50 CFR Part 17

DEPARTMENT OF THE INTERIOR

50 CFR Part 17

RIN 1018-AC64

Endangered and Threatened Wildlife and Plants; Proposal to List the

Cumberland Elktoe, Oyster Mussel, Cumberlandian Combshell, Purple

Bean, and Rough Rabbitsfoot as Endangered Species

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: The Fish and Wildlife Service (Service) proposes to list five

freshwater mussels (Cumberland elktoe (Alasmidonta atropurpurea),

oyster mussel (Epioblasma capsaeformis), Cumberlandian combshell

(Epioblasma brevidens), purple bean (Villosa perpurpurea), and rough

rabbitsfoot (Quadrula cylindrica strigillata)) as endangered species

under the Endangered Species Act of 1973, as amended (Act). All five

species have undergone significant reductions in range and now exist as

relatively small, isolated populations. The Cumberland elktoe exists in

very localized portions of the Cumberland River system in Kentucky and

Tennessee. The oyster mussel and Cumberland combshell persist at

extremely low numbers in portions of the Cumberland and Tennessee River

basins in Kentucky, Tennessee, and Virginia. The purple bean and rough

rabbitsfoot currently survive in a few river reaches in the Tennessee

River system in Tennessee and Virginia. These species were historically

eliminated from much of their range by impoundments. Presently, they

and their habitat are impacted by deteriorated water quality, primarily

resulting from poor land use practices.

DATES: Comments from all interested parties must be received by

September 12, 1994. Public hearing requests must be received by August

29, 1994.

ADDRESSES: Comments and materials concerning this proposal should be

sent to the Field Supervisor, U.S. Fish and Wildlife Service, Asheville

Field Office, 330 Ridgefield Court, Asheville, North Carolina 28806

(704/665-1195). Comments and materials received will be available for

public inspection, by appointment, during normal business hours at the

above address.

FOR FURTHER INFORMATION CONTACT: Mr. Richard G. Biggins at the above

address or telephone (704/665-1195, Ext. 228).

SUPPLEMENTARY INFORMATION:

Background

Cumberland Elktoe (Alasmidonta Atropurpurea)

The Cumberland elktoe, described by Rafinesque (1831), has a thin

but not fragile shell. The shell's surface is smooth, somewhat shiny,

and covered with greenish rays. Young specimens have a yellowish-brown

shell and the shells of adults are generally black. The inside of the

shell is shiny with a white, bluish-white, or sometimes peach or salmon

color. (See Clarke (1981) for a more complete description of species.)

The Cumberland elktoe is endemic to the Cumberland River system in

Tennessee and Kentucky and is considered endangered in the State of

Kentucky (Kentucky State Nature Preserve Commission 1991). Historic

records exist from the Cumberland River and from Cumberland River

tributaries entering from the south between the Big South Fork

Cumberland River upstream to Cumberland Falls. Specimens have also been

taken from Marsh Creek above Cumberland Falls. Old records of a related

species, Alasmidonta marginata, exist from other creeks above

Cumberland Falls; and there is speculation that these specimens were

probably the Cumberland elktoe (Gordon 1991). Because the area above

the falls has been severely impacted by coal mining, any populations of

A. atropurpurea that might have existed there were likely lost (Gordon

1991). A record of one fresh dead specimen exists from the Collins

River, Grundy County, Tennessee. However, extensive searches of the

collection site and other sites in the Collins River and adjacent

rivers have failed to find another specimen. If the species did exist

in the Collins River, it has likely been extirpated.

Presently, three populations of the Cumberland elktoe are known to

persist. The species survives in the middle sections of Rock Creek,

McCreary County, Kentucky; the upper portions of the Big South Fork

Cumberland River basin in McCreary County, Kentucky, and Scott,

Fentress, and Morgan Counties, Tennessee; and in Marsh Creek, McCreary

County, Kentucky (Gordon 1991).

Any Cumberland elktoe populations that may have existed in the main

stem of the Cumberland River were likely lost when Wolf Creek Dam was

completed. Other tributary populations were likely lost due to the

impacts of coal mining, pollution, and spills from oil wells. The upper

Big South Fork basin population is threatened by coal mining and could

be threatened by an impoundment that is under consideration for a

tributary (the North Prong of Clear Fork Creek) in the basin. The Marsh

Creek population has been adversely affected and is still threatened by

spills from oil wells. The Rock Creek population could be threatened by

logging. All three populations, especially Rock Creek and Marsh Creek,

are restricted to such short stream reaches that they could be

eliminated by toxic chemical spills.

Oyster Mussel (Epioblasma Capsaeformis)

The oyster mussel (Lea 1834) has a dull to sub-shiny yellowish to

green colored shell with numerous narrow dark green rays. The shells of

females are slightly inflated and quite thin towards the shell's

posterior margin. The inside of the shell is whitish to bluish-white in

color. (See Johnson (1978) for a more complete description of species.)

The species is considered endangered in the States of Kentucky

(Kentucky State Nature Preserve Commission 1991) and Virginia (Neves

1991; Sue Bruenderman, Virginia Department of Game and Inland

Fisheries, in litt., 1992).

This species historically occurred throughout much of the

Cumberlandian region of the Tennessee and Cumberland River drainages in

Alabama, Kentucky, Tennessee, and Virginia (Gordon 1991), and Ortmann

(1918) considered the species to be very abundant in the upper

Tennessee River drainage.

Currently, within the Cumberland River, the oyster mussel survives

as a very rare component of the benthic community in Buck Creek,

Pulaski County, Kentucky; and it still survives in a few miles of the

Big South Fork Cumberland River, McCreary County, Kentucky, and Scott

County, Tennessee (Bakaletz 1991). Within the Tennessee River system,

only small populations survive at a few sites in the Powell River, Lee

County, Virginia and Hancock and Claiborne Counties, Tennessee; in the

Clinch River system, Scott County, Virginia, and Hancock County,

Tennessee; Copper Creek (a Clinch River tributary), Scott County,

Virginia; and Duck River, Marshall County, Tennessee. Although not seen

in recent years, the species may still persist at extremely low numbers

in the lower Nolichucky River, Cocke and Hamblem Counties, Tennessee,

and in the Little Pigeon River, Sevier County, Tennessee (Gordon 1991).

Much of the oyster mussel's historic range has been impounded by

the Tennessee Valley Authority (TVA) and the U.S. Army Corps of

Engineers (Corps). Other populations were lost due to various forms of

pollution and siltation. The present populations are threatened by the

adverse impacts of coal mining, poor land use practices, and pollution,

primarily from non-point sources. The Duck River population could be

lost if the proposed Columbia Dam on the Duck River at Columbia,

Tennessee, is completed as presently proposed. All the known

populations are small and could be decimated by toxic chemical spills.

Cumberlandian Combshell (Epioblasma Brevidens)

The Cumberlandian combshell (Lea 1831) has a thick, solid shell

with a smooth to cloth-like outer surface. It is yellow to tawny-brown

in color with narrow green broken rays. The inside of the shell is

white. The shells of females are inflated with serrated teeth-like

structures along a portion of the shell margin. (See Johnson (1978) for

a more complete description of species.) The species is considered

endangered in the States of Kentucky (Kentucky State Nature Preserve

Commission 1991) and Virginia (Neves 1991; Bruenderman, in litt., 1992)

and a species of special concern in Tennessee (Bogan and Parmalee

1983).

The Cumberlandian combshell historically existed throughout much of

the Cumberlandian portion of the Tennessee and Cumberland River systems

in Alabama, Kentucky, Tennessee, and Virginia (Gordon 1991). Presently,

it survives in the Cumberland River basin, as a very rare component of

the benthic community in Buck Creek, Pulaski County, Kentucky, and in a

few miles of the Big South Fork Cumberland River, McCreary County,

Kentucky, and Scott County, Tennessee (Bakaletz 1991). A few old, non-

reproducing individuals may also survive in Old Hickory Reservoir on

the Cumberland River, Smith County, Tennessee (Gordon 1991).

Within the Tennessee River basin, the species still survives in

very low numbers in the Powell and Clinch Rivers, Lee and Scott

Counties, Virginia; and Claiborne and Hancock Counties, Tennessee. The

Clinch and Powell River populations are very small and in decline

(Neves 1991; Richard Neves, Virginia Cooperative Fish and Wildlife

Research Unit, personal communication, 1991).

Many of the Cumberlandian combshell's historic populations were

lost when impoundments were constructed on the Tennessee and Cumberland

Rivers by TVA and the Corps. Other populations were lost due to various

forms of pollution and siltation. The present populations are

threatened by the adverse impacts of coal mining, poor land use

practices, and pollution, primarily from non-point sources. All the

known populations are small and could be decimated by toxic chemical

spills.

Purple Bean (Villosa Perpurpurea)

The purple bean mussel (Lea 1861) has a small to medium-sized

shell. The shell's outer surface is usually dark brown to black with

numerous closely-spaced fine green rays. The inside of the shell is

purple, but the purple may fade to white in dead specimens. (See Bogan

and Parmalee (1983) for a more complete description of species.) The

species is considered endangered in Tennessee (Bogan and Parmalee 1983)

and Virginia (Neves 1991; and Bruenderman, in litt., 1992).

The purple bean historically occupied the upper Tennessee River

basin in Tennessee and Virginia upstream of the confluence of the

Clinch River (Gordon 1991). Ortmann (1918) considered the species ``not

rare'' in Virginia. Presently, it survives in limited numbers at a few

locations in the upper Clinch River, Scott, Tazwell, and Russell

Counties, Virginia; Copper Creek (a Clinch River tributary), Scott

County, Virginia; Obed River, Cumberland and Morgan Counties,

Tennessee; Emory River just below its confluence with the Obed River,

Morgan County, Tennessee; and Beech Creek, Hawkins County, Tennessee

(Gordon 1991).

The purple bean populations in the lower Clinch, Powell, and

Holston River were extirpated by reservoirs. The decline of the species

throughout the rest of its range was likely due to the adverse impacts

of coal mining, poor land use practices, and pollution, primarily from

non-point sources. The population centers that remain are so limited

that they are very vulnerable to toxic chemical spills.

Rough Rabbitsfoot (Quadrula Cylindrica Strigillata)

The rough rabbitsfoot (Wright 1898) has an elongated heavy, rough

textured, yellow to greenish colored shell. The shell's surface is

covered with green rays, blotches, and chevron patterns. The inside of

the shell is silvery to white with an iridescence in the posterior area

of the shell. (See Bogan and Parmalee (1983) for a more complete

species' description.) The species is considered threatened in Virginia

(Neves 1991; Bruenderman, in litt., 1992) and a species of special

concern in Tennessee (Bogan and Parmalee 1983).

Historically, this mussel was restricted to the upper Tennessee

River basin in the Clinch, Powell, and Holston River systems (Gordon

1991). It still survives in all three of these systems, but only in

limited areas and at low population levels. Populations persist in the

Powell River, Lee County, Virginia; and Claiborne and Hancock Counties,

Tennessee; Clinch River, Scott County, Virginia, and Hancock County,

Tennessee; Copper Creek (a Clinch River tributary), Scott County,

Virginia; and North Fork Holston River, Washington County, Virginia

(Gordon 1991).

The rough rabbitsfoot populations in the lower Clinch, Powell, and

Holston River systems were extirpated by reservoirs. The decline of the

species throughout the rest of its range was likely due to the adverse

impacts of coal mining, poor land use practices, and pollution,

primarily from non-point sources. The population centers that remain

are so limited that they are vulnerable to extirpation from toxic

chemical spills.

In the Service's notice of review for animal candidates, published

in the Federal Register of November 21, 1991 (56 FR 58804), the

Cumberland elktoe, oyster mussel, Cumberlandian combshell, purple bean,

and rough rabbitsfoot are included as category 2 species. A category 2

species is one that is being considered for possible addition to the

Federal List of Endangered and Threatened Wildlife. These mussels were

approved for elevation to category 1 candidate status by the Service on

August 30, 1993. A category 1 species is a species for which the

Service has sufficient information to propose it for protection under

the Act. On August 25, 1992, the Service notified, by mail (129

letters), potentially affected Federal and State agencies and local

governments within the species' present range, and interested

individuals that a status review of the above mentioned five mussels

and the slabside pearlymussel (Lexingtonia dolabelloides) was being

conducted. (The slabside pearlymussel has not been included in this

proposed rule. Additional populations of this species were discovered

and further evaluation is needed before a decision can be made

regarding the species' need for Federal protection.)

Seven agencies responded to the August 25, 1992, notification. The

U.S. Soil Conservation Service stated: ``It is not anticipated that any

planned or current activities will adversely affect these species or

their habitat.'' The Kentucky State Nature Preserve Commission, the

Kentucky Department of Environmental Protection, Tennessee Wildlife

Resources Agency, Virginia Department of Conservation and Recreation,

and Virginia Department of Game and Inland Fisheries provided

information on the decline and status of the species in their States.

The Duck River Agency (DRA) provided comments on the status of the

oyster mussel in the Duck River. It stated that as the Duck River

population of the oyster mussel is extremely small, it is believed

highly unlikely that the stream supports a viable population of E.

capsaeformis. In contrast to DRA's statement, Don Hubbs (Tennessee

Wildlife Resources Agency, in litt., 1992) stated that fresh dead

oyster mussel individuals (from young and older cohorts) were not

uncommon in muskrat middens on the Duck River in Marshall County,

Tennessee. The Service, however, currently has insufficient information

to judge the species' long-term viability either in the Duck River or

on a range-wide basis.

The DRA took issue with the Service's statement in the notification

that the proposed Columbia Dam on the Duck River could eliminate the

oyster mussel from the Duck River. It stated that current project

alternatives under consideration by the DRA and TVA could result in a

project that would flood less that one third of the area and would

enhance the future viability of the population segment above the pool.

The Service agrees that a smaller Columbia Dam pool would reduce the

amount of the oyster mussel population lost to the direct effects of

the dam. However, the details of these Columbia Dam alternatives have

not been provided to the Service. Thus, the Service stands by its

statement that the Columbia Dam project as presently planned could

eliminate the oyster mussel from the Duck River.

The DRA commented that statements in the mussel species accounts

(Gordon 1991) that were used as an information source to prepare the

August 25, 1992, notification, contained language that appeared to

indicate that the Service had already made a decision to list the

species prior to receiving any comments from the notification. The

Service agrees that the species accounts, which were prepared by a non-

Service biologist under contract to the Service, contain language

regarding the need to reverse the species' decline as a means to

preserve and recover the mussels. However, these statements, made by a

Service contractor, do not represent a predecisional statement by the

Service. Statements in the species accounts will be considered along

with all presently available information on these species, as well as

information obtained through the notification and this proposed rule

when making the final decision regarding the status of the species.

Summary of Factors Affecting the Species

Section 4(a)(1) of the Endangered Species Act (16 U.S.C. 1531 et

seq.) and regulations (50 CFR Part 424) promulgated to implement the

listing provisions of the Act set forth the procedures for adding

species to the Federal lists. A species may be determined to be an

endangered or threatened species due to one or more of the five factors

described in Section 4(a)(1). These factors and their application to

the Cumberland elktoe (Alasmidonta atropurpurea), oyster mussel

(Epioblasma capsaeformis), Cumberlandian combshell (Epioblasma

brevidens), purple bean (Villosa perpurpurea), and rough rabbitsfoot

(Quadrula cylindrica strigillata) are as follows:

A. The present or threatened destruction, modification, or

curtailment of its habitat or range. Mussel populations throughout the

Central and Eastern United States have been declining since modern

civilization began to significantly alter aquatic habitats. The Ohio

River drainage, which includes the Tennessee and Cumberland Rivers, was

a center for freshwater mussel evolution and historically contained

about 127 distinct mussel species and subspecies. Of this once rich

mussel fauna, 11 mussels are extinct, 28 mussels are classified as

Federal endangered species, and 18 others, including the 5 species

covered in this proposed rule, are candidates for addition to the

Federal List of Endangered and Threatened Wildlife. In less than 100

years, 44 percent of the Ohio River system's mussel fauna has either

become extinct, recognized as endangered, or decimated to the point

that Federal protection is being considered. No other wide-ranging

faunal group in the continental United States has experienced this

degree of loss within the last 100 years.

The mussel fauna in most streams of the Ohio River basin has been

directly impacted by impoundments, siltation, channelization, and water

pollution. Reservoir construction is the most obvious cause of the loss

of mussel diversity in the basin's larger rivers. Most of the main stem

of both the Tennessee and Cumberland River and many of their

tributaries are impounded. For example: over 2,300 river miles or about

20 percent of the Tennessee River and its tributaries with drainage

areas of 25 square miles or greater are impounded (Tennessee Valley

Authority 1971). In addition to the loss of riverine habitat within

impoundments, most impoundments also seriously alter downstream aquatic

habitat; and mussel populations upstream of reservoirs may be adversely

affected by changes in the fish fauna essential to a mussel's

reproductive cycle.

Coal mining related siltation and associated toxic runoff have

adversely impacted many stream reaches. Numerous streams have

experienced mussel and fish kills from toxic chemical spills, and poor

land use practices have fouled many waters with silt. Runoff from large

urban areas has degraded water and substrate quality. Because of the

extent of habitat destruction, the overall aquatic faunal diversity in

many of the basins' rivers has declined significantly. Because of this

destruction of riverine habitat, 8 fishes and 24 mussels in the

Tennessee and Cumberland River basins have already required Endangered

Species Act protection, and numerous other aquatic species in these two

basins are currently considered candidates for Federal listing.

The mussel fauna in the Tennessee and Cumberland Rivers has been

extensively sampled, and much is known about the historic and present

distribution of this rich fauna. Gordon (1991) provided an extensive

review of the literature regarding the past and present ranges of the

Cumberland elktoe, oyster mussel, Cumberlandian combshell, purple bean,

and rough rabbitsfoot. Based on Gordon's (1991) review and personal

communication with numerous Federal, State, and independent biologists,

it is clear that these five mussel species have undergone significant

reductions in range and that they now exist as only remnant isolated

populations. (See ``Background'' section for a discussion of current

and historic distribution and threats to the remaining populations.)

B. Overutilization for commercial, recreational, scientific, or

educational purposes. These five mussels are not commercially valuable;

but as they are extremely rare, they could be sought by collectors. The

specific areas inhabited by these species are presently unknown to the

general public. As a result, their overutilization has not been a

problem. However, vandalism could pose a problem, especially if

specific inhabited reaches were to be revealed through the often

controversial critical habitat designation process. Most stream reaches

inhabited by these mussels are extremely small. Thus, populations of

the species could be easily eliminated or significantly reduced using

readily available toxic chemicals. Although scientific collecting is

not presently identified as a threat, take by private and institutional

collectors could pose a threat if left unregulated. Federal protection

of these species will help to minimize illegal and inappropriate take.

(See ``Critical Habitat'' section for a discussion of why critical

habitat is not being considered for these species.)

C. Disease and predation. Disease occurrence in freshwater mussels

is virtually unknown. However, since 1982, biologists and commercial

mussel fishermen have reported extensive mussel die-offs in rivers and

lakes throughout the United States. The cause(s) of many of these die-

offs is unknown, but disease has been suggested as a possible factor.

Shells of all five species are often found in muskrat middens. The

species are also presumably consumed by other mammals, such as raccoons

and mink. While predation is not thought to be a significant threat to

a healthy mussel population, Neves and Odum (1989) suggest it could

limit the recovery of endangered mussel species or contribute to the

local extirpation of already depleted mussel populations. Predation

would be of particular concern to oyster mussel, Cumberlandian

combshell, and purple bean, which exist only as extremely small,

remnant populations.

D. The inadequacy of existing regulatory mechanisms. The States of

Kentucky, Alabama, Tennessee, and Virginia prohibit the taking of fish

and wildlife, including freshwater mussels, for scientific purposes

without a State collecting permit. However, enforcement of this permit

requirement is difficult. Also, State regulations do not generally

protect these mussels from other threats. Existing authorities

available to protect aquatic systems, such as the Clean Water Act,

administered by the Environmental Protection Agency (EPA) and the Army

Corps of Engineers, have not been fully utilized and may have led to

the degradation of aquatic environments in the Southeast Region, thus

resulting in a decline of aquatic species. As these mussels (Cumberland

elktoe, Cumberlandian combshell, oyster mussel, purple bean, and rough

rabbitsfoot) coexist with other federally listed species throughout

most or all of their range, some of the habitats of these species are

indirectly provided some Federal protection from Federal actions and

activities through Section 7 of the Act. Federal listing will provide

additional protection for all five species throughout their range by

requiring Federal permits to take the species and by requiring Federal

agencies to consult with the Service when activities they fund,

authorize, or carry out may specifically adversely affect these

species. Further, listing will require consultation with the EPA in

relationship to water quality criteria, standards, and National

Pollution Discharge Elimination System permits under the Clean Water

Act; and implementation of actions to recover the species.

E. Other natural or manmade factors affecting its continued

existence. The populations of these species (Cumberland elktoe, oyster

mussel, Cumberlandian combshell, purple bean, and rough rabbitsfoot)

are small and geographically isolated. This isolation prohibits the

natural interchange of genetic material between populations, and the

small population sizes reduce the reservoir of genetic variability

within the populations. It is likely that some of the populations of

the Cumberland elktoe, oyster mussel, Cumberlandian combshell, purple

bean and rough rabbitsfoot may be below the level required to maintain

long-term genetic viability. Also, because most of the extant

populations of these mussels are restricted to short river reaches,

they are very vulnerable to extirpation from a single catastrophic

event, such as a toxic chemical spill or a major stream channel

modification. Because the populations of each species are isolated from

one another because of impoundments, natural repopulation of any

extirpated population is impossible without human intervention.

The invasion of the exotic zebra mussel (Dreissena polymorpha) into

the Great Lakes poses a potential threat to the Ohio River's mussel

fauna. The zebra mussel has recently been reported from the Tennessee

and Cumberland Rivers, but the extent of its impact on the basin's

freshwater mussels is unknown. However, zebra mussels in the Great

Lakes have been found attached in large numbers to the shells of live

and freshly dead native mussels, and zebra mussels have been implicated

in the loss of entire mussel beds.

The Service has carefully assessed the best scientific and

commercial information available regarding the past, present, and

future threats faced by these mussels in determining to propose these

rules. Based on these evaluations, the preferred action is to propose

the Cumberland elktoe (Alasmidonta atropurpurea), oyster mussel

Epioblasma capsaeformis, Cumberlandian combshell Epioblasma brevidens,

purple bean Villosa perpurpurea, and rough rabbitsfoot Quadrula

cylindrica strigillata for Federal protection. The Cumberland elktoe,

purple bean, and rough rabbitsfoot are known from three populations

each, and the Cumberland combshell and oyster mussel are known from

five populations each. These five species and their habitat have been

and continue to be impacted by habitat destruction and range reduction.

Their limited distribution also makes them very vulnerable to possible

extinction from toxic chemical spills. Because of their restricted

distributions and their vulnerability to extinction, endangered status

appears to be the most appropriate classification for these species.

(See ``Critical Habitat'' section for a discussion of why critical

habitat is not being proposed for these mussels.)

Critical Habitat

Section 4(a)(3) of the Act, as amended, requires that, to the

maximum extent prudent and determinable, the Secretary designate

critical habitat at the time the species is determined to be endangered

or threatened. The Service's regulations (50 CFR 424.12(a)(1)) state

that designation of critical habitat is not prudent when one or both of

the following situations exist: (1) the species is threatened by taking

or other activity and the identification of critical habitat can be

expected to increase the degree of threat to the species or (2) such

designation of critical habitat would not be beneficial to the species.

The Service finds that designation of critical habitat is not presently

prudent for these species. Such a determination would result in no

known benefit to these species, and designation of critical habitat

could pose a further threat to them.

Section 7(a)(2) and regulations codified at 50 CFR Part 402 require

Federal agencies to ensure, in consultation with and with the

assistance of the Service, that activities they authorize, fund, or

carry out are not likely to jeopardize the continued existence of

listed species or destroy or adversely modify their critical habitat,

if designated. Section 7(a)(4) requires Federal agencies to confer

informally with the Service on any action that is likely to jeopardize

the continued existence of a proposed species or result in the

destruction or adverse modification of proposed critical habitat. (See

``Available Conservation Measures'' section for a further discussion of

Section 7.) As part of the development of this proposed rule, Federal

and State agencies were notified of the mussels' general distributions,

and they were requested to provide data on proposed Federal actions

that might adversely affect the species. Should any future projects be

proposed in areas inhabited by these mussels, the involved Federal

agency will already have the general distributional data needed to

determine if the species may be impacted by its action; and if needed,

more specific distributional information would be provided.

Each of these mussels occupies very restricted stream reaches.

Thus, as any significant adverse modification or destruction of these

species' habitat would likely jeopardize their continued existence, no

additional protection for the species would accrue from critical

habitat designation that would not also accrue from listing these

species. Therefore, habitat protection for these species would be

accomplished through the Section 7 jeopardy standard and Section 9

prohibitions against take.

In addition, these mussels are rare, and taking for scientific

purposes and private collection could pose a threat if specific site

information were released. The publication of critical habitat maps in

the Federal Register, local newspapers, and other publicity

accompanying critical habitat designation could increase the collection

threat and increase the potential for vandalism especially during the

often controversial critical habitat designation process. (See

``Summary of Factors Affecting the Species, Part B. Overutilization for

commercial, recreational, scientific, or educational purposes'' section

for a further discussion of threats to the species from vandals.) The

locations of populations of these species have consequently been

described only in general terms in these proposed rules. Any existing

precise locality data would be available to appropriate Federal, State,

and local governmental agencies from the following offices: Service

office described in the Addresses section; the Service's Cookeville

Field Office, 446 Neal Street, Cookeville, Tennessee 38501; and White

Marsh Field Office, P.O. Box 480, Mid-County Center, U.S. Route 17,

White Marsh, Virginia 23183; and from the Kentucky Department of Fish

and Wildlife Resources, the Kentucky State Nature Preserves Commission,

the Tennessee Wildlife Resources Agency, the Tennessee Department of

Conservation, the Virginia Department of Game and Inland Fisheries, and

the Virginia Department of Conservation and Recreation.

Available Conservation Measures

Conservation measures provided to species listed as endangered or

threatened under the Act include recognition, recovery actions,

requirements for Federal protection, and prohibitions against certain

practices. Recognition through listing encourages and results in

conservation actions by Federal, State, and private agencies, groups,

and individuals. The Act provides for possible land acquisition and

cooperation with the States and requires that recovery actions be

carried out for all listed species. The protection required of Federal

agencies and the prohibitions against taking and harm are discussed, in

part, below.

Section 7(a) of the Act requires Federal agencies to evaluate their

actions with respect to any species that is proposed or listed as

endangered or threatened and with respect to its critical habitat, if

any is being designated. Regulations implementing this interagency

cooperation provision of the Act are codified at 50 CFR Part 402.

Section 7(a)(4) requires Federal agencies to confer informally with the

Service on any action that is likely to jeopardize the continued

existence of a proposed species or result in destruction or adverse

modification of proposed critical habitat. If a species is listed

subsequently, Section 7(a)(2) of the Act requires Federal agencies to

ensure that activities they authorize, fund, or carry out are not

likely to jeopardize the continued existence of such a species or to

destroy or adversely modify its critical habitat. If a Federal action

may affect a listed species or its critical habitat, the responsible

Federal agency must enter into formal consultation with the Service.

The Service notified Federal agencies that may have programs which

could affect these species. One major Federal project, a proposed

Tennessee Valley Authority impoundment on the Duck River, Columbia,

Tennessee, could have a significant impact on the oyster mussel.

Construction of Columbia Dam was halted in the late 1970's after the

Service issued a biological opinion stating that the dam's completion

would likely jeopardize the continued existence of two federally listed

mussels. (A third mussel listed prior to the issuance of the biological

opinion is now known from the proposed flood pool.) Although the

presence of a fourth endangered mussel (oyster mussel) may somewhat

complicate this issue, any measures needed to avoid a jeopardy

situation for the currently listed mussels would not be expected to

change significantly with the addition of a fourth listed species.

An impoundment is under consideration on the North Prong of Clear

Fork Creek in the upper Big South Fork of the Cumberland River,

Fentress County, Tennessee. This project would inundate and adversely

impact a portion of the Cumberland elktoe population that exists in the

upper Big South Fork basin. This water supply project, proposed by the

Fentress County Utility District, is one of a series of water supply

alternatives currently under review for a permit pursuant to Section

404 of the Clean Water Act.

No other specific proposed Federal actions were identified that

would likely affect any of the species. Federal activities that could

occur and impact the species include, but are not limited to, the

carrying out or the issuance of permits for reservoir construction,

stream alterations, wastewater facility development, pesticide

registration, coal mining, and road and bridge construction. It has

been the experience of the Service, however, that nearly all Section 7

consultations have been resolved so that the species has been protected

and the project objectives have been met.

The Act and implementing regulations found at 50 CFR 17.21 set

forth a series of general prohibitions and exceptions that apply to all

endangered wildlife. These prohibitions, in part, make it illegal for

any person subject to the jurisdiction of the United States to take

(includes harass, harm, pursue, hunt, shoot, wound, kill, trap, or

collect; or to attempt any of these), import or export, ship in

interstate commerce in the course of commercial activity, or sell or

offer for sale in interstate or foreign commerce any listed species. It

is also illegal to possess, sell, deliver, carry, transport, or ship

any such wildlife that has been taken illegally. Certain exceptions

apply to agents of the Service and State conservation agencies.

Permits may be issued to carry out otherwise prohibited activities

involving endangered wildlife species under certain circumstances.

Regulations governing permits are at 50 CFR 17.22 and 17.23. Such

permits are available for scientific purposes, to enhance the

propagation or survival of the species, and/or for incidental take in

connection with otherwise lawful activities.

Public Comments Solicited

The Service intends that any final action resulting from these

proposals will be as accurate and as effective as possible. Therefore,

comments or suggestions from the public, other concerned governmental

agencies, the scientific community, industry, or any other interested

party concerning these proposed rules are hereby solicited. Comments

particularly are sought concerning:

(1) biological, commercial trade, or other relevant data concerning

any threat (or lack thereof) to the species;

(2) the location of any additional populations of the species and

the reasons why any habitat should or should not be determined to be

critical habitat as provided by Section 4 of the Act;

(3) additional information concerning the range, distribution, and

population size of the species; and

(4) current or planned activities in the subject areas and their

possible impacts on the species.

Final promulgation of the regulations on these species will take

into consideration the comments and any additional information received

by the Service, and such communications may lead to final regulations

that differ from this proposal.

The Endangered Species Act provides for a public hearing on this

proposal, if requested. Requests must be received within 45 days of the

date of publication of this proposal. Such requests must be made in

writing and addressed to the Field Supervisor, U.S. Fish and Wildlife

Service, Asheville Field Office, 330 Ridgefield Court, Asheville, North

Carolina 28806.

National Environmental Policy Act

The Fish and Wildlife Service has determined that an Environmental

Assessment, as defined under the authority of the National

Environmental Policy Act of 1969, need not be prepared in connection

with regulations adopted pursuant to Section 4(a) of the Act. A notice

outlining the Service's reasons for this determination was published in

the Federal Register on October 25, 1983 (48 FR 49244).

References Cited

Bakaletz, S. 1991. Mussel survey of the Big South Fork National

River Recreation Area. M.S. Thesis. Tennessee Technological

University, Cookeville, Tennessee. 62 pp.

Bogan, A.E., and P.W. Parmalee. 1983. Tennessee's rare wildlife,

Volume II: the mollusks. 123 pp.

Clarke, A.H. 1981. The Tribe Alasmidontini (Unionidae: Anodontinae),

Part I: Pegias, Alasmidonta, and Arcidens. Smithsonian Contributions

to Zoology, No. 326. 101 pp.

Gordon, M.E. 1991. Species accounts for Cumberland elktoe

(Alasmidonta atropurpurea), Cumberlandian combshell (Epioblasma

brevidens), oyster mussel (Epioblasma capsaeformis), rough

rabbitsfoot (Quadrula cylindrica strigillata), and purple bean

(Villosa perpurpurea). Unpublished reports to The Nature

Conservancy. 75 pp.

Johnson, R.I. 1978. Systematics and zoogeography of Plagiola (-

Dysnomia-Epioblasma), an almost extinct genus of mussels (Bivalvia:

Unionides) from middle North America. Bull. Mus. Comp. Zool.

148:239-320.

Kentucky State Nature Preserve Commission. 1991. Endangered,

Threatened, and Special Concern Plant and Animal Species of

Kentucky. March, 1991. 15 pp.

Neves, R.J. 1991. Mollusks. In Virginia's endangered species,

proceedings of a symposium. Coordinated by Karen Terwilliger.

McDonald & Woodward Publ. Co., Blacksburg, VA. 672 pp.

Neves, R.J., and M.C. Odum. 1989. Muskrat predation on endangered

freshwater mussels in Virginia. Jour. Wildl. Manage. 53(4):939-940

Ortmann, A.E. 1918. The nayades (freshwater mussels) of the upper

Tennessee drainage with notes on synonymy and distribution.

Proceedings of the American Philosophical Society. 57:521-626.

Tennessee Valley Authority. 1971. Stream length in the Tennessee

River Basin. Tennessee River Authority, Knoxville, Tennessee, 25 pp.

Author

The primary author of this proposed rule is Richard G. Biggins,

U.S. Fish and Wildlife Service, Asheville Field Office, 330

Ridgefield Court, Asheville, North Carolina 28806 (704/665-1195,

Ext. 228).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, and Transportation.

Proposed Regulation Promulgation

PART 17--[AMENDED]

Accordingly, the Service proposes to amend part 17, subchapter B of

chapter I, title 50 of the Code of Federal Regulations, as set forth

below:

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

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; Pub. L. 99-

625, 100 Stat. 3500; unless otherwise noted.

2. Sec. 17.11(h) is amended by adding the following, in

alphabetical order under CLAMS, to the List of Endangered and

Threatened Wildlife:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *

(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Species Vertebrate population

---------------------------------------------------- Historic range where endangered or Status When listed Critical Special

Common name Scientific name threatened habitat rules

--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *

Clams

* * * * * * *

Bean, purple............. Villosa perpurpurea..... U.S.A. (TN, VA)......... E....................... .......... ........... NA NA

* * * * * * *

Combshell, Cumberlandian. Epioblasma brevidens.... U.S.A. (AL, KY, TN, VA). ........................ NA E

* * * * * * *

Elktoe, Cumberland....... Alasmidonta atropurpurea U.S.A. (KY, TN)......... ........................ NA E

* * * * * * *

Mussel, oyster........... Epioblasma capsaeformis. U.S.A. (AL, KY, TN, VA). ........................ NA E

* * * * * * *

Rabbitsfoot, rough....... Quadrula cylindrica U.S.A. (TN, VA)......... ........................ NA E

strigillata.

* * * * * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Dated: June 30, 1994.

Mollie H. Beattie,

Director, Fish and Wildlife Service.

[FR Doc. 94-17133 Filed 7-13-94; 8:45 am]

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