[Federal Register Volume 75, Number 193 (Wednesday, October 6, 2010)]
[Proposed Rules]
[Pages 61664-61690]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-25026]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2008-0107]
[92210 1111 0000-B2]
RIN 1018-AV88


Endangered and Threatened Wildlife and Plants; Endangered Status 
for the Altamaha Spinymussel and Designation of Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to list the 
Altamaha spinymussel (Elliptio spinosa), a freshwater mussel endemic to 
the Altamaha River drainage of southeastern Georgia, as an endangered 
species under the Endangered Species Act of 1973, as amended (Act), and 
to designate approximately 240 kilometers (149 miles) of mainstem river 
channel as critical habitat in Appling, Ben Hill, Coffee, Jeff Davis, 
Long, Montgomery, Tattnall, Telfair, Toombs, Wayne, and Wheeler 
Counties, Georgia. This proposed rule, if made final, would implement 
the Federal protections provided by the Act.

DATES: We will consider comments received or postmarked on or before 
December 6, 2010. We must receive requests for public hearings, in 
writing, at the address shown in the FOR FURTHER INFORMATION CONTACT 
section by November 22, 2010.

ADDRESSES: You may submit comments by one of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments on Docket no. FWS-R4-
ES-2008-0107.
    <bullet> U.S. mail or hand-delivery: Public Comments Processing, 
Attn: FWS-R4-ES-2008-0107; Division of Policy and Directives 
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, 
Suite 222; Arlington, VA 22203.

[[Page 61665]]

    We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see the Public Comments section below for more information).

FOR FURTHER INFORMATION CONTACT: Sandra Tucker, Field Supervisor, U.S. 
Fish and Wildlife Service, Georgia Ecological Services Office, 105 
Westpark Dr., Suite D, Athens, GA 30606; telephone 706-613-9493; 
facsimile 706-613-6059. If you use a telecommunications device for the 
deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-
877-8339.

SUPPLEMENTARY INFORMATION: This document consists of: (1) A proposed 
rule to list the Altamaha spinymussel (Elliptio spinosa) as endangered; 
and (2) a proposed critical habitat designation for this species.

Previous Federal Action

    The Altamaha spinymussel was first identified as a candidate for 
protection under the Act in the May 22, 1984, Federal Register (49 FR 
21664). As a candidate, it was assigned a status category 2 
designation, which was given to those species with some evidence of 
vulnerability, but for which additional biological information was 
needed to support a proposed rule to list as endangered or threatened. 
In our Notices of Review dated January 6, 1989 (54 FR 554), November 
21, 1991 (56 FR 58804), and November 15, 1994 (59 FR 58982), we 
retained a status category 2 designation for this species. We 
discontinued assigning categories to candidate species in our Notice of 
Review dated February 28, 1996 (61 FR 7596), and only species for which 
the U.S. Fish and Wildlife Service (Service) had sufficient information 
on biological vulnerability and threats to support issuance of a 
proposed rule were regarded as candidate species.
    On June 13, 2002, we listed the Altamaha spinymussel in the Federal 
Register (67 FR 40657) as a candidate species with a listing priority 
number (LPN) of 5. Candidate species are assigned LPNs based on 
immediacy and the magnitude of threat, as well as their taxonomic 
status. The lower the LPN, the higher priority that species is for us 
to determine appropriate action using our available resources. In our 
Notices of Review dated May 4, 2004 (69 FR 24876), and May 11, 2005 (70 
FR 24870), we determined that publication of a proposed rule to list 
the species was precluded by our work on higher priority listing 
actions and retained a LPN of 5 for this species, in accordance with 
our priority guidance published on September 21, 1983 (48 FR 43098).
    On September 12, 2006 (71 FR 53755), we changed the species' LPN 
from 5 to 2. Recent data suggesting declines from surveys conducted in 
the early 1990s and information on a new threat from deadhead logging 
justified the change in LPN. An LPN of 2 reflects threats that are both 
imminent and high in magnitude, as well as the taxonomic classification 
of the Altamaha spinymussel as a full species. We have retained an LPN 
of 2 in subsequent Notices of Review (72 FR 69033, December 6, 2007; 73 
FR 75175, December 10, 2008; 74 FR 57803, November 9, 2009).

Public Comments

    We intend that any final action resulting from this proposal will 
be based on the best scientific and commercial data available and be as 
accurate and as effective as possible. Therefore, we request comments 
or information from the public, other concerned governmental agencies, 
the scientific community, industry, or any other interested party 
concerning this proposed rule. We particularly seek comments 
concerning:
    (1) The factors that are the basis for making a listing 
determination for a species under section 4(a) of the Endangered 
Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), which 
are:
    (a) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (b) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (c) Disease or predation;
    (d) The inadequacy of existing regulatory mechanisms; or
    (e) Other natural or manmade factors affecting its continued 
existence.
    (2) Additional information concerning the range, distribution, and 
population size of this species, including the locations of any 
additional populations of this species.
    (3) Any information on the biological or ecological requirements of 
the species.
    (4) Land use designations and current or planned activities, 
including deadhead logging, in the areas occupied by the species and 
possible impacts of these activities on this species.
    (5) Which areas would be appropriate as critical habitat for the 
species.
    (6) The reasons why areas should or should not be designated as 
critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 et 
seq.).
    (7) Comments or information that may assist us in identifying or 
clarifying the primary constituent elements.
    (8) Specific information on
    (a) The amount and distribution of Altamaha spinymussel habitat,
    (b) What areas occupied at the time of listing (i.e., currently 
occupied) and that contain features essential to the conservation of 
the species which may require special management considerations or 
protection we should include in the designation and why, and
    (c) What areas not occupied at the time of listing are essential 
for the conservation of the species and why.
    (9) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation, in particular, any impacts to small entities, and the 
benefits of including or excluding areas that exhibit these impacts.
    (10) Whether any specific areas we are proposing as critical 
habitat should be considered for exclusion under section 4(b)(2) of the 
Act, and whether benefits of potentially excluding any specific area 
outweigh the benefits of including that area under section 4(b)(2) of 
the Act.
    (11) Information on any quantifiable economic costs of the proposed 
designation.
    (12) Information on the projected and reasonably likely impacts of 
climate change on the Altamaha spinymussel, and any special management 
needs or protections that may be needed in critical habitat areas we 
are proposing.
    (13) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in the ADDRESSES section. We will not 
accept comments sent by e-mail or fax or to an address not listed in 
the ADDRESSES section.
    We will post your entire comment--including your personal 
identifying information--on http://www.regulations.gov. If your written 
comments provide personal identifying information, you may request at 
the top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection

[[Page 61666]]

on http://www.regulations.gov, or by appointment, during normal 
business hours, at the U.S. Fish and Wildlife Service, Georgia 
Ecological Services Office, Athens, Georgia (see FOR FURTHER 
INFORMATION CONTACT).

Background

Species Description

    The Altamaha spinymussel (Elliptio spinosa) is a freshwater mussel, 
in the family Unionidae, endemic to the Altamaha River drainage of 
southeastern Georgia. The Altamaha River is formed by the confluence of 
the Ocmulgee and Oconee rivers and lies entirely within the State of 
Georgia. The species was described by I. Lea in 1836 from a site near 
the mouth of the Altamaha River in Darien, Georgia (Johnson 1970, p. 
303).
    This species reaches a shell length of approximately 11.0 
centimeters (cm) (4.3 inches (in)). The shell is subrhomboidal or 
subtriangular in outline and moderately inflated. As the name implies, 
the shells of these animals are adorned with one to five prominent 
spines. These spines may by straight or crooked, reach lengths from 1.0 
to 2.5 cm (0.39 to 0.98 in), and are arranged in a single row that is 
somewhat parallel to the posterior ridge. In young specimens, the 
outside layer or covering of the shell (periostracum) is greenish-
yellow with faint greenish rays, but as the animals get older, they 
typically become a deep brown, although some raying may still be 
evident in older individuals. The interior layer of the shell (nacre) 
is pink or purplish (Johnson 1970, p. 303).

Life History and Habitat

    Adult freshwater mussels are filter-feeders, siphoning 
phytoplankton, diatoms, and other microorganisms from the water column. 
For the first several months, juvenile mussels employ pedal (foot) 
feeding, extracting bacteria, algae, and detritus from the sediment 
(Yeager et al. 1994, pp. 217-221; Wisniewski 2008, pers. comm.).
    Although the life history of the Altamaha spinymussel has not been 
studied, the life histories of other mussels in the Elliptio genus have 
been. Fertilization takes place internally, resulting in the release of 
parasitic larvae, termed glochidia. To ensure survival, glochidia must 
come into contact with a specific host fish(es) to develop into 
juvenile mussels. Other mussels in the genus Elliptio attract host 
fishes with visual cues, luring fish into perceiving that their 
glochidia are prey items (The Nature Conservancy (TNC) 2004, p. 4). 
This reproductive strategy depends on clear water during the time of 
the year when mussels release their glochidia (Hartfield and Hartfield 
1996, p. 375). The Altamaha spinymussel is thought to reproduce in late 
spring and ready to release glochidia by May or June (Johnson 2009, p. 
2). The host fish of the Altamaha spinymussel is currently unknown. 
Furthermore, juvenile age classes of other mussels are commonly found 
during surveys; however, no spinymussel recruitment has been evident in 
surveys conducted since 1990 (Keferl 2008, pers. comm.; Wisniewski 
2008, pers. comm.). Research to develop a better understanding of the 
natural history and the reasons for a lack of recruitment in the 
species is continuing.
    This spinymussel is known only from Georgia in Glynn, Ben Hill, 
McIntosh, Telfair, Tattnall, Long, Montgomery, Toombs, Wheeler, 
Appling, Jeff Davis, Coffee, and Wayne Counties. This spinymussel is 
considered a ``big river'' species; is associated with stable, coarse 
to fine sandy sediments of sandbars, sloughs, and mid-channel islands; 
and appears to be restricted to swiftly flowing water (Sickel 1980, p. 
12). Johnson (1970, p. 303) reported Altamaha spinymussels buried 
approximately 5.1 to 10.2 cm (2.0 to 4.0 in) below the substrate 
surface.

Species Distribution and Status

    The historical range of the Altamaha spinymussel was restricted to 
the Coastal Plain portion of the Altamaha River and the lower portions 
of its three major tributaries, the Ohoopee, Ocmulgee, and Oconee 
Rivers (Johnson 1970, p. 303; Keferl 2001, pers. comm.). Large-scale, 
targeted surveys for the mussel have been conducted since the 1960s 
(Keferl 1993, p. 299). Recent surveys have revealed a dramatic decline 
in recruitment, the number of populations, and number of individuals 
within populations throughout the species' historic range.
Ohoopee River
    In a survey of the Ohoopee River, Keferl (1981, pp. 12-14) found at 
least 30 live specimens of the Altamaha spinymussel at seven of eight 
collection sites, in thinly scattered beds, in the lower 8 kilometers 
(km) (5 miles(mi)) of the river. By the early 1990s, however, only two 
live specimens were found at the same sites (Keferl 1995, pp. 3-6; 
Keferl 2008 pers. comm.; Wisniewski 2006, pers. comm.). Stringfellow 
and Gagnon (2001, pp. 1-2) resurveyed these sites using techniques 
similar to those used by Keferl (1981, p. 12), but they did not find 
any live Altamaha spinymussels in the Ohoopee River. Therefore, it is 
currently either extirpated from the system or present in such low 
numbers that it is undetectable.
Ocmulgee River
    The Altamaha spinymussel is known from the Ocmulgee River from its 
confluence with the Oconee River upstream to Red Bluff in Ben Hill 
County. Early collecting efforts in the Ocmulgee River near Lumber City 
yielded many live Altamaha spinymussels. In 1962, Athearn made a single 
collection of 40 live spinymussels downstream of U.S. Highway 341 near 
Lumber City (Johnson et al. 2008, Athearn database). Researchers 
collected 19 and 21 live individuals, respectively, during two surveys 
at Red Bluff (Thomas and Scott 1965, p. 67). In 1986, Stansbery 
collected 11 live individuals at the U.S. Highway 441 Bridge near 
Jacksonville, Georgia (Wisniewski 2006, pers. comm.).
    The lower Ocmulgee River was surveyed by Keferl in the mid 1990s, 
during 2000-2001 (Cammack et al. 2001, p. 11; O'Brien 2002, p. 2), and 
in 2004 (Dinkins 2004, pp. 1-1 and 2-1). Over 90 sites have been 
surveyed since 1993, many of which were repeatedly surveyed, resulting 
in a total of 19 live Altamaha spinymussels detected at 10 sites, 
distributed from Jacksonville downstream to the Oconee River 
confluence.
Oconee River
    There are few historical records of Altamaha spinymussels from the 
Oconee River. Athearn collected 18 spinymussels, including 5 juveniles, 
at a site in Montgomery County near Glenwood in the late 1960s (Johnson 
2008, Athearn database). The species has not been collected there since 
and is probably extirpated from the Oconee River system (Keferl 2008, 
pers. comm.). In 1995, as part of a dam relicensing study, 41 sites 
between Lake Sinclair and Dublin were surveyed (EA Engineering 1995, 
pp. 1-1, 3-1, 3-2, 4-2, and 4-3). One hundred forty-four hours of 
search time yielded 118 live mussels, but no Altamaha spinymussels. 
Compared to the other portions of its range, the Oconee River has not 
been extensively surveyed, in part because the entire mussel fauna of 
this river appears to be sparse.
Altamaha River
    Most surveys for Altamaha spinymussels have been conducted in the 
Altamaha River. Although methodological differences preclude accurate 
comparison of mussel abundances over time, there is evidence that 
historically higher abundances of

[[Page 61667]]

Altamaha spinymussels occurred in the Altamaha River. Early surveys at 
the U.S. Route 301 crossing documented 20 individuals in 1963, 7 in 
1965, and 43 in 1970. Sickel sampled seven sites downstream of the U.S. 
1 bridge in 1967. Sixty spinymussels were collected in one 500-square 
meters (m\2\) (5382-square feet (ft\2\)) site and an additional 21 
spinymussels were collected in a 400-m\2\ (4306-ft\2\) (Sickel 1967, p. 
11; Wisniewski 2006, pers. comm.) site. One site had five live 
spinymussels, two sites had one each, and two sites had no Altamaha 
spinymussels.
    From 1993 to 1996, Keferl surveyed 164 sites on the mainstem of the 
Altamaha River between the Ocmulgee-Oconee River confluence and the 
Interstate 95 crossing near the river's mouth. A total of 63 live 
Altamaha spinymussels were collected from 18 of these sites, located 
between the Oconee River and U.S. Route 301; however, no Altamaha 
spinymussels were collected below U.S. Route 301, suggesting absence or 
extreme rarity in the reach between U.S. Route 301 and the river's 
mouth (approximately 73 km (45 mi)). In addition, 10 of these sites 
were clustered within a 4-km (2-mi) reach upstream of the U.S. Route 
301 crossing near Jesup; the remaining eight sites were isolated by 
long distances of habitat with no or sub-detectable numbers of live 
spinymussels.
    O'Brien (2002, pp. 3-4) surveyed 30 sites on the Altamaha River 
from the confluence of the Ocmulgee and Oconee Rivers downstream to 
U.S. Route 301 during 2001, including the 18 known Altamaha spinymussel 
sites, reported by Keferl, within the reach. She collected a total of 
six live individuals from five different sites and freshly dead shells 
from two additional sites.
    In 2003 and 2004, 25 sites were surveyed to collect specimens for 
host-fish trials (Albanese 2005, pers. comm.). Live Altamaha 
spinymussels were detected at only four sites. Five of the seven sites 
documented by O'Brien and all four sites documented during the host-
fish surveys were clustered within a short reach of the Altamaha River 
just upstream of the U.S. Route 301 crossing near Jesup, Georgia.
    To summarize, researchers were able to find 60 Altamaha 
spinymussels at a single site on the Altamaha River in 1967; in 
contrast, the largest number of Altamaha spinymussels observed from a 
single site on the Altamaha River during the 1990s or 2000s was nine 
(Albanese 2005, pers. comm.).
Summary of Basin-wide Population Estimates
    In 1994, researchers spent 128 search-hours throughout the Altamaha 
Basin to find 41 spinymussels (Keferl 1995, p. 3). From 1997 through 
2006, researchers searched 233 sites throughout the basin to document 
34 spinymussels in more than 550 hours of searching (Wisniewski 2006, 
pers. comm.); from 2007 to 2009, only 23 spinymussels were found from 
more than 110 sites (Wisniewski 2009, pers. comm.). In summary, the 
Altamaha spinymussel is considered extirpated from two rivers in its 
historical range, the Ohoopee (15 km (9 mi)) and Oconee Rivers (45 km 
(28 mi)), as well as the lower 73 km (45 mi) of the Altamaha River 
(Table 1). Since 1997, despite extensive survey efforts made by several 
different researchers, only 57 spinymussels have been observed from 7 
sites in the Ocmulgee (110 km (68 mi)) and 15 sites in the upper 
Altamaha (116 km (72 mi)) combined, and while individual spinymussels 
have been found scattered throughout this stretch of river, most of 
these sites have been clustered in the 10 km (6 mi) immediately north 
of the U.S. Route 301 crossing.

                             TABLE 1. Decline in range of the Altamaha spinymussel.
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                                                                                                     Percent of
               River Reach                   Historically Occupied           Current habitat            range
                                                 (linear km/mi)                                        decline
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Ohoopee                                   15km/9mi                     Not seen since 1997                   4%
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Oconee                                    45km/28mi                    Not seen since 1968                12.5%
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Ocmulgee                                  110km/68.3mi                 Widely scattered                       0
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Upper Altamaha                            116km/72mi                   Widely scattered                       0
                                                                        individuals
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Lower Altamaha                            73km/45mi                    Not seen since 1970                  20%
----------------------------------------------------------------------------------------------------------------
                  Total                   359km/222 mi                 226km/140 mi                       36.5%
----------------------------------------------------------------------------------------------------------------

    Using GDNR's database, which included many of the surveys mentioned 
above, Wisniewski et al. (2005, p. 2) conducted a test for a temporal 
change in sites occupied in the Ocmulgee and Altamaha Rivers between 
the early 1990s and the early 2000s. Live Altamaha spinymussels were 
detected at 24 of 241 sites (10 percent) sampled before 2000 and at 14 
of 120 sites (12 percent) sampled after 2000. Although the percentage 
of sites occupied is not indicative of a decline, an analysis of 39 
sites sampled during both time periods, of which the spinymussel was 
initially present in 13 of the 39 sites, indicated that the spinymussel 
was lost from significantly more sites (11 sites) than it colonized (3 
sites) between the early 1990s and early 2000s (Wisniewski et al. 2005, 
p. 2). This test is imprecise because the failure to detect Altamaha 
spinymussels when present could result in both false colonizations 
(species missed during early surveys but detected in recent survey) and 
false extirpations (species detected during early survey but missed 
during recent survey). Thus, although the exact number of extirpations 
and colonizations between the two time periods may not be accurate, the 
much higher number of extirpations is suggestive of a decline over this 
time period.

Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 
424) set forth the procedures for adding species to the Federal Lists 
of Endangered and Threatened Wildlife and Plants. A species may be 
determined to be an endangered or threatened species due to one or more 
of the five factors described in section 4(a)(1) of the Act. The five 
listing factors are: (A) The present or threatened destruction, 
modification, or

[[Page 61668]]

curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; and (E) other natural or manmade factors affecting its 
continued existence.

A. The Present or Threatened Destruction, Modification, or Curtailment 
of Its Habitat or Range

    Bogan (1993, pp. 599-600 and 603-605) linked the decline and 
extinction of bivalves to a wide variety of threats including 
siltation, industrial pollution, municipal effluents, modification of 
stream channels, impoundments, pesticides, heavy metals, invasive 
species, and the loss of host fish. The Altamaha spinymussel lives 
within a large river drainage exposed to a variety of landscape uses. 
Habitat and water quality for the Altamaha spinymussel face degradation 
from a number of sources. Primary among these are threats from 
sedimentation and contaminants within the streams that the spinymussel 
inhabits.
    Sickel (1980, p. 12) characterized the habitat of the Altamaha 
spinymussel as course to fine grain sandbars and suggested that this 
may make the Altamaha spinymussel susceptible to adverse effects from 
sediment (siltation). Sediments deposited on the stable sandbars 
required by the Altamaha spinymussel could make sandbars unstable, 
suffocate Altamaha spinymussels, or simply change the texture of the 
substrate, making them unsuitable for the species. Sedimentation, 
including siltation from surface runoff, has been implicated as a 
factor in water quality impairment in the United States and has 
contributed to the decline of mussel populations in streams throughout 
the country (Ellis 1936, pp. 39-41; Coon et al. 1977, p. 284; Marking 
and Bills 1979, pp. 209-210; Wilber 1983, pp. 25-57; Dennis 1984, pp. 
207-212; Aldridge et al. 1987, pp. 25-26; Schuster et al. 1989, p. 84; 
Wolcott and Neves 1991, pp. 1-6; Houp 1993, p. 96; Bogan 1993, pp. 603-
605; Waters 1995, pp. 53-77; Richter et al. 1997, p. 1084).
    Specific impacts on mussels from sediments include reduced feeding 
and respiratory efficiency, disrupted metabolic processes, reduced 
growth rates, increased substrata instability, and the physical 
smothering of mussels (Ellis 1936, pp. 39-41; Stansbery 1970, p. 10; 
Markings and Bills 1979, pp. 209-210; Kat 1982, p. 124; Aldridge et al. 
1987, pp. 25-26; Hartfield and Hartfield 1996, p. 375; Brim Box and 
Mossa 1999, pp. 99-102; TNC 2004, p. 4). Many southeastern streams have 
increased turbidity levels due to siltation (van der Schalie 1938, p. 
56). Since turbidity is a limiting factor that impedes the ability of 
sight-feeding fishes to forage (Burkhead and Jenkins 1991, pp. 324-
325), turbidity within the Altamaha River basin during the times that 
Altamaha spinymussels attempt to attract host fishes may have 
contributed and may continue to contribute to the decline of the 
spinymussel by reducing its efficiency at attracting the fish hosts 
necessary for reproduction. In addition, sediment can eliminate or 
reduce the recruitment of juvenile mussels (Brim Box and Mossa 1999, 
pp. 101-102), interfere with feeding activity (Dennis 1984, pp. 207-
212), and act as a vector in delivering contaminants to streams 
(Salomons et al. 1987, p. 28).
    From 1700 to 1970, agriculture practices in the Southern Piedmont 
physiographic province resulted in extreme soil erosion, removing more 
than 17.8 cm (7 in.) of soil across the landscape (Trimble 1974, p. 1). 
The Ocmulgee, Oconee, and Ohoopee rivers all drain through the Piedmont 
and were directly affected by the sediment. In 1938, van der Schalie 
(p. 56) reported the Altamaha River to be a yellow color due to the 
large amount of suspended silt originating from intensive farming and 
road construction occurring in the headwaters. The sediment from this 
practice has moved into stream channels and valleys and has covered 
most of the original bottomlands (Trimble 1974, p. 26). As a result, 
stream profiles have been dramatically altered with unstable sediment 
deposits being dissected and streams being incised with entrained 
sediment migrating downstream to be deposited in stream channels and 
floodplains (Trimble 1974, pp. 116-121). GDNR, Environmental Protection 
Division (EPD 2007, p. iii) reported to the U.S. Environmental 
Protection Agency (EPA) that approximately 74.9 percent of the average 
sediment load in the Altamaha River Basin resulted from row crops and 
that it contributed an average sediment load of 1.07 tons per acre per 
year. EPD concluded that this sediment is probably a legacy of past 
land use. Although it is the historical, anthropogenic land use that 
created the sediment, the volume of sediment still migrating through 
the Altamaha River Basin is a significant threat to the spinymussel.
    Studies of fish population were conducted in 2000 by the GDNR 
Wildlife Resources Division (WRD) in the Altamaha River Basin. The 
Index of Biotic Integrity (IBI) and modified Index of Well-Being (IWB) 
were used by WRD to identify impaired fish populations. Using the IBI 
and IWB values to classify the populations as Excellent, Good, Fair, 
Poor, or Very Poor, stream segments with fish populations rated as Poor 
or Very Poor were listed as Biota Impacted. A lack of fish habitat due 
to stream sedimentation was generally the cause of a low IBI score.
    Five Mile Creek (14.5 km/9 mi), Bullard Creek (12.8 km/8 mi), and 
Jacks Creek (14.5 km/9 mi) were rated as Very Poor and placed on the 
State of Georgia's 303(d) list of impaired waters due to a significant 
impact on fish (EPD 2007a, pp. 1-2). These three streams eventually 
feed into the mainstem of the Altamaha River via larger channels. As 
this sediment moves through the basin, habitat is periodically buried. 
WRD recommends that there be no net increase in sediment delivered to 
the impaired stream segments so that these streams will recover over 
time (EPD 2007a, p. 26). Agriculture and roads were the major sources 
of sediment with silviculture, mining sites, grazing, and urban 
development also contributing nonpoint sources of sediment (EPD 2007a, 
p. 9). Agriculture, including row crops, poultry farms, and pastures, 
constitute 15.5 percent of the land cover in the Piedmont and 32.7 
percent of the land cover in the Coastal Plain (GDNR 2005, pp. 97 and 
132).
    In addition to agriculture, there are numerous sources of sediment 
within the Altamaha River Basin, including silviculture, unpaved roads, 
kaolin mines, and construction sites. A threat assessment conducted by 
TNC (2004, p. 9) listed sediment from urban, industrial, and nonpoint 
sources (NPSs) as a threat to the spinymussel. EPD (2007, p. v) 
reported that while historical row crop-based land use contributes the 
majority of sediment in the Altamaha River (75 percent) that among 
other sources, approximately 17.3 percent of the total sediment load is 
from roads; 4.3 percent from grasses and wetlands; 1.5 percent from 
urban lands; and 1.0 percent from quarries, strip mines, and gravel 
pits. In addition, estimates of the contribution from construction 
could not be obtained, but could represent a comparatively high 
sediment load on a per acre basis (EPD 2007, p. v).
    Industrial forest management is practiced on approximately 8,000 
hectares (40,000 acres) or 33 percent of the floodplain of the Altamaha 
River (TNC 1997, p. 19). Typical forest management regimes in the 
Altamaha River Basin use timber harvest methods and conduct other 
activities that result in ground disturbances. These ground 
disturbances can result in transport of

[[Page 61669]]

sediment to streams during and after precipitation events. In addition, 
forest management operations often require miles of unpaved roads to 
extract timber and to provide access for management activities. The 
majority of sediment from forestry occurs from roads and site 
preparation activities (EPD 2007a, p. 11). These roads, in conjunction 
with existing unpaved county roads that are prevalent throughout the 
Altamaha River Basin, contribute to sediment loading in streams after 
precipitation events. Through an agreement with EPD, the Georgia 
Forestry Commission (GFC) is responsible for implementing the use of 
Best Management Practices (BMPs) to reduce erosion and sediment from 
activities related to forestry such as timber harvest, haul road 
construction, stream crossings, stream side management zones, site 
preparation and reforestation. However, the Erosion and Sediment 
Control Act (O.C.G.A. 12-7-1) exempts commercial forestry activities 
from the need to acquire permits and meet the minimum requirements of 
that act (Georgia's BMPs for Forestry 2009, p. 64). Therefore, 
compliance with BMPs is voluntary and is dependent on education about 
BMPs to reduce sediment from reaching the Altamaha River (EPD 2007a, p. 
28).
    Furthermore, a number of kaolin mines are located along the Fall 
Line, a geologic land form that separates the Piedmont and Coastal 
Plain physiographic provinces, within the Oconee and Ocmulgee river 
basins. The operation of these mines and their supporting 
infrastructure, including haul roads and settling ponds, have the 
potential to increase downstream sediment loads if adequate erosion 
control measures are not maintained to stabilize areas subjected to 
mining-associated ground disturbances (Lasier 2004, p. 139).
    In addition, sediment can act as a vector in delivering 
contaminants (such as heavy metals, ammonia, chlorine, numerous organic 
compounds) to streams (Salomons et al. 1987, p. 28; TNC 2004, pp. 9). 
Because spinymussels are filter-feeders and bury themselves in the 
substrate, they are exposed to metals dissolved in water, contained 
within suspended particles, and deposited in bottom substrates (Naimo 
1995, p. 341). Contaminants contained in point and nonpoint discharges 
can degrade water and substrate quality and adversely impact, if not 
destroy, mussel populations (Horne and McIntosh 1979, pp. 127-132; 
McCann and Neves 1992, pp. 80-87; Havlik and Marking 1987, p. 14).
    Contaminants associated with industrial and municipal effluents may 
cause decreased oxygen, increased acidity, and other water chemistry 
changes that may be lethal to mussels, particularly during the highly 
sensitive early life stages (Sheehan et al. 1989, pp. 139-140; Keller 
and Zam 1991, pp. 541-543; Bogan 1993, pp. 603-604; Goudreau et al. 
1993, pp. 216-227; TNC 2004, pp. 8-9). Exposure to sublethal levels of 
toxic metals can alter growth, filtration efficiency, enzyme activity, 
and behavior (Naimo 1995, pp. 341, 354). In laboratory experiments, 
mussels suffered mortality when exposed to 2.0 parts per million (ppm) 
cadmium, 5.0 ppm ammonia, 12.4 ppm chromium, 16 ppm arsenic trioxide, 
19 ppm copper, and 66 ppm zinc; however, effects depend upon the length 
of exposure and mussel life stage (Havlik and Marking 1987, p. 1). The 
adults of certain species may tolerate short-term exposure (Keller 
1993, p. 701), but low levels of some metals may inhibit glochidial 
attachment in others (Huebner and Pynnonen 1992, p. 2353; Jacobson et 
al. 1993, pp. 881-882). Mussel recruitment may be reduced in habitats 
with low but chronic heavy metal and other toxicant inputs (Yeager et 
al. 1994, p. 217; Naimo 1995, pp. 347 and 351-352; Ahlstedt and 
Tuberville 1997, p. 75). Researchers found that several heavy metals 
were found to have toxic effects at different levels and duration of 
exposure; however, no toxicity studies have been conducted specifically 
on the Altamaha spinymussel (Havlik and Marking 1987, p. 3; Naimo 1995, 
p. 341; Keller and Lydy 1997, p. 4). Furthermore, differences between 
laboratory and field conditions make it difficult to predict how 
contaminants affect wild populations (Wisniewski 2008, pers. comm.).
    From 2000 to 2008, many stream segments in the Altamaha Basin have 
been listed on the State's 303(d) list of impaired waters for a variety 
of reasons. Once a stream segment is listed as impaired, the State must 
complete a plan to address the issue causing the impairment; this plan 
is call a Total Maximum Daily Load (TMDL). Completion of the plan is 
generally all that is required to remove the stream segment from the 
303(d) list and does not mean that water quality has changed. Once the 
TMDL is completed, the stream segment may be placed on the 305(b) list 
of impaired streams with a completed TMDL. Many of these stream 
segments have appeared repeatedly on the 303(d) list. The Ohoopee River 
and Little Ohoopee River have been listed on nearly every report for 
almost every violation. Other stream segments that have repeatedly 
showed up on the 303(d) list from 2000 until 2008 include Big Cedar 
Creek, Doctors Creek, Jacks Creek, Milligan Creek, Oconee Creek, 
Pendleton Creek, Rocky Creek, Sardis Creek, Swift Creek, Tiger Creek, 
and Yam Gandy Creek. This demonstrates a chronic threat, from multiple 
sources of pollution, scattered across the basin.
    In 2000, the Altamaha River was listed on the 303(d) list of 
impaired waters due to excessive mercury levels in fish tissue. In 
2002, the EPA Region 4 established a TMDL for mercury levels for the 
Altamaha River from its confluence of the Oconee and Ocmulgee Rivers to 
Penholoway Creek (149.5 km/92.9 mi) including Appling, Jeff Davis, 
Long, Tattnall, Tombs, and Wayne Counties. This river segment is 
entirely within the current or historic range of the spinymussel with 
four National Pollutant Discharge Elimination System (NPDES) permitted 
facilities, including:
<bullet> Rayonier Inc.-Jesup (67 million gallons per day (MGD));
<bullet> Plant Hatch (43.4 MGD);
<bullet> Jesup Water Pollution Control Plant (WPCP) (2.5 MGD); and
<bullet> Glennville WPCP (0.88 MGD) (EPA 2002a, pp. 1-5).
    This 149.5 km (92.9 mi) segment of the Altamaha River, from the 
confluence of the Oconee and Ocmulgee Rivers to Penholloway Creek, was 
removed from the 303(d) list in 2002; it is currently listed as a 
stream supporting its designated use (fishing).
    In 2000, EPD added 23 stream segments, totaling 411.9 km (256 mi), 
to the 303(d) list for not meeting dissolved oxygen standards (EPD 
2002, p. 1). All of these segments are within tributaries to the 
Altamaha River within the range of the spinymussel. Between 2000-2001, 
there were nine NPDES permitted discharges with effluent limits for 
oxygen consuming substances identified in the Altamaha River Basin 
watershed above the 23 stream segments listed (EPD 2002, p. 11). 
Nonpoint source run-off from natural sources contributed oxygen-
demanding pollutants (EPD 2002, p. 12). Upon completion of a TMDL in 
2002, these river segments were removed from the 303(d) list.
    In 2006, EPD listed 18 stream segments totaling 280 km (174 mi) as 
impaired due to fecal coliform bacteria in excess of water quality 
standards (EPD 2007c, pp. 1-2). All of these stream segments are 
tributaries to the Altamaha River within the current or historic range 
of the species. Between 2005-2006, there were 10 municipal wastewater 
treatment plants that discharged more than 0.1 MGD, along with four 
confined animal feed operations that were considered sources

[[Page 61670]]

of fecal coliform. Nonpoint sources include wildlife, livestock 
grazing, livestock access to streams, application of manure to 
pastureland and cropland, leaking sanitary sewer lines, leaking septic 
systems, land application systems (6 in the basin), and landfills (43 
in the basin) (EPD 2007c, pp. 10-16). Even after the completion of the 
TMDL, six of these stream segments remain on the 303(d) list.
    In 2008, EPD listed 362 stream miles of tributaries to the Altamaha 
River to the 305(b)/303(d) list of impaired waters, and all of these 
stream segments have completed TMDLs (EPD 2008 pp A-130 - A134). The 
draft 2010 305(b)/303(d) list of impaired waters for the Altamaha River 
included all of the stream segments from the 2008 list and added an 
additional 48 km (30 mi). These are all tributaries to the Altamaha or 
Ohoopee Rivers within the current or historic range of the Altamaha 
spinymussel. These stream segments are listed as impaired for a variety 
of reasons (e.g., dissolved oxygen, fecal coliform, and mercury levels 
within fish tissue). All of these river segments, such as the Ohoopee 
River (including the historic range of the spinymussel), have TMDLs but 
are still considered impaired.
    More than 161 km (100 mi) of the Ohoopee River and its tributaries 
were added to the 303(d) list in 2000 due to excessive mercury levels 
in fish tissue. The primary source of mercury is believed to be 
deposition of atmospheric mercury. During 1998-1999, there were seven 
municipal wastewater treatment facilities (EPA 2002b, pp. 1-3) and as 
many as 170 sources of air emissions in the watershed (EPA 2002b, p. 
18). These sources of mercury impacted all of the extirpated range of 
the spinymussel on the Ohoopee River, which is a major tributary to the 
Altamaha River. A TMDL was established in 2002; however, based on 
additional information gathered since 2002, EPA will begin revising 
needed load reductions in 2011 (EPA 2002b, p. 2). These segments of the 
Ohoopee remain on the 303(d) list.
    In 2006, EPD added five stream segments, totaling 64.3 km (40 mi), 
within the Ohoopee drainage to the 303(d) list for not meeting 
dissolved oxygen standards (EPD 2007b, p. 1). All of these segments are 
within the range of the spinymussel. During 2004-2005, there were eight 
NPDES permitted discharges with effluent limits for oxygen-consuming 
substances identified in the Altamaha River Basin watershed (EPD 2007b, 
p. 10). There were four animal feeding lots and six wastewater land 
application operations that were identified as sources of oxygen-
demanding nutrients. Nonpoint source run-off from forestry, row crop 
agriculture, pastureland, urban development, and natural sources also 
contribute oxygen-demanding pollutants (EPD 2007b, pp. 13-15). Upon 
completion of a TMDL in 2007, these five river segments were removed 
from the 303(d) list.
    In addition, there have been a number of recent illegal effluent 
discharges into the Ohoopee that could have impacted the Altamaha 
spinymussel. For instance, the wastewater treatment discharge from 
Rogers State Prison enters the Ohoopee River approximately 10 km (6 mi) 
upstream of the largest historical population of Altamaha spinymussels 
known in the Ohoopee River. The Altamaha Riverkeeper reported fecal 
coliform discharges from the prison that exceeded the prison's NPDES 
permit (Holland 2002, pers. comm.).
    There have also been a number of recent illegal effluent discharges 
into the Ocmulgee River that could have impacted the Altamaha 
spinymussel. In 2001, a court found that Amercord Inc. had violated its 
NPDES permit multiple times at its Lumber City tire plant by 
discharging quantities of cyanide, copper, zinc, and lead into the 
Ocmulgee River in excess of permit limitations (Altamaha Riverkeeper v. 
Amercord, Inc., No. CV 300-042 (S.D. Ga) (Order on Motion for Partial 
Summary Judgment, Mar. 15, 2001)). In a second case, following 
allegations of discharges into the Ocmulgee River from Lumber City's 
waste treatment pond in excess of its NPDES permit, Lumber City agreed 
to implement several short- and long-term wastewater treatment 
improvements, which are expected to protect a population of Altamaha 
spinymussels (Altamaha Riverkeeper v. City of Lumber City, CV-300-043 
(S.D. Ga)). The Altamaha Riverkeeper, a watchdog group that works to 
maintain the quality of the Altamaha River system, also discovered that 
from July 1995 to April 2001, the City of Cochran's waste treatment 
pond had discharged in violation of its NPDES permit (Altamaha 
Riverkeepers v. City of Cochran, No. CV-447-2) (M.D. Ga.). The City had 
been releasing ferric sulfate (used to treat fecal coliform) into 
Jordan Creek, a tributary of the Ocmulgee River approximately 80 km (50 
mi) upstream of known populations of Altamaha spinymussels.
    Sediment loads in the Oconee River carry toxic loads of heavy 
metals presumably discharged from municipal wastewater treatment plants 
and kaolin-mining settling ponds (Lasier 2004, pp. 139-140,144-151). 
Wastewater treatment plants and kaolin mines often employ settling 
ponds to allow pollutants to settle and turbidity to decrease. Copper 
sulfate and aluminum sulfate are often used as algaecides, to reduce 
algae blooms, and as flocculants to force precipitation of turbid 
waters and, in water treatment processes, to improve the sedimentation 
or filterability of small particles.
    Lasier (2004, pp. 150-151) reported ``abnormally'' high levels of 
chromium, copper, mercury, and zinc in the lower Oconee river that 
would indicate a ``significant'' impact to the quality of sediment and 
pore water (the water in contact with the river bottom, and the water 
in which mussels reside). TNC (2004, p. 9) found water quality and 
sediment quality reflected ``significant'' inputs of pollution with 
concentrations of heavy metals (including cadmium, copper, chromium, 
lead, and zinc) at levels above regional and national concentrations. 
Shoults-Wilson (2008, pp. 86-92) sampled sites throughout the Altamaha 
River Basin to evaluate the presence of heavy metals in the water 
column and in the sediment and compared the bioaccumulation of heavy 
metals by Asian clams to E. hopetonensis (an Altamaha River endemic). 
Sampling of sites upstream and downstream of potential point sources of 
heavy metals demonstrated ``significantly'' elevated bioaccumulation of 
cadmium, copper, and mercury below inputs from kaolin processing, as 
well as elevated zinc and chromium below Plant Hatch, the Rayonier pulp 
mill in Jesup, Georgia, and the Amercord tire facility. Mussels in the 
Altamaha River basin may accumulate trace elements from the fine 
fraction of sediment as well as the water column.
    The cumulative effects of effluent from wastewater treatment plants 
and kaolin mines on Altamaha spinymussel habitat have not been 
quantified; however, mussels appear to be among the most intolerant 
organisms to heavy metals (Keller and Zam 1991, p. 545), and several 
heavy metals are lethal, even at relatively low levels (Havlik and 
Marking 1987, p. 3). Most metals are persistent in the environment, 
remaining available for uptake, transportation, and transformation by 
organisms until they are removed from the river (Hoover 1978, pp. 28-
38; Lasier 2004, p. 140) through processes such as washing out to sea, 
leaching through the soil, or being taken up by an organism that is 
then removed from the river.
    In areas of heavy agricultural use in the Southeast, surface run-
off can move pesticides, including malathion and

[[Page 61671]]

other insecticides, into surface water (McPherson et al. 2003, pp. 1-
2). Stream ecosystems are negatively impacted when nutrients are added 
at concentrations that cannot be assimilated (TNC 2004, p. 7). The 
effects of pesticides on mussels may be particularly profound, 
potentially altering metabolic activities or resulting in delayed 
mortality (Fuller 1974, pp. 252-253; Havlik and Marking 1987, pp. 9-11; 
Moulton et al. 1996, pp. 132-136); commonly used pesticides have been 
directly implicated in a North Carolina mussel die-off (Fleming et al. 
1995, pp. 877-879). The Oconee, Ocmulgee, and Ohoopee River systems 
contain significant acreage in cotton and onion farming. Malathion, one 
of the most important pesticides used in cotton farming, inhibits 
physiological activities of mussels (Kabeer et al. 1979, pp. 71-72) and 
may decrease the ability of mussels to respire and obtain food. Some 
studies have shown that malathion is slightly toxic to some very 
pollution-intolerant juvenile mussels (Lampsilis straminea 
claibornensis) at minimum concentrations of 22,000 ppm. Elliptio 
icterina had slight problems with minimum concentrations of 30,000 ppm 
with 96-hour exposure periods.
    The operations of the Edwin I. Hatch Nuclear Power Plant (Plant 
Hatch), located on the Altamaha River in Appling County, may pose a 
threat to the Altamaha spinymussel. On September 14, 2001, the Service 
received Joint Public Notice 940003873 from the U.S. Army Corps of 
Engineers (Corps), Savannah District, describing a project to expand 
and maintain Plant Hatch's intake basin within the Altamaha River. 
Implementation of this permit authorized annual dredging of the plant 
intake basin and authorized removing 33,965 cubic meters (44,424 cubic 
yards) of material biannually from the intake basin. While the amount 
of material removed annually is generally far less than the amount 
permitted (Dodd 2008, pers. comm.), annual dredging could negatively 
impact the Altamaha spinymussel by decreasing channel stability 
(creating a potential head cut), altering sediment transport dynamics, 
increasing sedimentation and turbidity downstream during dredging 
operations, and decreasing habitat quality for host fishes. It is 
unknown how far downstream these impacts extend.
    Impacts to aquatic fauna through entrainment of potential host 
fishes and thermal discharges may also occur. Plant Hatch takes in 
water to create steam, and then uses the steam to generate electricity. 
Following a cooling process, the water is returned to the river, and 
although it has been cooled, the water temperature is warmer than the 
ambient temperature of the river. Plant Hatch has made substantial 
efforts to reduce thermal discharges through the construction of 
cooling towers that have significantly reduced the thermal plume. 
However, thermal discharges could still negatively impact the Altamaha 
spinymussel from heat stress; higher water temperatures can increase 
the sensitivity of mussels to certain pollutants (Augspurger et al. 
2003, p. 2574). These effects would be exacerbated during years of low 
rainfall, when less water would be available to dissipate the heat of 
the Plant Hatch effluent. Plant Hatch also monitors fish entrainment, 
so if the host fish of the spinymussel was known, management efforts 
could be made to reduce the potential of this impact.
    In summary, the loss and modification of habitat is a significant 
threat to the Altamaha spinymussel. Degradation from sedimentation and 
contaminants threatens the habitat and water quality necessary to 
support the Altamaha spinymussel. Sediment from unpaved roads, kaolin 
mines, past and current agriculture practices, silviculture, and 
construction sites within the Altamaha River basin can suffocate 
Altamaha spinymussels and make stable sandbars required by Altamaha 
spinymussels unstable or change the texture of the substrate, rendering 
them unsuitable for the species. Contaminants associated with 
industrial and municipal effluents (e.g., heavy metals, ammonia, 
chlorine, numerous organic compounds) may cause decreased oxygen, 
increased acidity, and other water chemistry changes that are lethal to 
mussels, particularly the highly sensitive early life stages of 
mussels; exposure to sublethal levels of toxic metals can alter growth, 
filtration efficiency, enzyme activity, and behavior. As a result we 
have determined that the present or threatened destruction, 
modification, or curtailment of the Altamaha spinymussel's habitat or 
range are threats to the continued existence of the Altamaha 
spinymussel throughout its range.

B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes

    The Altamaha spinymussel is not a commercially valuable species, 
nor are the streams that it inhabits subject to commercial mussel 
harvesting activities. However, this species has been actively sought 
for scientific and private collections (Keferl 2008, pers. comm.); such 
activity may increase if the species becomes more rare. Overcollection 
may have been a localized factor in the decline of this species, 
particularly in the Ohoopee River where a 1986 collection consisted of 
at least 30 live individuals (Keferl 2008, pers. comm.). Although the 
GDNR can regulate the number of mussels collected with a Scientific 
Collection Permit, the localized distribution and small size of known 
populations renders them extremely vulnerable to overzealous 
recreational or scientific collecting. However, we have no specific 
information indicating that overcollection is currently a threat or 
that overcollecting may occur in the future.
    Therefore, we find that overutilization for commercial, 
recreational, scientific, or educational purposes is not a threat to 
the Altamaha spinymussel at this time.

C. Disease or Predation

    Diseases of freshwater mussels are poorly known, and we have no 
specific information indicating that disease occurs within Altamaha 
spinymussel populations or poses a threat. Juvenile and adult mussels 
are preyed upon by some invertebrate species (particularly as newly 
metamorphosed juveniles), parasites (for example, nematodes, 
trematodes, and mites), and a few vertebrate species (for example, 
otter, raccoon, and turtles). However, we have no evidence of any 
specific declines in the Altamaha spinymussel due to predation.
    In summary, diseases and predation of freshwater mussels remains 
largely unstudied and are not considered a threat to the Altamaha 
spinymussel.

D. The Inadequacy of Existing Regulatory Mechanisms

    The Altamaha spinymussel is listed as a high priority species by 
the State of Georgia (GDNR 2005, p. 135) and has recently been listed 
as Endangered under Georgia's Endangered Wildlife Act (EWA). Under the 
EWA, it is unlawful to intentionally harm, disturb or sell a protected 
animal, unless authorized, or to cause the destruction of habitat of 
protected animals on State-owned lands. The EWA specifically states, 
however, that rules and regulations promulgated under the EWA shall not 
impede construction of any nature. Thus, protection under the EWA 
prevents unlawful capture or killing of the listed species, but does 
not prevent habitat changes that lead to population loss.
    Sources of nonpoint source pollution include timber clearcutting, 
clearing of

[[Page 61672]]

riparian vegetation, urbanization, road construction, and other 
practices that allow sediment to enter streams (TNC 2004, p. 13). 
Although BMPs for sediment and erosion control are often recommended or 
required by local ordinances for construction projects, compliance, 
monitoring, and enforcement of these recommendations are often poorly 
implemented. Furthermore, Georgia's Erosion and Sediment Control Act 
exempts commercial forestry activities from the need to acquire permits 
and meet the minimum requirements of the Erosion and Sediment Control 
Act (Georgia's BMPs for Forestry 2009, p. 64). Therefore, compliance 
with BMPs is voluntary and is dependent on education on proper 
implementation of BMPs to reduce sediment from reaching the Altamaha 
River (EPD 2007a, p. 28). Although historical row crop-based land use 
contributes the majority of sediment to the Altamaha River, other 
sources continue to contribute to the total sediment load (See 
discussion under Factor A).
    Point source discharges within the range of the Altamaha 
spinymussel have been reduced since the inception of the Federal Clean 
Water Act (33 U.S.C. 1251 et seq.), but this may not provide adequate 
protection for filter-feeding organisms that can be impacted by 
extremely low levels of contaminants. Municipal wastewater plants 
continue to discharge large amounts of effluent and, in some 
circumstances, in excess of permitted levels (see discussion under 
Factor A). There is no specific information on the sensitivity of the 
Altamaha spinymussel to common industrial and municipal pollutants, and 
very little information on other freshwater mollusks. Current State and 
Federal regulations regarding pollutants are assumed to be protective 
of freshwater mollusks; however, this species may be more susceptible 
to some pollutants than test organisms commonly used in bioassays. For 
example, several recent studies have suggested that EPA's criteria for 
ammonia may not be protective of freshwater mussels (Augspurger et al. 
2003, p. 2571; Newton et al. 2003, pp. 2559-2560; Mummert et al. 2003, 
pp. 2548-2552). In a review of the effects of eutrophication on 
mussels, Patzner and Muller (2004, p. 329) noted that stenoecious 
(narrowly tolerant) species disappear as waters become more eutrophic. 
They also refer to studies that associate increased levels of nitrate 
with the decline and absence of juvenile mussels (Patzner and Muller 
2004, pp. 330-333). Other studies have also suggested that early life 
stages of mussels are sensitive to inorganic chemicals such as 
chlorine, metals, and ammonia (Keller and Zam 1991, pp. 543-545; 
Goudreau et al. 1993, p. 221; Naimo 1995, pp. 354-355). Therefore, it 
appears that a lack of adequate research and data prevents existing 
regulations, such as the Clean Water Act (administered by the EPA and 
the Corps), from being fully utilized or effective.
    In summary, some regulations exist that protect the species and its 
habitat; however, these regulations enforced by the State provide 
little direct protection of Altamaha spinymussel and only if protection 
of the spinymussel will not inhibit economic development. Nonpoint 
source pollution is not regulated, and the Clean Water Act does not 
adequately protect the habitat from degradation caused by point source 
pollutants. As described under Factor A, there have been a number of 
recent illegal effluent discharges into the Altamaha River basin, in 
excess of permit limits, that may have impacted the Altamaha 
spinymussel. Furthermore, The Altamaha Riverkeeper has several pending 
investigations pertaining to illegal discharges; they are working with 
violators and pursuing legal settlements when necessary. Thus, existing 
regulations are not effective at protecting the spinymussel and its 
habitat from sedimentation and lethal contaminants. Therefore we find 
the existing regulatory mechanisms are inadequate to ameliorate the 
current threats to the Altamaha spinymussel throughout its range.

E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Withdrawal of surface water within the Altamaha Basin for 
thermoelectric power generation, public water supplies, commercial 
industrial uses, and agriculture has a dramatic effect on flow rates 
(TNC 2004, p. 8). No major dams are located on the Altamaha River 
system within the known historical range of the Altamaha spinymussel; 
however, the dams that form Sinclair Reservoir on the Oconee River and 
Jackson and Tobesofkee Reservoirs in the Ocmulgee River basin can 
influence downstream mussels and their populations through changes in 
flows that result from electrical power generation and water storage 
(TNC 2004, p. 6). Within the Altamaha River basin, 1,149 MGD was 
withdrawn for thermoelectric power generation in 1990 (Marella and 
Fanning 1990, pp. 14-17). Such removals can cause drastic flow 
reductions and alterations that may strand mussels on sandbars, 
resulting in mortality of individuals and harm to populations. Laurens 
County, Georgia, which includes the City of Dublin, withdrew 2.64 MGD 
for public water supplies, 12.79 MGD for commercial industrial use, and 
5.57 MGD for agricultural uses in 1990 (Marella and Fanning 1990, p. 
16) In 1990, the total amount of surface water withdrawn from the 
Altamaha River basin was 1,315.88 MGD (Marella and Fanning 1990, p. 
61). As development pressures continue to grow, water withdrawals are 
expected to increase.
    Drought conditions were prevalent in Georgia between 1998 and 2002, 
and again in 2007 and 2008, which may have negatively affected the 
Altamaha spinymussel. Georgia averages 127 cm (50 in) of precipitation 
annually (U.S. Geological Survey 1986, p. 195; GDNR 2005, p. 41) but 
received less than 102 cm (40 in) of precipitation annually during 
recent droughts in 2000, 2002, and 2007 (Knaak and Joiner 2007, pp. 1-
2). The Ohoopee River and many other streams in the basin suffered 
reduced flow rates, and the Ohoopee River was reported to have low 
water levels with an estimated average depth of 15 cm (6 in) in the 
main channel during summer surveys (Stringfellow and Gagnon 2001, p. 
3). Normally, mussels will bury themselves in the river bottom as a 
mechanism to survive a drought, but many mussels may have died from 
desiccation during this prolonged drought (Keferl 2008, pers. comm.). 
Although the effects of the drought on the Altamaha spinymussel have 
not been quantified, mussel declines as a direct result of drought have 
been documented ( Golladay et al. 2004, p. 494; Haag and Warren 2008, 
p. 1165). Furthermore, there is a growing concern that climate change 
may lead to increased frequency of severe storms and droughts (Golladay 
et al. 2004, p. 504; McLaughlin et al. 2002, p. 6074; Cook et al. 2004, 
p. 1015). Reduction in local water supplies due to drought is also 
compounded by increased human demand and competition for surface and 
ground water resources for power production, irrigation, and 
consumption (Golladay et al. 2004, p. 504).
    In addition, low flow conditions provide access to the river 
margins and channels for all-terrain vehicles (ATV) and four-wheel 
drive vehicles (TNC 2004, p. 12; Stringfellow and Gagnon 2001, p. 3). 
During a survey in 2001, Stringfellow and Gagnon (2001, p. 3) observed 
heavy ATV and four-wheel drive vehicle traffic and high levels of 
erosion near bridges and homes. They encountered several groups of ATV 
users, 2 to 12 persons per group, riding in the river channel. Because 
water

[[Page 61673]]

levels were so low, ATV use of the stream extended to all portions of 
the channel, including pools, runs, and dried sandbars. Observations on 
the Ohoopee River during low flow in October of 2006 revealed extensive 
ATV traffic that destroyed mussel beds (Rickard 2006, personal 
observation). These vehicles may directly crush mussels and may also 
destabilize stream banks and increase sedimentation rates, burying 
mussels or impairing feeding, respiration, metabolism, and reproductive 
success (Stringfellow and Gagnon 2001, p. 3).
    Nonindigenous species such as the flathead catfish (Pylodictis 
olivaris) and the Asian clam (Corbicula fluminea) have been introduced 
to the Altamaha Basin and may be adversely affecting the Altamaha 
spinymussel. Flathead catfish are fast-growing fish that are dominant 
predators in river systems and are usually exclusively piscivorous in 
their adult stage (Bourret et al. 2008, p. 413; Sakaris et al. 2006, p. 
867). Since its introduction outside its native range, the flathead 
catfish has altered the composition of native fish populations through 
predation (Bourett et al. 2008, p. 413; Sakaris et al. 2006, p. 867; 
Sea Grant, 2006, p. 2; Pine et al. 2005, p. 902). Flatheads were 
introduced to the Altamaha Basin in the 1970s (USGS 2009, unpaginated). 
Although the host fish or fishes of the Altamaha spinymussel have not 
been identified, in other native freshwater mussels, various 
centrachids (sunfish), ictalurids (catfish), and catostomids (suckers) 
have been identified as hosts of the larvae. Other species of mussels 
in the genus Elliptio are known to parasitize various species of 
Etheostoma and Percina (darters), and other stream-adapted fish species 
(Haag and Warren 2003, p. 80). Flatheads introduced in the Altamaha 
River eliminated bullhead catfish (Ameiurus sp.) and caused an 80 
percent decline in redbreast sunfish (Lepomis auritus) (Sea Grant 2006, 
p. 2); centrarchids and ictalurids were dominant prey items (Sakaris 
2006, p. 867). Other potential centrachid host fish such as the 
largemouth bass (Micropterus salmoides) and bluegill (L. macrochirus) 
have all suffered population declines (Harrison 2001, pers. comm.), as 
well as the robust redhorse (Moxostoma robustum), shortnose sturgeon 
(Acipenser brevirostrum), and shad (Alosa sapidissima) (TNC 2004, p. 
5). If one or more of these species is the host fish for the Altamaha 
spinymussel, the spinymussel's breeding success and recruitment could 
be reduced (Keferl 2001, pers. comm).
    Asian clams (Corbicula) were observed in the Altamaha River in 
1971, and are believed to have been introduced in the Ocmulgee River in 
1968 or 1969 (Gardner 1976, p. 117). Surveys have found large numbers 
of Asian clams (Corbicula) in the Altamaha Basin for more than 25 years 
(Gardner et al. 1976, pp. 118-124; Stringfellow and Gagnon 2001, p. 2; 
O'Brien, pers. comm., 2001). The invasion of Corbicula in the Altamaha 
River has been accompanied by drastic declines in populations of native 
mussels (Gardner 1976, p. 124). Asian clams may pose a direct threat to 
native species through competition for available resources (space, 
minerals, or food), resulting in a decline or local extinction of 
native mussels (Williams et al. 1993, p. 7; Bogan 1993, p. 605).
    The linear nature of the Altamaha spinymussel's habitat, reduced 
range, and very small population size make this species vulnerable to 
random detrimental or catastrophic events. Small, isolated populations 
may experience decreased demographic viability (population birth and 
death rates, immigration and emigration rates, and sex ratios), 
increased susceptibility of extinction from stochastic environmental 
factors (e.g., weather events, disease), and an increased threat of 
extinction from genetic isolation and subsequent inbreeding depression 
and genetic drift. Surviving populations of spinymussels are small, 
extremely localized, and vulnerable to habitat modification, toxic 
spills, progressive degradation from contaminants (see discussions 
under Factors A and D), and natural catastrophic changes to their 
habitats (for example, flood scour and drought). Low numbers of 
individuals may also increase inbreeding and reduce genetic diversity 
(Lynch 1996, pp. 493-494).
    In summary, a variety of natural and manmade factors currently 
threatens the Altamaha spinymussel. Withdrawal of surface water within 
the Altamaha Basin for thermoelectric power generation, public water 
supplies, commercial industrial uses, and agriculture can cause drastic 
flow reductions and alterations that may strand mussels on sandbars, 
resulting in mortality of individuals and harm to populations. 
Recurring drought and water withdrawal, combined with impacts of off-
road vehicles, has reduced flows and destabilized stream banks required 
to support this mussel. Nonindigenous species, such as flathead catfish 
and the Asian clam, have potentially adversely impacted populations of 
the spinymussel's host fish, thereby affecting recruitment, and may 
directly impact the spinymussel through competition for resources. 
Lastly, because the Altamaha spinymussel population is so small and 
isolated, any factor (i.e., habitat change or natural and manmade 
factors) that results in a decline in habitat or individuals may be 
problematic for the long-term recovery of this species. Therefore, we 
have determined that other natural and manmade factors are threats to 
the continued existence of the Altamaha spinymussel throughout its 
range.

Determination

    We have carefully assessed the best scientific and commercial 
information available regarding the past, present, and future threats 
to the Altamaha spinymussel. Section 3 of the Act defines an 
``endangered species'' as ``any species which is in danger of 
extinction throughout all or a significant portion of its range'' and a 
``threatened species'' as ``any species which is likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range.'' As described in detail above, the 
species is currently at risk throughout all of its range due to ongoing 
threats of habitat destruction and modification (Factor A), inadequacy 
of existing regulatory mechanisms (Factor D), and other natural or 
manmade factors affecting its continued existence (Factor E). This 
species' extremely low and isolated populations make it particularly 
susceptible to extinction at any time due to threats described under 
Factors A, D, and E.
    The Altamaha spinymussel has only been observed at 22 sites since 
2000, despite extensive survey efforts made by several different 
researchers. Most of these sites are clustered geographically within 
short reaches of the lower Ocmulgee River and the Altamaha River 
upstream of U.S. Route 301, and there are long reaches with no or 
undetectable numbers of Altamaha spinymussels separating these groups 
of sites. Recent surveys of the Ohoopee River and the analysis 
presented by Wisniewski et al. (2005) suggest that the species may 
still be declining. Finally, the comparatively low numbers of Altamaha 
spinymussels collected during recent surveys of the Altamaha and 
Ocmulgee Rivers further suggests that this species has declined from 
historical levels. To summarize, researchers were able to find 60 
Altamaha spinymussels at a single site on the Altamaha River in 1967; 
in contrast, the largest number of Altamaha spinymussels observed from 
a single site on the Altamaha River during the

[[Page 61674]]

1990s or 2000s was nine (Albanese 2005, pers. comm.).
    The remaining small spinymussel populations are threatened by a 
variety of factors that are expected to persist indefinitely and 
impact, or have the potential to impact, remaining spinymussel habitat. 
These factors include siltation, industrial pollution, municipal 
effluents, modification of stream channels, pesticides, heavy metals, 
invasive species, loss of host fish, water withdrawal, recurring 
drought, and loss of genetic viability. In addition, as described under 
Factor D, existing regulatory mechanisms are inadequate to ameliorate 
the current threats to the Altamaha spinymussel and its habitat. We 
believe the remaining small, isolated populations of spinymussels are 
not large enough to be resilient against any of the above factors 
acting on the species itself or its habitat. Furthermore, we believe 
these threats, particularly the threats to populations resulting from 
habitat degradation, small population size, and drought, are current 
and are projected to continue into the future. If the present trends 
that negatively affect the species and its limited and restricted 
habitat continue, the Altamaha spinymussel is in immediate danger of 
extinction throughout all of its range.
    Therefore, on the basis of the best available scientific and 
commercial information, we propose to list the Altamaha spinymussel as 
an endangered species throughout all of its range. Furthermore, because 
we find that the Altamaha spinymussel is endangered throughout all of 
its range, there is no reason to consider its status in a significant 
portion of its range. Consequently, we are proposing to list the 
Altamaha spinymussel as an endangered species under the Act.

Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (i) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (I) essential to the conservation of the species and
    (II) which may require special management considerations or 
protection; and
    (ii) specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided under the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against Federal agencies carrying out, funding, 
or authorizing the destruction or adverse modification of critical 
habitat. Section 7(a)(2) 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 non-Federal landowners. Where a landowner seeks or requests 
Federal agency funding or authorization for an action that may affect a 
listed species or critical habitat, the consultation requirements of 
section 7(a)(2) of the Act would apply, but even in the event of a 
destruction or adverse modification finding, Federal action agency's 
and the applicant's obligation is not to restore or recover the 
species, but to implement reasonable and prudent alternatives to avoid 
destruction or adverse modification of critical habitat.
    For inclusion in a critical habitat designation, the habitat within 
the geographical area occupied by the species at the time it was listed 
must contain the physical and biological features essential to the 
conservation of the species, and be included only if those features may 
require special management considerations or protection. Critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, habitat areas that provide 
essential life cycle needs of the species (areas on which are found the 
physical and biological features (PBFs) essential for the conservation 
of the species). Under the Act and regulations at 50 CFR 424.12, we can 
designate critical habitat in areas outside the geographical area 
occupied by the species at the time it is listed only when we determine 
that those areas are essential for the conservation of the species and 
that designation limited to those areas occupied at the time of listing 
would be inadequate to ensure the conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality 
Guidelines, provide criteria, establish procedures, and provide 
guidance to ensure that our decisions are based on the best scientific 
data available. They require our biologists, to the extent consistent 
with the Act and with the use of the best scientific data available, to 
use primary and original sources of information as the basis for 
recommendations to designate critical habitat.
    When we are determining which areas we should designate as critical 
habitat, our primary source of information is generally the information 
developed during the listing process for the species. Additional 
information sources may include 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.
    Habitat is often dynamic, and species may move from one area to 
another over time. In particular, we recognize that climate change may 
cause changes in the arrangement of occupied habitat river reaches. 
Climate change may lead to increased frequency and duration of severe 
storms and droughts (Golladay et al. 2004, p. 504; McLaughlin et al. 
2002, p. 6074; Cook et al. 2004, p. 1015). Drought conditions in 2000-
2001 and 2007-2008 greatly reduced the habitat of the spinymussel in 
the Ohoopee River and rendered the populations vulnerable to 
anthropogenic disturbances, such as water extraction and vehicles 
within the riverbed (Keferl 2008, pers. comm.; Stringfellow and Gagnon 
2001, p. 3).
    The information currently available on the effects of global 
climate change and increasing temperatures does not make sufficiently 
precise estimates of

[[Page 61675]]

the location and magnitude of the effects. Nor are we currently aware 
of any climate change information specific to the habitat of the 
Altamaha spinymussel that would indicate what areas may become 
important to the species in the future. Therefore, we are unable to 
determine what additional areas, if any, may be appropriate to include 
in the proposed critical habitat for this species; however, we 
specifically request information from the public on the currently 
predicted effects of climate change on the Altamaha spinymussel and its 
habitat. Furthermore, we recognize that designation of critical habitat 
may not include all of the habitat areas we may eventually determine, 
based on scientific data not now available to the Service, that are 
necessary for the recovery of the species. For these reasons, a 
critical habitat designation does not signal that habitat outside the 
designated area is unimportant or may not be required for recovery of 
the species.
    Areas that are important to the conservation of the species, but 
are outside the critical habitat designation, will continue to be 
subject to conservation actions we implement under section 7(a)(1) of 
the Act. These areas are also subject 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 
agency action. 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 (HCPs), or other 
species conservation planning efforts if new information available to 
these planning efforts calls for a different outcome.

Prudency Determination

    Section 4 of the Act, as amended, and implementing regulations (50 
CFR 424.12), require that, to the maximum extent prudent and 
determinable, the Secretary designate critical habitat at the time the 
species is determined to be endangered or threatened. Our regulations 
at 50 CFR 424.12(a)(1) state that the designation of critical habitat 
is not prudent when one or both of the following situations exist: (1) 
The species is threatened by taking or other activity and the 
identification of critical habitat can be expected to increase the 
degree of threat to the species; or (2) the designation of critical 
habitat would not be beneficial to the species.
    As we have discussed above under the Factor B analysis, there is 
currently no imminent threat of take attributed to collection or 
vandalism for this species. Moreover, we have no information to 
indicate that identification of critical habitat is expected to 
initiate such a threat to the species. Critical habitat designation 
identifies those physical and biological features of the habitat 
essential to the conservation of the Altamaha spinymussel that may 
require special management and protection. Accordingly, this 
designation will provide information to individuals, local and State 
governments, and other entities engaged in activities or long-range 
planning in areas essential to the conservation of the species. 
Conservation of the Altamaha spinymussel and essential features of its 
habitat will require habitat management, protection, and restoration, 
which will be facilitated by knowledge of habitat locations and the 
physical and biological features of the habitat. Based on this 
information, we believe critical habitat would be beneficial to this 
species. Therefore, we have determined that the designation of critical 
habitat for the Altamaha spinymussel is prudent.
    We have reviewed the available information pertaining to the 
historical distribution of the Altamaha spinymussel, and the 
characteristics of the habitat in which it currently survives. This and 
other information represent the best scientific and commercial data 
available and lead us to conclude that we have sufficient information 
necessary to identify specific areas that meet the definition of 
critical habitat. Therefore, we have determined that the designation of 
critical habitat is determinable for the Altamaha spinymussel.

Methods

    As required by section 4(b) of the Act, we used the best scientific 
data available in determining occupied areas that contain the features 
that are essential to the conservation of the Altamaha spinymussel, and 
unoccupied areas that are essential for the conservation of the 
Altamaha spinymussel.
    We have reviewed the available information pertaining to historical 
and current distribution, life history, and habitat requirements of 
this species. Our sources included: Peer-reviewed scientific 
publications; unpublished survey reports; unpublished field 
observations by the Service, State, and other experienced biologists; 
and notes and communications from qualified biologists or experts.

Physical and Biological Features

    In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act 
and regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied at the time of listing to propose as 
critical habitat, we consider the physical and biological features 
essential to the conservation of the species which may require special 
management considerations or protection. These include, but are not 
limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, and rearing of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distribution of a species.
    We consider the physical and biological features to be the primary 
constituent elements (PCEs) laid out in the appropriate quantity and 
spatial arrangement essential for the conservation of the species. We 
derive the PCEs from the biological needs of the species as described 
in the Background section of this proposal. Unfortunately, little is 
known of the specific habitat requirements for the Altamaha spinymussel 
other than that they require flowing water, stable river channels, and 
adequate water quality. Altamaha spinymussel mussel larvae also require 
a currently unknown fish host for development to juvenile mussels. To 
identify the physical and biological needs of the species, we have 
relied on current conditions at locations where the species survive, 
the limited information available on this species and its close 
relatives, and factors associated with the decline and extirpation of 
these and other aquatic mollusks from extensive portions of the 
Altamaha River Basin.

Space for Individual and Population Growth and for Normal Behavior

    The Altamaha spinymussel is historically associated with the main 
stem of the Altamaha River and its larger tributaries (greater than 500 
cubic feet per second (cfs) Mean Monthly Discharge (MMD)), and does not 
occur in smaller tributaries. Spinymussels are generally associated 
with stable, coarse to fine sandy sediments of sandbars, sloughs, and 
mid-channel islands, and

[[Page 61676]]

they appear to be restricted to swiftly flowing water (Sickel 1980, p. 
12). Sandbars, sloughs, and mid-channel islands provide space for the 
spinymussel and also provide cover, shelter, and sites for breeding, 
reproduction, and growth of offspring. Sandbars, sloughs, and mid-
channel islands are dynamic habitats formed and maintained by water 
quantity, channel slope, and sediment input to the system through 
periodic flooding, which maintains connectivity and interaction with 
the flood plain. Changes in one or more of these parameters can result 
in channel degradation or channel aggradation, with serious effects to 
mollusks. Therefore, we believe that stream channel stability and 
floodplain connectivity are essential to the conservation of the 
Altamaha spinymussel.

Water

    The Altamaha spinymussel is a riverine-adapted species that depends 
upon adequate water flow and is not found in ponds or lakes. 
Continuously flowing water is a habitat feature associated with all 
surviving populations of this species. Flowing water maintains the 
river bottom, sandbars, sloughs, and mid-channel islands habitat where 
this species is found, transports food items to the sedentary juvenile 
and adult life stages of the Altamaha spinymussel, removes wastes, and 
provides oxygen for respiration for this species.
    The ranges of standard physical and chemical water quality 
parameters (such as temperature, dissolved oxygen, pH, and 
conductivity) that define suitable habitat conditions for the Altamaha 
spinymussel have not been investigated. However, as relatively 
sedentary animals, mussels must tolerate the full range of such 
parameters that occur naturally within the streams where they persist. 
Both the amount (flow) and the physical and chemical conditions (water 
quality) where this species currently exists vary widely according to 
season, precipitation events, and seasonal human activities within the 
watershed. Conditions across their historical ranges vary even more due 
to geology, geography, and differences in human population densities 
and land uses. In general, the species survives in areas where the 
magnitude, frequency, duration, and seasonality of water flow is 
adequate to maintain stable sandbar, slough, and mid-channel island 
habitats (for example, sufficient flow to remove fine particles and 
sediments without causing degradation), and where water quality is 
adequate for year-round survival (for example, moderate to high levels 
of dissolved oxygen, low to moderate input of nutrients, and relatively 
unpolluted water and sediments). Therefore, adequate water flow and 
water quality (as defined below) are essential to the conservation of 
the Altamaha spinymussel.
    A natural flow regime that includes periodic flooding and maintains 
connectivity and interaction with the flood plain is critical for the 
exchange of nutrients, spawning activities for potential host fish, and 
sand bar maintenance. In 2007, persistent severe drought conditions 
throughout the southeastern United States created record low discharges 
(streamflow) in the Altamaha River at the U.S. Geological Survey (USGS) 
gauge station in Doctortown, Georgia. During the driest portions of the 
2006-2009 drought period, the lowest discharges observed were 25 
percent of the MMD for the 77-year period of record for the Doctortown 
gauge. Despite record low flows, native unionids (mussels) appeared to 
persist and thrive throughout most of the Lower Altamaha River Basin.
    The numeric standards for pollutants and water quality parameters 
(for example, dissolved oxygen, pH, heavy metals) that have been 
adopted by the State of Georgia under the Clean Water Act (33 U.S.C. 
1251 et seq.) represent levels that were established for human 
protection. Some of these standards (particularly organic and heavy 
metal contaminates) may not adequately protect Altamaha spinymussels, 
or are not being appropriately measured, monitored, or achieved in some 
reaches (see discussions under Factors A and D). While, Georgia's pH 
criterion is a range of 6.0 to 8.5 under the adopted State standards, 
data compiled by the GDNR indicate that pH at 159 sites in the Altamaha 
River Basin averaged 6.9 and ranged from 4.9 to 9.1, which means many 
sites are outside of the range adopted by the State. Potential 
contaminants such as ammonia may be more lethal at pH levels at the 
edges of the observed range. Therefore, we removed outliers from this 
data set by generating the 10\th\ and 90\th\ percentiles for pH, which 
were 6.1 to 7.7 standard units. These levels are likely more 
representative of natural pH levels associated with the Altamaha River 
Basin and would likely reduce lethal contaminant associations between 
other chemicals in the watershed.
    Current Georgia TMDLs for waters supporting warm-water fishes 
require a daily average dissolved oxygen (DO) concentration of 5.0 mg/l 
and a minimum of 4.0 mg/l. The mean DO concentration of 217 
measurements made in known spinymussel sites throughout the Altamaha 
River basin was 8.7 mg/l and ranged from 0.42 mg/l to 33.1 mg/l. The 
10\th\ and 90\th\ percentiles for DO were 4.5 and 10.7 mg/l, which are 
similar to the observations of Golladay et al. (2004, pp. 501-503). A 
daily average DO concentration of 5.0 mg/l and a minimum DO 
concentration of 4.5 mg/l should provide adequate protection for the 
Altamaha spinymussel.
    Other factors that can potentially alter water quality are droughts 
and periods of low flow, nonpoint source run-off from adjacent land 
surfaces (for example, excessive amounts of nutrients, pesticides, and 
sediment), and random spills or unregulated discharge events. This 
could be particularly harmful during drought conditions when flows are 
depressed and pollutants are more concentrated. Adequate water quality 
is essential for normal behavior, growth, and viability during all life 
stages of the Altamaha spinymussel.

Food

    Unionid mussels, such as the Altamaha spinymussel, filter algae, 
detritus, and bacteria from the water column (Williams et al. 2008, p. 
67). Although the life history of the Altamaha spinymussel has not been 
studied, the life histories of other mussels in the Elliptio genus 
indicate that adult freshwater mussels are filter-feeders, siphoning 
phytoplankton, diatoms, and other microorganisms from the water column. 
For the first several months, juvenile mussels employ pedal (foot) 
feeding, extracting bacteria, algae, and detritus from the sediment 
(Yeager et al. 1994, pp. 217-221; Wisniewski 2008, pers. comm.). Food 
availability and quality for the Altamaha spinymussel in sandbars, 
sloughs, and mid-channel island habitats are affected by habitat 
stability, floodplain connectivity, flow, and water quality.

Sites for Breeding, Reproduction, or Rearing

    Freshwater mussels require a host fish for transformation of larval 
mussels (glochidia) to juvenile mussels (Williams et al. 2008, p. 68); 
therefore, presence of the appropriate host fish is essential to the 
conservation of the Altamaha spinymussel. The specific fish host(s) for 
the Altamaha spinymussel is currently unknown; however, other species 
of mussels in the genus Elliptio are known to parasitize various 
species of Etheostoma, Percina, and other stream-adapted fish species 
(Haag and Warren 2003, p. 80). Eighty-five fish species representing 22 
families are

[[Page 61677]]

native to the Altamaha River Basin. Five families account for 65 
percent of the native fish species in the Altamaha River Basin. The 
family Cyprinidae comprises 20 percent of the fish species, while 
Centrarchidae, Catostomidae, Ictaluridae, and Percidae comprise 15 
percent, 12 percent, 11 percent, and 8 percent of the species, 
respectively. These families are known to be suitable hosts for most 
unionids in North America. All 85 species native to the Altamaha River 
Basin are still present within the basin.
    Juvenile Altamaha spinymussels require stable sandbar, slough, and 
mid-channel island habitats for growth and survival. Excessive 
sediments or dense growth of filamentous algae can expose juvenile 
mussels to entrainment or predation and be detrimental to the survival 
of juvenile mussels (Hartfield and Hartfield 1996, pp. 372-374). 
Geomorphic instability can result in the loss of interstitial habitats 
and juvenile mussels due to scouring or deposition (Hartfield 1993, pp. 
372-373). Therefore, stable sandbar, slough, and mid-channel island 
habitats with low to moderate amounts of filamentous algae growth are 
essential to the conservation of the Altamaha spinymussel.
    Periodic floodplain connectivity that occurs during wet years 
provides habitats for spawning and foraging activities to fishes 
requiring floodplain habitats for successful reproduction and 
recruitment to adulthood. Barko et al. (2006, pp. 252-256) found 
several fish species benefited from the resource exploitation of 
floodplain habitats that were not typically available for use during 
hydrologically normal years. Furthermore, Kwak (1988, pp. 243-247) and 
Slipke et al. (2005, p. 289) indicated that periodic inundation of 
floodplain habitats increased successful fish reproduction, which leads 
to increased availability of native host fishes for unionid 
reproduction. However, Rypel et al. (2009, p. 502) indicated that 
unionids tended to exhibit minimal growth during high flow years. 
Therefore, optimal flooding of these habitats would not be too frequent 
and should occur at similar frequencies to that of the natural 
hydrologic regime of the Altamaha River.

Primary Constituent Elements (PCEs) for the Altamaha Spinymussel

    Based on the above needs and our current knowledge of the life 
history, biology, and ecology of the species, we have determined that 
the Altamaha spinymussel's PCEs are:
    (1) Geomorphically stable river channels and banks (channels that 
maintain lateral dimensions, longitudinal profiles, and sinuosity 
patterns over time without an aggrading or degrading bed elevation) 
with stable sandbar, slough, and mid-channel island habitats of course 
to fine sand substrates with low to moderate amounts of fine sediment 
and attached filamentous algae.
    (2) A hydrologic flow regime (the magnitude, frequency, duration, 
and seasonality of discharge over time) necessary to maintain benthic 
habitats where the species are found. To maintain connectivity of 
rivers with the floodplain, allowing the exchange of nutrients and 
sediment for sand bar maintenance, food availability, and spawning 
habitat for native fishes.
    (3) Water quality necessary for normal behavior, growth, and 
viability of all life stages, including specifically temperature (less 
than 32.6[deg]C (90.68 [deg]F) with less than 2[deg]C (3.6 [deg]F) 
daily fluctuation)), pH (6.1 to 7.7), oxygen content (daily average DO 
concentration of 5.0 mg/l and a minimum of 4.0 mg/l), Ammonia: 1.5 mg 
N/L, 0.22 mg N/L (normalized to pH 8 and 25[deg]C (77[deg]F)) and other 
chemical characteristics.
    (4) The presence of fish hosts (currently unknown) necessary for 
recruitment of the Altamaha spinymussel. The continued occurrence of 
diverse native fish assemblages currently occurring in the basin will 
serve as an indication of host fish presence until appropriate host 
fishes can be identified for the Altamaha spinymussel.
    This proposed designation is designed to conserve those areas 
containing the PCEs in the appropriate spatial arrangement and quantity 
essential to the conservation of the species.
    Units are designated based on sufficient PCEs being present to 
support at least one of the species' life history functions. In this 
proposed designation, all areas contain all PCEs and support multiple 
life processes.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the areas 
within the geographical area occupied by the species at the time of 
listing contain features that are essential to the conservation of the 
species and whether those features may require special management 
considerations or protection. None of the critical habitat units 
proposed for this species have been designated as critical habitat for 
other species under the Act. Large areas of upland habitat adjacent to 
the proposed critical habitat are currently protected or receive 
special management; 13.4 km (8.4 mi.) on both sides of the river and 
75.9 km (47.0 mi) on one side of the river only are managed as 
conservation properties. However, approximately 150.8 km (93.7 mi) have 
no protection. Various activities in or adjacent to each of the 
critical habitat units described in this proposed rule may affect one 
or more of the PCEs and may require special management considerations 
or protection. Some of these activities include, but are not limited 
to, those discussed in the ``Summary of Factors Affecting the 
Species,'' above. Features in all of the proposed critical habitat 
units may require special management due to threats posed by land-use 
runoff and point- and nonpoint-source water pollution (see discussion 
under Factor A and Factor D). Other activities that may affect PCEs in 
the proposed critical habitat units include those listed in the 
``Effects of Critical Habitat'' section below.
    In summary, we find that the areas we are proposing as critical 
habitat that were occupied at the time of listing contain the features 
essential to the conservation of the Altamaha spinymussel, and that 
these features may require special management considerations or 
protection. Special management consideration or protection may be 
required to eliminate, or to reduce to negligible levels, the threats 
affecting each unit and to preserve and maintain the essential features 
that the proposed critical habitat units provide to the Altamaha 
spinymussel. Additional discussions of threats facing individual sites 
are provided in the individual unit descriptions.

Criteria Used to Identify Proposed Critical Habitat

    As required by section 4(b) of the Act, we used the best scientific 
data available in determining areas within the geographical area 
occupied by the species that contain the physical and biological 
features essential to the conservation of the Altamaha spinymussel (see 
above), and areas outside of the geographical area occupied by the 
species that are essential for the conservation of the species. We are 
proposing to designate as critical habitat all river channels that are 
currently occupied by the species. We are also proposing to designate a 
specific area not currently occupied but that was historically 
occupied, because we have determined (1) that the area is essential for 
the conservation of the Altamaha spinymussel, and (2) that designating 
only occupied habitat is not sufficient to conserve this species.
    When determining proposed critical habitat boundaries, we make 
every effort

[[Page 61678]]

to avoid including developed areas such as lands covered by buildings, 
pavement, and other structures because such lands usually lack PCEs for 
endangered or threatened species. Areas proposed for critical habitat 
for the Altamaha spinymussel include only stream channels within the 
ordinary high water line, and do not contain any developed areas or 
structures. The ordinary high water line defines the stream channel and 
is the point on the stream bank where water is continuous and leaves 
some evidence such as erosion or aquatic vegetation.

Occupied Stream Reaches Proposed as Critical Habitat

    We have defined occupied habitat as those stream reaches known to 
be currently occupied by the Altamaha spinymussel. We used information 
from surveys and reports prepared by the GDNR, private contractors, and 
Service field records to identify the specific locations occupied by 
the Altamaha spinymussel.
    Currently, the limited occupied habitat for this species is 
extremely scattered and isolated. The Altamaha spinymussel persists in 
scattered portions of the Altamaha and Ocmulgee Rivers (see Population 
Estimates and Status above). We have determined that all occupied areas 
contain features essential to the conservation of the species.
    River habitats are highly dependent upon upstream and downstream 
channel habitat conditions for their maintenance. Therefore, where one 
occurrence record was known from a river reach, we considered the 
entire reach between the uppermost and lowermost locations as occupied 
habitat, as discussed below.
    The Altamaha spinymussel is currently known to survive in scattered 
populations along 223 km (138 mi) of the Ocmulgee and upper Altamaha 
Rivers extending from Telfair and Ben Hill Counties to Long and Wayne 
Counties, Georgia, except for a 2.7-km (1.7-mi) reach of river in the 
vicinity of the Plant Hatch facility. From 1997 through 2009, 
researchers searched 336 sites throughout the basin and documented 57 
Altamaha spinymussels, with all occurrences widely scattered throughout 
its current range. There are no known barriers to movement in this 
range; therefore, we consider the entire 223-km (138-mi) reach between 
the uppermost and lowermost collection sites for the Altamaha 
spinymussel as occupied habitat. In the area proposed for critical 
habitat, boundaries extend from the nearest downstream landmark at both 
of ends of the reach.

Unoccupied Stream Reaches Proposed as Critical Habitat

    The unoccupied stream reach we are proposing as critical habitat 
was historically occupied (i.e., prior to 1997; see Table 1). We 
believe that this reach is essential for Altamaha spinymussel 
conservation because the range of the Altamaha spinymussel has been 
severely curtailed, occupied habitats are limited and isolated, and 
population sizes are extremely small, and the area meets the selection 
criteria identified below. Furthermore, the occupied habitats are 
contiguous, placing them at high risk of extirpation and extinction 
from stochastic events. The inclusion of essential unoccupied areas, in 
a separate tributary, will provide habitat for population 
reintroduction, reduce the level of stochastic threats to the species' 
survival, and decrease the risk of extinction for this species.
    The area proposed as critical habitat that is not known to be 
currently occupied meets all of the following criteria:
    (1) It contains sufficient PCEs (for example, such characteristics 
as geomorphically stable channels, perennial water flows, and 
appropriate benthic substrates) to support life history functions of 
the Altamaha spinymussel;
    (2) It supports diverse aquatic mollusk communities, including the 
presence of closely related species requiring PCEs similar to the 
Altamaha spinymussel; and
    (3) It is adjacent to currently occupied areas where there is 
potential for natural dispersal and reoccupation by the Altamaha 
spinymussel.
    In identifying unoccupied river reaches that could be essential for 
the conservation of the Altamaha spinymussel, we first considered the 
availability of potential habitat throughout the historical range that 
may be suitable for the survival and persistence of the species. We 
also eliminated from consideration free-flowing rivers or river 
segments without any historical records of occurrence (that is the 
Little Ocmulgee River and the upper portions of the Oconee and Ocmulgee 
Rivers). We eliminated the lower Oconee River and the lower portion of 
the Altamaha River from consideration because of poor water quality and 
limited habitat availability.
    We have identified 14.4 km (9 mi) of habitat in the Ohoopee River 
that is currently unoccupied by the Altamaha spinymussel and that meets 
the criteria for designation as critical habitat. Historical records of 
Altamaha spinymussel occurred in the lower portions of the Ohoopee 
River. Keferl (1981, p. 15) referred to the Ohoopee as a possible 
refugia for the Altamaha spinymussel. However, extreme drought and all-
terrain vehicle disturbance appear to have extirpated the species from 
otherwise suitable habitat. This river habitat meets criteria (1), (2), 
and (3) identified above and is therefore considered essential to the 
conservation of the Altamaha spinymussel.

Proposed Critical Habitat Designation

    We are proposing four units, totaling approximately 240 km (149 
mi), as critical habitat for the Altamaha spinymussel. Georgia owns 
navigable stream bottoms within the ordinary high water line. All 
proposed units are considered navigable and, as stated more fully 
below, critical habitat is proposed for the stream channel within the 
ordinary high water line only; accordingly, the State of Georgia owns 
the stream bottoms within all of the areas proposed for designation as 
critical habitat. Lands adjacent to critical habitat units are either 
in private ownership or are conservation lands. Table 2 identifies the 
proposed units, occupancy of the units, and the approximate extent 
proposed as critical habitat for the Altamaha spinymussel. It also 
provides information on the ownership of lands adjacent to the river 
within the proposed unit.

                     TABLE 2. Occupancy and ownership of lands adjacent to proposed critical habitat units for Altamaha spinymussel.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                           Total Length  km                          Conservation/     Conservation  km
              Unit                     Location            Occupancy             (mi)          Private  km (mi)     Private km (mi)          (mi)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1                                 Ocmulgee River      Occupied                   110 (68.3)         89.2 (55.4)          14.3 (8.8)           6.4 (4.0)
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 61679]]

 
2A                                Upper Altamaha      Occupied                  31.4 (19.5)           2.7 (1.7)         21.6 (13.4)           7.1 (4.4)
                                   River A
--------------------------------------------------------------------------------------------------------------------------------------------------------
2B                                Upper Altamaha      Occupied                  30.7 (19.1)         22.9 (14.2)           7.8 (4.9)               0 (0)
                                   River B
--------------------------------------------------------------------------------------------------------------------------------------------------------
3                                 Middle Altamaha     Occupied                  50.9 (31.6)         18.8 (11.7)         32.1 (19.9)               0 (0)
                                   River
--------------------------------------------------------------------------------------------------------------------------------------------------------
 4                                Lower Ohoopee       Unoccupied                 14.4 (9.0)          14.4 (9.0)               0 (0)               0 (0)
                                   River
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total                                                                         240.2 (149.3)        150.8 (93.7)           75.9 (47)          13.4 (8.4)
--------------------------------------------------------------------------------------------------------------------------------------------------------
*Ownership is categorized by private ownership on both banks of the river (Private), conservation area on one bank and private on the other
  (Conservation/Private), and conservation area on both banks (Conservation).

    We present brief descriptions of all units and reasons why they 
meet the definition of critical habitat for the Altamaha spinymussel. 
The proposed critical habitat units include the river channels within 
the ordinary high water line. As defined in 33 CFR 329.11, the ordinary 
high water mark on nontidal rivers is the line on the shore established 
by the fluctuations of water and indicated by physical characteristics, 
such as a clear, natural line impressed on the bank; shelving; changes 
in the character of soil; destruction of terrestrial vegetation; the 
presence of litter and debris; or other appropriate means that consider 
the characteristics of the surrounding areas. For each stream reach 
proposed as a critical habitat unit, the upstream and downstream 
boundaries are described generally below. More precise definitions are 
provided in the Proposed Regulation Promulgation section at the end of 
this proposed rule.

Unit 1: Ocmulgee River, Ben Hill, Telfair, Coffee, and Jeff Davis 
Counties

    Unit 1 includes 110 km (68.3 mi) of the lower Ocmulgee River from 
the confluence of House Creek with the Ocmulgee River at Red Bluff 
Landing in Ben Hill and Telfair Counties, downstream to the Altamaha 
River (at the confluence of the Oconee and Ocmulgee Rivers, Jeff Davis 
and Telfair Counties). Live Altamaha spinymussels have been collected 
from 11 sites within proposed Unit 1, the uppermost near Red Bluff 
(Thomas and Scott 1965, p. 67). Surveys conducted since 1997 on the 
Ocmulgee River have yielded 19 Altamaha spinymussels from seven sites 
(Cammack et al. 2001, p. 11; O'Brien 2002, p. 2; Dinkins 2004, pp. 1-1 
and 2-1). The entire reach of the Ocmulgee River that composes proposed 
Unit 1 is occupied. This unit contains all of the PCEs.
    The Altamaha spinymussel and its habitat may require special 
management considerations or protection to address changes in the 
existing flow regime due to activities such as impoundment, water 
diversion, or water withdrawal; alteration of water chemistry or water 
quality; and changes in streambed material composition and quality from 
activities that would release sediments or nutrients into the water, 
such as deadhead logging (instream log salvage), construction projects, 
livestock grazing, timber harvesting, and off-road vehicle use.

Unit 2: Upper Altamaha River, Wheeler, Toombs, Montgomery, Jeff Davis, 
Appling, and Tatnall Counties

    Unit 2 includes a total of 62.1 km (38.6 mi) of the Altamaha River 
from the confluence of the Ocmulgee and Oconee Rivers (Wheeler and Jeff 
Davis Counties) downstream to the confluence of the Altamaha and 
Ohoopee Rivers (Appling and Tattnall Counties).
    Unit 2A includes 31.4km (19.5mi) of the Altamaha River from the 
confluence of the Ocmulgee and Oconee Rivers to the Route 1.
    Unit 2B includes 30.7km (19.1mi) of the Altamaha River from the 
upstream boundary of Moody forest to the confluence of the Altamaha and 
Ohoopee Rivers.
    However, we are not including in this critical habitat designation 
a stretch of the Altamaha River from U.S. Route 1 downstream to the 
State-owned property of Moody Forest (2.7 km (1.7 mi)), which includes 
Plant Hatch. This area does not contain the PCEs necessary for the 
Altamaha spinymussel due to:
    (1) Dredging for intake pipes at Plant Hatch, which destabilizes 
the river channel and banks, sandbar, slough, and mid-channel island 
habitats and disrupts the movement of course to fine sand substrates 
with low to moderate amounts of fine sediment; and
    (2) Thermal discharges from Plant Hatch that reduce water quality.
    In the upper Altamaha River, historic surveys collected Altamaha 
spinymussels from 15 sites, while recent surveys have collected live 
Altamaha spinymussels from only two sites; dead shells have been 
collected from an additional 14 sites (Sickel 1967; Keferl 1995, p. 3; 
Cammack et al. 2001, p. 11, O'Brien 2002, p. 2; Wisniewski 2009, pers. 
comm.). The entire reach of the Altamaha River that composes proposed 
Unit 2 is occupied. This unit contains all of the PCEs.
    The Altamaha spinymussel and its habitat may require special 
management considerations or protection to address changes in the 
existing flow regime due to activities such as impoundment, water 
diversion, or water withdrawal; alteration of water chemistry or water 
quality; and changes in streambed material composition and quality from 
activities that would release sediments or nutrients into the water, 
such as deadhead logging (instream log salvage), construction projects, 
livestock grazing, timber harvesting, and off-road vehicle use.

Unit 3: Middle Altamaha River, Tattnall, Appling, Wayne, and Long 
Counties

    Unit 3 includes approximately 50.9 km (31.6 mi) of the Altamaha 
River from the confluence with the Ohoopee (Tattnall and Appling 
Counties) downstream to U.S. Route 301 (Wayne and Long Counties). 
Historic and recent

[[Page 61680]]

surveys of the middle Altamaha River have yielded live Altamaha 
spinymussels from 26 sites. Dead shells were found at an additional 13 
sites (Keferl 1981, p. 14; Keferl 1995, p. 3; Cammack et al. 2001, p. 
11; O'Brien 2002, p. 2; Wisniewski 2009, pers. comm.). The entire reach 
of the Altamaha River that composes proposed Unit 3 is occupied. This 
unit contains all of the PCEs.
    The Altamaha spinymussel and its habitat may require special 
management considerations or protection to address changes in the 
existing flow regime due to such activities as impoundment, water 
diversion, or water withdrawal; alteration of water chemistry or water 
quality; and changes in streambed material composition and quality from 
activities that would release sediments or nutrients into the water, 
such as deadhead logging (instream log salvage), construction projects, 
livestock grazing, timber harvesting, and off-road vehicle use.

Unit 4: Lower Ohoopee River, Tattnall County

    Unit 4 includes the lower 14.4 km (9 mi) of the Ohoopee River, from 
2.2 km (1.3 mi) upstream of Tattnall County Road 191, downstream to the 
confluence of the Ohoopee and the Altamaha River in Tattnall County, 
Georgia.
    The Altamaha spinymussel historically occupied this stretch of the 
Ohoopee River but has not been found here since the mid-1990s 
(Stringfellow and Gagnon 2001, pp. 1-2) and is considered extirpated. 
Historic collections were made from seven sites (Keferl 1981, p. 14). 
Keferl (1981, p. 15) considered the Ohoopee to contain excellent 
habitat that would serve as a refuge for declining mussel populations. 
This stretch of the Ohoopee River contains PCEs I, III and IV for the 
Altamaha spinymussel, and continues to support four species commonly 
associated with the presence of the Altamaha spinymussel: Elliptio 
dariensis (75 percent of sites with E. spinosa), E. hopetonensis (93 
percent), E. shepardiana (80 percent), and Lampsilis dolabraeformis (90 
percent). Lampsilis splendida was found at 72 percent of sites 
(Wisniewski 2009, pers. comm.). The Ohoopee does not meet state water 
quality standards for mercury, however, EPA will begin revising needed 
load reductions in 2011 (EPA 2002b, p. 2).
    Proposed critical habitat units 1, 2, and 3 are contiguous, making 
them very vulnerable to a catastrophic event that could eliminate all 
known occupied habitat for the Altamaha spinymussel. Therefore, we 
believe that the stream segment within this unit is essential to the 
conservation of the species.because re-establishing the Altamaha 
spinymussel on a separate tributary such as the Ohoopee River would 
significantly reduce the level of stochastic threats to the species' 
survival.

Effects of Critical Habitat Designation

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 courts of appeals for the Fifth and Ninth Circuits 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 (9\th\ Cir. 2004) and Sierra 
Club v. U.S. Fish and Wildlife Service et al., 245 F. 3d 434, 442F 
(5\th\ 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 those physical and 
biological features that relate to the ability of the area to 
periodically support the species) 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. We define ``Reasonable and prudent alternatives'' at 50 
CFR 402.02 as alternative actions identified during consultation that:
<bullet> Can be implemented in a manner consistent with the intended 
purpose of the action,
<bullet> Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
<bullet> Are economically and technologically feasible, and
<bullet> 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.
    Federal activities that may affect Altamaha spinymussel or its 
designated critical habitat require section 7 consultation under the 
Act. Activities on State, Tribal, local, or private lands requiring a 
Federal permit (such as a permit from the U.S. Army Corps of Engineers 
under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a 
permit from us under section 10 of the Act) or involving some other 
Federal action (such as funding from the Federal Highway 
Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency) are subject to the section 7 consultation 
process. Federal actions not affecting listed species or critical 
habitat, and actions on State, Tribal, local, or private lands that are 
not federally funded, authorized, or permitted, do not require section 
7 consultations.

[[Page 61681]]

Application of the Jeopardy and Adverse Modification Standard

Jeopardy Standard

    Prior to and following listing and designation of critical habitat, 
the Service applies an analytical framework for jeopardy analyses that 
relies heavily on the importance of core area populations to the 
survival and recovery of the species. The section 7(a)(2) analysis is 
focused not only on these populations but also on the habitat 
conditions necessary to support them.
    The jeopardy analysis usually expresses the survival and recovery 
needs of the species in a qualitative fashion without making 
distinctions between what is necessary for survival and what is 
necessary for recovery. Generally, if a proposed Federal action is 
incompatible with the viability of the affected core area 
population(s), inclusive of associated habitat conditions, a jeopardy 
finding is considered to be warranted, because of the relationship of 
each core area population to the survival and recovery of the species 
as a whole.

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 
physical and biological features to an extent that appreciably reduces 
the conservation value of critical habitat for the Altamaha 
spinymussel.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may affect critical habitat and therefore should result 
in consultation for the Altamaha spinymussel include, but are not 
limited to:
    (1) Actions that would alter the geomorphology of their stream and 
river habitats. Such activities could include, but are not limited to, 
instream excavation or dredging, impoundment, channelization, and 
discharge of fill materials. These activities could cause aggradation 
or degradation of the channel bed elevation or significant bank 
erosion, result in entrainment or burial of these mollusks, and cause 
other direct or cumulative adverse effects to these species and their 
life cycles.
    (2) Actions that would significantly alter the existing flow 
regime. Such activities could include, but are not limited to, 
impoundment, water diversion, water withdrawal, and hydropower 
generation. These activities could eliminate or reduce the habitat 
necessary for growth and reproduction of these mollusks.
    (3) Actions that would significantly alter water chemistry or water 
quality (for example, temperature, pH, contaminants, and excess 
nutrients). Such activities could include, but are not limited to, 
hydropower discharges, or the release of chemicals, biological 
pollutants, or heated effluents into surface water or connected 
groundwater at a point source or by dispersed release (nonpoint 
source). These activities could alter water conditions that are beyond 
the tolerances of these mollusks and result in direct or cumulative 
adverse effects to the species and their life cycles.
    (4) Actions that would significantly alter stream bed material 
composition and quality by increasing sediment deposition or 
filamentous algal growth. Such activities could include, but are not 
limited to, construction projects, livestock grazing, timber harvest, 
off-road vehicle use, and other watershed and floodplain disturbances 
that release sediments or nutrients into the water. These activities 
could eliminate or reduce habitats necessary for the growth and 
reproduction of these mollusks by causing excessive sedimentation and 
burial of the species or their habitats, or nutrification leading to 
excessive filamentous algal growth. Excessive filamentous algal growth 
can cause reduced night-time dissolved oxygen levels through 
respiration and prevent mussel glochidia from settling into stream 
sediments.

Exemptions

Application of Section 4(a)(3) of the Act

    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    There are no Department of Defense lands with a completed 
integrated natural resources management plan within the proposed 
critical habitat designation for the Altamaha spinymussel.

Exclusions

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

    Section 4(b)(2) of the Act states that the Secretary must designate 
or make revisions to critical habitat on the basis of the best 
available scientific data after taking into consideration the economic 
impact, national security impact, and any other relevant impact of 
specifying any particular area as critical habitat. The Secretary may 
exclude an area from critical habitat if 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 legislative history is clear that the 
Secretary has broad discretion regarding which factor(s) to use and how 
much weight to give to any factor.
    Under section 4(b)(2) of the Act, we may exclude an area from 
designated critical habitat based on economic impacts, impacts on 
national security, and any other relevant impacts. In considering 
whether to exclude a particular area from the designation, we must 
identify the benefits of including the area in the designation, 
identify the benefits of excluding the area from the designation, and 
determine whether the benefits of exclusion outweigh the benefits of 
inclusion. If, based on this analysis, we determine that the benefits 
of exclusion outweigh the benefits of inclusion, we can exclude the 
area only if such exclusion would not result in the extinction of the 
species.
Economic Impacts
    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we are preparing an analysis of the probable 
economic impacts of the proposed critical habitat designation and 
related factors.
    We will announce the availability of the draft economic analysis as 
soon as it is completed, at which time we will seek public review and 
comment. At

[[Page 61682]]

that time, copies of the draft economic analysis will be available for 
downloading from the Internet at the Federal eRulemaking Portal: http://www.regulations.gov, or by contacting the Georgia Ecological Services 
Office directly (see FOR FURTHER INFORMATION CONTACT). During the 
development of a final designation, we will consider economic impacts, 
public comments, and other new information, and as an outcome of our 
analysis of this information, we may exclude areas from the final 
critical habitat designation under section 4(b)(2) of the Act and our 
implementing regulations at 50 CFR 424.19.
National Security Impacts
    Under section 4(b)(2) of the Act, we consider whether there are 
lands owned or managed by the Department of Defense (DOD) where a 
national security impact might exist. In preparing this proposal, we 
have determined that the lands within the proposed designation of 
critical habitat for the Altamaha spinymussel are not owned or managed 
by the DOD, and therefore, we anticipate no impact to national 
security.
Other Relevant Impacts
    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors including whether landowners 
have developed any conservation plans or other management plans for the 
area, or whether there are conservation partnerships that would be 
encouraged by designation of, or exclusion of lands from, critical 
habitat. In addition, we look at any Tribal issues, and consider the 
government-to-government relationship of the United States with tribal 
entities. We also consider any social impacts that might occur because 
of the designation.
    In preparing this proposed rule, we have determined that there are 
currently no conservation plans or other management plans for the 
species, and the proposed designation does not include any Tribal lands 
or trust resources. We anticipate no impact to Tribal lands, 
partnerships, or management plans from this proposed critical habitat 
designation.
    Notwithstanding these decisions, as stated under ``Public 
Comments'' above, we are seeking specific comments on whether any areas 
we are proposing for designation should be excluded under section 
4(b)(2) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing encourages and results in 
conservation actions by Federal, State, and private agencies; groups; 
and individuals. The Act provides for possible land acquisition and 
cooperation with the States and requires that recovery actions be 
carried out for all listed species. The protection required of Federal 
agencies and the prohibitions against taking are discussed, in part, 
below.
    Section 7(a) of the Act, as amended, requires Federal agencies to 
evaluate their actions with respect to any species that is proposed or 
listed as endangered or threatened and with respect to its critical 
habitat, if any is being or has been designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402. Federal agencies are required to confer 
with us informally on any action that is likely to jeopardize the 
continued existence of a proposed species, or result in destruction or 
adverse modification of proposed critical habitat. If a species is 
listed subsequently, section 7(a)(2) requires Federal agencies to 
ensure that activities they authorize, fund, or carry out are not 
likely to jeopardize the continued existence of such a species or to 
destroy or adversely modify its critical habitat. If a Federal action 
may affect a listed species or its critical habitat, the responsible 
Federal agency must enter into formal consultation with the Service.
    Federal activities that may affect the Altamaha spinymussel 
include, but are not limited to, the carrying out or the issuance of 
permits for reservoir construction, stream alterations, discharges, 
wastewater facility development, water withdrawal projects, pesticide 
registration, mining, and road and bridge construction. It has been the 
experience of the Service, however, that nearly all section 7 
consultations have been resolved so that species have been protected 
and the project objectives have been met.
    Listing the Altamaha spinymussel initiates the development and 
implementation of a rangewide recovery plan for the species. This plan 
will bring together Federal, State, and local agency efforts for the 
conservation of this species. Recovery plans establish a framework for 
agencies to coordinate their recovery efforts. The plans set recovery 
priorities and estimate the costs of the tasks necessary to accomplish 
the priorities. They also describe the site-specific actions necessary 
to achieve conservation and survival of each species.
    Listing also will require us to review any actions on Federal lands 
and activities under Federal jurisdiction that may affect the Altamaha 
spinymussel; allow State plans to be developed under section 6 of the 
Act; encourage scientific investigations of efforts to enhance the 
propagation or survival of the species under section 10(a)(1)(A) of the 
Act; and promote habitat conservation plans on non-Federal lands under 
section 10(a)(1)(B) of the Act.
    The Act and its implementing regulations found at 50 CFR 17.21 set 
forth a series of general prohibitions and exceptions that apply to all 
endangered wildlife. These prohibitions, in part, make it illegal for 
any person subject to the jurisdiction of the United States to take 
(includes harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect, or to attempt any of these), import or export, 
ship in interstate commerce in the course of commercial activity, or 
sell or offer for sale in interstate or foreign commerce any listed 
species. It also is illegal to possess, sell, deliver, carry, 
transport, or ship any wildlife that has been taken illegally. Certain 
exceptions apply to agents of the Service and State conservation 
agencies.
    Permits may be issued to carry out otherwise prohibited activities 
involving endangered wildlife species under certain circumstances. 
Regulations governing permits are set forth at 50 CFR 17.22 and 17.23. 
Such permits are available for scientific purposes, to enhance the 
propagation or survival of the species and for incidental take in 
connection with otherwise lawful activities.
    Under the Interagency Cooperative Policy for Endangered Species Act 
Section 9 Prohibitions, published in the Federal Register on July 1, 
1994 (59 FR 34272), we identify to the maximum extent practicable those 
activities that would or would not constitute a violation of section 9 
of the Act if the Altamaha spinymussel is listed. The intent of this 
policy is to increase public awareness as to the effects of this 
proposed listing on future and ongoing activities within a species' 
range. We believe, based on the best available information, that the 
following actions will not result in a violation of the provisions of 
section 9 of the Act, provided these actions are carried out in 
accordance with existing regulations and permit requirements:

[[Page 61683]]

    (1) Possession, delivery, or movement, including interstate 
transport that does not involve commercial activity, of specimens of 
these species that were legally acquired prior to the addition of the 
Altamaha spinymussel to the Federal List of Endangered or Threatened 
Wildlife;
    (2) Discharges into waters supporting the Altamaha spinymussel, 
provided these activities are carried out in accordance with existing 
regulations and permit requirements (e.g., activities subject to 
section 404 of the Clean Water Act and discharges regulated under the 
National Pollutant Discharge Elimination System (NPDES));
    (3) Development and construction activities designed and 
implemented under State and local water quality regulations and 
implemented using approved best management practices; and
    (4) Any actions that may affect the Altamaha spinymussel that are 
authorized, funded, or carried out by a Federal agency (such as bridge 
and highway construction, pipeline construction, hydropower licensing), 
when the action is conducted in accordance with the consultation 
requirements for listed species under section 7 of the Act.
    Potential activities that we believe will likely be considered a 
violation of section 9 of the Act if this species becomes listed, 
include, but are not limited to, the following:
    (1) Unauthorized possession, collecting, trapping, capturing, 
harming, killing, harassing, sale, delivery, or movement, including 
interstate and foreign commerce, or attempting any of these actions, 
with the Altamaha spinymussel;
    (2) Unlawful destruction or alteration of their habitats (such as 
unpermitted instream dredging, impoundment, channelization, or 
discharge of fill material) that impairs essential behaviors, such as 
breeding, feeding, or sheltering, or results in killing or injuring the 
Altamaha spinymussel;
    (3) Violation of any discharge or water withdrawal permit that 
results in harm or death to any individuals of this species or that 
results in degradation of its occupied habitat to an extent that 
essential behaviors such as breeding, feeding and sheltering are 
impaired; and
    (4) Unauthorized discharges or dumping of toxic chemicals or other 
pollutants into waters supporting the Altamaha spinymussel that kills 
or injures or otherwise impairs essential life-sustaining requirements, 
such as reproduction, food, or shelter.
    Other activities not identified above will be reviewed on a case-
by-case basis to determine if a violation of section 9 of the Act may 
be likely to result from such activity should we list the Altamaha 
spinymussel as endangered. The Service does not consider the 
description of future and ongoing activities provided above to be 
exhaustive; we provide them simply as information to the public.
    If you have questions regarding whether specific activities will 
likely violate the provisions of section 9 of the Act, contact the 
Georgia Ecological Services Office (see FOR FURTHER INFORMATION 
CONTACT). Requests for copies of regulations regarding listed species 
and inquiries about prohibitions and permits should be addressed to the 
U.S. Fish and Wildlife Service, Ecological Services Division, 1875 
Century Boulevard, Atlanta, GA 30345 (phone 404-679-7313; fax 404-679-
7081).

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of such review is to ensure 
that our proposed rule is based on scientifically sound data, 
assumptions, and analyses. We will send copies of this proposed rule to 
these peer reviewers immediately following publication in the Federal 
Register. We will invite these peer reviewers to comment, during the 
public comment period, on the specific assumptions and conclusions 
regarding our proposal to list the Altamaha spinymussel as endangered 
and our decision regarding critical habitat for this species. We will 
consider all comments and information received during the comment 
period on this proposed rule during preparation of a final rulemaking. 
Accordingly, the final decision may differ from this proposal.

Public Hearings

    Section 4(b)(5)(E) of the Act requires us to hold at least one 
public hearing on this proposal, if properly requested. Requests for 
public hearings must be made in writing within 45 days of the 
publication of this proposal in the Federal Register (see DATES). We 
will schedule public hearings on this proposal, if any are requested, 
and announce the dates, times, and places of those hearings in the 
Federal Register and local newspapers at least 15 days prior to the 
first hearing.
    Persons needing reasonable accommodations to attend and participate 
in the public hearings should phone James Rickard at (706) 613-9493 as 
soon as possible. To allow sufficient time to process requests, please 
call no later than one week before the hearing date. Information 
regarding the proposal is available in alternative formats upon 
request.

Required Determinations

Regulatory Planning and Review -- Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant under Executive Order 12866 (E.O. 12866). OMB 
bases its determination upon the following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (small businesses, 
small organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. The SBREFA amended the RFA to 
require Federal agencies to provide a statement of the 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

[[Page 61684]]

with fewer than 500 employees, wholesale trade entities with fewer than 
100 employees, retail and service businesses with less than $5 million 
in annual sales, general and heavy construction businesses with less 
than $27.5 million in annual business, special trade contractors doing 
less than $11.5 million in annual business, and agricultural businesses 
with annual sales less than $750,000. To determine whether potential 
economic impacts to these small entities are significant, we 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.
    At this time, we lack the specific information necessary to provide 
an adequate factual basis for determining the potential incremental 
regulatory effects of the designation of critical habitat for the 
Altamaha spinymussel to either develop the required RFA finding or 
provide the necessary certification statement that the designation will 
not have a significant impact on a substantial number of small business 
entities. On the basis of the development of our proposal, we have 
identified certain sectors and activities that may potentially be 
affected by a designation of critical habitat for the Altamaha 
spinymussel. These sectors include industrial development and 
urbanization along with the accompanying infrastructure associated with 
such projects such as road, stormwater drainage, bridge and culvert 
construction and maintenance. We recognize that not all of these 
sectors may qualify as small business entities. However, while 
recognizing that these sectors and activities may be affected by this 
designation, we are collecting information and initiating our analysis 
to determine (1) which of these sectors or activities are or involve 
small business entities and (2) what extent the effects are related to 
the Altamaha spinymussel being listed as an endangered species under 
the Act (baseline effects) or whether the effects are attributable to 
the designation of critical habitat (incremental). We believe that the 
potential incremental effects resulting from a designation will be 
small. As a consequence, following an initial evaluation of the 
information available to us, we do not believe that there will be a 
significant impact on a substantial number of small business entities 
resulting from this designation of critical habitat for the Altamaha 
spinymussel. However, we will be conducting a thorough analysis to 
determine if this may in fact be the case. As such, we are requesting 
any specific economic information related to small business entities 
that may be affected by this designation and how the designation may 
impact their business. Therefore, we defer our RFA finding on this 
proposal designation until completion of the draft economic analysis 
prepared under section 4(b)(2) of the Act and E.O. 12866.
    As discussed above, this draft economic analysis will provide the 
required factual basis for the RFA finding. Upon completion of the 
draft economic analysis, we will announce availability of the draft 
economic analysis of the proposed designation in the Federal Register 
and reopen the public comment period for the proposed designation. We 
will include with this announcement, as appropriate, an initial 
regulatory flexibility analysis or a certification that the rule will 
not have a significant economic impact on a substantial number of small 
entities accompanied by the factual basis for that determination. We 
conclude that deferring the RFA finding until completion of the draft 
economic analysis is necessary to meet the purposes and requirements of 
the RFA. Deferring the RFA finding in this manner will ensure that we 
make a sufficiently informed determination based on adequate economic 
information and provide the necessary opportunity for public comment.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), the Service makes 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, tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; 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 jeopardize the continued existence of 
the species, or destroy or adversely modify critical habitat under 
section 7. While non-Federal entities that receive Federal funding, 
assistance, or permits, or that otherwise require approval or 
authorization from a Federal agency for an action, may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. Furthermore, to the extent that 
non-Federal entities are indirectly impacted because they receive 
Federal assistance or participate in a voluntary Federal aid program, 
the Unfunded Mandates Reform Act would not apply; nor would listing 
these species or designating critical habitat shift the costs of the 
large entitlement programs listed above on to State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments because the Altamaha spinymussel only occurs 
in navigable waters in which the river bottom is owned by the State of 
Georgia. However, the adjacent upland properties are owned by private 
entities, the State, or Federal partners (see Table 2). As such, a 
Small Government Agency Plan is not required. We will, however, further 
evaluate this issue as we conduct our economic analysis and revise this 
assessment if appropriate.

[[Page 61685]]

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 critical habitat for the Altamaha spinymussel in a takings 
implications assessment. The takings implications assessment concludes 
that this designation of critical habitat for the Altamaha spinymussel 
does not pose significant takings implications.

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 Department of the Interior and 
Department of Commerce policy, we requested information from, and 
coordinated development of this proposed critical habitat designation 
with appropriate State resource agencies in Georgia. The critical 
habitat designation may have some benefit to this government 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).
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) would be required. While non-Federal 
entities that receive Federal funding, assistance, or permits, or that 
otherwise require approval or authorization from a Federal agency for 
an action, may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency.

Civil Justice Reform

    In accordance with E.O. 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 proposing designating critical habitat in 
accordance with the provisions of the Act. This proposed rule uses 
standard property descriptions and identifies the PCEs within the 
designated areas to assist the public in understanding the habitat 
needs of the Altamaha spinymussel.

Paperwork Reduction Act of 1995

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

National Environmental Policy Act (NEPA)

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be 
prepared in connection with regulations adopted under section 4(a)(1) 
of the Act. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244).
    Also, it is our position that, outside the jurisdiction of the U.S. 
Court of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses as defined by NEPA in connection with 
designating critical habitat under section 4(a)(3) of the Act. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This position was 
upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas 
County v. Babbitt, 48 F. 3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 
1042 (1996)).

Government-to-Government Relationship with Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, 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 occupied at the 
time of listing that contain the features essential for the 
conservation, and no tribal lands that are unoccupied areas that are 
essential for the conservation, of the Altamaha spinymussel. Therefore, 
we have not proposed designation of critical habitat for the Altamaha 
spinymussel on Tribal lands.

Energy Supply, Distribution, or Use

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211; Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use) on regulations that significantly affect 
energy supply, distribution, and use. E.O. 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
We do not expect this rule to significantly affect energy supplies, 
distribution, or use. Although two of the proposed units are below 
hydropower reservoirs, current and proposed operating regimes have been 
deemed adequate for the species, and therefore their operations will 
not be affected by the proposed designation of critical habitat. All 
other proposed units are remote from energy supply, distribution, or 
use activities. Therefore, this action is not a significant energy 
action, and no Statement of Energy Effects is required. However, we 
will further evaluate this issue as we conduct our economic analysis, 
and review and revise this assessment as warranted.

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you

[[Page 61686]]

should tell us the numbers of the sections or paragraphs that are 
unclearly written, which sections or sentences are too long, the 
sections where you feel lists or tables would be useful, etc.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the Field Supervisor, Georgia Ecological 
Services Office (see FOR FURTHER INFORMATION CONTACT).

Author(s)

    The primary author of this package is staff of the Georgia 
Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[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. Amend Sec.  17.11(h) by adding ``Spinymussel, Altamaha'' in 
alphabetical order under CLAMS to the List of Endangered and Threatened 
Wildlife, to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                    Species                                           Vertebrate
------------------------------------------------                   population where                                         Critical
                                                  Historic range     endangered or        Status         When listed        habitat       Special rules
         Common name            Scientific name                       threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          CLAMS
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Spinymussel, Altamaha          Elliptio spinosa  U.S.A. (GA)       NA                E                                  17.95(f)         NA
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                         ...............
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                         ...............
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend Sec.  17.95(f) by adding an entry for ``Altamaha 
spinymussel (Elliptio spinosa)'' in the same order that the species 
appears in the table at Sec.  17.11(h), to read as set forth below:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (f) Clams and Snails.
* * * * *
Altamaha spinymussel (Elliptio spinosa)
    (1) Critical habitat units are depicted for Appling, Ben Hill, 
Coffee, Jeff Davis, Long, Montgomery, Tattnall, Telfair, Toombs, Wayne 
and Wheeler Counties, Georgia, on the maps below.
    (2) The primary constituent elements (PCEs) of critical habitat for 
the Altamaha spinymussel are the habitat components that provide:
    (i) Geomorphically stable river channels and banks (channels that 
maintain lateral dimensions, longitudinal profiles, and sinuosity 
patterns over time without an aggrading or degrading bed elevation) 
with stable sandbar, slough, and mid-channel island habitats of course 
to fine sand substrates with low to moderate amounts of fine sediment 
and attached filamentous algae.
    (ii) A hydrologic flow regime (the magnitude, frequency, duration, 
and seasonality of discharge over time) necessary to maintain benthic 
habitats where the species are found. To maintain connectivity of 
rivers with the floodplain, allowing the exchange of nutrients and 
sediment for sand bar maintenance, food availability, and spawning 
habitat for native fishes.
    (iii) Water quality necessary for normal behavior, growth, and 
viability of all life stages, including specifically temperature (less 
than 32.6[deg]C (90.68 [deg]F) with less than 2[deg]C (3.6 [deg]F) 
daily fluctuation)), pH (6.1 to 7.7), oxygen content (daily average DO 
concentration of 5.0 mg/l and a minimum of 4.0 mg/l), Ammonia: 1.5 mg 
N/L, 0.22 mg N/L (normalized to pH 8 and 25[deg]C (77[deg]F)) and other 
chemical characteristics.
    (iv) The presence of fish hosts (currently unknown) necessary for 
recruitment of the Altamaha spinymussel. The continued occurrence of 
diverse native fish assemblages currently occurring in the basin will 
serve as an indication of host fish presence until appropriate host 
fishes can be identified for the Altamaha spinymussel.
    (3) Critical habitat does not include manmade structures existing 
on the effective date of this rule and not containing one or more of 
the PCEs, such as buildings, bridges, aqueducts, airports, and roads, 
and the land on which such structures are located.
    (4) Critical habitat unit maps. Maps were developed from USGS 7.5 
minute quadrangles, and critical habitat unit upstream and downstream 
limits were then identified by longitude and latitude using decimal 
degrees.
    (5) Note: Index map of critical habitat units for the Altamaha 
spinymussel follows:

[[Page 61687]]

[GRAPHIC] [TIFF OMITTED] TP06OC10.007

    (6) Unit 1: Ocmulgee River, Ben Hill, Telfair, Coffee, and Jeff 
Davis Counties, Georgia.
    (i) Unit 1 includes the channel of the Ocmulgee River from the 
confluence of House Creek with the Ocmulgee at Red Bluff Landing 
(longitude -83.18, latitude 31.85), Ben Hill and Telfair Counties, 
Georgia, downstream to Altamaha River (longitude -82.54, latitude 
31.96), at the confluence of the Oconee and Ocmulgee Rivers, Jeff Davis 
and Telfair Counties, Georgia.
    (ii) Note: Map of Unit 1 (Ocmulgee River) follows:
    [GRAPHIC] [TIFF OMITTED] TP06OC10.008
    
    (7) Unit 2: Upper Altamaha River, Wheeler, Toombs, Montgomery, Jeff 
Davis, Appling, and Tattnall Counties, Georgia.
    (i) Unit 2 includes the channel of the Altamaha River from the 
confluence of the Ocmulgee and Oconee Rivers (longitude -82.54, 
latitude 31.96), Wheeler and Jeff Davis Counties, Georgia, downstream 
to the US 1 crossing (longitude -82.36, latitude 31.94), and from the 
western edged or Moody Forest (longitude -82.33, latitude 31.93) 
downstream to the confluence of

[[Page 61688]]

the Altamaha and Ohoopee Rivers (longitude -82.11, latitude 31.90), 
Appling and Tattnall Counties, Georgia.
    (ii) Note: Map of Unit 2 (Upper Altamaha River) follows:
    [GRAPHIC] [TIFF OMITTED] TP06OC10.009
    
    (8) Unit 3: Middle Altamaha River, Tattnall, Appling, Wayne, and 
Long Counties, Georgia.
    (i) Unit 3 includes the channel of Altamaha River, extending from 
the confluence with the Ohoopee (longitude -82.11, latitude 31.90), 
Tattnall and Appling Counties, Georgia, downstream to U.S. Route 301 
(longitude -81.84, latitude 31.67), Wayne and Long Counties, Georgia.
    (ii) Note: Map of Unit 3 (Middle Altamaha River) follows:

[[Page 61689]]

[GRAPHIC] [TIFF OMITTED] TP06OC10.010

    (9) Unit 4: Lower Ohoopee River, Tattnall County, Georgia.
    (i) Unit 4 includes the channel of the Ohoopee River, starting 2.2 
km (1.3 mi) upstream of Tattnall County Road 191 (longitude -82.14, 
latitude 31.98), Tattnall County, Georgia, downstream to the confluence 
of the Ohoopee River with the Altamaha River (longitude -82.11, 
latitude 31.90), Tattnall County, Georgia.
    (ii)Note: Map of Unit 4 (Lower Ohoopee River) follows:
    [GRAPHIC] [TIFF OMITTED] TP06OC10.011
    

[[Page 61690]]


* * * * *

    Dated: August 12, 2010.
Jane Lyder,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-25026 Filed 10-5-10; 8:45 am]
BILLING CODE 4310-55-S