Endangered and Threatened Wildlife and Plants; Appalachian Elktoe Determined To Be an Endangered Species

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AB97

Endangered and Threatened Wildlife and Plants; Appalachian Elktoe

Determined To Be an Endangered Species

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The U.S. Fish and Wildlife Service (Service) determines the

Appalachian elktoe (Alasmidonta raveneliana) to be an endangered

species under the Endangered Species Act of 1973, as amended (Act). The

Appalachian elktoe is endemic to the upper Tennessee River system in

the mountains of western North Carolina and eastern Tennessee. It was

once fairly widely distributed in western North Carolina, but it has

been eliminated from the majority of its historic range and is now

found only in short reaches of the Little Tennessee River, Nolichucky

River, Toe River, and Cane River. In Tennessee, the species is known

only from its present distribution in the Nolichucky River. The

species' range has been seriously reduced by impoundments and the

general deterioration of habitat and water quality resulting from

siltation and other pollutants contributed by poor land use practices

and toxic discharges. Due to the species' limited distribution, any

factors that adversely modify habitat or water quality in the stream

reaches it now inhabits could further threaten the species. This final

rule implements the Act's protection and recovery provisions for the

Appalachian elktoe.

EFFECTIVE DATE: December 23, 1994.

ADDRESSES: The complete file for this rule is available for inspection,

by appointment, during normal business hours at U.S. Fish and Wildlife

Service, 330 Ridgefield Court, Asheville, North Carolina 28806.

FOR FURTHER INFORMATION CONTACT: Mr. John Fridell at the above address

(704/665-1195, Ext. 225).

SUPPLEMENTARY INFORMATION:

Background

The Appalachian elktoe (Alasmidonta raveneliana) (Lea, 1834) is a

freshwater mussel with a thin, but not fragile, kidney-shaped shell,

reaching up to about 3.2 inches in length, 1.4 inches in height, and 1

inch in width (Clarke 1981). Juveniles generally have a yellowish-brown

periostracum (outer shell surface) while the periostracum of the adults

is usually dark brown in color. Although rays are prominent on some

shells, particularly in the posterior portion of the shell, many

individuals have only obscure greenish rays. The shell nacre (inside

shell surface) is shiny, often white to bluish-white, changing to a

salmon, pinkish, or brownish color in the central and beak cavity

portions of the shell; some specimens may be marked with irregular

brownish blotches (adapted from Clarke 1981). A detailed description of

the species' shell, with illustrations, is contained in Clarke (1981).

Soft parts are discussed in Ortmann (1921).

Because of its rarity, little is known about the autecology of the

Appalachian elktoe. The species has been reported from relatively

shallow, medium-sized creeks and rivers with cool, moderate- to fast-

flowing water. It has been observed in gravelly substrates often mixed

with cobble and boulders, in cracks in bedrock (Gordon 1991), and

occasionally in relatively silt-free, coarse, sandy substrates (J.

Alderman, North Carolina Wildlife Resources Commission, personal

communication, 1992; personal observations, 1989 and 1991). Like other

freshwater mussels, the Appalachian elktoe feeds by filtering food

particles from the water column. The specific food habits of the

species are unknown, but other freshwater mussels have been documented

to feed on detritus, diatoms, phytoplankton, and zooplankton (Churchill

and Lewis 1924). The reproductive cycle of the Appalachian elktoe is

similar to that of other native freshwater mussels. Males release sperm

into the water column; the sperm are then taken in by the females

through their siphons during feeding and respiration. The females

retain the fertilized eggs in their gills until the larvae (glochidia)

fully develop. The mussel glochidia are released into the water, and

within a few days they must attach to the appropriate species of fish,

which they then parasitize for a short time while they develop into

juvenile mussels. They then detach from their ``fish host'' and sink to

the stream bottom where they continue to develop, provided they land in

a suitable substrate with the correct water conditions. Recent studies

funded by the U.S. Forest Service and conducted by personnel with the

Tennessee Technological University at Cookeville, Tennessee, have

identified the banded sculpin (Cottus carolinae) as a host species for

glochidia of the Appalachian elktoe (M. Gordon, Tennessee Technological

University, personal communication, 1993).

The mussel's life span, and many other aspects of its life history,

are unknown.

The Appalachian elktoe is known to be endemic to the upper

Tennessee River system in western North Carolina and eastern Tennessee.

Historical records for the species in North Carolina exist for the

Little Tennessee River system (Talula Creek, Graham County) and the

French Broad River system, including the Nolichucky River (county

unknown); the Little River (Transylvania County), the Swannanoa River

(county unknown), the Pigeon River (Haywood County), and the main stem

of the French Broad River (Buncombe County and an unknown county)

(Clarke 1981). An additional historical record of the Appalachian

elktoe in the North Fork Holston River, Tennessee (S.S. Haldeman

collection) is believed to represent a mislabeled locality (Gordon

1991).

From 1986 through the spring of 1992, biologists with the Service,

the Tennessee Valley Authority, the North Carolina Wildlife Resources

Commission, and the Tennessee Technological University conducted

surveys in both historic and potential habitat of the species. Surveys

of the French Broad River and its tributaries in Transylvania,

Henderson, Haywood, Buncombe, and Madison Counties, North Carolina,

failed to locate any specimens of the Appalachian elktoe (R. Biggins,

U.S. Fish and Wildlife Service, personal communications, 1989 and 1991;

Alderman, North Carolina Wildlife Resources Commission, personal

communication, 1990; M. Gordon, Tennessee Technological University,

personal communications, 1991 and 1992; personal observations, 1986

through 1991). The species has also been extirpated from Talula Creek

in the Little Tennessee River system (personal observations, 1987 and

1992) and could not be found in any of the other major tributaries to

the Little Tennessee River (Gordon, personal communication, 1991; S.

Ahlstedt, Tennessee Valley Authority, personal communication, 1992). If

the historic record for the species in the North Fork Holston River in

Tennessee was a good record, then the species has been eliminated from

this river as well. Only two populations of the species are known to

survive. One population, discovered in 1987 by Tennessee Valley

Authority biologists (Steven Ahlstedt and Charles Saylor), exists in

the main stem of the Little Tennessee River in Swain and Macon

Counties, North Carolina (Tennessee Valley Authority 1987; J. Widlak,

U.S. Fish and Wildlife Service, personal communication, 1988; Biggins

1990; Gordon 1991; personal observations, 1988, 1991, 1992, 1993). The

second population occurs in the Nolichucky River system. This

population is restricted to scattered locations along a short reach of

the Toe River in Yancey and Mitchell Counties in North Carolina

(personal observations, 1991 and 1992) and the main stem of the

Nolichucky River, Yancey and Mitchell Counties, North Carolina

(Alderman, personal communication, 1991; personal observation, 1992,

1993), extending downriver into Unicoi County, Tennessee (personal

observation, 1992). A single specimen of the Appalachian elktoe was

also found in the Cane River in Yancey County, North Carolina (C.

McGrath, North Carolina Wildlife Resources Commission, personal

communication, 1992).

Habitat and water quality degradation/alteration resulting from

impoundments; stream channelization; dredging; industrial and sewage

effluent; and the runoff of silt and other pollutants from poorly

implemented mining, construction/development, agricultural, and past

logging activities are believed to be the primary factors resulting in

the elimination of the species from the majority of its historic range.

Many of these factors threaten the only two remaining populations of

the species.

Previous Federal Action

The Appalachian elktoe was recognized by the Service in the May 22,

1984, Federal Register (49 FR 21664) and again in the January 6, 1989,

Federal Register (54 FR 554) as a species being reviewed for potential

addition to the Federal List of Endangered and Threatened Wildlife and

Plants. This mussel was designated as a category 2 candidate for

Federal listing on these candidate lists. Category 2 represents those

species for which the Service has some information indicating that the

taxa may be under threat, but sufficient information is lacking to

prepare a proposed rule. Since that time, both historic and potential

habitat of the species has been surveyed. Only two populations of the

Appalachian elktoe are known to survive, and both of these populations

are threatened by many of the same factors that are believed to have

resulted in the extirpation of the species elsewhere within its

historic range. Accordingly, on June 10, 1992, the Service designated

the Appalachian elktoe as a category 1 candidate. Category 1 represents

those species for which the Service has enough substantial information

on biological vulnerability and threats to support proposals to list

them as endangered or threatened species. The Service has met and been

in contact with various Federal and State agency personnel and private

individuals knowledgeable about the species, concerning the species'

status and the need for protection provided by the Act. On April 20,

1992, and again on August 21, 1992, the Service notified appropriate

Federal, State, and local government agencies in writing that a status

review was being conducted and that the species might be proposed for

Federal listing. A total of six written comments were received on these

two notices. The North Carolina Wildlife Resources Commission (two

written comments), the North Carolina Natural Heritage Program (two

written comments), and an interested biologist expressed their support

for the species' being proposed for protection under the Act; the U.S.

Soil Conservation Service stated that they did not have any additional

information on this species. No negative comments were received.

On September 3, 1993, the Service published in the Federal Register

(58 FR 46940) a proposal to list the Appalachian elktoe as an

endangered species. That proposal provided information on the species'

biology, status, and threats to its continued existence.

Summary of Comments and Recommendations

In the September 3, 1993, proposed rule, the January 21, 1994,

notice of public hearing and reopening of the comment period (59 FR

12353), the February 8, 1994, public hearing, and through associated

notifications, comments or suggestions concerning the proposed rule

were solicited from the public, concerned governmental agencies, the

scientific community, industry, or any other interested party.

Appropriate Federal and State agencies, county governments, scientific

organizations, and interested parties were contacted by letters dated

September 14, 1993, and January 27, 1994, and were requested to

comment. A legal notice, which invited general public comment, was

published in the following newspapers: ``The Erwin Record,'' Erwin,

Tennessee, September 22, 1993; the ``Mitchell News Journal,'' Spruce

Pine, North Carolina, September 22, 1993; the ``Yancey Journal,''

Burnsville, North Carolina, September 22, 1993; the ``Smoky Mountain

Times,'' Bryson City, North Carolina, September 23, 1993; and the

``Franklin Press,'' Franklin, North Carolina, September 24, 1993.

In response to three formal requests, a public hearing on the

proposal to list the Appalachian elktoe as an endangered species was

held on February 8, 1994, at the Mitchell High School, Bakersville,

North Carolina. A legal notice announcing the public hearing and

reopening of the comment period was published in the newspapers listed

above.

All written comments and oral statements presented at the public

hearing and those received during the comment periods are covered in

the following discussion.

Four written responses to the proposed rule were received during

the initial comment period. One of these was from a State agency, and

the others were from the mining industry in Mitchell County, North

Carolina. The State of Tennessee, Department of Environment and

Conservation expressed support for the listing of the Appalachian

elktoe as endangered, and stated that their Heritage Program records

concurred with the information presented in the proposed rule. The

Unimin Corporation, Feldspar Corporation, and K-T Feldspar Corporation

expressed concern about the potential listing and requested that a

public hearing on the Service's proposal be held.

Nineteen verbal statements were made at the public hearing. Fifteen

respondents (a representative of Congressman Taylor's office, the

Mitchell County Board of Commissioners, the Mayor of the Town of Spruce

Pine, the Mitchell County Soil and Water Conservation District, the

Mitchell County Economic Development Commission, the Mitchell County

Christmas Tree Growers Association, representatives of three mining

companies, and six individuals) expressed opposition to the listing of

the Appalachian elktoe. Four respondents (representatives of two

businesses, a civic group, and a representative for 31 children in east

Tennessee) supported the listing. Ten written comments were received at

the public hearing, nine of which were copies of verbal statements

given. A written statement was also received from Congressman Cass

Ballenger. Congressman Ballenger expressed his interest in the matter

and stated that he had sent a representative of his office to the

hearing.

Forty additional written comments were received during the comment

period extension (thirty-one letters were received from children in

Chucky, Tennessee, but are counted in this total as one comment from

the children in east Tennessee). Nine of these respondents (Congressman

Charles Taylor, Congressmen Cass Ballenger, The K-T Feldspar

Corporation, The Unimin Corporation, and five individuals) opposed the

listing; thirty respondents (members of the League of Women Voters,

Save our Rivers, a registered forester, and 26 other respondents)

supported the listing; one respondent (Nantahala Power and Light

Company) expressed neither support for nor opposition to the listing.

Following is a summary of comments, concerns, and questions

(referred to as ``Issues'' for the purpose of this summary) expressed

orally at the public hearing or in writing during the reopened comment

period. Issues of similar content have been grouped together. These

issues and the Service's response to each are presented below.

Issue 1: Congressman Taylor, Congressman Ballenger, the Mitchell

County Soil and Water Conservation District, the Mitchell County

Economic Development Commission, the Mayor of the town of Spruce Pine,

three mining companies in Mitchell County, North Carolina and several

other respondents questioned the need for the Service to list the

Appalachian elktoe because the species is already listed by the State

of North Carolina and is protected under North Carolina's environmental

laws.

Service Response: While the species is currently listed by the

State of North Carolina as an endangered species, State regulations

pertaining to State listed fish and wildlife, including freshwater

mussels, prohibit only the take of such species. These regulations do

not specifically protect State endangered and threatened species from

other threats. Federal listing will provide additional protection for

the Appalachian elktoe throughout its range by requiring Federal

agencies, under Section 7 of the Act, to insure that their actions are

not likely to jeopardize the continued existence of the Appalachian

elktoe. Federal actions subject to Section 7 of the Act that could

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

carrying out or issuance of permits for road and bridge construction,

forestry activities on National Forest lands, reservoir construction,

river channel maintenance or other dredging activities, stream and

wetland alterations, and potentially harmful wastewater discharges in

relatively close proximity to the occupied habitat of the species. If

the species was not listed, there would be no legal requirement for

Federal agencies under the Act, involved in these types of activities

to give the species any special consideration in their project planning

or authorization. In the majority of the cases involving listed mussels

(particularly the majority of highway and bridge projects, forestry

activities, and other land disturbance projects), only minor project

changes or modifications are necessary to protect the species (i.e., a

commitment for the implementation and maintenance of adequate erosion

and sedimentation control measures). These measures benefit not only

the listed species involved but also the entire river ecosystem and the

river's aesthetic and recreational values.

Further, Federal listing of the Appalachian elktoe will help to

make the species, and areas where the species still exists, a high

priority for potential Federal (and in some cases State and private)

funding sources to help implement recovery actions for the species and

corrective measures at problem sites within the watersheds where the

species exists.

Issue 2: The Mayor of Spruce Pine questioned whether the Service

felt the State of North Carolina is not adequately protecting the

Appalachian elktoe.

Service Response: Protection and recovery of the Appalachian elktoe

cannot be achieved by the efforts of the States of North Carolina and

Tennessee alone or by efforts of the Service and other Federal agencies

alone. Protection and recovery of this species requires a cooperative

effort and will depend on assistance and support of the local

landowners, communities, private industries, businesses, and interest

groups, as well as the local, State, and Federal agencies.

Issue 3: Congressman Taylor, Congressman Ballenger, the Mayor of

the Town of Spruce Pine, one mining company, and two individuals

questioned the factors cited by the Service as having contributed to

the decline of the Appalachian elktoe, in particular pollution from

industrial and municipal sources and siltation.

Service Response: Siltation has been documented to adversely affect

native freshwater mussels both directly and indirectly. Siltation

degrades water and substrate quality limiting available habitat for

freshwater mussels (and their fish hosts), irritates and clogs the

gills of filter-feeding mussels resulting in reduced feeding and

respiration, smothers mussels if sufficient accumulation occurs, and

increases the potential exposure of the mussels to other pollutants

(Ellis 1936, Marking and Bills 1979, Kat 1982). Ellis (1936) found that

less than one inch of sediment deposition caused high mortality in most

mussel species. Sediment accumulations which are less than lethal to

adults may adversely affect or prevent recruitment of juvenile mussels

into the population.

The Appalachian elktoe has not been found in the Nolichucky River

system in substrates with accumulations of silt and shifting sand; the

species is restricted to small, scattered pockets of stable, relatively

clean, gravelly substrates. The same is true of the population

surviving in the Little Tennessee River.

Mussels are also known to be sensitive to numerous other

pollutants, including but not limited to a wide variety of heavy

metals, high concentrations of nutrients, and chlorine (Havlik and

Marking 1987)--pollutants commonly found in many domestic and

industrial effluents. In the early 1900's Ortmann (1909) noted that

unionids (mussels) are the most reliable indicator of stream pollution.

Keller and Zam (1991) concluded that mussels were more sensitive to

metals than commonly tested fish and aquatic insects. The life cycle of

native mussels makes the reproductive stages especially vulnerable to

pollutants (Ingram 1957, Stein 1971, Fuller 1974, Gardner et al. 1976).

The toxicity of chlorinated sewage effluents to aquatic life is well

documented (Brungs 1976, Tsai 1975, Bellanca and Bailey 1977, U.S.

Environmental Protection Agency 1985, Goudreau et al. 1988), and mussel

glochidia (larvae) rank among the most sensitive invertebrates in their

tolerance to toxicants present in sewage effluents (Goudreau et al.

1988).

The evidence available demonstrates that habitat deterioration

(resulting from sedimentation and pollution from numerous point

sources), when combined with the effects of other factors (including

non-point source pollution, habitat destruction/alteration resulting

from impoundments and channelization projects, etc.), has played a

significant role in the decline of the Appalachian elktoe. The Service

believes this is particularly true of the extirpation of the species

from the Pigeon, Swannanoa, and French Broad Rivers. These factors

(primarily sedimentation) likely also contributed to the extirpation of

the species from the Little River and Talula Creek. Habitat loss and

alteration resulting from impoundments, channel modification projects,

and (in the case of Talula Creek) excavation activities within the

creek channel are believed to have had a severe adverse effect on the

species.

Issue 4: One mining company and one individual asked whether

predation posed a threat to the Appalachian elktoe. One of these

respondents inquired about the effects of predation by brown trout,

``muskie'' (muskellunge), and otter; the other inquired concerning the

effects of muskrat predation.

Service Response: Shells of the Appalachian elktoe are often found

in muskrat middens along the reach of the Little Tennessee River where

the species still exists and occasionally in middens along the

Nolichucky River. The species also is presumably consumed by other

mammals, such as raccoons, mink, and otter. Plankton feeding fish

(including hatchling trout and muskellunge) likely occasionally feed on

the sperm and glochidia (which are expelled by freshwater mussels

directly into the water column), and bottom feeding fish may

occasionally feed on mussels, particularly juvenile mussels. However,

larger trout and muskellunge feed primarily on insects, crustaceans,

amphibians and other fish (mobile aquatic organisms).

While predation is not thought to be a significant threat to a

healthy mussel population, it could, as suggested by Neves and Odum

(1989), limit the recovery of endangered mussel species or contribute

to the local extirpation of mussel populations already reduced by other

factors (see ``Summary of Factors Affecting the Species,'' Part C.

Disease or Predation, below).

Issue 5: One of the mining companies inquired concerning whether

disease posed a threat to freshwater mussels.

Service Response: The Service does not currently have any

information to indicate whether disease is a significant threat to

freshwater mussels. Since 1982, biologists and commercial mussel

fishermen have reported occasional and localized, though extensive,

mussel die-offs in rivers and lakes throughout the United States.

Pesticides have been implicated as the cause of one of the die-offs

that occurred in North Carolina, but the cause(s) of many of these die-

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

(See ``Summary of Factors Affecting the Species, factor C. Disease or

Predation, below)

Issue 6: One of the mining companies inquired about the effect high

or low water levels or extreme temperature changes have on the mussel

(Appalachian elktoe).

Service Response: Normal water and temperature fluctuations are not

believed to have any significant adverse effect on the Appalachian

elktoe. However, significant changes in water levels and/or

temperature, especially rapid changes, do pose a threat.

The Appalachian elktoe is found in cool, (it has not been recorded

from extremely cold or warm waters) moderate to fast-flowing water over

stable, relatively silt-free rocky (gravel, cobble, boulder, etc.)

substrates (see ``Background'' section above). Such suitable substrates

are generally found in areas where the water current is swift enough to

help keep silt and other sediments from accumulating. Lessening these

flows increases the potential for siltation of the substrate. Also,

these areas are often located in relatively shallow water. Because

mussels are basically sedentary, de-watering of these areas traps the

mussels and subjects them to heat or cold stress (depending on the time

of year), desiccation, and increased predation. Low water or drastic

increases in water levels within the river can result in temperature

and chemical changes within the water, thus adversely affecting the

Appalachian elktoe. Rapid increases in water levels can result in

increased scouring and erosion of streambanks and river channel

resulting in increased sedimentation of the river.

Issue 7: Nantahala Power and Light Company asked whether surveys

had been conducted to determine the species distribution, and one

individual suggested the species may occur in other areas.

Service Response: From 1986 through the spring of 1992, biologists

with the Service, the North Carolina Wildlife Resources Commission, the

Tennessee Valley Authority, and the Tennessee Technological University

surveyed both historic and potential habitat of the species (see

``Background'' section above). Based on the results of these surveys,

the Service concludes that it is not likely that additional populations

of the Appalachian will be discovered outside of the present known

range.

Issue 8: One respondent for the mining industry suggested that the

surveys conducted for the species may have been in the wrong habitat

type.

Service Response: The surveys that were conducted included the use

of scuba and snorkeling equipment, view buckets (glass bottom buckets),

and collection of shell middens (accumulations of shells from mussels

fed upon by muskrats). Surveys were conducted in deep and shallow

water, riffles, shoals, pools, and runs. The species was observed in

stable, relatively silt-free gravelly substrates often mixed with

cobble and boulders, and in cracks in bedrock (see ``Background''

section above). On three occasions single individuals were found in

relatively clean, coarse sandy substrates. Water currents in the areas

where the species was most often observed was moderate to swift. The

swift currents helped to keep the substrate flushed of sediments.

Deeper and slacker water habitats generally contained accumulations of

unstable silt, sand, and other sediments (particularly in the case of

the Nolichucky River system), which is believed to help explain the

species' absence from these areas.

Issue 9: Several respondents provided information concerning the

efforts that have been undertaken by the town of Spruce Pine, the

industries in the Spruce Pine area, the local landowners, and others in

the Mitchell County area to improve the quality of the North Toe, Toe,

and Nolichucky Rivers. Many of these respondents state that because of

these efforts, Federal listing of the Appalachian elktoe is not

necessary.

Service Response: The Service recognizes that many of the

industries, landowners, developers, builders, etc., in these watersheds

are implementing measures for controlling the runoff of sediments and

other pollutants into the river and its tributaries and commends those

actions. The Service also recognizes that these efforts have resulted

in improvements in the condition of some areas of the upper Nolichucky

River system in recent years. However, while there have been

improvements, there are still activities occurring within the watershed

that continue to adversely affect the quality of the Toe, Cane, and

Nolichucky Rivers, and there are other activities proposed that have

the potential to affect these rivers.

The Service believes that the Appalachian elktoe meets the

definition of endangered and warrants the protection of the Act. In

making this determination the Service has to look at what has happened

or is happening to the species throughout the species' range, and what

threats there are to the species throughout its range. The Service

cannot look at just one area, nor can it look at the threats from just

one or a few sources. The Service believes there are numerous ongoing

and planned activities, as well as natural threats, in both river

systems where the species still survives (see ``Summary of Factors

Affecting the Species'' below) that have the potential to adversely

affect the surviving populations.

Issue 10: One representative of the mining industry suggested a

cooperative effort (reintroduction of the species into tributaries of

the Toe and Nolichucky Rivers) among the Service and the local mining

industry might be used to protect the Appalachian elktoe without

listing the species.

Service Response: Recovery of the Appalachian elktoe cannot be

achieved without reestablishment of the species throughout a

significant portion of its historic range. Because the majority of the

areas from which the species has been eliminated are isolated from

existing populations, natural reestablishment of these areas by the

species is impossible and will require human assistance. However,

before reintroduction activities can be carried out with confidence

that such reintroductions can be successful, additional research is

necessary to determine the range of environmental requirements of the

species. Artificial propagation of the species may be necessary in

order to obtain sufficient numbers of the species for the successful

reintroductions--the existing populations, especially the Nolichucky

river population, currently appear too small to support removals for

reintroductions. Several agencies and institutes are conducting

research on artificial propagation and relocation of freshwater

mussels, though efforts to date have met with only limited success.

Much more work is needed to perfect these techniques before they can be

applied to endangered mussels. Recovery of decimated populations of

native freshwater mussels through reintroductions will be an extremely

slow and difficult process and will require long-term commitment of

funds and effort to carry out and monitor.

Issue 11: Congressman Taylor and Congressman Ballenger, the

Mitchell County Board of Commissioners, the Mitchell County Economic

Development Commission, the Mayor of the Town of Spruce Pine, and

several other respondents expressed economic concerns associated with

Federal listing of the Appalachian elktoe.

Service Response: Under section 4(b)(1)(A) of the Act, a listing

determination must be based solely on the best scientific and

commercial data available concerning the status of a species. The

legislative history of this provision clearly states the intent of

Congress to ensure that listing decisions are ``based solely on

biological criteria and to prevent non-biological considerations from

affecting such decisions'' H.R. Rep. No. 97-835, 97th Cong. 2nd Sess.

19 (1982). As further stated in the legislative history, ``economic

considerations have no relevance to determinations regarding the status

of the species''. The Service is prohibited by law from withholding a

listing based on concerns regarding economic impact.

While the Service cannot consider economic concerns in determining

whether a species is endangered or threatened, other provisions of the

Act do allow for the consideration of the potential economic effects of

actions or determinations made pursuant to the Act. For instance, in

developing a biological opinion under Section 7 of the Act, the Service

develops (through consultation with the lead Federal agency and the

applicant, if there is one) ``reasonable and prudent alternatives'' for

actions that are determined to be likely to jeopardize the continued

existence of a federally listed species, and ``reasonable and prudent

measures'' for actions that are likely to result in incidental take of

a federally listed species. In order to be ``reasonable and prudent''

these alternatives/measures must be technically and economically

feasible. If it was determined that a proposed action was likely to

jeopardize the continued existence of a federally listed species and

there were no reasonable and prudent alternatives to avoid jeopardy,

the Act provides a mechanism for the action to be elevated to a

cabinet-level Endangered Species Committee for review. If, through this

review, it is determined that the benefits of the proposed action to

the public outweigh the potential extinction of the species, an

exemption from the provisions of the Act can be granted for the

project.

The Service is well aware of the economic importance of the

Nolichucky River system to Mitchell County. The Service sees no reason

why conservation of the Appalachian elktoe cannot be integrated with

existing industrial and domestic uses of the river and its tributaries.

Issue 12: Congressman Taylor and Congressman Ballenger, the

Mitchell County Board of Commissioners, the Mitchell County Economic

Development Commission, the Mayor of the town of Spruce Pine, and

several individuals expressed concerns about potential effects to

wastewater discharges (in particular discharges from the Town of Spruce

Pine and from mining industry in Mitchell County) associated with

Federal regulations resulting from listing of the Appalachian elktoe.

Service Response: Section 9 of the Act sets 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 also is 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.

The Service is not aware of any information currently available

that indicates existing discharges associated with mining industry in

Mitchell County, North Carolina, or the town of Spruce Pine are either

adversely affecting the Appalachian elktoe or resulting in a ``take''

of the species where it presently exists in the Nolichucky River

system. Therefore, the Service does not believe regulations under

Section 9 of the Act will have any effect on the mining industry or on

the town of Spruce Pine into the foreseeable future.

Section 7 of the Act places a requirement on Federal agencies to

evaluate their actions (projects that they authorize, fund, or carry

out) with respect to any species that is listed as endangered or

threatened, and to insure that their actions are not likely to

jeopardize the continued existence of a listed species (see Available

Conservation Measures below). The requirements under Section 7 of the

Act apply only to Federal agencies and therefore would affect only

those actions and activities that have Federal involvement (i.e.,

projects that utilize Federal funding, require Federal permits or

authorization, or are carried out by a Federal agency). The Service's

role under Section 7 of the Act is to assist other Federal agencies in

meeting their obligations with respect to endangered and threatened

species.

While National Pollution Discharge Elimination System (NPDES)

permits are issued by the North Carolina Department of Environmental

Management (NCDEM), the U.S. Environmental Protection Agency (EPA) does

have overview authority of the State's NPDES permit program. Therefore,

EPA would be required to satisfy its obligations under Section 7 of the

Act if it were determined that permit renewal or potential permitting

of a new or expanded discharge associated with the mining industry or

the town of Spruce Pine was likely to affect the Appalachian elktoe.

The Service cannot say whether or not new or expanded discharges

into the Nolichucky River system will be affected by the listing of the

Appalachian elktoe without specific information concerning those

discharges. Further, under Section 7 of the Act, it is the lead Federal

agency, in this case the EPA, that determines whether there is a

potential for discharges to affect federally listed species. However,

as stated previously, based on the best scientific and commercial

information currently available to the Service, the existing permitted

discharges do not appear to be adversely affecting existing locations

of the Appalachian elktoe.

Expansion of existing discharges would not likely be affected by

the listing of the Appalachian elktoe unless: (1) the location of a

discharge is moved significantly further downstream to a point where it

would be more likely to adversely affect the Appalachian elktoe, (2)

the State proposes to grant a variance that would allow a discharge, or

discharges, to exceed current water quality standards for the river,

and/or (3) new information becomes available that indicates that the

existing discharges or expansion of these discharges are likely having

an adverse effect (individually or cumulatively) on the Appalachian

elktoe.

In regard to the proposed expansion of the Spruce Pine wastewater

treatment plant, in view of the documented toxicity of chlorine to

freshwater organisms, the Service will likely request that

dechlorination of the effluent and standby power to sustain

dechlorination in the event of a power failure be made part of the

permit. However, based on conversations with the personnel with the

Asheville Regional Office of the NCDEM, this will be a primary

recommendation from their office as well.

Also, new or expanding facilities are required to evaluate

alternatives to proposed sites of discharge, including nondischarge

alternatives, as required under Titles 15A NCAC 2B.201 (c)(1) and

2H.105 (c)(2) of the State's Water Quality Classification and Standards

Rules. An environmental assessment is also required of applicants

proposing any new discharges of industrial process or domestic

wastewater in excess of 500,000 gallons per day. These requirements

apply to all such facilities without regard to the presence or absence

of endangered species.

Any substantial indications of water quality impairment evidenced

by in stream biological monitoring, including the status of downstream

threatened or endangered species, may trigger a review of potential

causes of water quality degradation upstream.

If the EPA were to determine that a NPDES permit associated with

one of the mining companies in Mitchell County was likely to affect the

Appalachian elktoe, it has been the experience of the Service that

nearly all Section 7 consultations have been resolved so that the

species has been protected and the project objectives have been met.

Issue 13: Two respondents expressed concern about the effect the

listing would have on current farming practices.

Service Response: The Service encourages the use of best management

practices (e.g., buffer strips along water courses, reductions of

pesticide applications, soil conservation practices that help control

soil loss and siltation, etc.). The Service and other Federal agencies

do have programs to assist farmers and other landowners in implementing

measures for habitat restoration and improvement. For instance, the

Service's Partners for Wildlife Program has the potential to provide

funding to interested and willing landowners to help restore degraded

areas, fence livestock out of streams and provide alternative livestock

water sources, plant filter strips, etc.--measures that many landowners

may not otherwise be able to afford.

Issue 14: The Mitchell County Economic Development Commission asked

whether listing the Appalachian elktoe would lead to the potential for

the Toe River becoming a ``resource water''.

Response: The North Carolina Division of Environmental Management

(NCDEM) is responsible for classifying waters within the State of North

Carolina. If the respondent is referring to ``Outstanding Resource

Water'' designation, the State of North Carolina requires that waters

eligible for this designation have excellent water quality and have at

least one of five values or uses (one of which is that the waters are

of special ecological or scientific significance such as habitat for

rare or endangered species) that qualifies the water body as having an

outstanding resource value. Because the Appalachian elktoe is already

listed by the State of North Carolina as endangered, the Toe River, or

at least a portion of the Toe River, already meets the second

requirement. However, because the Toe River does not currently maintain

excellent water quality it does not meet the first requirement and

therefore is not eligible.

If the Respondent is referring to ``High Quality Water''

designation, the State of North Carolina's criteria for this

designation does not recognize the Federal status of species.

Therefore, Federal listing of the Appalachian elktoe does not effect

the Toe River's eligibility, or ineligibility, for this designation.

Issue 15: The Mitchell County Economic Development Commission, one

mining company, and two individuals asked whether the fish host for the

Appalachian elktoe mussel has been identified and what its numbers are

in the Nolichucky River.

Service Response: Recent studies funded by the U.S. Forest Service

and conducted by personnel with the Tennessee Technological University

at Cookeville, Tennessee, have identified the banded sculpin (Cottus

carolinae) as a host species for glochidia of the Appalachian elktoe

(M. Gordon, Tennessee Technological University, personal communication,

1993). It is possible that other fish species may also serve as host to

Appalachian elktoe glochidia. Because the banded sculpin is currently

widely distributed and appears to be fairly common, specific studies

have not been conducted to determine what the species' population

levels are in the Nolichucky and Little Tennessee river systems. Like

the Appalachian elktoe, the banded sculpin is generally found in riffle

areas and appears to be sensitive to sedimentation and water pollution.

Reductions of the population levels of the banded sculpin may be a

factor contributing to the limited distribution and numbers of the

Appalachian elktoe. However, evidence of reproduction of the

Appalachian elktoe in recent years, albeit limited in the Nolichucky

River population of the species, has been observed in both surviving

populations of the species (personal observation 1992), so a fish host

is present. In identifying and attempting to alleviate specific threats

to the Appalachian elktoe, the Service will seek additional research in

this area.

Issue 16: One of the mining companies asked whether any specimens

were found in 1993.

Service Response: During 1993, two specimens of the Appalachian

elktoe were observed in a riffle area of the Nolichucky River (at a

site where the species had been previously recorded) along the Yancey/

Mitchell County line, North Carolina (personal observation); and

several specimens (approximately 15 to 20) were observed by North

Carolina Wildlife Resources Commission personnel (John Alderman and

Christopher McGrath) and Service biologists in riffle and shoal areas

of the Little Tennessee River in Swain County, North Carolina.

Issue 17: One of the mining companies asked whether current

fluoride levels in the North Toe River are affecting the Appalachian

elktoe.

Service Response: The Service is not aware of any information

currently available that indicates that the allowable levels of

fluoride, currently permitted under existing NPDES permits for the

mining discharges into the North Toe River system, are having an

adverse effect on the Appalachian elktoe in the Toe and Nolichucky

Rivers.

During the surveys for the Appalachian elktoe in the Nolichucky

River system that were conducted in 1991 and 1992 by the Service, the

Service used maps that misidentified the Toe River as the North Toe

River (these maps did not show a Toe River). Subsequently, in the

September 3, 1993, proposed rule, the Service incorrectly identified

the Appalachian elktoe as occurring in the North Toe River. This

species is present in the Toe River but is not present in the North Toe

River (this has been corrected throughout this rule). The Toe River

portion of Nolichucky River population of the Appalachian elktoe is

currently located over 20 river miles from the nearest of the existing

mining discharges.

Issue 18: Congressman Taylor, Congressman Ballenger, the Mitchell

County Economic Development Commission, the Mayor of the town of Spruce

Pine, three mining companies, and several other respondents questioned

whether the Appalachian elktoe is truly endangered and requested that,

prior to listing, the Service conduct further studies concerning the

cause of the decline of the species and/or to determine whether the

Nolichucky River population of the species is declining.

Service Response: Intensive surveys of both historic and potential

habitat of the Appalachian elktoe have been conducted throughout the

upper Tennessee River system--the historic range of the species (see

``Background'' section above). The results of these surveys reveal that

the species has been eliminated from four of the eight rivers in which

it is known to have historically occurred, including the Little River,

the Swannanoa River, the Pigeon River, and the main stem of the French

Broad River. It has also been eliminated from Talula Creek, and has

essentially been eliminated from the Cane River (despite intensive

surveys of this river in recent years, only one old adult specimen was

found). This represents the loss of the species from at least two-

thirds of its historic range. Only two relatively small, isolated

populations of the Appalachian elktoe are known to survive.

The elimination of a species from the majority of its range and the

isolating and confining of surviving populations to small areas,

greatly increases the vulnerability of a species to extinction. It

reduces the species' ability to respond to changes (natural or manmade)

within its environment and to recover from impacts (large or repeated

small scale impacts) to its numbers, that a species with widely

dispersed, interconnected healthy populations would likely be able to

overcome.

The Service does not have specific information to estimate numbers

of individuals present in the Nolichucky River population of the

Appalachian elktoe. Neither does the Service have specific data

concerning whether this population is currently in decline, stable, or

increasing.

The Service, the North Carolina Wildlife Resources Commission, the

Tennessee Valley Authority, the Tennessee Technological University and

other agencies and researchers have conducted extensive surveys of the

Nolichucky River system, either specifically for the Appalachian elktoe

or as part of monitoring or research on other species. The results of

these surveys indicate that the Nolichucky River population of the

Appalachian elktoe is currently restricted to a relatively short reach

of the river system, that suitable habitat for the species is presently

limited within the river system, and that where the species has been

found it appears to exist in relatively low numbers. The Service

believes it is endangered regardless of whether it is currently

increasing, declining, or stable.

The Service believes there is sufficient information currently

available that shows that the Appalachian elktoe has been eliminated

from a significant portion of its historic range (see ``Background''

section above); and that the only two known surviving populations of

the species are restricted in range, insufficiently protected by other

existing regulatory mechanisms, are isolated from one another, and are

vulnerable to many of the same factors that resulted in its extirpation

elsewhere within its historic range. The Act requires the Service list

such species.

Issue 19: The Mayor of the town of Spruce Pine and two other

individuals stated that they felt there was not enough opportunity

provided by the Service for public input regarding the potential

listing of the Appalachian elktoe.

Service Response: The Service solicited comments concerning the

potential listing of the Appalachian elktoe from all interested parties

through notices of review (April 20, 1992, and August 21, 1992), the

proposed rule (published September 3, 1993), the notice of the public

hearing and reopening of the comment period (published January 21,

1994), the public hearing (held February 8, 1994), and associated

notification letters and legal notices published in the local

newspapers (see ``Background'' section and the first paragraph of

``Summary of Comments and Recommendations'' above).

Issue 20: One respondent inquired whether the government would pay

Federal employees' salaries and attorney fees, and whether the

government would pay citizens' salaries and attorney fees, if the

citizens decide to take the ``program'' the Service plans to implement

to court. The respondent did not specify what ``program'' he was

referring to.

Service Response: Whether the government would provide

representation to Service employees would be dependent upon the nature

of the law suit. Whether the government would provide attorney fees to

the plaintiff would also be dependent upon the nature and outcome of

the law suit.

Issue 21: One respondent quoted the representative from the

Tennessee Valley Authority who participated in the public hearing as

saying that ``the Appalachian elktoe would be used for cancer

research'' and he questioned how this could be if the species was

endangered.

Service Response: The representative from the Tennessee Valley

Authority was misquoted. He said that some species of freshwater

mussels are being used in cancer research, because freshwater mussels

do not develop tumors and appear to be immune to cancer. The rarity of

the Appalachian elktoe will likely preclude the use of the species in

such research efforts.

Issue 22: Nantahala Power and Light Company requested that the

Service take immediate steps to develop and implement a recovery plan

for the Appalachian elktoe.

Service Response: The Service will attempt to develop and

distribute a draft recovery plan for the Appalachian elktoe within one

year of date of this final rule, and a final recovery plan within two

years of this final rule. The recovery plan will be developed through

coordination with appropriate Federal and State agencies, county and

local governments, individuals knowledgeable about freshwater mussels,

and interested businesses, industries, and individuals.

Summary of Factors Affecting the Species

After a thorough review and consideration of all information

available, the Service has determined that the Appalachian elktoe

should be classified as an endangered species. Procedures found at

Section 4(a)(1) of the Act (16 U.S.C. 1531 et seq.) and regulations (50

CFR part 424) promulgated to implement the listing provisions of the

Act were followed. 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 Appalachian

elktoe (Alasmidonta raveneliana) are as follows:

A. The Present or Threatened Destruction, Modification, or Curtailment

of its Habitat or Range

Historic and recent collection records for the Appalachian elktoe

indicate that the species was once fairly widely distributed throughout

the upper Tennessee River system in North Carolina, including the

French Broad River system, the Little Tennessee River system, and the

Nolichucky River system (Clarke 1981, Biggins 1990, and Gordon 1991).

In Tennessee, the species is known only from its present distribution

in the Nolichucky River. The species apparently no longer exists in the

French Broad River system, where it was once fairly widely distributed;

and, with the exception of one small population each in the Nolichucky

River system and the main stem of the Little Tennessee River, the

species has been eliminated from these river systems as well. The

decline of this species throughout its range has been attributed to

several factors, including siltation resulting from mining, logging,

agricultural, and construction activities; runoff and discharge of

organic and inorganic pollutants from industrial, municipal,

agricultural, and other point and non-point sources; habitat

alterations associated with impoundments, channelization, and dredging;

and other natural and human-related factors that adversely modify the

aquatic environment. Many of these same factors threaten the two

remaining populations of the species.

The Little Tennessee River population, the healthiest of the two

remaining populations, inhabits a relatively short stretch of the river

located between Emory Lake at Franklin, Macon County, North Carolina,

and Fontana Reservoir in Swain County, North Carolina. This population

was likely reduced in size by the impoundment of these two reservoirs.

The Nolichucky River population appears to be restricted to scattered

pockets within a short reach of the main stem of the Nolichucky River

in Unicoi County, Tennessee, and Mitchell and Yancey Counties, North

Carolina, extending a short distance into the Toe River, Yancey and

Mitchell Counties, North Carolina. A single, adult specimen was also

collected a short distance up the Cane River (Nolichucky River system)

in Yancey County, North Carolina.

The most immediate threats to both remaining populations appear to

be associated with heavy silt loads and other pollutants (i.e.,

fertilizers, pesticides, heavy metals, oil, salts, organic wastes,

etc.) from residential and industrial developments, road and highway

construction/improvement projects, crop and livestock farming

activities, and other land disturbance activities occurring throughout

the rivers' watersheds. Much of the Nolichucky River in North Carolina

contains heavy loads of sediments from past and ongoing land

disturbance activities within its watershed, and suitable habitat for

the Appalachian elktoe appears to be limited in this river system.

Also, because both extant populations of the Appalachian elktoe are

restricted to short river reaches, each is extremely vulnerable to

extirpation from a single catastrophic event, such as a toxic chemical

spill or an activity resulting in a major river channel/habitat

modification.

B. Overutilization for Commercial, Recreational, Scientific, or

Educational Purposes

This freshwater mussel species is not commercially valuable, but

because it is extremely rare it could be sought by collectors. While

collecting or other intentional take is not presently identified as a

factor contributing to the species' decline, because the Appalachian

elktoe is extremely restricted in range, such take could pose a

significant threat to the species' continued existence if it should

occur. Federal listing would help control any indiscriminate taking of

individuals.

C. Disease or Predation

Since 1982, biologists and commercial mussel fishermen have

reported 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 the Appalachian elktoe are often found in muskrat middens

along the reach of the Little Tennessee River, where the species still

exists, and occasionally in middens along the Nolichucky River. The

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

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

threat to a healthy mussel population, it could, as suggested by Neves

and Odum (1989), limit the recovery of endangered mussel species or

contribute to the local extirpation of mussel populations already

depleted by other factors. Predation would be of primary concern to the

Nolichucky River population of the Appalachian elktoe, which appears to

be very small.

D. The Inadequacy of Existing Regulatory Mechanisms.

The States of North Carolina and Tennessee prohibit taking of fish

and wildlife, including freshwater mussels, for scientific purposes

without a State collecting permit. However, State regulations do not

generally protect the species 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. The Little Tennessee River

population of the species is indirectly provided some Federal

protection from Federal actions and activities through the Act, due to

the fact that at least a portion of this population inhabits the same

stretch of river as the federally threatened spotfin chub (Cyprinella

[=Hybopsis] monacha) and the federally endangered little-wing pearly

mussel (Pegias fabula). However, the Nolichucky River population of the

species is not afforded this protection. Federal listing will provide

additional protection for the Appalachian elktoe throughout its range

by requiring Federal permits in order to take the species and by

requiring Federal agencies to consult with the Service when activities

they fund, authorize, or carry out may affect the 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.

Only two populations of this species are known to still exist. Both

are relatively small, particularly the Nolichucky River population, and

both are geographically isolated. This isolation prohibits the natural

interchange of genetic material between populations, and the small

population size reduces the reservoir of genetic variability within the

populations. It is possible that both the remaining populations of the

Appalachian elktoe may already be below the level required to maintain

long-term genetic viability. Because the remaining populations are

isolated, natural repopulation of an extirpated population would be

impossible without human intervention.

The Service has carefully assessed the best scientific and

commercial information available regarding the past, present, and

future threats faced by this species in determining to make this rule

final. Based on this evaluation, the preferred action is to list the

Appalachian elktoe as an endangered species. The species has been

eliminated from the French Broad River system, and its range has been

greatly reduced in the other two river systems (the Little Tennessee

River and the Nolichucky River systems) in which the species

historically occurred. Presently, only two small isolated populations

are known to survive. These populations are threatened by a variety of

factors, including road construction activities, residential and

commercial development, mining activities, farming and logging

activities, sewage and industrial effluent, and other manmade and

natural factors adversely affecting the aquatic environment. Due to the

species' history of population losses and the extreme vulnerability of

the two surviving populations, endangered status appears to be

appropriate for this species (see ``Critical Habitat'' section for a

discussion of why critical habitat is not being proposed for the

Appalachian elktoe).

Critical Habitat

Section 4(a)(3) of the Act 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 prudent for this

species. Such a determination would result in no known benefit to the

Appalachian elktoe.

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 rule, Federal and State

agencies were notified of the Appalachian elktoe's general

distribution, and they were requested to provide data on proposed

Federal actions that might adversely affect the species. Three highway

projects have been identified within, or in relatively close proximity

to, occupied habitat of the Appalachian elktoe. The Service is

currently involved in informal consultations regarding these projects.

Should any future projects be proposed in areas inhabited by this

mussel, the involved Federal agency will already have the general

distributional data needed to determine if the species may be affected

by their action; and if needed, more specific distributional

information would be provided.

The Appalachian elktoe occupies very restricted stream reaches

within only two river systems--the Little Tennessee River system and

the Nolichucky River system. Any significant adverse modification or

destruction of the species' habitat would likely jeopardize the

species' continued existence. Therefore, no additional protection for

the mussel would accrue from critical habitat designation that would

not also accrue from listing of the species. When listed, habitat

protection for the Appalachian elktoe will be accomplished through the

Section 7 jeopardy standard and Section 9 prohibitions against take.

In addition, the Appalachian elktoe is very 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 and local newspapers and other

publicity accompanying critical habitat designation could increase the

collection threat and increase the potential for vandalism during the

often controversial critical habitat designation process. The locations

of populations of this species have consequently been described only in

general terms in this proposed rule. Any existing precise locality data

would be available to appropriate Federal, State, and local government

agencies from the Service office described in the Addresses section;

from the Service's Raleigh Field Office, P.O. Box 33726, Raleigh, North

Carolina 27636-3726; the Service's Cookeville Field Office, 446 Neal

Street, Cookeville, Tennessee 38501, and from the North Carolina

Wildlife Resources Commission, North Carolina Natural Heritage Program,

Tennessee Wildlife Resources Agency, and Tennessee Department of

Conservation.

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)(2) requires Federal agencies to ensure that activities

they authorize, fund, or carry out are not likely to jeopardize the

continued existence of a listed 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 has

notified Federal agencies that may have programs that affect the

species. Federal activities that 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, hydroelectric facility construction and operation,

forestry operations, and road and bridge construction. It has been the

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

consultations can be resolved so that the species is protected and the

project objectives 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 a commercial activity, or sell or

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

also is 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.

It is the policy of the Service (59 FR 34272) to identify to the

maximum extent practicable at the time a species is listed those

activities that would or would not constitute a violation of section 9

of the Act. The intent of this policy is to increase public awareness

of the effect of the listing on proposed and ongoing activities within

a species' range. During the public comment period the Service received

inquiries about the effect listing would have on the mining industry

and farming practices. As previously discussed in the Summary of

Comments and Recommendations section, the Service believes that, based

on the current available information, the existing discharges

associated with the mining industry are not likely to be affected by

this listing and will not result in a violation of section 9, provided

these activities are carried out in accordance with existing

regulations and permit requirements, such as, projects subject to

section 404 of the Clean Water Act and discharges regulated under the

National Pollutant Discharge Elimination System (NPDES). The Service is

not aware of any current farming practices will result in a violation

of section 9. Activities that the Service believes could potentially

result in ``take'' of the Appalachian elktoe include, but are not

limited to:

(1) Unauthorized collecting or handling of the species;

(2) Unauthorized destruction/alteration of the species habitat

(i.e., in-stream dredging, rock removal, channelization, discharge of

fill material, operation of heavy equipment within the stream channel,

etc.);

(3) Violations of discharge permits;

(4) Pesticide applications in violation of label restrictions; and

(5) Illegal discharges or dumping of toxic chemicals, silt,

fertilizers, pesticides, heavy metals, oil, organic wastes or other

pollutants into waters supporting the species.

Questions regarding whether specific activities will constitute a

violation of section 9 should be directed to the Field Supervisor of

the Service's Asheville Office (see ADDRESSES section). Requests for

copies of the regulations concerning listed animals and general

inquiries regarding prohibitions and permits may be addressed to the

U.S. Fish and Wildlife Service, Southeast Regional Office, Ecological

Services Division, Threatened and Endangered Species, 1875 Century

Boulevard, Atlanta, Georgia 30345-3301 (Telephone 404/679-7099,

Facsimile 404/679-7081).

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 Endangered

Species Act of 1973, as amended. 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

A complete list of all references cited herein is available upon

request from the Asheville field office (see ADDRESSES above)

Author

The primary author of this proposed rule is John A. Fridell, U.S.

Fish and Wildlife Service, 330 Ridgefield Court, Asheville, North

Carolina 28806 (704/665-1195, Ext. 225).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, and Transportation.

Regulation Promulgation

Accordingly, part 17, subchapter B of chapter I, title 50 of the

Code of Federal Regulations, is amended as set forth below:

PART 17--[AMENDED]

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; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. Amend Sec. 17.11(h) for animals by adding the following, in

alphabetical order under CLAMS, to the List of Endangered and

Threatened Wildlife, to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *

(h) * * *

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

Species Vertebrate population

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

Common name Scientific name threatened habitat rules

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

* * * * * * *

Clams

* * * * * * *

Elktoe, Appalachian..... Alasmidonta raveneliana U.S.A. (NC, TN)........ NA..................... E 563 NA NA

* * * * * * *

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Dated: August 31, 1994.

Mollie H. Beattie,

Director, Fish and Wildlife Service.

[FR Doc. 94-28935 Filed 11-22-94; 8:45 am]

BILLING CODE 4310-55-P