[Federal Register Volume 80, Number 83 (Thursday, April 30, 2015)]
[Rules and Regulations]
[Pages 24692-24774]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-09200]
[[Page 24691]]
Vol. 80
Thursday,
No. 83
April 30, 2015
Part III
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for Neosho Mucket and Rabbitsfoot; Final Rule
Federal Register / Vol. 80 , No. 83 / Thursday, April 30, 2015 /
Rules and Regulations
[[Page 24692]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2013-0007; 4500030114]
RIN 1018-AZ30
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Neosho Mucket and Rabbitsfoot
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate
critical habitat for two species of mussels, the Neosho mucket
(Lampsilis rafinesqueana) and rabbitsfoot (Quadrula cylindrica
cylindrica), under the Endangered Species Act of 1973, as amended
(Act). In total, approximately 777 river kilometers (483 river miles)
in Arkansas, Kansas, Missouri, and Oklahoma fall with the boundaries of
the critical habitat designation for the Neosho mucket and
approximately 2,312 river kilometers (1,437 river miles) in Alabama,
Arkansas, Illinois, Indiana, Kansas, Kentucky, Mississippi, Missouri,
Ohio, Oklahoma, Pennsylvania, and Tennessee, fall within the boundaries
of the critical habitat designation for the rabbitsfoot. The effect of
this rule is to extend the Act's protections to these mussels' critical
habitats.
DATES: This rule is effective on June 1, 2015.
ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov and the Arkansas Ecological Services Field Office's
Web site at http://www.fws.gov/arkansas-es/. Comments and materials
received, as well as some supporting documentation we used in preparing
this rule, are available for public inspection at http://www.regulations.gov. All of the comments, materials, and documentation
we considered in this rulemaking are available by appointment, during
normal business hours, at: U.S. Fish and Wildlife Service, Arkansas
Ecological Service Field Office, 110 South Amity Road, Suite 300,
Conway, AR 72032; telephone 501-513-4470; facsimile 501-513-4480.
The coordinates, plot points, or both from which the maps are
generated are included in the administrative record for this critical
habitat designation and are available at http://www.fws.gov/arkansas-es/, at http://www.regulations.gov at Docket No. FWS-R4-ES-2013-0007,
and at the Arkansas Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT). Any additional tools or supporting information we
developed for this critical habitat designation will also be available
at the U.S. Fish and Wildlife Service Web site and Field Office
outlined above, and also may be included in the preamble, at http://www.regulations.gov, or both.
FOR FURTHER INFORMATION CONTACT: For general information about this
rule, and information about the final designation in Arkansas, contact
Melvin Tobin, Acting Field Supervisor, U.S. Fish and Wildlife Service,
Arkansas Ecological Services Field Office, 110 South Amity Road, Suite
300, Conway, AR 72032; telephone 501-513-4470; facsimile 501-513-4480.
If you use a telecommunications device for the deaf (TDD), call the
Federal Information Relay Service (FIRS) at 800-877-8339.
For information about the final designation in Alabama, contact
Bill Pearson, Field Supervisor, U.S. Fish and Wildlife Service, Alabama
Ecological Services Field Office, 1208 Main Street, Daphne, AL 36526;
telephone 251-441-5181; facsimile 251-441-6222.
For information about the final designation in Illinois, contact
Richard C. Nelson, Field Supervisor, U.S. Fish and Wildlife Service,
Rock Island Ecological Services Field Office, 1511 47th Avenue, Moline,
IL 61265; telephone 309-757-5800; facsimile 309-757-5807.
For information about the final designation in Indiana, contact
Scott Pruitt, Field Supervisor, U.S. Fish and Wildlife Service,
Bloomington Ecological Services Field Office, 602 South Walker Street,
Bloomington, IN 47403-2121; telephone 812-334-4261; facsimile 812-334-
4273.
For information about the final designation in Kansas, contact
Heather Whitlaw, Field Supervisor, U.S. Fish and Wildlife Service,
Kansas Ecological Services Field Office, 2609 Anderson Avenue,
Manhattan, KS 66502; telephone 785-539-3474; facsimile 785-839-8567.
For information about the final designation in Kentucky, contact
Lee Andrews, Field Supervisor, U.S. Fish and Wildlife Service, Kentucky
Ecological Services Field Office, 330 West Broadway, Suite 265,
Frankfort, KY 40601; telephone 502-695-0468; facsimile 502-695-1024.
For information about the final designation in Mississippi, contact
Stephen Ricks, Field Supervisor, U.S. Fish and Wildlife Service,
Mississippi Ecological Services Field Office, 6578 Dogwood View
Parkway, Suite A, Jackson, MS 39123; telephone 601-965-4900; facsimile
601-965-4340.
For information about the final designation in Missouri, contact
Amy Salveter, Field Supervisor, U.S. Fish and Wildlife Service,
Columbia Ecological Services Field Office, 101 Park DeVille Drive,
Suite A, Columbia, MO 65203-0057; telephone 573-234-2132; facsimile
573-234-2181.
For information about the final designation in Ohio, contact Dan
Everson, Field Supervisor, U.S. Fish and Wildlife Service, 4625 Morse
Road, Suite 104, Columbus, OH 43230; telephone 614-416-8993; facsimile
614-416-8994.
For information about the final designation in Oklahoma, contact
Jontie Aldrich, Acting Field Supervisor, U.S. Fish and Wildlife
Service, Oklahoma Ecological Services Field Office, 9014 East 21st
Street, Tulsa, OK 74129-1428; telephone 918-382-4500; facsimile 918-
581-7467.
For information about the final designation in Pennsylvania,
contact Lora Zimmerman, Field Supervisor, U.S. Fish and Wildlife
Service, Pennsylvania Ecological Services Field Office, 315 South Allen
Street, Suite 322, State College, PA 16801; telephone 814-234-4090;
facsimile 814-234-0748.
For information about the final designation in Tennessee, contact
Mary Jennings, Field Supervisor, U.S. Fish and Wildlife Service,
Tennessee Ecological Services Field Office, 446 Neal Street,
Cookeville, TN 38501; telephone 931-528-6481; facsimile 931-528-7075.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Endangered Species Act of
1973, as amended (Act), when we determine that a species is an
endangered or threatened species, we are required to designate critical
habitat, to the maximum extent prudent and determinable. Designations
of critical habitat can only be completed by issuing a rule.
On October 16, 2012, we published in the Federal Register a
proposed rule to list the Neosho mucket and rabbitsfoot and designate
critical habitat (77 FR 63440). We issued the final rule listing the
Neosho mucket as endangered and the rabbitsfoot as threatened on
September 17, 2013 (78 FR 57076).
The critical habitat units we are designating in this rule
constitute our current best assessment of the areas that meet the
definition of critical habitat for
[[Page 24693]]
Neosho mucket and rabbitsfoot. We are designating:
For the Neosho mucket, in total, approximately 777 river
kilometers (rkm) (483 river miles (rmi)) in 7 units in the Elk, Fall,
Illinois, Neosho, Shoal, Spring, North Fork Spring, and Verdigris
Rivers as critical habitat in Benton and Washington Counties, Arkansas;
Allen, Cherokee, Coffey, Elk, Greenwood, Labette, Montgomery, Neosho,
Wilson, and Woodson Counties, Kansas; Jasper, Lawrence, McDonald, and
Newton Counties, Missouri; and Adair, Cherokee, and Delaware Counties,
Oklahoma.
For the rabbitsfoot, in total, approximately 2,312 rkm
(1,437 rmi) in 31 units (3 with 2 subunits each) in the Neosho, Spring
(Arkansas River system), Verdigris, Black, Buffalo, Little, Ouachita,
Saline, Middle Fork Little Red, Spring (White River system), South Fork
Spring, Strawberry, White, St. Francis, Big Sunflower, Big Black, Paint
Rock, Duck, Tennessee, Red, Ohio, Allegheny, Green, Tippecanoe,
Walhonding, Middle Branch North Fork Vermilion, and North Fork
Vermilion Rivers and Bear, French, Muddy, Little Darby, and Fish Creeks
as critical habitat in Colbert, Jackson, Madison, and Marshall
Counties, Alabama; Arkansas, Ashley, Bradley, Clark, Cleburne,
Cleveland, Drew, Fulton, Hot Spring, Independence, Izard, Jackson,
Lawrence, Little River, Marion, Monroe, Newton, Ouachita, Randolph,
Searcy, Sevier, Sharp, Van Buren, White, and Woodruff Counties,
Arkansas; Massac, Pulaski, and Vermilion Counties, Illinois; Carroll,
Pulaski, Tippecanoe, and White Counties, Indiana; Allen and Cherokee
Counties, Kansas; Ballard, Edmonson, Green, Hart, Livingston, Logan,
Marshall, McCracken, and Taylor Counties, Kentucky; Hinds, Sunflower,
Tishomingo, and Warren Counties, Mississippi; Jasper, Madison, and
Wayne Counties, Missouri; Coshocton, Madison, Union, and Williams
Counties, Ohio; McCurtain and Rogers Counties, Oklahoma; Crawford,
Erie, Mercer, and Venango Counties, Pennsylvania; and Hardin, Hickman,
Humphreys, Marshall, Maury, Montgomery, Perry, and Robertson Counties,
Tennessee.
Compared to the proposed rule, this rule results in a net
decrease of approximately 3 rkm (2 rmi) for the Neosho mucket and a net
decrease of approximately 349 rkm (217 rmi) for the rabbitsfoot.
What this rule contains: This rule designates critical habitat for
the Neosho mucket and rabbitsfoot.
We have prepared an economic analysis and environmental assessment
for the designation of critical habitat. In accordance with Section
4(b)(2) of the Act, we prepared an analysis of the economic impacts of
the critical habitat designations and related factors. We announced the
availability of the draft economic analysis (DEA) and draft
environmental assessment in the Federal Register on May 9, 2013 (78 FR
27171), allowing the public to provide comments on these documents. In
response to requests we received, we reopened the comment period for
the proposed critical habitat rule, DEA, and draft environmental
assessment from August 27, 2013, to October 28, 2013 (78 FR 52894), and
again from May 14, 2014, to July 14, 2014 (79 FR 27547). We have
incorporated the comments and completed the final economic analysis
(FEA) and associated summary memorandum describing our revised forecast
calculations concurrently with this final determination.
Additionally, we have prepared an environmental assessment pursuant
to the National Environmental Policy Act (NEPA). Based on the review
and evaluation of the information contained in the environmental
assessment, we determined that the designation of critical habitat for
the Neosho mucket and rabbitsfoot does not constitute a major Federal
action having a significant impact on the human environment under the
meaning of section 102(2)(c) of NEPA.
Peer review and public comment. We sought comments from three
independent specialists to ensure our designation is based on
scientifically sound data and analyses. We obtained opinions from one
knowledgeable individual with scientific expertise to review our
technical assumptions and analysis, and to determine whether or not we
had used the best available information. The peer reviewer generally
concurred with our methods and conclusions and provided additional
information, clarifications, and suggestions to improve this final
rule. Information we received from peer review is incorporated in this
final designation. We also considered all comments and information we
received from the public during the comment period.
Previous Federal Actions
Please refer to the proposed listing and critical habitat rule for
the Neosho mucket and rabbitsfoot published in the Federal Register on
October 16, 2012 (77 FR 63440), for a detailed description of previous
Federal actions concerning these species and protection under the Act
(16 U.S.C. 1531 et seq.). The final rule listing the Neosho mucket as
an endangered species and rabbitsfoot as a threatened species under the
Act was published in the Federal Register on September 17, 2013 (78 FR
57076).
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of critical habitat for the Neosho mucket and rabbitsfoot
during four comment periods. The first comment period opened with the
publication of the proposed rule on October 16, 2012, and closed on
December 17, 2012 (77 FR 63440). Second, we requested comments on the
proposed critical habitat designation and associated DEA and draft
environmental assessment during a comment period that opened May 9,
2013, and closed on June 10, 2013 (78 FR 27171). Third, we re-opened
the comment period for another 60 days from August 27, 2013, through
October 28, 2013 (78 FR 52894). Based on continued significant interest
in Arkansas regarding the proposed rule, we announced an additional
reopening of the comment period for 60 days from May 14, 2014, through
July 14, 2014 (79 FR 27547). We held public information meetings in
Joplin, Missouri, on May 21, 2013; Greenville, Missouri, on May 23,
2013; Batesville, Arkansas, on June 4, 2014; and Benton, Arkansas, on
June 5, 2014. The dates, times, and locations of these meetings were
coordinated with interested stakeholders and noticed in newspapers and
other media outlets. We also contacted appropriate Federal, State, and
local agencies; tribes; scientific organizations; and other interested
parties and invited them to comment on the proposed rule, DEA, and
draft environmental assessment. In addition, we published a total of 27
legal public notices in the affected States at the beginning of the
comment period for the proposed rule published on October 16, 2012.
During the first comment period, we received 10 comment letters
directly addressing the proposed listing and critical habitat
designation. During the second, third, and fourth comment periods, we
received 11, 6, and 68 comment letters, respectively, addressing the
proposed critical habitat designation, DEA, or draft environmental
assessment. All substantive information provided during the comment
periods has either been incorporated directly into this final
determination or is addressed below. Comments are addressed in the
following summary and incorporated into the final rule as appropriate.
[[Page 24694]]
Peer Review
In accordance with our peer review policy published on July 1, 1994
(59 FR 34270), we solicited expert opinions from three knowledgeable
individuals with scientific expertise on freshwater mussel conservation
and biology, with familiarity of Neosho mucket and rabbitsfoot, the
geographic region and river basins in which they occur, and
conservation biology principles associated with these species. We
received responses from all of the peer reviewers we contacted, but
only one peer reviewer commented on the proposed critical habitat
designation.
We reviewed all comments we received from the peer reviewer for
substantive issues and new information regarding critical habitat for
the Neosho mucket and rabbitsfoot. The peer reviewer generally
concurred with our methods and conclusions, and provided additional
information, clarifications, and suggestions to improve the final
critical habitat rule. The peer reviewer's comments on the designation
of critical habitat for these mussels are addressed in the following
summary and incorporated into the final rule as appropriate.
Peer Reviewer Comments
(1) Comment: The peer reviewer noted the proposed critical habitat
designation for rabbitsfoot references the oyster mussel (Epioblasma
capsaeformis) as a listed species with overlapping critical habitat in
the Duck River unit. The reviewer noted the oyster mussel in this river
has been renamed the Duck River dartersnapper (Epioblasma ahlstedti)
and is separate and distinct from the oyster mussel.
Our Response: We agree with the reviewer and acknowledge the oyster
mussel and Duck River dartersnapper are distinct and separate species.
However, the Service has not yet made a listing and critical habitat
determination for the new entity, the Duck River dartersnapper. We
incorporated language in this final determination to clarify the
species distinction and name change, but at this time, the Duck River
dartersnapper and oyster mussel are considered synonymous according to
our regulations. Until such time as the regulations are revised, the
critical habitat that overlaps rabbitsfoot critical habitat in the Duck
River will be identified as that of the oyster mussel.
General Comments
(2) Comment: Multiple commenters expressed concern about
interagency consultation under section 7 of the Act, particularly any
differences in process between consultation on impacts to the listed
species and consultation on the species' designated critical habitat.
They also expressed concern about impacts on non-Federal property
owners and other entities from the new restrictions resulting from the
designation of critical habitat.
Our Response: Section 7(a)(2) of the Act, and its implementing
regulations at 50 CFR part 402, subpart B, requires Federal agencies to
consult with the Service to ensure that they are not undertaking,
funding, permitting, or authorizing actions likely to jeopardize the
continued existence of listed species or destroy or adversely modify
designated critical habitat. Only projects that have a Federal nexus
(projects that are funded, authorized, or carried out by Federal
agencies) are subject to this requirement under section 7 consultation.
In fulfilling these consultation requirements, each Federal action
agency and the Service must use the best scientific and commercial data
available.
In occupied critical habitat, consultation for potential impacts to
the species and potential impacts to critical habitat occur at the same
time. The health of both mussels is closely tied to the health of their
habitat. Therefore, the Service does not expect to recommend additional
conservation efforts for projects to avoid adverse modification of
critical habitat above and beyond what would already be required to
avoid jeopardizing the continued existence of the listed species. In
addition, other federally listed mussels occur in the same reaches as
certain areas of designated critical habitat for Neosho mucket or
rabbitsfoot; the conservation efforts already required for these listed
mussels through consultation will provide the same conservation for
Neosho mucket or rabbitsfoot.
As a result, we conclude that additional (incremental) project
modification costs are unlikely from this designation of critical
habitat. Any incremental costs, as predicted in our final economic
analysis (FEA), are primarily a result of the additional requirement of
considering impacts to critical habitat during these section 7
consultations. These costs are borne by the Service, the Federal action
agency, and the third-party participants (generally the project
proponents), including State and local governments and private parties.
For a summary of the parties involved in section 7 consultations and
their respective unit costs, see Exhibit 2-1 of the FEA. Chapter 3 of
the FEA provides a detailed discussion of the types of third parties
participating in consultations.
Federal Agency Comments
(3) Comment: The U.S. Army Corps of Engineers (ACOE) Pittsburgh
District (COEPD) expressed concern that designating critical habitat
for the rabbitsfoot may affect the COEPD's navigation and maintenance
dredging activities in the Alleghany River, its operation of Alleghany
Reservoir, and its regulatory program. ACOE stated that additional
avoidance measures will be required to adequately protect habitat for
rabbitsfoot.
Our Response: The federally endangered clubshell (Pleurobema
clava), northern riffleshell (Epioblasma torulosa rangiana), rayed bean
(Villosa fabalis), and snuffbox (Epioblasma triquetra) mussels occur in
the same reach of the Allegheny River as rabbitsfoot. Therefore,
section 7 requires consultation by Federal agencies for these listed
species (see our response to Comment 2). Project modifications that
minimize effects to these species would also minimize effects to
rabbitsfoot. Thus, we do not expect any conservation measures or
project modifications and costs for rabbitsfoot critical habitat beyond
those already required for these other endangered mussels.
(4) Comment: The COEPD asked how tributary streams to the Allegheny
River will be affected by designation of critical habitat for
rabbitsfoot.
Our Response: French Creek (proposed Unit RF23; Unit RF22 in this
rule) and Muddy Creek (proposed Unit RF25; Unit 24 in this rule) are
the only two tributaries of the Allegheny River designated as critical
habitat for rabbitsfoot. The Service will work with COEPD to determine
whether any of the current, ongoing, or planned COEPD projects may have
an effect on other tributaries within their district. As stated
previously, the Service does not expect to recommend any project
modifications in order to minimize effects to rabbitsfoot beyond those
already required for other listed mussels in the Allegheny River basin.
(5) Comment: The ACOE Huntington District stated that the
designation of critical habitat for rabbitsfoot in the Walhonding River
(proposed Unit RF27) is not consistent with the definition of critical
habitat (that lakes and impoundments are not included). They stated
that 40 percent of the Walhonding River upstream of Mohawk Dam in Ohio
is impounded for flood control.
Our Response: Mohawk Dam is a dry dam, meaning during normal flows,
[[Page 24695]]
water passes through the dam unimpeded and there are no permanent pools
of water (areas of inundation) upstream resulting from the structure.
During high flow events, the dam temporarily reduces flows downstream
of the structure to maintain flows within the river banks. Hoggarth
(1995-1996, pp. 163-164) found a stable and diverse mussel assemblage,
including adult and juvenile rabbitsfoot, upstream of Mohawk Dam.
Because Mohawk Dam does not inundate riverine habitat by forming a lake
or reservoir and a diverse and abundant mussel assemblage inhabits
upstream reaches behind the dam, we believe the habitat there contains
the primary constituent elements for rabbitsfoot critical habitat (see
Primary Constituent Elements for Neosho Mucket and Rabbitsfoot, below).
Section 3.3.1 of the FEA has been amended to add information about
the presence of the dam in the study area of proposed Unit RF27;
however, the Service does not expect to recommend additional
conservation efforts for the dam, above and beyond what would be
required to protect against jeopardy of the species, to protect against
adverse modification of critical habitat.
(6) Comment: The ACOE Little Rock District stated that the
designation will result in increased costs for energy development and
that the estimated cost of timing restrictions and limiting project
scope are too low, as projects may be delayed or denied due to
permitting and modification issues.
Our Response: The discussion of potential baseline impacts in the
FEA has been updated to reflect additional information provided by the
ACOE regarding impacts to energy development associated with avoidance
and delays related to the presence of the species. Exhibit 4-2 of the
FEA (``Ranges of Costs of Common Conservation Efforts for Mussel
Species'') notes that the cost of conservation efforts may be higher
than the estimates shown. A key conclusion of the analysis is that the
listing of the species may lead to many conservation efforts (such as
those presented in Exhibit 4-2) that would not have been required
previously. However, as outlined in our response to Comment 2,
designation of critical habitat is not anticipated to generate
additional conservation measures for these two mussels beyond those
generated by the species' listing.
State Agency Comments
Section 4(i) of the Act states, ``the Secretary shall submit to the
State agency a written justification for [her] failure to adopt
regulations consistent with the agency's comments or petition.'' The
designation of critical habitat for Neosho mucket includes streams in
Arkansas, Kansas, Missouri, and Oklahoma, and for rabbitsfoot includes
streams in Alabama, Arkansas, Illinois, Indiana, Kansas, Kentucky,
Louisiana, Mississippi, Missouri, Ohio, Oklahoma, Pennsylvania, and
Tennessee. We received comments from the States of Illinois, Kansas,
Pennsylvania, Ohio, and Oklahoma regarding the proposal and address
them below.
(7) Comment: The Pennsylvania Fish and Boat Commission (PFBC)
supported the designation of critical habitat for rabbitsfoot. PFBC
recommended extending the critical habitat designation for rabbitsfoot
upstream from Kidds Mill Road to Pymatuning Dam on the Shenango River.
Western Pennsylvania Conservancy (WPC) submitted a public comment with
the same recommendation. PFBC provided a report by Bursey (1987)
documenting the presence of rabbitsfoot at Porter Road, 8.5 rkm (5.3
rmi) upstream of Kidds Mill Road. PFBC stated that without critical
habitat designation in this location, any newly discovered rabbitsfoot
populations in this river reach would not be protected by the Act.
Our Response: We appreciate PFBC's support and look forward to
continuing work with the PFBC and WPC to recover rabbitsfoot.
Considering the information in Bursey (1987), we agree the extent of
critical habitat designation in the Shenango River should be extended
8.8 rkm (5.4 rmi) upstream to Porter Road. This modification is
reflected in this final determination. As described under Criteria Used
to Identify Critical Habitat, we reviewed available information
pertaining to the habitat requirements of rabbitsfoot. In accordance
with the Act and its implementing regulation at 50 CFR 424.12(e), we
considered whether designating additional areas--outside those
currently occupied as well as those occupied at the time of listing--
are necessary to ensure the conservation of the species. However, we
respectfully disagree that there is sufficient scientific information
from which to conclude that the reach from Pymatuning Dam to Porter
Road is occupied by rabbitsfoot. While this reach appears to contain
sufficient physical or biological features to support the life history
of mussels, possibly including rabbitsfoot, we determined that
designating unoccupied critical habitat for rabbitsfoot was not
essential for the conservation of the species in this reach due to the
altered natural stream hydrology and geomorphology. Unoccupied areas
exhibit limited habitat availability, degraded habitat, or low
potential value for management, and there are no historical records of
occurrence within the stream reach for rabbitsfoot (see also Criteria
Used to Identify Critical Habitat).
This does not mean, however, that this reach will be without
protection if the rabbitsfoot is later found to occupy that reach. The
protections of the Act brought about by the species' listing are in
effect wherever the species is found. In addition, the reach upstream
of Porter Road will continue to be protected through the conservation
actions implemented for the other listed mussels (e.g., clubshell) that
currently occur in that area.
(8) Comment: PFBC suggested that by restricting critical habitat to
occupied areas, the Service appears to be unintentionally inhibiting
recovery of rabbitsfoot, as habitat loss outside of critical habitat
areas cannot be avoided under a section 7 jeopardy analysis.
Our Response: It is correct that section 7 consultation would not
be triggered for potential rabbitsfoot habitat that is not occupied by
the species or designated as critical habitat (although some areas may
be occupied by other listed species and/or critical habitat for other
listed species that would trigger section 7 consultations on Federal
actions). However, we disagree that recovery of either species will be
inhibited because we are not designating unoccupied habitat. We have
found that unoccupied stream reaches are not essential for the
conservation of either species for one or more of the following
reasons:
(a) Unoccupied habitats are isolated from occupied habitats due to
reservoir construction and dam operations;
(b) Unoccupied areas exhibit limited habitat availability, degraded
habitat, or low potential value for management;
(c) Collection records for both species indicate that these species
have been extirpated from unoccupied areas for several decades or more,
and, in some cases, reintroduction efforts have not been successful at
re-establishing populations; or
(d) There are no historical records of occurrence within the stream
reach for Neosho mucket, rabbitsfoot, or both.
While we recognize the importance of unoccupied habitat to recovery
of listed species, in this case unoccupied habitat does not at this
time provide habitat for reintroduction or reduce the level of
stochastic and human-induced threats (see Criteria Used to Identify
Critical Habitat for more detailed information).
[[Page 24696]]
(9) Comment: The Ohio Department of Transportation (ODOT) inquired
about costs for highway departments and other public infrastructure
entities and whether normal consultation time would increase due to the
designation of critical habitat. ODOT believes the estimated economic
impact of $1.4 million to the transportation and utility sectors over
the next 20 years is an underestimate. This conclusion is based on the
assumption that no instream work will be allowed for any project over
or near critical habitat. ODOT provides an example of replacing a
multiple span bridge with a single span structure increases cost by an
average of 260 percent, or from $2.2 million to $5.6 million, exceeding
the Service's estimate of economic impacts. The agency also expressed
the belief that replacement or maintenance costs to improve or maintain
23 bridge structures over designated critical habitat areas will
increase and the economic impact to ODOT alone will exceed the
estimated $1.4 million forecast in the economic analysis for
transportation and utility activities without considering increased
costs associated with coordination, survey, reporting, mitigation, and
monitoring.
Our Response: Future section 7 consultations concerning
transportation and utilities are expected to occur in 35 critical
habitat units, including the Walhonding River and Little Darby and Fish
Creeks (proposed Units RF27, RF28, and RF30; Units RF26, RF27, and RF29
in the final rule) in Ohio. Collectively, transportation and utilities
consultations in these three critical habitat units are forecast to
cost $15,000 over the next 20 years or $980 annually (one percent of
total transportation and utilities costs). For comparison, the total
transportation and utilities cost for all critical habitat units are
forecast to cost $1,400,000 over the next 20 years or $93,000 annually
(Exhibit 3-9 in the FEA). The designation of critical habitat will not
preclude the construction of instream bridge support structures or
maintenance to existing piers.
The designation of critical habitat does not change the time frames
required to complete consultation under section 7 of the Act and its
implementing regulations at 50 CFR part 402, subpart B. As previously
stated, conservation measures required to avoid jeopardizing the
continued existence of the species are expected to be similar to those
required to avoid adversely modifying critical habitat (that is, we
foresee no conservation actions specifically due to critical habitat).
We do not expect the designation of critical habitat to lengthen the
consultation process. Thus, the best available economic data do not
support ODOT's assertion.
(10) Comment: The ODOT inquired about how the Service ensures
consistent consultation on critical habitat throughout the range of
rabbitsfoot. ODOT concluded that the term ``adverse modification'' is
vague and interpretations, policies, and level of effort could vary
among Service offices.
Our Response: In 1986, the Service and the National Marine
Fisheries Service (collectively referred to as the Services)
established a definition for ``destruction or adverse modification''
(50 CFR 402.02) that was later found to be invalid by the U.S. Court of
Appeals for the Fifth (2001) and Ninth (2004) Circuits. The Services
each issued guidance to discontinue the use of the 1986 adverse
modification regulation. Specifically, in evaluating an action's
effects on critical habitat as part of interagency consultation, the
Services began applying the definition of ``conservation'' as set out
in the Act, which defines conservation (and conserve and conserving) to
mean ``to use and the use of all methods and procedures which are
necessary to bring any endangered species or threatened species to the
point at which the measures provided pursuant to this Act are no long
necessary'' (16 U.S.C. 1532(3)). Further, after examining the baseline
and effects of the action, the Services began analyzing whether the
implementation of the Federal action under consultation, together with
any cumulative effects, would result in the critical habitat remaining
``functional'' (or retain the current ability for the primary
constituent elements to be functionally established) to serve the
intended conservation role for the species.
Section 7(a)(2) of the Act defines the consultation process, which
is further developed in regulations set forth at 50 CFR part 402 and in
the Service's section 7 handbook (guidance). The handbook ensures
consistent implementation of consultation procedures by Service field
offices responsible for carrying out section 7 activities throughout
the range of rabbitsfoot. Furthermore, the Service and the Federal
action agency are required to use the best available science in
conducting the consultations (see our response to Comment 2).
On May 12, 2014, we published a proposed rule in the Federal
Register (79 FR 27060) to adopt the following definition of destruction
or adverse modification: ``Destruction or adverse modification means a
direct or indirect alteration that appreciably diminishes the
conservation value of critical habitat for listed species. Such
alterations may include, but are not limited to, effects that preclude
or significantly delay the development of physical or biological
features that support the life-history needs of the species for
recovery.'' On June 26, 2014 (79 FR 36284) we extended the public
comment period on the proposal to October 9, 2014. We have not yet
published a final rule for this action, but expect to do so in the
spring of 2015.
(11) Comment: The ODOT requested an exclusion from critical habitat
designation for portions of the river underneath and directly adjacent
to roadway bridges in the Walhonding River and Little Darby and Fish
Creeks. ODOT concluded that since bridge structures already exist and
areas under the bridge are subject to regular maintenance activities
that section 7 consultation for other listed mussels in these streams
would be adequate to protect rabbitsfoot while streamlining
consultation.
Our Response: Under section 4(b)(2) of the Act and its implementing
regulations at 50 CFR 424.19, we may exclude an area from designated
critical habitat based on economic impacts, impacts on national
security, or any other relevant impacts. In considering whether to
exclude a particular area from the designation, we identify the
benefits of including the area in the designation, identify the
benefits of excluding the area from the designation, and evaluate
whether the benefits of exclusion outweigh the benefits of inclusion.
If the analysis indicates that the benefits of exclusion outweigh the
benefits of inclusion, the Secretary may exercise her discretion to
exclude the area only if such exclusion would not result in the
extinction of the species.
This area is not subject to exclusion based on impacts to national
security or other relevant impacts, such as the presence of a
conservation plan (for example, a habitat conservation plan (HCP)),
status as a tribal land, or an existing partnership. In evaluating
whether it should be excluded due to economic impacts, we concluded
that no change in economic activity levels or the management of
economic activities is expected to result from the critical habitat
designation (see our response to Comment 2). Some additional costs
reflect additional administrative effort as part of future section 7
consultations in order to consider the potential for activities to
result in adverse modification of critical habitat. Section 7
consultation is required in occupied habitat with or without a critical
habitat
[[Page 24697]]
designation. We acknowledge it is unlikely additional conservation
measures beyond those identified to avoid jeopardy for the species
would be required to avoid adverse modification. Accordingly, the
Secretary is not exerting her discretion to exclude any areas in the
Walhonding River and Little Darby and Fish Creeks from the designation
based on economic impact, national security impact, or other relevant
impacts.
(12) Comment: The Oklahoma Department of Wildlife Conservation
(ODWC) stated that it does not support designation of critical habitat
for Neosho mucket and rabbitsfoot. ODWC questioned potential benefits
of critical habitat designation cited in the proposed rule (77 FR
63472), which ODWC stated are not compelling arguments in favor of
designation. ODWC concluded:
(a) The presence of Neosho mucket or rabbitsfoot in a stream
segment already is a trigger for section 7 consultation and the
designation of critical habitat does not change this requirement;
(b) The focusing of conservation activities on the most essential
features and area for each mussel species should be addressed through
development and implementation of a recovery plan, and the designation
of critical habitat is not essential to this prioritization process and
can be articulated just as effectively in the recovery plan;
(c) The educational benefits derived from critical habitat can be
conveyed through Federal, State, and private entities more effectively
with an informative, detailed, and publicly accessible Web site; and
(d) It is not clear how designation of critical habitat prevents
``people from causing inadvertent harm to the species'' as the
designation only applies to Federal actions and not those of the
general public.
ODWC further concluded, based on these four arguments, that there
is no unique added value to the designation of critical habitat.
Our Response: Section 4(a)(3)(A) of the Act requires that, to the
maximum extent prudent and determinable, we designate critical habitat
at the time a species is determined to be endangered or threatened. Our
regulations at 50 CFR 424.12(a)(1) state that designation of critical
habitat is not prudent when one or both of the following situations
exist: (1) The species is threatened by taking or other human activity,
and identification of critical habitat can be expected to increase the
degree of threat to the species, or (2) such designation of critical
habitat would not be beneficial to the species. The Service determined
that there is no threat of take attributed to collection or vandalism
under Factor B for either species, and identification and mapping of
critical is not expected to initiate any such threat. We also believe
that designating critical habitat will be beneficial to the species, as
described in the proposed rule (77 FR 63440, p. 63472) (see also our
response to Comment 52, below). We address ODWC's specific conclusions
below.
(a) We acknowledge that presence of Neosho mucket or rabbitsfoot is
a trigger for section 7 consultation with or without the designation of
occupied critical habitat. We also acknowledge occupied areas outside
the final critical habitat designation will continue to be subject to
conservation actions implemented under section 7(a)(1) of the Act,
regulatory protections afforded by the section 7(a)(2) jeopardy
standard, and the prohibitions of section 9 of the Act. However, if
designated critical habitat should become unoccupied at some point in
the future, the designation of critical habitat ensures regulatory
protections afforded by section 7(a)(2).
(b) We acknowledge that critical habitat designation is not
essential to establish recovery criteria and prioritize recovery
actions during development and implementation of recovery plans.
However, critical habitat designations identify, to the extent known
using the best scientific data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat), which can be very
beneficial both in focusing conservation efforts on specific
activities, areas, or features and in establishing future recovery
efforts. Designation can often help to focus recovery efforts and
ensure these features, areas, and activities receive priority during
section 7 consultations and the planning efforts of both the Service
and its partners.
(c) We agree that the Internet and social media are effective
venues to convey the benefits of designating critical habitat. We also
agree there are many misperceptions by entities and individuals
regarding designation of critical habitat. The Service maintains a
publicly accessible Internet site, social media, and other educational
materials related to critical habitat and the Act, in general, to
inform the public and abate concerns. In outlining benefits of
designating critical habitat for Neosho mucket and rabbitsfoot, our
intent was not to imply that designation of critical habitat is only an
educational tool for the recovery of Neosho mucket and rabbitsfoot. To
the contrary, critical habitat is a tool within the Act which
identifies areas essential to the conservation of endangered and
threatened species and that may require special management
considerations. Through identification of physical or biological
features essential to the conservation of Neosho mucket and
rabbitsfoot, critical habitat informs agencies, entities, and
individuals about habitats and specific features of these habitats
essential to the conservation of Neosho mucket and rabbitsfoot and
helps focus efforts. Accordingly, even though designation is not the
sole educational tool in the recovery process, it may still provide
educational benefits.
(d) Federal agencies must consult with the Service to ensure that
any action authorized, funded, or carried out will not destroy or
adversely modify critical habitat for listed species. This rule
identifies the primary constituent elements of the physical or
biological features essential to the conservation of Neosho mucket and
rabbitsfoot. These primary constituent elements will help Federal
agencies (and those for which they are providing funding, providing
authorization, or completing activities) in planning or evaluating
projects. In addition, it may be beneficial to those who wish to
conserve this species to know which areas have been determined to be
essential to the conservation of the species through this designation.
The maps in the designation spatially depict the areas we have
identified as critical habitat, assisting with these efforts.
(13) Comment: ODWC stated that the Service (a) did not identify and
quantify the relative importance of potential threats in each critical
habitat unit, and (b) cannot determine whether Federal actions are
important to the recovery of Neosho mucket and rabbitsfoot. ODWC
further concluded that if Federal actions are not relevant then
designation of critical habitat has no recovery value.
Our Response: In each unit description in the proposed designation,
the Service identified physical or biological features that may require
special management considerations or protections to address threats
such as land use conversion; alteration of water chemistry and water
and sediment quality; changes in stream bed material composition and
quality from activities that release sediments and nutrients into the
water, such as urban development and associated construction projects;
livestock grazing; and releases from municipal effluents. In addition,
in the Effects of Critical Habitat Designation, Section 7 Consultation
and Application of the ``Adverse Modification'' Standard sections in
the proposed designation (77
[[Page 24698]]
FR 63440), we discuss the Federal process concerning section 7
consultations and review of projects for adverse modification of
designated critical habitat. We provide a description of the actions
and activities that may result in adverse effects to occupied Neosho
mucket and rabbitsfoot critical habitat. This is not an exhaustive
list, and we note that the activities listed may be able to be modified
by measures which would sufficiently offset the potential adverse
effects so that the value of the habitat for its intended conservation
function is not appreciably reduced. The occurrence of the actions we
described will not always result in adverse modification of critical
habitat if the available compensation can reduce the effects of these
actions on the habitat.
These types of activities would require section 7 consultation only
in cases where there is Federal involvement (see response to Comment
2). The FEA examined the Service's section 7 consultation record as a
means to project future consultations. The FEA also accounts for
projected increases in section 7 consultations, by activity category,
based on communication with Service field offices and Federal agencies.
Additional supporting information and documentation for the FEA is
contained within our administrative record. The ACOE, Bureau of Land
Management, U.S. Department of Energy, Federal Energy Regulatory
Commission, U.S. Department of Transportation (DOT), U.S. Department of
Agriculture (USDA) Forest Service, Environmental Protection Agency
(EPA), and Tennessee Valley Authority are Federal agencies who may
fund, permit, or conduct actions that may potentially affect designated
critical habitat for Neosho mucket or rabbitsfoot and are expected to
consult with the Service under section 7 of the Act. Recovery of these
mussels will not be attained without the valuable contribution of our
Federal partners, in accordance with section 7(a)(1) of the Act, as
well as our State and nongovernmental partners.
(14) Comment: The ODWC recommended modification to Unit RF2
(Verdigris River) for rabbitsfoot. ODWC indicated that the critical
habitat unit includes a portion of the Verdigris River downstream of
Oklahoma Highway 266, which has been substantially modified by dredging
and channel modification to create the upper end of the McClellan-Kerr
Arkansas River Navigation System.
Our Response: In response to this comment, we have re-evaluated
Unit RF2, and, based on the best available scientific information, we
are modifying it in this final rule. For further information, see
Summary of Changes from Proposed Rule, below.
(15) Comment: The ODWC questioned the biological benefit of
including Unit NM1 for Neosho mucket due to existing State water
quality standards. ODWC also suggested that the designation of critical
habitat may hinder recreational activity in the Illinois River.
Our Response: Please refer to our responses for Comments 12 and 13.
Since recreational activities on the Illinois River are not regulated
by a Federal agency, we do not anticipate any effects to recreational
activities due to the designation of critical habitat in Unit NM1.
(16) Comment: The Pennsylvania Department of Transportation (PDOT)
opposed the designation of critical habitat for the rabbitsfoot due to
the financial hardship it believes the designation will bring to
Pennsylvania taxpayers. PDOT concluded it would not be a prudent
expense of transportation dollars to engage in all the coordination and
expense associated with the critical habitat designation.
Our Response: All PDOT activities authorized or funded, in whole or
part, by the Federal Highway Administration (FHA) or permitted by a
Federal agency such as the ACOE (such as, placement of bridge piers in
a navigable stream) are required to adhere to section 7(a)(2) of the
Act (see our response to Comment 2). PDOT projects that have no Federal
nexus are not subject to section 7 consultation. However, as previously
stated, four other federally endangered mussels occur in the same
reaches of the Allegheny and Shenango Rivers and French and Muddy
Creeks as the rabbitsfoot. Although no critical habitat has been
designated for these mussels, we believe that project modifications
that have been implemented to minimize effects to these listed mussel
species are the same types of measures that would be implemented to
minimize effects to rabbitsfoot and its critical habitat. Therefore, we
expect the additional cost to taxpayers to be minimal.
(17) Comment: The PDOT stated there will be additional costs
associated with section 7 consultation with FHA due to the requirement
to prepare a biological assessment in designated critical habitat
regardless of species presence. PDOT requested evaluation of all
financial impacts to the agency associated with designating critical
habitat. PDOT also suggested adverse modification has not occurred
previously at completed bridge projects as evidenced by the Service's
willingness to utilize these sites for reintroduction of endangered
mussels.
Our Response: FHA is required under section 7(a)(2) of the Act to
evaluate beneficial and adverse effects associated with their actions
in areas containing listed species. While the Service agrees some
completed bridge project sites may serve as suitable sites for mussel
augmentation and reintroduction, potential effects of future bridge
projects to listed species and their critical habitat will vary
depending on a variety of factors, including, but not limited to, the
location and type of structure being proposed, as well as the extent to
which rabbitsfoot occurs in the project area. Under section 7(a)(2) of
the Act and its implementing regulations at 50 CFR part 402, subpart B,
Federal agencies are not required to prepare biological assessments for
actions that they determine will have no effect, or that may affect but
are not likely to adversely affect, a species and its designated
critical habitat. Therefore, if a bridge project is deemed not likely
to adversely affect this species or other listed species or their
critical habitat, no biological assessment would be required by the
agency.
One of the main conclusions of the FEA is that the Service does not
expect critical habitat designation to result in project modification
costs beyond what would be requested to avoid jeopardy to the species.
As a result, we expect incremental economic impacts of considering
critical habitat as part of the forecast section 7 consultations will
be limited to additional administrative costs to the Service, Federal
agencies, and third parties. Future section 7 consultations concerning
transportation and utilities are expected to occur in 34 critical
habitat units, including French Creek, the Allegheny River, and Muddy
Creek (Units RF22, RF23, and RF24 in this rule) that occur in
Pennsylvania. Collectively, transportation and utilities consultations
in these three critical habitat units are forecast to cost $196,000
over the next 20 years or $12,500 annually. For comparison, the total
transportation and utilities cost for all critical habitat units are
forecast to cost $1,400,000 over the next 20 years or $93,000 annually
(Exhibit 3-9 in the FEA; IEc 2014a, p. 1). As outlined in the FEA,
these costs are the incremental costs of the critical habitat
designation (that is, those costs, such as expenditures related to
consultation, which can be attributed solely to critical habitat).
(18) Comment: PDOT asked the Service ``that if the Rabbitsfoot
Mussel is listed and critical habitats are designated, that there is
solid scientific
[[Page 24699]]
evidence that the species for which the critical habitat is being
designated is present and/or uses the habitat.'' PDOT asserted that it
committed significant monetary resources in the past to mitigate
effects to endangered and threatened species in areas with no evidence
of species presence.
Our Response: The Act and its implementing regulations require the
Service to use the best available scientific and commercial data during
consultation (see response to Comment 2). The Service will continue to
work with PDOT and other partners to ensure procedures to document
presence or absence of the mussels is scientifically supported and to
avoid and minimize effects to the rabbitsfoot in areas where this and
other listed species are present and critical habitat is designated.
(19) Comment: PDOT requested minor road work (such as
rehabilitation or resurfacing) and bridge work (such as replacement and
repair) on existing roads be exempt from formal coordination
(consultation), including areas 100 feet (ft) upstream and downstream
of the project foot print.
Our Response: Only PDOT projects that have a Federal nexus are
subject to consultation (see our response to Comment 2). There is no de
minimis exception from the consultation requirement. However, to
streamline the consultation process, a Federal agency's determination
of ``no effect'' or ``no adverse modification'' does not require
concurrence by the Service.
(20) Comment: PDOT expressed concern with its ability to quickly
issue hauling permits for oversize and overweight loads and to restrict
routing for materials such as fracking brine. The need to restrict
routing for a subset of haulers such as hazardous material haulers
would preclude PDOT's ability to electronically permit and route these
haulers, resulting in extensive time delays and subsequently a need for
a significant increase in manpower. PDOT concluded that manual permit
review to assure limited section 9 liability represents significant
economic burden to both the State of Pennsylvania (due to increases in
manpower) and to many other industries (due to permit delays).
PDOT also identified the DOT's Federal Motor Carrier Safety
Administration and Pipeline and Hazardous Material Safety
Administration as the regulatory agencies with oversight for
transportation of hazardous materials on main traffic routes. PDOT
concluded that a section 7 consultation is required for each load in
response to the designation of critical habitat and each tanker truck
is subject to those consultation procedures or detour routes around
critical habitat (for example, to avoid crossing designated critical
habitat in French Creek).
Our Response: The Service appreciates PDOT's input. We respectfully
disagree that the designation of critical habitat for rabbitsfoot would
increase PDOT's section 9 liability and create or increase an economic
burden on the State of Pennsylvania and industries transporting
hazardous materials. A key conclusion of the FEA for rabbitsfoot
critical habitat designation is that the Service does not expect
critical habitat designation to generate additional requests for
project modification in any of the critical habitat units, including
the Allegheny and Shenango Rivers and French and Muddy Creeks. Our
conclusion is based on the FEA and that the creeks and rivers where
rabbitsfoot occurs are already inhabited by other federally listed
mussels. Project modifications that minimize effects to other listed
mussel species within these reaches also would minimize effects to
rabbitsfoot (see our response to Comment 2).
(21) Comment: PDOT indicated it has pre- and post-Marcellus and
Utica shale drilling truck accident reports that may be useful in
identifying whether increased oil and gas exploration has or has not
translated to an increased threat of crashes that may release
contaminants.
Our Response: The Service appreciates PDOT's cooperation to further
identify potential threats to rabbitsfoot and designated critical
habitat. Your comments have been forwarded to our Pennsylvania
Ecological Services Field Office so that they may review the
information and, if appropriate, work cooperatively with PDOT to
minimize any potential threats to rabbitsfoot and its designated
critical habitat and other listed mussels from contamination that may
result from these accidents.
(22) Comment: PDOT stated that the information and data it provided
refines the Service's analysis regarding the proposed designation of
critical habitat for rabbitsfoot in proposed Units RF23, RF24, RF25,
and RF32 and provided evidence that diminishes, to a significant
extent, the threat from chemical contamination as a result of spills at
bridge crossings over critical habitat. PDOT requested a detailed list
of hazardous materials that pose a threat of adverse modification in
order to plan and prepare for actions PDOT must take to reduce their
potential liability under section 9 of the Act.
Our Response: Due to the vast number of hazardous materials hauled
on the nation's roads and limited toxicity data available for different
life stages of freshwater mussels and their potential sensitivity to
many of these compounds and effects to their habitat, the Service is
unable to provide a comprehensive list of hazardous materials that may
affect rabbitsfoot designated critical habitat. However, please refer
to the Chemical Contaminants section of the proposed listing and
designation of critical habitat rule (77 FR 63440) for further detail
on compounds known to adversely affect freshwater mussels and their
habitats.
(23) Comment: ODOT and PDOT expressed concern that the DEA
underestimated impacts to the transportation sector associated with the
proposed designation. They asserted that the DEA does not account for
the additional consultation, coordination, surveying, reporting,
assessment, mitigation, and monitoring costs that will result from the
rule. According to one comment, there are 23 existing structures
crossing critical habitat in Ohio that will be affected by the rule due
to project modifications that will discontinue in-water work. Another
comment asserted that permits for roadwork in Pennsylvania will be
interrupted as a result of the rule, and that this will result in time
delays and traffic diversions.
Our Response: Section 3.3.6 of the FEA provides information on the
likely incremental impacts of the designation to transportation and
utility-related activities. The analysis forecasts future section 7
consultations on these activities using both historical consultation
data and information from the Service's field offices that have
jurisdiction in the study area regarding likely future consultations.
As the commenters did not provide specific information regarding the
number or rate of future consultations in the study area (including
Ohio) over the next 20 years, the analysis relies on the estimates
provided in section 3.3.6 of the FEA. Specifically, the FEA estimates
that over the next 20 years, approximately 13.3 consultations are
likely to occur for transportation projects in proposed critical
habitat units RF27 and RF28, which are located in Ohio, in addition to
approximately 3.3 consultations in proposed critical habitat unit RF30,
which is located in Indiana and Ohio.
The designation of critical habitat is not anticipated to generate
additional conservation measures for the two mussels beyond those that
would be generated by the species being listed.
[[Page 24700]]
Regardless of whether critical habitat is designated, the time period
for consultation does not change. Therefore, the designation is
unlikely to result in incremental project delays due to the
consultation process. As a result, we expect the quantified direct
incremental impacts of the designation will be limited to additional
administrative costs to the Service, Federal agencies, and third
parties of considering critical habitat as part of future section 7
consultations (see our response to Comment 2).
(24) Comment: The Kansas Department of Wildlife, Parks and Tourism
(KDWPT) expressed concern regarding the proposed designation of
critical habitat for Neosho mucket in the Cottonwood River (Unit NM8).
KDWPT provided data from 2013 surveys of two Neosho mucket
reintroduction sites. Only one live Neosho mucket was located from the
original reintroduction effort. KDWPT contended that this river reach
does not support a self-sustaining population and that there are no
data available to suggest reintroduction efforts have been successful;
therefore, this habitat should not be considered occupied.
Our Response: We agree that the Cottonwood River should not be
considered occupied, and we are not designating critical habitat for
Neosho mucket in the Cottonwood River. We have clarified our definition
of occupied for the Neosho mucket (see Summary of Changes from Proposed
Rule).
(25) Comment: KDWPT suggested that the Cottonwood River population
of Neosho mucket be considered an experimental population and
propagated individuals be exempted from take under the Act. KDWPT also
suggested that safe harbor agreements should be made available to any
landowner agreeing to release Neosho mucket individuals in the
Cottonwood River.
Our Response: We are not designating critical habitat for Neosho
mucket in the Cottonwood River (proposed Unit NM8), Chase County,
Kansas. Recent KDWPT data from 2013 (Tabor 2013, pers. comm.) do not
support that released individual mussels into the Cottonwood River were
able to survive and become established (thriving and sufficiently
viable to suggest continuation or permanence without human
intervention), and the future success of the reintroduction efforts are
unknown at this time (see Summary of Changes from Proposed Rule,
below).
The Secretary may authorize the establishment of an experimental
population (including offspring arising solely therefrom) by regulation
under section 10(j) of the Act if the location of that population is
wholly separate geographically from nonexperimental populations of the
same species. However, the Cottonwood River is not outside the current
range of Neosho mucket, so such a regulation is not appropriate. If any
of the released Neosho mucket individuals are found to have survived,
they are protected by the provisions of the Act as an endangered
species.
If determined to be appropriate for the landowner and conservation
of the mussel, the Service will work with interested property owners to
develop a safe harbor agreement and to apply for an enhancement of
survival permit pursuant to section 10(a)(1)(A) of the Act. The Service
will also assist property owners in identifying actions they can
voluntarily undertake or forego to benefit species covered by the safe
harbor agreement and permit.
Public Comments
(26) Comment: Several commenters expressed concern that the
designation of critical habitat in Arkansas and Kansas gives the
Service authority to restrict activities on privately owned land. The
commenters specifically expressed concern regarding landowner water
development projects, development or modification of livestock and
irrigation water rights, normal aquaculture, farming and ranching
activities, timber harvests, housing development projects, and
development of mineral rights. They wanted to know whether these
activities would trigger section 7 consultation and, if so, what the
costs would be to private landowners for these consultations.
Our Response: The designation of critical habitat will not increase
government regulation of private land. Private activities are not
subject to the Act's section 7 consultation requirements unless the
activities are authorized, funded, or carried out by a Federal agency.
Most normal operations for rearing of livestock or fish, or for other
land uses common in Arkansas and Kansas, do not require Federal permits
or funding and are not carried out by a Federal agency. Therefore, we
do not anticipate this designation will impose any additional direct
regulatory burdens to private landowners in Arkansas and Kansas (see
our response to Comment 2).
(27) Comment: One commenter requested that the Service designate
critical habitat only in stream reaches with recent live specimen
collections and that the designation extend no more than 3 miles
upstream and downstream of collection sites. Similarly, other
commenters suggested that the Service should limit the designation to
areas that are or have historically been inhabited by the species and
that the designation should not include the entire geographical region
where a species can or may reside.
Our Response: We are designating as critical habitat areas that we
have determined to be occupied at the time of listing and contain
sufficient elements of physical or biological features to support life-
history processes essential to the conservation of the Neosho mucket
and rabbitsfoot. 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 of the
mussel as occupied habitat, except in lakes and reservoirs. The nearest
stream confluence or highway crossing to known localities was used to
delineate the upstream and downstream extent of critical habitat. For
the Neosho mucket, we have defined occupied habitat as those stream
reaches known to be currently extant. For the rabbitsfoot, we have
defined occupied habitat as those stream reaches that contain sizeable
and small populations as defined by Butler (2005, pp. 88-89), and the
marginal populations of Fish Creek and Red River that are the last
extant populations in their respective basins (Great Lakes and
Cumberland) and Allegheny River as a metapopulation (interconnected
populations where there is gene flow). All other areas where
populations are classified as marginal are not considered as occupied
habitat (see Criteria Used to Identify Critical Habitat, below).
(28) Comment: One commenter stated a belief that the protections
afforded Neosho mucket and rabbitsfoot under Kansas Nongame and
Endangered Species Conservation Act (K.S.A. 32-957 through 32-963, 32-
1009 through 32-1003) preclude the need to designate critical habitat
for these mussels under the Act.
Our Response: The Act requires that critical habitat be designated
to the maximum extent prudent and determinable for any species that is
determined to be an endangered or threatened species under the Act. We
acknowledge Kansas State law affords State level protections similar to
those afforded by the Act, but there are differences. For example,
Kansas State law does not require Federal action agencies to consult
with the Service.
[[Page 24701]]
Further, Federal listing and designation of critical habitat
affords opportunity for funding of recovery actions from Federal
sources, and may include cost share grants for non-Federal landowners,
the academic community, and nongovernmental organizations.
(29) Comment: One commenter asserted there is no information, other
than personal communication from the KDWPT, to support the presence of
a stable, reproductive Neosho mucket population in the Cottonwood
River, Kansas. The commenter contended the 1.6-rmi (2.6-rkm) reach of
proposed critical habitat in the Cottonwood River is not occupied by
Neosho mucket or is only occupied due to reintroduction and, therefore,
should not be designated as critical habitat.
Our Response: We are not designating critical habitat for the
Neosho mucket in the Cottonwood River (see also our response to Comment
24, above, and Summary of Changes from Proposed Rule, below).
(30) Comment: One commenter stated our estimate of $4.4 million for
informal and formal section 7 consultations is high, and questioned how
these consultations can generate this cost.
Our Response: The final total estimated economic impact of the
designation related to consultation under the Act is $4.4 million over
the 20-year period of analysis, or $290,000 on an annualized basis.
These figures represent the estimated costs of consultation associated
with eight categories of economic activity across the 12 States where
critical habitat was proposed. Chapter 3 of the FEA provides detailed
information regarding the portion of total cost associated with each
category of activity and how many consultation actions are projected to
occur over the 20-year period.
(31) Comment: Two commenters from Kansas and Missouri stated that
the Service did little, if any, outreach to the agricultural community.
Our Response: The Service published legal notices during the first
comment period in the Southeastern Missourian and Joplin Globe in
Missouri, and The Morning Sun (Pittsburgh, Kansas), Wichita Eagle, and
Topeka Capitol Journal in Kansas. The Service sent news releases to 17
additional Missouri and 18 additional Kansas newspapers with readership
in the areas affected by the proposed rule, including farmers. Advance
notification of the proposed rule and the document making available the
draft economic analysis and extending the proposal's comment period was
provided to the Kansas Forestry Commission and Missouri Conservation
Commission--Forest Management.
The Service's Missouri field office held two public informational
meetings in the area affected by this rule during the second comment
period. The first meeting was held in Joplin, Missouri, on May 21,
2013, and the second meeting was held in Greenville, Missouri, on May
23, 2013. Information pertaining to both meetings was disseminated
through typical media outlets in the region where the meetings were
held, which is predominately agricultural.
At the request of the Kansas Farm Bureau, the Service's Kansas
field office scheduled public informational meetings for October 9 and
10, 2013, in Parsons and Strong City, Kansas, respectively, during the
third comment period. These meetings were cancelled due to a lapse in
appropriations and partial government shutdown. The Service's Kansas
field office attempted to reschedule the meetings with the Kansas Farm
Bureau during the week of October 22, 2013, but was unable to
reschedule the meetings prior to the comment period closing. As an
alternative, the Service responded via email on October 22, 2013, to a
list of Kansas Farm Bureau questions related to the proposed rule and
draft economic analysis.
(32) Comment: One commenter expressed concern that the designation
of critical habitat in Unit RF4a (Ouachita River) will interfere with
many of Camp Ozark's river activities, including expansion in coming
years. The commenter asserted the camp is a significant local economic
driver, and the inability to both use the river for recreation and to
pursue development plans will stymie its ability to provide jobs and
wealth to the local economy.
Our Response: The originally proposed RF4b has been separated into
two units (RF4a and RF4b) in this final designation. The Service has
removed the originally proposed critical habitat Unit RF4a from the
final designation based on recent survey efforts suggesting the
rabbitsfoot population in this area should be classified as marginal
based on Butler's (2005) classification (see Summary of Changes from
Proposed Rule, below). As a result, the area the commenter expressed
concerns about is not included in the final designation of critical
habitat.
(33) Comment: One commenter stated that the designation of critical
habitat will significantly increase the number of consultations
required for permitted and non-permitted activities.
Our Response: As other listed species already occur in all
designated critical habitat units for Neosho mucket and rabbitsfoot, we
do not expect the number of consultations to increase due to this
designation.
(34) Comment: One group of commenters stated that the Service fails
to meet the Act's requirements for lawful designation of critical
habitat in two respects: (a) By designating areas occupied by the
rabbitsfoot in Arkansas as critical habitat absent an appropriate
determination that such areas include features essential to the
conservation of the species and which require special management
considerations or protection, and (b) by designating areas unoccupied
by rabbitsfoot in Arkansas as critical habitat absent an appropriate
determination those areas are essential for the conservation of the
species.
Our Response: In accordance with 50 CFR 424.12(d), the Service
concluded designating critical habitat in river reaches between, or in
close proximity to, the uppermost and lowermost occupied areas
represent an inclusive area essential to the conservation of Neosho
mucket and rabbitsfoot. In accordance with 50 CFR 424.12(b), the
Service determined all or some primary constituent elements were
present in each unit as evidenced by occupied space (that is, stable
habitat) for individual growth, feeding, and reproduction, presence of
gravid females, availability of fish hosts, and water quality. While
all water quality needs may not be completely understood, we estimate
some numeric standards have been adopted under the Clean Water Act (33
U.S.C. 1251 et seq.) that represent levels essential to the
conservation of these mussels (such as dissolved oxygen, ammonia, pH,
metals) (see Physical or Biological Features). In this final
determination and in accordance with 50 CFR 424.12(b), we have
identified nine categories of primary threats affecting Neosho mucket
and rabbitsfoot habitat that may necessitate special management or
protection (see Special Management Considerations or Protection). We
did not designate as critical habitat any areas that are unoccupied by
either species.
(35) Comment: One group of commenters stated that the Service's
record for the rule does not include sufficient information for the
Service to determine critical habitat features essential to the
conservation of the species based on descriptions of the physical or
biological features, which state ``little is known of the specific
habitat requirements for the Neosho mucket and rabbitsfoot'' and ``the
ranges of many water quality parameters that define suitable habitat
conditions for Neosho mucket and rabbitsfoot have not
[[Page 24702]]
been investigated or are poorly understood.'' Accordingly, the
commenters expressed the belief that the critical habitat units are
overly broad and unnecessary for preservation and propagation of these
mussels.
Our Response: Generally, the Neosho mucket is found embedded in
stable substrates associated with shallow riffles (areas where shallow,
generally less than 1 meter (m) (3.3 ft) in depth, turbulent water
passes through and over stones or gravel of somewhat similar size) and
runs (intermediate areas between pools and riffles with moderate
current) with gravel and sand substrate and moderate to swift currents
(Oesch 1984, p. 221; Harris 1998, p. 5; Obermeyer 2000, pp. 15-16).
However, in Shoal Creek and the Illinois River, the Neosho mucket
prefers near-shore areas or areas out of the main current (Harris 1998,
p. 5). The rabbitsfoot usually occurs in shallow areas along the bank
and adjacent runs and riffles with gravel and sand substrates where the
water velocity is reduced, but it also may occur in deep runs (Parmalee
and Bogan 1998, pp. 211-212). Unlike the Neosho mucket (Barnhart 2003,
p. 17), the rabbitsfoot seldom burrows in the substrate, but lies on
its side (Watters 1988, p. 13; Fobian 2007, p. 24). Neosho mucket and
rabbitsfoot, similar to other mussels, are dependent on areas with flow
refuges where shear stress (the stream's ability to entrain and
transport bed material created by the flow acting on the bed material)
is low and sediments remain stable during flood events (Layzer and
Madison 1995, p. 341; Strayer 1999, pp. 468 and 472; Hastie et al.
2001, pp. 111-114). Habitat conditions described above provide space,
cover, shelter, and sites for breeding, reproduction, and growth of
offspring for the Neosho mucket and rabbitsfoot; are essential to their
conservation; and may require special management considerations or
protection. These habitat conditions have been accurately captured in
the physical or biological features that we have identified to be
essential to the conservation of the species. Based on the best
available scientific information, we conclude the designation of
critical habitat for Neosho mucket and rabbitsfoot meets the criteria
set forth in 50 CFR 424.12.
(36) Comment: One group of commenters suggested that the Service
should limit critical habitat designations for rabbitsfoot in Arkansas
to areas where successful host species and rabbitsfoot coexist.
Our Response: Based on the best available information, suitable
fish hosts for the rabbitsfoot occur in all areas that we are
designating as critical habitat. The Arkansas Game and Fish Commission
(AGFC) fish database (2014) includes numerous records for rabbitsfoot
fish hosts in the critical habitat units designated in Arkansas. Our
administrative record documents the coexistence of rabbitsfoot and its
fish hosts in these critical habitat units.
(37) Comment: One group of commenters suggested that the Service
should remove streams impacted and/or controlled by hypolimnetic (lower
thermally stratified portion of a lake) or other cold water releases
(such as Mammoth Spring in Arkansas) because those streams are not
preferred habitat for rabbitsfoot. Specifically, they referenced the
Spring River (proposed Unit RF12) from Hardy downstream to Ravenden,
Arkansas, and Ouachita River (proposed Unit RF4b) from Interstate 30
downstream to the Little Missouri River confluence. They stated that
the rabbitsfoot cannot survive in these two cold water reaches.
Our Response: Our decision record documents the presence of a
diverse and abundant mussel assemblage in the Spring River from Hardy,
Arkansas, downstream to Ravenden, Arkansas (Rust 1993, Appendix 1.2 and
1.4; Harris et al. 2007; AGFC Mussel Database 2014; various museum
records). The Ouachita River mussel and fish fauna from Remmel Dam
downstream to Interstate 30 is affected by cold water releases (Harris
1999, p. 4-2). Mussel species richness and abundance increases
downstream of Interstate 30 (Harris 1999, p. 3-8). Harris (1999, p. 4-
2) reported double-digit species richness and higher relative abundance
of mussels downstream of the Tenmile Creek confluence compared to sites
upstream. Live rabbitsfoot occur in the Spring River between Hardy and
Ravenden, Arkansas, and in the Ouachita River downstream of Tenmile
Creek to the confluence of the Caddo River (Harris et al. 2007, pp. 14-
16; AGFC Mussel Database 2014; Harris 1999, p. 3-8). Therefore, the
best available scientific information supports that mussels, including
rabbitsfoot, can survive in these reaches.
(38) Comment: One group of commenters recommended modifications to
six critical habitat units for rabbitsfoot. They asserted that the
critical habitat units should be restricted to stream reaches where
live rabbitsfoot individuals are known to occur. The units are as
follows:
(a) Ouachita River (proposed Unit RF4a): Remove entire designation
because occurrence of rabbitsfoot is only reported from Arkansas
Highway 379 and 298.
(b) Ouachita River (proposed Unit RF4b): Restrict designation to
the confluence of Little Missouri River downstream to U.S. Highway 79.
(c) Saline River (proposed Unit RF5): Restrict designation to 2
miles upstream of Arkansas Highway 15 to the Snake Creek confluence
north of the Felsenthal National Wildlife Refuge boundary.
(d) Black River (proposed Unit RF9): Restrict designation to
Pocahontas, Arkansas, downstream to Black Rock, Arkansas.
(e) Spring River (proposed Unit RF10): Restrict designation to
Ravenden, Arkansas, downstream to confluence with Black River. They
also believe water temperatures from Hardy to Ravenden, Arkansas, do
not support propagation of rabbitsfoot and, thus, are not essential to
the conservation of the species.
(f) South Fork Spring River (proposed Unit RF11): Remove entire
designation based on the lack of documentation of live rabbitsfoot
despite multiple surveys.
Our Response: We have re-evaluated the critical habitat units in
question and, based on the best available scientific information, we
are removing or modifying the following units in this final rule. For
further information, see Summary of Changes from Proposed Rule, below.
(a) Ouachita River (proposed Unit RF4a): We agree, in part, with
the commenters and in this final designation have removed the
originally proposed Unit RF4a.
(b) Ouachita River (Unit RF4b): We agree, in part, with the
commenters and have revised proposed Unit RF4b into two units. The
Ouachita River from Arkadelphia downstream to the Little Missouri River
confluence has not been comprehensively surveyed for mussels. While the
absence of rabbitsfoot from this reach is likely a result of no survey
data and not actual absence, the best available scientific information
supports designating critical habitat in two Ouachita River units,
revised Unit RF4a and revised Unit RF4b (see Summary of Changes from
Proposed Rule, below).
(c) Saline River (Unit RF5): We agree, in part, with the commenters
and have modified Unit RF5 in this final designation so that the
upstream boundary is at the Frazier Creek confluence near Mt. Elba,
Arkansas, and the downstream boundary is at the Mill Creek confluence
near Stillions, Arkansas.
(d) Black River (Unit RF9): We agree, in part, with the commenters
and have modified Unit RF9 in this final
[[Page 24703]]
designation so that the downstream boundary is at the Flat Creek
confluence downstream of Powhatan, Arkansas.
(e) Spring River (Unit RF10): The best available scientific
information supports the designation with a slight adjustment to the
upstream boundary of Unit RF10 downstream approximately 3.72 rkm (6
rmi) to the Ott Creek confluence. We have made this change in this
final designation.
(f) South Fork Spring River (proposed Unit RF11): The best
available scientific information supports categorizing the South Fork
Spring River rabbitsfoot population as marginal. Therefore, the Service
has removed proposed Unit RF11 (the South Fork Spring River) from this
final designation. (Note that units have been renumbered for this final
rule and final Unit RF11 is not the same location as proposed Unit
RF11).
(39) Comment: One group of commenters stated that the Service
failed to acknowledge protections afforded to proposed Units RF10 and
RF4a under Arkansas Pollution Control and Ecology Commission (APCEC)
Regulation 2 (waters designated as Extraordinary Resource Waters (ERW)
and Ecologically Sensitive Waterbodies (ESW)), which they stated
provide sufficient protection to preserve the physical or biological
features essential to the conservation of rabbitsfoot.
Our Response: The Service acknowledges there are some protections
afforded to ERW and ESW under APCEC's Regulation 2, which was developed
pursuant to the Arkansas Water and Air Pollution Control Act and the
Clean Water Act (CWA). Significant physical alterations of habitat are
not allowed unless: (a) The proposed physical alteration of habitat
will not impair water quality, natural flow regime, and the habitat of
fish, shellfish, or aquatic life; and (b) there is no feasible
alternative to the proposed project. Regulation 2 also allows the
short-term activity authorization for a variety of activities that are
permitted to exceed water quality standards provided there is no
permanent or long-term impairment. However, despite provisions in
Regulation 2 that explicitly prohibit short-term activity authorization
for activities that result in adverse effects to federally endangered
and threatened species or their critical habitat, short-term activity
authorizations in ERW and ESW watersheds have been linked to documented
take of endangered species (see U.S. v. Hawk Field Services, LLC 2011).
Furthermore, Regulation 2 allows for the removal of an ERW or ESW
designation for the purpose of constructing a reservoir to provide
domestic drinking water, if it can be demonstrated: (a) The sole
purpose is to provide domestic drinking water supply; and (b) there is
no feasible alternative to constructing a reservoir to meet the
domestic water needs of the citizens of Arkansas. Given that a goal of
the CWA is to establish water quality standards that protect shellfish
and given documented declines of these mussel species still continue
due to poor water quality and other factors, we take a conservative
approach in favor of the species and conclude that Regulation 2 has
been insufficient to significantly reduce or remove threats to the
Neosho mucket and rabbitsfoot in Units RF4a and RF10.
(40) Comment: One group of commenters commissioned its own study of
the economic impacts of the critical habitat designation. Their study
compared their results to the Service's DEA and concluded that the DEA
``vastly understates'' costs of the regulatory action because it does
not take into account direct and indirect costs to businesses, State
and local governments, and other private property owners resulting from
section 7 consultation requirements. Furthermore, these impacts would
lead to additional damages to the regional economy in the form of lost
tax revenue, increased unemployment claims, damage from unrepaired
roads and bridges, increases in transportation costs, and tax
increases. Specifically, the evaluation estimated, based on a sample of
affected projects, the total cost to affected Arkansas counties would
exceed $19 million, approximately 5 times the cost of $4.4 million
estimated in the DEA for the entire 12-State region of the designation.
Our Response: The commenter's evaluation describes the economic
impacts that would occur if a variety of hypothetical scenarios were to
result from critical habitat designation (for example, if visitation at
Camp Ozark declined by 25 percent; visitation at the Pond Creek
National Wildlife Refuge decreased by 20 percent; an oil well is not
drilled; a poultry farm is closed; the construction of a planned
county-road bridge over the Osage River is delayed; or city or county
discharges under the National Pollution Discharge Elimination System
(NPDES) are restricted). However, the evaluation does not provide
evidence to suggest such restrictions will actually occur as a result
of the critical habitat designation.
The Service considered whether restrictions are likely to result
from the designation of critical habitat and found this to be unlikely.
Specifically, the Service prepared a memorandum describing the likely
outcome of future section 7 consultations (see Appendix D of the FEA).
The Service is designating critical habitat in river segments that are
occupied by the mussels. Section 7 consultation requirements take
effect once the mussels are listed under the Act, even if critical
habitat is not designated (see response to Comment 2). Thus, the
incremental costs of additional regulation designating critical habitat
are limited to the administrative costs to the Service, the Federal
action agencies, and third parties involved in consultations. The FEA's
estimate of $4.4 million (present value impacts assuming a 7 percent
discount rate) results from this additional administrative burden.
(41) Comment: Multiple commenters stated that the DEA
underestimates the impacts of the proposed critical habitat designation
because it utilizes an incremental approach that ``only estimates the
likely costs of agencies consulting with each other'' and does not
consider the actual opportunity costs to businesses, State and local
governments, and other private property owners related to the required
consultations.
Our Response: The Service's focus on the incremental impacts of the
critical habitat rule is consistent with the U.S. Office of Management
and Budget's (OMB's) guidelines for best practices concerning the
conduct of economic analysis of Federal regulations. As described in
section 2.1 of the FEA, OMB guidelines direct Federal agencies to
measure the costs of a regulatory action against a baseline, which it
defines as the ``best assessment of the way the world would look absent
the proposed action.'' The baseline utilized in the FEA is the existing
regulatory and socio-economic burden imposed on landowners, managers,
or other resource users potentially affected by the designation of
critical habitat absent the designation of critical habitat. The
baseline includes protections afforded the species under the Act, as
well as under other Federal, State, and local laws and guidelines.
In recognition of the divergent opinions of the courts and to
address the Presidential memorandum dated February 28, 2012, the
Service promulgated final regulations specifying that it is appropriate
for the Secretary to consider impacts of a critical habitat designation
on an incremental basis (78 FR 53058, August 28, 2013). This rule
discusses the impact analysis for proposed critical habitat through
completion of an ``incremental analysis.'' This method of determining
[[Page 24704]]
the probable impacts of the designation seeks to identify and focus
solely on the impacts over and above those resulting from existing
protections.
Accordingly, the FEA employs ``without critical habitat''
(baseline) and ``with critical habitat'' (incremental) scenarios. The
analysis qualitatively describes how baseline conservation efforts for
the two mussels may be implemented across the proposed designation,
and, where possible, provides examples of the potential magnitude of
costs of these baseline conservation efforts (Chapter 4). The FEA
focuses, however, on the incremental analysis, describing and
monetizing the incremental impacts due specifically to the designation
of critical habitat for the species (Chapter 3). Sections 2.2 and 2.3
of the FEA describe in detail how the analysis defines and identifies
incremental effects of the proposed designation.
The incremental approach employed by the Service in its analyses of
proposed critical habitat designations does not necessarily limit
impacts to administrative costs of consultation. In some cases,
designation of critical habitat does result in new project
modifications that need to be implemented to avoid possible adverse
modification of the habitat. The costs of these project modifications
would then be counted in the incremental analysis, regardless of who
incurs the cost. In the case of the Neosho mucket and rabbitsfoot, all
of the designated critical habitat is occupied by the species, and
therefore any project modifications will be required even absent
critical habitat (in the baseline) to avoid possibly jeopardizing the
species' existence (see response to Comment 2).
(42) Comment: Multiple commenters expressed concern that the
proposed critical habitat designation will have an economic impact on
Arkansas counties, cities, communities, businesses, and industry
sectors through effects on employment, tax revenues, business and
industrial operations, and overall quality of life. Commenters
suggested that these impacts will occur as a result of new critical
habitat-related restrictions, prohibitions, delays, cancellations of
activities, and/or additional requirements for conservation and
consultation.
Our Response: The commenters do not provide information regarding
how or why they believe critical habitat will result in new
restrictions, prohibitions, delays, cancellations, or conservation
requirements. Within the FEA, the Service specifically considered
whether additional or different conservation measures would be needed
to avoid destruction or adverse modification of critical habitat above
and beyond those measures needed to avoid jeopardizing the continued
existence of the species, and found this to be unlikely (see our
response to Comment 2). Because all of the units are occupied by at
least one of the mussel species, any measures needed to protect habitat
would be requested by the Service, even if critical habitat was not
designated, to avoid jeopardizing the continued existence of the
species.
(43) Comment: Multiple commenters expressed concern that the DEA
does not address impacts to private landowners (such as farmers and
ranchers), and in particular, those impacts associated with property
value or third party lawsuits resulting from critical habitat
designation. One commenter expressed concern that no small landowners
were contacted in accordance with the provisions of the Regulatory
Flexibility Act (RFA; 5 U.S.C. 601 et seq.).
Our Response: Incremental impacts of the designation are expected
to be limited to additional administrative costs to the Service,
Federal agencies, and third parties of considering critical habitat as
part of future section 7 consultations (see our response to Comment 2).
The FEA incorporates potential impacts to private landowners as third
parties in forecasted consultations on water quality; timber,
agriculture, and grazing; and development activities. In addition,
Appendix A of the FEA includes an analysis of the distributional
impacts of the proposed critical habitat designation on small entities.
As described in Appendix A, the only costs expected to be borne by
third parties as a result of the proposed designation are portions of
the total cost of forecasted section 7 consultations. These costs are
relatively minor, ranging from $260 to $2,080 per consultation.
Section 2.3.2 of the FEA discusses how the designation of critical
habitat may, under certain circumstances, result in indirect impacts
such as time delays, regulatory uncertainty, and stigma effects (such
as property value impacts). The Service does not expect indirect
impacts to result from critical habitat designation for the two
mussels. However, as a result of the concern expressed in these
comments, we have added new language to the FEA concerning to the
potential for indirect costs associated with third party lawsuits or
property value impacts. Because the nature, timing, and likelihood of
future litigation or property value impacts are highly uncertain, the
FEA does not quantify these impacts but instead describes them
qualitatively and notes that these are uncertainties in the analysis.
(44) Comment: One commenter asserted that the DEA is flawed because
it limits the physical scope of its enquiry to the riparian watersheds
and census tracts included in those watersheds. The commenter argued
that standard practice for an economic impact analysis has been to use
county boundaries or a defined local market area as the basis for any
comprehensive evaluation of costs and benefits. The use of such narrow
boundaries is an attempt to limit the estimated effects by omitting
consideration of the interconnectedness of modern economies.
Our Response: The commenter is correct that the DEA defines its
``study area'' as including the watersheds encompassing proposed
critical habitat (either the fourth level (8-digit) or sixth level (12-
digit) Hydrologic Unit Code (HUC) watersheds defined by the U.S.
Geological Survey (USGS)). The study area is used to identify projects
(such as oil wells, roads, bridges, etc.) that could have a hydrologic
connection to critical habitat. For example, these projects may be
sufficiently close to a critical habitat river segment that runoff from
the construction site would increase sediment loads to the river,
potentially affecting the mussels. If such a hydrologic connection
exists, these projects are more likely to require consultation.
Defining the study area more broadly would result in the inclusion of
projects with no hydrologic connection to critical habitat, and thus no
reason for consultation.
Importantly, while the identification of projects requiring
consultation is limited to the study area, the consideration of
economic impacts that might result if these projects are modified is
not limited to this geographic area. However, in the case of Neosho
mucket and rabbitsfoot, incremental project modifications are unlikely.
Incremental costs are limited to administrative costs, which would be
incurred by the agencies or private entities pursuing the projects,
regardless of where those entities are headquartered.
(45) Comment: One commenter provided an analysis of the economic
impacts of the proposed critical habitat designation based on
hypothetical project modifications using IMPLAN (an input-output
modeling system) multipliers. Such an analysis measures the change in
economic output resulting from a policy change. The authors argued that
such multiplier analysis is the appropriate framework for answering
impact analysis questions,
[[Page 24705]]
noting the DOT recommends this approach for construction planning.
Our Response: The commenter is correct that economic impact
analyses generally rely on input-output or multiplier analysis using
tools such as IMPLAN. Examples of such analyses include estimates of
the changes in economic output generated by the construction of a new
stadium or the loss of a manufacturing facility.
In contrast, the method of economic analysis of proposed Federal
regulations is subject to the direction provided by Executive Order
12866 and associated guidance provided by OMB in Circular A-4. As
described in Circular A-4, ``opportunity cost'' is the appropriate
concept for valuing benefits and costs of regulatory actions. Costs are
incurred when resources are used for one purpose and hence cannot be
used for another purpose. The opportunity cost is the value of the
benefit that could have been provided by devoting the resources to
their best alternative use. Estimates of the change in opportunity cost
are sometimes referred to as economic efficiency effects or changes in
social welfare.
For example, assume section 7 consultations are required prior to
drilling at oil and gas sites potentially affecting the mussels. If
delays caused by section 7 consultation cause oil and gas operators to
forego the activity without pursuing production at substitute sites,
net change in oil and gas production at a national level would
represent the opportunity cost of the regulation. If operators pursue
production at substitute sites, resulting in no net change in
production but redistributing activity away from sites near the
mussels, then the marginal cost of reduced profitability associated
with the next best alternative location represents the opportunity
cost. In either case, the resources used to produce the oil and gas
(for example, materials and labor necessary to drill for and transport
the oil and gas) are not lost to society. Rather, these resources are
still available for other productive uses. As a result, estimates of
changes in efficiency effects, or social welfare, are fundamentally
different than the estimate of the distributional effects using tools
like IMPLAN, and the results are not directly comparable.
Given that the designation of critical habitat for the mussels is
unlikely to result in additional project modifications beyond those
related to the listing of these species, the types of distributional
effects measured using IMPLAN multipliers are likely to be minimal. The
opportunity cost of the regulation is limited to the resources
(primarily labor) needed to address the administrative requirements of
the section 7 process. Thus, the DEA appropriately captured the
incremental opportunity costs of the proposed regulation.
(46) Comment: One commenter noted that the DEA predicts an increase
in future section 7 consultations on Natural Resources Conservation
Service (NRCS) Farm Bill activities in Arkansas. The commenter
expressed concern because these consultations are new, and the Service
has no way to predict the incremental costs to private landowners
associated with new conditions (such as a 180-foot buffer along stream,
discharge zones, and karst features and methods to prevent soil erosion
and runoff) that will be recommended during section 7 consultation on
Farm Bill-related activities.
Our Response: Section 3.3.3 of the DEA includes the likely increase
in section 7 consultations in Arkansas due to new NRCS Farm Bill
program work under the Agricultural Act of 2014 (H.R. 2642, Pub. L.
113-79, which is also known as the 2014 Farm Bill), an act that
authorizes nutrition and agriculture programs in the United States for
2014 through 2018, and this section of the DEA provides an estimate of
the administrative costs associated with the forecasted consultations.
Additionally, the discussion provides information on the likely
incremental impacts of the proposed critical habitat designation on
timber, agriculture, and grazing activities. As described in section
2.3.2 of the DEA, the designation of critical habitat is not
anticipated to generate additional conservation measures for the two
mussels beyond those that would be generated by the listing.
We note that the conditions identified by the commenter from the
DEA as ``specific conservation recommendations identified by the
Service'' (i.e., a minimum 180-foot buffer and methods to prevent soil
erosion and runoff) are mischaracterized in the economic analysis as
having been made by the Service, which is incorrect. We have included
an Addendum to the FEA (IEc 2014b) to correct information regarding the
programmatic consultation with NRCS. It is important to note, however,
that although the information was not correctly presented in the
economic analysis, it had no bearing on the results of the incremental
effects analysis, as that information was incorporated in the baseline.
(47) Comment: One commenter stated that the costs presented in the
DEA are based on ``an unrealistic discount rate of seven percent'' and
costs should be presented instead using a discount rate of 5 percent or
less.
Our Response: The DEA demonstrated the sensitivity of the results
of the analysis to the choice of discount rate by presenting costs
using discounts rates of both 7 and 3 percent. Specifically, results
estimated using both rates are presented in the Executive Summary (see
Exhibit ES-3). For presentation purposes, the remainder of the report
presents detailed cost estimates using a 7 percent discount rate;
however, Appendix B replicates all detailed tables using a 3 percent
discount rate for comparison.
The choice of discount rates is consistent with OMB's Circular A-4,
which states: ``As a default position, OMB Circular A-4 states a real
discount rate of seven percent should be used as a base-case for
regulatory analysis. The seven percent rate is an estimate of the
average before-tax rate of return to private capital in the U.S.
economy. The effects of regulation do not always fall exclusively or
primarily on the allocation of capital. When regulation primarily and
directly affects private consumption (for example, through higher
consumer prices for goods and services), a lower discount rate is
appropriate. For regulatory analysis, you should provide estimates of
net benefits using both three percent and seven percent.'' The rate of
5 percent recommended by the commenter is captured in this range.
(48) Comment: One commenter asserted the RFA analysis does not
consider whether or not the proposed critical habitat designation would
have a substantial impact on local government jurisdictions because, as
stated in the DEA, ``potential financial impacts to local government
agencies and private landowners are not estimated as a proportion of
annual revenues due to lack of data.''
Our Response: The purpose of the Small Business Regulatory
Enforcement Fairness Act (5 U.S.C. 801 et seq.) analysis, provided in
Appendix A of the DEA, is to assess whether or not the proposed
critical habitat designation will have a significant economic impact on
a substantial number of small entities. As described in section A.1,
the analysis provides information regarding the potential number of
third parties participating in consultations on an annual basis in
order to ensure a robust examination of the effects of the proposed
rule. In addition, the analysis provides information to assist the
Service in determining whether these entities are likely to be
``small'' and whether the number of potentially affected small entities
is ``substantial.''
[[Page 24706]]
Importantly, the impacts of the rule must be both significant and
substantial to prevent certification of the rule under the RFA and to
require the preparation of an initial regulatory flexibility analysis.
As shown in Exhibit A-2 of the DEA, the proportion of small
entities in the study area that may be affected in one year by the
proposed designation ranges from 0.1 percent to 3.1 percent, which is
not considered to be a substantial number. Despite this conclusion, the
analysis also provides information on whether the economic impact on
these entities is likely to be significant. Specifically, the analysis
estimates the likely annualized impact per entity as a proportion of
estimated annual revenue. Due to lack of data on the annual revenues of
each entity that may be involved in section 7 consultations across the
designation, we perform a ``threshold analysis''; that is, we determine
that for impacts to exceed one percent of an entity's annual revenues,
those annual revenues would have to be less than $47,000. We assume
this is very unlikely to be the case for local government agencies in
the study area. For example, one of the least populous counties in the
study area in Arkansas is Calhoun County, whose total revenues for 2011
were reported at $8,863,000 (Center for Governmental Research Inc.,
2013: http://www.govistics.com/AR/CALHOUN).
(49) Comment: One commenter stated that for private timber,
agricultural, and grazing entities, the RFA analysis relies on the
flawed assumptions in chapter 3 of the DEA. The Service concludes there
will be no significant impact to small entities when the DEA clearly
states the Service has no data with which to predict future incremental
costs to such private landowners because there is no history of
consultation between the Service and NRCS.
Our Response: In Appendix A of the DEA, we note that we are unable
to estimate potential financial impacts to local government agencies
and private landowners as a proportion of annual revenues due to a lack
of data. However, for any entity with greater than $47,000 in annual
revenue, the financial burden of undertaking a project requiring
consultation on the mussels would constitute less than one percent of
annual revenue because the designation of critical habitat is not
anticipated to generate additional conservation measures for the two
mussels beyond those that would be generated by the species being
listed. Less than one percent of annual revenue would not be considered
a significant impact. Therefore, we have determined there would not be
a significant impact to a substantial number of small entities.
(50) Comment: One commenter provided information about NPDES
permits for direct and indirect discharges into rivers containing
proposed critical habitat. The commenter asserted that ``serious
economic and fiscal impacts will accompany any water-system adjustments
that would have to be instituted to divert or avoid discharges into the
host rivers.'' In addition, the commenter stated that the NPDES permits
will ``be subjected to an increased level of regulation, including
potential need for formal and/or informal consultation with [the
Service].''
Our Response: The commenter does not provide any information
regarding the likelihood or nature of ``water-system adjustments''
resulting from critical habitat designation that would aid in providing
greater clarification to address the concern. As outlined in our
response to Comment 2 and elsewhere in this document, the designation
of critical habitat is not anticipated to generate additional
conservation measures for the two mussels beyond those that would be
generated by the species being listed. In addition, section 3.3.2 of
the DEA provided an estimated number of future water quality-related
section 7 consultations, including those on NPDES permit programs. The
DEA forecast costs related to water quality activities for all units in
which future section 7 consultations concerning water quality
management activities are expected to occur.
(51) Comment: One commenter stated that although the DEA does
address benefits of designating critical habitat, the analysis should
account for benefits to other species from the designation of critical
habitat for the mussels. Studies have shown these protections promote
stream health by preventing erosion, filtering runoff, and providing
shade and microhabitats. Other benefits include areas for scientific
study and aesthetic value to residents.
Our Response: The primary goal of critical habitat designation for
the mussels is to support their long-term conservation. Theoretically,
conservation and recovery of the species may result in benefits,
including use benefits (wildlife-viewing), non-use benefits (existence
values), and ancillary ecosystem service benefits (such as public
safety benefits of reduced wildfire risks). Section 5.3 of the DEA
contained a discussion of potential ancillary benefits of mussel
conservation, including improved water quality and aesthetic benefits.
(52) Comment: One commenter asked why the critical habitat
designation is necessary when no additional conservation measures are
required beyond those associated with the listing.
Our Response: The Act requires that critical habitat be designated
to the maximum extent prudent and determinable for any species that is
determined to be an endangered or threatened species under the Act. In
the October 16, 2012, proposed rule to list these species and designate
critical habitat (77 FR 63440), we identified ``the potential
benefits'' of designating critical habitat to ``include: (1) Triggering
consultation under section 7 of the Act in new areas for actions in
which there may be a Federal nexus where it would not otherwise occur
because, for example, it is or has become unoccupied or the occupancy
is in question; (2) focusing conservation activities on the most
essential features and areas; (3) providing educational benefits to
State or county governments or private entities; and (4) preventing
people from causing inadvertent harm to the species'' (see Prudency
Determination, 77 FR 63472).
(53) Comment: Several commenters contended that the designation of
critical habitat in Arkansas is an attempt by the Service or Federal
government to ``take'' privately owned property.
Our Response: The designation of critical habitat does not
authorize the Service or Federal government to purchase, condemn, take
through eminent domain, or otherwise confiscate private property
through the use of legislation, regulation, or other legal means. 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 Neosho mucket and rabbitsfoot in a
takings implications assessment. As discussed above, the designation of
critical habitat affects only Federal actions. Although private parties
that receive Federal funding, assistance, or 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 on the Federal agency.
(54) Comment: Multiple commenters requested that the Service
conduct a ``complete impact study'' to include all property owners and
businesses.
Our Response: Based on a review and evaluation of the information
contained in the environmental assessment, we
[[Page 24707]]
determined the designation of critical habitat for the Neosho mucket
and rabbitsfoot does not constitute a major Federal action
significantly affecting the quality of the human environment under the
meaning of section 102(2)(c) of NEPA. Accordingly, an environmental
impact statement is not required. See our responses to Comments 41 and
42 regarding economic impacts to private landowners and businesses.
(55) Comment: One commenter stated that the designation of critical
habitat in Arkansas will close rivers to fishing.
Our Response: As discussed above, designating critical habitat has
no impact on landowner or citizen activities that do not require
Federal funding or permits.
(56) Comment: One commenter expressed concern that oral comments
were not recorded during public meetings held in Arkansas. Furthermore,
the commenter requested policy changes to require public meetings be
recorded and entered into the public record.
Our Response: The commenter appears to be confusing the
requirements for a ``public hearing'' with those for the ``public
information meeting'' that was actually held. A public hearing, which
may be requested on any proposed rule within 45 days after the opening
of the comment period, includes oral testimony from participants which
is recorded by a court reporter and entered into the public record.
With regard to the proposed critical habitat designation for the two
mussels, no public hearings were requested during any of the four open
comment periods. Instead, the Service was asked to reopen the comment
periods to allow additional time for interested parties to review the
proposed rule, DEA, and draft environmental assessment. The Service
agreed to hold public information meetings during the open comment
periods to facilitate a better understanding of the proposed action. In
a public information meeting, which is a less formal process than a
public hearing, there is no requirement for recording oral testimony.
However, the Service voluntarily provided comment cards that
participants could fill out during the meetings and submit as formal
comments to be entered into the record. These comments have been
uploaded onto http://www.regulations.gov along with all other comments
we received during the comment periods.
(57) Comment: One commenter stated predation by raccoon, otter,
beaver, and other predators is a greater threat to Neosho mucket and
rabbitsfoot than habitat loss or degradation.
Our Response: The Service determined predation was not a
significant threat to the overall status of Neosho mucket and
rabbitsfoot. A more detailed discussion of this threat is presented in
the final listing rule under Summary of Factors Affecting the Species
(78 FR 57076, September 17, 2013).
(58) Comment: One commenter expressed concern about additional
restrictions on the aquaculture industry in Arkansas, specifically on
water withdraw or diversion, pond cleanout, pond effluent discharge,
and inspection requirements, due to the designation of critical
habitat.
Our Response: As discussed above, designating critical habitat has
no impact on landowner activities that do not require Federal funding
and permits. For aquaculture activities that require a Federal permit
or assistance, the Service may recommend conservation actions in a
section 7 consultation for the affected species that protect not only
the species, but also its habitats, regardless of whether or not there
is designated critical habitat. Currently, such conservation measures
to protect the species and their habitats are in place for other listed
mussel species that occur within the Arkansas critical habitat units
such that no additional conservation measures or regulatory
restrictions are expected to result from this critical habitat
designation.
(59) Comment: One commenter stated that the Service should release
data used to determine critical habitat for Neosho mucket and
rabbitsfoot.
Our Response: All of the comments, materials, and documentation we
considered in this rulemaking are available at the Arkansas Ecological
Services Field Office (see ADDRESSES, above). Comments and materials
received, as well as some supporting documentation we used in preparing
this rule, are also available for public inspection at http://www.regulations.gov.
(60) Comment: Several commenters expressed concern about fluoride
as a chemical contaminant affecting Neosho mucket and rabbitsfoot.
Our Response: While all the water quality needs for these two
mussels may not be completely understood, we estimate some numeric
standards have been adopted under the CWA that represent levels
essential to conservation of these mussels (such as dissolved oxygen,
ammonia, pH, metals) (see Physical or Biological Features). In a North
Carolina study, effective concentrations for growth effects were found
to be 17 and 8 times as high as the State's and EPA's water quality
criteria for fluoride, respectively (Keller and Augspurger 2005 in
Farris and Van Hassel 2007, p. 162). Fluoride, at concentrations
typical of most streams meeting state and EPA water quality criteria,
is not toxic to glochidia (freshwater mussel larvae) and juveniles of
Unionidae mussels such as the Neosho mucket and rabbitsfoot. In this
final designation, and in accordance with 50 CFR 424.12(b), we have
identified nine categories of primary threats affecting Neosho mucket
and rabbitsfoot habitat that may necessitate special management or
protection (see Special Management Considerations or Protection--
Chemical Contaminants).
(61) Comment: Multiple commenters expressed concern regarding ``sue
and settle'' agreements between Federal agencies and nongovernmental
organizations. They contend this process is a binding out-of-court
settlement that prohibits farmers, small businesses, and private
property owners from participating in discussions and providing
meaningful input prior to the publication of a proposed rule.
Our Response: The multiyear listing workplan under which this
critical habitat rule was proposed was developed through settlement
agreements with Wild Earth Guardians and the Center for Biological
Diversity to resolve multidistrict litigation. It established deadlines
for completing listing determinations for each candidate species,
including the Neosho mucket (first included in the 2001 CNOR; 66 FR
54808, October 30, 2001) and rabbitsfoot (first included in the 2009
CNOR; 74 FR 57804, November 9, 2009). The Service published a final
listing rule for these mussels on September 17, 2013 (78 FR 57076), in
accordance with these deadlines. Section 4(a)(3)(A) of the Act requires
that we designate critical habitat, when prudent and determinable,
concurrently with making a determination to list a species as
endangered or threatened. Therefore, in making this final designation
at this time, the Service is adhering to the requirements of the
listing workplan and settlement agreement and the Act.
(62) Comment: One commenter contended that the greatest threat to
the Neosho mucket and rabbitsfoot is White River (Arkansas) minimum
flows regulated by the ACOE.
Our Response: Neosho mucket does not occur in the White River. The
construction of a series of six flood control reservoirs on the upper
White River in the 1940s and 1950s, including
[[Page 24708]]
Bull Shoals and Norfork Lakes, led to the extirpation of rabbitsfoot
from a large section of the White River upstream of Batesville,
Arkansas. White River minimum flows provide adequate low flow releases
from Bull Shoals and Norfork Lakes dams to enhance trout habitat and
survival in cold tailwater reaches of the White River located upstream
of Unit RF8a. There is no evidence to support minimum flows
contributing to declines in rabbitsfoot. Minimum flows may be
beneficial to the species by providing higher and more consistent flow
during low flow periods when mussels may become stranded and be
subjected to desiccation (drying).
Summary of Changes From Proposed Rule
The information below is provided as a result of the peer and
public review process. In this final designation, we have made changes
to maps, units, and the rule itself. A change in mapping methodology
resulted in a revision to the total number of river kilometers (river
miles) for the designation of rabbitsfoot critical habitat. The
beginning and ending points of the proposed critical habitat
designation, as well as the unit descriptions (as described in the
proposed critical habitat rule) will remain the same except where
modified for other reasons.
(1) We have made changes to Unit RF7 to correct an oversight in
mapping methodology, specifically in methods used for estimating the
unit length. The new method uses a better technique for following the
curve and meander of the river channel, which results in an additional
1.5 rkm (0.9 rmi) designated as critical habitat for the rabbitsfoot.
In addition, this correction resulted in a corresponding increase to
the private ownership lands (expressed as river km/mi) adjacent to Unit
RF7.
(2) We are not designating critical habitat for Neosho mucket in
the Cottonwood River (Unit NM8), Chase County, Kansas, as originally
proposed. Recent KDWPT data from 2013 (Tabor 2013, pers. comm.) do not
indicate that released individual mussels into the Cottonwood River
were able to survive and become established, and the future success of
the reintroduction efforts are unknown at this time. We have clarified
our definition of extant Neosho mucket populations in this final
designation to address reintroduced populations and selection criteria
for critical habitat for this mussel (see the Criteria Used to Identify
Critical Habitat).
(3) We are not designating critical habitat for rabbitsfoot in the
Ouachita River (Unit RF4a), Montgomery County, Arkansas, as originally
proposed. Rabbitsfoot was collected live at two sites in 1988 (AGFC
Mussel Database 2014). However, an AGFC and Service comprehensive
survey in 2007 failed to find any live rabbitsfoot in this reach. In
2013, AGFC resurveyed the two 1988 sites and failed to locate any live
or fresh dead (shells still have flesh attached to the valves, retain a
luster to their nacre (pearly, innermost layer of the shell), and their
periostracum (outermost layer of the shell) is not peeling, indicating
relatively recent death (within months)) rabbitsfoot (Harris 2013,
pers. comm.). Based on recent survey efforts, the rabbitsfoot
population in the Ouachita River upstream of Lake Ouachita should be
classified as marginal based on Butler's (2005) classification.
(4) We are not designating critical habitat for rabbitsfoot in the
South Fork Spring River (Unit RF11), Fulton County, Arkansas, as
originally proposed. Butler (2005, pp. 75-76) categorized the South
Fork Spring River as a small population based on a 2002 collection of
seven fresh dead specimens upstream of Arkansas Highway 289. Harris et
al. (2007, p. 22) collected the only live rabbitsfoot from this same
reach in 2006. The best available scientific information supports
categorizing the South Fork Spring River rabbitsfoot population as
marginal based on Butler's (2005) classification.
(5) We have modified or revised six critical habitat units for
rabbitsfoot (originally proposed Units RF2, RF4b, RF5, RF9, RF10, and
RF32) due to new biological information.
Verdigris River (Unit RF2): We have revised the downstream
extent of Unit RF2. A portion of the Verdigris River from near the Bird
Creek confluence downstream to Interstate 44 has been altered by the
upper extent of the McClellan-Kerr Arkansas River Navigation System and
continues to be dredged. There are no rabbitsfoot records from this
reach. Therefore, the Service has modified Unit RF2 in this final
designation so that the downstream boundary is at Oklahoma Highway 266
northwest of Catoosa, Oklahoma. This change represents a net reduction
of 7.6 rkm (4.7 rmi) from the originally proposed Unit RF2.
Ouachita River (Unit RF4b): We have divided Unit RF4b into
two units (Units RF4a and RF4b in this rule). Harris (1999, pp. 3-8 and
3-9) collected live rabbitsfoot at three sites located from near the
confluence of Tenmile Creek downstream to the Caddo River confluence.
However, the Ouachita River from Caddo River confluence downstream to
the Little Missouri River confluence has not been comprehensively
surveyed for mussels. While the absence of rabbitsfoot from this reach
is likely a result of no survey data and not actual absence, the best
available scientific information supports designating critical habitat
in two Ouachita River subunits due to the distance between the reaches
known to be occupied. Therefore, the Service has created Unit RF4a to
be from the Tenmile Creek confluence downstream to the Caddo River
confluence (22.7 rkm (14.1 rmi)), and Unit RF4b to be from the Little
Missouri River confluence downstream to U.S. Highway 79 near Camden,
Arkansas (revised Unit RF4b; 43 rkm (26.7 rmi)). Together, the new
Units RF4a and RF4b represent a net reduction of 92.2 rkm (57.3 rmi)
from the originally proposed Unit RF4b.
Saline River (Unit RF5): We have revised the upstream and
downstream extent of Unit RF5. Collections by several surveyors since
2002 support the presence of a small population of rabbitsfoot in the
Saline River from the Frazier Creek confluence near Mount Elba,
Arkansas, to the Mill Creek confluence near Stillions, Arkansas
(Service, unpublished data, 2013). One live specimen was collected in
Grant County in 1993 (Illinois Natural History Survey Mollusk
Collection 14549). One live specimen also was collected at U.S. Highway
167 in 2006 (AGFC Mussel Database 2014), but this record and the 1993
Grant County record are disjunct (approximately 48.3 rkm (30 rmi)) from
the aforementioned reach downstream of Mount Elba. Historically,
rabbitsfoot was reported from sites at Benton, Arkansas, and Jenkins
Ferry State Park (University of Michigan Museum of Zoology 67254,
75750). Based on the best available scientific information, the Service
has revised the upstream and downstream extent of Unit RF5 in this
final designation due to the lack of live records downstream of the
Mill Creek confluence near Stillions, Arkansas, and sporadic disjunct
records upstream of the core population. This change represents a net
reduction of 168.9 rkm (105.0 rmi) from the originally proposed Unit
RF5.
Black River (Unit RF9): We have revised the downstream
boundary of Unit RF9. Rust (1993 in AGFC Mussel Database 2014)
collected one live rabbitsfoot approximately 0.78 rkm (1.25 rmi)
downstream of Powhatan, Arkansas. One live rabbitsfoot was collected
near Powhatan in 1984 (AGFC Mussel Database 2014). There are no records
from the Flat Creek confluence with the Black River downstream to the
Strawberry River confluence with the Black River. Therefore, the
Service has
[[Page 24709]]
modified Unit RF9 in this final designation so that the downstream
boundary is at the Flat Creek confluence with the Black River
downstream of Powhatan, Arkansas. This change represents a net
reduction of 41.0 rkm (25.5 rmi) from the originally proposed Unit RF9.
Spring River (Unit RF10): We have changed the upstream
boundary of the originally proposed Unit RF10. Harris et al. (2007, pp.
14-16) collected three live rabbitsfoot in 2005 from a site
approximately 1.55 rkm (2.5 rmi) upstream of Williford, Arkansas (or
Arkansas Highway 58). They also reported numerous rabbitsfoot from
muskrat middens in the reach from Williford to Ravenden Springs,
Arkansas. One live specimen was collected in 1983, near the confluence
of Ott Creek (AGFC Mussel Database 2014). The AGFC Mussel Database
(2014) also contains a 1983 record from near the Pierce Creek
confluence located upstream of Ott Creek near Hardy, Arkansas. The
Spring River downstream of Hardy, Arkansas, supports a diverse and
abundant mussel community as evidenced in our records. Thus, the best
available scientific information supports the designation with a slight
adjustment (net reduction) to the upstream extent of Unit RF10
downstream by approximately 11.3 rkm (7.0 rmi) to the Ott Creek
confluence. Therefore, the Service has revised the upstream boundary of
the originally proposed Unit RF10 in this final designation.
Shenango River (Unit RF32): We have changed the upstream
boundary of the originally proposed Unit RF32. Considering new
information in Bursey (1987), the best available scientific information
supports extending the extent of the originally proposed Unit RF32 (now
Unit RF31 in this final designation) upstream 8.6 rkm (5.3 rmi).
The new unit descriptions are provided below in Final Critical
Habitat Designation. Because of the removal of the originally proposed
Unit RF11, originally numbered Units RF12 to RF32 have been renumbered
Units RF11 to RF31. In addition, these revisions resulted in a net
decrease of designated critical habitat for the Neosho mucket of
approximately 3 rkm (2 rmi) and a net decrease of critical habitat for
the rabbitsfoot of 349 rkm (217 rmi). The majority of the changes from
the proposed rule are to units occurring in Arkansas, with a net
reduction of approximately 350 rkm (218 rmi; a 27 percent decrease).
There was only one increase in critical habitat length (originally
proposed Unit RF32, now Unit RF31, in this final designation).
(6) The critical habitat in the originally proposed Unit RF19 (now
Unit RF18 in this final designation) for rabbitsfoot in the Duck River
overlaps with the oyster mussel (Epioblasma capsaeformis) critical
habitat. In the Duck River, the oyster mussel has been renamed the Duck
River dartersnapper (Epioblasma ahlstedti) and is separate and distinct
from the oyster mussel. We agree that the oyster mussel and Duck River
dartersnapper are distinct and separate species. However, the Service
has not yet made a listing and critical habitat determination for the
new entity, the Duck River dartersnapper. We incorporated language in
this final rule to clarify the species distinction and name change, but
at this time, the Duck River dartersnapper and oyster mussel are
considered synonymous according to our regulations.
(7) In the proposed rule, we inadvertently left out the description
of a physical or biological feature for both species that addresses
habitats protected from disturbance or representative of the
historical, geographic, and ecological distributions of the species. We
have added the description into this final rule (see Physical or
Biological Features, below).
(8) In the proposed rule, Primary Constituent Element 4 for both
species stated that fish hosts for each mussel were ``currently
unknown'' and provided a statement regarding natural fish assemblages
``until appropriate host fish can be identified.'' While we do not
currently know all fish species that may act as hosts for one or both
of the glochidia of these mussels, this final rule identifies those
fish species we believe are or may be host species (see Primary
Constituent Elements for Neosho Mucket and Rabbitsfoot in this rule and
General Biology in the proposed rule (77 FR 63442)).
(9) In the proposed rule, we incorrectly labeled the Pond Creek
National Wildlife Refuge (NWR) as Cossatot NWR. This has been corrected
in this final rule.
(10) Several Counties were inadvertently left out of the Executive
Summary of the proposed rule; we added them in this final designation.
(11) In the proposed rule, we incorrectly named Mammoth Cave
National Park North Entrance Road as Maple Springs Ranger Station Road
in the unit description for Unit RF21. The correct road name is used in
this final rule.
Summary of the Species' Status
Please refer to the proposed listing and critical habitat rule (77
FR 63440; October 16, 2012) and final listing rule (78 FR 57076,
September 17, 2013) for the Neosho mucket and rabbitsfoot for a summary
of species information. Additional information on the associated draft
economic analysis and draft environmental assessment for the proposed
rule was published in the Federal Register on May 9, 2013 (78 FR
27171).
For more information on relative abundance and trends of extant
populations of Neosho mucket and rabbitsfoot by river basin please
refer to the Taxonomy, Life History, and Distribution section of the
proposed rule published in the Federal Register on October 16, 2012 (77
FR 63440).
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge,
[[Page 24710]]
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 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,
the obligation of the Federal action agency and the landowner is not to
restore or recover the species, but to implement reasonable and prudent
alternatives to avoid destruction or adverse modification of critical
habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat). In identifying those
physical or biological features within an area, we focus on the
principal biological or physical constituent elements (primary
constituent elements such as roost sites, nesting grounds, seasonal
wetlands, water quality, tide, soil type) that are essential to the
conservation of the species. Primary constituent elements are those
specific elements of the physical or biological features that provide
for a species' life-history processes and are essential to the
conservation of the species.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species. For example, an area currently occupied by the species but
that was not occupied at the time of listing may be essential for the
conservation of the species and may be included in the critical habitat
designation. We designate critical habitat in areas outside the
geographical area occupied by a species only when a designation limited
to its range 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 should be designated 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 the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, other unpublished materials, or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act, (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to insure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species, and (3) section 9 of the Act's prohibitions on taking any
individual of the species, including taking caused by actions that
affect habitat. Federally funded or permitted projects affecting listed
species outside their designated critical habitat areas may still
result in jeopardy findings in some cases. These protections and
conservation tools will continue to contribute to recovery of this
species. Similarly, critical habitat designations made on the basis of
the best available information at the time of designation will not
control the direction and substance of future recovery plans, habitat
conservation plans (HCPs), or other species conservation planning
efforts if new information available at the time of these planning
efforts calls for a different outcome.
Physical or Biological Features
In accordance with section 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 by the species at the time of listing to
designate as critical habitat, we consider the physical or biological
features essential to the conservation of the species and 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, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographical, and ecological
distributions of a species.
We derive the specific physical or biological features essential to
Neosho mucket and rabbitsfoot from studies of these species' habitat,
ecology, and life history as described in the Critical Habitat section
of the proposed rule to designate critical habitat published in the
Federal Register on October 16, 2012 (77 FR 63440), and in the
information presented below. Additional information can be found in the
final listing rule published in the Federal Register on September 17,
2013 (78 FR 57076). We have determined that Neosho mucket and
rabbitsfoot require the following physical or biological features:
Space for Individual and Population Growth and for Normal Behavior
The Neosho mucket is historically associated with the Illinois,
Neosho, and Verdigris Rivers and their larger tributaries (Arkansas
River basin). Generally, the Neosho mucket is found embedded in stable
substrates associated with shallow riffles (areas
[[Page 24711]]
where shallow, generally less than 1 m (3.3 ft) in depth, turbulent
water passes through and over stones or gravel of somewhat similar
size) and runs (intermediate areas between pools and riffles with
moderate current) with gravel and sand substrate and moderate to swift
currents (Oesch 1984, p. 221; Harris 1998, p. 5; Obermeyer 2000, pp.
15-16). However, in Shoal Creek and the Illinois River, the Neosho
mucket prefers near-shore areas or areas out of the main current
(Harris 1998, p. 5). These habitats are formed and maintained by water
quantity, channel slope, and normal sediment input to the system.
The rabbitsfoot is historically associated with small- to medium-
sized streams and some larger rivers in the Lower Great Lakes and Lower
Mississippi River sub-basins and Ohio, Cumberland, Tennessee, White,
Arkansas, and Red River basins. The rabbitsfoot usually occurs in
shallow areas along the bank and adjacent runs and riffles with gravel
and sand substrates where the water velocity is reduced, but it also
may occur in deep runs (Parmalee and Bogan 1998, pp. 211-212). Unlike
the Neosho mucket (Barnhart 2003, p. 17), the rabbitsfoot seldom
burrows in the substrate, but lies on its side (Watters 1988, p. 13;
Fobian 2007, p. 24).
Neosho mucket and rabbitsfoot, similar to other mussels, are
dependent on areas with flow refuges where shear stress (the stream's
ability to entrain and transport bed material created by the flow
acting on the bed material) is low and sediments remain stable during
flood events (Layzer and Madison 1995, p. 341; Strayer 1999, pp. 468
and 472; Hastie et al. 2001, pp. 111-114). Flow refuges conceivably
allow relatively immobile mussels such as the Neosho mucket and
rabbitsfoot to remain in the same general location throughout their
entire lives. These patches of stable habitat may be highly important
for the rabbitsfoot since it typically does not burrow, making it more
susceptible to displacement into unsuitable habitat. However, flow
refuges are not created equally and there are likely other habitat
variables that are important, but poorly understood (Roberts 2008,
pers. comm.).
Natural river and creek channel stability are achieved by allowing
the river or creek to develop a stable dimension, pattern, and profile,
such that, over time, channel features are maintained and the river or
creek system neither aggrades nor degrades. Channel instability occurs
when the scouring (flushing) process leads to degradation or excessive
sediment deposition results in aggradation. Stable rivers and creeks
consistently transport their sediment load, both in size and type,
associated with local deposition and scour (Rosgen 1996, pp. 1-3).
Habitat conditions described above provide space, cover, shelter,
and sites for breeding, reproduction, and growth of offspring for the
Neosho mucket and rabbitsfoot. These habitats are formed and maintained
by water quantity, channel features (dimension, pattern, and profile),
and sediment input to the system through periodic flooding, which
maintains connectivity and interaction with the flood plain, and are
dynamic. Changes in one or more of these parameters can result in
channel degradation or aggradation, with serious effects to mussels.
Therefore, we identify adequate water quantity, stream channel
stability, and floodplain connectivity to be physical or biological
features for Neosho mucket and rabbitsfoot that are essential in
accommodating feeding, breeding, growth, and other normal behaviors of
these species and in promoting gene flow within each species'
populations and movement of their fish hosts.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
The Neosho mucket and rabbitsfoot are riverine-adapted species that
depend upon adequate water flow and are not found in ponds or lakes.
Continuously flowing water is a habitat feature associated with all
surviving populations of these species. Flowing water maintains the
river and creek bottoms and flow refuge habitats in riffles and runs
where these species are found, transports food items to the sedentary
juvenile and adult life stages, removes wastes, and provides oxygen for
respiration of the Neosho mucket and rabbitsfoot. A natural flow regime
that includes periodic flooding and maintains connectivity and
interaction with the floodplain is critical for the exchange of
nutrients, movement of and spawning activities for potential fish
hosts, and maintenance of flow refuges in riffle and run habitats.
Mussels, such as the Neosho mucket and rabbitsfoot, filter algae,
detritus, microscopic animals, and bacteria from the water column
(Fuller 1974, p. 221; Silverman et al. 1997, pp. 1862-1865; Nichols and
Garling 2000, pp. 874-876; Strayer et al. 2004 pp. 430-431). Encysted
(attached) glochidia are nourished by their fish hosts and feed for a
period of one week to several months. Nutrient uptake by glochidia is
not well understood, but probably occurs through the microvillae
(fingerlike outward projections of a cell's surface) of the mantle (the
part of the outer layer of skin (epidermis) of a mollusk that secretes
the shell) (Watters 2007, p. 55). For the first several months,
juvenile mussels partially employ pedal (foot) feeding, extracting
bacteria, algae, and detritus from the sediment, although they also may
filter interstitial (pore) water (Yeager et al. 1994, pp. 217-221).
However, their gills are rudimentary and generally incapable of
filtering particles (Watters 2007, p. 56). Adult mussels also can
obtain their food by deposit feeding, siphoning in food from the
sediment and its interstitial (pore) water and pedal feeding directly
from the sediment (Yeager et al. 1994, pp. 217-221; Vaughn and
Hakenkamp 2001, pp. 1432-1438). Food availability and quality for the
Neosho mucket and rabbitsfoot in their habitats are affected by habitat
stability, floodplain connectivity, flow, and water and sediment
quality.
The ranges of many water quality parameters that define suitable
habitat conditions for the Neosho mucket and rabbitsfoot have not been
investigated or are poorly understood. The pathways of exposure to a
variety of environmental pollutants for all four mussel life stages
(free and encysted glochidia, juveniles, and adults) and differences in
exposure and sensitivity were previously discussed in the proposed rule
(77 FR 63440, see Factor A). Environmental contamination is a causal
(contributing) factor in the decline of mussel populations. We estimate
most numeric standards for pollutants and water quality parameters (for
example, dissolved oxygen, pH, heavy metals) adopted by States under
the CWA represent levels essential to the conservation of these
mussels. However, some regulatory mechanisms may not adequately protect
mollusks in some reaches (77 FR 63440, see Factor D). Other factors
that can potentially alter water quality are droughts and periods of
low flow, nonpoint-source runoff from adjacent land surfaces (excessive
amounts of sediments, nutrients, and pesticides), point-source
discharges from municipal and industrial wastewater treatment
facilities (excessive amounts of ammonia, chlorine, and metals), and
random spills or unregulated discharge events. This could be
particularly harmful during drought conditions when flows are depressed
and pollutants are more concentrated.
As relatively sedentary animals, mussels must tolerate the full
range of environmental stressors that occur within the streams where
they persist. Both the amount (flow) and the physical
[[Page 24712]]
and chemical conditions (sediment and water quality) where these
species currently exist vary widely according to season, precipitation
events, and seasonal human activities within the various watersheds.
Conditions across their historical ranges vary even more due to
geology, geography, and differences in human population densities and
land uses. In general, these species survive in areas where the
severity, frequency, duration, and seasonality of water flow is
adequate to maintain stable flow refuges in riffle and run habitats
(sufficient flow to remove fine particles and sediments without causing
degradation), and where sediment and water quality is adequate for
year-round survival (moderate to high levels of dissolved oxygen; low
to moderate exposure to environmental pollutants such as nutrients,
dissolved metals, and pharmaceuticals; and relatively unpolluted water
and sediments). Adequate water flow, water quality, and sediment
quality (as defined above) is essential for normal behavior, growth,
and viability during all life stages of the Neosho mucket and
rabbitsfoot and their potential larva fish hosts. Therefore, based on
the information above, we identify water flow, water quality, and
sediment quality to be physical or biological features for both these
species.
Sites for Breeding, Reproduction, or Rearing
Mussels require a fish host for transformation of larval mussels
(glochidia) to juvenile mussels (Williams et al. 2008, p. 68);
therefore, presence of the appropriate fish host(s) is essential to the
conservation of the Neosho mucket and rabbitsfoot (77 FR 63440, see
Taxonomy, Life History, and Distribution). Neosho mucket and
rabbitsfoot juveniles require stable habitats with adequate water
quantity and quality as previously described 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). Water quality, sediment quality, stable habitat,
health of fish hosts, and diet (of all life stages) all influence
survival of each life stage and subsequent reproduction and recruitment
(Cope et al. 2008, p. 452).
Connections between the rivers and adjacent flood plains occur
periodically during wet years and provide habitat for spawning and
foraging fish hosts that require flood plain habitats for successful
reproduction and recruitment to adulthood. Barko et al. (2006, pp. 252-
256) found that several fish host or potential host species benefited
from exploiting the resources of flood plain habitats that were not
typically available for use during normal hydrology 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 mussel reproduction. However, Rypel et al. (2009, p. 502)
indicated that mussels 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 rivers and creeks inhabited by the
Neosho mucket and rabbitsfoot. Based on the information above, we
identify water quality, sediment quality, stable habitat, health of
fish hosts, diet (of all life stages), and periodic flooding of
floodplain habitat to be physical or biological features for these
species.
Primary Constituent Elements for Neosho Mucket and Rabbitsfoot
Under the Act and its implementing regulations, we are required to
identify the physical or biological features essential to the
conservation of Neosho mucket and rabbitsfoot in areas occupied at the
time of listing, focusing on the features' primary constituent
elements. Primary constituent elements are those specific elements of
the physical or biological features that provide for a species' life-
history processes and are essential to the conservation of the species.
Based on the above needs and our current knowledge of the physical
or biological features and habitat characteristics required to sustain
the species' life-history processes, we determine that the primary
constituent elements specific to the Neosho mucket and rabbitsfoot 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 habitats that support a diversity of freshwater mussel and native
fish (such as stable riffles, sometimes with runs, and mid-channel
island habitats that provide flow refuges consisting of gravel and sand
substrates with low to moderate amounts of fine sediment and attached
filamentous algae).
(2) A hydrologic flow regime (the severity, frequency, duration,
and seasonality of discharge over time) necessary to maintain benthic
habitats where the species are found and to maintain connectivity of
rivers with the floodplain, allowing the exchange of nutrients and
sediment for maintenance of the mussel's and fish host's habitat, food
availability, spawning habitat for native fishes, and the ability for
newly transformed juveniles to settle and become established in their
habitats.
(3) Water and sediment quality (including, but not limited to,
conductivity, hardness, turbidity, temperature, pH, ammonia, heavy
metals, and chemical constituents) necessary to sustain natural
physiological processes for normal behavior, growth, and viability of
all life stages.
(4) The occurrence of natural fish assemblages, reflected by fish
species richness, relative abundance, and community composition, for
each inhabited river or creek that will serve as an indication of
appropriate presence and abundance of fish hosts necessary for
recruitment of the Neosho mucket and rabbitsfoot. Suitable fish hosts
for Neosho mucket glochidia include smallmouth bass (Micropterus
dolomieu), largemouth bass (Micropterus salmoides), and spotted bass
(Micropterus punctulatus). Suitable fish host for rabbitsfoot may
include, but are not limited to, blacktail shiner (Cyprinella venusta)
from the Black and Little River and cardinal shiner (Luxilus
cardinalis), red shiner (C. lutrensis), spotfin shiner (C. spiloptera),
bluntface shiner (C. camura), rainbow darter (Etheostoma caeruleum),
rosyface shiner (Notropis rubellus), striped shiner (L.
chrysocephalus), and emerald shiner (N. atherinoides).
(5) Competitive or predaceous invasive (nonnative) species in
quantities low enough to have minimal effect on survival of freshwater
mussels.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographic area occupied by the species at the time of
listing contain features which are essential to the conservation of the
species and which may require special management considerations or
protection.
For Neosho mucket and rabbitsfoot, we have grouped the primary
threats affecting their habitat, thus potentially the need to implement
special management or protection, into nine categories.
[[Page 24713]]
(1) Impoundments (primary constituent elements 1-4). Dams eliminate
and alter river flow within impounded areas, trap silt leading to
increased sediment deposition, alter water quality, change hydrology
and channel geomorphology, decrease habitat heterogeneity, affect
normal flood patterns, and block upstream and downstream movement of
mussels and fish (Layzer et al. 1993, pp. 68-69; Neves et al. 1997, pp.
63-64; Watters 2000, pp. 261-264). Within impounded waters, decline of
mussels has been attributed to direct loss of supporting habitat,
sedimentation, decreased dissolved oxygen, temperature levels, and
alteration in resident fish populations (Neves et al. 1997, pp. 63-64;
Pringle et al. 2000, pp. 810-815; Watters 2000, pp. 261-264).
Downstream of dams, mussel declines are associated with changes and
fluctuation in flow regime, channel scouring and bank erosion, reduced
dissolved oxygen levels and water temperatures, and changes in resident
fish assemblages (Williams et al. 1992, p. 7; Layzer et al. 1993, p.
69; Neves et al. 1997, pp. 63-64; Watters 2000, pp. 265-266; Pringle et
al. 2000, pp. 810-815). Dams that are low to the water surface, or have
water passing over them (small low head or mill dams) can have some of
these same effects on mussels and their fish hosts, particularly
reducing species richness and evenness and blocking fish host movements
(Watters 2000, pp. 261-264; Dean et al. 2002, pp. 235-238). Examples of
special management actions that would minimize or ameliorate these
threats include: (a) Modified reservoir releases from dams to improve
water quality and habitat conditions in many tailwaters, and (b)
modified dam operations (for example, TVA's Tims Ford Dam on the Elk
River, where water temperature is monitored and dam operation is
adjusted to support endangered mussels downstream) and water quality
and biological monitoring.
(2) Channelization (primary constituent elements 1-4). Dredging and
channelization activities have profoundly altered riverine habitats
nationwide. Hartfield (1993, pp. 131-139), Neves et al. (1997, pp. 71-
72), and Watters (2000, pp. 268-269) reviewed the specific upstream and
downstream effects of channelization on freshwater mussels.
Channelization affects a stream physically (accelerates erosion,
increases sediment bed load, reduces water depth, decreases habitat
diversity, creates geomorphic (natural channel dimensions) instability,
and eliminates riparian canopy) and biologically (decreases fish and
mussel diversity, changes species composition and abundance, decreases
biomass, and reduces growth rates) (Hartfield 1993, pp. 131-139).
Channel modification for navigation has been shown to increase flood
heights (Belt 1975, p. 684), partly as a result of an increase in
stream bed slope (Hubbard et al. 1993, p. 137). Flood events are
exacerbated, conveying large quantities of sediment, potentially with
adsorbed contaminants, into streams. Channel maintenance often results
in increased turbidity and sedimentation that often smothers mussels
(Stansbery 1970, p. 10). Examples of special management actions that
would minimize or ameliorate these threats include: (a) Determining
distribution and abundance of mussels, (b) developing dredging
protocols and mussel identification booklets to help minimize effects
(for example, ACOE-Memphis District in the White River avoids dredging
known mussel beds), and (c) funding research on geomorphological
requirements of mussels to better inform management decisions.
(3) Sedimentation (primary constituent elements 3-4). Excessive
sediments are believed to negatively impact riverine mussel populations
requiring clean, stable streams (Ellis 1936, pp. 39-40; Brim-Box and
Mossa 1999, p. 99). Adverse effects resulting from sediments have been
noted for many components of aquatic communities. Potential sediment
sources within a watershed include virtually all activities that
disturb the land surface. Most localities occupied by the Neosho mucket
and rabbitsfoot, including viable populations, are currently being
affected to varying degrees by sedimentation. Specific biological
effects include reduced feeding and respiratory efficiency from clogged
gills, disrupted metabolic processes, reduced growth rates, limited
burrowing activity, physical smothering, and disrupted host fish
attraction mechanisms (Ellis 1936, pp. 39-40; Marking and Bills 1979,
p. 210; Vannote and Minshall 1982, pp. 4105-4106; Waters 1995, pp. 173-
175; Hartfield and Hartfield 1996, p. 373). Examples of special
management actions that would minimize or ameliorate these threats
include: (a) Restoration and protection of riparian corridors, (b)
implementation of best management practices to minimize erosion (such
as State and industry practices for forestry activities), (c) stream
bank restoration projects, and (d) private landowner programs to
promote watershed and soil conservation.
(4) Chemical Contaminants (primary constituent elements 3-4).
Chemical contaminants are ubiquitous in the environment and are
considered a major contributor to the decline of mussel species
(Richter et al. 1997, p. 1081; Strayer et al. 2004, p. 436; Wang et al.
2007, p. 2029; Cope et al. 2008, p. 451). Chemicals enter the
environment through point- and nonpoint-source discharges including
spills, industrial and municipal effluents, and residential and
agricultural runoff. These sources contribute organic compounds, heavy
metals, nutrients, pesticides, and a wide variety of newly emerging
contaminants such as pharmaceuticals to the aquatic environment. As a
result, water and sediment quality can be degraded to the extent that
results in adverse effects to mussel populations. Examples of special
management actions that would minimize or ameliorate these threats
include: (a) Revising water quality standards (such as EPA's new
ammonia aquatic life criteria), (b) implementing storm water best
management practices, (c) promoting green areas along riparian
corridors in rapidly developing urban areas (such as the Illinois
River), (d) upgrading industrial and municipal treatment facilities to
improve water quality in effluents, and (e) participating in private
landowner programs to promote watershed conservation (such as USDA Farm
Bill programs).
(5) Mining (primary constituent elements 1-4). Gravel, coal, and
metal mining are activities negatively affecting water quality in
Neosho mucket and rabbitsfoot habitat. Instream and alluvial gravel
mining has been implicated in the destruction of mussel populations
(Hartfield 1993, pp. 136-138; Brim-Box and Mossa 1999, pp. 103-104).
Negative effects associated with gravel mining include stream channel
modifications (altered habitat, disrupted flow patterns, sediment
transport), water quality modifications (increased turbidity, reduced
light penetration, increased temperature), macroinvertebrate population
changes (elimination), and changes in fish populations, resulting from
adverse effects to spawning and nursery habitat and food web
disruptions (Kanehl and Lyons 1992, pp. 4-10). Coal mining activities,
resulting in heavy metal-rich drainage, and associated sedimentation
has adversely affected many drainages with rabbitsfoot populations
(Ortmann 1909 in Butler 2005, p. 102; Gordon 1991, pp. 4 and 5; Layzer
and Anderson 1992 in Butler 2005, p. 102). Numerous mussel toxicants,
such as polycyclic aromatic hydrocarbons and heavy metals (copper,
manganese, and zinc) from coal mining,
[[Page 24714]]
contaminate sediments when released into streams (Ahlstedt and
Tuberville 1997, p. 75). Acid mine runoff may have local effects on
mussel recruitment and may lead to mortality due to improper shell
development or erosion (Huebner and Pynnonen 1990, pp. 2350-2353).
Examples of special management actions that would minimize or
ameliorate these threats include: (a) Remediating soils contaminated
with heavy metals (such as Tri-State Mining Area's reclamation of
contaminated areas to improve water quality), and (b) partnering with
industry to identify mussel locations to avoid during instream and
alluvial sand and gravel mining operations.
(6) Oil and Natural Gas Development (primary constituent elements
1-4). Exploration and extraction of these energy resources can result
in increased siltation, a changed hydrograph (graph showing changes in
the discharge of a river over a period of time), and altered water
quantity and quality even at considerable distances from the mine or
well field because effects are carried downstream from the original
source. Examples of special management actions that would minimize or
ameliorate these threats include: (a) Developing and implementing best
management practices for oil and natural gas development activities
(such as Fayetteville Shale located in the upper Little Red River
watershed), (b) partnering with industry and nongovernmental
organizations to restore mussel habitat (such as Southwestern Energy's
ECH20 (Energy Conserving Water) and the Archey Fork Little
Red River Restoration Project), (c) creating conservation memoranda of
agreement with industry to conserve mussel habitat (such as Crestwood
Midstream in the upper Little Red River watershed), and (d) developing
ecologically sustainable flow requirements for mussels.
(7) Invasive, nonindigenous species (primary constituent element
5). Invasive, nonindigenous species, such as zebra mussel, black carp,
and Asian clam, have potentially adversely affected populations of the
Neosho mucket and rabbitsfoot and their fish hosts, and these effects
are expected to persist into the future. Examples of special management
actions that would minimize or ameliorate these threats include: (a)
Implementation of nonregulatory conservation measures to control Asian
carp and other invasive, nonindigenous species, and (b) continued State
engagement in efforts to minimize effects of Asian carp (such as
eradication) on native fish resources.
(8) Temperature (primary constituent elements 3-4). Natural
temperature regimes can be altered by impoundments, tailwater releases
from dams, industrial and municipal effluents, and changes in riparian
habitat. Low temperatures can significantly delay or prevent
metamorphosis in mussels (Watters and O'Dee 1999, pp. 454-455). Cold
water effluent below dams may negatively impact populations;
rabbitsfoot were less abundant and in poor condition below a cold water
outflow on the Little River, compared to two other sites upstream
(Galbraith and Vaughn 2011, p. 198). Low water temperatures caused by
dam releases also may disrupt seasonal patterns in reproduction
(Galbraith and Vaughn 2009, pp. 43-44).
High temperatures can reduce dissolved oxygen concentrations in the
water, which slows growth, reduces glycogen stores, impairs
respiration, and may inhibit reproduction (Fuller 1974, pp. 240-241).
Water temperature increases have been documented to shorten the period
of glochidial encystment, reduce righting speed (various reflexes that
tend to bring the body into normal position in space and resist forces
acting to displace it out of normal position), and slow burrowing and
movement responses (Bartsch et al. 2000, p. 237; Watters et al. 2001,
p. 546; Schwalb and Pusch 2007, pp. 264-265). Several studies have
documented the influence of temperature on the timing aspects of mussel
reproduction (van Snik et al. 2002, p. 156; Allen et al. 2007, p. 85;
Steingraeber et al. 2007, pp. 303-309). Peak glochidial releases are
associated with water temperature thresholds that can be thermal
minimums or maximums, depending on the species (Watters and O'Dee 2000,
p. 136). Examples of special management actions that would minimize or
ameliorate these threats include: (a) Increase cold water temperature
to optimal range for mussels by modification to tailwater releases, (b)
improve industrial and municipal water treatment, and (c) protect and
restore riparian habitat.
(9) Climate change (primary constituent elements 2-4). As
temperature increases due to climate change throughout the range of
Neosho mucket and rabbitsfoot, both species may experience population
declines as warmer rivers become more suitable for thermally tolerant
species. Overall, the distribution of fish species is expected to
change, including range shifts and local extirpations (Ficke et al.
2005, pp. 67-69; 2007, pp. 603-605). Because freshwater mussels are
entirely dependent upon a fish host for successful reproduction and
dispersal, any changes in local fish populations would also affect
freshwater mussel populations. Examples of special management actions
that would minimize or ameliorate these threats include: (a) Reduce
habitat fragmentation; (b) maintain ecosystem function and resiliency;
(c) develop and implement strategies to help our native fish, wildlife,
and habitats adapt to a changing climate; and (d) reduce non-climate
stressors.
The reduction of these threats will require the implementation of
special management considerations or protections within each of the
critical habitat areas identified in this rule. All critical habitat
requires active management to address some or all of the ongoing
threats listed. Some of these activities include, but are not limited
to, those previously discussed in the Summary of Factors Affecting the
Species section in the final listing rule (78 FR 57076, September 17,
2013).
In summary, we find the areas we are designating as critical
habitat were occupied at the time of listing and contain the features
essential to the conservation of the Neosho mucket and rabbitsfoot, and
these features may require special management considerations or
protection. Special management considerations 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 physical
or biological features the critical habitat units provide to the Neosho
mucket and rabbitsfoot. A more detailed discussion of these threats is
presented in the final listing rule under Summary of Factors Affecting
the Species (78 FR 57076, September 17, 2013). Additional discussions
of threats facing individual sites are provided in the individual unit
descriptions.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify occupied areas at the time of listing that
contain the features essential to the conservation of the species. As
discussed above, we are designating critical habitat areas that we have
determined to be occupied at the time of listing in 2013 and that
contain sufficient elements of physical or biological features to
support life-
[[Page 24715]]
history processes essential to the conservation of the Neosho mucket
and the rabbitsfoot. If after identifying areas occupied by the species
at the time of listing, we determine that those areas are inadequate to
ensure conservation of the species, in accordance with the Act and our
implementing regulations at 50 CFR 424.12(e), we then consider whether
designating additional areas--outside those occupied at the time of
listing--are essential for the conservation of the species. In this
rule, we are not designating any areas outside the geographic area
occupied by the species at the time of listing because occupied areas
are sufficient for the conservation of the species.
In this rule, we have defined occupied habitat for the Neosho
mucket as those stream reaches known to be currently extant. Extant
Neosho mucket populations are naturally occurring populations
represented by live or fresh dead specimens collected since 1985. For
the rabbitsfoot, we have defined occupied habitat as those stream
reaches that are sizeable and small populations as defined by Butler
(2005, pp. 88-89), and the marginal populations of Fish Creek and Red
River that are the last extant populations in their respective basins
(Great Lakes and Cumberland) and Allegheny River, a metapopulation
(interconnected populations where there is gene flow). All other
populations classified as marginal are not considered as occupied
habitat.
No unoccupied stream, as defined in the proposed critical habitat
rule (77 FR 63440, October 16, 2012), is being designated as critical
habitat for Neosho mucket or rabbitsfoot. We find that unoccupied
stream reaches are not essential for the conservation of either species
for one or more of the following reasons:
(1) Unoccupied habitats are isolated from occupied habitats due to
reservoir construction and dam operations (dam water releases have
altered natural stream hydrology, geomorphology, water temperature, and
native mollusk and fish communities);
(2) Unoccupied areas exhibit limited habitat availability, degraded
habitat, or low potential value for management (Muskingum, Elk, Scioto,
Little Miami, Licking, East Fork White, Cumberland, Holston, Clinch,
Sequatchie, and Buffalo (Duck River system) Rivers);
(3) Collection records for both species indicate that these species
have been extirpated from unoccupied areas for several decades or more
and, in some cases (such as Cottonwood River), reintroduction efforts
have not been successful at re-establishing populations; or
(4) There are no historical records of occurrence within the stream
reach for Neosho mucket, rabbitsfoot, or both.
(5) While we recognize the importance of unoccupied habitat to
recovery of listed species, in this case, unoccupied habitat does not
provide habitat for reintroduction at this time and does not reduce the
level of stochastic and human-induced threats for the following
reasons:
(a) Unoccupied habitat does not currently contain sufficient
physical or biological features or have the ability to be restored to
support life-history functions of the Neosho mucket and rabbitsfoot
(such characteristics as geomorphically stable channels, perennial
water flows, adequate water quality, and appropriate benthic
substrates);
(b) Unoccupied habitat does not support the once diverse mollusk
communities, including the presence of closely related species
requiring physical or biological features similar to the Neosho mucket
and rabbitsfoot; or
(c) Unoccupied habitat is not adjacent to currently occupied areas
where there is potential for natural dispersal and reoccupation by the
Neosho mucket and rabbitsfoot.
Based on the above analysis, a total of 38 units, all of which were
occupied at the time of listing, are being designated based on
sufficient elements of physical or biological features being present to
support Neosho mucket (7 units) and rabbitsfoot (31 units) life-history
processes. Some units contain all of the identified elements of
physical or biological features and support multiple life-history
processes. Some units contain only some elements of the physical or
biological features necessary to support the Neosho mucket's or
rabbitsfoot's particular use of that habitat.
When determining critical habitat boundaries within this final
rule, we made every effort to avoid including developed areas such as
dams, piers, and bridges, and other structures because such areas
usually lack physical or biological features for the species. Areas
designated as critical habitat for the Neosho mucket and rabbitsfoot
include only stream channels within the ordinary high-water line and do
not contain manmade structures (such as dams, piers and docks, bridges,
or other similar structures), or areas inundated by lakes and
reservoirs. 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. The scale of the
maps we prepared under the parameters for publication within the Code
of Federal Regulations may not reflect the exclusion of structures or
other developed areas. Any such areas inadvertently left inside
critical habitat boundaries shown on the maps of this final rule have
been excluded by text in the final rule and are not designated as
critical habitat. Therefore, a Federal action involving these areas
would not trigger section 7 consultation with respect to critical
habitat and the requirement of no adverse modification unless the
specific action would affect the physical or biological features in the
adjacent critical habitat.
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document in the rule portion. We include more detailed information
on the boundaries of the critical habitat designation in the preamble
of this document. We will make the coordinates, plot points, or both on
which each map is based available to the public on http://www.regulations.gov at Docket No. FWS-R4-ES-2013-0007 on our Internet
site http://www.fws.gov/arkansas-es/, and at the field office
responsible for the designation (see FOR FURTHER INFORMATION CONTACT,
above).
Three critical habitat units for the Neosho mucket and rabbitsfoot
are currently designated as critical habitat for the oyster mussel
(Epioblasma capsaeformis; now recognized by the scientific community as
the Duck River dartersnapper (Epioblasma ahlstedti) in the Duck River)
and Cumberlandian combshell (Epioblasma brevidens) encompassing the
Duck River, Tennessee (74 rkm (46 rmi)) and Bear Creek, Alabama and
Mississippi (40 rkm (25 rmi)) (50 CFR 17.95(f)), and for the
yellowcheek darter (Etheostoma moorei) in the Middle Fork Little Red
River, Arkansas (23.2 rkm (14.5 rmi)) (50 CFR 17.95(e)). The existing
critical habitat for the oyster mussel and Cumberlandian combshell
completely overlaps the originally proposed Unit RF16 (Bear Creek, now
Unit RF15), but the exact unit descriptions (length) differ due to
mapping refinement since the earlier designation. In addition, five
critical habitat units being designated for the Neosho mucket and
rabbitsfoot are currently designated by the State of Kansas as critical
habitat for both species in the Fall, Spring, Neosho, and Verdigris
Rivers and for Neosho mucket in Shoal Creek (K.S.A. 32-959; Table 1)
and are afforded similar State-level protections as those provided
under the Act.
Final Critical Habitat Designation
[[Page 24716]]
Table 1--Critical Habitat Areas for the Neosho Mucket and Rabbitsfoot That Are Currently Designated as Critical
Habitat for Other Federally and State Listed Species
----------------------------------------------------------------------------------------------------------------
Length
of
Unit (unit #) Species present in unit Federal reference State reference overlap
in rkm
(rmi)
----------------------------------------------------------------------------------------------------------------
Shoal Creek (NM3)................ Neosho mucket, fluted .................... K.S.A. 32-959...... 9.7
shell, Ouachita (6.0)
kidneyshell, Western
fanshell, redspot chub.
Spring River (NM4 and RF1)....... Neosho mucket, .................... K.S.A. 32-959...... 11.6
rabbitsfoot, elktoe, (7.2)
ellipse shell, Neosho
madtom, fluted shell,
Ouachita kidneyshell,
Western fanshell,
redspot chub.
Fall River (NM6)................. Neosho mucket, Western .................... K.S.A. 32-959...... 90.4
fanshell. (56.2)
Verdigris River (NM6 and RF2).... Neosho mucket, .................... K.S.A. 32-959...... 80.6
rabbitsfoot, Ouachita (50.1)
kidneyshell, western
fanshell, butterfly.
Neosho River (NM7 and RF3)....... Neosho mucket, .................... K.S.A. 32-959...... 245.9
rabbitsfoot, butterfly, (152.8)
Neosho madtom, Ouachita
kidneyshell, western
fanshell.
Middle Fork Little Red River Yellowcheek darter....... 50 CFR 17.95(e)..... ................... 23.3
(RF7). (14.5)
Bear Creek (RF15)................ Oyster mussel (Duck River 50 CFR 17.95(f)..... ................... 49.7
dartersnapper), (30.9)
Cumberlandian combshell.
Duck River (RF18)................ Oyster mussel (Duck River 50 CFR 17.95(f)..... ................... 74.0
dartersnapper), (46.0)
Cumberlandian combshell.
--------
Total........................ ......................... .................... ................... 585.2
(363.7)
----------------------------------------------------------------------------------------------------------------
We are designating seven units, totaling approximately 777 rkm (483
rmi), in four States (Arkansas, Kansas, Missouri, and Oklahoma) as
critical habitat for the Neosho mucket (Table 2). We are designating 31
units (3 with subunits), totaling approximately 2,312 rkm (1,437 rmi),
in 12 States (Alabama, Arkansas, Illinois, Indiana, Kansas, Kentucky,
Mississippi, Missouri, Ohio, Oklahoma, Pennsylvania, and Tennessee) as
critical habitat for the rabbitsfoot (Table 2). Four of the 31 units
(Units NM4, NM7, RF1, and RF3) are occupied by both Neosho mucket and
rabbitsfoot.
Public lands adjacent to Neosho mucket and rabbitsfoot critical
habitat units consist of approximately 469 rkm (291 rmi) of riparian
lands in the following units:
Unit NM1: Ozark National Forest, 20.4 rkm (12.7 rmi);
ACOE's Lake Tenkiller Project, 9.0 rkm (5.6 rmi); and Sparrowhawk
Wildlife Management Area (WMA), 2.2 rkm (1.4 rmi);
Units NM4 and RF1: Spring River Wildlife Area, 1.4 rkm
(0.9 rmi);
Unit RF2: ACOE's Oologah Lake Project, 0.6 rkm (0.4 rmi);
Unit NM7: Neosho Wildlife Area, 6.1 rkm (3.8 rmi);
Unit RF6: Little River NWR, 37.6 rkm (23.5 rmi); Ouachita
National Forest, 16.1 rkm (10.0 rmi); and Pond Creek NWR, 11.4 rkm (7.2
rmi);
Unit RF8a: Jacksonport State Park, 2.9 rkm (1.8 rmi) and
Henry Gray-Hurricane Lake WMA, 7.9 rkm (4.9 rmi);
Unit RF8b: White River NWR, 57.9 rkm (36.0 rmi);
Unit RF10: Harold Alexander WMA, 1.1 rkm (0.7 rmi);
Unit RF12: Buffalo National River, 113.6 rkm (70.6 rmi);
Unit RF13: Sam A. Baker State Park, 1.0 rkm (0.6 rmi) and
ACOE's Wappapello Lake Project, 25.3 rkm (15.7 rmi);
Unit RF15: Tishomingo State Park, 6.1 rkm (3.8 rmi); NPS
Natchez Trace Parkway, 4.5 rkm (2.8 rmi); and TVA Pickwick Lake
Project, 7.4 rkm (4.6 rmi);
Unit RF17: Fern Cave NWR, 0.5 rkm (0.3 rmi);
Unit RF18: Yanahli WMA, 38.9 rkm (24.3 rmi) and Santa Fe
County Park, 1.4 rkm (0.9 rmi);
Unit RF19a: Shiloh National Military Park, 2.6 rkm (1.6
rmi);
Unit RF19b: Kentucky Dam Village State Resort Park, 0.6
rkm (0.4 rmi) and unnamed TVA land downstream of Kentucky Lake Dam, 2.4
rkm (1.5 rmi);
Unit RF20: Massac Forest Nature Preserve, 2.2 rkm (1.4
rmi); West Kentucky WMA, 5.6 rkm (3.5 rmi); Ballard WMA, 2.6 rkm (1.6
rmi); and Chestnut Hills Nature Preserve, 2.4 rkm (1.5 rmi);
Unit RF21: Mammoth Cave National Park, 17.0 rkm (10.6
rmi);
Unit RF22: Pennsylvania State Game Land, 277, 2.9 rkm (1.8
rmi) and Pennsylvania State Game Land 85, 0.6 rkm (0.4 rmi);
Unit RF23: Clear Creek State Forest, 9.9 rkm (6.2 rmi);
Unit RF24: Erie NWR, 16.2 rkm (10.1 rmi);
Unit RF25: Prophetstown State Park, 2.1 rkm (1.3 rmi);
Unit RF26: Muskingum Watershed Conservancy Land, 5.0 rkm
(3.1 rmi);
Unit RF27: Little Darby State Scenic Waterway-River Lands,
8.7 rkm (5.4 rmi);
Unit RF29: Fish Creek Wildlife Area, 1.6 rkm (1.0 rmi);
and
Unit RF31: ACOE's Shenango River Lake Project, 8.8 rkm
(5.5 rmi).
[[Page 24717]]
Table 2--Approximate River Distances Currently Occupied by Neosho Mucket
and Rabbitsfoot
------------------------------------------------------------------------
Approximate river distances
currently occupied by the
Species species
-------------------------------
River km River miles
------------------------------------------------------------------------
Neosho mucket........................... 776.5 482.5
Rabbitsfoot............................. 2,312.1 1,436.7
-------------------------------
Total............................... 3,088.6 1,919.2
------------------------------------------------------------------------
Species, Stream (Unit), and State Currently occupied
------------------------------------------------------------------------
Neosho mucket:
Unit NM1, Illinois River AR, OK..... 146.1 90.8
Unit NM2, Elk River, MO, OK......... 20.3 12.6
Unit NM3, Shoal Creek, KS, MO....... 75.8 47.1
Unit NM4, Spring River, KS, MO...... 102.3 63.6
Unit NM5, North Fork Spring River, 16.4 10.2
MO.................................
Unit NM6, Fall and Verdigris Rivers, 171.1 106.3
KS.................................
Unit NM7, Neosho River, KS.......... 244.5 151.9
-------------------------------
Total........................... 776.5 482.5
Rabbitsfoot:
Unit RF1, Spring River, MO, KS...... 56.5 35.1
Unit RF2, Verdigris River, OK....... 38.0 23.6
Unit RF3, Neosho River, KS.......... 26.6 16.5
Unit RF4a, Ouachita River, AR....... 22.7 14.1
Unit RF4b, Ouachita River, AR....... 43.0 26.7
Unit RF5, Saline River, AR.......... 119.4 74.2
Unit RF6, Little River, OK, AR...... 139.7 86.8
Unit RF7, Middle Fork Little Red 24.8 15.4
River, AR..........................
Unit RF8a, White River, AR.......... 188.3 117.0
Unit RF8b, White River, AR.......... 68.9 42.8
Unit RF9, Black River, AR........... 51.2 31.8
Unit RF10, Spring River, AR......... 51.5 32.0
Unit RF11, Strawberry River, AR..... 123.8 76.9
Unit RF12, Buffalo River, AR........ 113.6 70.6
Unit RF13, St. Francis River, MO.... 64.3 40.0
Unit RF14, Big Sunflower River, MS.. 51.5 32.0
Unit RF15, Bear Creek, AL, MS....... 49.7 30.9
Unit RF16, Big Black River, MS...... 43.3 26.9
Unit RF17, Paint Rock River, AL..... 81.0 50.3
Unit RF18, Duck River, TN........... 235.3 146.2
Unit RF19a, Tennessee River, TN..... 26.7 16.6
Unit RF19b, Tennessee River, KY..... 35.6 22.1
Unit RF20, Ohio River, KY, IL....... 45.9 28.5
Unit RF21, Green River, KY.......... 175.6 109.1
Unit RF22, French Creek, PA......... 120.4 74.8
Unit RF23, Allegheny River, PA...... 57.3 35.6
Unit RF24, Muddy Creek, PA.......... 20.1 12.5
Unit RF25, Tippecanoe River, IN..... 75.6 47.0
Unit RF26, Walhonding River, OH..... 17.5 10.9
Unit RF27, Little Darby Creek, OH... 33.3 20.7
Unit RF28, North Fork Vermilion 28.5 17.7
River and Middle Branch North Fork
Vermilion River, IL................
Unit RF29, Fish Creek, OH........... 7.7 4.8
Unit RF30, Red River, KY, TN........ 50.2 31.2
Unit RF31, Shenango River, PA....... 24.8 15.4
-------------------------------
Total........................... 2,312.1 1,436.7
------------------------------------------------------------------------
These critical habitat units include the river channels within the
ordinary high-water line. As defined at 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. States were granted
ownership of lands beneath navigable waters up to the ordinary high-
water line upon achieving Statehood (Pollard v. Hagan, 44 U.S. (3 How.)
212 (1845)). Prior to Statehood, the American colonies may have made
grants to private parties that included lands below the ordinary high-
water mark of some navigable waters that are included in this final
rule. However, most, if not all, lands beneath the navigable waters
included in this final rule are owned by the States. Although areas
designated as critical habitat for the Neosho mucket and rabbitsfoot
include only stream channels within the
[[Page 24718]]
ordinary high-water line, riparian lands along the waters adjacent to,
but not included in, the critical habitat units are either in private
ownership, or owned by municipalities, States, or Federal entities.
Table 3 summarizes primary adjacent riparian landowners in each of the
Neosho mucket and rabbitsfoot critical habitat units by private, State,
Tribal (jurisdictional, not ownership), or Federal ownership. One
Neosho mucket and two rabbitsfoot critical habitat units, respectively,
are located within Tribal jurisdictional areas: Unit NM1 (Illinois
River, Oklahoma; 103.0 rkm (64.0 rmi)), Unit RF2 (Verdigris River,
Oklahoma; 38.0 rkm (23.6 rmi)), and Unit RF6 (Little River, Oklahoma;
41.4 rkm (25.7 rmi)).
Table 3--Ownership of Riparian Lands Adjacent to--but not Included in--the Critical Habitat Units for Neosho
Mucket and Rabbitsfoot
----------------------------------------------------------------------------------------------------------------
Adjacent tribal
Adjacent federal Adjacent state & Adjacent private * (subset of
Critical habitat units rkm (rmi) local government rkm (rmi) Private) rkm
rkm (rmi) (rmi)
----------------------------------------------------------------------------------------------------------------
Neosho Mucket
----------------------------------------------------------------------------------------------------------------
Unit NM1: Illinois River................ 29.4 (18.3) 2.3 (1.4) 114.4 (71.1) 103.0 (64.0)
Unit NM2: Elk River..................... 0 0 20.3 (12.6) 0
Unit NM3: Shoal Creek................... 0 0 75.8 (47.1) 0
Unit NM4: Spring River.................. 0 1.4 (0.9) 100.9 (62.7) 0
Unit NM5: North Fork Spring River....... 0 0 16.4 (10.2) 0
Unit NM6: Fall and Verdigris Rivers..... 0 0 171.1 (106.3) 0
Unit NM7: Neosho River.................. 0 6.1 (3.8) 238.3 (148.1) 0
----------------------------------------------------------------------------------------------------------------
Total............................... 29.4 (18.3) 9.8 (6.1) 737.3 (458.1) 103.0 (64.0)
----------------------------------------------------------------------------------------------------------------
Rabbitsfoot
----------------------------------------------------------------------------------------------------------------
Unit RF1: Spring River.................. 0 1.4 (0.9) 55.0 (34.2) 0
Unit RF2: Verdigris River............... 0.6 (0.4) 0 37.3 (23.2) 37.3 (23.2)
Unit RF3: Neosho River.................. 0 0 26.6 (16.5) 0
Unit RF4a: Ouachita River............... 0 0 22.7 (14.1) 0
Unit RF4b: Ouachita River............... 0 0 43.0 (26.7) 0
Unit RF5: Saline River.................. 0 0 119.4 (74.2) 0
Unit RF6: Little River.................. 63.9 (39.7) 0 75.8 (47.1) 41.4 (25.7)
Unit RF7: Middle Fork Little Red River.. 0 0 24.8 (15.4) 0
Unit RF8a: White River.................. 0 10.8 (6.7) 177.5 (110.3) 0
Unit RF8b: White River.................. 57.9 (36.0) 0 10.9 (6.8) 0
Unit RF9: Black River................... 0 0 51.2 (31.8) 0
Unit RF10: Spring River................. 0 1.1 (0.7) 50.4 (31.3) 0
Unit RF11: Strawberry River............. 0 0 123.8 (76.9) 0
Unit RF12: Buffalo River................ 113.6 (70.6) 0 0 0
Unit RF13: St. Francis River............ 25.2 (15.7) 1.0 (0.6) 38.1 (23.7) 0
Unit RF14: Big Sunflower River.......... 0 0 51.5 (32.0) 0
Unit RF15: Bear Creek................... 11.9 (7.4) 6.1 (3.8) 31.7 (19.7) 0
Unit RF16: Big Black River.............. 0 0 43.3 (26.9) 0
Unit RF17: Paint Rock River............. 0.5 (0.3) 0 80.5 (50.0) 0
Unit RF18: Duck River................... 0 40.5 (25.2) 194.7 (121.0) 0
Unit RF19a: Tennessee River............. 2.6 (1.6) 0 24.1 (15.0) 0
Unit RF19b: Tennessee River............. 2.4 (1.5) 0.6 (0.4) 32.5 (20.2) 0
Unit RF20: Ohio River................... 0 12.9 (8.0) 33.0 (20.5) 0
Unit RF21: Green River.................. 17.0 (10.6) 0 158.5 (98.5) 0
Unit RF22: French Creek................. 0 3.5 (2.2) 116.8 (72.6) 0
Unit RF23: Allegheny River.............. 0 10.0 (6.2) 47.3 (29.4) 0
Unit RF24: Muddy Creek.................. 16.3 (10.1) 0 3.9 (2.4) 0
Unit RF25: Tippecanoe River............. 0 2.1 (1.3) 73.5 (45.7) 0
Unit RF26: Walhonding River............. 0 5.0 (3.1) 12.6 (7.8) 0
Unit RF27: Little Darby Creek........... 0 8.7 (5.4) 24.6 (15.3) 0
Unit RF28: North Fork Vermilion River 0 0 28.5 (17.7) 0
and Middle Branch North Fork Vermilion
River..................................
Unit RF29: Fish Creek................... 0 1.6 (1.0) 6.1 (3.8) 0
Unit RF30: Red River.................... 0 0 50.2 (31.2) 0
Unit RF31: Shenango River............... 8.8 (5.5) 0 15.9 (9.9) 0
-----------------------------------------------------------------------
Total............................... 320.7 (199.4) 105.3 (65.5) 1,885.8 82.7 (48.9)
-----------------------------------------------------------------------
(1,171.8)
Total for both species.............. 350.1 (217.7) 115.1 (71.6) 2,623.1 185.7 (112.9)
(1,629.9)
----------------------------------------------------------------------------------------------------------------
Note: Distances may not sum due to rounding.
* Tribal Jurisdictional Area only, does not represent riparian land ownership by any tribe and is a subset of
the private lands category.
[[Page 24719]]
We present brief descriptions of all units, including the upstream
and downstream boundaries of each stream reach, and reasons why they
meet the definition of critical habitat for the Neosho mucket and
rabbitsfoot.
Neosho Mucket
Unit NM1: Illinois River--Benton and Washington Counties, Arkansas; and
Adair, Cherokee, and Delaware Counties, Oklahoma
Unit NM1 includes 146.1 rkm (90.8 rmi) of the Illinois River from
the Muddy Fork Illinois River confluence with the Illinois River south
of Savoy, Washington County, Arkansas, downstream to the Baron Creek
confluence southeast of Tahlequah, Cherokee County, Oklahoma. This unit
contains all or some components of all four physical or biological
features and contains primary constituent elements 2, 3, 4, and 5. The
physical or biological features in this unit may require special
management considerations or protection to address changes in stream
channel stability associated with urban development and clearing of
riparian areas due to land use conversion in the watershed; alteration
of water chemistry or water and sediment quality; and changes in stream
bed material composition and quality from activities that would release
sediments or nutrients into the water, such as urban development and
associated construction projects, livestock grazing, confined animal
operations, and timber harvesting. The majority of the riparian lands
adjacent to, but not included in, this unit are in private ownership or
private lands under tribal jurisdiction (Table 3).
Unit NM2: Elk River--McDonald County, Missouri; and Delaware County,
Oklahoma
Unit NM2 includes a total of 20.3 rkm (12.6 rmi) of the Elk River
from Missouri Highway 59 at Noel, McDonald County, Missouri, to the
confluence of Buffalo Creek immediately downstream of the Oklahoma and
Missouri State line, Delaware County, Oklahoma. This unit contains all
or some components of all four physical or biological features and
contains all five primary constituent elements. The primary biological
or physical features in this unit 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 stream bed material composition and sediment quality from activities
that would release sediments or nutrients into the water, such as urban
development and associated construction projects, livestock grazing,
confined animal operations (turkey and chicken), timber harvesting, and
mining. All the riparian lands adjacent to, but not included in, this
unit are in private ownership (Table 3).
Unit NM3: Shoal Creek--Cherokee County, Kansas; and Newton County,
Missouri
Unit NM3 includes approximately 75.8 rkm (47.1 rmi) of Shoal Creek
from Missouri Highway W near Ritchey, Newton County, Missouri, to
Empire Lake where inundation begins in Cherokee County, Kansas. This
unit contains all or some components of all four physical or biological
features and contains all five primary constituent elements. The
physical or biological features in this unit may require special
management considerations or protection to address changes to the same
activities as discussed in Unit NM2, above, and releases of chemical
contaminants from industrial and municipal effluents (77 FR 63440, see
Factor A). All riparian lands adjacent to, but not included in, this
unit are in private ownership (Table 3).
Unit NM4: Spring River--Jasper and Lawrence Counties, Missouri; and
Cherokee County, Kansas
Unit NM4 includes 102.3 rkm (63.6 rmi) of the Spring River from
Missouri Highway 97 north of Stotts City, Lawrence County, Missouri,
downstream to the confluence of Turkey Creek north of Empire, Cherokee
County, Kansas. This unit contains all or some components of all four
physical or biological features and contains all five primary
constituent elements. The physical or biological features in this unit
may require special management considerations or protection to address
changes to the same activities as discussed in Unit NM2, above, and
releases of chemical contaminants from industrial and municipal
effluents. Almost all (99 percent) of the riparian lands adjacent to,
but not included in, this unit are in private ownership (Table 3).
Unit NM5: North Fork Spring River--Jasper County, Missouri
Unit NM5 includes 16.4 rkm (10.2 rmi) of the North Fork Spring
River from the confluence of Buck Branch southwest of Jasper, Missouri,
downstream to its confluence with the Spring River near Purcell, Jasper
County, Missouri. This unit contains all or some components of all four
physical or biological features and contains all five primary
constituent elements. The physical or biological features in this unit
may require special management considerations or protection to address
changes to the same activities as discussed in Unit NM2, above. All
riparian lands adjacent to, but not included in, this unit are in
private ownership (Table 3).
Unit NM6: Fall River--Elk, Greenwood, and Wilson Counties, Kansas;
Verdigris River--Montgomery and Wilson Counties, Kansas
Unit NM6 includes a total of 171.1 rkm (106.3 rmi), including 90.4
rkm (56.2 rmi) of the Fall River from Fall River Lake dam northwest of
Fall River, Greenwood County, Kansas, downstream to its confluence with
the Verdigris River near Neodesha, Wilson County, Kansas. Unit NM6 also
includes 80.6 rkm (50.1 rmi) of the Verdigris River from Kansas Highway
39 near Benedict, Wilson County, Kansas downstream to the Elk River
confluence near Independence, Montgomery County, Kansas. This unit
contains all or some components of all four physical or biological
features and contains all five primary constituent elements. The
physical or biological features in this unit may require special
management considerations or protection to address changes to the same
activities as discussed in Unit NM2, above. All riparian lands adjacent
to, but not included in, this unit are in private ownership (Table 3).
Unit NM7: Neosho River--Allen, Cherokee, Coffey, Labette, Neosho, and
Woodson Counties, Kansas
Unit NM7 includes 244.5 rkm (151.9 rmi) of the Neosho River from
Kansas Highway 58 west of LeRoy, Coffey County, Kansas, downstream to
the Kansas and Oklahoma State line, Cherokee County, Kansas. This unit
contains all or some components of all four physical or biological
features and contains all five primary constituent elements. The
physical or biological features in this unit may require special
management considerations or protection to address changes to the same
activities as discussed in Unit NM2, above, and releases of chemical
contaminants from industrial and municipal effluents and tail water
releases downstream of John Redmond Reservoir. All riparian lands
adjacent to, but not included in, this unit are in private ownership
(Table 3).
[[Page 24720]]
Rabbitsfoot
The physical or biological features in units RF1 through RF31 may
require special management considerations 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 stream bed material composition and sediment
quality from activities that would release sediments or nutrients into
the water, such as urban development and associated construction
projects, livestock grazing, confined animal operations (turkey and
chicken), timber harvesting, and mining, and releases of chemical
contaminants from industrial and municipal effluents. Where there are
other activities in individual units requiring special management
considerations, they are set forth in the individual unit descriptions.
Unit RF1: Spring River--Jasper County, Missouri; and Cherokee County,
Kansas
Unit RF1 includes 56.5 rkm (35.1 rmi) of the Spring River from
Missouri Highway 96 at Carthage, Jasper County, Missouri, downstream to
the confluence of Turkey Creek north of Empire, Cherokee County,
Kansas. This unit contains all or some components of all four physical
or biological features and contains all five primary constituent
elements. The physical or biological features in this unit may require
special management considerations or protection described above. The
majority of the riparian lands adjacent to, but not included in, this
unit are in private ownership or private lands under tribal
jurisdiction (Table 3).
Unit RF2: Verdigris River--Rogers County, Oklahoma
Unit RF2 includes 38.0 rkm (23.6 rmi) of the Verdigris River from
Oologah Lake dam north of Claremore, Oklahoma, downstream to Oklahoma
Highway 266 northwest of Catoosa, Rogers County, Oklahoma. This unit
contains all or some components of all four physical or biological
features and in part, contains primary constituent elements 3, 4, and
5. It is possible that primary constituent elements 1 and 2 are
limiting factors for rabbitsfoot distribution and abundance from
Oologah Lake dam downstream to the confluence of the Caney River; thus
we are unable to determine at this time whether this reach contains
primary constituent elements 1 and 2. The physical or biological
features in this unit may require special management considerations or
protection as described above and changes in the existing flow regime
due to such activities as impoundment, tail water releases from Oologah
Lake dam, and channelization associated with the McClellan-Kerr
Arkansas River Navigation System. The majority of the riparian lands
adjacent to, but not included in, this unit are in private ownership or
private lands under tribal jurisdiction (Table 3).
Unit RF3: Neosho River--Allen County, Kansas
Unit RF3 includes 26.6 rkm (16.5 rmi) of the Neosho River from the
Deer Creek confluence northwest of Iola, Kansas, downstream to the
confluence of Owl Creek southwest of Humboldt, Allen County, Kansas.
This unit contains all or some components of all four physical or
biological features and contains all five primary constituent elements.
The physical or biological features in this unit may require special
management considerations or protection to address changes described
above except for releases of chemical contaminants from industrial and
municipal effluents. Approximately 97 percent of the riparian lands
adjacent to, but not included in, this unit are in private ownership
and the remaining lands in State or local ownership (Table 3).
Unit RF4a: Ouachita River--Clark and Hot Spring Counties, Arkansas
Unit RF4a includes 22.7 rkm (14.1 rmi) of the Ouachita River from
the Tenmile Creek confluence north of Donaldson downstream to the Caddo
River confluence near Caddo Valley, Hot Spring and Clark Counties,
Arkansas. This unit contains all or some components of all four
physical or biological features and contains all five primary
constituent elements. The physical or biological features in this unit
may require special management considerations or protection to address
changes described above. Approximately 82 percent of the riparian lands
adjacent to, but not included in, this unit are in private ownership
and the remaining 18 percent are in Federal ownership (Table 3).
Unit RF4b: Ouachita River--Ouachita County, Arkansas
Unit RF4b includes 43.0 rkm (26.7 rmi) of the Ouachita River from
the Little Missouri River confluence downstream to U.S. Highway 79 at
Camden, Ouachita County, Arkansas. This unit contains all or some
components of all four physical or biological features and contains all
five primary constituent elements. The physical or biological features
in this unit may require special management considerations or
protection to address changes described above. All the riparian lands
adjacent to, but not included in, this unit are in private ownership
(Table 3).
Unit RF5: Saline River--Ashley, Bradley, Cleveland, and Drew Counties,
Arkansas
Unit RF5 includes 119.4 rkm (74.2 rmi) of the Saline River from
Frazier Creek confluence near Mount Elba, Cleveland County, Arkansas,
to the Mill Creek confluence near Stillions, Ashley and Bradley
Counties, Arkansas. This unit contains all or some components of all
four physical or biological features and contains all five primary
constituent elements. The physical or biological features in this unit
may require special management considerations or protection to address
changes described above. All the riparian lands adjacent to, but not
included in, this unit are in private ownership (Table 3).
Unit RF6: Little River--McCurtain County, Oklahoma; and Little River
and Sevier Counties, Arkansas
Unit RF6 includes 139.7 rkm (86.8 rmi) of the Little River from the
Glover River confluence northwest of Idabel, McCurtain County,
Oklahoma, downstream to U.S. Highway 71 north of Wilton, Little River
and Sevier Counties, Arkansas. This unit contains all or some
components of all four physical or biological features and contains all
five primary constituent elements. The physical or biological features
in this unit may require special management considerations or
protection to address changes described above. Riparian lands adjacent
to, but not included in, this unit are in private ownership (42
percent), Federal (35 percent), and private land under tribal
jurisdiction (23 percent) (Table 3).
Unit RF7: Middle Fork Little Red River--Cleburne and Van Buren
Counties, Arkansas
Unit RF7 includes 24.8 rkm (15.4 rmi) of the Middle Fork Little Red
River from the confluence of Little Tick Creek north of Shirley,
Arkansas, downstream to Greers Ferry Reservoir (where inundation
begins), Van Buren County, Arkansas. This unit contains all or some
components of all four physical or biological features and contains all
five primary constituent elements. The physical or biological features
in this unit may require special management considerations or
protection to address changes described above and natural gas
development and hillside rock harvesting. All riparian lands adjacent
[[Page 24721]]
to, but not included in, this unit are in private ownership (Table 3).
Unit RF8a: White River--Independence, Jackson, White, and Woodruff
Counties, Arkansas
Unit RF8a includes 188.3 rkm (117.0 rmi) of the White River from
the Batesville Dam at Batesville, Independence County, Arkansas,
downstream to the Little Red River confluence north of Georgetown,
White, and Woodruff Counties, Arkansas. This unit contains all or some
components of all four physical or biological features and contains
primary constituent elements 2, 3, 4, and 5. The ACOE maintains a
navigation channel, which involves routine dredging and snag removal,
from Newport, Arkansas, to its confluence with the Mississippi River.
The physical or biological features in this unit may require special
management considerations or protection described above except for
releases of chemical contaminants from industrial and municipal
effluents and including tail water releases from a series of reservoirs
on the upper White River; row crop agriculture; increasing demand for
instream sand from the White River upstream of Newport, Arkansas, to
support natural gas development needs; natural gas development; and
channelization. Riparian lands adjacent to, but not included in, this
unit are in private ownership (94 percent) and State and local
ownership (6 percent) (Table 3).
Unit RF8b: White River--Arkansas and Monroe Counties, Arkansas
There are no records of rabbitsfoot from the 160-rkm (100-rmi)
reach separating Unit RF8a from Unit RF8b (Butler 2005, p. 66). Unit
RF8b includes 68.9 rkm (42.8 rmi) of the White River from U.S. Highway
79 at Clarendon, Monroe County, Arkansas, downstream to Arkansas
Highway 1 near St. Charles, Arkansas County, Arkansas. This unit
contains all or some components of all four physical or biological
features and contains primary constituent elements 2, 3, 4, and 5. The
ACOE maintains a navigation channel, which involves routine dredging
and snag removal, from Newport, Arkansas, to its confluence with the
Mississippi River. The physical or biological features in this unit may
require special management considerations or protection described above
except for releases of chemical contaminants from industrial and
municipal effluents and including tail water releases from a series of
reservoirs on the upper White River; row crop agriculture; increasing
demand for instream sand from the White River upstream of Newport,
Arkansas, to support natural gas development needs; natural gas
development; and channelization. Approximately 84 percent of the
riparian lands adjacent to, but not included in, this unit are in
Federal ownership and 16 percent are in private ownership (Table 3).
Unit RF9: Black River--Lawrence and Randolph Counties, Arkansas
Unit RF9 includes 51.2 rkm (31.8 rmi) of the Black River from U.S.
Highway 67 at Pocahontas, Randolph County, Arkansas, downstream to the
Flat Creek confluence southeast of Powhatan, Lawrence County, Arkansas.
This unit contains all or some components of all four physical or
biological features and contains all five primary constituent elements.
The physical or biological features in this unit may require special
management considerations or protection to address changes described
above and including row crop agriculture. All riparian lands adjacent
to, but not included in, this unit are in private ownership (Table 3).
Unit RF10: Spring River--Lawrence, Randolph, and Sharp Counties,
Arkansas
Unit RF10 includes 51.5 rkm (32.0 rmi) of the Spring River from the
Ott Creek confluence southwest of Hardy in Sharp County, Arkansas,
downstream to its confluence with the Black River east of Black Rock,
Lawrence and Randolph Counties, Arkansas. This unit contains all or
some components of all four physical or biological features and
contains all five primary constituent elements. The physical or
biological features in this unit may require special management
considerations or protection to address changes described above. All
riparian lands adjacent to, but not included in, this unit are in
private ownership (Table 3).
Unit RF11: Strawberry River--Independence, Izard, Lawrence, and Sharp
Counties, Arkansas
Unit RF11 includes 123.8 rkm (76.9 rmi) of the Strawberry River
from Arkansas Highway 56 south of Horseshoe Bend, Izard County,
Arkansas, downstream to its confluence with the Black River southeast
of Strawberry, Lawrence County, Arkansas. This unit contains all or
some components of all four physical or biological features and
contains all five primary constituent elements. The physical or
biological features in this unit may require special management
considerations or protection to address changes described above. All
riparian lands adjacent to, but not included in, this unit are in
private ownership (Table 3).
Unit RF12: Buffalo River--Marion, Newton, and Searcy Counties, Arkansas
Unit RF12 includes 113.6 rkm (70.6 rmi) of the Buffalo River from
the Cove Creek confluence southeast of Erbie, Newton County, Arkansas,
downstream to U.S. Highway 65 west of Gilbert, Searcy County, Arkansas
and Arkansas Highway 14 southeast of Mull, Arkansas, downstream to the
Leatherwood Creek confluence in the Lower Buffalo Wilderness Area,
Arkansas. This unit contains all or some components of all four
physical or biological features and contains all five primary
constituent elements. The physical or biological features in this unit
may require special management considerations or protection to address
changes described above. All riparian lands adjacent to, but not
included in, this unit are in Federal ownership (Table 3).
Unit RF13: St. Francis River--Madison and Wayne Counties, Missouri
Unit RF13 includes 64.3 rkm (40.0 rmi) of the St. Francis River
from the Twelvemile Creek confluence west of Saco, Madison County,
Missouri, downstream to Lake Wappepello (where inundation begins),
Wayne County, Missouri. This unit contains all or some components of
all four physical or biological features and contains all five primary
constituent elements. The physical or biological features in this unit
may require special management considerations or protection to address
changes described above. Riparian lands adjacent to, but not included
in, this unit are in private (59 percent), Federal (39 percent), and
less than 2 percent in State or local ownership (Table 3).
Unit RF14: Big Sunflower River--Sunflower County, Mississippi
Unit RF14 includes 51.5 rkm (32.0 rmi) of the Big Sunflower River
from Mississippi Highway 442 west of Doddsville, Mississippi,
downstream to the Quiver River confluence east of Indianola, Sunflower
County, Mississippi. This unit contains all or some components of all
four physical or biological features and contains all five primary
constituent elements. The physical or biological features in this unit
may require special management considerations or protection to address
changes described above and row crop agriculture and channelization.
All riparian lands adjacent to, but not included in, this unit are in
private ownership (Table 3).
[[Page 24722]]
Unit RF15: Bear Creek--Tishomingo County, Mississippi; and Colbert
County, Alabama
Unit RF15 includes 49.7 rkm (30.9 rmi) of Bear Creek from the
Alabama and Mississippi State line east of Golden, Tishomingo County,
Mississippi, downstream to Alabama County Road 4 southwest of Sutton
Hill, Colbert County, Alabama (just upstream of Pickwick Lake). Unit
RF15 in its entirety is currently designated as critical habitat for
the oyster mussel (Duck River dartersnapper) and Cumberlandian
combshell. Unit RF15 contains all or some components of all four
physical or biological features, except in the Bear Creek Floodway,
which has been channelized for flood control and only contains
components of physical or biological features associated with the
species' nutritional or physiological requirements and contains all
five primary constituent elements, except in the Bear Creek Floodway,
which has been channelized for flood control and only contains primary
constituent elements 3, 4, and 5. The physical or biological features
in this unit may require special management considerations or
protection to address changes described above. Riparian lands adjacent
to, but not included in, this unit are in private (64 percent), Federal
(24 percent), and 12 percent in State or local ownership (Table 3).
Unit RF16: Big Black River--Hinds and Warren Counties, Mississippi
Unit RF16 includes 43.3 rkm (26.9 rmi) of Big Black River from
Porter Creek confluence west of Lynchburg, Hinds County, Mississippi,
downstream to Mississippi Highway 27 west of Newman, Warren County,
Mississippi. This unit contains all or some components of all four
physical or biological features and contains all five primary
constituent elements. The physical or biological features in this unit
may require special management considerations or protection to address
changes described above, as well as row crop agriculture and
channelization. All riparian lands adjacent to, but not included in,
this unit are in private ownership (Table 3).
Unit RF17: Paint Rock River--Jackson, Madison, and Marshall Counties,
Alabama
Unit RF17 includes 81.0 rkm (50.3 rmi) of the Paint Rock River from
the convergence of Estill Fork and Hurricane Creek north of Skyline,
Jackson County, Alabama, downstream to U.S. Highway 431 south of New
Hope, Madison and Marshall Counties, Alabama. This unit contains all or
some components of all four physical or biological features and
contains all five primary constituent elements. The physical or
biological features in this unit may require special management
considerations or protection to address changes described above as well
as row crop agriculture and channelization. Approximately 99 percent of
the riparian lands adjacent to, but not included in, this unit are in
private ownership and 1 percent is in Federal ownership (Table 3).
Unit RF18: Duck River--Hickman, Humphreys, Marshall, Maury, and Perry
Counties, Tennessee
Unit RF18 includes 235.3 rkm (146.2 rmi) of the Duck River from
Lillard Mill (rkm 288; rmi 179) west of Tennessee Highway 272, Marshall
County, Tennessee, downstream to Interstate 40 near Bucksnort, Hickman
County, Tennessee. Seventy-four rkm (46 rmi) in Unit RF18 from rkm 214
(rmi 133) upstream to Lillards Mill at rkm 288 (rmi 179) is currently
designated as critical habitat for the oyster mussel and Cumberlandian
combshell (50 CFR 17.95(f)). Unit RF18 contains all or some components
of all four physical or biological features and contains all five
primary constituent elements. The physical or biological features in
this unit may require special management considerations or protection
to address changes described above as well as row crop agriculture and
channelization. Approximately 83 percent of the riparian lands adjacent
to, but not included in, this unit are in private ownership and 17
percent are in State or local ownership (Table 3).
Unit RF19a: Tennessee River--Hardin County, Tennessee
Unit RF19a includes 26.7 rkm (16.6 rmi) of Tennessee River from
Pickwick Lake Dam downstream to U.S. Highway 64 near Adamsville, Hardin
County, Tennessee. This unit contains all or some components of all
four physical or biological features and contains primary constituent
elements 1, 3, 4, and 5. The physical or biological features in this
unit may require special management considerations or protection to
address changes described above as well as row crop agriculture,
channelization, and channel stability associated with tail water
releases. Approximately 90 percent of the riparian lands adjacent to,
but not included in, this unit are in private ownership and 10 percent
are in State or local ownership (Table 3).
Unit RF19b: Tennessee River--Livingston, Marshall, and McCracken
Counties, Kentucky
Unit RF19b includes 35.6 rkm (22.1 rmi) of the Tennessee River from
Kentucky Lake Dam downstream to its confluence with the Ohio River,
McCracken and Livingston Counties, Kentucky. This unit contains all or
some components of all four physical or biological features, and in
part, contains all five primary constituent elements. The physical or
biological features in this unit may require special management
considerations or protection to address changes described above.
Approximately 93 percent of the riparian lands adjacent to, but not
included in, this unit are in private ownership, 7 percent are in
Federal ownership, and less than 1 percent is in State or local
ownership (Table 3).
Unit RF20: Ohio River--Ballard and McCracken Counties, Kentucky; Massac
and Pulaski Counties, Illinois
Unit RF20 includes 45.9 rkm (28.5 rmi) of the Ohio River from the
Tennessee River confluence at the downstream extent of Owens Island
downstream to Lock and Dam 53 near Olmstead, Illinois. This unit
contains all or some components of all four physical or biological
features, and in part, contains all five primary constituent elements.
The physical or biological features in this unit may require special
management considerations or protection to address changes described
above, as well as row crop agriculture, channelization, and channel
stability associated with tail water releases. Approximately 72 percent
of the riparian lands adjacent to, but not included in, this unit are
in private ownership and 28 percent are in State or local ownership
(Table 3).
Unit RF21: Green River--Edmonson, Green, Hart, and Taylor Counties,
Kentucky
Unit RF21 includes 175.6 rkm (109.1 rmi) of the Green River from
Green River Lake Dam south of Campbellsville, Taylor County, Kentucky,
downstream to Mammoth Cave National Park North Entrance Road in Mammoth
Cave National Park, Kentucky. This unit contains all or some components
of all four physical or biological features, and in part, contains all
five primary constituent elements. Releases from Green River Lake dam
have altered hydrologic flows and temperature regimes in the tail water
reach (Butler 2005, p. 39). The physical or biological features in this
unit may require special management
[[Page 24723]]
considerations or protection to address changes described above and row
crop agriculture, channelization, and channel stability associated with
tail water releases. Approximately 90 percent of the riparian lands
adjacent to, but not included in, this unit are in private ownership
and 10 percent are in Federal ownership (Table 3).
Unit RF22: French Creek--Crawford, Erie, Mercer, and Venango Counties,
Pennsylvania
Unit RF22 includes 120.4 rkm (74.8 rmi) of French Creek from Union
City Reservoir Dam northeast of Union City, Erie County, Pennsylvania,
downstream to its confluence with the Allegheny River near Franklin,
Venango County, Pennsylvania. The Allegheny River rabbitsfoot
population (Unit RF23) is likely a single metapopulation with the
French Creek population (Unit RF22) (Butler 2005, p. 31). This unit
contains all or some components of all four physical or biological
features and contains all five primary constituent elements. The
physical or biological features in this unit may require special
management considerations or protection to address changes described
above as well as row crop agriculture and oil and gas development.
Approximately 97 percent of the riparian lands adjacent to, but not
included in, this unit are in private ownership and 3 percent are in
Federal ownership (Table 3).
Unit RF23: Allegheny River--Venango County, Pennsylvania
Unit RF23 includes 57.3 rkm (35.6 rmi) of the Allegheny River from
the French Creek confluence near Franklin, Venango County,
Pennsylvania, downstream to Interstate 80 near Emlenton, Venango
County, Pennsylvania. The lower Allegheny River and French Creek (Unit
RF22) populations likely represent a single metapopulation because no
barriers exist between the streams (Butler 2005, p. 29). This unit
contains all or some components of all four physical or biological
features and likely functions as a metapopulation to French Creek (Unit
RF22). This unit contains primary constituent elements 1, 3, 4, and 5
for the rabbitsfoot. A series of nine locks and dams and Kinzua Dam
constructed over the past century has resulted in altered hydrologic
flow regimes in the Allegheny River (Butler 2005, p. 29). The physical
or biological features in this unit may require special management
considerations or protection to address changes described above as well
as row crop agriculture, oil and gas development, and channelization.
Approximately 83 percent of the riparian lands adjacent to, but not
included in, this unit are in private ownership and 17 percent are in
State or local ownership (Table 3).
Unit RF24: Muddy Creek--Crawford County, Pennsylvani
Unit RF24 includes 20.1 rkm (12.5 rmi) of Muddy Creek from
Pennsylvania Highway 77 near Little Cooley, Crawford County,
Pennsylvania, downstream to its confluence with French Creek east of
Cambridge Springs, Crawford County, Pennsylvania. This unit contains
all or some components of all four physical or biological features and
contains all five primary constituent elements. The physical or
biological features in this unit may require special management
considerations or protection to address changes described above and oil
and gas development. Approximately 81 percent of the riparian lands
adjacent to, but not included in, this unit are in Federal ownership
and 19 percent are in private ownership (Table 3).
Unit RF25: Tippecanoe River--Carroll, Pulaski, Tippecanoe, and White
Counties, Indiana
Unit RF25 includes 75.6 rkm (47.0 rmi) of the Tippecanoe River from
Indiana Highway 14 near Winamac, Pulaski County, Indiana, downstream to
its confluence with the Wabash River northeast of Battle Ground,
Tippecanoe County, Indiana, excluding Lakes Shafer and Freeman and the
stream reach between the two lakes. This unit contains all or some
components of all four physical or biological features and contains all
five primary constituent elements. The physical or biological features
in this unit may require special management considerations or
protection to address changes described above. Approximately 97 percent
of the riparian lands adjacent to, but not included in, this unit are
in private ownership and 3 percent are in State or local ownership
(Table 3).
Unit RF26: Walhonding River--Coshocton County, Ohio
Unit RF26 includes 17.5 rkm (10.9 rmi) of the Walhonding River from
the convergence of the Kokosing and Mohican Rivers downstream to Ohio
Highway 60 near Warsaw, Coshocton County, Ohio. This unit contains all
or some components of all four physical or biological features and
contains all five primary constituent elements. The physical or
biological features in this unit may require special management
considerations or protection to address changes described above.
Approximately 83 percent of the riparian lands adjacent to, but not
included in, this unit are in private ownership and 17 percent are in
State or local ownership (Table 3).
Unit RF27: Little Darby Creek--Madison and Union Counties, Ohio
Unit RF27 includes 33.3 rkm (20.7 rmi) of Little Darby Creek from
Ohio Highway 161 near Chuckery, Union County, Ohio, downstream to U.S.
Highway 40 near West Jefferson, Madison County, Ohio. This unit
contains all or some components of all four physical or biological
features and contains all five primary constituent elements. The
physical or biological features in this unit may require special
management considerations or protection to address changes described
above and row crop agriculture. All riparian lands adjacent to, but not
included in, this unit are in private ownership (Table 3).
Unit RF28: North Fork Vermilion River and Middle Branch North Fork
Vermilion River, respectively, Vermilion County, Illinois
Unit RF28 includes a total of 28.5 rkm (17.7 rmi). Unit RF28
includes 21.2 rkm (13.2 rmi) of the North Fork Vermilion River from the
confluence of Middle Branch North Fork Vermilion River downstream to
Illinois Highway 1 and U.S. Highway 136 upstream of Lake Vermilion,
Vermilion County, Illinois. Unit RF28 also includes 7.2 rkm (4.5 rmi)
of the Middle Branch North Fork Vermilion River from the Jordan Creek
confluence northwest of Alvin, Illinois, downstream to its confluence
with North Fork Vermilion River west of Alvin, Vermilion County,
Illinois. The rabbitsfoot in the North Fork Vermilion River is
considered a metapopulation with the Middle Branch North Fork Vermilion
River population (Butler 2005, p. 47). This unit contains all or some
components of all four physical or biological features, including
connectivity between North Fork Vermilion River and Middle Branch North
Fork Vermilion River. This unit contains all five primary constituent
elements. The physical or biological features in this unit may require
special management considerations or protection to address changes
described above and channelization and row crop agriculture. All
riparian lands adjacent to, but not included in, this unit are in
private ownership (Table 3).
Unit RF29: Fish Creek--Williams County, Ohio
Unit RF29 includes 7.7 rkm (4.8 rmi) of Fish Creek from the Indiana
and Ohio
[[Page 24724]]
State line northwest of Edgerton, Ohio, downstream to its confluence
with the St. Joseph's River north of Edgerton, Williams County, Ohio.
This unit contains all or some components of all four physical or
biological features and sustains genetic diversity and historical
distribution as the only remaining rabbitsfoot population in the Great
Lakes sub-basin. This unit contains all five primary constituent
elements. The physical or biological features in this unit may require
special management considerations or protection to address changes
described above as well as row crop agriculture and confined animal
operations (hogs). Approximately 90 percent of the riparian lands
adjacent to, but not included in, this unit are in private ownership
and 10 percent are in State or local ownership (Table 3).
Unit RF30: Red River--Logan County, Kentucky; and Montgomery and
Robertson Counties, Tennessee
Unit RF30 includes 50.2 rkm (31.2 rmi) of the Red River from the
South Fork Red River confluence west of Adairville, Kentucky,
downstream to the Sulphur Fork confluence southwest of Adams,
Tennessee. This unit contains all or some components of all four
physical or biological features and sustains genetic diversity and
historical distribution as the largest of two remaining rabbitsfoot
populations within the Cumberland River basin. This unit contains all
five primary constituent elements. The physical or biological features
in this unit may require special management considerations or
protection to address changes described above as well as row crop
agriculture and channelization. All riparian lands adjacent to, but not
included in, this unit are in private ownership (Table 3).
Unit RF31: Shenango River--Mercer County, Pennsylvania
Unit RF31 includes 24.8 rkm (15.4 rmi) of the Shenango River from
Porter Road near Greenville, Pennsylvania, downstream to the point of
inundation by Shenango River Lake near Big Bend, Mercer County,
Pennsylvania. This unit contains all or some components of all four
physical or biological features and contains all five primary
constituent elements. The physical or biological features in this unit
may require special management considerations or protections to address
changes described above as well consumptive water uses. Approximately
54 percent of the riparian lands adjacent to, but not included in, this
unit are in Federal ownership and 46 percent are in private ownership
(Table 3).
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
Decisions by the 5th and 9th Circuit Courts of Appeals have
invalidated our regulatory definition of ``destruction or adverse
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S.
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra
Club v. U.S. Fish and Wildlife Service, 245 F.3d 434 (5th Cir. 2001)),
and we do not rely on this regulatory definition when analyzing whether
an action is likely to destroy or adversely modify critical habitat.
Under the provisions of the Act, we determine destruction or adverse
modification on the basis of whether, with implementation of the
proposed Federal action, the effected critical habitat would continue
to serve its intended conservation role for the species.
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. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
ACOE under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.)
or a permit from the Service under section 10 of the Act) or that
involve some other Federal action (such as funding from the Federal
Highway Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency). Federal actions not affecting listed
species or critical habitat, and actions on State, tribal, local, or
private lands that are not federally funded or authorized, do not
require section 7 consultation.
As a result of section 7 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 and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 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 sometimes may need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical
[[Page 24725]]
habitat would continue to serve its intended conservation role for the
species. Activities that may destroy or adversely modify critical
habitat are those that alter the physical or biological features to an
extent that appreciably reduces the conservation value of critical
habitat for Neosho mucket and the rabbitsfoot. As discussed above, the
role of critical habitat is to support life-history needs of the
species and provide for the conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that may affect critical habitat, when carried out,
funded, or authorized by a Federal agency, should result in
consultation for the Neosho mucket and rabbitsfoot. These activities
include, but are not limited to:
(1) Actions that would alter the geomorphology of their stream and
river habitats. Such activities may include, but are not limited to,
instream excavation or dredging, impoundment, channelization, sand and
gravel mining, clearing riparian vegetation, and discharge of fill
materials. These activities could cause aggradation or degradation of
the channel bed elevation or significant bank erosion, 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
where these species occur. Such activities may include, but are not
limited to, impoundment, channelization, urban development, water
diversion, water withdrawal, and tail water releases downstream of
dams. These activities could eliminate or reduce the habitat necessary
for growth and reproduction of these mollusks and their life cycles
including fish hosts.
(3) Actions that would significantly alter water chemistry or water
quality (for example, temperature, pH, contaminants, conductivity, and
excess nutrients). Such activities may include, but are not limited to,
tail water releases downstream of dams, 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 mussels or their fish hosts or both,
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 may include, but are not
limited to, construction projects, gravel and sand mining, oil and gas
development, livestock grazing, timber harvest, off-road vehicle use,
and other watershed and floodplain disturbances that release sediments
or contaminants into the water. These activities could eliminate or
reduce habitats necessary for the survival, growth, and reproduction of
these mollusks or their fish hosts or both by causing excessive
sedimentation and burial of Neosho mucket and rabbitsfoot or their
habitats, sublethal effects from sediment exposure that are not readily
apparent, acute and chronic exposure to chemical contaminants resulting
in sublethal and lethal effects, and nutrification leading to excessive
filamentous algal growth. Excessive filamentous algal growth can cause
reduced nighttime dissolved oxygen levels and prevent mussel glochidia
from settling into stream sediments.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that: ``The Secretary shall not designate as critical habitat
any lands or other geographical areas owned or controlled by the
Department of Defense, or designated for its use, that are subject to
an integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary
determines in writing that such plan provides a benefit to the species
for which critical habitat is proposed for designation.'' There are no
Department of Defense lands with a completed INRMP within the critical
habitat designation.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary must designate
and make revisions to critical habitat on the basis of the best
available scientific data after taking into consideration the economic
impact, national security impact, and any other relevant impact of
specifying any particular area as critical habitat. The Secretary may
exclude an area from critical habitat if she determines that the
benefits of such exclusion outweigh the benefits of specifying such
area as part of the critical habitat, unless she 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 statute on its face, as well as the
legislative history, are clear that the Secretary has broad discretion
regarding which factor(s) to use and how much weight to give to any
factor.
Consideration of 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 of the proposed designation, we prepared a
DEA (Industrial Economics Incorporated (IEc) 2012). The DEA, dated
February 6, 2013, was made available for public review from May 9,
2013, through June 10, 2013 (78 FR 27171), from August 27, 2013,
through October 28, 2013 (78 FR 52894), and from May 14, 2014, to July
14, 2014 (79 FR 27547). Following the close of the last comment period,
an FEA was developed, taking into consideration the public comments and
any new information (IEc 2013, entire). By analyzing economic impacts
of the proposed designation, which differs from the final designation,
the FEA does not capture the exact incremental impacts of the final
designation. Therefore, a final summary memorandum has been prepared
describing our revised forecast calculations (IEc 2014a and 2014b,
entire).
The intent of the FEA is to quantify the economic impacts of all
potential conservation efforts for Neosho mucket and rabbitsfoot; some
of these costs will likely be incurred regardless of whether we
designate critical habitat (baseline). The economic impact of the
proposed critical habitat designation is analyzed by comparing
scenarios both ``with critical habitat'' and ``without critical
habitat.'' The ``without critical habitat'' scenario represents the
baseline for the analysis, considering protections already in place for
the species (for example, under the Federal listing and other Federal,
State, and local regulations). The baseline, therefore, represents the
costs incurred regardless of whether critical habitat is designated.
The ``with critical habitat'' scenario describes the incremental
impacts associated specifically with the proposed designation of
critical habitat for the species. The incremental conservation efforts
and associated impacts are those not expected to occur absent the
designation of critical habitat for the species. In other words, the
incremental costs are those attributable solely to the designation of
critical
[[Page 24726]]
habitat above and beyond the baseline costs; these are the costs we
consider in the final designation of critical habitat. The analysis
looks retrospectively at baseline impacts incurred since the species
was listed, and forecasts both baseline and incremental impacts likely
to occur with the designation of critical habitat.
The FEA also addresses how potential economic impacts are likely to
be distributed, including an assessment of any local or regional
impacts of habitat conservation and the potential effects of
conservation activities on government agencies, private businesses, and
individuals. The FEA measures lost economic efficiency associated with
residential and commercial development and public projects and
activities, such as economic impacts on water management and
transportation projects, Federal lands, small entities, and the energy
industry. Decisionmakers can use this information to assess whether the
effects of the proposed designation might unduly burden a particular
group or economic sector. Finally, the FEA looks retrospectively at
costs that occurred between the publication of the final listing rule
and the final rule designating critical habitat, and considers those
costs that may occur in the 20 years following the designation of
critical habitat, which was determined to be the appropriate period for
analysis because limited planning information was available for most
activities to forecast activity levels for projects beyond a 20-year
timeframe. The FEA quantifies economic impacts of Neosho mucket and
rabbitsfoot conservation efforts associated with the following
categories of activity:
(1) Water flow management;
(2) Water quality management;
(3) Timber, agriculture, and grazing;
(4) Mining;
(5) Oil and gas;
(6) Transportation and utilities;
(7) Development and recreation; and
(8) Other activities (such as animal and biological control,
prescribed burns, land clearing, habitat or shoreline restoration,
among others).
Baseline protections for the Neosho mucket and rabbitsfoot address
a broad range of threats within a significant portion of the critical
habitat area. The key conclusion for the incremental analysis is that
critical habitat designation is not expected to generate additional
requests for conservation efforts in any of the proposed critical
habitat units. All critical habitat units are occupied by at least one
of the two mussel species. In addition, incremental economic impacts of
the designation will likely be limited to additional administrative
costs to the Service, Federal agencies, and third parties. This result
is attributed to the following key findings: (1) Baseline protections
exist for Neosho mucket and rabbitsfoot, and (2) all designated
critical habitat is occupied by at least one of the two mussel species.
In total, the incremental impacts to all economic activities are
estimated to be $4,400,000 over the 20-year timeframe, or $290,000 on
an annualized basis (assuming a 7 percent discount rate) for the
proposed critical habitat. Units RF2 (Verdigris River) and NM1
(Illinois River) are expected to generate the largest incremental
impacts, due to section 7 consultations expected to occur in all
categories within these units. The majority of incremental impacts
across all units are related to transportation and utilities, followed
by timber, agriculture, and grazing. Incremental costs associated with
transportation are estimated to be $1,400,000 over the 20-year
timeframe; $960,000 is associated with timber, agriculture, and grazing
over the 20-year timeframe.
Incremental conservation costs of avoiding impacts to mussels and
their habitat will vary depending on a variety of factors, including,
but not limited to, location, size, and type of project being proposed,
as well as the extent to which mussels occur in the project area. These
include the costs for mussel surveys, relocation, monitoring and
reporting, mussel propagation and population augmentation, best
management practices for erosion and sedimentation controls, timing
restrictions, and limiting project scope, or in-stream work.
Exclusions Based on Economic Impacts
Our economic analysis did not identify any disproportionate costs
that are likely to result from the designation. Consequently, the
Secretary is not exercising her discretion to exclude any areas from
this designation of critical habitat for the Neosho mucket and
rabbitsfoot based on economic impacts.
A copy of the FEA with supporting documents may be obtained by
contacting the Arkansas Ecological Services Field Office (see
ADDRESSES, above) or by downloading from the Internet at http://www.regulations.gov.
Exclusions Based on 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 or Department of
Homeland Security where a national security impact might exist. In
preparing this final rule, we have determined that no lands within the
designated critical habitat for the Neosho mucket and rabbitsfoot are
owned or managed by the Department of Defense or Department of Homeland
Security, and, therefore, we anticipate no impact on national security
or homeland security. Consequently, the Secretary is not exercising her
discretion to exclude any areas from this final designation based on
impacts on national security or homeland security.
Exclusions Based on Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts resulting from the designation of critical habitat. We consider
a number of factors, including whether the landowners have developed
any HCPs or other management plans for the area, or whether there are
conservation partnerships that would be encouraged by designation of,
or exclusion from, critical habitat. In addition, we look at any tribal
issues, and consider the government-to-government relationship of the
United States with tribal entities. We also consider any social impacts
that might occur because of the designation.
In preparing this final rule, we have determined that there are
currently no permitted HCPs or other approved management plans for
Neosho mucket and rabbitsfoot, and the final designation includes only
tribal jurisdictional areas, not lands managed by any Tribe or trust
resources. We anticipate no effect to tribal lands, partnerships, or
HCPs from this critical habitat designation. Accordingly, the Secretary
is not exercising her discretion to exclude any areas from this final
designation based on other relevant impacts.
Required Determinations
Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs has determined that this rule is
not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that
[[Page 24727]]
reduce burdens and maintain flexibility and freedom of choice for the
public where these approaches are relevant, feasible, and consistent
with regulatory objectives. E.O. 13563 emphasizes further that
regulations must be based on the best available science and that the
rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996 (5 U.S.C 801 et seq.), whenever an agency is required
to publish a notice of rulemaking for any proposed or final rule, it
must prepare and make available for public comment a regulatory
flexibility analysis that describes the effects of the rule on small
entities (small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of an agency certifies the rule will not have a significant
economic impact on a substantial number of small entities. The SBREFA
amended the RFA to require Federal agencies to provide a certification
statement of the factual basis for certifying that the rule will not
have a significant economic impact on a substantial number of small
entities.
According to the Small Business Administration, small entities
include small organizations, such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; as well as small businesses. Small businesses include
manufacturing and mining concerns with fewer than 500 employees,
wholesale trade entities with fewer than 100 employees, retail and
service businesses with less than $5 million in annual sales, general
and heavy construction businesses with less than $27.5 million in
annual business, special trade contractors doing less than $11.5
million in annual business, and agricultural businesses with annual
sales less than $750,000. To determine if potential economic impacts on
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.
The Service's current understanding of the requirements under the
RFA, as amended, and following recent court decisions, is that Federal
agencies are only required to evaluate the potential incremental
impacts of rulemaking on those entities directly regulated by the
rulemaking itself, and therefore, not required to evaluate the
potential impacts to indirectly regulated entities. The regulatory
mechanism through which critical habitat protections are realized is
section 7 of the Act, which requires Federal agencies, in consultation
with the Service, to ensure that any action authorized, funded, or
carried by the agency is not likely to destroy or adversely modify
critical habitat. Therefore, under section 7 only Federal action
agencies are directly subject to the specific regulatory requirement
(avoiding destruction and adverse modification) imposed by critical
habitat designation. Consequently, it is our position that only Federal
action agencies will be directly regulated by this designation. There
is no requirement under RFA to evaluate the potential impacts to
entities not directly regulated. Moreover, Federal agencies are not
small entities. Therefore, because no small entities are directly
regulated by this rulemaking, the Service certifies that this final
critical habitat designation will not have a significant economic
impact on a substantial number of small entities.
During the development of this final rule, we reviewed and
evaluated all information submitted during the comment period that may
pertain to our consideration of the probable incremental economic
impacts of this critical habitat designation. Based on this
information, we affirm our certification that this final critical
habitat designation will not have a significant economic impact on a
substantial number of small entities, and a regulatory flexibility
analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare Statements of Energy Effects when undertaking
certain actions. OMB has provided guidance for implementing this
Executive Order that outlines nine outcomes that may constitute ``a
significant adverse effect'' when compared to not taking the regulatory
action under consideration. Appendix A of the FEA discusses the
potential for critical habitat to affect utilities through the
additional cost of considering adverse modification in section 7
consultation. Critical habitat designation for the mussels is
anticipated to affect oil and gas activities. The Service does not
anticipate consulting with the Federal Energy Regulatory Commission on
hydropower operations as a result of the designation. Impacts to oil
and gas development are limited to the administrative costs of
consultation, and, therefore, reductions in oil and natural gas
production are not anticipated. This analysis projects approximately 14
actions each year on oil and gas related activities, totaling
approximately $7,000 per year. The magnitude of these consultation
costs is not anticipated to increase the cost of energy production or
distribution in the United States in excess of one percent.
The economic analysis finds that none of the nine outcomes is
relevant to this analysis. Thus, based on information in the economic
analysis, energy-related impacts associated with Neosho mucket and
rabbitsfoot conservation activities within critical habitat are not
expected. As such, the designation of critical habitat is not expected
to significantly affect energy supplies, distribution, or use.
Therefore, this action is not a significant energy action, and no
Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or
[[Page 24728]]
otherwise decrease, the Federal Government's responsibility to provide
funding,'' and the State, local, or tribal governments ``lack
authority'' to adjust accordingly. At the time of enactment, these
entitlement programs were: Medicaid; Aid to Families with Dependent
Children work programs; Child Nutrition; Food Stamps; Social Services
Block Grants; Vocational Rehabilitation State Grants; Foster Care,
Adoption Assistance, and Independent Living; Family Support Welfare
Services; and Child Support Enforcement. ``Federal private sector
mandate'' includes a regulation that ``would impose an enforceable duty
upon the private sector, except (i) a condition of Federal assistance
or (ii) a duty arising from participation in a voluntary Federal
program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule will significantly or uniquely
affect small governments because it would not produce a Federal mandate
of $100 million or greater in any year; that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. Small governments will be affected only to the extent that any
programs having Federal funds, permits, or other authorized activities
must ensure that their actions will not adversely affect the critical
habitat. The FEA concludes incremental impacts may occur due to
administrative costs of section 7 consultations for activities related
to water flow management; water quality; timber, agriculture, and
grazing; mining; oil and gas; transportation and utilities; development
and recreation; and other activities; however, these are not expected
to significantly affect small government entities. Consequently, we do
not believe that the critical habitat designation will significantly or
uniquely affect small government entities. As such, a Small Government
Agency Plan is not required.
Takings--Executive Order 12630
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 Neosho mucket and rabbitsfoot in a
takings implications assessment. As discussed above, the designation of
critical habitat affects only Federal actions. Although private parties
that receive Federal funding, assistance, or 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.
The majority of the designation occurs in navigable waterways whose
stream bottoms are owned by the States. Impacts of this designation
could occur on non-Federal riparian lands adjacent to, but not included
in, the critical habitat designation where there is Federal involvement
(such as Federal funding or permitting) subject to section 7 of the
Act, or where a decision on a proposed action on federally owned land
could affect economic activity on adjoining non-Federal land. However,
in general, we believe that the takings implications associated with
this critical habitat designation will be insignificant. Based on the
best available information, the takings implications assessment
concludes that this designation of critical habitat for the Neosho
mucket and rabbitsfoot does not pose significant takings implications.
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), this rule
does not have significant Federalism effects. A Federalism summary
impact statement is not required. In keeping with Department of the
Interior and Department of Commerce policy, we requested information
from, and coordinated development of, this critical habitat designation
with appropriate State resource agencies in Alabama, Arkansas,
Illinois, Indiana, Kansas, Kentucky, Mississippi, Missouri, Ohio,
Oklahoma, Pennsylvania, and Tennessee. We received comments from
Kansas, Illinois, Ohio, Oklahoma, and Pennsylvania and have addressed
them in the Summary of Comments and Recommendations and Summary of
Changes from Proposed Rule sections of this rule. From a federalism
perspective, the designation of critical habitat directly affects only
the responsibilities of Federal agencies. The Act imposes no other
duties with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, this rule does not have
substantial direct effects either on the States, or on the relationship
between the national government and the States, or on the distribution
of powers and responsibilities among the various levels of government.
The designation may have some benefit to these governments because the
areas that contain the features essential to the conservation of the
species are more clearly defined, and the physical or biological
features of the habitat necessary to the conservation of the species
are specifically identified. This information does not alter where and
what federally sponsored activities may occur. However, it may assist
local governments in long-range planning (because these local
governments no longer have to wait for case-by-case section 7
consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the applicable
standards set forth in sections 3(a) and 3(b)(2) of the Order. We are
designating critical habitat in accordance with the provisions of the
Act. To assist the public in understanding the habitat needs of the
species, the rule identifies the elements of physical or biological
features essential to the conservation of the Neosho mucket and
rabbitsfoot. The designated areas of critical habitat are presented on
maps, and the rule provides several options for the
[[Page 24729]]
interested public to obtain more detailed location information, if
desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain 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) (42 U.S.C. 4321 et seq.)
It is our position that, outside the jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses pursuant to NEPA in connection with designating
critical habitat under 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)). However, when the
range of the species includes States within the Tenth Circuit, such as
that of Neosho mucket and rabbitsfoot, under the Tenth Circuit ruling
in Catron County Board of Commissioners v. U.S. Fish and Wildlife
Service, 75 F.3d 1429 (10th Cir. 1996), we undertake a NEPA analysis
for critical habitat designation and notify the public of the
availability of the draft environmental assessment for a proposal when
it is finished.
We performed this NEPA analysis and made the draft environmental
assessment available for public comment on May 9, 2013 (78 FR 27171),
August 27, 2013 (78 FR 52894), and May 14, 2014 (79 FR 27547). The
final environmental assessment has been completed and is available with
the publication of this final rule. You may obtain a copy of the final
environmental assessment online at http://www.regulations.gov, by mail
from the Arkansas Ecological Services Field Office (see ADDRESSES,
above), or by visiting the office Web site at http://www.fws.gov/arkansas-es/.
The final environmental assessment included a detailed analysis of
the potential effects of the proposed critical habitat designation on
resource categories, including:
(1) Water flow management;
(2) Water quality management;
(3) Timber, agriculture, and grazing;
(4) Mining;
(5) Oil and gas;
(6) Transportation and utilities;
(7) Development and recreation; and
(8) Other activities (such as animal and biological control,
prescribed burns, land clearing, habitat or shoreline restoration,
among others, environmental justice, and cumulative effects).
The scope of the effects were primarily limited to those activities
involving Federal actions, because critical habitat designation does
not have any impact on the environment other than through the Act's
section 7 consultation process conducted for Federal actions. Private
actions that have no Federal involvement are not affected by critical
habitat designation.
Based on the review and evaluation of the information contained in
the environmental assessment, we determined that the designation of
critical habitat for the Neosho mucket and rabbitsfoot does not
constitute a major Federal action having a significant impact on the
human environment under the meaning of section 102(2)(c) of NEPA, and
so an environmental impact statement is not required.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of the
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes.
We determined that there are no tribal lands occupied by the Neosho
mucket and rabbitsfoot at the time of listing that contain the physical
or biological features essential to conservation of the species, and no
tribal lands unoccupied by the Neosho mucket and rabbitsfoot that are
essential for the conservation of the species. Therefore, we are not
designating critical habitat for the Neosho mucket and rabbitsfoot on
tribal lands.
References Cited
A complete list of all references cited is available on the
Internet at http://www.regulations.gov and upon request from the
Arkansas Ecological Services Field Office (see FOR FURTHER INFORMATION
CONTACT).
Authors
The primary authors of this rulemaking are the staff members of the
Arkansas Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
Accordingly, we amend part 17, subchapter B of chapter I, title 50
of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.11(h) by revising the entries for ``Mucket, Neosho''
and ``Rabbitsfoot'' under CLAMS in the List of Endangered and
Threatened Wildlife to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
[[Page 24730]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Clams
* * * * * * *
Mucket, Neosho................... Lampsilis U.S.A. (AR, KS, MO, NA................. E 816 17.95(f) NA
rafinesqueana. OK).
* * * * * * *
Rabbitsfoot...................... Quadrula cylindrica U.S.A. (AL, AR, GA, NA................. T 816 17.95(f) NA
cylindrica. IN, IL, KS, KY,
LA, MO, MS, OH,
OK, PA, TN, WV).
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * *
0
3. In Sec. 17.95, amend paragraph (f) by adding entries for ``Neosho
Mucket (Lampsilis rafinesqueana)'' and ``Rabbitsfoot (Quadrula
cylindrica cylindrica)'', immediately following the entry for
``Slabside Pearlymussel (Pleuronaia dolabelloides),'' to read as
follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(f) Clams and Snails.
* * * * *
Neosho Mucket (Lampsilis rafinesqueana)
(1) Critical habitat units are depicted for the Neosho mucket on
the maps below in the following Counties:
(i) Benton and Washington Counties, Arkansas;
(ii) Allen, Cherokee, Coffey, Elk, Greenwood, Labette, Montgomery,
Neosho, Wilson, and Woodson Counties, Kansas;
(iii) Jasper, Lawrence, McDonald, and Newton Counties, Missouri;
and
(iv) Adair, Cherokee, and Delaware Counties, Oklahoma.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the conservation of the
Neosho mucket consist of five components:
(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 habitats that support a diversity of freshwater mussel and native
fish (such as stable riffles, sometimes with runs, and mid-channel
island habitats that provide flow refuges consisting of gravel and sand
substrates with low to moderate amounts of fine sediment and attached
filamentous algae).
(ii) A hydrologic flow regime (the severity, frequency, duration,
and seasonality of discharge over time) necessary to maintain benthic
habitats where the species are found and to maintain connectivity of
rivers with the floodplain, allowing the exchange of nutrients and
sediment for maintenance of the mussel's and fish host's habitat, food
availability, spawning habitat for native fishes, and the ability for
newly transformed juveniles to settle and become established in their
habitats.
(iii) Water and sediment quality (including, but not limited to,
conductivity, hardness, turbidity, temperature, pH, ammonia, heavy
metals, and chemical constituents) necessary to sustain natural
physiological processes for normal behavior, growth, and viability of
all life stages.
(iv) The occurrence of natural fish assemblages, reflected by fish
species richness, relative abundance, and community composition, for
each inhabited river or creek that will serve as an indication of
appropriate presence and abundance of fish hosts necessary for
recruitment of the Neosho mucket. Suitable fish hosts for Neosho mucket
glochidia include smallmouth bass (Micropterus dolomieu), largemouth
bass (Micropterus salmoides), and spotted bass (Micropterus
punctulatus).
(v) Competitive or predaceous invasive (nonnative) species in
quantities low enough to have minimal effect on survival of freshwater
mussels.
(3) Critical habitat does not include manmade structures (such as
dams, piers and docks, bridges, or other similar structures) within the
legal boundaries on June 1, 2015.
(4) Critical habitat map units. Data layers defining map units were
developed using ESRI ArcGIS mapping software along with various spatial
data layers. Critical habitat unit upstream and downstream limits were
delineated at the nearest road crossing or stream confluence of each
occupied reach. Data layers defining map units were created with U.S.
Geological Survey National Hydrography Dataset (NHD) Medium Flowline
data. ArcGIS was also used to calculate river kilometers (rkm) and
river miles (rmi) from the NHD dataset, and it was used to determine
longitude and latitude coordinates in decimal degrees. The projection
used in mapping and calculating distances and locations within the
units was North American Albers Equal Area Conic, NAD 83. The maps in
this entry, as modified by any accompanying regulatory text, establish
the boundaries of the critical habitat designation. The coordinates,
plot points, or both on which each map is based are available to the
public at the Service's Internet site (http://www.fws.gov/arkansas-es/te_listing.html), the Federal eRulemaking Portal (http://www.regulations.gov at Docket No. FWS-R4-ES-2013-0007), and at the
field office responsible for this designation. You may obtain field
office location information by contacting one of the Service regional
offices, the addresses of which are listed at 50 CFR 2.2.
[[Page 24731]]
(5) Note: Index map of all critical habitat units for the Neosho
mucket follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.007
(6) Unit NM1: Illinois River--Benton and Washington Counties,
Arkansas; and Adair, Cherokee, and Delaware Counties, Oklahoma.
(i) General Description: Unit NM1 includes 146.1 rkm (90.8 rmi) of
the Illinois River from the Muddy Fork Illinois River confluence south
of Savoy, Washington County, Arkansas, downstream to the Baron Creek
confluence southeast of Tahlequah, Cherokee County, Oklahoma.
[[Page 24732]]
(ii) Map of Unit NM1 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.008
(7) Unit NM2: Elk River--McDonald County, Missouri; and Delaware
County, Oklahoma.
(i) General Description: Unit NM2 includes 20.3 rkm (12.6 rmi) of
the Elk River from Missouri Highway 59 at Noel, McDonald County,
Missouri, to the confluence of Buffalo Creek immediately downstream of
the Oklahoma and Missouri State line, Delaware County, Oklahoma.
[[Page 24733]]
(ii) Map of Unit NM2 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.009
(8) Unit NM3: Shoal Creek--Cherokee County, Kansas; and Newton
County, Missouri.
(i) General Description: Unit NM3 includes 75.8 rkm (47.1 rmi) of
Shoal Creek from Missouri Highway W near Ritchey, Newton County,
Missouri, to Empire Lake where inundation begins in Cherokee County,
Kansas.
[[Page 24734]]
(ii) Map of Unit NM3 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.010
(9) Unit NM4: Spring River--Jasper and Lawrence Counties, Missouri;
and Cherokee County, Kansas.
(i) General Description: Unit NM4 includes 102.3 rkm (63.6 rmi) of
the Spring River from Missouri Highway 97 north of Stotts City,
Lawrence County, Missouri, downstream to the confluence of Turkey Creek
north of Empire, Cherokee County, Kansas.
[[Page 24735]]
(ii) Map of Unit NM4 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.011
(10) Unit NM5: North Fork Spring River--Jasper County, Missouri.
(i) General Description: Unit NM5 includes 16.4 rkm (10.2 rmi) of
the North Fork Spring River from the confluence of Buck Branch
southwest of Jasper, Missouri, downstream to its confluence with the
Spring River near Purcell, Jasper County, Missouri.
[[Page 24736]]
(ii) Map of Unit NM5 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.012
(11) Unit NM6: Fall River--Elk, Greenwood, and Wilson Counties,
Kansas; Verdigris River--Montgomery and Wilson Counties, Kansas.
(i) General Description: Unit NM6 includes a total of 171.1 rkm
(106.3 rmi) including 90.4 rkm (56.2 rmi) of the Fall River from Fall
River Lake dam northwest of Fall River, Greenwood County, Kansas,
downstream to its confluence with the Verdigris River near Neodesha,
Wilson County, Kansas. Unit NM6 also includes 80.6 rkm (50.1 rmi) of
the Verdigris River from Kansas Highway 39 near Benedict, Wilson
County, Kansas, downstream to the Elk River confluence near
Independence, Montgomery County, Kansas.
[[Page 24737]]
(ii) Map of Unit NM6 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.013
(12) Unit NM7: Neosho River--Allen, Cherokee, Coffey, Labette,
Neosho, and Woodson Counties, Kansas.
(i) General Description: Unit NM7 includes 244.5 rkm (151.9 rmi) of
the Neosho River from Kansas Highway 58 west of LeRoy, Coffey County,
Kansas, downstream to the Kansas and Oklahoma State line, Cherokee
County, Kansas.
[[Page 24738]]
(ii) Map of Unit NM7 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.014
Rabbitsfoot (Quadrula cylindrica cylindrica)
(1) Critical habitat units are depicted for rabbitsfoot on the maps
below in the following Counties:
(i) Colbert, Jackson, Madison, and Marshall Counties, Alabama;
(ii) Arkansas, Ashley, Bradley, Clark, Cleburne, Cleveland, Drew,
Hot Spring, Independence, Izard, Jackson, Lawrence, Little River,
Marion, Monroe, Newton, Ouachita, Randolph, Searcy, Sevier, Sharp, Van
Buren, White, and Woodruff Counties, Arkansas;
(iii) Massac, Pulaski, and Vermilion Counties, Illinois;
(iv) Carroll, Pulaski, Tippecanoe, and White Counties, Indiana;
(v) Allen and Cherokee Counties, Kansas;
(vi) Ballard, Edmonson, Green, Hart, Livingston, Logan, Marshall,
McCracken, and Taylor Counties, Kentucky;
(vii) Hinds, Sunflower, Tishomingo, and Warren Counties,
Mississippi;
(viii) Jasper, Madison, and Wayne Counties, Missouri;
(ix) Coshocton, Madison, Union, and Williams Counties, Ohio;
(x) McCurtain and Rogers Counties, Oklahoma;
(xi) Crawford, Erie, Mercer, and Venango Counties, Pennsylvania;
and
(xii) Hardin, Hickman, Humphreys, Marshall, Maury, Montgomery,
Perry, and Robertson Counties, Tennessee.
(2) Within these areas, the primary constituent elements of the
physical or biological features essential to the
[[Page 24739]]
conservation of the rabbitsfoot consist of five components:
(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 habitats that support a diversity of freshwater mussel and native
fish (such as stable riffles, sometimes with runs, and mid-channel
island habitats that provide flow refuges consisting of gravel and sand
substrates with low to moderate amounts of fine sediment and attached
filamentous algae).
(ii) A hydrologic flow regime (the severity, frequency, duration,
and seasonality of discharge over time) necessary to maintain benthic
habitats where the species are found and to maintain connectivity of
rivers with the floodplain, allowing the exchange of nutrients and
sediment for maintenance of the mussel's and fish host's habitat, food
availability, spawning habitat for native fishes, and the ability for
newly transformed juveniles to settle and become established in their
habitats.
(iii) Water and sediment quality (including, but not limited to,
conductivity, hardness, turbidity, temperature, pH, ammonia, heavy
metals, and chemical constituents) necessary to sustain natural
physiological processes for normal behavior, growth, and viability of
all life stages.
(iv) The occurrence of natural fish assemblages, reflected by fish
species richness, relative abundance, and community composition, for
each inhabited river or creek that will serve as an indication of
appropriate presence and abundance of fish hosts necessary for
recruitment of the rabbitsfoot. Suitable fish hosts for rabbitsfoot may
include, but are not limited to, blacktail shiner (Cyprinella venusta)
from the Black and Little River and cardinal shiner (Luxilus
cardinalis), red shiner (C. lutrensis), spotfin shiner (C. spiloptera),
bluntface shiner (C. camura), rainbow darter (Etheostoma caeruleum),
rosyface shiner (Notropis rubellus), striped shiner (L.
chrysocephalus), and emerald shiner (N. atherinoides).
(v) Competitive or predaceous invasive (nonnative) species in
quantities low enough to have minimal effect on survival of freshwater
mussels.
(3) Critical habitat does not include manmade structures (such as
dams, piers and docks, bridges, or other similar structures) within the
legal boundaries on June 1, 2015.
(4) Critical habitat map units. Data layers defining map units were
developed using ESRI ArcGIS mapping software along with various spatial
data layers. Critical habitat unit upstream and downstream limits were
delineated at the nearest road crossing or stream confluence of each
occupied reach. Data layers defining map units were created with U.S.
Geological Survey National Hydrography Dataset (NHD) Medium Flowline
data. ArcGIS was also used to calculate river kilometers (rkm) and
river miles (rmi) from the NHD dataset, and it was used to determine
longitude and latitude coordinates in decimal degrees. The projection
used in mapping and calculating distances and locations within the
units was North American Albers Equal Area Conic, NAD 83. The maps in
this entry, as modified by any accompanying regulatory text, establish
the boundaries of the critical habitat designation. The coordinates,
plot points, or both on which each map is based are available to the
public at the Service's Internet site (http://www.fws.gov/arkansas-es/te_listing.html), the Federal eRulemaking Portal (http://www.regulations.gov at Docket No. FWS-R4-ES-2013-0007), and at the
field office responsible for this designation. You may obtain field
office location information by contacting one of the Service regional
offices, the addresses of which are listed at 50 CFR 2.2.
[[Page 24740]]
(5) Note: Index map of all critical habitat units for the
rabbitsfoot follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.015
(6) Unit RF1: Spring River--Jasper County, Missouri; and Cherokee
County, Kansas.
(i) General Description: Unit RF1 includes 56.5 rkm (35.1 rmi) of
the Spring River from Missouri Highway 96 at Carthage, Jasper County,
Missouri, downstream to the confluence of Turkey Creek north of Empire,
Cherokee County, Kansas.
[[Page 24741]]
(ii) Map of Unit RF1 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.016
(7) Unit RF2: Verdigris River--Rogers County, Oklahoma.
(i) General Description: Unit RF2 includes 38.0 rkm (23.6 rmi) of
the Verdigris River from Oologah Lake dam north of Claremore, Oklahoma,
downstream to Oklahoma Highway 266 northwest of Catoosa, Rogers County,
Oklahoma.
[[Page 24742]]
(ii) Map of Unit RF2 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.017
(8) Unit RF3: Neosho River--Allen County, Kansas.
(i) General Description: Unit RF3 includes 26.6 rkm (16.5 rmi) of
the Neosho River from the Deer Creek confluence northwest of Iola,
Kansas, downstream to the confluence of Owl Creek southwest of
Humboldt, Allen County, Kansas.
[[Page 24743]]
(ii) Map of Unit RF3 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.018
(9) Unit RF4a: Ouachita River--Clark and Hot Spring Counties,
Arkansas.
(i) General Description: Unit RF4a includes 22.7 rkm (14.1 rmi) of
the Ouachita River from the Tenmile Creek confluence north of Donaldson
downstream to the Caddo River confluence near Caddo Valley, Hot Spring
and Clark Counties, Arkansas.
[[Page 24744]]
(ii) Map of Unit RF4a follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.019
(10) Unit RF4b: Ouachita River--Ouachita County, Arkansas.
(i) General Description: Unit RF4b includes 43.0 rkm (26.7 rmi) of
the Ouachita River from the Little Missouri River confluence downstream
to U.S. Highway 79 at Camden, Ouachita County, Arkansas.
[[Page 24745]]
(ii) Map of Unit RF4b follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.020
(11) Unit RF5: Saline River--Ashley, Bradley, Cleveland, and Drew
Counties, Arkansas.
(i) General Description: Unit RF5 includes 119.4 rkm (74.2 rmi) of
the Saline River from the Frazier Creek confluence near Mount Elba,
Cleveland County, Arkansas, to the Mill Creek confluence near
Stillions, Ashley and Bradley Counties, Arkansas.
[[Page 24746]]
(ii) Map of Unit RF5 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.021
(12) Unit RF6: Little River--McCurtain County, Oklahoma; and Little
River and Sevier Counties, Arkansas.
(i) General Description: Unit RF6 includes 139.7 rkm (86.8 rmi) of
the Little River from the Glover River confluence northwest of Idabel,
McCurtain County, Oklahoma, downstream to U.S. Highway 71 north of
Wilton, Little River and Sevier Counties, Arkansas.
[[Page 24747]]
(ii) Map of Unit RF6 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.022
(13) Unit RF7: Middle Fork Little Red River--Cleburne and Van Buren
Counties, Arkansas.
(i) General Description: Unit RF7 includes 24.8 rkm (15.4 rmi) of
the Middle Fork Little Red River from the confluence of Little Tick
Creek north of Shirley, Arkansas, downstream to Greers Ferry Reservoir
(where inundation begins), Van Buren County, Arkansas.
[[Page 24748]]
(ii) Map of Unit RF7 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.023
(14) Unit RF8a: White River--Independence, Jackson, White, and
Woodruff Counties, Arkansas.
(i) General Description: Unit RF8a includes 188.3 rkm (117.0 rmi)
of the White River from the Batesville Dam at Batesville, Independence
County, Arkansas, downstream to the Little Red River confluence north
of Georgetown, White, and Woodruff Counties, Arkansas.
[[Page 24749]]
(ii) Map of Unit RF8a follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.024
(15) Unit RF8b: White River--Arkansas and Monroe Counties,
Arkansas.
(i) General Description: Unit RF8b includes 68.9 rkm (42.8 rmi) of
the White River from U.S. Highway 79 at Clarendon, Monroe County,
Arkansas, downstream to Arkansas Highway 1 near St. Charles, Arkansas
County, Arkansas.
[[Page 24750]]
(ii) Map of Unit RF8b follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.025
(16) Unit RF9: Black River--Lawrence and Randolph Counties,
Arkansas.
(i) General Description: Unit RF9 includes 51.2 rkm (31.8 rmi) of
the Black River from U.S. Highway 67 at Pocahontas, Randolph County,
Arkansas, downstream to the Flat Creek confluence southeast of
Powhatan, Lawrence County, Arkansas.
[[Page 24751]]
(ii) Map of Unit RF9 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.026
(17) Unit RF10: Spring River--Lawrence, Randolph, and Sharp
Counties, Arkansas.
(i) General Description: Unit RF10 includes 51.5 rkm (32.0 rmi) of
the Spring River from the Ott Creek confluence southwest of Hardy in
Sharp County, Arkansas, downstream to its confluence with the Black
River east of Black Rock, Lawrence and Randolph Counties, Arkansas.
[[Page 24752]]
(ii) Map of Unit RF10 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.027
(18) Unit RF11: Strawberry River--Independence, Izard, Lawrence,
and Sharp Counties, Arkansas.
(i) General Description: Unit RF11 includes 123.8 rkm (76.9 rmi) of
the Strawberry River from Arkansas Highway 56 south of Horseshoe Bend,
Izard County, Arkansas, downstream to its confluence with the Black
River southeast of Strawberry, Lawrence County, Arkansas.
[[Page 24753]]
(ii) Map of Unit RF11 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.028
(19) Unit RF12: Buffalo River--Marion, Newton, and Searcy Counties,
Arkansas.
(i) General Description: Unit RF12 includes 113.6 rkm (70.6 rmi) of
the Buffalo River from the Cove Creek confluence southeast of Erbie,
Newton County, Arkansas, downstream to U.S. Highway 65 west of Gilbert,
Searcy County, Arkansas, and Arkansas Highway 14 southeast of Mull,
Arkansas, downstream to the Leatherwood Creek confluence in the Lower
Buffalo Wilderness Area, Arkansas.
[[Page 24754]]
(ii) Map of Unit RF12 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.029
(20) Unit RF13: St. Francis River--Madison and Wayne Counties,
Missouri.
(i) General Description: Unit RF13 includes 64.3 rkm (40.0 rmi) of
the St. Francis River from the Twelvemile Creek confluence west of
Saco, Madison County, Missouri, downstream to Lake Wappepello (where
inundation begins), Wayne County, Missouri.
[[Page 24755]]
(ii) Map of Unit RF13 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.030
(21) Unit RF14: Big Sunflower River--Sunflower County, Mississippi.
(i) General Description: Unit RF14 includes 51.5 rkm (32.0 rmi) of
the Big Sunflower River from Mississippi Highway 442 west of
Doddsville, Mississippi, downstream to the Quiver River confluence east
of Indianola, Sunflower County, Mississippi.
[[Page 24756]]
(ii) Map of Unit RF14 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.031
(22) Unit RF15: Bear Creek--Tishomingo County, Mississippi; and
Colbert County, Alabama.
(i) General Description: Unit RF15 includes 49.7 rkm (30.9 rmi) of
Bear Creek from the Alabama and Mississippi State line east of Golden,
Tishomingo County, Mississippi, downstream to Alabama County Road 4
southwest of Sutton Hill, Colbert County, Alabama (just upstream of
Pickwick Lake).
[[Page 24757]]
(ii) Map of Unit RF15 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.032
(23) Unit RF16: Big Black River--Hinds and Warren Counties,
Mississippi.
(i) General Description: Unit RF16 includes 43.3 rkm (26.9 rmi) of
the Big Black River from Porter Creek confluence west of Lynchburg,
Hinds County, Mississippi, downstream to Mississippi Highway 27 west of
Newman, Warren County, Mississippi.
[[Page 24758]]
(ii) Map of Unit RF16 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.033
(24) Unit RF17: Paint Rock River--Jackson, Madison, and Marshall
Counties, Alabama.
(i) General Description: Unit RF17 includes 81.0 rkm (50.3 rmi) of
the Paint Rock River from the convergence of Estill Fork and Hurricane
Creek north of Skyline, Jackson County, Alabama, downstream to U.S.
Highway 431 south of New Hope, Madison and Marshall Counties, Alabama.
[[Page 24759]]
(ii) Map of Unit RF17 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.034
(25) Unit RF18: Duck River--Hickman, Humphreys, Marshall, Maury,
and Perry Counties, Tennessee.
(i) General Description: Unit RF18 includes 235.3 rkm (146.2 rmi)
of the Duck River from Lillard Mill (rkm 288.1; rmi 179) west of
Tennessee Highway 272, Marshall County, Tennessee, downstream to
Interstate 40 near Bucksnort, Hickman County, Tennessee.
[[Page 24760]]
(ii) Map of Unit RF18 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.035
(26) Unit RF19a: Tennessee River--Hardin County, Tennessee.
(i) General Description: Unit RF19a includes 26.7 rkm (16.6 rmi) of
the Tennessee River from Pickwick Lake Dam downstream to U.S. Highway
64 near Adamsville, Hardin County, Tennessee.
[[Page 24761]]
(ii) Map of Unit RF19a follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.036
(27) Unit RF19b: Tennessee River--Livingston, Marshall, and
McCracken Counties, Kentucky.
(i) General Description: Unit RF19b includes 35.6 rkm (22.1 rmi) of
the Tennessee River from Kentucky Lake Dam, downstream to its
confluence with the Ohio River, McCracken and Livingston Counties,
Kentucky.
[[Page 24762]]
(ii) Map of Unit RF19b follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.037
(28) Unit RF20: Ohio River--Ballard, and McCracken Counties,
Kentucky; Massac and Pulaski Counties, Illinois.
(i) General Description: Unit RF20 includes 45.9 rkm (28.5 rmi) of
the Ohio River from the Tennessee River confluence at the downstream
extent of Owens Island downstream to Lock and Dam 53 near Olmstead,
Illinois.
[[Page 24763]]
(ii) Map of Unit RF20 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.038
(29) Unit RF21: Green River--Edmonson, Green, Hart, and Taylor
Counties, Kentucky.
(i) General Description: Unit RF21 includes 175.6 rkm (109.1 rmi)
of the Green River from Green River Lake Dam south of Campbellsville,
Taylor County, Kentucky, downstream to Mammoth Cave National Park North
Entrance Road in Mammoth Cave National Park, Kentucky.
[[Page 24764]]
(ii) Map of Unit RF21 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.039
(30) Unit RF22: French Creek--Crawford, Erie, Mercer, and Venango
Counties, Pennsylvania.
(i) General Description: Unit RF22 includes 120.4 rkm (74.8 rmi) of
French Creek from Union City Reservoir Dam northeast of Union City,
Erie County, Pennsylvania, downstream to its confluence with the
Allegheny River near Franklin, Venango County, Pennsylvania.
[[Page 24765]]
(ii) Map of Unit RF22 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.040
(31) Unit RF23: Allegheny River--Venango County, Pennsylvania.
(i) General Description: Unit RF23 includes 57.3 rkm (35.6 rmi) of
the Allegheny River from the French Creek confluence near Franklin,
Venango County, Pennsylvania, downstream to Interstate 80 near
Emlenton, Venango County, Pennsylvania.
[[Page 24766]]
(ii) Map of Unit RF23 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.041
(32) Unit RF24: Muddy Creek--Crawford County, Pennsylvania.
(i) General Description: Unit RF24 includes 20.1 rkm (12.5 rmi) of
Muddy Creek from Pennsylvania Highway 77 near Little Cooley, Crawford
County, Pennsylvania, downstream to its confluence with French Creek
east of Cambridge Springs, Crawford County, Pennsylvania.
[[Page 24767]]
(ii) Map of Unit RF24 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.042
(33) Unit RF25: Tippecanoe River--Carroll, Pulaski, Tippecanoe, and
White Counties, Indiana.
(i) General Description: Unit RF25 includes 75.6 rkm (47.0 rmi) of
the Tippecanoe River from Indiana Highway 14 near Winamac, Pulaski
County, Indiana, downstream to its confluence with the Wabash River
northeast of Battle Ground, Tippecanoe County, Indiana, excluding Lakes
Shafer and Freeman and the stream reach between the two lakes.
[[Page 24768]]
(ii) Map of Unit RF25 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.043
(34) Unit RF26: Walhonding River--Coshocton County, Ohio.
(i) General Description: Unit RF26 includes 17.5 rkm (10.9 rmi) of
the Walhonding River from the convergence of the Kokosing and Mohican
Rivers downstream to Ohio Highway 60 near Warsaw, Coshocton County,
Ohio.
[[Page 24769]]
(ii) Map of Unit RF26 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.044
(35) Unit RF27: Little Darby Creek--Madison and Union Counties,
Ohio.
(i) General Description: Unit RF27 includes 33.3 rkm (20.7 rmi) of
Little Darby Creek from Ohio Highway 161 near Chuckery, Union County,
Ohio, downstream to U.S. Highway 40 near West Jefferson, Madison
County, Ohio.
[[Page 24770]]
(ii) Map of Unit RF27 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.045
(36) Unit RF28: North Fork Vermilion River and Middle Branch North
Fork Vermilion River, respectively--Vermilion County, Illinois.
(i) General Description: Unit RF28 includes a total of 28.5 rkm
(17.7 rmi). Unit RF28 includes 21.2 rkm (13.2 rmi) of the North Fork
Vermilion River from the confluence of Middle Branch North Fork
Vermilion River downstream to Illinois Highway 1 and U.S. Highway 136
upstream of Lake Vermilion, Vermilion County, Illinois. Unit RF28 also
includes 7.2 rkm (4.5 rmi) of the Middle Branch North Fork Vermilion
River from the Jordan Creek confluence northwest of Alvin, Illinois,
downstream to its confluence with North Fork Vermilion River west of
Alvin, Vermilion County, Illinois.
[[Page 24771]]
(ii) Map of Unit RF28 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.046
(37) Unit RF29: Fish Creek--Williams County, Ohio.
(i) General Description: Unit RF29 includes 7.7 rkm (4.8 rmi) of
Fish Creek from Indiana and Ohio State line northwest of Edgerton,
Ohio, downstream to its confluence with the St. Joseph's River north of
Edgerton, Williams County, Ohio.
[[Page 24772]]
(ii) Map of Unit RF29 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.047
(38) Unit RF30: Red River--Logan County, Kentucky; and Montgomery
and Robertson Counties, Tennessee.
(i) General Description: Unit RF30 includes 50.2 rkm (31.2 rmi) of
the Red River from the South Fork Red River confluence west of
Adairville, Kentucky, downstream to the Sulphur Fork confluence
southwest of Adams, Tennessee.
[[Page 24773]]
(ii) Map of Unit RF30 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.048
(39) Unit RF31: Shenango River--Mercer County, Pennsylvania.
(i) General Description: Unit RF31 includes 24.8 rkm (15.4 rmi) of
the Shenango River from Porter Road near Greenville, Pennsylvania,
downstream to the point of inundation by Shenango River Lake near Big
Bend, Mercer County, Pennsylvania.
[[Page 24774]]
(ii) Map of Unit RF31 follows:
[GRAPHIC] [TIFF OMITTED] TR30AP15.049
* * * * *
Dated: February 25, 2015.
Michael J. Bean,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2015-09200 Filed 4-29-15; 8:45 am]
BILLING CODE 4310-55-P