2024-20157. Endangered and Threatened Wildlife and Plants; Endangered Species Status for Kentucky Creekshell and Designation of Critical Habitat

Table 1—Proposed Critical Habitat Units for Kentucky Creekshell

[Area estimates reflect all land within critical habitat unit boundaries.]

Critical habitat unit number/name	Adjacent riparian land ownership	Length of unit in miles (kilometers)	Occupied?
Unit 1: Green River, Subunit 1a (Green River)	Private, NPS, State agency	72.21 (116.2)	Yes.
		0.67 (1.1)
		0.12 (0.2)
		Total = 73.0 (117.5)
Unit 1: Green River, Subunit 1b (Green River)	Private, NPS	50.2 (80.8)	No.
		7.5 (12.1)
		Total = 57.7 (92.9)
Unit 2: Barren River	Private	79.9 (128.6)	No.
Unit 3: Gasper River	Private	52.8 (85)	Yes.
Unit 4: Drakes Creek	Private	55.1 (88.7)	Yes.
Unit 5: Trammel Creek	Private	15.9 (25.6)	Yes.
Unit 6: Salt Lick Creek	Private	19.1 (30.7)	Yes.
Unit 7: Russell Creek	Private	53.7 (86.4)	Yes.
Unit 8: Middle Nolin River, Subunit 8a (Nolin River)	Private, USACE, State agency	53.7 (86.4)	No.
		0.38 (0.63)
		0.39 (0.68)
		Total = 54.5 (87.7)
Unit 8: Middle Nolin River Subunit 8b (Round Stone Creek)	Private, USACE	9.8 (15.9)	Yes.
		0.02 (0.03)
		Total = 9.9 (15.9)
Unit 9: Upper Nolin River	Private, State Agency	21.3 (34.3)	Yes.
		2.6 (4.2)
		Total = 23.9 (38.5)
Unit 10: Rough River Subunit 10a (Rough River and Meeting Creek)	Private, USACE	35.8 (57.6)	Yes.
		1.6 (2.7)
		Total = 37.5 (60.4)
Unit 10: Rough River Subunit 10b (Clifty Creek)	Private, USACE	11.3 (18.2)	No.
		0.34 (0.54)
( print page 76212)
		Total = 11.6 (18.7)
Total		544.6 (876.4)
Note: Miles may not sum due to rounding.

We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for Kentucky creekshell, below.

Unit 1: Green River

Unit 1 consists of a total of 130.7 river miles (210.4 km) within two subunits; one that is occupied, and one that is unoccupied habitat. Subunit 1a (Green River) is occupied, while Subunit 1b (Green River) is unoccupied.

Subunit 1a (Green River): Subunit 1a consists of 73.0 river miles (117.5 km) of Green and Hart Counties, Kentucky, from the confluence of Russell Creek near Greensburg, Kentucky, downstream to the Edmonson County line in Mammoth Cave National Park. Nearly all (approximately 99 percent) of the lands adjacent to Subunit 1a are privately owned including lands managed under the Green River Watershed conservation easement by The Nature Conservancy. The remaining lands adjacent to this subunit (one percent) include parts of the Mammoth Cave National Park, managed by the National Park Service, and Western Kentucky University's Upper Green River Biological Preserve, which is managed by the State of Kentucky. Subunit 1a is considered occupied by the species and contains the physical or biological features 1 through 6 (See Summary of Essential Physical or Biological Features) essential to the conservation of the species.

Threats identified within this unit include alteration of the natural flow regime; significant alteration of water quality and nutrient pollution; urbanization of the landscape; land use activities that remove large areas of forested wetlands and riparian systems; dam, culvert and pipe, or other instream installations that create barriers to movement; impacts from invasive species; changes and shifts in seasonal temperature and precipitation patterns as a result of climate change; and other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water. Special management considerations or protection measures to reduce or alleviate the threats may include use of best management practices designed to reduce sedimentation, erosion, and bank destruction; protection of riparian corridors and woody vegetation; protection of groundwater and spring-fed streams and moderation of surface and ground water withdrawals to maintain natural flow regimes; use of best management practices when releasing water from reservoirs/impoundments; improved stormwater management; reduction of other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water; removal of instream barriers; prevention of instream gravel mining; and controlling invasive species (see Special Management Considerations or Protection).

Subunit 1b (Green River): Subunit 1b consists of 57.7 river miles (92.9 km) of Edmonson, Butler, and Warren Counties, Kentucky. The unit is located from the Edmonson County line in Mammoth Cave National Park to the confluence with the Barren River in Woodbury, Kentucky. Approximately 87 percent of the lands adjacent to Subunit 1b are owned by private entities, and the remaining 13 percent is managed by the National Park Service for the Mammoth Cave National Park. Subunit 1b is currently unoccupied by the species and contains the physical or biological features 1 through 4, and 6 (See Summary of Essential Physical or Biological Features) essential to the conservation of the species. The unit will contain physical and biological feature 5 once Green River Lock and Dam 5 is completely removed (see below for more details).

Threats identified within this unit includes alteration of the natural flow regime; significant alteration of water quality and nutrient pollution; urbanization of the landscape; land use activities that remove large areas of forested wetlands and riparian systems; dam, culvert and pipe, or other instream installations that create barriers to movement; impacts from invasive species; changes and shifts in seasonal temperature and precipitation patterns as a result of climate change; and other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water. Special management considerations or protection measures to reduce or alleviate the threats may include use of best management practices designed to reduce sedimentation, erosion, and bank destruction; protection of riparian corridors and woody vegetation; protection of groundwater and spring-fed streams and moderation of surface and ground water withdrawals to maintain natural flow regimes; use of best management practices when releasing water from reservoirs/impoundments; improved stormwater management; reduction of other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water; removal of instream barriers; prevention of instream gravel mining; and controlling invasive species.

Suitable habitat in this area was lost during the construction of Green River Lock and Dam (GRLD) 5 and 6 in the early 1900s, which isolated the Green River populations from the Barren River populations; however, with the removal of GRLD 6 in 2017 and partial removal of GRLD 5 in 2022 (with full removal expected in fall 2024), suitable habitat has been gradually restored. Although some evidence suggests that Kentucky creekshell populations in subunit 1b may not have been as abundant as in subunit 1a due to changes in karst landscape characteristics, experts still believe that they were sufficient to facilitate genetic exchange between the Green River and Barren River populations (Compton 2023, pers. comm.).

The Green River mainstem plays a crucial role in the conservation of the Kentucky creekshell as it serves as the sole link between populations in the Green River and populations in the Barren River. Reintroduction efforts in this subunit will help preserve genetic diversity and facilitate the exchange of genes between populations in Unit 1a, which is occupied and begins at the confluence of Russell Creek near Greensburg, and populations in Unit 7, upstream from Unit 1a, downstream to the confluence of the Barren River near ( print page 76213) Woodbury. For these reasons, this unit is essential for the conservation of the species.

Unit 2: Barren River

Unit 2 consists of 79.9 river miles (128.6 km) of Barren River in Butler, Warren, Allen, and Barren Counties, Kentucky, from the Barren River Lake dam in Barren and Allen Counties to the confluence of the Green River in Butler and Warren Counties. Approximately 79.4 river miles (127.8 km; 99 percent) of riparian lands that border the unit are in private ownership, and 0.46 stream mile (0.74 km; less than 1 percent) is in Federal (Barren River Lake; USACE) ownership. Unit 2 is considered currently unoccupied by the species and contains the physical or biological features 1 through 4, and 6 (See Summary of Essential Physical or Biological Features) essential to the conservation of the species.

Threats identified within this unit includes alteration of the natural flow regime, alteration of instream substrate, urbanization of the landscape, impacts from invasive species, and dam, culvert and pipe, or other instream installations. Special management considerations or protection measures to reduce or alleviate the threats may include the use of best management practices designed to reduce sedimentation, erosion, and bank destruction; protection of riparian corridors and woody vegetation; protection of ground water and spring-fed streams and moderation of surface and ground water withdrawals to maintain natural flow regimes; use of best management practices when releasing water from reservoirs/impoundments; improved stormwater management; reduction of other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water; removal of instream barriers; and controlling impacts from invasive species (see Special Management Considerations or Protection).

This unit serves a critical role in conservation by providing the sole connection between populations in the Barren River tributaries and those in the Green River; thus, it is essential for the conservation of the Kentucky creekshell. The species was extirpated along the mainstem Barren River following the construction of Barren River Lock and Dam 1 in the 1930s, which created extensive unsuitable habitat for the Kentucky creekshell and its host fish, leading to the isolation and restriction of populations to the tributaries. However, the dam's removal in 2022 has led to the rapid restoration of suitable habitat along the river.

An influence on the species in this unit is a small rock dam barrier between the Gasper River and the Drakes/Trammel Creek populations. While this barrier may impede gene flow, experts believe it may still allow for some connectivity, resembling a large riffle through which the banded sculpin (Kentucky creekshell host fish) could likely pass (Compton 2023, pers. comm.). To reestablish gene flow between the Barren River tributaries and the Green River populations, reintroductions of captively propagated individuals should be undertaken along this section.

Unit 3: Gasper River

Unit 3 consists of 52.8 river miles (85.0 km) of the Gasper River, Wiggington Creek, and Clear Fork Creek in Warren and Logan Counties, Kentucky. This unit includes Wigginton Creek from the headwaters near Rogers, Kentucky, to the confluence with Gasper River; Clear Fork Creek from the headwaters near US HWY 68 bridge to the confluence with Gasper River; and the Gasper River from headwaters near Auburn, Kentucky, to the confluence with the Barren River. All riparian lands that border the unit are in private ownership. Unit 3 is considered occupied by the species and contains the physical or biological features 1 through 5 (see Summary of Essential Physical or Biological Features) essential to the conservation of the species.

Threats identified within this unit includes significant alteration of water quality and nutrient pollution; alteration of instream substrate, stream channels, and stream banks; impacts from invasive species; changes and shifts in seasonal temperature and precipitation patterns as a result of climate change; and other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water. Special management considerations or protection measures to reduce or alleviate the threats may include best management practices designed to reduce sedimentation, erosion, and bank destruction; protection of riparian corridors and woody vegetation; protection of ground water and spring-fed streams; reduction of other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water; prevention of instream gravel mining; and controlling invasive species (see Special Management Considerations or Protection).

The mainstem Gasper River connects Wiggington Creek and Clear Fork Creek, and other historically occupied tributaries, with the mainstem Barren River. Including this unit protects occupied habitat for improved redundancy throughout the range and protects connections to other occupied habitat in these areas, all of which contributes to the conservation of the Kentucky creekshell.

Unit 4: Drakes Creek

Unit 4 consists of 55.1 river miles (88.7 km) of Drakes Creek, West Fork Drakes Creek, and Lick Creek in Warren and Simpson Counties, Kentucky. This unit includes Drakes Creek from the confluence of West Fork Drakes Creek and Middle Fork Drakes Creek downstream to the confluence with the Barren River near Bowling Green, Kentucky; West Fork Drakes Creek from the West Fork Drakes Creek Reservoir in Franklin, Kentucky, downstream to the confluence with Drakes Creek; and Lick Creek from the Scottsville Road bridge to the confluence with West Fork Drakes Creek. All of the riparian lands that border the unit are in private ownership. Unit 4 is considered occupied by the species and contains the physical or biological features 1 through 4 (see Summary of Essential Physical or Biological Features) essential to the conservation of the species.

Threats identified within this unit include significant alteration of water quality and nutrient pollution; alteration of instream substrate, stream channels, and stream banks; impacts from invasive species; changes and shifts in seasonal temperature and precipitation patterns as a result of climate change; and other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water. Special management considerations or protection measures to reduce or alleviate the threats may include best management practices designed to reduce sedimentation, erosion, and bank destruction; protection of riparian corridors and woody vegetation; protection of ground water and spring-fed streams; reduction of other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water; prevention of instream gravel mining; and controlling invasive species (see Special Management Considerations or Protection).

Unit 5: Trammel Creek

Unit 5 consists of 15.9 river miles (25.6 km) of Trammel Creek in Warren and Allen Counties, Kentucky, from the ( print page 76214) confluence with John's Creek near Butlersville, Kentucky, downstream to its confluence with Drakes Creek. Unit 5 is considered occupied by the species and contains the physical or biological features 1 through 5 (see Summary of Essential Physical or Biological Features).

Threats identified within this unit include significant alteration of water quality and nutrient pollution; alteration of instream substrate, stream channels, and stream banks; impacts from invasive species; changes and shifts in seasonal temperature and precipitation patterns as a result of climate change; and other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water. Special management considerations or protection measures to reduce or alleviate the threats may include best management practices designed to reduce sedimentation, erosion, and bank destruction; protection of riparian corridors and woody vegetation; protection of ground water and spring-fed streams; reduction of other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water; prevention of instream gravel mining; and controlling invasive species (see Special Management Considerations or Protection).

This stream is a major tributary of Drakes Creek, which allows for genetic exchange and redundancy in the Drakes Creek system and Barren River system.

Unit 6: Salt Lick Creek

Unit 6 consists of 19.1 river miles (30.7 km) of Salt Lick Creek in Monroe County, Kentucky, and Macon County, Tennessee, from the headwaters south of Red Boiling Springs, Tennessee, to the confluence with Long Fork, Kentucky. All of the riparian lands that border the unit are in private ownership. Unit 6 is considered occupied by the species and contains the physical or biological features 1 through 5 (see Summary of Essential Physical or Biological Features) essential to the conservation of the species.

Threats identified within this unit include alteration of instream substrate, stream channels, and stream banks; land use activities that remove large areas of forested wetlands and riparian systems; changes and shifts in seasonal temperature and precipitation patterns as a result of climate change; and other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water. Special management considerations or protection measures to reduce or alleviate the threats may include best management practices designed to reduce sedimentation, erosion, and bank destruction; protection of riparian corridors and woody vegetation; protection of ground water and spring-fed streams; reduction of other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water; and prevention of instream gravel mining (see Special Management Considerations or Protection).

This unit is one of the most isolated units within the Kentucky creekshell range as it is the only known population upstream of Barren River Lake. This population is also the most recently discovered population, found in 2019 during a survey of the upper Barren River basin in Tennessee. This unit provides improved redundancy and potential representation across the species' range and could be used as a source population for future propagation efforts upstream of Barren River Lake,, both of which will contribute to the conservation of the species.

Unit 7: Russell Creek

Unit 7 consists of 53.7 river miles (86.4 km) of Russell Creek in Green and Adair Counties, Kentucky, from the confluence with Cabin Fork Creek approximately 5 miles southeast of Columbia downstream to the confluence with the Green River south of Greensburg, Kentucky. All the riparian lands that border the unit are in private ownership. Unit 7 is considered occupied by the species and contains the physical or biological features 1 through 5 (see Summary of Essential Physical or Biological Features) essential to the conservation of the species.

Threats identified within this unit include alteration of the natural flow regime; significant alteration of water quality and nutrient pollution; alteration of instream substrate, stream channels, and stream banks; urbanization of the landscape; land use activities that remove large areas of forested wetlands and riparian systems; changes and shifts in seasonal temperature and precipitation patterns as a result of climate change; and other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water. Special management considerations or protection measures to reduce or alleviate the threats may include best management practices designed to reduce sedimentation, erosion, and bank destruction; protection of riparian corridors and woody vegetation; protection of ground water and spring-fed streams; changes and shifts in seasonal temperature and precipitation patterns as a result of climate change; reduction of other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water; and prevention of instream gravel mining (see Special Management Considerations or Protection).

Experts believe the species can be found all the way to the confluence of the Green River, given the flow regimes and suitable substrates throughout the reach, although in likely very small numbers (Compton 2023, pers. comm.). This unit provides improved redundancy across the species' range as it is the only known population upstream of the mainstream Green River population. Additionally, this unit offers the shortest distance to connect with the mainstem Green River population to reestablish gene flow between these units and contributes to the conservation of the species.

Unit 8: Middle Nolin River

Unit 8 consists of a total of 64.4 river miles (103.6 km) with two subunits: one occupied and one unoccupied by the Kentucky creekshell. Subunit 8a (Nolin River) is occupied, while Subunit 8b (Round Stone Creek) is unoccupied.

Subunit 8a(Nolin River): Subunit 8a consists of 54.5 river miles (87.7 kilometers) of the Nolin River in Larue, Hardin, Grayson, and Hart Counties, Kentucky. Subunit 8a extends from the confluence of the north and south fork of the Nolin River west of Hodgenville, Kentucky, downstream to the confluence of Round Stone Creek south of Millerstown, Kentucky. Approximately 99 percent of the lands adjacent to subunit 8a are privately owned, and the remaining are Federal lands managed by the USACE for Nolin River Recreation Area and State lands of Kentucky State Department of Natural Resources. Subunit 8a is considered occupied by the species and contains the physical or biological features 1 through 4 (see Summary of Essential Physical or Biological Features) essential to the conservation of the species.

Threats identified within this unit include alteration of the natural flow regime; alteration of instream substrate, stream channels, and stream banks; land use activities that remove large areas of forested wetlands and riparian systems; urbanization of the landscape; dam, culvert and pipe, or other instream installations that create barriers to movement for the Kentucky creekshell or its host fish; impacts from invasive species; changes and shifts in seasonal ( print page 76215) temperature and precipitation patterns as a result of climate change; and other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water. Special management considerations or protection measures to reduce or alleviate the threats may include the use of best management practices designed to reduce sedimentation, erosion, and bank destruction; protection of riparian corridors and woody vegetation; protection of ground water and spring-fed streams and moderation of surface and ground water withdrawals to maintain natural flow regimes; reduction of other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water; removal of instream barriers; prevention of instream gravel mining; and controlling invasive species (see Special Management Considerations or Protection).

Subunit 8b (Round Stone Creek): Subunit 8b consists of 9.9 river miles (15.9 km) of Round Stone Creek in Hart County, Kentucky. Subunit 8b extends from the origins of the stream at Blue Hole Spring to the confluence with the mainstem Nolin River. Approximately 99 percent of riparian lands adjacent to subunit 8b are in private ownership. The rest (less than 0.5 percent) are managed by the USACE in the Nolin River Recreation Area. Subunit 8b is considered unoccupied by the species and contains the physical or biological features 1 through 4 (see Summary of Essential Physical or Biological Features) essential to the conservation of the species.

Threats identified within this unit include alteration of the natural flow regime; alteration of instream substrate, stream channels, and stream banks; land use activities that remove large areas of forested wetlands and riparian systems; urbanization of the landscape; dam, culvert and pipe, or other instream installations that create barriers to movement for the Kentucky creekshell or their host fish; impacts from invasive species; changes and shifts in seasonal temperature and precipitation patterns as a result of climate change; and other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water. Special management considerations or protection measures to reduce or alleviate the threats may include the use of best management practices designed to reduce sedimentation, erosion, and bank destruction; protection of riparian corridors and woody vegetation; protection of ground water and spring-fed streams and moderation of surface and ground water withdrawals to maintain natural flow regimes; reduction of other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water; removal of instream barriers; prevention of instream gravel mining; and controlling invasive species (see Special Management Considerations or Protection).

Round Stone Creek, a tributary in the lower section of the Nolin River may provide a location for reintroduction that would augment the overall Nolin River population. Relic shells have been found in the mouth of Round Stone Creek, and the stream's source is two springs, the species' associated habitats. Protection of spring-fed habitat in this tributary off the main stem channel could reduce the effects of potential catastrophic events. Experts believe this stream segment may still hold Kentucky creekshell (Compton 2023, pers. comm.), which would contribute genetic variation (representation) to the species, as well as improved redundancy in a degraded system. In addition, this stream is the most logical place for augmentation/reintroductions to begin for lower sections of the Nolin River, all of which would contribute to the conservation of the species. For these reasons, this unit is essential to the conservation of the species.

Unit 9: Upper Nolin River

Unit 9 consists of 23.9 river miles (38.5 km) of the Nolin River, South Fork Nolin River, and Walters Creek in Larue County, Kentucky. Approximately 21.3 stream miles (34.3 km; 89 percent) of riparian lands that border the unit are in private ownership, and 2.6 stream miles (4.2 km; 11 percent) are managed by the State Department of Natural Resources for the Kentucky Department of Agriculture. This unit includes the South Fork Nolin River from Buffalo, Kentucky, downstream to its confluence with the North Fork Nolin River and Walters Creek from its headwaters near J.E. Jones Road to its confluence with the South Fork Nolin Creek. Unit 9 is considered occupied by the species and contains the physical or biological features 1 through 5 (see Summary of Essential Physical or Biological Features) essential to the conservation of the species.

Threats identified within this unit include significant alteration of the natural flow regime; alteration of water quality and nutrient pollution; alteration of instream substrate, stream channels, and stream banks; land use activities that remove large areas of forested wetlands and riparian systems; dam, culvert and pipe, or other instream installations that create barriers; changes and shifts in seasonal temperature and precipitation patterns as a result of climate change; and other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water. Special management considerations or protection measures to reduce or alleviate the threats may include use of best management practices designed to reduce sedimentation, erosion, and bank destruction; protection of riparian corridors and woody vegetation; protection of ground water and spring-fed streams and moderation of surface and ground water withdrawals to maintain natural flow regimes; reduction of other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water; and the removal of instream barriers (see Special Management Considerations or Protection).

This unit is the only area in the upper Nolin River section known to have Kentucky creekshell populations. Given the consistent numbers of individuals found in this area, this section has been the source population for Nolin River stock and augmentation from propagated individuals and has been stocked at multiple locations to increase species abundance. This area is vitally important for the conservation of the species and future recovery of the Nolin River populations.

Unit 10: Rough River

Unit 10 consists of 49.1 stream miles (79.1 km) with two subunits; one occupied and one unoccupied. Subunit 10a (Rough River and Meeting Creek) is occupied, while Subunit 10b (Clifty Creek) is unoccupied.

Subunit 10a (Rough River and Meeting Creek): Subunit 10a consists of 37.5 river miles (60.4 km) of the Rough River in Breckinridge, Hardin, and Grayson Counties, Kentucky. This subunit includes the Rough River from the Hardinsburg Road bridge downstream to its confluence with Meeting Creek and Meeting Creek from its confluence with Petty Creek downstream to its confluence with Rough River. Approximately 96 percent of the lands adjacent to subunit 10a are privately owned; the remaining 4 percent are managed by the USACE for Rough River Lake. Subunit 10a is considered occupied by the species and contains the physical or biological features 1 through 4 (see Summary of Essential Physical or Biological Features) essential to the conservation of the species.

Threats identified within this unit include alteration of the natural flow regime; significant alteration of water ( print page 76216) quality and nutrient pollution from a variety of activities; alteration of instream substrate, stream channels, and stream banks from a variety of activities; land use activities that remove large areas of forested wetlands and riparian systems; dam, culvert and pipe, or other instream installations that create barriers to movement for the Kentucky creekshell, or their host fish; changes and shifts in seasonal temperature and precipitation patterns as a result of climate change; and other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water. Special management considerations or protection measures to reduce or alleviate the threats may include use of best management practices designed to reduce sedimentation, erosion, and bank destruction; protection of riparian corridors and woody vegetation; protection of ground water and spring-fed streams; reduction of other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water; and removal of instream barriers. (see Special Management Considerations or Protection).

This unit has the highest number of individuals found (57) since 2003 including multiple age classes observed during the collections. It could be characterized as the most resilient unit among all 10 analytical units. Including this unit protects occupied habitat for improved redundancy throughout the species' range.

Subunit 10b (Clifty Creek): Subunit 10b consists of 11.6 river miles (18.7 km) of Clifty Creek in Grayson County, Kentucky, from Elizabethtown Road bridge downstream to Rough River Lake. Approximately 97 percent of the lands adjacent to subunit 10b are owned by private entities, while the remainder is managed by the USACE for Rough River Lake backwaters. Subunit 10b is considered unoccupied by the species and contains the physical or biological features 1 through 4 (see Summary of Essential Physical or Biological Features) essential to the conservation of the species.

Threats identified within this unit include alteration of the natural flow regime; significant alteration of water quality and nutrient pollution from a variety of activities; alteration of instream substrate, stream channels, and stream banks from a variety of activities; land use activities that remove large areas of forested wetlands and riparian systems; dam, culvert and pipe, or other instream installations that create barriers to movement for the Kentucky creekshell or their host fish; impacts from invasive species; changes and shifts in seasonal temperature and precipitation patterns as a result of climate change; and other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water. Special management considerations or protection measures to reduce or alleviate the threats may include use of best management practices designed to reduce sedimentation, erosion, and bank destruction; protection of riparian corridors and woody vegetation; protection of ground water and spring-fed streams and moderation of surface and ground water withdrawals to maintain natural flow regimes; reduction of other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water; the removal of instream barriers; prevention of instream gravel mining; and controlling invasive species. (see Special Management Considerations or Protection).

Clifty Creek is a nearby tributary of the mainstem Rough River with suitable substrates and is heavily influenced by springs. Experts believe the species could be present in Clifty Creek and was likely there historically (Compton 2023, pers. comm.). Clifty Creek is the most promising location for reintroduction/augmentation in unit 9, which would add redundancy to the most resilient unit. It is essential for the conservation of the species.

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.

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 (50 CFR 402.02).

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 formal consultation that:

(1) Can be implemented in a manner consistent with the intended purpose of the action,

(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 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. Reinitiation of consultation is required and shall be requested by the Federal agency, where discretionary Federal involvement or control over the action has been retained or is authorized by law and: (1) If the amount or extent of taking specified in the incidental take statement is exceeded; (2) if 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) if 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) if a new species is listed or critical habitat designated that may be affected by the identified action. As provided in 50 CFR 402.16, the requirement to reinitiate consultations for new species listings or critical ( print page 76217) 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 that our Federal Register documents “shall, to the maximum extent practicable also include a brief description and evaluation of those activities (whether public or private) which, in the opinion of the Secretary, if undertaken may adversely modify [critical] habitat, or may be affected by such designation.” Activities that may be affected by designation of critical habitat for the Kentucky creekshell include those that may affect the physical or biological features of the Kentucky creekshell's critical habitat (see Physical or Biological Features Essential to the Conservation of the Species).

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 (hereafter, the “2016 Policy”; 81 FR 7226, February 11, 2016), both of which were developed jointly with 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 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 section 4(b)(2) exclusion analysis.

Executive Order (E.O.) 14094 supplements and reaffirms E.O. 12866 and E.O. 13563 and directs 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) as amended by E.O. 14094). Therefore, our consideration of economic impacts uses a screening analysis to assess whether a designation of critical habitat for Kentucky creekshell is likely to exceed the economically significant threshold. ( print page 76218)

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 Kentucky creekshell (IEc 2024, 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 economic analysis of the proposed critical habitat designation for the Kentucky creekshell and 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 Kentucky creekshell, first we identified, in the IEM dated March 26, 2024, probable incremental economic impacts associated with the following categories of activities: (1) Development along the Interstate 65 corridor; (2) installation of expanded broadband internet; (3) solar energy development; (4) pipeline maintenance projects; (5) bridge and road replacements and rehabilitations; and (6) water control activities. 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 Kentucky creekshell 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., difference between the jeopardy and adverse modification standards) for the Kentucky creekshell's critical habitat. Because the designation of critical habitat for Kentucky creekshell 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 Kentucky creekshell totals approximately 544.6 river miles, of which 159.1 miles are considered to be unoccupied by the species. Critical habitat designation for the Kentucky creekshell is unlikely to generate costs exceeding $200 million in a single year. Therefore, the rule is unlikely to meet the threshold for an economically significant rule, with regard to costs, under E.O. 12866. In fact, the total annual incremental cost of critical habitat designation for the Kentucky creekshell is anticipated to be a maximum of $51,300 per year (2024 dollars). The total incremental costs of critical habitat designation for the Kentucky creekshell are anticipated to be between approximately $438,200 to $513,100 over the next 10 years, or approximately $43,800 to $51,300 annually.

We have determined that, in occupied Kentucky creekshell critical habitat, costs are likely to be limited to administrative costs. This is primarily because, regardless of whether critical habitat is designated, all projects with a Federal nexus would be subject to section 7 requirements, and conservation efforts requested to avoid jeopardizing the continued existence of the species would be substantially similar to those that would be recommended to avoid adverse modification. In addition, in both occupied and unoccupied habitat for Kentucky creekshell, conservation efforts for other listed species with ranges and/or proposed critical habitat areas that overlap the Kentucky creekshell proposed designation are likely to provide protections to the Kentucky creekshell, even absent critical habitat designation for the Kentucky creekshell. Of the more than 540 miles of proposed designated critical habitat, 13 federally listed mussel species' ranges overlap with Kentucky creekshell: between 33 miles and 208 miles for each species. Additionally, three critical habitat units for federally listed mussel species overlap with the Kentucky creekshell's critical habitat: between 73 miles and 156 miles for each species. Total overlap across all species is 208 miles (38%) and the majority of these overlaps occur ( print page 76219) in the mainstem Green River and mainstem Barren River. These species have similar habitat requirements to the Kentucky creekshell.

The incremental costs associated with section 7 consultations for the Kentucky creekshell in unoccupied habitat are likely to include administrative costs resulting from consultations as well as costs associated with potential additional conservation efforts. This is primarily because activities with a Federal nexus in unoccupied areas would not be subject to section 7 consultation requirements for the Kentucky creekshell absent the designation of critical habitat because the species is not present. Depending on the action and the level of its impact on the habitat, the action agency or project proponent may need to undertake conservation activities, which may have an associated cost.

We are soliciting data and comments from the public on the economic analysis discussed above. During the development of a final designation, we will consider the information presented in the economic analysis 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 authority of section 4(b)(2), 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, we 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 us to consider those impacts whenever it designates critical habitat. Accordingly, if DoD, the 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 Kentucky creekshell are not owned or managed by the DoD or DHS, and, therefore, we anticipate no impact on national security or homeland security.

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 safe harbor agreements (SHAs), candidate conservation agreements with assurances (CCAAs) or “conservation benefit agreement” or “conservation agreement” (CBAs) (CBAs are a new type of agreement replacing SHAs and CCAAs in use after April 2024 (89 FR 26070; April 12, 2024)) or HCPs, 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.

Summary of Exclusions Considered Under 4(b)(2) of the Act

In preparing this proposal, we have determined that no HCPs or other management plans for the Kentucky creekshell currently exist, and the proposed designation does not include any Tribal lands or trust resources or any lands for which designation would have any economic or national security impacts. Therefore, we anticipate no impact on Tribal lands, partnerships, or HCPs from this proposed critical habitat designation, and thus, as described above, we are not considering excluding any particular areas on the basis of the presence of conservation agreements or impacts to trust resources.

However, if through the public comment period we receive information that we determine indicates that there are potential economic, national security, or other relevant impacts from designating particular areas as critical habitat, then as part of developing the final designation of critical habitat, we will evaluate that information and may conduct a discretionary exclusion analysis to determine whether to exclude those areas under authority of section 4(b)(2) and our implementing regulations at 50 CFR 424.19. If we receive a request for exclusion of a particular area and after evaluation of supporting information we do not exclude, we will fully describe our decision in the final rule for this action. ( print page 76220)

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, and 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 proposed rule in a manner consistent with these requirements.

Executive Order 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 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 “to the extent permitted by law” when undertaking actions identified as significant energy actions (66 FR 28355; May 22, 2001). E.O. 13211 defines a “significant energy action” as an action that (i) is a significant regulatory action under E.O. 12866 or any successor order; and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy. This rule is not a significant regulatory action under E.O. 12866 or E.O. 14094 (88 FR 21879; April 11, 2023). Therefore, this action is not a significant energy action, and there is no requirement to prepare a statement of energy effects for this action.

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 findings:

(1) This proposed rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that ( print page 76221) 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 $100 million or more (adjusted annually for inflation) in any year; that is, it is not a “significant regulatory action” under the Unfunded Mandates Reform Act. Small governments will be affected only to the extent that any Federal programs issuing Federal funds or permits, or conducting other authorized activities must ensure that their actions will not adversely affect the critical habitat. 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 the Kentucky creekshell in a takings implications assessment. The Act does not authorize the Services 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 Kentucky creekshell, 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 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. ( print page 76222)

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, May 4, 1994), E.O. 13175 (Consultation and Coordination with Indian Tribal Governments), the President's memorandum of November 30, 2022 (Uniform Standards for Tribal Consultation; 87 FR 74479, December 5, 2022), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with federally recognized Tribes and Alaska Native Corporations (ANCs) 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 determined that no Tribal lands fall within the boundaries of the proposed critical habitat for the Kentucky creekshell, so no Tribal lands would be affected by the proposed designation.

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 Kentucky 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 Kentucky 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

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.

2. In § 17.11, amend paragraph (h) in the List of Endangered and Threatened Wildlife by adding an entry for “Creekshell, Kentucky” in alphabetical order under CLAMS to read as follows:

§ 17.11

Endangered and threatened wildlife.

* * * * *

(h) * * *

Common name	Scientific name	Where listed	Status	Listing citations and applicable rules
*         *         *         *         *         *         *
Clams
*         *         *         *         *         *         *
Creekshell, Kentucky	Leaunio ortmanni	Wherever found	E	[ Federal Register citation when published as a final rule]; 50 CFR 17.95(f).CH
*         *         *         *         *         *         *