[Federal Register Volume 66, Number 27 (Thursday, February 8, 2001)]
[Proposed Rules]
[Pages 9540-9555]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-3128]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH33


Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for the Appalachian Elktoe

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), propose to 
designate critical habitat for the Appalachian elktoe (Alasmidonta 
raveneliana) under the Endangered Species Act of 1973, as amended 
(Act). The areas proposed for critical habitat designation include 
approximately 231.1 kilometers (km) (144.3 river miles [rm]) of various 
segments of rivers in Tennessee and North Carolina.
    If this proposal is made final, section 7(a)(2) of the Act requires 
that Federal agencies ensure that actions they fund, permit, or carry 
out are not likely to result in the destruction or adverse modification 
of critical habitat. The regulatory effect of the critical habitat 
designation does not extend beyond those activities funded, permitted, 
or carried out by Federal agencies. State or private actions, with no 
Federal involvement, are not affected.
    Section 4 of the Act requires us to consider the economic and other 
relevant impacts of specifying any particular area as critical habitat. 
We solicit data and comments from the public on all aspects of this 
proposal, including data on the economic and other impacts of the 
designation. We may revise this proposal to incorporate or address 
comments and other information received during the comment period.

DATES: We will consider comments received by April 9, 2001. Requests 
for public hearings must be received, in writing, at the address shown 
in the ADDRESSES section by March 26, 2001.

ADDRESSES: If you wish to comment, you may submit your comments by any 
one of several methods:
    1. You may submit written comments and information to the State 
Supervisor, Asheville Field Office, U.S. Fish and Wildlife Service, 160 
Zillicoa Street, Asheville, North Carolina 28801.
    2. You may hand-deliver written comments to our Asheville Field 
Office, at the above address, or fax your comments to 828/258-5330.
    3. You may send comments by electronic mail (e-mail) to 
<a href="/cdn-cgi/l/email-protection#305a5f585e6f56425954555c5c705647431e575f46"><span class="__cf_email__" data-cfemail="761c191e182910041f12131a1a3610010558111900">[email protected]</span></a>. For directions on how to submit electronic filing 
of comments, see the ``Public Comments Solicited'' section.
    Comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the above address.

FOR FURTHER INFORMATION CONTACT: John A. Fridell, Fish and Wildlife 
Biologist, (828)258-3939.

SUPPLEMENTARY INFORMATION:

Background

    The Appalachian elktoe (Alasmidonta raveneliana) is a freshwater 
mussel that has a thin, kidney-shaped shell, reaching up to about 10 
centimeters (4 inches) (J.A. Fridell, pers. observation 1999). 
Juveniles generally have a yellowish-brown periostracum (outer shell 
surface), while the periostracum of the adults is usually dark brown to 
greenish-black in color. Although rays are prominent on some shells, 
particularly in the posterior portion of the shell, many individuals 
have only obscure greenish rays. The shell nacre (inside shell surface) 
is shiny, often white to bluish-white, changing to a salmon, pinkish, 
or brownish color in the central and beak cavity portions of the shell; 
some specimens may be marked with irregular brownish blotches (adapted 
from Clarke 1981). Clarke (1981) contains a detailed description of the 
species' shell, with illustrations; Ortmann (1921) discussed soft 
parts.

Distribution, Habitat, and Life History

    The Appalachian elktoe is known only from the mountain streams of 
western North Carolina and eastern Tennessee. Although the complete 
historical range of the Appalachian elktoe is unknown, available 
information suggests that the species once lived in the majority of the 
rivers and larger creeks of the upper Tennessee River system in North 
Carolina. In Tennessee, the species is known only from its present 
range in the main stem of the Nolichucky River.
    Currently, the Appalachian elktoe has a very fragmented, relict 
distribution. The species still survives in scattered pockets of 
suitable habitat in portions of the Little Tennessee River system, 
Pigeon River system, the Little River in North Carolina, and the 
Nolichucky River system in North Carolina and Tennessee. In the Little 
Tennessee River system in North Carolina, populations survive in the 
reach of the main stem of the Little Tennessee River, between the city 
of Franklin and Fontana Reservoir, in Swain and Macon Counties (Service 
1994, 1996; McGrath 1999; J.A. Fridell, pers. observation 2000), and in 
scattered reaches of the main stem of the Tuckasegee River in Jackson 
and Swain Counties (M. Cantrell, Service, pers. comm. 1996; J.A. 
Fridell, pers. observation 1996, 1997; McGrath 1998), from below the 
town of Cullowhee downstream to Bryson City. A single live individual 
and one shell have also been recently recorded from the Cheoah River, 
below Santeetlah Lake, in Graham County (W. Pennington, Pennington and 
Associates, Inc., Knoxville, Tennessee, pers. comm. 2000).
    In the Pigeon River system in North Carolina, a small population of 
the Appalachian elktoe occurs in small scattered sites in the West Fork 
Pigeon River and in the main stem of the Pigeon River, above Canton, in 
Haywood County (J.A. Fridell, pers. observation 1999; McGrath 1998). 
The Little River (upper French Broad River system) population of the 
species, in Transylvania County, North Carolina (J.A. Fridell, pers. 
observation 2000; C. McGrath, North Carolina Wildlife Resources 
Commission (NCWRC), pers.

[[Page 9541]]

comm. 2000), is restricted to small scattered pockets of suitable 
habitat downstream of Cascade Lake.
    In the Nolichucky River system, the Appalachian elktoe survives in 
a few scattered areas of suitable habitat in the Toe River, Yancey and 
Mitchell Counties, North Carolina (Service 1994, 1996; McGrath 1996, 
1999); Cane River, Yancey County, North Carolina (Service 1994, 1996; 
McGrath 1997); and the main stem of the Nolichucky River, Yancey and 
Mitchell Counties, North Carolina, extending downstream to the vicinity 
of Erwin in Unicoi County, Tennessee (Service 1994, 1996). Two 
individuals have also recently been found in the North Toe River, 
Yancey and Mitchell Counties, North Carolina, below the confluence of 
Crabtree Creek (McGrath 1999), and 15 live individuals, with no more 
than 2 to 3 at each site (J.A. Fridell, pers. observation 1998, 2000) 
and one shell (S. Fraley, Tennessee Valley Authority, Norris, 
Tennessee, pers. comm. 1999) have been recorded from the South Toe 
River, Yancey County, North Carolina. The majority of the surviving 
occurrences of the Appalachian elktoe appear to be small to extremely 
small and restricted to scattered pockets of suitable habitat.
    Historically, the species has been recorded from Tulula Creek 
(Tennessee River drainage), the main stem of the French Broad River, 
and the Swannanoa River (French Broad River system) (Clarke 1981), but 
has apparently been eliminated from these streams (Service 1994, 1996). 
There is also a historical record of the Appalachian elktoe from the 
North Fork Holston River in Tennessee (S. S. Haldeman collection); 
however, this record is believed to represent a mislabeled locality 
(Gordon 1991). If the historical record for the species in the North 
Fork Holston River was a good record, the species has apparently been 
eliminated from this river as well.
    We know very little about the life history and microhabitat 
requirements of the Appalachian elktoe. The species has been reported 
from relatively shallow, medium-sized creeks and rivers with cool, 
clean, well-oxygenated, moderate-to fast-flowing water. The species is 
most often found in riffles, runs, and shallow flowing pools with 
stable, relatively silt-free, coarse sand and gravel substrate 
associated with cobble, boulders, and/or bedrock. Stability of the 
substrate appears to be critical to the Appalachian elktoe, and the 
species is seldom found in stream reaches with accumulations of silt or 
shifting sand, gravel, or cobble. Individuals that have been 
encountered in these areas are believed to have been scoured out of 
upstream areas during periods of heavy rain, and have not been found on 
subsequent surveys (C. McGrath, pers. comm. 1996; J.A. Fridell, pers. 
observation 1995, 1996, 1999).
    Like other freshwater mussels, the Appalachian elktoe feeds by 
filtering food particles from the water column. The specific food 
habits of the species are unknown, but other freshwater mussels have 
been documented to feed on detritus, diatoms, phytoplankton, and 
zooplankton (Churchill and Lewis 1924). The reproductive cycle of the 
Appalachian elktoe is similar to that of other native freshwater 
mussels. Males release sperm into the water column; the sperm are then 
taken in by the females through their siphons during feeding and 
respiration. The females retain the fertilized eggs in their gills 
until the larvae (glochidia) fully develop. The mussel glochidia are 
released into the water, and within a few days they must attach to the 
appropriate species of fish, which they then parasitize for a short 
time while they develop into juvenile mussels. They then detach from 
their fish host and sink to the stream bottom where they continue to 
develop, provided they land in a suitable substrate with the correct 
water conditions. Personnel with the Tennessee Technological University 
at Cookeville, Tennessee, identified the banded sculpin (Cottus 
carolinae) as a host species for glochidia of the Appalachian elktoe 
(M. Gordon, Tennessee Technological University, pers. comm. 1993). The 
Environmental Protection Agency's (EPA) Science and Ecosystem Support 
Division's Aquatic Lab in Athens, Georgia, documented the mottled 
sculpin (Cottus bairdi), a species more common within the majority of 
the range of the Appalachian elktoe than the banded sculpin, as a 
suitable host for Appalachian elktoe (A. Keller, EPA, Athens, Georgia, 
pers. comm. 1999). The life span and many other aspects of the mussel's 
life history are currently unknown.

Reasons for Decline and Threats to Surviving Populations

    Available information indicates that several factors adversely 
affect water and habitat quality of our creeks and rivers and have 
contributed to the decline and loss of populations of the Appalachian 
elktoe and threaten the remaining populations. These factors include 
pollutants in wastewater discharges (sewage treatment plants and 
industrial discharges); habitat loss and alteration associated with 
impoundments, channelization, and dredging operations; and the run-off 
of silt, fertilizers, pesticides, and other pollutants from poorly 
implemented land-use activities (Service 1994, 1996).
    Freshwater mussels, especially in their early life stages, are 
extremely sensitive to many pollutants (chlorine, ammonia, heavy 
metals, high concentrations of nutrients, etc.) commonly found in 
municipal and industrial wastewater effluents (Havlik and Marking 1987, 
Goudreau et al. 1988, Keller and Zam 1991). In the early 1900s, Ortmann 
(1909) noted that the disappearance of mussels is one of the first and 
most reliable indicators of stream pollution.
    Activities such as impoundments, channelization projects, and in-
stream dredging operations eliminate mussel habitat. These activities 
can also alter the quality and stability of the remaining stream 
reaches by affecting the flow regimes, water velocities, and water 
temperature and chemistry.
    Agriculture (both crop and livestock) and forestry operations, 
mining activities, highway and road construction, residential and 
industrial developments, and other construction and land-clearing 
activities that do not adequately control soil erosion and storm-water 
run-off contribute excessive amounts of silt, pesticides, fertilizers, 
heavy metals, and other pollutants. These pollutants suffocate and 
poison freshwater mussels. The run-off of storm water from cleared 
areas, roads, rooftops, parking lots, and other developed areas, which 
is often ditched or piped directly into streams, not only results in 
stream pollution but also results in increased water volume and 
velocity during heavy rains. The high volume and velocity cause channel 
and stream-bank scouring that leads to the degradation and elimination 
of mussel habitat. Construction and land-clearing operations are 
particularly detrimental when they result in the alteration of flood 
plains or the removal of forested stream buffers that ordinarily would 
help maintain water quality and the stability of stream banks and 
channels by absorbing, filtering, and slowly releasing rainwater. When 
storm water run-off increases from land-clearing activities, less water 
is absorbed to recharge ground water levels. Therefore, flows during 
dry months can decrease and adversely affect mussels and other aquatic 
organisms.

Previous Federal Actions

    We recognized the Appalachian elktoe in the May 22, 1984, Animal 
Notice of Review published in the Federal Register (49 FR 21675) and 
again in the January 6, 1989, Animal Notice of Review (54 FR 579) as a 
species under review for potential

[[Page 9542]]

addition to the Federal List of Endangered and Threatened Wildlife and 
Plants. We designated the Appalachian elktoe as a category 2 candidate 
for Federal listing on these candidate lists. We no longer maintain a 
list of category 2 candidate species. At that time, category 2 
represented those species for which we had some information indicating 
that the taxa may be under threat, but sufficient information was 
lacking to determine if they warranted Federal listing and to prepare a 
proposed rule. Subsequently, surveys of historical and potential 
Appalachian elktoe habitat were conducted and revealed that the species 
had undergone a significant decline throughout its historical range and 
that the remaining occurrences were threatened by many of the same 
factors that are believed to have resulted in this decline. 
Accordingly, on June 10, 1992, we reclassified the Appalachian elktoe 
as a category 1 candidate. At that time, category 1 candidates were 
those species for which we had enough substantial information on 
biological vulnerability and threats to support proposals to list them 
as endangered or threatened species. On April 20, 1992, and again on 
August 21, 1992, we notified appropriate Federal, State, and local 
government agencies that we were gathering information on the 
Appalachian elktoe and that the species might be proposed for Federal 
listing. We received a total of six written comments on these two 
notices. The North Carolina Wildlife Resources Commission (NCWRC) (two 
written comments), the North Carolina Natural Heritage Program (two 
written comments), and an interested biologist expressed their support 
for the species' being proposed for protection under the Act. The U.S. 
Soil Conservation Service stated that they did not have any additional 
information on this species. We did not receive any comments opposing 
the potential listing.
    On September 3, 1993, we published in the Federal Register (58 FR 
46940) a proposed rule to list the Appalachian elktoe as an endangered 
species. The proposed rule provided information on the species' 
biology, status, and threats to its continued existence and included 
our proposed determination that the designation of critical habitat was 
not prudent for the Appalachian elktoe. We solicited comments or 
suggestions concerning the proposed rule from the public, concerned 
governmental agencies, the scientific community, industry, and other 
interested parties. We requested comments from appropriate Federal and 
State agencies, county governments, scientific organizations, and 
interested parties by letters dated September 14, 1993, and January 27, 
1994. We published a legal notice, which invited general public 
comment, in the following newspapers: The Erwin Record, Erwin, 
Tennessee, September 22, 1993; Mitchell News Journal, Spruce Pine, 
North Carolina, September 22, 1993; Yancey Journal, Burnsville, North 
Carolina, September 22, 1993; Smoky Mountain Times, Bryson City, North 
Carolina, September 23, 1993; and Franklin Press, Franklin, North 
Carolina, September 24, 1993.
    In response to the proposed rule, we received four comments, one 
supporting the listing and three requesting a public hearing. In the 
Federal Register of January 21, 1994, (59 FR 3326) we published a 
notice announcing the public hearing and the reopening of the comment 
period to extend to February 21, 1994, to ensure that all interested 
parties had ample time to provide information on the proposed rule. On 
February 8, 1994, we held the public hearing at the Mitchell High 
School in Bakersville, North Carolina. We received 20 verbal statements 
and written comments during the public hearing; 14 of them expressed 
opposition to the listing of the Appalachian elktoe, 5 expressed 
support for the listing, and 1 expressed an interest but offered 
neither support nor opposition. We received 40 additional written 
comments during the reopened comment period; 8 opposed the listing, 31 
supported the listing, and 1 expressed neither opposition nor support.
    Following our review of all the comments and information received 
throughout the listing process, by final rule (59 FR 60324) dated 
November 23, 1994, we listed the Appalachian elktoe as endangered. We 
addressed the comments received throughout the listing process and 
incorporated changes into the final rule, as appropriate. That decision 
included our determination that the designation of critical habitat was 
not prudent for the Appalachian elktoe because, after a review of all 
the available information, we determined that such designation would 
not be beneficial to the species (see ``Prudency Determination'' 
section below).
    On June 30, 1999, the Southern Appalachian Biodiversity Project and 
the Foundation for Global Sustainability filed a lawsuit in United 
States District Court for the District of Columbia against the Service, 
the Director of the Service, and the Secretary of the Department of the 
Interior, challenging the Service's ``not prudent'' critical habitat 
determinations for four species in North Carolina--the Appalachian 
elktoe (Alasmidonta raveneliana), Carolina heelsplitter (Lasmigona 
decorata), spruce-fir moss spider (Microhexura montivaga), and rock 
gnome lichen (Gymnoderma lineare). On February 29, 2000, the U.S. 
Department of Justice entered into a settlement agreement with the 
plaintiffs in which we agreed to reexamine our prudency determination 
and submit to the Federal Register, by February 1, 2001, a withdrawal 
of the existing not prudent determination for the Appalachian elktoe, 
together with a new proposed critical habitat determination if 
appropriate. We have agreed further that if, upon consideration of all 
the available information and comments, we determine that designating 
critical habitat is not prudent for the Appalachian elktoe, we will 
submit a final rule of that finding to the Federal Register by August 
1, 2001. On the other hand, if we determine that the designation of 
critical habitat is prudent for the Appalachian elktoe, we will send a 
final rule of this finding to the Federal Register by November 1, 2001.
    This proposal is the product of our reexamination of our prudency 
determination for the Appalachian elktoe and reflects our 
interpretation of the recent judicial opinions on critical habitat 
designation and the standards placed on us for making a not prudent 
determination. If additional information becomes available on the 
species' biology and distribution and threats to the species, we may 
reevaluate this proposal to designate critical habitat, including 
proposing additional critical habitat, proposing the deletion or 
boundary refinement of existing proposed critical habitat, or 
withdrawing our proposal to designate critical habitat.

Prudency Determination

    Section 4(a)(3) of the Act and implementing regulations (50 CFR 
424.12) require that, to the maximum extent prudent and determinable, 
we designate critical habitat at the time a species is determined to be 
endangered or threatened. Regulations under 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) 
such designation of critical habitat would not be beneficial to the 
species. In our November 23, 1994, final rule, we determined that the 
designation of critical habitat was not

[[Page 9543]]

prudent for the Appalachian elktoe because such designation would not 
be beneficial to the species.
    A critical habitat designation has no effect on actions in which a 
Federal agency is not involved, including actions on private or State 
land unless these actions require Federal funds or a Federal permit. 
The regulations that provide for the protection of designated critical 
habitat come into play through section 7 of the Act. Requirements under 
section 7 of the Act apply only to Federal actions and activities. They 
require Federal agencies to ensure, in consultation with us, that 
activities they fund, authorize, or carry out are not likely to 
jeopardize the continued existence of listed species or result in the 
destruction or adverse modification of designated critical habitat. 
Regulations for the implementation of section 7 of the Act (50 CFR 
402.2) provide for both a ``jeopardy'' standard and an ``adverse 
modification or destruction of critical habitat'' standard. 50 CFR 
402.2 defines ``jeopardize the continued existence of'' as meaning to 
engage in an action that would reasonably be expected, directly or 
indirectly, to appreciably reduce the likelihood of both the ``survival 
and recovery'' of a listed species in the wild by reducing the 
reproduction, numbers, or distribution of that species. ``Destruction 
or adverse modification'' is defined as a direct or indirect alteration 
that appreciably diminishes the value of critical habitat for both the 
``survival and recovery'' of a listed species. These regulations 
require that the analysis of adverse modification or destruction of 
critical habitat, like the jeopardy analysis, consider the detrimental 
effects of a proposed Federal action to both the survival and recovery 
of the listed species. Because of the restricted range and limited 
amount of suitable habitat available to the Appalachian elktoe, we 
determined in the November 23, 1994, final rule that any action that 
would likely result in the destruction or adverse modification of the 
species' habitat would also likely jeopardize the species' continued 
existence. Since Federal actions resulting in jeopardy are also 
prohibited by section 7, we determined that the designation of critical 
habitat would not provide any additional protection benefitting the 
species beyond that provided by the jeopardy standard.
    In addition, we were concerned that the rarity and uniqueness of 
the Appalachian elktoe could generate interest in the species and that 
the publicity associated with the designation of critical habitat, 
together with the publication of maps and descriptions of critical 
habitat, could increase the vulnerability of the species to collection, 
vandalism, or other disturbance. Although we did not base our ``not 
prudent'' determination on increased threat to the Appalachian elktoe, 
we did consider the potential increased threat to the species from 
critical habitat designation in making our determination that the 
designation of critical habitat was not prudent for the Appalachian 
elktoe because it would not benefit the species.
    However, in the past few years, several of our determinations that 
the designation of critical habitat would not be prudent have been 
overturned by court decisions. For instance, in Conservation Council 
for Hawaii v. Babbitt, the United States District Court for the 
District of Hawaii ruled that the Service could not rely on the 
``increased threat'' rationale for a ``not prudent'' determination 
without specific evidence of the threat to the species at issue (2 F. 
Supp. 2d 1280 [D. Hawaii 1998]). And in Natural Resources Defense 
Council v. U.S. Department of the Interior, the United States Court of 
Appeals for the Ninth Circuit ruled that the Service must balance, in 
order to invoke the ``increased threat rationale,'' the threat against 
the benefit to the species of designating critical habitat, 113 F. 3d 
1121, 1125 (9th Cir. 1997).
    We continue to be concerned that the Appalachian elktoe is 
vulnerable to unrestricted collection or disturbance of its habitat and 
that these threats might be increased by the publication of critical 
habitat maps and further dissemination of location and habitat 
information. Although we have received one unconfirmed report since the 
Appalachian elktoe was listed as endangered, where Appalachian elktoes 
have been collected and used as fish bait, at this time we do not have 
specific evidence for the taking, collection, trade, vandalism, or 
other unauthorized human disturbance specific to the Appalachian 
elktoe. Consequently, we hereby propose to withdraw our previous 
determination that the identification of critical habitat can be 
expected to increase the degree of threat to the species.
    The courts also have ruled that, in the absence of a finding that 
the designation of critical habitat would increase threats to a 
species, the existence of another type of protection, even if it offers 
potentially greater protection to the species, does not justify a ``not 
prudent'' finding Conservation Council for Hawaii v. Babbitt 2 F. Supp. 
2d 1280. Accordingly, we withdraw our previous determination that 
designation of critical habitat will not benefit the Appalachian 
elktoe. It is true that we are already working with Federal and State 
agencies, private individuals, and organizations in carrying out 
conservation activities for the Appalachian elktoe and in conducting 
surveys for additional occurrences of the species and to assess habitat 
conditions. These entities are fully aware of the distribution, status, 
and habitat requirements for the Appalachian elktoe, as currently 
known. However, as stated above, some additional educational or 
informational benefit may result from designating critical habitat. 
Therefore, we propose that the designation of critical habitat is 
prudent for the Appalachian elktoe.

Proposed Critical Habitat

    Critical habitat is defined in section 3(5)(A) of the Act as (i) 
the specific areas within the geographic area occupied by the species 
on which are found those physical or biological features (I) essential 
to the conservation of the species and (II) that may require special 
management consideration 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. Areas outside the geographic area currently occupied by 
the species shall be designated as critical habitat only when a 
designation limited to its present range would be inadequate to ensure 
the conservation of the species. ``Conservation'' is defined in section 
3(3) of the Act as the use of all methods and procedures necessary to 
bring endangered or threatened species to the point where listing under 
the Act is no longer necessary. Regulations under 50 CFR 424.02(j) 
define ``special management considerations or protection'' to mean any 
methods or procedures useful in protecting the physical and biological 
features of the environment for the conservation of listed species.
    In order to be included in a critical habitat designation, the 
habitat must first be ``essential to the conservation of the species.'' 
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 (i.e., areas on which 
are found the primary constituent elements, as defined at 50 CFR 
424.12(b)).
    Section 4 requires that we designate critical habitat at the time 
of listing and based on what we know at the time of the designation. 
When we designate critical habitat at the time of listing or under 
short court-ordered deadlines, we

[[Page 9544]]

will often not have sufficient information to identify all areas of 
critical habitat. We are required, nevertheless, to make a decision and 
thus must base our designations on what, at the time of designation, we 
know to be critical habitat.
    Within the geographic area occupied by the species, we will 
designate only areas currently known to be essential. Essential areas 
should already have the features and habitat characteristics that are 
necessary to sustain the species. We will not speculate about what 
areas might be found to be essential if better information became 
available, or what areas may become essential over time. If the 
information available at the time of designation does not show that an 
area provides essential life cycle needs of the species, then the area 
should not be included in the critical habitat designation. Within the 
geographic area occupied by the species, we will not designate areas 
that do not now have the primary constituent elements, as defined at 50 
CFR 424.12(b), that provide essential life cycle needs of the species.
    Our regulations state that, ``The Secretary shall designate as 
critical habitat areas outside the geographical area presently occupied 
by a species only when a designation limited to its present range would 
be inadequate to ensure the conservation of the species.'' (50 CFR 
424.12(e)). Accordingly, when the best available scientific and 
commercial data do not demonstrate that the conservation needs of the 
species require designation of critical habitat outside of occupied 
areas, we will not designate critical habitat in areas outside the 
geographic area occupied by the species.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), provides criteria, establishes procedures, and provides 
guidance to ensure that decisions made by the Service represent the 
best scientific and commercial data available. It requires Service 
biologists, to the extent consistent with the Act and with the use of 
the best scientific and commercial data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat. When determining which areas are critical 
habitat, a primary source of information should be the listing package 
for the species. Additional information may be obtained from a recovery 
plan, articles in peer-reviewed journals, conservation plans developed 
by States and counties, scientific status surveys and studies, and 
biological assessments or other unpublished materials (i.e., gray 
literature).
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize that designation of 
critical habitat may not include all of the habitat areas that may 
eventually be determined to be necessary for the recovery of the 
species. For these reasons, all should understand that critical habitat 
designations do not signal that habitat outside the designation is 
unimportant or may not be required for recovery. Areas outside the 
critical habitat designation will continue to be subject to 
conservation actions that may be implemented under section 7(a)(1) and 
to the regulatory protections afforded by the section 7(a)(2) jeopardy 
standard and the section 9 take prohibition, as determined on the basis 
of the best available information at the time of the action. We 
specifically anticipate that federally funded or assisted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.
    Section 4(b)(2) of the Act requires us to base critical habitat 
proposals on the best scientific and commercial data available, after 
taking into consideration the economic impact, and any other relevant 
impact, of specifying any particular area as critical habitat. We may 
exclude areas from critical habitat designation when the benefits of 
excluding those areas outweigh the benefits of including the areas 
within the critical habitat, provided the exclusion will not result in 
the extinction of the species.

Methods

    The proposed areas of critical habitat described below constitute 
our best assessment of the areas needed for the conservation and 
recovery of the Appalachian elktoe in accordance with the goals 
outlined in our recovery plan for the species (Service 1996), and are 
based on the best scientific and commercial information currently 
available to us concerning the species' known present and historical 
range, habitat, biology, and threats. All of the areas we propose to 
designate as critical habitat are within what we believe to be the 
geographic area occupied by the Appalachian elktoe, include all known 
surviving occurrences of the species, and are essential for the 
conservation of the species. To the extent feasible, we will continue, 
with the assistance of other Federal, State, and private researchers, 
to conduct surveys and research on the species and its habitat. If new 
information becomes available indicating that other areas within the 
Appalachian elktoe's historical range are essential to the conservation 
of the species, we will revise the proposed critical habitat or 
designated critical habitat for the Appalachian elktoe accordingly.

Primary Constituent Elements

    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 to propose 
as critical habitat, we are required to base critical habitat 
determinations on the best scientific and commercial data available and 
to consider those physical and biological features (primary constituent 
elements) that are essential to the conservation of the species and 
that may require special management considerations or protection. Such 
requirements include, but are not limited to: space for individual and 
population growth and for normal behavior; food, water, air, light, 
minerals, or other nutritional or physiological requirements; cover or 
shelter; sites for breeding, reproduction, and rearing of offspring; 
and habitats that are protected from disturbance or are representative 
of the historical geographical and ecological distribution of a 
species.
    When considering areas for designation as critical habitat, we are 
required to focus on the principal biological and physical constituent 
elements within the defined area that are essential to the conservation 
of the species (50 CFR 424.12 (b)). Although additional information is 
needed to better define the habitat requirements of the species, 
particularly the microhabitat requirements, based on the best available 
information, the primary constituent elements essential for the 
conservation of the Appalachian elktoe are:
    1. Permanent, flowing, cool, clean water;
    2. Geomorphically stable stream and river channels and banks;
    3. Pool, riffle, and run sequences within the channel;
    4. Sand, gravel, cobble, boulder, and bedrock substrates with no 
more than low amounts of fine sediment;
    5. Moderate to high stream gradient;
    6. Periodic natural flooding; and

[[Page 9545]]

    7. fish hosts, with adequate living, foraging, and spawning areas 
for them.

Areas Proposed for Designation as Critical Habitat

    The proposed designation of critical habitat for the Appalachian 
elktoe includes 38.5 kilometers (km)--24.0 river miles (rm)--of the 
Little Tennessee River in Swain and Macon Counties, North Carolina; 
41.6 km (26.0 rm) of the Tuckasegee River in Jackson and Swain 
Counties, North Carolina; 14.6 km (9.1 rm) of the Cheoah River in 
Graham County, North Carolina; 7.5 km (4.7 rm) of the Little River in 
Transylvania County, North Carolina; 17.8 km (11.1 rm) of the West Fork 
Pigeon River and the Pigeon River in Haywood County, North Carolina; 
22.6 km (14.1 rm) of the South Toe River and 26.4 km (16.5 rm) of the 
Cane River in Yancey County, North Carolina; 5.9 km (3.7 rm) of the 
North Toe River and 34.6 km (21.6 rm) of the Toe River in Yancey and 
Mitchell Counties, North Carolina; and 21.6 km (13.5 rm) of the 
Nolichucky River in Yancey and Mitchell Counties, North Carolina, and 
Unicoi County, Tennessee.
    Approximately 67 percent--14.4 km (9.0 rm)--of the portion of the 
Nolichucky River that is proposed for designation as critical habitat 
is bordered by the Pisgah National Forest in North Carolina and the 
Cherokee National Forest in Tennessee; 88 percent--12.8 km (8.0 rm)--of 
the portion of the Cheoah River proposed for designation as critical 
habitat is bordered by the Nantahala National Forest; and a small 
percentage of the portion of the Tuckasegee River proposed for 
designation as critical habitat is bordered by land belonging to the 
Eastern Band of the Cherokee Indians. The remainder of the land along 
the portions of the Nolichucky River, Cheoah River, and Tuckasegee 
River proposed for designation as critical habitat, and all of the land 
along the portions of the Little Tennessee River, Little River, West 
Fork Pigeon River, Pigeon River, North Toe River, South Toe River, and 
Cane River that are proposed for designation as critical habitat are 
privately owned.
    We are proposing the following areas for designation as critical 
habitat for the Appalachian elktoe; these areas provide all of the 
above primary constituent elements. The lateral extent of proposed 
critical habitat is up to the ordinary high water line on each bank. In 
addition, given the threats to the species' habitat discussed in the 
final listing rule (59 FR 60324) and summarized above, we believe these 
areas may need special management considerations or protection:

Unit 1. Macon County and Swain County, North Carolina

    Unit 1 encompasses the main stem of the Little Tennessee River 
(Tennessee River system), from the Lake Emory Dam at Franklin, Macon 
County, North Carolina, downstream to the backwaters of Fontana 
Reservoir in Swain County, North Carolina. This unit is part of the 
currently occupied range of the Appalachian elktoe and, based on the 
best available information, provides the physical and biological 
habitat elements necessary for the life cycle needs of the species. In 
accordance with the recovery goals and criteria outlined in the 
recovery plan for the Appalachian elktoe (Service 1996), protection of 
this unit is essential to the conservation of the species.

Unit 2. Jackson County and Swain County, North Carolina

    Unit 2 encompasses the main stem of the Tuckasegee River (Little 
Tennessee River system), from the N.C. State Route 1002 Bridge in 
Cullowhee, Jackson County, North Carolina, downstream to the N.C. 
Highway 19 Bridge, north of Bryson City, Swain County, North Carolina. 
This unit is part of the currently occupied range of the Appalachian 
elktoe and, based on the best available information, provides the 
physical and biological habitat elements necessary for the life cycle 
needs of the species. In accordance with the recovery goals and 
criteria outlined in the recovery plan for the Appalachian elktoe 
(Service 1996), protection of this unit is essential to the 
conservation of the species.

Unit 3. Graham County, North Carolina

    Unit 3 encompasses the main stem of the Cheoah River (Little 
Tennessee River system), from the Santeetlah Dam, downstream to its 
confluence with the Little Tennessee River. This unit is part of the 
currently occupied range of the Appalachian elktoe and, based on the 
best available information, provides the physical and biological 
habitat elements necessary for the life cycle needs of the species. In 
accordance with the recovery goals and criteria outlined in the 
recovery plan for the Appalachian elktoe (Service 1996), protection of 
this unit is essential to the conservation of the species.

Unit 4. Transylvania County, North Carolina

    Unit 4 encompasses the main stem of the Little River (French Broad 
River system), from the Cascade Lake Power Plant, downstream to its 
confluence with the French Broad River. This unit is part of the 
currently occupied range of the Appalachian elktoe and, based on the 
best available information, provides the physical and biological 
habitat elements necessary for the life cycle needs of the species. In 
accordance with the recovery goals and criteria outlined in the 
recovery plan for the Appalachian elktoe (Service 1996), protection of 
this unit is essential to the conservation of the species.

Unit 5. Haywood County, North Carolina

    Unit 5 encompasses the main stem of the West Fork Pigeon River 
(French Broad River system), from the confluence of the Little East 
Fork Pigeon River, downstream to the confluence of the East Fork Pigeon 
River, and the main stem of the Pigeon River, from the confluence of 
the West Fork Pigeon River and the East Fork Pigeon River, downstream 
to the N.C. Highway 215 Bridge crossing, south of Canton, North 
Carolina. This unit is part of the currently occupied range of the 
Appalachian elktoe and, based on the best available information, 
provides the physical and biological habitat elements necessary for the 
life cycle needs of the species. In accordance with the recovery goals 
and criteria outlined in the recovery plan for the Appalachian elktoe 
(Service 1996), protection of this unit is essential to the 
conservation of the species.

Unit 6. Yancey County and Mitchell County, North Carolina, and Unicoi 
County, Tennessee

    Unit 6 encompasses the main stem of the North Toe River, Yancey and 
Mitchell Counties, North Carolina, from the confluence of Big Crabtree 
Creek, downstream to the confluence of the South Toe River; the main 
stem of the South Toe River, Yancey County, North Carolina, from the 
N.C. State Route 1152 Bridge, downstream to its confluence with the 
North Toe River; the main stem of the Toe River, Yancey and Mitchell 
Counties, North Carolina, from the confluence of the North Toe River 
and the South Toe River, downstream to the confluence of the Cane 
River; the main stem of the Cane River, Yancey County, North Carolina, 
from the N.C. State Route 1381 Bridge, downstream to its confluence 
with the Toe River; and the main stem of the Nolichucky River from the 
confluence of the Toe River and the Cane River in Yancey County and 
Mitchell County, North Carolina, downstream to the U.S. Highway 23/19W 
Bridge southwest of Erwin, Unicoi County, Tennessee. This unit is part 
of

[[Page 9546]]

the currently occupied range of the Appalachian elktoe and, based on 
the best available information, provides the physical and biological 
habitat elements necessary for the life cycle needs of the species. In 
accordance with the recovery goals and criteria outlined in the 
recovery plan for the Appalachian elktoe (Service 1996), protection of 
this unit is essential to the conservation of the species.

Effects of Critical Habitat Designation

    Designating critical habitat does not, in itself, lead to the 
recovery of a listed species. The designation does not establish a 
reserve, create a management plan, establish numerical population 
goals, prescribe specific management practices (inside or outside of 
critical habitat), or directly affect areas not designated as critical 
habitat. Specific management recommendations for areas designated as 
critical habitat are most appropriately addressed in recovery and 
management plans and through section 7 consultation and section 10 
permits.
    Critical habitat receives regulatory protection only under section 
7 of the Act through the prohibition against destruction or adverse 
modification of designated critical habitat by actions carried out, 
funded, or authorized by a Federal agency. Section 7 also requires 
conferences on Federal actions that are likely to result in the adverse 
modification or destruction of proposed critical habitat. Aside from 
the protection that may be provided under section 7, the Act does not 
provide other forms of protection to land designated as critical 
habitat. Because consultation under section 7 of the Act does not apply 
to activities on private or other non-Federal land that do not involve 
a Federal action, the critical habitat designation would not afford any 
protection under the Act against such activities. Accordingly, the 
designation of critical habitat on private land will not have any 
regulatory effect on private or State activities in these areas unless 
those activities require a Federal permit, authorization, or funding.
    Section 7(a)(4) of the Act and regulations at 50 CFR 402.10 require 
Federal agencies to confer with us on any action that is likely to 
result in the destruction or adverse modification of proposed critical 
habitat. ``Destruction or adverse modification'' is defined as a direct 
or indirect alteration that appreciably diminishes the value of 
critical habitat for both the survival and recovery of a listed 
species. These conferences, which consist of informal discussions, are 
intended to assist responsible agencies and the applicant, if 
applicable, in identifying and resolving potential conflicts. 
Conference reports resulting from these discussions provide 
conservation recommendations to assist the agency in eliminating 
conflicts that may be caused by the proposed action. The conservation 
recommendations in a conference report are advisory. We may issue a 
formal conference opinion if requested by a Federal agency. Formal 
conference opinions on proposed critical habitat are prepared according 
to 50 CFR 402.14 as if critical habitat were designated. We may adopt 
the formal conference opinion as the biological opinion when the 
critical habitat is designated if no significant new information or 
changes in the action alter the content of the opinion (see 50 CFR 
402.10(d)).
    If this proposal is finalized, activities on Federal land, 
activities on private or State land carried out by a Federal agency, or 
activities receiving funding or requiring a permit from a Federal 
agency that may affect the designated critical habitat of the 
Appalachian elktoe will require consultation under section 7 of the 
Act. However, section 7 of the Act also requires Federal agencies to 
ensure that actions they authorize, fund, or carry out do not 
jeopardize the continued existence of listed species and to consult 
with us on any action that may affect a listed species. Activities that 
jeopardize listed species are defined as actions that ``directly or 
indirectly, reduce appreciably the likelihood of both the survival and 
recovery of a listed species'' (50 CFR 402.02). Federal agencies are 
prohibited from jeopardizing listed species through their actions, 
regardless of whether critical habitat has been designated for the 
species. Where critical habitat is designated, section 7 also requires 
Federal agencies to ensure that activities they authorize, fund, or 
carry out do not result in the destruction or adverse modification of 
designated critical habitat. Activities that destroy or adversely 
modify critical habitat are defined as an action that ``appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species'' (50 CFR 402.02). Common to the 
definitions of both ``jeopardy'' and ``destruction or adverse 
modification of critical habitat'' is the concept that the likelihood 
of both the survival and recovery of the species are appreciably 
reduced by the action. Because of the small size of the majority of the 
surviving populations of the Appalachian elktoe, the species' 
restricted range, and the limited amount of suitable habitat available 
to the species, actions that are likely to destroy or adversely modify 
critical habitat are also likely to jeopardize the species. 
Accordingly, even though Federal agencies will be required to evaluate 
the potential effects of their actions on any habitat that is 
designated as critical habitat for the Appalachian elktoe, this 
designation would not be likely to change the outcome of section 7 
consultations.
    Section 4(b)(8) of the Act requires us to briefly evaluate, in any 
proposed or final regulation that designates critical habitat, those 
activities that may adversely modify such habitat or may be affected by 
such designation. Activities that may destroy or adversely modify 
critical habitat are, as discussed above, those that alter the primary 
constituent elements to the extent that the value of critical habitat 
for both the survival and recovery of the Appalachian elktoe is 
appreciably diminished. This may include any activity, regardless of 
the activity's location in relation to designated or proposed critical 
habitat, that would significantly alter the natural flow regime, 
channel morphology or geometry, or water chemistry or temperature of 
any of the six proposed critical habitat units, as described by the 
constituent elements, or any activity that could result in the 
significant discharge or deposition of sediment, excessive nutrients, 
or other organic or chemical pollutants into any of the six proposed 
critical habitat units. Such activities include (but are not limited 
to) carrying out or issuing permits, authorization, or funding for 
reservoir construction; stream alterations; wastewater facility 
development; hydroelectric facility construction and operation; 
pesticide/herbicide applications; forestry operations; and road, 
bridge, and utility construction. Please note that these same 
activities also have the potential to jeopardize the continued 
existence of the Appalachian elktoe, and Federal agencies are already 
required to consult with us on these types of activities, or any other 
activity, that may affect the species.
    Requests for copies of the regulations on listed wildlife and 
inquiries about prohibitions and permits, or questions regarding 
whether specific activities will constitute adverse modification of 
critical habitat, may be addressed to the U.S. Fish and Wildlife 
Service, Asheville Field Office, 160 Zillicoa Street, Asheville, North 
Carolina 28801.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
available and to consider the economic and other relevant

[[Page 9547]]

impacts of designating a particular area as critical habitat. We may 
exclude areas as critical habitat upon a determination that the 
benefits of such exclusion outweigh the benefits of specifying such 
areas as critical habitat. We cannot exclude such areas from critical 
habitat when such exclusion will result in the extinction of the 
species. We will conduct an analysis of the economic impacts of 
designating the areas identified above as critical habitat prior to a 
final determination. When a draft economic analysis is completed, we 
will announce its availability with a notice in the Federal Register 
and will open a 30-day comment period at that time. Secretarial Order 
3206: American Indian Tribal Rights, Federal-Tribal Trust 
Responsibilities, and the Endangered Species Act.
    In accordance with the Presidential Memorandum of April 29, 1994, 
and E.O. 13175 we are required to assess the effects of critical 
habitat designations on tribal land and tribal trust resources. A 
portion of the Tuckasegee River that we consider to be essential to the 
conservation of the Appalachian elktoe and that we are proposing for 
designation as critical habitat for the species is partially bordered 
by land owned by the Eastern Band of the Cherokee Indians. The short 
amount of time allowed to us under the settlement agreement (see 
``Previous Federal Actions'' section above) for preparing this proposal 
has precluded us from coordinating the proposal with the Eastern Band 
of the Cherokee Indians. However, subsequent to this proposal, we will 
consult with them before making a final determination as to whether 
this reach of the Tuckasegee River should be designated as critical 
habitat for the Appalachian elktoe.

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, we solicit 
comments or suggestions from the public, other concerned governmental 
agencies, Native American tribes, the scientific community, industry, 
or any other interested party concerning this proposed rule. We 
particularly seek comments concerning:
    1. The reasons why any habitat should or should not be determined 
to be critical habitat as provided by section 4 of the Act;
    2. Specific information on the numbers and distribution of the 
Appalachian elktoe and what habitat is essential to the conservation of 
the species and why;
    3. Information on specific characteristics of habitat essential to 
the conservation of the Appalachian elktoe;
    4. Land-use practices and current or planned activities in the 
subject areas and their possible effects on proposed critical habitat;
    5. Any foreseeable economic or other impacts resulting from the 
proposed designation of critical habitat, in particular, any impacts on 
small entities or families;
    6. Economic and other values associated with designating critical 
habitat for the Appalachian elktoe, such as those derived from 
nonconsumptive uses (e.g., hiking, camping, bird-watching, enhanced 
watershed protection, improved air quality, ``existence values,'' and 
reductions in administrative costs); and
    7. Potential adverse effects to the Appalachian elktoe and/or its 
habitat associated with designating critical habitat for the species; 
e.g., increased risk to the species from collecting or the destruction 
of its habitat.
    8. Whether our approach to critical habitat designation could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concern and comments.
    Please submit comments as an ASCII file format and avoid the use of 
special characters and encryption. Please also include ``Attn: [RIN 
number]'' and your name and return address in your e-mail message. If 
you do not receive a confirmation from the system that we have received 
your e-mail message, contact us directly by calling our Asheville Field 
Office (see ADDRESSES section).
    Our practice is to make all comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address from the rulemaking record, which we will honor to 
the extent allowable by law. In some circumstances, we would withhold 
also from the rulemaking record a respondent's identity, as allowable 
by law. If you wish for us to withhold your name and/or address, you 
must state this prominently at the beginning of your comments. However, 
we will not consider anonymous comments. We will make all submissions 
from organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety.

Peer Review

    In accordance with our policy published 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 a review is to ensure that listing decisions are based on 
scientifically sound data, assumptions, and analyses. We will send 
these peer reviewers copies of this proposed rule immediately following 
publication in the Federal Register. We will invite these peer 
reviewers to comment, during the comment period, on the specific 
assumptions and conclusions regarding the proposed designation of 
critical habitat.
    We will consider all comments and information received during the 
60-day comment period on this proposed rule during preparation of a 
final rulemaking. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests must be filed within 45 days of the date of this 
proposal. Such requests must be made in writing and should be addressed 
to the State Supervisor, Asheville Field Office (see ADDRESSES 
section). Written comments submitted during the comment period receive 
equal consideration with those comments presented at a public hearing.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations/
notices that are easy to understand. We invite your comments on how to 
make this notice easier to understand, including answers to questions 
such as the following: (1) Are the requirements in the notice clearly 
stated? (2) Does the notice contain unnecessary technical language or 
jargon that interferes with the clarity? (3) Does the format of the 
proposed rule (grouping and order of sections, use of headings, 
paragraphing, etc.) aid or reduce its clarity? (4) Is the description 
of the notice in the ``Supplementary Information'' section of the 
preamble helpful in understanding the notice? (5) What else could we do 
to make the notice easier to understand?
    Send a copy of any comments that concern how we could make this 
notice easier to understand to: Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street, NW, Washington, 
DC 20240. You may e-mail your comments to the following address: 
<a href="/cdn-cgi/l/email-protection#87c2ffe2e4f4e2e4c7eee8f4a9e3e8eea9e0e8f1"><span class="__cf_email__" data-cfemail="105568757363757350797f633e747f793e777f66">[email protected]</span></a>.

[[Page 9548]]

Required Determinations

Regulatory Planning and Review

    In accordance with the criteria in Executive Order 12866, this rule 
is a significant regulatory action and has been reviewed by the Office 
of Management and Budget (OMB).
    (a) In the economic analysis, we will determine whether this rule 
will have an annual economic effect of $100 million or more, or 
adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government. The Appalachian elktoe was 
listed as an endangered species in 1994. Since that time we have 
conducted, and will continue to conduct, formal and informal section 7 
consultations with other Federal agencies to ensure that their actions 
will not jeopardize the continued existence of the Appalachian elktoe.
    Under the Act, critical habitat may not be adversely modified by a 
Federal agency action; critical habitat does not impose any 
restrictions on non-Federal persons unless they are conducting 
activities funded or otherwise sponsored or permitted by a Federal 
agency (see Table 1 below). Section 7 of the Act requires Federal 
agencies to ensure that they do not jeopardize the continued existence 
of the species. Based on our experience with the species and its needs, 
we believe that any Federal action or authorized action that could 
potentially cause an adverse modification of the proposed critical 
habitat would currently be considered as ``jeopardy'' to the species 
under the Act.
    Accordingly, we do not expect the designation of areas as critical 
habitat within the geographical range occupied by the species to have 
any incremental impacts on what actions may or may not be conducted by 
Federal agencies or non-Federal persons that receive Federal 
authorization or funding. Non-Federal persons who do not have a Federal 
``sponsorship'' of their actions are not restricted by the designation 
of critical habitat. (However, they continue to be bound by the 
provisions of the Act concerning ``take'' of the species, which came 
into play in 1994 when the species was listed as endangered.)
    (b) This rule will not create inconsistencies with other agencies' 
actions. Federal agencies have been required to ensure that their 
actions do not jeopardize the continued existence of the Appalachian 
elktoe since the listing in 1994. As shown in Table 1 (below), no 
additional effects on agency actions are anticipated to result from the 
critical habitat designation. However, we will continue to review this 
proposed action for any inconsistencies with other Federal agency 
actions.

                Table 1.--Impacts of Appalachian Elktoe Listing and Critical Habitat Designation
----------------------------------------------------------------------------------------------------------------
                                                                               Additional activities potentially
       Categories of activities          Activities potentially affected by       affected by critical habitat
                                              species listing only \1\                  designation \2\
----------------------------------------------------------------------------------------------------------------
Federal Activities Potentially         Activities such as carrying out or      None.
 Affected \3\.                          issuing permits, authorization, or
                                        funding for reservoir construction;
                                        stream alterations; wastewater
                                        facility development; hydroelectric
                                        facility construction and operation;
                                        pesticide/herbicide applications;
                                        forestry operations; road, bridge,
                                        and utility construction; or other
                                        activities that could result in
                                        direct or indirect impacts to the
                                        Appalachian elktoe and/or its habitat.
Private and other non-Federal          Activities occurring on Federal land    None.
 Activities Potentially Affected \4\.   or that require a action (permit,
                                        authorization, or funding) and that
                                        involve activities such as those
                                        listed above that could result in
                                        ``take'' of the Appalachian elktoe or
                                        damage or destruction of its habitat.
----------------------------------------------------------------------------------------------------------------
\1\ This column represents the activities potentially affected by listing the Appalachian elktoe as an
  endangered species (November 23, 1994; 59 FR 60324) under the Endangered Species Act.
\2\ This column represents the effects on activities resulting from critical habitat designation beyond the
  effects attributable to the listing of the species.
\3\ Activities initiated by a Federal agency.
\4\ Activities initiated by a private or other non-Federal entity that may need Federal authorization or
  funding.

    (c) The proposed rule, if made final, will not significantly impact 
entitlements, grants, user fees, loan programs, or the rights and 
obligations of their recipients. Federal agencies currently are 
required to ensure that their activities do not jeopardize the 
continued existence of the species, and we do not anticipate that the 
adverse modification prohibition (resulting from the critical habitat 
designation) will have any incremental effects in areas of proposed 
critical habitat.
    (d) This rule will not raise novel legal or policy issues. The 
proposed rule follows the requirements for determining critical habitat 
contained in the Act.

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

    In the draft economic analysis (under section 4 of the Act), we 
will determine whether the designation of critical habitat will have a 
significant effect on a substantial number of small entities. As 
discussed under ``Regulatory Planning and Review'' above, this rule is 
not expected to result in any restrictions in addition to those 
currently in existence for areas of proposed critical habitat.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))

    In the economic analysis, we will determine whether the designation 
of critical habitat will cause (a) any effect on the economy of $100 
million or more, (b) any increases in costs or prices for consumers; 
individual industries; Federal, State, or local government agencies; or 
geographical regions, or (c) any significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. As discussed above, we anticipate that the designation of 
critical habitat will not have any additional effects on these 
activities in areas of critical habitat that are within the 
geographical range occupied by the species.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):

[[Page 9549]]

    a. This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. Small 
governments will not be affected unless they propose an action 
requiring Federal funds, permits, or other authorization. Any such 
activity will require that the involved Federal agency ensure that the 
action will not adversely modify or destroy designated critical 
habitat.
    b. This rule will not produce a Federal mandate on State, local, or 
tribal governments or the private sector of $100 million or greater in 
any year; that is, it is not a ``significant regulatory action'' under 
the Unfunded Mandates Reform Act. The designation of critical habitat 
imposes no new obligations on State or local governments.

Takings

    In accordance with Executive Order 12630, this rule does not have 
significant takings implications, and a takings implication assessment 
is not required. This proposed rule, if made final, will not ``take'' 
private property. The designation of critical habitat affects only 
Federal agency actions. Federal actions on private land could be 
affected by the critical habitat designation; however, we expect no 
regulatory effect from this designation since all proposed areas are 
considered to be within the geographical range occupied by the species 
and would be reviewed under both the jeopardy and adverse modification 
standards under section 7 of the Act.
    This rule will not increase or decrease the current restrictions on 
private property concerning taking of the Appalachian elktoe as defined 
in section 9 of the Act and its implementing regulations (50 CFR 
17.31). Additionally, critical habitat designation does not preclude 
the development of habitat conservation plans and the issuance of 
incidental take permits. Any landowner in areas that are included in 
the designated critical habitat will continue to have opportunity to 
utilize his or her property in ways consistent with the survival of the 
Appalachian elktoe.

Federalism

    In accordance with Executive Order 13132, this 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 the 
development of this critical habitat proposal with, appropriate State 
natural resources agencies in North Carolina and Tennessee. We will 
continue to coordinate any future designation of critical habitat for 
the Appalachian elktoe with the appropriate State agencies. The 
designation of critical habitat for the Appalachian elktoe imposes few, 
if any, additional restrictions to those currently in place and 
therefore has little incremental impact on State and local governments 
and their activities. The designation may provide some benefit to these 
governments in that the areas essential to the conservation of the 
species are more clearly defined and, to the extent currently feasible, 
the primary constituent elements of the habitat necessary to the 
survival of the species are specifically identified. While making this 
definition and identification does not alter where and what federally 
sponsored activities may occur, doing so may assist these local 
governments in long-range planning (rather than waiting for case-by-
case section 7 consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor determined that this rule does not 
unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. The Office of the Solicitor 
will review the final determination for this proposal. We will make 
every effort to ensure that the final determination contains no 
drafting errors, provides clear standards, simplifies procedures, 
reduces burdens, and is clearly written, such that the risk of 
litigation is minimized.

Paperwork Reduction Act

    This rule does not contain any new collections of information that 
require approval by the Office of Management and Budget (OMB) under 44 
U.S.C. 3501 et seq. This rule will not impose new record-keeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations.

National Environmental Policy Act

    We have determined that we do not need to prepare an Environmental 
Assessment or an Environmental Impact Statement as defined by the 
National Environmental Policy Act of 1969 in connection with 
regulations adopted pursuant to section 4(a) of the Act. We published a 
notice outlining our reasons for this determination in the Federal 
Register on October 25, 1983 (48 FR 49244).

References Cited

    A complete list of all references cited in this proposed rule is 
available upon request from the Asheville Field Office (see ADDRESSES 
section).

Author

    The primary author of this document is John Fridell (see ADDRESSES 
section).

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

    For the reasons given in the preamble, we propose to amend 50 CFR 
part 17, as set forth below.

PART 17--[AMENDED]

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

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. In Sec. 17.11(h), revise the entry for the ``Elktoe, 
Appalachian'' under ``CLAMS'' to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

[[Page 9550]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species                                                        Vertebrate
------------------------------------------------------                             population where                     When    Critical
                                                            Historic range          endangered or         Status       listed   habitat    Special rules
           Common name              Scientific name                                   threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
                   *                  *                  *                  *                  *                  *                  *
Clams
                   *                  *                  *                  *                  *                  *                  *
Elktoe, Appalachian.............  Alasmidonta          U.S.A...................  (NC, TN)...........  E                   563   17.95(f)  NA
                                   raveneliana.
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend Sec. 17.95(f) by adding critical habitat for the 
Appalachian elktoe (Alasmidonta raveneliana), in the same alphabetical 
order as the species occurs in 17.11(h).


Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *
    (f) Clams and snails.
* * * * *

Appalachian elktoe (Alasmidonta raveneliana)

    1. Critical habitat units proposed for designation as critical 
habitat are described below and depicted in the maps that follow, 
with the lateral extent of each designated unit bounded by the 
ordinary high water line:
[GRAPHIC] [TIFF OMITTED] TP08FE01.000


[[Page 9551]]


    Unit 1: Macon County and Swain County, North Carolina--the main 
stem of the Little Tennessee River (Tennessee River system), from 
the Lake Emory Dam at Franklin, Macon County, North Carolina, 
downstream to the backwaters of Fontana Reservoir in Swain County, 
North Carolina.
    Unit 2: Jackson County and Swain County, North Carolina--the 
main stem of the Tuckasegee River (Little Tennessee River system), 
from the N.C. State Route 1002 Bridge in Cullowhee, Jackson County, 
North Carolina, downstream to the N.C. Highway 19 Bridge, north of 
Bryson City, Swain County, North Carolina.
[GRAPHIC] [TIFF OMITTED] TP08FE01.001


[[Page 9552]]


    Unit 3: Graham County, North Carolina--the main stem of the 
Cheoah River (Little Tennessee River system), from the Santeetlah 
Dam, downstream to its confluence with the Little Tennessee River.
[GRAPHIC] [TIFF OMITTED] TP08FE01.002


[[Page 9553]]


    Unit 4: Transylvania County, North Carolina--the main stem of 
the Little River (French Broad River system), from the Cascade Lake 
Power Plant, downstream to its confluence with the French Broad 
River.
[GRAPHIC] [TIFF OMITTED] TP08FE01.003


[[Page 9554]]


    Unit 5: Haywood County, North Carolina--the main stem of the 
West Fork Pigeon River (French Broad River system), from the 
confluence of the Little East Fork Pigeon River, downstream to the 
confluence of the East Fork Pigeon River, and the main stem of the 
Pigeon River, from the confluence of the West Fork Pigeon River and 
the East Fork Pigeon River, downstream to the N.C. Highway 215 
Bridge crossing, south of Canton, North Carolina.
[GRAPHIC] [TIFF OMITTED] TP08FE01.004


[[Page 9555]]


    Unit 6: Yancey County and Mitchell County, North Carolina, and 
Unicoi County, Tennessee--the main stem of the North Toe River, 
Yancey and Mitchell Counties, North Carolina, from the confluence of 
Big Crabtree Creek, downstream to the confluence of the South Toe 
River; the main stem of the South Toe River, Yancey County, North 
Carolina, from the N.C. State Route 1152 Bridge, downstream to its 
confluence with the North Toe River; the main stem of the Toe River, 
Yancey and Mitchell Counties, North Carolina, from the confluence of 
the North Toe River and the South Toe River, downstream to the 
confluence of the Cane River; the main stem of the Cane River, 
Yancey County, North Carolina, from the N.C. State Route 1381 
Bridge, downstream to its confluence with the Toe River; and the 
main stem of the Nolichucky River from the confluence of the Toe 
River and the Cane River in Yancey County and Mitchell County, North 
Carolina, downstream to the U.S. Highway 23/19W Bridge southwest of 
Erwin, Unicoi County, Tennessee.
[GRAPHIC] [TIFF OMITTED] TP08FE01.005

    2. Within these areas, the primary constituent elements include:
    (i) Permanent, flowing, cool, clean water;
    (ii) Geomorphically stable stream and river channels and banks;
    (iii) Pool, riffle, and run sequences within the channel;
    (iv) Sand, gravel, cobble, boulder, and bedrock substrates with 
no more than low amounts of fine sediment;
    (v) Moderate to high stream gradient;
    (vi) Periodic natural flooding; and
    (vii) Fish hosts, with adequate living, foraging, and spawning 
areas for them.

    Dated: February 1, 2001.
Joseph E. Doddridge,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-3128 Filed 2-7-01; 8:45 am]
BILLING CODE 4310-55-P


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