# Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Neosho Mucket and Rabbitsfoot

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2015-09200

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** April 30, 2015
- **Citation:** 80 FR 24692

## Text

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2013-0007; 4500030114]
RIN 1018-AZ30
Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Neosho Mucket and Rabbitsfoot

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), designate critical habitat for two species of mussels, the Neosho mucket (
Lampsilis rafinesqueana
) and rabbitsfoot (
Quadrula cylindrica cylindrica
), under the Endangered Species Act of 1973, as amended (Act). In total, approximately 777 river kilometers (483 river miles) in Arkansas, Kansas, Missouri, and Oklahoma fall with the boundaries of the critical habitat designation for the Neosho mucket and approximately 2,312 river kilometers (1,437 river miles) in Alabama, Arkansas, Illinois, Indiana, Kansas, Kentucky, Mississippi, Missouri, Ohio, Oklahoma, Pennsylvania, and Tennessee, fall within the boundaries of the critical habitat designation for the rabbitsfoot. The effect of this rule is to extend the Act's protections to these mussels' critical habitats.

DATES:

This rule is effective on June 1, 2015.

ADDRESSES:

This final rule is available on the Internet at
http://www.regulations.gov
and the Arkansas Ecological Services Field Office's Web site at
http://www.fws.gov/arkansas-es/
. Comments and materials received, as well as some supporting documentation we used in preparing this rule, are available for public inspection at
http://www.regulations.gov
. All of the comments, materials, and documentation we considered in this rulemaking are available by appointment, during normal business hours, at: U.S. Fish and Wildlife Service, Arkansas Ecological Service Field Office, 110 South Amity Road, Suite 300, Conway, AR 72032; telephone 501-513-4470; facsimile 501-513-4480.

The coordinates, plot points, or both from which the maps are generated are included in the administrative record for this critical habitat designation and are available at
http://www.fws.gov/arkansas-es/
, at
http://www.regulations.gov
at Docket No. FWS-R4-ES-2013-0007, and at the Arkansas Ecological Services Field Office (see
FOR FURTHER INFORMATION CONTACT
). Any additional tools or supporting information we developed for this critical habitat designation will also be available at the U.S. Fish and Wildlife Service Web site and Field Office outlined above, and also may be included in the preamble, at
http://www.regulations.gov
, or both.

FOR FURTHER INFORMATION CONTACT:

For general information about this rule, and information about the final designation in Arkansas, contact Melvin Tobin, Acting Field Supervisor, U.S. Fish and Wildlife Service, Arkansas Ecological Services Field Office, 110 South Amity Road, Suite 300, Conway, AR 72032; telephone 501-513-4470; facsimile 501-513-4480. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

For information about the final designation in Alabama, contact Bill Pearson, Field Supervisor, U.S. Fish and Wildlife Service, Alabama Ecological Services Field Office, 1208 Main Street, Daphne, AL 36526; telephone 251-441-5181; facsimile 251-441-6222.

For information about the final designation in Illinois, contact Richard C. Nelson, Field Supervisor, U.S. Fish and Wildlife Service, Rock Island Ecological Services Field Office, 1511 47th Avenue, Moline, IL 61265; telephone 309-757-5800; facsimile 309-757-5807.

For information about the final designation in Indiana, contact Scott Pruitt, Field Supervisor, U.S. Fish and Wildlife Service, Bloomington Ecological Services Field Office, 602 South Walker Street, Bloomington, IN 47403-2121; telephone 812-334-4261; facsimile 812-334-4273.

For information about the final designation in Kansas, contact Heather Whitlaw, Field Supervisor, U.S. Fish and Wildlife Service, Kansas Ecological Services Field Office, 2609 Anderson Avenue, Manhattan, KS 66502; telephone 785-539-3474; facsimile 785-839-8567.

For information about the final designation in Kentucky, contact Lee Andrews, Field Supervisor, U.S. Fish and Wildlife Service, Kentucky Ecological Services Field Office, 330 West Broadway, Suite 265, Frankfort, KY 40601; telephone 502-695-0468; facsimile 502-695-1024.

For information about the final designation in Mississippi, contact Stephen Ricks, Field Supervisor, U.S. Fish and Wildlife Service, Mississippi Ecological Services Field Office, 6578 Dogwood View Parkway, Suite A, Jackson, MS 39123; telephone 601-965-4900; facsimile 601-965-4340.

For information about the final designation in Missouri, contact Amy Salveter, Field Supervisor, U.S. Fish and Wildlife Service, Columbia Ecological Services Field Office, 101 Park DeVille Drive, Suite A, Columbia, MO 65203-0057; telephone 573-234-2132; facsimile 573-234-2181.

For information about the final designation in Ohio, contact Dan Everson, Field Supervisor, U.S. Fish and Wildlife Service, 4625 Morse Road, Suite 104, Columbus, OH 43230; telephone 614-416-8993; facsimile 614-416-8994.

For information about the final designation in Oklahoma, contact Jontie Aldrich, Acting Field Supervisor, U.S. Fish and Wildlife Service, Oklahoma Ecological Services Field Office, 9014 East 21st Street, Tulsa, OK 74129-1428; telephone 918-382-4500; facsimile 918-581-7467.

For information about the final designation in Pennsylvania, contact Lora Zimmerman, Field Supervisor, U.S. Fish and Wildlife Service, Pennsylvania Ecological Services Field Office, 315 South Allen Street, Suite 322, State College, PA 16801; telephone 814-234-4090; facsimile 814-234-0748.

For information about the final designation in Tennessee, contact Mary Jennings, Field Supervisor, U.S. Fish and Wildlife Service, Tennessee Ecological Services Field Office, 446 Neal Street, Cookeville, TN 38501; telephone 931-528-6481; facsimile 931-528-7075.

SUPPLEMENTARY INFORMATION:

Executive Summary

Why we need to publish a rule.
Under the Endangered Species Act of 1973, as amended (Act), when we determine that a species is an endangered or threatened species, we are required to designate critical habitat, to the maximum extent prudent and determinable. Designations of critical habitat can only be completed by issuing a rule.

On October 16, 2012, we published in the
Federal Register
a proposed rule to list the Neosho mucket and rabbitsfoot and designate critical habitat (77 FR 63440). We issued the final rule listing the Neosho mucket as endangered and the rabbitsfoot as threatened on September 17, 2013 (78 FR 57076).

The critical habitat units we are designating in this rule constitute our current best assessment of the areas that meet the definition of critical habitat for

Neosho mucket and rabbitsfoot. We are designating:

• For the Neosho mucket, in total, approximately 777 river kilometers (rkm) (483 river miles (rmi)) in 7 units in the Elk, Fall, Illinois, Neosho, Shoal, Spring, North Fork Spring, and Verdigris Rivers as critical habitat in Benton and Washington Counties, Arkansas; Allen, Cherokee, Coffey, Elk, Greenwood, Labette, Montgomery, Neosho, Wilson, and Woodson Counties, Kansas; Jasper, Lawrence, McDonald, and Newton Counties, Missouri; and Adair, Cherokee, and Delaware Counties, Oklahoma.

• For the rabbitsfoot, in total, approximately 2,312 rkm (1,437 rmi) in 31 units (3 with 2 subunits each) in the Neosho, Spring (Arkansas River system), Verdigris, Black, Buffalo, Little, Ouachita, Saline, Middle Fork Little Red, Spring (White River system), South Fork Spring, Strawberry, White, St. Francis, Big Sunflower, Big Black, Paint Rock, Duck, Tennessee, Red, Ohio, Allegheny, Green, Tippecanoe, Walhonding, Middle Branch North Fork Vermilion, and North Fork Vermilion Rivers and Bear, French, Muddy, Little Darby, and Fish Creeks as critical habitat in Colbert, Jackson, Madison, and Marshall Counties, Alabama; Arkansas, Ashley, Bradley, Clark, Cleburne, Cleveland, Drew, Fulton, Hot Spring, Independence, Izard, Jackson, Lawrence, Little River, Marion, Monroe, Newton, Ouachita, Randolph, Searcy, Sevier, Sharp, Van Buren, White, and Woodruff Counties, Arkansas; Massac, Pulaski, and Vermilion Counties, Illinois; Carroll, Pulaski, Tippecanoe, and White Counties, Indiana; Allen and Cherokee Counties, Kansas; Ballard, Edmonson, Green, Hart, Livingston, Logan, Marshall, McCracken, and Taylor Counties, Kentucky; Hinds, Sunflower, Tishomingo, and Warren Counties, Mississippi; Jasper, Madison, and Wayne Counties, Missouri; Coshocton, Madison, Union, and Williams Counties, Ohio; McCurtain and Rogers Counties, Oklahoma; Crawford, Erie, Mercer, and Venango Counties, Pennsylvania; and Hardin, Hickman, Humphreys, Marshall, Maury, Montgomery, Perry, and Robertson Counties, Tennessee.

• Compared to the proposed rule, this rule results in a net decrease of approximately 3 rkm (2 rmi) for the Neosho mucket and a net decrease of approximately 349 rkm (217 rmi) for the rabbitsfoot.

What this rule contains:
This rule designates critical habitat for the Neosho mucket and rabbitsfoot.

We have prepared an economic analysis and environmental assessment for the designation of critical habitat.
In accordance with Section 4(b)(2) of the Act, we prepared an analysis of the economic impacts of the critical habitat designations and related factors. We announced the availability of the draft economic analysis (DEA) and draft environmental assessment in the
Federal Register
on May 9, 2013 (78 FR 27171), allowing the public to provide comments on these documents. In response to requests we received, we reopened the comment period for the proposed critical habitat rule, DEA, and draft environmental assessment from August 27, 2013, to October 28, 2013 (78 FR 52894), and again from May 14, 2014, to July 14, 2014 (79 FR 27547). We have incorporated the comments and completed the final economic analysis (FEA) and associated summary memorandum describing our revised forecast calculations concurrently with this final determination.

Additionally, we have prepared an environmental assessment pursuant to the National Environmental Policy Act (NEPA). Based on the review and evaluation of the information contained in the environmental assessment, we determined that the designation of critical habitat for the Neosho mucket and rabbitsfoot does not constitute a major Federal action having a significant impact on the human environment under the meaning of section 102(2)(c) of NEPA.

Peer review and public comment.
We sought comments from three independent specialists to ensure our designation is based on scientifically sound data and analyses. We obtained opinions from one knowledgeable individual with scientific expertise to review our technical assumptions and analysis, and to determine whether or not we had used the best available information. The peer reviewer generally concurred with our methods and conclusions and provided additional information, clarifications, and suggestions to improve this final rule. Information we received from peer review is incorporated in this final designation. We also considered all comments and information we received from the public during the comment period.

Previous Federal Actions

Please refer to the proposed listing and critical habitat rule for the Neosho mucket and rabbitsfoot published in the
Federal Register
on October 16, 2012 (77 FR 63440), for a detailed description of previous Federal actions concerning these species and protection under the Act (16 U.S.C. 1531
et seq.
). The final rule listing the Neosho mucket as an endangered species and rabbitsfoot as a threatened species under the Act was published in the
Federal Register
on September 17, 2013 (78 FR 57076).

Summary of Comments and Recommendations

We requested written comments from the public on the proposed designation of critical habitat for the Neosho mucket and rabbitsfoot during four comment periods. The first comment period opened with the publication of the proposed rule on October 16, 2012, and closed on December 17, 2012 (77 FR 63440). Second, we requested comments on the proposed critical habitat designation and associated DEA and draft environmental assessment during a comment period that opened May 9, 2013, and closed on June 10, 2013 (78 FR 27171). Third, we re-opened the comment period for another 60 days from August 27, 2013, through October 28, 2013 (78 FR 52894). Based on continued significant interest in Arkansas regarding the proposed rule, we announced an additional reopening of the comment period for 60 days from May 14, 2014, through July 14, 2014 (79 FR 27547). We held public information meetings in Joplin, Missouri, on May 21, 2013; Greenville, Missouri, on May 23, 2013; Batesville, Arkansas, on June 4, 2014; and Benton, Arkansas, on June 5, 2014. The dates, times, and locations of these meetings were coordinated with interested stakeholders and noticed in newspapers and other media outlets. We also contacted appropriate Federal, State, and local agencies; tribes; scientific organizations; and other interested parties and invited them to comment on the proposed rule, DEA, and draft environmental assessment. In addition, we published a total of 27 legal public notices in the affected States at the beginning of the comment period for the proposed rule published on October 16, 2012.

During the first comment period, we received 10 comment letters directly addressing the proposed listing and critical habitat designation. During the second, third, and fourth comment periods, we received 11, 6, and 68 comment letters, respectively, addressing the proposed critical habitat designation, DEA, or draft environmental assessment. All substantive information provided during the comment periods has either been incorporated directly into this final determination or is addressed below. Comments are addressed in the following summary and incorporated into the final rule as appropriate.

Peer Review

In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from three knowledgeable individuals with scientific expertise on freshwater mussel conservation and biology, with familiarity of Neosho mucket and rabbitsfoot, the geographic region and river basins in which they occur, and conservation biology principles associated with these species. We received responses from all of the peer reviewers we contacted, but only one peer reviewer commented on the proposed critical habitat designation.

We reviewed all comments we received from the peer reviewer for substantive issues and new information regarding critical habitat for the Neosho mucket and rabbitsfoot. The peer reviewer generally concurred with our methods and conclusions, and provided additional information, clarifications, and suggestions to improve the final critical habitat rule. The peer reviewer's comments on the designation of critical habitat for these mussels are addressed in the following summary and incorporated into the final rule as appropriate.

Peer Reviewer Comments

(1)
Comment:
The peer reviewer noted the proposed critical habitat designation for rabbitsfoot references the oyster mussel (
Epioblasma capsaeformis
) as a listed species with overlapping critical habitat in the Duck River unit. The reviewer noted the oyster mussel in this river has been renamed the Duck River dartersnapper (
Epioblasma ahlstedti
) and is separate and distinct from the oyster mussel.

Our Response:
We agree with the reviewer and acknowledge the oyster mussel and Duck River dartersnapper are distinct and separate species. However, the Service has not yet made a listing and critical habitat determination for the new entity, the Duck River dartersnapper. We incorporated language in this final determination to clarify the species distinction and name change, but at this time, the Duck River dartersnapper and oyster mussel are considered synonymous according to our regulations. Until such time as the regulations are revised, the critical habitat that overlaps rabbitsfoot critical habitat in the Duck River will be identified as that of the oyster mussel.

General Comments

(2)
Comment:
Multiple commenters expressed concern about interagency consultation under section 7 of the Act, particularly any differences in process between consultation on impacts to the listed species and consultation on the species' designated critical habitat. They also expressed concern about impacts on non-Federal property owners and other entities from the new restrictions resulting from the designation of critical habitat.

Our Response:
Section 7(a)(2) of the Act, and its implementing regulations at 50 CFR part 402, subpart B, requires Federal agencies to consult with the Service to ensure that they are not undertaking, funding, permitting, or authorizing actions likely to jeopardize the continued existence of listed species or destroy or adversely modify designated critical habitat. Only projects that have a Federal nexus (projects that are funded, authorized, or carried out by Federal agencies) are subject to this requirement under section 7 consultation. In fulfilling these consultation requirements, each Federal action agency and the Service must use the best scientific and commercial data available.

In occupied critical habitat, consultation for potential impacts to the species and potential impacts to critical habitat occur at the same time. The health of both mussels is closely tied to the health of their habitat. Therefore, the Service does not expect to recommend additional conservation efforts for projects to avoid adverse modification of critical habitat above and beyond what would already be required to avoid jeopardizing the continued existence of the listed species. In addition, other federally listed mussels occur in the same reaches as certain areas of designated critical habitat for Neosho mucket or rabbitsfoot; the conservation efforts already required for these listed mussels through consultation will provide the same conservation for Neosho mucket or rabbitsfoot.

As a result, we conclude that additional (incremental) project modification costs are unlikely from this designation of critical habitat. Any incremental costs, as predicted in our final economic analysis (FEA), are primarily a result of the additional requirement of considering impacts to critical habitat during these section 7 consultations. These costs are borne by the Service, the Federal action agency, and the third-party participants (generally the project proponents), including State and local governments and private parties. For a summary of the parties involved in section 7 consultations and their respective unit costs, see Exhibit 2-1 of the FEA. Chapter 3 of the FEA provides a detailed discussion of the types of third parties participating in consultations.

Federal Agency Comments

(3)
Comment:
The U.S. Army Corps of Engineers (ACOE) Pittsburgh District (COEPD) expressed concern that designating critical habitat for the rabbitsfoot may affect the COEPD's navigation and maintenance dredging activities in the Alleghany River, its operation of Alleghany Reservoir, and its regulatory program. ACOE stated that additional avoidance measures will be required to adequately protect habitat for rabbitsfoot.

Our Response:
The federally endangered clubshell (
Pleurobema clava
), northern riffleshell (
Epioblasma torulosa rangiana
), rayed bean (
Villosa fabalis
), and snuffbox (
Epioblasma triquetra
) mussels occur in the same reach of the Allegheny River as rabbitsfoot. Therefore, section 7 requires consultation by Federal agencies for these listed species (see our response to Comment 2). Project modifications that minimize effects to these species would also minimize effects to rabbitsfoot. Thus, we do not expect any conservation measures or project modifications and costs for rabbitsfoot critical habitat beyond those already required for these other endangered mussels.

(4)
Comment:
The COEPD asked how tributary streams to the Allegheny River will be affected by designation of critical habitat for rabbitsfoot.

Our Response:
French Creek (proposed Unit RF23; Unit RF22 in this rule) and Muddy Creek (proposed Unit RF25; Unit 24 in this rule) are the only two tributaries of the Allegheny River designated as critical habitat for rabbitsfoot. The Service will work with COEPD to determine whether any of the current, ongoing, or planned COEPD projects may have an effect on other tributaries within their district. As stated previously, the Service does not expect to recommend any project modifications in order to minimize effects to rabbitsfoot beyond those already required for other listed mussels in the Allegheny River basin.

(5)
Comment:
The ACOE Huntington District stated that the designation of critical habitat for rabbitsfoot in the Walhonding River (proposed Unit RF27) is not consistent with the definition of critical habitat (that lakes and impoundments are not included). They stated that 40 percent of the Walhonding River upstream of Mohawk Dam in Ohio is impounded for flood control.

Our Response:
Mohawk Dam is a dry dam, meaning during normal flows,

water passes through the dam unimpeded and there are no permanent pools of water (areas of inundation) upstream resulting from the structure. During high flow events, the dam temporarily reduces flows downstream of the structure to maintain flows within the river banks. Hoggarth (1995-1996, pp. 163-164) found a stable and diverse mussel assemblage, including adult and juvenile rabbitsfoot, upstream of Mohawk Dam. Because Mohawk Dam does not inundate riverine habitat by forming a lake or reservoir and a diverse and abundant mussel assemblage inhabits upstream reaches behind the dam, we believe the habitat there contains the primary constituent elements for rabbitsfoot critical habitat (see
Primary Constituent Elements for Neosho Mucket and Rabbitsfoot,
below).

Section 3.3.1 of the FEA has been amended to add information about the presence of the dam in the study area of proposed Unit RF27; however, the Service does not expect to recommend additional conservation efforts for the dam, above and beyond what would be required to protect against jeopardy of the species, to protect against adverse modification of critical habitat.

(6)
Comment:
The ACOE Little Rock District stated that the designation will result in increased costs for energy development and that the estimated cost of timing restrictions and limiting project scope are too low, as projects may be delayed or denied due to permitting and modification issues.

Our Response:
The discussion of potential baseline impacts in the FEA has been updated to reflect additional information provided by the ACOE regarding impacts to energy development associated with avoidance and delays related to the presence of the species. Exhibit 4-2 of the FEA (“Ranges of Costs of Common Conservation Efforts for Mussel Species”) notes that the cost of conservation efforts may be higher than the estimates shown. A key conclusion of the analysis is that the listing of the species may lead to many conservation efforts (such as those presented in Exhibit 4-2) that would not have been required previously. However, as outlined in our response to Comment 2, designation of critical habitat is not anticipated to generate additional conservation measures for these two mussels beyond those generated by the species' listing.

State Agency Comments

Section 4(i) of the Act states, “the Secretary shall submit to the State agency a written justification for [her] failure to adopt regulations consistent with the agency's comments or petition.” The designation of critical habitat for Neosho mucket includes streams in Arkansas, Kansas, Missouri, and Oklahoma, and for rabbitsfoot includes streams in Alabama, Arkansas, Illinois, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Ohio, Oklahoma, Pennsylvania, and Tennessee. We received comments from the States of Illinois, Kansas, Pennsylvania, Ohio, and Oklahoma regarding the proposal and address them below.

(7)
Comment:
The Pennsylvania Fish and Boat Commission (PFBC) supported the designation of critical habitat for rabbitsfoot. PFBC recommended extending the critical habitat designation for rabbitsfoot upstream from Kidds Mill Road to Pymatuning Dam on the Shenango River. Western Pennsylvania Conservancy (WPC) submitted a public comment with the same recommendation. PFBC provided a report by Bursey (1987) documenting the presence of rabbitsfoot at Porter Road, 8.5 rkm (5.3 rmi) upstream of Kidds Mill Road. PFBC stated that without critical habitat designation in this location, any newly discovered rabbitsfoot populations in this river reach would not be protected by the Act.

Our Response:
We appreciate PFBC's support and look forward to continuing work with the PFBC and WPC to recover rabbitsfoot. Considering the information in Bursey (1987), we agree the extent of critical habitat designation in the Shenango River should be extended 8.8 rkm (5.4 rmi) upstream to Porter Road. This modification is reflected in this final determination. As described under
Criteria Used to Identify Critical Habitat,
we reviewed available information pertaining to the habitat requirements of rabbitsfoot. In accordance with the Act and its implementing regulation at 50 CFR 424.12(e), we considered whether designating additional areas—outside those currently occupied as well as those occupied at the time of listing—are necessary to ensure the conservation of the species. However, we respectfully disagree that there is sufficient scientific information from which to conclude that the reach from Pymatuning Dam to Porter Road is occupied by rabbitsfoot. While this reach appears to contain sufficient physical or biological features to support the life history of mussels, possibly including rabbitsfoot, we determined that designating unoccupied critical habitat for rabbitsfoot was not essential for the conservation of the species in this reach due to the altered natural stream hydrology and geomorphology. Unoccupied areas exhibit limited habitat availability, degraded habitat, or low potential value for management, and there are no historical records of occurrence within the stream reach for rabbitsfoot (see also
Criteria Used to Identify Critical Habitat
).

This does not mean, however, that this reach will be without protection if the rabbitsfoot is later found to occupy that reach. The protections of the Act brought about by the species' listing are in effect wherever the species is found. In addition, the reach upstream of Porter Road will continue to be protected through the conservation actions implemented for the other listed mussels (
e.g.,
clubshell) that currently occur in that area.

(8)
Comment:
PFBC suggested that by restricting critical habitat to occupied areas, the Service appears to be unintentionally inhibiting recovery of rabbitsfoot, as habitat loss outside of critical habitat areas cannot be avoided under a section 7 jeopardy analysis.

Our Response:
It is correct that section 7 consultation would not be triggered for potential rabbitsfoot habitat that is not occupied by the species or designated as critical habitat (although some areas may be occupied by other listed species and/or critical habitat for other listed species that would trigger section 7 consultations on Federal actions). However, we disagree that recovery of either species will be inhibited because we are not designating unoccupied habitat. We have found that unoccupied stream reaches are not essential for the conservation of either species for one or more of the following reasons:

(a) Unoccupied habitats are isolated from occupied habitats due to reservoir construction and dam operations;

(b) Unoccupied areas exhibit limited habitat availability, degraded habitat, or low potential value for management;

(c) Collection records for both species indicate that these species have been extirpated from unoccupied areas for several decades or more, and, in some cases, reintroduction efforts have not been successful at re-establishing populations; or

(d) There are no historical records of occurrence within the stream reach for Neosho mucket, rabbitsfoot, or both.

While we recognize the importance of unoccupied habitat to recovery of listed species, in this case unoccupied habitat does not at this time provide habitat for reintroduction or reduce the level of stochastic and human-induced threats (see
Criteria Used to Identify Critical Habitat
for more detailed information).

(9)
Comment:
The Ohio Department of Transportation (ODOT) inquired about costs for highway departments and other public infrastructure entities and whether normal consultation time would increase due to the designation of critical habitat. ODOT believes the estimated economic impact of $1.4 million to the transportation and utility sectors over the next 20 years is an underestimate. This conclusion is based on the assumption that no instream work will be allowed for any project over or near critical habitat. ODOT provides an example of replacing a multiple span bridge with a single span structure increases cost by an average of 260 percent, or from $2.2 million to $5.6 million, exceeding the Service's estimate of economic impacts. The agency also expressed the belief that replacement or maintenance costs to improve or maintain 23 bridge structures over designated critical habitat areas will increase and the economic impact to ODOT alone will exceed the estimated $1.4 million forecast in the economic analysis for transportation and utility activities without considering increased costs associated with coordination, survey, reporting, mitigation, and monitoring.

Our Response:
Future section 7 consultations concerning transportation and utilities are expected to occur in 35 critical habitat units, including the Walhonding River and Little Darby and Fish Creeks (proposed Units RF27, RF28, and RF30; Units RF26, RF27, and RF29 in the final rule) in Ohio. Collectively, transportation and utilities consultations in these three critical habitat units are forecast to cost $15,000 over the next 20 years or $980 annually (one percent of total transportation and utilities costs). For comparison, the total transportation and utilities cost for all critical habitat units are forecast to cost $1,400,000 over the next 20 years or $93,000 annually (Exhibit 3-9 in the FEA). The designation of critical habitat will not preclude the construction of instream bridge support structures or maintenance to existing piers.

The designation of critical habitat does not change the time frames required to complete consultation under section 7 of the Act and its implementing regulations at 50 CFR part 402, subpart B. As previously stated, conservation measures required to avoid jeopardizing the continued existence of the species are expected to be similar to those required to avoid adversely modifying critical habitat (that is, we foresee no conservation actions specifically due to critical habitat). We do not expect the designation of critical habitat to lengthen the consultation process. Thus, the best available economic data do not support ODOT's assertion.

(10)
Comment:
The ODOT inquired about how the Service ensures consistent consultation on critical habitat throughout the range of rabbitsfoot. ODOT concluded that the term “adverse modification” is vague and interpretations, policies, and level of effort could vary among Service offices.

Our Response:
In 1986, the Service and the National Marine Fisheries Service (collectively referred to as the Services) established a definition for “destruction or adverse modification” (50 CFR 402.02) that was later found to be invalid by the U.S. Court of Appeals for the Fifth (2001) and Ninth (2004) Circuits. The Services each issued guidance to discontinue the use of the 1986 adverse modification regulation. Specifically, in evaluating an action's effects on critical habitat as part of interagency consultation, the Services began applying the definition of “conservation” as set out in the Act, which defines conservation (and conserve and conserving) to mean “to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no long necessary” (16 U.S.C. 1532(3)). Further, after examining the baseline and effects of the action, the Services began analyzing whether the implementation of the Federal action under consultation, together with any cumulative effects, would result in the critical habitat remaining “functional” (or retain the current ability for the primary constituent elements to be functionally established) to serve the intended conservation role for the species.

Section 7(a)(2) of the Act defines the consultation process, which is further developed in regulations set forth at 50 CFR part 402 and in the Service's section 7 handbook (guidance). The handbook ensures consistent implementation of consultation procedures by Service field offices responsible for carrying out section 7 activities throughout the range of rabbitsfoot. Furthermore, the Service and the Federal action agency are required to use the best available science in conducting the consultations (see our response to Comment 2).

On May 12, 2014, we published a proposed rule in the
Federal Register
(79 FR 27060) to adopt the following definition of destruction or adverse modification: “Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the conservation value of critical habitat for listed species. Such alterations may include, but are not limited to, effects that preclude or significantly delay the development of physical or biological features that support the life-history needs of the species for recovery.” On June 26, 2014 (79 FR 36284) we extended the public comment period on the proposal to October 9, 2014. We have not yet published a final rule for this action, but expect to do so in the spring of 2015.

(11)
Comment:
The ODOT requested an exclusion from critical habitat designation for portions of the river underneath and directly adjacent to roadway bridges in the Walhonding River and Little Darby and Fish Creeks. ODOT concluded that since bridge structures already exist and areas under the bridge are subject to regular maintenance activities that section 7 consultation for other listed mussels in these streams would be adequate to protect rabbitsfoot while streamlining consultation.

Our Response:
Under section 4(b)(2) of the Act and its implementing regulations at 50 CFR 424.19, we may exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise her discretion to exclude the area only if such exclusion would not result in the extinction of the species.

This area is not subject to exclusion based on impacts to national security or other relevant impacts, such as the presence of a conservation plan (for example, a habitat conservation plan (HCP)), status as a tribal land, or an existing partnership. In evaluating whether it should be excluded due to economic impacts, we concluded that no change in economic activity levels or the management of economic activities is expected to result from the critical habitat designation (see our response to Comment 2). Some additional costs reflect additional administrative effort as part of future section 7 consultations in order to consider the potential for activities to result in adverse modification of critical habitat. Section 7 consultation is required in occupied habitat with or without a critical habitat

designation. We acknowledge it is unlikely additional conservation measures beyond those identified to avoid jeopardy for the species would be required to avoid adverse modification. Accordingly, the Secretary is not exerting her discretion to exclude any areas in the Walhonding River and Little Darby and Fish Creeks from the designation based on economic impact, national security impact, or other relevant impacts.

(12)
Comment:
The Oklahoma Department of Wildlife Conservation (ODWC) stated that it does not support designation of critical habitat for Neosho mucket and rabbitsfoot. ODWC questioned potential benefits of critical habitat designation cited in the proposed rule (77 FR 63472), which ODWC stated are not compelling arguments in favor of designation. ODWC concluded:

(a) The presence of Neosho mucket or rabbitsfoot in a stream segment already is a trigger for section 7 consultation and the designation of critical habitat does not change this requirement;

(b) The focusing of conservation activities on the most essential features and area for each mussel species should be addressed through development and implementation of a recovery plan, and the designation of critical habitat is not essential to this prioritization process and can be articulated just as effectively in the recovery plan;

(c) The educational benefits derived from critical habitat can be conveyed through Federal, State, and private entities more effectively with an informative, detailed, and publicly accessible Web site; and

(d) It is not clear how designation of critical habitat prevents “people from causing inadvertent harm to the species” as the designation only applies to Federal actions and not those of the general public.

ODWC further concluded, based on these four arguments, that there is no unique added value to the designation of critical habitat.

Our Response:
Section 4(a)(3)(A) of the Act requires that, to the maximum extent prudent and determinable, we designate critical habitat at the time a species is determined to be endangered or threatened. Our regulations at 50 CFR 424.12(a)(1) state that designation of critical habitat is not prudent when one or both of the following situations exist: (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) such designation of critical habitat would not be beneficial to the species. The Service determined that there is no threat of take attributed to collection or vandalism under Factor B for either species, and identification and mapping of critical is not expected to initiate any such threat. We also believe that designating critical habitat will be beneficial to the species, as described in the proposed rule (77 FR 63440, p. 63472) (see also our response to Comment 52, below). We address ODWC's specific conclusions below.

(a) We acknowledge that presence of Neosho mucket or rabbitsfoot is a trigger for section 7 consultation with or without the designation of occupied critical habitat. We also acknowledge occupied areas outside the final critical habitat designation will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act, regulatory protections afforded by the section 7(a)(2) jeopardy standard, and the prohibitions of section 9 of the Act. However, if designated critical habitat should become unoccupied at some point in the future, the designation of critical habitat ensures regulatory protections afforded by section 7(a)(2).

(b) We acknowledge that critical habitat designation is not essential to establish recovery criteria and prioritize recovery actions during development and implementation of recovery plans. However, critical habitat designations identify, to the extent known using the best scientific data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat), which can be very beneficial both in focusing conservation efforts on specific activities, areas, or features and in establishing future recovery efforts. Designation can often help to focus recovery efforts and ensure these features, areas, and activities receive priority during section 7 consultations and the planning efforts of both the Service and its partners.

(c) We agree that the Internet and social media are effective venues to convey the benefits of designating critical habitat. We also agree there are many misperceptions by entities and individuals regarding designation of critical habitat. The Service maintains a publicly accessible Internet site, social media, and other educational materials related to critical habitat and the Act, in general, to inform the public and abate concerns. In outlining benefits of designating critical habitat for Neosho mucket and rabbitsfoot, our intent was not to imply that designation of critical habitat is only an educational tool for the recovery of Neosho mucket and rabbitsfoot. To the contrary, critical habitat is a tool within the Act which identifies areas essential to the conservation of endangered and threatened species and that may require special management considerations. Through identification of physical or biological features essential to the conservation of Neosho mucket and rabbitsfoot, critical habitat informs agencies, entities, and individuals about habitats and specific features of these habitats essential to the conservation of Neosho mucket and rabbitsfoot and helps focus efforts. Accordingly, even though designation is not the sole educational tool in the recovery process, it may still provide educational benefits.

(d) Federal agencies must consult with the Service to ensure that any action authorized, funded, or carried out will not destroy or adversely modify critical habitat for listed species. This rule identifies the primary constituent elements of the physical or biological features essential to the conservation of Neosho mucket and rabbitsfoot. These primary constituent elements will help Federal agencies (and those for which they are providing funding, providing authorization, or completing activities) in planning or evaluating projects. In addition, it may be beneficial to those who wish to conserve this species to know which areas have been determined to be essential to the conservation of the species through this designation. The maps in the designation spatially depict the areas we have identified as critical habitat, assisting with these efforts.

(13)
Comment:
ODWC stated that the Service (a) did not identify and quantify the relative importance of potential threats in each critical habitat unit, and (b) cannot determine whether Federal actions are important to the recovery of Neosho mucket and rabbitsfoot. ODWC further concluded that if Federal actions are not relevant then designation of critical habitat has no recovery value.

Our Response:
In each unit description in the proposed designation, the Service identified physical or biological features that may require special management considerations or protections to address threats such as land use conversion; alteration of water chemistry and water and sediment quality; changes in stream bed material composition and quality from activities that release sediments and nutrients into the water, such as urban development and associated construction projects; livestock grazing; and releases from municipal effluents. In addition, in the Effects of Critical Habitat Designation,
Section 7 Consultation
and
Application of the “Adverse Modification” Standard
sections in the proposed designation (77

FR 63440), we discuss the Federal process concerning section 7 consultations and review of projects for adverse modification of designated critical habitat. We provide a description of the actions and activities that may result in adverse effects to occupied Neosho mucket and rabbitsfoot critical habitat. This is not an exhaustive list, and we note that the activities listed may be able to be modified by measures which would sufficiently offset the potential adverse effects so that the value of the habitat for its intended conservation function is not appreciably reduced. The occurrence of the actions we described will not always result in adverse modification of critical habitat if the available compensation can reduce the effects of these actions on the habitat.

These types of activities would require section 7 consultation only in cases where there is Federal involvement (see response to Comment 2). The FEA examined the Service's section 7 consultation record as a means to project future consultations. The FEA also accounts for projected increases in section 7 consultations, by activity category, based on communication with Service field offices and Federal agencies. Additional supporting information and documentation for the FEA is contained within our administrative record. The ACOE, Bureau of Land Management, U.S. Department of Energy, Federal Energy Regulatory Commission, U.S. Department of Transportation (DOT), U.S. Department of Agriculture (USDA) Forest Service, Environmental Protection Agency (EPA), and Tennessee Valley Authority are Federal agencies who may fund, permit, or conduct actions that may potentially affect designated critical habitat for Neosho mucket or rabbitsfoot and are expected to consult with the Service under section 7 of the Act. Recovery of these mussels will not be attained without the valuable contribution of our Federal partners, in accordance with section 7(a)(1) of the Act, as well as our State and nongovernmental partners.

(14)
Comment:
The ODWC recommended modification to Unit RF2 (Verdigris River) for rabbitsfoot. ODWC indicated that the critical habitat unit includes a portion of the Verdigris River downstream of Oklahoma Highway 266, which has been substantially modified by dredging and channel modification to create the upper end of the McClellan-Kerr Arkansas River Navigation System.

Our Response:
In response to this comment, we have re-evaluated Unit RF2, and, based on the best available scientific information, we are modifying it in this final rule. For further information, see Summary of Changes from Proposed Rule, below.

(15)
Comment:
The ODWC questioned the biological benefit of including Unit NM1 for Neosho mucket due to existing State water quality standards. ODWC also suggested that the designation of critical habitat may hinder recreational activity in the Illinois River.

Our Response:
Please refer to our responses for Comments 12 and 13. Since recreational activities on the Illinois River are not regulated by a Federal agency, we do not anticipate any effects to recreational activities due to the designation of critical habitat in Unit NM1.

(16)
Comment:
The Pennsylvania Department of Transportation (PDOT) opposed the designation of critical habitat for the rabbitsfoot due to the financial hardship it believes the designation will bring to Pennsylvania taxpayers. PDOT concluded it would not be a prudent expense of transportation dollars to engage in all the coordination and expense associated with the critical habitat designation.

Our Response:
All PDOT activities authorized or funded, in whole or part, by the Federal Highway Administration (FHA) or permitted by a Federal agency such as the ACOE (such as, placement of bridge piers in a navigable stream) are required to adhere to section 7(a)(2) of the Act (see our response to Comment 2). PDOT projects that have no Federal nexus are not subject to section 7 consultation. However, as previously stated, four other federally endangered mussels occur in the same reaches of the Allegheny and Shenango Rivers and French and Muddy Creeks as the rabbitsfoot. Although no critical habitat has been designated for these mussels, we believe that project modifications that have been implemented to minimize effects to these listed mussel species are the same types of measures that would be implemented to minimize effects to rabbitsfoot and its critical habitat. Therefore, we expect the additional cost to taxpayers to be minimal.

(17)
Comment:
The PDOT stated there will be additional costs associated with section 7 consultation with FHA due to the requirement to prepare a biological assessment in designated critical habitat regardless of species presence. PDOT requested evaluation of all financial impacts to the agency associated with designating critical habitat. PDOT also suggested adverse modification has not occurred previously at completed bridge projects as evidenced by the Service's willingness to utilize these sites for reintroduction of endangered mussels.

Our Response:
FHA is required under section 7(a)(2) of the Act to evaluate beneficial and adverse effects associated with their actions in areas containing listed species. While the Service agrees some completed bridge project sites may serve as suitable sites for mussel augmentation and reintroduction, potential effects of future bridge projects to listed species and their critical habitat will vary depending on a variety of factors, including, but not limited to, the location and type of structure being proposed, as well as the extent to which rabbitsfoot occurs in the project area. Under section 7(a)(2) of the Act and its implementing regulations at 50 CFR part 402, subpart B, Federal agencies are not required to prepare biological assessments for actions that they determine will have no effect, or that may affect but are not likely to adversely affect, a species and its designated critical habitat. Therefore, if a bridge project is deemed not likely to adversely affect this species or other listed species or their critical habitat, no biological assessment would be required by the agency.

One of the main conclusions of the FEA is that the Service does not expect critical habitat designation to result in project modification costs beyond what would be requested to avoid jeopardy to the species. As a result, we expect incremental economic impacts of considering critical habitat as part of the forecast section 7 consultations will be limited to additional administrative costs to the Service, Federal agencies, and third parties. Future section 7 consultations concerning transportation and utilities are expected to occur in 34 critical habitat units, including French Creek, the Allegheny River, and Muddy Creek (Units RF22, RF23, and RF24 in this rule) that occur in Pennsylvania. Collectively, transportation and utilities consultations in these three critical habitat units are forecast to cost $196,000 over the next 20 years or $12,500 annually. For comparison, the total transportation and utilities cost for all critical habitat units are forecast to cost $1,400,000 over the next 20 years or $93,000 annually (Exhibit 3-9 in the FEA; IEc 2014a, p. 1). As outlined in the FEA, these costs are the incremental costs of the critical habitat designation (that is, those costs, such as expenditures related to consultation, which can be attributed solely to critical habitat).

(18)
Comment:
PDOT asked the Service “that if the Rabbitsfoot Mussel is listed and critical habitats are designated, that there is solid scientific

evidence that the species for which the critical habitat is being designated is present and/or uses the habitat.” PDOT asserted that it committed significant monetary resources in the past to mitigate effects to endangered and threatened species in areas with no evidence of species presence.

Our Response:
The Act and its implementing regulations require the Service to use the best available scientific and commercial data during consultation (see response to Comment 2). The Service will continue to work with PDOT and other partners to ensure procedures to document presence or absence of the mussels is scientifically supported and to avoid and minimize effects to the rabbitsfoot in areas where this and other listed species are present and critical habitat is designated.

(19)
Comment:
PDOT requested minor road work (such as rehabilitation or resurfacing) and bridge work (such as replacement and repair) on existing roads be exempt from formal coordination (consultation), including areas 100 feet (ft) upstream and downstream of the project foot print.

Our Response:
Only PDOT projects that have a Federal nexus are subject to consultation (see our response to Comment 2). There is no
de minimis
exception from the consultation requirement. However, to streamline the consultation process, a Federal agency's determination of “no effect” or “no adverse modification” does not require concurrence by the Service.

(20)
Comment:
PDOT expressed concern with its ability to quickly issue hauling permits for oversize and overweight loads and to restrict routing for materials such as fracking brine. The need to restrict routing for a subset of haulers such as hazardous material haulers would preclude PDOT's ability to electronically permit and route these haulers, resulting in extensive time delays and subsequently a need for a significant increase in manpower. PDOT concluded that manual permit review to assure limited section 9 liability represents significant economic burden to both the State of Pennsylvania (due to increases in manpower) and to many other industries (due to permit delays).

PDOT also identified the DOT's Federal Motor Carrier Safety Administration and Pipeline and Hazardous Material Safety Administration as the regulatory agencies with oversight for transportation of hazardous materials on main traffic routes. PDOT concluded that a section 7 consultation is required for each load in response to the designation of critical habitat and each tanker truck is subject to those consultation procedures or detour routes around critical habitat (for example, to avoid crossing designated critical habitat in French Creek).

Our Response:
The Service appreciates PDOT's input. We respectfully disagree that the designation of critical habitat for rabbitsfoot would increase PDOT's section 9 liability and create or increase an economic burden on the State of Pennsylvania and industries transporting hazardous materials. A key conclusion of the FEA for rabbitsfoot critical habitat designation is that the Service does not expect critical habitat designation to generate additional requests for project modification in any of the critical habitat units, including the Allegheny and Shenango Rivers and French and Muddy Creeks. Our conclusion is based on the FEA and that the creeks and rivers where rabbitsfoot occurs are already inhabited by other federally listed mussels. Project modifications that minimize effects to other listed mussel species within these reaches also would minimize effects to rabbitsfoot (see our response to Comment 2).

(21)
Comment:
PDOT indicated it has pre- and post-Marcellus and Utica shale drilling truck accident reports that may be useful in identifying whether increased oil and gas exploration has or has not translated to an increased threat of crashes that may release contaminants.

Our Response:
The Service appreciates PDOT's cooperation to further identify potential threats to rabbitsfoot and designated critical habitat. Your comments have been forwarded to our Pennsylvania Ecological Services Field Office so that they may review the information and, if appropriate, work cooperatively with PDOT to minimize any potential threats to rabbitsfoot and its designated critical habitat and other listed mussels from contamination that may result from these accidents.

(22)
Comment:
PDOT stated that the information and data it provided refines the Service's analysis regarding the proposed designation of critical habitat for rabbitsfoot in proposed Units RF23, RF24, RF25, and RF32 and provided evidence that diminishes, to a significant extent, the threat from chemical contamination as a result of spills at bridge crossings over critical habitat. PDOT requested a detailed list of hazardous materials that pose a threat of adverse modification in order to plan and prepare for actions PDOT must take to reduce their potential liability under section 9 of the Act.

Our Response:
Due to the vast number of hazardous materials hauled on the nation's roads and limited toxicity data available for different life stages of freshwater mussels and their potential sensitivity to many of these compounds and effects to their habitat, the Service is unable to provide a comprehensive list of hazardous materials that may affect rabbitsfoot designated critical habitat. However, please refer to the Chemical Contaminants section of the proposed listing and designation of critical habitat rule (77 FR 63440) for further detail on compounds known to adversely affect freshwater mussels and their habitats.

(23)
Comment:
ODOT and PDOT expressed concern that the DEA underestimated impacts to the transportation sector associated with the proposed designation. They asserted that the DEA does not account for the additional consultation, coordination, surveying, reporting, assessment, mitigation, and monitoring costs that will result from the rule. According to one comment, there are 23 existing structures crossing critical habitat in Ohio that will be affected by the rule due to project modifications that will discontinue in-water work. Another comment asserted that permits for roadwork in Pennsylvania will be interrupted as a result of the rule, and that this will result in time delays and traffic diversions.

Our Response:
Section 3.3.6 of the FEA provides information on the likely incremental impacts of the designation to transportation and utility-related activities. The analysis forecasts future section 7 consultations on these activities using both historical consultation data and information from the Service's field offices that have jurisdiction in the study area regarding likely future consultations. As the commenters did not provide specific information regarding the number or rate of future consultations in the study area (including Ohio) over the next 20 years, the analysis relies on the estimates provided in section 3.3.6 of the FEA. Specifically, the FEA estimates that over the next 20 years, approximately 13.3 consultations are likely to occur for transportation projects in proposed critical habitat units RF27 and RF28, which are located in Ohio, in addition to approximately 3.3 consultations in proposed critical habitat unit RF30, which is located in Indiana and Ohio.

The designation of critical habitat is not anticipated to generate additional conservation measures for the two mussels beyond those that would be generated by the species being listed.

Regardless of whether critical habitat is designated, the time period for consultation does not change. Therefore, the designation is unlikely to result in incremental project delays due to the consultation process. As a result, we expect the quantified direct incremental impacts of the designation will be limited to additional administrative costs to the Service, Federal agencies, and third parties of considering critical habitat as part of future section 7 consultations (see our response to Comment 2).

(24)
Comment:
The Kansas Department of Wildlife, Parks and Tourism (KDWPT) expressed concern regarding the proposed designation of critical habitat for Neosho mucket in the Cottonwood River (Unit NM8). KDWPT provided data from 2013 surveys of two Neosho mucket reintroduction sites. Only one live Neosho mucket was located from the original reintroduction effort. KDWPT contended that this river reach does not support a self-sustaining population and that there are no data available to suggest reintroduction efforts have been successful; therefore, this habitat should not be considered occupied.

Our Response:
We agree that the Cottonwood River should not be considered occupied, and we are not designating critical habitat for Neosho mucket in the Cottonwood River. We have clarified our definition of occupied for the Neosho mucket (see Summary of Changes from Proposed Rule).

(25)
Comment:
KDWPT suggested that the Cottonwood River population of Neosho mucket be considered an experimental population and propagated individuals be exempted from take under the Act. KDWPT also suggested that safe harbor agreements should be made available to any landowner agreeing to release Neosho mucket individuals in the Cottonwood River.

Our Response:
We are not designating critical habitat for Neosho mucket in the Cottonwood River (proposed Unit NM8), Chase County, Kansas. Recent KDWPT data from 2013 (Tabor 2013, pers. comm.) do not support that released individual mussels into the Cottonwood River were able to survive and become established (thriving and sufficiently viable to suggest continuation or permanence without human intervention), and the future success of the reintroduction efforts are unknown at this time (see Summary of Changes from Proposed Rule, below).

The Secretary may authorize the establishment of an experimental population (including offspring arising solely therefrom) by regulation under section 10(j) of the Act if the location of that population is wholly separate geographically from nonexperimental populations of the same species. However, the Cottonwood River is not outside the current range of Neosho mucket, so such a regulation is not appropriate. If any of the released Neosho mucket individuals are found to have survived, they are protected by the provisions of the Act as an endangered species.

If determined to be appropriate for the landowner and conservation of the mussel, the Service will work with interested property owners to develop a safe harbor agreement and to apply for an enhancement of survival permit pursuant to section 10(a)(1)(A) of the Act. The Service will also assist property owners in identifying actions they can voluntarily undertake or forego to benefit species covered by the safe harbor agreement and permit.

Public Comments

(26)
Comment:
Several commenters expressed concern that the designation of critical habitat in Arkansas and Kansas gives the Service authority to restrict activities on privately owned land. The commenters specifically expressed concern regarding landowner water development projects, development or modification of livestock and irrigation water rights, normal aquaculture, farming and ranching activities, timber harvests, housing development projects, and development of mineral rights. They wanted to know whether these activities would trigger section 7 consultation and, if so, what the costs would be to private landowners for these consultations.

Our Response:
The designation of critical habitat will not increase government regulation of private land. Private activities are not subject to the Act's section 7 consultation requirements unless the activities are authorized, funded, or carried out by a Federal agency. Most normal operations for rearing of livestock or fish, or for other land uses common in Arkansas and Kansas, do not require Federal permits or funding and are not carried out by a Federal agency. Therefore, we do not anticipate this designation will impose any additional direct regulatory burdens to private landowners in Arkansas and Kansas (see our response to Comment 2).

(27)
Comment:
One commenter requested that the Service designate critical habitat only in stream reaches with recent live specimen collections and that the designation extend no more than 3 miles upstream and downstream of collection sites. Similarly, other commenters suggested that the Service should limit the designation to areas that are or have historically been inhabited by the species and that the designation should not include the entire geographical region where a species can or may reside.

Our Response:
We are designating as critical habitat areas that we have determined to be occupied at the time of listing and contain sufficient elements of physical or biological features to support life-history processes essential to the conservation of the Neosho mucket and rabbitsfoot. River habitats are highly dependent upon upstream and downstream channel habitat conditions for their maintenance. Therefore, where one occurrence record was known from a river reach, we considered the entire reach between the uppermost and lowermost locations of the mussel as occupied habitat, except in lakes and reservoirs. The nearest stream confluence or highway crossing to known localities was used to delineate the upstream and downstream extent of critical habitat. For the Neosho mucket, we have defined occupied habitat as those stream reaches known to be currently extant. For the rabbitsfoot, we have defined occupied habitat as those stream reaches that contain sizeable and small populations as defined by Butler (2005, pp. 88-89), and the marginal populations of Fish Creek and Red River that are the last extant populations in their respective basins (Great Lakes and Cumberland) and Allegheny River as a metapopulation (interconnected populations where there is gene flow). All other areas where populations are classified as marginal are not considered as occupied habitat (see
Criteria Used to Identify Critical Habitat,
below).

(28)
Comment:
One commenter stated a belief that the protections afforded Neosho mucket and rabbitsfoot under Kansas Nongame and Endangered Species Conservation Act (K.S.A. 32-957 through 32-963, 32-1009 through 32-1003) preclude the need to designate critical habitat for these mussels under the Act.

Our Response:
The Act requires that critical habitat be designated to the maximum extent prudent and determinable for any species that is determined to be an endangered or threatened species under the Act. We acknowledge Kansas State law affords State level protections similar to those afforded by the Act, but there are differences. For example, Kansas State law does not require Federal action agencies to consult with the Service.

Further, Federal listing and designation of critical habitat affords opportunity for funding of recovery actions from Federal sources, and may include cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations.

(29)
Comment:
One commenter asserted there is no information, other than personal communication from the KDWPT, to support the presence of a stable, reproductive Neosho mucket population in the Cottonwood River, Kansas. The commenter contended the 1.6-rmi (2.6-rkm) reach of proposed critical habitat in the Cottonwood River is not occupied by Neosho mucket or is only occupied due to reintroduction and, therefore, should not be designated as critical habitat.

Our Response:
We are not designating critical habitat for the Neosho mucket in the Cottonwood River (see also our response to Comment 24, above, and Summary of Changes from Proposed Rule, below).

(30)
Comment:
One commenter stated our estimate of $4.4 million for informal and formal section 7 consultations is high, and questioned how these consultations can generate this cost.

Our Response:
The final total estimated economic impact of the designation related to consultation under the Act is $4.4 million over the 20-year period of analysis, or $290,000 on an annualized basis. These figures represent the estimated costs of consultation associated with eight categories of economic activity across the 12 States where critical habitat was proposed. Chapter 3 of the FEA provides detailed information regarding the portion of total cost associated with each category of activity and how many consultation actions are projected to occur over the 20-year period.

(31)
Comment:
Two commenters from Kansas and Missouri stated that the Service did little, if any, outreach to the agricultural community.

Our Response:
The Service published legal notices during the first comment period in the
Southeastern Missourian
and
Joplin Globe
in Missouri, and
The Morning Sun
(Pittsburgh, Kansas),
Wichita Eagle,
and
Topeka Capitol Journal
in Kansas. The Service sent news releases to 17 additional Missouri and 18 additional Kansas newspapers with readership in the areas affected by the proposed rule, including farmers. Advance notification of the proposed rule and the document making available the draft economic analysis and extending the proposal's comment period was provided to the Kansas Forestry Commission and Missouri Conservation Commission—Forest Management.

The Service's Missouri field office held two public informational meetings in the area affected by this rule during the second comment period. The first meeting was held in Joplin, Missouri, on May 21, 2013, and the second meeting was held in Greenville, Missouri, on May 23, 2013. Information pertaining to both meetings was disseminated through typical media outlets in the region where the meetings were held, which is predominately agricultural.

At the request of the Kansas Farm Bureau, the Service's Kansas field office scheduled public informational meetings for October 9 and 10, 2013, in Parsons and Strong City, Kansas, respectively, during the third comment period. These meetings were cancelled due to a lapse in appropriations and partial government shutdown. The Service's Kansas field office attempted to reschedule the meetings with the Kansas Farm Bureau during the week of October 22, 2013, but was unable to reschedule the meetings prior to the comment period closing. As an alternative, the Service responded via email on October 22, 2013, to a list of Kansas Farm Bureau questions related to the proposed rule and draft economic analysis.

(32)
Comment:
One commenter expressed concern that the designation of critical habitat in Unit RF4a (Ouachita River) will interfere with many of Camp Ozark's river activities, including expansion in coming years. The commenter asserted the camp is a significant local economic driver, and the inability to both use the river for recreation and to pursue development plans will stymie its ability to provide jobs and wealth to the local economy.

Our Response:
The originally proposed RF4b has been separated into two units (RF4a and RF4b) in this final designation. The Service has removed the originally proposed critical habitat Unit RF4a from the final designation based on recent survey efforts suggesting the rabbitsfoot population in this area should be classified as marginal based on Butler's (2005) classification (see Summary of Changes from Proposed Rule, below). As a result, the area the commenter expressed concerns about is not included in the final designation of critical habitat.

(33)
Comment:
One commenter stated that the designation of critical habitat will significantly increase the number of consultations required for permitted and non-permitted activities.

Our Response:
As other listed species already occur in all designated critical habitat units for Neosho mucket and rabbitsfoot, we do not expect the number of consultations to increase due to this designation.

(34)
Comment:
One group of commenters stated that the Service fails to meet the Act's requirements for lawful designation of critical habitat in two respects: (a) By designating areas occupied by the rabbitsfoot in Arkansas as critical habitat absent an appropriate determination that such areas include features essential to the conservation of the species and which require special management considerations or protection, and (b) by designating areas unoccupied by rabbitsfoot in Arkansas as critical habitat absent an appropriate determination those areas are essential for the conservation of the species.

Our Response:
In accordance with 50 CFR 424.12(d), the Service concluded designating critical habitat in river reaches between, or in close proximity to, the uppermost and lowermost occupied areas represent an inclusive area essential to the conservation of Neosho mucket and rabbitsfoot. In accordance with 50 CFR 424.12(b), the Service determined all or some primary constituent elements were present in each unit as evidenced by occupied space (that is, stable habitat) for individual growth, feeding, and reproduction, presence of gravid females, availability of fish hosts, and water quality. While all water quality needs may not be completely understood, we estimate some numeric standards have been adopted under the Clean Water Act (33 U.S.C. 1251
et seq.
) that represent levels essential to the conservation of these mussels (such as dissolved oxygen, ammonia, pH, metals) (see
Physical or Biological Features
). In this final determination and in accordance with 50 CFR 424.12(b), we have identified nine categories of primary threats affecting Neosho mucket and rabbitsfoot habitat that may necessitate special management or protection (see
Special Management Considerations or Protection
). We did not designate as critical habitat any areas that are unoccupied by either species.

(35)
Comment:
One group of commenters stated that the Service's record for the rule does not include sufficient information for the Service to determine critical habitat features essential to the conservation of the species based on descriptions of the physical or biological features, which state “little is known of the specific habitat requirements for the Neosho mucket and rabbitsfoot” and “the ranges of many water quality parameters that define suitable habitat conditions for Neosho mucket and rabbitsfoot have not

been investigated or are poorly understood.” Accordingly, the commenters expressed the belief that the critical habitat units are overly broad and unnecessary for preservation and propagation of these mussels.

Our Response:
Generally, the Neosho mucket is found embedded in stable substrates associated with shallow riffles (areas where shallow, generally less than 1 meter (m) (3.3 ft) in depth, turbulent water passes through and over stones or gravel of somewhat similar size) and runs (intermediate areas between pools and riffles with moderate current) with gravel and sand substrate and moderate to swift currents (Oesch 1984, p. 221; Harris 1998, p. 5; Obermeyer 2000, pp. 15-16). However, in Shoal Creek and the Illinois River, the Neosho mucket prefers near-shore areas or areas out of the main current (Harris 1998, p. 5). The rabbitsfoot usually occurs in shallow areas along the bank and adjacent runs and riffles with gravel and sand substrates where the water velocity is reduced, but it also may occur in deep runs (Parmalee and Bogan 1998, pp. 211-212). Unlike the Neosho mucket (Barnhart 2003, p. 17), the rabbitsfoot seldom burrows in the substrate, but lies on its side (Watters 1988, p. 13; Fobian 2007, p. 24). Neosho mucket and rabbitsfoot, similar to other mussels, are dependent on areas with flow refuges where shear stress (the stream's ability to entrain and transport bed material created by the flow acting on the bed material) is low and sediments remain stable during flood events (Layzer and Madison 1995, p. 341; Strayer 1999, pp. 468 and 472; Hastie
et al.
2001, pp. 111-114). Habitat conditions described above provide space, cover, shelter, and sites for breeding, reproduction, and growth of offspring for the Neosho mucket and rabbitsfoot; are essential to their conservation; and may require special management considerations or protection. These habitat conditions have been accurately captured in the physical or biological features that we have identified to be essential to the conservation of the species. Based on the best available scientific information, we conclude the designation of critical habitat for Neosho mucket and rabbitsfoot meets the criteria set forth in 50 CFR 424.12.

(36)
Comment:
One group of commenters suggested that the Service should limit critical habitat designations for rabbitsfoot in Arkansas to areas where successful host species and rabbitsfoot coexist.

Our Response:
Based on the best available information, suitable fish hosts for the rabbitsfoot occur in all areas that we are designating as critical habitat. The Arkansas Game and Fish Commission (AGFC) fish database (2014) includes numerous records for rabbitsfoot fish hosts in the critical habitat units designated in Arkansas. Our administrative record documents the coexistence of rabbitsfoot and its fish hosts in these critical habitat units.

(37)
Comment:
One group of commenters suggested that the Service should remove streams impacted and/or controlled by hypolimnetic (lower thermally stratified portion of a lake) or other cold water releases (such as Mammoth Spring in Arkansas) because those streams are not preferred habitat for rabbitsfoot. Specifically, they referenced the Spring River (proposed Unit RF12) from Hardy downstream to Ravenden, Arkansas, and Ouachita River (proposed Unit RF4b) from Interstate 30 downstream to the Little Missouri River confluence. They stated that the rabbitsfoot cannot survive in these two cold water reaches.

Our Response:
Our decision record documents the presence of a diverse and abundant mussel assemblage in the Spring River from Hardy, Arkansas, downstream to Ravenden, Arkansas (Rust 1993, Appendix 1.2 and 1.4; Harris
et al.
2007; AGFC Mussel Database 2014; various museum records). The Ouachita River mussel and fish fauna from Remmel Dam downstream to Interstate 30 is affected by cold water releases (Harris 1999, p. 4-2). Mussel species richness and abundance increases downstream of Interstate 30 (Harris 1999, p. 3-8). Harris (1999, p. 4-2) reported double-digit species richness and higher relative abundance of mussels downstream of the Tenmile Creek confluence compared to sites upstream. Live rabbitsfoot occur in the Spring River between Hardy and Ravenden, Arkansas, and in the Ouachita River downstream of Tenmile Creek to the confluence of the Caddo River (Harris
et al.
2007, pp. 14-16; AGFC Mussel Database 2014; Harris 1999, p. 3-8). Therefore, the best available scientific information supports that mussels, including rabbitsfoot, can survive in these reaches.

(38)
Comment:
One group of commenters recommended modifications to six critical habitat units for rabbitsfoot. They asserted that the critical habitat units should be restricted to stream reaches where live rabbitsfoot individuals are known to occur. The units are as follows:

(a) Ouachita River (proposed Unit RF4a): Remove entire designation because occurrence of rabbitsfoot is only reported from Arkansas Highway 379 and 298.

(b) Ouachita River (proposed Unit RF4b): Restrict designation to the confluence of Little Missouri River downstream to U.S. Highway 79.

(c) Saline River (proposed Unit RF5): Restrict designation to 2 miles upstream of Arkansas Highway 15 to the Snake Creek confluence north of the Felsenthal National Wildlife Refuge boundary.

(d) Black River (proposed Unit RF9): Restrict designation to Pocahontas, Arkansas, downstream to Black Rock, Arkansas.

(e) Spring River (proposed Unit RF10): Restrict designation to Ravenden, Arkansas, downstream to confluence with Black River. They also believe water temperatures from Hardy to Ravenden, Arkansas, do not support propagation of rabbitsfoot and, thus, are not essential to the conservation of the species.

(f) South Fork Spring River (proposed Unit RF11): Remove entire designation based on the lack of documentation of live rabbitsfoot despite multiple surveys.

Our Response:
We have re-evaluated the critical habitat units in question and, based on the best available scientific information, we are removing or modifying the following units in this final rule. For further information, see Summary of Changes from Proposed Rule, below.

(a) Ouachita River (proposed Unit RF4a): We agree, in part, with the commenters and in this final designation have removed the originally proposed Unit RF4a.

(b) Ouachita River (Unit RF4b): We agree, in part, with the commenters and have revised proposed Unit RF4b into two units. The Ouachita River from Arkadelphia downstream to the Little Missouri River confluence has not been comprehensively surveyed for mussels. While the absence of rabbitsfoot from this reach is likely a result of no survey data and not actual absence, the best available scientific information supports designating critical habitat in two Ouachita River units, revised Unit RF4a and revised Unit RF4b (see Summary of Changes from Proposed Rule, below).

(c) Saline River (Unit RF5): We agree, in part, with the commenters and have modified Unit RF5 in this final designation so that the upstream boundary is at the Frazier Creek confluence near Mt. Elba, Arkansas, and the downstream boundary is at the Mill Creek confluence near Stillions, Arkansas.

(d) Black River (Unit RF9): We agree, in part, with the commenters and have modified Unit RF9 in this final

designation so that the downstream boundary is at the Flat Creek confluence downstream of Powhatan, Arkansas.

(e) Spring River (Unit RF10): The best available scientific information supports the designation with a slight adjustment to the upstream boundary of Unit RF10 downstream approximately 3.72 rkm (6 rmi) to the Ott Creek confluence. We have made this change in this final designation.

(f) South Fork Spring River (proposed Unit RF11): The best available scientific information supports categorizing the South Fork Spring River rabbitsfoot population as marginal. Therefore, the Service has removed proposed Unit RF11 (the South Fork Spring River) from this final designation. (Note that units have been renumbered for this final rule and final Unit RF11 is not the same location as proposed Unit RF11).

(39)
Comment:
One group of commenters stated that the Service failed to acknowledge protections afforded to proposed Units RF10 and RF4a under Arkansas Pollution Control and Ecology Commission (APCEC) Regulation 2 (waters designated as Extraordinary Resource Waters (ERW) and Ecologically Sensitive Waterbodies (ESW)), which they stated provide sufficient protection to preserve the physical or biological features essential to the conservation of rabbitsfoot.

Our Response:
The Service acknowledges there are some protections afforded to ERW and ESW under APCEC's Regulation 2, which was developed pursuant to the Arkansas Water and Air Pollution Control Act and the Clean Water Act (CWA). Significant physical alterations of habitat are not allowed unless: (a) The proposed physical alteration of habitat will not impair water quality, natural flow regime, and the habitat of fish, shellfish, or aquatic life; and (b) there is no feasible alternative to the proposed project. Regulation 2 also allows the short-term activity authorization for a variety of activities that are permitted to exceed water quality standards provided there is no permanent or long-term impairment. However, despite provisions in Regulation 2 that explicitly prohibit short-term activity authorization for activities that result in adverse effects to federally endangered and threatened species or their critical habitat, short-term activity authorizations in ERW and ESW watersheds have been linked to documented take of endangered species (see
U.S.
v.
Hawk Field Services, LLC
2011). Furthermore, Regulation 2 allows for the removal of an ERW or ESW designation for the purpose of constructing a reservoir to provide domestic drinking water, if it can be demonstrated: (a) The sole purpose is to provide domestic drinking water supply; and (b) there is no feasible alternative to constructing a reservoir to meet the domestic water needs of the citizens of Arkansas. Given that a goal of the CWA is to establish water quality standards that protect shellfish and given documented declines of these mussel species still continue due to poor water quality and other factors, we take a conservative approach in favor of the species and conclude that Regulation 2 has been insufficient to significantly reduce or remove threats to the Neosho mucket and rabbitsfoot in Units RF4a and RF10.

(40)
Comment:
One group of commenters commissioned its own study of the economic impacts of the critical habitat designation. Their study compared their results to the Service's DEA and concluded that the DEA “vastly understates” costs of the regulatory action because it does not take into account direct and indirect costs to businesses, State and local governments, and other private property owners resulting from section 7 consultation requirements. Furthermore, these impacts would lead to additional damages to the regional economy in the form of lost tax revenue, increased unemployment claims, damage from unrepaired roads and bridges, increases in transportation costs, and tax increases. Specifically, the evaluation estimated, based on a sample of affected projects, the total cost to affected Arkansas counties would exceed $19 million, approximately 5 times the cost of $4.4 million estimated in the DEA for the entire 12-State region of the designation.

Our Response:
The commenter's evaluation describes the economic impacts that would occur if a variety of hypothetical scenarios were to result from critical habitat designation (for example, if visitation at Camp Ozark declined by 25 percent; visitation at the Pond Creek National Wildlife Refuge decreased by 20 percent; an oil well is not drilled; a poultry farm is closed; the construction of a planned county-road bridge over the Osage River is delayed; or city or county discharges under the National Pollution Discharge Elimination System (NPDES) are restricted). However, the evaluation does not provide evidence to suggest such restrictions will actually occur as a result of the critical habitat designation.

The Service considered whether restrictions are likely to result from the designation of critical habitat and found this to be unlikely. Specifically, the Service prepared a memorandum describing the likely outcome of future section 7 consultations (see Appendix D of the FEA). The Service is designating critical habitat in river segments that are occupied by the mussels. Section 7 consultation requirements take effect once the mussels are listed under the Act, even if critical habitat is not designated (see response to Comment 2). Thus, the incremental costs of additional regulation designating critical habitat are limited to the administrative costs to the Service, the Federal action agencies, and third parties involved in consultations. The FEA's estimate of $4.4 million (present value impacts assuming a 7 percent discount rate) results from this additional administrative burden.

(41)
Comment:
Multiple commenters stated that the DEA underestimates the impacts of the proposed critical habitat designation because it utilizes an incremental approach that “only estimates the likely costs of agencies consulting with each other” and does not consider the actual opportunity costs to businesses, State and local governments, and other private property owners related to the required consultations.

Our Response:
The Service's focus on the incremental impacts of the critical habitat rule is consistent with the U.S. Office of Management and Budget's (OMB's) guidelines for best practices concerning the conduct of economic analysis of Federal regulations. As described in section 2.1 of the FEA, OMB guidelines direct Federal agencies to measure the costs of a regulatory action against a baseline, which it defines as the “best assessment of the way the world would look absent the proposed action.” The baseline utilized in the FEA is the existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat
absent
the designation of critical habitat. The baseline includes protections afforded the species under the Act, as well as under other Federal, State, and local laws and guidelines.

In recognition of the divergent opinions of the courts and to address the Presidential memorandum dated February 28, 2012, the Service promulgated final regulations specifying that it is appropriate for the Secretary to consider impacts of a critical habitat designation on an incremental basis (78 FR 53058, August 28, 2013). This rule discusses the impact analysis for proposed critical habitat through completion of an “incremental analysis.” This method of determining

the probable impacts of the designation seeks to identify and focus solely on the impacts over and above those resulting from existing protections.

Accordingly, the FEA employs “without critical habitat” (baseline) and “with critical habitat” (incremental) scenarios. The analysis qualitatively describes how baseline conservation efforts for the two mussels may be implemented across the proposed designation, and, where possible, provides examples of the potential magnitude of costs of these baseline conservation efforts (Chapter 4). The FEA focuses, however, on the incremental analysis, describing and monetizing the incremental impacts due specifically to the designation of critical habitat for the species (Chapter 3). Sections 2.2 and 2.3 of the FEA describe in detail how the analysis defines and identifies incremental effects of the proposed designation.

The incremental approach employed by the Service in its analyses of proposed critical habitat designations does not necessarily limit impacts to administrative costs of consultation. In some cases, designation of critical habitat does result in new project modifications that need to be implemented to avoid possible adverse modification of the habitat. The costs of these project modifications would then be counted in the incremental analysis, regardless of who incurs the cost. In the case of the Neosho mucket and rabbitsfoot, all of the designated critical habitat is occupied by the species, and therefore any project modifications will be required even absent critical habitat (in the baseline) to avoid possibly jeopardizing the species' existence (see response to Comment 2).

(42)
Comment:
Multiple commenters expressed concern that the proposed critical habitat designation will have an economic impact on Arkansas counties, cities, communities, businesses, and industry sectors through effects on employment, tax revenues, business and industrial operations, and overall quality of life. Commenters suggested that these impacts will occur as a result of new critical habitat-related restrictions, prohibitions, delays, cancellations of activities, and/or additional requirements for conservation and consultation.

Our Response:
The commenters do not provide information regarding how or why they believe critical habitat will result in new restrictions, prohibitions, delays, cancellations, or conservation requirements. Within the FEA, the Service specifically considered whether additional or different conservation measures would be needed to avoid destruction or adverse modification of critical habitat above and beyond those measures needed to avoid jeopardizing the continued existence of the species, and found this to be unlikely (see our response to Comment 2). Because all of the units are occupied by at least one of the mussel species, any measures needed to protect habitat would be requested by the Service, even if critical habitat was not designated, to avoid jeopardizing the continued existence of the species.

(43)
Comment:
Multiple commenters expressed concern that the DEA does not address impacts to private landowners (such as farmers and ranchers), and in particular, those impacts associated with property value or third party lawsuits resulting from critical habitat designation. One commenter expressed concern that no small landowners were contacted in accordance with the provisions of the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
et seq.
).

Our Response:
Incremental impacts of the designation are expected to be limited to additional administrative costs to the Service, Federal agencies, and third parties of considering critical habitat as part of future section 7 consultations (see our response to Comment 2). The FEA incorporates potential impacts to private landowners as third parties in forecasted consultations on water quality; timber, agriculture, and grazing; and development activities. In addition, Appendix A of the FEA includes an analysis of the distributional impacts of the proposed critical habitat designation on small entities. As described in Appendix A, the only costs expected to be borne by third parties as a result of the proposed designation are portions of the total cost of forecasted section 7 consultations. These costs are relatively minor, ranging from $260 to $2,080 per consultation.

Section 2.3.2 of the FEA discusses how the designation of critical habitat may, under certain circumstances, result in indirect impacts such as time delays, regulatory uncertainty, and stigma effects (such as property value impacts). The Service does not expect indirect impacts to result from critical habitat designation for the two mussels. However, as a result of the concern expressed in these comments, we have added new language to the FEA concerning to the potential for indirect costs associated with third party lawsuits or property value impacts. Because the nature, timing, and likelihood of future litigation or property value impacts are highly uncertain, the FEA does not quantify these impacts but instead describes them qualitatively and notes that these are uncertainties in the analysis.

(44)
Comment:
One commenter asserted that the DEA is flawed because it limits the physical scope of its enquiry to the riparian watersheds and census tracts included in those watersheds. The commenter argued that standard practice for an economic impact analysis has been to use county boundaries or a defined local market area as the basis for any comprehensive evaluation of costs and benefits. The use of such narrow boundaries is an attempt to limit the estimated effects by omitting consideration of the interconnectedness of modern economies.

Our Response:
The commenter is correct that the DEA defines its “study area” as including the watersheds encompassing proposed critical habitat (either the fourth level (8-digit) or sixth level (12-digit) Hydrologic Unit Code (HUC) watersheds defined by the U.S. Geological Survey (USGS)). The study area is used to identify projects (such as oil wells, roads, bridges, etc.) that could have a hydrologic connection to critical habitat. For example, these projects may be sufficiently close to a critical habitat river segment that runoff from the construction site would increase sediment loads to the river, potentially affecting the mussels. If such a hydrologic connection exists, these projects are more likely to require consultation. Defining the study area more broadly would result in the inclusion of projects with no hydrologic connection to critical habitat, and thus no reason for consultation.

Importantly, while the identification of projects requiring consultation is limited to the study area, the consideration of economic impacts that might result if these projects are modified is not limited to this geographic area. However, in the case of Neosho mucket and rabbitsfoot, incremental project modifications are unlikely. Incremental costs are limited to administrative costs, which would be incurred by the agencies or private entities pursuing the projects, regardless of where those entities are headquartered.

(45)
Comment:
One commenter provided an analysis of the economic impacts of the proposed critical habitat designation based on hypothetical project modifications using IMPLAN (an input-output modeling system) multipliers. Such an analysis measures the change in economic output resulting from a policy change. The authors argued that such multiplier analysis is the appropriate framework for answering impact analysis questions,

noting the DOT recommends this approach for construction planning.

Our Response:
The commenter is correct that economic impact analyses generally rely on input-output or multiplier analysis using tools such as IMPLAN. Examples of such analyses include estimates of the changes in economic output generated by the construction of a new stadium or the loss of a manufacturing facility.

In contrast, the method of economic analysis of proposed Federal regulations is subject to the direction provided by Executive Order 12866 and associated guidance provided by OMB in Circular A-4. As described in Circular A-4, “opportunity cost” is the appropriate concept for valuing benefits and costs of regulatory actions. Costs are incurred when resources are used for one purpose and hence cannot be used for another purpose. The opportunity cost is the value of the benefit that could have been provided by devoting the resources to their best alternative use. Estimates of the change in opportunity cost are sometimes referred to as economic efficiency effects or changes in social welfare.

For example, assume section 7 consultations are required prior to drilling at oil and gas sites potentially affecting the mussels. If delays caused by section 7 consultation cause oil and gas operators to forego the activity without pursuing production at substitute sites, net change in oil and gas production at a national level would represent the opportunity cost of the regulation. If operators pursue production at substitute sites, resulting in no net change in production but redistributing activity away from sites near the mussels, then the marginal cost of reduced profitability associated with the next best alternative location represents the opportunity cost. In either case, the resources used to produce the oil and gas (for example, materials and labor necessary to drill for and transport the oil and gas) are not lost to society. Rather, these resources are still available for other productive uses. As a result, estimates of changes in efficiency effects, or social welfare, are fundamentally different than the estimate of the distributional effects using tools like IMPLAN, and the results are not directly comparable.

Given that the designation of critical habitat for the mussels is unlikely to result in additional project modifications beyond those related to the listing of these species, the types of distributional effects measured using IMPLAN multipliers are likely to be minimal. The opportunity cost of the regulation is limited to the resources (primarily labor) needed to address the administrative requirements of the section 7 process. Thus, the DEA appropriately captured the incremental opportunity costs of the proposed regulation.

(46)
Comment:
One commenter noted that the DEA predicts an increase in future section 7 consultations on Natural Resources Conservation Service (NRCS) Farm Bill activities in Arkansas. The commenter expressed concern because these consultations are new, and the Service has no way to predict the incremental costs to private landowners associated with new conditions (such as a 180-foot buffer along stream, discharge zones, and karst features and methods to prevent soil erosion and runoff) that will be recommended during section 7 consultation on Farm Bill-related activities.

Our Response:
Section 3.3.3 of the DEA includes the likely increase in section 7 consultations in Arkansas due to new NRCS Farm Bill program work under the Agricultural Act of 2014 (H.R. 2642, Pub. L. 113-79, which is also known as the 2014 Farm Bill), an act that authorizes nutrition and agriculture programs in the United States for 2014 through 2018, and this section of the DEA provides an estimate of the administrative costs associated with the forecasted consultations. Additionally, the discussion provides information on the likely incremental impacts of the proposed critical habitat designation on timber, agriculture, and grazing activities. As described in section 2.3.2 of the DEA, the designation of critical habitat is not anticipated to generate additional conservation measures for the two mussels beyond those that would be generated by the listing.

We note that the conditions identified by the commenter from the DEA as “specific conservation recommendations identified by the Service” (
i.e.,
a minimum 180-foot buffer and methods to prevent soil erosion and runoff) are mischaracterized in the economic analysis as having been made by the Service, which is incorrect. We have included an Addendum to the FEA (IEc 2014b) to correct information regarding the programmatic consultation with NRCS. It is important to note, however, that although the information was not correctly presented in the economic analysis, it had no bearing on the results of the incremental effects analysis, as that information was incorporated in the baseline.

(47)
Comment:
One commenter stated that the costs presented in the DEA are based on “an unrealistic discount rate of seven percent” and costs should be presented instead using a discount rate of 5 percent or less.

Our Response:
The DEA demonstrated the sensitivity of the results of the analysis to the choice of discount rate by presenting costs using discounts rates of both 7 and 3 percent. Specifically, results estimated using both rates are presented in the Executive Summary (see Exhibit ES-3). For presentation purposes, the remainder of the report presents detailed cost estimates using a 7 percent discount rate; however, Appendix B replicates all detailed tables using a 3 percent discount rate for comparison.

The choice of discount rates is consistent with OMB's Circular A-4, which states: “As a default position, OMB Circular A-4 states a real discount rate of seven percent should be used as a base-case for regulatory analysis. The seven percent rate is an estimate of the average before-tax rate of return to private capital in the U.S. economy. The effects of regulation do not always fall exclusively or primarily on the allocation of capital. When regulation primarily and directly affects private consumption (for example, through higher consumer prices for goods and services), a lower discount rate is appropriate. For regulatory analysis, you should provide estimates of net benefits using both three percent and seven percent.” The rate of 5 percent recommended by the commenter is captured in this range.

(48)
Comment:
One commenter asserted the RFA analysis does not consider whether or not the proposed critical habitat designation would have a substantial impact on local government jurisdictions because, as stated in the DEA, “potential financial impacts to local government agencies and private landowners are not estimated as a proportion of annual revenues due to lack of data.”

Our Response:
The purpose of the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801
et seq.
) analysis, provided in Appendix A of the DEA, is to assess whether or not the proposed critical habitat designation will have a significant economic impact on a substantial number of small entities. As described in section A.1, the analysis provides information regarding the potential number of third parties participating in consultations on an annual basis in order to ensure a robust examination of the effects of the proposed rule. In addition, the analysis provides information to assist the Service in determining whether these entities are likely to be “small” and whether the number of potentially affected small entities is “substantial.”

Importantly, the impacts of the rule must be both significant and substantial to prevent certification of the rule under the RFA and to require the preparation of an initial regulatory flexibility analysis.

As shown in Exhibit A-2 of the DEA, the proportion of small entities in the study area that may be affected in one year by the proposed designation ranges from 0.1 percent to 3.1 percent, which is not considered to be a substantial number. Despite this conclusion, the analysis also provides information on whether the economic impact on these entities is likely to be significant. Specifically, the analysis estimates the likely annualized impact per entity as a proportion of estimated annual revenue. Due to lack of data on the annual revenues of each entity that may be involved in section 7 consultations across the designation, we perform a “threshold analysis”; that is, we determine that for impacts to exceed one percent of an entity's annual revenues, those annual revenues would have to be less than $47,000. We assume this is very unlikely to be the case for local government agencies in the study area. For example, one of the least populous counties in the study area in Arkansas is Calhoun County, whose total revenues for 2011 were reported at $8,863,000 (Center for Governmental Research Inc., 2013:
http://www.govistics.com/AR/CALHOUN
).

(49)
Comment:
One commenter stated that for private timber, agricultural, and grazing entities, the RFA analysis relies on the flawed assumptions in chapter 3 of the DEA. The Service concludes there will be no significant impact to small entities when the DEA clearly states the Service has no data with which to predict future incremental costs to such private landowners because there is no history of consultation between the Service and NRCS.

Our Response:
In Appendix A of the DEA, we note that we are unable to estimate potential financial impacts to local government agencies and private landowners as a proportion of annual revenues due to a lack of data. However, for any entity with greater than $47,000 in annual revenue, the financial burden of undertaking a project requiring consultation on the mussels would constitute less than one percent of annual revenue because the designation of critical habitat is not anticipated to generate additional conservation measures for the two mussels beyond those that would be generated by the species being listed. Less than one percent of annual revenue would not be considered a significant impact. Therefore, we have determined there would not be a significant impact to a substantial number of small entities.

(50)
Comment:
One commenter provided information about NPDES permits for direct and indirect discharges into rivers containing proposed critical habitat. The commenter asserted that “serious economic and fiscal impacts will accompany any water-system adjustments that would have to be instituted to divert or avoid discharges into the host rivers.” In addition, the commenter stated that the NPDES permits will “be subjected to an increased level of regulation, including potential need for formal and/or informal consultation with [the Service].”

Our Response:
The commenter does not provide any information regarding the likelihood or nature of “water-system adjustments” resulting from critical habitat designation that would aid in providing greater clarification to address the concern. As outlined in our response to Comment 2 and elsewhere in this document, the designation of critical habitat is not anticipated to generate additional conservation measures for the two mussels beyond those that would be generated by the species being listed. In addition, section 3.3.2 of the DEA provided an estimated number of future water quality-related section 7 consultations, including those on NPDES permit programs. The DEA forecast costs related to water quality activities for all units in which future section 7 consultations concerning water quality management activities are expected to occur.

(51)
Comment:
One commenter stated that although the DEA does address benefits of designating critical habitat, the analysis should account for benefits to other species from the designation of critical habitat for the mussels. Studies have shown these protections promote stream health by preventing erosion, filtering runoff, and providing shade and microhabitats. Other benefits include areas for scientific study and aesthetic value to residents.

Our Response:
The primary goal of critical habitat designation for the mussels is to support their long-term conservation. Theoretically, conservation and recovery of the species may result in benefits, including use benefits (wildlife-viewing), non-use benefits (existence values), and ancillary ecosystem service benefits (such as public safety benefits of reduced wildfire risks). Section 5.3 of the DEA contained a discussion of potential ancillary benefits of mussel conservation, including improved water quality and aesthetic benefits.

(52)
Comment:
One commenter asked why the critical habitat designation is necessary when no additional conservation measures are required beyond those associated with the listing.

Our Response:
The Act requires that critical habitat be designated to the maximum extent prudent and determinable for any species that is determined to be an endangered or threatened species under the Act. In the October 16, 2012, proposed rule to list these species and designate critical habitat (77 FR 63440), we identified “the potential benefits” of designating critical habitat to “include: (1) Triggering consultation under section 7 of the Act in new areas for actions in which there may be a Federal nexus where it would not otherwise occur because, for example, it is or has become unoccupied or the occupancy is in question; (2) focusing conservation activities on the most essential features and areas; (3) providing educational benefits to State or county governments or private entities; and (4) preventing people from causing inadvertent harm to the species” (see
Prudency Determination,
77 FR 63472).

(53)
Comment:
Several commenters contended that the designation of critical habitat in Arkansas is an attempt by the Service or Federal government to “take” privately owned property.

Our Response:
The designation of critical habitat does not authorize the Service or Federal government to purchase, condemn, take through eminent domain, or otherwise confiscate private property through the use of legislation, regulation, or other legal means. In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of designating critical habitat for Neosho mucket and rabbitsfoot in a takings implications assessment. As discussed above, the designation of critical habitat affects only Federal actions. Although private parties that receive Federal funding, assistance, or require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests on the Federal agency.

(54)
Comment:
Multiple commenters requested that the Service conduct a “complete impact study” to include all property owners and businesses.

Our Response:
Based on a review and evaluation of the information contained in the environmental assessment, we

determined the designation of critical habitat for the Neosho mucket and rabbitsfoot does not constitute a major Federal action significantly affecting the quality of the human environment under the meaning of section 102(2)(c) of NEPA. Accordingly, an environmental impact statement is not required. See our responses to Comments 41 and 42 regarding economic impacts to private landowners and businesses.

(55)
Comment:
One commenter stated that the designation of critical habitat in Arkansas will close rivers to fishing.

Our Response:
As discussed above, designating critical habitat has no impact on landowner or citizen activities that do not require Federal funding or permits.

(56)
Comment:
One commenter expressed concern that oral comments were not recorded during public meetings held in Arkansas. Furthermore, the commenter requested policy changes to require public meetings be recorded and entered into the public record.

Our Response:
The commenter appears to be confusing the requirements for a “public hearing” with those for the “public information meeting” that was actually held. A public hearing, which may be requested on any proposed rule within 45 days after the opening of the comment period, includes oral testimony from participants which is recorded by a court reporter and entered into the public record. With regard to the proposed critical habitat designation for the two mussels, no public hearings were requested during any of the four open comment periods. Instead, the Service was asked to reopen the comment periods to allow additional time for interested parties to review the proposed rule, DEA, and draft environmental assessment. The Service agreed to hold public information meetings during the open comment periods to facilitate a better understanding of the proposed action. In a public information meeting, which is a less formal process than a public hearing, there is no requirement for recording oral testimony. However, the Service voluntarily provided comment cards that participants could fill out during the meetings and submit as formal comments to be entered into the record. These comments have been uploaded onto
http://www.regulations.gov
along with all other comments we received during the comment periods.

(57)
Comment:
One commenter stated predation by raccoon, otter, beaver, and other predators is a greater threat to Neosho mucket and rabbitsfoot than habitat loss or degradation.

Our Response:
The Service determined predation was not a significant threat to the overall status of Neosho mucket and rabbitsfoot. A more detailed discussion of this threat is presented in the final listing rule under Summary of Factors Affecting the Species (78 FR 57076, September 17, 2013).

(58)
Comment:
One commenter expressed concern about additional restrictions on the aquaculture industry in Arkansas, specifically on water withdraw or diversion, pond cleanout, pond effluent discharge, and inspection requirements, due to the designation of critical habitat.

Our Response:
As discussed above, designating critical habitat has no impact on landowner activities that do not require Federal funding and permits. For aquaculture activities that require a Federal permit or assistance, the Service may recommend conservation actions in a section 7 consultation for the affected species that protect not only the species, but also its habitats, regardless of whether or not there is designated critical habitat. Currently, such conservation measures to protect the species and their habitats are in place for other listed mussel species that occur within the Arkansas critical habitat units such that no additional conservation measures or regulatory restrictions are expected to result from this critical habitat designation.

(59)
Comment:
One commenter stated that the Service should release data used to determine critical habitat for Neosho mucket and rabbitsfoot.

Our Response:
All of the comments, materials, and documentation we considered in this rulemaking are available at the Arkansas Ecological Services Field Office (see
ADDRESSES
, above). Comments and materials received, as well as some supporting documentation we used in preparing this rule, are also available for public inspection at
http://www.regulations.gov
.

(60)
Comment:
Several commenters expressed concern about fluoride as a chemical contaminant affecting Neosho mucket and rabbitsfoot.

Our Response:
While all the water quality needs for these two mussels may not be completely understood, we estimate some numeric standards have been adopted under the CWA that represent levels essential to conservation of these mussels (such as dissolved oxygen, ammonia, pH, metals) (see
Physical or Biological Features
). In a North Carolina study, effective concentrations for growth effects were found to be 17 and 8 times as high as the State's and EPA's water quality criteria for fluoride, respectively (Keller and Augspurger 2005
in
Farris and Van Hassel 2007, p. 162). Fluoride, at concentrations typical of most streams meeting state and EPA water quality criteria, is not toxic to glochidia (freshwater mussel larvae) and juveniles of Unionidae mussels such as the Neosho mucket and rabbitsfoot. In this final designation, and in accordance with 50 CFR 424.12(b), we have identified nine categories of primary threats affecting Neosho mucket and rabbitsfoot habitat that may necessitate special management or protection (see
Special Management Considerations or Protection
—Chemical Contaminants).

(61)
Comment:
Multiple commenters expressed concern regarding “sue and settle” agreements between Federal agencies and nongovernmental organizations. They contend this process is a binding out-of-court settlement that prohibits farmers, small businesses, and private property owners from participating in discussions and providing meaningful input prior to the publication of a proposed rule.

Our Response:
The multiyear listing workplan under which this critical habitat rule was proposed was developed through settlement agreements with Wild Earth Guardians and the Center for Biological Diversity to resolve multidistrict litigation. It established deadlines for completing listing determinations for each candidate species, including the Neosho mucket (first included in the 2001 CNOR; 66 FR 54808, October 30, 2001) and rabbitsfoot (first included in the 2009 CNOR; 74 FR 57804, November 9, 2009). The Service published a final listing rule for these mussels on September 17, 2013 (78 FR 57076), in accordance with these deadlines. Section 4(a)(3)(A) of the Act requires that we designate critical habitat, when prudent and determinable, concurrently with making a determination to list a species as endangered or threatened. Therefore, in making this final designation at this time, the Service is adhering to the requirements of the listing workplan and settlement agreement and the Act.

(62)
Comment:
One commenter contended that the greatest threat to the Neosho mucket and rabbitsfoot is White River (Arkansas) minimum flows regulated by the ACOE.

Our Response:
Neosho mucket does not occur in the White River. The construction of a series of six flood control reservoirs on the upper White River in the 1940s and 1950s, including

Bull Shoals and Norfork Lakes, led to the extirpation of rabbitsfoot from a large section of the White River upstream of Batesville, Arkansas. White River minimum flows provide adequate low flow releases from Bull Shoals and Norfork Lakes dams to enhance trout habitat and survival in cold tailwater reaches of the White River located upstream of Unit RF8a. There is no evidence to support minimum flows contributing to declines in rabbitsfoot. Minimum flows may be beneficial to the species by providing higher and more consistent flow during low flow periods when mussels may become stranded and be subjected to desiccation (drying).

Summary of Changes From Proposed Rule

The information below is provided as a result of the peer and public review process. In this final designation, we have made changes to maps, units, and the rule itself. A change in mapping methodology resulted in a revision to the total number of river kilometers (river miles) for the designation of rabbitsfoot critical habitat. The beginning and ending points of the proposed critical habitat designation, as well as the unit descriptions (as described in the proposed critical habitat rule) will remain th

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2015-09200. Public record. Not legal advice.