainty regarding 

this activity in the future. 

(43) Comment: A few commenters 

stated that the input parameters that the 

USACE uses for its HEC–5 hydrological 

model differ from the parameters used 

by Georgia and Florida and that the 

results presented in the DEA could 

change if these different input 

parameters are included in the analysis. 

Our Response: To address the 

comment, the FEA includes additional 

results from Georgia Environmental and 

Protection Division’s (EPD) analysis of 

the Modified IOP. Section 2 has been 

updated with a detailed discussion of 

how the USACE’s assessment of the 

depletion of water storage in the major 

dams on the Chattahoochee River is 

consistently less than Georgia EPD’s 

assessment. Several exhibits have been 

added that compare the two agencies’

interpretations of the impact of the 

Modified IOP on reservoir storage 

capacity. The comparisons are made for 

both year 2000 and year 2030 water 

demand levels, and for normal and 

drought conditions. Section 3 of the 

FEA was revised to include these new 

estimates. Using this new information 

the present value of potential economic 

impacts to recreationists associated with 

conservation efforts for the seven 

mussels in Unit 8, Apalachicola River, 

increased to be between $27.7 million 

and $54.1 million (discounted at three 

percent). 

(44) Comment: A commenter stated 

that the Service’s use of instream flow 

guidelines in Section 2 of the DEA was 

not mentioned in the September 2006 

Biological Opinion on USACE’s IOP for 

Jim Woodruff Dam. 

Our Response: Instream flow 

guidelines discussed in the DEA are as 

described by the Service in the June 6, 

2006, proposed rule for the critical 

habitat designation of the seven 

mussels, not the 2006 biological 

opinion. The EPA–USFWS guidelines 

are referenced in Section 2 of the FEA. 

(45) Comment: One commenter stated 

that the assumption that municipal and 

industrial impacts may result due to 

USACE’s water management operations 

of the ACF system is directly 

contradicted by USACE language, which 

indicates that lake levels will not fall 

below water intake structures because of 

operations under the Modified IOP. 

Our Response: The USACE analysis of 

the impacts of the Modified IOP impacts 

models year 2000 water demand; it does 

not assess the impact of the Modified 

IOP for year 2030 water demands. 


sroberts on PROD1PC70 with RULES
64294 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

However, Georgia EPD provides 

simulated lake levels for both year 2000 

and year 2030 water demand levels. 

Section 2 of the FEA, discusses how 

model simulations conducted by the 

Georgia EPD suggest that lake levels 

may go below water intake structures in 

the future, especially under year 2030 

water demand levels. This can happen 

even without the modifications 

introduced by the Modified IOP. Thus, 

in the case that sustained drought 

conditions exist in the future, the 

Modified IOP can potentially further 

decrease lake levels. 

Potential Economic Impacts Related to 

Changes in Water Use and Management 

(46) Comment: A few commenters 

have expressed reservations about 

attributing the impact of the Modified 

IOP on municipal and industrial water 

supply and recreation to the critical 

habitat of the three mussels found in the 

Apalachicola River complex because the 

Modified IOP predates the designation. 

Our Response: The impact of the 

Modified IOP on municipal and 

industrial water supply is not quantified 

in the DEA. For recreation related 

impacts, which are quantified in Section 

3, the FEA quantifies the fully coextensive impacts of any Federal, State, 

or local regulations or guidelines that 

may benefit the seven mussels in the 

proposed critical habitat area. Appendix 

B of the FEA acknowledges that 

implementing the Modified IOP is not 

an incremental impact attributable to 

the proposed rule. 

(47) Comment: Several commenters 

have indicated that water quality could 

become a concern at lower lake levels. 

Our Response: Section 2 of the FEA 

notes these concerns based on Georgia 

EPD’s analysis of how declining lake 

levels during sustained periods of 

drought could expose the water intake 

structures of several local governments 

in Georgia. Additionally, Georgia EPD 

concludes that the Modified IOP leads 

to an increase in the number of days 

that the desired flow for wastewater 

assimilation below the Columbus gage 

will not be met. Section 5 discusses 

other potential water quality-related 

impacts. These potential water quality 

impacts are associated with Modified 

IOP implementation and are not 

expected to result from the critical 

habitat designation as proposed. 

(48) Comment: One commenter 

mentioned that there is no mechanism 

for the Flint River Drought Prevention 

Act (FRDPA) to restrict agricultural uses 

based solely on impacts to protected 

mussels. 

Our Response: The DEA does not 

make assumptions or recommendations 

regarding how changes in irrigated 

agricultural use will occur, or who will 

bear the cost of changes in water 

management and use. As discussed in 

Section 6 of the FEA, the Georgia 

Department of Natural Resources, 

Wildlife Resources Division plans to 

develop a Habitat Conservation Plan 

(HCP) to address agriculture related 

impacts to seven mussels conservation 

in the Lower Flint River Basin. The HCP 

is expected to reduce irrigation in the 

Lower Flint River Basin during severe 

drought. In addition, there were reverse 

auctions conducted associated with the 

Flint River Drought Protection Act 

(2000), during which irrigation rights 

were purchased from farmers, during 

the drought periods in 2001 and 2002. 

(49) Comment: Several commenters 

indicate that information necessary to 

quantify municipal and industrial 

impacts is ‘‘readily available and should 

have been collected and analyzed as 

part of the economic analysis.’’

Our Response: Section 3 of the FEA 

explains that it was unable to estimate 

the impacts of mussel conservation 

efforts on municipal and industrial 

water supply because of numerous 

uncertainties in the relationship 

between water management under the 

Modified IOP and water supply. To 

quantify these impacts, the following 

information is needed: (a) The 

relationship between lower lake levels 

due to the Modified IOP and the risk 

that municipal water use will be 

restricted in some way (i.e., the 

marginal increase in risk of droughts 

being declared); (b) the amount of water 

lost from each sector (e.g., industry) 

within Chattahoochee River Basin 

municipalities due to drought 

restrictions and quantification of the 

effect of timing restrictions on water 

availability; and (c) data to estimate the 

value of less transparent water uses 

(e.g., lawn watering). These data are 

currently not available. 

(50) Comment: One commenter 

indicated that the DEA underestimates 

the economic impacts associated with 

critical habitat designation at West Point 

Lake, citing preliminary results from an 

ongoing study. The FEA indicates that 

impacts associated with low water 

levels (i.e., water levels below top pool 

elevations) not specifically due to the 

Modified IOP may be as high as $90 

million. The commenter states the 

following: (a) Recreation visits are 

underestimated, (b) the DEA did not 

consider estimates of rapid growth 

associated with the greater LaGrange, 

Georgia area, (c) property value changes 

in response to changes in lake level are 

not analyzed, and (d) the estimate of 

average boating expenditures within 30 

miles ($68 per trip) is low. 

Our Response: The West Point Lake 

study described by this commenter was 

commissioned to investigate the 

economic impact of low water levels, 

which are only in part influenced by the 

mussel conservation efforts. In response 

to the specific points: (a, b) A new 

source of data on visitation to West 

Point Lake has been identified and 

incorporated into the FEA (increasing 

the present value estimate of potential 

future impacts to recreationists at West 

Point Lake to between $11.0 million and 

$16.5 million, discounted at three 

percent). (c) Estimating property value 

impacts would require a study that has: 

(i) Estimated how property values in the 

region (ideally, at West Point Lake) have 

changed in response to changing lake 

levels and (ii) is capable of 

characterizing the marginal change in 

property values of changes in lake 

levels. Such a study has not been 

identified. (d) Average boating 

expenditures are used in the regional 

impact analysis. The within 30-mile 

expenditure value of $68 per trip is the 

best estimate currently available. The 

$95 estimate includes nationwide travel 

expenditures to Lake Lanier and 

therefore cannot be used to estimate 

regional impacts. 

(51) Comment: Several commenters 

indicate that McMahon et al. 2004 is 

inappropriate to use in the DEA to 

estimate potential impacts of lower lake 

levels on recreation. Specifically, (a) 

McMahon et al. use 1995 boater 

visitation data that is outdated; and (b) 

omitting impacts on non-boaters would 

result in a significant underestimate of 

impacts. 

Our Response: An extensive literature 

review of the recreation literature (refer 

to Appendix F of the FEA) was 

conducted and did not identify any 

other studies that were transferable to 

the situation at Lake Lanier. McMahon 

et al. was selected for a few reasons: (a) 

The robustness of the method (Random 

Utility Model), (b) the geographic 

appropriateness of the analysis, and (c) 

the transferability of the results 

(elasticity measures). This study 

provided the best available information 

for this particular analysis. 

Additionally, data are not currently 

available on use levels to incorporate 

non-boater effects in the FEA. The 

commenter does not identify any 

potentially applicable studies or data. 

(52) Comment: Several commenters 

indicate that recreational damages are 

more sensitive to changes in shoreline 

than changes in lake surface area, and 

that it is therefore not appropriate to use 

lake levels as a proxy for changes in 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64295 

recreation. Additionally, the 

commenters indicate that the shapes of 

the different lakes vary considerably, so 

that the draw down of West Point Lake 

exposes far more shoreline than Lake 

Lanier, creating greater economic 

impacts to recreational and property 

interests on the shore. 

Our Response: Information at this 

level of specificity is not currently 

available to relate water withdrawal to 

shoreline changes. Section 3 of the FEA 

acknowledges this limitation. However, 

some aspects of lake shape are 

implicitly incorporated into the 

modeled relationship between 

drawdown and surface levels; for 

example, a steep-walled lake will have 

very little change in surface area as 

water levels fall, whereas a lake with 

relatively flat shorelines will experience 

the opposite effect, and thus have a 

greater level of estimated impacts to 

recreation. 

(53) Comment: One commenter 

indicated that the DEA models 

willingness to accept rather than 

willingness to pay for recreation. 

Because willingness to accept is 

generally higher than willingness to 

pay, the analysis overestimates impacts. 

Our Response: This comment 

misinterprets the DEA. The analysis 

models the compensating variation 

associated with these trips, which is a 

measure similar to consumer surplus. 

These values were developed in the 

context of random utility models, 

created from a travel cost framework. 

Travel expenditures are most reflective 

of willingness to pay rather than 

willingness to accept values. 

(54) Comment: Several commenters 

suggest that the DEA does not consider 

the lake elevations corresponding to 

water supply intakes and boat ramps in 

the DEA’s estimation of recreational 

costs; therefore, costs are 

underestimated. 

Our Response: Declines in lake levels 

may affect some water intakes and boat 

ramps. As discussed in Section 3 of the 

FEA, impacts may vary as water levels 

reach boat ramps and docks, but 

sufficient information on the lake levels 

at which boat ramps and docks are 

stranded and recreationists responses to 

these changes is not available to 

estimate these potential impacts. 

(55) Comment: Several stakeholders 

express concerns that water may not be 

removed from low value uses first, and 

that the FEA should provide the 

institutional mechanisms that will drive 

this process. As an example, a 

stakeholder mentions that agricultural 

uses in other portions of the ACF basin 

will continue unabated, even during 

drought. 

Our Response: Because of the 

uncertainty regarding the uses most 

likely to be affected by changes in water 

allocation this discussion has been 

removed from the FEA. 

(56) Comment: One stakeholder 

expresses concerns that insufficient 

attention is paid to the adaptations that 

are available to minimize withdrawals 

for agriculture, and that the DEA 

therefore overestimates impacts. 

Our Response: The DEA may 

overstate agricultural impacts due to 

insufficient information on the adaptive 

ability of irrigators. As discussed in the 

caveats of Section 3 of the FEA, various 

adaptive management strategies may be 

available that could reduce estimated 

economic impacts on agriculture. 

Specific information on these strategies 

and their applicability is unavailable. 

(57) Comment: One commenter 

indicates that Exhibit 3–16 in the DEA 

treats expenditures foregone as an 

element of regional economic loss 

when, in fact, it is the producer surplus 

foregone that is the basis of the impact 

on the region. 

Our Response: The DEA uses a 

software program called IMPLAN to 

estimate the regional economic effects of 

reductions in economic activity in 

agriculture and recreation-related 

industries associated with seven 

mussels conservation efforts. As 

discussed in Section 3 of the FEA, the 

input to this program is expenditures 

rather than producer surplus, as the 

costs to some suppliers are revenues to 

others further up the supply chain. 

Depending on the characteristics of the 

region (i.e., imports versus exports), 

these costs may therefore also accrue as 

revenues to the region. Regional and 

sectoral multipliers in IMPLAN account 

for this effect. 

(58) Comment: One commenter 

indicates that the fixed cost of irrigation 

equipment should not be included an 

element of damage; it is a sunk cost and 

is not imposed by water use restrictions 

and cannot be avoided in the event of 

restrictions. 

Our Response: It is appropriate to 

include a portion of fixed costs in the 

agricultural impact estimates. Unlike 

variable costs, fixed costs are often 

unrecoverable. Under these 

circumstances, they are an element of 

damage: although fixed costs themselves 

are not imposed by water use 

restrictions, the inability to recover 

these sunk costs of purchasing irrigation 

equipment is caused by the imposition 

of these water use restrictions. 

(59) Comment: One commenter 

indicates that if voluntary auctions are 

held where irrigators are paid to 

temporarily dryland farm certain acres, 

then the local and regional economic 

impacts identified in the analysis may 

be partly or wholly offset. 

Our Response: As indicated in 

Section 3 of the FEA, the FEA makes no 

assumptions about how the reductions 

in agricultural water withdrawals will 

occur, nor who will bear these costs. In 

other words, the economic analysis only 

uses the voluntary auctions as evidence 

that institutional mechanisms exist to 

provide water for mussels’ conservation. 

(60) Comment: Several commenters 

indicate that the DEA should assume a 

more frequent severe drought interval 

based on the more recent rainfall record. 

Our Response: The one in 20-year 

drought interval is based on information 

provided by the Georgia State 

Climatologist for pre-2000 conditions. 

The frequency of droughts may have 

increased from this estimate, however, 

as no study has forecasted drought 

frequency for future years, the analysis 

uses the pre-2000 information. If 

updated frequencies were made 

available that indicated a shorter 

drought interval, forecasted impacts in 

the Lower Flint Basin would increase 

(i.e., if drought frequency increased 

from one in 20 years to one in 10 years, 

impacts would increase roughly by a 

factor of two). 

(61) Comment: One commenter 

indicated that more appropriate data on 

agricultural acreages and crop yields 

during dry years are readily available 

and should be incorporated into the 

DEA. 

Our Response: New information on 

crop acreages and crop yields has been 

incorporated into the FEA, increasing 

the present value of agricultural impacts 

over 20 years from $2.16 million to 

$29.0 million (discounted at three 

percent). 

(62) Comment: One commenter 

suggests using gross revenues instead of 

net revenues for the irrigated versus 

dryland impacts to agriculture. 

Our Response: For individual farmers, 

the FEA assumes that conversion to 

dryland farming will reduce revenues, 

but will also reduce costs. Accordingly, 

the agricultural subsection of Section 3 

in the FEA estimates impacts on a net 

revenue, rather than gross revenue basis. 

Later in Section 3, a regional economic 

impact subsection is presented, where 

impacts to the region are estimated 

based on lost gross revenues. 

(63) Comment: One commenter 

indicates that a consistent measurement 

standard should be employed to assess 

economic impacts, and that the study 

does not indicate the measurement 

standard that is being used. Specifically, 

it is not clear if the DEA is presenting 

marginal values or average values. The 


sroberts on PROD1PC70 with RULES
64296 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

commenter states that additionally the 

DEA appears to do an inconsistent job 

of forecasting future economic 

conditions. In some cases future 

demands are established, while in other 

cases they are ignored. 

Our Response: Section 1 of the FEA 

describes the framework for the analysis 

including measurement standards. As 

discussed in Section 1, forecasting is 

conducted where data are available. In 

many instances, forecasting was not 

possible (e.g., forecasting agricultural 

water demands) given data constraints. 

Potential Economic Impacts to 

Hydropower, Water Supply, and Other 

Impoundment Projects 

(64) Comment: Several commenters 

state that potential impacts to 

hydropower are understated and should 

be quantified. Specific concerns relate 

to the lack of information on the 

difference in value between peaking and 

non-peaking power, and that any change 

in the capability to generate power may 

result in impacts. 

Our Response: Quantification and 

monetization of the potential impacts to 

hydropower are not possible absent 

information on the potential change in 

operations and associated timing of 

releases that may result from mussel 

conservation efforts. Specifically, 

without information regarding how 

operations under the Modified IOP for 

the listed mussels in the Apalachicola 

River would affect timing of 

hydropower generation, potential 

impacts to hydropower generation 

cannot be quantified. As discussed in 

Section 4 of the FEA, the value of power 

fluctuates on an hourly basis while the 

data available for this analysis describe 

power production on a monthly basis. If 

releases for hydropower cannot be 

made, replacement power must be 

purchased to meet demand. While all 

these potential impacts are described 

qualitatively, the USACE states in its 

public comment that the allowable 

hydropower schedule remains 

unchanged from the existing 

hydropower operations prior to the 

Modified IOP. Potential impacts to 

hydropower are therefore uncertain. 

(65) Comment: Two commenters state 

that the DEA inaccurately ascribes value 

to the hydropower generated at USACE 

projects from information provided by 

Southeastern Power Administration 

(SEPA). 

Our Response: Based on follow-up 

communication with SEPA, these dollar 

amounts have been removed from the 

FEA. They represent a composite of 

various expenses and cost obligations, 

and are not indicative of the relative 

importance of the projects. The relative 

value or revenues associated with 

individual projects cannot be 

disaggregated from the full system from 

which hydropower is marketed. 

(66) Comment: One commenter states 

that impacts associated with relicensing 

the Bartlett’s Ferry and other nonFederal FERC-licensed projects on the 

Chattahoochee River should be 

included. 

Our Response: The Bartlett’s Ferry 

Project is on the Chattahoochee River. 

Its current FERC license will expire in 

2014. The projects for which mussel 

conservation efforts (surveys and 

monitoring) associated with FERC 

relicensing are quantified in Section 4 of 

the DEA are on the Flint River bordering 

critical habitat, where listed mussels are 

present. No information is available that 

suggests that projects undergoing FERC 

relicensing on the Chattahoochee River 

will be required to conduct similar 

efforts as the river channels with which 

they are associated are not proposed for 

critical habitat designation, do not have 

any known populations of any of the 

seven mussels, and do not have the 

capability to affect downstream flow in 

the manner that the USACE-operated 

reservoirs do. 

(67) Comment: One commenter stated 

that the number and estimated impacts 

of future smaller water supply projects 

are incorrectly estimated and 

inadequately described. 

Our Response: The report relies on 

the best available information to 

estimate potential impacts associated 

with seven mussel conservation efforts. 

In this case, past and current permitting 

information from the U.S. Army Corps 

of Engineers, and the Georgia 

Department of Environmental Protection 

is combined with cost estimates for 

water projects in the same geographic 

area. This represents the best 

information available at this time. The 

commenter does not provide improved 

information. 

Potential Water Quality-Related Impacts 

(68) Comment: One commenter 

requested that the DEA quantify impacts 

to water quality management. 

Our Response: As discussed in 

Section 5 of the FEA, agriculture, urban 

stormwater runoff, forestry, and 

industrial and municipal point sources 

may influence water quality in the 

proposed critical habitat rivers. The 

economic analysis determined that, 

overall, these activities are not among 

the major categories of activities that 

may be affected by conservation efforts 

for the seven mussels. 

(69) Comment: One commenter states 

that the DEA fails to consider the 

economic effects of lost commercial 

navigation. 

Our Response: The U.S. Army Corps 

of Engineers submitted in its public 

comment that ‘‘the State of Florida has 

denied Section 401 water quality 

certification and Coastal Consistency 

Certification for the Apalachicola River 

portions of the federal ACF navigation 

project. The denial contained costly 

alternative provisions that are not 

currently funded by Congress, and it has 

been agreed to defer dredging unless 

and until additional direction from the 

U.S. Congress provides necessary 

authority and funding for the Florida 

requested changes to the dredged 

material management plan for the 

Apalachicola River. We have estimated 

the additional costs to the navigation 

project due to the Florida-requested 

provisions, but these additional costs 

are unrelated to mussel conservation 

efforts.’’

Section 6 of the FEA acknowledges 

USACE’s comment and that the federal 

navigation project is still authorized. 

Given the ongoing issues unrelated to 

mussels that have precluded navigation 

activities in the ACF basin, however, the 

FEA does not quantify impacts of 

potential changes to navigation. If 

Congress approves funding for the 

alternatives in Florida’s permit 

conditions, and if Florida provides a 

permit to the USACE to continue 

navigation dredging activities, and if the 

presence of the seven mussels or their 

critical habitat then affects dredge 

material disposal or other navigation 

activities this report may have 

underestimated impacts to navigation. 

(70) Comment: One commenter 

requested that the DEA quantify impacts 

to sand and gravel mining. 

Our Response: As discussed in 

Section 6 of the FEA, sand and gravel 

extraction from riverbeds was once 

common in the ACF Basin, but ceased 

several years ago. Permitting authorities 

have indicated that future operations are 

unlikely. 

Summary of Changes From Proposed 

Rule 

We have reconsidered our proposed 

critical habitat designation for the seven 

mussels relative to comments received 

during the two public review periods 

and three public hearings, the economic 

analysis, and new information that has 

become available since we published 

the proposed rule on June 6, 2006. 

Based on information received during 

the first comment period, we made three 

changes to the proposed critical habitat 

designation, which we published for 

public comment in the June 21, 2007, 

notice of availability for the draft 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64297 

economic analysis (72 FR 34215). We 

now adopt these changes in this final 

rule as follows: 

(1) We enlarge Unit 2 (Chipola River) 

and Unit 8 (Apalachicola River). In Unit 

2, we extend the upstream boundary of 

Big Creek by 5.1 km (3.2 mi), and add 

the downstream-most portion of 

Cowarts Creek (33.5 km (20.8 mi)). In 

Unit 8, we add the downstream-most 

portions of three tributaries to the 

Apalachicola River: River Styx, 

Kennedy Slough, and Kennedy Creek. 

(2) We add the fat threeridge to the 

list of species associated with Unit 7 

(Lower Flint River). 

(3) We correct an error by deleting 

Clayton County, Georgia, from the list 

counties in which the proposed critical 

habitat units occur. 

We make no further changes to the 

geographic description of critical habitat 

in this final rule. Otherwise, this final 

rule differs from the proposed rule by 

minor editorial changes, clarifying 

revisions to one of the PCEs, and 

clarifying revisions to the discussions 

that support the PCEs. Based on the 

comments and recommendations we 

received, we have changed the 

following: 

(1) We revise the substrate quality 

PCE to clarify the role of fine sediments. 

While excessive amounts of silts and 

clays accumulating in mussel habitat via 

channel instability and/or erosive land 

uses are harmful to the seven mussels, 

a moderate amount of silt and clay is 

normal and beneficial throughout most 

of the range of the seven mussels. The 

substrate quality PCE was proposed as 

‘‘A predominantly sand, gravel, and/or 

cobble stream substrate’’, and is now 

stated as: ‘‘A predominantly sand, 

gravel, and/or cobble stream substrate 

with low to moderate amounts of silt 

and clay.’’

(2) To avoid implying that little is 

known about the tolerances of mussels 

relative to all physical and chemical 

water quality parameters, we revised the 

statement: ‘‘The ranges of several 

standard physical and chemical water 

quality parameters (such as temperature, 

DO, pH, conductivity) that define 

suitable habitat conditions for the seven 

mussels have not been specifically 

investigated;’’ to read instead ‘‘The 

temperature, dissolved oxygen (DO), 

pH, and conductivity ranges that define 

suitable habitat conditions for the seven 

mussels have not been specifically 

investigated.’’

(3) We revise the discussion of the 

flowing water PCE to provide more 

information about site-specific flow 

regime features that are relevant to the 

seven mussels. Specifically, we have 

added a listing of the flow regime 

features that are included in the ServiceUSEPA instream flow guidelines. 

(4) We correct our characterization of 

three congeners of the shinyrayed 

pocketbook that were reassigned from 

the genus Lampsilis to the genus 

Hamiota as species that are not 

protected under the Act. Two of three 

species are listed under the Act. 

Critical Habitat 

Critical habitat is defined in section 3 

of the Act as (i) the specific areas within 

the geographical area occupied by a 

species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features (I) essential to the conservation 

of the species and (II) that may require 

special management considerations or 

protection; and (ii) specific areas 

outside the geographical area occupied 

by a species at the time it is listed, upon 

a determination that such areas are 

essential for the conservation of the 

species. Conservation, as defined under 

section 3 of the Act means to use and 

the use of all methods and procedures 

that are necessary to bring any 

endangered species or threatened 

species to the point at which the 

measures provided under the Act are no 

longer necessary. 

Critical habitat receives protection 

under section 7(a)(2) of the Act through 

the prohibition against destruction or 

adverse modification of critical habitat 

with regard to actions carried out, 

funded, or authorized by a Federal 

agency. Section 7 of the Act requires 

consultation on Federal actions that 

may affect critical habitat. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow the 

government or public to access private 

lands. Such designation does not 

require implementation of restoration, 

recovery, or enhancement measures by 

the landowner. 

To be included in a critical habitat 

designation, the habitat within the 

geographical area occupied by the 

species at the time it was listed must 

contain features that are essential to the 

conservation of the species. Critical 

habitat designations identify, to the 

extent known using the best scientific 

data available, habitat areas that provide 

essential life cycle needs of the species 

(i.e., areas on which are found the 

primary constituent elements, as 

defined at 50 CFR 424.12(b)). 

Occupied habitat that contains the 

features essential to the conservation of 

the species meets the definition of 

critical habitat only if those features 

may require special management 

considerations or protection. 

Under the Act, we can designate 

unoccupied areas as critical habitat only 

when we determine that the best 

available scientific data demonstrate 

that the designation of that area is 

essential to the conservation needs of 

the species. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific and commercial data 

available. Further, the Service’s Policy 

on Information Standards Under the 

Endangered Species Act, published in 

the Federal Register on July 1, 1994 (59 

FR 34271), and Section 515 of the 

Treasury and General Government 

Appropriations Act for Fiscal Year 2001 

(Pub. L. 106–554; H.R. 5658) and the 

associated Information Quality 

Guidelines issued by the Service, 

provide criteria, establish procedures, 

and provide guidance to ensure that 

decisions are based on the best scientific 

data available. They require Service 

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 determining which areas are 

critical habitat, a primary source of 

information is generally the information 

developed during the listing process for 

the species. Additional information 

sources may include the recovery plan 

for the species, articles in peer-reviewed 

journals, conservation plans developed 

by States and counties, scientific status 

surveys and studies, biological 

assessments, or other unpublished 

materials and expert opinion or 

personal knowledge. All information is 

used in accordance with the provisions 

of Section 515 of the Treasury and 

General Government Appropriations 

Act for Fiscal Year 2001 (Pub. L. 106–

554; H.R. 5658) and the associated 

Information Quality Guidelines issued 

by the Service. 

Habitat is often dynamic, and species 

may move from one area to another over 

time. Furthermore, we recognize that 

designation of critical habitat may not 

include all of the habitat areas that we 

may eventually determine, based on 

scientific data not now available to the 

Service, are necessary for the recovery 

of the species. For these reasons, critical 

habitat designations do not signal that 

habitat outside the designation is 

unimportant or may not be required for 

recovery of the species. 

Areas that support populations of the 

seven mussels, but are outside the 

critical habitat designation, will 

continue to be subject to conservation 


sroberts on PROD1PC70 with RULES
64298 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

actions implemented under section 

7(a)(1) of the Act and to the regulatory 

protections afforded by the section 

7(a)(2) jeopardy standard, as determined 

on the basis of the best available 

scientific information at the time of the 

action. Section 7(a)(1) directs all other 

Federal agencies to utilize their 

authorities in furtherance of the 

purposes of the Act by carrying out 

programs for the conservation of listed 

species. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. 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, or other species conservation 

planning efforts, as any new information 

available to these planning efforts calls 

for a different outcome. 

Primary Constituent Elements 

In accordance with section 3(5)(A)(i) 

of the Act and the regulations at 50 CFR 

424.12, in determining which areas 

occupied at the time of listing to 

designate as critical habitat, we consider 

those physical and biological features 

that are essential to the conservation of 

the species, and within areas occupied 

by the species at the time of listing, that 

may require special management 

considerations or protection. The 

physical and biological features 

essential to the conservation of the 

species are the primary constituent 

elements (PCEs) laid out in an 

appropriate quantity and spatial 

arrangement for recovery. These 

include, but are not limited to: 

(1) Space for individual and 

population growth and for normal 

behavior; 

(2) Food, water, air, light, minerals, or 

other nutritional or physiological 

requirements; 

(3) Cover or shelter; 

(4) Sites for breeding, reproduction, or 

rearing (or development) of offspring; 

and 

(5) Habitats that are protected from 

disturbance or are representative of the 

historic geographical and ecological 

distributions of a species. 

The specific PCEs required for the 

seven mussels are derived from the 

biological needs of the seven mussels as 

described in the final listing rule (63 FR 

12664, March 16, 1998), the proposed 

critical habitat rule (71 FR 32746, June 

6, 2006), and information contained in 

this final rule. 

Space for individual and population 

growth and normal behavior, and sites 

for reproduction and development of 

offspring are provided for the seven 

mussels on and within the streambed of 

stable channels with a suitable 

substrate, which we have captured in 

the PCEs regarding channel stability, 

substrate quality, and flow regime. 

Because the seven mussels are 

dependent on fish to complete their 

larval life stage, the PCE regarding fish 

hosts is a further requirement for 

successful reproduction. Various 

nutritional and physiological 

requirements are captured in the PCEs 

regarding flow regime and water quality. 

These PCEs are explained in additional 

detail below. 

Based on our current knowledge of 

the life history, biology, and ecology of 

the seven mussels, and the habitat 

requirements for sustaining their 

essential life history functions, we have 

determined that the seven mussels 

require the PCEs described below. 

PCE 1. A geomorphically stable 

stream channel (a channel that 

maintains its lateral dimensions, 

longitudinal profile, and spatial pattern 

over time without a consistent aggrading 

or degrading bed elevation). 

Unstable channels do not favor 

mussels in part because adults and 

juveniles are relatively sedentary 

animals. They are unable to move 

quickly or across great distances from 

unsuitable to suitable microhabitats on 

and in the stream bed. Several 

researchers have reported direct adverse 

effects to mussels in aggrading (filling) 

and degrading (scouring) channels 

(Vannote and Minshall 1982, p. 4106; 

Kanehl and Lyons 1992, p. 7; Hartfield 

1993, p. 133; Brim Box and Mossa 1999, 

p. 99–117). In degrading channels, 

mussels lose the substrate sediment in 

which they anchor themselves against 

the current. Mussels have been 

extirpated from streams experiencing a 

‘‘headcut’’ (stream bed degradation 

progressing in an upstream direction) 

and from degrading reaches 

immediately downstream of dams. In 

aggrading channels or in channels with 

actively eroding stream banks, excess 

sediment fouls the gills of mussels, 

which reduces feeding and respiratory 

efficiency, disrupts metabolic processes, 

reduces growth rates, and physically 

smothers mussels (Ellis 1936, p. 39; 

Stansbery and Stein 1971, p. 2178; 

Marking and Bills 1979, p. 209–210; Kat 

1982, p. 123; Vannote and Minshall 

1982, p. 4105–4106; Aldridge et al. 

1987, p. 18; Waters 1995, p. 173–176; 

Brim Box 1999, p. 65). 

In addition to the direct effects above, 

channel instability indirectly affects 

mussels and their fish hosts in several 

ways. Channels becoming wider and 

shallower via bank erosion develop 

more extreme daily and seasonal 

temperature regimes, which affects 

dissolved oxygen levels and many other 

temperature-regulated physical and 

biological processes. Mussels in wider 

and shallower channels are likely more 

susceptible to predation. Erosive 

channels lose the habitat complexity 

provided by mature bank-side 

vegetation, which reduces diversity and 

abundance of fish species. Fewer fish 

means lower probability of mussel 

recruitment. The many direct and 

indirect adverse effects of channel 

instability on mussels and their fish 

hosts strongly suggest that channel 

stability is a habitat feature essential to 

their conservation. 

PCE 2. A predominantly sand, gravel, 

and/or cobble stream substrate with low 

to moderate amounts of silt and clay. 

Adult unionid mussels are generally 

found in localized patches (beds) almost 

completely burrowed in the substrate 

with only the area around their siphons 

exposed (Balfour and Smock 1995, p. 

255–268). The composition and 

abundance of adult mussels have been 

linked to bed sediment distributions 

(Neves and Widlak 1987, p. 5; Leff et al. 

1990, p. 415). Substrate texture (particle 

size distribution) affects the ability of 

mussels to burrow in the substrate and 

anchor themselves against stream 

currents (Lewis and Riebel 1984, 

p.2025). Texture and other aspects of 

substrate composition, including bulk 

density (ratio of mass to volume), 

porosity (ratio of void space to volume), 

and sediment sorting may also influence 

mussel densities (Brim Box 1999, p. 1–

86; Brim Box and Mossa 1999, p. 99–

117). Although several studies have 

reported adult habitat selection by 

substrate composition, most species are 

found in a relatively broad range of 

substrate types (Tevesz and McCall 

1979, p. 114; Strayer 1981, p. 411; Hove 

and Neves 1994, p. 36; Strayer and 

Ralley 1993, p. 255), with few 

exceptions (Stansbery 1966, p. 29–30). 

The seven mussels are found in a 

variety of substrates, ranging from 

pockets of sand on bedrock to sandy 

mud, but only rarely in substrates 

composed of predominantly fine 

materials (more than 50 percent silt or 

clay by dry weight) (Brim Box and 

Williams 2000, p. 1–143; Blalock-Herod 

2000, p. 1–72). Although excessive 

amounts of fine sediments may 

adversely affect the seven mussels, some 

amount of silt and clay is a normal 

component of the substrate at most 

locations at which they are found. In 

stream beds composed mostly of sandy 

materials, moderate amounts of silt and 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64299 

clay increase substrate cohesiveness and 

local stability. 

Interstitial spaces (pores) in coarse 

stream substrates may become clogged 

when fine sediment input to streams is 

excessive (Gordon et al. 1992, p. 1–444). 

Reduced pore space and pore flow rates 

reduce habitat for juvenile mussels, 

which tend to burrow entirely beneath 

the substrate surface, and for some adult 

mussels as well (Brim Box and Mossa 

1999, p. 99–117). At least some species 

of juvenile unionids feed primarily on 

particles associated with sediments and 

pore water during their early 

development (Yeager et al. 1994, p. 

221). Fine sediments act as vectors in 

delivering contaminants such as 

nutrients, heavy metals, and pesticides 

to streams (Salomons et al. 1987, p. 13). 

Most toxicity data for freshwater 

mussels is from tests with water-only 

exposures, despite reports that 

contaminated sediments have 

contributed to mussel declines (Newton 

2003, p. 2543; Wilson et al. 1995, p. 

213–218). 

Because the juveniles and adults of 

the seven mussels live in a variety of 

substrates ranging from pockets of sand 

on bedrock to sandy mud, but only 

rarely in substrates comprised of more 

than 50 percent by dry weight silt and 

clay materials, and because the 

introduction of fine-grained sediments 

and various pollutants is likely 

detrimental to one or more of their life 

stages, we have determined that 

substrate quality is a habitat feature 

essential to their conservation. 

PCE 3. Permanently flowing water. 

The species that are the subject of this 

rule are all riverine unionid mussels 

and are not found in natural or 

manmade ponds and lakes. One known 

exception is a single large (and 

presumably old) purple bankclimber 

found in Goat Rock Reservoir on the 

Chattahoochee River by malacologist C. 

Stringfellow (Columbus State 

University) in 2000. Otherwise, none of 

the seven mussels tolerate impounded 

conditions or persist in intermittent 

streams (Brim Box and Williams 2000, 

p. 1–141); therefore, continuously 

flowing water is a habitat feature 

associated with all potentially viable 

populations. Flowing water transports 

food items to the sedentary juvenile and 

adult life stages and provides oxygen for 

mussel respiration at depths that would 

be anoxic in a pond setting. At least 

three of the seven mussels are known to 

attract host fishes visually by apparently 

disguising their glochidia as potential 

prey items (O’Brien and Brim Box 1999, 

p. 135–136; O’Brien and Williams 2002, 

p. 154), and some of these mechanisms 

appear to require flowing water to 

function effectively as lures. For 

example, flowing water is required to 

suspend the several-feet-long 

superconglutinate of the shinyrayed 

pocketbook in the water column so that 

the glochidia packet at the end of it, 

which resembles a small fish, is visible 

to fish (O’Brien and Brim Box 1999, p. 

135, 138). 

Quantifying the amount of flowing 

water that is essential to the 

conservation of the seven mussels is 

complicated by the broad size range of 

streams they inhabit, from small 

tributaries near watershed headwaters to 

the Apalachicola River, which is the 

world’s 82nd largest river by discharge 

(Leopold 1994, p. 101). These seven 

mussels are often found near the toe of 

stable stream banks associated with 

roots and other instream cover or 

structure. A flow sufficient to inundate 

the stream bed from bank toe to bank toe 

with adequately oxygenated water deep 

enough to deter terrestrial predators is 

several orders of magnitude greater at a 

site on the lower Apalachicola River 

compared to a site on a tributary stream 

in the upper Ochlockonee River. 

Quantifying the amount of flowing 

water that is essential to the 

conservation of the seven mussels is 

also complicated by their dependency 

on various species of fishes to serve as 

hosts for their glochidia. Mussel 

population viability is likely dependent 

on features of the flow regime that 

influence fish host population density 

as well as features that directly affect 

adult and juvenile mussel survival. For 

example, the largemouth bass, which is 

a lab-verified host for the fat threeridge 

and shinyrayed pocketbook (O’Brien 

and Brim Box 1999, p. 136; O’Brien and 

Williams 2002, p. 150), is known to 

utilize seasonally inundated floodplain 

habitats for spawning and rearing 

(Kilgore and Baker 1996, p. 291–294), 

habitats which do not support adult or 

juvenile mussels because they are dry 

for several months of most years. Year 

class strength of largemouth bass has 

been positively correlated with flows in 

several river systems due to the 

additional habitat available in high-flow 

years (Raibley et al. 1997, p. 852–853), 

and fish host density is a factor in 

mussel recruitment (see ‘‘Fish Hosts’’

discussion below). Year class strength is 

abundance of a cohort (born in a 

particular year) relative to other cohorts. 

A strong year class is represented in 

much greater numbers than a weak year 

class, presumably because the strong 

year class experienced more favorable 

conditions for recruitment. 

Riverine ecologists have recognized 

that variable flow creates variable 

physical and chemical conditions that 

limit the distribution and abundance of 

riverine species (Power et al. 1995, p. 

166; Resh et al. 1988, p. 443). Altering 

natural long-term patterns of flow 

changes the structure, composition, and 

function of riverine communities (Bain 

et al. 1988, p. 382–392; Hill et al. 1991, 

p. 198–210; Sparks 1995, p. 172–173; 

Scheidegger and Bain 1995, p.134). Poff 

et al. (1997, p.770) and Richter et al. 

(1997b, p. 243) concluded that the 

accumulated research on the 

relationship between hydrologic 

variability and riverine ecological 

integrity overwhelmingly supported a 

‘‘natural flow paradigm,’’ that is, the 

patterns of variability in a river’s natural 

flow regime are critical in sustaining its 

ecological integrity. Richter et al. (1996, 

p. 1165, 1997b, p. 236) proposed a set 

of parameters collectively termed 

‘‘indicators of hydrologic alteration’’

(IHA) for characterizing ecologically 

relevant features of a flow regime. 

The Service and USEPA adapted a 

subset of the IHA parameters as 

instream flow guidelines for protecting 

riverine ecosystems under a possible 

interstate water allocation formula 

between Alabama, Florida, and Georgia 

for the ACF Basin (USFWS and USEPA 

1999, p. 1). Although the three States 

failed to agree upon an allocation 

formula and the ACF Compact 

authorizing their negotiations expired, 

the Service has applied the instream 

flow guidelines in consultations with 

Federal agencies on actions affecting the 

species addressed in this rule. The 

Service-USEPA guidelines are 

definitions of measures of flow 

magnitude, duration, frequency, and 

seasonality that may serve as thresholds 

for ‘‘may affect’’ determinations for 

proposed Federal actions that would 

alter a flow regime (for example, water 

withdrawals and dam operations). 

These measures include the following: 

monthly 1-day minima; annual low-flow 

duration; monthly average flow; annual 

1-day maximum; annual high-flow 

duration. Thresholds for these measures 

are computed from long-term flow 

records appropriate to the proposed 

action, such as daily flow records from 

a stream gage in the action area. It is not 

practical or useful to compute the flow 

guidelines for the entire region that this 

designation spans, because the 

guidelines were designed as a tool for 

site- and project-specific analysis. 

Further, the guidelines do not establish 

a general standard or ‘‘bottom line’’ for 

flow regime features that are essential to 

the conservation of listed species. 

Recognizing the many complexities 

involved in quantifying essential flow 

regime features for the seven mussels, 


sroberts on PROD1PC70 with RULES
64300 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

we have adopted a qualitative 

expression that applies throughout the 

range of the seven mussels and is clearly 

necessary for their conservation: 

‘‘permanently flowing water.’’

PCE 4. Water quality (including 

temperature, turbidity, dissolved 

oxygen, and chemical constituents) that 

meets or exceeds the current aquatic life 

criteria established under the Clean 

Water Act (CWA) (33 U.S.C. 1251–

1387). 

The temperature, dissolved oxygen 

(DO), pH, and conductivity ranges that 

define suitable habitat conditions for the 

seven mussels have not been 

specifically investigated. As sedentary 

animals, mussels must tolerate the full 

range of these parameters to persist in 

a stream. Quantifying water quality 

tolerances for the seven mussels is 

further complicated by their 

dependency on fish hosts, which may 

exhibit different tolerances. 

Most mussels are considered sensitive 

to low DO levels and high temperatures 

(Fuller 1974, p. 245). Johnson (2001, p. 

8–11) monitored water quality and 

mussel mortality during a drought year 

in the lower Flint River Basin. Low DO 

levels, which occurred during low flow 

periods, were associated with high 

weekly mussel mortality. Speciesspecific mortality varied considerably. 

The shinyrayed pocketbook and Gulf 

moccasinshell were among the species 

with the highest mortality rates when 

exposed to DO concentrations less than 

5 milligrams per liter (mg/L). The oval 

pigtoe demonstrated moderate, but 

significantly higher than average, 

mortality when DO was less than 5 mg/ 

L. 

Juvenile mussels may spend their first 

few years buried in the sediments of the 

stream bed. Interstitial water (pore 

water) in sediments is generally less 

oxygenated than flowing water in the 

stream above (Sparks and Strayer 1998, 

p. 129). Sparks and Strayer (1998, p. 

132) observed marked differences in 

behavior between juvenile Eastern 

elliptio (Elliptio complanata), congener 

of the Chipola slabshell, that were 

exposed to DO levels of 2 mg/L and 4 

mg/L, and most juveniles of this species 

that were exposed to 1.3 mg/L for a 

week died. In general, juveniles are 

sensitive to low DO levels. Interstitial 

DO levels in streams of the eastern 

United States are usually less than 4 

mg/L in the summer and may fall below 

1 mg/L (Sparks and Strayer 1998, p. 

132). 

Water temperature affects the amount 

of oxygen that can be dissolved in water 

and the toxicity of various pollutants. 

The toxic effects of ammonia are more 

pronounced at higher temperatures and 

at higher pH (Mummert et al. 2003, p. 

2545, 2550; Newton 2003, p. 2543). 

High temperatures or decreasing pH 

may increase the toxicity of metals to 

unionids (Havlik and Marking 1987, p. 

14). Watters and O’Dee (2000, p. 136) 

suggested that the release of glochidia is 

regulated by water temperature. In 

Texas, exceptionally warm temperatures 

appeared to prompt early initiation of 

mussel reproductive activity, and cool 

temperatures appeared to delay activity 

(Howells 2000, p. 40). Temperature may 

affect immune system response in fish. 

Some fish species that reject infections 

by mussel glochidia at higher 

temperatures are infected at lower 

temperatures (Roberts and Barnhart 

1999, p. 484). 

Various contaminants in point- and 

non-point-source discharges can 

degrade water and substrate quality and 

adversely affect mussel populations 

(Horne and McIntosh 1979, p. 119–133; 

Neves and Zale 1982, p. 53; McCann 

and Neves 1992, p. 77–81; Havlik and 

Marking 1987, p. 1–20). Naimo (1995, p. 

341) suggested that chronic, low-level 

contamination of streams may explain 

the widespread decreases in mussel 

density and diversity. Mussels appear to 

be among the organisms most sensitive 

to heavy metals (Keller and Zam 1991, 

p. 539), several of which are lethal at 

relatively low levels (Havlik and 

Marking 1987, p. 3). Cadmium appears 

to be the most toxic (Havlik and 

Marking 1987, p. 3), although copper, 

mercury, chromium, and zinc may also 

impair physiological processes 

(Jacobson et al. 1993, p. 879; Naimo 

1995, p. 353–355; Keller and Zam 1991, 

p. 539–546; Keller and Lydy 1997, p. 3). 

Metals stored in mussel tissues indicate 

recent or current exposure (Havlik and 

Marking 1987, p. 12), while 

concentrations in shell material indicate 

past exposure (Imlay 1982, p. 7; Mutvei 

et al. 1994, p. 163–186). Highly acidic 

pollutants such as metals may 

contribute to mussel mortality by 

dissolving shells (Stansbery 1995, p. 2–

3). Low levels of some metals may 

inhibit glochidial attachment (Huebner 

and Pynno ̈nen 1992, p. 2349). Mussel 

recruitment may be reduced in habitats 

with low but chronic heavy metal and 

other toxicant inputs (Yeager et al. 1994, 

p. 221; Naimo 1995, p. 341; Ahlstedt 

and Tuberville 1997, p. 72–77). 

Water pollutants associated with 

agricultural activity may adversely 

affect mussels. Arsenic trioxide, which 

is used in the poultry industry as a feed 

additive, is lethal to adult mussels at 

concentrations of 16.0 parts per million 

(ppm), and ammonia is lethal at 

concentrations of 5.0 ppm (Havlik and 

Marking 1987, p. 3, 13). Ammonia is 

associated with animal feedlots, 

nitrogenous fertilizers, and the effluents 

of older municipal wastewater treatment 

plants. Ammonia causes a shift in 

glucose metabolism (Chetty and Indira 

1995, p. 84) and alters the utilization of 

lipids, phospholipids, and cholesterol 

(Chetty and Indira 1994, p. 693). Stream 

ecosystems are altered when nutrients 

are added at concentrations that cannot 

be assimilated (Stansbery 1995, p. 2–3). 

Excessive nutrients promote the growth 

of filamentous algae in streams, which 

may render substrates unsuitable for 

mussels of all life stages and degrade 

water quality by consuming oxygen 

during night-time respiration and 

during decay to levels that mussels 

cannot tolerate. Several studies have 

described adverse effects of pesticides 

on mussels (Fuller 1974, p. 215–257; 

Havlik and Marking 1987, p. 13; 

Moulton et al. 1996, p. 131). Commonly 

used pesticides were cited as the likely 

cause of a mussel die-off in a North 

Carolina stream (Fleming et al. 1995, p. 

877–879). 

Gourdreau et al. (1993, p. 211–230) 

examined mussel populations relative to 

the discharges of two municipal 

wastewater treatment plants on the 

Clinch River in Tazewell County, 

Virginia. Mussels were absent or present 

in low numbers immediately 

downstream of these discharges, but 

occurred in greater diversity and 

abundance immediately upstream and 

farther downstream. The investigators 

hypothesized that, in addition to 

chemicals of known toxicity to 

glochidia, the bacteria and protozoans 

associated with wastewater discharges 

may also adversely affect mussel 

reproduction. Glochidia are vulnerable 

to attack by bacteria and protozoans 

before and after they are released from 

the adult female mussel (Fuller 1974, p. 

219; Goudreau et al. 1993, p. 221). 

Adults of some mussel species may 

tolerate short-term exposure to various 

contaminants by closing their valves 

(Keller 1993, p. 701). Juveniles and 

glochidia appear more sensitive than 

adults to heavy metals (McCann and 

Neves, 1992, p. 77–81) and to ammonia 

(Goudreau et al. 1993, p. 224). 

Ammonia is lethal to juveniles at 

concentrations as low as 0.7 ppm total 

ammonia nitrogen, normalized to pH 8, 

and lethal to glochidia at concentrations 

as low as 2.4 ppm (Augspurger et al. 

2003, p. 2569–2575). In streams, 

ammonia may occur at highest 

concentrations in substrate interstitial 

spaces where juvenile mussels live and 

feed (Whiteman et al. 1996, p. 794; 

Hickey and Martin 1999, p. 38; 

Augspurger et al. 2003, p. 2569–2575). 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64301 

In general, we believe the numeric 

standards for pollutants and water 

quality parameters (for example, heavy 

metals and DO) that are adopted by the 

States under the CWA represent levels 

that are essential to the conservation of 

the seven mussels. However, some State 

standards may not adequately protect 

mussels, such as the standard for 

ammonia (Augspurger et al. 2003, p. 

2571; Newton et al. 2003, p. 2559). 

USEPA and FWS and National Marine 

Fisheries Service (the Services) agreed 

to a national consultation on the CWA 

Section 304(a) aquatic life criteria as 

part of a Memorandum of Agreement 

regarding interagency coordination 

under the CWA and the Act (66 FR 

11202, February 22, 2001). The criteria 

for some pollutants, such as ammonia, 

are presently under review. Although 

the State standards adopted consistent 

with the USEPA criteria generally 

represent levels that are safe for the 

seven mussels, these standards are 

sometimes violated in some streams 

within their current range. Rather than 

specify the ranges of dozens of water 

quality parameters for the seven 

mussels, it is more practical to deal with 

cases where the national criteria are not 

protective of these and other listed 

species under the national consultations 

with USEPA. For purposes of this rule, 

the evidence for the dependency of the 

seven mussels on good water quality 

supports identifying water quality 

generally as a habitat feature that is 

essential to their conservation. 

PCE 5. Fish hosts (such as largemouth 

bass, sailfin shiner, brown darter) that 

support the larval life stages of the 

seven mussels. 

Most unionid mussels, including the 

seven species, parasitize fish during the 

larval life stage, depending on fish hosts 

not only for the physiological 

transformation from larval to juvenile 

form (Isom and Hudson 1982, p. 147–

151), but also for spatial dispersal 

(Neves 1993, p. 4). The distribution and 

diversity of unionids is strongly related 

to the distribution and diversity of fish 

species (Watters 1992, p. 488; Haag and 

Warren 1998, p. 298). Bogan (1993, p. 

600) identified the dependency of 

mussels on fish hosts, which are 

affected by exploitation and a variety of 

common habitat alterations, as one of 

several contributing causes in the 

extinction of several unionid species 

worldwide. Haag and Warren (1998, p. 

303) identified host fish availability and 

density as significant factors influencing 

where certain mussel populations can 

persist. 

Although female mussels may 

produce 75,000 to 3.5 million glochidia 

(Surber 1912, p. 3–10; Coker et al. 1921, 

p. 144; Yeager and Neves 1986, p. 333), 

contact of the glochidia with a suitable 

host fish is a low-probability event 

(Neves et al. 1997, p. 60). Contact is 

dependent on many factors, including 

the timely presence of the host fish, the 

feeding and respiratory behaviors of the 

fish (Dartnall and Walkey 1979, p. 36; 

Neves et al. 1985, p. 17–18), and for 

some species, the behavior of the mussel 

when the fish is present (Davenport and 

Warmuth 1965, p. R77; Kraemer 1970, 

p. 225–282). Contact between glochidia 

and host fish does not ensure successful 

larval development to the juvenile form, 

because some fish species have natural 

immunity to glochidial infestation and 

others acquire immunity following 

infestation (Watters and O’Dee 1996, p. 

387). Glochidia that contact a host with 

natural immunity are rejected and die, 

usually within 11 days (Neves et al. 

1985, p. 15, 17; Yeager and Neves 1986, 

p. 338; Waller and Mitchell 1989, p. 86). 

In the case of acquired immunity, 

glochidia experience decreased 

transformation rates with subsequent 

infections of an initially suitable host 

fish (Arey 1932, p. 372; Bauer and Vogel 

1987, p. 393; Luo 1993, p. 26). The 

number of exposures associated with 

glochidial sloughing is variable (Watters 

and O’Dee 1996, p. 385, 387). 

As few as 1 to as many as 25 fish 

species are known to serve as suitable 

hosts for particular species of mussels 

(Fuller 1974, p. 238; Trdan and Hoeh 

1982, p. 386; Gordon and Layzer 1989, 

p. 1–98; Hoggarth 1992, p. 3). Some 

mussels are host-fish specialists that 

parasitize a few fish species (Zale and 

Neves 1982, p. 2540; Yeager and Saylor 

1995, p. 4; Neves et al. 1985, p. 13, 17), 

and others are generalists that parasitize 

a great variety of host fishes (Trdan and 

Hoeh 1982, p. 386). Generally, mussels 

that are known host-fish specialists tend 

to release glochidia in conglutinates 

(multiple glochidia in a packet versus a 

stream of single glochidia) or use 

various means of attracting a fish host 

before releasing multiple glochidia 

(Watters 1997, p. 45). Because fish that 

are not naturally immune to glochidial 

infection develop some immunity after 

infection, securing a host fish is to some 

degree a ‘‘first come, first served’’

situation. Some researchers have 

hypothesized that mussels may compete 

for fish hosts (Watters 1997, p. 57; 

Trdan and Hoeh 1982, p. 384–385). 

Watters (1997, p. 45–62) developed 

individual-based models of mussel-fish 

interactions to simulate unionid 

reproductive strategies, showing 

specialists tended to have lower 

population sizes and were less sensitive 

to fluctuating host fish density than 

generalists, which attained much higher 

population sizes when host fish density 

was high and declined when host fish 

density declined. 

Haag and Warren (1998, p. 297–306) 

examined patterns of fish and mussel 

community composition in two north 

Alabama drainages. They found that 

densities of host-generalist mussels and 

of host-specialist mussels with elaborate 

host-attracting mechanisms were 

independent of host-fish densities, and 

were present throughout the two 

drainages. Densities of host-specialist 

mussels without elaborate hostattracting mechanisms were positively 

correlated with host-fish densities and 

were absent or rare near the drainages’

headwaters. 

Host-fish specificity has been 

examined in laboratory tests for five of 

the seven mussels: The fat threeridge, 

Gulf moccasinshell, oval pigtoe, purple 

bankclimber (O’Brien and Williams 

2002, p. 151), and shiny-rayed 

pocketbook (O’Brien and Brim Box 

1999, 136). The fat threeridge lacks 

mantle modifications or other 

morphological specializations that 

would serve to attract host fishes and 

appears to be a host-fish generalist that 

may infect fishes of at least three 

different fish families. Glochidia 

transformed to juveniles under 

laboratory conditions on five of seven 

fish species tested: weed shiner 

(Notropis texanus), bluegill (Lepomis 

macrochirus), redear sunfish (L. 

microlophus), largemouth bass 

(Micropterus salmoides), and 

blackbanded darter (Percina 

nigrofasciata) (O’Brien and Williams 

2002, p. 152). 

The elaborate superconglutinate of the 

shiny-rayed pocketbook suggests it is a 

host-fish specialist that targets sightfeeding piscivorous fishes, such as bass. 

O’Brien and Brim Box (1999, p. 136) 

confirmed that largemouth bass and 

spotted bass (Micropterus punctulatus) 

are likely primary hosts (all fishes 

infected produced juvenile mussels) 

among 11 species tested. Low 

transformation rates were associated 

with fish such as the eastern 

mosquitofish (Gambusia holbrooki) and 

bluegill. 

The Gulf moccasinshell is probably a 

host-fish specialist that primarily 

parasitizes darters. It visually lures host 

fish by undulating its dark mantle flaps 

against swollen white gills (O’Brien and 

Williams 2002, p. 154). O’Brien and 

Williams (2002, p. 152) lab-tested eight 

fish species for suitability as hosts, 

finding that all black-banded darters 

and brown darters (Etheostoma edwini) 

exposed to infection transformed 

glochidia to juveniles. Other fishes, 

including the eastern mosquitofish, also 


sroberts on PROD1PC70 with RULES
64302 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

transformed glochidia, but at lower 

percentage rates. 

The extreme rarity of the Ochlockonee 

moccasinshell has precluded any 

opportunities to explore its life history. 

We assume its reproductive biology is 

similar to its congener, the Gulf 

moccasinshell, which uses darters as 

host fish. 

The oval pigtoe releases rigid white to 

pinkish conglutinates, which passively 

drift in the current and may resemble 

the food organisms of small-bodied 

fishes. O’Brien and Williams (2002, p. 

152) tested 11 fish species as hosts, 

finding that glochidia transformed on 

the gills of fish such as the sailfin shiner 

(Pteronotropis hypselopterus) and 

eastern mosquitofish. They considered 

only the sailfin shiner as a primary host, 

as it was the only species upon which 

the transformation rate exceeded 50 

percent. 

We are aware of no studies of the 

reproductive biology of the Chipola 

slabshell. It is likely that the species 

expels glochidia in a conglutinate, as do 

several other members of the genus 

Elliptio that occur in the ACF Basin 

(Brim Box and Williams 2000, p. 34–

47). Keller and Ruessler (1997, p. 402–

407) identified centrarchids (sunfishes) 

as host fishes of other southeastern 

Elliptio. 

O’Brien and Williams (2002, p. 153) 

observed in the laboratory that purple 

bankclimber conglutinates readily 

disintegrated when they contained 

mature glochidia, and these were easily 

suspended in the water by the aerators 

in their holding tanks. They speculated 

that the species may rely on stream 

currents to carry glochidia to host fish, 

which is typical of host-fish generalist 

species. Of the 14 fish species they 

tested as potential hosts, only a few 

species transformed glochidia, 

including the eastern mosquitofish and 

blackbanded darter. Only the mosquito 

fish was 100 percent effective (all fish 

tested transformed glochidia), but it is 

an unlikely primary host fish. The 

mosquito fish occupies backwater areas 

and stream margins with little or no 

current (Lee et al. 1980, p. 1–854), while 

the bankclimber is found mostly in the 

main channels of larger streams and 

rivers. The primary host fishes of the 

purple bankclimber are still unknown. 

Data that might suggest densities of 

the various primary host fish species 

named above that are sufficient to 

support normal mussel recruitment and 

dispersal rates are not available. 

Stochastic simulations of fish’mussel 

interactions indicate that mussel 

populations are extirpated if a threshold 

host fish density is not exceeded 

(Watters 1997, p. 60). Further studies of 

fish and mussel population dynamics 

are necessary to quantify speciesspecific thresholds; however, we 

recognize that the presence of host fish 

is a biological habitat feature essential to 

the conservation of the seven mussels. 

This designation is designed for the 

conservation of PCEs necessary to 

support the life history functions of the 

species and the areas containing these 

PCEs. We propose units for designation 

based on sufficient PCEs being present 

to support at least one of the species’

life history functions. Some units 

contain all of these PCEs and support 

multiple life processes, while some 

units contain only a portion of these 

PCEs, those necessary to support the 

species’ particular use of that habitat. 

Special Management Considerations or 

Protections 

When designating critical habitat, we 

assess whether the occupied areas 

contain the features essential to the 

conservation of the species that may 

require special management 

considerations or protections. Activities 

in or adjacent to each of the critical 

habitat units described in this rule may 

affect one or more of the PCEs that are 

found in the unit. These activities 

include, but are not limited to, those 

listed in the Adverse Modification 

Standard section as activities that may 

affect critical habitat. We find that the 

features essential to each of the seven 

mussel species contained within the 

areas of this designation may require 

special management considerations or 

protections due to known or probable 

threats from these activities. We 

summarize here the nature of the threats 

and the resulting conservation needs for 

both the mussels and their host fish 

across the range of the seven mussels. 

Sedimentation is an almost 

ubiquitous threat in the range of the 

seven mussels. A wide variety of 

activities, such as livestock grazing, 

road and bridge construction, clear-cut 

logging, and off-road vehicle use, that 

are common in all 11 units may increase 

erosion rates, either in the banks of the 

stream channel itself or elsewhere in the 

watershed, and cause the accumulation 

of fine sediments on the stream bed. 

Management considerations to deal with 

this threat include protecting streams 

from sedimentation through application 

of agricultural and forestry best 

management practices, avoiding soiland vegetation-disturbing activity in the 

riparian zone, restoring unstable stream 

channels and other erosive areas, and 

other practices that prevent or reduce 

erosion. 

Urbanization, road and bridge 

construction, and other large-scale 

alterations of land cover that 

substantially alter the runoff 

characteristics of the watershed may 

threaten channel stability in units near 

the major urban areas of Dothan, 

Alabama (unit 2); Panama City and 

Tallahassee, Florida (units 1 and 10); 

Albany, Atlanta, and Columbus, Georgia 

(units 3, 5, 6, and 7); and other cities. 

Management considerations to deal with 

the threat of channel instability include 

avoiding soil- and vegetation-disturbing 

activity in the riparian zone, limiting 

impervious surface area, and other 

urban storm water runoff control 

methods. Sand and gravel mining (unit 

3), dredging and channelization (unit 8), 

and dam construction (unit 5) may also 

affect channel stability. 

The construction and operation of 

dams, water withdrawals, and water 

diversions may alter features of the flow 

regime important to the mussels and 

their host fishes. This threat is present 

to some degree in all 11 units, but is 

greatest in units 5, 6, 7, 8, and 10, which 

are downstream of the major mainstem 

dams or are areas of relatively high 

municipal, industrial, or agricultural 

water use. Measures to deal with this 

threat include water conservation and 

operational strategies that manage water 

storage capacity and water demands in 

combination to minimize departures 

from the natural flow regime. 

Water pollution, especially from nonpoint (dispersed release) sources, is 

another almost ubiquitous threat in all 

11 units. Water quality is reported as 

impaired or potentially impaired in 

some portions of all four river basins 

within the current range of the seven 

mussels, according to the water quality 

agencies of the three States in their 

periodic assessments under Section 

305(b) of the Clean Water Act (CWA) 

(see ‘‘Summary of Threats to Surviving 

Populations’’ in the proposed rule 

published in the Federal Register on 

June 6, 2006 (71 FR 32746)). Streams 

that receive a high proportion of their 

flow from the discharge of springs are 

vulnerable to nutrient enrichment from 

fertilizers and to other pollutants 

applied in the recharge areas of those 

springs (units 1, 2, and 7), which may 

extend far from the streams themselves. 

Management considerations to deal with 

the threat of pollution include applying 

agricultural and forestry best 

management practices, preserving 

native vegetation in riparian zones, 

maintaining septic systems, and taking 

other measures to minimize pollutantladen runoff to streams. 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64303 

Criteria Used To Identify Critical 

Habitat 

As required by section 4(b)(1) of the 

Act, we used the best scientific and 

commercial data available in 

determining areas that contain the 

features that are essential to the 

conservation of the seven mussels. We 

reviewed the available information 

pertaining to their historical and current 

distributions, life histories, host fishes, 

habitats, and threats to mussels in 

general, and threats to the seven 

mussels in particular. This information 

includes our own site-specific species 

and habitat data; unpublished survey 

reports; notes and communications with 

other qualified biologists or experts; 

peer-reviewed scientific publications; 

the final listing rule for the seven 

mussels; and our final recovery plan for 

the seven mussels. 

Our principal sources of information 

for identifying the specific areas within 

the occupied range of the seven mussels 

on which are found those features 

essential to their conservation were: the 

collective database of locality records 

for the seven mussels, which is 

tabulated in our 2003 final recovery 

plan and has been supplemented with 

surveys completed since then, and the 

peer-reviewed scientific literature on 

mussels’ life history and habitat 

requirements. Our 1998 final listing rule 

relied extensively upon data obtained in 

a rangewide status survey of the seven 

mussels commissioned by the Service 

and conducted in 1991 and 1992 (cited 

as Butler (1993, p. 1–30) in the final 

listing). Most of these data were taken 

in the ACF basin and have since been 

published by Brim Box and Williams 

(2000, p. 3). Although mussel surveys 

have been conducted since publication 

of the final listing rule at various 

locations in the four river basins that 

encompass their known range, the 

1991–1992 status survey still provides a 

majority of the most recent 

distributional records for these seven 

mussels. For purposes of this final rule, 

the Service considers the most recent 

post-1990 survey data at a particular 

location as representing a species’

current presence or absence at that 

location, and we consider pre-1990 

survey data as representing historical 

distribution. We must extend the 

definition of current distribution back to 

1990 because mussels are sedentary, 

long-lived animals, some species 

attaining maximum life spans of 100 to 

200 years (Neves and Moyer 1988, p. 

185; Bauer 1992, p. 425; Mutvei et al. 

1994, p. 163–186). It was rare in the 

1991–1992 survey, and is still rare, to 

find juveniles of the seven mussels. 

We relied on a variety of information 

sources for identifying occupied areas in 

which the features essential to the 

conservation of the seven mussels may 

require special management 

considerations or protection, including 

land and water management plans of 

State and regional government agencies, 

surveys of stream channel condition, 

water quality assessments, and 

distributional information for host 

fishes. We used the sources cited in our 

final recovery plan’s summary of known 

threats to the seven mussels to identify 

which essential features may be most 

vulnerable in certain portions of the 

occupied range. 

We began our analysis by examining 

the full extent of each species’ historical 

and current range. As discussed under 

‘‘Summary of Threats to Surviving 

Populations’’ in the proposed rule 

published in the Federal Register on 

June 6, 2006, (71 FR 32746) , the 

declining range and abundance of the 

seven mussels is due mostly to changes 

in their riverine habitats resulting from 

dams, dredging, mining, channelization, 

pollution, sedimentation, and water 

withdrawals. The Econfina, ACF, 

Ochlockonee, and Suwannee drainages 

contain about 54,000 km (33,500 mi) of 

perennial streams (USGS 1:100,000 

National Hydrography Data). From 

mussel survey records, the historical 

range of the seven mussels collectively 

spanned about 3,300-km (2,050-mi), or 6 

percent, of the river and stream 

channels in these drainages, but no one 

species accounts for more than about 

2,300 km (1,445 mi) of that total 

(USFWS 2003, p. 78–80). We estimate 

that the five species listed as 

endangered are each extirpated from 

over half of their historical range, and 

the two threatened species are 

extirpated from about one-third of 

theirs, but none are extirpated entirely 

from the four major drainages in which 

they each occurred historically. All 

seven mussels were more widespread 

and more abundant within each of the 

four drainages historically. 

The largest single portion of the 

historical range lost to the seven 

mussels is the mainstem of the 

Chattahoochee River. The 

Chattahoochee comprised over 700 km 

(435 mi), or almost one-quarter, of the 

3,300-km (2,050-mi) collective historical 

range, and supported the shinyrayed 

pocketbook, Gulf moccasinshell, oval 

pigtoe, and purple bankclimber. It is 

now impounded by several major dams 

for much of its length and no longer 

supports the listed mussels. With the 

exception of a single live animal found 

in Goat Rock Reservoir in 2000, the 

purple bankclimber appears extirpated 

from the entire Chattahoochee Basin, 

but at least one of the other three 

species persist in three of its tributaries: 

Uchee Creek, Sawhatchee Creek, and 

Kirkland Creek. Elsewhere in the four 

major drainages, the pattern of 

extirpation is more variable, with one or 

more of the seven species persisting in 

portions of a drainage where others have 

disappeared. The collective range of the 

seven species now spans about 1,900 

km (1,180 mi) of river and stream 

channels. Within this collective range, 

the species presently occur in as little as 

55 km (34 mi) (the Ochlockonee 

moccasinshell) to as much as 785 km 

(488 mi) (the shinyrayed pocketbook) 

(USFWS 2003, p. 78–80). 

To identify the specific areas that 

were occupied at the time of listing by 

each of the seven mussels and that 

contain one or more of the PCEs, we 

used post-1990 mussel survey results. 

Because mussels are sedentary and longlived animals, occupancy is strong 

evidence that some or all of the PCEs are 

present, except where it is apparent that 

one or a few adult individuals remain at 

a location with little or no possibility of 

reproducing due to substantial habitat 

alteration (such as the single purple 

bankclimber found in Goat Rock 

Reservoir). It is not feasible to survey all 

potential habitat for the seven species; 

therefore, to delineate a species’

occupied range in the larger stream 

network, it is necessary to extrapolate 

from the available survey data. Most of 

the tributary streams in the four basins 

that may support one or more of the 

seven species have never been surveyed, 

and we are not designating any 

unsurveyed streams as critical habitat. 

We used USGS 1:100,000 digital stream 

maps to delineate the probable upstream 

and downstream limits to the seven 

species’ distribution in streams 

surveyed since 1990, according to the 

criteria listed below. These limits form 

the boundaries of critical habitat units 

as explained below. 

(a) The lateral boundaries of a unit are 

the ordinary high-water marks on each 

bank of currently occupied streams. We 

recognize the dynamic nature of riverine 

systems and that floodplains and 

riparian areas are integral parts of those 

systems. Processes that occur and 

habitat characteristics that are found 

outside the stream banks are important 

in maintaining channel morphology, 

providing energy and nutrients, and 

protecting the instream environment 

from pollutants and excessive 

sediments. Similarly, floodplain and 

backwater habitats may be important in 

the life cycle of fish that serve as hosts 

for mussel larvae. Although factors 

affecting the PCEs may occur outside 


sroberts on PROD1PC70 with RULES
64304 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

the channel, the PCEs themselves occur 

within the channel. 

(b) The upstream boundary of a unit 

in an occupied stream is the first 

perennial tributary confluence or first 

permanent barrier to fish passage (such 

as a dam) upstream of the upstreammost current occurrence record. Many 

of the mussel survey sites are located 

near watershed headwaters. In these 

areas, the confluence of a tributary 

typically marks a significant change in 

the size of the stream and is a logical 

and recognizable upstream boundary for 

habitat conditions that are similar to the 

upstream-most occurrence record. 

Likewise, a dam or other barrier to fish 

passage marks the upstream extent to 

which mussels at the upstream-most 

occurrence may disperse via their fish 

hosts. Therefore, a unit encapsulates 

habitat containing essential features 

used by host fish and the seven mussels 

for successful natural reproductive 

process. Habitat above these boundaries 

does not contain features essential to the 

conservation of the species. 

(c) The downstream boundary of a 

unit in an occupied stream is the mouth 

of the stream, the upstream extent of 

tidal influence, or the upstream extent 

of an impoundment, whichever comes 

first, downstream of the downstreammost occurrence record. Many survey 

sites are located near the mouths of 

streams, the upstream extent of 

impoundments, or the upstream extent 

of tidal influence. Survey locations are 

typically at road crossings, because that 

is where surveyors can most easily gain 

access to the stream. These road 

crossings do not typically represent a 

meaningful ecological boundary for 

longitudinal stream habitat conditions. 

Mussels are dispersed via host fish, and 

because these host fish traverse freely in 

the area between the upstream-most 

occurrence and any existing 

downstream restriction to fish passage, 

larvae drop off their host fish at random 

points along the stream flow segments 

traversed by fish. Further, the sperm of 

all seven species and the conglutinates 

(glochidia packets) of some of the seven 

may be carried downstream by currents 

and are viable for several hours to 

several days unless they reach 

unsuitable habitat conditions, such as 

intolerable salinity or still water, in 

which either would sink to the bottom 

and be smothered in the sediments. 

Therefore, we are designating stream 

segments that have mussel point 

locations from the upstream limit as 

defined in (b) above to the downstream 

location where the PCEs are no longer 

present. 

The application of these criteria 

resulted in the identification of 11 units 

occupied by one or more of the seven 

mussels and that contain one or more of 

the PCEs as indicated by the presence 

and persistence of one or more of the 

listed mussels (see ‘‘Critical Habitat 

Designation’’). Based on fish 

distributional records (Lee et al. 1980, p. 

1–854) and our experience sampling 

fish in these drainages, these areas also 

support shiners, darters, and other 

fishes that have been identified as hosts 

or potential hosts for one or more of the 

seven mussels. 

When determining critical habitat 

boundaries, we made every effort to 

avoid including within the boundaries 

of the map contained within this final 

rule developed areas such as buildings, 

paved areas, and other structures that 

lack PCEs for the seven mussels. The 

scale of the maps prepared under the 

parameters for publication within the 

Code of Federal Regulations may not 

reflect the exclusion of such developed 

areas. Any such structures and the land 

under them 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. Therefore, 

Federal actions limited to these areas 

would not trigger section 7 consultation, 

unless they affect the species or PCEs in 

adjacent critical habitat. 

We are designating 11 critical habitat 

units in areas that were occupied at the 

time of listing and contain sufficient 

PCEs to support life history functions 

essential for the conservation of the 

species, which may require special 

management considerations or 

protection. Each unit is a collection of 

stream segments that flow unimpeded 

by fish passage barriers into a common 

reservoir or estuary. One or more of the 

seven listed species persist at locations 

that are distributed across the full 

breadth of each unit, including one or 

more locations in each stream segment 

listed in the unit descriptions that 

follow. Each of the 11 units designated 

as critical habitat contain all of the 

PCEs, and each stream segment listed in 

the unit descriptions contains one or 

more of the PCEs. Most segments 

contain all PCEs and support multiple 

life processes. Some segments may 

contain only a portion of the PCEs 

necessary to support long-term use of 

that habitat, due to the dynamic nature 

of the riverine environment. 

A brief discussion of each area 

designated as critical habitat is provided 

in the unit descriptions below. 

Additional detailed documentation 

concerning the essential nature of these 

areas is contained in our supporting 

record for this rulemaking. 

Critical Habitat Designation 

We are designating 11 groups of river 

and stream segments (units) as critical 

habitat for the fat threeridge, shinyrayed 

pocketbook, Gulf moccasinshell, 

Ochlockonee moccasinshell, oval 

pigtoe, Chipola slabshell, and purple 

bankclimber. The river and stream 

segments comprising each unit are 

contiguous to allow for the movement of 

fish hosts dispersing the larval life 

stages of the seven mussels within the 

unit. Barriers to the movement of fish 

hosts (dams and salt water) separate the 

units from each other. Each unit is 

designated only for those species that 

currently occupy it. 

The critical habitat units described 

below constitute our best assessment 

currently of areas that meet the 

definition of critical habitat for the 

species. The 11 units, and the States in 

which they occur, are: (1) Econfina 

Creek (FL), (2) Chipola River (AL, FL), 

(3) Uchee Creek (AL), (4) Sawhatchee 

Creek and Kirkland Creek (GA), (5) 

Upper Flint River (GA), (6) Middle Flint 

River (GA), (7) Lower Flint River (GA), 

(8) Apalachicola River (FL), (9) Upper 

Ochlockonee River (FL, GA), (10) Lower 

Ochlockonee River (FL), and (11) Santa 

Fe River and New River (FL). 

Collectively, the total length of the river 

and stream segments of all of the areas 

(units) designated is approximately 

1,908.5 km (1,185.9 mi). Table 1 shows 

the approximate length of rivers and 

streams designated as occupied critical 

habitat for each of the seven mussels in 

the 11 units. 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64305 

TABLE 1.—LENGTH OF CRITICAL HABITAT UNITS DESIGNATED FOR THE FAT THREERIDGE, SHINYRAYED POCKETBOOK, 

GULF MOCCASINSHELL, OCHLOCKONEE MOCCASINSHELL, AND OVAL PIGTOE, CHIPOLA SLABSHELL, AND PURPLE

BANKCLIMBER

Species, critical habitat unit, and state(s) 

Length 

Kilometers Miles 

Fat threeridge 

2. Chipola River, AL, FL ...................................................................................................................................... 228 .7 142 .1 

7. Lower Flint River, GA ...................................................................................................................................... 396 .7 246 .5 

8. Apalachicola River, FL .................................................................................................................................... 161 .2 100 .2 

Total .............................................................................................................................................................. 786 .6 488 .8 

Shinyrayed pocketbook 

2. Chipola River, AL, FL ...................................................................................................................................... 228 .7 142 .1 

3. Uchee Creek, AL ............................................................................................................................................. 34 .2 21 .2 

4. Sawhatchee Creek and Kirkland Creek, GA ................................................................................................... 37 .8 23 .5 

5. Upper Flint River, GA ...................................................................................................................................... 380 .4 236 .4 

6. Middle Flint River, GA ..................................................................................................................................... 302 .3 187 .8 

7. Lower Flint River, GA ...................................................................................................................................... 396 .7 246 .5 

9. Upper Ochlockonee River, FL, GA ................................................................................................................. 177 .3 110 .2 

Total .............................................................................................................................................................. 1557 .4 967 .7 

Gulf moccasinshell 

1. Econfina Creek, FL .......................................................................................................................................... 31 .4 19 .5 

2. Chipola River, AL, FL ...................................................................................................................................... 228 .7 142 .1 

4. Sawhatchee Creek and Kirkland Creek, GA ................................................................................................... 37 .8 23 .5 

5. Upper Flint River, GA ...................................................................................................................................... 380 .4 236 .4 

6. Middle Flint River, GA ..................................................................................................................................... 302 .3 187 .8 

7. Lower Flint River, GA ...................................................................................................................................... 396 .7 246 .5 

Total .............................................................................................................................................................. 1377 .3 855 .8 

Ochlockonee moccasinshell 

9. Upper Ochlockonee River, FL, GA ................................................................................................................. 177 .3 110 .2 

Total .............................................................................................................................................................. 177 .3 110 .2 

Oval pigtoe 

1. Econfina Creek, FL .......................................................................................................................................... 31 .4 19 .5 

2. Chipola River, AL, FL ...................................................................................................................................... 228 .7 142 .1 

4. Sawhatchee Creek and Kirkland Creek, GA ................................................................................................... 37 .8 23 .5 

5. Upper Flint River, GA ...................................................................................................................................... 380 .4 236 .4 

6. Middle Flint River, GA ..................................................................................................................................... 302 .3 187 .8 

7. Lower Flint River, GA ...................................................................................................................................... 396 .7 246 .5 

9. Upper Ochlockonee River, FL, GA ................................................................................................................. 177 .3 110 .2 

11. Santa Fe and New Rivers, FL ....................................................................................................................... 83 .1 51 .6 

Total .............................................................................................................................................................. 1637 .7 1017 .6 

Chipola slabshell 

2. Chipola River, AL, FL ...................................................................................................................................... 228 .7 142 .1 

Total .............................................................................................................................................................. 228 .7 142 .1 

Purple bankclimber 

5. Upper Flint River, GA ...................................................................................................................................... 380 .4 236 .4 

6. Middle Flint River, GA ..................................................................................................................................... 302 .3 187 .8 

7. Lower Flint River, GA ...................................................................................................................................... 396 .7 246 .5 

8. Apalachicola River, FL .................................................................................................................................... 161 .2 100 .2 

9. Upper Ochlockonee River, FL, GA ................................................................................................................. 177 .3 110 .2 

10. Lower Ochlockonee River, FL ....................................................................................................................... 75 .4 46 .9 

Total .............................................................................................................................................................. 1493 .3 928 

Total Designated for All 11 Units (All Species) .................................................................................... 1,908 .50 1,185 .90 

States were granted ownership of 

lands beneath navigable waters up to 

the ordinary high water mark upon 

achieving statehood (Pollard v. Hagan, 

44 U.S. (3 How.) 212 (1845)). Prior 

sovereigns or the States may have made 

grants to private parties that included 

lands below the ordinary high water 

mark of some navigable waters that are 

included in this rule. We believe that 

most, if not all, lands beneath the 

navigable waters included in this rule 

are owned by the States of Alabama, 

Florida, and Georgia. The lands beneath 

most nonnavigable waters and most 

riparian lands along the navigable and 

nonnavigable waters included in this 

rule are in private ownership. Table 2 

lists the parcels of publicly owned lands 

within or adjacent to each designated 

critical habitat unit. Units not listed do 

not contain publicly owned lands. 


sroberts on PROD1PC70 with RULES
64306 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

TABLE 2.—PUBLIC LANDS WITHIN OR ADJACENT TO DESIGNATED CRITICAL HABITAT UNITS

Critical habitat unit Public lands 

1. Econfina Creek ................ Econfina Creek WtrMA. 

2. Chipola River ................... Upper Chipola River WtrMA, South Marianna Trail and Canoe Launch, Apalachicola River WtrMA, Apalachicola 

River WEA, Chipola River GW, Florida Caverns SP, Judges Cave WEA, Marianna GW. 

5. Upper Flint ....................... Joe Kurz WMA, Sprewell Bluff SP and WMA, Big Lazer WMA, Montezuma NA, Flint River WMA. 

7. Lower Flint ....................... Flint River GW, Radium Springs Tract, Chickasawhatchee WMA, Elmodel WMA, Lake Seminole WMA. 

8. Apalachicola River ........... Angus Gholson Jr. Nature Park of Chattahoochee, Apalachicola River WtrMA, Apalachicola River WEA, Fort 

Gadsden HS, Torreya SP, Apalachicola NF. 

9. Upper Ochlockonee ......... Joe Budd WMA, Lake Talquin SF. 

10. Lower Ochlockonee ....... Lake Talquin SP, Lake Talquin SF, Tate’s Hell SF, Apalachicola NF. 

11. Santa Fe River and New 

River.

Santa Fe River Ranch, O’Leno SP, River Rise Preserve SP, Graham CA, Palatka-Lake Butler ST. 

Abbreviations: CA=Conservation Area, GW=Greenway, HS=Historic Site, NA=Natural Area, NF=National Forest, SF=State Forest, SP=State 

Park, ST=State Trail, WEA=Wildlife and Environmental Area, WMA=Wildlife Management Area, WtrMA=Water Management Area. 

Brief descriptions of each unit follow, 

listing the rivers and streams included, 

the upstream and downstream extent of 

the unit in those rivers and streams, and 

which of the seven mussels were 

present at the time of listing. Each 

critical habitat unit includes the 

channels of the rivers and streams listed 

between the ordinary high water mark 

on each bank, which is defined in 33 

CFR 329.11 as ‘‘the line on the shore 

established by the fluctuations of water 

and indicated by physical 

characteristics such as a clear, natural 

line impressed on the bank; shelving; 

changes in the character of soil; 

destruction of terrestrial vegetation; the 

presence of litter and debris; or other 

appropriate means that consider the 

characteristics of the surrounding 

areas.’’ In the unit descriptions, 

distances between landmarks marking 

the upstream or downstream extent of a 

particular stream in the unit are given 

in kilometers (km) and equivalent miles 

(mi), as measured tracing the course of 

the stream, not straight-line distance. 

Unit 1: Econfina Creek, Florida 

Unit 1 includes the main stem of 

Econfina Creek and one of its tributaries 

in Bay and Washington counties, 

Florida, encompassing a total stream 

length of 31.4 km (19.5 mi). The main 

stem of Econfina Creek as designated 

extends from its confluence with Deer 

Point Lake at the powerline crossing 

located 3.8 km (2.3 miles) downstream 

of Bay County Highway 388, Bay 

County, Florida, upstream 28.6 km (17.8 

mi) to Tenmile Creek in Washington 

County, Florida. Unit 1 also includes 

the tributary stream Moccasin Creek 

from its confluence with Econfina Creek 

upstream 2.8 km (1.7 mi) to Ellis Branch 

in Bay County. Unit 1 is designated for 

the Gulf moccasinshell and oval pigtoe 

(Blalock-Herod unpub. data 2002–03; 

Brim Box unpub. data 1996; Williams 

unpub. data 1993). PCEs in Unit 1 are 

vulnerable to impacts from 

sedimentation, urbanization, and 

pollution, as described under ‘‘Special 

Management Considerations or 

Protections.’’

Unit 2: Chipola River, Alabama and 

Florida 

Unit 2 includes the main stem of the 

Chipola River (including the reach 

known as Dead Lake) and six of its 

tributaries, encompassing a total stream 

length of 190.0 km (118.1 mi) in 

Houston County, Alabama; and in 

Calhoun, Gulf, and Jackson counties, 

Florida. The main stem of the Chipola 

River as designated extends from its 

confluence with the Apalachicola River 

in Gulf County, Florida, upstream 144.9 

km (90.0 mi) to the confluence of 

Marshall and Cowarts creeks in Jackson 

County, Florida. A short segment of the 

Chipola River that flows underground 

within the boundaries of Florida 

Caverns State Park in Jackson County, 

Florida, is not included in Unit 2. The 

downstream extent of each tributary 

within the unit is its mouth (its 

confluence with the water body named), 

and the upstream extent is the landmark 

listed. The tributaries of the Chipola 

River included in Unit 2 are: Dry Creek, 

from the Chipola River upstream 7.6 km 

(4.7 mi) to Ditch Branch in Jackson 

County, Florida; Rocky Creek, from the 

Chipola River upstream 7.1 km (4.4 mi) 

to Little Rocky Creek in Jackson County, 

Florida; Waddells Mill Creek, from the 

Chipola River upstream 3.7 km (2.3 mi) 

to Russ Mill Creek in Jackson County, 

Florida; Baker Creek, from Waddells 

Mill Creek upstream 5.3 km (3.3 mi) to 

the confluence with Tanner Springs in 

Jackson County, Florida; Marshall 

Creek, from the Chipola River upstream 

13.7 km (8.5 mi) to the Alabama-Florida 

State line in Jackson County, Florida 

(this creek is known as Big Creek in 

Alabama); Big Creek, from the AlabamaFlorida State line upstream 13.0 river 

km (8.1 river mi) to Limestone Creek, in 

Houston County, Alabama; and Cowarts 

Creek from the Chipola River in Jackson 

County, Florida, upstream 33.5 river km 

(20.8 river mi) to the Edgar Smith Road 

bridge, in Houston County, Alabama. 

This unit is designated for the fat 

threeridge (Brim Box and Williams 

2000, p. 92–93; Miller 1998, p. 54), 

shinyrayed pocketbook (Williams 

unpub. data 2002; Brim Box and 

Williams 2000, p. 109–110; Smith 

unpub. data 2001; Blalock-Herod 

unpub. data 2000, 2003; Butler unpub. 

data 1993, 1994, 1999, 2000); Gulf 

moccasinshell (Butler unpub. data 1999, 

2002; Brim Box and Williams 2000, p. 

113–114; D.N. Shelton pers. comm. 

1998); oval pigtoe (Butler unpub. data 

1993, 1999, 2002; Brim Box and 

Williams 2000, p. 116–117; Williams 

unpub. data 2000); and Chipola 

slabshell (Butler unpub. data 1993, 

2000; Brim Box and Williams 2000, p. 

95–96). PCEs in Unit 2 are vulnerable to 

impacts from sedimentation, 

urbanization, and pollution, as 

described under ‘‘Special Management 

Considerations or Protections.’’

Unit 3: Uchee Creek, Alabama 

Unit 3 encompasses 34.2 km (21.2 mi) 

of the main stem of Uchee Creek from 

its confluence with the Chattahoochee 

River upstream to Island Creek in 

Russell County, Alabama. This unit is 

designated for the shinyrayed 

pocketbook (Brim Box and Williams 

2000, p. 109–110; Gangloff unpublished 

data 2005). PCEs in Unit 3 are 

vulnerable to impacts from 

sedimentation, urbanization, and 

pollution, as described under ‘‘Special 

Management Considerations or 

Protections.’’

Unit 4: Sawhatchee Creek and Kirkland 

Creek, Georgia 

Unit 4 includes the main stems of 

Sawhatchee Creek and Kirkland Creek 

and one tributary of Sawhatchee Creek, 

encompassing a total stream length of 

37.8 km (23.5 mi) in Early County, GA. 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64307 

The main stem of Sawhatchee Creek as 

designated extends from its confluence 

with the Chattahoochee River upstream 

28.6 km (17.8 mi) to the powerline 

crossing located 1.4 km (0.87 mi) 

upstream of County Road 15, Early 

County, GA. The main stem of Kirkland 

Creek extends from its confluence with 

the Chattahoochee River upstream 6.1 

km (3.8 mi) to Dry Creek, Early County, 

GA. The tributary, Sheffield Mill Creek, 

is included from its confluence with 

Sawhatchee Creek upstream 3.1 km (1.9 

mi) to the powerline crossing located 

2.3 km (1.4 mi) upstream of Sowhatchee 

Road, Early County, GA. Unit 4 is 

designated for the shinyrayed 

pocketbook, Gulf moccasinshell, and 

oval pigtoe (Brim Box and Williams 

2000, p. 109–110, 113–114, 116–117; 

Abbott pers. comm. 2005; Stringfellow 

pers. comm. 2003). PCEs in Unit 4 are 

vulnerable to impacts from 

sedimentation and pollution, as 

described under ‘‘Special Management 

Considerations or Protections.’’

Unit 5: Upper Flint River, Georgia 

Unit 5 includes the main stem of the 

Flint River and eight of its tributaries 

upstream of Lake Blackshear, plus two 

tributaries that flow into Lake 

Blackshear, encompassing a total stream 

length of 380.4 km (236.4 mi) in Coweta, 

Crawford, Crisp, Dooly, Fayette, Macon, 

Meriwether, Peach, Pike, Spalding, 

Sumter, Talbot, Taylor, Upson, and 

Worth counties, Georgia. The main stem 

of the Flint River in designated Unit 5 

extends from the State Highway 27 

bridge (Vienna Road) in Dooly and 

Sumter counties, Georgia (the river is 

the county boundary), upstream 247.4 

km (153.7 mi) to Horton Creek in 

Fayette and Spalding counties, Georgia 

(the river is the county boundary). The 

downstream extent of each tributary 

within the unit is its mouth (its 

confluence with the water body named), 

and the upstream extent is the landmark 

listed. The nine tributary streams in 

Unit 5 are: Swift Creek, from Lake 

Blackshear upstream 11.3 km (7 mi) to 

Rattlesnake Branch in Crisp and Worth 

counties, Georgia (the creek is the 

county boundary); Limestone Creek, 

from Lake Blackshear in Crisp County, 

Georgia, upstream 8.8 km (5.5 mi) to 

County Road 89 in Dooly County, 

Georgia; Turkey Creek, from the Flint 

River upstream 21.7 km (13.5 mi) to 

Rogers Branch in Dooly County, 

Georgia; Pennahatchee Creek, from 

Turkey Creek upstream 4.8 km (3 mi) to 

Little Pennahatchee Creek in Dooly 

County, Georgia; Little Pennahatchee 

Creek, from Pennahatchee Creek 

upstream 5.8 km (3.6 mi) to Rock Hill 

Creek in Dooly County, Georgia; 

Hogcrawl Creek, from the Flint River 

upstream 21.6 km (13.4 mi) to Little 

Creek in Dooly and Macon counties, 

Georgia (the creek is the county 

boundary); Red Oak Creek, from the 

Flint River upstream 21.7 km (13.5 mi) 

to Brittens Creek in Meriwether County, 

Georgia; Line Creek, from the Flint River 

upstream 15.8 km (9.8 mi) to 

Whitewater Creek in Coweta and 

Fayette counties, Georgia (the creek is 

the county boundary); and Whitewater 

Creek, from Line Creek upstream 21.5 

km (13.4 mi) to Ginger Cake Creek in 

Fayette County, Georgia. 

Unit 5 is designated for the 

shinyrayed pocketbook (Dinkins pers. 

comm. 1999, 2003; P.D. Johnson pers. 

comm. 2003; Brim Box and Williams 

2000, p. 109–110; Roe 2000; L. Andrews 

pers. comm. 2000; Blalock-Herod 

unpub. data 1997; Butler and Brim Box 

1995, p. 3); Gulf moccasinshell 

(Edwards Pittman Environmental 2004; 

McCafferty pers. comm. 2003; Dinkins 

pers. comm. 2002; Brim Box and 

Williams 2000, p. 113–114; Andrews 

pers. comm. 2000; Blalock-Herod 

unpub. data 1997; Butler and Brim Box 

1995, p. 3); oval pigtoe (Edwards 

Pittman Environmental 2004; 

McCafferty pers. comm. 2003; Dinkins 

pers. comm. 2002, 2003; Stringfellow 

pers. comm. 2000, 2003; Abbott pers. 

comm. 2001; Brim Box and Williams 

2000, p. 116–117; Andrews pers. comm. 

2000; Blalock-Herod unpub. data 1997); 

and purple bankclimber (Winterringer 

CCR pers. comm. 2003; Dinkins pers. 

comm. 2003; P.D. Johnson pers. comm. 

2003; Albanese pers. comm. 2003 

regarding unpub. data from De 

Genachete and CCR; Brim Box and 

Williams 2000, p. 105–106; E. Van De 

Genachete pers. comm. 1999). PCEs in 

Unit 5 are vulnerable to impacts from 

sedimentation, urbanization, hydrologic 

alteration, and pollution, as described 

under ‘‘Special Management 

Considerations or Protections.’’

Unit 5 is divided into two maps in the 

Regulation Promulgation section of this 

rule, one for the southern part and one 

for the northern part of the unit. The 

‘‘match line’’ for joining these two maps 

is where the county boundary between 

Crawford and Upson counties, Georgia, 

meets the Flint River. 

Unit 6: Middle Flint River, Georgia 

Unit 6 includes the main stem of the 

Flint River between Lake Worth 

(impounded by the Flint River Dam near 

Albany) and the Warwick Dam (which 

impounds Lake Blackshear), and nine 

tributaries, encompassing a total stream 

length of 302.3 km (187.8 mi) in 

Dougherty, Lee, Marion, Schley, Sumter, 

Terrell, Webster, and Worth counties, 

Georgia. The main stem of the Flint 

River in Unit 6 extends from Piney 

Woods Creek in Dougherty County, 

Georgia (the approximate upstream 

extent of Lake Worth), upstream 39.9 

km (24.8 mi) to the Warwick Dam in Lee 

and Worth counties, Georgia. The 

downstream extent of each tributary 

within the unit is its mouth (its 

confluence with the water body named), 

and the upstream extent is the landmark 

listed. The nine tributaries of the 

Middle Flint River in Unit 6 are: 

Kinchafoonee Creek, from the LeeDougherty county line (the approximate 

upstream extent of Lake Worth) 

upstream 107.6 km (66.8 mi) to Dry 

Creek in Webster County, Georgia; 

Lanahassee Creek, from Kinchafoonee 

Creek upstream 9.3 km (5.8 mi) to West 

Fork Lanahassee Creek in Webster 

County, Georgia; Muckalee Creek, from 

the Lee-Dougherty county line (the 

approximate upstream extent of Lake 

Worth) upstream 104.5 km (64.9 mi) to 

County Road 114 in Marion County, 

Georgia; Little Muckalee Creek, from 

Muckalee Creek in Sumter County, 

Georgia, upstream 7.2 km (4.5 mi) to 

Galey Creek in Schley County, Georgia; 

Mill Creek, from the Flint River 

upstream 3.2 km (2 mi) to Mercer 

Millpond Creek in Worth County, 

Georgia; Mercer Millpond Creek, from 

Mill Creek upstream 0.45 km (0.28 mi) 

to Mercer Millpond in Worth County, 

Georgia; Abrams Creek, from the Flint 

River upstream 15.9 km (9.9 mi) to 

County Road 123 in Worth County, 

Georgia; Jones Creek, from the Flint 

River upstream 3.8 km (2.4 mi) to 

County Road 123 in Worth County, 

Georgia; and Chokee Creek, from the 

Flint River upstream 10.5 km (6.5 mi) to 

Dry Branch Creek in Lee County, 

Georgia. 

Unit 6 is designated for the 

shinyrayed pocketbook (Crow CCR pers. 

comm. 2004; Edwards Pittman 

Environmental 2004; Albanese pers. 

comm. 2003 regarding unpub. data from 

CCR; DeGarmo unpub. data 2002; 

McCafferty pers. comm. 2000, 2001; 

Golladay unpub. data 2001, 2002; P. 

Johnson unpub. data 1999; BlalockHerod unpub. data 1997; Dinkins pers. 

comm. 1995; Brim Box and Williams 

2000, p. 109–110), Gulf moccasinshell 

(Wisnewski unpub. data 2005; DeGarmo 

unpub. data 2002; Albanese pers. comm. 

2003 regarding unpub. data from D. 

Shelton; P. Johnson unpub. data 1999; 

Brim Box and Williams 2000, p. 113–

114; Weston 1995), oval pigtoe 

(Wisnewski unpub. data 2005; Crow 

CCR pers. comm. 2004; Albanese pers. 

comm. 2003 regarding unpub. data from 

CCR; DeGarmo unpub. data 2002; 


sroberts on PROD1PC70 with RULES
64308 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

Stringfellow unpub. data 2002; Golladay 

unpub. data 2001, 2002; Brim Box and 

Williams 2000, p. 116–117; P. Johnson 

unpub. data 1999; Blalock-Herod 

unpub. data 1997; Weston 1995), and 

purple bankclimber (Tarbell 2004; Brim 

Box and Williams 2000, p. 105–106). 

PCEs in Unit 6 are vulnerable to impacts 

from sedimentation, urbanization, 

hydrologic alteration, and pollution, as 

described under ‘‘Special Management 

Considerations or Protections.’’

Unit 6 is divided into two maps in the 

Regulation Promulgation section of this 

rule, one for the western part and one 

for the eastern part of the unit. The 

‘‘match line’’ for joining these two maps 

is Lake Worth in Dougherty County, 

Georgia. 

Unit 7: Lower Flint River, Georgia 

Unit 7 includes the main stem of the 

Flint River between Lake Seminole 

(impounded by the Jim Woodruff Lock 

and Dam) and the Flint River Dam 

(which impounds Lake Worth), and 

nine tributaries, encompassing a total 

stream length of 396.7 km (246.5 mi) in 

Baker, Calhoun, Decatur, Dougherty, 

Early, Miller, Mitchell, and Terrell 

counties, GA. The main stem of the 

Flint River in Unit 7 extends from its 

confluence with Big Slough in Decatur 

County, GA (the approximate upstream 

extent of Lake Seminole) upstream 

116.4 km (72.3 mi) to the Flint River 

Dam in Dougherty County, GA. The 

downstream extent of each tributary 

within the unit is its mouth (its 

confluence with the water body named), 

and the upstream extent is the landmark 

listed. The nine tributaries of the Lower 

Flint River in Unit 7 are: Spring Creek, 

from Smith Landing in Decatur County, 

Georgia (the approximate upstream 

extent of Lake Seminole), upstream 74.2 

km (46.1 mi) to County Road 35 in Early 

County, Georgia; Aycocks Creek, from 

Spring Creek upstream 15.9 km (9.9 mi) 

to Cypress Creek in Miller County, 

Georgia; Dry Creek, from Spring Creek 

upstream 9.9 km (6.1 mi) to Wamble 

Creek in Early County, Georgia; 

Ichawaynochaway Creek, from the Flint 

River in Baker County, Georgia, 

upstream 68.6 km (42.6 mi) to Merrett 

Creek in Calhoun County, Georgia; Mill 

Creek, from Ichawaynochaway Creek 

upstream 7.4 km (4.6 mi) to County 

Road 163 in Baker County, Georgia; 

Pachitla Creek, from Ichawaynochaway 

Creek upstream 18.9 km (11.8 mi) to 

Little Pachitla Creek in Calhoun County, 

Georgia; Little Pachitla Creek, from 

Pachitla Creek upstream 5.8 km (3.6 mi) 

to Bear Branch in Calhoun County, 

Georgia; Chickasawhatchee Creek, from 

Ichawaynochaway Creek in Baker 

County, GA, upstream 64.5 km (40.1 mi) 

to U.S. Highway 82 in Terrell County, 

Georgia; and Cooleewahee Creek, from 

the Flint River upstream 15.1 km (9.4 

mi) to Piney Woods Branch in Baker 

County, Georgia. 

Unit 7 is designated for the 

shinyrayed pocketbook (Gangloff 2005; 

McCafferty pers. comm. 2004; 

Stringfellow unpub. data 2003; Dinkins 

pers. comm. 2001, 2003; Golladay 

unpub. data 2001, 2002; P. Johnson 

unpub. data 1999; Albanese pers. comm. 

2003 regarding unpub. data from CCR; 

Andrews pers. comm. 2000; BlalockHerod unpub. data 1997; Brim Box and 

Williams 2000, p. 109–110; Butler 

unpub. data 1993), Gulf moccasinshell 

(Abbott pers. comm. 2005; Golladay 

unpub. data 2001, 2002; P. Johnson 

unpub. data 1999; Brim Box and 

Williams 2000, p. 113–114; Butler 

unpub. data 1998; Blalock-Herod 

unpub. data 1997), oval pigtoe (Dinkins 

pers. comm. 2001; Golladay unpub. data 

2001, 2002; Andrews pers. comm. 2000; 

Brim Box and Williams 2000, p. 116–

117; P. Johnson unpub. data 1999; 

Butler unpub. data 1998; Blalock-Herod 

unpub. data 1997), and purple 

bankclimber (S. Carlson unpub. data 

2002; Brim Box and Williams 2000, p. 

105–106). PCEs in Unit 7 are vulnerable 

to impacts from sedimentation, 

urbanization, hydrologic alteration, and 

pollution, as described under ‘‘Special 

Management Considerations or 

Protections.’’

Unit 7 is divided into two maps in the 

Regulation Promulgation section of this 

rule, one for the western part and one 

for the eastern part of the unit. The 

western part (Map 10) depicts the 

Spring Creek system and the eastern 

part (Map 11) depicts the lower Flint 

River system. 

Unit 8: Apalachicola River, Florida 

Unit 8 includes the main stem of the 

Apalachicola River; two distributaries 

(channels flowing out of the main stem), 

and three tributaries, encompassing a 

total stream length of 155.4 km (96.6 mi) 

in Calhoun, Franklin, Gadsden, Gulf, 

Jackson, and Liberty counties, Florida. 

The main channel of the Apalachicola 

River in Unit 8 extends from the 

downstream end of Bloody Bluff Island 

(river mile 15.3 on U.S. Army Corps of 

Engineers Navigation Charts) in 

Franklin County, Florida, upstream to 

the Jim Woodruff Lock and Dam in 

Gadsden and Jackson counties, Florida 

(the river is the county boundary). The 

upstream extent of each distributary 

within the unit is its point of departure 

from the main channel of the 

Apalachicola River, and its downstream 

extent is the landmark listed. The two 

distributaries of the Apalachicola River 

in Unit 6 are: Chipola Cutoff, from the 

Apalachicola River in Gulf County, 

Florida, downstream 4.5 km (2.8 mi) to 

its confluence with the Chipola River in 

Gulf County, Florida; and Swift Slough, 

from the Apalachicola River in Liberty 

County, Florida, downstream 3.6 km 

(2.2 mi) to its confluence with the River 

Styx in Liberty County, Florida. The 

downstream extent of each tributary 

within the unit is its confluence (mouth) 

with the main channel of the 

Apalachicola River, and its upstream 

extent is the landmark listed. The three 

tributaries of the Apalachicola River 

within the unit are: River Styx from the 

mouth of Swift Slough in Liberty 

County, Florida, downstream 3.8 km 

(2.4 mi) to its mouth; Kennedy Slough 

from ¥85.07 longitude, 30.01 latitude 

in Liberty County, Florida, downstream 

0.9 km (0.5 mi) to its confluence with 

Kennedy Creek; and Kennedy Creek 

from Brushy Creek Feeder (¥85.06 

longitude, 30.01 latitude) in Liberty 

County, Florida, downstream 1.1 km 

(0.7 mi) to its mouth. 

Unit 8 is designated for the fat 

threeridge (Brim Box and Williams 

2000, p. 92–93; Williams unpub. data 

2000; Miller 1998, p. 54, 2000; 

Richardson and Yokley 1996, p. 137; 

Flakes 2001) and purple bankclimber 

(Brim Box and Williams 2000, p. 105–

106; Miller 1998, p. 55, 2000; 

Richardson and Yokley 1996, p. 137; 

Butler unpub. data 1993; Flakes 2001). 

PCEs in Unit 8 are vulnerable to impacts 

from sedimentation, hydrologic 

alteration, and pollution, as described 

under ‘‘Special Management 

Considerations or Protections.’’

Unit 9: Upper Ochlockonee River, 

Florida, Georgia 

Unit 9 includes the main stem of the 

Ochlockonee River upstream of Lake 

Talquin (impounded by the Jackson 

Bluff Dam) and three tributaries, 

encompassing a total stream length of 

177.3 km (110.2 mi) in Gadsden and 

Leon counties, Florida, and Grady and 

Thomas counties, Georgia. The main 

stem of the Ochlockonee River in Unit 

9 extends from its confluence with 

Gulley Branch (the approximate 

upstream extent of Lake Talquin) in 

Gadsden and Leon counties, Florida (the 

river is the county boundary), upstream 

to Bee Line Road/County Road 306 in 

Thomas County, Georgia. The 

downstream extent of each tributary 

within the unit is its mouth (its 

confluence with the water body named), 

and the upstream extent is the landmark 

listed. The three tributary streams in 

Unit 9 are: Barnetts Creek, from the 

Ochlockonee River upstream 20 km 

(12.4 mi) to Grady County Road 170/ 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64309 

Thomas County Road 74 in Grady and 

Thomas counties, Georgia (the creek is 

the county boundary); West Barnetts 

Creek, from Barnetts Creek upstream 10 

km (6.2 mi) to GA Highway 111 in 

Grady County, Georgia; and Little 

Ochlockonee River, from the 

Ochlockonee River upstream 13.3 km 

(8.3 mi) to Roup Road/County Road 33 

in Thomas County, Georgia. 

Unit 9 is designated for the 

shinyrayed pocketbook (Blalock-Herod 

2003, p. 1; McCafferty pers. comm. 

2003; Williams unpub. data 1993), 

Ochlockonee moccasinshell (Brim Box 

and Williams 2000, p. 60; Williams and 

Butler 1994, p. 64), oval pigtoe 

(Edwards Pittman Environmental 2004; 

Blalock-Herod unpub. data 2003; 

Blalock-Herod 2003, p. 1; Williams 

unpub. data 1993), and purple 

bankclimber (Blalock-Herod unpub. 

data 2003; Blalock-Herod 2002, p. 1; 

Smith FDOT unpub. data 2001; 

Williams unpub. data 1993). PCEs in 

Unit 9 are vulnerable to impacts from 

sedimentation and pollution, as 

described under ‘‘Special Management 

Considerations or Protections.’’

Unit 10: Lower Ochlockonee River, 

Florida 

Unit 10 encompasses 75.4 km (46.9 

mi) of the main stem of the Ochlockonee 

River from its confluence with Syfrett 

Creek in Wakulla County, Florida, 

upstream to the Jackson Bluff Dam 

(which impounds Lake Talquin) in Leon 

and Liberty counties, Florida. Unit 10 is 

designated for the purple bankclimber 

(Blalock-Herod unpub. data 2003; 

Williams unpub. data 1993). PCEs in 

Unit 10 are vulnerable to impacts from 

sedimentation, urbanization, hydrologic 

alteration, and pollution, as described 

under ‘‘Special Management 

Considerations or Protections.’’

Unit 11: Santa Fe River and New River, 

Florida 

Unit 11 includes the main stem of the 

Santa Fe River and its tributary the New 

River, encompassing a total stream 

length of 83.1 km (51.6 mi) in Alachua, 

Bradford, Columbia, and Union 

counties, Florida. The main stem of the 

Santa Fe River as designated extends 

from where the river goes underground 

in O’Leno State Park in Alachua and 

Columbia counties, Florida (the river is 

the county boundary) upstream 60.2 km 

(37.4 mi) to the powerline crossing 

located 1.9 km (1.2 mi) downstream of 

U.S. Highway 301 in Alachua and 

Bradford counties, Florida (the river is 

the county boundary). The New River in 

Unit 11 extends from its confluence 

with the Santa Fe River at the junction 

of Alachua, Bradford, and Union 

counties, Florida, upstream 22.9 km 

(14.2 mi) to McKinney Branch in 

Bradford and Union counties, Florida 

(the river is the county boundary). Unit 

11 is designated for the oval pigtoe 

(Blalock-Herod and Williams 2001, p. 5; 

Blalock-Herod 2000, p. 1–72; Williams 

unpub. data 1993, 1996–98). PCEs in 

Unit 11 are vulnerable to impacts from 

sedimentation and pollution, as 

described under ‘‘Special Management 

Considerations or Protections.’’

Section 7 Consultation 

Section 7(a)(2) of the Act requires 

Federal agencies, including the Service, 

to ensure that actions they fund, 

authorize, or carry out are not likely to 

destroy or adversely modify critical 

habitat. Decisions by the 5th and 9th 

Circuit Court of Appeals have 

invalidated our definition of 

‘‘destruction or adverse modification’’

(50 CFR 402.02) (see Gifford Pinchot 

Task Force v. U.S. Fish and Wildlife 

Service, 378 F. 3d 1059 (9th Cir 2004) 

and Sierra Club v. U.S. Fish and 

Wildlife Service et al., 245 F.3d 434, 

442F (5th Cir 2001)), and we do not rely 

on this regulatory definition when 

analyzing whether an action is likely to 

destroy or adversely modify critical 

habitat. Under the statutory provisions 

of the Act, we determine destruction or 

adverse modification on the basis of 

whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would remain functional 

(or retain the current ability for the PCEs 

to be functionally established) to serve 

its intended conservation role for the 

species. 

If a species is listed or critical habitat 

is designated, 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 the species or to 

destroy or adversely modify its critical 

habitat. If a Federal action may affect a 

listed species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. As a result of this consultation, 

we document compliance with the 

requirements of section 7(a)(2) through 

our issuance of: 

(1) A concurrence letter for Federal 

actions that may affect, but are not 

likely to adversely affect, listed species 

or critical habitat; or 

(2) A biological opinion for Federal 

actions that may affect, and are likely to 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

jeopardize the continued existence of a 

listed species or destroy or adversely 

modify critical habitat, we also provide 

reasonable and prudent alternatives to 

the project, if any are identifiable. 

‘‘Reasonable and prudent alternatives’’

are defined at 50 CFR 402.02 as 

alternative actions identified during 

consultation that: 

• Can be implemented in a manner 

consistent with the intended purpose of 

the action, 

• Can be implemented consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, 

• Are economically and 

technologically feasible, and 

• Would, in the Director’s opinion, 

avoid jeopardizing the continued 

existence of the listed species or 

destroying or adversely modifying 

critical habitat. 

Reasonable and prudent alternatives 

can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where we have 

listed a new species or subsequently 

designated critical habitat that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action (or the agency’s 

discretionary involvement or control is 

authorized by law). Consequently, 

Federal agencies may sometimes need to 

request reinitiation of consultation with 

us on actions for which formal 

consultation has been completed, if 

those actions with discretionary 

involvement or control may affect 

subsequently listed species or 

designated critical habitat. 

Application of the ‘‘Adverse 

Modification’’ Standard 

The key factor related to the adverse 

modification determination is whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would continue to serve its 

intended conservation role for the 

species, or would retain its current 

ability for the PCEs to be functionally 

established. Activities that may destroy 

or adversely modify critical habitat are 

those that alter the PCEs to an extent 

that appreciably reduces the 

conservation value of critical habitat for 

the seven mussels. Generally, the 

conservation role of the seven mussels 

critical habitat units is to support viable 

core area populations. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe in any 

proposed or final regulation that 


sroberts on PROD1PC70 with RULES
64310 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

designates critical habitat those 

activities involving a Federal action that 

may destroy or adversely modify such 

habitat, or that may be affected by such 

designation. 

Activities that, when carried out, 

funded, or authorized by a Federal 

agency, may affect critical habitat and, 

therefore, should result in consultation 

for the seven mussels include, but are 

not limited to: 

(1) Actions that would induce 

channel instability or significantly alter 

channel morphology. Such activities 

could include, but are not limited to, 

channelization, impoundment, road and 

bridge construction, mining, dredging, 

destruction of riparian vegetation, and 

changes in land cover, such as 

urbanization and clear-cut logging, that 

substantially alter the runoff 

characteristics of the watershed. These 

activities may alter sediment and water 

discharge in the channel, which results 

in smothering the stream bed with, or 

eroding it to, materials that are 

unsuitable substrates for the normal 

behavior, growth, and survival of the 

adult and juvenile life stages. These 

activities may initiate or accelerate bank 

erosion, which results in wider and 

shallower channels, more extreme 

temperatures, and chemical properties 

that are unsuitable for the normal 

behavior, growth, and survival of one or 

more life stages. 

(2) Actions that would significantly 

decrease the proportion of coarse 

sediments (sand, gravel, cobble) in the 

stream bed. Such activities could 

include, but are not limited to, 

sedimentation from livestock grazing, 

road and bridge construction, mining, 

dredging, timber harvest, off-road 

vehicle use, and other activities that 

increase erosion rates in the channel or 

the watershed and deposition of fine 

sediments. These activities could reduce 

or eliminate the coarse substrates that 

provide for the normal behavior, 

growth, and survival of all life stages, 

and could increase the exposure of the 

juvenile and adult life stages to harmful 

contaminants that adhere to fine 

sediments. 

(3) Actions that would significantly 

alter the flow regime. Such activities 

could include, but are not limited to, the 

construction and operation of dams, 

water withdrawals, water diversions, 

and changes in land cover that 

substantially alter the runoff 

characteristics of the watershed, such as 

urbanization and clear-cut logging. 

These activities could alter the spatial 

distribution, timing, and duration of 

depths and velocities in the channel 

that provide for the normal behavior, 

growth, and survival of one or more 

mussel life stages. 

(4) Actions that would significantly 

alter physical and chemical water 

conditions. Such activities could 

include, but are not limited to, the 

release of chemicals, nutrients, 

biological pollutants, or heated effluents 

into the surface water or connected 

groundwater at a point source or by 

dispersed release (non-point source). 

These activities could alter water 

conditions that provide for the normal 

behavior, growth, and survival of one or 

more mussel life stages. These activities 

could promote the excessive growth of 

filamentous algae and other organisms 

that preclude the normal behavior, 

growth, and survival of one or more 

mussel life stages. 

(5) Actions that would significantly 

reduce the density of host fishes. Such 

activities could include, but are not 

limited to, channelization, 

impoundment, mining, and dredging. 

These activities could alter the 

composition of the fish community such 

that the rate of host fish infection and 

completion of the larval life stage is too 

low to sustain a stable or increasing 

mussel population and normal rates of 

dispersal and genetic exchange with 

other areas. 

We consider all of the units 

designated as critical habitat to contain 

features essential to the conservation of 

the seven mussels. All of the units are 

within the geographic range of the seven 

species, were occupied at the time of 

listing (based on surveys completed 

1990 to 1998), and are likely occupied 

currently (based on additional surveys 

between 1998 and the present, and on 

the longevity and relative immobility of 

mussels). 

Application of Section 4(b)(2) of the Act 

Section 4(b)(2) of the Act states that 

critical habitat shall be designated, and 

revised, 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 he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the Secretary is afforded broad 

discretion, and the Congressional record 

is clear that, in making a determination 

under the section, the Secretary has 

discretion as to which factors and how 

much weight will be given to any factor. 

. 

Economic Impacts 

Economic analyses typically measure 

impacts against a baseline, which is 

normally described as the way the 

world would look absent the proposed 

action. This is often referred to as the 

‘‘incremental’’ approach. In 2001, the 

U.S. Tenth Circuit Court of Appeals 

found that the incremental approach 

provided ‘‘meaningless’’ results and 

instructed the Service to conduct a full 

analysis of all of the economic impacts 

of proposed critical habitat, regardless 

of whether those impacts are 

attributable coextensively to other 

causes (New Mexico Cattle Growers 

Assn v. U.S.F.W.S., 248 F.3d 1277 (10th 

Cir. 2001)). However, since that 

decision, courts in several other cases 

have held or implied that an 

incremental analysis is proper (see Cape 

Hatteras Access Preservation Alliance v. 

Department of Interior, 344 F. Supp. 2d 

108 (D.D.C.); CBD v. BLM, 422 F. Supp/ 

.2d 1115 (N.D. Cal. 2006). 

Accordingly, we have reevaluated the 

baseline used for critical habitat 

economic analyses. The economic 

analysis should use a traditional 

regulatory analysis approach and 

examine the economic impact of the 

regulatory change being considered. 

However, because there is interest by 

the courts and the public in seeing the 

total costs of regulation, the analyses 

should quantify the existing regulatory 

baseline. When quantifying the baseline, 

the analyses should look back to the 

time of listing. 

When estimating the incremental 

impacts of the critical habitat 

designation, the Service must consider 

that most courts have agreed with the 

New Mexico Cattle Growers court when 

it determined that the Service cannot 

simply equate adverse modification 

standard and the jeopardy standard and 

conclude that there are no economic 

costs. The New Mexico Cattle Growers 

court said ‘‘Congress clearly intended 

that economic factors were to be 

considered.’’ Therefore, when 

conducting this analysis, it is important 

to attempt to distinguish between the 

regulation that would exist prior to the 

designation of critical habitat, under the 

jeopardy standard, and under Sections 9 

and 10 of the Act, and the additional 

regulation that would exist with 

designation of critical habitat. 

Following the publication of the 

proposed critical habitat designation, 

we conducted an economic analysis to 

estimate the potential economic effect of 

the designation. This draft analysis was 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64311 

based on the coextensive approach only 

and estimated the potential future 

impacts associated with conservation 

efforts for the seven mussels in areas 

proposed for critical habitat designation. 

The draft analysis was made available 

for public review on June 21, 2007 (72 

FR 34215). We accepted comments on 

the draft analysis until August 6, 2007. 

The final economic analysis added the 

incremental approach, which can be 

found in Appendix B of the report. 

The primary purpose of the economic 

analysis is to estimate the potential 

economic impacts associated with the 

designation of critical habitat for the 

seven mussels. This information is 

intended to assist the Secretary in 

making decisions about whether the 

benefits of excluding particular areas 

from the designation outweigh the 

benefits of including those areas in the 

designation. This economic analysis 

considers the economic efficiency 

effects that may result from the 

designation, including habitat 

protections that may be coextensive 

with the listing of the species and the 

incremental impacts of the critical 

habitat designation itself. It also 

addresses distribution of impacts, 

including an assessment of the potential 

effects on small entities and the energy 

industry. This information can be used 

by the Secretary to assess whether the 

effects of the designation might unduly 

burden a particular group or economic 

sector. We based our decision on 

whether to exclude any areas due to 

economic reasons on the incremental 

impacts in the final economic analysis. 

The final economic analysis evaluated 

the potential future effects associated 

with the listing of the seven mussels, as 

well as any potential effect of the 

designation of critical habitat above and 

beyond those regulatory and economic 

impacts associated with the listing. To 

quantify the proportion of total potential 

economic impacts attributable to the 

critical habitat designation, the analysis 

evaluated a ‘‘without critical habitat’’

baseline and compared it to a ‘‘with 

critical habitat’’ scenario. The ‘‘without 

critical habitat’’ baseline represented the 

current and expected economic activity 

under all modifications prior to the 

critical habitat designation, including 

protections afforded the species under 

Federal and State laws. The difference 

between the two scenarios measured the 

net change in economic activity 

attributable to the designation of critical 

habitat. 

The economic analysis estimates total 

potential future impacts associated with 

conservation efforts for the seven 

mussels in areas designated to be $83.1 

million to $135.0 million over the next 

20 years (undiscounted). The present 

value of these impacts is $62.3 million 

to $101.0 million, using a discount rate 

of three percent, or $45.0 million to 

$71.7 million, using a discount rate of 

seven percent. The annualized value of 

these impacts is $4.13 million to $6.70 

million, using a discount rate of three 

percent, or $4.13 million to $6.60 

million, using a discount rate of seven 

percent. All of these impacts are 

baseline impacts and are not expected to 

be affected by critical habitat 

designation. 

The economic analysis further refines 

these numbers by estimating the 

incremental impacts of the critical 

habitat designation. The incremental 

impacts are forecast to be $501,000 

(discounted at three percent) over 20 

years. These incremental impacts are of 

additional administrative effort in 

considering adverse modification in 

section 7 consultation. 

Because our economic analysis did 

not identify any disproportionate costs 

resulting from the designation, we did 

not consider excluding any areas from 

this designation of critical habitat based 

on economic impacts. 

A copy of the final economic analysis 

with supporting documents may be 

obtained by contacting U.S. Fish and 

Wildlife Service, Branch of Endangered 

Species (see FOR FURTHER INFORMATION

CONTACT) or by downloading from the 

Internet at http://www.fws.gov/ 

panamacity/. 

Other Relevant Impacts 

Under section 4(b)(2) of the Act, we 

must consider, in addition to economic 

impacts, all other relevant impacts 

resulting from critical habitat 

designation. We consider a number of 

factors in this part of a section 4(b)(2) 

analysis. We consider whether there are 

lands owned or managed by the 

Department of Defense (DOD) where a 

national security impact might exist. We 

also consider whether the landowners 

have developed any conservation plans 

for the area, or whether there are 

conservation partnerships that would be 

encouraged by designation, or exclusion 

from, critical habitat. In addition, we 

look at any tribal issues, and consider 

the government-to-government 

relationship of the United States with 

tribal entities. We also consider any 

social impacts that might occur because 

of designation. 

In this instance, we have determined 

that the lands within the designation of 

critical habitat for the seven mussels are 

not owned or managed by the 

Department of Defense, there are 

currently no habitat conservation plans 

for the seven mussels, and the 

designation does not include any Tribal 

lands or trust resources. We did not 

identify any social impacts that might 

occur based on designation. Since no 

‘‘other relevant factors’’ apply to this 

designation, we are not considering 

exclusions from this final designation 

based on the non-economic impacts. 

Based on the above analysis (i.e., of 

the economic and other relevant 

impacts), the Service is not excluding 

any areas from critical habitat 

designation under section 4(b)(2) of the 

Act. 

Required Determinations 

Regulatory Planning and Review 

In accordance with Executive Order 

12866, this document is a significant 

rule because it may raise legal and 

policy issues. Based on our economic 

analysis, the estimate of total potential 

future costs associated with 

conservation efforts for the seven 

mussels in areas designated is $83.1 

million to 135.0 million over the next 20 

years (undiscounted). The present value 

of these impacts is $62.3 million to 

101.0 million, using a discounted rate of 

three percent, or $45.0 million to 71.7 

million, using a discount rate of seven 

percent. The annualized value of these 

impacts is $4.13 million to $6.70 

million, using a discount rate of three 

percent, or $4.13 million to 6.60 

million, using a discount rate of seven 

percent. Therefore, we do not believe 

that the designation of critical habitat 

for the seven mussels would result in an 

annual effect on the economy of $100 

million or more or affect the economy 

in a material way. Due to the timeline 

for publication in the Federal Register, 

the Office of Management and Budget 

(OMB) has not formally reviewed the 

rule or accompanying economic 

analysis. 

Further, Executive Order 12866 

directs Federal Agencies promulgating 

regulations to evaluate regulatory 

alternatives (Office of Management and 

Budget, Circular A–4, September 17, 

2003). Pursuant to Circular A–4, once it 

has been determined that the Federal 

regulatory action is appropriate, the 

agency will need to consider alternative 

regulatory approaches. Because the 

determination of critical habitat is a 

statutory requirement under the ACT, 

we must then evaluate alternative 

regulatory approaches, where feasible, 

when promulgating a designation of 

critical habitat. 

In developing our designations of 

critical habitat, we consider economic 

impacts, impacts to national security, 

and other relevant impacts pursuant to 

section 4(b)(2) of the Act. Based on the 


sroberts on PROD1PC70 with RULES
64312 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

discretion allowable under this 

provision, we may exclude any 

particular area from the designation of 

critical habitat providing that the 

benefits of such exclusion outweigh the 

benefits of specifying the area as critical 

habitat and that such exclusion would 

not result in the extinction of the 

species. As such, we believe that the 

evaluation of the inclusion or exclusion 

of particular areas, or combination 

thereof, in a designation constitutes our 

regulatory alternative analysis. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

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 effect of the rule on small 

entities (small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of an agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the RFA 

to require Federal agencies to provide a 

statement of factual basis for certifying 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. 

Small entities include small 

organizations, such as independent 

nonprofit organizations; small 

governmental jurisdictions, including 

school boards and city and town 

governments that serve fewer than 

50,000 residents; as well as small 

businesses. Small businesses include 

manufacturing and mining concerns 

with fewer than 500 employees, 

wholesale trade entities with fewer than 

100 employees, retail and service 

businesses with less than $5 million in 

annual sales, general and heavy 

construction businesses with less than 

$27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

consider the types of activities that 

might trigger regulatory impacts under 

this rule, as well as the types of project 

modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if the rule could 

significantly affect a substantial number 

of small entities, we consider the 

number of small entities affected within 

particular types of economic activities 

(such as housing development, grazing, 

oil and gas production, timber 

harvesting). We apply the ‘‘substantial 

number’’ test individually to each 

industry to determine if certification is 

appropriate. However, the SBREFA does 

not explicitly define ‘‘substantial 

number’’ or ‘‘significant economic 

impact.’’ Consequently, to assess 

whether a ‘‘substantial number’’ of 

small entities is affected by this 

designation, this analysis considers the 

relative number of small entities likely 

to be impacted in an area. In some 

circumstances, especially with critical 

habitat designations of limited extent, 

we may aggregate across all industries 

and consider whether the total number 

of small entities affected is substantial. 

In estimating the number of small 

entities potentially affected, we also 

consider whether their activities have 

any Federal involvement. 

Designation of critical habitat only 

affects activities conducted, funded, or 

permitted by Federal agencies. Some 

kinds of activities are unlikely to have 

any Federal involvement and so will not 

be affected by critical habitat 

designation. In areas where the species 

is present, Federal agencies already are 

required to consult with us under 

section 7 of the Act on activities they 

fund, permit, or implement that may 

affect the seven mussels. Federal 

agencies also must consult with us if 

their activities may affect critical 

habitat. Designation of critical habitat, 

therefore, could result in an additional 

economic impact on small entities due 

to the requirement to reinitiate 

consultation for ongoing Federal 

activities. 

We conducted a Final Regulatory 

Impact Assessment for this rule, and our 

FRIA concludes that, of the land use 

activities considered in sections 3 to 6 

of this analysis, incremental impacts of 

critical habitat designation to the 

following activities may be borne by 

small entities: 

• Water management; and 

• Deadhead logging. 

Water management effects may occur 

to one hydropower operation, and result 

in costs of approximately $1000 for the 

additional burden of consultation that 

considers critical habitat. Deadhead 

logging impacts may affect 10 

businesses, for an estimated impact of 

$3800 per business. We do not consider 

these effects to be substantial. 

In summary, we have considered 

whether this would result in a 

significant economic effect on a 

substantial number of small entities. We 

have determined, for the above reasons 

and based on currently available 

information, that it will not affect a 

substantial number of small entities. 

Small Business Regulatory Enforcement 

Fairness Act (5 U.S.C. 801 et seq.) 

Under SBREFA, this rule is not a 

major rule. Our detailed assessment of 

the economic effects of this designation 

is described in the economic analysis. 

Based on the effects identified in the 

economic analysis, we believe that this 

rule will not have an annual effect on 

the economy of $100 million or more, 

will not cause a major increase in costs 

or prices for consumers, and will not 

have significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. Refer to 

the final economic analysis for a 

discussion of the effects of this 

determination. 

Executive Order 13211 

On May 18, 2001, the President issued 

Executive Order 13211 (Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use) on regulations that 

significantly affect energy supply, 

distribution, and use. Executive Order 

13211 requires agencies to prepare 

Statements of Energy Effects when 

undertaking certain actions. This final 

rule to designate critical habitat for the 

seven mussels is not expected to 

significantly affect energy supplies, 

distribution, or use. Therefore, this 

action is not a significant energy action, 

and no Statement of Energy Effects is 

required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), we make the following findings: 

(a) 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 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64313 

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; AFDC 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 nonFederal entities who receive Federal 

funding, assistance, permits or 

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. 

(b) We do not believe that this rule 

will significantly or uniquely affect 

small governments because it will not 

produce a Federal mandate of $100 

million or greater in any year; that is, it 

is not a ‘‘significant regulatory action’’

under the Unfunded Mandates Reform 

Act. The designation of critical habitat 

imposes no obligations on State or local 

governments. As such, a Small 

Government Agency Plan is not 

required. 

Takings 

In accordance with Executive Order 

12630 (‘‘Government Actions and 

Interference with Constitutionally 

Protected Private Property Rights’’), we 

have analyzed the potential takings 

implications of designating 1,908.5 river 

km (1,185.9 river mi) in portions of 

Alabama, Florida, and Georgia as 

critical habitat for the seven mussels in 

a takings implications assessment. The 

takings implications assessment 

concludes that this final designation of 

critical habitat does not pose significant 

takings implications for lands within or 

affected by the designation. 

Federalism 

In accordance with Executive Order 

13132 (Federalism), the rule does not 

have significant Federalism effects. A 

Federalism assessment is not required. 

In keeping with the Department of the 

Interior and Department of Commerce 

policy, we requested information from, 

and coordinated development of, this 

final critical habitat designation with 

appropriate State resource agencies in 

Alabama, Florida, and Georgia. The 

designation of critical habitat in areas 

currently occupied by the seven mussels 

may impose additional regulatory 

restrictions to those currently in place 

and, therefore, may have some 

incremental impact on State and local 

governments and their activities. The 

designation also may have some benefit 

to these governments in that the areas 

that contain the features essential to the 

conservation of the species are more 

clearly defined, and the PCEs of the 

habitat necessary to the conservation of 

the species are specifically identified. 

While making this definition and 

identification does not alter where and 

what federally sponsored activities may 

occur, it may assist these local 

governments in long-range planning 

(rather than waiting for case-by-case 

section 7 consultations to occur). 

Civil Justice Reform 

In accordance with Executive Order 

12988 (Civil Justice Reform), the Office 

of the Solicitor has determined that the 

rule does not unduly burden the judicial 

system and 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 

Endangered Species Act. This final rule 

uses standard property descriptions and 

identifies the PCEs within the 

designated areas to assist the public in 

understanding the habitat needs of the 

seven mussels. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act. This rule will not 

impose recordkeeping or reporting 

requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

(NEPA) (42 U.S.C. 4321 et. seq.) 

It is our position that, outside the 

Jurisdiction of the Tenth Federal 

Circuit, we do not need to prepare 

environmental analyses as defined by 

NEPA in connection with designating 

critical habitat under the Endangered 

Species Act of 1973, as amended. We 

published a notice outlining our reasons 

for this determination in the Federal 

Register on October 25, 1983 (48 FR 

49244). This assertion was upheld in the 

courts of the Ninth Circuit (Douglas 

County v. Babbitt, 48 F.3d 1495 (9th Cir. 

Ore. 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, and the Department of 

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 there are no 

Tribal lands that were occupied by the 

seven mussels at the time of listing 

containing the features essential for 

their conservation, and no Tribal lands 

that are unoccupied by the seven 

mussels but are essential for their 

conservation. Therefore, critical habitat 

for the seven mussels has not been 

designated on tribal lands. 


sroberts on PROD1PC70 with RULES
64314 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

References Cited 

A complete list of all references cited 

in this rulemaking is available upon 

request from the Field Supervisor, 

Panama City Ecological Services Office 

(see ADDRESSES). 

Author(s) 

The primary author of this package is 

staff of the Panama City Ecological 

Services Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Regulation Promulgation 

■ Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as set forth 

below: 

PART 17—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

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

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

625, 100 Stat. 3500; unless otherwise noted. 

■ 2. In § 17.11(h), revise the entries for 

‘‘Bankclimber, purple (mussel),’’

‘‘Moccasinshell, Gulf,’’ ‘‘Moccasinshell, 

Ochlockonee,’’ ‘‘Pigtoe, oval,’’

‘‘Pocketbook, shinyrayed,’’ ‘‘Slabshell, 

Chipola,’’ and ‘‘Threeridge, fat 

(mussel),’’ under ‘‘CLAMS’’ to read as 

follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Species Historic 

range 

Vertebrate population 

where endangered 

or threatened 

Status When 

listed 

Critical 

habitat 

Special 

rules Common name Scientific name 

* * * * * * * 

CLAMS

* * * * * * * 

Bankclimber, purple 

(mussel).

Elliptoideus sloatianus U.S.A. (AL, FL, GA) ... NA .............................. T 633 17.95(f) NA 

* * * * * * * 

Moccasinshell, Gulf ..... Medionidus 

penicillatus.

U.S.A. (AL, FL, GA) ... NA .............................. E 633 17.95(f) NA 

* * * * * * * 

Moccasinshell, 

Ochlockonee.

Medionidus 

simpsonianus.

U.S.A. (FL, GA) .......... NA .............................. E 633 17.95(f) NA 

* * * * * * * 

Pigtoe, oval .................. Pleurobema pyriforme U.S.A. (AL, FL, GA) ... NA .............................. E 633 17.95(f) NA 

* * * * * * * 

Pocketbook, shinyrayed Lampsilis subangulata U.S.A. (AL, FL, GA) ... NA .............................. E 633 17.95(f) NA 

* * * * * * * 

Slabshell, Chipola ........ Elliptio chipolaensis .... U.S.A. (AL, FL) .......... NA .............................. T 633 17.95(f) NA 

* * * * * * * 

Threeridge, fat (mussel).Amblema neislerii ....... U.S.A. (FL, GA) .......... NA .............................. E 633 17.95(f) NA 

* * * * * * * 

■ 3. In § 17.95, at the end of paragraph 

(f), add an entry for seven mussel 

species (in four northeast Gulf of 

Mexico drainages) to read as follows: 

§ 17.95 Critical habitat—fish and wildlife. 

* * * * * 

(f) Clams and snails. 

* * * * * 

Seven mussel species (in four 

northeast Gulf of Mexico drainages): 

Purple bankclimber (Elliptoideus 

sloatianus), Gulf moccasinshell 

(Medionidus penicillatus), Ochlockonee 

moccasinshell (Medionidus 

simpsonianus), oval pigtoe (Pleurobema 

pyriforme), shinyrayed pocketbook 

(Lampsilis subangulata), Chipola 

slabshell (Elliptio chipolaensis), and fat 

threeridge (Amblema neislerii). 

(1) Critical habitat units are depicted 

on the maps below for the following 

counties: 

(i) Alabama: Houston and Russell; 

(ii) Florida: Alachua, Bay, Bradford, 

Calhoun, Columbia, Franklin, Gadsden, 

Gulf, Jackson, Leon, Liberty, Union, 

Wakulla, and Washington; and 

(iii) Georgia: Baker, Calhoun, Coweta, 

Crawford, Crisp, Decatur, Dooly, 

Dougherty, Early, Fayette, Grady, Lee, 

Macon, Marion, Meriwether, Miller, 

Mitchell, Peach, Pike, Schley, Spalding, 

Sumter, Talbot, Taylor, Terrell, Thomas, 

Upson, Webster, and Worth. 

(2) The primary constituent elements 

of critical habitat for the purple 

bankclimber (Elliptoideus sloatianus), 

Gulf moccasinshell (Medionidus 

penicillatus), Ochlockonee 

moccasinshell (Medionidus 

simpsonianus), oval pigtoe (Pleurobema 

pyriforme), shinyrayed pocketbook 

(Lampsilis subangulata), Chipola 

slabshell (Elliptio chipolaensis), and fat 

threeridge (Amblema neislerii) are: 

(i) A geomorphically stable stream 

channel (a channel that maintains its 

lateral dimensions, longitudinal profile, 

and spatial pattern over time without a 

consistent aggrading or degrading bed 

elevation); 

(ii) A predominantly sand, gravel, 

and/or cobble stream substrate with low 

to moderate amounts of silt and clay; 

(iii) Permanently flowing water; 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64315 

(iv) Water quality (including 

temperature, turbidity, dissolved 

oxygen, and chemical constituents) that 

meets or exceeds the current aquatic life 

criteria established under the Clean 

Water Act (33 U.S.C. 1251–1387); and 

(v) Fish hosts (such as largemouth 

bass, sailfin shiner, brown darter) that 

support the larval life stages of the 

seven mussels. 

(3) Critical habitat does not include 

manmade structures (such as buildings, 

aqueducts, airports, roads, and other 

paved areas) and the land on which they 

are located existing within the legal 

boundaries on the effective date of this 

rule and not containing one or more of 

the primary constituent elements. 

(4) Critical habitat unit maps. Data 

layers defining map units were created 

with USGS National Hydrography 

Dataset (NHD) GIS data. The 1:100,000 

river reach (route) files were used to 

calculate river kilometers and miles. 

The following data sources were 

referenced to identify upstream and 

downstream extents of critical habitat 

units: USGS 7.5’ quadrangles; Georgia 

Department of Transportation county 

highway maps; U.S. Census Bureau 

1:100,000 TIGER line road data; 1993 

Georgia digital orthographic quarter 

quads (DOQQs); 2004 Florida DOQQs; 

and DeLorme Atlas and Gazetteers for 

Alabama, Florida, and Georgia. The 

projection used in mapping all units 

was Universal Transverse Mercator 

(UTM), NAD 83, Zone 16 North. 

(5) Note: Index map of critical habitat 

units in the States of Alabama, Florida, 

and Georgia for the seven mussels 

follows: 

BILLING CODE 4310–55–P 


sroberts on PROD1PC70 with RULES
64316 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 


sroberts on PROD1PC70 with RULESER15NO07.000</GPH>
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64317 

(6) Table of listed species and critical 

habitat units. A table showing the listed 

species, their respective critical habitat 

units, and the States that contain those 

habitat units follows. Detailed critical 

habitat unit descriptions and maps 

appear below in paragraphs (7) through 

(17). 

Species Critical habitat units States 

Purple bankclimber (Elliptoideus sloatianus) ............................................................... Units 5, 6, 7, 8, 9, 10 ............................... AL, FL, GA 

Gulf moccasinshell (Medionidus penicillatus) .............................................................. Units 1, 2, 4, 5, 6, 7 ................................. AL, FL, GA 

Ochlockonee moccasinshell (Medionidus simpsonianus) ............................................ Unit 9 ........................................................ FL, GA 

Oval pigtoe (Pleurobema pyriforme) ............................................................................ Units 1, 2, 4, 5, 6, 7, 9, 11 ....................... AL, FL, GA 

Shinyrayed pocketbook (Lampsilis subangulata) ......................................................... Units 2, 3, 4, 5, 6, 7, 9 ............................. AL, FL, GA 

Chipola slabshell (Elliptio chipolaensis) ....................................................................... Unit 2 ........................................................ AL, FL 

Fat threeridge (mussel) (Amblema neislerii) ................................................................ Units 2, 7, 8 .............................................. AL, FL, GA 

(7) Unit 1. Econfina and Moccasin 

creeks, Bay and Washington Counties, 

Florida. This is a critical habitat unit for 

the Gulf moccasinshell and oval pigtoe. 

(i) General Description: Unit 1 

includes the main stem of Econfina 

Creek and one of its tributaries, 

Moccasin Creek, encompassing a total 

stream length of 31.4 kilometers (km) 

(19.5 miles (mi)). The main stem of 

Econfina Creek extends from its 

confluence with Deer Point Lake at the 

powerline crossing located 3.8 km (2.3 

mi) downstream of Bay County Highway 

388 (¥85.56 longitude, 30.36 latitude), 

Bay County, Florida, upstream 28.6 km 

(17.8 mi) to Tenmile Creek (¥85.50 

longitude, 30.51 latitude), Washington 

County, Florida; and Moccasin Creek 

from its confluence with Econfina Creek 

upstream 2.8 km (1.7 mi) to Ellis Branch 

(¥85.53 longitude, 30.41 latitude), Bay 

County, Florida. 

(ii) Note: Unit 1 map follows: 

BILLING CODE 4310–55–P 


sroberts on PROD1PC70 with RULES
64318 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

BILLING CODE 4310–55–C 


sroberts on PROD1PC70 with RULESER15NO07.001</GPH>
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64319 

(8) Unit 2. Chipola River and Dry, 

Rocky, Waddells Mill, Baker, Marshall, 

Big, and Cowarts Creeks in Houston 

County, Alabama, and in Calhoun, Gulf, 

and Jackson counties, Florida. This is a 

critical habitat unit for the fat 

threeridge, shinyrayed pocketbook, Gulf 

moccasinshell, oval pigtoe, and Chipola 

slabshell. 

(i) General Description: Unit 2 

includes the main stem of the Chipola 

River and seven of its tributaries, 

encompassing a total stream length of 

228.7 km (142.1 mi). The main stem of 

the Chipola River extends from its 

confluence with the Apalachicola River 

(¥85.09 longitude, 30.01 latitude) in 

Gulf County, Florida, upstream 144.9 

river km (90.0 river mi), including the 

reach known as Dead Lake, to the 

confluence of Marshall and Cowarts 

creeks (¥85.27 longitude, 30.91 

latitude) in Jackson County, Florida; Dry 

Creek from the Chipola River upstream 

7.6 river km (4.7 river mi) to Ditch 

Branch (¥85.24 longitude, 30.69 

latitude), Jackson County, Florida; 

Rocky Creek from the Chipola River 

upstream 7.1 river km (4.4 river mi) to 

Little Rocky Creek (¥85.13 longitude, 

30.68 latitude), Jackson County, Florida; 

Waddells Mill Creek from the Chipola 

River upstream 3.7 river km (2.3 river 

mi) to Russ Mill Creek (¥85.29 

longitude, 30.87 latitude), Jackson 

County, Florida; Baker Creek from 

Waddells Mill Creek upstream 5.3 river 

km (3.3 river mi) to Tanner Springs 

(¥85.32 longitude, 30.83 latitude), 

Jackson County, Florida; Marshall Creek 

from the Chipola River upstream 13.7 

river km (8.5 river mi) to the Alabama–

Florida State line (¥85.33 longitude, 

31.00 latitude), Jackson County, Florida; 

Cowarts Creek from the Chipola River in 

Jackson County, Florida, upstream 33.5 

river km (20.8 river mi) to the Edgar 

Smith Road bridge (¥85.29 longitude, 

31.13 latitude), Houston County, 

Alabama; and Big Creek from the 

Alabama–Florida State line upstream 

13.0 river km (8.1 river mi) to Limestone 

Creek (¥85.42 longitude, 31.08 

latitude), Houston County, Alabama. 

The short segment of the Chipola River 

that flows underground within the 

boundaries of Florida Caverns State 

Park is not included within this unit. 

(ii) Note: Unit 2 map follows: 

BILLING CODE 4310–55–P 


sroberts on PROD1PC70 with RULES
64320 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 


sroberts on PROD1PC70 with RULESER15NO07.002</GPH><FNP>
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64321 

(9) Unit 3. Uchee Creek, Russell 

County, Alabama. This is a critical 

habitat unit for the shinyrayed 

pocketbook. 

(i) General Description: Unit 3 

includes the main stem of Uchee Creek 

from its confluence with the 

Chattahoochee River upstream 34.2 km 

(21.2 mi) to Island Creek (¥85.18 

longitude, 32.38 latitude), Russell 

County, Alabama, encompassing a total 

stream length of 34.2 km (21.2 mi). 

(ii) Note: Unit 3 map follows: 


sroberts on PROD1PC70 with RULESER15NO07.003</GPH><FNP>
64322 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

(10) Unit 4. Sawhatchee, Sheffield 

Mill, and Kirkland creeks, Early County, 

Georgia. This is a critical habitat unit for 

the shinyrayed pocketbook, Gulf 

moccasinshell, and oval pigtoe. 

(i) General Description: Unit 4 

includes the main stems of Sawhatchee 

and Kirkland creeks, and one tributary, 

encompassing a total stream length of 

37.8 km (23.5 mi). Unit 4 includes 

Sawhatchee Creek from its confluence 

with the Chattahoochee River upstream 

28.6 km (17.8 mi) to the powerline 

crossing located 1.4 km (0.87 mi) 

upstream of Early County Road 15 

(¥84.99 longitude, 31.32 latitude); 

Sheffield Mill Creek, the tributary, from 

its confluence with Sawhatchee Creek 

upstream 3.1 km (1.9 mi) to the 

powerline crossing located 2.3 km (1.4 

mi) upstream of Sowhatchee Road 

(¥85.01 longitude, 31.23 latitude); 

Kirkland Creek from its confluence with 

the Chattahoochee River upstream 6.1 

km (3.8 mi) to Dry Creek (¥85.00 

longitude, 31.13 latitude). 

(ii) Note: Unit 4 map follows: 

BILLING CODE 4310–55–P 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64323 

BILLING CODE 4310–55–C 


sroberts on PROD1PC70 with RULESER15NO07.004</GPH>
64324 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

(11) Unit 5. Upper Flint River and 

Swift, Limestone, Turkey, 

Pennahatchee, Little Pennahatchee, 

Hogcrawl, Red Oak, Line, and 

Whitewater creeks in Coweta, Crawford, 

Crisp, Dooly, Fayette, Macon, 

Meriwether, Peach, Pike, Spalding, 

Sumter, Talbot, Taylor, Upson, and 

Worth counties, Georgia. This is a 

critical habitat unit for the shinyrayed 

pocketbook, Gulf moccasinshell, oval 

pigtoe, and purple bankclimber. 

(i) General Description: Unit 5 

encompasses a total stream length of 

380.4 km (236.4 mi) and includes the 

Flint River from the State Highway 27 

bridge (Vienna Road) (¥83.98 

longitude, 32.06 latitude) in Dooly and 

Sumter counties, Georgia (the river is 

the county boundary), upstream 247.4 

km (153.7 mi) through Macon, Peach, 

Taylor, Crawford, Talbot, Upson, Pike, 

Meriwether, and Coweta counties, to 

Horton Creek (¥84.42 longitude, 33.29 

latitude) in Fayette and Spalding 

counties, Georgia (the river is the county 

boundary); Swift Creek from Lake 

Blackshear upstream 11.3 km (7 mi) to 

Rattlesnake Branch (¥83.84 longitude, 

31.82 latitude), Crisp and Worth 

counties, Georgia (the creek is the 

county boundary); Limestone Creek 

from Lake Blackshear, Crisp County, 

Georgia, upstream 8.8 km (5.5 mi) to 

County Road 89 (¥83.88 longitude, 

32.04 latitude), Dooly County, Georgia; 

Turkey Creek from the Flint River 

upstream 21.7 km (13.5 mi) to Rogers 

Branch (¥83.89 longitude, 32.20 

latitude), in Dooly County, Georgia; 

Pennahatchee Creek from Turkey Creek 

upstream 4.8 km (3 mi) to Little 

Pennahatchee Creek (¥83.89 longitude, 

32.10 latitude), Dooly County, Georgia; 

Little Pennahatchee Creek from 

Pennahatchee Creek upstream 5.8 km 

(3.6 mi) to Rock Hill Creek (¥83.85 

longitude, 32.13 latitude), Dooly 

County, Georgia; Hogcrawl Creek from 

the Flint River upstream 21.6 km (13.4 

mi) to Little Creek (¥83.90 longitude, 

32.28 latitude), Dooly and Macon 

counties, Georgia (the creek is the 

county boundary); Red Oak Creek from 

the Flint River upstream 21.7 km (13.5 

mi) to Brittens Creek (¥84.68 longitude, 

33.11 latitude), Meriwether County, 

Georgia; Line Creek from the Flint River 

upstream 15.8 km (9.8 mi) to 

Whitewater Creek (¥84.51 longitude, 

33.28 latitude), Coweta and Fayette 

counties, Georgia (the creek is the 

county boundary); and Whitewater 

Creek from Line Creek upstream 21.5 

km (13.4 mi) to Ginger Cake Creek 

(¥84.49 longitude, 33.42 latitude), 

Fayette County, Georgia. 

(ii) Note: Two maps of unit 5—

northern part of unit 5 and—southern 

part of unit 5 follow: 

BILLING CODE 4310–55–P 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64325 


sroberts on PROD1PC70 with RULESER15NO07.005</GPH>
64326 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

BILLING CODE 4310–55–C 


sroberts on PROD1PC70 with RULESER15NO07.006</GPH>
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64327 

(12) Unit 6. Middle Flint River and 

Kinchafoonee, Lanahassee, Muckalee, 

Little Muckalee, Mill, Mercer Mill Pond, 

Abrams, Jones, and Chokee creeks in 

Dougherty, Lee, Marion, Schley, Sumter, 

Terrell, Webster, and Worth counties, 

Georgia. This is a critical habitat unit for 

the shinyrayed pocketbook, Gulf 

moccasinshell, oval pigtoe, and purple 

bankclimber. 

(i) General Description: Unit 6 

encompasses a total stream length of 

302.3 km (187.8 mi) and includes the 

Flint River from Piney Woods Creek 

(¥84.06 longitude, 31.61 latitude) in 

Dougherty County, Georgia (the 

upstream extent of Lake Worth), 

upstream 39.9 km (24.8 mi) to the 

Warwick Dam (¥83.94 longitude, 31.85 

latitude), Lee and Worth counties, 

Georgia; Kinchafoonee Creek from its 

confluence with Lake Worth at the 

Lee—Dougherty county line (¥84.17 

longitude, 31.62 latitude), upstream 

107.6 km (66.8 mi) through Terrell and 

Sumter Counties, Georgia, to Dry Creek 

(¥84.58 longitude, 32.17 latitude), 

Webster County, Georgia; Lanahassee 

Creek from Kinchafoonee Creek 

upstream 9.3 km (5.8 mi) to West Fork 

Lanahassee Creek (¥84.50 longitude, 

32.11 latitude), Webster County, 

Georgia; Muckalee Creek, from its 

confluence with Lake Worth at the 

Lee—Dougherty county line (¥84.14 

longitude, 31.62 latitude), upstream 

104.5 km (64.9 mi) to County Road 114 

(¥84.44 longitude, 32.23 latitude), 

Marion County, Georgia; Little 

Muckalee Creek, from Muckalee Creek 

in Sumter County, Georgia, upstream 

7.2 km (4.5 mi) to Galey Creek (¥84.29 

longitude, 32.17 latitude), Schley 

County, Georgia; Mill Creek from the 

Flint River upstream 3.2 km (2 mi) to 

Mercer Millpond Creek (¥83.99 

longitude, 31.67 latitude), Worth 

County, Georgia; Mercer Millpond Creek 

from Mill Creek upstream 0.45 km (0.28 

mi) to Mercer Mill Pond (¥83.99 

longitude, 31.68 latitude), Worth 

County, Georgia; Abrams Creek from the 

Flint River upstream 15.9 km (9.9 mi) to 

County Road 123 (¥83.93 longitude, 

31.68 latitude), Worth County, Georgia; 

Jones Creek from the Flint River 

upstream 3.8 km (2.4 mi) to County 

Road 123 (¥83.96 longitude, 31.76 

latitude), Worth County, Georgia; and 

Chokee Creek, from the Flint River 

upstream 10.5 km (6.5 mi) to Dry 

Branch Creek (¥84.02 longitude, 31.89 

latitude), Lee County, Georgia. 

(ii) Note: Two maps of unit 6—

western part of unit 6 and—eastern part 

of unit 6 follow: 

BILLING CODE 4310–55–P 


sroberts on PROD1PC70 with RULES
64328 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 


sroberts on PROD1PC70 with RULESER15NO07.007</GPH>
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64329 

BILLING CODE 4310–55–C 


sroberts on PROD1PC70 with RULESER15NO07.008</GPH>
64330 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

(13) Unit 7. Lower Flint River and 

Spring, Aycocks, Dry, 

Ichawaynochaway, Mill, Pachitla, Little 

Pachitla, Chickasawhatchee, and 

Cooleewahee creeks in Baker, Calhoun, 

Decatur, Dougherty, Early, Miller, 

Mitchell, and Terrell counties, Georgia. 

This is a critical habitat unit for the fat 

threeridge, shinyrayed pocketbook, Gulf 

moccasinshell, oval pigtoe, and purple 

bankclimber. 

(i) General Description: Unit 7 

encompasses a total stream length of 

396.7 km (246.5 mi) and includes the 

Flint River from its confluence with Big 

Slough (¥84.56 longitude, 30.93 

latitude), Decatur County, Georgia, 

upstream 116.4 km (72.3 mi) through 

Baker and Mitchell Counties, Georgia, to 

the Flint River Dam (which impounds 

Lake Worth) (¥84.14 longitude, 31.60 

latitude), Dougherty County, Georgia; 

Spring Creek, from its confluence with 

Lake Seminole at Smith Landing 

(¥84.75 longitude, 30.89 latitude), 

Decatur County, Georgia, upstream 74.2 

km (46.1 mi) to County Road 35 

(¥84.78 longitude, 31.34 latitude), Early 

County, Georgia; Aycocks Creek from 

Spring Creek upstream 15.9 km (9.9 mi) 

to Cypress Creek (¥84.79 longitude, 

31.15 latitude), Miller County, Georgia; 

Dry Creek from Spring Creek upstream 

9.9 km (6.1 mi) to Wamble Creek 

(¥84.84 longitude, 31.31 latitude), Early 

County, Georgia; Ichawaynochaway 

Creek from the Flint River, Baker 

County, Georgia, upstream 68.6 km 

(42.6 mi) to Merrett Creek (¥84.58 

longitude, 31.54 latitude), Calhoun 

County, Georgia; Mill Creek from 

Ichawaynochaway Creek upstream 7.4 

km (4.6 mi) to County Road 163 

(¥84.63 longitude, 31.40 latitude), 

Baker County, Georgia; Pachitla Creek, 

from Ichawaynochaway Creek upstream 

18.9 km (11.8 mi) to Little Pachitla 

Creek (¥84.68 longitude, 31.56 

latitude), Calhoun County, Georgia; 

Little Pachitla Creek from Pachitla Creek 

upstream 5.8 km (3.6 mi) to Bear Branch 

(¥84.72 longitude, 31.58 latitude), 

Calhoun County, Georgia; 

Chickasawhatchee Creek from 

Ichawaynochaway Creek, Baker County, 

Georgia, upstream 64.5 km (40.1 mi) to 

U.S. Highway 82 (¥84.38 longitude, 

31.74 latitude), Terrell County, Georgia; 

and Cooleewahee Creek from the Flint 

River upstream 15.1 km (9.4 mi) to 

Piney Woods Branch (¥84.31 longitude, 

31.42 latitude), Baker County, Georgia. 

(ii) Note: Two maps of unit 7—

western part of unit 7 and—eastern part 

of unit 7 follow: 

BILLING CODE 4310–55–P 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64331 


sroberts on PROD1PC70 with RULESER15NO07.009</GPH>
64332 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

BILLING CODE 4310–55–C 


sroberts on PROD1PC70 with RULESER15NO07.010</GPH>
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64333 

(14) Unit 8. Apalachicola River, 

Chipola Cutoff, Swift Slough, River 

Styx, Kennedy Slough, and Kennedy 

Creek in Calhoun, Franklin, Gadsden, 

Gulf, Jackson, and Liberty Counties, 

Florida. This is a critical habitat unit for 

the fat threeridge and purple 

bankclimber. 

(i) General Description: Unit 8 

includes the main stem of the 

Apalachicola River, two of its 

distributaries, Chipola Cutoff and Swift 

Slough, and three of its tributaries, River 

Styx, Kennedy Slough, and Kennedy 

Creek, encompassing a total length of 

161.2 river km (100.2 river mi). The 

main stem of the Apalachicola River 

extends from the downstream end of 

Bloody Bluff Island (river mile 15.3 on 

U.S. Army Corps of Engineers 

Navigation Charts) (¥85.01 longitude, 

29.88 latitude), Franklin County, 

Florida, through Calhoun and Liberty 

Counties, Florida, upstream to the Jim 

Woodruff Lock and Dam (which 

impounds Lake Seminole) (¥84.86 

longitude, 30.71 latitude), Gadsden and 

Jackson Counties, Florida; Chipola 

Cutoff from the Apalachicola River in 

Gulf County, Florida, downstream 4.5 

river km (2.8 river mi) to its confluence 

with the Chipola River; Swift Slough 

from the Apalachicola River in Liberty 

County, Florida, downstream 3.6 river 

km (2.2 river mi) to its confluence with 

the River Styx (¥85.12 longitude, 30.10 

latitude); River Styx from the mouth of 

Swift Slough (¥85.12 longitude, 30.10 

latitude) in Liberty County, Florida, 

downstream 3.8 river km (2.4 river mi) 

to its confluence with the Apalachicola 

River; Kennedy Slough from ¥85.07 

longitude, 30.01 latitude in Liberty 

County, Florida, downstream 0.9 river 

km (0.5 river mi) to its confluence with 

Kennedy Creek; and Kennedy Creek 

from Brushy Creek Feeder (¥85.06 

longitude, 30.01 latitude) in Liberty 

County, Florida, downstream 1.1 river 

km (0.7 river mi) to its confluence with 

the Apalachicola River. 

(ii) Note: Unit 8 map follows: 

BILLING CODE 4310–55–P 


sroberts on PROD1PC70 with RULES
64334 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

BILLING CODE 4310–55–C 


sroberts on PROD1PC70 with RULESER15NO07.011</GPH>
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64335 

(15) Unit 9. Upper Ochlockonee River 

and Barnetts and West Barnetts creeks, 

and the Little Ochlockonee River in 

Gadsden and Leon counties, Florida, 

and in Grady and Thomas counties, 

Georgia. This is a critical habitat unit for 

the shinyrayed pocketbook, 

Ochlockonee moccasinshell, oval 

pigtoe, and purple bankclimber. 

(i) General Description: Unit 9 

includes the main stem of the 

Ochlockonee River upstream of Lake 

Talquin and three tributaries 

encompassing a total stream length of 

177.3 km (110.2 mi). The main stem of 

the Ochlockonee River extends from its 

confluence with Gulley Branch (the 

approximate upstream extent of Lake 

Talquin) (¥84.44 longitude, 30.46 

latitude), Gadsden and Leon counties, 

Florida, upstream 134.0 km (83.3 mi) to 

Bee Line Road/County Road 306 

(¥83.94 longitude, 31.03 latitude), 

Thomas County, Georgia; Barnetts Creek 

from the Ochlockonee River upstream 

20 km (12.4 mi) to Grady County Road 

170/Thomas County Road 74 (¥84.12 

longitude, 30.98 latitude), Grady and 

Thomas counties, Georgia; West 

Barnetts Creek from Barnetts Creek 

upstream 10 km (6.2 mi) to Georgia 

Highway 111 (¥84.17 longitude, 30.98 

latitude), Grady County, Georgia; and 

the Little Ochlockonee River from the 

Ochlockonee River upstream 13.3 km 

(8.3 mi) to Roup Road/County Road 33 

(¥84.02 longitude, 31.02 latitude), 

Thomas County, Georgia. 

(ii) Note: Unit 9 map follows: 

BILLING CODE 4310–55–P 


sroberts on PROD1PC70 with RULES
64336 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 


sroberts on PROD1PC70 with RULESER15NO07.012</GPH>
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64337 

(16) Unit 10. Lower Ochlockonee 

River in Leon, Liberty, and Wakulla 

counties, Florida. This is a critical 

habitat unit for the purple bankclimber. 

(i) General Description: Unit 10 

encompasses a total stream length of 

75.4 km (46.9 mi) and includes the main 

stem of the Ochlockonee River from its 

confluence with Syfrett Creek (¥84.56 

longitude, 30.02 latitude), Wakulla 

County, Florida, upstream 75.4 km (46.9 

mi) to the Jackson Bluff Dam (which 

impounds Lake Talquin) (¥84.65 

longitude, 30.39 latitude), Leon and 

Liberty counties, Florida. 

(ii) Note: Unit 10 map follows: 


sroberts on PROD1PC70 with RULES
64338 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 


sroberts on PROD1PC70 with RULESER15NO07.013</GPH>
Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 64339 

(17) Unit 11. Santa Fe River and New 

River in Alachua, Bradford, Columbia, 

and Union counties, Florida. This is a 

critical habitat unit for the oval pigtoe. 

(i) General Description: Unit 11 

includes the main stem of the Santa Fe 

River and its tributary the New River 

encompassing a total stream length of 

83.1 km (51.6 mi). The main channel of 

the Santa Fe River extends from where 

the river goes underground in O’Leno 

State Park (¥82.57 longitude, 29.91 

latitude), Alachua and Columbia 

counties, Florida, upstream 60.2 km 

(37.4 mi) to the powerline crossing 

located 1.9 km (1.2 mi) downstream 

from the U.S. Highway 301 bridge 

(¥82.18 longitude, 29.84 latitude) in 

Alachua and Bradford counties, Florida; 

and the New River from its confluence 

with the Santa Fe River at the junction 

of Alachua, Bradford, and Union 

counties, Florida, upstream 22.9 km 

(14.2 mi) to McKinney Branch (¥82.27 

longitude, 30.01 latitude) in Bradford 

and Union counties, Florida. 

(ii) Note: Unit 11 map follows: 


sroberts on PROD1PC70 with RULES
64340 Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / Rules and Regulations 

* * * * * Dated: October 31, 2007. 

David M. Verhey, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 07–5551 Filed 11–14–07; 8:45 am] 

BILLING CODE 4310–55–C 


sroberts on PROD1PC70 with RULESER15NO07.014</GPH>