[Federal Register Volume 78, Number 187 (Thursday, September 26, 2013)]
[Rules and Regulations]
[Pages 59555-59620]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-23357]



[[Page 59555]]

Vol. 78

Thursday,

No. 187

September 26, 2013

Part IV





 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 the Fluted Kidneyshell and Slabside Pearlymussel; Final 
Rule

Federal Register / Vol. 78 , No. 187 / Thursday, September 26, 2013 / 
Rules and Regulations

[[Page 59556]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2013-0026; 4500030113]
RIN 1018-AZ48


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Fluted Kidneyshell and Slabside Pearlymussel

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 the fluted kidneyshell (Ptychobranchus subtentum) 
and slabside pearlymussel (Pleuronaia dolabelloides) under the 
Endangered Species Act of 1973, as amended (Act). These two species are 
endemic to portions of the Cumberland and Tennessee River systems of 
Alabama, Kentucky, Mississippi, Tennessee, and Virginia. In total, 
approximately 2,218 river kilometers (1,380 river miles) in Alabama, 
Kentucky, Mississippi, Tennessee, and Virginia fall within the 
boundaries of the critical habitat designation. The effect of this 
regulation is to designate critical habitat for the fluted kidneyshell 
and slabside pearlymussel under the Act for the conservation of the 
species.

DATES: This rule is effective on October 28, 2013.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov and at http://www.fws.gov/cookeville. Comments and 
materials we received, as well as supporting documentation we used in 
preparing this final rule, are available for public inspection at 
http://www.regulations.gov. All of the comments, materials, and 
documentation that we considered in this rulemaking are available by 
appointment, during normal business hours, at: U.S. Fish and Wildlife 
Service, Tennessee Ecological Services Field Office, 446 Neal Street, 
Cookeville, TN 38501; 931-528-6481 (telephone); 931-528-7075 
(facsimile).
    The coordinates or 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.regulations.gov at 
Docket No. FWS-R4-ES-2013-0026 and at the Tennessee Ecological Services 
Field Office (see FOR FURTHER INFORMATION CONTACT). Any additional 
tools or supporting information that we developed for this critical 
habitat designation will be available at the Web sites and field office 
address given above and may also be included in the preamble of this 
rule.

FOR FURTHER INFORMATION 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. If you use a telecommunications device for the 
deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-
877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. This is a final rule to designate 
critical habitat for the fluted kidneyshell (Ptychobranchus subtentum) 
and slabside pearlymussel (Pleuronaia dolabelloides). Under the 
Endangered Species Act (Act), when we determine that a species is 
endangered or threatened we must designate critical habitat to the 
maximum extent prudent and determinable. Designations of critical 
habitat can only be completed by issuing a rule.
    Section 4(b)(2) of the Act states that the Secretary shall 
designate 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 areas we are designating in this rule constitute our current 
best assessment of the areas that meet the definition of critical 
habitat for the fluted kidneyshell and slabside pearlymussel. Here we 
are designating approximately 2,218 river kilometers (rkm) (1,380 river 
miles (rmi)) of stream channel in five States as critical habitat. For 
the fluted kidneyshell, we are designating 24 units covering 
approximately 1,899 rkm (1,181 rmi) of critical habitat in Limestone 
County, Alabama; Jackson, Laurel, McCreary, Pulaski, Rockcastle, and 
Wayne Counties, Kentucky; Bedford, Claiborne, Cocke, Fentress, 
Franklin, Giles, Grainger, Greene, Hamblen, Hancock, Hickman, 
Humphreys, Jefferson, Knox, Lincoln, Marshall, Maury, Moore, Morgan, 
Overton, Perry, Pickett, Polk, Scott, and Sevier Counties, Tennessee; 
and Bland, Lee, Russell, Scott, Smyth, Tazewell, Washington, and Wythe 
Counties, Virginia. For the slabside pearlymussel, we are designating 
13 units covering approximately 1,562 rkm (970 rmi) of critical habitat 
in Colbert, Jackson, Limestone, Madison, and Marshall Counties, 
Alabama; Tishomingo County, Mississippi; Bedford, Bledsoe, Claiborne, 
Cocke, Franklin, Giles, Greene, Hamblen, Hancock, Hickman, Humphreys, 
Lincoln, Marion, Marshall, Maury, Moore, Perry, Polk, and Sequatchie 
Counties, Tennessee; and Bland, Lee, Russell, Scott, Smyth, Tazewell, 
Washington, and Wythe Counties, Virginia.
    This rule consists of a final rule designating critical habitat for 
the fluted kidneyshell and slabside pearlymussel. Elsewhere in today's 
Federal Register, we list both species as endangered under the Act.
    Peer review and public comment. We sought comments from independent 
specialists to ensure that our designation is based on scientifically 
sound data, assumptions, and analyses. We requested opinions from eight 
knowledgeable individuals with scientific expertise to review our 
technical assumptions and analysis, and to determine whether or not we 
used the best available information. Only one of the two peer reviewers 
who responded commented specifically on the critical habitat 
designation. This 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 received 
three comments from the public regarding the proposed critical habitat 
designation and the draft economic analysis (DEA). We addressed these 
comments and incorporated public input into this final designation.

Previous Federal Actions

    We proposed listing the fluted kidneyshell and slabside 
pearlymussel as endangered under the Act with critical habitat on 
October 4, 2012 (77 FR 60804), and announced the availability of a DEA 
on April 29, 2013 (78 FR 25041). The final listing rule can be found 
elsewhere in today's Federal Register. All other previous Federal 
actions for these species are described in the proposed rule (77 FR 
60804).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the fluted kidneyshell and slabside 
pearlymussel during two comment periods. The first comment period 
associated with the publication of the proposed rule (77 FR

[[Page 59557]]

60804) opened on October 4, 2012, and closed on December 3, 2012. We 
also requested comments on the proposed critical habitat designation 
and associated DEA during a comment period that opened on April 29, 
2013, and closed on May 29, 2013. We received one request for a public 
hearing. We held a public hearing in Abingdon, Virginia, on May 14, 
2013. We also contacted appropriate Federal, State, and local agencies; 
scientific experts and organizations; and other interested parties and 
invited them to comment on the proposal. Newspaper notices inviting 
general public comment were published in newspapers covering all 
affected counties in Alabama, Kentucky, Mississippi, Tennessee, and 
Virginia.
    During the first comment period, we received three comment letters 
directly addressing the proposed critical habitat designation. During 
the second comment period, we received one comment letter addressing 
the proposed critical habitat designation or the DEA. During the May 
14, 2013, public hearing, one organization made comments on the 
proposed designation of critical habitat and DEA. All substantive 
information provided during both comment periods and the public hearing 
has either been incorporated directly into this final determination or 
is addressed below.

Peer Reviewer Comments

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinion from eight knowledgeable 
individuals with scientific expertise that included familiarity with 
the two mussels and their habitats, biological needs, and threats. We 
received responses from two of the peer reviewers, but only one of them 
commented specifically on the proposed critical habitat designation.
    We reviewed all comments we received from the peer reviewer for 
substantive issues and new information regarding the proposed 
designation of critical habitat for the two mussels. Peer reviewer 
comments are addressed in Comments 1, 2, and 3 below; addressed in the 
Summary of Changes from Proposed Rule section; and incorporated into 
the final rule as appropriate.
    (1) Comment: The Special Management Considerations or Protection 
section fails to list the Tennessee Wildlife Resources Agency (TWRA) 
mussel sanctuaries located in the Powell, Clinch, Duck, and Hiwassee 
Rivers as effective conservation measures. The mussel sanctuaries 
prohibit the taking of mollusks by any means at all times and prohibit 
the degradation or destruction of aquatic habitat.
    Our Response: We agree that the TWRA mussel sanctuaries are 
protective of the fluted kidneyshell and slabside pearlymussel, and we 
have incorporated this into the Special Management Considerations or 
Protection section of this final rule.
    (2) Comment: In several critical habitat unit descriptions, the 
host fish species for the slabside pearlymussel are identified but not 
the host fish for the fluted kidneyshell. Host fish for the fluted 
kidneyshell are also found in these rivers (Nolichucky, Hiwassee, Elk, 
and Buffalo Rivers).
    Our Response: We agree the host fishes for the fluted kidneyshell 
are found in the Nolichucky (FK18), Hiwassee (FK21), Elk (FK22), and 
Buffalo (FK24) Rivers. However, under the Act (16 U.S.C. 1531 et seq.) 
and its implementing regulations, we are only required to identify the 
physical and biological features (PBFs) essential to the conservation 
of species in areas occupied at the time of listing, focusing on the 
features' primary constituent elements (PCEs). 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 (i.e., unoccupied units), upon a determination 
that such areas are essential for the conservation of the species. 
Because units FK21, FK22, and FK24 are unoccupied by the fluted 
kidneyshell at the time of listing, the presence of the host fishes (a 
PCE for the fluted kidneyshell) was not considered in the determination 
of those units and therefore not identified in the unit descriptions. 
The critical habitat designation for these units is based upon the 
determination that they are essential for the conservation of the 
species. However, Unit FK18 has been changed to occupied based on 
information provided by peer reviewers (see next comment), and the 
presence of fish hosts for the fluted kidneyshell has been added to the 
description of Unit FK18 (see Final Critical Habitat Designation, 
below).
    (3) Comment: The Nolichucky River, Tennessee, Unit FK18 for the 
fluted kidneyshell, has been proposed as unoccupied critical habitat 
even though the site retains large numbers of reintroduced adults from 
stocking efforts over the past 8 years. However, the Duck River has 
been proposed as occupied based on similar reintroduction efforts. 
Explain this inconsistency.
    Our Response: In the Duck River, the fluted kidneyshell population 
is a result of a successful reintroduction program implemented by TWRA 
and other conservation partners, resulting in the recruitment of the 
species in the river. In 2010, six individuals were collected during a 
quantitative survey at Lillard's Mill in the Duck River, confirming 
some level of survival and persistence of the reintroduced population 
(Hubbs et al. 2011, p. 18).
    We had no information at the time of the proposed rule to show that 
monitoring efforts in the Nolichucky River had confirmed the survival 
and persistence of reintroduced fluted kidneyshell. Since that time, 
Hubbs (2012, pers. comm.) confirmed that the Nolichucky River retains a 
large number of adult individuals. Therefore, we have changed the 
designation of critical habitat in the Nolichucky River from unoccupied 
to occupied and revised the designation accordingly.

Federal Agency Comments

    (4) Comment: The U.S. Department of Agriculture, Natural Resources 
Conservation Service (NRCS), in Kentucky, would like to explore 
opportunities to focus conservation practices including the Wildlife 
Habitat Incentives Program (WHIP) and the Environmental Quality 
Incentives Program on water quality improvement and restoration in any 
areas designated as critical habitat for the fluted kidneyshell and 
other aquatic organisms.
    Our Response: The Service concurs that Farm Bill practices 
implemented by the NRCS can improve water quality and benefit rare 
aquatic species. The Service will continue to work with NRCS to 
identify aquatic habitats for rare aquatic species that would benefit 
from conservation practices on private lands. One example of a 
successful partnership between NRCS and the Service's Kentucky Field 
Office is the Mill Branch Stream Restoration Project in which 700 
meters (m) (2,300 feet (ft)) of stream was completely restored and a 
fish passage installed to open an additional 1,524 to 2,438 m (5,000 to 
8,000 ft) of stream for the federally threatened blackside dace 
(Phoxinus [=Chrosomus] cumberlandensis) in Knox County, Kentucky. This 
project was completed through the WHIP program.

Public Comments

    (5) Comment: The Service has failed to prepare a DEA or to announce 
when the public will have the opportunity to comment on that analysis, 
hindering the public's ability to meaningfully comment on the complete 
picture of factors impacting the Service's

[[Page 59558]]

determination and whether or not the Service has complied with all 
legal obligations that should shape the final rule.
    Our Response: We proposed listing the fluted kidneyshell and 
slabside pearlymussel as endangered under the Act with critical habitat 
(77 FR 60804) on October 4, 2012, and announced the availability of a 
DEA (78 FR 25041) on April 29, 2013. Publication of the DEA after the 
proposed critical habitat rule is published has been standard practice 
with critical habitat rules. The Service reopened the comment period 
for 30 days (through May 29, 2013) to allow comments on the DEA. 
Additionally, we held a public hearing in Abingdon, Virginia, on May 
14, 2013.
    (6) Comment: During the public hearing, one commenter stated that 
the DEA is not based on sufficient data and many of the aspects of it 
appear to be incorrect. The methodology used to reach the estimates is 
poorly explained and the discount rate selected appears to be too high. 
The same commenter also stated: ``The draft economic analysis did not 
quantify, quote, indirect economic impacts associated with time delays 
and a misperception of the regulatory burden imposed by the proposed 
critical habitat designation, end quote, because of, quote, a lack of 
available data, end quote.''
    Our Reponse: Our economic analysis is based on the best available 
data and applies standard methods for assessing the impacts of critical 
habitat designation. The Office of Management and Budget (OMB) 
recommends that a 7 percent discount rate be applied as a base case for 
regulatory analysis (OMB 2003). The DEA and final economic analysis 
(FEA) also report results using a discount rate of 0 percent and 3 
percent for comparison.
    There were insufficient data to quantify and monetize indirect 
economic impacts of the critical habitat designation. These are 
addressed qualitatively in the analysis to allow the Service to 
consider these impacts in our determination. Based on our previous data 
collection, we have included additional information regarding time 
delays associated with section 7 consultations in the FEA.
    (7) Comment: During the public hearing, one commenter stated there 
is no indication in the DEA that the authors consulted with the 
Virginia Division of Mines, Minerals, and Energy, or with any other 
coal companies concerning the direct and indirect economic impact of 
the proposed critical habitat designation on the coal mining industry.
    Our Response: The Virginia Division of Mines, Minerals, and Energy 
declined to provide information for the economic analysis. Phone and 
email requests for information from the Virginia Coal Association, 
Virginia Mining Association, and Eastern Coal Council were not 
returned.
    (8) Comment: The Service published a proposed rule that had not 
undergone peer review, thereby not necessarily reflecting sound 
science, as required by section 4 of the Act and as required under 
section 515(b)(2)(A) of the Information Quality Act. Rather than 
conducting peer review prior to publication of the proposed rule, which 
would allow the public to view a fully scientifically vetted proposal, 
the Service opted to conduct peer review contemporaneously with the 
public comment period. Additionally, there is no indication that the 
public will have an opportunity to review and comment on the rule as 
informed by peer review, which is troubling due to the Service relying 
on decades-old data (e.g., concluding a population to be extant if 
found post-1980).
    Our Response: In accordance with our peer review policy published 
on July 1, 1994 (59 FR 34270), we solicited expert opinion from eight 
knowledgeable individuals with scientific expertise that included 
familiarity with the two mussels and their habitats, biological needs, 
and threats. In keeping with our policy, we contacted these peer 
reviewers after the proposed rule was published in the Federal 
Register. We received responses from two of the peer reviewers. We 
posted all of the comments we received on the October 4, 2012, proposal 
to designate critical habitat for the fluted kidneyshell and slabside 
pearlymussel (77 FR 60804), as well as the document making available 
the DEA for that proposed action (78 FR 25041; April 29, 2013), on the 
Internet at http://www.regulations.gov under Docket No. FWS-R4-ES-2013-
0026.
    We reviewed all comments we received from the peer reviewers and 
others for substantive issues and new information regarding the 
proposed designation of critical habitat for the two mussels. The peer 
reviewers generally concurred with our conclusions and provided 
additional information on taxonomic classification, life history, 
current distribution, and threats. Peer reviewer comments are addressed 
in the Peer Reviewer Comments section above, addressed in the Summary 
of Changes from Proposed Rule section below, and incorporated into this 
final rule as appropriate.
    (9) Comment: The proposed rule would impose significant and 
unwarranted regulatory burdens with regard to consultation requirements 
under section 7 of the Act as they apply to designated critical 
habitat. Consultation in unoccupied habitats, where there are no 
specimens of the fluted kidneyshell or slabside pearlymussel, would be 
unduly burdensome, unwarranted, and unlikely to foster support for the 
conservation of these species.
    Our Response: For the most part, consultation requirements under 
section 7 of the Act already exist for other listed species throughout 
the critical habitat designation for the fluted kidneyshell and 
slabside pearlymussel. Eleven critical habitat units proposed for both 
the fluted kidneyshell and slabside pearlymussel are currently 
designated as critical habitat under the Act for other federally listed 
species. All of the critical habitat units being designated for the 
fluted kidneyshell and slabside pearlymussel, including the unoccupied 
units, contain historical or extant records of federally listed or 
proposed species, except for the Wolf River and Town Branch and West 
Fork Obey River, Tennessee. Specifically:
     Some streams we are designating as critical habitat that 
are unoccupied by at least one of the species are occupied either by 
the other species or by another federally listed mussel species. For 
instance, the Buffalo River Unit (Unit FK24 and SP13) is unoccupied 
critical habitat for the fluted kidneyshell, but is occupied critical 
habitat for the slabside pearlymussel.
     Some streams we are designating as critical habitat for 
the fluted kidneyshell and slabside pearlymussel have not been 
previously designated as critical habitat for other species, but other 
federally listed species occur in these streams. For instance, the 
Holston River (Unit FK19) and French Broad River (Unit FK20), which we 
are designating as unoccupied critical habitat for the fluted 
kidneyshell, contain other federally listed species such as the pink 
mucket (Lampsilis abrupta).
    The Service is designating as critical habitat streams that are 
outside the geographical area occupied by the species because we have 
determined that: (1) Such areas are essential for the conservation of 
the species, and (2) designation of only occupied habitats is not 
sufficient to conserve these two species. Unoccupied habitats provide 
additional habitat for population expansion and promotion of genetic 
diversity, which will decrease the risk of extinction for these two 
species. As indicated above, the majority of these habitats already 
possess listed species or their critical habitat, and therefore

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Federal actions in those areas would require consultation under the 
Act, regardless of whether or not critical habitat was designated for 
these two mussels.

Summary of Changes From Proposed Rule

    As a result of the comments we received during the public comment 
periods (see above), we made the following changes to the final 
critical habitat rule:
    (1) We added TWRA mussel sanctuary information to the Special 
Management Considerations or Protection section.
    (2) We changed Unit FK18 (Nolichucky River) from unoccupied to 
occupied for the fluted kidneyshell to reflect the successful 
reintroduction program implemented by TWRA and other conservation 
partners.
    (3) In Table 4, we added pink mucket to the list of species that 
occur in the Holston River (Unit FK19).
    (4) We corrected the description for Unit FK19 to reflect that 
slabside pearlymussel and its host fish are known from the Holston 
River (not the French Broad River).
    (5) We revised the description of Unit FK24 and SP13 (Buffalo 
River). The channel is not stable, as we stated in the proposed rule, 
but has destabilized substrates.
    While preparing the final critical habitat rule, we also made the 
following corrections and modifications to Table 3 (Table 5 in the 
proposed rule):
    (1) We corrected the length of overlap for rabbitsfoot (Quadrula 
cylindrica cylindrica) in Unit SP9 (Paint Rock River), Unit SP11 (Bear 
Creek), and Unit FK23 and SP12 (Duck River).
    (2) We calculated total overlap lengths for critical habitat units 
and nonessential experimental populations (NEPs) separately.
    (3) We added a note to clarify how the total overlap lengths were 
calculated.
    In Table 4 (Table 6 in the proposed rule), we made the following 
corrections to the list of species that occur in critical habitat 
units:
    (1) We added rough rabbitsfoot (Q. c. strigillata) to Unit FK10 
(Indian Creek).
    (2) We deleted tan riffleshell (Epioblasma florentina walkeri (=E. 
walkeri)) and white wartyback (Plethobasus cicatricosus) from Unit FK17 
and SP5 (Powell River).
    (3) We added oyster mussel (E. capsaeformis) to and deleted pink 
mucket from Unit FK18 and SP6 (Nolichucky River).
    (4) We added birdwing pearlymussel (Lemiox rimosus) and cracking 
pearlymussel (Hemistena lata) to Unit FK20 (French Broad River).
    (5) We added oyster rmussel to Unit SP9 (Paint Rock River).
    (6) We added Alabama lampmussel (Lampsilis virescens) and 
Cumberlandian combshell (E. brevidens) to Unit SP11 (Bear Creek) and 
deleted finerayed pigtoe (Fusconaia cuneolus) from the same unit.
    (7) We deleted orangefoot pimpleback (Plethobasus cooperianus) from 
Unit FK23 and SP12 (Duck River).

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, 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.
    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 to 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.

[[Page 59560]]

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 articles in peer-reviewed 
journals, conservation plans developed by States and counties, 
scientific status surveys and studies, biological assessments, or other 
unpublished materials and expert opinion or personal knowledge.
    Habitat is 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 or 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 these 
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 and Biological Features

    In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act 
and the regulations at 50 CFR 424.12, in determining which areas within 
the geographical area occupied at the time of listing to propose as 
critical habitat, we consider the physical and biological features 
(PBFs) essential to the conservation of the species that may require 
special management considerations or protection. These may 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 PBFs required for the fluted kidneyshell and 
slabside pearlymussel based on their biological needs. Little is known 
of the specific habitat requirements of these two mussel species other 
than they require flowing water, stable stream channels, adequate water 
quality, and fish hosts for development of larva to metamorphose into 
juvenile mussels. To identify the physical and biological needs of the 
species, we have relied on current conditions at locations where the 
species survive, the limited information available on these two mussels 
and their close relatives, and factors associated with the decline and 
extirpation of these and other mussels from portions of the Cumberland 
and Tennessee River systems. Additional information is located in the 
final listing rule, which can be found elsewhere in today's Federal 
Register. We have determined that the fluted kidneyshell and slabside 
pearlymussel require the following physical or biological features:

Space for Individual and Population Growth and for Normal Behavior

    The fluted kidneyshell and slabside pearlymussel are historically 
associated with the Cumberland and Tennessee River drainages in 
Alabama, Kentucky, Mississippi, Tennessee, and Virginia. Mussels 
generally live embedded in the bottom of stable streams and other 
bodies of water, and within riffle areas of sufficient current 
velocities to remove finer sediments and provide well-oxygenated 
waters. The fluted kidneyshell is primarily a medium-sized creek to 
large river species, inhabiting sand and gravel substrates in 
relatively shallow riffles and shoals with moderate to swift current 
(Parmalee and Bogan 1998, p. 205). In comparison to co-occurring 
species, the fluted kidneyshell demonstrates strong habitat 
specificity. It is associated with faster flows, greater baseflow shear 
stress, and low substrate embeddedness (Ostby 2005, pp. 51, 142-143). 
The slabside pearlymussel is primarily a large creek to large river 
species, inhabiting sand, fine gravel, and cobble substrates in 
relatively shallow riffles and shoals with moderate current (Parmalee 
and Bogan 1998, p. 152).
    Similar to other mussels, fluted kidneyshell and slabside 
pearlymussel are dependent on areas with flow refuges where shear 
stress is relatively low, although the fluted kidneyshell is more 
tolerant of shear stress than other species (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 fluted kidneyshell and slabside pearlymussel to remain in the 
same general location throughout their entire lives.
    Natural river or creek channel stability is 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 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, p. 1-3). 
Sedimentation has been determined to be a major factor in habitat 
destruction, resulting in corresponding shifts in mussel fauna (Brim 
Box and Mossa 1999, p. 102). Stable stream bottom substrates not only 
provide space for populations of these mussel species, but also provide 
cover and shelter and sites for breeding, reproduction, and growth of 
offspring.
    Habitat conditions described in the previous paragraphs provide 
space, cover, shelter, and sites for breeding, reproduction, and growth 
of offspring for the fluted kidneyshell and slabside pearlymussel. 
These habitats are dynamic and are formed and maintained by water 
quantity, channel features (dimension, pattern, and profile), and 
sediment input to the system through periodic flooding, which maintain 
connectivity and interaction with the flood plain.

[[Page 59561]]

Changes in one or more of these parameters can result in channel 
degradation or aggradation, with serious effects to mussels.
    Therefore, based on the information above, we identify riffles of 
large creeks and rivers with sand, gravel, and cobble substrates; areas 
of moderate to high amount of flow, but with refugia of low shear 
stress; stream channel stability; and floodplain connectivity to be 
PBFs for both of these species.

Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements

    Mussels, such as these two species, siphon water into their shells 
and across four gills that are specialized for respiration, food 
collection, and brooding larvae in females. Food items include detritus 
(disintegrated organic debris), algae, diatoms, and bacteria (Strayer 
et al. 2004, pp. 430-431). Encysted 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 of the mantle, an umbilical cord-like 
structure that is used to extract nutrients as glochidia are attached 
to gill filiments of host fish. For the first several months, the gills 
of juvenile mussels are rudimentary and generally incapable of 
filtering particles (Watters 2007, p. 56). To extract bacteria, algae, 
and detritus from the sediment, juvenile mussels partially employ pedal 
(foot) feeding and may filter interstitial (pore) water (Yeager et al. 
1994, pp. 217-221). Adult mussels primarily filter feed from the 
ambient water column, but can also obtain their food by deposit 
feeding, pulling in food from the sediment and its interstitial 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 fluted kidneyshell and slabside pearlymussel in 
their habitats are affected by habitat stability, floodplain 
connectivity, flow, and water and sediment quality. Excessive 
sedimentation has been shown to impair the filter feeding ability of 
mussels. When in high silt environments, mussels may keep their valves 
closed more often, resulting in reduced feeding activity (Ellis 1936, 
p. 30), and high amounts of suspended sediments can dilute their food 
source (Dennis 1984, p. 212). Adequate food availability and quality is 
essential for normal behavior, growth, and viability during all life 
stages of these two species. Excessive sedimentation often results in 
fine silt particles culminating within interstitial spaces, embedding 
and even concretizing the substrate and virtually altering habitat to 
such a degree that it becomes uninhabitable for mussels, particularly 
juveniles. Excessive suspended sediments may also impair visual acuity 
of host fish, an obstacle to the mechanisms that mussels employ to 
attract and inoculate host fish with glochidia.
    The fluted kidneyshell and slabside pearlymussel are riverine 
species that depend upon adequate water flow. Continuously flowing 
water is a habitat feature associated with both of these species. 
Flowing water maintains the stream bottom habitats where these species 
are found, transports food items to the sedentary juvenile and adult 
life stages, removes wastes, and provides oxygen for respiration. 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. Further, riffle areas are often defined by an abundance and 
diversity of organisms that likely have dependent and competitive 
interactions yet unknown, but that are important for riffle-dwelling 
mussel species such as the fluted kidneyshell and slabside 
pearlymussel.
    The ranges of standard physical and chemical water quality 
parameters (such as temperature, dissolved oxygen, pH, and 
conductivity) that define suitable habitat conditions for the two 
species are poorly understood and have not been fully investigated. 
However, as relatively sedentary animals, mussels must be able to 
tolerate the full range of such parameters that occur naturally within 
the streams where they persist, or they will either be biologically 
compromised such that feeding, breeding, or sheltering activities are 
affected or mortality occurs. Environmental contamination degrades 
water quality parameters to a level that negatively affects a mussel's 
biological functions and is a causal (contributing) factor in the 
decline of mussel populations.
    Most numeric standards for pollutants and water quality parameters 
(for example, dissolved oxygen, pH, and heavy metals) that have been 
adopted by the States under the Clean Water Act (CWA; 33 U.S.C. 1251 et 
seq.) represent levels that are essential to the conservation of both 
mussels. The Service is currently in consultation with the 
Environmental Protection Agency (EPA) to evaluate the protectiveness of 
criteria approved in EPA's water quality standards for endangered and 
threatened species and their critical habitats as described in the 
memorandum of agreement that our agencies signed in 2001 (66 FR 11201; 
February 22, 2001). Other factors that can potentially alter water 
quality are droughts and periods of low flow, water withdrawals, 
nonpoint source runoff from adjacent land surfaces (for example, 
excessive amounts of sediments, nutrients, and pesticides), point 
source discharges from municipal and industrial wastewater treatment 
facilities (for example, excessive amounts of ammonia, chlorine, and 
metals), thermal and flow modifications resulting from hydropower 
generation, and random spills or unregulated discharge events. These 
factors can be particularly harmful to mussels during drought 
conditions because water flows are depressed and pollutants are more 
concentrated.
    Both water quantity and quality where both species currently exist 
vary widely according to season, precipitation events, and seasonal 
human activities within the watershed. Conditions across the mussels' 
historical ranges vary even more due to watershed size, geology, 
geography, and differences in human population densities and land uses. 
In general, both of the species survive in areas where the magnitude, 
frequency, duration, and seasonality of water flow are adequate to 
maintain stable habitats (for example, sufficient flow to remove fine 
particles and sediments without causing degradation), and where water 
quality is adequate for year-round survival (for example, moderate to 
high levels of dissolved oxygen, low to moderate input of nutrients, 
and relatively unpolluted water and sediments). Therefore, based on the 
information above, we identify adequate food items for all life stages, 
sufficient water flow, and adequate water quality to be PBFs for both 
of these species.

Sites for Breeding, Reproduction, or Rearing

    Mussels require a host fish for transformation of larval mussels 
(glochidia) to juvenile mussels (Williams et al. 2008, p. 68). Thus, 
the presence of the appropriate host fishes to complete the 
reproductive life cycle is essential to the conservation of these two 
mussels. The known host fishes of the fluted kidneyshell include: 
barcheek darter (Etheostoma obeyense), fantail darter (E. flabellare), 
rainbow darter (E. caeruleum), redline darter (E. rufilineatum), 
bluebreast darter (E. camurum), dusky darter (Percina sciera), and 
banded sculpin (Cottus

[[Page 59562]]

carolinae). The known host fishes of the slabside pearlymussel include: 
popeye shiner (Notropis ariommus), rosyface shiner (N. rubellus), 
saffron shiner (N. rubricroceus), silver shiner (N. photogenis), 
telescope shiner (N. telescopus), Tennessee shiner (N. leuciodus), 
whitetail shiner (Cyprinella galactura), striped shiner (Luxilus 
chrysocephalus), warpaint shiner (L. coccogenis), white shiner (L. 
albeolus), and eastern blacknose dace (Rhinichthys atratulus). There 
are likely other suitable host fishes that have not yet been studied or 
confirmed.
    Fluted kidneyshell and slabside pearlymussel 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).
    Floodplain connectivity is important to dissipate hydrolic energy 
during periodic flooding. Also connection to the floodplain provides 
habitats during wet years for spawning and foraging activities for fish 
hosts that require floodplain habitats for successful reproduction and 
recruitment to adulthood. Barko et al. (2006, pp. 252-256) found that 
several fish host or potential host species (none of which is a 
documented host for the fluted kidneyshell or slabside pearlymussel) 
benefited from the ability to exploit floodplain habitat resources that 
were not typically available for use during years of normal flows. 
Furthermore, Kwak (1988, pp. 243-247) and Slipke and Maceina (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 may need to occur at 
similar frequencies to that of the natural hydrologic regime of the 
rivers and creeks inhabited by the fluted kidneyshell and slabside 
pearlymussel.
    Natural temperature regimes can be altered by impoundments, water 
releases from dams, industrial and municipal effluents, and changes in 
riparian habitat. Critical thermal limits for survival and normal 
functioning of many mussel species and host fish are unknown. High 
temperatures can reduce dissolved oxygen concentrations in the water, 
which slows growth, reduces glycogen stores, impairs respiration, and 
may inhibit reproduction (Hart and Fuller 1974, pp. 240-241). Low 
temperatures can significantly delay or prevent metamorphosis (Watters 
and O'Dee 1999, pp. 454-455). Water temperature increases have been 
documented to shorten the period of glochidial encystment, increase 
oxygen consumption, reduce the speed in which they orient themselves in 
the substrate, and slow burrowing and movement responses (Hart and 
Fuller 1974, pp. 240-241; 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 of aspects 
of mussel reproduction (e.g., Gray 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). Abnormal temperature changes may cause particular 
problems to mussels whose reproductive cycles may be linked to fish 
reproductive cycles (e.g., Young and Williams 1984, entire). Therefore, 
based on the information above, we identify presence of appropriate 
fish hosts, water quality, sediment quality, stable habitat, food for 
all life stages, periodic flooding of and connectivity to floodplain 
habitat, and a natural temperature regime to be PBFs for both of these 
species.

Primary Constituent Elements for the Fluted Kidneyshell and Slabside 
Pearlymussel

    Under the Act and its implementing regulations, we are required to 
identify the PBFs essential to the conservation of these mussel species 
in areas occupied at the time of listing, focusing on the features' 
primary constituent elements (PCEs). We consider PCEs to be the 
specific elements of PBFs 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 life 
history, biology, and ecology of the species and the habitat 
requirements for sustaining the essential life-history functions of the 
species, we have determined that the PCEs for the fluted kidneyshell 
are:
    (1) Riffle habitats within large, geomorphically stable stream 
channels (channels that maintain lateral dimensions, longitudinal 
profiles, and sinuosity patterns over time without an aggrading or 
degrading bed elevation).
    (2) Stable substrates of sand, gravel, and cobble with low to 
moderate amounts of fine sediment and containing flow refugia with low 
shear stress.
    (3) A natural hydrologic flow regime (the magnitude, frequency, 
duration, and seasonality of discharge over time) necessary to maintain 
benthic habitats where the species are found, and connectivity of 
rivers with the floodplain, allowing the exchange of nutrients and 
sediment for habitat maintenance, food availability for all life 
stages, and spawning habitat for native fishes.
    (4) Water quality with low levels of pollutants and including a 
natural temperature regime, pH (between 6.0 to 8.5), oxygen content 
(not less than 5.0 milligrams per liter (mg/L)), hardness, and 
turbidity necessary for normal behavior, growth, and viability of all 
life stages.
    (5) The presence of abundant fish hosts, which may include the 
barcheek darter, fantail darter, rainbow darter, redline darter, 
bluebreast darter, dusky darter and banded sculpin, necessary for 
recruitment of the fluted kidneyshell.
    Based on the above needs and our current knowledge of the life 
history, biology, and ecology of the species and the habitat 
requirements for sustaining the essential life-history functions of the 
species, we have determined that the PCEs for the slabside pearly 
mussel are:
    (1) Riffle habitats within large, geomorphically stable stream 
channels (channels that maintain lateral dimensions, longitudinal 
profiles, and sinuosity patterns over time without an aggrading or 
degrading bed elevation).
    (2) Stable substrates of sand, gravel, and cobble with low to 
moderate amounts of fine sediment and containing flow refugia with low 
shear stress.
    (3) A natural hydrologic flow regime (magnitude, frequency, 
duration, and seasonality of discharge over time) necessary to maintain 
benthic habitats where the species is found, and connectivity of rivers 
with the floodplain, allowing the exchange of nutrients and sediment 
for habitat maintenance, food availability for all life stages, and 
spawning habitat for native fishes.

[[Page 59563]]

    (4) Water quality with low levels of pollutants and including a 
natural temperature regime, pH (between 6.0 to 8.5), oxygen content 
(not less than 5.0 milligrams/liter), hardness, and turbidity necessary 
for normal behavior, growth, and viability of all life stages.
    (5) The presence of abundant fish hosts, which may include the 
popeye shiner, rosyface shiner, saffron shiner, silver shiner, 
telescope shiner, Tennessee shiner, whitetail shiner, white shiner, and 
eastern blacknose dace, necessary for recruitment of the slabside 
pearlymussel.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features which are essential to the conservation of 
the species and that may require special management considerations or 
protection. The 30 occupied units we are designating as critical 
habitat for the fluted kidneyshell (17) and the slabside pearlymussel 
(13), 10 of which overlap but are counted as separate critical habitat 
units for each species, will require some level of management to 
address the current and future threats to the PBFs of the species.
    Habitat loss and degradation negatively impact the fluted 
kidneyshell and slabside pearlymussel. Severe degradation from 
impoundments, gravel and coal mining, oil and natural gas development, 
sedimentation, chemical contaminants, and stream channel alterations 
threaten the stream habitat and water quality on which these species 
depend. Contaminants associated with coal mining (metals, other 
dissolved solids), municipal effluents (bacteria, nutrients, 
pharmaceuticals), and agriculture (fertilizers, pesticides, herbicides, 
and animal waste) cause degradation of water quality and habitats 
through increased acidity and conductivity, instream oxygen 
deficiencies, excess nutrification, and excessive algal growths. The 
CWA has been insufficient to significantly reduce or remove these 
threats to the fluted kidneyshell and slabside pearlymussel.
    Other natural and manmade factors, such as alteration of natural 
temperature regimes below dams; chemical contaminants; sedimentation; 
small, isolated populations; and low genetic diversity, combined with 
localized extinctions from point source pollution or accidental toxic 
chemical spills, habitat modification and progressive degradation by 
nonpoint source pollutants, natural catastrophic changes to habitat 
through flood scour or drought as exacerbated by climate change, and 
nonindigenous species are threats to remaining populations of the 
fluted kidneyshell and slabside pearlymussel.
    Of the 30 total occupied units, a portion of 6 units are located on 
the Daniel Boone National Forest (DBNF), 14 are almost entirely on 
private land, 1 is located on the Big South Fork National River and 
Recreational Area (BSFNRRA), 1 is located on the Cherokee National 
Forest (CNF), and 8 units have mixed ownership with private, State 
park, and national wildlife refuge lands. Four of the occupied units 
have been designated as mussel sanctuaries by the TWRA.
    Portions of six critical habitat units on DBNF land are being 
managed and protected under DBNF's Land and Resource Management Plan 
(LRMP), and the Hiwassee River unit is protected under CNF's LRMP 
(United States Forest Service (USFS) 2004a, pp. 1-14; 2004b, entire). 
The LRMPs are implemented through a series of project-level decisions 
based on appropriate site-specific analysis and disclosure. The LRMPs 
do not contain a commitment to select any specific project; rather, 
they set up a framework of desired future conditions with goals, 
objectives, and standards to guide project proposals. Projects are 
proposed to solve resource management problems, move the forest 
environment toward desired future conditions, and supply goods and 
services to the public (USFS 2004a, pp. 1-14). The LRMPs contain a 
number of protective standards that in general are designed to avoid 
and minimize potential adverse effects to the fluted kidneyshell, 
slabside pearlymussel, and other federally listed species; however, the 
DBNF and CNF will continue to conduct project-specific section 7 
consultations under the Act when their activities may adversely affect 
the fluted kidneyshell, slabside pearlymussel, and other federally 
listed species or adversely modify their designated critical habitats.
    Fourteen of the 30 occupied critical habitat units are located 
almost entirely on private property and are not presently under the 
special management or protection provided by a legally operative plan 
or agreement for the conservation of the species.
    One of the 30 occupied critical habitat units (Big South Fork 
Cumberland River) is located almost entirely on Federal lands within 
the BSFNRRA. Land and resource management decisions and activities 
within the BSFNRRA are guided by the National Park Service General 
Management Plan, Field Management Plan, and Draft Non-Federal Oil and 
Gas Management Plan (NPS 2005, entire; NPS 2006, pp. 1-12; NPS 2011, 
entire).
    Eight of the 30 occupied critical habitat units (Clinch and Duck 
Rivers) have mixed ownership with private, State park, and national 
wildlife refuge lands. These lands are operated under various plans 
that may or may not provide the special management or protection 
provided by a legally operative plan or agreement for the conservation 
of these species.
    Portions of four of the occupied critical habitat units (Powell, 
Clinch, Hiwassee, and Duck Rivers) have been designated as mussel 
sanctuaries by TWRA. The collection of mollusks and the degradation or 
destruction of aquatic habitats in these areas is prohibited at all 
times.
    Various activities in or adjacent to each of the occupied critical 
habitat units described in this final rule may affect one or more of 
the PBFs. Some of these activities include, but are not limited to, 
those discussed in the Summary of Factors Affecting the Species in the 
final listing rule found elsewhere in today's Federal Register (e.g., 
impoundments, gravel and coal mining, water pollution, invasive 
species; see Factors A, D, and E). Other activities that may affect 
PBFs in the final critical habitat units include those listed in 
Available Conservation Measures (see final listing rule). Special 
management considerations or protection will conserve the PBFs for 
these species. Management activities that could ameliorate threats on 
both Federal and non-Federal lands include, but are not limited to: Use 
of best management practices (BMPs) designed to reduce sedimentation, 
erosion, and stream bank alteration; moderation of surface and ground 
water withdrawals to maintain natural flow regimes; increase of 
stormwater management and reduction of stormwater flows into the 
systems; preservation of headwater streams; regulation of off-road 
vehicle use; and reduction of other watershed and floodplain 
disturbances that release sediments, pollutants, or nutrients into the 
water.
    In summary, we find that the areas we are designating as occupied 
critical habitat for the fluted kidneyshell and slabside pearlymussel 
contain the PBFs necessary for the species, and that these features may 
require special management considerations or protection. Special 
management consideration or protection may be required to eliminate, or 
to reduce to negligible levels, the threats affecting the PBFs of each 
unit. Additional

[[Page 59564]]

discussion of threats facing individual units is provided in the 
individual unit descriptions below.

Criteria Used To Identify Critical Habitat

    As required by section 4(b) of the Act, we used the best scientific 
and commercial data available to designate critical habitat for both 
the fluted kidneyshell and slabside pearlymussel. In accordance with 
the Act and its implementing regulations at 50 CFR 424.12(e), we also 
consider whether designating additional areas outside those currently 
occupied as well as those occupied at the time of listing is necessary 
to ensure the conservation of these species. We are designating 
critical habitat in areas within the geographic area currently occupied 
by the species. We also are designating specific areas outside the 
geographic area currently occupied by the species, which were 
historically occupied but are presently unoccupied, because such areas 
are essential for the conservation of the species.
    We began our analysis by considering historical and current ranges 
of both species. We used various sources including published literature 
and museum collection databases, as well as surveys, reports, and field 
notes prepared by biologists. We then identified the specific areas 
that are occupied by both mussels and that contain one or more of the 
PBFs. We defined occupied habitat as those stream reaches known to be 
currently occupied by either of the two species. To identify the 
currently occupied stream reaches, we used post-1980 survey data. To 
identify the unoccupied stream reaches, we used survey data between the 
late 1800s and 1979. Therefore, if a species was known to occur in an 
area prior to 1980, but was not collected since then, the stream reach 
is considered unoccupied. This criterion was chosen because a large 
number of collections were conducted in the 1980s in the Cumberland and 
Tennessee River systems. Some of the historical occurrences have not 
been surveyed since the 1980s. However, because of the longevity of 
these species (26-55 years) and the presence of fish hosts, they are 
still thought to occur in these areas.
    We then evaluated occupied stream reaches to delineate the probable 
upstream and downstream extent of each species' distribution. Known 
occurrences for some mussel species are extremely localized, and rare 
mussels can be difficult to locate. In addition, stream habitats are 
highly dependent upon upstream and downstream channel habitat 
conditions for their maintenance. Therefore, where more than one 
occurrence record of a particular species was found within a stream 
reach, we considered the entire reach between the uppermost and 
lowermost locations as occupied habitat.
    We then considered whether this essential area was adequate for the 
conservation of both species. Small, isolated, aquatic populations are 
subject to chance catastrophic events and to changes in human 
activities and land use practices that may result in their elimination. 
Larger, more contiguous populations can reduce the threat of extinction 
due to habitat fragmentation and isolation. For these reasons, 
conservation of the fluted kidneyshell, but not the slabside 
pearlymussel, requires expanding its range into currently unoccupied 
portions of its historical habitat. Given that threats to the fluted 
kidneyshell are compounded by its limited distribution and isolation, 
it is unlikely that currently occupied habitat is adequate for its 
conservation. The range of the fluted kidneyshell has been severely 
curtailed, occupied habitats are limited and isolated, and population 
sizes are generally small (see Summary of Factors Affecting the 
Species, which can be found in the final listing rule published 
elsewhere in today's Federal Register). For example, the fluted 
kidneyshell is no longer believed to occur in the Rockcastle, Hiwassee, 
Elk, Holston, French Broad, or Buffalo Rivers. The inclusion of 
essential unoccupied areas will provide habitat for population 
reintroduction and will decrease the risk of extinction. Based on the 
best scientific data available, these areas not currently occupied by 
the fluted kidneyshell are essential for their conservation.
    We eliminated from consideration as unoccupied critical habitat the 
Red and Harpeth River drainages; the Caney Fork, mainstem Cumberland, 
mainstem Tennessee, Tellico, Obey, South Fork Powell, South Fork 
Holston, West Prong Little Pigeon, Little Tennessee Rivers; and 
Kennedy, Pittman, Otter, Flint, Sugar, Limestone, Shoal, Puckell, North 
Fork, and Big Rock Creeks for both of these mussels. These areas are 
not essential for the conservation of the mussels because of stream 
channel alterations, a limited amount of available habitat coupled with 
isolation from other populations, a lack of a native mussel fauna, poor 
habitat or water quality, or a lack of available fish hosts.
    All of the stream habitat areas designated as unoccupied critical 
habitat have sufficient water quality and fish hosts necessary for the 
fluted kidneyshell. The stream reaches also lack major anthropogenic 
disturbances and have potential for reoccupation by the species through 
future reintroduction efforts. Based on the above factors, all 
unoccupied stream reaches included in the designation for the fluted 
kidneyshell are essential for its conservation.
    In our analysis (see above paragraph), we did not find suitable 
habitat, water quality, or fish hosts present in areas historically 
inhabited by but presently unoccupied by the slabside pearlymussel. 
Therefore, we did not find any unoccupied stream reaches to be 
essential to the conservation of the slabside pearlymussel.
    Following the identification of occupied and unoccupied stream 
reaches, the next step was to delineate the probable upstream and 
downstream extent of each species' distribution. We used USGS 1:100,000 
digital stream maps to delineate these boundaries of designated 
critical habitat units according to the criteria explained below. The 
upstream boundary of a unit in a stream is the first perennial, named 
tributary confluence, a road-crossing bridge, or a permanent barrier to 
fish passage (such as a dam) above the upstream-most current occurrence 
record. The confluence of a tributary typically marks a significant 
change in the size of the stream and is a logical and recognizable 
upstream terminus. When a named tributary was not available, a road-
crossing bridge was used to mark the boundary. Likewise, a dam or other 
barrier to fish passage marks the upstream extent to which mussels may 
disperse via their fish hosts. The downstream boundary of a unit in a 
stream is the confluence of a named tributary, or the upstream extent 
of an impoundment, below the downstream-most occurrence record. In the 
unit descriptions, distances between landmarks marking the upstream or 
downstream extent of a stream segment are given in river kilometers and 
equivalent miles, as measured tracing the course of the stream, not 
straight-line distance.
    Because mussels are naturally restricted by certain physical 
conditions within a stream reach (i.e., flow, substrate), they may be 
unevenly distributed within these habitat units. Uncertainty on 
upstream and downstream distributional limits of some populations may 
have resulted in small areas of occupied habitat excluded from, or 
areas of unoccupied habitat included in, the designation. We recognize 
that both historical and recent collection records upon which we relied

[[Page 59565]]

are incomplete, and that there may be river segments or small 
tributaries not included in this designation that harbor small, limited 
populations of one or both species considered in this designation, or 
that others may become suitable in the future. The exclusion of such 
areas does not diminish their potential individual or cumulative 
importance to the conservation of these species. However, with proper 
management, each of the critical habitat units (24 fluted kidneyshell 
units, and 13 slabside pearlymussel units; 10 overlap between the two 
species) are capable of supporting one or both of these mussel species, 
and that populations within occupied units will serve as source 
populations for artificial reintroduction into unoccupied units, as 
well as assisted or natural migration into adjacent undesignated or 
designated streams within each river drainage. The habitat areas 
contained within the units described below constitute our best 
evaluation of areas needed for the conservation of these species at 
this time. Critical habitat may be revised for any or all of these 
species should new information become available.
    The areas designated as critical habitat below include only stream 
channels within the ordinary high-water line and do not contain 
developed areas or structures. The scale of the maps we prepared under 
the parameters for publication within the Code of Federal Regulations 
may not reflect the exclusion of such developed lands. Any such lands 
inadvertently left inside critical habitat boundaries shown on the maps 
of this final rule have been excluded by text in the rule and are not 
designated as critical habitat. Therefore, a Federal action involving 
these lands 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 PBFs 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. We include more detailed information on the boundaries 
of the critical habitat designation in the preamble of this document. 
We will make the coordinates or 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-2013-0026, on our Internet site at http://www.fws.gov/cookeville, and at the Fish and Wildlife office responsible 
for the designation (see FOR FURTHER INFORMATION CONTACT above).

Final Critical Habitat Designation

    We are designating approximately 2,218 rkm (1,380 rmi) in Alabama, 
Kentucky, Mississippi, Tennessee, and Virginia as critical habitat. For 
the fluted kidneyshell, we are designating 24 critical habitat units 
encompassing approximately 1,899 rkm (1,181 rmi) of stream channel in 
Alabama, Kentucky, Tennessee, and Virginia. The critical habitat areas 
we describe below constitute our current best assessment of areas that 
meet the definition of critical habitat for the fluted kidneyshell. The 
24 areas we designate as critical habitat are as follows: (1) Horse 
Lick Creek, KY; (2) Middle Fork Rockcastle River, KY; (3) Rockcastle 
River, KY; (4) Buck Creek, KY; (5) Rock Creek, KY; (6) Little South 
Fork Cumberland River, KY; (7) Big South Fork Cumberland River, KY, TN; 
(8) Wolf River and Town Branch, TN; (9) West Fork Obey River, TN; (10) 
Indian Creek, VA; (11) Little River [tributary to the Clinch River], 
VA; (12) North Fork Holston River, VA; (13) Middle Fork Holston River, 
VA; (14) Big Moccasin Creek, VA; (15) Copper Creek, VA; (16) Clinch 
River, TN, VA; (17) Powell River, TN, VA; (18) Nolichucky River, TN; 
(19) Holston River, TN; (20) French Broad River, TN; (21) Hiwassee 
River, TN; (22) Elk River, AL, TN; (23) Duck River, TN; and (24) 
Buffalo River, TN.
    We are designating 13 critical habitat units encompassing 
approximately 1,562 rkm (970 rmi) of stream channel in Alabama, 
Mississippi, Tennessee, and Virginia for the slabside pearlymussel. The 
critical habitat areas we describe below constitute our current best 
assessment of areas that meet the definition of critical habitat for 
the slabside pearlymussel. The 13 areas we designate as critical 
habitat are as follows: (1) North Fork Holston River, VA; (2) Middle 
Fork Holston River, VA; (3) Big Moccasin Creek, VA; (4) Clinch River, 
TN, VA; (5) Powell River, TN, VA; (6) Nolichucky River, TN; (7) 
Hiwassee River, TN; (8) Sequatchie River, TN; (9) Paint Rock River, AL; 
(10) Elk River, AL, TN; (11) Bear Creek, AL, MS; (12) Duck River, TN; 
and (13) Buffalo River, TN.
    Note that 10 of the units overlap and are designated as critical 
habitat for both species (each overlapping unit is counted twice, once 
for each species): Unit FK12 and SP1 (North Fork Holston River, 
Virginia), Unit FK13 and SP2 (Middle Fork Holston River, Virginia), 
Unit FK14 and SP3 (Big Moccasin Creek, Virginia), Unit FK16 and SP4 
(Clinch River, Tennessee and Virginia), Unit FK17 and SP5 (Powell 
River, Tennessee and Virginia), Unit FK18 and SP6 (Nolichucky River, 
Tennessee), Unit FK21 and SP7 (Hiwassee River, Tennessee), Unit FK22 
and SP10 (Elk River, Alabama and Tennessee), Unit FK23 and SP12 (Duck 
River, Tennessee), and Unit FK24 and SP13 (Buffalo River, Tennessee).
    Unit name, location, and the approximate stream length of each 
designated critical habitat unit are shown in Table 1 for the fluted 
kidneyshell and Table 2 for the slabside pearlymussel. The designated 
critical habitat units include the stream channels within the ordinary 
high-water line only. For this purpose, we have applied the definition 
found at 33 CFR 329.11, and consider the ordinary high-water mark on 
nontidal rivers to be 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 sovereigns or the States may 
have made grants to private parties that included lands below the 
ordinary high-water mark of some navigable waters that are included in 
this final rule. Most, if not all, lands beneath the navigable waters 
included in this rule are owned by the States. The lands beneath most 
nonnavigable waters included in this rule are in private ownership. In 
Alabama, the riparian landowner owns the stream to the middle of the 
channel for non-navigable streams. Riparian lands along the waters are 
either in private ownership, or are owned by county, State, or Federal 
entities. Lands under county, State, and Federal ownership consist of 
managed conservation areas and are considered to have some level of 
protection.

[[Page 59566]]



  Table 1--Occupancy and Ownership of Riparian Lands Adjacent to the Designated Critical Habitat Units for the
                                               Fluted Kidneyshell
----------------------------------------------------------------------------------------------------------------
                                                                            Federal, State,
   Unit          Location          Occupied  by      Private ownership       County, City       Total length rkm
                                     species             rkm (rmi)       ownership rkm  (rmi)        (rmi)
----------------------------------------------------------------------------------------------------------------
FK1.......  Horse Lick Creek,   Yes..............             3.6 (2.3)           15.8 (10.1)        19.4 (12.4)
             KY.
FK2.......  Middle Fork         Yes..............             6.0 (3.7)             6.5 (4.0)         12.5 (7.7)
             Rockcastle River,
             KY.
FK3.......  Rockcastle River,   No...............            11.7 (7.3)           58.2 (36.2)        69.9 (43.5)
             KY.
FK4.......  Buck Creek, KY....  Yes..............           59.7 (37.1)             1.3 (0.8)        61.0 (37.9)
FK5.......  Rock Creek, KY....  Yes..............             1.5 (0.9)           17.7 (11.0)        19.2 (11.9)
FK6.......  Little South Fork   Yes..............           61.1 (38.0)             4.4 (2.7)        65.5 (40.7)
             Cumberland River,
             KY.
FK7.......  Big South Fork      Yes..............             1.5 (1.0)           90.0 (55.9)        91.5 (56.9)
             Cumberland River,
             KY, TN.
FK8.......  Wolf River and      Yes..............           38.7 (24.0)             5.7 (3.5)        44.4 (27.5)
             Town Branch, TN.
FK9.......  West Fork Obey      Yes..............           19.3 (12.0)                     0        19.3 (12.0)
             River, TN.
FK10......  Indian Creek, VA..  Yes..............             6.7 (4.2)                     0          6.7 (4.2)
FK11......  Little River, VA..  Yes..............           50.4 (31.3)                     0        50.4 (31.3)
FK12......  North Fork Holston  Yes..............           66.4 (41.3)             0.9 (0.5)        67.3 (41.8)
             River, VA.
FK13......  Middle Fork         Yes..............           89.0 (55.3)                     0        89.0 (55.3)
             Holston River, VA.
FK14......  Big Moccasin        No...............           33.1 (20.6)                     0        33.1 (20.6)
             Creek, VA.
FK15......  Copper Creek, VA..  Yes..............           55.5 (34.5)                     0        55.5 (34.5)
FK16......  Clinch River, TN,   Yes..............         256.3 (159.2)             6.4 (4.0)      262.7 (163.2)
             VA.
FK17......  Powell River, TN,   Yes..............          152.4 (94.7)             0.3 (0.2)       152.7 (94.9)
             VA.
FK18......  Nolichucky River,   Yes..............           50.9 (31.6)             0.9 (0.6)        51.9 (32.2)
             TN.
FK19......  Holston River, TN.  No...............           85.1 (52.9)                     0        85.1 (52.9)
FK20......  French Broad        No...............           54.4 (33.8)             1.7 (1.1)        56.1 (34.9)
             River, TN.
FK21......  Hiwassee River, TN  No...............                     0           24.4 (15.2)        24.4 (15.2)
FK22......  Elk River, AL, TN.  No...............         162.8 (101.2)             1.5 (0.9)      164.3 (102.1)
FK23......  Duck River, TN....  Yes..............         284.0 (176.5)           63.5 (39.4)      347.5 (215.9)
FK24......  Buffalo River, TN.  No...............           50.0 (31.0)                     0        50.0 (31.0)
                               ---------------------------------------------------------------------------------
    Total.  ..................  .................  ....................  ....................  1,899.4 (1,180.5)
----------------------------------------------------------------------------------------------------------------


  Table 2--Occupancy and Ownership of Riparian Lands Adjacent to the Designated Critical Habitat Units for the
                                              Slabside Pearlymussel
----------------------------------------------------------------------------------------------------------------
                                                                            Federal, State,
   Unit          Location            Occupied        Private ownership       County, City       Total length rkm
                                                        rkm  (rmi)       ownership rkm  (rmi)        (rmi)
----------------------------------------------------------------------------------------------------------------
SP1.......  North Fork Holston  Yes..............           66.4 (41.3)             0.9 (0.5)        67.3 (41.8)
             River, VA.
SP2.......  Middle Fork         Yes..............           89.0 (55.3)                     0        89.0 (55.3)
             Holston River, VA.
SP3.......  Big Moccasin        Yes..............           33.1 (20.6)                     0        33.1 (20.6)
             Creek, VA.
SP4.......  Clinch River, TN,   Yes..............         256.3 (159.2)             6.4 (4.0)      262.7 (163.2)
             VA.
SP5.......  Powell River, TN,   Yes..............          152.4 (94.7)             0.3 (0.2)       152.7 (94.9)
             VA.
SP6.......  Nolichucky River,   Yes..............           50.9 (31.6)             0.9 (0.6)        51.9 (32.2)
             TN.
SP7.......  Hiwassee River, TN  Yes..............                     0           24.4 (15.2)        24.4 (15.2)
SP8.......  Sequatchie River,   Yes..............          151.5 (94.1)                     0       151.5 (94.1)
             TN.
SP9.......  Paint Rock River,   Yes..............          119.2 (74.1)             5.8 (3.6)       125.0 (77.7)
             AL.
SP10......  Elk River, AL, TN.  Yes..............         162.8 (101.2)             1.5 (0.9)      164.3 (102.1)
SP11......  Bear Creek, AL, MS  Yes..............           36.3 (22.5)             6.1 (3.8)        42.4 (26.3)
SP12......  Duck River, TN....  Yes..............         284.0 (176.5)           63.5 (39.4)      347.5 (215.9)
SP13......  Buffalo River, TN.  Yes..............           50.0 (31.0)                     0        50.0 (31.0)
                               ---------------------------------------------------------------------------------
    Total.  ..................  .................  ....................  ....................    1,561.8 (970.3)
----------------------------------------------------------------------------------------------------------------

    Eleven critical habitat units designated for the fluted 
kidneyshell, slabside pearlymussel, or both species are currently 
designated as critical habitat under the Act for other species, 
including the purple bean (Villosa perpurpurea), oyster mussel, 
Cumberlandian combshell, Cumberland elktoe (Alasmidonta atropurpurea), 
rough rabbitsfoot, rabbitsfoot, slender chub (Erimystax cahni), and 
yellowfin madtom (Noturus flavipinnis) (42 FR 45526, 78 FR 57076, 42 FR 
47840, 69 FR 53136) (see Table 3). The designated units for the fluted 
kidneyshell and slabside pearlymussel completely or partially overlap 
existing units in the Powell, Clinch, Nolichucky, Big South Fork 
Cumberland, Duck, and Paint Rock Rivers and in the Buck, Rock, Indian, 
Copper, and Bear Creeks; however, the exact unit descriptions (lengths) 
differ due to mapping refinement since the earlier designations.
    Three critical habitat units designated for the fluted kidneyshell 
and slabside pearlymussel are currently designated under section 10(j) 
of the Act as NEPs for other species, including the yellowfin madtom in 
the North Fork Holston River, VA; and 15 mussels, 1 snail, and 5 fishes 
in the lower Holston and French Broad Rivers, TN (53 FR 29335, 72 FR 
52434, see Table 3).
    All of the critical habitat units designated for the fluted 
kidneyshell and slabside pearlymussel contain historical or extant 
records of federally listed or proposed species, except for the Wolf 
River and Town Branch and West Fork Obey River, TN (see Table 4).

[[Page 59567]]



    Table 3--Critical Habitat Units Designated for the Fluted Kidneyshell and Slabside Pearlymussel That Are
 Currently Designated or Proposed as Critical Habitat or Nonessential Experimental Populations (NEPs) for Other
                                            Federally Listed Species
----------------------------------------------------------------------------------------------------------------
                                                                    Nonessential
       Unit (Unit No.)            Species          Critical         experimental        Length of  overlap  rkm
                                                   habitat           population                  (rmi)
----------------------------------------------------------------------------------------------------------------
Buck Creek (FK4)............  Oyster mussel,   69 FR 53136....  ....................  61 (38)
                               Cumberlandian.
Rock Creek (FK5)............  Cumberland       69 FR 53136....  ....................  19 (12)
                               elktoe.
Big South Fork Cumberland     Oyster mussel,   69 FR 53136....  ....................  92 (57)
 River (FK7).                  Cumberlandian
                               combshell,
                               Cumberland
                               elktoe.
Indian Creek (FK10).........  Purple bean,     69 FR 53136....  ....................  7 (4)
                               Oyster mussel,
                               Cumberlandian
                               combshell,
                               Rough
                               rabbitsfoot.
North Fork Holston River      Yellowfin        ...............  53 FR 29335.........  58 (36)
 (FK12, SP1).                  madtom.
Copper Creek (FK15).........  Purple bean,     69 FR 53136, 42  ....................  21 (13), 56 (35), 56 (35)
                               Oyster mussel,   FR 45526, 42
                               Cumberlandian    FR 47840.
                               combshell,
                               Rough
                               rabbitsfoot,
                               Yellowfin
                               madtom.
Clinch River (FK16, SP4)....  Purple bean,     69 FR 53136, 42  ....................  263 (163), 263 (163), 263
                               Oyster mussel,   FR 45526, 42                           (163)
                               Cumberlandian    FR 47840.
                               combshell,
                               Rough
                               rabbitsfoot,
                               Slender chub,
                               Yellowfin
                               madtom.
Powell River (FK17, SP5)....  Purple bean,     69 FR 53136, 42  ....................  153 (95), 153 (95), 153
                               Cumberlandian    FR 45526, 42                           (95)
                               combshell,       FR 47840.
                               Oyster mussel,
                               Rough
                               rabbitsfoot,
                               Slender chub,
                               Yellowfin
                               madtom.
Nolichucky River (FK18, SP6)  Oyster mussel,   69 FR 53136....  ....................  8 (5)
                               Cumberlandian
                               combshell.
Holston River (FK19)........  15 Mussels, 1    ...............  72 FR 52434.........  85 (53)
                               Snail, and 5
                               Fishes.
French Broad River (FK20)...  15 Mussels, 1    ...............  72 FR 52434.........  56 (35)
                               Snail, and 5
                               Fishes.
Paint Rock River (SP9)......  Rabbitsfoot....  78 FR 57076....  ....................  81 (50)
Bear Creek, (SP11)..........  Oyster mussel,   69 FR 53136, 78  ....................  42 (26), 42 (26)
                               Cumberlandian    FR 57076.
                               combshell,
                               Rabbitsfoot.
Duck River (FK23, SP12).....  Oyster mussel,   69 FR 53136, 78  ....................  74 (46), 235 (146)
                               Cumberlandian    FR 57076.
                               combshell,
                               Rabbitsfoot.
Critical Habitat Overlap....  ...............  ...............  ....................  1,017 (631)
NEP Overlap.................  ...............  ...............  ....................  199 (124)
                             -----------------------------------------------------------------------------------
    Total Overlap...........  ...............  ...............  ....................  1,216 (755)
----------------------------------------------------------------------------------------------------------------
Note: For those units with critical habitat designations for more than one species, the critical habitat unit
  with the longest length of overlap was used to calculate the total overlap (e.g., Duck River is critical
  habitat for the oyster mussel (74 rkm) and rabbitsfoot (235 rkm). The designated units for the fluted
  kidneyshell and slabside pearlymussel completely or partially overlap existing units in the Powell, Clinch,
  Nolichucky, Big South Fork Cumberland, Duck, and Paint Rock Rivers and in the Buck, Rock, Indian, Copper, and
  Bear Creeks; however, the exact unit descriptions (lengths) differ due to mapping refinement since the earlier
  designations.


 Table 4--Other Federally Listed or Proposed Species With Historical or
Extant Records From the Designated Critical Habitat Unit Streams for the
              Fluted Kidneyshell and Slabside Pearlymussel
------------------------------------------------------------------------
 
------------------------------------------------------------------------
       Unit             Location         Federally Listed or Proposed
                                                Species Present
------------------------------------------------------------------------
FK1...............  Horse Lick        Cumberland bean.  Villosa
                     Creek, KY.                          trabalis.
                                      littlewing        Pegias fabula.
                                       pearlymussel.
FK2...............  Middle Fork       Cumberland bean.  Villosa
                     Rockcastle                          trabalis.
                     River, KY.
FK3...............  Rockcastle        Cumberland bean.  Villosa
                     River, KY.                          trabalis.
                                      Cumberlandian     Epioblasma
                                       combshell.        brevidens.
                                      littlewing        Pegias fabula.
                                       pearlymussel.
                                      oyster mussel...  Epioblasma
                                                         capsaeformis.
FK4...............  Buck Creek, KY..  Cumberland bean.  Villosa
                                                         trabalis.
                                      Cumberlandian     Epioblasma
                                       combshell.        brevidens.
                                      littlewing        Pegias fabula.
                                       pearlymussel.
                                      oyster mussel...  Epioblasma
                                                         capsaeformis.
                                      snuffbox........  Epioblasma
                                                         triquetra.
                                      yellow blossom..  Epioblasma
                                                         florentina
                                                         florentina.
FK5...............  Rock Creek, KY..  Cumberland        Alasmidonta
                                       elktoe.           atropurpurea.
FK6...............  Little South      Cumberland bean.  Villosa
                     Fork Cumberland                     trabalis.
                     River, KY.
                                      littlewing        Pegias fabula.
                                       pearlymussel.
                                      oyster mussel...  Epioblasma
                                                         capsaeformis.
                                      snuffbox........  Epioblasma
                                                         triquetra.
                                      palezone shiner.  Notropis
                                                         albizonatus.

[[Page 59568]]

 
FK7...............  Big South Fork    Cumberland bean.  Villosa
                     Cumberland                          trabalis.
                     River, KY.
                                      Cumberlandian     Epioblasma
                                       combshell.        brevidens.
                                      Cumberland        Alasmidonta
                                       elktoe.           atropurpurea.
                                      dromedary         Dromus dromas.
                                       pearlymussel.
                                      littlewing        Pegias fabula.
                                       pearlymussel.
                                      oyster mussel...  Epioblasma
                                                         capsaeformis.
                                      spectaclecase...  Cumberlandia
                                                         monodonta.
                                      tan riffleshell.  Epioblasma
                                                         florentina
                                                         walkeri (=E.
                                                         walkeri).
                                      duskytail darter  Etheostoma
                                                         percnurum.
FK8...............  Wolf River and    None............  ................
                     Town Branch, TN.
FK9...............  West Fork Obey    None............  ................
                     River, TN.
FK10..............  Indian Creek, VA  purple bean.....  Villosa
                                                         perpurpurea.
                                      tan riffleshell.  Epioblasma
                                                         florentina
                                                         walkeri (=E.
                                                         walkeri).
                                      rough             Quadrula
                                       rabbitsfoot.      cylindrica
                                                         strigillata.
FK11..............  Little River, VA  finerayed pigtoe  Fusconaia
                                                         cuneolus.
                                      littlewing        Pegias fabula.
                                       pearlymussel.
                                      oyster mussel...  Epioblasma
                                                         capsaeformis.
FK12, SP1.........  North Fork        littlewing        Pegias fabula.
                     Holston River,    pearlymussel.
                     VA.
                                      purple bean.....  Villosa
                                                         perpurpurea.
                                      rough             Quadrula
                                       rabbitsfoot.      cylindrica
                                                         strigillata.
                                      shiny pigtoe....  Fusconaia cor.
                                      snuffbox........  Epioblasma
                                                         triquetra.
                                      spotfin chub....  Erimonax
                                                         monachus.
FK13, SP2.........  Middle Fork       littlewing        Pegias fabula.
                     Holston River,    pearlymussel.
                     VA.
                                      shiny pigtoe....  Fusconaia cor.
                                      tan riffleshell.  Epioblasma
                                                         florentina
                                                         walkeri (=E.
                                                         walkeri).
                                      yellow blossom..  Epioblasma
                                                         florentina
                                                         florentina.
                                      spotfin chub....  Erimonax
                                                         monachus.
FK14, SP3.........  Big Moccasin      finerayed pigtoe  Fusconaia
                     Creek, VA.                          cuneolus.
                                      littlewing        Pegias fabula.
                                       pearlymussel.
                                      oyster mussel...  Epioblasma
                                                         capsaeformis.
                                      rough             Quadrula
                                       rabbitsfoot.      cylindrica
                                                         strigillata.
FK15..............  Copper Creek, VA  finerayed pigtoe  Fusconaia
                                                         cuneolus.
                                      littlewing        Pegias fabula.
                                       pearlymussel.
                                      oyster mussel...  Epioblasma
                                                         capsaeformis.
                                      purple bean.....  Villosa
                                                         perpurpurea.
                                      rough             Quadrula
                                       rabbitsfoot.      cylindrica
                                                         strigillata.
                                      shiny pigtoe....  Fusconaia cor.
                                      duskytail darter  Etheostoma
                                                         percnurum.
                                      yellowfin madtom  Noturus
                                                         flavipinnis.
FK16, SP4.........  Clinch River,     Appalachian       Quadrula sparsa.
                     TN, VA.           monkeyface.
                                      birdwing          Lemiox rimosus.
                                       pearlymussel.
                                      cracking          Hemistena lata.
                                       pearlymussel.
                                      Cumberland bean.  Villosa
                                                         trabalis.
                                      Cumberlandian     Epioblasma
                                       combshell.        brevidens.
                                      Cumberland        Quadrula
                                       monkeyface.       intermedia.
                                      dromedary         Dromus dromas.
                                       pearlymussel.
                                      fanshell........  Cyprogenia
                                                         stegaria.
                                      finerayed pigtoe  Fusconaia
                                                         cuneolus.
                                      green blossom     Epioblasma
                                       pearlymussel.     torulosa
                                                         gubernaculum.
                                      littlewing        Pegias fabula.
                                       pearlymussel.
                                      oyster mussel...  Epioblasma
                                                         capsaeformis.
                                      pink mucket.....  Lampsilis
                                                         abrupta.
                                      purple bean.....  Villosa
                                                         perpurpurea.
                                      rayed bean......  Villosa fabalis.
                                      rough pigtoe....  Pleurobema
                                                         plenum.
                                      rough             Quadrula
                                       rabbitsfoot.      cylindrica
                                                         strigillata.
                                      sheepnose.......  Plethobasus
                                                         cyphyus.
                                      shiny pigtoe....  Fusconaia cor.
                                      snuffbox........  Epioblasma
                                                         triquetra.
                                      spectaclecase...  Cumberlandia
                                                         monodonta.
                                      tan riffleshell.  Epioblasma
                                                         florentina
                                                         walkeri (=E.
                                                         walkeri).
                                      yellow blossom..  Epioblasma
                                                         florentina
                                                         florentina.
                                      pygmy madtom....  Noturus
                                                         stanauli.
                                      slender chub....  Erimystax cahni.
FK17, SP5.........  Powell River,     Appalachian       Quadrula sparsa.
                     TN, VA.           monkeyface.
                                      birdwing          Lemiox rimosus.
                                       pearlymussel.
                                      cracking          Hemistena lata.
                                       pearlymussel.

[[Page 59569]]

 
                                      Cumberlandian     Epioblasma
                                       combshell.        brevidens.
                                      Cumberland        Quadrula
                                       monkeyface.       intermedia.
                                      dromedary         Dromus dromas.
                                       pearlymussel.
                                      finerayed pigtoe  Fusconaia
                                                         cuneolus.
                                      green blossom     Epioblasma
                                       pearlymussel.     torulosa
                                                         gubernaculum.
                                      oyster mussel...  Epioblasma
                                                         capsaeformis.
                                      purple bean.....  Villosa
                                                         perpurpurea.
                                      rayed bean......  Villosa fabalis.
                                      rough             Quadrula
                                       rabbitsfoot.      cylindrica
                                                         strigillata.
                                      sheepnose.......  Plethobasus
                                                         cyphyus.
                                      shiny pigtoe....  Fusconaia cor.
                                      snuffbox........  Epioblasma
                                                         triquetra.
                                      spectaclecase...  Cumberlandia
                                                         monodonta.
                                      yellow blossom..  Epioblasma
                                                         florentina
                                                         florentina.
                                      slender chub....  Erimystax cahni.
                                      yellowfin madtom  Noturus
                                                         flavipinnis.
FK18, SP6.........  Nolichucky        Cumberlandian     Epioblasma
                     River, TN.        combshell.        brevidens.
                                      green blossom     Epioblasma
                                       pearlymussel.     torulosa
                                                         gubernaculum.
                                      oyster mussel...  Epioblasma
                                                         capsaeformis.
                                      rayed bean......  Villosa fabalis.
                                      spectaclecase...  Cumberlandia
                                                         monodonta.
                                      snail darter....  Percina tanasi.
FK19..............  Holston River,    Appalachian       Quadrula sparsa.
                     TN.               Monkeyface.
                                      birdwing          Lemiox rimosus.
                                       pearlymussel.
                                      cracking          Hemistena lata.
                                       pearlymussel.
                                      Cumberlandian     Epioblasma
                                       combshell.        brevidens.
                                      Cumberland        Quadrula
                                       monkeyface.       intermedia.
                                      dromedary         Dromus dromas.
                                       pearlymussel.
                                      green blossom     Epioblasma
                                       pearlymussel.     torulosa
                                                         gubernaculum.
                                      oyster mussel...  Epioblasma
                                                         capsaeformis.
                                      pink mucket.....  Lampsilis
                                                         abrupta.
                                      ring pink.......  Obovaria retusa.
                                      sheepnose.......  Plethobasus
                                                         cyphyus.
                                      snuffbox........  Epioblasma
                                                         triquetra.
                                      spectaclecase...  Cumberlandia
                                                         monodonta.
                                      tan riffleshell.  Epioblasma
                                                         florentina
                                                         walkeri (=E.
                                                         walkeri).
                                      turgid blossom    Epioblasma
                                       pearlymussel.     turgidula.
                                      white wartyback.  Plethobasus
                                                         cicatricosus.
                                      yellow blossom..  Epioblasma
                                                         florentina
                                                         florentina.
                                      slender chub....  Erimystax cahni.
                                      snail darter....  Percina tanasi.
FK20..............  French Broad      birdwing          Lemiox rimosus.
                     River, TN.        pearlymussel.
                                      cracking          Hemistena lata.
                                       pearlymussel.
                                      dromedary         Dromus dromas.
                                       pearlymussel.
                                      fanshell........  Cyprogenia
                                                         stegaria.
                                      orangefoot        Plethobasus
                                       pimpleback.       cooperianus.
                                      oyster mussel...  Epioblasma
                                                         capsaeformis.
                                      pink mucket.....  Lampsilis
                                                         abrupta.
                                      ring pink.......  Obovaria retusa.
                                      rough pigtoe....  Pleurobema
                                                         plenum.
                                      sheepnose.......  Plethobasus
                                                         cyphyus.
                                      shiny pigtoe....  Fusconaia cor.
                                      tubercled         Epioblasma
                                       blossom           torulosa
                                       pearlymussel.     torulosa.
                                      yellow blossom..  Epioblasma
                                                         florentina
                                                         florentina.
                                      snail darter....  Percina tanasi.
FK21, SP7.........  Hiwassee River,   Appalachian       Quadrula sparsa.
                     TN.               monkeyface.
                                      Cumberland bean.  Villosa
                                                         trabalis.
                                      dromedary         Dromus dromas.
                                       pearlymussel.
                                      orangefoot        Plethobasus
                                       pimpleback.       cooperianus.
                                      oyster mussel...  Epioblasma
                                                         capsaeformis.
                                      rough pigtoe....  Pleurobema
                                                         plenum.
                                      sheepnose.......  Plethobasus
                                                         cyphyus.
                                      tan riffleshell.  Epioblasma
                                                         florentina
                                                         walkeri (=E.
                                                         walkeri).
                                      tubercled         Epioblasma
                                       blossom           torulosa
                                       pearlymussel.     torulosa.
                                      yellow blossom..  Epioblasma
                                                         florentina
                                                         florentina.
SP8...............  Sequatchie        Anthony's         Athearnia
                     River, TN.        riversnail.       anthonyi.
                                      snuffbox........  Epioblasma
                                                         triquetra.
                                      spectaclecase...  Cumberlandia
                                                         monodonta.
                                      snail darter....  Percina tanasi.
SP9...............  Paint Rock        Alabama           Lampsilis
                     River, AL.        lampmussel.       virescens.

[[Page 59570]]

 
                                      Cumberland bean.  Villosa
                                                         trabalis.
                                      Cumberlandian     Epioblasma
                                       combshell.        brevidens.
                                      finerayed pigtoe  Fusconaia
                                                         cuneolus.
                                      oyster mussel...  Epioblasma
                                                         capsaeformis.
                                      pale lilliput...  Toxolasma
                                                         cylindrellus.
                                      pink mucket.....  Lampsilis
                                                         abrupta.
                                      shiny pigtoe....  Fusconaia cor.
                                      snuffbox........  Epioblasma
                                                         triquetra.
                                      yellow blossom..  Epioblasma
                                                         florentina
                                                         florentina.
                                      palezone shiner.  Notropis
                                                         albizonatus.
                                      snail darter....  Percina tanasi.
                                      rabbitsfoot.....  Quadrula
                                                         cylindrica
                                                         cylindrica.
FK22, SP10........  Elk River, AL,    Alabama           Lampsilis
                     TN.               lampmussel.       virescens.
                                      birdwing          Lemiox rimosus.
                                       pearlymussel.
                                      cracking          Hemistena lata.
                                       pearlymussel.
                                      Cumberlandian     Epioblasma
                                       combshell.        brevidens.
                                      Cumberland        Quadrula
                                       monkeyface.       intermedia.
                                      dromedary         Dromus dromas.
                                       pearlymussel.
                                      fanshell........  Cyprogenia
                                                         stegaria.
                                      finerayed pigtoe  Fusconaia
                                                         cuneolus.
                                      littlewing        Pegias fabula.
                                       pearlymussel.
                                      pale lilliput...  Toxolasma
                                                         cylindrellus.
                                      rabbitsfoot.....  Quadrula
                                                         cylindrica
                                                         cylindrica.
                                      rayed bean......  Villosa fabalis.
                                      shiny pigtoe....  Fusconaia cor.
                                      snuffbox........  Epioblasma
                                                         triquetra.
                                      spectaclecase...  Cumberlandia
                                                         monodonta.
                                      tan riffleshell.  Epioblasma
                                                         florentina
                                                         walkeri (=E.
                                                         walkeri).
                                      tubercled         Epioblasma
                                       blossom           torulosa
                                       pearlymussel.     torulosa.
                                      turgid blossom    Epioblasma
                                       pearlymussel.     turgidula.
                                      yellow blossom..  Epioblasma
                                                         florentina
                                                         florentina.
                                      boulder darter..  Etheostoma
                                                         wapiti.
                                      snail darter....  Percina tanasi.
SP11..............  Bear Creek, AL,   Alabama           Lampsilis
                     MS.               lampmussel.       virescens.
                                      Cumberlandian     Epioblasma
                                       combshell.        brevidens.
                                      oyster mussel...  Epioblasma
                                                         capsaeformis.
                                      pink mucket.....  Lampsilis
                                                         abrupta.
                                      snuffbox........  Epioblasma
                                                         triquetra.
                                      turgid blossom    Epioblasma
                                       pearlymussel.     turgidula.
                                      yellow blossom..  Epioblasma
                                                         florentina
                                                         florentina.
                                      rabbitsfoot.....  Quadrula
                                                         cylindrica
                                                         cylindrica.
FK23, SP12........  Duck River, TN..  birdwing          Lemiox rimosus.
                                       pearlymussel.
                                      clubshell.......  Pleurobema
                                                         clava.
                                      cracking          Hemistena lata.
                                       pearlymussel.
                                      Cumberlandian     Epioblasma
                                       combshell.        brevidens.
                                      Cumberland        Quadrula
                                       monkeyface.       intermedia.
                                      littlewing        Pegias fabula.
                                       pearlymussel.
                                      oyster mussel...  Epioblasma
                                                         capsaeformis.
                                      pale lilliput...  Toxolasma
                                                         cylindrellus.
                                      pink mucket.....  Lampsilis
                                                         abrupta.
                                      rayed bean......  Villosa fabalis.
                                      sheepnose.......  Plethobasus
                                                         cyphyus.
                                      snuffbox........  Epioblasma
                                                         triquetra.
                                      spectaclecase...  Cumberlandia
                                                         monodonta.
                                      tan riffleshell.  Epioblasma
                                                         florentina
                                                         walkeri (=E.
                                                         walkeri).
                                      tubercled         Epioblasma
                                       blossom           torulosa
                                       pearlymussel.     torulosa.
                                      turgid blossom    Epioblasma
                                       pearlymussel.     turgidula.
                                      winged mapleleaf  Quadrula
                                                         fragosa.
                                      yellow blossom..  Epioblasma
                                                         florentina
                                                         florentina.
                                      pygmy madtom....  Noturus
                                                         stanauli.
                                      rabbitsfoot.....  Quadrula
                                                         cylindrica
                                                         cylindrica.
FK24, SP13........  Buffalo River,    pale lilliput...  Toxolasma
                     TN.                                 cylindrellus.
                                      spotfin chub....  Erimonax
                                                         monachus.
                                      rabbitsfoot.....  Quadrula
                                                         cylindrica
                                                         cylindrica.
------------------------------------------------------------------------

    For each stream reach designated as a critical habitat unit, the 
upstream and downstream boundaries are described generally below. More 
precise definitions are provided in the Regulation Promulgation section 
at the

[[Page 59571]]

end of this final rule. For a discussion of the status and distribution 
of the fluted kidneyshell and slabside pearlymussel for each critical 
habitat unit, refer to the final listing rule published elsewhere in 
today's Federal Register.

Fluted Kidneyshell and Slabside Pearlymussel 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 must contain PBFs which are (1) essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For those units occupied by 
either the fluted kidneyshell, slabside pearlymussel, or both species, 
we describe the principal PBFs essential to the conservation of the 
species and the special management considerations or protections that 
may be needed for each unit below.
    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 those units unoccupied by the fluted kidneyshell, we are 
designating these units because we have determined that they are 
essential for the conservation of the species due to the need to re-
establish the species within other portions of its historical range in 
order to reduce threats from stochastic events.
    For four of the units (Big Moccasin Creek; Hiwassee, Elk, and 
Buffalo Rivers), we are designating critical habitat for the slabside 
pearlymussel under prong one of the Act (occupied), while at the same 
time designating the unit under prong two of the Act for the fluted 
kidneyshell species (unoccupied). Therefore, the principal PBFs and 
special management considerations or protections given for these units 
only apply to the species for which the unit is occupied critical 
habitat (slabside pearlymussel).

Unit FK1: Horse Lick Creek, Rockcastle and Jackson Counties, Kentucky

    Unit FK1 encompasses approximately 19 rkm (12 rmi) of Horse Lick 
Creek, in Rockcastle and Jackson Counties, KY. It includes the mainstem 
of Horse Lick Creek from its confluence with the Rockcastle River 
upstream to Clover Bottom Creek. The unit is within the Cumberland 
River system and is critical habitat for the fluted kidneyshell. This 
unit is included in the geographical area occupied by the fluted 
kidneyshell at the time of listing. This unit is located almost 
entirely on private lands; however, approximately 16 rkm (10 rmi) are 
federal lands within the DBNF. Land and resource management decisions 
and activities within the DBNF are guided by DBNF's LRMP (USFS 2004a, 
pp. 1-14).
    The channel within Unit FK1 is relatively stable, with an abundance 
of riffle habitats (PCE 1), with relatively silt-free sand and gravel 
substrates (PCE 2), and adequate instream flows (PCE 3). A diverse fish 
fauna, including fish host(s) for the fluted kidneyshell, are known 
from this unit (PCE 5).
    Within Unit FK1, the fluted kidneyshell and its habitat may require 
special management considerations or protection to address potential 
adverse effects associated with legacy coal mines and coal mining 
activities, silviculture-related activities, natural gas and oil 
exploration activities in headwater reaches, illegal off-road vehicle 
use and other recreational activities, and nonpoint source pollution 
originating in headwater reaches.

Unit FK2: Middle Fork Rockcastle River, Jackson County, Kentucky

    Unit FK2 includes 12.5 rkm (7.7 rmi) of the Middle Fork Rockcastle 
River from its confluence with the Rockcastle River upstream to its 
confluence with Indian Creek and Laurel Fork in Jackson County, KY. The 
unit is within the Cumberland River system and is occupied critical 
habitat for the fluted kidneyshell. About half of this unit 
(approximately 6 rkm (4 rmi)) is in public ownership (DBNF), and half 
is in private ownership. Land and resource management decisions and 
activities within the DBNF are guided by DBNF's LRMP (USFS 2004a, pp. 
1-14).
    The channel within Unit FK2 is relatively stable and has an 
abundance of riffle habitats (PCE 1), with relatively silt-free sand 
and gravel substrates (PCE 2), and adequate instream flows (PCE 3).
    Within this unit, the fluted kidneyshell and its habitat may 
require special management considerations or protection to address 
potential adverse effects caused by resource extraction (coal mining, 
silviculture, natural gas and oil exploration activities), agricultural 
activities (livestock), lack of adequate riparian buffers, construction 
and maintenance of State and county roads, illegal off-road vehicle 
use, nonpoint source pollution arising from a wide variety of human 
activities, and potentially canopy loss caused by infestations of the 
hemlock woolly adelgid, Adelges tsugae, an invasive pest threatening 
eastern hemlock trees (Tsuga canadensis) in the eastern United States. 
Hemlocks are an important component of riparian vegetation throughout 
the range of the two mussels.

Unit FK3: Rockcastle River, Pulaski, Laurel, and Rockcastle Counties, 
Kentucky

    Unit FK3 includes approximately 70 rkm (43 rmi) of the Rockcastle 
River from the backwaters of Lake Cumberland near its confluence with 
Cane Creek along the Laurel and Pulaski County line, KY, upstream to 
its confluence with Horse Lick Creek along the Laurel and Rockcastle 
County line, KY. The unit is within the Cumberland River system and is 
considered unoccupied by the fluted kidneyshell at the time of listing, 
but within the species' historical range. Live fluted kidneyshell have 
not been collected within Unit FK3 since 1911; however, it persists in 
adjacent tributaries such as Horse Lick Creek and shell material has 
been found as recently as 1985 (Wilson and Clark 1914 and Thompson 1985 
in Cicerello 1993, p. 12). In 2010, surveys of the Rockcastle River 
showed that the river had a diverse mussel fauna, including the 
federally endangered Cumberland bean (McGregor 2010, unpubl. data).
    We consider this unit essential for the conservation of the fluted 
kidneyshell due to the need to re-establish the species within other 
portions of its historical range in order to reduce threats from 
stochastic events. Therefore, this unit is designated as unoccupied 
critical habitat for the fluted kidneyshell. A portion of this unit 
(approximately 12 rkm (7 rmi)) is in private ownership, but the 
majority is in public ownership (DBNF). Land and resource management 
decisions and activities within the DBNF are guided by DBNF's LRMP 
(USFS 2004a, pp. 1-14).

Unit FK4: Buck Creek, Pulaski County, Kentucky

    Unit FK4 includes approximately 61 rkm (38 rmi) of Buck Creek from 
State Route 192 upstream to Route 328, Pulaski County, KY. The unit is 
within the Cumberland River basin and is critical habitat for the 
fluted kidneyshell. This unit is included in the geographical area 
occupied by the species at the time of listing. A portion of this unit 
(1.3 rkm (0.8 rmi)) is in public ownership (DBNF), but the majority is 
in private ownership. Land and resource management decisions and 
activities within the DBNF are guided by DBNF's LRMP (USFS 2004a, pp. 
1-

[[Page 59572]]

14). The unit completely overlaps existing critical habitat for the 
oyster mussel and Cumberlandian combshell (69 FR 53136).
    The channel within Unit FK4 is relatively stable, with suitable 
instream habitat (PCE 1). There is an abundance of riffle habitats (PCE 
1), with relatively silt-free sand and gravel substrates (PCE 2), and 
adequate instream flows (PCE 3). A diverse fish fauna, including fish 
host(s) for the fluted kidneyshell, are known from this unit (PCE 5).
    Within this unit, the fluted kidneyshell and its habitat may 
require special management considerations or protection to address 
potential adverse effects associated with instream gravel mining, 
silviculture-related activities, illegal off-road vehicle use and other 
recreational activities, and nonpoint source pollution from 
agricultural and developmental activities.

Unit FK5: Rock Creek, McCreary County, Kentucky

    Unit FK5 includes approximately 19 rkm (12 rmi) of Rock Creek from 
its confluence with White Oak Creek upstream to the low water crossing 
at rkm 25.6 (rmi 15.9) in McCreary County, KY. The unit is within the 
Cumberland River system and is critical habitat for the fluted 
kidneyshell. This unit is included in the geographical area occupied by 
the species at the time of listing. A portion of this unit (1.5 rkm 
(0.9 rmi)) is in private ownership, but the majority is in public 
ownership (DBNF). Land and resource management decisions and activities 
within the DBNF are guided by DBNF's LRMP (USFS 2004a, pp. 1-14). The 
unit completely overlaps existing critical habitat for the Cumberland 
elktoe (69 FR 53136).
    The channel within Unit FK5 is relatively stable, with suitable 
instream habitat (PCE 1). There is an abundance of riffle habitats (PCE 
1), with relatively silt-free sand and gravel substrates (PCE 2), and 
adequate instream flows (PCE 3). A diverse fish fauna, including fish 
host(s) for the fluted kidneyshell, are known from this unit (PCE 5).
    Within this unit, the fluted kidneyshell and its habitat may 
require special management considerations or protection to address 
potential adverse effects caused by resource extraction (coal mining, 
silviculture, natural gas and oil exploration activities), agricultural 
activities (livestock), lack of adequate riparian buffers, construction 
and maintenance of State and county roads, illegal off-road vehicle 
use, nonpoint source pollution arising from a wide variety of human 
activities, and potentially canopy loss caused by infestations of the 
hemlock woolly adelgid.

Unit FK6: Little South Fork Cumberland River, McCreary and Wayne 
Counties, Kentucky

    Unit FK6 includes 65.5 rkm (40.7 rmi) of the Little South Fork 
Cumberland River from its confluence with the Big South Fork Cumberland 
River, where it is the dividing line between Wayne and McCreary 
Counties, upstream to its confluence with Dobbs Creek in Wayne County, 
KY. The unit is within the Cumberland River system and is critical 
habitat for the fluted kidneyshell. This unit is included in the 
geographical area occupied by the species at the time of listing. A 
portion of this unit (4.4 rkm (2.7 rmi)) is in public ownership (DBNF), 
but the majority is in private ownership. Land and resource management 
decisions and activities within the DBNF are guided by DBNF's LRMP 
(USFS 2004a, pp. 1-14).
    The channel within Unit FK6 is relatively stable, with an abundance 
of riffle habitats (PCE 1), relatively silt-free sand and gravel 
substrates (PCE 2), and adequate instream flows (PCE 3). A diverse fish 
fauna, including fish host(s) for the fluted kidneyshell, are known 
from this unit (PCE 5).
    Within this unit, the fluted kidneyshell and its habitat may 
require special management considerations or protection to address 
potential adverse effects caused by resource extraction (coal mining, 
silviculture, natural gas and oil exploration activities), agricultural 
activities (livestock), lack of adequate riparian buffers, construction 
and maintenance of State and county roads, illegal off-road vehicle 
use, nonpoint source pollution arising from a wide variety of human 
activities, and potentially canopy loss caused by infestations of the 
hemlock woolly adelgid.

Unit FK7: Big South Fork Cumberland River, Fentress, Morgan, and Scott 
Counties, Tennessee, and McCreary County, Kentucky

    Unit FK7 includes a combined total of approximately 92 rkm (57 rmi) 
of the Big South Fork of the Cumberland River, Clear Fork of the New 
River, and the New River in Tennessee and Kentucky. Unit FK7 includes 
approximately 45 rkm (28 rmi) of the Big South Fork Cumberland River 
from its confluence with Laurel Crossing Branch downstream of Big 
Shoals, McCreary County, KY, upstream to its confluence with Clear Fork 
and of the New River, Scott County, TN. This unit also includes 32.3 
rkm (20.0 rmi) of Clear Fork from its confluence with the Big South 
Fork and New River in Scott County, TN, upstream to its confluence with 
Crooked Creek along the Fentress and Morgan County line, TN. This unit 
also includes 14.7 rkm (9.1 rmi) of the New River from its confluence 
with the Big South Fork upstream to the Highway 27 Bridge crossing in 
Scott County, TN. The unit is within the Cumberland River system and is 
designated as critical habitat for the fluted kidneyshell. This unit is 
included in the geographical area occupied by the species at the time 
of listing. A portion of this unit (92 rkm (57 rmi)) has been 
designated as critical habitat for the Cumberlandian combshell, oyster 
mussel, and Cumberland elktoe (69 FR 53136).
    This unit is located almost entirely on federal lands within the 
BSFNRRA. Land and resource management decisions and activities within 
the BSFNRRA are guided by the National Park Service General Management 
Plan, Field Management Plan, and Draft Non-Federal Oil and Gas 
Management Plan (NPS 2005, entire; NPS 2006, pp. 1-12; NPS 2011, 
entire).
    The channel within Unit FK7 is relatively stable, with relatively 
silt-free sand and gravel substrates (PCE 2) and adequate instream 
flows (PCE 3). A diverse fish fauna, including fish host(s) for the 
fluted kidneyshell, are known from this unit (PCE 5).
    Within this unit, the fluted kidneyshell and its habitat may 
require special management considerations or protection to address 
potential adverse effects caused by resource extraction (coal mining, 
silviculture, natural gas and oil exploration activities), lack of 
adequate riparian buffers, construction and maintenance of roads, 
recreational horse riding, illegal off-road vehicle use, nonpoint 
source pollution arising from a wide variety of human activities, and 
potential canopy loss caused by infestations of the hemlock woolly 
adelgid.

Unit FK8: Wolf River and Town Branch, Pickett and Fentress Counties, 
Tennessee

    Unit FK8 includes 41.0 rkm (25.5 rmi) of the Wolf River from its 
inundation at Dale Hollow Lake in Pickett County, TN, upstream to its 
confluence with Delk Creek in Fentress County, TN, and 3.4 rkm (2.0 
rmi) of Town Branch from its confluence with Wolf River upstream to its 
headwaters in Pickett County, TN. The unit is within the Cumberland 
River system and is critical habitat for the fluted kidneyshell. This 
unit is included in the geographical area occupied by the species at 
the time of listing. A portion of this unit (6 rkm (4

[[Page 59573]]

rmi)) is in public ownership (U.S. Army Corps of Engineers lands 
adjacent to Dale Hollow Reservoir and Sgt. Alvin C. York State Historic 
Park), but the majority is in private ownership.
    The channel within Unit FK8 is relatively stable, with suitable 
instream habitat (PCE 1). There is an abundance of riffle habitats (PCE 
1), with relatively silt-free sand and gravel substrates (PCE 2) and 
adequate instream flows (PCE 3). A diverse fish fauna, including fish 
host(s) for the fluted kidneyshell, are known from this unit (PCE 5).
    Within this unit, the fluted kidneyshell and its habitat may 
require special management considerations or protection to address 
potential adverse effects associated with coal mining, silviculture-
related activities, natural gas and oil exploration activities in 
headwater reaches, agricultural activities (livestock), lack of 
adequate riparian buffers, construction and maintenance of State and 
county roads, off-road vehicle use and other recreational activities, 
nonpoint source pollution originating in headwater reaches, and 
potential canopy loss caused by infestations of the hemlock woolly 
adelgid.

Unit FK9: West Fork Obey River, Overton County, Tennessee

    Unit FK9 includes approximately 19 rkm (12 rmi) of the West Fork 
Obey River from the Highway 52 Bridge crossing upstream to its 
confluence with Dry Hollow Creek in Overton County, TN. The unit is 
within the Cumberland River system and is critical habitat for the 
fluted kidneyshell. This unit is included in the geographical area 
occupied by the species at the time of listing. This unit is located 
almost entirely on private land, except for any small amount that is 
publicly owned in the form of bridge crossings and road easements.
    The channel within Unit FK9 is relatively stable, with suitable 
instream habitat (PCE 1). There is an abundance of riffle habitats (PCE 
1), with relatively silt-free sand and gravel substrates (PCE 2), and 
adequate instream flows (PCE 3). A diverse fish fauna, including fish 
host(s) for the fluted kidneyshell, are known from this unit (PCE 5).
    Within this unit, the fluted kidneyshell and its habitat may 
require special management considerations or protection to address 
potential adverse effects associated with coal mining, silviculture-
related activities, natural gas and oil exploration activities in 
headwater reaches, off-road vehicle use and other recreational 
activities, agricultural activities (livestock), lack of adequate 
riparian buffers, construction and maintenance of State and county 
roads, nonpoint source pollution originating in headwater reaches, and 
potential canopy loss caused by infestations of the hemlock woolly 
adelgid.

Unit FK10: Indian Creek, Tazewell County, Virginia

    Unit FK10 includes 6.7 rkm (4.2 rmi) of Indian Creek from its 
confluence with the Clinch River upstream to the fourth Norfolk 
Southern Railroad crossing at Van Dyke in Tazewell County, VA. The unit 
is within the Tennessee River system and is critical habitat for the 
fluted kidneyshell. This unit is included in the geographical area 
occupied by the species at the time of listing. This unit is located 
almost entirely on private land, except for any small amount that is 
publicly owned in the form of bridge crossings and road easements. The 
unit completely overlaps critical habitat for the Cumberlandian 
combshell, rough rabbitsfoot, purple bean, and oyster mussel (69 FR 
53136).
    The channel within Unit FK10 is relatively stable, with suitable 
instream habitat (PCE 1). There is an abundance of riffle habitats (PCE 
1), with relatively silt-free sand and gravel substrates (PCE 2), and 
adequate instream flows (PCE 3). A diverse fish fauna, including fish 
hosts for the fluted kidneyshell, are known from this unit (PCE 5).
    Within this unit, the fluted kidneyshell and its habitat may 
require special management considerations or protection to address 
potential adverse effects associated with residential development, coal 
mining, silviculture-related activities, natural gas and oil 
exploration activities in headwater reaches, illegal off-road vehicle 
use and other recreational activities, and nonpoint source pollution 
originating in headwater reaches.

Unit FK11: Little River, Russell and Tazewell Counties, Virginia

    Unit FK11 includes approximately 50 rkm (31 rmi) of Little River 
from its confluence with the Clinch River in Russell County, VA, 
upstream to its confluence with Liberty and Maiden Spring Creeks in 
Tazewell County, VA. The unit is within the Tennessee River system and 
is critical habitat for the fluted kidneyshell. This unit is included 
in the geographical area occupied by fluted kidneyshell at the time of 
listing. This unit is located almost entirely on private land, except 
for any small amount that is publicly owned in the form of bridge 
crossings and road easements. The Nature Conservancy also owns a small 
portion of adjacent property.
    The channel within Unit FK11 is relatively stable, with suitable 
instream habitat (PCE 1). There is an abundance of riffle habitats (PCE 
1), with relatively silt-free sand and gravel substrates (PCE 2), and 
adequate instream flows (PCE 3). A diverse fish fauna, including fish 
hosts for the fluted kidneyshell and slabside pearlymussel, are known 
from this unit (PCE 5).
    Within this unit, the fluted kidneyshell and its habitats may 
require special management considerations or protection to address 
potential adverse effects associated with silviculture-related 
activities, lack of adequate riparian buffers, natural gas and oil 
exploration activities in headwater reaches, and nonpoint source 
pollution originating in headwater reaches.

Unit FK12 and SP1: North Fork Holston River, Smyth and Bland Counties, 
Virginia

    Unit FK12 and SP1 includes approximately 67 rkm (42 rmi) of the 
North Fork Holston River from its confluence with Beaver Creek, 
upstream of Saltville, in Smyth County, VA, upstream to Ceres, Bland 
County, VA. The unit is within the Tennessee River system and is 
critical habitat for the fluted kidneyshell and slabside pearlymussel. 
This unit is included in the geographical area occupied by both species 
at the time of listing. This unit is located almost entirely on private 
land, except for any small amount that is publicly owned in the form of 
bridge crossings, road easements, and a small portion that is adjacent 
to the George Washington and Jefferson National Forests. The Nature 
Conservancy and the Virginia Outdoors Foundation also own a small 
portion of adjacent property. A portion of this unit (58 rkm (36 rmi)) 
has been designated as a NEP for the yellowfin madtom (53 FR 29335).
    The channel within Unit FK12 and SP1 is relatively stable, with 
suitable instream habitat (PCE 1). There is an abundance of riffle 
habitats (PCE 1), with relatively silt-free sand and gravel substrates 
(PCE 2), and adequate instream flows (PCE 3). A diverse fish fauna, 
including fish hosts for the fluted kidneyshell and slabside 
pearlymussel, are known from this unit (PCE 5).
    Within this unit, the fluted kidneyshell, slabside pearlymussel, 
and their habitats may require special management considerations or 
protection to address potential adverse effects associated with 
agricultural activities, silviculture-related activities, natural gas 
and oil exploration activities in headwater reaches, lack of adequate 
riparian buffers, construction and maintenance of State and county 
roads,

[[Page 59574]]

and nonpoint source pollution originating in headwater reaches.

Unit FK13 and SP2: Middle Fork Holston River, Washington, Smyth, and 
Wythe Counties, Virginia

    Unit FK13 and SP2 includes approximately 89 rkm (55 rmi) of the 
Middle Fork Holston River from its inundation at South Holston Lake in 
Washington County, VA, upstream to its headwaters in Wythe County, VA. 
The unit is within the Tennessee River system and is critical habitat 
for the fluted kidneyshell and slabside pearlymussel. This unit is 
included in the geographical area occupied by both the fluted 
kidneyshell and slabside pearlymussel at the time of listing. This unit 
is located almost entirely on private land, except for any small amount 
that is publicly owned in the form of bridge crossings and road 
easements.
    The channel within Unit FK13 and SP2 is relatively stable, with 
suitable instream habitat (PCE 1). There is an abundance of riffle 
habitats (PCE 1), with relatively silt-free sand and gravel substrates 
(PCE 2), and adequate instream flows (PCE 3). A diverse fish fauna, 
including fish hosts for the fluted kidneyshell and slabside 
pearlymussel, are known from this unit (PCE 5).
    Within this unit, the fluted kidneyshell, slabside pearlymussel, 
and their habitats may require special management considerations or 
protection to address potential adverse effects associated with 
agricultural activities, lack of adequate riparian buffers, 
silviculture-related activities, and nonpoint source pollution.

Unit FK14 and SP3: Big Moccasin Creek, Scott and Russell Counties, 
Virginia

    Unit FK14 and SP3 includes approximately 33 rkm (21 rmi) of Big 
Moccasin Creek from the Highway 71 Bridge crossing in Scott County, VA, 
upstream to the Route 612 Bridge crossing near Collinwood in Russell 
County, VA. The unit is within the Tennessee River system and is 
critical habitat for the fluted kidneyshell and slabside pearlymussel. 
This unit is included in the geographical area occupied by slabside 
pearlymussel at the time of listing. This unit is considered unoccupied 
by the fluted kidneyshell, but within the species' historical range. 
Live fluted kidneyshell have not been collected in Big Moccasin Creek 
since the early 1900s (Ortmann 1918, p. 608). However, this unit is 
designated as critical habitat for the fluted kidneyshell because it is 
considered essential for the conservation of the species (see Criteria 
Used To Identify Critical Habitat above for our rationale). This unit 
is located almost entirely on private land, except for any small amount 
that is publicly owned in the form of bridge crossings and road 
easements.
    The channel within Unit FK14 and SP3 is relatively stable, with 
suitable instream habitat (PCE 1). There is an abundance of riffle 
habitats (PCE 1), with relatively silt-free sand and gravel substrates 
(PCE 2), and adequate instream flows (PCE 3). A diverse fish fauna, 
including fish hosts for the slabside pearlymussel, are known from this 
unit (PCE 5).
    Within this unit, the slabside pearlymussel and its habitats may 
require special management considerations or protection to address 
potential adverse effects associated with agricultural activities 
(livestock), lack of adequate riparian buffers, silviculture-related 
activities, natural gas and oil exploration activities in headwater 
reaches, illegal off-road vehicle use and other recreational 
activities, and nonpoint source pollution originating in headwater 
reaches.

Unit FK15: Copper Creek, Scott County, Virginia

    Unit FK15 includes 55.5 rkm (34.5 rmi) of Copper Creek from its 
confluence with the Clinch River upstream to the Highway 71 Bridge 
crossing in Scott County, VA. The unit is within the Tennessee River 
system and is critical habitat for the fluted kidneyshell. This unit is 
included in the geographical area occupied by the species at the time 
of listing. This unit is located almost entirely on private land, 
except for any small amount that is publicly owned in the form of 
bridge crossings and road easements. A portion of this unit (21 rkm (13 
rmi)) has been designated as critical habitat for the Cumberlandian 
combshell, rough rabbitsfoot, purple bean, and oyster mussel, and this 
unit (55.5 rkm (34.5 rmi)) also makes up a portion of the designated 
critical habitat for the yellowfin madtom (42 FR 45526, 42 FR 47840, 69 
FR 53136).
    The channel within Unit FK15 is relatively stable, with suitable 
instream habitat (PCE 1). There is an abundance of riffle habitats (PCE 
1), with relatively silt-free sand and gravel substrates (PCE 2), and 
adequate instream flows (PCE 3). A diverse fish fauna, including fish 
hosts for the fluted kidneyshell, are known from this unit (PCE 5).
    Within this unit, the fluted kidneyshell and its habitat may 
require special management considerations or protection to address 
potential adverse effects associated with agricultural activities 
(livestock), silviculture-related activities, lack of adequate riparian 
buffers, construction and maintenance of State and county roads, and 
nonpoint source pollution originating in headwater reaches.

Unit FK16 and SP4: Clinch River, Hancock County, Tennessee, and Scott, 
Russell, and Tazewell Counties, Virginia

    Unit FK16 and SP4 includes approximately 263 rkm (163 rmi) of the 
Clinch River from rkm 255 (rmi 159) immediately below Grissom Island in 
Hancock County, TN, upstream to its confluence with Indian Creek near 
Cedar Bluff, Tazewell County, VA. The unit is within the Tennessee 
River system and is critical habitat for the fluted kidneyshell and 
slabside pearlymussel. This unit is included in the geographical area 
occupied by both species at the time of listing. Approximately 6 rkm (4 
rmi) of this unit is in public ownership, including portions of the 
Kyles Ford State Managed Area, George Washington National Forest, 
Jefferson National Forest, Cleveland Barrens State Natural Area 
Preserve (SNAP), and the Pinnacle SNAP. The Nature Conservancy also 
owns a small portion of adjacent property. The unit completely overlaps 
critical habitat for the Cumberlandian combshell, rough rabbitsfoot, 
purple bean, and oyster mussel, and the entire length of this unit has 
been designated as critical habitat for the slender chub and yellowfin 
madtom (42 FR 45526, 42 FR 47840, 69 FR 53136).
    The channel within Unit FK16 and SP4 is relatively stable, with 
suitable instream habitat (PCE 1). There is an abundance of riffle 
habitats (PCE 1), with relatively silt-free sand and gravel substrates 
(PCE 2), and adequate instream flows (PCE 3). A diverse fish fauna, 
including fish hosts for the fluted kidneyshell and slabside 
pearlymussel, are known from this unit (PCE 5).
    Within this unit, the fluted kidneyshell, slabside pearlymussel, 
and their habitats may require special management considerations or 
protection to address potential adverse effects associated with coal 
mining, silviculture-related activities, natural gas and oil 
exploration activities in headwater reaches, agricultural activities 
(livestock), lack of adequate riparian buffers, construction and 
maintenance of State and county roads, and nonpoint source pollution 
originating in headwater reaches.

Unit FK17 and SP5: Powell River, Claiborne and Hancock Counties, 
Tennessee, and Lee County, Virginia

    Unit FK17 and SP5 includes approximately 153 rkm (95 rmi) of the

[[Page 59575]]

Powell River from the U.S. 25E Bridge in Claiborne County, TN, upstream 
to rkm 256 (rmi 159) (upstream of Rock Island in the vicinity of Pughs) 
in Lee County, VA. The unit is within the Tennessee River system and is 
critical habitat for the fluted kidneyshell and slabside pearlymussel. 
This unit is included in the geographical area occupied by both species 
at the time of listing. This unit is located almost entirely on private 
land, except for any small amount that is publicly owned in the form of 
bridge crossings, road easements, and a small portion that is adjacent 
to the Cedars SNAP. The Nature Conservancy also owns a small portion of 
adjacent property. The unit completely overlaps critical habitat for 
the Cumberlandian combshell, rough rabbitsfoot, purple bean, and oyster 
mussel, and the entire length of this unit has been designated as 
critical habitat for the slender chub and yellowfin madtom (42 FR 
45526, 42 FR 47840, 69 FR 53136).
    The channel within Unit FK17 and SP5 is relatively stable, with 
suitable instream habitat (PCE 1). There is an abundance of riffle 
habitats (PCE 1), with relatively silt-free sand and gravel substrates 
(PCE 2), and adequate instream flows (PCE 3). A diverse fish fauna, 
including fish hosts for the fluted kidneyshell and slabside 
pearlymussel, are known from this unit (PCE 5).
    Within this unit, the fluted kidneyshell, slabside pearlymussel, 
and their habitats may require special management considerations or 
protection to address potential adverse effects associated with coal 
mining, natural gas and oil exploration activities in headwater 
reaches, agricultural activities (livestock), lack of adequate riparian 
buffers, construction and maintenance of State and county roads, and 
nonpoint source pollution originating in headwater reaches.

Unit FK18 and SP6: Nolichucky River, Cocke, Hamblen, and Greene 
Counties, Tennessee

    Unit FK18 and SP6 includes approximately 52 rkm (32 rmi) of the 
Nolichucky River from rkm 14 (rmi 9), approximately 0.6 rkm (0.4 rmi) 
upstream of Enka Dam, where it divides Hamblen and Cocke Counties, TN, 
upstream to its confluence with Pigeon Creek, just upstream of the 
Highway 321 Bridge crossing, in Greene County, TN. The unit is within 
the Tennessee River system and is critical habitat for the fluted 
kidneyshell and slabside pearlymussel. This unit is included in the 
geographical area occupied by both species at the time of listing. The 
fluted kidneyshell population is a result of a successful 
reintroduction program implemented by TWRA and other conservation 
partners. This unit is located almost entirely on private land, except 
for any small amount that is publicly owned in the form of bridge 
crossings, road easements, and a small portion that is within Mullins 
Island Wildlife Management Area. A portion of this unit (8 rkm (5 rmi)) 
has been designated as a critical habitat for the oyster mussel and 
Cumberlandian combshell (69 FR 53136).
    The channel within Unit FK18 and SP6 is relatively stable, with 
suitable instream habitat (PCE 1). There is an abundance of riffle 
habitats (PCE 1), with relatively silt-free sand and gravel substrates 
(PCE 2), and adequate instream flows (PCE 3). A diverse fish fauna, 
including fish hosts for the slabside pearlymussel and the fluted 
kidneyshell, are known from this unit (PCE 5).
    Within this unit, the fluted kidneyshell, slabside pearlymussel, 
and their habitats may require special management considerations or 
protection to address potential adverse effects associated with 
agricultural activities, silviculture-related activities, rock mining, 
lack of adequate riparian buffers, construction and maintenance of 
State and county roads, and nonpoint source pollution originating in 
headwater reaches.

Unit FK19: Holston River, Knox, Grainger, and Jefferson Counties, 
Tennessee

    Unit FK19 includes approximately 85 rkm (53 rmi) of the Holston 
River from its confluence with the French Broad River in Knox County, 
TN, upstream to the base of Cherokee Dam at rkm 83.7 (rmi 52.3) along 
the Grainger and Jefferson County, TN, line. The unit is within the 
Tennessee River system. This unit is considered unoccupied by the 
fluted kidneyshell and slabside pearlymussel, but within the species' 
historical ranges. Live fluted kidneyshell have not been collected in 
the Holston River since the early 1900s (Ortmann 1918, p. 614). As 
discussed below, we consider Unit FK19 essential for the conservation 
of the fluted kidneyshell, but not the slabside pearlymussel, and so it 
is designated as critical habitat only for the fluted kidneyshell. This 
unit is located almost entirely on private land, except for any small 
amount that is publicly owned in the form of bridge crossings and road 
easements. The unit completely overlaps a designated nonessential 
experimental population for 15 mussels, 1 snail, and 5 fishes (72 FR 
52434).
    We consider this unit essential for the conservation of the fluted 
kidneyshell due to the need to re-establish the species within other 
portions of its historical range in order to reduce threats from 
stochastic events. Although live fluted kidneyshell have not been 
collected in the Holston River since the early 1900s (Ortmann 1918, p. 
614), the Tennessee Valley Authority (TVA) has improved conditions for 
aquatic species within this unit. Between 1988 and 1995, TVA 
implemented reservoir release improvements below Cherokee Dam on the 
Holston River. These improvements included the establishment of minimum 
flows and increasing the amount of dissolved oxygen in the tailwater 
below the reservoir (Scott et al. 1996, p. 21).
    The unit currently supports populations of three federally listed 
species (threatened snail darter and endangered pink mucket and 
sheepnose). In addition, other mussel species co-occur with these 
species along with a diverse fish fauna, including hosts for the fluted 
kidneyshell. These host fishes are bottom-dwelling species that are 
able to move into refugia of low flows during high discharges from the 
hydropower dam upstream. Therefore, the fluted kidneyshell glochidia 
may come into contact and infest the host fishes. The slabside 
pearlymussel and its host fishes are known from the Holston River 
drainage; however, hydropower operations make this habitat unsuitable 
for mid-water column fishes, such as the shiners that are hosts for the 
slabside pearlymussel (Layzer and Scott 2006, pp. 481, 488-9). 
Therefore, we are not designating Unit FK19 as critical habitat for the 
slabside pearlymussel at this time.

Unit FK20: French Broad River, Knox and Sevier Counties, Tennessee

    Unit FK20 includes approximately 56 rkm (35 rmi) of the French 
Broad River from its confluence with the Holston River in Knox County, 
TN, upstream to the base of Douglas Dam at rkm 51.7 (rmi 32.3) in 
Sevier County, TN. The unit is within the Tennessee River system. This 
unit is considered unoccupied by the fluted kidneyshell and slabside 
pearlymussel, but within the species' historical ranges. Fluted 
kidneyshell are only known from archaeological records in the French 
Broad River (Parmalee 1988 in Layzer and Scott 2006, pp. 481-482). As 
discussed below, we consider Unit FK20 essential for the conservation 
of the fluted kidneyshell, but not the slabside pearlymussel, and so it 
is designated as critical habitat only for

[[Page 59576]]

the fluted kidneyshell. This unit is located almost entirely on private 
land, except for any small amount that is publicly owned in the form of 
bridge crossings and road easements and a small portion that is within 
Forks of the River Wildlife Management Area. The unit completely 
overlaps a NEP for 15 mussels, 1 snail, and 5 fishes (72 FR 52434).
    We consider this unit essential for the conservation of the fluted 
kidneyshell due to the need to re-establish the species within other 
portions of its historical range in order to reduce threats from 
stochastic events. Fluted kidneyshell are only known from 
archaeological records in the French Broad River (Parmalee 1988 in 
Layzer and Scott 2006, pp. 481-482). However, between 1987 and 1995, 
TVA implemented reservoir release improvements below Douglas Dam on the 
French Broad River. These improvements included the establishment of 
minimum flows and increasing the amount of dissolved oxygen in the 
tailwater below the reservoir (Scott et al. 1996, pp. 11-12), improving 
conditions for the fluted kidneyshell and other aquatic species.
    The unit does currently support populations of the federally 
threatened snail darter and endangered pink mucket. In addition, other 
mussel species co-occur with these species and a diverse fish fauna, 
including hosts for the fluted kidneyshell. These host fishes are 
bottom-dwelling species that are able to move into refugia of low flows 
during high discharges from the hydropower dam upstream. Therefore, the 
fluted kidneyshell glochidia may come into contact and infest the host 
fishes. The slabside pearlymussel and its host fishes are known from 
the French Broad River drainage; however, hydropower operations make 
this habitat unsuitable for mid-water column fishes, such as the 
shiners that are hosts for the slabside pearlymussel (Layzer and Scott 
2006, pp. 481, 488-9). Therefore, we are not designating Unit FK20 as 
critical habitat for the slabside pearlymussel at this time.

Unit FK21 and SP7: Hiwassee River, Polk County, Tennessee

    Unit FK21 and SP7 includes approximately 24 rkm (15 rmi) of the 
Hiwassee River from the Highway 315 Bridge crossing upstream to the 
Highway 68 Bridge crossing in Polk County, TN. The unit is within the 
Tennessee River system and is critical habitat for the fluted 
kidneyshell and slabside pearlymussel. This unit is included in the 
geographical area occupied by slabside pearlymussel at the time of 
listing. This unit is considered unoccupied by the fluted kidneyshell 
at the time of listing, but within the species' historical range. 
Fluted kidneyshell are only known from archaeological records in the 
Hiwassee River (Parmalee and Bogan 1998, p. 205). This unit is 
considered essential for the conservation of the fluted kidneyshell 
(see Criteria Used To Identify Critical Habitat above for our 
rationale). A portion of this unit is considered a ``cut-off'' reach, 
because most of the water flow bypasses the reach through a tunnel from 
Apalachia Dam to the Apalachia powerhouse for the production of 
electricity. This unit is located entirely on federal lands within the 
Cherokee National Forest (CNF). Land and resource management decisions 
and activities within the CNF are guided by CNF's LRMP (USFS 2004b, pp. 
28-37, entire).
    The channel within Unit FK21 and SP7 has an abundance of riffle 
habitats (PCE 1), with relatively silt-free sand and gravel substrates 
(PCE 2). Diverse fish fauna, including fish hosts for the slabside 
pearlymussel, are known from this unit (PCE 5).
    Within this unit, the slabside pearlymussel and its habitats may 
require special management considerations or protection to address 
potential adverse effects associated with silviculture-related 
activities, nonpoint source pollution, water diversion through 
Apalachia tunnel, and potential canopy loss caused by infestations of 
the hemlock woolly adelgid. Another threat to the species and their 
habitat which may require special management of the PCEs is the 
potential for significant changes in the existing flow regime and water 
quality due to upstream impoundment. As discussed in the final listing 
rule published elsewhere in today's Federal Register under Summary of 
Factors Affecting the Species, ``Impoundments,'' mollusk declines below 
dams are associated with changes and fluctuation in flow regime, 
scouring and erosion, reduced dissolved oxygen levels and water 
temperatures, and changes in resident fish assemblages. These 
alterations can cause mussel declines for many miles below the dam.

Unit SP8: Sequatchie River, Marion, Sequatchie, and Bledsoe Counties, 
Tennessee

    Unit SP8 includes approximately 151 rkm (94 rmi) of the Sequatchie 
River from the Highway 41, 64, 72, 2 Bridge crossing in Marion County, 
TN, upstream to the Ninemile Cross Road Bridge crossing in Bledsoe 
County, TN. The unit is within the Tennessee River system. This unit is 
included in the geographical area occupied by slabside pearlymussel at 
the time of listing. This unit is located almost entirely on private 
land, except for any small amount that is publicly owned in the form of 
bridge crossings and road easements.
    Unit SP8 has an abundance of riffle habitats (PCE 1), with 
relatively silt-free sand and gravel substrates (PCE 2), and adequate 
instream flows (PCE 3). A diverse fish fauna, including fish hosts for 
the slabside pearlymussel, are known from this unit (PCE 5).
    Within this unit, the slabside pearlymussel and its habitat may 
require special management considerations or protection to address 
potential adverse effects caused by agricultural activities, coal 
mining, silvicultural activities, lack of adequate riparian buffers, 
construction and maintenance of State and county roads, and nonpoint 
source pollution arising from a wide variety of human activities.

Unit SP9: Paint Rock River, Madison, Marshall, and Jackson Counties, 
Alabama

    Unit SP9 includes approximately 86 rkm (53 rmi) of the Paint Rock 
River from the Highway 431 Bridge crossing along the Madison and 
Marshall County line, AL, upstream to the confluence of Estill Fork and 
Hurricane Creek in Jackson County, AL. The unit includes approximately 
11 rkm (7 rmi) of Larkin Fork from its confluence with the Paint Rock 
River upstream to its confluence with Bear Creek, in Jackson County, 
AL; approximately 13 rkm (8 rmi) of Estill Fork from its confluence 
with the Paint Rock River upstream to its confluence with Bull Run in 
Jackson County, AL; and approximately 16 rkm (10 rmi) of Hurricane 
Creek from its confluence with the Paint Rock River upstream to its 
confluence with Turkey Creek in Jackson County, AL. The unit is within 
the Tennessee River system and is critical habitat for the slabside 
pearlymussel. The unit is included in the geographical area occupied by 
the slabside pearlymussel at the time of listing. Approximately 6 rkm 
(4 rmi) of this unit is federally or State-owned and adjacent to the 
Fern Cave National Wildlife Refuge and Walls of Jericho State 
Management Area; the remainder is privately owned, including a small 
parcel owned by the Alabama Land Trust. A portion of this unit (80 rkm 
(50 rmi)) is critical habitat for the rabbitsfoot (78 FR 57076).
    The channel within Unit SP9 is relatively stable, with suitable 
instream habitat (PCE 1). There is an abundance of riffle habitats (PCE 
1), with relatively silt-free sand and gravel substrates (PCE

[[Page 59577]]

2), and adequate instream flows (PCE 3). A diverse fish fauna, 
including fish hosts for the slabside pearlymussel, are known from this 
unit (PCE 5).
    Within this unit, the slabside pearlymussel and its habitat may 
require special management considerations or protection to address 
potential adverse effects associated with agricultural activities, 
silvicultural activities, off-road vehicle use and other recreational 
activities, and nonpoint source pollution originating in headwater 
reaches.

Unit FK22 and SP10: Elk River, Limestone County, Alabama, and Giles, 
Lincoln, Franklin, and Moore Counties, Tennessee

    Unit FK22 and SP10 includes approximately 164 rkm (102 rmi) of the 
Elk River from its inundation at Wheeler Lake in Limestone County, AL, 
upstream to its confluence with Farris Creek at the dividing line 
between Franklin and Moore Counties, TN. The unit is within the 
Tennessee River system and is critical habitat for the fluted 
kidneyshell and slabside pearlymussel. This unit is included in the 
geographical area occupied by slabside pearlymussel at the time of 
listing. This unit is considered unoccupied by the fluted kidneyshell, 
but within the species' historical range. Live fluted kidneyshell have 
not been collected in the Elk River since the late-1960s (Isom et al. 
1973, p. 440). The unit is considered essential for the conservation of 
the fluted kidneyshell (see Criteria Used To Identify Critical Habitat 
above for our rationale). This unit is located almost entirely on 
private land, except for any small amount that is publicly owned in the 
form of bridge crossings and road easements and a small portion that is 
within TVA-owned lands near Wheeler Reservoir.
    Unit FK22 and SP10 has an abundance of riffle habitats (PCE 1), 
with relatively silt-free sand and gravel substrates (PCE 2), and 
adequate instream flows (PCE 3). A diverse fish fauna, including fish 
hosts for the slabside pearlymussel, are known from this unit (PCE 5).
    Within this unit, the slabside pearlymussel and its habitats may 
require special management considerations or protection to address 
potential adverse effects associated with hydropower generation from 
Tims Ford Dam, agriculture, nonpoint source pollution, and instream 
gravel mining. Another threat to the species and their habitat which 
may require special management of the PBFs is the potential for 
significant changes in the existing flow regime and water quality due 
to upstream impoundment. As discussed in the final listing rule 
published elsewhere in today's Federal Register under Summary of 
Factors Affecting the Species, ``Impoundments,'' mollusk declines below 
dams are associated with changes and fluctuation in flow regime, 
scouring and erosion, reduced dissolved oxygen levels and water 
temperatures, and changes in resident fish assemblages. These 
alterations can cause mussel declines for many miles below the dam.

Unit SP11: Bear Creek, Colbert County, Alabama, and Tishomingo County, 
Mississippi

    Unit SP11 includes approximately 42 rkm (26 rmi) of Bear Creek from 
its inundation at Pickwick Lake at rkm 37 (rmi 23) in Colbert County, 
AL, upstream through Tishomingo County, MS, and ending at the 
Mississippi/Alabama State line. The unit is within the Tennessee River 
system and is critical habitat for the slabside pearlymussel. This unit 
is included in the geographical area occupied by the slabside 
pearlymussel at the time of listing. This unit is located almost 
entirely on private land, except for any small amount that is publicly 
owned in the form of bridge crossings and road easements, and that 
within Tishomingo State Park and the Natchez Trace Parkway. The unit 
completely overlaps critical habitat for the oyster mussel and 
Cumberlandian combshell (69 FR 53136), and overlaps with a portion (42 
rkm (26 rmi)) of the critical habitat unit for the rabbitsfoot (78 FR 
57076).
    The channel within Unit SP11 has an abundance of riffle habitats 
(PCE 1), with relatively silt-free sand and gravel substrates (PCE 2), 
and adequate instream flows (PCE 3). A diverse fish fauna, including 
fish hosts for the slabside pearlymussel, are known from this unit (PCE 
5).
    Within this unit, the slabside pearlymussel and its habitat may 
require special management considerations or protection to address 
potential adverse effects associated with releases from upstream 
impoundments, agriculture, and nonpoint source pollution originating in 
headwater reaches.

Unit FK23 and SP12: Duck River, Humphreys, Perry, Hickman, Maury, 
Marshall, and Bedford Counties, Tennessee

    Unit FK23 and SP12 includes approximately 348 rkm (216 rmi) of the 
Duck River from its inundation at Kentucky Lake in Humphreys County, 
TN, upstream to its confluence with Flat Creek near Shelbyville in 
Bedford County, TN. The unit is within the Tennessee River system and 
is critical habitat for the fluted kidneyshell and slabside 
pearlymussel. This unit is included in the geographical area occupied 
by both species at the time of listing. The fluted kidneyshell 
population is a result of a successful reintroduction program 
implemented by TWRA and other conservation partners, resulting in the 
recruitment of the species in the Duck River. Approximately 64 rkm (39 
rmi) of this unit is federally or State-owned and adjacent to the 
Tennessee National Wildlife Refuge, Natchez Trace Parkway, Yanahli 
Wildlife Management Area, and Henry Horton State Park; the remainder is 
privately owned. A portion of this unit (74 rkm (46 rmi)) has been 
designated as a critical habitat for the oyster mussel and 
Cumberlandian combshell (69 FR 53136) and a portion of this unit (235 
rkm (146 rmi)) is critical habitat for the rabbitsfoot (78 FR 57076).
    The channel within Unit FK23 and SP12 is relatively stable, with 
suitable instream habitat (PCE 1). There is an abundance of riffle 
habitats (PCE 1), with relatively silt-free sand and gravel substrates 
(PCE 2), and adequate instream flows (PCE 3). A diverse fish fauna, 
including fish hosts for the fluted kidneyshell and slabside 
pearlymussel, are known from this unit (PCE 5).
    Within this unit, the fluted kidneyshell, slabside pearlymussel, 
and their habitats may require special management considerations or 
protection to address potential adverse effects associated with 
agricultural activities (livestock), water withdrawals, lack of 
adequate riparian buffers, construction and maintenance of State and 
county roads, and nonpoint source pollution originating in headwater 
reaches.

Unit FK24 and SP13: Buffalo River, Humphreys and Perry Counties, 
Tennessee

    Unit FK24 and SP13 includes approximately 50 rkm (31 rmi) of the 
Buffalo River from its confluence with the Duck River in Humphreys 
County, TN, upstream to its confluence with Cane Creek in Perry County, 
TN. The unit is within the Tennessee River system and is critical 
habitat for the fluted kidneyshell and slabside pearlymussel. This unit 
is included in the geographical area occupied by slabside pearlymussel 
at the time of listing. This unit is considered unoccupied by the 
fluted kidneyshell, but within the species' historical range. Live 
fluted kidneyshell have not been collected in the Buffalo River since 
the

[[Page 59578]]

early 1920s (Ortmann 1924, p. 28). The unit is considered essential for 
the conservation of the fluted kidneyshell (see Criteria Used To 
Identify Critical Habitat above for our rationale). This unit is 
located almost entirely on private land, except for any small amount 
that is publicly owned in the form of bridge crossings and road 
easements.
    Unit FK24 and SP13 has an abundance of riffle habitats (PCE 1) and 
adequate instream flows (PCE 3). A diverse fish fauna, including fish 
hosts for the slabside pearlymussel, are known from this unit (PCE 5).
    Within this unit, the slabside pearlymussel and its habitats may 
require special management considerations or protection to address 
potential adverse effects associated with agriculture, destabilized 
substrates, and nonpoint source pollution.

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 listed under the Act 
or result in the destruction or adverse modification of designated 
critical habitat.
    Decisions by the 5th and 9th Circuit Courts of Appeal 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, the key factor in determining whether 
an action will destroy or adversely modify critical habitat is whether, 
with implementation of the proposed Federal action, the affected 
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 that require a Federal 
permit (such as a permit from the U.S. Army Corps of Engineers under 
section 404 of the CWA (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, or 
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 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 PBFs to an 
extent that appreciably reduces the conservation value of critical 
habitat for fluted kidneyshell or slabside pearlymussel. As discussed 
above, the role of critical habitat is to support life-history needs 
and provide for the conservation of these 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 fluted kidneyshell or slabside pearlymussel. These 
activities include, but are not limited to:
    (1) Actions that would alter the geomorphology of their stream and 
river habitats. Such activities could include, but are not limited to, 
instream excavation or dredging, impoundment, channelization, 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 and result in 
entrainment or burial of these mussels and could 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 could include, but are not 
limited to, impoundment, urban development, water diversion, water 
withdrawal,

[[Page 59579]]

water draw-down, and hydropower generation. These activities could 
eliminate or reduce the habitat necessary for growth and reproduction 
of these mussels and their fish hosts.
    (3) Actions that would significantly alter water chemistry or water 
quality (e.g., temperature, pH, contaminants, and excess nutrients). 
Such activities could include, but are not limited to, hydropower 
discharges, or the release of chemicals, biological pollutants, or 
heated effluents into surface water or connected groundwater at a point 
source or by dispersed release (nonpoint source). These activities 
could alter water conditions that are beyond the tolerances of these 
mussels and their fish hosts or both, and result in direct or 
cumulative adverse effects to the species throughout their life cycles.
    (4) Actions that would significantly alter stream bed material 
composition and quality by increasing sediment deposition or 
filamentous algal growth. Such activities could include, but are not 
limited to, construction projects, gravel and sand mining, oil and gas 
development, coal mining, livestock grazing, timber harvest, and other 
watershed and floodplain disturbances that release sediments or 
nutrients into the water. These activities could eliminate or reduce 
habitats necessary for the growth and reproduction of these mussels or 
their fish hosts or both, by causing excessive sedimentation and burial 
of the species or their habitats, or nutrification leading to excessive 
filamentous algal growth. Excessive filamentous algal growth can cause 
reduced nighttime dissolved oxygen levels through respiration, and 
prevent juvenile mussels 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. Therefore, we are not 
exempting any lands from this final designation of critical habitat for 
the fluted kidneyshell or slabside pearlymussel pursuant to section 
4(a)(3)(B)(i) of the Act.

Exclusions

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

    Section 4(b)(2) of the Act states that the Secretary shall 
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.
    Under section 4(b)(2) of the Act, we may exclude an area from 
designated critical habitat based on economic impacts, impacts on 
national security, 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.
Exclusions Based on Economic Impacts
    Under section 4(b)(2) of the Act, we consider the economic impacts 
of specifying any particular area as critical habitat. In order to 
consider economic impacts, we prepared a DEA of the proposed critical 
habitat designation and related factors (RTI International 2013a). The 
draft analysis was made available for public review from April 29 
through May 29, 2013 (78 FR 25041). Following the close of the comment 
period, a final analysis of the potential economic effects of the 
designation (FEA) was developed, taking into consideration the public 
comments and any new information (RTI International 2013b). The FEA is 
summarized below and is available at http://www.regulations.gov or by 
contacting the Tennessee Ecological Services Field Office directly (see 
FOR FURTHER INFORMATION CONTACT).
    The intent of the FEA is to evaluate the economic impacts of all 
potential conservation efforts for the fluted kidneyshell and slabside 
pearlymussel; some of these costs will likely be incurred regardless of 
whether we designate critical habitat (baseline). The economic impact 
of the final 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 (e.g., 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 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 habitat 
above and beyond the baseline costs; these are the costs we consider in 
the final designation of critical habitat. The analysis forecasts both 
baseline and incremental impacts likely to occur with the designation 
of critical habitat. The FEA provides estimated costs of the 
foreseeable potential economic impacts of the critical habitat 
designation for these two species over the next 20 years, which was 
determined to be the appropriate period for analysis because planning 
information available to forecast activity levels for projects beyond a 
20-year timeframe is limited.
    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. Decision-makers can use this information to assess whether 
the effects of the designation might unduly burden a particular group 
or economic sector. The FEA quantifies economic impacts of fluted 
kidneyshell and slabside pearlymussel conservation efforts related to 
section 7 consultation for the following categories of activity: (1) 
Road maintenance and construction; (2) dam operation; (3) commercial, 
industrial, residential, and associated utility development; (4) 
agricultural and recreational development; (5) mining;

[[Page 59580]]

(6) Federal management plan administration; (7) State water quality 
standards; and (8) restoration and conservation. The FEA evaluates 
potential economic impacts of the designation, considering land 
ownership, reasonably foreseeable land use activities, potential 
Federal agency actions within the area and section 7 consultation 
requirements, baseline conservation measures (i.e., measures that would 
be implemented regardless of the critical habitat designation), and 
incremental conservation measures (i.e., measures that would be 
attributed exclusively to the critical habitat designation).
    The present value of the total incremental cost of critical habitat 
designation is estimated in the FEA at $3.5 million over 20 years 
assuming a 7 percent discount rate, or $175,000 on an annualized basis. 
Road maintenance and construction activities are likely to be subject 
to the greatest incremental impacts at $1.94 million over 20 years, 
followed by commercial, industrial, residential, and associated utility 
development at $1.1 million; restoration and conservation at $221,000; 
mining at $132,000; agricultural and recreational development at 
$75,900; Federal management plan administration at $24,200; dam 
operation at $21,500; and State water quality standards at $6,800. 
Approximately 55 percent of direct incremental costs are estimated to 
result from future consultations for road maintenance and construction 
projects. Please refer to the FEA (http://www.regulations.gov at Docket 
No. FWS-R4-ES-2013-0026) for a more detailed discussion of potential 
economic impacts.
    An additional $400,000 in indirect incremental costs associated 
with water quality permitting for road maintenance and construction is 
estimated for the unoccupied Unit FK3 (Rockcastle River, Kentucky). 
Approximately 75 percent of the indirect incremental costs are 
estimated to result from consultations in the three units that are not 
occupied by other federally listed species (i.e., Wolf River and Town 
Branch, and West Fork Obey River, TN).
    The FEA did not identify any disproportionate costs that are likely 
to result from the designation. Consequently, the Secretary is not 
exerting her discretion to exclude any areas from this designation of 
critical habitat for the fluted kidneyshell or slabside pearlymussel 
based on economic impacts.
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 where a national 
security impact might exist. In preparing this final rule, we have 
determined that no lands within the designation of critical habitat for 
the fluted kidneyshell and slabside pearlymussel are owned or managed 
by the Department of Defense, and, therefore, we anticipate no impact 
on national security. Consequently, the Secretary is not exerting her 
discretion to exclude any areas from the final designation based on 
impacts on national security.
Exclusions Based on Other Relevant Impacts
    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security. We consider a number of factors, including whether 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 HCPs or other management plans that specifically address 
management needs for the fluted kidneyshell or slabside pearlymussel, 
and the final designation does not include any tribal lands or trust 
resources. Therefore, we anticipate no impact on tribal lands, HCPs, or 
other management plans from this critical habitat designation. 
Accordingly, the Secretary is not exercising her discretion to exclude 
any areas from the final designation based on other relevant impacts.

Nonessential Experimental Populations

    Section 10(j) of the Act provides for the designation of specific 
reintroduced populations of listed species as ``experimental 
populations.'' This section was designed to provide us with an 
innovative means to introduce a listed species into unoccupied habitat 
within its historical range when doing so would foster the conservation 
and recovery of the species. Experimental populations provide us with a 
flexible, proactive means to meet recovery criteria while maintaining 
the cooperation of stakeholders, such as other agencies, 
municipalities, and landowners, which is essential for eventual success 
of the reintroduced population.
    When we designate a population as experimental, section 10(j) of 
the Act requires that we determine whether that population is either 
essential or nonessential to the continued existence of the species, on 
the basis of the best available information. Nonessential experimental 
populations (NEPs) located outside National Wildlife Refuge System or 
National Park System lands are treated, for the purposes of section 7 
of the Act, as if they are proposed for listing as a threatened 
species, while within National Wildlife Refuges or National Parks the 
species is treated as a threatened species. Threatened status allows us 
to develop special regulations under section 4(d) of the Act that we 
consider necessary and advisable for the protection of the species. 
Moreover, section 7(a)(2) of the Act, which requires Federal agencies 
to ensure that their activities are not likely to jeopardize the 
continued existence of a listed species, would apply to the populations 
on National Wildlife Refuge System and National Park System lands. On 
the other hand, experimental populations determined to be ``essential'' 
to the survival of the species would be treated as threatened species 
and remain subject to the consultation provisions of section 7(a)(2) of 
the Act, whether or not they are located on national wildlife refuges 
or parks.
    As mentioned earlier in the unit descriptions and referenced in 
Table 3, there are two NEPs for other listed aquatic species that 
overlap with this critical habitat designation: the NEP for the 
yellowfin madtom in the North Fork of the Holston River (53 FR 29335), 
which overlaps with Units FK12 and SP1, and the NEP for 21 listed 
aquatic species (including the yellowfin madtom) in the lower French 
Broad and Holston Rivers (72 FR 52434), which overlaps with Units FK19 
and FK20. These NEPs were not established specifically for the 
conservation of the fluted kidneyshell or slabside pearlymussel, which 
were candidate species when the NEP rules were published, but rather to 
promote the reintroduction of their target listed species into 
historical habitat. The NEPs would have to be amended through a 
rulemaking process to include the fluted kidneyshell or slabside 
pearlymussel.
    The North Fork of the Holston River is considered occupied by both 
the slabside pearlymussel and the fluted kidneyshell, presently 
contains numerous PCEs (see Final Critical

[[Page 59581]]

Habitat Designation above), and is therefore being designated as 
critical habitat. The lower Holston River (below Cherokee Dam) and 
French Broad River (below Douglas Dam) are being designated as 
unoccupied habitat for the fluted kidneyshell because we have 
determined these river reaches are essential to the conservation of the 
species (see Criteria Used To Identify Critical Habitat above for our 
rationale). Both rivers provide some of the last remaining large river 
habitat for the fluted kidneyshell. Since the NEPs do not provide any 
level of protection to the fluted kidneyshell or slabside pearlymussel, 
the Secretary is not exercising her discretion to exclude any areas 
from the final designation based on the presence of existing NEPs.

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 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) as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (5 U.S.C 
801 et seq.), whenever an agency must publish a notice of rulemaking 
for any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effects of the rule on small entities (small businesses, small 
organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. The SBREFA amended the RFA to 
require Federal agencies to provide a 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. In this 
final rule, we are certifying that the critical habitat designation for 
fluted kidneyshell and slabside pearlymussel will not have a 
significant economic impact on a substantial number of small entities. 
The following discussion explains our rationale.
    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; and small businesses (13 CFR 121.201). Small businesses 
include such businesses as 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.
    Importantly, the incremental impacts of a 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. If a substantial number of small entities are 
affected by the critical habitat designation, but the per-entity 
economic impact is not significant, the Service may certify. Likewise, 
if the per-entity economic impact is likely to be significant, but the 
number of affected entities is not substantial, the Service may also 
certify.
    The Service's current understanding of recent case law is that 
Federal agencies are only required to evaluate the potential impacts of 
rulemaking on those entities directly regulated by the rulemaking; 
therefore, they are not required to evaluate the potential impacts to 
those entities not directly regulated. The designation of critical 
habitat for an endangered or threatened species only has a regulatory 
effect where a Federal action agency is involved in a particular action 
that may affect the designated critical habitat. Under these 
circumstances, only the Federal action agency is directly regulated by 
the designation, and, therefore, consistent with the Service's current 
interpretation of RFA and recent case law, the Service may limit its 
evaluation of the potential impacts to those identified for Federal 
action agencies. Under this interpretation, there is no requirement 
under the RFA to evaluate the potential impacts to entities not 
directly regulated, such as small businesses. However, Executive Orders 
12866 and 13563 direct Federal agencies to assess costs and benefits of 
available regulatory alternatives in quantitative (to the extent 
feasible) and qualitative terms. Consequently, it is the current 
practice of the Service to assess to the extent practicable these 
potential impacts if sufficient data are available, whether or not this 
analysis is believed by the Service to be strictly required by the RFA. 
In other words, while the effects analysis required under the RFA is 
limited to entities directly regulated by the rulemaking, the effects 
analysis under the Act, consistent with the E.O. regulatory analysis 
requirements, can take into consideration impacts to both directly and 
indirectly impacted entities, where practicable and reasonable.
    In conclusion, based on our interpretation of directly regulated 
entities under the RFA and relevant case law, this designation of 
critical habitat will only directly regulate Federal agencies which are 
not by definition small business entities. As such, we certify that 
this designation of critical habitat will not have a significant 
economic impact on a substantial number of small business entities. 
Therefore, a regulatory flexibility analysis is not required. However, 
though not necessarily required by the RFA, in our FEA for this rule we 
considered and evaluated the potential effects to third parties that 
may be involved with consultations with Federal action agencies related 
to this action.
    Designation of critical habitat only affects activities authorized, 
funded, or carried out by Federal agencies. Some kinds of activities 
are unlikely to have any Federal involvement and so will not be 
affected by critical habitat designation. In areas where the species 
are present, Federal agencies already are

[[Page 59582]]

required to consult with us under section 7 of the Act on activities 
they authorize, fund, or carry out that may affect fluted kidneyshell 
or slabside pearlymussel. Federal agencies also must consult with us if 
their activities may affect critical habitat. Designation of critical 
habitat, therefore, could result in an additional economic impact on 
small entities due to the requirement to reinitiate consultation for 
ongoing Federal activities (see Application of the ``Adverse 
Modification'' Standard section).
    In our FEA of the critical habitat designation (see ``Exclusions 
Based on Economic Impacts,'' above), we evaluated the potential 
economic effects on small business entities resulting from conservation 
actions related to the designation of critical habitat of the fluted 
kidneyshell and slabside pearlymussel (RTI 2013). The analysis is based 
on the estimated impacts associated with the rulemaking as described in 
Appendix A of the FEA and evaluates the potential for economic impacts 
related to: Commercial, industrial, residential, and associated utility 
development; agricultural and recreational development; mining; and 
restoration and conservation.
    The incremental costs over 20 years at a 7 percent discount rate 
for project proponents in unoccupied critical habitat units are 
estimated to be: $785,802 for commercial, industrial, residential, and 
associated utility development; $26,395 for agricultural and 
recreational development; $6,169 for mining; and $89,927 for 
restoration and conservation. In summary, this FEA estimates a worst 
case scenario of approximately $908,000 in impacts to all small 
businesses within the study region over 20 years, discounted at 7 
percent, with an annualized cost of approximately $85,736 across all 
entities. It is unlikely that increased annual costs at these levels 
will have a significant mpact on small entities in either occupied or 
unoccupied critical habitat units. Please refer to the FEA of the 
critical habitat designation for a more detailed discussion of 
potential economic impacts (RTI 2013).
    In summary, we considered whether this designation will result in a 
significant economic effect on a substantial number of small entities. 
Based on the above reasoning and currently available information, we 
conclude that this rule will not result in a significant economic 
impact on a substantial number of small entities. Therefore, we are 
certifying that the designation of critical habitat for fluted 
kidneyshell and slabside pearlymussel 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, which include: (1) Reductions in crude oil 
supply in excess of 10,000 barrels per day; (2) reductions in fuel 
production in excess of 4,000 barrels per day; (3) reductions in coal 
production in excess of 5 million tons per year; (4) reductions in 
natural gas production in excess of 25 million cubic feet per year; (5) 
reductions in electricity production in excess of 1 billion kilowatt 
hours per year or in excess of 500 megawatts of installed capacity; (6) 
increases in energy use required by the regulatory action that exceed 
thresholds (1) through (6) above; (7) increases in the cost of energy 
production in excess of one percent; (8) increases in the cost of 
energy distribution in excess of one percent; and (9) other similarly 
adverse outcomes.
    Appendix A of the FEA discusses the potential for critical habitat 
to affect the energy industry through the additional cost of 
considering adverse modification in section 7 consultation. For coal 
production, we estimated incremental costs of $132,000 over the next 20 
years (7 percent discount rate), with 11 consultations anticipated 
annually. Based on crude oil and natural gas production levels 
occurring within critical habitat units and consultation history for 
these activities, we do not expect the designation of critical habitat 
for these two species to reduce production in excess of ``significant 
adverse effects'' levels set by OMB. Finally, critical habitat 
designation is not expected to result in the closure of any 
hydroelectric facilities, so impacts to generation capacity are not 
anticipated. Total incremental costs to hydroelectric dams are 
estimated at approximately $21,000 over 20 years (7 percent discount 
rate). Overall, the additional costs are unlikely to increase the costs 
of energy production or distribution in the United States in excess of 
one percent.
    The energy analysis completed in the FEA and summarized above 
highlights no significant adverse impacts to energy production in any 
of the major sectors. Thus, based on information in the economic 
analysis, no energy-related impacts associated with fluted kidneyshell 
and slabside pearlymussel conservation activities within critical 
habitat are 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

    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 [T]ribal 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 [T]ribal governments under entitlement 
authority,'' if the provision would ``increase the stringency of 
conditions of assistance'' or ``place caps upon, or otherwise decrease, 
the Federal Government's responsibility to provide funding,'' and the 
State, local, or tribal governments ``lack authority'' to adjust 
accordingly. At the time of enactment, these entitlement programs were: 
Medicaid; Aid to Families with Dependent Children (AFDC) work programs; 
Child Nutrition; Food Stamps; Social Services Block Grants; Vocational 
Rehabilitation State Grants; Foster Care, Adoption Assistance, and 
Independent Living; Family Support Welfare Services; and Child Support 
Enforcement. ``Federal private sector mandate'' includes a regulation 
that ``would impose an enforceable duty upon the private sector, except 
(i) a condition of Federal assistance or (ii) a duty arising from 
participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal entities or private

[[Page 59583]]

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 of the Act. 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) This rule will not significantly or uniquely affect small 
governments because these mussel species occur primarily in State-owned 
river channels or in remote privately owned stream channels. The 
designation of critical habitat imposes no obligations on State or 
local governments. By definition, Federal agencies are not considered 
small entities, although the activities they fund or permit may be 
proposed or carried out by small entities. Consequently, the critical 
habitat designation will not significantly or uniquely affect small 
government entities. Therefore, 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 the fluted kidneyshell and slabside pearlymussel 
in a takings implications assessment.
    Critical habitat designation does not affect landowner actions that 
do not require Federal funding or permits, nor does it preclude 
development of habitat conservation programs or issuance of incidental 
take permits to permit actions that do require Federal funding or 
permits to go forward. Based on the best available information, the 
takings implications assessment concludes that the designation of 
critical habitat for the fluted kidneyshell and slabside pearlymussel 
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, Kentucky, 
Mississippi, Tennessee, and Virginia. We did not receive any comments 
from any State agencies on the proposed 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, the 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 and 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 
these 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 requirements of 
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 PBFs essential to the conservation of the 
fluted kidneyshell and slabside pearlymussel. The designated areas of 
critical habitat are presented on maps, and the rule provides several 
options for the interested public to obtain more detailed location 
information, if desired.

Paperwork Reduction Act of 1995

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

National Environmental Policy Act

    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 the National Environmental Policy 
Act (42 U.S.C. 4321 et seq.) 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)).

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), E.O. 13175, 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

[[Page 59584]]

controls as Federal public lands, to remain sensitive to Indian 
culture, and to make information available to Tribes.
    We have determined that there are no Tribal lands currently 
occupied by the species that contain the PBFs essential to the 
conservation of these species, and no Tribal lands unoccupied by the 
fluted kidneyshell and slabside pearlymussel that are essential for the 
conservation of these two species. Therefore, we are not designating 
critical habitat for these species on Tribal lands.

References Cited

    A complete list of references cited is available on the Internet at 
http://www.regulations.gov and upon request from the Tennessee 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this rule are the staff members of the 
Tennessee 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 adding entries for ``Kidneyshell, fluted'' 
and ``Pearlymussel, slabside'' in alphabetical order under ``CLAMS'' to 
the List of Endangered and Threatened Wildlife to read as follows:


Sec.  17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species                                                    Vertebrate
--------------------------------------------------------                        population where                                  Critical     Special
                                                            Historic range       endangered or         Status      When listed    habitat       rules
           Common name                Scientific name                              threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                      * * * * * * *
              Clams
 
 
                                                                      * * * * * * *
Kidneyshell, fluted..............  Ptychobranchus        U.S.A. (AL, KY, TN,  Entire.............  E                       825     17.95(f)           NA
                                    subtentum.            VA).
 
                                                                      * * * * * * *
Pearlymussel, slabside...........  Pleuronaia            U.S.A. (AL, KY, MS,  Entire.............  E                       825     17.95(f)           NA
                                    dolabelloides.        TN, VA).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. In Sec.  17.95, amend paragraph (f) by adding entries for ``Fluted 
Kidneyshell (Ptychobranchus subtentum)'' and ``Slabside Pearlymussel 
(Pleuronaia dolabelloides)'' in that order immediately following the 
entry for Altamaha spinymussel (Elliptio spinosa), to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

* * * * *
    (f) Clams and Snails.
* * * * *

Fluted Kidneyshell (Ptychobranchus subtentum)

    (1) Critical habitat units are depicted on the maps below for 
Limestone County, Alabama; Jackson, Laurel, McCreary, Pulaski, 
Rockcastle, and Wayne Counties, Kentucky; Bedford, Claiborne, Cocke, 
Fentress, Franklin, Giles, Grainger, Greene, Hamblen, Hancock, Hickman, 
Humphreys, Jefferson, Knox, Lincoln, Marshall, Maury, Moore, Morgan, 
Overton, Perry, Pickett, Polk, Scott, and Sevier Counties, Tennessee; 
and Bland, Lee, Russell, Scott, Smyth, Tazewell, Washington, and Wythe 
Counties, Virginia.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of fluted 
kidneyshell consist of five components:
    (i) Riffle habitats within large, geomorphically stable stream 
channels (channels that maintain lateral dimensions, longitudinal 
profiles, and sinuosity patterns over time without an aggrading or 
degrading bed elevation).
    (ii) Stable substrates of sand, gravel, and cobble with low to 
moderate amounts of fine sediment and containing flow refugia with low 
shear stress.
    (iii) A natural hydrologic flow regime (magnitude, frequency, 
duration, and seasonality of discharge over time) necessary to maintain 
benthic habitats where the species is found, and connectivity of rivers 
with the floodplain, allowing the exchange of nutrients and sediment 
for habitat maintenance, food availability for all life stages, and 
spawning habitat for native fishes.
    (iv) Water quality with low levels of pollutants and including a 
natural temperature regime, pH (between 6.0 to 8.5), oxygen content 
(not less than 5.0 milligrams/liter), hardness, and turbidity necessary 
for normal behavior, growth, and viability of all life stages.
    (v) The presence of abundant fish hosts, which may include the 
barcheek darter, fantail darter, rainbow darter, redline darter, 
bluebreast darter, dusky darter and banded sculpin, necessary for 
recruitment of the fluted kidneyshell.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, dams, roads, and other paved areas) and the land 
on which they are located existing within the legal boundaries on 
October 28, 2013.
    (4) Critical habitat map units. Data layers defining map units were 
created with USGS National Hydrography Dataset (NHD+) GIS 
data. The 1:100,000 river reach (route) files were used to calculate 
river kilometers and miles. ESRIs ArcGIS 10.0 software was used to 
determine longitude and latitude coordinates using decimal degrees. The 
projection used in mapping all units

[[Page 59585]]

was USA Contiguous Albers Equal Area Conic USGS version, NAD 83, 
meters. The following data sources were referenced to identify features 
(like roads and streams) used to delineate the upstream and downstream 
extents of critical habitat units: NHD+ flowline and 
waterbody data, 2011 Navteq roads data, USA Topo ESRI online basemap 
service, DeLorme Atlas and Gazetteers, and USGS 7.5 minute topographic 
maps. The maps in this entry, as modified by any accompanying 
regulatory text, establish the boundaries of the critical habitat 
designation. The coordinates or plot points or both on which each map 
is based are available to the public at the field office Internet site 
(http://www.fws.gov/cookeville), at http://www.regulations.gov at 
Docket No. FWS-R4-ES-2013-0026, and at the Service's Tennessee Fish and 
Wildlife Office. 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.
    (5) An overview of critical habitat locations for the fluted 
kidneyshell in Alabama, Tennessee, Kentucky, and Virginia follows:
BILLING CODE 4310-55-P
[GRAPHIC] [TIFF OMITTED] TR26SE13.064

    (6) Unit FK1: Horse Lick Creek, Rockcastle and Jackson Counties, 
Kentucky.
    (i) The unit includes approximately 19 river kilometers (rkm) (12 
river miles (rmi)) of Horse Lick Creek, in Rockcastle and Jackson 
Counties, KY. It includes the mainstem of Horse Lick Creek from its 
confluence with the Rockcastle River (-84.13780, 37.31991) upstream to 
Clover Bottom Creek (-84.12200, 37.40879).
    (ii) Map of Units FK1 and FK2 follows:

[[Page 59586]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.065

    (7) Unit FK2: Middle Fork Rockcastle River, Jackson County, 
Kentucky.
    (i) The unit includes 12.5 rkm (7.7 rmi) of the Middle Fork 
Rockcastle River from its confluence with the Rockcastle River (-
84.11895, 37.33581) upstream to its confluence with Indian Creek and 
Laurel Fork (-84.04897, 37.36765) in Jackson County, KY.
    (ii) Map of Units FK1 and FK2 is provided at paragraph (6)(ii) of 
this entry.
    (8) Unit FK3: Rockcastle River, Pulaski, Laurel, and Rockcastle 
Counties, Kentucky.
    (i) The unit includes approximately 70 rkm (43 rmi) of the 
Rockcastle River from the backwaters of Lake Cumberland near its 
confluence with Cane Creek along the Laurel and Pulaski County line, KY 
(-84.30594, 37.03423), upstream to its confluence with Horse Lick Creek 
along the Laurel and Rockcastle County line, KY (-84.13766, 37.31944).
    (ii) Map of Unit FK3 follows:

[[Page 59587]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.066


[[Page 59588]]


    (9) Unit FK4: Buck Creek, Pulaski County, Kentucky.
    (i) This unit includes 61 rkm (38 rmi) of Buck Creek from State 
Route 192 (-84.42681, 37.05977) upstream to Route 328 (-84.55492, 
37.32430), Pulaski County, KY.
    (ii) Map of Unit FK4 follows:
    [GRAPHIC] [TIFF OMITTED] TR26SE13.067
    

[[Page 59589]]


    (10) Unit FK5: Rock Creek, McCreary County, Kentucky.
    (i) The unit includes approximately 19 rkm (12 rmi) of Rock Creek 
from its confluence with White Oak Creek (-84.69103, 36.65145) upstream 
to the low water crossing at rkm 25.6 (rmi 15.9) (-84.58888, 36.70800) 
in McCreary County, KY.
    (ii) Map of Units FK5 and FK6 follows:
    [GRAPHIC] [TIFF OMITTED] TR26SE13.068
    
    (11) Unit FK6: Little South Fork Cumberland River, McCreary and 
Wayne Counties, Kentucky.
    (i) The unit includes 65.5 rkm (40.7 rmi) of the Little South Fork 
Cumberland River from its confluence with the Big South Fork Cumberland 
River (-84.58269, 36.82690), where it is the dividing line between 
Wayne and McCreary Counties, upstream to its confluence with Dobbs 
Creek (-84.85344, 36.62588) in Wayne County, KY.
    (ii) Map of Units FK5 and FK6 is provided at paragraph (10)(ii) of 
this entry.
    (12) Unit FK7: Big South Fork Cumberland River, Fentress, Morgan,

[[Page 59590]]

and Scott Counties, Tennessee, and McCreary County, Kentucky.
    (i) The unit includes approximately 45 rkm (28 rmi) of the Big 
South Fork of the Cumberland River from its confluence with Laurel 
Crossing Branch downstream of Big Shoals (-84.53642, 36.64114), 
McCreary County, KY, upstream to its confluence with Clear Fork and New 
River (-84.62394, 36.42475), Scott County, TN. This unit also includes 
32.3 rkm (20.0 rmi) of Clear Fork from its confluence with the Big 
South Fork and New River (-84.62394, 36.42475) in Scott County, TN, 
upstream to its confluence with Crooked Creek (-84.78637, 36.32533) 
along the Fentress and Morgan County line, TN. This unit also includes 
14.7 rkm (9.1 rmi) of the New River from its confluence with the Big 
South Fork (-84.62394, 36.42475) upstream to the Highway 27 Bridge 
crossing (-84.55290, 36.38279) in Scott County, TN.
    (ii) Map of Unit FK7 follows:
    [GRAPHIC] [TIFF OMITTED] TR26SE13.069
    

[[Page 59591]]


    (13) Unit FK8: Wolf River and Town Branch, Pickett and Fentress 
Counties, Tennessee.
    (i) The unit includes 41.0 rkm (25.5 rmi) of the Wolf River from 
its inundation at Dale Hollow Lake (-85.14414, 36.60670) in Pickett 
County, TN, upstream to its confluence with Delk Creek (-84.91064, 
36.52784) in Fentress County, TN. This unit also includes 3.4 rkm (2.0 
rmi) of Town Branch from its confluence with Wolf River (-85.11787, 
36.58321) upstream to its headwaters (-85.12136, 36.55947) in Pickett 
County, TN.
    (ii) Map of Unit FK8 follows:
    [GRAPHIC] [TIFF OMITTED] TR26SE13.070
    
    (14) Unit FK9: West Fork Obey River, Overton County, Tennessee.
    (i) The unit includes approximately 19 rkm (12 rmi) of the West 
Fork Obey River from the Highway 52 Bridge crossing (-85.17410, 
36.39731) upstream to its confluence with Dry Hollow Creek (-85.20747, 
36.25989) in Overton County, TN.
    (ii) Map of Unit FK9 follows:

[[Page 59592]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.071

    (15) Unit FK10: Indian Creek, Tazewell County, Virginia.
    (i) The unit includes 6.7 rkm (4.2 rmi) of Indian Creek from its 
confluence with the Clinch River (-81.76608, 37.08893) upstream to the 
fourth Norfolk Southern Railroad crossing at Van Dyke (-81.71975, 
37.11206) in Tazewell County, VA.
    (ii) Map of Units FK10 and FK11 follows:

[[Page 59593]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.072

    (16) Unit FK11: Little River, Russell and Tazewell Counties, 
Virginia.
    (i) The unit includes approximately 50 rkm (31 rmi) of Little River 
from its confluence with the Clinch River (-81.92582, 37.00223) in 
Russell County, VA, upstream to its confluence with Liberty and Maiden 
Spring Creeks (-81.67240, 37.03760) in Tazewell County, VA.
    (ii) Map of Units FK10 and FK11 is provided at paragraph (15)(ii) 
of this entry.
    (17) Unit FK12: North Fork Holston River, Smyth and Bland Counties, 
Virginia.
    (i) The unit includes approximately 67 rkm (42 rmi) of the North 
Fork Holston River from its confluence with Beaver Creek (-81.70277, 
36.90825), upstream of Saltville, in Smyth County, VA, upstream to 
Ceres (-81.33775, 37.01035), Bland County, VA.
    (ii) Map of Unit FK12 follows:

[[Page 59594]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.073

    (18) Unit FK13: Middle Fork Holston River, Washington, Smyth, and 
Wythe Counties, Virginia.
    (i) The unit includes approximately 89 rkm (55 rmi) of the Middle 
Fork Holston River from its inundation at South Holston Lake (-
81.90427, 36.66338) in Washington County, VA, upstream to its 
headwaters (-81.31345, 36.88666) in Wythe County, VA.
    (ii) Map of Unit FK13 follows:

[[Page 59595]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.074

    (19) Unit FK14: Big Moccasin Creek, Scott and Russell Counties, 
Virginia.
    (i) The unit includes approximately 33 rkm (21 rmi) of Big Moccasin 
Creek from the Highway 71 Bridge crossing (-82.48361, 36.69109) in 
Scott County, VA, upstream to the Route 612 Bridge crossing (-82.32348, 
36.73740) near Collinwood in Russell County, VA.
    (ii) Map of Unit FK14 follows:

[[Page 59596]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.075

    (20) Unit FK15: Copper Creek, Scott County, Virginia.
    (i) The unit includes 55.5 rkm (34.5 rmi) of Copper Creek from its 
confluence with the Clinch River (-82.74538, 36.65544) upstream to the 
Highway 71 Bridge crossing (-82.43514, 36.73473) in Scott County, VA.
    (ii) Map of Unit FK15 follows:

[[Page 59597]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.076

    (21) Unit FK16: Clinch River, Hancock County, Tennessee, and Scott, 
Russell, and Tazewell Counties, Virginia.
    (i) The unit includes approximately 263 rkm (163 rmi) of the Clinch 
River from rkm 255 (rmi 159) immediately below Grissom Island (-
83.40106, 36.43081) in Hancock County, TN, upstream to its confluence 
with Indian Creek near Cedar Bluff (-81.74999, 37.07995), Tazewell 
County, VA.
    (ii) Map of Unit FK16 follows:

[[Page 59598]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.077

    (22) Unit FK17: Powell River, Claiborne and Hancock Counties, 
Tennessee, and Lee County, Virginia.
    (i) The unit includes approximately 153 rkm (95 rmi) of the Powell 
River from the U.S. 25E Bridge (-83.63102, 36.54143) in Claiborne 
County, TN, upstream to rkm 256 (rmi 159) (-82.98111, 36.75730, 
upstream of Rock Island in the vicinity of Pughs) in Lee County, VA.
    (ii) Map of Unit FK17 follows:

[[Page 59599]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.078

    (23) Unit FK18: Nolichucky River, Cocke, Hamblen, and Greene 
Counties, Tennessee.
    (i) The unit includes approximately 52 rkm (32 rmi) of the 
Nolichucky River from rkm 14 (rmi 9), approximately 0.6 rkm (0.4 rmi) 
upstream of Enka Dam (-83.19630, 36.12970), where it divides Hamblen 
and Cocke Counties, TN, upstream to its confluence with Pigeon Creek, 
just upstream of the Highway 321 Bridge crossing (-82.92926, 36.07545), 
in Greene County, TN.
    (ii) Map of Unit FK18 follows:

[[Page 59600]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.079

    (24) Unit FK19: Holston River, Knox, Grainger, and Jefferson 
Counties, Tennessee.
    (i) The unit includes approximately 85 rkm (53 rmi) of the Holston 
River from its confluence with the French Broad River (-83.84967, 
35.95903) in Knox County, TN, upstream to the base of Cherokee Dam at 
rkm 83.7 (rmi 52.3) (-83.49855, 36.16666) along the Grainger and 
Jefferson County, TN, line.
    (ii) Map of Units FK19 and FK20 follows:

[[Page 59601]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.080

    (25) Unit FK20: French Broad River, Knox and Sevier Counties, 
Tennessee.
    (i) The unit includes approximately 56 rkm (35 rmi) of the French 
Broad River from its confluence with the Holston River (-83.84967, 
35.95903) in Knox County, TN, upstream to the base of Douglas Dam at 
rkm 51.7 (rmi 32.3) (-83.53821, 35.96073) in Sevier County, TN.
    (ii) Map of Units FK19 and FK20 is provided at paragraph (24)(ii) 
of this entry.
    (26) Unit FK21: Hiwassee River, Polk County, Tennessee.
    (i) The unit includes approximately 24 rkm (15 rmi) of the Hiwassee 
River from the Highway 315 Bridge crossing (-84.50234, 35.18875) 
upstream to the Highway 68 Bridge crossing (-84.31728, 35.16811) in 
Polk County, TN.
    (ii) Map of Unit FK21 follows:

[[Page 59602]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.081

    (27) Unit FK22: Elk River, Limestone County, Alabama, and Giles, 
Lincoln, Franklin, and Moore Counties, Tennessee.
    (i) The unit includes approximately 164 rkm (102 rmi) of the Elk 
River from its inundation at Wheeler Lake (-87.06503, 34.89788) in 
Limestone County, AL, upstream to its confluence with Farris Creek (-
86.31996, 35.16288) at the dividing line between Franklin and Moore 
Counties, TN.
    (ii) Map of Unit FK22 follows:

[[Page 59603]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.082

    (28) Unit FK23: Duck River, Humphreys, Perry, Hickman, Maury, 
Marshall, and Bedford Counties, Tennessee.
    (i) The unit includes approximately 348 rkm (216 rmi) of the Duck 
River from its inundation at Kentucky Lake (-87.88011, 36.00244) in 
Humphreys County, TN, upstream to its confluence with Flat Creek (-
86.48778, 35.47209) near Shelbyville in Bedford County, TN.
    (ii) Map of Unit FK23 follows:

[[Page 59604]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.083

    (29) Unit FK24: Buffalo River, Humphreys and Perry Counties, 
Tennessee.
    (i) The unit includes 50 rkm (31 rmi) of the Buffalo River from its 
confluence with the Duck River (-87.84261, 35.99477) in Humphreys 
County, TN, upstream to its confluence with Cane Creek (-87.78718, 
35.72298) in Perry County, TN.
    (ii) Map of Unit FK24 follows:

[[Page 59605]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.084

Slabside Pearlymussel (Pleuronaia dolabelloides)

    (1) Critical habitat units are depicted on the maps below for 
Colbert, Jackson, Limestone, Madison, and Marshall Counties, Alabama; 
Tishomingo County, Mississippi; Bedford, Bledsoe, Claiborne, Cocke, 
Franklin, Giles, Greene, Hamblen, Hancock, Hickman, Humphreys, Lincoln, 
Marion, Marshall, Maury, Moore, Perry, Polk, and Sequatchie Counties, 
Tennessee; and Bland, Lee, Russell, Scott, Smyth, Tazewell, Washington, 
and Wythe Counties, Virginia.
    (2) Within these areas, the primary constituent elements of the 
physical or biological features essential to the conservation of 
slabside pearlymussel consist of five components:
    (i) Riffle habitats within large, geomorphically stable stream 
channels (channels that maintain lateral dimensions, longitudinal 
profiles, and sinuosity patterns over time without an aggrading or 
degrading bed elevation).
    (ii) Stable substrates of sand, gravel, and cobble with low to 
moderate amounts of fine sediment and containing flow refugia with low 
shear stress.
    (iii) A natural hydrologic flow regime (magnitude, frequency, 
duration, and seasonality of discharge over time) necessary to maintain 
benthic habitats where the species is found, and connectivity of rivers 
with the floodplain, allowing the exchange of nutrients and sediment 
for habitat maintenance, food availability for all life stages, and 
spawning habitat for native fishes.
    (iv) Water quality with low levels of pollutants and including a 
natural

[[Page 59606]]

temperature regime, pH (between 6.0 to 8.5), oxygen content (not less 
than 5.0 milligrams/liter), hardness, and turbidity necessary for 
normal behavior, growth, and viability of all life stages.
    (v) The presence of abundant fish hosts, which may include the 
popeye shiner, rosyface shiner, saffron shiner, silver shiner, 
telescope shiner, Tennessee shiner, whitetail shiner, white shiner, and 
eastern blacknose dace, necessary for recruitment of the slabside 
pearlymussel.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, dams, roads, and other paved areas) and the land 
on which they are located existing within the legal boundaries on 
October 28, 2013.
    (4) Critical habitat map units. Data layers defining map units were 
created with USGS National Hydrography Dataset (NHD\+\) GIS data. The 
1:100,000 river reach (route) files were used to calculate river 
kilometers and miles. ESRIs ArcGIS 10.0 software was used to determine 
longitude and latitude coordinates using decimal degrees. The 
projection used in mapping all units was USA Contiguous Albers Equal 
Area Conic USGS version, NAD 83, meters. The following data sources 
were referenced to identify features (like roads and streams) used to 
delineate the upstream and downstream extents of critical habitat 
units: NHD\+\ flowline and waterbody data, 2011 Navteq roads data, USA 
Topo ESRI online basemap service, DeLorme Atlas and Gazetteers, and 
USGS 7.5 minute topographic maps. The maps in this entry, as modified 
by any accompanying regulatory text, establish the boundaries of the 
critical habitat designation. The coordinates or plot points or both on 
which each map is based are available to the public at the field office 
Internet site (http://www.fws.gov/cookeville), at http://www.regulations.gov at Docket No. FWS-R4-ES-2013-0026, and at the 
Service's Tennessee Fish and Wildlife Office. 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.
    (5) An overview of critical habitat locations for the slabside 
pearlymussel in Mississippi, Alabama, Tennessee, and Virginia follows:

[[Page 59607]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.085

    (6) Unit SP1: North Fork Holston River, Smyth and Bland Counties, 
Virginia.
    (i) The unit includes approximately 67 river kilometers (rkm) (42 
river miles (rmi)) of the North Fork Holston River from its confluence 
with Beaver Creek (-81.70277, 36.90825), upstream of Saltville, in 
Smyth County, VA, upstream to Ceres (-81.33775, 37.01035), Bland 
County, VA.
    (ii) Map of Unit SP1 follows:

[[Page 59608]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.086

    (7) Unit SP2: Middle Fork Holston River, Washington, Smyth, and 
Wythe Counties, Virginia.
    (i) The unit includes approximately 89 rkm (55 rmi) of the Middle 
Fork Holston River from its inundation at South Holston Lake (-
81.90427, 36.66338) in Washington County, VA, upstream to its 
headwaters (-81.31345, 36.88666) in Wythe County, VA.
    (ii) Map of Unit SP2 follows:

[[Page 59609]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.087

    (8) Unit SP3: Big Moccasin Creek, Scott and Russell Counties, 
Virginia.
    (i) The unit includes approximately 33 rkm (21 rmi) of Big Moccasin 
Creek from the Highway 71 Bridge crossing (-82.48361, 36.69109) in 
Scott County, VA, upstream to the Route 612 Bridge crossing (-82.32348, 
36.73740) near Collinwood in Russell County, VA.
    (ii) Map of Unit SP3 follows:

[[Page 59610]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.088

    (9) Unit SP4: Clinch River, Hancock County, Tennessee, and Scott, 
Russell, and Tazewell Counties, Virginia.
    (i) The unit includes approximately 263 rkm (163 rmi) of the Clinch 
River from rkm 255 (rmi 159) immediately below Grissom Island (-
83.40106, 36.43081) in Hancock County, TN, upstream to its confluence 
with Indian Creek near Cedar Bluff (-81.74999, 37.07995), Tazewell 
County, VA.
    (ii) Map of Unit SP4 follows:

[[Page 59611]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.089

    (10) Unit SP5: Powell River, Claiborne and Hancock Counties, 
Tennessee, and Lee County, Virginia.
    (i) The unit includes approximately 153 rkm (95 rmi) of the Powell 
River from the U.S. 25E Bridge (-83.63102, 36.54143) in Claiborne 
County, TN, upstream to rkm 256 (rmi 159) (-82.98111, 36.75730, 
upstream of Rock Island in the vicinity of Pughs) in Lee County, VA.
    (ii) Map of Unit SP5 follows:

[[Page 59612]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.090

    (11) Unit SP6: Nolichucky River, Cocke, Hamblen, and Greene 
Counties, Tennessee.
    (i) The unit includes approximately 52 rkm (32 rmi) of the 
Nolichucky River from rkm 14 (rmi 9), approximately 0.6 rkm (0.4 rmi) 
upstream of Enka Dam (-83.19630, 36.12970), where it divides Hamblen 
and Cocke Counties, TN, upstream to its confluence with Pigeon Creek, 
just upstream of the Highway 321 Bridge crossing (-82.92926, 36.07545), 
in Greene County, TN.
    (ii) Map of Unit SP6 follows:

[[Page 59613]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.091

    (12) Unit SP7: Hiwassee River, Polk County, Tennessee.
    (i) The unit includes approximately 24 rkm (15 rmi) of the Hiwassee 
River from the Highway 315 Bridge crossing (-84.50234, 35.18875) 
upstream to the Highway 68 Bridge crossing (-84.31728, 35.16811) in 
Polk County, TN.
    (ii) Map of Unit SP7 follows:

[[Page 59614]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.092

    (13) Unit SP8: Sequatchie River, Marion, Sequatchie, and Bledsoe 
Counties, Tennessee.
    (i) The unit includes approximately 151 rkm (94 rmi) of the 
Sequatchie River from the Highway 41, 64, 72, 2 Bridge crossing (-
85.60583, 35.06576) in Marion County, TN, upstream to the Ninemile 
Cross Road Bridge crossing (-85.08304, 35.69162) in Bledsoe County, TN.
    (ii) Map of Unit SP8 follows:

[[Page 59615]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.093

    (14) Unit SP9: Paint Rock River, Madison, Marshall, and Jackson 
Counties, Alabama.
    (i) The unit includes approximately 86 rkm (53 rmi) of the Paint 
Rock River from the Highway 431 Bridge crossing (-86.39109, 34.49926) 
along the Madison and Marshall County line, AL, upstream to the 
confluence of Estill Fork and Hurricane Creek in Jackson County, AL (-
86.17048, 34.89813). The unit includes approximately 11 rkm (7 rmi) of 
Larkin Fork from its confluence with the Paint Rock River (-86.20833, 
34.86218) upstream to its confluence with Bear Creek (-86.22512, 
34.94205) in Jackson County, AL; approximately 13 rkm (8 rmi) of Estill 
Fork from its confluence with the Paint Rock River (-86.17048, 
34.89813) upstream to its confluence with Bull Run (-86.15283, 
34.99118) in Jackson County, AL; and approximately 16 rkm (10 rmi) of 
Hurricane Creek from its confluence with the Paint Rock River (-
86.17048, 34.89813) upstream to its confluence with Turkey Creek (-
86.09441, 34.98370) in Jackson County, AL.
    (ii) Map of Unit SP9 follows:

[[Page 59616]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.094

    (15) Unit SP10: Elk River, Limestone County, Alabama, and Giles, 
Lincoln, Franklin, and Moore Counties, Tennessee.
    (i) The unit includes approximately 164 rkm (102 rmi) of the Elk 
River from its inundation at Wheeler Lake (-87.06503, 34.89788) in 
Limestone County, AL, upstream to its confluence with Farris Creek (-
86.31996, 35.16288) at the dividing line between Franklin and Moore 
Counties, TN.
    (ii) Map of Unit SP10 follows:

[[Page 59617]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.095

    (16) Unit SP11: Bear Creek, Colbert County, Alabama, and Tishomingo 
County, Mississippi.
    (i) The unit includes approximately 42 rkm (26 rmi) of Bear Creek 
from its inundation at Pickwick Lake at rkm 37 (rmi 23) (-88.08373, 
34.68909) in Colbert County, AL, upstream through Tishomingo County, 
MS, and ending at the Mississippi-Alabama State line (-88.15388, 34. 
49139).
    (ii) Map of Unit SP11 follows:

[[Page 59618]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.096

    (17) Unit SP12: Duck River, Humphreys, Perry, Hickman, Maury, 
Marshall, and Bedford Counties, Tennessee.
    (i) The unit includes approximately 348 rkm (216 rmi) of the Duck 
River from its inundation at Kentucky Lake (-87.88011, 36.00244) in 
Humphreys County, TN, upstream to its confluence with Flat Creek (-
86.48778, 35.47209) near Shelbyville in Bedford County, TN.
    (ii) Map of Unit SP12 follows:

[[Page 59619]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.097

    (18) Unit SP13: Buffalo River, Humphreys and Perry Counties, 
Tennessee.
    (i) The unit includes 50 rkm (31 rmi) of the Buffalo River from its 
confluence with the Duck River (-87.84261, 35.99477) in Humphreys 
County, TN, upstream to its confluence with Cane Creek (-87.78718, 
35.72298) in Perry County, TN.
    (ii) Map of Unit SP13 follows:

[[Page 59620]]

[GRAPHIC] [TIFF OMITTED] TR26SE13.098

* * * * *

    Dated: September 17, 2013.
 Michael J. Bean,
 Acting Principal Deputy Assistant Secretary for Fish and Wildlife and 
Parks.
[FR Doc. 2013-23357 Filed 9-25-13; 8:45 am]
BILLING CODE 4310-55-C