[Federal Register Volume 88, Number 161 (Tuesday, August 22, 2023)]
[Proposed Rules]
[Pages 57224-57290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17668]
[[Page 57223]]
Vol. 88
Tuesday,
No. 161
August 22, 2023
Part III
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Salamander Mussel and Designation of Critical Habitat;
Proposed Rule
Federal Register / Vol. 88 , No. 161 / Tuesday, August 22, 2023 /
Proposed Rules
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R3-ES-2023-0058; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BG38
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Salamander Mussel 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 (Service), propose to
list the salamander mussel (Simpsonaias ambigua), a freshwater mussel
species from the United States (Arkansas, Illinois, Indiana, Iowa,
Kentucky, Michigan, Minnesota, Missouri, New York, Ohio, Pennsylvania,
Tennessee, West Virginia, and Wisconsin) and Canada (Ontario), as an
endangered species under the Endangered Species Act of 1973, as amended
(Act). This determination also serves as our 12-month finding on a
petition to list the salamander mussel. After a review of the best
available scientific and commercial information, we find that listing
the species is warranted. Accordingly, we propose to list the
salamander mussel as an endangered species under the Act. We also
propose to designate critical habitat for the salamander mussel under
the Act. In total, approximately 2,012 river miles (3,238 kilometers)
in Indiana, Kentucky, Michigan, Minnesota, New York, Ohio,
Pennsylvania, Tennessee, West Virginia, and Wisconsin fall within the
boundaries of the proposed critical habitat designation. We announce
the availability of a draft economic analysis (DEA) of the proposed
designation of critical habitat for the salamander mussel. If we
finalize this rule as proposed, it would extend the Act's protections
to this species and its designated critical habitat.
DATES: We will accept comments received or postmarked on or before
October 23, 2023. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. eastern time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by October 6, 2023.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R3-ES-2023-0058,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R3-ES-2023-0058, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: Supporting materials, such as
the species status assessment report, are available on the Service's
website at https://www.fws.gov/species/salamander-mussel-simpsonaias-ambigua, at https://www.regulations.gov at Docket No. FWS-R3-ES-2023-
0058, or both. For the proposed critical habitat designation, the
coordinates or plot points or both from which the maps are generated
are included in the decision file for this critical habitat designation
and are available at https://www.regulations.gov at Docket No. FWS-R3-
ES-2023-0058 and on the Service's website at https://www.fws.gov/species/salamander-mussel-simpsonaias-ambigua.
FOR FURTHER INFORMATION CONTACT: Scott Hicks, Field Supervisor, U.S.
Fish and Wildlife Service, Michigan Ecological Services Field Office,
2651 Coolidge Road, East Lansing, MI 48823; telephone 517-351-2555.
Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species warrants
listing if it meets the definition of an endangered species (in danger
of extinction throughout all or a significant portion of its range) or
a threatened species (likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range). If we determine that a species warrants listing, we must list
the species promptly and designate the species' critical habitat to the
maximum extent prudent and determinable. We have determined that the
salamander mussel meets the definition of an endangered species;
therefore, we are proposing to list it as such and proposing a
designation of its critical habitat. Both listing a species as an
endangered or threatened species and designating critical habitat can
be completed only by issuing a rule through the Administrative
Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
What this document does. We propose to list the salamander mussel
as an endangered species under the Act, and we propose the designation
of critical habitat for the species.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (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. We have determined that the salamander mussel is
endangered due to the following threats: contaminants, hydrological
alterations to stream habitat, land use changes, loss of connectivity
among populations, and host species' vulnerabilities.
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary), to the maximum extent prudent and determinable, to
designate critical habitat concurrent with listing. Section 3(5)(A) of
the Act defines critical habitat as (i) the specific areas within the
geographical area occupied by the species, at the time it is listed, 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 protections; and (ii) specific areas
outside the geographical area occupied by the species at the time it is
listed, upon a determination by the Secretary that such areas are
essential for the conservation of the species. Section 4(b)(2) of the
Act states that the Secretary must make the designation on the basis of
the best scientific data
[[Page 57225]]
available and after taking into consideration the economic impact, the
impact on national security, and any other relevant impacts of
specifying any particular area as critical habitat.
Information Requested
We intend that any final action resulting from this proposed rule
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 other governmental agencies, Native
American Tribes, the scientific community, industry, or any other
interested parties concerning this proposed rule. We particularly seek
comments concerning:
(1) The species' biology, range, and population trends, including:
(a) Biological or ecological requirements of the species and its
host, including habitat requirements for feeding, breeding, and
sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns
and the locations of any additional populations of this species or its
host;
(d) Historical and current population levels, and current and
projected trends for this species or its host; and
(e) Past and ongoing conservation measures for the species, its
habitat, or its host.
(2) Threats and conservation actions affecting the species,
including:
(a) Factors that may be affecting the continued existence of the
species, which may include habitat modification or destruction,
overutilization, disease, predation, the inadequacy of existing
regulatory mechanisms, or other natural or manmade factors.
(b) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species.
(c) Existing regulations or conservation actions that may be
addressing threats to this species.
(3) Additional information concerning the historical and current
status of this species or its host.
(4) Specific information on:
(a) The amount and distribution of salamander mussel habitat;
(b) Any additional areas occurring within the range of the species
that should be included in the designation because they (i) are
occupied at the time of listing and contain the physical or biological
features that are essential to the conservation of the species and that
may require special management considerations or protection, or (ii)
are unoccupied at the time of listing and are essential for the
conservation of the species;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(d) Whether occupied areas are adequate for the conservation of the
species. This information will help us evaluate the potential to
include areas not occupied at the time of listing in the critical
habitat designation for the species. Please provide specific
information regarding whether or not unoccupied areas would, with
reasonable certainty, contribute to the conservation of the species and
contain at least one physical or biological feature essential to the
conservation of the species. We also seek comments or information
regarding whether areas not occupied at the time of listing qualify as
habitat for the species.
(5) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(6) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, and the related benefits of including or excluding
specific areas.
(7) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of the likely economic impacts and any additional information
regarding probable economic impacts that we should consider.
(8) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act. If you think we should exclude any
additional areas, please provide information supporting a benefit of
exclusion.
(9) 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.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a determination. Section 4(b)(1)(A) of
the Act directs that determinations as to whether any species is an
endangered or a threatened species must be made solely on the basis of
the best scientific and commercial data available, and section 4(b)(2)
of the Act directs that the Secretary shall designate critical habitat
on the basis of the best scientific data available.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes 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. We
will post all hardcopy submissions on https://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov.
Our final determination may differ from this proposal because we
will consider all comments we receive during the comment period as well
as any information that may become available after this proposal. Based
on the new information we receive (and, if relevant, any comments on
that new information), we may conclude that the species is threatened
instead of endangered, or we may conclude that the species does not
warrant listing as either an endangered species or a threatened
species. For critical habitat, our final designation may not include
all areas proposed, may include some additional areas that meet the
definition of critical habitat, or may exclude some areas if we find
the benefits of exclusion outweigh the benefits of inclusion and
exclusion will not result in the extinction of the species. In our
final rule, we will clearly explain our rationale and the basis for our
final decision, including why we made changes, if any, that differ from
this proposal.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such
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requests must be sent to the address shown in FOR FURTHER INFORMATION
CONTACT. We will schedule a public hearing on this proposal, if
requested, and announce the date, time, and place of the hearing, as
well as how to obtain reasonable accommodations, in the Federal
Register and local newspapers at least 15 days before the hearing. We
may hold the public hearing in person or virtually via webinar. We will
announce any public hearing on our website, in addition to the Federal
Register. The use of virtual public hearings is consistent with our
regulations at 50 CFR 424.16(c)(3).
Previous Federal Actions
We identified the salamander mussel as a ``Category 2'' candidate
in our May 22, 1984, Review of Invertebrate Wildlife for Listing as
Endangered or Threatened Species (49 FR 21664). Category 2 candidates
were defined as taxa for which we had information that proposed listing
was possibly appropriate, but conclusive data on biological
vulnerability and threats were not available to support a proposed rule
at the time. The salamander mussel remained a Category 2 candidate in
subsequent candidate notices of review (CNORs) (54 FR 554, January 6,
1989; 56 FR 58804, November 21, 1991; 59 FR 58982, November 15, 1994).
In the February 28, 1996, CNOR (61 FR 7596), we discontinued the
designation of Category 2 species as candidates; therefore, the
salamander mussel was no longer a candidate species.
On April 20, 2010, we received a petition from the Center for
Biological Diversity (CBD), Alabama Rivers Alliance, Clinch Coalition,
Dogwood Alliance, Gulf Restoration Network, Tennessee Forests Council,
and West Virginia Highlands Conservancy, to list 404 aquatic, riparian,
and wetland species, including the salamander mussel, from the
southeastern United States as endangered or threatened species and to
designate critical habitat concurrent with listing under the Act. On
September 27, 2011, we published a partial 90-day finding in the
Federal Register (76 FR 59836), concluding that the petition presented
substantial information that indicated listing the salamander mussel
may be warranted.
Peer Review
A species status assessment (SSA) team prepared an SSA report for
the salamander mussel. The SSA team was composed of Service biologists,
in consultation with other species experts. The SSA report represents a
compilation of the best scientific and commercial data available
concerning the status of the species, including the impacts of past,
present, and future factors (both negative and beneficial) affecting
the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we solicited independent scientific
review of the information contained in the SSA report for the
salamander mussel. We sent the SSA report to three independent peer
reviewers, but we did not receive any responses.
I. Proposed Listing Determination
Background
The salamander mussel is a small, thin-shelled species of
freshwater mussel currently found across 14 U.S. States (Arkansas,
Illinois, Indiana, Iowa, Kentucky, Michigan, Minnesota, Missouri, New
York, Ohio, Pennsylvania, Tennessee, West Virginia, and Wisconsin) and
one Canadian province (Ontario) (see figure 1, below). The salamander
mussel inhabits rivers and streams with fairly swift velocities but
prefers shelter habitat with space under slab rock/bedrock crevice-type
structures that are dark, where they are in contact with a solid
surface, and where there is stability from swift current.
BILLING CODE 4333-15-P
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[GRAPHIC] [TIFF OMITTED] TP22AU23.015
BILLING CODE 4333-15-C
Similar to other freshwater mussels, the salamander mussel has a
unique life cycle that relies on a host for successful reproduction.
However, the salamander mussel is the only freshwater mussel in North
America to use a non-fish host. The mudpuppy (Necturus maculosus), the
only host for the salamander mussel, is a fully aquatic salamander
species that tends to be present within the same habitat preferred by
the salamander mussel during the summer and fall when female mudpuppies
are guarding their nests under large flat rocks. The salamander
mussel's larvae (called glochidia) develop on the gills of the mudpuppy
before falling off into the stream substrate.
Like other freshwater mussels, the salamander mussel feeds on
particles, including phytoplankton, zooplankton, rotifers, protozoans,
detritus, and dissolved organic matter, in sediments or suspended in
the water column. The salamander mussel lives for approximately 10
years. The age of sexual maturity is not known.
A thorough review of the taxonomy, life history, and ecology of the
salamander mussel is presented in detail in the SSA report (Service
2023, pp. 3-10).
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for threatened and
endangered species. In 2019, jointly with the National Marine Fisheries
Service, the Service issued a final rule that revised the regulations
in 50 CFR part 424 regarding how we add, remove, and reclassify
endangered and threatened species and the criteria for designating
listed species' critical habitat (84 FR 45020; August 27, 2019). On the
same day, the Service also issued final regulations that, for species
listed as threatened species after September 26, 2019, eliminated the
Service's general protective regulations automatically applying to
threatened species the prohibitions that section 9 of the Act applies
to endangered species (84 FR 44753; August 27, 2019).
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(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.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may
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have a negative effect on individuals of the species, as well as other
actions or conditions that may ameliorate any negative effects or may
have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species now and in the
foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as we can
reasonably determine that both the future threats and the species'
responses to those threats are likely. In other words, the foreseeable
future is the period of time in which we can make reliable predictions.
``Reliable'' does not mean ``certain''; it means sufficient to provide
a reasonable degree of confidence in the prediction. Thus, a prediction
is reliable if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define the foreseeable
future as a particular number of years. Analysis of the foreseeable
future uses the best scientific and commercial data available and
should consider the timeframes applicable to the relevant threats and
to the species' likely responses to those threats in view of its life-
history characteristics. Data that are typically relevant to assessing
the species' biological response include species-specific factors such
as lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be proposed for listing as an endangered
or threatened species under the Act. However, it does provide the
scientific basis that informs our regulatory decisions, which involve
the further application of standards within the Act and its
implementing regulations and policies.
To assess salamander mussel viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency is the ability of the species to withstand environmental and
demographic stochasticity (for example, wet or dry, warm or cold
years), redundancy is the ability of the species to withstand
catastrophic events (for example, droughts, large pollution events),
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment
(for example, climate conditions, pathogens). In general, species
viability will increase with increases in resiliency, redundancy, and
representation (Smith et al. 2018, p. 306). Using these principles, we
identified the species' ecological requirements for survival and
reproduction at the individual, population, and species levels, and
described the beneficial and risk factors influencing the species'
viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.
The following is a summary of the key results and conclusions from
the SSA report; the full SSA report can be found at https://www.regulations.gov under Docket No. FWS-R3-ES-2023-0058 and at https://www.fws.gov/species/salamander-mussel-simpsonaias-ambigua.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability.
Species Needs
We assessed the best available information to identify the physical
and biological needs at the individual, population, and species levels
for the salamander mussel. Full descriptions of all needs are available
in chapter 2 of the SSA report (Service 2023, pp. 3-10). Based upon the
best available scientific and commercial information, the resource
needs for salamander mussel are characterized as:
Shelter habitat with flat rocks and bedrock crevices free
of excessive silt and fine sediments.
A hydrologic flow regime (the severity, frequency,
duration, and seasonality of discharge over time) that maintains the
rock structures and aquatic habitat where the salamander mussel and
mudpuppy are found. Adequate flows provide for the exchange of
nutrients and sediment; ensure delivery of oxygen; reduce contaminants
and fine sediments from interstitial spaces; deliver food to filter-
feeding mussels; and enable newly transformed salamander mussel
juveniles and young mudpuppies to disperse, settle, and become
established. Stream velocity is not static over time, and variations
may be attributed to seasonal changes (with higher flows in winter/
spring and lower flows in summer/fall), extreme weather events (e.g.,
drought or floods), or
[[Page 57229]]
anthropogenic influence (e.g., flow regulation via impoundments).
Water and sediment quality, such as (but not limited to)
dissolved oxygen above 5 milligrams per liter (mg/L); water
temperatures generally below 86 degrees Fahrenheit ([deg]F) (30 degrees
Celsius ([deg]C)); concentrations of ammonia, metals, and other
pollutants below acute toxicity levels; and an absence of excessive
total suspended solids.
Habitat connectivity (that is, a lack of barriers for
passage of mudpuppy hosts and dispersal of mussels).
The presence and abundance of the mudpuppy host, necessary
for recruitment of the salamander mussel.
Appropriate food sources (phytoplankton, zooplankton,
rotifers, protozoans, detritus, and dissolved organic matter) in
adequate supply.
Threats Analysis
We identified contaminants, hydrological regime, landscape
alteration, lack of connectivity, invasive species, and host
vulnerability as the primary threats to evaluate for the salamander
mussel (Service 2023, pp. 11-17). We also evaluated sedimentation,
water temperature, drought, dissolved oxygen, mussel disease, and
resource extraction. These threats are summarized below. More detailed
information on these threats can be found in appendix B of the SSA
report (Service 2023, pp. 81-103).
Contaminants
Freshwater mussels are among the most sensitive freshwater species
to metals, ammonia, and ion constituents, including copper, sulfate,
alachlor, nickel, chloride, sulfate, zinc, and potassium (Wang et al.
2017, pp. 786-796). In particular, freshwater mussels are very
sensitive to ammonia (Augspurger et al. 2003, pp. 2569-2575). Ammonia
is widespread within the aquatic environment; typical sources include
agricultural wastes (animal feedlots and nitrogenous fertilizers),
municipal wastewater treatment plants, and industrial waste, as well as
precipitation and natural processes, such as decomposition of organic
nitrogen (Augspurger et al. 2003, p. 2569; Goudreau et al. 1993, p.
212).
Sources of contaminants can include point (for example, wastewater
treatment and industrial effluents, targeted lampricide treatment for
management of invasive sea lamprey) and non-point (for example, runoff
comprised of fertilizer, pesticide, road salts, grease, and oil)
sources resulting from urbanization, agriculture, toxic spills, aquatic
invasive species treatments, and resource extraction and mining (Gillis
2012, pp. 348-356; Gillis et al. 2014, pp. 134-143; Bringolf et al.
2007, pp. 2086-2093; Wang et al. 2017, pp. 786-796; Augspurger et al.
2003, pp. 2569-2575).
All stages of freshwater mussels are directly exposed to
contaminants when present in the system. Contaminants have the
potential to affect several reproductive early life-history processes,
including sperm viability, female fertility or brooding capabilities,
and luring or glochidia release behavior (Cope et al. 2008, pp. 451-
462). Free glochidia are exposed through surface water (Cope et al.
2008, p. 453). Exposure during encystment may influence the ability of
glochidia to successfully transform into juveniles (Cope et al. 2008,
pp. 457-458). Adults, however, can be exposed over years through
surface water, pore water, sediment, and diet (Cope et al. 2008, pp.
452-453).
Sedimentation
Sediment is composed of both organic (biological material) and
inorganic (sand, silt, clay) particulate matter formed through various
processes including weathering, wind/wave/ice action, and tectonic
uplift. Anthropogenic sources of sediment include agriculture (Peacock
et al. 2005, entire), logging (Beschta 1978, entire), mining (Seakem
Group et al. 1992, p. 17), urbanization (Guy and Ferguson 1963,
entire), and hydrological alteration (Hastie et al. 2001, entire).
While all streams carry sediment, alterations in landscape may
negatively impact aquatic ecosystems if sediment loads are excessive
enough to alter channel formation and/or stream productivity, in turn
degrading freshwater biota (USEPA 2007, pp. 2-21; Gammon 1970, entire;
Junoy and Vi[eacute]itez 1990, entire).
Mussel declines have been partially attributed to sedimentation
caused by anthropogenic activities (for example, decrease in vegetative
and canopy cover and increase in urban and agricultural land) (Peacock
et al. 2005, entire; Guy and Ferguson 1963, entire). Increased
sedimentation impacts both water quality and quantity, which can have
direct and indirect impacts on the survival, reproduction, and growth
of freshwater mussel populations (Brim Box and Mossa 1999, entire;
Goldsmith et al. 2021, entire; Tuttle-Raycraft and Ackerman 2019, p.
2532; Tokumon et al. 2015, pp. 201-203).
Water Temperature and Drought
Alteration to the natural thermal regime of mussels is one of the
greatest threats freshwater ecosystems face today (Caissie 2006, p.
1389). Increased water temperature negatively affects mussel
physiological processes (for example, catabolization of protein
reserves, fluidity of the cellular membrane, and organ function),
disrupting energy balance, growth, and reproduction (Ganser et al.
2015, p. 1706).
Dissolved Oxygen
Low dissolved oxygen is a threat to freshwater mussels and is
particularly an issue in interstitial waters (waters between sand
particles, sediment, and gravel) (Sparks & Strayer 1998, p. 129). Low
dissolved oxygen can be caused by excess sedimentation, nutrient
loading, organic inputs, changes in flow, and higher temperatures
(Sparks & Strayer 1998, p. 129). Alterations to flow directly affect
the concentration of dissolved oxygen within a river system (Ganser et
al. 2015, p. 17). Adults and juveniles that are buried in the sediment
are particularly vulnerable to low dissolved oxygen (Sparks & Strayer
1998, p. 129).
Hydrological Regime
Freshwater mussels need flowing water in order to survive. Changes
to a river's hydrology and ecological processes can increase or
decrease water depths, decrease habitat heterogeneity, decrease
substrate stability, block host passage, and isolate mussel populations
from hosts, resulting in a reduction or elimination of suitable mussel
habitat and interfering with the mussel's reproductive process.
Historical land use change and associated water resource
development have altered established patterns of hydrologic variation
and associated dynamics of large river systems, resulting in long-term
chronic stresses felt decades after their initiation (Zeiringer et al.
2018, p. 70; Pyron et al. 2020, pp. 2, 6). Typical anthropogenic
alterations to the naturally occurring hydrology of rivers and streams
include construction of dams, water diversions, levees, and other such
structures for channelization. Dams directly affect mussels through
alterations in flow and habitat (Poff et al. 1997, pp. 772-774). This
topic is explored more under ``Connectivity,'' below.
Connectivity
Artificial barriers within streams and rivers (for example, dams,
road crossings, water control structures, etc.) pose a great number of
threats to freshwater mussels and are considered one of the primary
reasons for their decline (Haag 2012, pp. 328-330; Downing et al. 2010,
pp. 155-160;
[[Page 57230]]
Vaughn and Taylor 1999, p. 915). Artificial barriers affect freshwater
mussels through direct effects (such as water temperature and flow
changes and habitat alteration) and indirect effects (such as changes
to food base and host availability). Hydroelectric dams and similar
water control barriers can create additional stressors by fluctuating
flows to abnormal levels on a daily basis or at inappropriate times of
year (Poff et al. 1997, pp. 772-774). Abnormally high stream flow can
displace juvenile mussels and make it difficult for them to attach to
the substrate (Holland-Bartels 1990, pp. 331-332; Layzer & Madison
1995, p. 335). Altered flow can destabilize the substrate, which is a
critical requirement for mussel bed stability (Di Maio and Corkum 1995,
p. 663). Barriers can also exacerbate the effects of drought, resulting
in the stranding of mussels and drying of mussel beds (Fisher and LaVoy
1972, pp. 1473-1476).
Invasive Species
Invasion of aquatic habitats within the United States by invasive
species is one of the leading threats that freshwater ecosystems face,
with about 42 percent of endangered and threatened species reported to
be significantly affected (NCANSMPC 2015, pp. 8-9; Due[ntilde]as et al.
2018, p. 3171). When introduced, nonnative species may outcompete (for
example, crowd out or replace) native organisms, in turn negatively
altering food web and ecosystem dynamics and ultimately severely
damaging ecological health (Davis et al. 2000, p. 227). Invasive
species can impact native species in a multitude of ways including: (1)
native species may become a source of food for invasive species; (2)
invasive species may cause or carry diseases; (3) invasive species may
prevent native species from reproducing and/or kill the young of native
species; and (4) invasive species may outcompete native species for
resources (for example, food, space) (Sodhi et al. 2010, p. 318). The
invasion of freshwater habitats within the United States has resulted
in an imminent threat to mussel fauna within affected regions and is
thought to have contributed to the decline of mussel species (Ricciardi
et al. 1998, p. 615).
While invasive species do pose a risk to the salamander mussel,
given its unique anatomy, habitat it occupies, and its use of a non-
fish host, we did not find a plausible situation in which invasive
species alone would pose a risk that would affect salamander mussels at
the population level. See the SSA report (Service 2023, p. 24,
appendices B and C) for more information on each identified invasive
species and the risk posed to the salamander mussel.
Host Species Vulnerability
Mudpuppies are susceptible to many of the same threats that affect
mussels, including contaminants, habitat degradation and fragmentation,
lack of water quality and quantity, known disease issues or die-offs,
and potential overharvest and collection. These threats negatively
impact the abundance, distribution, and survival of mudpuppies. The
conservation status of the mudpuppy varies across the 14 U.S. States
where the mudpuppy's range overlaps with the salamander mussel's range.
Therefore, it is difficult to determine what effect these activities
are having at the population level for the mudpuppy. Regardless, the
magnitude of these factors has the potential to have a significant
localized impact on the abundance and distribution of mudpuppies,
thereby directly impacting the health and status of the salamander
mussel.
Mussel Disease
Enigmatic declines and large-scale die-offs of mussel assemblages
within otherwise healthy streams across large geographic regions have
emerged as a very concerning risk factor (Haag and Williams 2014, pp.
45-60; Haag 2019, pp. 43-60; Waller and Cope 2019, pp. 26-42). Little
is known about mussel health, including the role of microbiota and
pathogens in mussel health, which makes it very difficult to understand
how these factors may be impacting freshwater mussel populations. We
are not aware of any diseases that are causing die-offs or declines of
salamander mussel populations.
Resource Extraction
We identified the effects of coal mining and oil and gas
exploration and extraction as potential catastrophic events that could
negatively affect a large portion of the species' range at any given
point in time.
Coal mining has the potential to result in accidental spills and
contaminant runoff. Acid mine and saline drainage (AMD) is a major
threat to aquatic ecosystems although the Surface Mining Control and
Reclamation Act of 1977 (30 U.S.C. 1201 et seq.) has played a
significant role in reducing AMD during mining operations. Catastrophic
events, such as black water release events and fly-ash spills, have
occurred in some river systems (for example, upper Tennessee River),
resulting in the extirpation of mussel populations within the watershed
(Ahlstedt et al. 2016, p. 8). Impacts from coal mining may result in
direct mortality due to acute toxicity of introduced contaminants and
may reduce growth and reproduction, leading to population-level changes
in the form of local extirpations or significant population declines.
Oil and gas exploration and extraction can result in accidental
spills, discharges, and increased sedimentation. Discharge of untreated
or poorly treated brine wastewater and inadvertent release during
drilling of frack fluids high in chlorides and other chemicals can
result in conditions that are acutely toxic to mussels (Patnode et al.
2015, p. 62). Excess sedimentation results when there is bank slippage
and mudslides during pipeline construction, open trenching operations,
construction of access roads, and construction of well pads (Ellis
1936, p. 29; Anderson & Kreeger 2010, p. 2). Excessive suspended
sediments and contaminants resulting from inadvertent releases or
runoff can be acutely toxic, result in sublethal effects (such as
impaired feeding processes), and degrade and destroy suitable habitat
for mussels.
Cumulative and Synergistic Effects
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have
analyzed the cumulative effects of identified threats and conservation
actions on the species. To assess the current and future condition of
the species, we evaluate the effects of all the relevant factors that
may be influencing the species, including threats and conservation
efforts. Because the SSA framework considers not just the presence of
the factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative effects analysis.
Current Condition
Survey data were provided by State agencies and researchers across
the range of the salamander mussel. The occurrence data provided varied
across States, depending on level of survey effort (Service 2023, p.
21).
We delineated populations based on the hydrologic unit code (HUC)
(Seaber et al. 1987, entire; U.S. Geological Survey 2018, entire) at
the fourth of six levels (that is, the HUC-8 watershed). We defined a
population as extant if it contains live, fresh dead, or weathered
individuals observed in surveys from 2000 to the present (Service 2023,
p. 20). We classified weathered dead collections as an indicator of
extant
[[Page 57231]]
populations because the salamander mussel is a thin-shelled species and
weathered dead shells are not expected to persist in a system for an
extended time. We defined a population as presumed extant if it
contained live, fresh dead, or weathered individuals observed in
surveys from 1970 to 1999 (Service 2023, p. 20). We note that for some
of these records a single observation of an individual in any condition
can be considered an extant or presumed extant population depending on
the observation year (Service 2023, p. 20).
Current conditions are described using categories that estimate the
overall condition (resiliency) of the salamander mussel populations. We
assessed demographic population condition for the small number of
populations for which we have demographic data (Service 2023, pp. 22-
23). We categorized the demographic condition of each population as
high, moderate, low, or functionally extirpated based on demographic
criteria. Functionally extirpated populations were defined as
populations that are still extant but have fewer than 10 live
individuals observed within the last 20 years. For most populations, we
have data only from incidental observations that would not allow us to
evaluate population health. We categorized these populations as unknown
demographic condition.
To calibrate the meanings of the demographic condition categories
in terms of a population's ability to withstand demographic stochastic
events, we assigned an estimate of the probability of persistence over
20 years for each category (Service 2023, pp. 22-23). Similarly, we
also assigned a probability of persistence over 20 years to each of the
three risk categories, described below. This allowed us to project a
population's condition in 20 years, based on its current demographic
population condition and risk category.
We also evaluated the six primary risk factors affecting the
salamander mussel (contaminants, hydrological regime, landscape,
connectivity, invasive species, and host species vulnerability) to
assist in evaluating the current condition of each extant population.
We assigned these risk factors to three categories of high, moderate,
and low risk (Service 2023, p. 23). In addition, we assigned the
potential catastrophic events (described above under Resource
Extraction) as low if no known activities were present in the HUC8 or
high if activities were known to be present in the HUC8.
Historically, the species occurred in 110 populations. Of those, 66
populations are considered extant or presumed extant. Of these 66
populations, 48 (73 percent) are in unknown demographic condition. Of
the 18 populations for which we have demographic information, 9 are
considered functionally extirpated, 6 are in low condition, and 3 are
in moderate or high condition. In addition, more than 80 percent of the
66 populations are at high risk from one or more of the primary risk
factors, and approximately 14 percent of the populations are at
moderate risk. None of the populations across the range are
experiencing low risk. We did not have information to complete the risk
factor analysis for three populations that cross the border with
Canada.
To evaluate the species' genetic and ecological diversity
(representation) in the absence of species-specific genetic
information, we considered the extent and variability of environmental
conditions within the species' geographic range. Based on the best
available data, we identified five representation units at the HUC-2
watershed level: Upper Mississippi, Ohio, Tennessee, Great Lakes, and
Arkansas-White-Red basins. The species currently ranges across all five
representation units, but the Ohio, Upper Mississippi, and Great Lakes
basins make up the core area for the salamander mussel.
The number of populations in the Ohio and Upper Mississippi basins
has declined by almost 40 percent, while the number of Great Lakes
basin populations has declined by 45 percent. The Ohio River basin has
35 extant or presumed extant populations; of these, 27 are at high risk
from one or more of the primary risk factors, including contaminants
(26 populations) and landscape alterations (7 populations). The Upper
Mississippi basin has 17 extant or presumed extant populations, all of
which are at high risk from contaminants. Nine are also at high risk
from host vulnerability, and five are at high risk from lack of
connectivity. The Great Lakes basin has eight extant or presumed extant
populations with risk analyses completed. Seven populations are at high
risk from contaminants, four are at high risk from landscape
alterations, and four are at high risk from host vulnerability. We did
not have information to complete the analyses for three extant
populations that cross the border with Canada. The Arkansas-White-Red
basin historically had only three populations, one of which is presumed
extant and is at high risk from lack of connectivity. Salamander
mussels have not been observed in the Arkansas-White-Red basin in the
last two decades. Both of the known populations in the Tennessee basin
are extant, one of which has had salamander mussels introduced in the
last two decades. Both populations are at high risk from lack of
connectivity and host vulnerability, and one is also at high risk from
contaminants.
We evaluated the effect of the risk factors on each population,
given its current condition. Of the 18 populations for which we have
demographic condition, we were able to evaluate 16 of those. (We could
not evaluate risk condition for the two populations with demographic
data that are within Canada.) Of those 16 populations, 11
(approximately 70 percent) would be extirpated within 20 years due to
current risks, 3 would be functionally extirpated (approximately 18
percent), and 2 would be in low condition (approximately 12 percent).
Of the 48 populations with unknown demographic condition, 43 are
experiencing high risk. At best, these populations would be in low
condition in 20 years if they all were in high demographic condition
currently, which is unlikely. If we assume these unknown populations
follow the pattern of the populations for which we have data, 9 (18
percent) would be functionally extirpated and 34 (70 percent) would be
extirpated.
With few populations that are all at high risk, the Great Lakes,
Tennessee, and Arkansas-White-Red representation units are all at risk
of extirpation. Although the Upper Mississippi representation unit has
17 populations, all of them are at high risk, putting the unit at risk
of extirpation. The Ohio basin is the only representation unit with
populations experiencing moderate risk.
In addition, 98.5 percent of the 66 extant and presumed extant
populations are at high risk of a potential catastrophic event from oil
and gas or coal activities. Further, 23 extant and presumed extant
populations are known from a single record or couple of records of
occupied river extent, making these populations more susceptible to
extirpation from catastrophic events.
Future Conditions
As part of the SSA, we also developed two future condition
scenarios to capture the range of uncertainties regarding future
threats and the projected responses by the salamander mussel. Our
scenarios project an upper and lower bound to plausible changes to
contaminant levels, landscape cover, hydrological regime, connectivity,
invasive species, and host species vulnerability. Because we determined
that the salamander mussel is currently
[[Page 57232]]
in danger of extinction (see Determination of Salamander Mussel's
Status, below), we are not presenting the results of the future
scenarios in this proposed rule. Please refer to the SSA report
(Service 2023, pp. 44-51, 145-187) for the full analysis of future
scenarios.
Conservation Efforts and Regulatory Mechanisms
Captive propagation is an important tool that is being used to
augment and reintroduce salamander mussel populations in Pennsylvania,
West Virginia, Wisconsin, and Kentucky. Two of the Service's National
Fish Hatcheries (Genoa and White Sulfur Springs) are actively
propagating salamander mussel as well as other mussel species for
conservation and recovery. In addition, several State wildlife agencies
have developed mollusk conservation propagation programs, including the
Kentucky Department of Fish and Wildlife Resources that established the
Center for Mollusk Conservation in 2002 and have been propagating
salamander mussel and other mollusks to aid conservation. These
conservation propagation efforts have been critical in contributing
significant conservation benefits to imperiled salamander mussel
populations as well as enhancing our understanding of salamander mussel
and mudpuppy reproduction and life history. These programs will
continue to be an important conservation tool into the future for
salamander mussel and mudpuppy conservation.
Efforts to construct artificial mudpuppy habitats have been
undertaken in several waterbodies, including in the Allegheny River in
Pennsylvania (Welte 2020, entire); in the Detroit and St. Clair rivers,
Lake St. Clair, and Lake Erie in Michigan (Stapleton et al. 2018,
entire); and at Guttenberg, Iowa (Hanson 2021, pers. comm.). Mudpuppies
have been observed using the constructed habitat within the first 6
months of installation (Hanson 2021, pers. comm.). In Pennsylvania, one
live salamander mussel was observed under an artificial structure. No
mudpuppies were observed, but silt may have obscured escaping
mudpuppies during monitoring (Welte 2020, entire). In Michigan,
mudpuppies were observed at two recent restoration sites where
mudpuppies had not previously been detected, indicating that efforts to
create mudpuppy artificial habitat have been successful (Stapleton et
al. 2018, entire).
The salamander mussel is listed as endangered under State laws in
Illinois, Michigan, Minnesota, and Pennsylvania and as threatened under
State laws in Ohio and Wisconsin. The salamander mussel is also listed
as endangered in Canada under the Federal Species at Risk Act. In
addition, the mudpuppy is listed as threatened under State laws in
Illinois and Iowa.
Section 404 of the Clean Water Act (CWA) prohibits the discharge of
dredged or fill material in jurisdictional waters of the United States
unless permitted by the U.S. Army Corps of Engineers (USACE) or unless
the discharge is exempt from regulation as designated in section
404(f). Section 402 of the CWA regulates activities affecting water
quality. Under the National Pollutant Discharge Elimination System
(NPDES), discharge of pollutants into navigable waters requires a
permit from the U.S. Environmental Protection Agency (USEPA) or a
State-authorized program.
The USEPA also oversees the CWA triennial review (Section
303(c)(1)), water quality standards (section 303(c)(3)), impaired
waters (section 303(d)), and the NPDES programs (section 402). The
USEPA's responsibility under the triennial review is to encourage the
States to hold public hearings for the purpose of reviewing applicable
water quality standards, and, as appropriate, modifying or adopting the
State water quality standards (i.e., water body uses, numeric criteria,
narrative criteria, and anti-degradation policy). The USEPA's
responsibility under the water quality standards program is to
determine if any water quality standards submitted by the State as a
new or revised standard meets the requirements of the CWA.
Freshwater mussels are among the most sensitive freshwater species
to metals, ammonia, and ion constituents, including copper, sulfate,
alachlor, nickel, chloride, sulfate, zinc, and potassium (Wang et al.
2017, pp. 786-796). The USEPA has water quality criteria for six of the
10 chemicals tested in Wang et al. (2017, pp. 186-796). If the minimum
data requirement for deriving water quality criteria required the
inclusion of freshwater mussels, then water quality criteria would
capture the high sensitivity of freshwater mussels to many chemicals
and different exposure pathways (Wang et al. 2017, p. 795).
Determination of Salamander Mussel's Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range, and a ``threatened species'' as a species likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether a species meets the definition of an endangered
species or a threatened species because of any of the following
factors: (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.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we determined that the salamander mussel has experienced a 40
percent reduction in the number of populations from historical
conditions. Historically, the species occurred within 110 populations
and currently occurs in 66 populations.
Of the 18 populations for which we have demographic information, 9
are considered functionally extirpated, 6 are in low condition, 2 are
in moderate condition, and 1 is in high condition. Of these 18
populations, 11 (approximately 70 percent) would be extirpated within
20 years due to current risks, 3 would be functionally extirpated
(approximately 18 percent), and 2 would be in low condition
(approximately 12 percent). (We could not evaluate risk condition for
the two populations with demographic data that are within Canada.) Of
the 48 populations with unknown demographic condition, 43 are
experiencing high risk. At best, these populations would be in low
condition in 20 years if they all were in high demographic condition
currently, which is unlikely. In addition, 23 of these populations are
known from a single record or couple of records and may be at higher
risk than presumed. Based on survey data, it is unlikely that
meaningful numbers of individuals or populations have not been
identified. Further, more than 80 percent of all populations are at
high risk from contaminants, hydrological alteration, land use changes,
loss of connectivity (Factor A), or host species' vulnerabilities
(Factor E). These current and ongoing threats put the majority of the
remaining populations at risk of reduced resiliency and potential
extirpation, and the existing regulatory
[[Page 57233]]
mechanisms (Factor D) are not adequately reducing the impact of these
threats on the species. Although all five representation units are
still extant, the populations are concentrated in three units (Ohio,
Upper Mississippi, and Great Lakes), and of these, the Ohio basin is
the only representation unit with populations at moderate risk. With
few populations that are all at high risk, three of the representation
units are at risk of extirpation. Redundancy is reduced from historical
conditions, and a high percentage (98.5 percent) of the remaining
populations are at high risk of experiencing a potential catastrophic
event. The biological status of the salamander mussel is exacerbated by
having only one host, which also has habitat limitations and is
vulnerable to risk factors.
Overall, most of the remaining populations are subject to high risk
from current and ongoing threats, including contaminants, landscape
alterations, lack of connectivity, and host vulnerability; and are
likely unable to withstand potential catastrophic events from
accidental spills, discharges, and increased sedimentation related to
oil and gas exploration and extraction; and are projected to be in low
condition or functionally extirpated within 20 years due to these
current and ongoing threats. Thus, after assessing the best available
information, we determine that the salamander mussel is in danger of
extinction throughout all of its range.
Our analysis of the species' current condition and ongoing threats
of contaminants, landscape alterations, lack of connectivity, and host
vulnerability, as well as the conservation efforts and regulatory
mechanisms discussed above, shows that the salamander mussel is in
danger of extinction throughout all of its range due to the severity
and immediacy of threats currently impacting the species. We find that
a threatened species status is not appropriate for the salamander
mussel because the threats that the species is experiencing are already
occurring across the species' range. Therefore, the species is
currently in danger of extinction throughout its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
within the foreseeable future throughout all or a significant portion
of its range. We have determined that the salamander mussel is in
danger of extinction throughout all of its range and accordingly did
not undertake an analysis of any significant portion of its range.
Because the salamander mussel warrants listing as endangered throughout
all of its range, our determination does not conflict with the decision
in Center for Biological Diversity v. Everson, 435 F. Supp. 3d 69
(D.D.C. 2020) (Everson), which vacated the provision of the Final
Policy on Interpretation of the Phrase ``Significant Portion of Its
Range'' in the Endangered Species Act's Definitions of ``Endangered
Species'' and ``Threatened Species'' (79 FR 37578; July 1, 2014)
providing that if the Service determines that a species is threatened
throughout all of its range, the Service will not analyze whether the
species is endangered in a significant portion of its range.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the salamander mussel meets the Act's
definition of an endangered species. Therefore, we propose to list the
salamander mussel as an endangered species in accordance with sections
3(6) and 4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition as a listed
species, planning and implementation of recovery actions, requirements
for Federal protection, and prohibitions against certain practices.
Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies,
including the Service, and the prohibitions against certain activities
are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The goal of this process is to restore listed
species to a point where they are secure, self-sustaining, and
functioning components of their ecosystems.
The recovery planning process begins with development of a recovery
outline made available to the public soon after a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions while a recovery plan is being developed.
Recovery teams (composed of species experts, Federal and State
agencies, nongovernmental organizations, and stakeholders) may be
established to develop and implement recovery plans. The recovery
planning process involves the identification of actions that are
necessary to halt and reverse the species' decline by addressing the
threats to its survival and recovery. The recovery plan identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Revisions of the plan may
be done to address continuing or new threats to the species, as new
substantive information becomes available. The recovery outline, draft
recovery plan, final recovery plan, and any revisions will be available
on our website as they are completed (https://www.fws.gov/program/endangered-species), or from our Michigan Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
If this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the States of Arkansas, Illinois,
Indiana, Iowa, Kentucky, Michigan, Minnesota, Missouri, New York, Ohio,
[[Page 57234]]
Pennsylvania, Tennessee, West Virginia, and Wisconsin would be eligible
for Federal funds to implement management actions that promote the
protection or recovery of the salamander mussel. Information on our
grant programs that are available to aid species recovery can be found
at: https://www.fws.gov/service/financial-assistance.
Although the salamander mussel is only proposed for listing under
the Act at this time, please let us know if you are interested in
participating in recovery efforts for this species. Additionally, we
invite you to submit any new information on this species whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7 of the Act is titled Interagency Cooperation and mandates
all Federal action agencies to use their existing authorities to
further the conservation purposes of the Act and to ensure that their
actions are not likely to jeopardize the continued existence of listed
species or adversely modify critical habitat. Regulations implementing
section 7 are codified at 50 CFR part 402.
Section 7(a)(2) states that each Federal action agency shall, in
consultation with the Secretary, ensure that any action they authorize,
fund, or carry out is not likely to jeopardize the continued existence
of a listed species or result in the destruction or adverse
modification of designated critical habitat. Each Federal agency shall
review its action at the earliest possible time to determine whether it
may affect listed species or critical habitat. If a determination is
made that the action may affect listed species or critical habitat,
formal consultation is required (50 CFR 402.14(a)), unless the Service
concurs in writing that the action is not likely to adversely affect
listed species or critical habitat. At the end of a formal
consultation, the Service issues a biological opinion, containing its
determination of whether the Federal action is likely to result in
jeopardy or adverse modification.
In contrast, section 7(a)(4) of the Act requires Federal agencies
to confer with the Service on any action which is likely to jeopardize
the continued existence of any species proposed to be listed under the
Act or result in the destruction or adverse modification of critical
habitat proposed to be designated for such species. Although the
conference procedures are required only when an action is likely to
result in jeopardy or adverse modification, action agencies may
voluntarily confer with the Service on actions that may affect species
proposed for listing or critical habitat proposed to be designated. In
the event that the subject species is listed or the relevant critical
habitat is designated, a conference opinion may be adopted as a
biological opinion and serve as compliance with section 7(a)(2).
Examples of discretionary actions for the salamander mussel that
may be subject to conference and consultation procedures under section
7 are land management or other landscape-altering activities on Federal
lands administered by U.S. Fish and Wildlife Service, U.S. Forest
Service, National Park Service, U.S. Army Corps of Engineers, and
Federal Energy Regulatory Commission, and as well as actions on State,
Tribal, local, or private lands that require 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 the Service
under section 10 of the Act) or that involve some other Federal action
(such as funding from the Federal Highway Administration, Federal
Aviation Administration, or the Federal Emergency Management Agency).
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 carried out by a Federal agency--do
not require section 7 consultation. Federal agencies should coordinate
with the local Service Field Office (see FOR FURTHER INFORMATION
CONTACT) with any specific questions on section 7 consultation and
conference requirements.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered wildlife.
The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR
17.21, make it illegal for any person subject to the jurisdiction of
the United States to commit, to attempt to commit, to solicit another
to commit or to cause to be committed any of the following: (1) import
endangered wildlife to, or export from, the United States; (2) take
(which includes harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect) endangered wildlife within the United States or on
the high seas; (3) possess, sell, deliver, carry, transport, or ship,
by any means whatsoever, any such wildlife that has been taken
illegally; (4) deliver, receive, carry, transport, or ship in
interstate or foreign commerce in the course of commercial activity; or
(5) sell or offer for sale in interstate or foreign commerce. Certain
exceptions to these prohibitions apply to employees or agents of the
Service, the National Marine Fisheries Service, other Federal land
management agencies, and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered wildlife under certain circumstances. Regulations
governing permits for endangered wildlife are codified at 50 CFR 17.22.
With regard to endangered wildlife, a permit may be issued: for
scientific purposes, for enhancing the propagation or survival of the
species, or for take incidental to otherwise lawful activities. The
statute also contains certain exemptions from the prohibitions, which
are found in sections 9 and 10 of the Act.
It is the policy of the Services, as published in the Federal
Register on July 1, 1994 (59 FR 34272), to identify, to the extent
known at the time a species is listed, specific activities that will
not be considered likely to result in violation of section 9 of the
Act. To the extent possible, activities that will be considered likely
to result in violation will also be identified in as specific a manner
as possible. The intent of this policy is to increase public awareness
of the effect of a proposed listing on proposed and ongoing activities
within the range of the species proposed for listing.
As discussed above, certain activities that are prohibited under
section 9 may be permitted under section 10 of the Act. In addition, to
the extent currently known, the following activities would not be
considered likely to result in violation of section 9 of the Act:
(1) Normal agricultural and silvicultural practices that utilize
best management practices to minimize runoff and erosion;
(2) Normal livestock grazing and other standard ranching activities
within riparian zones that do not destroy or significantly degrade
salamander mussel habitat;
(3) Routine implementation and maintenance of agricultural
conservation practices specifically designed to minimize erosion of
cropland (e.g., terraces, dikes, grassed waterways, and conservation
tillage);
(4) Existing discharges into waters supporting the salamander
mussel, provided these activities are carried out in accordance with
existing regulations and permit requirements (e.g., activities subject
to sections 402, 404, and 405 of the Clean Water Act);
(5) Improvements to existing irrigation, livestock, and domestic
well structures, such as renovations, repairs, or replacement; and
(6) Normal residential landscaping activities.
[[Page 57235]]
This list is intended to be illustrative and not exhaustive;
additional activities that would not be considered likely to result in
violation of section 9 of the Act may be identified during coordination
with the local field office, and in some instances (e.g., with new
information), the Service may conclude that one or more activities
identified here would be considered likely to result in violation of
section 9.
To the extent currently known, the following is a list of examples
of activities that would be considered likely to result in violation of
section 9 of the Act in addition to what is already clear from the
descriptions of the prohibitions found at 50 CFR 17.21:
(1) Modification of the river channel or water flow of any stream
that supports salamander mussel;
(2) Unauthorized discharges (including violation of discharge
permits), spills, or dumping of chemicals, fill material, or other
pollutants (e.g., sewage, oil and gasoline, heavy metals) into any
waters or their adjoining riparian areas that support or sustain
salamander mussel;
(3) Livestock grazing that results in direct or indirect
destruction of stream habitat that supports salamander mussel;
(4) Applications of pesticides, herbicides, fungicides, and other
chemicals, including fertilizers, in violation of label restrictions;
(5) Withdrawal of surface or ground waters to the point at which
baseflows in water courses occupied by the salamander mussel diminish
and habitat becomes unsuitable for the species;
(6) Unauthorized collecting of mudpuppies in waters occupied by the
salamander mussel; and
(7) Introduction of nonnative species of salamanders that may be
vectors of diseases that affect mudpuppies in waters occupied by the
salamander mussel.
This list is intended to be illustrative and not exhaustive;
additional activities that would be considered likely to result in
violation of section 9 of the Act may be identified during coordination
with the local field office, and in some instances (e.g., with new or
site-specific information), the Service may conclude that one or more
activities identified here would not be considered likely to result in
violation of section 9. Questions regarding whether specific activities
would constitute a violation of section 9 of the Act should be directed
to the Michigan Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
II. Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) 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
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) 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.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
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 pursuant to 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 requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
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 also 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. Rather, designation requires that,
where a landowner requests Federal agency funding or authorization for
an action that may affect a listed species or critical habitat, the
Federal agency consult with the Service under section 7(a)(2) of the
Act. If the action may affect the listed species itself (such as for
occupied critical habitat), the Federal agency would have already been
required to consult with the Service even absent the designation
because of the requirement to ensure that the action is not likely to
jeopardize the continued existence of the species. Even if the Service
were to conclude after consultation that the proposed activity is
likely to result in destruction or adverse modification of the critical
habitat, the Federal action agency and the landowner are not required
to abandon the proposed activity, or to restore or recover the species;
instead, they must implement ``reasonable and prudent alternatives'' to
avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific data available, those physical or biological features that
are essential to the conservation of the species (such as space, food,
cover, and protected habitat).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in 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.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific 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
[[Page 57236]]
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 should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine 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 needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of the species. 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 at the time of those planning efforts calls for a
different outcome.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and
which may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkaline
soil for seed germination, protective cover for migration, or
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include
prey species, forage grasses, specific kinds or ages of trees for
roosting or nesting, symbiotic fungi, or absence of a particular level
of nonnative species consistent with conservation needs of the listed
species. The features may also be combinations of habitat
characteristics and may encompass the relationship between
characteristics or the necessary amount of a characteristic essential
to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics include, but are not limited to, space
for individual and population growth and for normal behavior; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.
As described above under Summary of Biological Status and Threats,
the salamander mussel occurs in rivers and streams with flat rocks or
bedrock crevices. Once released from their mudpuppy host, salamander
mussels are benthic (bottom-dwelling) organisms closely associated with
appropriate habitat patches within a river or stream. Among mussel
species, salamander mussel is a highly mobile and active mussel species
with the capability to move to more suitable habitat; however,
interaction among individuals in different river reaches is strongly
influenced by the presence of barriers, habitat fragmentation, and the
distance between occupied river or stream reaches.
The primary habitat elements that influence resiliency of the
salamander mussel include substrate/shelter habitat, water quantity/
flow, water quality, habitat connectivity, and the presence of the
mudpuppy host to ensure recruitment. These features are also described
above as species needs under Summary of Biological Status and Threats,
and a full description is available in the SSA report. The individuals'
needs are summarized below in table 1.
Table 1--Requirements for Life Stages of the Salamander Mussel
------------------------------------------------------------------------
Resources needed to
Life stage complete life stage Source
------------------------------------------------------------------------
Fertilized eggs............. Clear, Berg et al. 2008, p.
--late spring to summer.... flowing water. 397; Haag 2012, pp.
Sexually 38-39.
mature males in
proximity to
sexually mature
females.
Appropriate
spawning
temperatures..
[[Page 57237]]
Glochidia Clear, Strayer 2008, p. 65;
--late summer released from flowing water. Haag 2012, pp. 41-
female marsupial gills. Presence of 42; Clarke 1985,
--develop on host fall to mudpuppy (host) for pp. 60-68.
early spring. attachment.
Flow to
ensure glochidia
encounter host.
Juveniles Clear, Dimock and Wright
--excystment (juveniles flowing water. 1993, pp. 188-190;
drop off from host). Host Sparks and Strayer
dispersal.. 1998, p. 132;
Appropriate Augspurger et al.
interstitial 2003, p. 2574;
chemistry: low Augspurger et al.
salinity; high 2007, p. 2025;
dissolved oxygen; Strayer and Malcom
absence of or non- 2012, pp. 1787-
toxic levels of 1788.
contaminants,
including ammonia,
copper, chloride,
and sulfate.
Flat rocks
and bedrock that
provide crevices
for shelter.
Adults...................... Clear, Yeager et al. 1994,
--greater than 0.8 in (20 flowing water. p. 221; Nichols and
mm) shell length. Flat rocks Garling 2000, p.
and bedrock that 881; Chen et al.
provide crevices 2001, p. 214;
for shelter. Spooner and Vaughn
Adequate 2008, p. 308.
food availability
(phytoplankton and
detritus).
High
dissolved oxygen..
Appropriate
water temperature..
------------------------------------------------------------------------
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of the salamander mussel from studies of the species'
habitat, ecology, and life history as described below. Additional
information can be found in the SSA report (Service 2023, pp. 3-10;
available on https://www.regulations.gov under Docket No FWS-R3-ES-
2023-0058). We have determined that the following physical or
biological features are essential to the conservation of salamander
mussel:
(1) Adequate flows, or a hydrologic flow regime (magnitude, timing,
frequency, duration, rate of change, and overall seasonality of
discharge over time), necessary to maintain benthic habitats where the
salamander mussel and its host, the mudpuppy, are found and to maintain
stream connectivity.
(2) Suitable substrates and connected instream habitats,
characterized by geomorphologically stable stream channels and banks
(i.e., channels that maintain lateral dimensions, longitudinal
profiles, and sinuosity patterns over time without an aggrading or
degrading bed elevation) with habitats that support the salamander
mussel and mudpuppy (e.g., large rock shelters, woody debris, and
bedrock crevices within stable zones of swift current with low amounts
of fine sediment silt).
(3) Water and sediment quality necessary to sustain natural
physiological processes for normal behavior, growth, and viability of
all life stages, including (but not limited to)dissolved oxygen
(generally above 2 to 3 parts per million (ppm)), salinity (generally
below 2 to 4 ppm), and temperature (generally below 86 [deg]F ([deg]F)
(30[deg] Celsius ([deg]C)). Additionally, concentrations of
contaminants, including (but not limited to)ammonia,nitrate, copper,
andchloride, are below acute toxicity levels for mussels.
(4) The presence and abundance ofthe mudpuppyhost.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection. The features essential to the conservation of the
salamander mussel may require special management considerations or
protections to reduce the following threats: (1) Alteration of the
natural flow regime (modifying the natural hydrograph and seasonal
flows), including water withdrawals, resulting in flow reduction and
available water quantity; (2) urbanization of the landscape, including
(but not limited to) land conversion for urban and commercial use,
infrastructure (pipelines, roads, bridges, utilities), and urban water
uses (resource extraction activities, water supply reservoirs,
wastewater treatment, etc.); (3) significant alteration of water
quality and nutrient pollution from a variety of activities, such as
industrial and municipal effluents, mining, and agricultural
activities; (4) land use activities that remove large areas of forested
wetlands and riparian systems; (5) dam construction and culvert and
pipe installation that create barriers to movement for the salamander
mussel or its mudpuppy host; and (6) other watershed and floodplain
disturbances that release sediments, pollutants, or nutrients into the
water.
Management activities that could ameliorate these threats include,
but are not limited to: Use of best management practices designed to
reduce sedimentation, erosion, and bank destruction; protection of
riparian corridors and woody vegetation; moderation of surface and
ground water withdrawals to maintain natural flow regimes; improved
stormwater management; and reduction of other watershed and floodplain
disturbances that release sediments, pollutants, or nutrients into the
water.
In summary, we find that the occupied areas we are proposing to
designate as critical habitat contain the physical or biological
features that are essential to the conservation of the species and
which may require special management considerations or protection.
Special management considerations or protection may be required of the
Federal action agency to eliminate, or to reduce to negligible levels,
the threats affecting the physical and biological features of each
unit.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical
[[Page 57238]]
area occupied by the species at the time of listing and any specific
areas outside the geographical area occupied by the species to be
considered for designation as critical habitat. We are not currently
proposing to designate any areas outside the geographical area occupied
by the species because we have not identified any unoccupied areas that
meet the definition of critical habitat and we have determined that
occupied areas are sufficient to conserve the species.
Methodology Used for Selection of Proposed Units
First, we included all extant populations with records of live or
fresh dead individuals. These populations could be used for recovery
actions to re-establish populations within basins through propagation
activities or augment other populations through direct translocations
within their basins. We defined a population as extant if it contains
individuals observed in surveys from 2000 to the present (Service 2023,
p. 20). We did not include presumed extant populations (those with
individuals observed in surveys from 1970 to 1999 (Service 2023, p.
20)) or extant populations represented only by weathered or sub-fossil
shells due to the level of uncertainty regarding the biological status
of those populations and their contribution to recovery of the species.
Then, we evaluated the river systems in which the extant populations
occur and consulted with local experts to identify those areas that
provide suitable salamander mussel habitat.
Sources of data for this proposed critical habitat designation
include information from State agencies throughout the species' range
and numerous survey reports on streams throughout the species' range
(Service 2023, entire). We have also reviewed available information
that pertains to the habitat requirements of the species. Sources of
information on habitat requirements include studies conducted at
occupied sites and published in peer-reviewed articles, agency reports,
and data collected during monitoring efforts (Service 2023, entire).
In summary, for areas within the geographic area occupied by the
species at the time of listing, we delineated critical habitat unit
boundaries using the following criteria:
(1) We identified river and stream reaches with observations from
2000 to the present. We determined it is reasonable to find these areas
occupied, given the incomplete survey data for the salamander mussel
across its range. Available State heritage databases and information
support the likelihood of the species' continued presence in these
areas within this timeframe.
(2) We delineated specific habitat areas, based on Natural Heritage
Element Occurrences, published reports, and unpublished survey data
provided by States. These areas provide habitat for salamander mussel
populations and are large enough to be self-sustaining over time,
despite fluctuations in local conditions. The areas within the proposed
units represent continuous river and stream reaches of free-flowing
habitat patches capable of sustaining mudpuppy hosts and allowing for
seasonal transport of glochidia, which are essential for reproduction
and dispersal of salamander mussel.
We consider portions of the following rivers and streams to be
occupied by the salamander mussel at the time of proposed listing, and
appropriate for critical habitat designation: Allegheny River, Beech
Fork River, Black River, Blanchard River, Big Pine Creek, Chippewa
River, Clinton River, Conneaut Creek, Drennon Creek, Duck River, East
Fork White River, Eau Claire River, Fish Creek (Indiana), Fish Creek
(West Virginia), Fishing Creek, French Creek, Graham Creek, Harpeth
River, Kinniconick Creek, Laughery Creek, Lemonweir River, Licking
River, Little Kanawha River, Middle Fork Wildcat Creek, Middle Island
Creek, Mill Creek, North Branch Pensaukee River, North Fork Licking
River, Otter Creek, Rolling Fork River, South Fork Hughes River, South
Fork Licking River, St. Croix River, Tippecanoe River, Tonawanda Creek,
and Wisconsin River.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features necessary for the salamander mussel.
The scale of the maps we prepared under the parameters for publication
within the Code of Federal Regulations may not reflect the exclusion of
such developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this proposed rule have been
excluded by text in the proposed rule and are not proposed for
designation as critical habitat. Therefore, if the critical habitat is
finalized as proposed, a Federal action involving these lands would not
trigger section 7 consultation with respect to critical habitat and the
requirement of no adverse modification unless the specific action would
affect the physical or biological features in the adjacent critical
habitat.
We propose to designate as critical habitat lands that we have
determined are occupied at the time of listing (i.e., currently
occupied) and that contain one or more of the physical or biological
features that are essential to support life-history processes of the
species.
Thirty-seven units are proposed for designation based on one or
more of the physical or biological features being present to support
the salamander mussel's life-history processes. All units contain one
or more of the physical or biological features necessary to support the
salamander mussel's particular use of that habitat.
The proposed critical habitat designation is defined by the map or
maps, as modified by any accompanying regulatory text, presented at the
end of this document under Proposed Regulation Promulgation. We include
more detailed information on the boundaries of the critical habitat
designation in the preamble of this document. We will make the
coordinates or plot points or both on which each map is based available
to the public on https://www.regulations.gov at Docket No. FWS-R3-ES-
2023-0058 and on our internet site https://www.fws.gov/species/salamander-mussel-simpsonaias-ambigua.
Proposed Critical Habitat Designation
We are proposing approximately 2,012 river miles (3,238 kilometers
(km)) in 37 units as critical habitat for the salamander mussel. The
critical habitat areas we describe below constitute our current best
assessment of areas that meet the definition of critical habitat for
salamander mussel. The 37 areas we propose as critical habitat are: (1)
St. Croix River, (2) Chippewa River, (3) Eau Claire River, (4) Black
River, (5) Wisconsin River North, (6) North Branch Pensaukee River, (7)
Lemonweir River, (8) Wisconsin River South, (9) Big Pine Creek, (10)
Middle Fork Wildcat Creek, (11) Tippecanoe River, (12) Fish Creek
(Indiana), (13) Blanchard River, (14) Clinton River, (15) Mill Creek,
(16) Tonawanda Creek, (17) Conneaut Creek, (18) French Creek, (19)
Allegheny River, (20) Fish Creek (West Virginia), (21) Fishing Creek,
(22) Middle Island Creek, (23) Little Kanawha River, (24) South Fork
Hughes River, (25) Kinniconick Creek, (26) North Fork Licking River,
(27) Licking River, (28) South Fork Licking River, (29) Drennon Creek,
(30) Laughery Creek, (31) Otter Creek, (32) Graham Creek, (33) East
Fork White River, (34) Beech Fork River, (35) Rolling Fork River, (36)
Harpeth River, and (37) Duck River. Table 2 shows the proposed critical
habitat units, the
[[Page 57239]]
approximate area of each unit, and the State(s) where each unit is
located. All units are occupied by the species.
Table 2--Proposed Critical Habitat Units for the Salamander Mussel
[Area estimates reflect all land within critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
Adjacent riparian land Size of unit in river
Critical habitat unit ownership by type miles (kilometers) State(s)
----------------------------------------------------------------------------------------------------------------
1. St. Croix River...................... Public (Federal, State)... 28.85 (46.43) MN, WI
Private................... 24.08 (38.76)
2. Chippewa River....................... Public (Federal, State, 34.04 (54.77) WI
local). 25.20 (40.56)
Private...................
3. Eau Claire River..................... Public (local)............ 4.23 (6.81) WI
Private................... 3.17 (5.10)
4. Black River.......................... Public (Federal, State, 35.71 (57.47) WI
local). 39.67 (63.84)
Private...................
5. Wisconsin River North................ Public (State, local)..... 4.11 (6.62) WI
Private................... 17.08 (27.48)
6. North Branch Pensaukee River......... Public (State, local)..... 1.24 (2.00) WI
Private................... 18.69 (30.08)
7. Lemonweir River...................... Public (local)............ 2.11 (3.40) WI
Private................... 35.39 (56.96)
8. Wisconsin River South................ Public (Federal, State, 102.78 (165.40) WI
local). 50.10 (80.63)
Private...................
9. Big Pine Creek....................... Public (State)............ 1.30 (2.09) IN
Private................... 49.93 (80.35)
10. Middle Fork Wildcat Creek........... Private................... 35.70 (57.46) IN
11. Tippecanoe River.................... Public (State)............ 7.43 (11.95) IN
Private................... 116.83 (188.01)
12. Fish Creek (IN)..................... Public (State)............ 1.02 (1.65) IN, OH
Private................... 36.34 (58.49)
13. Blanchard River..................... Public (local)............ 0.94 (1.51) OH
Private................... 24.08 (38.75)
14. Clinton River....................... Public (local)............ 0.28 (0.44) MI
Private................... 6.74 (10.85)
15. Mill Creek.......................... Public (State)............ 1.54 (2.47) MI
Private................... 22.11 (35.59)
16. Tonawanda Creek..................... Public (State, local)..... 8.70 (14.00) NY
Private................... 93.91 (151.14)
Tribal.................... 10.60 (17.06)
17. Conneaut Creek...................... Public (State, local)..... 2.31 (3.72) OH, PA
Private................... 59.69 (96.06)
18. French Creek........................ Public (Federal, State, 5.83 (9.39) PA
local). 68.54 (110.30)
Private...................
19. Allegheny River..................... Public (State, local)..... 4.60 (7.40) PA
Private................... 34.85 (56.08)
20. Fish Creek (WV)..................... Private................... 26.58 (42.78) WV
21. Fishing Creek....................... Public (local)............ 0.13 (0.21) WV
Private................... 23.19 (37.33)
22. Middle Island Creek................. Public (State)............ 0.15 (0.25) WV
Private................... 62.10 (99.94)
23. Little Kanawha River................ Private................... 49.82 (80.18) WV
24. South Fork Hughes River............. Private................... 57.44 (92.43) WV
25. Kinniconick Creek................... Private................... 51.01 (82.10) KY
26. North Fork Licking River............ Public (Federal).......... 13.13 (21.14) KY
Private................... 7.54 (12.13)
27. Licking River....................... Public (Federal, State, 20.82 (33.51) KY
local). 158.74 (255.47)
Private...................
28. South Fork Licking River............ Private................... 18.26 (29.39) KY
29. Drennon Creek....................... Private................... 22.36 (35.99) KY
30. Laughery Creek...................... Public (State)............ 3.01 (4.85) IN
Private................... 41.51 (66.80)
31. Otter Creek......................... Private................... 17.96 (28.91) IN
32. Graham Creek........................ Private................... 41.50 (66.79) IN
33. East Fork White River............... Public (Federal, State)... 6.12 (9.85) IN
Private................... 72.45 (116.60)
34. Beech Fork River.................... Public (State)............ 1.99 (3.21) KY
Private................... 48.40 (77.89)
35. Rolling Fork River.................. Private................... 87.90 (141.47) KY
36. Harpeth River....................... Public (Federal).......... 6.07 (9.77) TN
Private................... 37.25 (59.95)
37. Duck River.......................... Public (Federal).......... 0.52 (0.83) TN
Private................... 115.90 (186.53)
-----------------------------------------------------------------------
Totals.............................. Public.................... 298.97 (481.14)
[[Page 57240]]
Private................... 1,702.04 (2,739.17)
Tribal.................... 10.60 (17.06)
-------------------------------------------
Total.................... 2,011.61 (3,237.37)
----------------------------------------------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for salamander mussel, below.
Unit 1: St. Croix River
Unit 1 consists of 52.93 miles (85.19 km) of St. Croix River in
Polk, St. Croix, and Pierce Counties, Wisconsin, and Chisago and
Washington Counties, Minnesota. This unit extends from the base of the
dam at St. Croix Falls (Polk County, Wisconsin) and Taylors Falls
(Chisago County, Minnesota) downstream to the confluences with the
Mississippi River at Prescott (Pierce County, Wisconsin) and Point
Douglas (Washington County, Minnesota). The unit includes the river
channel up to the ordinary high water mark. Unit 1 is occupied by the
species and contains one or more of the physical or biological features
essential to the species' conservation.
Approximately 54.5 percent (28.85 miles (46.43 km)) of the riparian
lands adjacent to, but not included in, this unit are in public
ownership, and 45.5 percent (24.08 miles (38.76 km)) are in private
ownership. Approximately 12.63 miles (20.32 km) of the lands in public
ownership are Federal lands associated with the National Park Service's
(NPS) Lower St. Croix National Scenic Riverway. Approximately 4.25
miles (6.84 km) of the lands in public ownership are Federal lands
associated with the NPS's Lower St. Croix National Scenic Riverway on
one side of the bank and State lands associated with the Wisconsin
Department of Natural Resources' (WDNR) St. Croix Islands Wildlife Area
on the other side. Approximately 5.0 miles (8.04 km) of the lands in
public ownership are Federal lands associated with the NPS's Lower St.
Croix National Scenic Riverway on one side of the bank and State lands
associated with the Minnesota Department of Natural Resources' William
O'Brien State Park on the other side. Approximately 5.2 miles (8.37 km)
of the lands in public ownership are State lands associated with the
WDNR's Kinnickinnic State Park and Interstate Park on one side of the
bank and State lands associated with the Minnesota Department of
Natural Resources' Interstate Park on the other side. Approximately
1.78 miles (2.86 km) of the lands in public ownership are State lands
associated with the Minnesota Department of Natural Resources' Afton
State Park. In addition to the Federal and State lands, general land
use within St. Croix River Unit includes agriculture and urban areas,
including the cities of St. Croix Falls, Osceola, Marine on St. Croix,
Stillwater, Houlton, Bayport, Hudson, Lakeland, Lake St. Croix Beach,
and Prescott. This unit does not overlap with any designated critical
habitat for other listed species.
The features essential to the conservation of the salamander mussel
may require special management considerations or protection to reduce
the following threats: degradation of water quality due to
contaminants; lack of connectivity due to barriers; presence of
invasive species; and habitat degradation and loss due to urbanization,
agriculture, and the lack of canopy cover in the riparian buffer.
Unit 2: Chippewa River
Unit 2 consists of 59.24 miles (95.33 km) of Chippewa River in
Buffalo, Dunn, Eau Claire, and Pepin Counties, Wisconsin. The unit
extends from the mouth of the Eau Claire River at Eau Claire (Eau
Claire County, Wisconsin) downstream to the confluence with the
Mississippi River south of Trevino (Buffalo and Pepin Counties,
Wisconsin). This unit includes the river channel up to the ordinary
high water mark. Unit 2 is occupied by the species and contains one or
more of the physical or biological features essential to the species'
conservation.
Approximately 57.5 percent (34.04 miles (54.77 km)) of the riparian
lands adjacent to, but not included in, this unit are in public
ownership, and 42.5 percent (25.20 miles (40.56) km)) are in private
ownership. Approximately 1.3 miles (2.09 km) of the lands in public
ownership are city or county lands associated with city of Eau Claire's
Owen Park and Jefferson County's Public Hunting Ground. Approximately
4.2 miles (6.76 km) of the lands in public ownership are Federal lands
associated with the Bureau of Land Management's (BLM) stewardship of
islands within the river channel. Approximately 1.6 miles (2.57 km) of
the lands in public ownership are Federal lands associated with the
Service's Upper Mississippi River National Wildlife and Fish Refuge on
one side of the bank and State lands associated with the WDNR's Tiffany
Wildlife Area on the opposite bank. Approximately 27 miles (43.45 km)
of the lands in public ownership are State lands associated with the
WDNR's Lower Chippewa River State Natural Area, Dunnville Wildlife
Area, and Nine Mile Island State Natural Area. General land use
includes agriculture and urban areas, including the cities of Eau
Claire, Shawtown, and Durand. This unit does not overlap with any
designated critical habitat for other listed species.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: degradation of water quality due to contaminants;
host vulnerability from the lack of regulation of collection of
mudpuppies; lack of connectivity due to barriers; presence of invasive
species; impacts to the hydrologic regime; and habitat degradation and
loss due to urbanization, agriculture, and the lack of canopy cover in
the riparian buffer.
Unit 3: Eau Claire River
Unit 3 consists of 7.40 miles (11.91 km) of Eau Claire River in Eau
Claire County, Wisconsin. The unit extends from the confluence of the
North Fork and South Fork Eau Claire River (Eau Claire County,
Wisconsin) downstream to Lake Eau Claire (Eau Claire County,
Wisconsin). This unit includes the river channel up to the ordinary
high water mark. Unit 3 is occupied by the species and contains one or
more of the physical or biological features essential to the species'
conservation.
Approximately 57.2 percent (4.23 miles (6.81 km)) of the riparian
lands adjacent to, but not included in, this
[[Page 57241]]
unit are in public ownership, and 42.8 percent (3.17 miles (5.10 km))
are in private ownership. The lands in public ownership in this unit
are associated with the Eau Claire County Forest. General land use
includes agriculture and urban areas. This unit does not overlap with
any designated critical habitat for other listed species.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: degradation of water quality due to contaminants;
host species vulnerability from the lack of regulation of collection of
mudpuppies; lack of connectivity due to barriers; presence of invasive
species; impacts to the hydrologic regime; and habitat degradation and
loss due to urbanization, agriculture, and the lack of canopy cover in
the riparian buffer.
Unit 4: Black River
Unit 4 consists of 75.38 miles (121.31 km) of Black River in
Jackson, La Crosse, Monroe, and Trempealeau Counties, Wisconsin. This
unit extends from the bottom of Lake Arbutus dam southeast of Hatfield
(Jackson County, Wisconsin) downstream to the confluence with the
Mississippi River west of Brice Prairie (La Crosse County, Wisconsin).
This unit includes the river channel up to the ordinary high water
mark. Unit 4 is occupied by the species and contains one or more of the
physical or biological features essential to the species' conservation.
Approximately 47.4 percent (35.71 miles (57.47 km)) of the riparian
lands adjacent to, but not included in, this unit are in public
ownership, and 52.6 percent (39.67 miles (63.84 km)) are in private
ownership. Approximately 0.15 mile (0.24 km) of the land in public
ownership is county land associated with Jackson County Forest.
Approximately 0.86 mile (1.38 km) of the land in public ownership is
Federal land associated with the BLM's stewardship of islands within
the river channel. Approximately 6.6 miles (10.62 km) of the lands in
public ownership are Federal lands associated with the Service's Upper
Mississippi River National Wildlife and Fish Refuge on one bank and
State lands associated with the WDNR's Van Loon Wildlife Area on the
opposite bank. Approximately 28 miles (45.06 km) of the lands in public
ownership are State lands associated with the WDNR's North Bend Bottoms
Wildlife Area, Statewide Habitat Areas, Half Moon Lake Fishery Area,
and Black River State Forest. General land use within the unit includes
agriculture and forest and the city of Black River Falls. This unit
does not overlap with any designated critical habitat for other listed
species.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: degradation of water quality due to contaminants;
host vulnerability from the lack of regulation of collection of
mudpuppies; lack of connectivity due to barriers; presence of invasive
species; impacts to the hydrologic regime; and habitat degradation and
loss due to agriculture and the lack of canopy cover in the riparian
buffer.
Unit 5: Wisconsin River North
Unit 5 consists of 21.19 miles (34.1 km) of Wisconsin River in
Lincoln and Marathon Counties, Wisconsin. This unit extends from the
base of the dam at Merrill (Marathon County, Wisconsin) downstream to
the top of the dam at Wausau (Lincoln County, Wisconsin). The unit
includes the river channel up to the ordinary high water mark. Unit 5
is occupied by the species and contains one or more of the physical or
biological features essential to the species' conservation.
Approximately 19.4 percent (4.11 miles (6.62 km)) of the riparian
lands adjacent to, but not included in, this unit are in public
ownership, and 80.6 percent (17.08 miles (27.48 km)) are in private
ownership. Approximately 3.78 miles (6.08 km) of the lands in public
ownership are city or county lands associated with the city of
Merrill's Riverside Park, Marathon County's Marathon County Forest,
city of Wausau's Gilbert Park, Scholfield Park, Baker Stewart Island
Park, Big Bull Falls Park, White Water Park, and Woodson Park.
Approximately 0.34 mile (0.55 km) of the land in public ownership is
State land associated with the WDNR's State-Owned Islands. General land
use within the unit includes agriculture and urban areas, such as the
cities of Merrill, Granite Heights, and Wausau. This unit does not
overlap with any designated critical habitat for other listed species.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: degradation of water quality due to contaminants;
host species vulnerability from the lack of regulation of collection of
mudpuppies; and lack of connectivity.
Unit 6: North Branch Pensaukee River
Unit 6 consists of 19.93 miles (32.08 km) of North Branch Pensaukee
River in Shawano and Oconto Counties, Wisconsin. This unit extends from
the Pensaukee Lakes at Cecil (Shawano County, Wisconsin) downstream to
the confluence with the Pensaukee River at Abrams (Oconto County,
Wisconsin). The unit includes the river channel up to the ordinary high
water mark. Unit 6 is occupied by the species and contains one or more
of the physical or biological features essential to the species'
conservation.
Approximately 6.2 percent (1.24 miles (2.0 km)) of the riparian
lands adjacent to, but not included in, this unit are in public
ownership, and 93.8 percent (18.69 miles (30.08 km)) are in private
ownership. Approximately 1.22 miles (1.96 km) of the lands in public
ownership are county lands associated with the Oconto County Forest.
Approximately 0.02 mile (0.03 km) of the land in public ownership is
State land associated with the WDNR's Wiouwash State Trail. General
land use within the unit includes agriculture, forest, and urban areas.
This unit does not overlap with any designated critical habitat for
other listed species.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: host species vulnerability from the lack of
regulation of collection of mudpuppies; habitat degradation and loss
due to urbanization, agriculture, and the lack of canopy cover in the
riparian buffer; and presence of invasive species.
Unit 7: Lemonweir River
Unit 7 consists of 37.5 miles (60.36 km) of Lemonweir River in
Juneau County, Wisconsin. This unit extends from approximately a
quarter mile north of Kennedy County Park north of New Lisbon (Juneau
County, Wisconsin) downstream to the confluence with the Wisconsin
River northeast of Lyndon Station (Juneau County, Wisconsin). The unit
includes the river channel up to the ordinary high water mark. Unit 7
is occupied by the species and contains one or more of the physical or
biological features essential to the species' conservation.
Approximately 5.6 percent (2.11 miles (3.4 km)) of the riparian
lands adjacent to, but not included in, this unit are in public
ownership, and 94.4 percent (35.39 miles (56.96 km)) are in private
ownership. The lands in public ownership are city or county lands
associated with the Juneau County Forest owned by Juneau County,
Riverside Park owned by the city of Mauston, and an unnamed natural
area owned by the county. General land use within the unit includes
agriculture and
[[Page 57242]]
urban areas such as the cities of New Lisbon and Mauston. This unit
does not overlap with any designated critical habitat for other listed
species.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: degradation of water quality due to contaminants;
host species vulnerability from the lack of regulation of collection of
mudpuppies; lack of connectivity due to barriers; presence of invasive
species; and habitat degradation and loss due to urbanization,
agriculture, and the lack of canopy cover in the riparian buffer.
Unit 8: Wisconsin River South
Unit 8 consists of 152.88 miles (246.03 km) of Wisconsin River in
Iowa, Grant, Dane, Crawford, Richland, Sauk, Columbia, Juneau, and
Adams Counties, Wisconsin. This unit extends from the confluence with
the Lemonweir River south of White Creek (Adams County, Wisconsin)
downstream to the confluence with the Mississippi River south of
Prairie du Chien (Crawford County, Wisconsin). The unit includes the
river channel up to the ordinary high water mark. Unit 8 is occupied by
the species and contains one or more of the physical or biological
features essential to the species' conservation.
Approximately 67.2 percent (102.78 miles (165.40 km)) of the
riparian lands adjacent to, but not included in, this unit are in
public ownership, and 32.8 percent (50.10 miles (80.63 km)) are in
private ownership. Approximately 0.09 mile (0.14 km) of the land in
public ownership is city land associated with the Village of Lake
Delton's Newport Park. Approximately 9 miles (14.48 km) of the lands in
public ownership are Federal lands associated with the BLM's land
stewardship of islands within the river channel and the Service's Upper
Mississippi River National Wildlife and Fish Refuge. Approximately 93.7
miles (150.8 km) of the lands in public ownership are State lands
associated with the WDNR's Pine Island Wildlife Area, Sauk Prairie
Recreation Area, and Lower Wisconsin State Riverway. General land use
within the unit includes agriculture and urban areas, including
numerous cities and municipalities, as well as several county parks and
forests. This unit does not overlap with any designated critical
habitat for other listed species.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: degradation of water quality due to contaminants;
host species vulnerability from the lack of regulation of collection of
mudpuppies; lack of connectivity due to barriers; presence of invasive
species; and habitat degradation and loss due to urbanization,
agriculture, and the lack of canopy cover in the riparian buffer.
Unit 9: Big Pine Creek
Unit 9 consists of 51.23 miles (82.44 km) of Big Pine Creek in
White, Benton, and Warren Counties, Indiana. This unit extends from the
headwaters of Big Pine Creek northeast of Round Grove (White County,
Indiana) downstream to the confluence with the Wabash River at Attica
(Fountain County, Indiana). The unit includes the river channel up to
the ordinary high water mark. Unit 9 is occupied by the species and
contains one or more of the physical or biological features essential
to the species' conservation.
Approximately 2.5 percent (1.3 miles (2.09 km)) of the riparian
lands adjacent to, but not included in, this unit are in public
ownership, and 97.5 percent (49.93 miles (80.35 km)) are in private
ownership. The lands in public ownership are State lands associated
with the Indiana Department of Natural Resources' (IDNR) Pine Creek
Bottoms Gamebird Habitat Area. General land use within the unit
includes agriculture and urban areas, including the city of Rainsville
and town of Pine Village. This unit does not overlap with any
designated critical habitat for other listed species.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: degradation of water quality due to contaminants;
lack of connectivity due to barriers; host species vulnerability from
the lack of regulation of collection of mudpuppies; presence of
invasive species; and habitat degradation and loss due to urbanization,
agriculture, and the lack of canopy cover and vegetative cover in the
riparian buffer.
Unit 10: Middle Fork Wildcat Creek
Unit 10 consists of 35.7 miles (57.46 km) of Middle Fork Wildcat
Creek in Carroll, Clinton, and Tippecanoe Counties, Indiana. This unit
extends from the headwaters of Middle Fork Wildcat Creek northwest of
Forest (Clinton County, Indiana) downstream to the confluence with
South Fork Wildcat Creek northwest of Monitor (Tippecanoe County,
Indiana). The unit includes the river channel up to the ordinary high
water mark. Unit 10 is occupied by the species and contains one or more
of the physical or biological features essential to the species'
conservation.
The riparian lands adjacent to, but not included in, this unit are
in private ownership. General land use within the unit includes
agriculture and numerous cities and municipalities. This unit does not
overlap with any designated critical habitat for other listed species.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: degradation of water quality due to contaminants;
habitat degradation and loss due to urbanization, agriculture, and the
lack of canopy cover and vegetative cover in the riparian buffer; host
species vulnerability from lack of regulation of collection of
mudpuppies; and impacts to the hydrologic regime.
Unit 11: Tippecanoe River
Unit 11 consists of 124.26 miles (199.96 km) of Tippecanoe River in
Marshall, Fulton, Pulaski, Starke, Kosciusko, and White Counties,
Indiana. This unit extends from below Oswego Lake at Oswego (Kosciusko
County, Indiana) downstream to the top of Lake Shaffer west of Sitka
(White County, Indiana). The unit includes the river channel up to the
ordinary high water mark. Unit 11 is occupied by the species and
contains one or more of the physical or biological features essential
to the species' conservation.
Approximately 6 percent (7.43 miles (11.95 km)) of the riparian
lands adjacent to, but not included in, this unit are in public
ownership, and 94 percent (116.83 miles (188.01 km)) are in private
ownership. The lands in public ownership are State lands associated
with the IDNR's Tippecanoe River State Park and Menominee Public
Fishing Area, Talma Public Access, and Old Tip Town Public Access Site.
General land use within the unit includes agriculture and urban areas,
including numerous cities and municipalities, as well as several county
parks and natural areas. There is overlap of 28.14 miles (45.29 km) of
this unit with designated critical habitat for the rabbitsfoot
(Quadrula cylindrica cylindrica) (see 80 FR 24692, April 30, 2015, and
50 CFR 17.95(f)) and 74.38 miles (119.7 km) with designated critical
habitat for the round hickorynut (Obovaria subrotunda) (see 88 FR
14794, March 9, 2023, and 50 CFR 17.95(f)).
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: degradation of water quality due
[[Page 57243]]
to contaminants; habitat degradation and loss due to urbanization,
agriculture, and the lack of canopy cover and vegetative cover in the
riparian buffer; lack of connectivity due to barriers; presence of
invasive species; host species vulnerability from the lack of
regulation of collection of mudpuppies; and impacts to the hydrologic
regime.
Unit 12: Fish Creek (IN)
Unit 12 consists of 37.36 miles (60.14 km) of Fish Creek in
Williams County, Ohio, and DeKalb and Steuben Counties, Indiana. This
unit extends from the headwaters of Fish Creek at Billingstown
(Williams County, Ohio) downstream to the confluence with the St.
Joseph River at Edgerton (Williams County, Ohio). The unit includes the
river channel up to the ordinary high water mark. Unit 12 is occupied
by the species and contains one or more of the physical or biological
features essential to the species' conservation.
Approximately 2.7 percent (1.02 miles (1.65 km)) of the riparian
lands adjacent to, but not included in, this unit are in public
ownership, and 97.3 percent (36.34 miles (58.49 km)) are in private
ownership. The land in public ownership is State land associated with
the Ohio Department of Natural Resources' (ODNR) Fish Creek Wildlife
Area. General land use within the unit is urban. There is overlap of
5.53 miles (8.9 km) of this unit with designated critical habitat for
the rabbitsfoot (see 80 FR 24692, April 30, 2015, and 50 CFR 17.95(f)).
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: degradation of water quality due to contaminants;
lack of connectivity due to barriers; presence of invasive species; and
habitat degradation and loss due to urbanization and the lack of canopy
cover and vegetative cover in the riparian buffer.
Unit 13: Blanchard River
Unit 13 consists of 25.02 miles (40.26 km) of Blanchard River in
Putnam and Hancock Counties, Ohio. This unit extends from the west side
of Findley (Hancock County, Ohio) downstream to the confluence with
Riley Creek east of Ottawa (Putnam County, Ohio). The unit includes the
river channel up to the ordinary high water mark. Unit 13 is occupied
by the species and contains one or more of the physical or biological
features essential to the species' conservation.
Approximately 3.75 percent (0.94 mile (1.51 km)) of the riparian
lands adjacent to, but not included in, this unit are in public
ownership, and 96.25 percent (24.08 miles (38.75 km)) are in private
ownership. The land in public ownership is city or county land
associated with Hancock Park District's Indian Green Preserve. General
land use within the unit includes agriculture, forest, and urban areas
as well as several county parks and natural areas, a State-managed
hatchery, and State-managed recreation and wildlife areas and nature
preserves. This unit does not overlap with any designated critical
habitat for other listed species.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: degradation of water quality due to contaminants;
habitat degradation and loss due to urbanization, agriculture, and the
lack of canopy cover and vegetative cover in the riparian buffer;
presence of invasive species; and host species vulnerability from the
lack of regulation of collection of mudpuppies.
Unit 14: Clinton River
Unit 14 consists of 7.02 miles (11.29 km) of Clinton River in
Oakland County, Michigan. This unit extends from downstream of the fish
hatchery at Waterford Township (Oakland County, Michigan) downstream to
Cass Lake east of Four Towns (Oakland County, Michigan). The unit
includes the river channel up to the ordinary high water mark. Unit 14
is occupied by the species and contains one or more of the physical or
biological features essential to the species' conservation.
Approximately 4 percent (0.28 mile (0.44 km)) of the riparian lands
adjacent to, but not included in, this unit are in public ownership,
and 96 percent (6.74 miles (10.85 km)) are in private ownership. The
land in public ownership is city or county land associated with
Waterford Township's Clinton River Canoe Site. General land use within
the unit includes agriculture, forest, and urban areas. This unit does
not overlap with any designated critical habitat for other listed
species.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: degradation of water quality due to contaminant;
habitat degradation and loss due to the amount of impervious surface,
urbanization, and the lack of canopy cover and vegetative cover in the
riparian buffer; host species vulnerability from the lack of regulation
of collection of mudpuppies; lack of connectivity due to barriers; and
presence of invasive species.
Unit 15: Mill Creek
Unit 15 consists of 23.65 miles (38.06 km) of Mill Creek in St.
Clair County, Michigan. This unit extends from the confluence with
Thompson Drain northwest of Brockway Township (St. Clair County,
Michigan) downstream to the confluence with the Black River at Ruby
(St. Clair County, Michigan). The unit includes the river channel up to
the ordinary high water mark. Unit 15 is occupied by the species and
contains one or more of the physical or biological features essential
to the species' conservation.
Approximately 6.5 percent (1.54 miles (2.47 km)) of the riparian
lands adjacent to, but not included in, this unit are in public
ownership, and 93.5 percent (22.11 miles (35.59 km)) are in private
ownership. The lands in public ownership are State lands associated
with the Michigan Department of Natural Resources' (MDNR) Port Huron
State Game Area. General land use within the unit includes agriculture
and urban areas. This unit does not overlap with any designated
critical habitat for other listed species.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: degradation of water quality due to contaminants;
habitat degradation and loss due to the amount of impervious surface,
urbanization, agriculture, and the lack of canopy cover and vegetative
cover in the riparian buffer; presence of invasive species; and host
species vulnerability from the lack of regulation of collection of
mudpuppies.
Unit 16: Tonawanda Creek
Unit 16 consists of 113.21 miles (182.20 km) of Tonawanda Creek in
Erie, Genesee, Niagara, and Wyoming Counties, New York. This unit
extends from the headwaters of Tonawanda Creek at Java Center (Wyoming
County, New York) downstream to the confluence with the Niagara River
at Tonawanda (Erie County, New York). The unit includes the river
channel up to the ordinary high water mark. Unit 16 is occupied by the
species and contains one or more of the physical or biological features
essential to the species' conservation.
Approximately 7.7 percent (8.70 miles (14.00 km)) of the riparian
lands adjacent to, but not included in, this unit are in public
ownership; 82.9 percent (93.91 miles (151.14 km)) are in private
ownership; and 9.4 percent (10.6
[[Page 57244]]
miles (17.06 km)) are on Tribal lands associated with the Tonawanda
Reservation. Approximately 2.08 miles (3.35 km) of the lands in public
ownership are city or county lands associated with the town of
Sheldon's Vincent Almeter Memorial Park Lands, city of Attica's city
lands, city of Batavia's local parks and Kiwanis mini park, and Erie
County's Erie County Lands. Approximately 6.62 miles (10.65 km) of the
lands in public ownership are State lands associated with New York's
Erie Canal Waterway Trail. General land use within the unit includes
urban areas. This unit does not overlap with any designated critical
habitat for other listed species.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: habitat degradation and loss due to urbanization,
agriculture, and the lack of canopy cover and vegetative cover in the
riparian buffer; and lack of connectivity.
We have reason to consider excluding 10.6 miles (17.06 km) of
proposed Unit 16 under section 4(b)(2) of the Act from the final
critical habitat designation for the salamander mussel, based on other
relevant impacts. This portion of the unit occurs within the Tonawanda
Reservation.
Unit 17: Conneaut Creek
Unit 17 consists of 62 miles (99.78 km) of Conneaut Creek in
Ashtabula County, Ohio, and Erie and Crawford Counties, Pennsylvania.
This unit extends from the start of Conneaut Creek at Dicksonburg
(Crawford County, Pennsylvania) downstream to the mouth with Lake Erie
at Conneaut (Ashtabula County, Ohio). The unit includes the river
channel up to the ordinary high water mark. Unit 17 is occupied by the
species and contains one or more of the physical or biological features
essential to the species' conservation.
Approximately 3.7 percent (2.31 miles (3.72 km)) of the riparian
lands adjacent to, but not included in, this unit are in public
ownership, and 96.3 percent (59.69 miles (96.06 km)) are in private
ownership. Approximately 0.34 mile (0.55 km) of land in public
ownership is city land associated with Conneaut Local Youth
Organization Park. Approximately 1.97 miles (3.17 km) of the lands in
public ownership are State lands associated with the ODNR's Conneaut
Creek Scenic River. General land use within the unit includes
agriculture, forest, and urban areas. This unit does not overlap with
any designated critical habitat for other listed species.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: degradation of water quality due to contaminants;
host species vulnerability from the lack of regulation of collection of
mudpuppies; habitat degradation and loss due to urbanization,
agriculture, and the lack of canopy cover in the riparian buffer; lack
of connectivity due to barriers; and presence of invasive species.
Unit 18: French Creek
Unit 18 consists of 74.37 miles (119.69 km) of French Creek in
Mercer, Erie, Crawford, and Venango Counties, Pennsylvania. This unit
extends from downstream of Union City Dam northwest of Union City (Erie
County, Pennsylvania) downstream to the confluence of the Allegheny
River at Franklin (Venango County, Pennsylvania). The unit includes the
river channel up to the ordinary high water mark. Unit 18 is occupied
by the species and contains one or more of the physical or biological
features essential to the species' conservation.
Approximately 7.8 percent (5.83 miles (9.39km)) of the riparian
lands adjacent to, but not included in, this unit are in public
ownership, and 92.2 percent (68.54 miles (110.3 km)) are in private
ownership. Approximately 1.1 miles (1.77 km) of the lands in public
ownership are city or county lands associated with the Borough of
Cambridge Springs' Cambridge Springs Recreation Area, the Township of
Hayfield's Bertram Park, the Township of Vernon's Vernon Township Ball
Fields and Vernon Township Recreation Association, and the city of
Meadville's Kenneth A. Beers Jr. Bicenntenial Park. Approximately 1.1
miles (1.77 km) of the lands in public ownership are Federal lands
associated with the Service's Erie National Wildlife Refuge.
Approximately 3.6 miles (5.79 km) of the lands in public ownership are
State lands associated with the Pennsylvania Game Commission's State
Game Land #85 and State Game Land #277 and the Pennsylvania Fish and
Boat Commission's Meadville Access and Shaw's Landing. General land use
within the unit includes agriculture and urban areas. Unit 18 entirely
overlaps with designated critical habitat for the rabbitsfoot (see 80
FR 24692, April 30, 2015, and 50 CFR 17.95(f)) and with designated
critical habitat for the longsolid (Fusconaia subrotunda) (see 88 FR
14794, March 9, 2023, and 50 CFR 17.95(f)).
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: degradation of water quality due to contaminants;
presence of invasive species; habitat degradation and loss due to
urbanization, agriculture, and the lack of canopy cover and vegetative
cover in the riparian buffer; and lack of connectivity due to barriers.
Unit 19: Allegheny River
Unit 19 consists of 39.45 miles (63.48 km) of Allegheny River in
Armstrong County, Pennsylvania. This unit extends from the Pennsylvania
Route 68 bridge at East Brady (Armstrong County, Pennsylvania)
downstream to the confluence of Kiskiminetas River northeast of
Freeport (Armstrong County, Pennsylvania). The unit includes the river
channel up to the ordinary high water mark. Unit 19 is occupied by the
species and contains one or more of the physical or biological features
essential to the species' conservation.
Approximately 11.7 percent (4.6 miles (7.4 km)) of the riparian
lands adjacent to, but not included in, this unit are in public
ownership, and 88.3 percent (34.85 miles (56.08 km)) are in private
ownership. Approximately 1.86 miles (2.99 km) of the lands in public
ownership are city or county lands associated with the Armstrong
County's West Ford City Park and Riverfront Park. Approximately 2.74
miles (4.41 km) of the lands in public ownership are State lands
associated with the Pennsylvania Game Commission's State Game Land #287
and State Game Land #105. General land use within the unit includes
urban areas, such as the cities of East Brady and Kittanning. This unit
does not overlap with any designated critical habitat for other listed
species.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: degradation of water quality due to contaminants;
presence of invasive species; habitat degradation and loss due to
urbanization and the lack of canopy cover and vegetative cover in the
riparian buffer; and lack of connectivity due to barriers.
Unit 20: Fish Creek (WV)
Unit 20 consists of 26.58 miles (42.78 km) of Fish Creek in
Marshall County, West Virginia. This unit extends from the confluence
of Pennsylvania Fork Fish Creek and West Virginia Fork Fish Creek at
Kausooth (Marshall County, West Virginia) downstream to the confluence
with the Ohio River southwest of Graysville (Marshall County, West
Virginia). The unit
[[Page 57245]]
includes the river channel up to the ordinary high water mark. Unit 20
is occupied by the species and contains one or more of the physical or
biological features essential to the species' conservation.
The lands in this unit are in private ownership. General land use
within the unit is urban, including numerous towns and municipalities.
This unit does not overlap with any designated critical habitat for
other listed species.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: degradation of water quality due to contaminants;
lack of connectivity due to barriers; presence of invasive species; and
habitat degradation and loss due to urbanization and the lack of canopy
cover and vegetative cover in the riparian buffer.
Unit 21: Fishing Creek
Unit 21 consists of 23.32 miles (37.54 km) of Fishing Creek in
Wetzel County, West Virginia. This unit extends from the confluence of
the North Fork Fishing Creek and South Fork Fishing Creek at Pine Grove
(Wetzel County, West Virginia) downstream to the confluence with the
Ohio River at Brooklyn (Wetzel County, West Virginia). The unit
includes the river channel up to the ordinary high water mark. Unit 21
is occupied by the species and contains one or more of the physical or
biological features essential to the species' conservation.
Approximately 0.5 percent (0.13 mile (0.21 km)) of the riparian
lands adjacent to, but not included in, this unit are in public
ownership, and 99.5 percent (23.19 miles (37.33 km)) are in private
ownership. The land in public ownership is land associated with the
city of New Martinsville. General land use within the unit is urban,
including numerous cities and municipalities. This unit does not
overlap with any designated critical habitat for other listed species.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: degradation of water quality due to contaminants;
presence of invasive species; habitat degradation and loss due to
urbanization and the lack of canopy cover and vegetative cover in the
riparian buffer; and lack of connectivity due to barriers.
Unit 22: Middle Island Creek
Unit 22 consists of 62.25 miles (100.19 km) of Middle Island Creek
in Doddridge, Tyler, and Pleasants Counties, West Virginia. This unit
extends from downstream of Keys Bend south of Camp (Doddridge County,
West Virginia) downstream to the confluence with the Ohio River at
Delong (Pleasants County, West Virginia). The unit includes the river
channel up to the ordinary high water mark. Unit 22 is occupied by the
species and contains one or more of the physical or biological features
essential to the species' conservation.
Approximately 0.24 percent (0.15 mile (0.25 km)) of the riparian
lands adjacent to, but not included in, this unit are in public
ownership, and 99.76 percent (62.10 miles (99.94 km)) are in private
ownership. The land in public ownership is State land associated with
the West Virginia Division of Natural Resources' (WVDNR) Buffalo Run
Wildlife Management Area. General land use within the unit is urban,
including numerous cities and municipalities. Unit 22 entirely overlaps
with designated critical habitat for the round hickorynut (see 88 FR
14794, March 9, 2023, and 50 CFR 17.95(f)).
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: degradation of water quality due to contaminants;
presence of invasive species; habitat degradation and loss due to
urbanization and the lack of canopy cover and vegetative cover in the
riparian buffer; and lack of connectivity due to barriers.
Unit 23: Little Kanawha River
Unit 23 consists of 49.82 miles (80.18 km) of Little Kanawha River
in Wood and Wirt Counties, West Virginia. This unit extends from the
confluence with the West Fork Little Kanawha River west of Creston
(Wirt County, West Virginia) downstream to the confluence with the Ohio
River at Parkersburg (Wood County, West Virginia). The unit includes
the river channel up to the ordinary high water mark. Unit 23 is
occupied by the species and contains one or more of the physical or
biological features essential to the species' conservation.
The riparian lands adjacent to, but not included in, this unit are
in private ownership. General land use within the unit is urban,
including numerous cities and municipalities. Unit 23 entirely overlaps
with designated critical habitat for the longsolid and round hickorynut
(see 88 FR 14794, March 9, 2023, and 50 CFR 17.95(f)).
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: degradation of water quality due to contaminants;
presence of invasive species; habitat degradation and loss due to
urbanization and the lack of canopy cover and vegetative cover in the
riparian buffer; and lack of connectivity due to barriers.
Unit 24: South Fork Hughes River
Unit 24 consists of 57.44 miles (92.43 km) of South Fork Hughes
River in Doddridge, Wirt, and Ritchie Counties, West Virginia. This
unit extends from the headwaters of the South Fork Hughes River at
Porto Rico (Doddridge County, West Virginia) downstream to the
confluence with the Hughes River south of Cisco (Ritchie County, West
Virginia). The unit includes the river channel up to the ordinary high
water mark. Unit 24 is occupied by the species and contains one or more
of the physical or biological features essential to the species'
conservation.
The riparian lands adjacent to, but not included in, this unit are
in private ownership. General land use within the unit is urban,
including numerous cities and municipalities. This unit does not
overlap with any designated critical habitat for other listed species.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: degradation of water quality due to contaminants;
presence of invasive species; habitat degradation and loss due to
urbanization and the lack of canopy cover and vegetative cover in the
riparian buffer; and lack of connectivity due to barriers.
Unit 25: Kinniconick Creek
Unit 25 consists of 51.01 miles (82.10 km) of Kinniconick Creek in
Lewis County, Kentucky. This unit extends from the headwaters of
Kinniconick Creek southwest of Petersville (Lewis County, Kentucky)
downstream to the confluence with the Ohio River at Rexton (Lewis
County, Kentucky). The unit includes the river channel up to the
ordinary high water mark. Unit 25 is occupied by the species and
contains one or more of the physical or biological features essential
to the species' conservation.
The riparian lands adjacent to, but not included in, this unit are
in private ownership. General land use within the unit includes
agriculture and urban areas, including the town of Garrison. This unit
does not overlap with any designated critical habitat for other listed
species.
The features essential to the conservation of this species may
require special management considerations or
[[Page 57246]]
protection to reduce the following threats: degradation of water
quality due to contaminants; lack of connectivity due to barriers; host
species vulnerability from the lack of regulation of collection of
mudpuppies; presence of invasive species; impacts to the hydrologic
regime; and habitat degradation and loss due to urbanization,
agriculture, and the lack of canopy cover and vegetative cover in the
riparian buffer.
Unit 26: North Fork Licking River
Unit 26 consists of 20.67 miles (33.27 miles) of North Fork Licking
River in Morgan and Rowan Counties, Kentucky. This unit extends from
the headwaters of North Fork Licking River at Redwine (Morgan County,
Kentucky) downstream to the confluence of the Licking River at Bangor
(Rowan County, Kentucky). The unit includes the river channel up to the
ordinary high water mark. Unit 26 is occupied by the species and
contains one or more of the physical or biological features essential
to the species' conservation.
Approximately 63.5 percent (13.13 miles (21.14 km)) of the riparian
lands adjacent to, but not included in, this unit are in public
ownership, and 36.5 percent (7.54 miles (12.13 km)) are in private
ownership. The lands in public ownership are Federal lands associated
with the USACE's Cave Run Recreation Area and U.S. Forest Service's
(USFS) Daniel Boone National Forest. General land use within the unit
includes agriculture, forest, and urban areas, including the cities of
Wrigley, Leisure, Craney, and Paragon. This unit does not overlap with
any designated critical habitat for other listed species.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: water quality degradation due to contaminants; host
species vulnerability from lack of regulation of collection of
mudpuppies; presence of invasive species; impacts to the hydrologic
regime; habitat degradation and loss due to urbanization, agriculture,
and the lack of canopy cover and vegetative cover in the riparian
buffer; and lack of connectivity due to barriers.
Unit 27: Licking River
Unit 27 consists of 179.56 miles (288.98 km) of Licking River in
Harrison, Robertson, Kenton, Bracken, Campbell, Rowan, Pendleton,
Fleming, Bath, and Nicholas Counties, Kentucky. This unit extends from
below the dam at Cave Rune Lake south of Farmers (Rowan County,
Kentucky) downstream to the confluence with the Ohio River at Newport
(Campbell County, Kentucky). The unit includes the river channel up to
the ordinary high water mark. Unit 27 is occupied by the species and
contains one or more of the physical or biological features essential
to the species' conservation.
Approximately 11.6 percent (20.82 miles (33.51 km)) of the riparian
lands adjacent to, but not included in, this unit are in public
ownership, and 88.4 percent (158.74 miles (255.47 km)) are in private
ownership. Approximately 3.58 miles (5.76 km) of the lands in public
ownership are city or county lands associated with the city of
Newport's General James Taylor Park; city of Covington's 19th St.
Hollow Park, Meinken Park, and Eva G. Farris Complex; Kenton County's
Locust Pike Park; Campbell County Conservation District's Hawthorne
Crossing Conservation Area; and Kenton County Conservation District's
Morning View Natural Area. Approximately 0.4 mile (0.64 km) of the land
in public ownership is Federal land associated with the USACE's Cave
Run Recreation Area. Approximately 0.5 mile (0.8 km) of the land in
public ownership is Federal land associated with the USACE's Cave Run
Recreation Area or USFS's Daniel Boone National Forest on one bank and
State lands associated with the Kentucky Department of Fish and
Wildlife Resources' (KDFWR) Minor Clark Fish Hatchery on the opposite
bank. Approximately 16.36 miles (26.33 km) of the lands in public
ownership are State lands associated with the Kentucky State Nature
Preserves Commission's Quiet Trails State Nature Preserve, Kentucky
Department of Parks' Blue Licks Battlefield State Recreational Park,
and KDFWR's Clay Wildlife Management Area and Minor Clark Fish
Hatchery. General land use within the unit includes agriculture,
forest, and urban areas, including numerous cities and municipalities.
Unit 27 entirely overlaps with designated critical habitat for the
longsolid (see 88 FR 14794, March 9, 2023, and 50 CFR 17.95(f)).
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: water quality degradation due to contaminants; host
species vulnerability from lack of regulation of collection of
mudpuppies; presence of invasive species; changes in the hydrologic
regime; habitat degradation and loss due to urbanization, agriculture,
and the lack of canopy cover and vegetative cover in the riparian
buffer; and lack of connectivity due to barriers.
Unit 28: South Fork Licking River
Unit 28 consists of 18.26 miles (29.39 km) of South Fork Licking
River in Pendleton and Harrison Counties, Kentucky. This unit extends
from 1 mile upstream from the confluence with Crooked Creek north of
Boyd (Harrison County, Kentucky) downstream to the confluence with the
Licking River at Falmouth (Pendleton County, Kentucky). The unit
includes the river channel up to the ordinary high water mark. Unit 28
is occupied by the species and contains one or more of the physical or
biological features essential to the species' conservation.
The riparian lands adjacent to, but not included in, this unit are
in private ownership. General land use within the unit is urban,
including the cities of Falmouth and Morgan. This unit does not overlap
with any designated critical habitat for other listed species.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: water quality degradation due to contaminants;
habitat degradation and loss due to urbanization, agriculture, and the
lack of canopy cover and vegetative cover in the riparian buffer; host
species vulnerability from lack of regulation of collection of
mudpuppies; changes in the hydrologic regime; and presence of invasive
species.
Unit 29: Drennon Creek
Unit 29 consists of 22.36 miles (35.99 km) of Drennon Creek in
Henry County, Kentucky. This unit extends from the headwaters of
Drennon Creek south of Bethlehem (Henry County, Kentucky) downstream to
the confluence with the Kentucky River southeast of Drennon Springs
(Henry County, Kentucky). The unit includes the river channel up to the
ordinary high water mark. Unit 29 is occupied by the species and
contains one or more of the physical or biological features essential
to the species' conservation.
The riparian lands adjacent to, but not included in, this unit are
in private ownership. General land use within the unit is agriculture
and urban areas, including the cities of Drennon Springs and Delville.
This unit does not overlap with any designated critical habitat for
other listed species.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: degradation of water quality due to contaminants;
lack of connectivity due to barriers; host species vulnerability from
the lack of regulation
[[Page 57247]]
of collection of mudpuppies; presence of invasive species; and habitat
degradation and loss due to urbanization, agriculture, and the lack of
canopy cover and vegetative cover in the riparian buffer.
Unit 30: Laughery Creek
Unit 30 consists of 44.52 miles (71.65 km) of Laughery Creek in
Ripley, Dearborn, and Ohio Counties, Indiana. This unit extends from
below the dam at Versailles Lake at Versailles (Ripley County, Indiana)
downstream to the confluence with the Ohio River at Buffalo (Ohio
County, Indiana). The unit includes the river channel up to the
ordinary high water mark. Unit 30 is occupied by the species and
contains one or more of the physical or biological features essential
to the species' conservation.
Approximately 6.76 percent (3.01 miles (4.85 km)) of the riparian
lands adjacent to, but not included in, this unit are in public
ownership, and 93.24 percent (41.51 miles (66.8 km) are in private
ownership. The lands in public ownership are State lands associated
with the IDNR's Versailles State Park. General land use within the unit
is agriculture and urban areas, including the cities of Friendship and
Versailles. This unit does not overlap with any designated critical
habitat for other listed species.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: degradation of water quality due to contaminants;
habitat degradation and loss due to urbanization, agriculture, and the
lack of canopy cover and vegetative cover in the riparian buffer; lack
of connectivity due to barriers; presence of invasive species; host
species vulnerability from the lack of regulation of collection of
mudpuppies; and impacts to the hydrologic regime.
Unit 31: Otter Creek
Unit 31 consists of 17.96 miles (28.91 km) of Otter Creek in
Jennings and Ripley Counties, Indiana. This unit extends from the U.S.
Highway 50 bridge west of Holton (Ripley County, Indiana) downstream to
the confluence with the Vernon Fork Muscatatuck River at Vernon
(Jennings County, Indiana). The unit includes the river channel up to
the ordinary high water mark. Unit 31 is occupied by the species and
contains one or more of the physical or biological features essential
to the species' conservation.
The riparian lands adjacent to, but not included in, this unit are
in private ownership. General land use within the unit includes
agriculture and urban areas, including the city of Vernon. This unit
does not overlap with any designated critical habitat for other listed
species.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: degradation of water quality due to contaminants;
lack of connectivity due to barriers; presence of invasive species;
host species vulnerability from the lack of regulation of collection of
mudpuppies; and habitat degradation and loss due to urbanization,
agriculture, and the lack of canopy cover and vegetative cover in the
riparian buffer.
Unit 32: Graham Creek
Unit 32 consists of 41.5 miles (66.79 km) of Graham Creek in
Jefferson, Jennings, and Ripley Counties, Indiana. This unit extends
from west of South Old Michigan Road at New Marion (Ripley County,
Indiana) downstream to the confluence with the Muscatatuck River north
of Deputy (Jefferson County, Indiana). The unit includes the river
channel up to the ordinary high water mark. Unit 32 is occupied by the
species and contains one or more of the physical or biological features
essential to the species' conservation.
The riparian lands adjacent to, but not included in, this unit are
in private ownership. General land use within the unit includes
agriculture and numerous municipalities. This unit does not overlap
with any designated critical habitat for other listed species.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: degradation of water quality due to contaminants;
lack of connectivity due to barriers; presence of invasive species;
host species vulnerability from the lack of regulation of collection of
mudpuppies; and habitat degradation and loss due to urbanization,
agriculture, and the lack of canopy cover and vegetative cover in the
riparian buffer.
Unit 33: East Fork White River
Unit 33 consists of 78.57 miles (126.45 km) of East Fork White
River in Dubois, Daviess, Pike, Martin, and Lawrence Counties, Indiana.
This unit extends from below the Williams dam south of Williams
(Lawrence County, Indiana) downstream to approximately 0.25 mile west
of North State Road 57 at Rogers (Pike County, Indiana). This unit
includes the river channel up to the ordinary high water mark. Unit 33
is occupied by the species and contains one or more of the physical or
biological features essential to the species' conservation.
Approximately 7.8 percent (6.12 miles (9.85 km)) of the riparian
lands adjacent to, but not included in, this unit are in public
ownership, and 92.2 percent (72.45 miles (116.6 km)) are in private
ownership. Approximately 0.12 mile (0.19 km) of the land in public
ownership is Federal land associated with the USFS's Hoosier National
Forest. Approximately 6 miles (9.66 km) of the lands in public
ownership are State lands associated with the IDNR's Williams Dam
Public Fishing Area, Hindostan Falls Public Fishing Area, Glendale Fish
and Wildlife Area, Henshaw Bend Nature Preserve, and Bluffs on Beaver
Pond. General land use within the unit includes forest, agriculture,
dams, and urban areas, including the city of Shoals. This unit does not
overlap with any designated critical habitat for other listed species.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: water quality degradation due to contaminants; host
species vulnerability from lack of regulation of collection of
mudpuppies; presence of invasive species; changes in the hydrologic
regime; and habitat degradation and loss due to urbanization,
agriculture, and the lack of canopy cover and vegetative cover in the
riparian buffer.
Unit 34: Beech Fork River
Unit 34 consists of 50.39 miles (81.10 km) of Beech Fork River in
Washington and Nelson Counties, Kentucky. This unit extends from the
confluence of Beech Fork and Chaplin River north of Mooresville
(Washington County, Kentucky) extending downstream to the confluence of
Beech Fork River and the Rolling Fork River northeast of Elizabethtown
(Hardin County, Kentucky). This unit includes the river channel up to
the ordinary high water mark. Unit 34 is occupied by the species and
contains one or more of the physical or biological features essential
to the species' conservation.
Approximately 3.9 percent (1.99 miles (3.21 km)) of the riparian
lands adjacent to, but not included in, this unit are in public
ownership, and 96.1 percent (48.40 miles (77.89 km)) are in private
ownership. The lands in public ownership are State lands associated
with the KDFWR's John C. Williams Wildlife Management Area. General
land use within the unit includes agriculture and numerous cities and
[[Page 57248]]
municipalities. This unit does not overlap with any designated critical
habitat for other listed species.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: degradation of water quality due to contaminants;
lack of connectivity due to barriers; host species vulnerability from
the lack of regulation of collection of mudpuppies; presence of
invasive species; and habitat degradation and loss due to urbanization,
agriculture, and the lack of canopy cover and vegetative cover in the
riparian buffer.
Unit 35: Rolling Fork River
Unit 35 consists of 87.9 miles (141.47 km) of Rolling Fork River in
LaRue, Hardin, Marion, and Nelson Counties, Kentucky. This unit extends
from the confluence of the North Rolling Fork River and Big South Fork
River west of Bradfordsville (Marion County, Kentucky) downstream to
the confluence with Beech Fork River east of Younger Creek (Hardin
County, Kentucky). The unit includes the river channel up to the
ordinary high water mark. Unit 35 is occupied by the species and
contains one or more of the physical or biological features essential
to the species' conservation.
The riparian lands adjacent to, but not included in, this unit are
in private ownership. General land use within the unit includes
agriculture and numerous cities and municipalities. This unit does not
overlap with any designated critical habitat for other listed species.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: degradation of water quality due to contaminants;
lack of connectivity due to barriers; host species vulnerability from
the lack of regulation of collection of mudpuppies; presence of
invasive species; and habitat degradation and loss due to urbanization,
agriculture, and the lack of canopy cover and vegetative cover in the
riparian buffer.
Unit 36: Harpeth River
Unit 36 consists of 43.32 miles (69.72 km) of Harpeth River in
Cheatham and Dickson Counties, Tennessee. This unit extends from the
confluence of the South Harpeth River southeast of Kingston Springs
(Cheatham County, Tennessee) downstream to the confluence with the
Cumberland River northeast of Bellsburg (Dickson County, Tennessee).
The unit includes the river channel up to the ordinary high water mark.
Unit 36 is occupied by the species and contains one or more of the
physical or biological features essential to the species' conservation.
Approximately 14 percent (6.07 miles (9.77 km)) of the riparian
lands adjacent to, but not included in, this unit are in public
ownership, and 86 percent (37.25 miles (59.95 km)) are in private
ownership. The lands in public ownership are Federal lands associated
with the USACE's Cheatham Lake Reservoir. General land use within the
unit includes agriculture and urban areas, including the town of
Kingston Springs. This unit does not overlap with any designated
critical habitat for other listed species.
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: degradation of water quality due to contaminants;
lack of connectivity due to barriers; presence of invasive species;
host species vulnerability from the lack of regulation of collection of
mudpuppies; habitat degradation and loss due to urbanization,
agriculture, and the lack of canopy cover and vegetative cover in the
riparian buffer; and impacts to the hydrological regime.
Unit 37: Duck River
Unit 37 consists of 116.42 miles (187.36 km) of Duck River in
Hickman, Humphreys, Perry, and Maury Counties, Tennessee. This unit
extends from the confluence of the Little Bigby Creek northwest of
Columbia (Maury County, Tennessee) downstream to the confluence of the
Duck River and the Tennessee River, which creates a backwater effect at
Elysian Grove (Humphreys County, Tennessee). The unit includes the
river channel up to the ordinary high water mark. Unit 37 is occupied
by the species and contains one or more of the physical or biological
features essential to the species' conservation.
Approximately 0.4 percent (0.52 mile (0.83 km)) of the riparian
lands adjacent to, but not included in, this unit are in public
ownership, and 99.6 percent (115.9 miles (186.53 km)) are in private
ownership. The land in public ownership is Federal land associated with
the NPS's Natchez Trace Parkway. General land use within the unit
includes agriculture and numerous cities and municipalities. Unit 37
entirely overlaps with designated critical habitat for rabbitsfoot (see
80 FR 24692, April 30, 2015, and 50 CFR 17.95(f)).
The features essential to the conservation of this species may
require special management considerations or protection to reduce the
following threats: habitat degradation and loss due to urbanization,
agriculture, and the lack of canopy cover and vegetative cover in the
riparian buffer; lack of connectivity due to barriers; host species
vulnerability from the lack of regulation of collection of mudpuppies;
degradation of water quality due to contaminants; presence of invasive
species; and impacts to the hydrologic regime.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they authorize, fund, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
We published a final rule revising the definition of destruction or
adverse modification on August 27, 2019 (84 FR 44976). Destruction or
adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed species.
Compliance with the requirements of section 7(a)(2) is documented
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 and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
[[Page 57249]]
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of 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 set forth requirements for Federal
agencies to reinitiate consultation if any of the following four
conditions occur: (1) the amount or extent of taking specified in the
incidental take statement is exceeded; (2) new information reveals
effects of the action that may affect listed species or critical
habitat in a manner or to an extent not previously considered; (3) the
identified action is subsequently modified in a manner that causes an
effect to the listed species or critical habitat that was not
considered in the biological opinion or written concurrence; or (4) a
new species is listed or critical habitat designated that may be
affected by the identified action. The reinitiation requirement applies
only to actions that remain subject to some discretionary Federal
involvement or control. As provided in 50 CFR 402.16, the requirement
to reinitiate consultations for new species listings or critical
habitat designation does not apply to certain agency actions (e.g.,
land management plans issued by the Bureau of Land Management in
certain circumstances).
Destruction or Adverse Modification of Critical Habitat
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat for the
conservation of the listed species. As discussed above, the role of
critical habitat is to support physical or biological features
essential to the conservation of a listed species and provide for the
conservation of the species.
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 violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that we may, during a consultation under section 7(a)(2)
of the Act, consider likely to destroy or adversely modify critical
habitat include, but are not limited to:
(1) Actions that would:
(a) Alter the geomorphology of the salamander mussel's stream and
river habitats;
(b) Significantly alter the existing flow regime where this species
occurs;
(c) Significantly alter water chemistry or water quality; or
(d) Significantly alter stream bed material composition and quality
by increasing sediment deposition or filamentous algal growth; and
(2) Major habitat alterations that impact mudpuppy persistence.
Such activities could include, but are not limited to:
(1) Instream excavation or dredging, impoundment, channelization,
clearing riparian vegetation, and discharge of fill materials;
(2) Impoundment, urban development, water diversion, water
withdrawal, water draw-down, and hydropower generation;
(3) 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); and
(4) Construction projects, sand and gravel mining, oil and gas
development, coal mining, livestock grazing, timber harvest, and other
watershed and floodplain disturbances that release sediments or
nutrients into the water.
These activities could eliminate or reduce the habitat quantity or
quality necessary for growth and reproduction of the salamander mussel
or its mudpuppy host.
Exemptions
Application of Section 4(a)(3) of the Act
Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i))
provides that the Secretary shall not designate as critical habitat any
lands or other geographical areas owned or controlled by the Department
of Defense (DoD), or designated for its use, that are subject to an
integrated natural resources management plan (INRMP) prepared under
section 101 of the Sikes Act Improvement Act of 1997 (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. No DoD lands with a completed INRMP are within the
proposed critical habitat designation.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary shall
designate and 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 designated critical habitat based on
economic impacts, impacts on national security, or any other relevant
impacts. Exclusion decisions are governed by the regulations at 50 CFR
424.19 and the Policy Regarding Implementation of Section 4(b)(2) of
the Endangered Species Act (2016 Policy; 81 FR 7226, February 11,
2016), both of which were developed jointly with the National Marine
Fisheries Service (NMFS). We also refer to a 2008 Department of the
Interior Solicitor's opinion entitled, ``The Secretary's Authority to
Exclude Areas from a Critical Habitat Designation under Section 4(b)(2)
of the Endangered Species Act'' (M-37016).
In considering whether to exclude a particular area from the
designation, we identify the benefits of including the area in the
designation, identify the benefits of excluding the area from the
designation, and evaluate whether the benefits of exclusion outweigh
the benefits of inclusion. If the analysis indicates that the benefits
of exclusion outweigh the benefits of inclusion, the Secretary may
exercise discretion to exclude the area only if such exclusion would
not result in the extinction of the species. In making the
determination to exclude a particular area, the statute on its face, as
well as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor. In our final rules, we explain any decision to exclude
areas, as well as decisions not to exclude, to make clear the rational
basis for our decision. We describe below the process that we use for
taking into consideration each category of impacts and any initial
analyses of the relevant impacts.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in
[[Page 57250]]
the area of the critical habitat. We then must evaluate the impacts
that a specific critical habitat designation may have on restricting or
modifying specific land uses or activities for the benefit of the
species and its habitat within the areas proposed. We then identify
which conservation efforts may be the result of the species being
listed under the Act versus those attributed solely to the designation
of critical habitat for this particular species. The probable economic
impact of a proposed critical habitat designation is analyzed by
comparing scenarios both ``with critical habitat'' and ``without
critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). Therefore, the baseline represents the costs of all
efforts attributable to the listing of the species under the Act (i.e.,
conservation of the species and its habitat incurred regardless of
whether critical habitat is designated). The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts would not be expected
without the designation of critical habitat for the species. In other
words, the incremental costs are those attributable solely to the
designation of critical habitat, above and beyond the baseline costs.
These are the costs we use when evaluating the benefits of inclusion
and exclusion of particular areas from the final designation of
critical habitat should we choose to conduct a discretionary 4(b)(2)
exclusion analysis.
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to
assess the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the E.O. regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly affected entities, where practicable and reasonable. If
sufficient data are available, we assess to the extent practicable the
probable impacts to both directly and indirectly affected entities.
Section 3(f) of E.O. 12866 identifies four criteria when a regulation
is considered a ``significant regulatory action'' and requires
additional analysis, review, and approval if met. The criterion
relevant here is whether the designation of critical habitat may have
an economic effect of $200 million or more in any given year (section
3(f)(1)). Therefore, our consideration of economic impacts uses a
screening analysis to assess whether a designation of critical habitat
for the salamander mussel is likely to exceed the economically
significant threshold.
For this particular designation, we developed an incremental
effects memorandum (IEM) considering the probable incremental economic
impacts that may result from this proposed designation of critical
habitat. The information contained in our IEM was then used to develop
a screening analysis of the probable effects of the designation of
critical habitat for the salamander mussel (Industrial Economics, Inc.
2022, entire). We began by conducting a screening analysis of the
proposed designation of critical habitat in order to focus our analysis
on the key factors that are likely to result in incremental economic
impacts. The purpose of the screening analysis is to filter out
particular geographical areas of critical habitat that are already
subject to such protections and are, therefore, unlikely to incur
incremental economic impacts. In particular, the screening analysis
considers baseline costs (i.e., absent critical habitat designation)
and includes any probable incremental economic impacts where land and
water use may already be subject to conservation plans, land management
plans, best management practices, or regulations that protect the
habitat area as a result of the Federal listing status of the species.
Ultimately, the screening analysis allows us to focus our analysis on
evaluating the specific areas or sectors that may incur probable
incremental economic impacts as a result of the designation. The
presence of the listed species in occupied areas of critical habitat
means that any destruction or adverse modification of those areas is
also likely to jeopardize the continued existence of the species.
Therefore, designating occupied areas as critical habitat typically
causes little if any incremental impacts above and beyond the impacts
of listing the species. As a result, we generally focus the screening
analysis on areas of unoccupied critical habitat (unoccupied units or
unoccupied areas within occupied units). Overall, the screening
analysis assesses whether designation of critical habitat is likely to
result in any additional management or conservation efforts that may
incur incremental economic impacts. This screening analysis combined
with the information contained in our IEM constitute what we consider
to be our draft economic analysis (DEA) of the proposed critical
habitat designation for the salamander mussel; our DEA is summarized in
the narrative below.
As part of our screening analysis, we considered the types of
economic activities that are likely to occur within the areas likely
affected by the critical habitat designation. In our evaluation of the
probable incremental economic impacts that may result from the proposed
designation of critical habitat for the salamander mussel, first we
identified, in the IEM dated September 27, 2022, probable incremental
economic impacts associated with the following categories of
activities: (1) instream excavation or dredging; (2) impoundment; (3)
channelization; (4) sand and gravel mining; (5) clearing riparian
vegetation; (6) discharge of fill materials; (7) urban development; (8)
water diversion; (9) water withdrawal; (10) water draw-down; (11)
hydropower generation; (12) hydropower discharges; (13) release of
chemicals, biological pollutants, or heated effluents into surface
water or connected groundwater at a point source or by dispersed
release (nonpoint source); (14) construction projects; (15) oil and gas
development; (16) coal mining; (17) livestock grazing; (18) timber
harvest; and (19) other watershed and floodplain disturbances that
release sediments or nutrients into the water.
We considered each industry or category individually. Additionally,
we considered whether their activities have any Federal involvement.
Critical habitat designation generally will not affect activities that
do not have any Federal involvement; under the Act, designation of
critical habitat affects only activities conducted, funded, permitted,
or authorized by Federal agencies. If we list the species, in areas
where the salamander mussel is present, Federal agencies would be
required to consult with the Service under section 7 of the Act on
activities they authorize, fund, or carry out that may affect the
species. If, when we list the species, we also finalize this proposed
critical habitat designation, Federal agencies would be required to
consider the effects of their actions on the designated habitat, and if
the Federal action may affect critical habitat, our consultations would
include an evaluation of measures to avoid the destruction or adverse
modification of critical habitat.
In our IEM, we attempted to clarify the distinction between the
effects that would result from the species being listed and those
attributable to the critical habitat designation (i.e.,
[[Page 57251]]
difference between the jeopardy and adverse modification standards) for
the salamander mussel's critical habitat. Because the designation of
critical habitat for the salamander mussel is being proposed
concurrently with the listing, it has been our experience that it is
more difficult to discern which conservation efforts are attributable
to the species being listed and those which will result solely from the
designation of critical habitat. However, the following specific
circumstances in this case help to inform our evaluation: (1) The
essential physical or biological features identified for critical
habitat are the same features essential for the life requisites of the
species, and (2) any actions that would likely adversely affect the
essential physical or biological features of occupied critical habitat
are also likely to adversely affect the species itself. The IEM
outlines our rationale concerning this limited distinction between
baseline conservation efforts and incremental impacts of the
designation of critical habitat for this species. This evaluation of
the incremental effects has been used as the basis to evaluate the
probable incremental economic impacts of this proposed designation of
critical habitat.
The proposed critical habitat designation for the salamander mussel
includes 37 units, totaling approximately 2,012 river miles (3,238 km),
all of which are occupied by the species. Ownership of riparian lands
adjacent to the proposed units includes 1,702.04 miles (2,739.17 km;
84.61 percent) in private ownership, 298.97 miles (481.14 km; 14.86
percent) in public (Federal, State, or local) ownership, and 10.60
miles (17.06 km; 0.53 percent) in Tribal ownership.
Total incremental costs of critical habitat designation for the
salamander mussel are not expected to exceed $120,000 (2022 dollars)
per year. The costs are reflective of: (1) All proposed units are
considered occupied by the salamander mussel, (2) all projects with a
Federal nexus would be subject to section 7 consultation regardless of
the designation of critical habitat due to the presence of the listed
species, (3) critical habitat designation is not likely to change the
Service's recommendations for project modifications as part of future
consultations considering the salamander mussel, and (4) the salamander
mussel receives additional baseline protection from co-occurring listed
species and a species with overlapping critical habitat and similar
resource needs. Because consultation would be required as a result of
the listing of the salamander mussel and is already required in some of
these areas as a result of the presence of other listed species and
critical habitats, the economic costs of the critical habitat
designation would likely be primarily limited to additional
administrative efforts to consider adverse modification for this
species in section 7 consultations.
Based on the consultation history regarding historical projects and
the forecast of future activity in the proposed critical habitat units,
the number of future consultations, including technical assistance
efforts, is likely to be no more than 94 per year across all 37 units.
This figure accounts for potential increases in highway and
infrastructure projects. The geographic distribution of future section
7 consultations and associated costs are likely to be most heavily
concentrated in West Virginia, Pennsylvania, and Kentucky. However,
even assuming consultation activity increases substantially,
incremental administrative costs are still likely to remain well under
$200 million per year.
We are soliciting data and comments from the public on the DEA
discussed above. During the development of a final designation, we will
consider the information presented in the DEA and any additional
information on economic impacts we receive during the public comment
period to determine whether any specific areas should be excluded from
the final critical habitat designation under the authority of section
4(b)(2) of the Act, our implementing regulations at 50 CFR 424.19, and
the 2016 Policy. We may exclude an area from critical habitat if we
determine that the benefits of excluding the area outweigh the benefits
of including the area, provided the exclusion will not result in the
extinction of this species.
Consideration of National Security Impacts
Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or
areas that pose potential national-security concerns (e.g., a DoD
installation that is in the process of revising its INRMP for a newly
listed species or a species previously not covered). If a particular
area is not covered under section 4(a)(3)(B)(i), then national-security
or homeland-security concerns are not a factor in the process of
determining what areas meet the definition of ``critical habitat.''
However, the Service must still consider impacts on national security,
including homeland security, on those lands or areas not covered by
section 4(a)(3)(B)(i) because section 4(b)(2) requires the Service to
consider those impacts whenever it designates critical habitat.
Accordingly, if DoD, Department of Homeland Security (DHS), or another
Federal agency has requested exclusion based on an assertion of
national-security or homeland-security concerns, or we have otherwise
identified national-security or homeland-security impacts from
designating particular areas as critical habitat, we generally have
reason to consider excluding those areas.
However, we cannot automatically exclude requested areas. When DoD,
DHS, or another Federal agency requests exclusion from critical habitat
on the basis of national-security or homeland-security impacts, we must
conduct an exclusion analysis if the Federal requester provides
information, including a reasonably specific justification of an
incremental impact on national security that would result from the
designation of that specific area as critical habitat. That
justification could include demonstration of probable impacts, such as
impacts to ongoing border-security patrols and surveillance activities,
or a delay in training or facility construction, as a result of
compliance with section 7(a)(2) of the Act. If the agency requesting
the exclusion does not provide us with a reasonably specific
justification, we will contact the agency to recommend that it provide
a specific justification or clarification of its concerns relative to
the probable incremental impact that could result from the designation.
If we conduct an exclusion analysis because the agency provides a
reasonably specific justification or because we decide to exercise the
discretion to conduct an exclusion analysis, we will defer to the
expert judgment of DoD, DHS, or another Federal agency as to: (1)
Whether activities on its lands or waters, or its activities on other
lands or waters, have national-security or homeland-security
implications; (2) the importance of those implications; and (3) the
degree to which the cited implications would be adversely affected in
the absence of an exclusion. In that circumstance, in conducting a
discretionary section 4(b)(2) exclusion analysis, we will give great
weight to national-security and homeland-security concerns in analyzing
the benefits of exclusion.
In preparing this proposal, we have determined that the lands
within the proposed designation of critical habitat for the salamander
mussel are not owned or managed by the DoD or DHS, and, therefore, we
anticipate no impact on national security or homeland security.
[[Page 57252]]
Consideration of 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 discussed above. To identify other relevant impacts that may
affect the exclusion analysis, we consider a number of factors,
including whether there are permitted conservation plans covering the
species in the area--such as HCPs, safe harbor agreements (SHAs), or
candidate conservation agreements with assurances (CCAAs)--or whether
there are non-permitted conservation agreements and partnerships that
may be impaired by designation of, or exclusion from, critical habitat.
In addition, we look at whether Tribal conservation plans or
partnerships, Tribal resources, or government-to-government
relationships of the United States with Tribal entities may be affected
by the designation. We also consider any State, local, social, or other
impacts that might occur because of the designation.
When analyzing other relevant impacts of including a particular
area in a designation of critical habitat, we weigh those impacts
relative to the conservation value of the particular area. To determine
the conservation value of designating a particular area, we consider a
number of factors, including, but not limited to, the additional
regulatory benefits that the area would receive due to the protection
from destruction or adverse modification as a result of actions with a
Federal nexus, the educational benefits of mapping essential habitat
for recovery of the listed species, and any benefits that may result
from a designation due to State or Federal laws that may apply to
critical habitat.
In the case of the salamander mussel, the benefits of critical
habitat include public awareness of the presence of the salamander
mussel and the importance of habitat protection, and, where a Federal
nexus exists, increased habitat protection for the salamander mussel
due to protection from destruction or adverse modification of critical
habitat. Continued implementation of an ongoing management plan that
provides conservation equal to or more than the protections that result
from a critical habitat designation would reduce those benefits of
including that specific area in the critical habitat designation.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction of the species. If exclusion of an area from critical
habitat will result in extinction, we will not exclude it from the
designation.
Tribal Lands
Several Executive Orders, Secretary's Orders, and policies concern
working with Tribes. These guidance documents generally confirm our
trust responsibilities to Tribes, recognize that Tribes have sovereign
authority to control Tribal lands, emphasize the importance of
developing partnerships with Tribal governments, and direct the Service
to consult with Tribes on a government-to-government basis.
A joint Secretary's Order that applies to both the Service and the
National Marine Fisheries Service (NMFS)--Secretary's Order 3206,
American Indian Tribal Rights, Federal-Tribal Trust Responsibilities,
and the Endangered Species Act (June 5, 1997) (S.O. 3206)--is the most
comprehensive of the various guidance documents related to Tribal
relationships and Act implementation, and it provides the most detail
directly relevant to the designation of critical habitat. In addition
to the general direction discussed above, the appendix to S.O. 3206
explicitly recognizes the right of Tribes to participate fully in any
listing process that may affect Tribal rights or Tribal trust
resources; this includes the designation of critical habitat. Section
3(B)(4) of the appendix requires the Service to consult with affected
Tribes ``when considering the designation of critical habitat in an
area that may impact tribal trust resources, tribally-owned fee lands,
or the exercise of tribal rights.'' That provision also instructs the
Service to avoid including Tribal lands within a critical habitat
designation unless the area is essential to conserve a listed species,
and it requires the Service to ``evaluate and document the extent to
which the conservation needs of the listed species can be achieved by
limiting the designation to other lands.''
Our implementing regulations at 50 CFR 424.19 and the 2016 Policy
are consistent with S.O. 3206. When we undertake a discretionary
exclusion analysis under section 4(b)(2) of the Act, in accordance with
S.O. 3206, we consult with any Tribe whose Tribal trust resources,
Tribally-owned fee lands, or Tribal rights may be affected by including
any particular areas in the designation. We evaluate the extent to
which the conservation needs of the species can be achieved by limiting
the designation to other areas and give great weight to Tribal concerns
in analyzing the benefits of exclusion.
However, S.O. 3206 does not override the Act's statutory
requirement of designation of critical habitat. As stated above, we
must consult with any Tribe when a designation of critical habitat may
affect Tribal lands or resources. The Act requires us to identify areas
that meet the definition of ``critical habitat'' (i.e., areas occupied
at the time of listing that contain the essential physical or
biological features that may require special management considerations
or protection and unoccupied areas that are essential to the
conservation of a species), without regard to land ownership. While
S.O. 3206 provides important direction, it expressly states that it
does not modify the Secretary's statutory authority under the Act or
other statutes.
The proposed critical habitat designation includes the following
Tribal lands or resources:
Tonawanda Reservation
A portion of proposed Unit 16 (Tonawanda Creek) occurs within the
Tonawanda Reservation. The Tonawanda Seneca Nation has a conservation
department that was established in 1977 by the Seneca Nation of Indians
Council resolution. The department is responsible for the enforcement
of Seneca Nation of Indian laws, ordinances, and codes that address
sand and gravel mining; solid waste management; hunting and fishing;
and conservation activities.
Summary of Exclusions Considered Under 4(b)(2) of the Act
We have reason to consider excluding 10.6 miles (17.06 km) of
proposed Unit 16 (Tonawanda Creek) under section 4(b)(2) of the Act
from the final critical habitat designation for the salamander mussel,
based on other relevant impacts. We specifically solicit comments on
the inclusion or exclusion of this area. We also solicit comments on
whether there are potential economic, national security, or other
relevant impacts from designating any other particular areas as
critical habitat. As part of developing the final designation of
critical habitat, we will evaluate the information we receive regarding
potential impacts from designating the areas described above or any
other particular areas, and we may conduct a discretionary exclusion
analysis to determine whether to exclude those areas under the
authority of section 4(b)(2) of the Act and our implementing
regulations at 50 CFR 424.19. If we receive a request for exclusion of
a particular area and after
[[Page 57253]]
evaluation of supporting information we do not exclude, we will fully
describe our decision in the final rule for this action.
Required Determinations
Clarity of the Rule
We are required by E.O.s 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:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) 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 ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you 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.
Regulatory Planning and Review--Executive Orders 12866, 13563, and
14094
Executive Order 14094 reaffirms the principles of E.O. 12866 and
E.O. 13563 and states that regulatory analysis should facilitate agency
efforts to develop regulations that serve the public interest, advance
statutory objectives, and are consistent with E.O. 12866, E.O. 13563,
and the Presidential Memorandum of January 20, 2021 (Modernizing
Regulatory Review). Regulatory analysis, as practicable and
appropriate, shall recognize distributive impacts and equity, to the
extent permitted by law. E.O. 13563 emphasizes further that regulations
must be based on the best available science and that the rulemaking
process must allow for public participation and an open exchange of
ideas. We have developed this final rule in a manner consistent with
these requirements.
E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides
that the Office of Information and Regulatory Affairs (OIRA) in the
Office of Management and Budget (OMB) will review all significant
rules. OIRA has determined that this rule is not significant.
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 of
1996 (SBREFA; 5 U.S.C. 801 et seq.), 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
(i.e., 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
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, 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; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns 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 considered
the types of activities that might trigger regulatory impacts under
this designation as well as 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.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirement (avoiding destruction and adverse
modification) imposed by critical habitat designation. Consequently, it
is our position that only Federal action agencies would be directly
regulated if we adopt the proposed critical habitat designation. The
RFA does not require evaluation of the potential impacts to entities
not directly regulated. Moreover, Federal agencies are not small
entities. Therefore, because no small entities would be directly
regulated by this rulemaking, the Service certifies that, if made final
as proposed, the proposed critical habitat designation will not have a
significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if made final, the proposed
critical habitat designation would not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare statements of energy effects when undertaking
certain actions. Facilities that provide energy supply, distribution,
or use occur within some units of the proposed critical habitat
designations (for example, dams, pipelines) and may potentially be
affected. We determined that consultations, technical assistance, and
requests for species lists may be necessary in some instances. In our
economic analysis, we did not find that this proposed critical habitat
designation would significantly affect energy supplies, distribution,
or use because all projects with a Federal nexus would be subject to
section 7 consultation regardless of the designation of critical
habitat due to the presence of the listed species and the critical
habitat designation is not likely
[[Page 57254]]
to change the Service's recommendations for project modifications as
part of future consultations considering the salamander mussel.
Therefore, this action is not a significant energy action, and no
statement of energy effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following finding:
(1) This proposed rule would 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, or
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; Aid to Families
with Dependent Children 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 are not likely to 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 critical habitat shift the costs of the large entitlement
programs listed above onto State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments because it will not produce a Federal
mandate of $200 million or greater in any year, that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The designation of critical habitat imposes no obligations on
State or local governments. Therefore, a small government agency plan
is not required.
Takings--Executive Order 12630
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating critical
habitat for salamander mussel in a takings implications assessment. The
Act does not authorize the Service to regulate private actions on
private lands or confiscate private property as a result of critical
habitat designation. Designation of critical habitat does not affect
land ownership, or establish any closures, or restrictions on use of or
access to the designated areas. Furthermore, the designation of
critical habitat does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that would destroy or adversely modify critical
habitat. A takings implications assessment has been completed for the
proposed designation of critical habitat for the salamander mussel, and
it concludes that, if adopted, this designation of critical habitat
does not pose significant takings implications for lands within or
affected by the designation.
Federalism--Executive Order 13132
In accordance with E.O. 13132 (Federalism), this proposed rule does
not have significant Federalism effects. A federalism summary impact
statement 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. From a federalism
perspective, the designation of critical habitat directly affects only
the responsibilities of Federal agencies. The Act imposes no other
duties with respect to critical habitat, either for States and local
governments, or for anyone else. As a result, the proposed rule does
not have substantial direct effects either on the States, or on the
relationship between the Federal government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The proposed designation may have some benefit to these
governments because the areas that contain the features essential to
the conservation of the species are more clearly defined, and the
physical or biological features of the habitat necessary for the
conservation of the species are specifically identified. This
information does not alter where and what federally sponsored
activities may occur. However, it may assist State and local
governments in long-range planning because they no longer have to wait
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) of the Act 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--Executive Order 12988
In accordance with E.O. 12988 (Civil Justice Reform), the Office of
the Solicitor has determined that the rule would not unduly burden the
judicial system and that it meets the requirements of sections 3(a) and
3(b)(2) of the Order. We have proposed designating critical habitat in
accordance with the provisions of the
[[Page 57255]]
Act. To assist the public in understanding the habitat needs of the
species, this proposed rule identifies the physical or biological
features essential to the conservation of the species. The proposed
areas of critical habitat are presented on maps, and the proposed rule
provides several options for the interested public to obtain more
detailed location information, if desired.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget (OMB) under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not
required. We may not conduct or sponsor and you are not required to
respond to a collection of information unless it displays a currently
valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
Regulations adopted pursuant to section 4(a) of the Act are exempt
from the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et
seq.) and do not require an environmental analysis under NEPA. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This includes
listing, delisting, and reclassification rules, as well as critical
habitat designations. In a line of cases starting with Douglas County
v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), the courts have upheld this
position.
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), E.O. 13175 (Consultation and Coordination
with Indian Tribal Governments), and the Department of the Interior's
manual at 512 DM 2, we readily acknowledge our responsibility to
communicate meaningfully with federally recognized Tribes on a
government-to-government basis. In accordance with Secretary's 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 reached out to the Tonawanda Seneca Nation regarding
the portion of proposed critical habitat Unit 16 (Tonawanda Creek) that
flows through the Tonawanda Reservation, and we will continue to work
with Tribal entities during the development of a final rule for the
designation of critical habitat for the salamander mussel.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov and upon request from
the Michigan Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Authors
The primary authors of this proposed rule are the staff members of
the Fish and Wildlife Service's Species Assessment Team and the
Michigan Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Plants,
Reporting and recordkeeping requirements, Transportation, Wildlife.
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--ENDANGERED AND THREATENED WILDLIFE AND PLANTS
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245,
unless otherwise noted.
0
2. In Sec. 17.11, amend paragraph (h) by adding an entry for ``Mussel,
salamander'' to the List of Endangered and Threatened Wildlife in
alphabetical order under CLAMS to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
----------------------------------------------------------------------------------------------------------------
Clams
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Mussel, salamander.............. Simpsonaias ambigua Wherever found..... E [Federal Register
citation when
published as a final
rule]; 50 CFR
17.95(f).\CH\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.95, amend paragraph (f) by adding an entry for
``Salamander Mussel (Simpsonaias ambigua)'' following the entry for
``Longsolid (Fusconaia subrotunda)'', to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(f) Clams and Snails.
* * * * *
Salamander Mussel (Simpsonaias ambigua)
(1) Critical habitat units are depicted for Benton, Carroll,
Clinton, Daviess, Dearborn, DeKalb, Dubois, Fulton, Jefferson,
Jennings, Kosciusko, Lawrence, Marshall, Martin, Ohio, Pike, Pulaski,
Ripley, Starke, Steuben, Tippecanoe, Warren, and White Counties,
Indiana; Bath, Bracken, Campbell, Fleming, Hardin, Harrison, Henry,
Kenton, LaRue, Lewis, Marion, Morgan, Nelson, Nicholas, Pendleton,
Robertson, Rowan, and Washington Counties, Kentucky; Oakland and St.
Clair Counties, Michigan; Chisago and Washington Counties, Minnesota;
Erie, Genesee, Niagara, and Wyoming Counties, New York; Ashtabula,
Hancock, Putnam, and Williams Counties, Ohio; Armstrong, Crawford,
[[Page 57256]]
Erie, Mercer, and Venango Counties, Pennsylvania; Cheatham, Dickson,
Hickman, Humphreys, Maury, and Perry Counties, Tennessee; Doddridge,
Marshall, Pleasants, Ritchie, Tyler, Wetzel, Wirt, and Wood Counties,
West Virginia; and Adams, Buffalo, Columbia, Crawford, Dane, Dunn, Eau
Claire, Grant, Iowa, Jackson, Juneau, La Crosse, Lincoln, Marathon,
Monroe, Oconto, Pepin, Pierce, Polk, Richland, Sauk, Shawano, St.
Croix, and Trempealeau Counties, Wisconsin, on the maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of the salamander mussel consist of the
following components:
(i) Adequate flows, or a hydrologic flow regime (magnitude, timing,
frequency, duration, rate of change, and overall seasonality of
discharge over time), necessary to maintain benthic habitats where the
salamander mussel and its host, the mudpuppy, are found and to maintain
stream connectivity.
(ii) Suitable substrates and connected instream habitats,
characterized by geomorphologically stable stream channels and banks
(i.e., channels that maintain lateral dimensions, longitudinal
profiles, and sinuosity patterns over time without an aggrading or
degrading bed elevation) with habitats that support the salamander
mussel and mudpuppy (e.g., large rock shelters, woody debris, and
bedrock crevices within stable zones of swift current with low amounts
of fine sediment silt).
(iii) Water and sediment quality necessary to sustain natural
physiological processes for normal behavior, growth, and viability of
all life stages, including (but not limited to) dissolved oxygen
(generally above 2 to 3 parts per million (ppm)), salinity (generally
below 2 to 4 ppm), and temperature (generally below 86 [deg]F) (30
[deg]C)). Additionally, concentrations of contaminants, including (but
not limited to) ammonia, nitrate, copper, and chloride, are below acute
toxicity levels for mussels.
(iv) The presence and abundance of the mudpuppy host.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of final rule.
(4) Data layers defining map units were created using the 1984
World Geodetic System ellipsoid, and 1983 North American datum, and
geographic coordinate system. The National Hydrography Dataset was used
to create the critical habitat units. The maps in this entry, as
modified by any accompanying regulatory text, establish the boundaries
of the critical habitat designation. The coordinates or plot points or
both on which each map is based are available to the public at the
Service's internet site at https://www.fws.gov/species/salamander-mussel-simpsonaias-ambigua, at https://www.regulations.gov at Docket
No. FWS-R3-ES-2023-0058, and at the field office responsible for this
designation. You may obtain field office location information by
contacting one of the Service regional offices, the addresses of which
are listed at 50 CFR 2.2.
(5) Index map follows:
Figure 1 to Salamander Mussel (Simpsonaias ambigua) paragraph (5)
BILLING CODE 4333-15-P
[GRAPHIC] [TIFF OMITTED] TP22AU23.016
(6) Unit 1: St. Croix River; Polk, St. Croix, and Pierce Counties,
Wisconsin, and Chisago and Washington Counties, Minnesota.
(i) Unit 1 consists of 52.93 miles (85.19 kilometers (km)) of St.
Croix
[[Page 57257]]
River from the base of the dam at St. Croix Falls (Polk County,
Wisconsin) and Taylors Falls (Chisago County, Minnesota) downstream to
the confluences with the Mississippi River at Prescott (Pierce County,
Wisconsin) and Point Douglas (Washington County, Minnesota). The unit
includes the river channel up to the ordinary high water mark.
Approximately 28.85 miles (46.43 km) of the riparian lands adjacent to
this unit are in public ownership, and 24.08 miles (38.76 km) are in
private ownership. Of the lands in public ownership:
(A) Approximately 12.63 miles (20.32 km) are Federal lands
associated with the National Park Service's (NPS) Lower St. Croix
National Scenic Riverway;
(B) Approximately 4.25 miles (6.84 km) are Federal lands associated
with the NPS's Lower St. Croix National Scenic Riverway on one side of
the bank and State lands associated with the Wisconsin Department of
Natural Resources' (WDNR) St. Croix Islands Wildlife Area on the other
side;
(C) Approximately 5.0 miles (8.04 km) are Federal lands associated
with the NPS's Lower St. Croix National Scenic Riverway on one side of
the bank and State lands associated with the Minnesota Department of
Natural Resources' William O'Brien State Park on the other side;
(D) Approximately 5.2 miles (8.37 km) are State lands associated
with the WDNR's Kinnickinnic State Park and Interstate Park on one side
of the bank and State lands associated with the Minnesota Department of
Natural Resources' Interstate Park on the other side; and
(E) Approximately 1.78 miles (2.86 km) are State lands associated
with the Minnesota Department of Natural Resources' Afton State Park.
(ii) Map of Unit 1 follows:
Figure 2 to Salamander Mussel (Simpsonaias ambigua) paragraph (6)(ii)
[[Page 57258]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.017
(7) Unit 2: Chippewa River; Buffalo, Dunn, Eau Claire, and Pepin
Counties, Wisconsin.
(i) Unit 2 consists of 59.24 miles (95.33 km) of Chippewa River
from the mouth of the Eau Claire River at Eau Claire (Eau Claire
County, Wisconsin) downstream to the confluence with the Mississippi
River south of Trevino (Buffalo and Pepin Counties, Wisconsin). This
unit includes the river channel up to the ordinary high water mark.
Approximately 34.04 miles (54.77 km) of the riparian lands adjacent to
this unit are in public ownership, and 25.2 miles (40.56 km) are in
private ownership. Of the lands in public ownership:
(A) Approximately 1.3 miles (2.09 km) are lands associated with the
city of Eau Claire's Owen Park and Jefferson County's Public Hunting
Ground;
(B) Approximately 4.2 miles (6.76 km) are Federal lands associated
with the Bureau of Land Management's (BLM) stewardship of islands
within the river channel;
(C) Approximately 1.6 miles (2.57 km) are Federal lands associated
with the Service's Upper Mississippi River National Wildlife and Fish
Refuge on one bank and State lands associated with the WDNR's Tiffany
Wildlife Area on the opposite bank; and
(D) Approximately 27 miles (43.45 km) are State lands associated
with the WDNR's Lower Chippewa River State Natural Area, Dunnville
Wildlife Area, and Nine Mile Island State Natural Area.
(ii) Map of Unit 2 follows:
[[Page 57259]]
Figure 3 to Salamander Mussel (Simpsonaias ambigua) paragraph (7)(ii)
[GRAPHIC] [TIFF OMITTED] TP22AU23.018
(8) Unit 3: Eau Claire River; Eau Claire County, Wisconsin.
(i) Unit 3 consists of 7.40 miles (11.91 km) of Eau Claire River
from the confluence of the North Fork and South Fork Eau Claire River
(Eau Claire County, Wisconsin) downstream to Lake Eau Claire (Eau
Claire County, Wisconsin). This unit includes the river channel up to
the ordinary high water mark. Approximately 4.23 miles (6.81 km) of the
riparian lands adjacent to this unit are in public ownership, and 3.17
miles (5.1 km) are in private ownership. The land in public ownership
in this unit is associated with the Eau Claire County Forest.
(ii) Map of Unit 3 follows:
Figure 4 to Salamander Mussel (Simpsonaias ambigua) paragraph (8)(ii)
[[Page 57260]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.019
(9) Unit 4: Black River; Jackson, La Crosse, Monroe, and
Trempealeau Counties, Wisconsin.
(i) Unit 4 consists of 75.38 miles (121.31 km) of Black River from
the bottom of Lake Arbutus dam southeast of Hatfield (Jackson County,
Wisconsin) downstream to the confluence with the Mississippi River west
of Brice Prairie (La Crosse County, Wisconsin). This unit includes the
river channel up to the ordinary high water mark. Approximately 35.71
miles (57.47 km) of the riparian lands adjacent to this unit are in
public ownership, and 39.67 miles (63.84 km) are in private ownership.
Of the lands in public ownership:
(A) Approximately 0.15 mile (0.24 km) is land associated with
Jackson County Forest;
(B) Approximately 0.86 mile (1.38 km) is Federal land associated
with the BLM's stewardship of islands within the river channel;
(C) Approximately 6.6 miles (10.62 km) are Federal lands associated
with the Service's Upper Mississippi River National Wildlife and Fish
Refuge on one bank and State lands associated with the WDNR's Van Loon
Wildlife Area on the opposite bank; and
(D) Approximately 28 miles (45.06 km) are State lands associated
with the WDNR's North Bend Bottoms Wildlife Area, Statewide Habitat
Areas, Half Moon Lake Fishery Area, and Black River State Forest.
(ii) Map of Unit 4 follows:
Figure 5 to Salamander Mussel (Simpsonaias ambigua) paragraph (9)(ii)
[[Page 57261]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.020
(10) Unit 5: Wisconsin River North; Lincoln and Marathon Counties,
Wisconsin.
(i) Unit 5 consists of 21.19 miles (34.1 km) of Wisconsin River
from the base of the dam at Merrill (Marathon County, Wisconsin)
downstream to the top of the dam at Wausau (Lincoln County, Wisconsin).
The unit includes the river channel up to the ordinary high water mark.
Approximately 4.11 miles (6.62 km) of the riparian lands adjacent to
this unit are in public ownership, and 17.08 miles (27.48 km) are in
private ownership. Of the lands in public ownership:
(A) Approximately 3.78 miles (6.08 km) are city or county lands
associated with the city of Merrill's Riverside Park, Marathon County's
Marathon County Forest, city of Wausau's Gilbert Park, Scholfield Park,
Baker Stewart Island Park, Big Bull Falls Park, White Water Park, and
Woodson Park; and
(B) Approximately 0.34 mile (0.55 km) is State land associated with
the WDNR's State-Owned Islands.
(ii) Map of Unit 5 follows:
Figure 6 to Salamander Mussel (Simpsonaias ambigua) paragraph (10)(ii)
[[Page 57262]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.021
(11) Unit 6: North Branch Pensaukee River; Shawano and Oconto
Counties, Wisconsin.
(i) Unit 6 consists of 19.93 miles (32.08 km) of North Branch
Pensaukee River from the Pensaukee Lakes at Cecil (Shawano County,
Wisconsin) downstream to the confluence with the Pensaukee River at
Abrams (Oconto County, Wisconsin). The unit includes the river channel
up to the ordinary high water mark. Approximately 1.24 miles (2.0 km)
of the riparian lands adjacent to this unit are in public ownership,
and 18.69 miles (30.08 km) are in private ownership. Of the lands in
public ownership:
(A) Approximately 1.22 miles (1.96 km) are county lands associated
with the Oconto County Forest; and
(B) Approximately 0.02 mile (0.03 km) is State land associated with
the WDNR's Wiouwash State Trail.
(ii) Map of Unit 6 follows:
Figure 7 to Salamander Mussel (Simpsonaias ambigua) paragraph (11)(ii)
[[Page 57263]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.022
(12) Unit 7: Lemonweir River; Juneau County, Wisconsin.
(i) Unit 7 consists of 37.5 miles (60.36 km) of Lemonweir River
from approximately 0.25-mile north of Kennedy County Park north of New
Lisbon (Juneau County, Wisconsin) downstream to the confluence with the
Wisconsin River northeast of Lyndon Station (Juneau County, Wisconsin).
The unit includes the river channel up to the ordinary high water mark.
Approximately 2.11 miles (3.4 km) of the riparian lands adjacent to
this unit are in public ownership, and 35.39 miles (56.96 km) are in
private ownership. The lands in public ownership are city or county
lands associated with the Juneau County Forest owned by Juneau County,
Riverside Park owned by the city of Mauston, and an unnamed natural
area owned by the county.
(ii) Map of Units 7 and 8 follows:
Figure 8 to Salamander Mussel (Simpsonaias ambigua) paragraph (12)(ii)
[[Page 57264]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.023
(13) Unit 8: Wisconsin River South; Iowa, Grant, Dane, Crawford,
Richland, Sauk, Columbia, Juneau, and Adams Counties, Wisconsin.
(i) Unit 8 consists of 152.88 miles (246.03 km) of Wisconsin River
from the confluence with the Lemonweir River south of White Creek
(Adams County, Wisconsin) downstream to the confluence with the
Mississippi River south of Prairie du Chien (Crawford County,
Wisconsin). The unit includes the river channel up to the ordinary high
water mark. Approximately 102.78 miles (165.40 km) of the riparian
lands adjacent to this unit are in public ownership, and 50.10 miles
(80.63 km) are in private ownership. Of the lands in public ownership:
(A) Approximately 0.09 mile (0.14 km) is city land associated with
the Village of Lake Delton's Newport Park;
(B) Approximately 9 miles (14.48 km) are Federal lands associated
with the BLM's land stewardship of islands within the river channel and
the Service's Upper Mississippi River National Wildlife and Fish
Refuge; and
(C) Approximately 93.7 miles (150.8 km) are State lands associated
with the WDNR's Pine Island Wildlife Area, Sauk Prairie Recreation
Area, and Lower Wisconsin State Riverway.
(ii) Map of Unit 8 is provided at paragraph (12)(ii) of this entry.
(14) Unit 9: Big Pine Creek; White, Benton, and Warren Counties,
Indiana.
(i) Unit 9 consists of 51.23 miles (82.44 km) of Big Pine Creek
from the headwaters of Big Pine Creek northeast of Round Grove (White
County, Indiana) downstream to the confluence with the Wabash River at
Attica (Fountain County, Indiana). The unit includes the river channel
up to the ordinary high water mark. Approximately 1.3 miles (2.09 km)
of the riparian lands adjacent to this unit are in public ownership,
and 49.93 miles (80.35 km) are in private ownership. The lands in
public ownership are State lands associated with the Indiana Department
of Natural Resources' (IDNR) Pine Creek Bottoms Gamebird Habitat Area.
(ii) Map of Unit 9 follows:
Figure 9 to Salamander Mussel (Simpsonaias ambigua) paragraph (14)(ii)
[[Page 57265]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.024
(15) Unit 10: Middle Fork Wildcat Creek; Carroll, Clinton, and
Tippecanoe Counties, Indiana.
(i) Unit 10 consists of 35.7 miles (57.46 km) of Middle Fork
Wildcat Creek from the headwaters of Middle Fork Wildcat Creek
northwest of Forest (Clinton County, Indiana) downstream to the
confluence with South Fork Wildcat Creek northwest of Monitor
(Tippecanoe County, Indiana). The unit includes the river channel up to
the ordinary high water mark. The riparian lands adjacent to this unit
are in private ownership.
(ii) Map of Unit 10 follows:
Figure 10 to Salamander Mussel (Simpsonaias ambigua) paragraph (15)(ii)
[[Page 57266]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.025
(16) Unit 11: Tippecanoe River; Marshall, Fulton, Pulaski, Starke,
Kosciusko, and White Counties, Indiana.
(i) Unit 11 consists of 124.26 miles (199.96 km) of Tippecanoe
River from below Oswego Lake at Oswego (Kosciusko County, Indiana)
downstream to the top of Lake Shaffer west of Sitka (White County,
Indiana). The unit includes the river channel up to the ordinary high
water mark. Approximately 7.43 miles (11.95 km) of the riparian lands
adjacent to this unit are in public ownership, and 116.83 miles (188.01
km) are in private ownership. The lands in public ownership are State
lands associated with the IDNR's Tippecanoe River State Park and
Menominee Public Fishing Area, Talma Public Access, and Old Tip Town
Public Access Site.
(ii) Map of Unit 11 follows:
Figure 11 to Salamander Mussel (Simpsonaias ambigua) paragraph (16)(ii)
[[Page 57267]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.026
(17) Unit 12: Fish Creek (IN); Williams County, Ohio, and DeKalb
and Steuben Counties, Indiana.
(i) Unit 12 consists of 37.36 miles (60.14 km) of Fish Creek from
the headwaters of Fish Creek at Billingstown (Williams County, Ohio)
downstream to the confluence with the St. Joseph River at Edgerton
(Williams County, Ohio). The unit includes the river channel up to the
ordinary high water mark. Approximately 1.02 miles (1.65 km) of the
riparian lands adjacent to this unit are in public ownership, and 36.34
miles (58.49 km) are in private ownership. The land in public ownership
is State land associated with the Ohio Department of Natural Resources'
(ODNR) Fish Creek Wildlife Area.
(ii) Map of Unit 12 follows:
Figure 12 to Salamander Mussel (Simpsonaias ambigua) paragraph (17)(ii)
[[Page 57268]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.027
(18) Unit 13: Blanchard River; Putnam and Hancock Counties, Ohio.
(i) Unit 13 consists of 25.02 miles (40.26 km) of Blanchard River
from the west side of Findley (Hancock County, Ohio) downstream to the
confluence with Riley Creek east of Ottawa (Putnam County, Ohio). The
unit includes the river channel up to the ordinary high water mark.
Approximately 0.94 mile (1.51 km) of the riparian lands adjacent to
this unit are in public ownership, and 24.08 miles (38.75 km) are in
private ownership. The land in public ownership is city or county land
associated with Hancock Park District's Indian Green Preserve.
(ii) Map of Unit 13 follows:
Figure 13 to Salamander Mussel (Simpsonaias ambigua) paragraph (18)(ii)
[[Page 57269]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.028
(19) Unit 14: Clinton River; Oakland County, Michigan.
(i) Unit 14 consists of 7.02 miles (11.29 km) of Clinton River from
downstream of the fish hatchery at Waterford Township (Oakland County,
Michigan) downstream to Cass Lake east of Four Towns (Oakland County,
Michigan). The unit includes the river channel up to the ordinary high
water mark. Approximately 0.28 mile (0.44 km) of the riparian lands
adjacent to this unit are in public ownership, and 6.74 miles (10.85
km) are in private ownership. The land in public ownership is city or
county land associated with Waterford Township's Clinton River Canoe
Site.
(ii) Map of Unit 14 follows:
Figure 14 to Salamander Mussel (Simpsonaias ambigua) paragraph (19)(ii)
[[Page 57270]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.029
(20) Unit 15: Mill Creek; St. Clair County, Michigan.
(i) Unit 15 consists of 23.65 miles (38.06 km) of Mill Creek from
the confluence with Thompson Drain northwest of Brockway Township (St.
Clair County, Michigan) downstream to the confluence with the Black
River at Ruby (St. Clair County, Michigan). The unit includes the river
channel up to the ordinary high water mark. Approximately 1.54 miles
(2.47 km) of the riparian lands adjacent to this unit are in public
ownership, and 22.11 miles (35.59 km) are in private ownership. The
lands in public ownership are State lands associated with the Michigan
Department of Natural Resources' (MDNR) Port Huron State Game Area.
(ii) Map of Unit 15 follows:
Figure 15 to Salamander Mussel (Simpsonaias ambigua) paragraph (20)(ii)
[[Page 57271]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.030
(21) Unit 16: Tonawanda Creek; Erie, Genesee, Niagara, and Wyoming
Counties, New York.
(i) Unit 16 consists of 113.21 miles (182.20 km) of Tonawanda Creek
from the headwaters of Tonawanda Creek at Java Center (Wyoming County,
New York) downstream to the confluence with the Niagara River at
Tonawanda (Erie County, New York). The unit includes the river channel
up to the ordinary high water mark. Approximately 8.70 miles (14.00 km)
of the riparian lands adjacent to this unit are in public ownership,
93.91 miles (151.14 km) are in private ownership, and 10.6 miles (17.06
km) are Tribal lands. The Tribal lands in this unit are associated with
the Tonawanda Reservation. Of the lands in public ownership:
(A) Approximately 2.08 miles (3.35 km) are city or county lands
associated with the town of Sheldon's Vincent Almeter Memorial Park
Lands, city of Attica's city lands, city of Batavia's local parks and
Kiwanis mini park, and Erie County's Erie County Lands; and
(B) Approximately 6.62 miles (10.65 km) are State lands associated
with New York's Erie Canal Waterway Trail.
(ii) Map of Unit 16 follows:
Figure 16 to Salamander Mussel (Simpsonaias ambigua) paragraph (21)(ii)
[[Page 57272]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.031
(22) Unit 17: Conneaut Creek; Ashtabula County, Ohio, and Erie and
Crawford Counties, Pennsylvania.
(i) Unit 17 consists of 62 miles (99.78 km) of Conneaut Creek from
the start of Conneaut Creek at Dicksonburg (Crawford County,
Pennsylvania) downstream to the mouth with Lake Erie at Conneaut
(Ashtabula County, Ohio). The unit includes the river channel up to the
ordinary high water mark. Approximately 2.31 miles (3.72 km) of the
riparian lands adjacent to this unit are in public ownership, and 59.69
miles (96.06 km) are in private ownership. Of the lands in public
ownership:
(A) Approximately 0.34 mile (0.55 km) is city land associated with
Conneaut Local Youth Organization Park; and
(B) Approximately 1.97 miles (3.17 km) are State lands associated
with the ODNR's Conneaut Creek Scenic River.
(ii) Map of Unit 17 follows:
Figure 17 to Salamander Mussel (Simpsonaias ambigua) paragraph (22)(ii)
[[Page 57273]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.032
(23) Unit 18: French Creek; Mercer, Erie, Crawford, and Venango
Counties, Pennsylvania.
(i) Unit 18 consists of 74.37 miles (119.69 km) of French Creek
from downstream of Union City Dam northwest of Union City (Erie County,
Pennsylvania) downstream to the confluence of the Allegheny River at
Franklin (Venango County, Pennsylvania). The unit includes the river
channel up to the ordinary high water mark. Approximately 5.83 miles
(9.39km) of the riparian lands adjacent to this unit are in public
ownership, and 68.54 miles (110.3 km) are in private ownership. Of the
lands in public ownership:
(A) Approximately 1.1 miles (1.77 km) are city or county lands
associated with the Borough of Cambridge Springs' Cambridge Springs
Recreation Area, the Township of Hayfield's Bertram Park, the Township
of Vernon's Vernon Township Ball Fields and Vernon Township Recreation
Association, and the city of Meadville's Kenneth A. Beers Jr.
Bicenntenial Park;
(B) Approximately 1.1 miles (1.77 km) are Federal lands associated
with the Service's Erie National Wildlife Refuge; and
(C) Approximately 3.6 miles (5.79 km) are State lands associated
with the Pennsylvania Game Commission's State Game Land #85 and State
Game Land #277 and the Pennsylvania Fish and Boat Commission's
Meadville Access and Shaw's Landing.
(ii) Map of Unit 18 follows:
Figure 18 to Salamander Mussel (Simpsonaias ambigua) paragraph (23)(ii)
[[Page 57274]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.033
(24) Unit 19: Allegheny River; Armstrong County, Pennsylvania.
(i) Unit 19 consists of 39.45 miles (63.48 km) of Allegheny River
from the Pennsylvania Route 68 bridge at East Brady (Armstrong County,
Pennsylvania) downstream to the confluence of Kiskiminetas River
northeast of Freeport (Armstrong County, Pennsylvania). The unit
includes the river channel up to the ordinary high water mark.
Approximately 4.6 miles (7.4 km) of the riparian lands adjacent to this
unit are in public ownership, and 34.85 miles (56.08 km) are in private
ownership. Of the lands in public ownership:
(A) Approximately 1.86 miles (2.99 km) are city or county lands
associated with the Armstrong County's West Ford City Park and
Riverfront Park; and
(B) Approximately 2.74 miles (4.41 km) are State lands associated
with the Pennsylvania Game Commission's State Game Land #287 and State
Game Land #105.
(ii) Map of Unit 19 follows:
Figure 19 to Salamander Mussel (Simpsonaias ambigua) paragraph (24)(ii)
[[Page 57275]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.034
(25) Unit 20: Fish Creek (WV); Marshall County, West Virginia.
(i) Unit 20 consists of 26.58 miles (42.78 km) of Fish Creek from
the confluence of Pennsylvania Fork Fish Creek and West Virginia Fork
Fish Creek at Kausooth (Marshall County, West Virginia) downstream to
the confluence with the Ohio River southwest of Graysville (Marshall
County, West Virginia). The unit includes the river channel up to the
ordinary high water mark. The lands in this unit are in private
ownership.
(ii) Map of Unit 20 follows:
Figure 20 to Salamander Mussel (Simpsonaias ambigua) paragraph (25)(ii)
[[Page 57276]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.035
(26) Unit 21: Fishing Creek; Wetzel County, West Virginia.
(i) Unit 21 consists of 23.32 miles (37.54 km) of Fishing Creek
from the confluence of the North Fork Fishing Creek and South Fork
Fishing Creek at Pine Grove (Wetzel County, West Virginia) downstream
to the confluence with the Ohio River at Brooklyn (Wetzel County, West
Virginia). The unit includes the river channel up to the ordinary high
water mark. Approximately 0.13 mile (0.21 km) of the riparian lands
adjacent to this unit are in public ownership, and 23.19 miles (37.33
km) are in private ownership. The land in public ownership is land
associated with the city of New Martinsville.
(ii) Map of Unit 21 follows:
Figure 21 to Salamander Mussel (Simpsonaias ambigua) paragraph (26)(ii)
[[Page 57277]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.036
(27) Unit 22: Middle Island Creek; Doddridge, Tyler, and Pleasants
Counties, West Virginia.
(i) Unit 22 consists of 62.25 miles (100.19 km) of Middle Island
Creek from downstream of Keys Bend south of Camp (Doddridge County,
West Virginia) downstream to the confluence with the Ohio River at
Delong (Pleasants County, West Virginia). The unit includes the river
channel up to the ordinary high water mark. Approximately 0.15 mile
(0.25 km) of the riparian lands adjacent to this unit are in public
ownership, and 62.10 miles (99.94 km) are in private ownership. The
land in public ownership is State land associated with the West
Virginia Division of Natural Resources' (WVDNR) Buffalo Run Wildlife
Management Area.
(ii) Map of Unit 22 follows:
Figure 22 to Salamander Mussel (Simpsonaias ambigua) paragraph (27)(ii)
[[Page 57278]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.037
(28) Unit 23: Little Kanawha River; Wood and Wirt Counties, West
Virginia.
(i) Unit 23 consists of 49.82 miles (80.18 km) of Little Kanawha
River from the confluence with the West Fork Little Kanawha River west
of Creston (Wirt County, West Virginia) downstream to the confluence
with the Ohio River at Parkersburg (Wood County, West Virginia). The
unit includes the river channel up to the ordinary high water mark. The
riparian lands adjacent to this unit are in private ownership.
(ii) Map of Unit 23 follows:
Figure 23 to Salamander Mussel (Simpsonaias ambigua) paragraph (28)(ii)
[[Page 57279]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.038
(29) Unit 24: South Fork Hughes River; Doddridge, Wirt, and Ritchie
Counties, West Virginia.
(i) Unit 24 consists of 57.44 miles (92.43 km) of South Fork Hughes
River from the headwaters of the South Fork Hughes River at Porto Rico
(Doddridge County, West Virginia) downstream to the confluence with the
Hughes River south of Cisco (Ritchie County, West Virginia). The unit
includes the river channel up to the ordinary high water mark. The
riparian lands adjacent to this unit are in private ownership.
(ii) Map of Unit 24 follows:
Figure 24 to Salamander Mussel (Simpsonaias ambigua) paragraph (29)(ii)
[[Page 57280]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.039
(30) Unit 25: Kinniconick Creek; Lewis County, Kentucky.
(i) Unit 25 consists of 51.01 miles (82.10 km) of Kinniconick Creek
from the headwaters of Kinniconick Creek southwest of Petersville
(Lewis County, Kentucky) downstream to the confluence with the Ohio
River at Rexton (Lewis County, Kentucky). The unit includes the river
channel up to the ordinary high water mark. The riparian lands adjacent
to this unit are in private ownership.
(ii) Map of Unit 25 follows:
Figure 25 to Salamander Mussel (Simpsonaias ambigua) paragraph (30)(ii)
[[Page 57281]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.040
(31) Unit 26: North Fork Licking River; Morgan and Rowan Counties,
Kentucky.
(i) Unit 26 consists of 20.67 miles (33.27 km) of North Fork
Licking River from the headwaters of North Fork Licking River at
Redwine (Morgan County, Kentucky) downstream to the confluence of the
Licking River at Bangor (Rowan County, Kentucky). The unit includes the
river channel up to the ordinary high water mark. Approximately 13.13
miles (21.14 km) of the riparian lands adjacent to this unit are in
public ownership, and 7.54 miles (12.13 km) are in private ownership.
The lands in public ownership are Federal lands associated with the
U.S. Army Corps of Engineers' (USACE) Cave Run Recreation Area and U.S.
Forest Service's (USFS) Daniel Boone National Forest.
(ii) Map of Unit 26 follows:
Figure 26 to Salamander Mussel (Simpsonaias ambigua) paragraph (31)(ii)
[[Page 57282]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.041
(32) Unit 27: Licking River; Harrison, Robertson, Kenton, Bracken,
Campbell, Rowan, Pendleton, Fleming, Bath, and Nicholas Counties,
Kentucky.
(i) Unit 27 consists of 179.56 miles (288.98 km) of Licking River
from below the dam at Cave Rune Lake south of Farmers (Rowan County,
Kentucky) downstream to the confluence with the Ohio River at Newport
(Campbell County, Kentucky). The unit includes the river channel up to
the ordinary high water mark. Approximately 20.82 miles (33.51 km) of
the riparian lands adjacent to this unit are in public ownership, and
158.74 miles (255.47 km) are in private ownership. Of the lands in
public ownership:
(A) Approximately 3.58 miles (5.76 km) are city or county lands
associated with the city of Newport's General James Taylor Park; city
of Covington's 19th St. Hollow Park, Meinken Park, and Eva G. Farris
Complex; Kenton County's Locust Pike Park; Campbell County Conservation
District's Hawthorne Crossing Conservation Area; and Kenton County
Conservation District's Morning View Natural Area;
(B) Approximately 0.4 mile (0.64 km) is Federal land associated
with the USACE's Cave Run Recreation Area;
(C) Approximately 0.5 mile (0.8 km) is Federal land associated with
the USACE's Cave Run Recreation Area or USFS's Daniel Boone National
Forest on one bank and State lands associated with the Kentucky
Department of Fish and Wildlife Resources' (KDFWR) Minor Clark Fish
Hatchery on the opposite bank; and
(D) Approximately 16.36 miles (26.33 km) are State lands associated
with the Kentucky State Nature Preserves Commission's Quiet Trails
State Nature Preserve, Kentucky Department of Parks' Blue Licks
Battlefield State Recreational Park, and KDFWR's Clay Wildlife
Management Area and Minor Clark Fish Hatchery.
(ii) Map of Units 27 and 28 follows:
Figure 27 to Salamander Mussel (Simpsonaias ambigua) paragraph (32)(ii)
[[Page 57283]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.042
(33) Unit 28: South Fork Licking River; Pendleton and Harrison
Counties, Kentucky.
(i) Unit 28 consists of 18.26 miles (29.39 km) of South Fork
Licking River from 1 mile upstream from the confluence with Crooked
Creek north of Boyd (Harrison County, Kentucky) downstream to the
confluence with the Licking River at Falmouth (Pendleton County,
Kentucky). The unit includes the river channel up to the ordinary high
water mark. The riparian lands adjacent to this unit are in private
ownership.
(ii) Map of Unit 28 is provided at paragraph (32)(ii) of this
entry.
(34) Unit 29: Drennon Creek; Henry County, Kentucky.
(i) Unit 29 consists of 22.36 miles (35.99 km) of Drennon Creek
from the headwaters of Drennon Creek south of Bethlehem (Henry County,
Kentucky) downstream to the confluence with the Kentucky River
southeast of Drennon Springs (Henry County, Kentucky). The unit
includes the river channel up to the ordinary high water mark. The
riparian lands adjacent to this unit are in private ownership.
(ii) Map of Unit 29 follows:
Figure 28 to Salamander Mussel (Simpsonaias ambigua) paragraph (34)(ii)
[[Page 57284]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.043
(35) Unit 30: Laughery Creek; Ripley, Dearborn, and Ohio Counties,
Indiana.
(i) Unit 30 consists of 44.52 miles (71.65 km) of Laughery Creek
from below the dam at Versailles Lake at Versailles (Ripley County,
Indiana) downstream to the confluence with the Ohio River at Buffalo
(Ohio County, Indiana). The unit includes the river channel up to the
ordinary high water mark. Approximately 3.01 miles (4.85 km) of the
riparian lands adjacent to this unit are in public ownership, and 41.51
miles (66.8 km) are in private ownership. The lands in public ownership
are State lands associated with the IDNR's Versailles State Park.
(ii) Map of Unit 30 follows:
Figure 29 to Salamander Mussel (Simpsonaias ambigua) paragraph (35)(ii)
[[Page 57285]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.044
(36) Unit 31: Otter Creek; Jennings and Ripley Counties, Indiana.
(i) Unit 31 consists of 17.96 miles (28.91 km) of Otter Creek from
the U.S. Highway 50 bridge west of Holton (Ripley County, Indiana)
downstream to the confluence with the Vernon Fork Muscatatuck River at
Vernon (Jennings County, Indiana). The unit includes the river channel
up to the ordinary high water mark. The riparian lands adjacent to this
unit are in private ownership.
(ii) Map of Units 31 and 32 follows:
Figure 30 to Salamander Mussel (Simpsonaias ambigua) paragraph (36)(ii)
[[Page 57286]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.045
(37) Unit 32: Graham Creek; Jefferson, Jennings, and Ripley
Counties, Indiana.
(i) Unit 32 consists of 41.5 miles (66.79 km) of Graham Creek from
west of South Old Michigan Road at New Marion (Ripley County, Indiana)
downstream to the confluence with the Muscatatuck River north of Deputy
(Jefferson County, Indiana). The unit includes the river channel up to
the ordinary high water mark. The riparian lands adjacent to this unit
are in private ownership.
(ii) Map of Unit 32 is provided at paragraph (36)(ii) of this
entry.
(38) Unit 33: East Fork White River; Dubois, Daviess, Pike, Martin,
and Lawrence Counties, Indiana.
(i) Unit 33 consists of 78.57 miles (126.45 km) of East Fork White
River from below the Williams dam south of Williams (Lawrence County,
Indiana) downstream to approximately 0.25 mile west of North State Road
57 at Rogers (Pike County, Indiana). This unit includes the river
channel up to the ordinary high water mark. Approximately 6.12 miles
(9.85 km) of the riparian lands adjacent to this unit are in public
ownership, and 72.45 miles (116.6 km) are in private ownership. Of the
lands in public ownership:
(A) Approximately 0.12 mile (0.19 km) is Federal land associated
with the USFS's Hoosier National Forest; and
(B) Approximately 6 miles (9.66 km) are State lands associated with
the IDNR's Williams Dam Public Fishing Area, Hindostan Falls Public
Fishing Area, Glendale Fish and Wildlife Area, Henshaw Bend Nature
Preserve, and Bluffs on Beaver Pond.
(ii) Map of Unit 33 follows:
Figure 31 to Salamander Mussel (Simpsonaias ambigua) paragraph (38)(ii)
[[Page 57287]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.046
(39) Unit 34: Beech Fork River; Washington and Nelson Counties,
Kentucky.
(i) Unit 34 consists of 50.39 miles (81.10 km) of Beech Fork River
from the confluence of Beech Fork and Chaplin River north of
Mooresville (Washington County, Kentucky) downstream to the confluence
of Beech Fork River and the Rolling Fork River northeast of
Elizabethtown (Hardin County, Kentucky). This unit includes the river
channel up to the ordinary high water mark. Approximately 1.99 miles
(3.21 km) of the riparian lands adjacent to this unit are in public
ownership, and 48.4 miles (77.89 km) are in private ownership. The
lands in public ownership are State lands associated with the KDFWR's
John C. Williams Wildlife Management Area.
(ii) Map of Units 34 and 35 follows:
Figure 32 to Salamander Mussel (Simpsonaias ambigua) paragraph (39)(ii)
[[Page 57288]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.047
(40) Unit 35: Rolling Fork River; LaRue, Hardin, Marion, and Nelson
Counties, Kentucky.
(i) Unit 35 consists of 87.9 miles (141.47 km) of Rolling Fork
River from the confluence of the North Rolling Fork River and Big South
Fork River west of Bradfordsville (Marion County, Kentucky) downstream
to the confluence with Beech Fork River east of Younger Creek (Hardin
County, Kentucky). The unit includes the river channel up to the
ordinary high water mark. The riparian lands adjacent to this unit are
in private ownership.
(ii) Map of Unit 35 is provided at paragraph (39)(ii) of this
entry.
(41) Unit 36: Harpeth River; Cheatham and Dickson Counties,
Tennessee.
(i) Unit 36 consists of 43.32 miles (69.72 km) of Harpeth River
from the confluence of the South Harpeth River southeast of Kingston
Springs (Cheatham County, Tennessee) downstream to the confluence with
the Cumberland River northeast of Bellsburg (Dickson County,
Tennessee). The unit includes the river channel up to the ordinary high
water mark. Approximately 6.07 miles (9.77 km) of the riparian lands
adjacent to this unit are in public ownership, and 37.25 miles (59.95
km) are in private ownership. The lands in public ownership are Federal
lands associated with the USACE's Cheatham Lake Reservoir.
(ii) Map of Unit 36 follows:
Figure 33 to Salamander Mussel (Simpsonaias ambigua) paragraph (41)(ii)
[[Page 57289]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.048
(42) Unit 37: Duck River; Hickman, Humphreys, Perry, and Maury
Counties, Tennessee.
(i) Unit 37 consists of 116.42 miles (187.36 km) of Duck River from
the confluence of the Little Bigby Creek northwest of Columbia (Maury
County, Tennessee) downstream to the confluence of the Duck River and
the Tennessee River, which creates a backwater effect at Elysian Grove
(Humphreys County, Tennessee). The unit includes the river channel up
to the ordinary high water mark. Approximately 0.52 mile (0.83 km) of
the riparian lands adjacent to this unit are in public ownership, and
115.9 miles (186.53 km) are in private ownership. The land in public
ownership is Federal land associated with the NPS's Natchez Trace
Parkway.
(ii) Map of Unit 37 follows:
Figure 34 to Salamander Mussel (Simpsonaias ambigua) paragraph (42)(ii)
[[Page 57290]]
[GRAPHIC] [TIFF OMITTED] TP22AU23.049
* * * * *
Wendi Weber,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-17668 Filed 8-21-23; 8:45 am]
BILLING CODE 4333-15-C