Frequently Asked Questions June 3, 2003
A: The U.S. Fish & Wildlife Service (Service) listed these 5 freshwater mussels from the Tennessee and Cumberland River Basins on January 10, 1997.
Q : Which freshwater mussels were listed?
A : The endangered Tennessee and Cumberland River Basin mussels are: the Cumberland elktoe (Alasmidonta atropurpurea), Cumberlandian combshell (Epioblasma brevidens), purple bean (Villosa perpurpurea), oyster mussel (Epioblasma capsaeformis), and rough rabbitsfoot (Quadrula cylindrica strigillata).
Q: Why were the mussels listed?
A: The mussels'decline is attributed to river and stream modifications, such as dams, dredging, and channelization, which destroyed or significantly altered mussel habitats. As a result, these mussels have been eliminated from extensive portions of their ranges in the Tennessee and Cumberland River Basins. Surviving populations are small and isolated from each other. Many of these isolated populations have been eliminated by local sources of pollution from mine and municipal discharges, runoff from other land use activities, or possibly from the loss of reproductive success due to small population size and inbreeding. Surviving populations of the mussels continue to be small and isolated, and are vulnerable to local pollution sources, some land use activities, and loss of genetic diversity due to small population sizes.
Q: What is a mussel?
A: Mussels, also known as shellfish, clams, bivalves, and unionids - are aquatic invertebrates that have two valves (shells) hinged together surrounding a soft, fleshy body. Freshwater mussels are related to oysters, clams, snails and squids. Mussels live in the sand and gravel bottoms of streams and rivers. Some individuals live as long as 70 years if conditions remain suitable.
Q: What is critical habitat?
A: Critical habitat is a term defined and used in the Endangered Species Act (ESA) of 1973, as amended. It refers to specific geographic areas that are essential for the conservation of a threatened or endangered species and that may require special management consideration or protection. These areas do not necessarily have to be occupied by the species at the time of designation.
Q: Why is the Service proposing critical habitat for 5 mussels?
A: When we listed these mussels in 1997, we stated that it was not prudent to designate critical habitat because it 1) would result in no known benefit to the five species and 2) could pose a further threat to the five species by publishing their site-specific localities. We are complying with a court order to make a proposed critical habitat determination and submit it to the Federal Register by May 19, 2003, for subsequent publication. This proposal reflects our interpretation of:
Q: What geographic areas are being proposed as critical habitat for the mussels?
A: We are proposing critical habitat for 13 river and stream segments (habitat units) in Alabama, Mississippi, Tennessee, Virginia, and Kentucky as critical habitat. Proposed Critical habitat for these five mussels includes: (1) a section of the Duck River in Maury and Marshall Counties, Tennessee; (2) a section of Bear Creek in Colbert County, Alabama, and Tishomingo County, Mississippi; (3) a section of the Obed River in Cumberland and Morgan Counties, Tennessee; (4) a section of the Powell River in Claiborne and Hancock Counties, Tennessee and Lee County, Virginia; (5) portions of the Clinch River drainage in Hancock County, Tennessee, and Scott, Russell and Tazewell Counties, Virginia; (6) a section of the Nolichucky River in Hamblen and Cocke Counties, Tennessee; (7) a section of Beech Creek in Hawkins County, Tennessee; (8) a section of Rock Creek in McCreary County, Kentucky; (9) portions of the Big South Fork of the Cumberland River drainage in McCreary County, Kentucky, and Scott, Fentress, and Morgan Counties, Tennessee; (10) a section of Buck Creek in Pulaski County, Kentucky; (11) a section of Sinking Creek in Laurel County, Kentucky; (12) a section of Marsh Creek in McCreary County, Kentucky, and (13) a section of Laurel Fork of the Cumberland River in Claiborne County, Tennessee, and Whitley County, Kentucky.
Q: How large of an area does the mussels' critical habitat proposal encompass?
A: The 13 critical habitat units encompass approximately 544 miles of stream and river channel, within the ordinary high water line.
Q: Why is the critical habitat designation such a broad geographic range across five States? Doesn't the ESA state that the entire range will not be designated?
A: After thorough analysis, we identified these areas as providing the best opportunities to conserve these species. This proposed designation includes only a small portion of these species' historic ranges. A large proportion of the Basins' streams and rivers that historically supported these mussels have been altered by channelization, dams and their impounded waters, or other modifications. Other areas were not considered for the proposed designation because we feel they do not contain the primary constituent elements necessary for the mussels because of degraded habitat, or because they are being considered for the reintroduction of one or more of these species through non-essential experimental population status. We believe that the 13 critical habitat units in this proposed designation include habitats that are essential for the conservation of the five mussel species.
Q: Are the mussels located outside of the designated critical habitat areas still protected?
A: Yes. Because the 5 mussels are listed species, they are protected regardless of whether they are inside or outside of an area designated as critical habitat. Also, as a listed species, the mussels are protected from "take" throughout its range regardless of whether critical habitat has been designated. "Take" is defined to include harass, harm, pursue, hunt, shoot, wound, kill, trap, or collect; or to attempt any of these. Harm is further defined in our regulations (50 CFR 7.3) to include significant habitat modification or degradation that results in death or injury to listed species by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.
Q: How did the Service determine which areas to designate as critical habitat?
A: Biologists identified the physical and/or biological habitat features needed for survival and successful reproduction of the species. These features are known as primary constituent elements and include, but are not limited to:
cover or shelter;
By law, we are required to identify sufficient areas containing these characteristics to ensure the conservation of the species.
Q: What are the primary constituent elements for the mussels?
A: Based on the best available information, primary constituent elements essential for the conservation of the 5 mussel species include:
1. Permanent, flowing stream reaches with a flow regime (pattern)(i.e, the magnitude, frequency, duration, and seasonality of discharge over time) necessary for normal behavior, growth, and survival of all life stages of the five mussels and their host fish;
2. geomorphically stable stream and river channels and banks (structurally stable stream cross section);
3. stable substrates, consisting of mud, sand, gravel, and/or cobble/boulder, with low amounts of fine sediments or attached filamentous algae;
4. water quality (including temperature, turbidity, oxygen content, and other characteristics) necessary for the normal behavior, growth, and survival of all life stages of the five mussels and their host fish; and
5. fish hosts with adequate living, spawning and foraging areas to support them.
Q: Does a critical habitat designation affect all activities that occur within the designated area?
A: No. An area designated as critical habitat is not a refuge or a sanctuary for the species. Most public uses within the designated reaches will not be affected by this critical habitat designation. Activities such as recreational boating, canoeing, swimming and commercial boat traffic, that do not involve a Federal action that may affect critical habitat, will be unaffected by the designation. Private land use activities, such as farming and silviculture, would also be unaffected. Federal activities, or actions permitted, licenced, or funded by Federal agencies, will require consultation with us if they are likely to adversely modify critical habitat. In such cases, the we will work with the Federal agency to identify alternatives where the project may proceed without adverse modification to critical habitat.
Q: What does it mean "to consult?"
A: Consultation is a process by which Federal agencies use our expertise to evaluate the potential effects of a proposed action on ESA listed species and their critical habitats. Consultation may also identify alternatives to the proposed action to avoid adverse effects on listed species and their habitats.
Q: What is the extent of the additional consultation burden to the Federal agency? To a permit applicant?
A: Federal agencies are already required to consult with us under the ESA whenever a proposed action might impact a listed species or its habitat. Thus, the designation of critical habitat will not likely increase the consultation burden to either the Federal agency or the permit applicant.
Q: Will the critical habitat designation delay Federal decisions on permits or funding?
A: Under the ESA, we have specific time frames in which to complete the consultation process with action agencies. These time frames remain the same whether or not there is critical habitat within the project area. Designation of critical habitat for the mussels notifies the Federal action agencies and the public that federally authorized and funded activities within these designated critical habitat areas must comply with section 7 consultation requirements. For each section 7 consultation, we already review the direct and indirect effects of the proposed projects on mussels, and will continue to do so for critical habitat if it is designated.
Q: What activities could adversely affect critical habitat and may require special management considerations for the mussels?
A: Activities that may affect critical habitat include, but are not limited to, the following:
Q: What does it mean to "destroy" or "adversely modify" critical habitat?
A: "Destruction or adverse modification of designated critical habitat" is defined as a direct or indirect alteration that appreciably diminishes the value of the critical habitat for both the survival and recovery of the species (50 CFR 402.02). Such alterations include, but are not limited to, adverse changes to the physical or biological features, i.e., the primary constituent elements, that were the basis for determining the habitat to be critical.
The relationship between a species' survival and its recovery has been a source of confusion to some in the past. We believe that a species' ability to recover depends on its ability to survive into the future when its recovery can be achieved; thus, the concepts of long-term survival and recovery are intricately linked. However, in the March 15, 2001, decision of the United States Court of Appeals for the Fifth Circuit (Sierra Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434) regarding our previous not prudent finding, the Court found our definition of destruction or adverse modification as currently contained in 50 CFR 402.02 to be invalid. In response to this decision, we are reviewing the regulatory definition of adverse modification.
Q: Are all areas within the proposed critical habitat boundaries for the mussels considered critical habitat?
A: In order for an area to be designated as critical habitat, the area has to contain primary constituent elements which are the physical and biological elements essential to support the life cycle needs of the species. Critical habitat does not include existing developed sites such as dams, piers, marinas, bridges, boat ramps, exposed oil and gas pipelines, and similar structures within the designated area.
Q: What specific methods were used to propose critical habitat for the mussels?
A: This proposal is based on the best scientific information available concerning the species' present and historic range, habitat, biology, and threats. The information used included known locations, the final listing rule for the mussels, recent biological surveys and reports, peer-reviewed literature, our agency draft recovery plan, and discussions and recommendations from mussels experts.
Q: What is the impact of designating critical habitat on private lands and private landowners?
A: The designation of critical habitat on private land will have no impact on private landowner activities that do not require Federal funding or permits. The designation of critical habitat is only applicable to Federal activities.
Q: Do listed species in critical habitat areas receive more protection?
A: Species that are listed as endangered or threatened are protected regardless of whether they are inside or outside of an area designated as critical habitat.
Q: Must Federal agencies consult with the Service even where critical habitat has not been designated?
A: Even when there is no critical habitat designation, Federal agencies must consult with us on actions that may affect listed species, in order to ensure that any action they carry out, fund or authorize is not likely to jeopardize a listed species' continued existence. Where critical habitat is designated, a consultation also ensures that the critical habitat is not destroyed or adversely modified.
Q: Does the ESA consider economic consequences as a part of designating critical habitat?
A: Yes. Unlike ESA listing decisions, we must take into account the economic impact, as well as any other relevant impacts, of specifying any particular area as critical habitat. We may exclude any area from critical habitat if we determine that the benefits of excluding it outweigh the benefits of specifying the area as a part of critical habitat, unless we determine that the failure to designate the area as critical habitat will result in the extinction of the species. We are preparing a draft analysis of the economic impacts of designating these areas as critical habitat, which will be made available for public inspection.
Q: What are the recovery goals for the mussels?
A: These five mussels, which once had broad and healthy distributions, are now found in only a handful of stream and river reaches in population sizes of questionable long-term viability. An agency draft recovery plan for the 5 mussels has been released and disseminated to state and federal agencies, universities, public officials, non-governmental organizations, and knowledgeable individuals for review and comment on all aspects of the plan. The draft plan recognizes the problems posed by habitat destruction and fragmentation, but also acknowledges that we lack crucial information on specific habitat and life history requirements of these species, or on the physical threats that confront them (e.g., sediment, nutrient, and other pollutant sensitivities, etc.). Threats compounded by habitat fragmentation and isolation can be reduced by increasing the number, expanding the range, and increasing the density of populations. Therefore, the draft plan emphasizes protection of existing populations and their currently occupied habitats, enhancement and restoration of habitats, and population management, including augmentation and the reintroduction of the species into portions of their historic ranges through non-essential experimental population status, as measures to secure the species status from deterioration and extinction.
Q: How many species have critical habitat designations?
A: We have designated critical habitat for 400 of the 1,260 U.S. species federally listed as threatened or endangered. In the Tennessee and Cumberland River Basins, critical habitat has been designated in the Powell and Clinch River systems, Claiborne, Grainger, and Hancock Counties, Tennessee, and Lee and Scott Counties, Virginia (yellowfin madtom and the slender chub); in the Holston River System, Hawkins and Sullivan Counties, Tennessee, and Scott and Washington Counties, Virginia (spotfin chub); in the Nolichucky River, Unicoi County, Tennessee (Appalachian elktoe); in the Emory-Obed River System in Cumberland, Morgan, and Fentress Counties, (spotfin chub); in the Little Tennessee River in Macon and Swain Counties, North Carolina (spotfin chub); in Citico Creek, Monroe County, Tennessee (smoky madtom); in the Cypress Creek drainage in Wayne County, Tennessee (slackwater darter); and in the Buffalo River drainage in Lawrence County, Tennessee (slackwater darter).
Q: What type of comments is the Service seeking?
A: We intend that any final action resulting from this proposal be as accurate and as effective as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule. We are particularly interested in comments concerning:
(1) The reasons why any area should or should not be determined to be critical habitat as provided by section 4 of the Act and 50 CFR 424.12(a)(1), including whether the benefits of designation will outweigh any threats to the species due to designation,
(2) Specific information on the number and distribution of the 5 mussel species and what habitat is essential to the conservation of these species and why,
(3) Whether areas within proposed critical habitat are currently being managed to address conservation needs of the mussels,
(4) Current or planned activities in the subject areas and their possible impacts on proposed critical habitat,
(5) Any foreseeable economic or other impacts resulting from the proposed designation of critical habitat, in particular, any impacts on small entities or families,
(6) Economic and other values associated with designating critical habitat for the mussels, such as those derived from non-consumptive uses (e.g., hiking, camping, wildlife-watching, enhanced watershed protection, improved air quality, increased soil retention, "existence values" and reductions in administrative costs).
Q: How can you submit comments on the proposed rule?
A: The Service will consider comments and information received by September 3, 2003. Written comments and information should be mailed, faxed, or delivered in person to U.S. Fish and Wildlife Service, Attn: Rob Tawes, 446 Neal Street, Cookeville, TN 38501; Fax: 931/528-7075, or sent by electronic mail to robert_tawes@fws.gov All comments received during the comment period, both written and presented at public hearings, will receive equal consideration.
Q: Who should you contact for more information?
A: Rob Tawes by telephone at 931/528-6481 x213, via email at robert_tawes@fws.gov, or by mail at U.S. Fish and Wildlife Service, Tennessee Field Office, 446 Neal Street, Cookeville, TN 38501.