Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for the Cumberland Elktoe, Oyster Mussel, Cumberlandian Combshell, Purple Bean, and Rough Rabbitsfoot

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC64

Endangered and Threatened Wildlife and Plants; Determination of

Endangered Status for the Cumberland Elktoe, Oyster Mussel,

Cumberlandian Combshell, Purple Bean, and Rough Rabbitsfoot

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The Fish and Wildlife Service (Service) determines endangered

status for 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)--under the

Endangered Species Act of 1973, as amended (Act). All five species have

undergone significant reductions in range and numbers. They 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 Cumberlandian 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 upper

Tennessee River system in Tennessee and Virginia. These species were

eliminated from much of their historic range by impoundments.

Presently, these species and their habitats are being impacted by

deteriorated water quality, primarily resulting from poor land-use

practices. Because the species have such restricted ranges, they are

vulnerable to toxic chemical spills.

DATES: Effective February 10, 1997.

ADDRESSES: The complete administrative file for this rule is available

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

U.S. Fish and Wildlife Service, Asheville Field Office, 160 Zillicoa

Street, Asheville, North Carolina 28801.

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

address, or telephone 704/258-3939, 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

[[Page 1648]]

more complete description of the 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 Preserves Commission (KSNPC) 1991).

Historic records exist from the Cumberland River and from its

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). Marsh Creek likely contains the best

surviving elktoe population (Robert McCance, KSNPC, in litt., 1994).

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 runoff and

could also be threatened by impoundments. The Marsh Creek population

has been adversely affected and is still threatened by potential 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 naturally occurring events such as 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 the

species). The species is considered endangered in the States of

Kentucky (KSNPC 1991) and Virginia (Neves 1991; Sue Bruenderman,

Virginia Department of Game and Inland Fisheries (VDGIF), 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; McCance, in litt., 1994). 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 nonpoint 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 naturally occurring

events such as 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 the species). The species is considered

endangered in the States of Kentucky (KSNPC 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; Gordon 1991;

McCance, in litt., 1994). 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 nonpoint sources. All the

known populations are small and could be decimated by naturally

occurring events such as toxic chemical spills.

[[Page 1649]]

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 the 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 basin, Scott, Tazewell, and Russell

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

County, Virginia; Indian Creek (a Clinch River tributary), Tazewell

County, Virginia (the Indian Creek location information was received

from the Service's Abingdon Field Office, Abingdon, Virginia, after the

close of the comment period. However, the purple bean was known to

occur in the Clinch River, Tazewell County, Virginia, near the mouth of

Indian Creek during the open comment period, and another federally

listed mussel (tan riffleshell) was also found in the same reach of

Indian Creek. The Service has determined that, because this new

information did not substantially affect the listing decision,

extending the public comment period was not warranted); 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 rivers 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 nonpoint sources. The population centers that remain are

so limited that they are very vulnerable to naturally occurring events

such as 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 nonpoint sources. The population centers that remain are

so limited that they are vulnerable to extirpation from naturally

occurring events such as toxic chemical spills.

Previous Federal Action

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 were included as Category 2 species. At that

time, a Category 2 species was one that was being considered for

possible addition to the Federal List of Endangered and Threatened

Wildlife. Designation of Category 2 species was discontinued in the

February 28, 1996, Federal Register notice (61 FR 7596). These mussels

were approved for elevation to candidate status by the Service on

August 30, 1993. A candidate 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 final 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. Natural Resources Conservation Service (formerly 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 KSNPC, the Kentucky Department of Environmental

Protection, Tennessee Wildlife Resources Agency (TWRA), Virginia

Department of Conservation and Recreation (VDCR), and VDGIF 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 (TWRA, 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 rangewide 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 than 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.

The DRA commented that statements in the mussel species accounts

(Gordon 1991) 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

[[Page 1650]]

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 were considered along with all presently available information

on these species, as well as information obtained through the

notification and the proposed rule, when making the final decision

regarding the status of the species.

The processing of this final rule conforms with the Service's final

listing priority guidance published in the Federal Register on May 16,

1996 (61 FR 24722). The guidance clarifies the order in which the

Service will process rulemakings following two related events--(1) the

lifting, on April 26, 1996, of the moratorium on final listings imposed

on April 10, 1995 (Public Law 104-6), and (2) the restoration of

significant funding for listing through the passage of the omnibus

budget reconciliation law on April 26, 1996, following severe funding

constraints imposed by a number of continuing resolutions between

November 1995 and April 1996. The guidance calls for giving highest

priority to handling emergency situations (Tier 1) and second highest

priority (Tier 2) to resolving the listing status of the outstanding

proposed listings. This final rule falls under Tier 2. At this time,

there are no pending Tier 1 actions.

In the development of this final rule, the Service has conducted an

internal review of a draft of this rule and other Service-generated

information. Based on this review, the Service has determined that

there is no new information that would substantively affect this

listing decision and that additional public comment is not warranted.

Summary of Comments and Recommendations

On July 14, 1994, a proposed rule was published in the Federal

Register (59 FR 35901) stating that the Cumberland elktoe, oyster

mussel, Cumberlandian combshell, purple bean, and rough rabbitsfoot

were being considered for endangered species status under the Act. In

the proposed rule, in legal notices (published in the Kingsport Daily

News, Kingsport, Tennessee, on August 2, 1994; Crossville Chronicle,

Crossville, Tennessee, and Bristol Herald Courier, Bristol, Virginia,

on August 3, 1994; Knoxville Journal, Knoxville, Tennessee, on August

8, 1994; Columbia Herald, Columbia, Tennessee, on August 10, 1994; and

Nashville Banner, Nashville, Tennessee, on August 17, 1994) and in

letters dated July 26, 1994, the Service requested Federal and State

agencies, local governments, scientific organizations, and interested

parties to comment and submit factual reports and information that

might contribute to development of a final determination for these five

mussels, and provided notification that a public hearing on the

proposal could be held, if requested.

In response to the above notifications, the Service received

several public hearing requests from within the following counties--

Fentress, Cumberland, and Marshall counties, Tennessee; and McCreary

County, Kentucky. The Service held two public hearings (December 13,

1994, at the York Institute, Jamestown, Tennessee; and December 15,

1994, at the Marshall County Courthouse, Lewisburg, Tennessee), and

reopened the comment period from November 23, 1994, to December 30,

1994. Notices of these hearings and the reopening of the comment period

were published in the Federal Register on November 18, 1994, (59 FR

59200) and in the following newspapers--Daily Herald, Columbia,

Tennessee, and Bristol Herald Courier, Bristol, Virginia, on November

20, 1994; Knoxville News Sentinel, Knoxville, Tennessee, and

Commonwealth Journal, Somerset, Kentucky, on November 21, 1994; and

Nashville Banner, Nashville, Tennessee, Daily News of Kingsport,

Kingsport, Tennessee, and Crossville Chronicle, Crossville, Tennessee,

on November 22, 1994. Additionally, the Service, by letters dated

November 21, 1994, notified Federal and state agencies, local

governments, scientific organizations, and interested parties of the

public hearings and the reopening of the comment period.

The Service received nineteen written comments and eight oral

comments on the proposal to list the five mussels. Numerous questions

on the proposal and related issues were asked at the public hearings.

Comments in support of the proposed rule were received from the

Environmental Protection Agency (EPA); National Park Service, Big South

Fork National River and Recreation Area; KSNPC; Kentucky Department of

Fish and Wildlife Resources (KDFWR); Department of Fisheries and

Wildlife Sciences, Virginia Polytechnic Institute and State University;

Tennessee Department of Environment and Conservation (TDEC); VDCR;

VDGIF; and two private individuals. The listing of one or more of these

species was opposed by the DRA; Fentress County Utility District,

Jamestown, Tennessee; and one individual. The remainder of the

respondents expressed concerns over what impact these listings would

have on various activities. The following is a summary of the comments,

concerns, and questions (referred to as ``Issues'' for the purposes of

this summary) regarding the proposed rule that were expressed in

writing or presented orally at the public hearings. Comments of similar

content have been grouped together.

Issue 1: One respondent expressed concern that listing the purple

bean could significantly impact efforts to build a water supply

reservoir on Clear Creek, an Obed River tributary, in Morgan County,

Tennessee, and asked specific questions regarding how this reservoir

project would impact the species.

Response: The purple bean is the only one of these five species

that occurs in the Obed River system. However, based on available

information, this species does not exist at the proposed reservoir site

or in the area downstream of the site that would be significantly

affected by the project. Therefore, because the Service does not

anticipate that the project will have a significant impact on the

purple bean, the listing will not significantly impact the reservoir

project. Specific questions on how a reservoir, which will likely have

only minimal, if any, impact to the species, might negatively or

possibly positively affect the species cannot be fully evaluated until

detailed project plans are available for review. These issues, however,

would be addressed in any biological opinion that may be developed for

this proposed project.

Issue 2: Several respondents expressed concern that listing these

five mussels could have a significant impact on private landowners.

Response: Currently, there are 24 federally listed mussels in the

Tennessee and Cumberland river systems. These species, many of which

have been listed for over 10 years, have not had a significant impact

on private lands activities (e.g., logging, agriculture, land

development, and home construction). Therefore, based on this historic

perspective, the Service does not anticipate that listing these

additional species will have a significant impact on private

landowners. In fact most individuals that own or farm lands along

streams that are inhabited by listed aquatic species are unaware of the

species' existence because their presence has never affected their

activities.

[[Page 1651]]

Issue 3: One respondent requested information on the impact of this

listing on mining activities.

Response: If a mining activity comes under the jurisdiction of a

state or Federal agency and one of these five mussels or any other

listed species may be in the project area, the project's impacts to the

species must be considered. However, it has been the Service's

experience, after dealing with hundreds of mining projects, that in

nearly all cases where there is a conflict between endangered species

and a mining project, the project is permitted with only minor

modifications.

Issue 4: Several respondents expressed concern that the listing of

the Cumberland elktoe could adversely impact the completion of a

proposed water supply reservoir on Crooked Creek, a tributary of the

Big South Fork of the Cumberland River, Fentress County, Tennessee.

Response: The Service does not believe the listing of the

Cumberland elktoe will stop completion of the proposed Crooked Creek

Reservoir. The Service is consulting with the Farm Services Agency on

this project. A segment of the Cumberland elktoe population does exist

at the site of the proposed reservoir. However, this population segment

is small and likely is not essential to the species' survival and

recovery. Therefore, based on available information, the Service does

not anticipate that a jeopardy biological opinion will result from this

consultation. The Service's biological opinion will outline measures to

minimize incidental take of the elktoe and suggest conservation

recommendations, but the project will not be blocked by the Federal

listing of the elktoe.

Issue 5: Listing the Duck River population of the oyster mussel was

questioned because it was felt that this population was not viable.

Response: The Duck River oyster mussel population may be currently

below the number of individuals necessary to maintain long-term

viability. However, that does not disqualify this population from

protection under the Act. If the population is below the threshold

number needed for long-term viability, the population could be

augmented with juveniles produced through artificial propagation or

with adults from another population.

Issue 6: In the proposed rule, the Service made reference to oyster

mussels collected from a muskrat midden. One respondent questioned the

Service's use of this information in its assessment of the Duck River's

oyster mussel population.

Response: It is a common practice of the Service, other Federal and

state agencies, and mussel researchers to utilize information from

muskrat middens. Mussels deposited in middens by muskrats can not

provide a quantitative assessment of mussel density, but observations

of the numbers of specimens in a midden can provide insight into a

species' status in the adjacent river reach.

Issue 7: Requests were made that the Service identify--(1) those

activities that will not be considered likely to result in a violation

of section 9 of the Act and (2) those activities that will be

considered likely to result in violation of section 9 of the Act.

Response: This issue is addressed in the ``Available Conservation

Measures'' section of this rule.

Issue 8: One respondent wanted to know what impact these listings

would have on the placement of docks and piers into rivers inhabited by

these mussels.

Response: There should be minimal impact on dock and pier

construction as a result of this listing. The construction of piers and

docks involves work in navigable waters of the United States and

includes the discharge of dredge material back into the waterway. Thus,

dock and pier construction comes under the Corps' permit authority

pursuant to section 10 of the Rivers and Harbors Act (RHA) (33 U.S.C.

403) and section 404 of the Clean Water Act (CWA) (33 U.S.C. 1344).

Thus, a permit must be received from the Corps prior to the

construction of a dock or pier. If a federally listed species may be

adversely impacted by this activity, the Corps must consult with the

Service to determine if the project is likely to jeopardize the

species' continued existence.

It is possible that construction of a few piers or docks could be

delayed due to the presence of one of these species. However, it is

unlikely that any projects would be stopped. Most piers and docks are

constructed in pool habitat, and these mussels primarily inhabit

relatively shallow riffles. Most piers and docks constructed on the

rivers and streams inhabited by these mussels would be relatively small

and have only minimal impact on the mussels. Additionally, from an

historical perspective, the 24 mussel species that are already listed

in the Tennessee and Cumberland river systems have had little impact on

the issuance of permits for these structures.

Issue 9: One respondent asked what impact these listings would have

on dredging and in-stream gravel mining projects.

Response: In-stream dredging and gravel mining involves work in

navigable waters of the United States and can result in the discharge

of dredge material back into the water. Thus, in-stream dredging and

gravel mining comes under the Corps' permit authority pursuant to

section 10 of the RHA (33 U.S.C. 403) and section 404 of the CWA (33

U.S.C. 1344). If a federally listed species may be adversely impacted

by this activity, the Corps must consult with the Service to determine

if the project is likely to jeopardize the species' continued

existence.

It is possible that a few in-stream dredging and gravel mining

projects could be impacted due to the presence of one of these species.

However, it has been the experience of the Service that most of these

projects can be designed in such a way (i.e., removing the gravel only

from above the water line) that the project objectives and the needs of

the species can be met. Additionally, as some of these newly listed

species exist in areas that are already inhabited by listed mussels,

the listing of these species that coexist with currently listed mussels

will not add any additional permit restrictions to these areas.

Issue 10: Several respondents were concerned with the potential

impacts these listings could have on water withdrawal projects.

Response: As water withdrawal projects often require construction

of a structure in the water, these projects typically require a permit

from the Corps under section 10 of the RHA (33 U.S.C. 403) and section

404 of the CWA (33 U.S.C. 1344). If a federally listed species may be

adversely impacted by this activity, the Corps must consult with the

Service to determine if the project is likely to jeopardize the

species' continued existence. It is possible that a few water

withdrawal projects that propose to extract a significant portion of a

river's flow could be affected due to the presence of one of these

species. However, if the water withdrawal project meets state water

quality standards, it has generally been the Service's experience that

endangered species will be protected without further significant

restrictions.

Issue 11: Several respondents were concerned with the potential

impacts these listings could have on waste water discharge projects.

Response: The potential exists for point discharges to impact these

species, and there is an increasing demand for discharge permits in the

Tennessee and Cumberland river systems. However, the States of

[[Page 1652]]

Kentucky, Tennessee, and Virginia, with assistance from and oversight

by the EPA, set water quality standards that are presumably protective

of aquatic life, including the 24 mussel species that are already

listed in the Tennessee and Cumberland river systems. Thus, there

should be no significant increase in regulatory burden regarding waste

water discharge permits as a result of listing these five species in

areas where these species coexist with one or more of the mussels that

are currently listed. If new information indicates that current water

quality criteria are insufficient to prevent the likelihood of jeopardy

to these freshwater mussels, new standards may be needed. If revised

standards are implemented, some discharge permits could be further

regulated if these species are present. However, in areas where listed

mussels already exist, the listing of these five mussels will not add

any significant additional burden.

Issue 12: Several respondents were concerned with the degree of

impact these listings might have on landowners who have erosion

problems on their land.

Response: Siltation can negatively impact the aquatic environment.

However, based on a historical perspective, the Act has not impacted

individual landowners with erosion problems that might affect the 24

mussel species that are currently listed in the Tennessee and

Cumberland river systems. Thus, the Service does not anticipate that

the listing of these species will burden private landowners regarding

this issue.

The Service, through a proactive and coordinated effort with other

agencies, conservation groups, and local governmental bodies, is

assisting willing private landowners in the restoration of riparian

habitat to control siltation. This program (``Partners for Wildlife'')

is currently funding projects on the Clinch River (a Tennessee River

tributary in eastern Tennessee and southwestern Virginia) and the

Little Tennessee River (a Tennessee River tributary in western North

Carolina). Both rivers have endangered fish and mussel fauna and this

program has developed cooperative agreements with willing landowners to

improve stream side habitat for the benefit of all aquatic species.

Issue 13: One respondent wanted to know what impact these listings

would have on the use of pesticides.

Response: The EPA, during its pesticide registration process,

consults with the Service to determine if a pesticide will likely

jeopardize the continued existence of any federally listed species. If

it is determined that the application of the chemical is likely to

jeopardize a species, the Service provides reasonable and prudent

chemical application alternatives that would avoid the likelihood of

jeopardy. These recommendations generally suggest some type of

application restriction (i.e., prohibit pesticide application within a

prescribed distance from an inhabited stream reach) that would protect

the species.

Although there may be some added restrictions to pesticide use as a

result of these listings, the Service believes that the resulting

impacts to pesticide users should be minimal. Many of the stream

reaches inhabited by these five mussels are populated with previously

listed mussels that have already been assessed for pesticide

restrictions; many pesticides reviewed for registration are not

believed to be harmful to mussels and no restrictions are applied to

their use; and if a pesticide is found to be harmful to a species,

there are often unrestricted, alternative chemicals that can be used to

control the same pest.

Issue 14: One respondent wanted to know if the information that

these rules are based on had been peer reviewed.

Response: The information utilized in determining to propose these

species has been peer reviewed. On August 25, 1992, the Service mailed

a summary of the available status information on the five species to 47

agencies, organizations, and individuals familiar with the status of

freshwater mussels and solicited their comments on the need to propose

these species. Prior and subsequent to the August 25, 1992,

notification, a copy of the status report used to make the

determination to propose these five species was sent to biologists and

agencies familiar with the plight of these species. With the exception

of the DRA, none of the respondents questioned the need to propose

these species for Federal protection. (See the last paragraph under the

``Summary of Comments and Recommendations'' section for further

information.)

Issue 15: One respondent was concerned that these listings could

restrict the farming communities' use of fords (stream crossings).

Response: There are numerous active fords in the Tennessee and

Cumberland river systems used by the farming community, and many of

these fords are in streams inhabited by federally protected mussels.

The Act has not restricted the use of these fords, and the listing of

these five mussels will not alter this situation.

Issue 16: One respondent wanted to know if the Service planned to

designate critical habitat for these five mussels.

Response: The Service is not and has no plans to designate critical

habitat for these species (see the ``Critical Habitat'' section of this

rule).

Issue 17: Several respondents were concerned that these listings

would affect current farming methods in the watershed.

Response: The Service will encourage the use of buffer strips along

water courses, reduction of pesticide and herbicide applications, and

soil conservation practices that help control soil loss and siltation.

Issue 18: One respondent questioned the statement in the proposed

rule that implicated poor land-use practices as a threat to these

mussels, and the individual was concerned that the farming community

might have been the primary target of this statement.

Response: Siltation from soil erosion is not just or primarily an

agricultural problem. Any activity that removes natural vegetated

ground cover (e.g., logging, bridge and road construction, mining, and

land clearing for industrial and residential construction) can cause

significant stream siltation if adequate control measures are not

taken. Silt can have a devastating impact on aquatic ecosystems,

especially those species that evolved in a relatively silt free

environment. Mussels are filter feeders and they can live in one

location for most of their lives. High silt loads disrupt their ability

to feed and reproduce, and at extreme silt levels, they can be

smothered under deep layers of silt.

As mentioned in response to Issue 12, the Service, through its

``Partners for Wildlife'' program, is working with willing landowners

to assist in restoration of stream side habit to control siltation. The

Service also encourages the use of ``Best Management Practices'' to

control erosion and minimize the impacts of silt to aquatic resources.

Issue 19: One respondent wanted to know how the listing of the

oyster mussel would affect the completion of Columbia Dam.

Response: The Service stated in a 1979 Biological Opinion that

completion of a proposed reservoir project (Columbia Dam) on the Duck

River in Maury and Marshall counties, Tennessee, would likely

jeopardize the continued existence of two federally listed mussels.

Although our Biological Opinion included reasonable and prudent

alternatives that would have allowed the project to go forward, TVA has

not implemented those measures and has been reevaluating the project

and considered other alternatives to meet the project objectives. (A

third

[[Page 1653]]

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.

Issue 20: One respondent noted that since species go extinct

because of natural causes why should these species receive special

protection.

Response: It is true that natural and catastrophic events over

geological time have resulted in the extinction of millions of species.

However, the rate of extinctions in the past couple of centuries has

accelerated dramatically as a direct result of human activities. The

Act specifically states that species of fish, wildlife, and plant are

of value to this nation, and the Act requires the Department of the

Interior to maintain a list of endangered and threatened species. The

Service believes that these five mussels meet the criteria for the

Act's protection (see the ``Summary of Factors Affecting the Species''

section of these rules).

Issue 21: One respondent suggested that the Service should postpone

the decision to list the five species until Congress reauthorizes the

Act.

Response: The Act as currently written requires the Department of

the Interior to maintain a list of endangered and threatened species

and the Act provides five criteria to consider when determining to list

a species (see the ``Summary of Factors Affecting the Species'' section

of these rules). Based on the best available information, these five

species meet these criteria and qualify for the Act's protection. The

Service believes that delaying these listings to await Congressional

reauthorization would be a violation of existing Federal law.

Issue 22: One respondent wanted to know if a biological survey was

required when a Federal permit was needed in areas inhabited by listed

species and if a survey was needed, who would conduct the survey.

Response: Often the Service or other agencies have sufficient

status information on the species in a project area, and no addtional

site specific surveys are needed to determine project impacts to the

species. However, if site-specific species information is unavailable

or insufficient, a survey of the project impact area may be needed to

fully assess the project's impacts. If a survey is needed, it is

generally not conducted by the Service. Survey responsibility falls

onto the permitting agency. However, the permitting agency usually

requires the permit applicant to obtain the needed status information

as part of the application process.

Issue 23: One respondent commented that the Service should initiate

a massive education effort with the farm community to help build trust

and encourage community involvement regarding the protection and

recovery of aquatic species.

Response: The Service agrees that local community support is

essential to fully protect and recover listed species. The Service has

increased its efforts in this area through ``Partners for Wildlife''

and other programs that work with community leaders and willing

landowners to build the necessary partnerships.

Issue 24: The VDCR stated that the rough rabbitsfoot was listed as

threatened by the VDGIF. Thus, they felt it might be more appropriate

to list this species as threatened rather than endangered.

Response: The rough rabbitsfoot is listed as a threatened species

by the VDGIF. However, this list was developed in the late 1980's and

published in 1991 (Neves 1991). Since the publication of the state

list, the rough rabbitsfoot has declined significantly in the Clinch

River and may no longer survive in Copper Creek (Neves, personal

communication, 1995). Neves (personal communication, 1995), was a

primary consultant used by the VDGIF in determining state status for

the rough rabbitsfoot, and he plans to recommend State endangered

status for this species when the state list is revised. Additionally,

he recommended Federal endangered status for this species in response

to the proposed rule (Neves, in litt., 1994). Based on this information

and the information presented in the ``Background'' and the ``Summary

of Factors Affecting the Species'' sections of these rules, the Service

believes that endangered status is appropriate for the rough

rabbitsfoot.

Issue 25: The EPA requested that the Service clarify what it meant

by the following statement that appeared in the July 14, 1994, proposed

rule:

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.

Response: Through EPA's implementation of the CWA, water quality

has been improved and mussel populations have benefited. However, in

spite of general water quality improvements, numerous freshwater mussel

populations in the southeastern United States are continuing to decline

even in areas that appear to have suitable physical habitat. The

Service believes that it is likely that some insidious environmental

factor(s), possibly contaminants, may be adversely affecting the

growth, reproduction, or survival of these populations. Of all the

potential impacts to mussels, less is known about the potential effects

of contaminants on these species. The Service believes that EPA could,

through the CWA, play a more active role in identifying potential

contaminant impacts to mussels.

Issue 26: The EPA also requested that the Service identify in any

final rule specific deficiencies and/or inadequacies in the following

areas related to their implementation of the CWA in the States of

Tennessee and Kentucky--state adopted narrative and numeric water

quality criteria; state water use classifications by streams occupied

by the five mussels; aquatic life criteria guidance values; and

National Pollutant Discharge Elimination System (NPDES) permit

procedures.

Response: As mentioned in response to Issue 25, little is known

about the potential impacts of contaminants on freshwater mussels.

Research is needed to address the lethal and sublethal effects of acute

and chronic exposure of toxins to all life stages of freshwater

mussels. This research will entail identifying appropriate surrogate

species, devising test protocols, and conducting studies to evaluate

the protectiveness of these criteria. Additionally, the Service is

currently working with EPA to develop a memorandum of agreement (MOA)

that will address how EPA and the Service will interact relative to CWA

water quality criteria, standards, and NPDES permits within the

Service's Southeast Region. Until the MOA is developed and data are

available to fully evaluate the effectiveness of current national water

quality criteria and standards and the need for site-specific criteria,

the Service believes it is premature to attempt, in this final rule, to

address any specific deficiencies and/or inadequacies that may exist in

EPA's implementation of the CWA regarding the protection of water

quality.

The Service also solicited the expert opinions of ten appropriate

and independent mussel specialists regarding the pertinent scientific

or commercial data and assumptions relating to taxonomy, population

status, and biological and ecological information on these five

mussels. One

[[Page 1654]]

response from a specialist was received, and those comments were

incorporated into this final rule.

Summary of Factors Affecting the Species

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

(50 CFR Part 424) issued 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, and 33 mussels (including the 5

species covered in this final rule) are classified as Federal

endangered species. In less than 100 years, 35 percent of the Ohio

River system's mussel fauna has either become extinct or federally

endangered. 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 rivers 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 (TVA 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. As a result of

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

Tennessee and Cumberland river basins have already required the Act's

protection, and numerous other aquatic species in these two basins are

currently considered species of concern and could warrant listing in

the future.

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

communications 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 to date. 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.

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 CWA, administered by the EPA and the Corps, may not have been fully

utilized. This may have contributed to the degradation of aquatic

environments and the decline of aquatic species in the Southeast (see

response to Issue 25 in the ``Summary of Comments and Recommendations''

of this final rule). 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. However, 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.

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,

[[Page 1655]]

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. 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 make this rule

final. Based on these evaluations, the preferred action is to list the

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. The Cumberland elktoe, purple bean,

and rough rabbitsfoot are known from three populations each, and the

Cumberlandian 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.

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 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 through publication of their site-

specific localities.

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 final 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, because 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 and 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. The locations

of populations of these species have consequently been described only

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

be available to appropriate Federal, state, and local governmental

agencies from the following offices--the Service office described in

the Addresses section of these rules; the Service's Cookeville Field

Office, 446 Neal Street, Cookeville, Tennessee 38501; the Service's

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

17, White Marsh, Virginia 23183; the Service's Southeastern Virginia

Field Office, P.O. Box 2345, 332 Cummings Street, Abingdon, Virginia

24212; KDFWR; KSNPC; TWRA; TDEC; VDGIF; and VDCR.

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

[[Page 1656]]

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 TVA

impoundment on the Duck River, Columbia, Tennessee, could have a

significant impact on the oyster mussel. Construction of Columbia Dam

was suspended 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. Although our

Biological Opinion included reasonable and prudent alternatives that

would have allowed the project to go forward, TVA has not implemented

those measures and has been reevaluating the project and considered

other alternatives to meet the project objectives. (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 (see response to Issue 19 in the

``Summary of Comments and Recommendations'' section of these rules).

A water supply reservoir is under consideration on Crooked Creek in

the upper Big South Fork of the Cumberland River watershed, 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 CWA. However, the Service does not believe the listing of

the Cumberland elktoe will stop completion of the Crooked Creek

Reservoir (see response to Issue 4 in the ``Summary of Comments and

Recommendations'' of these rules).

Another water supply reservoir is under consideration by the

Catoosa Utility District for Clear Creek, an Obed River tributary,

Morgan County, Tennessee. The purple bean occurs in the Obed River

system. However, based on available information, this species does not

exist at the proposed reservoir site or in the area downstream of the

site that would be significantly affected by the project. Therefore, as

the Service does not anticipate that the project will have a

significant impact on the purple bean, the listing will not have any

significant impact on this reservoir project (see response to Issue 1

in the ``Summary of Comments and Recommendations'' of this rule).

Since the close of the comment period on this rule, the

Southeastern Virginia Field Office has become involved in an informal

section 7 consultation regarding a proposed Federal prison in Lee

County, Virginia, and its potential impacts to eight federally listed

mussels that live in the Powell River. The Cumberlandian combshell,

oyster mussel, and purple bean are also known from the Powell River and

will now need to be considered in this consultation. However, since the

eight listed mussels are already being considered with regard to this

project, the outcome of the consultation should not be affected by the

addition of these three more listed mussels. Based on this review, the

Service has determined that there is no information that would

substantively affect these listing decisions and that additional public

comment is not warranted.

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, waste water facility development, water withdrawal

projects, pesticide registration, mining, and road and bridge

construction. However, it has been the experience of the Service that

nearly all section 7 consultations have been resolved so that the

species have 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.

It is the policy of the Service published in the Federal Register

on July 1, 1994,(59 FR 34272) to identify at the time of listing, to

the maximum extent practicable, those activities that would not

constitute a violation of section 9 of the Act. The intent of this

policy is to increase public awareness as to the effects of these

listings on proposed and ongoing activities within a species' range.

During the public comment periods, comments were received questioning

the effect these listings would have on private landowners (see

response to Issue 2 and 12 in the ``Summary of Comments and

Recommendations'' section of this rule), pesticide application (see

response to Issue 13), use of existing river fords by the farming

community (see response to Issue 15), and traditional farming practices

(see response to Issue 17). The Service believes, based on the best

available information as outlined in the ``Summary of Comments and

Recommendations'' section of this rule, that the aforementioned actions

will not result in a violation of section 9 provided the activities are

carried out in accordance with any existing regulations and permit

requirements. In addition, the Service also believes that certain other

activities will not result in a section 9 violation. They include use

of the river by boaters, anglers, and other existing recreational uses.

Activities that the Service believes could potentially result in

``take'' of these mussels, include, but are not limited to, the

unauthorized collection or capture of the species; unauthorized

destruction or alteration of the species' habitat (e.g., in-stream

dredging, channelization, discharge of fill material); violation of any

discharge or water withdrawal permit; and illegal discharge or dumping

of toxic chemicals or other pollutants into waters supporting the

species.

Other activities not identified in the above two paragraphs will be

reviewed on a case-by-case basis to determine if a violation of section

9 of the Act may

[[Page 1657]]

be likely to result from such activity. The Service does not consider

these lists to be exhaustive and provides them as information to the

public.

Questions regarding whether specific activities will constitute a

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

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

for copies of the regulations on listed species and inquiries regarding

prohibitions and permits should be addressed to the U.S. Fish and

Wildlife Service, Ecological Services (TE), 1875 Century Boulevard,

Atlanta, Georgia 30345-3301 (404/679-7096).

National Environmental Policy Act

The 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).

Required Determinations

The Service has examined this regulation under the Paperwork

Reduction Act of 1995 and found it to contain no information collection

requirements. This rulemaking was not subject to review by the Office

of Management and Budget under Executive Order 12866.

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 Preserves 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, Virginia. 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 final rule is Richard G. Biggins, U.S.

Fish and Wildlife Service, Asheville Field Office, 160 Zillicoa Street,

Asheville, North Carolina 28801 (704/258-3939, Ext. 228).

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. Section 17.11(h) is amended 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 where Critical Special

Historic range endangered or Status When listed habitat rules

Common name Scientific name threatened

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

* * * * * * *

CLAMS:

* * * * * * *

Bean, purple.................. Villosa perpurpurea.. U.S.A. (TN and VA)... NA E 602 NA NA

* * * * * * *

Combshell, Cumberland......... Epioblasma brevidens. U.S.A. (AL, KY, TN, NA E 602 NA NA

and VA).

* * * * * * *

Elktoe, Cumberland............ Alasmidonta U.S.A. (KY and TN)... NA E 602 NA NA

atropurpurea.

* * * * * * *

Mussel, oyster................ Epioblasma U.S.A. (AL, KY, TN, NA E 602 NA NA

capsaeformis. and VA).

[[Page 1658]]

* * * * * * *

Rabbitsfoot, rough............ Quadrula cylindrica U.S.A. (TN and VA)... NA E 602 NA NA

strigillata.

* * * * * * *

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

Dated: December 6, 1996.

John G. Rogers,

Acting Director, Fish and Wildlife Service.

[FR Doc. 97-565 Filed 1-9-97; 8:45 am]

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