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DEPARTMENT OF THE INTERIOR

Veterans Affairs Department

CFR Citation: 50 CFR Part 17

RIN ID: RIN 1018-AI73

NOTICE: Part III

DOCUMENT ACTION: Final rule.

SUBJECT CATEGORY: Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Three Threatened Mussels and Eight Endangered Mussels in the Mobile River Basin

DATES: This rule is effective August 2, 2004.

DOCUMENT SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 26 river and stream segments (units) in the Mobile River Basin, encompassing a total of approximately 1,760 kilometers (km) (1,093 miles (mi)) of river and stream channels, as critical habitat for three threatened (finelined pocketbook, orangenacre mucket, and Alabama moccasinshell) and eight endangered freshwater mussels (Coosa moccasinshell, ovate clubshell, southern clubshell, dark pigtoe, southern pigtoe, triangular kidneyshell, southern acornshell, and upland combshell), under the Endangered Species Act of 1973, as amended (Act). Critical habitat includes portions of the Tombigbee River drainage in Mississippi and Alabama; portions of the Black Warrior River drainage in Alabama; portions of the Alabama River drainage in Alabama; portions of the Cahaba River drainage in Alabama; portions of the Tallapoosa River drainage in Alabama and Georgia; and portions of the Coosa River drainage in Alabama, Georgia, and Tennessee. We solicited data and comments from the public on all aspects of this designation, including data on economic and other impacts of the designation. This publication also provides notice of the availability of the final economic analysis for this designation.

SUMMARY: Interior Department, Fish and Wildlife Service,

SUPPLEMENTAL INFORMATION

Designation of Critical Habitat Provides Little Additional Protection to Species

In 30 years of implementing the Act, the Service has found that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of available conservation resources. The Service's present system for designating critical habitat has evolved since its original statutory prescription into a process that provides little real conservation benefit, is driven by litigation and the courts rather than biology, limits our ability to fully evaluate the science involved, consumes enormous agency resources, and imposes huge social and economic costs. The Service believes that additional agency discretion would allow our focus to return to those actions that provide the greatest benefit to the species most in need of protection.
Role of Critical Habitat in Actual Practice of Administering and Implementing the Act

While attention to and protection of habitat is paramount to successful conservation actions, we have consistently found that, in most circumstances, the designation of critical habitat is of little additional value for most listed species, yet it consumes large amounts of conservation resources. Sidle (1987) stated, ``Because the ESA can protect species with and without critical habitat designation, critical habitat designation may be redundant to the other consultation requirements of section 7.'' Currently, only 446 or 36 percent of the 1252 listed species in the U.S. under the jurisdiction of the Service have designated critical habitat. We address the habitat needs of all 1,244 listed species through conservation mechanisms such as listing, section 7 consultations, the section 4 recovery planning process, the section 9 protective prohibitions of unauthorized take, section 6 funding to the States, and the section 10 incidental take permit process. The Service believes it is these measures that may make the difference between extinction and survival for many species. Procedural and Resource Difficulties in Designating Critical Habitat

We have been inundated with lawsuits for our failure to designate critical habitat, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected the Service to an everincreasing series of court orders and courtapproved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves the Service with little ability to prioritize its activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs.

The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits, to respond to Notices of Intent (NOIs) to sue relative to critical habitat, and to comply with the growing number of adverse court orders. As a result, listing petition responses, the Service's own proposals to list critically imperiled species and final listing determinations on existing proposals are all significantly delayed.

The accelerated schedules of court ordered designations have left the Service with almost no ability to provide for adequate public participation or to ensure a defectfree rulemaking process before making decisions on listing and critical habitat proposals due to the risks associated with noncompliance with judiciallyimposed deadlines. This in turn fosters a second round of litigation in which those who fear adverse impacts from critical habitat designations challenge those designations. The cycle of litigation appears endless, is very expensive, and in the final analysis provides relatively little additional protection to listed species.

The costs resulting from the designation include legal costs, the cost of preparation and publication of the designation, the analysis of the economic effects and the cost of requesting and responding to public comment, and in some cases the costs of compliance with the National
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Environmental Policy Act (NEPA), all are part of the cost of critical habitat designation. None of these costs result in any benefit to the species that is not already afforded by the protections of the Act enumerated earlier, and they directly reduce the funds available for direct and tangible conservation actions.

Background

This final rule addresses 11 mussels in the family Unionidae that are native to the Mobile River Basin, including the threatened fine lined pocketbook (Lampsilis altilis), orangenacre mucket (Lampsilis perovalis), and Alabama moccasinshell (Medionidus acutissimus), and the endangered Coosa moccasinshell (Medionidus parvulus), southern clubshell (Pleurobema decisum), dark pigtoe (Pleurobema furvum), southern pigtoe (Pleurobema georgianum), ovate clubshell (Pleurobema perovatum), triangular kidneyshell (Ptychobranchus greenii), upland combshell (Epioblasma metastriata), and southern acornshell (Epioblasma othcaloogensis). It is our intent, in this final rule, to discuss information obtained since the proposed critical habitat designation. Please refer to our proposed critical habitat rule (68 FR 14752, March 26, 2003) for a more detailed discussion of the species' taxonomic history, physical description, and our current understanding of their historic and current range and distribution.

Summary of Factors Affecting the Species

Please refer to our proposed rule (68 FR 14752, March 26, 2003) for a discussion of Factors Affecting the Species for all 11 mussels. We have included here where appropriate only new information for these mussels.

Limited habitat and small population size also render these 11 species vulnerable to competition or predation from nonnative species (Neves et al., 1997). The Asian clam, Corbicula fluminea, has invaded all major drainages of the Mobile River Basin, however, little is known of the effects of competitive interaction between Asian clams and native species. Decline and even disappearance of native mussels due to competition with the exotic zebra mussel (Dreissena polymorpha) and the quagga mussel (D. bugensis) have been documented in the Great Lakes and Mississippi River Basin (Neves et al., 1997). Although zebra and quagga mussels are not currently known to inhabit the Mobile Basin, the TennesseeTombigbee Waterway and commercial and recreational boating offer an avenue of introduction. Another potential threat is the black carp (Mylopharyngodon piceus), a molluskeating Asian fish used to control snails in commercial fish farms. If introduced or established in the Mobile River Basin, the black carp is likely to have a considerable impact on native freshwater mussels and snails (67 FR 49280, July 30, 2002).

Previous Federal Actions

On October 12, 2000, the Southern Appalachian Biodiversity Project filed a lawsuit in U.S. District Court for the Eastern District of Tennessee against the Service, the Director of the Service, and the Secretary of the Department of the Interior, challenging our not determinable findings regarding critical habitat for 9 of the 11 Mobile River Basin listed mussels. On November 8, 2001, the District Court issued an order directing us to make a proposed critical habitat designation for these 11 Mobile River Basin mussels no later than March 17, 2003, and the final designation by March 17, 2004. The District Court later extended our deadline on January 8, 2004 to submit the final rule to the Office of the Federal Register not later than June 17, 2004.

Other Federal actions for these species prior to March 26, 2003, are outlined in our proposed rule to designate critical habitat for 11 Mobile River Basin mussels (68 FR 14752). Publication of the proposed rule opened a 60day comment period, which closed on June 24, 2003. The comment period was reopened August 14, 2003, through October 14, 2003, in order to receive comments on a draft economic analysis (DEA), and to extend the comment period on the proposed designation to accommodate a public hearing, which was held October 1, 2003, in Birmingham, Alabama (68 FR 48581).

Following closure of the second comment period on October 14, 2003, we became aware that we had not directly notified four of the counties affected by the proposed critical habitat designation, as required under section 4(b)(5) of the Act. We notified the counties and provided them copies of the proposed designation and information on the DEA on December 12, 2003. On January 13, 2004, we reopened the comment period through January 23, 2004, to receive comments from the counties and other interested parties (69 FR 1960).

Summary of Comments and Recommendations

During the open comment periods for the proposed rule (68 FR 14752), public hearing and draft economic analysis (68 FR 48581), and the January 2004 reopening (69 FR 1960), we requested all interested parties to submit comments or information concerning the proposed designation of critical habitat for the 11 mussels. We contacted all appropriate State and Federal agencies, county governments, elected officials, scientific organizations, and other interested parties and invited them to comment. We also published newspaper notices inviting public comment in the following newspapers: The ClarionLedger, Jackson, MS; The Commercial Dispatch, Columbus, MS; The Montgomery Advertiser, Montgomery, AL; The Birmingham News, Birmingham, AL; The Clay TimesJournal, Lineville, AL; The Rome NewsTribune, Rome, GA; The Times Georgian, Carolton, GA; The Haralson Gateway Beacon, Bremen, GA; The Douglas County Sentinel, Douglasville, GA; The Cleveland Daily Banner, Cleveland, TN; and The Chattanooga Times Free Press, Chattanooga, TN.

At the public hearing, we received eight oral comments, including three supporting the designation and five opposing it. A transcript of the hearing is available for inspection (see ADDRESSES section). During the comment periods, we received comments from two State agencies, two counties, four cities, three Federal agencies, one business, 12 groups, and 43 individuals. Of the 90 written comments we received, 37 supported critical habitat designation, 47 opposed designation, and 6 were neutral or provided additional information.

We directly notified and requested comments from all affected States. Georgia Department of Natural Resources submitted comments in support of the designation. The Tombigbee River Valley Water Management District, an agency of the State of Mississippi, opposed designation of units in northeastern Mississippi. The States of Alabama and Tennessee expressed no position.

Peer Review

In accordance with our peer review policy published in the Federal Register on July 1, 1994 (59 FR 34270), we requested the expert opinions of four independent specialists who are recognized authorities on freshwater mussels and the Mobile River Basin regarding pertinent scientific or commercial data and assumptions relating to the supporting biological and ecological information in the proposed designation. The purpose of such review is to ensure that the designation is based on scientifically sound data, assumptions, and analyses, including input of appropriate experts and
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specialists. All four experts submitted written responses that the proposal included a thorough and accurate review of the available scientific and commercial data on these mussels and their habitats. One peer reviewer supplied several specific edits and additional records. Comments from peer reviewers are included in the summary below and have been incorporated into this final rule.

We reviewed all comments received for substantive issues and new data regarding the mussels and critical habitat, and the draft economic analysis. Written comments and oral statements presented at the public hearing and received during the comment periods are addressed in the following summary. For readers' convenience, we have assigned comments to major issue categories and we have combined similar comments into single comments and responses.
Peer Review Comments
(1) Comment: The critical habitat proposal did not outline what actions will be taken or proposed subsequent to critical habitat designation to implement conservation measures in the 26 units.

Response: Conservation measures for these species and their habitats are outlined in the Mobile River Basin Aquatic Ecosystem Recovery Plan (U.S. Fish and Wildlife Service, 2000). Propagation and release protocols for mussels are outlined in the Plan for Controlled Propagation, Augmentation and Reintroduction for Freshwater Mussels and Snails of the Mobile River Basin (U.S. Fish and Wildlife Service, 2003).
(2) Comment: There is some taxonomic confusion regarding the ovate clubshell in Units 18 and 25 in the Coosa River drainage.

Response: In the proposed rule, Unit 25 was proposed for designation as currently unoccupied habitat for the ovate clubshell, while Unit 18 was proposed for designation as occupied habitat. There has been some confusion among malacologists over the identity of some collections of small mussel species of the genus Pleurobema in the Coosa River drainage. Recent collections have been made of a small species from the Conasauga River (Unit 25) that has been variously identified by researchers as Alabama clubshell (Pleurobema troschelianum) or Georgia pigtoe (P. hanleyanum), species similar in morphology to the ovate clubshell (P. perovatum). Recent collections of mussels referred to as ovate clubshell have also been made in the Coosa River below Weiss Dam (Unit 18). Genetic studies, however, have placed both populations with the Georgia pigtoe, not with the ovate clubshell (Dr. David Campbell, University of Alabama, in litt. 2004). The Coosa River drainage is within the historical range of the ovate clubshell, therefore, in this final rule, we are changing Unit 18 from occupied to unoccupied, so both Units 18 and 25 are designated as unoccupied habitat for the ovate clubshell.
(3) Comment: The upper boundary of Holly Creek in Unit 25 (confluence of Rock Creek) is incorrectly identified.

Response: The legal description and map of Unit 25, as published in our proposed rule and this final rule, is correct. There are two Rock Creeks in the Holly Creek Drainage. The latitudinal and longitudinal coordinates provided in our regulation are correct to the appropriate Rock Creek confluence.
Public Comments
Issue A: Comments on Adequacy and Extent of Critical Habitat (4) Comment: It is not clear that the amount of habitat proposed is adequate for conservation of the species.

Response: Our analysis identified these 26 critical habitat units as essential to the conservation of the 11 mussel species (see ``Analysis Used to Delineate Critical Habitat,'' below). Based on the best available information, we believe that with special management considerations and protection of these habitats, and the development of appropriate species management technology, protocols, and information, these 11 species can be conserved within these 26 critical habitat units.
(5) Comment: Threatened mussels will receive more critical habitat than the endangered species. This tends to protect threatened species more than endangered species.

Response: The disparity in quantity of critical habitat proposed for the individual species is an artifact of the mussel species' historical distributions, their habitats, and their status. For example, all three threatened species historically occurred in a wider variety of habitats (e.g., small headwater streams to large rivers) than most of the endangered species. Therefore, there is more habitat available for their conservation over a wider area. In contrast, the endangered dark pigtoe was restricted to small rivers and large streams in only the Black Warrior River drainage. For several of the other endangered species, a larger proportion of their historic habitats have been rendered unsuitable by impoundment, pollution, etc. Both endangered and threatened species receive the same protection under the Act.
(6) Comment: Designation of critical habitat should encompass areas in need of significant restoration and structural change (e.g., impounded reaches), not just those relatively far from the hydrologic control systems. Areas without constituent elements, but with potential of restoration, should be included in the designation.

Response: The Endangered Species Act does not allow us to designate areas that do not now have one or more of the primary constituent elements, as defined at 50 CFR 424.12(b), which provide essential life cycle needs of the species. Areas proposed for designation as critical habitat must have one or more primary constituent elements, and the areas must be essential to their conservation (see ``Critical Habitat,'' below). Constituent elements required by riverine mussel species are typically no longer present in impounded reaches (e.g., flow, water quality, substrate, host fishes, etc.). In addition, while dams and their impounded waters are not permanent structures from a geological perspective, large hydropower or navigation dams impounding extensive areas and supporting a complex economic infrastructure are unlikely to be removed within the foreseeable future.
(7) Comment: The map of the proposed critical habitat designation is a textbook design of fragmentation. The proposed designation fails to allow for reestablishment and recovery by only including areas where the species are currently found and ignoring the larger historical range.

Response: The Mobile River Basin is an example of endangerment and extinction due to habitat fragmentation and population isolation (see the Mobile River Basin Aquatic Ecosystem Recovery Plan (U.S. Fish and Wildlife Service, 2000)). We considered the past and future effects of habitat fragmentation on the historical range of all 11 species (see ``Factors Affecting the Species'' in the proposed rule, and ``Analysis Used to Delineate Critical Habitat'' below), and have designated unoccupied habitat for all 11 species (and for all but one unit occupied by at least one other mussel) to allow for their
reestablishment and conservation.
(8) Comment: The Service should designate areas upstream from occupied areas and stream side buffers to protect the species.

Response: Critical habitat designations have relevance to section 7 consultations, which apply solely to Federal actions. When evaluating the effects of any Federal action subject to
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a section 7 consultation, activities upstream or along the margin of a designated area must be considered for adverse impacts to critical habitat. Therefore, specific designation of areas above or adjacent to stream channel critical habitats are unnecessary. Identification of the stream channel as critical habitat will provide notice to Federal agencies to review activities conducted within the drainage on their potential effects to the channel, and will alert third parties of the importance of the area to the survival of the species.
(9) Comment: A habitat focused Population Viability Analysis (PVA) should be conducted to identify areas where habitat restoration should occur.

Response: A great deal of information is necessary before a meaningful PVA can be conducted for a species, e.g., life history, mortality rates, demographics, habitat, and interactions with other species. Most of this information is unavailable for these 11 mussels and we are unable to conduct a meaningful PVA at this time. We will continue to conduct and support research to develop this information on these mussel species.
(10) Comment: Mussels require a fish host for juvenile survival and recruitment. Therefore, the range of fish hosts must be considered in the designation.

Response: Information on fish hosts has been considered in this designation (see ``Analysis Used to Delineate Critical Habitat,'' below). All of the critical habitat units are within the historic range of the host fishes that have been identified for these mussels, and are known or believed to currently support the host fish for one or more of the mussel species for which they are designated.
(11) Comment: The Service failed to demonstrate that areas currently occupied by the mussels are inadequate for their conservation, or that the proposed units are indispensable and absolutely necessary for species' conservation.

Response: The administrative record demonstrates that areas currently occupied by the mussels are inadequate for their conservation. Our final rule listing these species under the Act (58 FR 14330) identified loss of habitat as a primary factor in their status. Our proposed designation (see ``Factors Affecting the Species'') and this final designation (see ``Analysis Used to Delineate Critical Habitat,'' below) as well as the Mobile River Basin Aquatic Ecosystem Recovery Plan (U.S. Fish and Wildlife Service 2000) note that recovery of the 11 mussels in the near future is unlikely due to the extent of their decline and the degree of fragmentation and isolation of their habitats. We have designated habitat units 125, which are currently occupied by one or more of the 11 mussels, because they are essential for the conservation of the species. However, although each of these units supports small populations of one or more of the 11 species, they are isolated from each other, and are subject to future chance catastrophic events and to changes in human activities and land use practices that may result in the elimination. Therefore, it is essential to identify all opportunities to conserve these mussels. Opportunities for expanding the range of these species outside of currently occupied areas are limited due to the degree of habitat alteration that has occurred in the Basin. Unit 26 represents a rare opportunity in the Basin for extending the range of 9 of the 11 species (see ``Analysis Used to Delineate Critical Habitat,'' above), an action identified as necessary for the recovery of the species. Areas designated as critical habitat have one or more primary constituent elements, and are essential to the conservation of the 11 mussels. Issue B: Procedural and Legal Comments
(12) Comment: Landowners have not been contacted and given the opportunity to respond to the proposed designation. Most landowners and the people of Alabama did not know of the comment deadline, therefore, the comment period should be extended.

Response: When we issue a proposed rule, we want to ensure widespread knowledge and opportunity for the public to comment, particularly among those who may be potentially affected by the action. The proposed designation covered portions of four states; therefore, it was impossible to personally contact all landowners in the area. We attempted to ensure that as many people as possible would be aware of the proposed designation through press releases to all major media in the affected area, including those in State capitols and major cities, publication of newspaper notices, and direct notification of affected State and Federal agencies, environmental groups, major industries, State Governors, Federal and State elected officials, and County Commissions (see ``Previous Federal Actions,'' above). We repeated this process upon availability of the draft economic analysis and for the October 1, 2003, public hearing. In January 2004, we reopened the comment period a third time to ensure that all would have the opportunity to comment on the proposed designation and draft economic analysis. We have complied with or exceeded all of the notification requirements of the Act.
(13) Comment: The Service did not comply with the National Environmental Policy Act (NEPA). Under NEPA, the magnitude of economic impacts requires preparation of an Environmental Impact Statement.

Response: Environmental assessments and environmental impact statements, as defined under NEPA, are not required for regulations enacted under section 4 of the Act (see 48 FR 49244).
(14) Comment: The Service has no delegated authority to designate, regulate, or confiscate anything on private land.

Response: The Service is required when prudent to designate critical habitat under the Endangered Species Act. Critical habitat designation does not regulate private actions on private lands or confiscate private property. It does not affect individuals, organizations, States, local governments or other nonFederal entities that do not require Federal permits or funding.
(15) Comment: The proposed designation of critical habitat is unconstitutional.

Response: The constitutionality of the Act in authorizing the Service's protection of endangered and threatened species has consistently been upheld by the courts. See, e.g., GDF Realty Investments, Ltd. v. Norton, 326 F.3d 622 (5th Cir. 2003); Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000); National Association of Homebuilders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 524 U.S. 937 (1998); Rancho Viejo v. Norton, No. 015373 (D.C. Cir. 2003); and United States v. Hill, 896 F. Supp. 1057 (D. Colo. 1995). (16) Comment: The failure to protect these mussels' habitats will result in extinction of the species; therefore, the economic analysis is irrelevant.

Response: Section 4(b)(2) of the Act requires us to consider the economic, national security, and other relevant impacts of designating a particular area as critical habitat.
(17) Comment: The needs of the mussel species would be better addressed in the context of the ongoing AlabamaCoosaTallapoosa (ACT) River Basin Compact process rather than critical habitat designation.

Response: In the case of these mussels, the Act requires us to designate critical habitat. Critical habitat designation only affects Federal actions or activities or those authorized or funded by the Federal Government. Identification of critical habitat, therefore, should assist Federal agencies
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involved in facilitating the ACT Compact negotiations.
(18) Comment: The Service must explain why some areas are included as critical habitat and others are not.

Response: The ``Analysis Used to Delineate Critical Habitat'' (see below), discusses why these 26 units were proposed. In summary, 25 of the 26 units currently support one or more of the species. Many river and stream reaches that historically supported the species are impounded or otherwise affected by human activities to the extent that they no longer provide the physical or biological features essential for the species' conservation. In addition, single site occurrence records of a single species were also not considered essential because of limited habitat availability, isolation, degraded habitat, and/or low management value or potential. Unit 26 represents a rare situation where some primary constituent elements (i.e., flow, water quality) have experienced significant improvements during the past decade. (19) Comment: The proposed rule made no determination as to why the units may need special management or protection.

Response: The proposal made a determination that the 26 units may require special management or protection (see ``Need for Special Management Consideration or Protection,'' below). In this section, we referred the reader to ``Effects of Critical Habitat'' section (see below), where Federal actions that may destroy or adversely modify these units are outlined. Such activities are individually or collectively responsible for the extirpation of these species from significant portions of their ranges (see ``Summary of Factors Affecting the Species,'' in the proposed rule). Habitat fragmentation and isolation render all 26 critical habitat units ever more vulnerable to activities that may affect the primary constituent elements within these units.
(20) Comment: Neither the current distribution nor the host fish are known for the upland combshell and southern acornshell, therefore, critical habitat cannot be identified.

Response: Extant populations of the upland combshell and southern acornshell are currently unknown. However, mussels are cryptic species living embedded in the bottom of rivers, and rare species may be difficult to find. For example, the heavy pigtoe (Pleurobema taitianum) had not been collected from the Alabama River for 30 years and was thought extirpated prior to being found in 1997. We used collection history, surviving mussel species' assemblages, and habitat conditions in evaluating streams for the upland combshell and southern acornshell. We selected those which have the best potential for, and we believe are essential to, the conservation of these two mussels. Fish hosts are currently unknown for the upland combshell, southern acornshell, and ovate clubshell. However, the units proposed for these species support a diverse assemblage of fish species, including fish species and guilds (e.g., darters, minnows, sculpins, bass, catfish, etc.) that are known as hosts or potential hosts for closely related species.
(21) Comment: Scattered collections of an endangered mussel over a reach of river does not suggest an enduring population throughout the reach, therefore, not all of the reach is actually being ``occupied.'' Relic collections in currently degraded habitats should not be used to declare entire reaches of stream as critical habitat.

Response: Rare mussels can be very difficult to locate in their stream and river habitats. There are recent collections of live or freshly dead listed mussel species from all of the occupied units. Designating only the specific locations where mussels have been collected does not take into consideration the habitat requirements of mussels or their host fish, and would not provide for the conservation of the species. Although recent collections may be localized, the physical conditions where they occur are driven by stream channel conditions and dynamics, both up and downstream. Periodic collections of listed species and other mussel species indicate that the occupied units contain the primary constituent elements necessary for the conservation of the species for which they are designated. The upper and lower limits of the units are generally defined by changes in habitat that may render the areas less valuable for conservation of the species.
(22) Comment: Unit 11 (North River) should be excluded from the designation because the dark pigtoe and orangenacre mucket were not included in the original lawsuit. Therefore, the designation of other Units will satisfy the plaintiff's original intent.

Response: In 1993, we published a final rule listing these 11 species under the Act. In that rule we found that critical habitat was prudent, but not determinable. In making a ``not determinable'' finding on critical habitat, the Act requires us to publish a final designation of critical habitat within one year of the final regulation implementing endangered or threatened status to a species. The lawsuit was brought because we did not meet the oneyear deadline for designating critical habitat for 9 of the 11 species. We are required by the Act to designate critical habitat for all 11 species, therefore, we have determined critical habitat for the two species that were not in the original lawsuit.
Issue C: Comments on Individual Units
(23) Comment: The mussel fauna of the North River (Unit 11) is uncommon to rare, and is currently affected by low seasonal flows, heavy siltation, and Asian clams. Therefore, the North River lacks constituent elements as defined in the proposal. Exclusion of Unit 11 will not result in the extinction of the dark pigtoe and orangenacre mucket, therefore, it is not essential to their conservation.

Response: The primary constituent elements (geomorphology, flow, water quality, etc.) in the North River Unit are adequate to support small populations of the endangered dark pigtoe and the threatened orangenacre mucket. There are only two known populations of the dark pigtoe, the North River (Unit 11), and Sipsey Fork (Unit 10). As noted in the ``Summary of Factors Affecting the Species'' in the proposed rule, isolated populations are vulnerable to extirpation by random catastrophic events. For example, in a recently released report on the mussels of the Sipsey Fork of the Black Warrior River drainage, it was found that populations of listed mussels, including the dark pigtoe, were significantly reduced by the 2000 drought (Haag and Warren 2003b). Because of the extent of habitat modification, fragmentation, and isolation, multiple populations are necessary to ensure the conservation of these mussel species (see ``Analysis Used to Delineate Critical Habitat,'' below). Therefore, the North River is essential to the conservation of the dark pigtoe and the orangenacre mucket. (24) Comment: Construction and management plans of the Tom Bevill Reservoir in the North River have undergone Service consultation on effects to the orangenacre mucket and dark pigtoe. Any further modifications to the reservoir will be unreasonable, unwarranted, and inappropriate.

Response: After reviewing the location of the Tom Bevill Reservoir (which is 2.4 miles above the upper limit of designated critical habitat in the North River) and the Biological Opinion (U.S. Fish and Wildlife Service 1994), we now believe that construction of the reservoir will not adversely modify critical habitat in the designated portion of the North River, if the Reasonable and
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Prudent Measures and Terms and Conditions outlined in the Biological Opinion are implemented.
(25) Comment: It is not apparent that either the Locust Fork (Unit 12) or Cahaba River (Unit 13) contain viable habitat to sustain the listed mussels due to sedimentation and other water quality problems. Three reaches of the Locust Fork, and the Cahaba River are currently on the draft 2002 Alabama 303d list of impaired waters. Based on existing habitat and species requirements, critical habitat does not occur within the majority of the Locust Fork or Cahaba River systems.

Response: The continued presence of the orangenacre mucket and triangular kidneyshell in both the Cahaba River and Locust Fork, and the persistence of the finelined pocketbook in the Cahaba, indicates that constituent elements are present to a degree that allows for the survival of these and other mussel species. The mussel populations in these two designated reaches have survived decades of periodic water pollution. By placing the Cahaba River and portions of the Locust Fork on the 303d list, the State of Alabama is recognizing ongoing water quality problems and its commitment to address these problems through appropriate management. Improving and protecting water quality in the Cahaba River and Locust Fork will provide a positive conservation benefit to the listed species in these units. Although collections of the listed mussels are sitespecific in both the Cahaba and Locust Fork rivers, the physical conditions of their habitats are driven by the conditions and dynamics within the stream channel, both upstream and downstream. The designated portions of the Cahaba and Locust Fork Rivers contain one or more of the primary constituent elements essential to the conservation of these mussels, including flow, water quantity, geomorphic stability, substrates, etc. Because of the extent of habitat loss and fragmentation, both of these Units are essential to the conservation of the species for which they are designated (see ``Response'' to Issue 12, above).
(26) Comment: The portion of the Cahaba River (Unit 13) impounded by a diversion dam from just below U.S. Highway 280, upstream to the Cahaba Heights Pump Station, does not contain the constituent element for flow requirements of the mussels and should be removed from the designation.

Response: A low head dam at U.S. 280 impounds a short reach of the Cahaba River main channel during low water conditions. Our regulations allow us to designate inclusive areas where the species is not present if they are adjacent to areas occupied by the species and essential to their management and protection (50 CFR 424.12(d)). The low dam is inundated several times a year during high water conditions allowing movement of host fishes, and possibly attached glochidia. Although the impounded portion does not contain all constituent elements and it is unlikely that the mussels would occur immediately behind the lowhead dam, this short reach is important in maintaining downstream water quality and quantity. It also connects the channel above and below the low dam during high waters where the triangular kidneyshell, orange nacre mucket, and finelined pocketbook are known to survive. (27) Comment: Fresh dead shells of orangenacre mucket, finelined pocketbook and triangular kidneyshell have been recently observed in the Cahaba River from St. Clair County Road 10 to U.S. Highway 78 in Jefferson County, Alabama. Since these species currently occur in this reach, it should be added to Unit 13.

Response: We selected U.S. Highway 82 as the upper extent of critical habitat in the Cahaba River because this was the uppermost location of historic collections of most of the endangered mussels that historically occurred in the drainage, and because above this point, the river undergoes a transition from small river to more streamlike conditions. Collections of a few individuals of these species from the Cahaba River above U.S. Hwy 82 were reported to us in July of 2003, following publication of the proposed rule. At this time, we believe the 124 km (77 mi) of the Cahaba River channel we have designated as critical habitat is adequate for the conservation of the species in this drainage. Endangered or threatened mussels that occur outside of designated critical habitat, however, will continue to receive the protection of the Act's section 7 consultation requirements and section 9 take prohibitions. Under the Act, we can revise critical habitat in the future if it is appropriate, based on the best available information.
(28) Comment: The Service does not have sufficient data to designate Unit 14, Alabama River, as critical habitat.

Response: The section of the Alabama River designated under Unit 14 is known to support a small population of the southern clubshell within one mussel bed near Selma, Alabama (Hartfield and Garner 1998). The Alabama River contains one or more primary constituent elements throughout the designated reach, as demonstrated by the presence of mussel beds with similar species composition, and it is likely that the southern clubshell occurs in other areas within this reach. The Alabama River unit supports the last surviving large coastal plain river population of southern clubshell, and is representative of the historical, geographical and ecological distribution of the species. This area also may be suitable for the reintroduction of the orange nacre mucket.
(29) Comment: FWS has not demonstrated that Unit 26, Coosa River, is essential to the conservation of the species.

Response: Conservation of the species requires ensuring survival through establishing multiple populations by expanding their ranges into currently unoccupied portions of their historic habitats. The Coosa moccasinshell occupies one unit, Unit 25, which makes the population for this species especially vulnerable to stochastic events. The Coosa River in Unit 26 presents the best opportunity for reestablishing populations of 9 of the 11 species, including the Coosa moccasinshell (see ``Analysis Used to Delineate Critical Habitat,'' below). Unit 26 is also representative of a historic habitat (Coosa River ``reefs'') that is no longer occupied by any of these 9 species. Issue D: Comments on Science
(30) Comment: There is no scientific support for the proposed rule. The public cannot comment on science that the Service failed to present. The Service has failed to use the best scientific data available.

Response: The Service has conducted, sponsored, and/or funded most scientific research performed over the past 10 years for these 11 species. Information from this research, and all other available scientific information, was used to prepare the proposed and final designations. During the comment periods, only a single study was brought to our attention that was not used in the development of this designation. This study was published after the proposed rule was published, and it supports our position that host fishes are essential components of the mussels' constituent elements. We received no additional scientific data during the comment periods that we have not previously considered. In addition, all four peer reviewers submitted written responses that the proposal included a thorough and accurate review of the available scientific and commercial data on these mussels and their habitats. Therefore, we believe that we have used the best scientific information available in
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making this final rule. A list of scientific literature used to prepare this rule is available upon request from the Mississippi Ecological Services Field Office (see Addressess, above).
(31) Comment: Spotted bass and largemouth bass failed to successfully transform orangenacre mucket glochidia in some trials conducted by Haag and Warren (1997), indicating they may not be suitable hosts.

Response: Haag and Warren (1997) conducted two glochidia transformation trials with spotted bass. In the first, all of the fish died for unknown reasons before termination of the trial. In the second trial, over 300 orangenacre mucket juveniles/fish were successfully transformed. They also conducted three trials using largemouth bass. In the first two trials, all fish died prior to transformation. In the third, over 100 juveniles/fish were successfully transformed. Since both spotted and largemouth bass occur naturally with the orangenacre mucket, these data indicate, and Haag and Warren (1997) concluded, that spotted and largemouth bass are suitable hosts for the mussel. (32) Comment: The proposal notes the need to reintroduce species into historical portions of their range now proposed for critical habitat. If constituent elements are present at these sites then why are the mussels no longer present?

Response: The listing regulation for these 11 species, the Recovery Plan (U.S. Fish and Wildlife Service, 2000), the proposed rule (see ``Factors Affecting the Species''), and basic population biology note that small populations, isolated to fragments of their former range are vulnerable to extirpation from natural or humaninduced catastrophic events. Following catastrophic events temporary in nature, such as droughts, pollution, and sedimentation, the habitat may recover to a point where the species could survive, if reintroduced. The drainages of the Mobile River Basin have experienced both natural and human perturbations that have changed over time. For example, streams and river segments have been affected in the past by droughts, severe storms, unregulated coal mining, unregulated pollution discharges, and/ or poor agricultural and silvicultural practices. Many of the human induced perturbations that may have led or contributed to the extirpation of species from some of the designated units have been reduced during the past few decades by State and Federal regulation and the adoption of best management practices. Currently, one or more of the 11 mussels continue to survive in 25 of the units. Because of the extent of habitat modification, fragmentation, and isolation, multiple populations are necessary to ensure the conservation of these mussels. Therefore, conditions within these units may now be adequate for reintroduction of one or more of the extirpated species.
(33) Comment: Using listed species as transplants into unoccupied areas is a highly risky conservation technique. The use of artificially propagated individuals for reintroducing species is not addressed in the proposed designation.

Response: Neither the proposed rule nor this final regulation address methods and protocols for the reintroduction of endangered or threatened mussels into unoccupied habitats. We have developed a Plan for Controlled Propagation, Augmentation and Reintroduction for Freshwater Mussels and Snails of the Mobile River Basin (U.S. Fish and Wildlife Service, 2003), in accordance with our Policy Regarding Controlled Propagation of Species Listed Under the Endangered Species Act (65 FR 56916). The plan promotes the use of hatchery propagated individuals for reintroduction of rare mussels into historic habitats, and establishes basic protocols for propagating endangered and threatened mussels and snails, and for population augmentation or reintroduction. Copies of this working document are available from our Jackson, Mississippi Field Office (see Addresses, above).
(34) Comment: Reintroduction of mussels into historic habitats should be declared as nonessential experimental populations.

Response: Section 10(j)(2) of the Act prohibits designation of critical habitat for any nonessential experimental population of an endangered or threatened species. With this rule, we have designated critical habitat units that are essential to the conservation of the mussel species. We will not be determining that any of these units are nonessential experimental population areas or reintroducing any nonessential experimental populations into these units.
(35) Comment: The proposal did not adequately convey the growing level of threat to mussels. It did not address the impacts of impervious area runoff, or the effects of illegal and irresponsible off road vehicle (ORVs) use.

Response: The proposed rule summarize threats to the mussels, particularly as they relate to habitat needs, and refer the reader to sources for more information (see ``Summary of Factors Affecting the Species'' in the proposed rule). We believe that the greatest factor in the conservation of these species is the high degree of habitat loss, and the resulting fragmentation and isolation of their habitats (see ``Analysis Used to Delineate Critical Habitat,'' below). Sitespecific threats, such as impervious surface runoff and ORV use in streams, are compounded by habitat fragmentation and isolation.
Issue E: Comments on Primary Constituent Elements
(36) Comment: The assumption that all 11 listed mussel species each possess identical principal biological or physical constituent elements essential to their conservation is scientifically invalid. The proposal provided no evidence, explanations, or citations quantifying the primary constituent elements (e.g., geomorphic stability, water quantity and quality, etc.) Broadly stated constituent elements provide no guidance whatsoever for needs of individual mussel species.

Response: The Endangered Species Act and Service implementing regulations (50 CFR 424.12) require us to use the best scientific data available to identify known primary constituent elements.
Unfortunately, knowledge of the essential features required for the survival of any particular freshwater mussel species consists primarily of basic concepts with few specifics (Jenkinson and Todd 1997). Among the difficulties in defining habitat parameters for mussels are that physical and chemical conditions (e.g., water chemistry, flow, etc.) within stream channel habitats may vary widely according to season, precipitation, and human activities within the watershed. In addition, conditions between different streams, even those occupied by the same species, may vary greatly due to geology, geography, and/or human population density and land use. A review of the available scientific information shows that loss of mussel life stages, species, and even entire communities can be attributed to a variety of physical and biological factors, including loss of channel stability (e.g., Hartfield, 1993; Neves et al., 1997; etc.), changes in flow and water quality (e.g., Layzer et al., 1993; McMurray et al., 1999; Williams et al., 1993; Naimo, 1995; Strayer, 1999a; etc.), sedimentation and other changes in substrate (e.g., Ellis, 1936; Hartfield and Hartfield, 1996; Brim Box and Mossa, 1999; etc.), loss of fish hosts, and competition from nonnative species (e.g., Neves et al., 1997; Strayer, 1999b; etc.). Therefore, we used the best available scientific information to broadly define six primary constituent
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elements. Although we are currently unable to quantify them for any of these 11 mussel species, these six constituent elements describe physical and biological features essential to the conservation of the species that may require special management considerations and protection.

We recognize that this situation represents a less than ideal situation. The Act requires the use of the best available scientific and commercial data, without regard to whether that is sufficient to make a fully informed determination. At best, the Act gives us through section 4(b)(6)(C)(ii) only a oneyear window of opportunity to further investigate if we find that critical habitat is not determinable, for reasons such as lack of information about the primary constituent elements for the species in question.

Within these limitations, we have utilized the best available scientific data in making our determinations here.
(37) Comment: It appears the Service simply identified 25 reaches within the Basin currently occupied by one or more of the 11 species and then assumed that those reaches contained primary constituent elements.

Response: In making this designation, we used the best available science to describe six primary constituent elements required for the conservation of these species in their aquatic habitats. We then considered all reaches currently occupied by one or more of the species. The longterm persistence of imperiled mussels and mussel communities within a stream reach indicates the presence of physical, chemical, and biological features essential to the survival of freshwater mussels. After considering the mussels' historic ranges, conditions within the range, and the value of the occupied reaches for the conservation of the species (see ``Analysis Used to Delineate Critical Habitat,'' below), we eliminated areas with limited habitat availability, degraded habitat, and/or low management value or conservation potential (e.g., Etowah River, Big Wills Creek, Little River, Euharlee Creek, Limestone Creek, etc.). We believe that the primary constituent elements are present in the 26 designated critical habitat units to a degree that permits the survival of mussels, and with appropriate protection and management will allow conservation of the listed species in those reaches.
(38) Comment: The proposal failed to define ``geomorphically stable stream and river channels and banks.''

Response: Geomorphology refers to the size, shape, and dimensions of a river channel and their relationships to valley and channel slope, local geology, and water and sediment budgets (Patrick et al., 1994). Geomorphic instability can be triggered by impoundment, navigational and floodcontrol improvements, riparian mining operations, regional land use, or a combination of these and other human activities (Patrick et al., 1982). Such activities may disrupt the energy conditions of the affected river or stream channel by changing downstream base levels, channel slopes, or sediment/water balances which, in turn, result in accelerated erosion or sedimentation processes. As these geomorphic processes occur, freshwater mussels may be adversely affected by the loss of stable banks, scouring and deepening of channel beds, and the smothering effects of excessive sedimentation (Hartfield 1993). Therefore, geomorphically stable channels and banks are not experiencing accelerated erosion or sedimentation processes. Stream channels in the Mobile River Basin have been variously affected by geomorphic instability (U.S. Fish and Wildlife Service, 2000). Geomorphic effects of activities that may affect stream channels can be reduced and managed with appropriate planning and implementation of common engineering practices (e.g., grade control structures) and Best Management Practices (e.g., sediment stabilization, and minimization of instream work).
(39) Comment: The Service must identify recovery criteria for conservation of the 11 mussels before it can identify the primary constituent elements essential for their conservation.

Response: We considered the recovery and conservation needs of these species in preparing this designation (see ``Analysis Used to Delineate Critical Habitat,'' below). The recovery objective for these 11 mussel species is to prevent further decline by protecting their surviving populations and the habitats where they occur (U.S. Fish and Wildlife Service, 2000). Stable or increasing populations over time will demonstrate that the objective is being met. The best available scientific information was used to identify physical and biological features essential to the conservation of these mussels, including the Recovery Plan (U.S. Fish and Wildlife Service, 2000) and other documents (see ``Response'' to Comment 36, above).
(40) Comment: The proposal provided no citations, data, or explanation of `` * * * normal behavior, growth and viability of all life stages of mussels and their fish hosts * * *'' in the identification of primary constituent elements.

Response: The proposal summarizes the complex life history of unionid mussels, which includes sexual reproduction, a parasitic larval stage, and a juvenile stage, and identifies host fish where known (see proposed rule). A complete list of all references cited in this rule including those citations and data on the life history of the mussels is available upon request from the Mississippi Ecological Services Field Office. The language used in the ``Primary Constituent Elements'' section alerts Federal agencies to consider the effects of their actions on habitat as they may affect all life stages of the mussels and their host fishes.
(41) Comment: The Service failed to articulate the required connection between the primary constituent elements and the proposed units, and failed to perform any scientific analysis or review to ensure that units contain primary constituent elements for each specific mussel.

Response: In evaluating streams for critical habitat, we considered all information available to us on the biology, habitat, and current distribution of these 11 mussel species (see ``Background,'' and ``Response'' to Comment 36, above). We selected as critical habitat units 25 stream reaches where one or more of the listed mussel species continues to survive. The continued persistence of the mussels in these units is evidence of the presence of the primary constituent elements for their survival (see ``Analysis Used to Delineate Critical Habitat,'' below) now and at the time of the species' listing. We selected the unoccupied Unit 26 because it was historically occupied and PCEs have improved due to significant improvement in flow and water quality (primary constituent elements) over the past decade (see ``Analysis Used to Delineate Critical Habitat,'' below). We also identified the listed mussels currently surviving in each unit and those which historically occurred there (see ``Critical Habitat Unit Descriptions,'' below).
(42) Comment: The proposal failed to provide a unit by unit assessment of whether or not any nonnative competitors are present.

Response: The asian clam (Corbicula fluminea) is present in portions of most of the designated units. This nonnative species has been coexisting with the native mussel fauna for several decades. We are also concerned with the spread or introduction of the highly competitive zebra mussel (Dreissena polymorpha), quagga mussel (Dreissena bugensis), and the mollusk predator,
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black carp (Mylopharyngodon piceus). None of these three nonnative species are currently known to inhabit any of the designated units. (43) Comment: The proposal states in several places that proposed critical habitat units contain one or more of the primary constituent elements. All primary constituent elements must be present for designation of critical habitat, not just one or more.

Response: Critical habitat is defined under the Act as those specific areas within the geographical area occupied by the species on which are found those features essential to the conservation of the species (i.e., primary constituent elements) and which may require special management or protection (see ``Critical Habitat,'' below). Known primary constituent elements must be listed with the critical habitat description. We use the language ``* * * one or more * * *'' in recognition that all areas essential to the conservation of a species may not contain all primary constituent elements, based on the biology of the species. For example, a species may require one area for feeding and growing, another for reproduction or roosting, and still other areas for passage between feeding and growing areas. So while all areas may not contain the same constituent elements, they may be important at some life stage or during some time of the year and collectively they are essential to the conservation of the species. In addition, Service regulations allow us to designate inclusive areas where all constituent elements are not present if they are adjacent to areas occupied by the species and essential to their management and protection (50 CFR 424.12(d)). For example, upland areas can be designated as critical habitat for aquatic species if it is concluded they are essential to the conservation of the species. We believe that the primary constituent elements enumerated within this rule are essential to the conservation of these mussel species and are present in all of the units to a degree that allows survival of the mussels. However, all of the six primary constituent elements may require special management, and can be protected or improved with appropriate management. (44) Comment: Listed species that have been collected from a proposed unit but are showing no active recruitment may need further study to justify designation of critical habitat. The proposal states that there is evidence of local population decline within some units, therefore, primary constituent elements may not be present.

Response: With only a few exceptions, there is little information on recruitment for these mussel species in most units. As a group, mussels are longlived with life spans of 20 years or more. However, their complex reproductive relationships with fish hosts render them vulnerable to recruitment failure due to environmental conditions or other factors that disrupt interactions between the mussels and their host fishes. Therefore mussel populations, particularly those under environmental stress, may go several years with low levels of recruitment, or even no recruitment. Listed mussel populations inhabiting most of the designated units are currently characterized by low numbers of individuals and some level of environmental stress, conditions that make recruitment difficult to measure. These 11 mussel species are threatened and endangered because the limited extent and isolation of their populations renders them vulnerable to natural or human induced changes in their habitats (see ``Factors Affecting the Species'' in the proposed rule). The effects of land uses or weather patterns may be reflected in abundance and demographics of a localized mussel community, and there is evidence of both positive and negative population trends in some units. For example, Haag and Warren (2003b) recently documented declines in the abundance of mussels, including several listed mussels, in portions of Unit 10 (Sipsey Fork drainage) due to drought. The channels and flowing waters of all 26 critical habitat units are dynamic and contain a mosaic of habitat conditions. The six primary constituent elements that we have identified are present within these units, and may require special management considerations and protection if these 11 species are to be conserved (see ``Response'' to Comment 36 and 37, above).
Issue F: Comments on Economic Impacts and Economic Analysis (45) Comment: The proposed designation will harm private landowners through increased government regulation, and will add unnecessary red tape and bureaucracy in the use of surface waters and the disposal of waste waters.

Response: The designation of critical habitat will not increase government regulation of private land. The effects of private activities are not subject to the Act's consultation requirements, unless they are connected to a Federal action. Federal activities conducted in or adjacent to areas designated as critical habitat are already subject to section 7 consultation requirements of the Act because of the presence of one or more species currently listed under the Act. We do not anticipate that this designation will impose any additional direct regulatory steps to private landowners.
(46) Comment: Designation of critical habitat devalues land and makes it impossible to sell.

Response: In some cases, the public may perceive that property adjacent to a stream channel designated as critical habitat will have lower market value than an identical property that is not adjacent to critical habitat. Conversely, others may believe that critical habitat designation will increase property values, especially adjacent property, if they believe that the designation will slow sprawling development in a given community (i.e., protect the rural character of an area) or protect and improve water quality of neighborhood streams and rivers. As noted above (see ``Response'' to Comment 45), critical habitat designation does not affect private land activities that do not involve a Federal Action. Most lands adjacent to stream channels designated as critical habitat are flood prone and used for silviculture and/or agriculture, activities that have little effect on the stream channel when Best Management Practices are employed. As the public becomes aware of the true regulatory burden imposed by critical habitat, the impact of the designation on property markets is anticipated to be minimal. Therefore, we do not believe the designation of these stream channels as critical habitat will result in any significant additional regulatory burden on landowners or affect the use or value of their property.
(47) Comment: Regulatory measures resulting from critical habitat designation may hamper expansion of recreational activities in the Coosa River.

Response: Critical habitat applies only to Federal actions and activities. This designation will not affect private recreational activities in the Coosa River or other designated units.
(48) Comment: Critical habitat designation could limit or restrict use of farm pesticides, and stop dredging in the Alabama River.

Response: Under the Act, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) are required to consult with us over their actions which may affect listed species or their critical habitats. These 11 mussels have been protected under the Act since 1993, and we have
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conducted both formal and informal consultations with EPA and the USACE regarding their actions, including pesticide registration and navigation maintenance. Since actions that might destroy or adversely modify these critical habitat units may also jeopardize mussels, it is unlikely that critical habitat designation will significantly change the outcome of future consultations on these species.
(49) Comment: Designation of critical habitat will create bureaucratic delays in flood reduction measures authorized and funded by Congress. For example, there has been an ongoing consultation since 1988 for the purpose of obtaining a biological opinion to permit routine maintenance of the East Fork Tombigbee River (Unit 1).

Response: Section 7(a)(2) of the Act requires Federal agencies to consult with us to insure that their actions do

FOR FURTHER INFORMATION CONTACT Paul Hartfield, Mississippi Field Office (telephone 6013211125, facsimile 6019654340).