[Federal Register Volume 59, Number 225 (Wednesday, November 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-28935]
[[Page Unknown]]
[Federal Register: November 23, 1994]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AB97
Endangered and Threatened Wildlife and Plants; Appalachian Elktoe
Determined To Be an Endangered Species
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service) determines the
Appalachian elktoe (Alasmidonta raveneliana) to be an endangered
species under the Endangered Species Act of 1973, as amended (Act). The
Appalachian elktoe is endemic to the upper Tennessee River system in
the mountains of western North Carolina and eastern Tennessee. It was
once fairly widely distributed in western North Carolina, but it has
been eliminated from the majority of its historic range and is now
found only in short reaches of the Little Tennessee River, Nolichucky
River, Toe River, and Cane River. In Tennessee, the species is known
only from its present distribution in the Nolichucky River. The
species' range has been seriously reduced by impoundments and the
general deterioration of habitat and water quality resulting from
siltation and other pollutants contributed by poor land use practices
and toxic discharges. Due to the species' limited distribution, any
factors that adversely modify habitat or water quality in the stream
reaches it now inhabits could further threaten the species. This final
rule implements the Act's protection and recovery provisions for the
Appalachian elktoe.
EFFECTIVE DATE: December 23, 1994.
ADDRESSES: The complete file for this rule is available for inspection,
by appointment, during normal business hours at U.S. Fish and Wildlife
Service, 330 Ridgefield Court, Asheville, North Carolina 28806.
FOR FURTHER INFORMATION CONTACT: Mr. John Fridell at the above address
(704/665-1195, Ext. 225).
SUPPLEMENTARY INFORMATION:
Background
The Appalachian elktoe (Alasmidonta raveneliana) (Lea, 1834) is a
freshwater mussel with a thin, but not fragile, kidney-shaped shell,
reaching up to about 3.2 inches in length, 1.4 inches in height, and 1
inch in width (Clarke 1981). Juveniles generally have a yellowish-brown
periostracum (outer shell surface) while the periostracum of the adults
is usually dark brown in color. Although rays are prominent on some
shells, particularly in the posterior portion of the shell, many
individuals have only obscure greenish rays. The shell nacre (inside
shell surface) is shiny, often white to bluish-white, changing to a
salmon, pinkish, or brownish color in the central and beak cavity
portions of the shell; some specimens may be marked with irregular
brownish blotches (adapted from Clarke 1981). A detailed description of
the species' shell, with illustrations, is contained in Clarke (1981).
Soft parts are discussed in Ortmann (1921).
Because of its rarity, little is known about the autecology of the
Appalachian elktoe. The species has been reported from relatively
shallow, medium-sized creeks and rivers with cool, moderate- to fast-
flowing water. It has been observed in gravelly substrates often mixed
with cobble and boulders, in cracks in bedrock (Gordon 1991), and
occasionally in relatively silt-free, coarse, sandy substrates (J.
Alderman, North Carolina Wildlife Resources Commission, personal
communication, 1992; personal observations, 1989 and 1991). Like other
freshwater mussels, the Appalachian elktoe feeds by filtering food
particles from the water column. The specific food habits of the
species are unknown, but other freshwater mussels have been documented
to feed on detritus, diatoms, phytoplankton, and zooplankton (Churchill
and Lewis 1924). The reproductive cycle of the Appalachian elktoe is
similar to that of other native freshwater mussels. Males release sperm
into the water column; the sperm are then taken in by the females
through their siphons during feeding and respiration. The females
retain the fertilized eggs in their gills until the larvae (glochidia)
fully develop. The mussel glochidia are released into the water, and
within a few days they must attach to the appropriate species of fish,
which they then parasitize for a short time while they develop into
juvenile mussels. They then detach from their ``fish host'' and sink to
the stream bottom where they continue to develop, provided they land in
a suitable substrate with the correct water conditions. Recent studies
funded by the U.S. Forest Service and conducted by personnel with the
Tennessee Technological University at Cookeville, Tennessee, have
identified the banded sculpin (Cottus carolinae) as a host species for
glochidia of the Appalachian elktoe (M. Gordon, Tennessee Technological
University, personal communication, 1993).
The mussel's life span, and many other aspects of its life history,
are unknown.
The Appalachian elktoe is known to be endemic to the upper
Tennessee River system in western North Carolina and eastern Tennessee.
Historical records for the species in North Carolina exist for the
Little Tennessee River system (Talula Creek, Graham County) and the
French Broad River system, including the Nolichucky River (county
unknown); the Little River (Transylvania County), the Swannanoa River
(county unknown), the Pigeon River (Haywood County), and the main stem
of the French Broad River (Buncombe County and an unknown county)
(Clarke 1981). An additional historical record of the Appalachian
elktoe in the North Fork Holston River, Tennessee (S.S. Haldeman
collection) is believed to represent a mislabeled locality (Gordon
1991).
From 1986 through the spring of 1992, biologists with the Service,
the Tennessee Valley Authority, the North Carolina Wildlife Resources
Commission, and the Tennessee Technological University conducted
surveys in both historic and potential habitat of the species. Surveys
of the French Broad River and its tributaries in Transylvania,
Henderson, Haywood, Buncombe, and Madison Counties, North Carolina,
failed to locate any specimens of the Appalachian elktoe (R. Biggins,
U.S. Fish and Wildlife Service, personal communications, 1989 and 1991;
Alderman, North Carolina Wildlife Resources Commission, personal
communication, 1990; M. Gordon, Tennessee Technological University,
personal communications, 1991 and 1992; personal observations, 1986
through 1991). The species has also been extirpated from Talula Creek
in the Little Tennessee River system (personal observations, 1987 and
1992) and could not be found in any of the other major tributaries to
the Little Tennessee River (Gordon, personal communication, 1991; S.
Ahlstedt, Tennessee Valley Authority, personal communication, 1992). If
the historic record for the species in the North Fork Holston River in
Tennessee was a good record, then the species has been eliminated from
this river as well. Only two populations of the species are known to
survive. One population, discovered in 1987 by Tennessee Valley
Authority biologists (Steven Ahlstedt and Charles Saylor), exists in
the main stem of the Little Tennessee River in Swain and Macon
Counties, North Carolina (Tennessee Valley Authority 1987; J. Widlak,
U.S. Fish and Wildlife Service, personal communication, 1988; Biggins
1990; Gordon 1991; personal observations, 1988, 1991, 1992, 1993). The
second population occurs in the Nolichucky River system. This
population is restricted to scattered locations along a short reach of
the Toe River in Yancey and Mitchell Counties in North Carolina
(personal observations, 1991 and 1992) and the main stem of the
Nolichucky River, Yancey and Mitchell Counties, North Carolina
(Alderman, personal communication, 1991; personal observation, 1992,
1993), extending downriver into Unicoi County, Tennessee (personal
observation, 1992). A single specimen of the Appalachian elktoe was
also found in the Cane River in Yancey County, North Carolina (C.
McGrath, North Carolina Wildlife Resources Commission, personal
communication, 1992).
Habitat and water quality degradation/alteration resulting from
impoundments; stream channelization; dredging; industrial and sewage
effluent; and the runoff of silt and other pollutants from poorly
implemented mining, construction/development, agricultural, and past
logging activities are believed to be the primary factors resulting in
the elimination of the species from the majority of its historic range.
Many of these factors threaten the only two remaining populations of
the species.
Previous Federal Action
The Appalachian elktoe was recognized by the Service in the May 22,
1984, Federal Register (49 FR 21664) and again in the January 6, 1989,
Federal Register (54 FR 554) as a species being reviewed for potential
addition to the Federal List of Endangered and Threatened Wildlife and
Plants. This mussel was designated as a category 2 candidate for
Federal listing on these candidate lists. Category 2 represents those
species for which the Service has some information indicating that the
taxa may be under threat, but sufficient information is lacking to
prepare a proposed rule. Since that time, both historic and potential
habitat of the species has been surveyed. Only two populations of the
Appalachian elktoe are known to survive, and both of these populations
are threatened by many of the same factors that are believed to have
resulted in the extirpation of the species elsewhere within its
historic range. Accordingly, on June 10, 1992, the Service designated
the Appalachian elktoe as a category 1 candidate. Category 1 represents
those species for which the Service has enough substantial information
on biological vulnerability and threats to support proposals to list
them as endangered or threatened species. The Service has met and been
in contact with various Federal and State agency personnel and private
individuals knowledgeable about the species, concerning the species'
status and the need for protection provided by the Act. On April 20,
1992, and again on August 21, 1992, the Service notified appropriate
Federal, State, and local government agencies in writing that a status
review was being conducted and that the species might be proposed for
Federal listing. A total of six written comments were received on these
two notices. The North Carolina Wildlife Resources Commission (two
written comments), the North Carolina Natural Heritage Program (two
written comments), and an interested biologist expressed their support
for the species' being proposed for protection under the Act; the U.S.
Soil Conservation Service stated that they did not have any additional
information on this species. No negative comments were received.
On September 3, 1993, the Service published in the Federal Register
(58 FR 46940) a proposal to list the Appalachian elktoe as an
endangered species. That proposal provided information on the species'
biology, status, and threats to its continued existence.
Summary of Comments and Recommendations
In the September 3, 1993, proposed rule, the January 21, 1994,
notice of public hearing and reopening of the comment period (59 FR
12353), the February 8, 1994, public hearing, and through associated
notifications, comments or suggestions concerning the proposed rule
were solicited from the public, concerned governmental agencies, the
scientific community, industry, or any other interested party.
Appropriate Federal and State agencies, county governments, scientific
organizations, and interested parties were contacted by letters dated
September 14, 1993, and January 27, 1994, and were requested to
comment. A legal notice, which invited general public comment, was
published in the following newspapers: ``The Erwin Record,'' Erwin,
Tennessee, September 22, 1993; the ``Mitchell News Journal,'' Spruce
Pine, North Carolina, September 22, 1993; the ``Yancey Journal,''
Burnsville, North Carolina, September 22, 1993; the ``Smoky Mountain
Times,'' Bryson City, North Carolina, September 23, 1993; and the
``Franklin Press,'' Franklin, North Carolina, September 24, 1993.
In response to three formal requests, a public hearing on the
proposal to list the Appalachian elktoe as an endangered species was
held on February 8, 1994, at the Mitchell High School, Bakersville,
North Carolina. A legal notice announcing the public hearing and
reopening of the comment period was published in the newspapers listed
above.
All written comments and oral statements presented at the public
hearing and those received during the comment periods are covered in
the following discussion.
Four written responses to the proposed rule were received during
the initial comment period. One of these was from a State agency, and
the others were from the mining industry in Mitchell County, North
Carolina. The State of Tennessee, Department of Environment and
Conservation expressed support for the listing of the Appalachian
elktoe as endangered, and stated that their Heritage Program records
concurred with the information presented in the proposed rule. The
Unimin Corporation, Feldspar Corporation, and K-T Feldspar Corporation
expressed concern about the potential listing and requested that a
public hearing on the Service's proposal be held.
Nineteen verbal statements were made at the public hearing. Fifteen
respondents (a representative of Congressman Taylor's office, the
Mitchell County Board of Commissioners, the Mayor of the Town of Spruce
Pine, the Mitchell County Soil and Water Conservation District, the
Mitchell County Economic Development Commission, the Mitchell County
Christmas Tree Growers Association, representatives of three mining
companies, and six individuals) expressed opposition to the listing of
the Appalachian elktoe. Four respondents (representatives of two
businesses, a civic group, and a representative for 31 children in east
Tennessee) supported the listing. Ten written comments were received at
the public hearing, nine of which were copies of verbal statements
given. A written statement was also received from Congressman Cass
Ballenger. Congressman Ballenger expressed his interest in the matter
and stated that he had sent a representative of his office to the
hearing.
Forty additional written comments were received during the comment
period extension (thirty-one letters were received from children in
Chucky, Tennessee, but are counted in this total as one comment from
the children in east Tennessee). Nine of these respondents (Congressman
Charles Taylor, Congressmen Cass Ballenger, The K-T Feldspar
Corporation, The Unimin Corporation, and five individuals) opposed the
listing; thirty respondents (members of the League of Women Voters,
Save our Rivers, a registered forester, and 26 other respondents)
supported the listing; one respondent (Nantahala Power and Light
Company) expressed neither support for nor opposition to the listing.
Following is a summary of comments, concerns, and questions
(referred to as ``Issues'' for the purpose of this summary) expressed
orally at the public hearing or in writing during the reopened comment
period. Issues of similar content have been grouped together. These
issues and the Service's response to each are presented below.
Issue 1: Congressman Taylor, Congressman Ballenger, the Mitchell
County Soil and Water Conservation District, the Mitchell County
Economic Development Commission, the Mayor of the town of Spruce Pine,
three mining companies in Mitchell County, North Carolina and several
other respondents questioned the need for the Service to list the
Appalachian elktoe because the species is already listed by the State
of North Carolina and is protected under North Carolina's environmental
laws.
Service Response: While the species is currently listed by the
State of North Carolina as an endangered species, State regulations
pertaining to State listed fish and wildlife, including freshwater
mussels, prohibit only the take of such species. These regulations do
not specifically protect State endangered and threatened species from
other threats. Federal listing will provide additional protection for
the Appalachian elktoe throughout its range by requiring Federal
agencies, under Section 7 of the Act, to insure that their actions are
not likely to jeopardize the continued existence of the Appalachian
elktoe. Federal actions subject to Section 7 of the Act that could
occur and impact the species include, but are not limited to, the
carrying out or issuance of permits for road and bridge construction,
forestry activities on National Forest lands, reservoir construction,
river channel maintenance or other dredging activities, stream and
wetland alterations, and potentially harmful wastewater discharges in
relatively close proximity to the occupied habitat of the species. If
the species was not listed, there would be no legal requirement for
Federal agencies under the Act, involved in these types of activities
to give the species any special consideration in their project planning
or authorization. In the majority of the cases involving listed mussels
(particularly the majority of highway and bridge projects, forestry
activities, and other land disturbance projects), only minor project
changes or modifications are necessary to protect the species (i.e., a
commitment for the implementation and maintenance of adequate erosion
and sedimentation control measures). These measures benefit not only
the listed species involved but also the entire river ecosystem and the
river's aesthetic and recreational values.
Further, Federal listing of the Appalachian elktoe will help to
make the species, and areas where the species still exists, a high
priority for potential Federal (and in some cases State and private)
funding sources to help implement recovery actions for the species and
corrective measures at problem sites within the watersheds where the
species exists.
Issue 2: The Mayor of Spruce Pine questioned whether the Service
felt the State of North Carolina is not adequately protecting the
Appalachian elktoe.
Service Response: Protection and recovery of the Appalachian elktoe
cannot be achieved by the efforts of the States of North Carolina and
Tennessee alone or by efforts of the Service and other Federal agencies
alone. Protection and recovery of this species requires a cooperative
effort and will depend on assistance and support of the local
landowners, communities, private industries, businesses, and interest
groups, as well as the local, State, and Federal agencies.
Issue 3: Congressman Taylor, Congressman Ballenger, the Mayor of
the Town of Spruce Pine, one mining company, and two individuals
questioned the factors cited by the Service as having contributed to
the decline of the Appalachian elktoe, in particular pollution from
industrial and municipal sources and siltation.
Service Response: Siltation has been documented to adversely affect
native freshwater mussels both directly and indirectly. Siltation
degrades water and substrate quality limiting available habitat for
freshwater mussels (and their fish hosts), irritates and clogs the
gills of filter-feeding mussels resulting in reduced feeding and
respiration, smothers mussels if sufficient accumulation occurs, and
increases the potential exposure of the mussels to other pollutants
(Ellis 1936, Marking and Bills 1979, Kat 1982). Ellis (1936) found that
less than one inch of sediment deposition caused high mortality in most
mussel species. Sediment accumulations which are less than lethal to
adults may adversely affect or prevent recruitment of juvenile mussels
into the population.
The Appalachian elktoe has not been found in the Nolichucky River
system in substrates with accumulations of silt and shifting sand; the
species is restricted to small, scattered pockets of stable, relatively
clean, gravelly substrates. The same is true of the population
surviving in the Little Tennessee River.
Mussels are also known to be sensitive to numerous other
pollutants, including but not limited to a wide variety of heavy
metals, high concentrations of nutrients, and chlorine (Havlik and
Marking 1987)--pollutants commonly found in many domestic and
industrial effluents. In the early 1900's Ortmann (1909) noted that
unionids (mussels) are the most reliable indicator of stream pollution.
Keller and Zam (1991) concluded that mussels were more sensitive to
metals than commonly tested fish and aquatic insects. The life cycle of
native mussels makes the reproductive stages especially vulnerable to
pollutants (Ingram 1957, Stein 1971, Fuller 1974, Gardner et al. 1976).
The toxicity of chlorinated sewage effluents to aquatic life is well
documented (Brungs 1976, Tsai 1975, Bellanca and Bailey 1977, U.S.
Environmental Protection Agency 1985, Goudreau et al. 1988), and mussel
glochidia (larvae) rank among the most sensitive invertebrates in their
tolerance to toxicants present in sewage effluents (Goudreau et al.
1988).
The evidence available demonstrates that habitat deterioration
(resulting from sedimentation and pollution from numerous point
sources), when combined with the effects of other factors (including
non-point source pollution, habitat destruction/alteration resulting
from impoundments and channelization projects, etc.), has played a
significant role in the decline of the Appalachian elktoe. The Service
believes this is particularly true of the extirpation of the species
from the Pigeon, Swannanoa, and French Broad Rivers. These factors
(primarily sedimentation) likely also contributed to the extirpation of
the species from the Little River and Talula Creek. Habitat loss and
alteration resulting from impoundments, channel modification projects,
and (in the case of Talula Creek) excavation activities within the
creek channel are believed to have had a severe adverse effect on the
species.
Issue 4: One mining company and one individual asked whether
predation posed a threat to the Appalachian elktoe. One of these
respondents inquired about the effects of predation by brown trout,
``muskie'' (muskellunge), and otter; the other inquired concerning the
effects of muskrat predation.
Service Response: Shells of the Appalachian elktoe are often found
in muskrat middens along the reach of the Little Tennessee River where
the species still exists and occasionally in middens along the
Nolichucky River. The species also is presumably consumed by other
mammals, such as raccoons, mink, and otter. Plankton feeding fish
(including hatchling trout and muskellunge) likely occasionally feed on
the sperm and glochidia (which are expelled by freshwater mussels
directly into the water column), and bottom feeding fish may
occasionally feed on mussels, particularly juvenile mussels. However,
larger trout and muskellunge feed primarily on insects, crustaceans,
amphibians and other fish (mobile aquatic organisms).
While predation is not thought to be a significant threat to a
healthy mussel population, it could, as suggested by Neves and Odum
(1989), limit the recovery of endangered mussel species or contribute
to the local extirpation of mussel populations already reduced by other
factors (see ``Summary of Factors Affecting the Species,'' Part C.
Disease or Predation, below).
Issue 5: One of the mining companies inquired concerning whether
disease posed a threat to freshwater mussels.
Service Response: The Service does not currently have any
information to indicate whether disease is a significant threat to
freshwater mussels. Since 1982, biologists and commercial mussel
fishermen have reported occasional and localized, though extensive,
mussel die-offs in rivers and lakes throughout the United States.
Pesticides have been implicated as the cause of one of the die-offs
that occurred in North Carolina, but the cause(s) of many of these die-
offs is unknown and disease has been suggested as a possible factor.
(See ``Summary of Factors Affecting the Species, factor C. Disease or
Predation, below)
Issue 6: One of the mining companies inquired about the effect high
or low water levels or extreme temperature changes have on the mussel
(Appalachian elktoe).
Service Response: Normal water and temperature fluctuations are not
believed to have any significant adverse effect on the Appalachian
elktoe. However, significant changes in water levels and/or
temperature, especially rapid changes, do pose a threat.
The Appalachian elktoe is found in cool, (it has not been recorded
from extremely cold or warm waters) moderate to fast-flowing water over
stable, relatively silt-free rocky (gravel, cobble, boulder, etc.)
substrates (see ``Background'' section above). Such suitable substrates
are generally found in areas where the water current is swift enough to
help keep silt and other sediments from accumulating. Lessening these
flows increases the potential for siltation of the substrate. Also,
these areas are often located in relatively shallow water. Because
mussels are basically sedentary, de-watering of these areas traps the
mussels and subjects them to heat or cold stress (depending on the time
of year), desiccation, and increased predation. Low water or drastic
increases in water levels within the river can result in temperature
and chemical changes within the water, thus adversely affecting the
Appalachian elktoe. Rapid increases in water levels can result in
increased scouring and erosion of streambanks and river channel
resulting in increased sedimentation of the river.
Issue 7: Nantahala Power and Light Company asked whether surveys
had been conducted to determine the species distribution, and one
individual suggested the species may occur in other areas.
Service Response: From 1986 through the spring of 1992, biologists
with the Service, the North Carolina Wildlife Resources Commission, the
Tennessee Valley Authority, and the Tennessee Technological University
surveyed both historic and potential habitat of the species (see
``Background'' section above). Based on the results of these surveys,
the Service concludes that it is not likely that additional populations
of the Appalachian will be discovered outside of the present known
range.
Issue 8: One respondent for the mining industry suggested that the
surveys conducted for the species may have been in the wrong habitat
type.
Service Response: The surveys that were conducted included the use
of scuba and snorkeling equipment, view buckets (glass bottom buckets),
and collection of shell middens (accumulations of shells from mussels
fed upon by muskrats). Surveys were conducted in deep and shallow
water, riffles, shoals, pools, and runs. The species was observed in
stable, relatively silt-free gravelly substrates often mixed with
cobble and boulders, and in cracks in bedrock (see ``Background''
section above). On three occasions single individuals were found in
relatively clean, coarse sandy substrates. Water currents in the areas
where the species was most often observed was moderate to swift. The
swift currents helped to keep the substrate flushed of sediments.
Deeper and slacker water habitats generally contained accumulations of
unstable silt, sand, and other sediments (particularly in the case of
the Nolichucky River system), which is believed to help explain the
species' absence from these areas.
Issue 9: Several respondents provided information concerning the
efforts that have been undertaken by the town of Spruce Pine, the
industries in the Spruce Pine area, the local landowners, and others in
the Mitchell County area to improve the quality of the North Toe, Toe,
and Nolichucky Rivers. Many of these respondents state that because of
these efforts, Federal listing of the Appalachian elktoe is not
necessary.
Service Response: The Service recognizes that many of the
industries, landowners, developers, builders, etc., in these watersheds
are implementing measures for controlling the runoff of sediments and
other pollutants into the river and its tributaries and commends those
actions. The Service also recognizes that these efforts have resulted
in improvements in the condition of some areas of the upper Nolichucky
River system in recent years. However, while there have been
improvements, there are still activities occurring within the watershed
that continue to adversely affect the quality of the Toe, Cane, and
Nolichucky Rivers, and there are other activities proposed that have
the potential to affect these rivers.
The Service believes that the Appalachian elktoe meets the
definition of endangered and warrants the protection of the Act. In
making this determination the Service has to look at what has happened
or is happening to the species throughout the species' range, and what
threats there are to the species throughout its range. The Service
cannot look at just one area, nor can it look at the threats from just
one or a few sources. The Service believes there are numerous ongoing
and planned activities, as well as natural threats, in both river
systems where the species still survives (see ``Summary of Factors
Affecting the Species'' below) that have the potential to adversely
affect the surviving populations.
Issue 10: One representative of the mining industry suggested a
cooperative effort (reintroduction of the species into tributaries of
the Toe and Nolichucky Rivers) among the Service and the local mining
industry might be used to protect the Appalachian elktoe without
listing the species.
Service Response: Recovery of the Appalachian elktoe cannot be
achieved without reestablishment of the species throughout a
significant portion of its historic range. Because the majority of the
areas from which the species has been eliminated are isolated from
existing populations, natural reestablishment of these areas by the
species is impossible and will require human assistance. However,
before reintroduction activities can be carried out with confidence
that such reintroductions can be successful, additional research is
necessary to determine the range of environmental requirements of the
species. Artificial propagation of the species may be necessary in
order to obtain sufficient numbers of the species for the successful
reintroductions--the existing populations, especially the Nolichucky
river population, currently appear too small to support removals for
reintroductions. Several agencies and institutes are conducting
research on artificial propagation and relocation of freshwater
mussels, though efforts to date have met with only limited success.
Much more work is needed to perfect these techniques before they can be
applied to endangered mussels. Recovery of decimated populations of
native freshwater mussels through reintroductions will be an extremely
slow and difficult process and will require long-term commitment of
funds and effort to carry out and monitor.
Issue 11: Congressman Taylor and Congressman Ballenger, the
Mitchell County Board of Commissioners, the Mitchell County Economic
Development Commission, the Mayor of the Town of Spruce Pine, and
several other respondents expressed economic concerns associated with
Federal listing of the Appalachian elktoe.
Service Response: Under section 4(b)(1)(A) of the Act, a listing
determination must be based solely on the best scientific and
commercial data available concerning the status of a species. The
legislative history of this provision clearly states the intent of
Congress to ensure that listing decisions are ``based solely on
biological criteria and to prevent non-biological considerations from
affecting such decisions'' H.R. Rep. No. 97-835, 97th Cong. 2nd Sess.
19 (1982). As further stated in the legislative history, ``economic
considerations have no relevance to determinations regarding the status
of the species''. The Service is prohibited by law from withholding a
listing based on concerns regarding economic impact.
While the Service cannot consider economic concerns in determining
whether a species is endangered or threatened, other provisions of the
Act do allow for the consideration of the potential economic effects of
actions or determinations made pursuant to the Act. For instance, in
developing a biological opinion under Section 7 of the Act, the Service
develops (through consultation with the lead Federal agency and the
applicant, if there is one) ``reasonable and prudent alternatives'' for
actions that are determined to be likely to jeopardize the continued
existence of a federally listed species, and ``reasonable and prudent
measures'' for actions that are likely to result in incidental take of
a federally listed species. In order to be ``reasonable and prudent''
these alternatives/measures must be technically and economically
feasible. If it was determined that a proposed action was likely to
jeopardize the continued existence of a federally listed species and
there were no reasonable and prudent alternatives to avoid jeopardy,
the Act provides a mechanism for the action to be elevated to a
cabinet-level Endangered Species Committee for review. If, through this
review, it is determined that the benefits of the proposed action to
the public outweigh the potential extinction of the species, an
exemption from the provisions of the Act can be granted for the
project.
The Service is well aware of the economic importance of the
Nolichucky River system to Mitchell County. The Service sees no reason
why conservation of the Appalachian elktoe cannot be integrated with
existing industrial and domestic uses of the river and its tributaries.
Issue 12: Congressman Taylor and Congressman Ballenger, the
Mitchell County Board of Commissioners, the Mitchell County Economic
Development Commission, the Mayor of the town of Spruce Pine, and
several individuals expressed concerns about potential effects to
wastewater discharges (in particular discharges from the Town of Spruce
Pine and from mining industry in Mitchell County) associated with
Federal regulations resulting from listing of the Appalachian elktoe.
Service Response: Section 9 of the Act sets forth a series of
general prohibitions and exceptions that apply to all endangered
wildlife. These prohibitions, in part, make it illegal for any person
subject to the jurisdiction of the United States to take (includes
harass, harm, pursue, hunt, shoot, wound, kill, trap, or collect; or to
attempt any of these), import or export, ship in interstate commerce in
the course of commercial activity, or sell or offer for sale in
interstate or foreign commerce any listed species. It also is illegal
to possess, sell, deliver, carry, transport, or ship any such wildlife
that has been taken illegally. Certain exceptions apply to agents of
the Service and State conservation agencies.
Permits may be issued to carry out otherwise prohibited activities
involving endangered wildlife species under certain circumstances.
Regulations governing permits are at 50 CFR 17.22 and 17.23. Such
permits are available for scientific purposes to enhance the
propagation or survival of the species and/or for incidental take in
connection with otherwise lawful activities.
The Service is not aware of any information currently available
that indicates existing discharges associated with mining industry in
Mitchell County, North Carolina, or the town of Spruce Pine are either
adversely affecting the Appalachian elktoe or resulting in a ``take''
of the species where it presently exists in the Nolichucky River
system. Therefore, the Service does not believe regulations under
Section 9 of the Act will have any effect on the mining industry or on
the town of Spruce Pine into the foreseeable future.
Section 7 of the Act places a requirement on Federal agencies to
evaluate their actions (projects that they authorize, fund, or carry
out) with respect to any species that is listed as endangered or
threatened, and to insure that their actions are not likely to
jeopardize the continued existence of a listed species (see Available
Conservation Measures below). The requirements under Section 7 of the
Act apply only to Federal agencies and therefore would affect only
those actions and activities that have Federal involvement (i.e.,
projects that utilize Federal funding, require Federal permits or
authorization, or are carried out by a Federal agency). The Service's
role under Section 7 of the Act is to assist other Federal agencies in
meeting their obligations with respect to endangered and threatened
species.
While National Pollution Discharge Elimination System (NPDES)
permits are issued by the North Carolina Department of Environmental
Management (NCDEM), the U.S. Environmental Protection Agency (EPA) does
have overview authority of the State's NPDES permit program. Therefore,
EPA would be required to satisfy its obligations under Section 7 of the
Act if it were determined that permit renewal or potential permitting
of a new or expanded discharge associated with the mining industry or
the town of Spruce Pine was likely to affect the Appalachian elktoe.
The Service cannot say whether or not new or expanded discharges
into the Nolichucky River system will be affected by the listing of the
Appalachian elktoe without specific information concerning those
discharges. Further, under Section 7 of the Act, it is the lead Federal
agency, in this case the EPA, that determines whether there is a
potential for discharges to affect federally listed species. However,
as stated previously, based on the best scientific and commercial
information currently available to the Service, the existing permitted
discharges do not appear to be adversely affecting existing locations
of the Appalachian elktoe.
Expansion of existing discharges would not likely be affected by
the listing of the Appalachian elktoe unless: (1) the location of a
discharge is moved significantly further downstream to a point where it
would be more likely to adversely affect the Appalachian elktoe, (2)
the State proposes to grant a variance that would allow a discharge, or
discharges, to exceed current water quality standards for the river,
and/or (3) new information becomes available that indicates that the
existing discharges or expansion of these discharges are likely having
an adverse effect (individually or cumulatively) on the Appalachian
elktoe.
In regard to the proposed expansion of the Spruce Pine wastewater
treatment plant, in view of the documented toxicity of chlorine to
freshwater organisms, the Service will likely request that
dechlorination of the effluent and standby power to sustain
dechlorination in the event of a power failure be made part of the
permit. However, based on conversations with the personnel with the
Asheville Regional Office of the NCDEM, this will be a primary
recommendation from their office as well.
Also, new or expanding facilities are required to evaluate
alternatives to proposed sites of discharge, including nondischarge
alternatives, as required under Titles 15A NCAC 2B.201 (c)(1) and
2H.105 (c)(2) of the State's Water Quality Classification and Standards
Rules. An environmental assessment is also required of applicants
proposing any new discharges of industrial process or domestic
wastewater in excess of 500,000 gallons per day. These requirements
apply to all such facilities without regard to the presence or absence
of endangered species.
Any substantial indications of water quality impairment evidenced
by in stream biological monitoring, including the status of downstream
threatened or endangered species, may trigger a review of potential
causes of water quality degradation upstream.
If the EPA were to determine that a NPDES permit associated with
one of the mining companies in Mitchell County was likely to affect the
Appalachian elktoe, it has been the experience of the Service that
nearly all Section 7 consultations have been resolved so that the
species has been protected and the project objectives have been met.
Issue 13: Two respondents expressed concern about the effect the
listing would have on current farming practices.
Service Response: The Service encourages the use of best management
practices (e.g., buffer strips along water courses, reductions of
pesticide applications, soil conservation practices that help control
soil loss and siltation, etc.). The Service and other Federal agencies
do have programs to assist farmers and other landowners in implementing
measures for habitat restoration and improvement. For instance, the
Service's Partners for Wildlife Program has the potential to provide
funding to interested and willing landowners to help restore degraded
areas, fence livestock out of streams and provide alternative livestock
water sources, plant filter strips, etc.--measures that many landowners
may not otherwise be able to afford.
Issue 14: The Mitchell County Economic Development Commission asked
whether listing the Appalachian elktoe would lead to the potential for
the Toe River becoming a ``resource water''.
Response: The North Carolina Division of Environmental Management
(NCDEM) is responsible for classifying waters within the State of North
Carolina. If the respondent is referring to ``Outstanding Resource
Water'' designation, the State of North Carolina requires that waters
eligible for this designation have excellent water quality and have at
least one of five values or uses (one of which is that the waters are
of special ecological or scientific significance such as habitat for
rare or endangered species) that qualifies the water body as having an
outstanding resource value. Because the Appalachian elktoe is already
listed by the State of North Carolina as endangered, the Toe River, or
at least a portion of the Toe River, already meets the second
requirement. However, because the Toe River does not currently maintain
excellent water quality it does not meet the first requirement and
therefore is not eligible.
If the Respondent is referring to ``High Quality Water''
designation, the State of North Carolina's criteria for this
designation does not recognize the Federal status of species.
Therefore, Federal listing of the Appalachian elktoe does not effect
the Toe River's eligibility, or ineligibility, for this designation.
Issue 15: The Mitchell County Economic Development Commission, one
mining company, and two individuals asked whether the fish host for the
Appalachian elktoe mussel has been identified and what its numbers are
in the Nolichucky River.
Service Response: Recent studies funded by the U.S. Forest Service
and conducted by personnel with the Tennessee Technological University
at Cookeville, Tennessee, have identified the banded sculpin (Cottus
carolinae) as a host species for glochidia of the Appalachian elktoe
(M. Gordon, Tennessee Technological University, personal communication,
1993). It is possible that other fish species may also serve as host to
Appalachian elktoe glochidia. Because the banded sculpin is currently
widely distributed and appears to be fairly common, specific studies
have not been conducted to determine what the species' population
levels are in the Nolichucky and Little Tennessee river systems. Like
the Appalachian elktoe, the banded sculpin is generally found in riffle
areas and appears to be sensitive to sedimentation and water pollution.
Reductions of the population levels of the banded sculpin may be a
factor contributing to the limited distribution and numbers of the
Appalachian elktoe. However, evidence of reproduction of the
Appalachian elktoe in recent years, albeit limited in the Nolichucky
River population of the species, has been observed in both surviving
populations of the species (personal observation 1992), so a fish host
is present. In identifying and attempting to alleviate specific threats
to the Appalachian elktoe, the Service will seek additional research in
this area.
Issue 16: One of the mining companies asked whether any specimens
were found in 1993.
Service Response: During 1993, two specimens of the Appalachian
elktoe were observed in a riffle area of the Nolichucky River (at a
site where the species had been previously recorded) along the Yancey/
Mitchell County line, North Carolina (personal observation); and
several specimens (approximately 15 to 20) were observed by North
Carolina Wildlife Resources Commission personnel (John Alderman and
Christopher McGrath) and Service biologists in riffle and shoal areas
of the Little Tennessee River in Swain County, North Carolina.
Issue 17: One of the mining companies asked whether current
fluoride levels in the North Toe River are affecting the Appalachian
elktoe.
Service Response: The Service is not aware of any information
currently available that indicates that the allowable levels of
fluoride, currently permitted under existing NPDES permits for the
mining discharges into the North Toe River system, are having an
adverse effect on the Appalachian elktoe in the Toe and Nolichucky
Rivers.
During the surveys for the Appalachian elktoe in the Nolichucky
River system that were conducted in 1991 and 1992 by the Service, the
Service used maps that misidentified the Toe River as the North Toe
River (these maps did not show a Toe River). Subsequently, in the
September 3, 1993, proposed rule, the Service incorrectly identified
the Appalachian elktoe as occurring in the North Toe River. This
species is present in the Toe River but is not present in the North Toe
River (this has been corrected throughout this rule). The Toe River
portion of Nolichucky River population of the Appalachian elktoe is
currently located over 20 river miles from the nearest of the existing
mining discharges.
Issue 18: Congressman Taylor, Congressman Ballenger, the Mitchell
County Economic Development Commission, the Mayor of the town of Spruce
Pine, three mining companies, and several other respondents questioned
whether the Appalachian elktoe is truly endangered and requested that,
prior to listing, the Service conduct further studies concerning the
cause of the decline of the species and/or to determine whether the
Nolichucky River population of the species is declining.
Service Response: Intensive surveys of both historic and potential
habitat of the Appalachian elktoe have been conducted throughout the
upper Tennessee River system--the historic range of the species (see
``Background'' section above). The results of these surveys reveal that
the species has been eliminated from four of the eight rivers in which
it is known to have historically occurred, including the Little River,
the Swannanoa River, the Pigeon River, and the main stem of the French
Broad River. It has also been eliminated from Talula Creek, and has
essentially been eliminated from the Cane River (despite intensive
surveys of this river in recent years, only one old adult specimen was
found). This represents the loss of the species from at least two-
thirds of its historic range. Only two relatively small, isolated
populations of the Appalachian elktoe are known to survive.
The elimination of a species from the majority of its range and the
isolating and confining of surviving populations to small areas,
greatly increases the vulnerability of a species to extinction. It
reduces the species' ability to respond to changes (natural or manmade)
within its environment and to recover from impacts (large or repeated
small scale impacts) to its numbers, that a species with widely
dispersed, interconnected healthy populations would likely be able to
overcome.
The Service does not have specific information to estimate numbers
of individuals present in the Nolichucky River population of the
Appalachian elktoe. Neither does the Service have specific data
concerning whether this population is currently in decline, stable, or
increasing.
The Service, the North Carolina Wildlife Resources Commission, the
Tennessee Valley Authority, the Tennessee Technological University and
other agencies and researchers have conducted extensive surveys of the
Nolichucky River system, either specifically for the Appalachian elktoe
or as part of monitoring or research on other species. The results of
these surveys indicate that the Nolichucky River population of the
Appalachian elktoe is currently restricted to a relatively short reach
of the river system, that suitable habitat for the species is presently
limited within the river system, and that where the species has been
found it appears to exist in relatively low numbers. The Service
believes it is endangered regardless of whether it is currently
increasing, declining, or stable.
The Service believes there is sufficient information currently
available that shows that the Appalachian elktoe has been eliminated
from a significant portion of its historic range (see ``Background''
section above); and that the only two known surviving populations of
the species are restricted in range, insufficiently protected by other
existing regulatory mechanisms, are isolated from one another, and are
vulnerable to many of the same factors that resulted in its extirpation
elsewhere within its historic range. The Act requires the Service list
such species.
Issue 19: The Mayor of the town of Spruce Pine and two other
individuals stated that they felt there was not enough opportunity
provided by the Service for public input regarding the potential
listing of the Appalachian elktoe.
Service Response: The Service solicited comments concerning the
potential listing of the Appalachian elktoe from all interested parties
through notices of review (April 20, 1992, and August 21, 1992), the
proposed rule (published September 3, 1993), the notice of the public
hearing and reopening of the comment period (published January 21,
1994), the public hearing (held February 8, 1994), and associated
notification letters and legal notices published in the local
newspapers (see ``Background'' section and the first paragraph of
``Summary of Comments and Recommendations'' above).
Issue 20: One respondent inquired whether the government would pay
Federal employees' salaries and attorney fees, and whether the
government would pay citizens' salaries and attorney fees, if the
citizens decide to take the ``program'' the Service plans to implement
to court. The respondent did not specify what ``program'' he was
referring to.
Service Response: Whether the government would provide
representation to Service employees would be dependent upon the nature
of the law suit. Whether the government would provide attorney fees to
the plaintiff would also be dependent upon the nature and outcome of
the law suit.
Issue 21: One respondent quoted the representative from the
Tennessee Valley Authority who participated in the public hearing as
saying that ``the Appalachian elktoe would be used for cancer
research'' and he questioned how this could be if the species was
endangered.
Service Response: The representative from the Tennessee Valley
Authority was misquoted. He said that some species of freshwater
mussels are being used in cancer research, because freshwater mussels
do not develop tumors and appear to be immune to cancer. The rarity of
the Appalachian elktoe will likely preclude the use of the species in
such research efforts.
Issue 22: Nantahala Power and Light Company requested that the
Service take immediate steps to develop and implement a recovery plan
for the Appalachian elktoe.
Service Response: The Service will attempt to develop and
distribute a draft recovery plan for the Appalachian elktoe within one
year of date of this final rule, and a final recovery plan within two
years of this final rule. The recovery plan will be developed through
coordination with appropriate Federal and State agencies, county and
local governments, individuals knowledgeable about freshwater mussels,
and interested businesses, industries, and individuals.
Summary of Factors Affecting the Species
After a thorough review and consideration of all information
available, the Service has determined that the Appalachian elktoe
should be classified as an endangered species. Procedures found at
Section 4(a)(1) of the Act (16 U.S.C. 1531 et seq.) and regulations (50
CFR part 424) promulgated to implement the listing provisions of the
Act were followed. A species may be determined to be an endangered or
threatened species due to one or more of the five factors described in
Section 4(a)(1). These factors and their application to the Appalachian
elktoe (Alasmidonta raveneliana) are as follows:
A. The Present or Threatened Destruction, Modification, or Curtailment
of its Habitat or Range
Historic and recent collection records for the Appalachian elktoe
indicate that the species was once fairly widely distributed throughout
the upper Tennessee River system in North Carolina, including the
French Broad River system, the Little Tennessee River system, and the
Nolichucky River system (Clarke 1981, Biggins 1990, and Gordon 1991).
In Tennessee, the species is known only from its present distribution
in the Nolichucky River. The species apparently no longer exists in the
French Broad River system, where it was once fairly widely distributed;
and, with the exception of one small population each in the Nolichucky
River system and the main stem of the Little Tennessee River, the
species has been eliminated from these river systems as well. The
decline of this species throughout its range has been attributed to
several factors, including siltation resulting from mining, logging,
agricultural, and construction activities; runoff and discharge of
organic and inorganic pollutants from industrial, municipal,
agricultural, and other point and non-point sources; habitat
alterations associated with impoundments, channelization, and dredging;
and other natural and human-related factors that adversely modify the
aquatic environment. Many of these same factors threaten the two
remaining populations of the species.
The Little Tennessee River population, the healthiest of the two
remaining populations, inhabits a relatively short stretch of the river
located between Emory Lake at Franklin, Macon County, North Carolina,
and Fontana Reservoir in Swain County, North Carolina. This population
was likely reduced in size by the impoundment of these two reservoirs.
The Nolichucky River population appears to be restricted to scattered
pockets within a short reach of the main stem of the Nolichucky River
in Unicoi County, Tennessee, and Mitchell and Yancey Counties, North
Carolina, extending a short distance into the Toe River, Yancey and
Mitchell Counties, North Carolina. A single, adult specimen was also
collected a short distance up the Cane River (Nolichucky River system)
in Yancey County, North Carolina.
The most immediate threats to both remaining populations appear to
be associated with heavy silt loads and other pollutants (i.e.,
fertilizers, pesticides, heavy metals, oil, salts, organic wastes,
etc.) from residential and industrial developments, road and highway
construction/improvement projects, crop and livestock farming
activities, and other land disturbance activities occurring throughout
the rivers' watersheds. Much of the Nolichucky River in North Carolina
contains heavy loads of sediments from past and ongoing land
disturbance activities within its watershed, and suitable habitat for
the Appalachian elktoe appears to be limited in this river system.
Also, because both extant populations of the Appalachian elktoe are
restricted to short river reaches, each is extremely vulnerable to
extirpation from a single catastrophic event, such as a toxic chemical
spill or an activity resulting in a major river channel/habitat
modification.
B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
This freshwater mussel species is not commercially valuable, but
because it is extremely rare it could be sought by collectors. While
collecting or other intentional take is not presently identified as a
factor contributing to the species' decline, because the Appalachian
elktoe is extremely restricted in range, such take could pose a
significant threat to the species' continued existence if it should
occur. Federal listing would help control any indiscriminate taking of
individuals.
C. Disease or Predation
Since 1982, biologists and commercial mussel fishermen have
reported mussel die-offs in rivers and lakes throughout the United
States. The cause(s) of many of these die-offs is unknown, but disease
has been suggested as a possible factor.
Shells of the Appalachian elktoe are often found in muskrat middens
along the reach of the Little Tennessee River, where the species still
exists, and occasionally in middens along the Nolichucky River. The
species is also presumably consumed by other mammals, such as raccoons,
otter, and mink. While predation is not thought to be a significant
threat to a healthy mussel population, it could, as suggested by Neves
and Odum (1989), limit the recovery of endangered mussel species or
contribute to the local extirpation of mussel populations already
depleted by other factors. Predation would be of primary concern to the
Nolichucky River population of the Appalachian elktoe, which appears to
be very small.
D. The Inadequacy of Existing Regulatory Mechanisms.
The States of North Carolina and Tennessee prohibit taking of fish
and wildlife, including freshwater mussels, for scientific purposes
without a State collecting permit. However, State regulations do not
generally protect the species from other threats. Existing authorities
available to protect aquatic systems, such as the Clean Water Act,
administered by the Environmental Protection Agency (EPA) and the Army
Corps of Engineers, have not been fully utilized and may have led to
the degradation of aquatic environments in the Southeast Region, thus
resulting in a decline of aquatic species. The Little Tennessee River
population of the species is indirectly provided some Federal
protection from Federal actions and activities through the Act, due to
the fact that at least a portion of this population inhabits the same
stretch of river as the federally threatened spotfin chub (Cyprinella
[=Hybopsis] monacha) and the federally endangered little-wing pearly
mussel (Pegias fabula). However, the Nolichucky River population of the
species is not afforded this protection. Federal listing will provide
additional protection for the Appalachian elktoe throughout its range
by requiring Federal permits in order to take the species and by
requiring Federal agencies to consult with the Service when activities
they fund, authorize, or carry out may affect the species. Further,
listing will require consultation with the EPA in relationship to water
quality criteria, standards, and National Pollution Discharge
Elimination System permits under the Clean Water Act; and
implementation of actions to recover the species.
E. Other Natural or Manmade Factors Affecting Its Continued Existence.
Only two populations of this species are known to still exist. Both
are relatively small, particularly the Nolichucky River population, and
both are geographically isolated. This isolation prohibits the natural
interchange of genetic material between populations, and the small
population size reduces the reservoir of genetic variability within the
populations. It is possible that both the remaining populations of the
Appalachian elktoe may already be below the level required to maintain
long-term genetic viability. Because the remaining populations are
isolated, natural repopulation of an extirpated population would be
impossible without human intervention.
The Service has carefully assessed the best scientific and
commercial information available regarding the past, present, and
future threats faced by this species in determining to make this rule
final. Based on this evaluation, the preferred action is to list the
Appalachian elktoe as an endangered species. The species has been
eliminated from the French Broad River system, and its range has been
greatly reduced in the other two river systems (the Little Tennessee
River and the Nolichucky River systems) in which the species
historically occurred. Presently, only two small isolated populations
are known to survive. These populations are threatened by a variety of
factors, including road construction activities, residential and
commercial development, mining activities, farming and logging
activities, sewage and industrial effluent, and other manmade and
natural factors adversely affecting the aquatic environment. Due to the
species' history of population losses and the extreme vulnerability of
the two surviving populations, endangered status appears to be
appropriate for this species (see ``Critical Habitat'' section for a
discussion of why critical habitat is not being proposed for the
Appalachian elktoe).
Critical Habitat
Section 4(a)(3) of the Act requires that, to the maximum extent
prudent and determinable, the Secretary designate critical habitat at
the time the species is determined to be endangered or threatened. The
Service's regulations (50 CFR 424.12(a)(1)) state that designation of
critical habitat is not prudent when one or both of the following
situations exist: (1) the species is threatened by taking or other
activity and the identification of critical habitat can be expected to
increase the degree of threat to the species or (2) such designation of
critical habitat would not be beneficial to the species. The Service
finds that designation of critical habitat is not prudent for this
species. Such a determination would result in no known benefit to the
Appalachian elktoe.
Section 7(a)(2) and regulations codified at 50 CFR Part 402 require
Federal agencies to ensure, in consultation with and with the
assistance of the Service, that activities they authorize, fund, or
carry out are not likely to jeopardize the continued existence of
listed species or destroy or adversely modify their critical habitat,
if designated. Section 7(a)(4) requires Federal agencies to confer
informally with the Service on any action that is likely to jeopardize
the continued existence of a proposed species or result in the
destruction or adverse modification of proposed critical habitat. (See
``Available Conservation Measures'' section for a further discussion of
Section 7.) As part of the development of this rule, Federal and State
agencies were notified of the Appalachian elktoe's general
distribution, and they were requested to provide data on proposed
Federal actions that might adversely affect the species. Three highway
projects have been identified within, or in relatively close proximity
to, occupied habitat of the Appalachian elktoe. The Service is
currently involved in informal consultations regarding these projects.
Should any future projects be proposed in areas inhabited by this
mussel, the involved Federal agency will already have the general
distributional data needed to determine if the species may be affected
by their action; and if needed, more specific distributional
information would be provided.
The Appalachian elktoe occupies very restricted stream reaches
within only two river systems--the Little Tennessee River system and
the Nolichucky River system. Any significant adverse modification or
destruction of the species' habitat would likely jeopardize the
species' continued existence. Therefore, no additional protection for
the mussel would accrue from critical habitat designation that would
not also accrue from listing of the species. When listed, habitat
protection for the Appalachian elktoe will be accomplished through the
Section 7 jeopardy standard and Section 9 prohibitions against take.
In addition, the Appalachian elktoe is very rare, and taking for
scientific purposes and private collection could pose a threat if
specific site information were released. The publication of critical
habitat maps in the Federal Register and local newspapers and other
publicity accompanying critical habitat designation could increase the
collection threat and increase the potential for vandalism during the
often controversial critical habitat designation process. The locations
of populations of this species have consequently been described only in
general terms in this proposed rule. Any existing precise locality data
would be available to appropriate Federal, State, and local government
agencies from the Service office described in the Addresses section;
from the Service's Raleigh Field Office, P.O. Box 33726, Raleigh, North
Carolina 27636-3726; the Service's Cookeville Field Office, 446 Neal
Street, Cookeville, Tennessee 38501, and from the North Carolina
Wildlife Resources Commission, North Carolina Natural Heritage Program,
Tennessee Wildlife Resources Agency, and Tennessee Department of
Conservation.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition through listing encourages and results in
conservation actions by Federal, State, and private agencies, groups,
and individuals. The Act provides for possible land acquisition and
cooperation with the States and requires that recovery actions be
carried out for all listed species. The protection required of Federal
agencies and the prohibitions against taking and harm are discussed, in
part, below.
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as
endangered or threatened and with respect to its critical habitat if
any is being designated. Regulations implementing this interagency
cooperation provision of the Act are codified at 50 CFR Part 402.
Section 7(a)(2) requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of a listed species or to destroy or adversely
modify its critical habitat. If a Federal action may affect a listed
species or its critical habitat, the responsible Federal agency must
enter into formal consultation with the Service. The Service has
notified Federal agencies that may have programs that affect the
species. Federal activities that occur and impact the species include,
but are not limited to, the carrying out or the issuance of permits for
reservoir construction, stream alterations, wastewater facility
development, hydroelectric facility construction and operation,
forestry operations, and road and bridge construction. It has been the
experience of the Service, however, that nearly all Section 7
consultations can be resolved so that the species is protected and the
project objectives met.
The Act and implementing regulations found at 50 CFR 17.21 set
forth a series of general prohibitions and exceptions that apply to all
endangered wildlife. These prohibitions, in part, make it illegal for
any person subject to the jurisdiction of the United States to take
(includes harass, harm, pursue, hunt, shoot, wound, kill, trap, or
collect; or to attempt any of these), import or export, ship in
interstate commerce in the course of a commercial activity, or sell or
offer for sale in interstate or foreign commerce any listed species. It
also is illegal to possess, sell, deliver, carry, transport, or ship
any such wildlife that has been taken illegally. Certain exceptions
apply to agents of the Service and State conservation agencies.
Permits may be issued to carry out otherwise prohibited activities
involving endangered wildlife species under certain circumstances.
Regulations governing permits are at 50 CFR 17.22, and 17.23. Such
permits are available for scientific purposes, to enhance the
propagation or survival of the species, and/or for incidental take in
connection with otherwise lawful activities.
It is the policy of the Service (59 FR 34272) to identify to the
maximum extent practicable at the time a species is listed those
activities that would or would not constitute a violation of section 9
of the Act. The intent of this policy is to increase public awareness
of the effect of the listing on proposed and ongoing activities within
a species' range. During the public comment period the Service received
inquiries about the effect listing would have on the mining industry
and farming practices. As previously discussed in the Summary of
Comments and Recommendations section, the Service believes that, based
on the current available information, the existing discharges
associated with the mining industry are not likely to be affected by
this listing and will not result in a violation of section 9, provided
these activities are carried out in accordance with existing
regulations and permit requirements, such as, projects subject to
section 404 of the Clean Water Act and discharges regulated under the
National Pollutant Discharge Elimination System (NPDES). The Service is
not aware of any current farming practices will result in a violation
of section 9. Activities that the Service believes could potentially
result in ``take'' of the Appalachian elktoe include, but are not
limited to:
(1) Unauthorized collecting or handling of the species;
(2) Unauthorized destruction/alteration of the species habitat
(i.e., in-stream dredging, rock removal, channelization, discharge of
fill material, operation of heavy equipment within the stream channel,
etc.);
(3) Violations of discharge permits;
(4) Pesticide applications in violation of label restrictions; and
(5) Illegal discharges or dumping of toxic chemicals, silt,
fertilizers, pesticides, heavy metals, oil, organic wastes or other
pollutants into waters supporting the species.
Questions regarding whether specific activities will constitute a
violation of section 9 should be directed to the Field Supervisor of
the Service's Asheville Office (see ADDRESSES section). Requests for
copies of the regulations concerning listed animals and general
inquiries regarding prohibitions and permits may be addressed to the
U.S. Fish and Wildlife Service, Southeast Regional Office, Ecological
Services Division, Threatened and Endangered Species, 1875 Century
Boulevard, Atlanta, Georgia 30345-3301 (Telephone 404/679-7099,
Facsimile 404/679-7081).
National Environmental Policy Act
The Fish and Wildlife Service has determined that an Environmental
Assessment, as defined under the authority of the National
Environmental Policy Act of 1969, need not be prepared in connection
with regulations adopted pursuant to Section 4(a) of the Endangered
Species Act of 1973, as amended. A notice outlining the Service's
reasons for this determination was published in the Federal Register on
October 25, 1983 (48 FR 49244).
References Cited
A complete list of all references cited herein is available upon
request from the Asheville field office (see ADDRESSES above)
Author
The primary author of this proposed rule is John A. Fridell, U.S.
Fish and Wildlife Service, 330 Ridgefield Court, Asheville, North
Carolina 28806 (704/665-1195, Ext. 225).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, and Transportation.
Regulation Promulgation
Accordingly, part 17, subchapter B of chapter I, title 50 of the
Code of Federal Regulations, is amended as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Amend Sec. 17.11(h) for animals by adding the following, in
alphabetical order under CLAMS, to the List of Endangered and
Threatened Wildlife, to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate population
-------------------------------------------------- Historic range where endangered or Status When listed Critical Special
Common name Scientific name threatened habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
Clams
* * * * * * *
Elktoe, Appalachian..... Alasmidonta raveneliana U.S.A. (NC, TN)........ NA..................... E 563 NA NA
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dated: August 31, 1994.
Mollie H. Beattie,
Director, Fish and Wildlife Service.
[FR Doc. 94-28935 Filed 11-22-94; 8:45 am]
BILLING CODE 4310-55-P
