[Federal Register: October 6, 2010 (Volume 75, Number 193)]
[Proposed Rules]
[Page 61664-61690]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06oc10-26]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2008-0107]
[92210 1111 0000-B2]
RIN 1018-AV88
Endangered and Threatened Wildlife and Plants; Endangered Status
for the Altamaha Spinymussel and Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service, propose to list the
Altamaha spinymussel (Elliptio spinosa), a freshwater mussel endemic to
the Altamaha River drainage of southeastern Georgia, as an endangered
species under the Endangered Species Act of 1973, as amended (Act), and
to designate approximately 240 kilometers (149 miles) of mainstem river
channel as critical habitat in Appling, Ben Hill, Coffee, Jeff Davis,
Long, Montgomery, Tattnall, Telfair, Toombs, Wayne, and Wheeler
Counties, Georgia. This proposed rule, if made final, would implement
the Federal protections provided by the Act.
DATES: We will consider comments received or postmarked on or before
December 6, 2010. We must receive requests for public hearings, in
writing, at the address shown in the FOR FURTHER INFORMATION CONTACT
section by November 22, 2010.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments on Docket no. FWS-R4-
ES-2008-0107.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-R4-ES-2008-0107; Division of Policy and Directives
Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
[[Page 61665]]
We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Public Comments section below for more information).
FOR FURTHER INFORMATION CONTACT: Sandra Tucker, Field Supervisor, U.S.
Fish and Wildlife Service, Georgia Ecological Services Office, 105
Westpark Dr., Suite D, Athens, GA 30606; telephone 706-613-9493;
facsimile 706-613-6059. If you use a telecommunications device for the
deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-
877-8339.
SUPPLEMENTARY INFORMATION: This document consists of: (1) A proposed
rule to list the Altamaha spinymussel (Elliptio spinosa) as endangered;
and (2) a proposed critical habitat designation for this species.
Previous Federal Action
The Altamaha spinymussel was first identified as a candidate for
protection under the Act in the May 22, 1984, Federal Register (49 FR
21664). As a candidate, it was assigned a status category 2
designation, which was given to those species with some evidence of
vulnerability, but for which additional biological information was
needed to support a proposed rule to list as endangered or threatened.
In our Notices of Review dated January 6, 1989 (54 FR 554), November
21, 1991 (56 FR 58804), and November 15, 1994 (59 FR 58982), we
retained a status category 2 designation for this species. We
discontinued assigning categories to candidate species in our Notice of
Review dated February 28, 1996 (61 FR 7596), and only species for which
the U.S. Fish and Wildlife Service (Service) had sufficient information
on biological vulnerability and threats to support issuance of a
proposed rule were regarded as candidate species.
On June 13, 2002, we listed the Altamaha spinymussel in the Federal
Register (67 FR 40657) as a candidate species with a listing priority
number (LPN) of 5. Candidate species are assigned LPNs based on
immediacy and the magnitude of threat, as well as their taxonomic
status. The lower the LPN, the higher priority that species is for us
to determine appropriate action using our available resources. In our
Notices of Review dated May 4, 2004 (69 FR 24876), and May 11, 2005 (70
FR 24870), we determined that publication of a proposed rule to list
the species was precluded by our work on higher priority listing
actions and retained a LPN of 5 for this species, in accordance with
our priority guidance published on September 21, 1983 (48 FR 43098).
On September 12, 2006 (71 FR 53755), we changed the species' LPN
from 5 to 2. Recent data suggesting declines from surveys conducted in
the early 1990s and information on a new threat from deadhead logging
justified the change in LPN. An LPN of 2 reflects threats that are both
imminent and high in magnitude, as well as the taxonomic classification
of the Altamaha spinymussel as a full species. We have retained an LPN
of 2 in subsequent Notices of Review (72 FR 69033, December 6, 2007; 73
FR 75175, December 10, 2008; 74 FR 57803, November 9, 2009).
Public Comments
We intend that any final action resulting from this proposal will
be based on the best scientific and commercial data available and be as
accurate and as effective as possible. Therefore, we request comments
or information from the public, other concerned governmental agencies,
the scientific community, industry, or any other interested party
concerning this proposed rule. We particularly seek comments
concerning:
(1) The factors that are the basis for making a listing
determination for a species under section 4(a) of the Endangered
Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), which
are:
(a) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(b) Overutilization for commercial, recreational, scientific, or
educational purposes;
(c) Disease or predation;
(d) The inadequacy of existing regulatory mechanisms; or
(e) Other natural or manmade factors affecting its continued
existence.
(2) Additional information concerning the range, distribution, and
population size of this species, including the locations of any
additional populations of this species.
(3) Any information on the biological or ecological requirements of
the species.
(4) Land use designations and current or planned activities,
including deadhead logging, in the areas occupied by the species and
possible impacts of these activities on this species.
(5) Which areas would be appropriate as critical habitat for the
species.
(6) The reasons why areas should or should not be designated as
critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 et
seq.).
(7) Comments or information that may assist us in identifying or
clarifying the primary constituent elements.
(8) Specific information on
(a) The amount and distribution of Altamaha spinymussel habitat,
(b) What areas occupied at the time of listing (i.e., currently
occupied) and that contain features essential to the conservation of
the species which may require special management considerations or
protection we should include in the designation and why, and
(c) What areas not occupied at the time of listing are essential
for the conservation of the species and why.
(9) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, in particular, any impacts to small entities, and the
benefits of including or excluding areas that exhibit these impacts.
(10) Whether any specific areas we are proposing as critical
habitat should be considered for exclusion under section 4(b)(2) of the
Act, and whether benefits of potentially excluding any specific area
outweigh the benefits of including that area under section 4(b)(2) of
the Act.
(11) Information on any quantifiable economic costs of the proposed
designation.
(12) Information on the projected and reasonably likely impacts of
climate change on the Altamaha spinymussel, and any special management
needs or protections that may be needed in critical habitat areas we
are proposing.
(13) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in the ADDRESSES section. We will not
accept comments sent by e-mail or fax or to an address not listed in
the ADDRESSES section.
We will post your entire comment--including your personal
identifying information--on http://www.regulations.gov. If your written
comments provide personal identifying information, you may request at
the top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection
[[Page 61666]]
on http://www.regulations.gov, or by appointment, during normal
business hours, at the U.S. Fish and Wildlife Service, Georgia
Ecological Services Office, Athens, Georgia (see FOR FURTHER
INFORMATION CONTACT).
Background
Species Description
The Altamaha spinymussel (Elliptio spinosa) is a freshwater mussel,
in the family Unionidae, endemic to the Altamaha River drainage of
southeastern Georgia. The Altamaha River is formed by the confluence of
the Ocmulgee and Oconee rivers and lies entirely within the State of
Georgia. The species was described by I. Lea in 1836 from a site near
the mouth of the Altamaha River in Darien, Georgia (Johnson 1970, p.
303).
This species reaches a shell length of approximately 11.0
centimeters (cm) (4.3 inches (in)). The shell is subrhomboidal or
subtriangular in outline and moderately inflated. As the name implies,
the shells of these animals are adorned with one to five prominent
spines. These spines may by straight or crooked, reach lengths from 1.0
to 2.5 cm (0.39 to 0.98 in), and are arranged in a single row that is
somewhat parallel to the posterior ridge. In young specimens, the
outside layer or covering of the shell (periostracum) is greenish-
yellow with faint greenish rays, but as the animals get older, they
typically become a deep brown, although some raying may still be
evident in older individuals. The interior layer of the shell (nacre)
is pink or purplish (Johnson 1970, p. 303).
Life History and Habitat
Adult freshwater mussels are filter-feeders, siphoning
phytoplankton, diatoms, and other microorganisms from the water column.
For the first several months, juvenile mussels employ pedal (foot)
feeding, extracting bacteria, algae, and detritus from the sediment
(Yeager et al. 1994, pp. 217-221; Wisniewski 2008, pers. comm.).
Although the life history of the Altamaha spinymussel has not been
studied, the life histories of other mussels in the Elliptio genus have
been. Fertilization takes place internally, resulting in the release of
parasitic larvae, termed glochidia. To ensure survival, glochidia must
come into contact with a specific host fish(es) to develop into
juvenile mussels. Other mussels in the genus Elliptio attract host
fishes with visual cues, luring fish into perceiving that their
glochidia are prey items (The Nature Conservancy (TNC) 2004, p. 4).
This reproductive strategy depends on clear water during the time of
the year when mussels release their glochidia (Hartfield and Hartfield
1996, p. 375). The Altamaha spinymussel is thought to reproduce in late
spring and ready to release glochidia by May or June (Johnson 2009, p.
2). The host fish of the Altamaha spinymussel is currently unknown.
Furthermore, juvenile age classes of other mussels are commonly found
during surveys; however, no spinymussel recruitment has been evident in
surveys conducted since 1990 (Keferl 2008, pers. comm.; Wisniewski
2008, pers. comm.). Research to develop a better understanding of the
natural history and the reasons for a lack of recruitment in the
species is continuing.
This spinymussel is known only from Georgia in Glynn, Ben Hill,
McIntosh, Telfair, Tattnall, Long, Montgomery, Toombs, Wheeler,
Appling, Jeff Davis, Coffee, and Wayne Counties. This spinymussel is
considered a ``big river'' species; is associated with stable, coarse
to fine sandy sediments of sandbars, sloughs, and mid-channel islands;
and appears to be restricted to swiftly flowing water (Sickel 1980, p.
12). Johnson (1970, p. 303) reported Altamaha spinymussels buried
approximately 5.1 to 10.2 cm (2.0 to 4.0 in) below the substrate
surface.
Species Distribution and Status
The historical range of the Altamaha spinymussel was restricted to
the Coastal Plain portion of the Altamaha River and the lower portions
of its three major tributaries, the Ohoopee, Ocmulgee, and Oconee
Rivers (Johnson 1970, p. 303; Keferl 2001, pers. comm.). Large-scale,
targeted surveys for the mussel have been conducted since the 1960s
(Keferl 1993, p. 299). Recent surveys have revealed a dramatic decline
in recruitment, the number of populations, and number of individuals
within populations throughout the species' historic range.
Ohoopee River
In a survey of the Ohoopee River, Keferl (1981, pp. 12-14) found at
least 30 live specimens of the Altamaha spinymussel at seven of eight
collection sites, in thinly scattered beds, in the lower 8 kilometers
(km) (5 miles(mi)) of the river. By the early 1990s, however, only two
live specimens were found at the same sites (Keferl 1995, pp. 3-6;
Keferl 2008 pers. comm.; Wisniewski 2006, pers. comm.). Stringfellow
and Gagnon (2001, pp. 1-2) resurveyed these sites using techniques
similar to those used by Keferl (1981, p. 12), but they did not find
any live Altamaha spinymussels in the Ohoopee River. Therefore, it is
currently either extirpated from the system or present in such low
numbers that it is undetectable.
Ocmulgee River
The Altamaha spinymussel is known from the Ocmulgee River from its
confluence with the Oconee River upstream to Red Bluff in Ben Hill
County. Early collecting efforts in the Ocmulgee River near Lumber City
yielded many live Altamaha spinymussels. In 1962, Athearn made a single
collection of 40 live spinymussels downstream of U.S. Highway 341 near
Lumber City (Johnson et al. 2008, Athearn database). Researchers
collected 19 and 21 live individuals, respectively, during two surveys
at Red Bluff (Thomas and Scott 1965, p. 67). In 1986, Stansbery
collected 11 live individuals at the U.S. Highway 441 Bridge near
Jacksonville, Georgia (Wisniewski 2006, pers. comm.).
The lower Ocmulgee River was surveyed by Keferl in the mid 1990s,
during 2000-2001 (Cammack et al. 2001, p. 11; O'Brien 2002, p. 2), and
in 2004 (Dinkins 2004, pp. 1-1 and 2-1). Over 90 sites have been
surveyed since 1993, many of which were repeatedly surveyed, resulting
in a total of 19 live Altamaha spinymussels detected at 10 sites,
distributed from Jacksonville downstream to the Oconee River
confluence.
Oconee River
There are few historical records of Altamaha spinymussels from the
Oconee River. Athearn collected 18 spinymussels, including 5 juveniles,
at a site in Montgomery County near Glenwood in the late 1960s (Johnson
2008, Athearn database). The species has not been collected there since
and is probably extirpated from the Oconee River system (Keferl 2008,
pers. comm.). In 1995, as part of a dam relicensing study, 41 sites
between Lake Sinclair and Dublin were surveyed (EA Engineering 1995,
pp. 1-1, 3-1, 3-2, 4-2, and 4-3). One hundred forty-four hours of
search time yielded 118 live mussels, but no Altamaha spinymussels.
Compared to the other portions of its range, the Oconee River has not
been extensively surveyed, in part because the entire mussel fauna of
this river appears to be sparse.
Altamaha River
Most surveys for Altamaha spinymussels have been conducted in the
Altamaha River. Although methodological differences preclude accurate
comparison of mussel abundances over time, there is evidence that
historically higher abundances of
[[Page 61667]]
Altamaha spinymussels occurred in the Altamaha River. Early surveys at
the U.S. Route 301 crossing documented 20 individuals in 1963, 7 in
1965, and 43 in 1970. Sickel sampled seven sites downstream of the U.S.
1 bridge in 1967. Sixty spinymussels were collected in one 500-square
meters (m\2\) (5382-square feet (ft\2\)) site and an additional 21
spinymussels were collected in a 400-m\2\ (4306-ft\2\) (Sickel 1967, p.
11; Wisniewski 2006, pers. comm.) site. One site had five live
spinymussels, two sites had one each, and two sites had no Altamaha
spinymussels.
From 1993 to 1996, Keferl surveyed 164 sites on the mainstem of the
Altamaha River between the Ocmulgee-Oconee River confluence and the
Interstate 95 crossing near the river's mouth. A total of 63 live
Altamaha spinymussels were collected from 18 of these sites, located
between the Oconee River and U.S. Route 301; however, no Altamaha
spinymussels were collected below U.S. Route 301, suggesting absence or
extreme rarity in the reach between U.S. Route 301 and the river's
mouth (approximately 73 km (45 mi)). In addition, 10 of these sites
were clustered within a 4-km (2-mi) reach upstream of the U.S. Route
301 crossing near Jesup; the remaining eight sites were isolated by
long distances of habitat with no or sub-detectable numbers of live
spinymussels.
O'Brien (2002, pp. 3-4) surveyed 30 sites on the Altamaha River
from the confluence of the Ocmulgee and Oconee Rivers downstream to
U.S. Route 301 during 2001, including the 18 known Altamaha spinymussel
sites, reported by Keferl, within the reach. She collected a total of
six live individuals from five different sites and freshly dead shells
from two additional sites.
In 2003 and 2004, 25 sites were surveyed to collect specimens for
host-fish trials (Albanese 2005, pers. comm.). Live Altamaha
spinymussels were detected at only four sites. Five of the seven sites
documented by O'Brien and all four sites documented during the host-
fish surveys were clustered within a short reach of the Altamaha River
just upstream of the U.S. Route 301 crossing near Jesup, Georgia.
To summarize, researchers were able to find 60 Altamaha
spinymussels at a single site on the Altamaha River in 1967; in
contrast, the largest number of Altamaha spinymussels observed from a
single site on the Altamaha River during the 1990s or 2000s was nine
(Albanese 2005, pers. comm.).
Summary of Basin-wide Population Estimates
In 1994, researchers spent 128 search-hours throughout the Altamaha
Basin to find 41 spinymussels (Keferl 1995, p. 3). From 1997 through
2006, researchers searched 233 sites throughout the basin to document
34 spinymussels in more than 550 hours of searching (Wisniewski 2006,
pers. comm.); from 2007 to 2009, only 23 spinymussels were found from
more than 110 sites (Wisniewski 2009, pers. comm.). In summary, the
Altamaha spinymussel is considered extirpated from two rivers in its
historical range, the Ohoopee (15 km (9 mi)) and Oconee Rivers (45 km
(28 mi)), as well as the lower 73 km (45 mi) of the Altamaha River
(Table 1). Since 1997, despite extensive survey efforts made by several
different researchers, only 57 spinymussels have been observed from 7
sites in the Ocmulgee (110 km (68 mi)) and 15 sites in the upper
Altamaha (116 km (72 mi)) combined, and while individual spinymussels
have been found scattered throughout this stretch of river, most of
these sites have been clustered in the 10 km (6 mi) immediately north
of the U.S. Route 301 crossing.
TABLE 1. Decline in range of the Altamaha spinymussel.
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Percent of
River Reach Historically Occupied Current habitat range
(linear km/mi) decline
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Ohoopee 15km/9mi Not seen since 1997 4%
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Oconee 45km/28mi Not seen since 1968 12.5%
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Ocmulgee 110km/68.3mi Widely scattered 0
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Upper Altamaha 116km/72mi Widely scattered 0
individuals
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Lower Altamaha 73km/45mi Not seen since 1970 20%
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Total 359km/222 mi 226km/140 mi 36.5%
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Using GDNR's database, which included many of the surveys mentioned
above, Wisniewski et al. (2005, p. 2) conducted a test for a temporal
change in sites occupied in the Ocmulgee and Altamaha Rivers between
the early 1990s and the early 2000s. Live Altamaha spinymussels were
detected at 24 of 241 sites (10 percent) sampled before 2000 and at 14
of 120 sites (12 percent) sampled after 2000. Although the percentage
of sites occupied is not indicative of a decline, an analysis of 39
sites sampled during both time periods, of which the spinymussel was
initially present in 13 of the 39 sites, indicated that the spinymussel
was lost from significantly more sites (11 sites) than it colonized (3
sites) between the early 1990s and early 2000s (Wisniewski et al. 2005,
p. 2). This test is imprecise because the failure to detect Altamaha
spinymussels when present could result in both false colonizations
(species missed during early surveys but detected in recent survey) and
false extirpations (species detected during early survey but missed
during recent survey). Thus, although the exact number of extirpations
and colonizations between the two time periods may not be accurate, the
much higher number of extirpations is suggestive of a decline over this
time period.
Summary of Factors Affecting the Species
Section 4 of the Act and its implementing regulations (50 CFR part
424) set forth the procedures for adding species to the Federal Lists
of Endangered and Threatened Wildlife and Plants. A species may be
determined to be an endangered or threatened species due to one or more
of the five factors described in section 4(a)(1) of the Act. The five
listing factors are: (A) The present or threatened destruction,
modification, or
[[Page 61668]]
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; and (E) other natural or manmade factors affecting its
continued existence.
A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range
Bogan (1993, pp. 599-600 and 603-605) linked the decline and
extinction of bivalves to a wide variety of threats including
siltation, industrial pollution, municipal effluents, modification of
stream channels, impoundments, pesticides, heavy metals, invasive
species, and the loss of host fish. The Altamaha spinymussel lives
within a large river drainage exposed to a variety of landscape uses.
Habitat and water quality for the Altamaha spinymussel face degradation
from a number of sources. Primary among these are threats from
sedimentation and contaminants within the streams that the spinymussel
inhabits.
Sickel (1980, p. 12) characterized the habitat of the Altamaha
spinymussel as course to fine grain sandbars and suggested that this
may make the Altamaha spinymussel susceptible to adverse effects from
sediment (siltation). Sediments deposited on the stable sandbars
required by the Altamaha spinymussel could make sandbars unstable,
suffocate Altamaha spinymussels, or simply change the texture of the
substrate, making them unsuitable for the species. Sedimentation,
including siltation from surface runoff, has been implicated as a
factor in water quality impairment in the United States and has
contributed to the decline of mussel populations in streams throughout
the country (Ellis 1936, pp. 39-41; Coon et al. 1977, p. 284; Marking
and Bills 1979, pp. 209-210; Wilber 1983, pp. 25-57; Dennis 1984, pp.
207-212; Aldridge et al. 1987, pp. 25-26; Schuster et al. 1989, p. 84;
Wolcott and Neves 1991, pp. 1-6; Houp 1993, p. 96; Bogan 1993, pp. 603-
605; Waters 1995, pp. 53-77; Richter et al. 1997, p. 1084).
Specific impacts on mussels from sediments include reduced feeding
and respiratory efficiency, disrupted metabolic processes, reduced
growth rates, increased substrata instability, and the physical
smothering of mussels (Ellis 1936, pp. 39-41; Stansbery 1970, p. 10;
Markings and Bills 1979, pp. 209-210; Kat 1982, p. 124; Aldridge et al.
1987, pp. 25-26; Hartfield and Hartfield 1996, p. 375; Brim Box and
Mossa 1999, pp. 99-102; TNC 2004, p. 4). Many southeastern streams have
increased turbidity levels due to siltation (van der Schalie 1938, p.
56). Since turbidity is a limiting factor that impedes the ability of
sight-feeding fishes to forage (Burkhead and Jenkins 1991, pp. 324-
325), turbidity within the Altamaha River basin during the times that
Altamaha spinymussels attempt to attract host fishes may have
contributed and may continue to contribute to the decline of the
spinymussel by reducing its efficiency at attracting the fish hosts
necessary for reproduction. In addition, sediment can eliminate or
reduce the recruitment of juvenile mussels (Brim Box and Mossa 1999,
pp. 101-102), interfere with feeding activity (Dennis 1984, pp. 207-
212), and act as a vector in delivering contaminants to streams
(Salomons et al. 1987, p. 28).
From 1700 to 1970, agriculture practices in the Southern Piedmont
physiographic province resulted in extreme soil erosion, removing more
than 17.8 cm (7 in.) of soil across the landscape (Trimble 1974, p. 1).
The Ocmulgee, Oconee, and Ohoopee rivers all drain through the Piedmont
and were directly affected by the sediment. In 1938, van der Schalie
(p. 56) reported the Altamaha River to be a yellow color due to the
large amount of suspended silt originating from intensive farming and
road construction occurring in the headwaters. The sediment from this
practice has moved into stream channels and valleys and has covered
most of the original bottomlands (Trimble 1974, p. 26). As a result,
stream profiles have been dramatically altered with unstable sediment
deposits being dissected and streams being incised with entrained
sediment migrating downstream to be deposited in stream channels and
floodplains (Trimble 1974, pp. 116-121). GDNR, Environmental Protection
Division (EPD 2007, p. iii) reported to the U.S. Environmental
Protection Agency (EPA) that approximately 74.9 percent of the average
sediment load in the Altamaha River Basin resulted from row crops and
that it contributed an average sediment load of 1.07 tons per acre per
year. EPD concluded that this sediment is probably a legacy of past
land use. Although it is the historical, anthropogenic land use that
created the sediment, the volume of sediment still migrating through
the Altamaha River Basin is a significant threat to the spinymussel.
Studies of fish population were conducted in 2000 by the GDNR
Wildlife Resources Division (WRD) in the Altamaha River Basin. The
Index of Biotic Integrity (IBI) and modified Index of Well-Being (IWB)
were used by WRD to identify impaired fish populations. Using the IBI
and IWB values to classify the populations as Excellent, Good, Fair,
Poor, or Very Poor, stream segments with fish populations rated as Poor
or Very Poor were listed as Biota Impacted. A lack of fish habitat due
to stream sedimentation was generally the cause of a low IBI score.
Five Mile Creek (14.5 km/9 mi), Bullard Creek (12.8 km/8 mi), and
Jacks Creek (14.5 km/9 mi) were rated as Very Poor and placed on the
State of Georgia's 303(d) list of impaired waters due to a significant
impact on fish (EPD 2007a, pp. 1-2). These three streams eventually
feed into the mainstem of the Altamaha River via larger channels. As
this sediment moves through the basin, habitat is periodically buried.
WRD recommends that there be no net increase in sediment delivered to
the impaired stream segments so that these streams will recover over
time (EPD 2007a, p. 26). Agriculture and roads were the major sources
of sediment with silviculture, mining sites, grazing, and urban
development also contributing nonpoint sources of sediment (EPD 2007a,
p. 9). Agriculture, including row crops, poultry farms, and pastures,
constitute 15.5 percent of the land cover in the Piedmont and 32.7
percent of the land cover in the Coastal Plain (GDNR 2005, pp. 97 and
132).
In addition to agriculture, there are numerous sources of sediment
within the Altamaha River Basin, including silviculture, unpaved roads,
kaolin mines, and construction sites. A threat assessment conducted by
TNC (2004, p. 9) listed sediment from urban, industrial, and nonpoint
sources (NPSs) as a threat to the spinymussel. EPD (2007, p. v)
reported that while historical row crop-based land use contributes the
majority of sediment in the Altamaha River (75 percent) that among
other sources, approximately 17.3 percent of the total sediment load is
from roads; 4.3 percent from grasses and wetlands; 1.5 percent from
urban lands; and 1.0 percent from quarries, strip mines, and gravel
pits. In addition, estimates of the contribution from construction
could not be obtained, but could represent a comparatively high
sediment load on a per acre basis (EPD 2007, p. v).
Industrial forest management is practiced on approximately 8,000
hectares (40,000 acres) or 33 percent of the floodplain of the Altamaha
River (TNC 1997, p. 19). Typical forest management regimes in the
Altamaha River Basin use timber harvest methods and conduct other
activities that result in ground disturbances. These ground
disturbances can result in transport of
[[Page 61669]]
sediment to streams during and after precipitation events. In addition,
forest management operations often require miles of unpaved roads to
extract timber and to provide access for management activities. The
majority of sediment from forestry occurs from roads and site
preparation activities (EPD 2007a, p. 11). These roads, in conjunction
with existing unpaved county roads that are prevalent throughout the
Altamaha River Basin, contribute to sediment loading in streams after
precipitation events. Through an agreement with EPD, the Georgia
Forestry Commission (GFC) is responsible for implementing the use of
Best Management Practices (BMPs) to reduce erosion and sediment from
activities related to forestry such as timber harvest, haul road
construction, stream crossings, stream side management zones, site
preparation and reforestation. However, the Erosion and Sediment
Control Act (O.C.G.A. 12-7-1) exempts commercial forestry activities
from the need to acquire permits and meet the minimum requirements of
that act (Georgia's BMPs for Forestry 2009, p. 64). Therefore,
compliance with BMPs is voluntary and is dependent on education about
BMPs to reduce sediment from reaching the Altamaha River (EPD 2007a, p.
28).
Furthermore, a number of kaolin mines are located along the Fall
Line, a geologic land form that separates the Piedmont and Coastal
Plain physiographic provinces, within the Oconee and Ocmulgee river
basins. The operation of these mines and their supporting
infrastructure, including haul roads and settling ponds, have the
potential to increase downstream sediment loads if adequate erosion
control measures are not maintained to stabilize areas subjected to
mining-associated ground disturbances (Lasier 2004, p. 139).
In addition, sediment can act as a vector in delivering
contaminants (such as heavy metals, ammonia, chlorine, numerous organic
compounds) to streams (Salomons et al. 1987, p. 28; TNC 2004, pp. 9).
Because spinymussels are filter-feeders and bury themselves in the
substrate, they are exposed to metals dissolved in water, contained
within suspended particles, and deposited in bottom substrates (Naimo
1995, p. 341). Contaminants contained in point and nonpoint discharges
can degrade water and substrate quality and adversely impact, if not
destroy, mussel populations (Horne and McIntosh 1979, pp. 127-132;
McCann and Neves 1992, pp. 80-87; Havlik and Marking 1987, p. 14).
Contaminants associated with industrial and municipal effluents may
cause decreased oxygen, increased acidity, and other water chemistry
changes that may be lethal to mussels, particularly during the highly
sensitive early life stages (Sheehan et al. 1989, pp. 139-140; Keller
and Zam 1991, pp. 541-543; Bogan 1993, pp. 603-604; Goudreau et al.
1993, pp. 216-227; TNC 2004, pp. 8-9). Exposure to sublethal levels of
toxic metals can alter growth, filtration efficiency, enzyme activity,
and behavior (Naimo 1995, pp. 341, 354). In laboratory experiments,
mussels suffered mortality when exposed to 2.0 parts per million (ppm)
cadmium, 5.0 ppm ammonia, 12.4 ppm chromium, 16 ppm arsenic trioxide,
19 ppm copper, and 66 ppm zinc; however, effects depend upon the length
of exposure and mussel life stage (Havlik and Marking 1987, p. 1). The
adults of certain species may tolerate short-term exposure (Keller
1993, p. 701), but low levels of some metals may inhibit glochidial
attachment in others (Huebner and Pynnonen 1992, p. 2353; Jacobson et
al. 1993, pp. 881-882). Mussel recruitment may be reduced in habitats
with low but chronic heavy metal and other toxicant inputs (Yeager et
al. 1994, p. 217; Naimo 1995, pp. 347 and 351-352; Ahlstedt and
Tuberville 1997, p. 75). Researchers found that several heavy metals
were found to have toxic effects at different levels and duration of
exposure; however, no toxicity studies have been conducted specifically
on the Altamaha spinymussel (Havlik and Marking 1987, p. 3; Naimo 1995,
p. 341; Keller and Lydy 1997, p. 4). Furthermore, differences between
laboratory and field conditions make it difficult to predict how
contaminants affect wild populations (Wisniewski 2008, pers. comm.).
From 2000 to 2008, many stream segments in the Altamaha Basin have
been listed on the State's 303(d) list of impaired waters for a variety
of reasons. Once a stream segment is listed as impaired, the State must
complete a plan to address the issue causing the impairment; this plan
is call a Total Maximum Daily Load (TMDL). Completion of the plan is
generally all that is required to remove the stream segment from the
303(d) list and does not mean that water quality has changed. Once the
TMDL is completed, the stream segment may be placed on the 305(b) list
of impaired streams with a completed TMDL. Many of these stream
segments have appeared repeatedly on the 303(d) list. The Ohoopee River
and Little Ohoopee River have been listed on nearly every report for
almost every violation. Other stream segments that have repeatedly
showed up on the 303(d) list from 2000 until 2008 include Big Cedar
Creek, Doctors Creek, Jacks Creek, Milligan Creek, Oconee Creek,
Pendleton Creek, Rocky Creek, Sardis Creek, Swift Creek, Tiger Creek,
and Yam Gandy Creek. This demonstrates a chronic threat, from multiple
sources of pollution, scattered across the basin.
In 2000, the Altamaha River was listed on the 303(d) list of
impaired waters due to excessive mercury levels in fish tissue. In
2002, the EPA Region 4 established a TMDL for mercury levels for the
Altamaha River from its confluence of the Oconee and Ocmulgee Rivers to
Penholoway Creek (149.5 km/92.9 mi) including Appling, Jeff Davis,
Long, Tattnall, Tombs, and Wayne Counties. This river segment is
entirely within the current or historic range of the spinymussel with
four National Pollutant Discharge Elimination System (NPDES) permitted
facilities, including:
Rayonier Inc.-Jesup (67 million gallons per day (MGD));
Plant Hatch (43.4 MGD);
Jesup Water Pollution Control Plant (WPCP) (2.5 MGD); and
Glennville WPCP (0.88 MGD) (EPA 2002a, pp. 1-5).
This 149.5 km (92.9 mi) segment of the Altamaha River, from the
confluence of the Oconee and Ocmulgee Rivers to Penholloway Creek, was
removed from the 303(d) list in 2002; it is currently listed as a
stream supporting its designated use (fishing).
In 2000, EPD added 23 stream segments, totaling 411.9 km (256 mi),
to the 303(d) list for not meeting dissolved oxygen standards (EPD
2002, p. 1). All of these segments are within tributaries to the
Altamaha River within the range of the spinymussel. Between 2000-2001,
there were nine NPDES permitted discharges with effluent limits for
oxygen consuming substances identified in the Altamaha River Basin
watershed above the 23 stream segments listed (EPD 2002, p. 11).
Nonpoint source run-off from natural sources contributed oxygen-
demanding pollutants (EPD 2002, p. 12). Upon completion of a TMDL in
2002, these river segments were removed from the 303(d) list.
In 2006, EPD listed 18 stream segments totaling 280 km (174 mi) as
impaired due to fecal coliform bacteria in excess of water quality
standards (EPD 2007c, pp. 1-2). All of these stream segments are
tributaries to the Altamaha River within the current or historic range
of the species. Between 2005-2006, there were 10 municipal wastewater
treatment plants that discharged more than 0.1 MGD, along with four
confined animal feed operations that were considered sources
[[Page 61670]]
of fecal coliform. Nonpoint sources include wildlife, livestock
grazing, livestock access to streams, application of manure to
pastureland and cropland, leaking sanitary sewer lines, leaking septic
systems, land application systems (6 in the basin), and landfills (43
in the basin) (EPD 2007c, pp. 10-16). Even after the completion of the
TMDL, six of these stream segments remain on the 303(d) list.
In 2008, EPD listed 362 stream miles of tributaries to the Altamaha
River to the 305(b)/303(d) list of impaired waters, and all of these
stream segments have completed TMDLs (EPD 2008 pp A-130 - A134). The
draft 2010 305(b)/303(d) list of impaired waters for the Altamaha River
included all of the stream segments from the 2008 list and added an
additional 48 km (30 mi). These are all tributaries to the Altamaha or
Ohoopee Rivers within the current or historic range of the Altamaha
spinymussel. These stream segments are listed as impaired for a variety
of reasons (e.g., dissolved oxygen, fecal coliform, and mercury levels
within fish tissue). All of these river segments, such as the Ohoopee
River (including the historic range of the spinymussel), have TMDLs but
are still considered impaired.
More than 161 km (100 mi) of the Ohoopee River and its tributaries
were added to the 303(d) list in 2000 due to excessive mercury levels
in fish tissue. The primary source of mercury is believed to be
deposition of atmospheric mercury. During 1998-1999, there were seven
municipal wastewater treatment facilities (EPA 2002b, pp. 1-3) and as
many as 170 sources of air emissions in the watershed (EPA 2002b, p.
18). These sources of mercury impacted all of the extirpated range of
the spinymussel on the Ohoopee River, which is a major tributary to the
Altamaha River. A TMDL was established in 2002; however, based on
additional information gathered since 2002, EPA will begin revising
needed load reductions in 2011 (EPA 2002b, p. 2). These segments of the
Ohoopee remain on the 303(d) list.
In 2006, EPD added five stream segments, totaling 64.3 km (40 mi),
within the Ohoopee drainage to the 303(d) list for not meeting
dissolved oxygen standards (EPD 2007b, p. 1). All of these segments are
within the range of the spinymussel. During 2004-2005, there were eight
NPDES permitted discharges with effluent limits for oxygen-consuming
substances identified in the Altamaha River Basin watershed (EPD 2007b,
p. 10). There were four animal feeding lots and six wastewater land
application operations that were identified as sources of oxygen-
demanding nutrients. Nonpoint source run-off from forestry, row crop
agriculture, pastureland, urban development, and natural sources also
contribute oxygen-demanding pollutants (EPD 2007b, pp. 13-15). Upon
completion of a TMDL in 2007, these five river segments were removed
from the 303(d) list.
In addition, there have been a number of recent illegal effluent
discharges into the Ohoopee that could have impacted the Altamaha
spinymussel. For instance, the wastewater treatment discharge from
Rogers State Prison enters the Ohoopee River approximately 10 km (6 mi)
upstream of the largest historical population of Altamaha spinymussels
known in the Ohoopee River. The Altamaha Riverkeeper reported fecal
coliform discharges from the prison that exceeded the prison's NPDES
permit (Holland 2002, pers. comm.).
There have also been a number of recent illegal effluent discharges
into the Ocmulgee River that could have impacted the Altamaha
spinymussel. In 2001, a court found that Amercord Inc. had violated its
NPDES permit multiple times at its Lumber City tire plant by
discharging quantities of cyanide, copper, zinc, and lead into the
Ocmulgee River in excess of permit limitations (Altamaha Riverkeeper v.
Amercord, Inc., No. CV 300-042 (S.D. Ga) (Order on Motion for Partial
Summary Judgment, Mar. 15, 2001)). In a second case, following
allegations of discharges into the Ocmulgee River from Lumber City's
waste treatment pond in excess of its NPDES permit, Lumber City agreed
to implement several short- and long-term wastewater treatment
improvements, which are expected to protect a population of Altamaha
spinymussels (Altamaha Riverkeeper v. City of Lumber City, CV-300-043
(S.D. Ga)). The Altamaha Riverkeeper, a watchdog group that works to
maintain the quality of the Altamaha River system, also discovered that
from July 1995 to April 2001, the City of Cochran's waste treatment
pond had discharged in violation of its NPDES permit (Altamaha
Riverkeepers v. City of Cochran, No. CV-447-2) (M.D. Ga.). The City had
been releasing ferric sulfate (used to treat fecal coliform) into
Jordan Creek, a tributary of the Ocmulgee River approximately 80 km (50
mi) upstream of known populations of Altamaha spinymussels.
Sediment loads in the Oconee River carry toxic loads of heavy
metals presumably discharged from municipal wastewater treatment plants
and kaolin-mining settling ponds (Lasier 2004, pp. 139-140,144-151).
Wastewater treatment plants and kaolin mines often employ settling
ponds to allow pollutants to settle and turbidity to decrease. Copper
sulfate and aluminum sulfate are often used as algaecides, to reduce
algae blooms, and as flocculants to force precipitation of turbid
waters and, in water treatment processes, to improve the sedimentation
or filterability of small particles.
Lasier (2004, pp. 150-151) reported ``abnormally'' high levels of
chromium, copper, mercury, and zinc in the lower Oconee river that
would indicate a ``significant'' impact to the quality of sediment and
pore water (the water in contact with the river bottom, and the water
in which mussels reside). TNC (2004, p. 9) found water quality and
sediment quality reflected ``significant'' inputs of pollution with
concentrations of heavy metals (including cadmium, copper, chromium,
lead, and zinc) at levels above regional and national concentrations.
Shoults-Wilson (2008, pp. 86-92) sampled sites throughout the Altamaha
River Basin to evaluate the presence of heavy metals in the water
column and in the sediment and compared the bioaccumulation of heavy
metals by Asian clams to E. hopetonensis (an Altamaha River endemic).
Sampling of sites upstream and downstream of potential point sources of
heavy metals demonstrated ``significantly'' elevated bioaccumulation of
cadmium, copper, and mercury below inputs from kaolin processing, as
well as elevated zinc and chromium below Plant Hatch, the Rayonier pulp
mill in Jesup, Georgia, and the Amercord tire facility. Mussels in the
Altamaha River basin may accumulate trace elements from the fine
fraction of sediment as well as the water column.
The cumulative effects of effluent from wastewater treatment plants
and kaolin mines on Altamaha spinymussel habitat have not been
quantified; however, mussels appear to be among the most intolerant
organisms to heavy metals (Keller and Zam 1991, p. 545), and several
heavy metals are lethal, even at relatively low levels (Havlik and
Marking 1987, p. 3). Most metals are persistent in the environment,
remaining available for uptake, transportation, and transformation by
organisms until they are removed from the river (Hoover 1978, pp. 28-
38; Lasier 2004, p. 140) through processes such as washing out to sea,
leaching through the soil, or being taken up by an organism that is
then removed from the river.
In areas of heavy agricultural use in the Southeast, surface run-
off can move pesticides, including malathion and
[[Page 61671]]
other insecticides, into surface water (McPherson et al. 2003, pp. 1-
2). Stream ecosystems are negatively impacted when nutrients are added
at concentrations that cannot be assimilated (TNC 2004, p. 7). The
effects of pesticides on mussels may be particularly profound,
potentially altering metabolic activities or resulting in delayed
mortality (Fuller 1974, pp. 252-253; Havlik and Marking 1987, pp. 9-11;
Moulton et al. 1996, pp. 132-136); commonly used pesticides have been
directly implicated in a North Carolina mussel die-off (Fleming et al.
1995, pp. 877-879). The Oconee, Ocmulgee, and Ohoopee River systems
contain significant acreage in cotton and onion farming. Malathion, one
of the most important pesticides used in cotton farming, inhibits
physiological activities of mussels (Kabeer et al. 1979, pp. 71-72) and
may decrease the ability of mussels to respire and obtain food. Some
studies have shown that malathion is slightly toxic to some very
pollution-intolerant juvenile mussels (Lampsilis straminea
claibornensis) at minimum concentrations of 22,000 ppm. Elliptio
icterina had slight problems with minimum concentrations of 30,000 ppm
with 96-hour exposure periods.
The operations of the Edwin I. Hatch Nuclear Power Plant (Plant
Hatch), located on the Altamaha River in Appling County, may pose a
threat to the Altamaha spinymussel. On September 14, 2001, the Service
received Joint Public Notice 940003873 from the U.S. Army Corps of
Engineers (Corps), Savannah District, describing a project to expand
and maintain Plant Hatch's intake basin within the Altamaha River.
Implementation of this permit authorized annual dredging of the plant
intake basin and authorized removing 33,965 cubic meters (44,424 cubic
yards) of material biannually from the intake basin. While the amount
of material removed annually is generally far less than the amount
permitted (Dodd 2008, pers. comm.), annual dredging could negatively
impact the Altamaha spinymussel by decreasing channel stability
(creating a potential head cut), altering sediment transport dynamics,
increasing sedimentation and turbidity downstream during dredging
operations, and decreasing habitat quality for host fishes. It is
unknown how far downstream these impacts extend.
Impacts to aquatic fauna through entrainment of potential host
fishes and thermal discharges may also occur. Plant Hatch takes in
water to create steam, and then uses the steam to generate electricity.
Following a cooling process, the water is returned to the river, and
although it has been cooled, the water temperature is warmer than the
ambient temperature of the river. Plant Hatch has made substantial
efforts to reduce thermal discharges through the construction of
cooling towers that have significantly reduced the thermal plume.
However, thermal discharges could still negatively impact the Altamaha
spinymussel from heat stress; higher water temperatures can increase
the sensitivity of mussels to certain pollutants (Augspurger et al.
2003, p. 2574). These effects would be exacerbated during years of low
rainfall, when less water would be available to dissipate the heat of
the Plant Hatch effluent. Plant Hatch also monitors fish entrainment,
so if the host fish of the spinymussel was known, management efforts
could be made to reduce the potential of this impact.
In summary, the loss and modification of habitat is a significant
threat to the Altamaha spinymussel. Degradation from sedimentation and
contaminants threatens the habitat and water quality necessary to
support the Altamaha spinymussel. Sediment from unpaved roads, kaolin
mines, past and current agriculture practices, silviculture, and
construction sites within the Altamaha River basin can suffocate
Altamaha spinymussels and make stable sandbars required by Altamaha
spinymussels unstable or change the texture of the substrate, rendering
them unsuitable for the species. Contaminants associated with
industrial and municipal effluents (e.g., heavy metals, ammonia,
chlorine, numerous organic compounds) may cause decreased oxygen,
increased acidity, and other water chemistry changes that are lethal to
mussels, particularly the highly sensitive early life stages of
mussels; exposure to sublethal levels of toxic metals can alter growth,
filtration efficiency, enzyme activity, and behavior. As a result we
have determined that the present or threatened destruction,
modification, or curtailment of the Altamaha spinymussel's habitat or
range are threats to the continued existence of the Altamaha
spinymussel throughout its range.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
The Altamaha spinymussel is not a commercially valuable species,
nor are the streams that it inhabits subject to commercial mussel
harvesting activities. However, this species has been actively sought
for scientific and private collections (Keferl 2008, pers. comm.); such
activity may increase if the species becomes more rare. Overcollection
may have been a localized factor in the decline of this species,
particularly in the Ohoopee River where a 1986 collection consisted of
at least 30 live individuals (Keferl 2008, pers. comm.). Although the
GDNR can regulate the number of mussels collected with a Scientific
Collection Permit, the localized distribution and small size of known
populations renders them extremely vulnerable to overzealous
recreational or scientific collecting. However, we have no specific
information indicating that overcollection is currently a threat or
that overcollecting may occur in the future.
Therefore, we find that overutilization for commercial,
recreational, scientific, or educational purposes is not a threat to
the Altamaha spinymussel at this time.
C. Disease or Predation
Diseases of freshwater mussels are poorly known, and we have no
specific information indicating that disease occurs within Altamaha
spinymussel populations or poses a threat. Juvenile and adult mussels
are preyed upon by some invertebrate species (particularly as newly
metamorphosed juveniles), parasites (for example, nematodes,
trematodes, and mites), and a few vertebrate species (for example,
otter, raccoon, and turtles). However, we have no evidence of any
specific declines in the Altamaha spinymussel due to predation.
In summary, diseases and predation of freshwater mussels remains
largely unstudied and are not considered a threat to the Altamaha
spinymussel.
D. The Inadequacy of Existing Regulatory Mechanisms
The Altamaha spinymussel is listed as a high priority species by
the State of Georgia (GDNR 2005, p. 135) and has recently been listed
as Endangered under Georgia's Endangered Wildlife Act (EWA). Under the
EWA, it is unlawful to intentionally harm, disturb or sell a protected
animal, unless authorized, or to cause the destruction of habitat of
protected animals on State-owned lands. The EWA specifically states,
however, that rules and regulations promulgated under the EWA shall not
impede construction of any nature. Thus, protection under the EWA
prevents unlawful capture or killing of the listed species, but does
not prevent habitat changes that lead to population loss.
Sources of nonpoint source pollution include timber clearcutting,
clearing of
[[Page 61672]]
riparian vegetation, urbanization, road construction, and other
practices that allow sediment to enter streams (TNC 2004, p. 13).
Although BMPs for sediment and erosion control are often recommended or
required by local ordinances for construction projects, compliance,
monitoring, and enforcement of these recommendations are often poorly
implemented. Furthermore, Georgia's Erosion and Sediment Control Act
exempts commercial forestry activities from the need to acquire permits
and meet the minimum requirements of the Erosion and Sediment Control
Act (Georgia's BMPs for Forestry 2009, p. 64). Therefore, compliance
with BMPs is voluntary and is dependent on education on proper
implementation of BMPs to reduce sediment from reaching the Altamaha
River (EPD 2007a, p. 28). Although historical row crop-based land use
contributes the majority of sediment to the Altamaha River, other
sources continue to contribute to the total sediment load (See
discussion under Factor A).
Point source discharges within the range of the Altamaha
spinymussel have been reduced since the inception of the Federal Clean
Water Act (33 U.S.C. 1251 et seq.), but this may not provide adequate
protection for filter-feeding organisms that can be impacted by
extremely low levels of contaminants. Municipal wastewater plants
continue to discharge large amounts of effluent and, in some
circumstances, in excess of permitted levels (see discussion under
Factor A). There is no specific information on the sensitivity of the
Altamaha spinymussel to common industrial and municipal pollutants, and
very little information on other freshwater mollusks. Current State and
Federal regulations regarding pollutants are assumed to be protective
of freshwater mollusks; however, this species may be more susceptible
to some pollutants than test organisms commonly used in bioassays. For
example, several recent studies have suggested that EPA's criteria for
ammonia may not be protective of freshwater mussels (Augspurger et al.
2003, p. 2571; Newton et al. 2003, pp. 2559-2560; Mummert et al. 2003,
pp. 2548-2552). In a review of the effects of eutrophication on
mussels, Patzner and Muller (2004, p. 329) noted that stenoecious
(narrowly tolerant) species disappear as waters become more eutrophic.
They also refer to studies that associate increased levels of nitrate
with the decline and absence of juvenile mussels (Patzner and Muller
2004, pp. 330-333). Other studies have also suggested that early life
stages of mussels are sensitive to inorganic chemicals such as
chlorine, metals, and ammonia (Keller and Zam 1991, pp. 543-545;
Goudreau et al. 1993, p. 221; Naimo 1995, pp. 354-355). Therefore, it
appears that a lack of adequate research and data prevents existing
regulations, such as the Clean Water Act (administered by the EPA and
the Corps), from being fully utilized or effective.
In summary, some regulations exist that protect the species and its
habitat; however, these regulations enforced by the State provide
little direct protection of Altamaha spinymussel and only if protection
of the spinymussel will not inhibit economic development. Nonpoint
source pollution is not regulated, and the Clean Water Act does not
adequately protect the habitat from degradation caused by point source
pollutants. As described under Factor A, there have been a number of
recent illegal effluent discharges into the Altamaha River basin, in
excess of permit limits, that may have impacted the Altamaha
spinymussel. Furthermore, The Altamaha Riverkeeper has several pending
investigations pertaining to illegal discharges; they are working with
violators and pursuing legal settlements when necessary. Thus, existing
regulations are not effective at protecting the spinymussel and its
habitat from sedimentation and lethal contaminants. Therefore we find
the existing regulatory mechanisms are inadequate to ameliorate the
current threats to the Altamaha spinymussel throughout its range.
E. Other Natural or Manmade Factors Affecting Its Continued Existence
Withdrawal of surface water within the Altamaha Basin for
thermoelectric power generation, public water supplies, commercial
industrial uses, and agriculture has a dramatic effect on flow rates
(TNC 2004, p. 8). No major dams are located on the Altamaha River
system within the known historical range of the Altamaha spinymussel;
however, the dams that form Sinclair Reservoir on the Oconee River and
Jackson and Tobesofkee Reservoirs in the Ocmulgee River basin can
influence downstream mussels and their populations through changes in
flows that result from electrical power generation and water storage
(TNC 2004, p. 6). Within the Altamaha River basin, 1,149 MGD was
withdrawn for thermoelectric power generation in 1990 (Marella and
Fanning 1990, pp. 14-17). Such removals can cause drastic flow
reductions and alterations that may strand mussels on sandbars,
resulting in mortality of individuals and harm to populations. Laurens
County, Georgia, which includes the City of Dublin, withdrew 2.64 MGD
for public water supplies, 12.79 MGD for commercial industrial use, and
5.57 MGD for agricultural uses in 1990 (Marella and Fanning 1990, p.
16) In 1990, the total amount of surface water withdrawn from the
Altamaha River basin was 1,315.88 MGD (Marella and Fanning 1990, p.
61). As development pressures continue to grow, water withdrawals are
expected to increase.
Drought conditions were prevalent in Georgia between 1998 and 2002,
and again in 2007 and 2008, which may have negatively affected the
Altamaha spinymussel. Georgia averages 127 cm (50 in) of precipitation
annually (U.S. Geological Survey 1986, p. 195; GDNR 2005, p. 41) but
received less than 102 cm (40 in) of precipitation annually during
recent droughts in 2000, 2002, and 2007 (Knaak and Joiner 2007, pp. 1-
2). The Ohoopee River and many other streams in the basin suffered
reduced flow rates, and the Ohoopee River was reported to have low
water levels with an estimated average depth of 15 cm (6 in) in the
main channel during summer surveys (Stringfellow and Gagnon 2001, p.
3). Normally, mussels will bury themselves in the river bottom as a
mechanism to survive a drought, but many mussels may have died from
desiccation during this prolonged drought (Keferl 2008, pers. comm.).
Although the effects of the drought on the Altamaha spinymussel have
not been quantified, mussel declines as a direct result of drought have
been documented ( Golladay et al. 2004, p. 494; Haag and Warren 2008,
p. 1165). Furthermore, there is a growing concern that climate change
may lead to increased frequency of severe storms and droughts (Golladay
et al. 2004, p. 504; McLaughlin et al. 2002, p. 6074; Cook et al. 2004,
p. 1015). Reduction in local water supplies due to drought is also
compounded by increased human demand and competition for surface and
ground water resources for power production, irrigation, and
consumption (Golladay et al. 2004, p. 504).
In addition, low flow conditions provide access to the river
margins and channels for all-terrain vehicles (ATV) and four-wheel
drive vehicles (TNC 2004, p. 12; Stringfellow and Gagnon 2001, p. 3).
During a survey in 2001, Stringfellow and Gagnon (2001, p. 3) observed
heavy ATV and four-wheel drive vehicle traffic and high levels of
erosion near bridges and homes. They encountered several groups of ATV
users, 2 to 12 persons per group, riding in the river channel. Because
water
[[Page 61673]]
levels were so low, ATV use of the stream extended to all portions of
the channel, including pools, runs, and dried sandbars. Observations on
the Ohoopee River during low flow in October of 2006 revealed extensive
ATV traffic that destroyed mussel beds (Rickard 2006, personal
observation). These vehicles may directly crush mussels and may also
destabilize stream banks and increase sedimentation rates, burying
mussels or impairing feeding, respiration, metabolism, and reproductive
success (Stringfellow and Gagnon 2001, p. 3).
Nonindigenous species such as the flathead catfish (Pylodictis
olivaris) and the Asian clam (Corbicula fluminea) have been introduced
to the Altamaha Basin and may be adversely affecting the Altamaha
spinymussel. Flathead catfish are fast-growing fish that are dominant
predators in river systems and are usually exclusively piscivorous in
their adult stage (Bourret et al. 2008, p. 413; Sakaris et al. 2006, p.
867). Since its introduction outside its native range, the flathead
catfish has altered the composition of native fish populations through
predation (Bourett et al. 2008, p. 413; Sakaris et al. 2006, p. 867;
Sea Grant, 2006, p. 2; Pine et al. 2005, p. 902). Flatheads were
introduced to the Altamaha Basin in the 1970s (USGS 2009, unpaginated).
Although the host fish or fishes of the Altamaha spinymussel have not
been identified, in other native freshwater mussels, various
centrachids (sunfish), ictalurids (catfish), and catostomids (suckers)
have been identified as hosts of the larvae. Other species of mussels
in the genus Elliptio are known to parasitize various species of
Etheostoma and Percina (darters), and other stream-adapted fish species
(Haag and Warren 2003, p. 80). Flatheads introduced in the Altamaha
River eliminated bullhead catfish (Ameiurus sp.) and caused an 80
percent decline in redbreast sunfish (Lepomis auritus) (Sea Grant 2006,
p. 2); centrarchids and ictalurids were dominant prey items (Sakaris
2006, p. 867). Other potential centrachid host fish such as the
largemouth bass (Micropterus salmoides) and bluegill (L. macrochirus)
have all suffered population declines (Harrison 2001, pers. comm.), as
well as the robust redhorse (Moxostoma robustum), shortnose sturgeon
(Acipenser brevirostrum), and shad (Alosa sapidissima) (TNC 2004, p.
5). If one or more of these species is the host fish for the Altamaha
spinymussel, the spinymussel's breeding success and recruitment could
be reduced (Keferl 2001, pers. comm).
Asian clams (Corbicula) were observed in the Altamaha River in
1971, and are believed to have been introduced in the Ocmulgee River in
1968 or 1969 (Gardner 1976, p. 117). Surveys have found large numbers
of Asian clams (Corbicula) in the Altamaha Basin for more than 25 years
(Gardner et al. 1976, pp. 118-124; Stringfellow and Gagnon 2001, p. 2;
O'Brien, pers. comm., 2001). The invasion of Corbicula in the Altamaha
River has been accompanied by drastic declines in populations of native
mussels (Gardner 1976, p. 124). Asian clams may pose a direct threat to
native species through competition for available resources (space,
minerals, or food), resulting in a decline or local extinction of
native mussels (Williams et al. 1993, p. 7; Bogan 1993, p. 605).
The linear nature of the Altamaha spinymussel's habitat, reduced
range, and very small population size make this species vulnerable to
random detrimental or catastrophic events. Small, isolated populations
may experience decreased demographic viability (population birth and
death rates, immigration and emigration rates, and sex ratios),
increased susceptibility of extinction from stochastic environmental
factors (e.g., weather events, disease), and an increased threat of
extinction from genetic isolation and subsequent inbreeding depression
and genetic drift. Surviving populations of spinymussels are small,
extremely localized, and vulnerable to habitat modification, toxic
spills, progressive degradation from contaminants (see discussions
under Factors A and D), and natural catastrophic changes to their
habitats (for example, flood scour and drought). Low numbers of
individuals may also increase inbreeding and reduce genetic diversity
(Lynch 1996, pp. 493-494).
In summary, a variety of natural and manmade factors currently
threatens the Altamaha spinymussel. Withdrawal of surface water within
the Altamaha Basin for thermoelectric power generation, public water
supplies, commercial industrial uses, and agriculture can cause drastic
flow reductions and alterations that may strand mussels on sandbars,
resulting in mortality of individuals and harm to populations.
Recurring drought and water withdrawal, combined with impacts of off-
road vehicles, has reduced flows and destabilized stream banks required
to support this mussel. Nonindigenous species, such as flathead catfish
and the Asian clam, have potentially adversely impacted populations of
the spinymussel's host fish, thereby affecting recruitment, and may
directly impact the spinymussel through competition for resources.
Lastly, because the Altamaha spinymussel population is so small and
isolated, any factor (i.e., habitat change or natural and manmade
factors) that results in a decline in habitat or individuals may be
problematic for the long-term recovery of this species. Therefore, we
have determined that other natural and manmade factors are threats to
the continued existence of the Altamaha spinymussel throughout its
range.
Determination
We have carefully assessed the best scientific and commercial
information available regarding the past, present, and future threats
to the Altamaha spinymussel. Section 3 of the Act defines an
``endangered species'' as ``any species which is in danger of
extinction throughout all or a significant portion of its range'' and a
``threatened species'' as ``any species which is likely to become an
endangered species within the foreseeable future throughout all or a
significant portion of its range.'' As described in detail above, the
species is currently at risk throughout all of its range due to ongoing
threats of habitat destruction and modification (Factor A), inadequacy
of existing regulatory mechanisms (Factor D), and other natural or
manmade factors affecting its continued existence (Factor E). This
species' extremely low and isolated populations make it particularly
susceptible to extinction at any time due to threats described under
Factors A, D, and E.
The Altamaha spinymussel has only been observed at 22 sites since
2000, despite extensive survey efforts made by several different
researchers. Most of these sites are clustered geographically within
short reaches of the lower Ocmulgee River and the Altamaha River
upstream of U.S. Route 301, and there are long reaches with no or
undetectable numbers of Altamaha spinymussels separating these groups
of sites. Recent surveys of the Ohoopee River and the analysis
presented by Wisniewski et al. (2005) suggest that the species may
still be declining. Finally, the comparatively low numbers of Altamaha
spinymussels collected during recent surveys of the Altamaha and
Ocmulgee Rivers further suggests that this species has declined from
historical levels. To summarize, researchers were able to find 60
Altamaha spinymussels at a single site on the Altamaha River in 1967;
in contrast, the largest number of Altamaha spinymussels observed from
a single site on the Altamaha River during the
[[Page 61674]]
1990s or 2000s was nine (Albanese 2005, pers. comm.).
The remaining small spinymussel populations are threatened by a
variety of factors that are expected to persist indefinitely and
impact, or have the potential to impact, remaining spinymussel habitat.
These factors include siltation, industrial pollution, municipal
effluents, modification of stream channels, pesticides, heavy metals,
invasive species, loss of host fish, water withdrawal, recurring
drought, and loss of genetic viability. In addition, as described under
Factor D, existing regulatory mechanisms are inadequate to ameliorate
the current threats to the Altamaha spinymussel and its habitat. We
believe the remaining small, isolated populations of spinymussels are
not large enough to be resilient against any of the above factors
acting on the species itself or its habitat. Furthermore, we believe
these threats, particularly the threats to populations resulting from
habitat degradation, small population size, and drought, are current
and are projected to continue into the future. If the present trends
that negatively affect the species and its limited and restricted
habitat continue, the Altamaha spinymussel is in immediate danger of
extinction throughout all of its range.
Therefore, on the basis of the best available scientific and
commercial information, we propose to list the Altamaha spinymussel as
an endangered species throughout all of its range. Furthermore, because
we find that the Altamaha spinymussel is endangered throughout all of
its range, there is no reason to consider its status in a significant
portion of its range. Consequently, we are proposing to list the
Altamaha spinymussel as an endangered species under the Act.
Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(i) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(I) essential to the conservation of the species and
(II) which may require special management considerations or
protection; and
(ii) specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided under the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the prohibition against Federal agencies carrying out, funding,
or authorizing the destruction or adverse modification of critical
habitat. Section 7(a)(2) requires consultation on Federal actions that
may affect critical habitat. The designation of critical habitat does
not affect land ownership or establish a refuge, wilderness, reserve,
preserve, or other conservation area. Such designation does not allow
the government or public to access private lands. Such designation does
not require implementation of restoration, recovery, or enhancement
measures by non-Federal landowners. Where a landowner seeks or requests
Federal agency funding or authorization for an action that may affect a
listed species or critical habitat, the consultation requirements of
section 7(a)(2) of the Act would apply, but even in the event of a
destruction or adverse modification finding, Federal action agency's
and the applicant's obligation is not to restore or recover the
species, but to implement reasonable and prudent alternatives to avoid
destruction or adverse modification of critical habitat.
For inclusion in a critical habitat designation, the habitat within
the geographical area occupied by the species at the time it was listed
must contain the physical and biological features essential to the
conservation of the species, and be included only if those features may
require special management considerations or protection. Critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, habitat areas that provide
essential life cycle needs of the species (areas on which are found the
physical and biological features (PBFs) essential for the conservation
of the species). Under the Act and regulations at 50 CFR 424.12, we can
designate critical habitat in areas outside the geographical area
occupied by the species at the time it is listed only when we determine
that those areas are essential for the conservation of the species and
that designation limited to those areas occupied at the time of listing
would be inadequate to ensure the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards Under the Endangered
Species Act (published in the Federal Register on July 1, 1994 (59 FR
34271)), the Information Quality Act (section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658)), and our associated Information Quality
Guidelines, provide criteria, establish procedures, and provide
guidance to ensure that our decisions are based on the best scientific
data available. They require our biologists, to the extent consistent
with the Act and with the use of the best scientific data available, to
use primary and original sources of information as the basis for
recommendations to designate critical habitat.
When we are determining which areas we should designate as critical
habitat, our primary source of information is generally the information
developed during the listing process for the species. Additional
information sources may include articles in peer-reviewed journals,
conservation plans developed by States and counties, scientific status
surveys and studies, biological assessments, or other unpublished
materials and expert opinion or personal knowledge.
Habitat is often dynamic, and species may move from one area to
another over time. In particular, we recognize that climate change may
cause changes in the arrangement of occupied habitat river reaches.
Climate change may lead to increased frequency and duration of severe
storms and droughts (Golladay et al. 2004, p. 504; McLaughlin et al.
2002, p. 6074; Cook et al. 2004, p. 1015). Drought conditions in 2000-
2001 and 2007-2008 greatly reduced the habitat of the spinymussel in
the Ohoopee River and rendered the populations vulnerable to
anthropogenic disturbances, such as water extraction and vehicles
within the riverbed (Keferl 2008, pers. comm.; Stringfellow and Gagnon
2001, p. 3).
The information currently available on the effects of global
climate change and increasing temperatures does not make sufficiently
precise estimates of
[[Page 61675]]
the location and magnitude of the effects. Nor are we currently aware
of any climate change information specific to the habitat of the
Altamaha spinymussel that would indicate what areas may become
important to the species in the future. Therefore, we are unable to
determine what additional areas, if any, may be appropriate to include
in the proposed critical habitat for this species; however, we
specifically request information from the public on the currently
predicted effects of climate change on the Altamaha spinymussel and its
habitat. Furthermore, we recognize that designation of critical habitat
may not include all of the habitat areas we may eventually determine,
based on scientific data not now available to the Service, that are
necessary for the recovery of the species. For these reasons, a
critical habitat designation does not signal that habitat outside the
designated area is unimportant or may not be required for recovery of
the species.
Areas that are important to the conservation of the species, but
are outside the critical habitat designation, will continue to be
subject to conservation actions we implement under section 7(a)(1) of
the Act. These areas are also subject to the regulatory protections
afforded by the section 7(a)(2) jeopardy standard, as determined on the
basis of the best available scientific information at the time of the
agency action. Federally funded or permitted projects affecting listed
species outside their designated critical habitat areas may still
result in jeopardy findings in some cases. Similarly, critical habitat
designations made on the basis of the best available information at the
time of designation will not control the direction and substance of
future recovery plans, habitat conservation plans (HCPs), or other
species conservation planning efforts if new information available to
these planning efforts calls for a different outcome.
Prudency Determination
Section 4 of the Act, as amended, and implementing regulations (50
CFR 424.12), require that, to the maximum extent prudent and
determinable, the Secretary designate critical habitat at the time the
species is determined to be endangered or threatened. Our regulations
at 50 CFR 424.12(a)(1) state that the designation of critical habitat
is not prudent when one or both of the following situations exist: (1)
The species is threatened by taking or other activity and the
identification of critical habitat can be expected to increase the
degree of threat to the species; or (2) the designation of critical
habitat would not be beneficial to the species.
As we have discussed above under the Factor B analysis, there is
currently no imminent threat of take attributed to collection or
vandalism for this species. Moreover, we have no information to
indicate that identification of critical habitat is expected to
initiate such a threat to the species. Critical habitat designation
identifies those physical and biological features of the habitat
essential to the conservation of the Altamaha spinymussel that may
require special management and protection. Accordingly, this
designation will provide information to individuals, local and State
governments, and other entities engaged in activities or long-range
planning in areas essential to the conservation of the species.
Conservation of the Altamaha spinymussel and essential features of its
habitat will require habitat management, protection, and restoration,
which will be facilitated by knowledge of habitat locations and the
physical and biological features of the habitat. Based on this
information, we believe critical habitat would be beneficial to this
species. Therefore, we have determined that the designation of critical
habitat for the Altamaha spinymussel is prudent.
We have reviewed the available information pertaining to the
historical distribution of the Altamaha spinymussel, and the
characteristics of the habitat in which it currently survives. This and
other information represent the best scientific and commercial data
available and lead us to conclude that we have sufficient information
necessary to identify specific areas that meet the definition of
critical habitat. Therefore, we have determined that the designation of
critical habitat is determinable for the Altamaha spinymussel.
Methods
As required by section 4(b) of the Act, we used the best scientific
data available in determining occupied areas that contain the features
that are essential to the conservation of the Altamaha spinymussel, and
unoccupied areas that are essential for the conservation of the
Altamaha spinymussel.
We have reviewed the available information pertaining to historical
and current distribution, life history, and habitat requirements of
this species. Our sources included: Peer-reviewed scientific
publications; unpublished survey reports; unpublished field
observations by the Service, State, and other experienced biologists;
and notes and communications from qualified biologists or experts.
Physical and Biological Features
In accordance with sections 3(5)(A)(i) and 4(b)(1)(A) of the Act
and regulations at 50 CFR 424.12, in determining which areas within the
geographical area occupied at the time of listing to propose as
critical habitat, we consider the physical and biological features
essential to the conservation of the species which may require special
management considerations or protection. These include, but are not
limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, and rearing of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographical, and ecological
distribution of a species.
We consider the physical and biological features to be the primary
constituent elements (PCEs) laid out in the appropriate quantity and
spatial arrangement essential for the conservation of the species. We
derive the PCEs from the biological needs of the species as described
in the Background section of this proposal. Unfortunately, little is
known of the specific habitat requirements for the Altamaha spinymussel
other than that they require flowing water, stable river channels, and
adequate water quality. Altamaha spinymussel mussel larvae also require
a currently unknown fish host for development to juvenile mussels. To
identify the physical and biological needs of the species, we have
relied on current conditions at locations where the species survive,
the limited information available on this species and its close
relatives, and factors associated with the decline and extirpation of
these and other aquatic mollusks from extensive portions of the
Altamaha River Basin.
Space for Individual and Population Growth and for Normal Behavior
The Altamaha spinymussel is historically associated with the main
stem of the Altamaha River and its larger tributaries (greater than 500
cubic feet per second (cfs) Mean Monthly Discharge (MMD)), and does not
occur in smaller tributaries. Spinymussels are generally associated
with stable, coarse to fine sandy sediments of sandbars, sloughs, and
mid-channel islands, and
[[Page 61676]]
they appear to be restricted to swiftly flowing water (Sickel 1980, p.
12). Sandbars, sloughs, and mid-channel islands provide space for the
spinymussel and also provide cover, shelter, and sites for breeding,
reproduction, and growth of offspring. Sandbars, sloughs, and mid-
channel islands are dynamic habitats formed and maintained by water
quantity, channel slope, and sediment input to the system through
periodic flooding, which maintains connectivity and interaction with
the flood plain. Changes in one or more of these parameters can result
in channel degradation or channel aggradation, with serious effects to
mollusks. Therefore, we believe that stream channel stability and
floodplain connectivity are essential to the conservation of the
Altamaha spinymussel.
Water
The Altamaha spinymussel is a riverine-adapted species that depends
upon adequate water flow and is not found in ponds or lakes.
Continuously flowing water is a habitat feature associated with all
surviving populations of this species. Flowing water maintains the
river bottom, sandbars, sloughs, and mid-channel islands habitat where
this species is found, transports food items to the sedentary juvenile
and adult life stages of the Altamaha spinymussel, removes wastes, and
provides oxygen for respiration for this species.
The ranges of standard physical and chemical water quality
parameters (such as temperature, dissolved oxygen, pH, and
conductivity) that define suitable habitat conditions for the Altamaha
spinymussel have not been investigated. However, as relatively
sedentary animals, mussels must tolerate the full range of such
parameters that occur naturally within the streams where they persist.
Both the amount (flow) and the physical and chemical conditions (water
quality) where this species currently exists vary widely according to
season, precipitation events, and seasonal human activities within the
watershed. Conditions across their historical ranges vary even more due
to geology, geography, and differences in human population densities
and land uses. In general, the species survives in areas where the
magnitude, frequency, duration, and seasonality of water flow is
adequate to maintain stable sandbar, slough, and mid-channel island
habitats (for example, sufficient flow to remove fine particles and
sediments without causing degradation), and where water quality is
adequate for year-round survival (for example, moderate to high levels
of dissolved oxygen, low to moderate input of nutrients, and relatively
unpolluted water and sediments). Therefore, adequate water flow and
water quality (as defined below) are essential to the conservation of
the Altamaha spinymussel.
A natural flow regime that includes periodic flooding and maintains
connectivity and interaction with the flood plain is critical for the
exchange of nutrients, spawning activities for potential host fish, and
sand bar maintenance. In 2007, persistent severe drought conditions
throughout the southeastern United States created record low discharges
(streamflow) in the Altamaha River at the U.S. Geological Survey (USGS)
gauge station in Doctortown, Georgia. During the driest portions of the
2006-2009 drought period, the lowest discharges observed were 25
percent of the MMD for the 77-year period of record for the Doctortown
gauge. Despite record low flows, native unionids (mussels) appeared to
persist and thrive throughout most of the Lower Altamaha River Basin.
The numeric standards for pollutants and water quality parameters
(for example, dissolved oxygen, pH, heavy metals) that have been
adopted by the State of Georgia under the Clean Water Act (33 U.S.C.
1251 et seq.) represent levels that were established for human
protection. Some of these standards (particularly organic and heavy
metal contaminates) may not adequately protect Altamaha spinymussels,
or are not being appropriately measured, monitored, or achieved in some
reaches (see discussions under Factors A and D). While, Georgia's pH
criterion is a range of 6.0 to 8.5 under the adopted State standards,
data compiled by the GDNR indicate that pH at 159 sites in the Altamaha
River Basin averaged 6.9 and ranged from 4.9 to 9.1, which means many
sites are outside of the range adopted by the State. Potential
contaminants such as ammonia may be more lethal at pH levels at the
edges of the observed range. Therefore, we removed outliers from this
data set by generating the 10\th\ and 90\th\ percentiles for pH, which
were 6.1 to 7.7 standard units. These levels are likely more
representative of natural pH levels associated with the Altamaha River
Basin and would likely reduce lethal contaminant associations between
other chemicals in the watershed.
Current Georgia TMDLs for waters supporting warm-water fishes
require a daily average dissolved oxygen (DO) concentration of 5.0 mg/l
and a minimum of 4.0 mg/l. The mean DO concentration of 217
measurements made in known spinymussel sites throughout the Altamaha
River basin was 8.7 mg/l and ranged from 0.42 mg/l to 33.1 mg/l. The
10\th\ and 90\th\ percentiles for DO were 4.5 and 10.7 mg/l, which are
similar to the observations of Golladay et al. (2004, pp. 501-503). A
daily average DO concentration of 5.0 mg/l and a minimum DO
concentration of 4.5 mg/l should provide adequate protection for the
Altamaha spinymussel.
Other factors that can potentially alter water quality are droughts
and periods of low flow, nonpoint source run-off from adjacent land
surfaces (for example, excessive amounts of nutrients, pesticides, and
sediment), and random spills or unregulated discharge events. This
could be particularly harmful during drought conditions when flows are
depressed and pollutants are more concentrated. Adequate water quality
is essential for normal behavior, growth, and viability during all life
stages of the Altamaha spinymussel.
Food
Unionid mussels, such as the Altamaha spinymussel, filter algae,
detritus, and bacteria from the water column (Williams et al. 2008, p.
67). Although the life history of the Altamaha spinymussel has not been
studied, the life histories of other mussels in the Elliptio genus
indicate that adult freshwater mussels are filter-feeders, siphoning
phytoplankton, diatoms, and other microorganisms from the water column.
For the first several months, juvenile mussels employ pedal (foot)
feeding, extracting bacteria, algae, and detritus from the sediment
(Yeager et al. 1994, pp. 217-221; Wisniewski 2008, pers. comm.). Food
availability and quality for the Altamaha spinymussel in sandbars,
sloughs, and mid-channel island habitats are affected by habitat
stability, floodplain connectivity, flow, and water quality.
Sites for Breeding, Reproduction, or Rearing
Freshwater mussels require a host fish for transformation of larval
mussels (glochidia) to juvenile mussels (Williams et al. 2008, p. 68);
therefore, presence of the appropriate host fish is essential to the
conservation of the Altamaha spinymussel. The specific fish host(s) for
the Altamaha spinymussel is currently unknown; however, other species
of mussels in the genus Elliptio are known to parasitize various
species of Etheostoma, Percina, and other stream-adapted fish species
(Haag and Warren 2003, p. 80). Eighty-five fish species representing 22
families are
[[Page 61677]]
native to the Altamaha River Basin. Five families account for 65
percent of the native fish species in the Altamaha River Basin. The
family Cyprinidae comprises 20 percent of the fish species, while
Centrarchidae, Catostomidae, Ictaluridae, and Percidae comprise 15
percent, 12 percent, 11 percent, and 8 percent of the species,
respectively. These families are known to be suitable hosts for most
unionids in North America. All 85 species native to the Altamaha River
Basin are still present within the basin.
Juvenile Altamaha spinymussels require stable sandbar, slough, and
mid-channel island habitats for growth and survival. Excessive
sediments or dense growth of filamentous algae can expose juvenile
mussels to entrainment or predation and be detrimental to the survival
of juvenile mussels (Hartfield and Hartfield 1996, pp. 372-374).
Geomorphic instability can result in the loss of interstitial habitats
and juvenile mussels due to scouring or deposition (Hartfield 1993, pp.
372-373). Therefore, stable sandbar, slough, and mid-channel island
habitats with low to moderate amounts of filamentous algae growth are
essential to the conservation of the Altamaha spinymussel.
Periodic floodplain connectivity that occurs during wet years
provides habitats for spawning and foraging activities to fishes
requiring floodplain habitats for successful reproduction and
recruitment to adulthood. Barko et al. (2006, pp. 252-256) found
several fish species benefited from the resource exploitation of
floodplain habitats that were not typically available for use during
hydrologically normal years. Furthermore, Kwak (1988, pp. 243-247) and
Slipke et al. (2005, p. 289) indicated that periodic inundation of
floodplain habitats increased successful fish reproduction, which leads
to increased availability of native host fishes for unionid
reproduction. However, Rypel et al. (2009, p. 502) indicated that
unionids tended to exhibit minimal growth during high flow years.
Therefore, optimal flooding of these habitats would not be too frequent
and should occur at similar frequencies to that of the natural
hydrologic regime of the Altamaha River.
Primary Constituent Elements (PCEs) for the Altamaha Spinymussel
Based on the above needs and our current knowledge of the life
history, biology, and ecology of the species, we have determined that
the Altamaha spinymussel's PCEs are:
(1) Geomorphically stable river channels and banks (channels that
maintain lateral dimensions, longitudinal profiles, and sinuosity
patterns over time without an aggrading or degrading bed elevation)
with stable sandbar, slough, and mid-channel island habitats of course
to fine sand substrates with low to moderate amounts of fine sediment
and attached filamentous algae.
(2) A hydrologic flow regime (the magnitude, frequency, duration,
and seasonality of discharge over time) necessary to maintain benthic
habitats where the species are found. To maintain connectivity of
rivers with the floodplain, allowing the exchange of nutrients and
sediment for sand bar maintenance, food availability, and spawning
habitat for native fishes.
(3) Water quality necessary for normal behavior, growth, and
viability of all life stages, including specifically temperature (less
than 32.6[deg]C (90.68 [deg]F) with less than 2[deg]C (3.6 [deg]F)
daily fluctuation)), pH (6.1 to 7.7), oxygen content (daily average DO
concentration of 5.0 mg/l and a minimum of 4.0 mg/l), Ammonia: 1.5 mg
N/L, 0.22 mg N/L (normalized to pH 8 and 25[deg]C (77[deg]F)) and other
chemical characteristics.
(4) The presence of fish hosts (currently unknown) necessary for
recruitment of the Altamaha spinymussel. The continued occurrence of
diverse native fish assemblages currently occurring in the basin will
serve as an indication of host fish presence until appropriate host
fishes can be identified for the Altamaha spinymussel.
This proposed designation is designed to conserve those areas
containing the PCEs in the appropriate spatial arrangement and quantity
essential to the conservation of the species.
Units are designated based on sufficient PCEs being present to
support at least one of the species' life history functions. In this
proposed designation, all areas contain all PCEs and support multiple
life processes.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the areas
within the geographical area occupied by the species at the time of
listing contain features that are essential to the conservation of the
species and whether those features may require special management
considerations or protection. None of the critical habitat units
proposed for this species have been designated as critical habitat for
other species under the Act. Large areas of upland habitat adjacent to
the proposed critical habitat are currently protected or receive
special management; 13.4 km (8.4 mi.) on both sides of the river and
75.9 km (47.0 mi) on one side of the river only are managed as
conservation properties. However, approximately 150.8 km (93.7 mi) have
no protection. Various activities in or adjacent to each of the
critical habitat units described in this proposed rule may affect one
or more of the PCEs and may require special management considerations
or protection. Some of these activities include, but are not limited
to, those discussed in the ``Summary of Factors Affecting the
Species,'' above. Features in all of the proposed critical habitat
units may require special management due to threats posed by land-use
runoff and point- and nonpoint-source water pollution (see discussion
under Factor A and Factor D). Other activities that may affect PCEs in
the proposed critical habitat units include those listed in the
``Effects of Critical Habitat'' section below.
In summary, we find that the areas we are proposing as critical
habitat that were occupied at the time of listing contain the features
essential to the conservation of the Altamaha spinymussel, and that
these features may require special management considerations or
protection. Special management consideration or protection may be
required to eliminate, or to reduce to negligible levels, the threats
affecting each unit and to preserve and maintain the essential features
that the proposed critical habitat units provide to the Altamaha
spinymussel. Additional discussions of threats facing individual sites
are provided in the individual unit descriptions.
Criteria Used to Identify Proposed Critical Habitat
As required by section 4(b) of the Act, we used the best scientific
data available in determining areas within the geographical area
occupied by the species that contain the physical and biological
features essential to the conservation of the Altamaha spinymussel (see
above), and areas outside of the geographical area occupied by the
species that are essential for the conservation of the species. We are
proposing to designate as critical habitat all river channels that are
currently occupied by the species. We are also proposing to designate a
specific area not currently occupied but that was historically
occupied, because we have determined (1) that the area is essential for
the conservation of the Altamaha spinymussel, and (2) that designating
only occupied habitat is not sufficient to conserve this species.
When determining proposed critical habitat boundaries, we make
every effort
[[Page 61678]]
to avoid including developed areas such as lands covered by buildings,
pavement, and other structures because such lands usually lack PCEs for
endangered or threatened species. Areas proposed for critical habitat
for the Altamaha spinymussel include only stream channels within the
ordinary high water line, and do not contain any developed areas or
structures. The ordinary high water line defines the stream channel and
is the point on the stream bank where water is continuous and leaves
some evidence such as erosion or aquatic vegetation.
Occupied Stream Reaches Proposed as Critical Habitat
We have defined occupied habitat as those stream reaches known to
be currently occupied by the Altamaha spinymussel. We used information
from surveys and reports prepared by the GDNR, private contractors, and
Service field records to identify the specific locations occupied by
the Altamaha spinymussel.
Currently, the limited occupied habitat for this species is
extremely scattered and isolated. The Altamaha spinymussel persists in
scattered portions of the Altamaha and Ocmulgee Rivers (see Population
Estimates and Status above). We have determined that all occupied areas
contain features essential to the conservation of the species.
River habitats are highly dependent upon upstream and downstream
channel habitat conditions for their maintenance. Therefore, where one
occurrence record was known from a river reach, we considered the
entire reach between the uppermost and lowermost locations as occupied
habitat, as discussed below.
The Altamaha spinymussel is currently known to survive in scattered
populations along 223 km (138 mi) of the Ocmulgee and upper Altamaha
Rivers extending from Telfair and Ben Hill Counties to Long and Wayne
Counties, Georgia, except for a 2.7-km (1.7-mi) reach of river in the
vicinity of the Plant Hatch facility. From 1997 through 2009,
researchers searched 336 sites throughout the basin and documented 57
Altamaha spinymussels, with all occurrences widely scattered throughout
its current range. There are no known barriers to movement in this
range; therefore, we consider the entire 223-km (138-mi) reach between
the uppermost and lowermost collection sites for the Altamaha
spinymussel as occupied habitat. In the area proposed for critical
habitat, boundaries extend from the nearest downstream landmark at both
of ends of the reach.
Unoccupied Stream Reaches Proposed as Critical Habitat
The unoccupied stream reach we are proposing as critical habitat
was historically occupied (i.e., prior to 1997; see Table 1). We
believe that this reach is essential for Altamaha spinymussel
conservation because the range of the Altamaha spinymussel has been
severely curtailed, occupied habitats are limited and isolated, and
population sizes are extremely small, and the area meets the selection
criteria identified below. Furthermore, the occupied habitats are
contiguous, placing them at high risk of extirpation and extinction
from stochastic events. The inclusion of essential unoccupied areas, in
a separate tributary, will provide habitat for population
reintroduction, reduce the level of stochastic threats to the species'
survival, and decrease the risk of extinction for this species.
The area proposed as critical habitat that is not known to be
currently occupied meets all of the following criteria:
(1) It contains sufficient PCEs (for example, such characteristics
as geomorphically stable channels, perennial water flows, and
appropriate benthic substrates) to support life history functions of
the Altamaha spinymussel;
(2) It supports diverse aquatic mollusk communities, including the
presence of closely related species requiring PCEs similar to the
Altamaha spinymussel; and
(3) It is adjacent to currently occupied areas where there is
potential for natural dispersal and reoccupation by the Altamaha
spinymussel.
In identifying unoccupied river reaches that could be essential for
the conservation of the Altamaha spinymussel, we first considered the
availability of potential habitat throughout the historical range that
may be suitable for the survival and persistence of the species. We
also eliminated from consideration free-flowing rivers or river
segments without any historical records of occurrence (that is the
Little Ocmulgee River and the upper portions of the Oconee and Ocmulgee
Rivers). We eliminated the lower Oconee River and the lower portion of
the Altamaha River from consideration because of poor water quality and
limited habitat availability.
We have identified 14.4 km (9 mi) of habitat in the Ohoopee River
that is currently unoccupied by the Altamaha spinymussel and that meets
the criteria for designation as critical habitat. Historical records of
Altamaha spinymussel occurred in the lower portions of the Ohoopee
River. Keferl (1981, p. 15) referred to the Ohoopee as a possible
refugia for the Altamaha spinymussel. However, extreme drought and all-
terrain vehicle disturbance appear to have extirpated the species from
otherwise suitable habitat. This river habitat meets criteria (1), (2),
and (3) identified above and is therefore considered essential to the
conservation of the Altamaha spinymussel.
Proposed Critical Habitat Designation
We are proposing four units, totaling approximately 240 km (149
mi), as critical habitat for the Altamaha spinymussel. Georgia owns
navigable stream bottoms within the ordinary high water line. All
proposed units are considered navigable and, as stated more fully
below, critical habitat is proposed for the stream channel within the
ordinary high water line only; accordingly, the State of Georgia owns
the stream bottoms within all of the areas proposed for designation as
critical habitat. Lands adjacent to critical habitat units are either
in private ownership or are conservation lands. Table 2 identifies the
proposed units, occupancy of the units, and the approximate extent
proposed as critical habitat for the Altamaha spinymussel. It also
provides information on the ownership of lands adjacent to the river
within the proposed unit.
TABLE 2. Occupancy and ownership of lands adjacent to proposed critical habitat units for Altamaha spinymussel.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Length km Conservation/ Conservation km
Unit Location Occupancy (mi) Private km (mi) Private km (mi) (mi)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1 Ocmulgee River Occupied 110 (68.3) 89.2 (55.4) 14.3 (8.8) 6.4 (4.0)
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 61679]]
2A Upper Altamaha Occupied 31.4 (19.5) 2.7 (1.7) 21.6 (13.4) 7.1 (4.4)
River A
--------------------------------------------------------------------------------------------------------------------------------------------------------
2B Upper Altamaha Occupied 30.7 (19.1) 22.9 (14.2) 7.8 (4.9) 0 (0)
River B
--------------------------------------------------------------------------------------------------------------------------------------------------------
3 Middle Altamaha Occupied 50.9 (31.6) 18.8 (11.7) 32.1 (19.9) 0 (0)
River
--------------------------------------------------------------------------------------------------------------------------------------------------------
4 Lower Ohoopee Unoccupied 14.4 (9.0) 14.4 (9.0) 0 (0) 0 (0)
River
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total 240.2 (149.3) 150.8 (93.7) 75.9 (47) 13.4 (8.4)
--------------------------------------------------------------------------------------------------------------------------------------------------------
*Ownership is categorized by private ownership on both banks of the river (Private), conservation area on one bank and private on the other
(Conservation/Private), and conservation area on both banks (Conservation).
We present brief descriptions of all units and reasons why they
meet the definition of critical habitat for the Altamaha spinymussel.
The proposed critical habitat units include the river channels within
the ordinary high water line. As defined in 33 CFR 329.11, the ordinary
high water mark on nontidal rivers is the line on the shore established
by the fluctuations of water and indicated by physical characteristics,
such as a clear, natural line impressed on the bank; shelving; changes
in the character of soil; destruction of terrestrial vegetation; the
presence of litter and debris; or other appropriate means that consider
the characteristics of the surrounding areas. For each stream reach
proposed as a critical habitat unit, the upstream and downstream
boundaries are described generally below. More precise definitions are
provided in the Proposed Regulation Promulgation section at the end of
this proposed rule.
Unit 1: Ocmulgee River, Ben Hill, Telfair, Coffee, and Jeff Davis
Counties
Unit 1 includes 110 km (68.3 mi) of the lower Ocmulgee River from
the confluence of House Creek with the Ocmulgee River at Red Bluff
Landing in Ben Hill and Telfair Counties, downstream to the Altamaha
River (at the confluence of the Oconee and Ocmulgee Rivers, Jeff Davis
and Telfair Counties). Live Altamaha spinymussels have been collected
from 11 sites within proposed Unit 1, the uppermost near Red Bluff
(Thomas and Scott 1965, p. 67). Surveys conducted since 1997 on the
Ocmulgee River have yielded 19 Altamaha spinymussels from seven sites
(Cammack et al. 2001, p. 11; O'Brien 2002, p. 2; Dinkins 2004, pp. 1-1
and 2-1). The entire reach of the Ocmulgee River that composes proposed
Unit 1 is occupied. This unit contains all of the PCEs.
The Altamaha spinymussel and its habitat may require special
management considerations or protection to address changes in the
existing flow regime due to activities such as impoundment, water
diversion, or water withdrawal; alteration of water chemistry or water
quality; and changes in streambed material composition and quality from
activities that would release sediments or nutrients into the water,
such as deadhead logging (instream log salvage), construction projects,
livestock grazing, timber harvesting, and off-road vehicle use.
Unit 2: Upper Altamaha River, Wheeler, Toombs, Montgomery, Jeff Davis,
Appling, and Tatnall Counties
Unit 2 includes a total of 62.1 km (38.6 mi) of the Altamaha River
from the confluence of the Ocmulgee and Oconee Rivers (Wheeler and Jeff
Davis Counties) downstream to the confluence of the Altamaha and
Ohoopee Rivers (Appling and Tattnall Counties).
Unit 2A includes 31.4km (19.5mi) of the Altamaha River from the
confluence of the Ocmulgee and Oconee Rivers to the Route 1.
Unit 2B includes 30.7km (19.1mi) of the Altamaha River from the
upstream boundary of Moody forest to the confluence of the Altamaha and
Ohoopee Rivers.
However, we are not including in this critical habitat designation
a stretch of the Altamaha River from U.S. Route 1 downstream to the
State-owned property of Moody Forest (2.7 km (1.7 mi)), which includes
Plant Hatch. This area does not contain the PCEs necessary for the
Altamaha spinymussel due to:
(1) Dredging for intake pipes at Plant Hatch, which destabilizes
the river channel and banks, sandbar, slough, and mid-channel island
habitats and disrupts the movement of course to fine sand substrates
with low to moderate amounts of fine sediment; and
(2) Thermal discharges from Plant Hatch that reduce water quality.
In the upper Altamaha River, historic surveys collected Altamaha
spinymussels from 15 sites, while recent surveys have collected live
Altamaha spinymussels from only two sites; dead shells have been
collected from an additional 14 sites (Sickel 1967; Keferl 1995, p. 3;
Cammack et al. 2001, p. 11, O'Brien 2002, p. 2; Wisniewski 2009, pers.
comm.). The entire reach of the Altamaha River that composes proposed
Unit 2 is occupied. This unit contains all of the PCEs.
The Altamaha spinymussel and its habitat may require special
management considerations or protection to address changes in the
existing flow regime due to activities such as impoundment, water
diversion, or water withdrawal; alteration of water chemistry or water
quality; and changes in streambed material composition and quality from
activities that would release sediments or nutrients into the water,
such as deadhead logging (instream log salvage), construction projects,
livestock grazing, timber harvesting, and off-road vehicle use.
Unit 3: Middle Altamaha River, Tattnall, Appling, Wayne, and Long
Counties
Unit 3 includes approximately 50.9 km (31.6 mi) of the Altamaha
River from the confluence with the Ohoopee (Tattnall and Appling
Counties) downstream to U.S. Route 301 (Wayne and Long Counties).
Historic and recent
[[Page 61680]]
surveys of the middle Altamaha River have yielded live Altamaha
spinymussels from 26 sites. Dead shells were found at an additional 13
sites (Keferl 1981, p. 14; Keferl 1995, p. 3; Cammack et al. 2001, p.
11; O'Brien 2002, p. 2; Wisniewski 2009, pers. comm.). The entire reach
of the Altamaha River that composes proposed Unit 3 is occupied. This
unit contains all of the PCEs.
The Altamaha spinymussel and its habitat may require special
management considerations or protection to address changes in the
existing flow regime due to such activities as impoundment, water
diversion, or water withdrawal; alteration of water chemistry or water
quality; and changes in streambed material composition and quality from
activities that would release sediments or nutrients into the water,
such as deadhead logging (instream log salvage), construction projects,
livestock grazing, timber harvesting, and off-road vehicle use.
Unit 4: Lower Ohoopee River, Tattnall County
Unit 4 includes the lower 14.4 km (9 mi) of the Ohoopee River, from
2.2 km (1.3 mi) upstream of Tattnall County Road 191, downstream to the
confluence of the Ohoopee and the Altamaha River in Tattnall County,
Georgia.
The Altamaha spinymussel historically occupied this stretch of the
Ohoopee River but has not been found here since the mid-1990s
(Stringfellow and Gagnon 2001, pp. 1-2) and is considered extirpated.
Historic collections were made from seven sites (Keferl 1981, p. 14).
Keferl (1981, p. 15) considered the Ohoopee to contain excellent
habitat that would serve as a refuge for declining mussel populations.
This stretch of the Ohoopee River contains PCEs I, III and IV for the
Altamaha spinymussel, and continues to support four species commonly
associated with the presence of the Altamaha spinymussel: Elliptio
dariensis (75 percent of sites with E. spinosa), E. hopetonensis (93
percent), E. shepardiana (80 percent), and Lampsilis dolabraeformis (90
percent). Lampsilis splendida was found at 72 percent of sites
(Wisniewski 2009, pers. comm.). The Ohoopee does not meet state water
quality standards for mercury, however, EPA will begin revising needed
load reductions in 2011 (EPA 2002b, p. 2).
Proposed critical habitat units 1, 2, and 3 are contiguous, making
them very vulnerable to a catastrophic event that could eliminate all
known occupied habitat for the Altamaha spinymussel. Therefore, we
believe that the stream segment within this unit is essential to the
conservation of the species.because re-establishing the Altamaha
spinymussel on a separate tributary such as the Ohoopee River would
significantly reduce the level of stochastic threats to the species'
survival.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. Decisions
by the courts of appeals for the Fifth and Ninth Circuits Court of
Appeals have invalidated our definition of ``destruction or adverse
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S.
Fish and Wildlife Service, 378 F. 3d 1059 (9\th\ Cir. 2004) and Sierra
Club v. U.S. Fish and Wildlife Service et al., 245 F. 3d 434, 442F
(5\th\ Cir. 2001)), and we do not rely on this regulatory definition
when analyzing whether an action is likely to destroy or adversely
modify critical habitat. Under the statutory provisions of the Act, we
determine destruction or adverse modification on the basis of whether,
with implementation of the proposed Federal action, the affected
critical habitat would remain functional (or retain those physical and
biological features that relate to the ability of the area to
periodically support the species) to serve its intended conservation
role for the species.
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of the species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. As a result of this consultation,
we document compliance with the requirements of section 7(a)(2) through
our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species or
destroy or adversely modify critical habitat, we also provide
reasonable and prudent alternatives to the project, if any are
identifiable. We define ``Reasonable and prudent alternatives'' at 50
CFR 402.02 as alternative actions identified during consultation that:
Can be implemented in a manner consistent with the intended
purpose of the action,
Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
Are economically and technologically feasible, and
Would, in the Director's opinion, avoid jeopardizing the
continued existence of the listed species or destroying or adversely
modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies may sometimes need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Federal activities that may affect Altamaha spinymussel or its
designated critical habitat require section 7 consultation under the
Act. Activities on State, Tribal, local, or private lands requiring a
Federal permit (such as a permit from the U.S. Army Corps of Engineers
under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a
permit from us under section 10 of the Act) or involving some other
Federal action (such as funding from the Federal Highway
Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency) are subject to the section 7 consultation
process. Federal actions not affecting listed species or critical
habitat, and actions on State, Tribal, local, or private lands that are
not federally funded, authorized, or permitted, do not require section
7 consultations.
[[Page 61681]]
Application of the Jeopardy and Adverse Modification Standard
Jeopardy Standard
Prior to and following listing and designation of critical habitat,
the Service applies an analytical framework for jeopardy analyses that
relies heavily on the importance of core area populations to the
survival and recovery of the species. The section 7(a)(2) analysis is
focused not only on these populations but also on the habitat
conditions necessary to support them.
The jeopardy analysis usually expresses the survival and recovery
needs of the species in a qualitative fashion without making
distinctions between what is necessary for survival and what is
necessary for recovery. Generally, if a proposed Federal action is
incompatible with the viability of the affected core area
population(s), inclusive of associated habitat conditions, a jeopardy
finding is considered to be warranted, because of the relationship of
each core area population to the survival and recovery of the species
as a whole.
Adverse Modification Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species, or would retain its current ability
for the PCEs to be functionally established. Activities that may
destroy or adversely modify critical habitat are those that alter the
physical and biological features to an extent that appreciably reduces
the conservation value of critical habitat for the Altamaha
spinymussel.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation.
Activities that, when carried out, funded, or authorized by a
Federal agency, may affect critical habitat and therefore should result
in consultation for the Altamaha spinymussel include, but are not
limited to:
(1) Actions that would alter the geomorphology of their stream and
river habitats. Such activities could include, but are not limited to,
instream excavation or dredging, impoundment, channelization, and
discharge of fill materials. These activities could cause aggradation
or degradation of the channel bed elevation or significant bank
erosion, result in entrainment or burial of these mollusks, and cause
other direct or cumulative adverse effects to these species and their
life cycles.
(2) Actions that would significantly alter the existing flow
regime. Such activities could include, but are not limited to,
impoundment, water diversion, water withdrawal, and hydropower
generation. These activities could eliminate or reduce the habitat
necessary for growth and reproduction of these mollusks.
(3) Actions that would significantly alter water chemistry or water
quality (for example, temperature, pH, contaminants, and excess
nutrients). Such activities could include, but are not limited to,
hydropower discharges, or the release of chemicals, biological
pollutants, or heated effluents into surface water or connected
groundwater at a point source or by dispersed release (nonpoint
source). These activities could alter water conditions that are beyond
the tolerances of these mollusks and result in direct or cumulative
adverse effects to the species and their life cycles.
(4) Actions that would significantly alter stream bed material
composition and quality by increasing sediment deposition or
filamentous algal growth. Such activities could include, but are not
limited to, construction projects, livestock grazing, timber harvest,
off-road vehicle use, and other watershed and floodplain disturbances
that release sediments or nutrients into the water. These activities
could eliminate or reduce habitats necessary for the growth and
reproduction of these mollusks by causing excessive sedimentation and
burial of the species or their habitats, or nutrification leading to
excessive filamentous algal growth. Excessive filamentous algal growth
can cause reduced night-time dissolved oxygen levels through
respiration and prevent mussel glochidia from settling into stream
sediments.
Exemptions
Application of Section 4(a)(3) of the Act
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.''
There are no Department of Defense lands with a completed
integrated natural resources management plan within the proposed
critical habitat designation for the Altamaha spinymussel.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary must designate
or make revisions to critical habitat on the basis of the best
available scientific data after taking into consideration the economic
impact, national security impact, and any other relevant impact of
specifying any particular area as critical habitat. The Secretary may
exclude an area from critical habitat if he determines that the
benefits of such exclusion outweigh the benefits of specifying such
area as part of the critical habitat, unless he determines, based on
the best scientific data available, that the failure to designate such
area as critical habitat will result in the extinction of the species.
In making that determination, the legislative history is clear that the
Secretary has broad discretion regarding which factor(s) to use and how
much weight to give to any factor.
Under section 4(b)(2) of the Act, we may exclude an area from
designated critical habitat based on economic impacts, impacts on
national security, and any other relevant impacts. In considering
whether to exclude a particular area from the designation, we must
identify the benefits of including the area in the designation,
identify the benefits of excluding the area from the designation, and
determine whether the benefits of exclusion outweigh the benefits of
inclusion. If, based on this analysis, we determine that the benefits
of exclusion outweigh the benefits of inclusion, we can exclude the
area only if such exclusion would not result in the extinction of the
species.
Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we are preparing an analysis of the probable
economic impacts of the proposed critical habitat designation and
related factors.
We will announce the availability of the draft economic analysis as
soon as it is completed, at which time we will seek public review and
comment. At
[[Page 61682]]
that time, copies of the draft economic analysis will be available for
downloading from the Internet at the Federal eRulemaking Portal: http:/
/www.regulations.gov, or by contacting the Georgia Ecological Services
Office directly (see FOR FURTHER INFORMATION CONTACT). During the
development of a final designation, we will consider economic impacts,
public comments, and other new information, and as an outcome of our
analysis of this information, we may exclude areas from the final
critical habitat designation under section 4(b)(2) of the Act and our
implementing regulations at 50 CFR 424.19.
National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the Department of Defense (DOD) where a
national security impact might exist. In preparing this proposal, we
have determined that the lands within the proposed designation of
critical habitat for the Altamaha spinymussel are not owned or managed
by the DOD, and therefore, we anticipate no impact to national
security.
Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. We consider a number of factors including whether landowners
have developed any conservation plans or other management plans for the
area, or whether there are conservation partnerships that would be
encouraged by designation of, or exclusion of lands from, critical
habitat. In addition, we look at any Tribal issues, and consider the
government-to-government relationship of the United States with tribal
entities. We also consider any social impacts that might occur because
of the designation.
In preparing this proposed rule, we have determined that there are
currently no conservation plans or other management plans for the
species, and the proposed designation does not include any Tribal lands
or trust resources. We anticipate no impact to Tribal lands,
partnerships, or management plans from this proposed critical habitat
designation.
Notwithstanding these decisions, as stated under ``Public
Comments'' above, we are seeking specific comments on whether any areas
we are proposing for designation should be excluded under section
4(b)(2) of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing encourages and results in
conservation actions by Federal, State, and private agencies; groups;
and individuals. The Act provides for possible land acquisition and
cooperation with the States and requires that recovery actions be
carried out for all listed species. The protection required of Federal
agencies and the prohibitions against taking are discussed, in part,
below.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is proposed or
listed as endangered or threatened and with respect to its critical
habitat, if any is being or has been designated. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402. Federal agencies are required to confer
with us informally on any action that is likely to jeopardize the
continued existence of a proposed species, or result in destruction or
adverse modification of proposed critical habitat. If a species is
listed subsequently, section 7(a)(2) requires Federal agencies to
ensure that activities they authorize, fund, or carry out are not
likely to jeopardize the continued existence of such a species or to
destroy or adversely modify its critical habitat. If a Federal action
may affect a listed species or its critical habitat, the responsible
Federal agency must enter into formal consultation with the Service.
Federal activities that may affect the Altamaha spinymussel
include, but are not limited to, the carrying out or the issuance of
permits for reservoir construction, stream alterations, discharges,
wastewater facility development, water withdrawal projects, pesticide
registration, mining, and road and bridge construction. It has been the
experience of the Service, however, that nearly all section 7
consultations have been resolved so that species have been protected
and the project objectives have been met.
Listing the Altamaha spinymussel initiates the development and
implementation of a rangewide recovery plan for the species. This plan
will bring together Federal, State, and local agency efforts for the
conservation of this species. Recovery plans establish a framework for
agencies to coordinate their recovery efforts. The plans set recovery
priorities and estimate the costs of the tasks necessary to accomplish
the priorities. They also describe the site-specific actions necessary
to achieve conservation and survival of each species.
Listing also will require us to review any actions on Federal lands
and activities under Federal jurisdiction that may affect the Altamaha
spinymussel; allow State plans to be developed under section 6 of the
Act; encourage scientific investigations of efforts to enhance the
propagation or survival of the species under section 10(a)(1)(A) of the
Act; and promote habitat conservation plans on non-Federal lands under
section 10(a)(1)(B) of the Act.
The Act and its implementing regulations found at 50 CFR 17.21 set
forth a series of general prohibitions and exceptions that apply to all
endangered wildlife. These prohibitions, in part, make it illegal for
any person subject to the jurisdiction of the United States to take
(includes harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect, or to attempt any of these), import or export,
ship in interstate commerce in the course of commercial activity, or
sell or offer for sale in interstate or foreign commerce any listed
species. It also is illegal to possess, sell, deliver, carry,
transport, or ship any wildlife that has been taken illegally. Certain
exceptions apply to agents of the Service and State conservation
agencies.
Permits may be issued to carry out otherwise prohibited activities
involving endangered wildlife species under certain circumstances.
Regulations governing permits are set forth at 50 CFR 17.22 and 17.23.
Such permits are available for scientific purposes, to enhance the
propagation or survival of the species and for incidental take in
connection with otherwise lawful activities.
Under the Interagency Cooperative Policy for Endangered Species Act
Section 9 Prohibitions, published in the Federal Register on July 1,
1994 (59 FR 34272), we identify to the maximum extent practicable those
activities that would or would not constitute a violation of section 9
of the Act if the Altamaha spinymussel is listed. The intent of this
policy is to increase public awareness as to the effects of this
proposed listing on future and ongoing activities within a species'
range. We believe, based on the best available information, that the
following actions will not result in a violation of the provisions of
section 9 of the Act, provided these actions are carried out in
accordance with existing regulations and permit requirements:
[[Page 61683]]
(1) Possession, delivery, or movement, including interstate
transport that does not involve commercial activity, of specimens of
these species that were legally acquired prior to the addition of the
Altamaha spinymussel to the Federal List of Endangered or Threatened
Wildlife;
(2) Discharges into waters supporting the Altamaha spinymussel,
provided these activities are carried out in accordance with existing
regulations and permit requirements (e.g., activities subject to
section 404 of the Clean Water Act and discharges regulated under the
National Pollutant Discharge Elimination System (NPDES));
(3) Development and construction activities designed and
implemented under State and local water quality regulations and
implemented using approved best management practices; and
(4) Any actions that may affect the Altamaha spinymussel that are
authorized, funded, or carried out by a Federal agency (such as bridge
and highway construction, pipeline construction, hydropower licensing),
when the action is conducted in accordance with the consultation
requirements for listed species under section 7 of the Act.
Potential activities that we believe will likely be considered a
violation of section 9 of the Act if this species becomes listed,
include, but are not limited to, the following:
(1) Unauthorized possession, collecting, trapping, capturing,
harming, killing, harassing, sale, delivery, or movement, including
interstate and foreign commerce, or attempting any of these actions,
with the Altamaha spinymussel;
(2) Unlawful destruction or alteration of their habitats (such as
unpermitted instream dredging, impoundment, channelization, or
discharge of fill material) that impairs essential behaviors, such as
breeding, feeding, or sheltering, or results in killing or injuring the
Altamaha spinymussel;
(3) Violation of any discharge or water withdrawal permit that
results in harm or death to any individuals of this species or that
results in degradation of its occupied habitat to an extent that
essential behaviors such as breeding, feeding and sheltering are
impaired; and
(4) Unauthorized discharges or dumping of toxic chemicals or other
pollutants into waters supporting the Altamaha spinymussel that kills
or injures or otherwise impairs essential life-sustaining requirements,
such as reproduction, food, or shelter.
Other activities not identified above will be reviewed on a case-
by-case basis to determine if a violation of section 9 of the Act may
be likely to result from such activity should we list the Altamaha
spinymussel as endangered. The Service does not consider the
description of future and ongoing activities provided above to be
exhaustive; we provide them simply as information to the public.
If you have questions regarding whether specific activities will
likely violate the provisions of section 9 of the Act, contact the
Georgia Ecological Services Office (see FOR FURTHER INFORMATION
CONTACT). Requests for copies of regulations regarding listed species
and inquiries about prohibitions and permits should be addressed to the
U.S. Fish and Wildlife Service, Ecological Services Division, 1875
Century Boulevard, Atlanta, GA 30345 (phone 404-679-7313; fax 404-679-
7081).
Peer Review
In accordance with our joint policy published in the Federal
Register on July 1, 1994 (59 FR 34270), we will seek the expert
opinions of at least three appropriate and independent specialists
regarding this proposed rule. The purpose of such review is to ensure
that our proposed rule is based on scientifically sound data,
assumptions, and analyses. We will send copies of this proposed rule to
these peer reviewers immediately following publication in the Federal
Register. We will invite these peer reviewers to comment, during the
public comment period, on the specific assumptions and conclusions
regarding our proposal to list the Altamaha spinymussel as endangered
and our decision regarding critical habitat for this species. We will
consider all comments and information received during the comment
period on this proposed rule during preparation of a final rulemaking.
Accordingly, the final decision may differ from this proposal.
Public Hearings
Section 4(b)(5)(E) of the Act requires us to hold at least one
public hearing on this proposal, if properly requested. Requests for
public hearings must be made in writing within 45 days of the
publication of this proposal in the Federal Register (see DATES). We
will schedule public hearings on this proposal, if any are requested,
and announce the dates, times, and places of those hearings in the
Federal Register and local newspapers at least 15 days prior to the
first hearing.
Persons needing reasonable accommodations to attend and participate
in the public hearings should phone James Rickard at (706) 613-9493 as
soon as possible. To allow sufficient time to process requests, please
call no later than one week before the hearing date. Information
regarding the proposal is available in alternative formats upon
request.
Required Determinations
Regulatory Planning and Review -- Executive Order 12866
The Office of Management and Budget (OMB) has determined that this
rule is not significant under Executive Order 12866 (E.O. 12866). OMB
bases its determination upon the following four criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (small businesses,
small organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. The SBREFA amended the RFA to
require Federal agencies to provide a statement of the factual basis
for certifying that the rule will not have a significant economic
impact on a substantial number of small entities.
Small entities include small organizations, such as independent
nonprofit organizations; small governmental jurisdictions, including
school boards and city and town governments that serve fewer than
50,000 residents; as well as small businesses. Small businesses include
manufacturing and mining concerns
[[Page 61684]]
with fewer than 500 employees, wholesale trade entities with fewer than
100 employees, retail and service businesses with less than $5 million
in annual sales, general and heavy construction businesses with less
than $27.5 million in annual business, special trade contractors doing
less than $11.5 million in annual business, and agricultural businesses
with annual sales less than $750,000. To determine whether potential
economic impacts to these small entities are significant, we consider
the types of activities that might trigger regulatory impacts under
this rule, as well as the types of project modifications that may
result. In general, the term ``significant economic impact'' is meant
to apply to a typical small business firm's business operations.
At this time, we lack the specific information necessary to provide
an adequate factual basis for determining the potential incremental
regulatory effects of the designation of critical habitat for the
Altamaha spinymussel to either develop the required RFA finding or
provide the necessary certification statement that the designation will
not have a significant impact on a substantial number of small business
entities. On the basis of the development of our proposal, we have
identified certain sectors and activities that may potentially be
affected by a designation of critical habitat for the Altamaha
spinymussel. These sectors include industrial development and
urbanization along with the accompanying infrastructure associated with
such projects such as road, stormwater drainage, bridge and culvert
construction and maintenance. We recognize that not all of these
sectors may qualify as small business entities. However, while
recognizing that these sectors and activities may be affected by this
designation, we are collecting information and initiating our analysis
to determine (1) which of these sectors or activities are or involve
small business entities and (2) what extent the effects are related to
the Altamaha spinymussel being listed as an endangered species under
the Act (baseline effects) or whether the effects are attributable to
the designation of critical habitat (incremental). We believe that the
potential incremental effects resulting from a designation will be
small. As a consequence, following an initial evaluation of the
information available to us, we do not believe that there will be a
significant impact on a substantial number of small business entities
resulting from this designation of critical habitat for the Altamaha
spinymussel. However, we will be conducting a thorough analysis to
determine if this may in fact be the case. As such, we are requesting
any specific economic information related to small business entities
that may be affected by this designation and how the designation may
impact their business. Therefore, we defer our RFA finding on this
proposal designation until completion of the draft economic analysis
prepared under section 4(b)(2) of the Act and E.O. 12866.
As discussed above, this draft economic analysis will provide the
required factual basis for the RFA finding. Upon completion of the
draft economic analysis, we will announce availability of the draft
economic analysis of the proposed designation in the Federal Register
and reopen the public comment period for the proposed designation. We
will include with this announcement, as appropriate, an initial
regulatory flexibility analysis or a certification that the rule will
not have a significant economic impact on a substantial number of small
entities accompanied by the factual basis for that determination. We
conclude that deferring the RFA finding until completion of the draft
economic analysis is necessary to meet the purposes and requirements of
the RFA. Deferring the RFA finding in this manner will ensure that we
make a sufficiently informed determination based on adequate economic
information and provide the necessary opportunity for public comment.
Unfunded Mandates Reform Act
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), the Service makes the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute or regulation
that would impose an enforceable duty upon State, local, tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement. ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance or (ii) a
duty arising from participation in a voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not jeopardize the continued existence of
the species, or destroy or adversely modify critical habitat under
section 7. While non-Federal entities that receive Federal funding,
assistance, or permits, or that otherwise require approval or
authorization from a Federal agency for an action, may be indirectly
impacted by the designation of critical habitat, the legally binding
duty to avoid destruction or adverse modification of critical habitat
rests squarely on the Federal agency. Furthermore, to the extent that
non-Federal entities are indirectly impacted because they receive
Federal assistance or participate in a voluntary Federal aid program,
the Unfunded Mandates Reform Act would not apply; nor would listing
these species or designating critical habitat shift the costs of the
large entitlement programs listed above on to State governments.
(b) We do not believe that this rule will significantly or uniquely
affect small governments because the Altamaha spinymussel only occurs
in navigable waters in which the river bottom is owned by the State of
Georgia. However, the adjacent upland properties are owned by private
entities, the State, or Federal partners (see Table 2). As such, a
Small Government Agency Plan is not required. We will, however, further
evaluate this issue as we conduct our economic analysis and revise this
assessment if appropriate.
[[Page 61685]]
Takings
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating critical habitat for the Altamaha spinymussel in a takings
implications assessment. The takings implications assessment concludes
that this designation of critical habitat for the Altamaha spinymussel
does not pose significant takings implications.
Federalism
In accordance with Executive Order 13132 (Federalism), the rule
does not have significant Federalism effects. A Federalism assessment
is not required. In keeping with Department of the Interior and
Department of Commerce policy, we requested information from, and
coordinated development of this proposed critical habitat designation
with appropriate State resource agencies in Georgia. The critical
habitat designation may have some benefit to this government in that
the areas that contain the features essential to the conservation of
the species are more clearly defined, and the PCEs of the habitat
necessary to the conservation of the species are specifically
identified. While making this definition and identification does not
alter where and what federally sponsored activities may occur, it may
assist these local governments in long-range planning (rather than
waiting for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform
In accordance with E.O. 12988 (Civil Justice Reform), the Office of
the Solicitor has determined that the rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order. We are proposing designating critical habitat in
accordance with the provisions of the Act. This proposed rule uses
standard property descriptions and identifies the PCEs within the
designated areas to assist the public in understanding the habitat
needs of the Altamaha spinymussel.
Paperwork Reduction Act of 1995
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (NEPA)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be
prepared in connection with regulations adopted under section 4(a)(1)
of the Act. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244).
Also, it is our position that, outside the jurisdiction of the U.S.
Court of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses as defined by NEPA in connection with
designating critical habitat under section 4(a)(3) of the Act. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This position was
upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas
County v. Babbitt, 48 F. 3d 1495 (9th Cir. 1995), cert. denied 516 U.S.
1042 (1996)).
Government-to-Government Relationship with Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 ``American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species
Act'', we readily acknowledge our responsibilities to work directly
with Tribes in developing programs for healthy ecosystems, to
acknowledge that tribal lands are not subject to the same controls as
Federal public lands, to remain sensitive to Indian culture, and to
make information available to Tribes.
We have determined that there are no tribal lands occupied at the
time of listing that contain the features essential for the
conservation, and no tribal lands that are unoccupied areas that are
essential for the conservation, of the Altamaha spinymussel. Therefore,
we have not proposed designation of critical habitat for the Altamaha
spinymussel on Tribal lands.
Energy Supply, Distribution, or Use
On May 18, 2001, the President issued an Executive Order (E.O.
13211; Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use) on regulations that significantly affect
energy supply, distribution, and use. E.O. 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
We do not expect this rule to significantly affect energy supplies,
distribution, or use. Although two of the proposed units are below
hydropower reservoirs, current and proposed operating regimes have been
deemed adequate for the species, and therefore their operations will
not be affected by the proposed designation of critical habitat. All
other proposed units are remote from energy supply, distribution, or
use activities. Therefore, this action is not a significant energy
action, and no Statement of Energy Effects is required. However, we
will further evaluate this issue as we conduct our economic analysis,
and review and revise this assessment as warranted.
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you
[[Page 61686]]
should tell us the numbers of the sections or paragraphs that are
unclearly written, which sections or sentences are too long, the
sections where you feel lists or tables would be useful, etc.
References Cited
A complete list of all references cited in this rulemaking is
available upon request from the Field Supervisor, Georgia Ecological
Services Office (see FOR FURTHER INFORMATION CONTACT).
Author(s)
The primary author of this package is staff of the Georgia
Ecological Services Office (see FOR FURTHER INFORMATION CONTACT).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
1.The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Amend Sec. 17.11(h) by adding ``Spinymussel, Altamaha'' in
alphabetical order under CLAMS to the List of Endangered and Threatened
Wildlife, to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
------------------------------------------------ population where Critical
Historic range endangered or Status When listed habitat Special rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
CLAMS
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Spinymussel, Altamaha Elliptio spinosa U.S.A. (GA) NA E 17.95(f) NA
--------------------------------------------------------------------------------------------------------------------------------------------------------
...............
--------------------------------------------------------------------------------------------------------------------------------------------------------
...............
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. Amend Sec. 17.95(f) by adding an entry for ``Altamaha
spinymussel (Elliptio spinosa)'' in the same order that the species
appears in the table at Sec. 17.11(h), to read as set forth below:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(f) Clams and Snails.
* * * * *
Altamaha spinymussel (Elliptio spinosa)
(1) Critical habitat units are depicted for Appling, Ben Hill,
Coffee, Jeff Davis, Long, Montgomery, Tattnall, Telfair, Toombs, Wayne
and Wheeler Counties, Georgia, on the maps below.
(2) The primary constituent elements (PCEs) of critical habitat for
the Altamaha spinymussel are the habitat components that provide:
(i) Geomorphically stable river channels and banks (channels that
maintain lateral dimensions, longitudinal profiles, and sinuosity
patterns over time without an aggrading or degrading bed elevation)
with stable sandbar, slough, and mid-channel island habitats of course
to fine sand substrates with low to moderate amounts of fine sediment
and attached filamentous algae.
(ii) A hydrologic flow regime (the magnitude, frequency, duration,
and seasonality of discharge over time) necessary to maintain benthic
habitats where the species are found. To maintain connectivity of
rivers with the floodplain, allowing the exchange of nutrients and
sediment for sand bar maintenance, food availability, and spawning
habitat for native fishes.
(iii) Water quality necessary for normal behavior, growth, and
viability of all life stages, including specifically temperature (less
than 32.6[deg]C (90.68 [deg]F) with less than 2[deg]C (3.6 [deg]F)
daily fluctuation)), pH (6.1 to 7.7), oxygen content (daily average DO
concentration of 5.0 mg/l and a minimum of 4.0 mg/l), Ammonia: 1.5 mg
N/L, 0.22 mg N/L (normalized to pH 8 and 25[deg]C (77[deg]F)) and other
chemical characteristics.
(iv) The presence of fish hosts (currently unknown) necessary for
recruitment of the Altamaha spinymussel. The continued occurrence of
diverse native fish assemblages currently occurring in the basin will
serve as an indication of host fish presence until appropriate host
fishes can be identified for the Altamaha spinymussel.
(3) Critical habitat does not include manmade structures existing
on the effective date of this rule and not containing one or more of
the PCEs, such as buildings, bridges, aqueducts, airports, and roads,
and the land on which such structures are located.
(4) Critical habitat unit maps. Maps were developed from USGS 7.5
minute quadrangles, and critical habitat unit upstream and downstream
limits were then identified by longitude and latitude using decimal
degrees.
(5) Note: Index map of critical habitat units for the Altamaha
spinymussel follows:
[[Page 61687]]
[GRAPHIC] [TIFF OMITTED] TP06OC10.007
(6) Unit 1: Ocmulgee River, Ben Hill, Telfair, Coffee, and Jeff
Davis Counties, Georgia.
(i) Unit 1 includes the channel of the Ocmulgee River from the
confluence of House Creek with the Ocmulgee at Red Bluff Landing
(longitude -83.18, latitude 31.85), Ben Hill and Telfair Counties,
Georgia, downstream to Altamaha River (longitude -82.54, latitude
31.96), at the confluence of the Oconee and Ocmulgee Rivers, Jeff Davis
and Telfair Counties, Georgia.
(ii) Note: Map of Unit 1 (Ocmulgee River) follows:
[GRAPHIC] [TIFF OMITTED] TP06OC10.008
(7) Unit 2: Upper Altamaha River, Wheeler, Toombs, Montgomery, Jeff
Davis, Appling, and Tattnall Counties, Georgia.
(i) Unit 2 includes the channel of the Altamaha River from the
confluence of the Ocmulgee and Oconee Rivers (longitude -82.54,
latitude 31.96), Wheeler and Jeff Davis Counties, Georgia, downstream
to the US 1 crossing (longitude -82.36, latitude 31.94), and from the
western edged or Moody Forest (longitude -82.33, latitude 31.93)
downstream to the confluence of
[[Page 61688]]
the Altamaha and Ohoopee Rivers (longitude -82.11, latitude 31.90),
Appling and Tattnall Counties, Georgia.
(ii) Note: Map of Unit 2 (Upper Altamaha River) follows:
[GRAPHIC] [TIFF OMITTED] TP06OC10.009
(8) Unit 3: Middle Altamaha River, Tattnall, Appling, Wayne, and
Long Counties, Georgia.
(i) Unit 3 includes the channel of Altamaha River, extending from
the confluence with the Ohoopee (longitude -82.11, latitude 31.90),
Tattnall and Appling Counties, Georgia, downstream to U.S. Route 301
(longitude -81.84, latitude 31.67), Wayne and Long Counties, Georgia.
(ii) Note: Map of Unit 3 (Middle Altamaha River) follows:
[[Page 61689]]
[GRAPHIC] [TIFF OMITTED] TP06OC10.010
(9) Unit 4: Lower Ohoopee River, Tattnall County, Georgia.
(i) Unit 4 includes the channel of the Ohoopee River, starting 2.2
km (1.3 mi) upstream of Tattnall County Road 191 (longitude -82.14,
latitude 31.98), Tattnall County, Georgia, downstream to the confluence
of the Ohoopee River with the Altamaha River (longitude -82.11,
latitude 31.90), Tattnall County, Georgia.
(ii)Note: Map of Unit 4 (Lower Ohoopee River) follows:
[GRAPHIC] [TIFF OMITTED] TP06OC10.011
[[Page 61690]]
* * * * *
Dated: August 12, 2010.
Jane Lyder,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2010-25026 Filed 10-5-10; 8:45 am]
BILLING CODE 4310-55-S