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DEPARTMENT OF THE INTERIOR
Treasury Department
CFR Citation: 50 CFR Part 17
RIN ID: RIN 1018-AU87
NOTICE: Part II
DOCUMENT ACTION: Final rule.
SUBJECT CATEGORY: Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Five Endangered and Two Threatened Mussels in Four Northeast Gulf of Mexico Drainages
DATES: This rule becomes effective on December 17, 2007.
DOCUMENT SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are designating critical habitat for the endangered fat threeridge (Amblema neislerii), shinyrayed pocketbook (Lampsilis subangulata), Gulf moccasinshell (Medionidus penicillatus), Ochlockonee moccasinshell (Medionidus simpsonianus), and oval pigtoe (Pleurobema pyriforme), and the threatened Chipola slabshell (Elliptio chipolaensis) and purple bankclimber (Elliptoideus sloatianus) (collectively referred to as the seven mussels) under the Endangered Species Act of 1973, as amended (Act). The total length of streams designated is approximately 1,185.9 river miles (river mi) (1,908.5 river kilometers (river km)). The critical habitat is located in Houston and Russell counties, Alabama; in Alachua, Bay, Bradford, Calhoun, Columbia, Franklin, Gadsden, Gulf, Jackson, Leon, Liberty, Union, Wakulla, and Washington counties, Florida; and in Baker, Calhoun, Coweta, Crawford, Crisp, Decatur, Dooly, Dougherty, Early, Fayette, Grady, Lee, Macon, Marion, Meriwether, Miller, Mitchell, Peach, Pike, Schley, Spalding, Sumter, Talbot, Taylor, Terrell, Thomas, Upson, Webster, and Worth counties, Georgia.
SUMMARY: Interior Department, Fish and Wildlife Service,
SUPPLEMENTAL INFORMATION
Background It is our intent to discuss only those topics directly relevant to
the designation of critical habitat in this final rule. For additional
information on the seven mussels, refer to the final listing rule
published in the Federal Register on March 16, 1998 (63 FR 12664), the
final recovery plan that was approved September 19, 2003 (available
from our Panama City, Florida Office or online at http://www.fws.gov/endangered/recovery/Index.html#plans ), and the proposed critical
habitat rule published in the Federal Register on June 6, 2006 (71 FR 32746).
The shinyrayed pocketbook was listed as federally endangered under the scientific name Lampsilis subangulata. The shinyrayed pocketbook and three other Lampsilis species are now assigned to the newly recognized genus Hamiota (Roe and Hartfield 2005, p. 1). The Service intends to implement the name change in a separate rulemaking. In November 2006, an Auburn University scientist working under contract for the Service identified eight mussels as shinyrayed pocketbooks that he found in a segment of Econfina Creek (M. Gangloff, personal communication November 3, 2006). This stream segment is within the area designated in this rule as critical habitat for the Gulf moccasinshell and oval pigtoe. If the identification is correct, this find represents the first record of the shinyrayed pocketbook in the Econfina Creek Basin, which was previously known only from the Apalachicola ChattahoocheeFlint (ACF) and Ochlockonee basins. The Service intends to conduct further surveys to confirm whether the species is in Econfina Creek and, if so, to estimate its range and abundance in the basin. In this rule, we do not designate Econfina Creek as critical habitat for the shinyrayed pocketbook.
Previous Federal Actions
On March 15, 2004, the Center for Biological Diversity (Center) filed a lawsuit against the Department of the Interior and the Service (Civil Action No. 1:04 CV0729GET) challenging the failure to designate critical habitat for the seven mussels. In a settlement agreement dated August 31, 2004, the Service agreed to reevaluate the prudency of critical habitat for the seven mussels and, if prudent, submit a proposed designation of critical habitat to the Federal Register by May 30, 2006, and a final designation by May 30, 2007. On March 7, 2007, the court granted an extension and set the new final designation deadline for October 31, 2007.
We published the proposed critical habitat rule for the seven mussels in the Federal Register on June 6, 2006 (71 FR 32746). We accepted public comments on the proposal for 60 days until August 7, 2007. We completed a draft economic analysis (DEA) for the proposed designation on June 6, 2007, and published a notice of availability for this DEA in the Federal Register on June 21, 2007 (72 FR 34215). The public comment period for the DEA was open until August 6, 2007.
For more information on previous Federal actions concerning the seven mussels, refer to the proposed critical habitat designation (71 FR 32746, June 6, 2006) and our notice of availability of the draft economic analysis (72 FR 34215, June 21, 2007). This final rule complies with the settlement agreement.
Summary of Comments and Recommendations
We requested written comments from the public on the proposed designation of critical habitat for the seven mussels in the proposed rule, and again in the subsequent notice of availability (72 FR 34215). On both occasions, we contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule. Three public hearings were held during the second comment period on July 9, 2007, in Columbus, Georgia, July 10, 2007, in Albany, Georgia, and July 11, 2007, in Tallahassee, Florida.
During the first comment period that opened on June 6, 2006, and
closed on August 7, 2006, we received comments from 30 entities that
directly addressed the proposed critical habitat designation: one from
a peer reviewer, 3 from Federal agencies, 16 from State and local
governmental agencies, and 10 from organizations or individuals. We
received 4 requests for a public hearing, all from entities in the
LaGrange and Columbus, Georgia, area. During the second comment period
that opened on June 21, 2007, and closed on August 6, 2007, including
the three public hearings, we received comments from 25 entities that
directly addressed the proposed critical habitat designation or the
draft economic analysis: 4 from peer reviewers, 3 from Federal agencies, 7
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from State and local governmental agencies, and 11 from organizations
or individuals. Of the comments provided during both comment periods,
six commenters supported the designation of critical habitat for the
seven mussels and nine opposed the designation. Forty commenters
provided suggestions or information, but did not indicate support or
opposition to the critical habitat designation. We received comments
that were grouped into 70 issues specifically relating to the proposed
critical habitat designation for the seven mussels, and are addressed
in the following summary and incorporated into the final rule as appropriate.
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from seven knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which the species occurs, and conservation biology principles. We received responses from four of the peer reviewers. The peer reviewers generally concurred with our methods and conclusions, and provided additional information, clarifications, and suggestions to improve the final critical habitat rule. We address peer reviewer comments in the following summary and incorporate into the final rule as appropriate.
We reviewed all comments received from the peer reviewers and the
public for substantive issues and new information regarding critical
habitat for the seven mussels, and address them in the following summary.
Peer Reviewer Comments
(1) Comment: The Service stated in the proposed rule that ``Most of
the tributary streams in the four basins that may support one or more
of the seven species have never been surveyed.'' This seems to cast
doubt on the adequacy of the data used to designate critical habitat.
Most streams in this region that are large enough to support these species have been surveyed at least to some extent.
Our Response: We acknowledge that a substantial fraction of the
unsurveyed tributary streams in the region are probably not large
enough to support populations of the seven mussels. However, the
drainage area associated with the upstreammost location in most of the
occupied watersheds is often quite small (e.g., less than about 5,000
ha (20 mi\2\)), and we have no data for a majority of locations in the
four basins that drain areas of this size. Regardless, we have
considered all available survey data in our analysis for identifying
critical habitat. We designated only where presence is confirmed by surveys.
(2) Comment: The designation of critical habitat should consider
whether reestablishing populations in streams where a species formerly occurred is necessary to fully recover the species.
Our Response: The Act provides for designating areas that are
unoccupied at the time of listing when such areas are essential for the
conservation of a listed species. We listed the seven mussels based on
a substantial decline in range and abundance and threats to their
habitats. Our recovery plan (USFWS 2003:7683) quantifies the amount of
range expansion into formerly occupied areas that we believe is
necessary to achieve recovery for the five species we listed as
endangered. By delineating critical habitat units as the collective
extent of occurrence of all seven listed species within a subbasin,
our proposed critical habitat included a stream length that met the
recovery plan's geographic range recovery criteria for each of the five
endangered species. We do not believe a substantial increase in extent
of occurrence is either feasible or necessary for the recovery of the
two threatened species, which have experienced a lesser decline in
range than the five endangered species. The seven mussels historically
occupied overlapping but also different portions of the eleven units,
and it is not necessary for each species to occupy all suitable habitat
within its designated critical habitat units to achieve recovery. We
considered designating units for species that are entirely extirpated
from those units but determined that doing so is not essential for their conservation.
(3) Comment: Characterizing the stream substrates that are
essential to the conservation of the seven mussels as composed of
predominantly coarse materials is too simplistic and potentially
misleading. Fine sediments (silts and clays) are a natural component of
stream substrates in the coastal plain, including substrates used by
the seven listed species. In this region, very coarse substrates are
often associated with channel scouring and are devoid of mussels.
Our Response: We agree that some amount (generally less than 50
percent by dry weight) of fine sediment is a normal component of the
substrate that is essential to the conservation of the seven mussels.
Coarse sands without any silt or clay, for example, lack cohesiveness
and do not appear to support many mussels, including the listed
species. By emphasizing the adverse affects of excessive amounts of
fine sediments, we may have implied that the seven mussels are
altogether intolerant of fine sediments, which is not the case.
Therefore, we have revised the substrate primary constituent element
(PCE) and our discussion of substrate quality to acknowledge the appropriate role of fine sediments in substrate quality.
(4) Comment: The proposed rule stated that the three other species
reassigned from the genus Lampsilis to the newly recognized genus
Hamiota are not federally listed, but two of these are: H. altilis and
H. perovalis. The third, H. australis, is considered a candidate for protection under the Act.
Our Response: The comment is correct. We erred in stating that the
three other species are not federally listed, and we have revised the text of the final rule accordingly.
(5) Comment: Because other portions of the Uchee Creek subbasin
besides those proposed for designation have supported the shinyrayed
pocketbook and other listed species as recently as 1973, but have not
been surveyed much or at all since then, the rule should designate all
portions of this subbasin below the Fall Line as critical habitat.
Our Response: Riverine habitats are dynamic and subject to a
variety of threats, which makes survey data about the presence of
particular mussel species timespecific. It is not feasible to
routinely survey the full range of the seven species, which
collectively spans over 1,000 river miles. We chose post1990 live
occurrence records as a criterion for evidence that a site has
supported recent occupancy because a great deal of our data comes from
a rangewide status survey conducted in 1991 and 1992, shortly before
the species were proposed for listing in 1994. Occurrence records from
1973 do not meet the criterion we set for evidence of recent occupancy;
therefore, we did not designate other portions of the Uchee Creek sub
basin. Our method of identifying stream segments that meet the
criterion of recent occupancy by one or more of the listed species and
then delineating units as contiguous groups of these stream segments
resulted in designating a total length of stream habitat meets our
recovery plan's geographic range recovery criteria for each of the
seven mussels (see response to Comment
[[Page 64288]]
jeopardy standard of section 7 and the take prohibition of section 9 of the Act.
(6) Comment: Because Sawhatchee and Kirkland creeks are separated
by unsuitable habitat in an impounded section of the Chattahoochee
River, these creeks should be designated as separate critical habitat units.
Our Response: We have grouped Sawhatchee and Kirkland creeks in the same unit because they share two of three listed species in common and flow unimpeded by fish passage barriers into a common water body. Host fish, such as largemouth bass, could conceivably transport glochidia between these two streams.
Comments from States
Section 4(i) of the Act states, ``the Secretary shall submit to the
State agency a written justification for his failure to adopt
regulations consistent with the agency's comments or petition.'' We
address comments received from States regarding the proposal to designate critical habitat for the seven mussels below.
(7) Comment: The designation is overly broad because it includes
areas at high elevations within the lateral boundaries and areas
between the upstream and downstream boundaries that do not support the mussels.
Our Response: Our regulations allow the inclusive designation of
occupied and unoccupied areas in proximity to each other that are each
essential to the conservation of a species (50 CFR 424.12(d)). We agree
that the adult seven mussels are seldom found at or near the ordinary
high water marks in a stream, as this portion of the stream bed is
inundated only during relatively high flows; however, we have
determined that the entire stream channel between the ordinary high
water marks is essential to their conservation as the larval life stage
of these mussels while attached to a fish host or drifting in the
current could ``occupy'' all habitats that the fish visits or the
current takes them, including places at or near the ordinary high water
marks during high water conditions. The location of suitable areas for
mussel habitat is dependent on fluvial dynamics that occur mostly
within the channel up to the ordinary high water marks. A stable stream
bank that is laterally adjacent to but vertically above a mussel bed is
essential to the viability of the mussel bed. Further, our regulations
prescribe the use of reference points and lines as found on standard
topographic maps for describing the boundaries of critical habitat (50
CFR 424.12(c)). The ordinary high water marks as defined in the Corps'
navigation regulations (33 CFR 329.11) roughly correspond to how river
channels are represented on standard topographic maps. We agree also
that the adult seven mussels are not found at all locations between the
upstream and downstream boundaries given the unit descriptions.
However, as with the lateral boundaries, we have determined that the
entire stream channel between the upstream and downstream limits is
essential to their conservation. Riverine habitats are dynamic, and
locations that provide suitable conditions for mussels may shift over
time between these upstream and downstream limits. Connectivity between
the upstream and downstream limits provides for host fish movement,
gametes transport, dispersal into newly suitable habitats, and food
items transport. Therefore, we have kept these areas in the designation.
(8) Comment: The designation is contrary to the Act because it
includes areas that do not contain all of the physical and biological
features that the Service determined are essential to the conservation
of a listed species and may require special management (PCEs). For
example, Unit 8 (Apalachicola River) includes the distributary Swift
Slough, which has aggraded (filled with sediment) in recent years and no longer flows continuously.
Our Response: Each of the 11 units designated as critical habitat
contains all of the PCEs, and each stream segment listed in the unit
descriptions contains one or more of the PCEs. Neither the Act nor our
regulations require that all portions of a designated critical habitat
unit contain all of the PCEs. Mobile animals typically satisfy various
life history requirements by relying upon different habitat features in
different portions of their range. While juveniles and adults of the
seven mussels are relatively immobile animals, their glochidia (larvae)
and host fish are not. Dispersal via fish hosts is how the species
colonize new areas and is necessary to achieve recovery, although
mussels are also sometimes moved into new areas by highflow events.
Mussels will best survive and reproduce in specific areas that
consistently provide all of the PCEs, but do not necessarily persist
permanently in any one area given the dynamic nature of the riverine
environment. Interrupted flow due to the accumulation of sediment in
the bed of Swift Slough has recently led to substantial mortality of
listed mussels in this stream during periods of lowflow in the
Apalachicola River. However, it does not follow that this or any
particular area within a critical habitat unit that lacks all of the
PCEs cannot be included in a critical habitat unit. Stream bed
aggradation in Swift Slough signals the need for special management of
the channel stability PCE in at least the Swift Slough portion of Unit
8. While permanently flowing water, channel stability, etc., are
features essential to the conservation of the seven mussels in each
designated unit, we recognize that some portions of all 11 units have
problems with at least one of the PCEs that may require special management or protections.
(9) Comment: Florida Fish and Wildlife Conservation Commission
personnel found shell material of the listed species in the Brushy
Creek ``feeders'' (floodplain distributaries of the Apalachicola River
that flow into Brushy Creek). The Service must determine whether the
Brushy Creek feeders were likely occupied in 1998 (the time of
listing), and if so, designate those streams if they otherwise qualify
as critical habitat. Areas like the Brushy Creek feeders, currently
unoccupied, should be designated anyway if they are essential for the
conservation of the species. Areas like the Brushy Creek feeders are
key to the recovery of mussels because they can act as nursery areas and provide for population expansion.
Our Response: We relied upon post1990 live occurrence records to
provide evidence that areas were likely occupied at the time of
listing, and we have no such evidence for the Brushy Creek feeders.
Dead shells found recently in these distributaries, which receive flow
directly from a part of the main channel of the Apalachicola River
where listed species are known to occur, is not evidence that these
streams support the listed species now or at the time of listing. It is
more likely that the shells found in the Brushy Creek feeders were
transported by currents from the main channel. We believe that areas
for which we have no evidence of recent occupancy are not essential to
the conservation of the listed mussels (see responses to comments
Public Comments
(10) Comment: Line Creek in Unit 5 (Upper Flint River) does not provide suitable habitat for the listed mussels.
[[Page 64289]]
Our Response: Live listed species have been found in Line Creek downstream of its confluence with Whitewater Creek since 1990, and this segment contains PCEs. Consistent with our criteria for identifying critical habitat, we included this section of Line Creek in Unit 5. (11) Comment: Critical habitat designation will add costly delays to permitting a recreational reservoir on Tired Creek, which is upstream of designated habitat in Unit 9 (Upper Ochlockonee River).
Our Response: The Service is designating critical habitat only
where the mussels are currently present. Therefore, a Federal action
that ``may affect'' critical habitat (and would trigger formal
interagency consultation) would also result in a ``may affect''
determination for one or more mussel species (requiring formal
consultation in and of itself). Our regulations prescribe specific
timeframes in which to complete the formal consultation process with
Federal agencies. These timeframes are the same whether or not critical
habitat is designated and consulted upon during the required
consultation process. Critical habitat designation does not create a
separate consultation process. While the need to consult on adverse
modification on critical habitat does not increase the statutorily
allowed amount of time for consultation, it could increase the amount
of effort that goes into the consultation process due to the different
criteria for a jeopardy consultation versus an adverse modification
consultation. Consideration of designated critical habitat in other
environmental requirements (such as National Environmental Policy Act
(42 U.S.C. 4321 et seq.)), similarly would not add to the length of time needed to comply with those requirements.
(12) Comment: The proposed critical habitat for the seven mussels
overlooks large areas of potential habitat and essentially disregards
the Service's own recovery goals for these species. The Service should
designate unoccupied areas containing PCEs within the historical range of the seven mussels.
Our Response: Our June 6, 2006, proposed rule explained how we
delineated the upstream and downstream limits of proposed critical
habitat using the collective current distribution (post1990 surveys)
of all seven mussels and landscape features (e.g., tributary
confluence, upstream extent of a reservoir) that indicated a
significant change in aquatic habitat conditions (71 FR 3275732758
``Criteria Used To Identify Critical Habitat''). This approach resulted
in 11 hydrologically and ecologically contiguous units, each of which
is a collection of stream segments that flow unimpeded by fish passage
barriers into a common reservoir or estuary. Moreover, as we noted in
our response to peerreview comment
(13) Comment: Currently occupied habitat is insufficient for
conservation of the seven mussels and, therefore, the critical habitat
designation must include unoccupied habitat. Unsurveyed tributary
creeks that likely support the seven mussels are excluded from the
proposed critical habitat because the Service cannot confirm that mussels are present.
Our Response: Our recovery plan for the seven mussels (Service
2003) notes that reintroduction in presently unoccupied habitat is
needed for the conservation of the five mussels listed as endangered,
but not for the two threatened, species. The two threatened species,
the Chipola slabshell and the purple bankclimber, each occupy well more
than 50 percent of the historical range, which is the criterion we
adopted for range expansion as a measure of recovery in the recovery
plan. For the five endangered species, the stream length included in
the designation meets the recovery plan's geographic range recovery
criteria (see our responses to peerreview comment
(14) Comment: While permanently flowing water is essential to the
seven mussels' survival, flowing water alone is insufficient for the
conservation of these species. The final rule should adopt the Service
Environmental Protection Agency (EPA) instream flow guidelines as the flowrelated PCE.
Our Response: We discussed in the June 6, 2006, proposed rule the
role of natural variability in the flow regime to the structure,
composition, and functioning of riverine biological communities. The
ServiceEPA flow guidelines are measures of flow variability that may
serve as thresholds for ``may affect'' determinations for proposed
Federal actions that would alter a flow regime (e.g., water
withdrawals, dam operations). It was not practical or useful to compute
the flow guidelines for the entire region that this designation spans,
because the guidelines were designed as a tool for site and project
specific analysis. Further, the guidelines do not establish a general
standard or ``bottom line'' for flow regime features that are essential
to the conservation of listed species. Recognizing the many
complexities involved in quantifying essential flow regime features for
the seven mussels, we adopted a qualitative expression that applies
throughout the range of the seven mussels and is clearly necessary for their recovery: ``permanently flowing water.''
(15) Comment: Riparian buffers are essential to the conservation of
the seven mussels and should be designated as primary constituent
elements. If the final rule does not include intact riparian buffers as
a primary constituent element, it should address riparian zones as a necessary element of related primary constituent elements.
Our Response: Many factors operating outside the channel in the
larger watershed affect streams and their inhabitants. Conditions in
the riparian zone are among the most influential of these factors by
virtue of immediate proximity to the stream channel, but the seven
mussels do not occur in the riparian zone. A wide array of riparian
buffer dimensions and vegetative characteristics are associated with
the mussels. Activities within the riparian zone are among those that
may adversely affect the PCEs, and likewise, some conservation actions
to protect or enhance the PCEs may occur within the riparian zone.
However, specific biological and physical features within the riparian
zone are themselves not essential to the conservation of the seven
mussels. We have used the ordinary high water marks of the channel as
the lateral bounds for this designation (see also our response to
comment
(16) Comment: One PCE recognizes fish hosts as necessary to
``support the larval life stages of the seven mussels,'' but none
address the habitat needs of the host fish species. The final critical
habitat designation should be consistent with the rule for five
Tennessee and Cumberland River mussels, which defined ``Fish hosts with
adequate living, foraging, and spawning areas for them'' as a PCE, and also linked the ``flow regime'' and ``water quality'' PCEs
[[Page 64290]]
for the mussels with the needs of the host fish.
Our Response: PCEs are essential physical and biological features that are found within critical habitat, the lateral boundaries of which we have delimited as the ordinary high water marks of the stream channel. The final critical habitat rule for five endangered mussels in the Tennessee and Cumberland River basins also used the same criteria (ordinary high water mark) to define the lateral boundaries of critical habitat. Therefore, while the wording of the PCEs might be different, the protection levels are the same since both use the ordinary high water mark to delineate the lateral boundaries of critical habitat.
Several fish species that have been identified through laboratory
tests as potential hosts for the seven mussels are known to spawn most
successfully in floodplain habitats (e.g., largemouth bass), which
occur outside the critical habitat boundaries. We agree that the
habitat needs of host fish are important considerations in mussel
conservation, but as with our response to Comment
(17) Comment: The rule does not contain the summary of data on
which the proposal is based, does not show the relationship of such
data to the rule proposed, or provide citations to the mussel surveys
relied upon, as required by the Service's regulations at 50 CFR 424.16.
Our Response: Our summary of data supporting the PCEs is provided
in the ``Primary Constituent Elements'' section. Our summary of data
supporting the delineation of units is given in the ``Criteria Used To
Identify Critical Habitat'' section. The mapping process involved an
overlay of all available sitespecific locality data for the seven
mussels, which itself was not included in the published proposed rule
and is not included in this final rule. The sources for all mussels
survey data used in the mapping process are cited at the conclusion of
each unit's description, where we list the species for which each unit
is designated. A complete list of these and all references cited in
this rulemaking is available upon request from the Panama City Ecological Services Office (see ADDRESSES).
(18) Comment: The Service should not designate Swift Slough, which
is part of Unit 8 (Apalachicola River), because it does not have the permanently flowing water PCE.
Our Response: It is not necessary for all PCEs to be present in all
portions of critical habitat at all times (see our response to Comment
(19) Comment: Water withdrawals are mentioned as causing changes in
riverine habitats. This is a misstatement of facts. If water is
withdrawn and used and properly treated and returned to the basin of origin, it does not change the riverine habitat.
Our Response: Most outofstream uses of water return less than 100
percent of the water that is withdrawn, due to evaporation and other
losses. In 2005, about half of the water withdrawn for municipal and
industrial use in the Chattahoochee Basin upstream of West Point Dam
was not returned to the river (Georgia Environmental Protection
Division, unpublished data). Water withdrawals may affect aquatic
habitat conditions and aquatic communities, depending on their timing
and magnitude relative to stream flow. For example, fish assemblages
were significantly less diverse downstream from relatively large water
withdrawals and downstream from water supply reservoirs in the lower Piedmont region of Georgia (Freeman 2005).
(20) Comment: The fact that the fecal coliform bacteria standard is
violated in some reaches of the critical habitat has no effect on
mussels. This standard is set to protect humans engaging in whole body contact with the water such as swimming.
Our Response: We agree that fecal coliform bacteria standards are
established to protect human health and violations of these standards
do not necessarily indicate conditions that are harmful to mussels.
However, it is possible that some of the bacteria and protozoans
associated with wastewater discharges, which often includes fecal
coliform bacteria, may adversely affect mussel reproduction (Goudreau
et al. 1993:221). High fecal coliform levels may also derive from non
point sources such as pastures and farms following rain events. Because
the overland runoff that delivers fecal coliform bacteria from non
point sources to streams may also carry pesticides, fertilizers, and
other pollutants, elevated levels of other pollutants are often associated with high coliform counts.
(21) Comment: The statements that ``Many pollutants in the ACF
Basin originate from * * * and municipal waste water facilities'' in
the proposed rule implies that waste water facilities are the source of
pollutants that are harmful to the mussels. This is not correct if the
waste water facilities are in compliance with National Pollutant
Discharge Elimination System (NPDES) permits. All NPDES permits are
required to ``not violate water quality standards,'' therefore the
mussels would be protected. The fact that someone counted 137 municipal
waste water facilities in the ACF basin is not relevant to the
protection of the mussels assuming that these facilities all have NPDES
permits and are in compliance. To arbitrarily assume that these
facilities are not in compliance without factual data is wrong and is unscientific.
Our Response: Municipal waste water treatment processes remove most
but generally not 100 percent of all pollutants. Although treatment
facilities and other pointsource discharges may comply with NPDES
permit conditions, the combined pollutant loading from all sources in a
watershed may contribute to a total loading such that some reaches do
not meet one or more water quality standards. When a stream is
identified as impaired under the Clean Water Act (33 U.S.C. 1251 et
seq.), the States initiate a process for developing total maximum daily
load regulations under their delegated administration of the Clean
Water Act. Our proposed rule indicated which critical habitat units
contain stream segments on the impaired waters lists of the States. Our
reference to the number of treatment facilities in the ACF Basin was
part of describing the environmental setting of the critical habitat
units. We did not assume or mean to imply that treatment facilities in the ACF were or were not in compliance with NPDES permits.
(22) Comment: These two statements in the proposed rule contradict
each other: (1) ``The ranges of several standard physical and chemical
water quality parameters (such as temperature, DO, pH, conductivity)
that define suitable habitat conditions for the seven mussels have not
been specifically investigated;'' and (2) ``Various contaminants in point and nonpoint
[[Page 64291]]
source discharges can degrade water and substrate quality and adversely affect mussel populations.''
Our Response: Our reference to ``several standard physical and
chemical water quality parameters'' did not include contaminant
concentrations. Parameters are those that aquatic biologists routinely
measure with instruments in the field. Concentrations of contaminants
that are known to adversely affect mussels, such as ammonia and heavy
metals, are generally measured using water or sediment samples taken to
a laboratory and not using instruments in the field. We have revised
the rule language to avoid the apparent contradiction of these two statements.
(23) Comment: There is no scientific basis given for implying that septic systems are responsible for mussel threats.
Our Response: We include maintaining septic systems among the
management considerations to deal with the threat of pollution to
mussel habitats because inadequately maintained systems may contribute
nutrients and other pollutants to ground water that can seep into
surface water bodies. Nutrient loading can lead to algal blooms and low
dissolved oxygen levels that adversely affect mussels, which we discuss under the water quality PCE.
(24) Comment: The impacts associated with Whitewater Creek Park are
minimal; therefore, the Service should exclude Macon County, Georgia, from the designation.
Our Response: We do not include Whitewater Creek and Whitewater
Creek Park in Macon County in designated critical habitat for the seven
mussels. However, we do include a different Whitewater Creek in Fayette
County, Georgia. We also include the main channel of the Flint River
and Hogcrawl Creek in Macon County as parts of Unit 5 (Upper Flint River).
(25) Comment: Critical habitat for the seven mussels is not
determinable because the Service has insufficient data. Most of the
mussel distributional records are from the early 1990s and further
studies are needed to define suitable habitat conditions for the seven mussels.
Our Response: Much of the survey data upon which we relied dates
from the early 1990s, but this does not in and of itself render
critical habitat undeterminable. The Act contemplates critical habitat
designation ``at the time it [the species] is listed'' (Sect.
3(5)(A)(i)); therefore, we must necessarily rely on distributional data
from the time of listing as well as more recent data. It happens that
most of our records are from the early 1990s because the most
comprehensive survey effort in the range of the seven mussels
immediately preceded the listing proposal, which was published on
August 3, 1994 (59 FR 39524). Due to a moratorium on listing actions
declared by Congress shortly thereafter, we did not publish a final
rule until March 16, 1998 (63 FR 12664). We agree that further studies
are needed to more quantitatively define the seven mussels habitat
requirements; however, the best available information regarding those
requirements is sufficient to define qualitative but workable and
meaningful PCEs. Further, the PCEs adopted in this rule are generally
consistent with those adopted in previous rules designating critical habitat for freshwater mussels.
(26) Comment: Contrary to the Service's regulations at 50 CFR
424.12(c), the Service has used an imprecise ephemeral boundary, the
ordinary high water marks, to define the lateral extent of the proposed critical habitat area.
Our Response: Although the ordinary high water marks of a stream
may shift location over time, they do not disappear. The intent of the
regulation cited is avoiding reliance in critical habitat descriptions
on ephemeral features, i.e., features that last a relatively short
time. We agree that the ordinary high water marks are not a precise or
a fixed set of coordinates over time, but they are an appropriate
descriptor for dynamic riverine habitat. A fixed set of coordinates
that would fully encompass the areas we have determined are essential
would either become quickly obsolete through natural or humaninduced
lateral channel migration, or would delineate an overly broad area by including a fair amount of terrestrial habitat.
(27) Comment: The analysis of what activities may affect the
proposed critical habitat designation set forth in the proposed rule is
both misleading and incomplete. As a result some persons may conclude
by default that any and all activities affecting portions of the
critical habitat, however minimally, will require consultation under section 7 of the Act.
Our Response: The section 7 consultation process applies only to
Federal actions. Federal agencies are responsible for determining
whether their actions may affect listed species or designated critical
habitats. Action for which the action agency makes ``no effect''
determinations does not require further consultation with the Service.
Service concurrence is required for other determinations, and the
Service routinely assists Federal agencies in defining classes of
actions that may comply with section 7 through informal consultation.
The formal consultation process, which requires the Service to prepare
a biological opinion, applies to those actions that Federal agencies
determine may adversely affect the listed species or designated
habitat. We do not expect the designation of critical habitat to
appreciably increase either the number of actions per year to which the
consultation process applies or for which formal consultation is required.
(28) Comment: The proposed rule provides no guidance for
determining which features of the flow regime are important to mussels
and their host fishes. Therefore, it is impossible to determine whether
the Service has actually made a determination that certain activities
presumptively ``may affect'' critical habitat. The ServiceUnited
States Environmental Protection Agency instream flow guidelines
referenced in the proposed rule do not provide a sufficient or
appropriate basis for evaluating proposed activities, because the
guidelines are not selfexplanatory and are not obviously relevant to the seven mussels.
Our Response: The measures of flow magnitude, duration, frequency, and seasonality that are included in the ServiceUSEPA instream flow guidelines (USFWS and USEPA 1999) may be used to determine whether Federal actions may affect listed species. This is the express purpose of the guidelines, which is relevant to the seven mussels. Application of the guidelines for this purpose is a sitespecific and data intensive process that involves computing longterm flow statistics for a project area with and without a proposed Federal action. Actions that would alter the flow parameters included in the guidelines, e.g., increase the maximum number of days per year that flow is less than 25 percent of average annual discharge, may adversely affect listed species and require formal consultation. The process for computing and applying the guidelines is explained in the guidelines document. However, to provide more information about the guidelines in this designation, we have added a listing of the flow regime features that are included in the guidelines to the flow regime PCE discussion. (29) Comment: The Service should follow the procedures prescribed by the National Environmental Policy Act (NEPA) as part of this rulemaking.
Our Response: It is our position that, outside the jurisdiction of
the Tenth Federal Judicial Circuit, we are not required to prepare environmental analyses as defined by NEPA in
[[Page 64292]]
connection with designating critical habitat under the Endangered
Species Act of 1973, as amended (see Required DeterminationsNEPA).
(30) Comment: The Service fails to note that impoundments are very
efficient in removing sediment, with large southeastern reservoirs trapping 8090% of the incoming sediment.
Our Response: In the ``Summary of Threats to Surviving Populations'' section, we note how impoundments block the natural downstream movement of sediment, which commonly leads to channel degradation in the tailwaters of dams built in alluvial rivers (Williams and Wolman 1984, p. 14; Lignon et al. 1995, p. 187). Rather than providing a net benefit to mussels by trapping excessive sediment loads, dams may largely remove native riverine mussels from tailwater areas through channel scouring processes as well as from stream segments inundated by reservoirs. For example, the fat threeridge was formerly abundant but is now rare in the upstream reaches of the Apalachicola River, most likely due to substantial channel incision resulting from the construction of Jim Woodruff Lock and Dam. (31) Comment: The Service fails to note that impoundments with large storage capacity may increase base flows downstream during periods of drought. Increased minimum flow may benefit downstream mussel habitat. The storage capacity of large reservoirs may also reduce the impact of flood flows that historically would result in scour and bank erosion.
Our Response: The seven mussels evolved under natural flow regimes
that include droughts and floods. Human consumptive uses of water may
decrease stream flow below naturally occurring levels, and releases
from reservoirs may offset the impact of this depletion, depending on
how reservoirs are operated. However, reservoirs generally reduce the
average annual discharge of a river by increasing evaporative losses
via a greater water surface area. Increasing river flow with releases
from reservoir storage necessarily requires decreasing river flow at
other times to replenish storage, which may adversely affect mussels.
However, we are aware of no evidence that the magnitude, frequency,
duration, or timing of flood flows has been appreciably altered by dams
in the stream reaches that are included in this critical habitat designation.
(32) Comment: Relative to the application of the jeopardy and
adverse modification standards, the Service provides no evidence that
the operation of dams would alter flows in a manner that would destroy or adversely modify critical habitat.
Our Response: Federal actions that would destroy or adversely
modify critical habitat are those that alter the PCEs to an extent that
the conservation value of the habitat is appreciably reduced. We
included dam operations as an activity that could, but does not
necessarily, significantly alter flow regimes. Determining whether dam
operations may adversely affect critical habitat is a site and
projectspecific analysis. The ServiceUSEPA instream flow guidelines
(USFWS and USEPA 1999) are an appropriate tool for making such
determinations (see comment
(33) Comment: The Service is required to list the specific PCEs for
each individual mussel in each unit designated as critical habitat. The
Service does not provide evidence, explanations, or citations detailing
the requirements of each species relative to each of the PCEs.
Our Response: The Act and our regulations do not prohibit multi
species critical habitat designation rules, and the Service has
previously issued several multispecies critical habitat rules in which
a common set of PCEs applies to more than one species (for example,
July 17, 2007, final rule for Peck's Cave amphipod, Comal Springs
dryopid beetle, and Comal Springs riffle beetle, 72 FR 39248). We
acknowledge that each of the seven mussels has a unique life history
and niche in the riverine environment, but that these are similar
enough to describe PCEs for the seven mussels as a group. Although the
PCEs are the same for all seven mussels, the mix of units designated as
critical habitat for each species is unique, reflecting differences in their spatial distribution.
(34) Comment: The rule should address the threat of dam removal to
the mussels and include dam removal as an action that could appreciably alter the channel stability and flow PCEs.
Our Response: The Service is unaware of dam removal proposals
within the areas we are designating as critical habitat. Dam removal
could conceivably initiate channel instability; however, the most
likely motivation for a dam removal project would be restoration of
freeflowing conditions that were previously impaired by impoundment.
This is the motivation for the proposed removal of the EaglePhenix Dam
and the City Mills Dam, which would restore a total of approximately
2.3 miles of the biologically significant Fall Line shoal habitat in
the Chattahoochee River. Although this area has not been designated as
critical habitat, it is within the historical range of some of the
seven mussels. EaglePhenix and City Mills dams do not store an
appreciable volume of water, and removing these dams would not affect downstream flow regimes.
(35) Comment: The proposed rule cites no evidence to support the
assertion that the seven mussels are not found in impoundments.
Our Response: Brim Box and Williams (2000) surveyed 324 sites in
the ACF, including several sites within several impoundments, including
Lake Seminole, Lake Walter F. George, and West Point Lake. They found
no live individuals of the listed species within any of the impoundments.
Economic AnalysisPolicy Issues
(36) Comment: Multiple commenters requested the economic analysis
consider those impacts due solely to the designation of critical habitat for the seven mussels.
Our Response: Appendix B of the Final Economic Analysis (FEA) estimates the potential incremental impacts of critical habitat designation for the seven mussels. It does so by attempting to isolate those direct and indirect impacts that are expected to be triggered specifically by the critical habitat designation. The incremental conservation efforts and associated impacts included in Appendix B would not be expected to occur absent the designation of critical habitat for the seven mussels. Total present value potential incremental impacts are estimated to be $501,000. All other impacts quantified in the FEA are considered baseline impacts and are not expected to be affected by the critical habitat designation. (37) Comment: Several commenters stated the Initial Regulatory Flexibility Analysis does not adequately estimate the potential impacts to small entities.
Our Response: Appendix C in the FEA has been revised and now
considers the extent to which the incremental impacts analysis
described in Appendix B could be borne by small entities and the energy
industry as opposed to fully coextensive impacts quantified in
Sections 3 though 6. The incremental impacts of the rulemaking are
considered most relevant for the small business and energy impacts
analyses as they are expected to stem from the critical habitat
designation, and are therefore not expected to occur in the case that critical habitat is not
[[Page 64293]]
designated for the seven mussels. The analysis concludes that one
hydropower operator and 10 deadhead logging companies may be affected by critical habitat designation as proposed.
(38) Comment: One commenter states that the Draft Economic Analysis
(DEA) explains that no estimates of minimum flow have been developed by
the Service or any other entity. In order to assess ultimate hydropower
impacts, these estimates must be made, and included in the economic analysis.
Our Response: In the absence of information on minimum flow levels
for the seven mussels the FEA relies on the best available information
solicited from resource managers on the likely efforts that would be
needed to protect the seven mussels to estimate the potential future
impacts associated with conservation efforts in areas proposed for designation.
(39) Comment: One commenter indicates that the impacts of
implementing the U.S. Army Corps of Engineers (USACE) Modified Interim
Operating Plan (Modified IOP) need to be distributed between gulf sturgeon and mussels, as it considers both.
Our Response: The Modified IOP is intended to protect the mussels,
their host fish, and gulf sturgeon. Specific information on which
species generated which conservation efforts in the plan is not
available. This analysis therefore quantifies the full impact of the
plan as coextensive with seven mussels conservation. Appendix B in the
Final Economic Analysis (FEA) estimates the incremental impacts
associated solely with the designation of critical habitat for the
seven mussels; impacts associated with the Modified IOP are not considered to be incrementally due to critical habitat.
(40) Comment: Several commenters state that potential benefits of critical habitat designation should be quantified.
Our Response: The economic analysis conducted for this rule points
out that there are some potential benefits of critical habitat
designation. However, it is difficult to develop credible estimates of
such values, as they are not readily observed through typical market
transactions and can only be inferred through advanced, tailormade
studies that are time consuming and expensive to conduct. We currently
lack both the budget and time needed to conduct such research before
meeting our courtordered final rule deadline. The economic analysis is
done primarily to provide decisionmakers with information about
potential exclusions from the rule. Given the impracticality of
conducting this additional analysis we do not believe it is necessary
to quantify the positive consequences of this rule in order to weigh
the benefits of including versus excluding areas from the rule. The
Congress has already determined that the benefits of species recovery
are high. Therefore, we do not require quantification of how high in order to make a sound decision.
Economic AnalysisEconomic Issues
(41) Comment: One commenter states that the DEA did not desegregate
impacts in Unit 8, Apalachicola River to focus on Swift Slough, River Styx, and Kennedy Slough.
Our Response: The water management adopted per Reasonable and
Prudent Measure (RPM) 3 of the Biological Opinion for USACE operations
at Jim Woodruff Dam raised the minimum flow in the Apalachicola River
to 6,500 cfs when composite storage (all reservoirs combined) is above
zone 3, at which time it reverts to 5,000 cfs. At this time the Service
does not anticipate maintaining higher minimum flows for Swift Slough,
River Styx, and Kennedy Slough than already considered in the Modified
IOP. Therefore, the FEA does not estimate any additional impacts associated with these tributaries.
(42) Comment: One stakeholder commented that the Modified IOP is an
interim plan and can change soon. Another commenter noted that the
USACE 2007 Environmental Assessment quoted in Section 4 of the report
has not been vetted through an official process, and that a May 16,
2007, letter from USACE to the Service indicates that changes to
Modified IOP operations are ongoing, and make USACE statements suspect as they are subject to change.
Our Response: The USACE currently manages its operations in
accordance with the 1989 Draft Water Control Plan for the Apalachicola
ChattahoocheeFlint (ACF) reservoir system and makes minor adjustments
as necessary to accommodate changes in current needs. Current
management under the Draft Water Control Plan is set out in the
Modified IOP. The Modified IOP reflects how the USACE is regulating the
minimum releases and maximum fall rates at Jim Woodruff Dam. In 2007,
the USACE completed an Environmental Assessment of the Modified IOP.
Finalization of the Draft Water Control Plan depends on the result of
ongoing litigation filed by the State of Alabama in 1990. Although it
is expected that the Water Control Plan, and the Modified IOP will be
updated subsequent to the resolution of the litigation process,
information is not available to identify what changes to management may
occur. The FEA therefore applies the best information available, i.e.,
the Modified IOP and Draft Water Control Plan, regarding water
management and acknowledges the uncertainty regarding this activity in the future.
(43) Comment: A few commenters stated that the input parameters
that the USACE uses for its HEC5 hydrological model differ from the
parameters used by Georgia and Florida and that the results presented
in the DEA could change if these different input parameters are included in the analysis.
Our Response: To address the comment, the FEA includes additional
results from Georgia Environmental and Protection Division's (EPD)
analysis of the Modified IOP. Section 2 has been updated with a
detailed discussion of how the USACE's assessment of the depletion of
water storage in the major dams on the Chattahoochee River is
consistently less than Georgia EPD's assessment. Several exhibits have
been added that compare the two agencies' interpretations of the impact
of the Modified IOP on reservoir storage capacity. The comparisons are
made for both year 2000 and year 2030 water demand levels, and for
normal and drought conditions. Section 3 of the FEA was revised to
include these new estimates. Using this new information the present
value of potential economic impacts to recreationists associated with
conservation efforts for the seven mussels in Unit 8, Apalachicola
River, increased to be between $27.7 million and $54.1 million (discounted at three percent).
(44) Comment: A commenter stated that the Service's use of instream
flow guidelines in Section 2 of the DEA was not mentioned in the
September 2006 Biological Opinion on USACE's IOP for Jim Woodruff Dam.
Our Response: Instream flow guidelines discussed in the DEA are as
described by the Service in the June 6, 2006, proposed rule for the
critical habitat designation of the seven mussels, not the 2006
biological opinion. The EPAUSFWS guidelines are referenced in Section 2 of the FEA.
(45) Comment: One commenter stated that the assumption that
municipal and industrial impacts may result due to USACE's water
management operations of the ACF system is directly contradicted by
USACE language, which indicates that lake levels will not fall below
water intake structures because of operations under the Modified IOP.
Our Response: The USACE analysis of the impacts of the Modified IOP
impacts models year 2000 water demand; it does not assess the impact of the Modified IOP for year 2030 water demands.
[[Page 64294]]
However, Georgia EPD provides simulated lake levels for both year 2000
and year 2030 water demand levels. Section 2 of the FEA, discusses how
model simulations conducted by the Georgia EPD suggest that lake levels
may go below water intake structures in the future, especially under
year 2030 water demand levels. This can happen even without the
modifications introduced by the Modified IOP. Thus, in the case that
sustained drought conditions exist in the future, the Modified IOP can potentially further decrease lake levels.
Potential Economic Impacts Related to Changes in Water Use and Management
(46) Comment: A few commenters have expressed reservations about
attributing the impact of the Modified IOP on municipal and industrial
water supply and recreation to the critical habitat of the three
mussels found in the Apalachicola River complex because the Modified IOP predates the designation.
Our Response: The impact of the Modified IOP on municipal and
industrial water supply is not quantified in the DEA. For recreation
related impacts, which are quantified in Section 3, the FEA quantifies
the fully coextensive impacts of any Federal, State, or local
regulations or guidelines that may benefit the seven mussels in the
proposed critical habitat area. Appendix B of the FEA acknowledges that
implementing the Modified IOP is not an incremental impact attributable to the proposed rule.
(47) Comment: Several commenters have indicated that water quality could become a concern at lower lake levels.
Our Response: Section 2 of the FEA notes these concerns based on
Georgia EPD's analysis of how declining lake levels during sustained
periods of drought could expose the water intake structures of several
local governments in Georgia. Additionally, Georgia EPD concludes that
the Modified IOP leads to an increase in the number of days that the
desired flow for wastewater assimilation below the Columbus gage will
not be met. Section 5 discusses other potential water qualityrelated
impacts. These potential water quality impacts are associated with
Modified IOP implementation and are not expected to result from the critical habitat designation as proposed.
(48) Comment: One commenter mentioned that there is no mechanism
for the Flint River Drought Prevention Act (FRDPA) to restrict
agricultural uses based solely on impacts to protected mussels.
Our Response: The DEA does not make assumptions or recommendations
regarding how changes in irrigated agricultural use will occur, or who
will bear the cost of changes in water management and use. As discussed
in Section 6 of the FEA, the Georgia Department of Natural Resources,
Wildlife Resources Division plans to develop a Habitat Conservation
Plan (HCP) to address agriculture related impacts to seven mussels
conservation in the Lower Flint River Basin. The HCP is expected to
reduce irrigation in the Lower Flint River Basin during severe drought.
In addition, there were reverse auctions conducted associated with the
Flint River Drought Protection Act (2000), during which irrigation
rights were purchased from farmers, during the drought periods in 2001 and 2002.
(49) Comment: Several commenters indicate that information
necessary to quantify municipal and industrial impacts is ``readily
available and should have been collected and analyzed as part of the economic analysis.''
Our Response: Section 3 of the FEA explains that it was unable to
estimate the impacts of mussel conservation efforts on municipal and
industrial water supply because of numerous uncertainties in the
relationship between water management under the Modified IOP and water
supply. To quantify these impacts, the following information is needed:
(a) The relationship between lower lake levels due to the Modified IOP
and the risk that municipal water use will be restricted in some way
(i.e., the marginal increase in risk of droughts being declared); (b)
the amount of water lost from each sector (e.g., industry) within
Chattahoochee River Basin municipalities due to drought restrictions
and quantification of the effect of timing restrictions on water
availability; and (c) data to estimate the value of less transparent
water uses (e.g., lawn watering). These data are currently not available.
(50) Comment: One commenter indicated that the DEA underestimates
the economic impacts associated with critical habitat designation at
West Point Lake, citing preliminary results from an ongoing study. The
FEA indicates that impacts associated with low water levels (i.e.,
water levels below top pool elevations) not specifically due to the
Modified IOP may be as high as $90 million. The commenter states the
following: (a) Recreation visits are underestimated, (b) the DEA did
not consider estimates of rapid growth associated with the greater
LaGrange, Georgia area, (c) property value changes in response to
changes in lake level are not analyzed, and (d) the estimate of average
boating expenditures within 30 miles ($68 per trip) is low.
Our Response: The West Point Lake study described by this commenter
was commissioned to investigate the economic impact of low water
levels, which are only in part influenced by the mussel conservation
efforts. In response to the specific points: (a, b) A new source of
data on visitation to West Point Lake has been identified and
incorporated into the FEA (increasing the present value estimate of
potential future impacts to recreationists at West Point Lake to
between $11.0 million and $16.5 million, discounted at three percent).
(c) Estimating property value impacts would require a study that has:
(i) Estimated how property values in the region (ideally, at West Point
Lake) have changed in response to changing lake levels and (ii) is
capable of characterizing the marginal change in property values of
changes in lake levels. Such a study has not been identified. (d)
Average boating expenditures are used in the regional impact analysis.
The within 30mile expenditure value of $68 per trip is the best
estimate currently available. The $95 estimate includes nationwide
travel expenditures to Lake Lanier and therefore cannot be used to estimate regional impacts.
(51) Comment: Several commenters indicate that McMahon et al. 2004
is inappropriate to use in the DEA to estimate potential impacts of
lower lake levels on recreation. Specifically, (a) McMahon et al. use
1995 boater visitation data that is outdated; and (b) omitting impacts
on nonboaters would result in a significant underestimate of impacts.
Our Response: An extensive literature review of the recreation literature (refer to Appendix F of the FEA) was conducted and did not identify any other studies that were transferable to the situation at Lake Lanier. McMahon et al. was selected for a few reasons: (a) The robustness of the method (Random Utility Model), (b) the geographic appropriateness of the analysis, and (c) the transferability of the results (ela
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