[Federal Register Volume 59, Number 134 (Thursday, July 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17133]
[[Page Unknown]]
[Federal Register: July 14, 1994]
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DEPARTMENT OF THE INTERIOR
50 CFR Part 17
RIN 1018-AC64
Endangered and Threatened Wildlife and Plants; Proposal to List the
Cumberland Elktoe, Oyster Mussel, Cumberlandian Combshell, Purple
Bean, and Rough Rabbitsfoot as Endangered Species
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: The Fish and Wildlife Service (Service) proposes to list five
freshwater mussels (Cumberland elktoe (Alasmidonta atropurpurea),
oyster mussel (Epioblasma capsaeformis), Cumberlandian combshell
(Epioblasma brevidens), purple bean (Villosa perpurpurea), and rough
rabbitsfoot (Quadrula cylindrica strigillata)) as endangered species
under the Endangered Species Act of 1973, as amended (Act). All five
species have undergone significant reductions in range and now exist as
relatively small, isolated populations. The Cumberland elktoe exists in
very localized portions of the Cumberland River system in Kentucky and
Tennessee. The oyster mussel and Cumberland combshell persist at
extremely low numbers in portions of the Cumberland and Tennessee River
basins in Kentucky, Tennessee, and Virginia. The purple bean and rough
rabbitsfoot currently survive in a few river reaches in the Tennessee
River system in Tennessee and Virginia. These species were historically
eliminated from much of their range by impoundments. Presently, they
and their habitat are impacted by deteriorated water quality, primarily
resulting from poor land use practices.
DATES: Comments from all interested parties must be received by
September 12, 1994. Public hearing requests must be received by August
29, 1994.
ADDRESSES: Comments and materials concerning this proposal should be
sent to the Field Supervisor, U.S. Fish and Wildlife Service, Asheville
Field Office, 330 Ridgefield Court, Asheville, North Carolina 28806
(704/665-1195). Comments and materials received will be available for
public inspection, by appointment, during normal business hours at the
above address.
FOR FURTHER INFORMATION CONTACT: Mr. Richard G. Biggins at the above
address or telephone (704/665-1195, Ext. 228).
SUPPLEMENTARY INFORMATION:
Background
Cumberland Elktoe (Alasmidonta Atropurpurea)
The Cumberland elktoe, described by Rafinesque (1831), has a thin
but not fragile shell. The shell's surface is smooth, somewhat shiny,
and covered with greenish rays. Young specimens have a yellowish-brown
shell and the shells of adults are generally black. The inside of the
shell is shiny with a white, bluish-white, or sometimes peach or salmon
color. (See Clarke (1981) for a more complete description of species.)
The Cumberland elktoe is endemic to the Cumberland River system in
Tennessee and Kentucky and is considered endangered in the State of
Kentucky (Kentucky State Nature Preserve Commission 1991). Historic
records exist from the Cumberland River and from Cumberland River
tributaries entering from the south between the Big South Fork
Cumberland River upstream to Cumberland Falls. Specimens have also been
taken from Marsh Creek above Cumberland Falls. Old records of a related
species, Alasmidonta marginata, exist from other creeks above
Cumberland Falls; and there is speculation that these specimens were
probably the Cumberland elktoe (Gordon 1991). Because the area above
the falls has been severely impacted by coal mining, any populations of
A. atropurpurea that might have existed there were likely lost (Gordon
1991). A record of one fresh dead specimen exists from the Collins
River, Grundy County, Tennessee. However, extensive searches of the
collection site and other sites in the Collins River and adjacent
rivers have failed to find another specimen. If the species did exist
in the Collins River, it has likely been extirpated.
Presently, three populations of the Cumberland elktoe are known to
persist. The species survives in the middle sections of Rock Creek,
McCreary County, Kentucky; the upper portions of the Big South Fork
Cumberland River basin in McCreary County, Kentucky, and Scott,
Fentress, and Morgan Counties, Tennessee; and in Marsh Creek, McCreary
County, Kentucky (Gordon 1991).
Any Cumberland elktoe populations that may have existed in the main
stem of the Cumberland River were likely lost when Wolf Creek Dam was
completed. Other tributary populations were likely lost due to the
impacts of coal mining, pollution, and spills from oil wells. The upper
Big South Fork basin population is threatened by coal mining and could
be threatened by an impoundment that is under consideration for a
tributary (the North Prong of Clear Fork Creek) in the basin. The Marsh
Creek population has been adversely affected and is still threatened by
spills from oil wells. The Rock Creek population could be threatened by
logging. All three populations, especially Rock Creek and Marsh Creek,
are restricted to such short stream reaches that they could be
eliminated by toxic chemical spills.
Oyster Mussel (Epioblasma Capsaeformis)
The oyster mussel (Lea 1834) has a dull to sub-shiny yellowish to
green colored shell with numerous narrow dark green rays. The shells of
females are slightly inflated and quite thin towards the shell's
posterior margin. The inside of the shell is whitish to bluish-white in
color. (See Johnson (1978) for a more complete description of species.)
The species is considered endangered in the States of Kentucky
(Kentucky State Nature Preserve Commission 1991) and Virginia (Neves
1991; Sue Bruenderman, Virginia Department of Game and Inland
Fisheries, in litt., 1992).
This species historically occurred throughout much of the
Cumberlandian region of the Tennessee and Cumberland River drainages in
Alabama, Kentucky, Tennessee, and Virginia (Gordon 1991), and Ortmann
(1918) considered the species to be very abundant in the upper
Tennessee River drainage.
Currently, within the Cumberland River, the oyster mussel survives
as a very rare component of the benthic community in Buck Creek,
Pulaski County, Kentucky; and it still survives in a few miles of the
Big South Fork Cumberland River, McCreary County, Kentucky, and Scott
County, Tennessee (Bakaletz 1991). Within the Tennessee River system,
only small populations survive at a few sites in the Powell River, Lee
County, Virginia and Hancock and Claiborne Counties, Tennessee; in the
Clinch River system, Scott County, Virginia, and Hancock County,
Tennessee; Copper Creek (a Clinch River tributary), Scott County,
Virginia; and Duck River, Marshall County, Tennessee. Although not seen
in recent years, the species may still persist at extremely low numbers
in the lower Nolichucky River, Cocke and Hamblem Counties, Tennessee,
and in the Little Pigeon River, Sevier County, Tennessee (Gordon 1991).
Much of the oyster mussel's historic range has been impounded by
the Tennessee Valley Authority (TVA) and the U.S. Army Corps of
Engineers (Corps). Other populations were lost due to various forms of
pollution and siltation. The present populations are threatened by the
adverse impacts of coal mining, poor land use practices, and pollution,
primarily from non-point sources. The Duck River population could be
lost if the proposed Columbia Dam on the Duck River at Columbia,
Tennessee, is completed as presently proposed. All the known
populations are small and could be decimated by toxic chemical spills.
Cumberlandian Combshell (Epioblasma Brevidens)
The Cumberlandian combshell (Lea 1831) has a thick, solid shell
with a smooth to cloth-like outer surface. It is yellow to tawny-brown
in color with narrow green broken rays. The inside of the shell is
white. The shells of females are inflated with serrated teeth-like
structures along a portion of the shell margin. (See Johnson (1978) for
a more complete description of species.) The species is considered
endangered in the States of Kentucky (Kentucky State Nature Preserve
Commission 1991) and Virginia (Neves 1991; Bruenderman, in litt., 1992)
and a species of special concern in Tennessee (Bogan and Parmalee
1983).
The Cumberlandian combshell historically existed throughout much of
the Cumberlandian portion of the Tennessee and Cumberland River systems
in Alabama, Kentucky, Tennessee, and Virginia (Gordon 1991). Presently,
it survives in the Cumberland River basin, as a very rare component of
the benthic community in Buck Creek, Pulaski County, Kentucky, and in a
few miles of the Big South Fork Cumberland River, McCreary County,
Kentucky, and Scott County, Tennessee (Bakaletz 1991). A few old, non-
reproducing individuals may also survive in Old Hickory Reservoir on
the Cumberland River, Smith County, Tennessee (Gordon 1991).
Within the Tennessee River basin, the species still survives in
very low numbers in the Powell and Clinch Rivers, Lee and Scott
Counties, Virginia; and Claiborne and Hancock Counties, Tennessee. The
Clinch and Powell River populations are very small and in decline
(Neves 1991; Richard Neves, Virginia Cooperative Fish and Wildlife
Research Unit, personal communication, 1991).
Many of the Cumberlandian combshell's historic populations were
lost when impoundments were constructed on the Tennessee and Cumberland
Rivers by TVA and the Corps. Other populations were lost due to various
forms of pollution and siltation. The present populations are
threatened by the adverse impacts of coal mining, poor land use
practices, and pollution, primarily from non-point sources. All the
known populations are small and could be decimated by toxic chemical
spills.
Purple Bean (Villosa Perpurpurea)
The purple bean mussel (Lea 1861) has a small to medium-sized
shell. The shell's outer surface is usually dark brown to black with
numerous closely-spaced fine green rays. The inside of the shell is
purple, but the purple may fade to white in dead specimens. (See Bogan
and Parmalee (1983) for a more complete description of species.) The
species is considered endangered in Tennessee (Bogan and Parmalee 1983)
and Virginia (Neves 1991; and Bruenderman, in litt., 1992).
The purple bean historically occupied the upper Tennessee River
basin in Tennessee and Virginia upstream of the confluence of the
Clinch River (Gordon 1991). Ortmann (1918) considered the species ``not
rare'' in Virginia. Presently, it survives in limited numbers at a few
locations in the upper Clinch River, Scott, Tazwell, and Russell
Counties, Virginia; Copper Creek (a Clinch River tributary), Scott
County, Virginia; Obed River, Cumberland and Morgan Counties,
Tennessee; Emory River just below its confluence with the Obed River,
Morgan County, Tennessee; and Beech Creek, Hawkins County, Tennessee
(Gordon 1991).
The purple bean populations in the lower Clinch, Powell, and
Holston River were extirpated by reservoirs. The decline of the species
throughout the rest of its range was likely due to the adverse impacts
of coal mining, poor land use practices, and pollution, primarily from
non-point sources. The population centers that remain are so limited
that they are very vulnerable to toxic chemical spills.
Rough Rabbitsfoot (Quadrula Cylindrica Strigillata)
The rough rabbitsfoot (Wright 1898) has an elongated heavy, rough
textured, yellow to greenish colored shell. The shell's surface is
covered with green rays, blotches, and chevron patterns. The inside of
the shell is silvery to white with an iridescence in the posterior area
of the shell. (See Bogan and Parmalee (1983) for a more complete
species' description.) The species is considered threatened in Virginia
(Neves 1991; Bruenderman, in litt., 1992) and a species of special
concern in Tennessee (Bogan and Parmalee 1983).
Historically, this mussel was restricted to the upper Tennessee
River basin in the Clinch, Powell, and Holston River systems (Gordon
1991). It still survives in all three of these systems, but only in
limited areas and at low population levels. Populations persist in the
Powell River, Lee County, Virginia; and Claiborne and Hancock Counties,
Tennessee; Clinch River, Scott County, Virginia, and Hancock County,
Tennessee; Copper Creek (a Clinch River tributary), Scott County,
Virginia; and North Fork Holston River, Washington County, Virginia
(Gordon 1991).
The rough rabbitsfoot populations in the lower Clinch, Powell, and
Holston River systems were extirpated by reservoirs. The decline of the
species throughout the rest of its range was likely due to the adverse
impacts of coal mining, poor land use practices, and pollution,
primarily from non-point sources. The population centers that remain
are so limited that they are vulnerable to extirpation from toxic
chemical spills.
In the Service's notice of review for animal candidates, published
in the Federal Register of November 21, 1991 (56 FR 58804), the
Cumberland elktoe, oyster mussel, Cumberlandian combshell, purple bean,
and rough rabbitsfoot are included as category 2 species. A category 2
species is one that is being considered for possible addition to the
Federal List of Endangered and Threatened Wildlife. These mussels were
approved for elevation to category 1 candidate status by the Service on
August 30, 1993. A category 1 species is a species for which the
Service has sufficient information to propose it for protection under
the Act. On August 25, 1992, the Service notified, by mail (129
letters), potentially affected Federal and State agencies and local
governments within the species' present range, and interested
individuals that a status review of the above mentioned five mussels
and the slabside pearlymussel (Lexingtonia dolabelloides) was being
conducted. (The slabside pearlymussel has not been included in this
proposed rule. Additional populations of this species were discovered
and further evaluation is needed before a decision can be made
regarding the species' need for Federal protection.)
Seven agencies responded to the August 25, 1992, notification. The
U.S. Soil Conservation Service stated: ``It is not anticipated that any
planned or current activities will adversely affect these species or
their habitat.'' The Kentucky State Nature Preserve Commission, the
Kentucky Department of Environmental Protection, Tennessee Wildlife
Resources Agency, Virginia Department of Conservation and Recreation,
and Virginia Department of Game and Inland Fisheries provided
information on the decline and status of the species in their States.
The Duck River Agency (DRA) provided comments on the status of the
oyster mussel in the Duck River. It stated that as the Duck River
population of the oyster mussel is extremely small, it is believed
highly unlikely that the stream supports a viable population of E.
capsaeformis. In contrast to DRA's statement, Don Hubbs (Tennessee
Wildlife Resources Agency, in litt., 1992) stated that fresh dead
oyster mussel individuals (from young and older cohorts) were not
uncommon in muskrat middens on the Duck River in Marshall County,
Tennessee. The Service, however, currently has insufficient information
to judge the species' long-term viability either in the Duck River or
on a range-wide basis.
The DRA took issue with the Service's statement in the notification
that the proposed Columbia Dam on the Duck River could eliminate the
oyster mussel from the Duck River. It stated that current project
alternatives under consideration by the DRA and TVA could result in a
project that would flood less that one third of the area and would
enhance the future viability of the population segment above the pool.
The Service agrees that a smaller Columbia Dam pool would reduce the
amount of the oyster mussel population lost to the direct effects of
the dam. However, the details of these Columbia Dam alternatives have
not been provided to the Service. Thus, the Service stands by its
statement that the Columbia Dam project as presently planned could
eliminate the oyster mussel from the Duck River.
The DRA commented that statements in the mussel species accounts
(Gordon 1991) that were used as an information source to prepare the
August 25, 1992, notification, contained language that appeared to
indicate that the Service had already made a decision to list the
species prior to receiving any comments from the notification. The
Service agrees that the species accounts, which were prepared by a non-
Service biologist under contract to the Service, contain language
regarding the need to reverse the species' decline as a means to
preserve and recover the mussels. However, these statements, made by a
Service contractor, do not represent a predecisional statement by the
Service. Statements in the species accounts will be considered along
with all presently available information on these species, as well as
information obtained through the notification and this proposed rule
when making the final decision regarding the status of the species.
Summary of Factors Affecting the Species
Section 4(a)(1) of the Endangered Species Act (16 U.S.C. 1531 et
seq.) and regulations (50 CFR Part 424) promulgated to implement the
listing provisions of the Act set forth the procedures for adding
species to the Federal lists. A species may be determined to be an
endangered or threatened species due to one or more of the five factors
described in Section 4(a)(1). These factors and their application to
the Cumberland elktoe (Alasmidonta atropurpurea), oyster mussel
(Epioblasma capsaeformis), Cumberlandian combshell (Epioblasma
brevidens), purple bean (Villosa perpurpurea), and rough rabbitsfoot
(Quadrula cylindrica strigillata) are as follows:
A. The present or threatened destruction, modification, or
curtailment of its habitat or range. Mussel populations throughout the
Central and Eastern United States have been declining since modern
civilization began to significantly alter aquatic habitats. The Ohio
River drainage, which includes the Tennessee and Cumberland Rivers, was
a center for freshwater mussel evolution and historically contained
about 127 distinct mussel species and subspecies. Of this once rich
mussel fauna, 11 mussels are extinct, 28 mussels are classified as
Federal endangered species, and 18 others, including the 5 species
covered in this proposed rule, are candidates for addition to the
Federal List of Endangered and Threatened Wildlife. In less than 100
years, 44 percent of the Ohio River system's mussel fauna has either
become extinct, recognized as endangered, or decimated to the point
that Federal protection is being considered. No other wide-ranging
faunal group in the continental United States has experienced this
degree of loss within the last 100 years.
The mussel fauna in most streams of the Ohio River basin has been
directly impacted by impoundments, siltation, channelization, and water
pollution. Reservoir construction is the most obvious cause of the loss
of mussel diversity in the basin's larger rivers. Most of the main stem
of both the Tennessee and Cumberland River and many of their
tributaries are impounded. For example: over 2,300 river miles or about
20 percent of the Tennessee River and its tributaries with drainage
areas of 25 square miles or greater are impounded (Tennessee Valley
Authority 1971). In addition to the loss of riverine habitat within
impoundments, most impoundments also seriously alter downstream aquatic
habitat; and mussel populations upstream of reservoirs may be adversely
affected by changes in the fish fauna essential to a mussel's
reproductive cycle.
Coal mining related siltation and associated toxic runoff have
adversely impacted many stream reaches. Numerous streams have
experienced mussel and fish kills from toxic chemical spills, and poor
land use practices have fouled many waters with silt. Runoff from large
urban areas has degraded water and substrate quality. Because of the
extent of habitat destruction, the overall aquatic faunal diversity in
many of the basins' rivers has declined significantly. Because of this
destruction of riverine habitat, 8 fishes and 24 mussels in the
Tennessee and Cumberland River basins have already required Endangered
Species Act protection, and numerous other aquatic species in these two
basins are currently considered candidates for Federal listing.
The mussel fauna in the Tennessee and Cumberland Rivers has been
extensively sampled, and much is known about the historic and present
distribution of this rich fauna. Gordon (1991) provided an extensive
review of the literature regarding the past and present ranges of the
Cumberland elktoe, oyster mussel, Cumberlandian combshell, purple bean,
and rough rabbitsfoot. Based on Gordon's (1991) review and personal
communication with numerous Federal, State, and independent biologists,
it is clear that these five mussel species have undergone significant
reductions in range and that they now exist as only remnant isolated
populations. (See ``Background'' section for a discussion of current
and historic distribution and threats to the remaining populations.)
B. Overutilization for commercial, recreational, scientific, or
educational purposes. These five mussels are not commercially valuable;
but as they are extremely rare, they could be sought by collectors. The
specific areas inhabited by these species are presently unknown to the
general public. As a result, their overutilization has not been a
problem. However, vandalism could pose a problem, especially if
specific inhabited reaches were to be revealed through the often
controversial critical habitat designation process. Most stream reaches
inhabited by these mussels are extremely small. Thus, populations of
the species could be easily eliminated or significantly reduced using
readily available toxic chemicals. Although scientific collecting is
not presently identified as a threat, take by private and institutional
collectors could pose a threat if left unregulated. Federal protection
of these species will help to minimize illegal and inappropriate take.
(See ``Critical Habitat'' section for a discussion of why critical
habitat is not being considered for these species.)
C. Disease and predation. Disease occurrence in freshwater mussels
is virtually unknown. However, since 1982, biologists and commercial
mussel fishermen have reported extensive mussel die-offs in rivers and
lakes throughout the United States. The cause(s) of many of these die-
offs is unknown, but disease has been suggested as a possible factor.
Shells of all five species are often found in muskrat middens. The
species are also presumably consumed by other mammals, such as raccoons
and mink. While predation is not thought to be a significant threat to
a healthy mussel population, Neves and Odum (1989) suggest it could
limit the recovery of endangered mussel species or contribute to the
local extirpation of already depleted mussel populations. Predation
would be of particular concern to oyster mussel, Cumberlandian
combshell, and purple bean, which exist only as extremely small,
remnant populations.
D. The inadequacy of existing regulatory mechanisms. The States of
Kentucky, Alabama, Tennessee, and Virginia prohibit the taking of fish
and wildlife, including freshwater mussels, for scientific purposes
without a State collecting permit. However, enforcement of this permit
requirement is difficult. Also, State regulations do not generally
protect these mussels from other threats. Existing authorities
available to protect aquatic systems, such as the Clean Water Act,
administered by the Environmental Protection Agency (EPA) and the Army
Corps of Engineers, have not been fully utilized and may have led to
the degradation of aquatic environments in the Southeast Region, thus
resulting in a decline of aquatic species. As these mussels (Cumberland
elktoe, Cumberlandian combshell, oyster mussel, purple bean, and rough
rabbitsfoot) coexist with other federally listed species throughout
most or all of their range, some of the habitats of these species are
indirectly provided some Federal protection from Federal actions and
activities through Section 7 of the Act. Federal listing will provide
additional protection for all five species throughout their range by
requiring Federal permits to take the species and by requiring Federal
agencies to consult with the Service when activities they fund,
authorize, or carry out may specifically adversely affect these
species. Further, listing will require consultation with the EPA in
relationship to water quality criteria, standards, and National
Pollution Discharge Elimination System permits under the Clean Water
Act; and implementation of actions to recover the species.
E. Other natural or manmade factors affecting its continued
existence. The populations of these species (Cumberland elktoe, oyster
mussel, Cumberlandian combshell, purple bean, and rough rabbitsfoot)
are small and geographically isolated. This isolation prohibits the
natural interchange of genetic material between populations, and the
small population sizes reduce the reservoir of genetic variability
within the populations. It is likely that some of the populations of
the Cumberland elktoe, oyster mussel, Cumberlandian combshell, purple
bean and rough rabbitsfoot may be below the level required to maintain
long-term genetic viability. Also, because most of the extant
populations of these mussels are restricted to short river reaches,
they are very vulnerable to extirpation from a single catastrophic
event, such as a toxic chemical spill or a major stream channel
modification. Because the populations of each species are isolated from
one another because of impoundments, natural repopulation of any
extirpated population is impossible without human intervention.
The invasion of the exotic zebra mussel (Dreissena polymorpha) into
the Great Lakes poses a potential threat to the Ohio River's mussel
fauna. The zebra mussel has recently been reported from the Tennessee
and Cumberland Rivers, but the extent of its impact on the basin's
freshwater mussels is unknown. However, zebra mussels in the Great
Lakes have been found attached in large numbers to the shells of live
and freshly dead native mussels, and zebra mussels have been implicated
in the loss of entire mussel beds.
The Service has carefully assessed the best scientific and
commercial information available regarding the past, present, and
future threats faced by these mussels in determining to propose these
rules. Based on these evaluations, the preferred action is to propose
the Cumberland elktoe (Alasmidonta atropurpurea), oyster mussel
Epioblasma capsaeformis, Cumberlandian combshell Epioblasma brevidens,
purple bean Villosa perpurpurea, and rough rabbitsfoot Quadrula
cylindrica strigillata for Federal protection. The Cumberland elktoe,
purple bean, and rough rabbitsfoot are known from three populations
each, and the Cumberland combshell and oyster mussel are known from
five populations each. These five species and their habitat have been
and continue to be impacted by habitat destruction and range reduction.
Their limited distribution also makes them very vulnerable to possible
extinction from toxic chemical spills. Because of their restricted
distributions and their vulnerability to extinction, endangered status
appears to be the most appropriate classification for these species.
(See ``Critical Habitat'' section for a discussion of why critical
habitat is not being proposed for these mussels.)
Critical Habitat
Section 4(a)(3) of the Act, as amended, requires that, to the
maximum extent prudent and determinable, the Secretary designate
critical habitat at the time the species is determined to be endangered
or threatened. The Service's regulations (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 activity and the identification of critical habitat can be
expected to increase the degree of threat to the species or (2) such
designation of critical habitat would not be beneficial to the species.
The Service finds that designation of critical habitat is not presently
prudent for these species. Such a determination would result in no
known benefit to these species, and designation of critical habitat
could pose a further threat to them.
Section 7(a)(2) and regulations codified at 50 CFR Part 402 require
Federal agencies to ensure, in consultation with and with the
assistance of the Service, that activities they authorize, fund, or
carry out are not likely to jeopardize the continued existence of
listed species or destroy or adversely modify their critical habitat,
if designated. Section 7(a)(4) requires Federal agencies to confer
informally with the Service on any action that is likely to jeopardize
the continued existence of a proposed species or result in the
destruction or adverse modification of proposed critical habitat. (See
``Available Conservation Measures'' section for a further discussion of
Section 7.) As part of the development of this proposed rule, Federal
and State agencies were notified of the mussels' general distributions,
and they were requested to provide data on proposed Federal actions
that might adversely affect the species. Should any future projects be
proposed in areas inhabited by these mussels, the involved Federal
agency will already have the general distributional data needed to
determine if the species may be impacted by its action; and if needed,
more specific distributional information would be provided.
Each of these mussels occupies very restricted stream reaches.
Thus, as any significant adverse modification or destruction of these
species' habitat would likely jeopardize their continued existence, no
additional protection for the species would accrue from critical
habitat designation that would not also accrue from listing these
species. Therefore, habitat protection for these species would be
accomplished through the Section 7 jeopardy standard and Section 9
prohibitions against take.
In addition, these mussels are rare, and taking for scientific
purposes and private collection could pose a threat if specific site
information were released. The publication of critical habitat maps in
the Federal Register, local newspapers, and other publicity
accompanying critical habitat designation could increase the collection
threat and increase the potential for vandalism especially during the
often controversial critical habitat designation process. (See
``Summary of Factors Affecting the Species, Part B. Overutilization for
commercial, recreational, scientific, or educational purposes'' section
for a further discussion of threats to the species from vandals.) The
locations of populations of these species have consequently been
described only in general terms in these proposed rules. Any existing
precise locality data would be available to appropriate Federal, State,
and local governmental agencies from the following offices: Service
office described in the Addresses section; the Service's Cookeville
Field Office, 446 Neal Street, Cookeville, Tennessee 38501; and White
Marsh Field Office, P.O. Box 480, Mid-County Center, U.S. Route 17,
White Marsh, Virginia 23183; and from the Kentucky Department of Fish
and Wildlife Resources, the Kentucky State Nature Preserves Commission,
the Tennessee Wildlife Resources Agency, the Tennessee Department of
Conservation, the Virginia Department of Game and Inland Fisheries, and
the Virginia Department of Conservation and Recreation.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing encourages and results in
conservation actions by Federal, State, and private agencies, groups,
and individuals. The Act provides for possible land acquisition and
cooperation with the States and requires that recovery actions be
carried out for all listed species. The protection required of Federal
agencies and the prohibitions against taking and harm are discussed, in
part, below.
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as
endangered or threatened and with respect to its critical habitat, if
any is being designated. Regulations implementing this interagency
cooperation provision of the Act are codified at 50 CFR Part 402.
Section 7(a)(4) requires Federal agencies to confer informally with the
Service on any action that is likely to jeopardize the continued
existence of a proposed species or result in destruction or adverse
modification of proposed critical habitat. If a species is listed
subsequently, Section 7(a)(2) of the Act requires Federal agencies to
ensure that activities they authorize, fund, or carry out are not
likely to jeopardize the continued existence of such a species or to
destroy or adversely modify its critical habitat. If a Federal action
may affect a listed species or its critical habitat, the responsible
Federal agency must enter into formal consultation with the Service.
The Service notified Federal agencies that may have programs which
could affect these species. One major Federal project, a proposed
Tennessee Valley Authority impoundment on the Duck River, Columbia,
Tennessee, could have a significant impact on the oyster mussel.
Construction of Columbia Dam was halted in the late 1970's after the
Service issued a biological opinion stating that the dam's completion
would likely jeopardize the continued existence of two federally listed
mussels. (A third mussel listed prior to the issuance of the biological
opinion is now known from the proposed flood pool.) Although the
presence of a fourth endangered mussel (oyster mussel) may somewhat
complicate this issue, any measures needed to avoid a jeopardy
situation for the currently listed mussels would not be expected to
change significantly with the addition of a fourth listed species.
An impoundment is under consideration on the North Prong of Clear
Fork Creek in the upper Big South Fork of the Cumberland River,
Fentress County, Tennessee. This project would inundate and adversely
impact a portion of the Cumberland elktoe population that exists in the
upper Big South Fork basin. This water supply project, proposed by the
Fentress County Utility District, is one of a series of water supply
alternatives currently under review for a permit pursuant to Section
404 of the Clean Water Act.
No other specific proposed Federal actions were identified that
would likely affect any of the species. Federal activities that could
occur and impact the species include, but are not limited to, the
carrying out or the issuance of permits for reservoir construction,
stream alterations, wastewater facility development, pesticide
registration, coal mining, and road and bridge construction. It has
been the experience of the Service, however, that nearly all Section 7
consultations have been resolved so that the species has been protected
and the project objectives have been met.
The Act and implementing regulations found at 50 CFR 17.21 set
forth a series of general prohibitions and exceptions that apply to all
endangered wildlife. These prohibitions, in part, make it illegal for
any person subject to the jurisdiction of the United States to take
(includes harass, harm, pursue, hunt, shoot, wound, kill, trap, or
collect; or to attempt any of these), import or export, ship in
interstate commerce in the course of commercial activity, or sell or
offer for sale in interstate or foreign commerce any listed species. It
is also illegal to possess, sell, deliver, carry, transport, or ship
any such wildlife that has been taken illegally. Certain exceptions
apply to agents of the Service and State conservation agencies.
Permits may be issued to carry out otherwise prohibited activities
involving endangered wildlife species under certain circumstances.
Regulations governing permits are at 50 CFR 17.22 and 17.23. Such
permits are available for scientific purposes, to enhance the
propagation or survival of the species, and/or for incidental take in
connection with otherwise lawful activities.
Public Comments Solicited
The Service intends that any final action resulting from these
proposals will be as accurate and as effective as possible. Therefore,
comments or suggestions from the public, other concerned governmental
agencies, the scientific community, industry, or any other interested
party concerning these proposed rules are hereby solicited. Comments
particularly are sought concerning:
(1) biological, commercial trade, or other relevant data concerning
any threat (or lack thereof) to the species;
(2) the location of any additional populations of the species and
the reasons why any habitat should or should not be determined to be
critical habitat as provided by Section 4 of the Act;
(3) additional information concerning the range, distribution, and
population size of the species; and
(4) current or planned activities in the subject areas and their
possible impacts on the species.
Final promulgation of the regulations on these species will take
into consideration the comments and any additional information received
by the Service, and such communications may lead to final regulations
that differ from this proposal.
The Endangered Species Act provides for a public hearing on this
proposal, if requested. Requests must be received within 45 days of the
date of publication of this proposal. Such requests must be made in
writing and addressed to the Field Supervisor, U.S. Fish and Wildlife
Service, Asheville Field Office, 330 Ridgefield Court, Asheville, North
Carolina 28806.
National Environmental Policy Act
The Fish and Wildlife Service has determined that an Environmental
Assessment, as defined under the authority of the National
Environmental Policy Act of 1969, need not be prepared in connection
with regulations adopted pursuant to Section 4(a) of the Act. A notice
outlining the Service's reasons for this determination was published in
the Federal Register on October 25, 1983 (48 FR 49244).
References Cited
Bakaletz, S. 1991. Mussel survey of the Big South Fork National
River Recreation Area. M.S. Thesis. Tennessee Technological
University, Cookeville, Tennessee. 62 pp.
Bogan, A.E., and P.W. Parmalee. 1983. Tennessee's rare wildlife,
Volume II: the mollusks. 123 pp.
Clarke, A.H. 1981. The Tribe Alasmidontini (Unionidae: Anodontinae),
Part I: Pegias, Alasmidonta, and Arcidens. Smithsonian Contributions
to Zoology, No. 326. 101 pp.
Gordon, M.E. 1991. Species accounts for Cumberland elktoe
(Alasmidonta atropurpurea), Cumberlandian combshell (Epioblasma
brevidens), oyster mussel (Epioblasma capsaeformis), rough
rabbitsfoot (Quadrula cylindrica strigillata), and purple bean
(Villosa perpurpurea). Unpublished reports to The Nature
Conservancy. 75 pp.
Johnson, R.I. 1978. Systematics and zoogeography of Plagiola (-
Dysnomia-Epioblasma), an almost extinct genus of mussels (Bivalvia:
Unionides) from middle North America. Bull. Mus. Comp. Zool.
148:239-320.
Kentucky State Nature Preserve Commission. 1991. Endangered,
Threatened, and Special Concern Plant and Animal Species of
Kentucky. March, 1991. 15 pp.
Neves, R.J. 1991. Mollusks. In Virginia's endangered species,
proceedings of a symposium. Coordinated by Karen Terwilliger.
McDonald & Woodward Publ. Co., Blacksburg, VA. 672 pp.
Neves, R.J., and M.C. Odum. 1989. Muskrat predation on endangered
freshwater mussels in Virginia. Jour. Wildl. Manage. 53(4):939-940
Ortmann, A.E. 1918. The nayades (freshwater mussels) of the upper
Tennessee drainage with notes on synonymy and distribution.
Proceedings of the American Philosophical Society. 57:521-626.
Tennessee Valley Authority. 1971. Stream length in the Tennessee
River Basin. Tennessee River Authority, Knoxville, Tennessee, 25 pp.
Author
The primary author of this proposed rule is Richard G. Biggins,
U.S. Fish and Wildlife Service, Asheville Field Office, 330
Ridgefield Court, Asheville, North Carolina 28806 (704/665-1195,
Ext. 228).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, and Transportation.
Proposed Regulation Promulgation
PART 17--[AMENDED]
Accordingly, the Service proposes to amend part 17, subchapter B of
chapter I, title 50 of the Code of Federal Regulations, as set forth
below:
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; Pub. L. 99-
625, 100 Stat. 3500; unless otherwise noted.
2. Sec. 17.11(h) is amended by adding the following, in
alphabetical order under CLAMS, to the List of Endangered and
Threatened Wildlife:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate population
---------------------------------------------------- Historic range where endangered or Status When listed Critical Special
Common name Scientific name threatened habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Clams
* * * * * * *
Bean, purple............. Villosa perpurpurea..... U.S.A. (TN, VA)......... E....................... .......... ........... NA NA
* * * * * * *
Combshell, Cumberlandian. Epioblasma brevidens.... U.S.A. (AL, KY, TN, VA). ........................ NA E
* * * * * * *
Elktoe, Cumberland....... Alasmidonta atropurpurea U.S.A. (KY, TN)......... ........................ NA E
* * * * * * *
Mussel, oyster........... Epioblasma capsaeformis. U.S.A. (AL, KY, TN, VA). ........................ NA E
* * * * * * *
Rabbitsfoot, rough....... Quadrula cylindrica U.S.A. (TN, VA)......... ........................ NA E
strigillata.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dated: June 30, 1994.
Mollie H. Beattie,
Director, Fish and Wildlife Service.
[FR Doc. 94-17133 Filed 7-13-94; 8:45 am]
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