Proposed Rule2024-20157
Endangered and Threatened Wildlife and Plants; Endangered Species Status for Kentucky Creekshell and Designation of Critical Habitat
Primary source
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Published
September 17, 2024
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), propose to list the Kentucky creekshell (Leaunio ortmanni [=Villosa ortmanni]), a freshwater mussel species from Kentucky and Tennessee, as an endangered species and designate critical habitat under the Endangered Species Act of 1973, as amended (Act). This determination also serves as our 12- month finding on a petition to list the Kentucky creekshell. After a review of the best available scientific and commercial information, we find that listing the species is warranted. Accordingly, we propose to list the Kentucky creekshell as an endangered species under the Act. Finalizing this rule as proposed would add this species to the List of Endangered and Threatened Wildlife and extend the Act's protections to the species. We also propose to designate critical habitat for the Kentucky creekshell under the Act. In total, approximately 545 river miles (877 river kilometers) in Kentucky and Tennessee fall within the boundaries of the proposed critical habitat designation. We also announce the availability of an economic analysis of the proposed designation of critical habitat for the Kentucky creekshell.
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[Federal Register Volume 89, Number 180 (Tuesday, September 17, 2024)]
[Proposed Rules]
[Pages 76196-76233]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-20157]
[[Page 76195]]
Vol. 89
Tuesday,
No. 180
September 17, 2024
Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Kentucky Creekshell and Designation of Critical Habitat;
Proposed Rule
Federal Register / Vol. 89 , No. 180 / Tuesday, September 17, 2024 /
Proposed Rules
[[Page 76196]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2024-0065; FXES1111090FEDR-245-FF09E21000]
RIN 1018-BH46
Endangered and Threatened Wildlife and Plants; Endangered Species
Status for Kentucky Creekshell and Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to
list the Kentucky creekshell (Leaunio ortmanni [=Villosa ortmanni]), a
freshwater mussel species from Kentucky and Tennessee, as an endangered
species and designate critical habitat under the Endangered Species Act
of 1973, as amended (Act). This determination also serves as our 12-
month finding on a petition to list the Kentucky creekshell. After a
review of the best available scientific and commercial information, we
find that listing the species is warranted. Accordingly, we propose to
list the Kentucky creekshell as an endangered species under the Act.
Finalizing this rule as proposed would add this species to the List of
Endangered and Threatened Wildlife and extend the Act's protections to
the species. We also propose to designate critical habitat for the
Kentucky creekshell under the Act. In total, approximately 545 river
miles (877 river kilometers) in Kentucky and Tennessee fall within the
boundaries of the proposed critical habitat designation. We also
announce the availability of an economic analysis of the proposed
designation of critical habitat for the Kentucky creekshell.
DATES: We will accept comments received or postmarked on or before
November 18, 2024. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. eastern time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by November 1, 2024.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In the Search box, enter FWS-R4-ES-2024-0065,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the panel on the left side of
the screen, under the Document Type heading, check the Proposed Rule
box to locate this document. You may submit a comment by clicking on
``Comment.''
(2) By hard copy: Submit by U.S. mail to: Public Comments
Processing, Attn: FWS-R4-ES-2024-0065, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on <a href="https://www.regulations.gov">https://www.regulations.gov</a>. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: Supporting materials, such as
the species status assessment report, are available on the Service's
website at <a href="https://ecos.fws.gov/ecp/species/8209">https://ecos.fws.gov/ecp/species/8209</a>, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R4-ES-2024-0065, or both.
FOR FURTHER INFORMATION CONTACT: Lee Andrews, Field Supervisor, U.S.
Fish and Wildlife Service, Ecological Services Kentucky Field Office,
330 West Broadway, Room 265, Frankfort, KY 40601; telephone 502-653-
0571. Individuals in the United States who are deaf, deafblind, hard of
hearing, or have a speech disability may dial 711 (TTY, TDD, or
TeleBraille) to access telecommunications relay services. Individuals
outside the United States should use the relay services offered within
their country to make international calls to the point-of-contact in
the United States. Please see Docket No. FWS-R4-ES-2024-0065 on <a href="https://www.regulations.gov">https://www.regulations.gov</a> for a document that summarizes this proposed rule.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species warrants
listing if it meets the definition of an endangered species (in danger
of extinction throughout all or a significant portion of its range) or
a threatened species (likely to become an endangered species within the
foreseeable future throughout all or a significant portion of its
range). If we determine that a species warrants listing, we must list
the species promptly and designate the species' critical habitat to the
maximum extent prudent and determinable. We have determined that the
Kentucky creekshell meets the definition of an endangered species;
therefore, we are proposing to list it as such and proposing a
designation of its critical habitat. Both listing a species as an
endangered or threatened species and making a critical habitat
designation can be completed only by issuing a rule through the
Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
What this document does. We propose to list the Kentucky creekshell
as an endangered species under the Act, and we propose designation of
approximately 545 stream miles (877 river kilometers) in Kentucky and
Tennessee as critical habitat for the species.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that Kentucky creekshell is
endangered due to the following threats: Habitat loss, degradation, and
fragmentation (Factor A) resulting from stressors, including dams and
other instream barriers, and degraded water quality from development,
agriculture, and instream gravel mining. Changes in climate conditions
and small population size exacerbate the effects of habitat loss,
degradation, and fragmentation (Factor E).
Section 4(a)(3) of the Act requires that the Secretary of the
Interior (Secretary), to the maximum extent prudent and determinable,
concurrently with listing designate critical habitat for the species.
Section 3(5)(A) of the Act defines critical habitat as (i) the specific
areas within the geographical area occupied by the species, at the time
it is listed, on which are found those physical or biological features
(I) essential to the conservation of the species and (II) which may
require special management considerations or protections; and (ii)
specific areas outside the geographical area occupied by the species at
the time it is listed, upon a determination by the Secretary that such
areas are essential for the conservation of the species. Section
4(b)(2) of the Act states that the Secretary must make the designation
on the basis of the best scientific data available and after taking
into consideration the economic impact, the impact on national
security, and any
[[Page 76197]]
other relevant impacts of specifying any particular area as critical
habitat.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other governmental agencies, Native
American Tribes, the scientific community, industry, or any other
interested parties concerning this proposed rule. We particularly seek
comments concerning:
(1) The species' biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including
habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns
and the locations of any additional populations of this species;
(d) Historical and current population levels, and current and
projected trends; and
(e) Past and ongoing conservation measures for the species, its
habitat, or both.
(2) Threats and conservation actions affecting the species,
including:
(a) Factors that may be affecting the continued existence of the
species, which may include habitat modification or destruction,
overutilization, disease, predation, the inadequacy of existing
regulatory mechanisms, or other natural or manmade factors.
(b) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species.
(c) Existing regulations or conservation actions that may be
addressing threats to this species.
(3) Additional information concerning the historical and current
status of this species.
(4) Specific information on:
(a) The amount and distribution of Kentucky creekshell habitat;
(b) Any additional areas occurring within the range of the species
that should be included in the designation because they (i) are
occupied at the time of listing and contain the physical or biological
features that are essential to the conservation of the species and that
may require special management considerations or protection, or (ii)
are unoccupied at the time of listing and are essential for the
conservation of the species;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(d) Whether areas not occupied at the time of listing qualify as
habitat for the species and are essential for the conservation of the
species.
(4) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(5) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation, and the related benefits of including or excluding
specific areas.
(6) Information on the extent to which the description of probable
economic impacts in the draft economic analysis is a reasonable
estimate of the likely economic impacts and any additional information
regarding probable economic impacts that we should consider.
(7) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area. If you
think we should exclude any additional areas, please provide
information supporting a benefit of exclusion.
(8) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a determination. Section 4(b)(1)(A) of
the Act directs that determinations as to whether any species is an
endangered or a threatened species must be made solely on the basis of
the best scientific and commercial data available, and section 4(b)(2)
of the Act directs that the Secretary shall designate critical habitat
on the basis of the best scientific data available.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via <a href="https://www.regulations.gov">https://www.regulations.gov</a>, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Our final determination may differ from this proposal because we
will consider all comments we receive during the comment period as well
as any information that may become available after this proposal. Based
on the new information we receive (and, if relevant, any comments on
that new information), we may conclude that the species is threatened
instead of endangered or we may conclude that the species does not
warrant listing as either an endangered species or a threatened
species. For critical habitat, our final designation may not include
all areas proposed, may include some additional areas that meet the
definition of critical habitat, or may exclude some areas if we find
the benefits of exclusion outweigh the benefits of inclusion and
exclusion will not result in the extinction of the species. In our
final rule, we will clearly explain our rationale and the basis for our
final decision, including why we made changes, if any, that differ from
this proposal.
Public Hearing
Section 4(b)(5) of the Act provides for a public hearing on this
proposal, if requested. Requests must be received by the date specified
in DATES. Such requests must be sent to the address shown in FOR
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this
proposal, if requested, and announce the date, time, and place of the
hearing, as well as how to obtain reasonable accommodations, in the
Federal Register and local newspapers at least 15 days before the
hearing. We may hold the public hearing in person or virtually via
webinar. We will announce any public hearing on our website, in
addition to the Federal Register. The use of virtual public hearings is
consistent with our regulations at 50 CFR 424.16(c)(3).
[[Page 76198]]
Previous Federal Actions
On April 20, 2010, the Kentucky creekshell was included in a
listing petition from the Center for Biological Diversity (CBD) and
others (CBD 2010, entire) requesting that the Service list 404 aquatic,
riparian, and wetland species as endangered or threatened under the
Act. In 2011, the Service found that this petition presented
substantial scientific or commercial information indicating that
listing may be warranted for 374 species, including the Kentucky
creekshell (76 FR 59836, September 27, 2011). Based on that finding, we
conducted a species status assessment (SSA) for the Kentucky creekshell
to compile the best scientific and commercial data available regarding
the species' biology and any factors influencing its viability. This
document constitutes our 12-month finding on the April 20, 2010,
petition to list the Kentucky creekshell under the Act.
Peer Review
An SSA team prepared an SSA report for the Kentucky creekshell. The
SSA team was composed of Service biologists, in consultation with other
species experts. The SSA report represents a compilation of the best
scientific and commercial data available concerning the status of the
species, including the impacts of past, present, and future factors
(both negative and beneficial) affecting the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review in
listing and recovery actions under the Act, we solicited independent
scientific review of the information contained in the Kentucky
creekshell SSA report. We sent the SSA report to two independent peer
reviewers and received one response. Results of this structured peer
review process can be found at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. In
preparing this proposed rule, we incorporated the results of the
review, as appropriate, into the SSA report, which is the foundation
for this proposed rule.
Summary of Peer Reviewer Comments
As discussed in Peer Review above, we received comments from one
peer reviewer on the draft SSA report. We reviewed all comments we
received from the peer reviewer for substantive issues and new
information regarding the information contained in the SSA report. The
peer reviewer provided additional information and clarification
regarding the propagation of Kentucky creekshell. Otherwise, no
substantive changes to our analysis and conclusions within the SSA
report were deemed necessary, and the peer reviewer's comments are
addressed in version 1.0 of the SSA report.
I. Proposed Listing Determination
Background
The Kentucky creekshell (Leaunio ortmanni [=Villosa ortmanni]) is a
member of the Class Bivalvia, Order Unionodia, and Family Unionidae
(ITIS 2023). It was described by Walker (1925) from specimens collected
from the Green River at Mammoth Cave, Edmonson County, Kentucky, and
from Sulphur Fork of Russell Creek, Adair County, Kentucky. The
Kentucky creekshell was previously placed in the genus Villosa, which
was a loose amalgam of species generally defined by rayed and elongated
shells with weak hinged teeth. None of these characteristics were
unique to Villosa, and not all species possessed all the
characteristics (Watters 2018, p. 4). As a result, the genus was broken
into multiple new genera with true Villosa being limited to the extreme
Southeast with additional nominal taxa being placed into Paetulunio,
Cambarunio, Leaunio, and Sagittunio (Watters 2018, entire).
While the 2010 CBD petition referred to Kentucky creekshell
(Villosa ortmanni), the species' taxonomy, common name, and scientific
name as Leaunio ortmanni have been accepted by the scientific
community, as evidenced by the species' inclusion in A Revised List of
the Freshwater Mussels (Mollusca: Bivalvia: Unionida) of the United
States and Canada (Williams et al. 2017, p. 45), as well as its
inclusion in the Freshwater Mollusk Conservation Society Names
Subcommittee list (FMCS 2021). Therefore, this rulemaking action
proposes to list the Kentucky creekshell (Leaunio ortmanni). A thorough
review of the taxonomy, life history, and ecology of the Kentucky
creekshell is presented in the SSA report (Version 1.0; Service 2023,
pp. 1-63).
Kentucky creekshell adult shells are 2-3 inches in length with a
greenish-yellow to tan color with numerous, fine green rays, mostly
located on the posterior end of the shell (Watters 2018, p. 42). The
species is considered relatively fast-growing and short-lived compared
to other mussel species. It occurs in medium-sized rivers to small
streams and spring runs. The species can be found in riffles comprised
of sand and gravel or found in adjacent depositional areas near shore
(Haag and Cicerello 2016, p. 261). Kentucky creekshell most often
occurs in suitable habitat influenced by nearby springs due to the
preferred habitat of its obligate host fish, the banded sculpin (Cottus
carolinae).
The Kentucky creekshell is endemic to the Green River basin.
Historically, the species occurred in the Clifty Creek-Rough River,
Ugly Creek-Green River, Lower Nolin River, Bays Fork-Barren River,
Skaggs Creek, Little Muddy Creek-Barren River, Middle Nolin River,
Upper Nolin River, Russell Creek, East Fork Barren River-Barren River,
Trammel Creek, Drakes Creek, and Gasper River basins (figure 1). The
Kentucky creekshell is presumed extirpated from the historically
occupied Lower Nolin River, Bays Fork-Barren River, Skaggs Creek, and
Little Muddy Creek-Barren River basins, with no observations of the
species since 1973 (a 50-year absence).
BILLING CODE 4333-15-P
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[GRAPHIC] [TIFF OMITTED] TP17SE24.000
BILLING CODE 4333-15-C
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for endangered and
threatened species.
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole.
[[Page 76200]]
We also consider the cumulative effect of the threats in light of those
actions and conditions that will have positive effects on the species,
such as any existing regulatory mechanisms or conservation efforts. The
Secretary determines whether the species meets the definition of an
``endangered species'' or a ``threatened species'' only after
conducting this cumulative analysis and describing the expected effect
on the species.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis, which is
further described in the 2009 Memorandum Opinion on the foreseeable
future from the Department of the Interior, Office of the Solicitor (M-
37021, January 16, 2009; ``M-Opinion,'' available online at <a href="https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf">https://www.doi.gov/sites/doi.opengov.ibmcloud.com/files/uploads/M-37021.pdf</a>).
The foreseeable future extends as far into the future as the Service
and NMFS (hereafter, the Services) can make reasonably reliable
predictions about the threats to the species and the species' responses
to those threats. We need not identify the foreseeable future in terms
of a specific period of time. We will describe the foreseeable future
on a case-by-case basis, using the best available data and taking into
account considerations such as the species' life-history
characteristics, threat-projection timeframes, and environmental
variability. In other words, the foreseeable future is the period of
time over which we can make reasonably reliable predictions.
``Reliable'' does not mean ``certain''; it means sufficient to provide
a reasonable degree of confidence in the prediction, in light of the
conservation purposes of the Act.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of the species, including an assessment of the potential
threats to the species. The SSA report does not represent our decision
on whether the species should be proposed for listing as an endangered
or threatened species under the Act. However, it does provide the
scientific basis that informs our regulatory decisions, which involve
the further application of standards within the Act and its
implementing regulations and policies.
To assess the Kentucky creekshell's viability, we used the three
conservation biology principles of resiliency, redundancy, and
representation (Shaffer and Stein 2000, pp. 306-310). Briefly,
resiliency is the ability of the species to withstand environmental and
demographic stochasticity (for example, wet or dry, warm or cold
years); redundancy is the ability of the species to withstand
catastrophic events (for example, droughts, large pollution events);
and representation is the ability of the species to adapt to both near-
term and long-term changes in its physical and biological environment
(for example, climate conditions, pathogens). In general, species
viability will increase with increases in resiliency, redundancy, and
representation (Smith et al. 2018, p. 306). Using these principles, we
identified the species' ecological requirements for survival and
reproduction at the individual, population, and species levels, and
described the beneficial and risk factors influencing the species'
viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time, which we then used to inform our regulatory decision.
The following is a summary of the key results and conclusions from
the SSA report; the full SSA report can be found at Docket No. FWS-R4-
ES-2024-0065 on <a href="https://www.regulations.gov">https://www.regulations.gov</a> and at <a href="https://ecos.fws.gov/ecp/species/8209">https://ecos.fws.gov/ecp/species/8209</a>.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
species and its resources, and the threats that influence the species'
current and future condition, in order to assess the species' overall
viability and the risks to that viability.
Species Needs
We assessed the best available information to identify the physical
and biological needs to support individual fitness at all life stages
for the Kentucky creekshell. Full descriptions of all needs are
available in chapter 2 of the SSA report (Service 2023, pp. 6-13),
which can be found in docket number FWS-R4-ES-2024-0065 on <a href="https://www.regulations.gov">https://www.regulations.gov</a>, and on our internet site <a href="https://ecos.fws.gov/ecp/species/8209/">https://ecos.fws.gov/ecp/species/8209/</a>. We have determined that the resource and demographic
needs for the Kentucky creekshell include biotic and abiotic habitat
characteristics as described below.
(1) Kentucky creekshell individuals of all life stages require
habitat conditions characterized by clean, flowing water with
appropriate water quality and temperature conditions and an absence of
contaminants and fine sediments, as well as natural flow regimes that
vary with respect to timing, magnitude, durations, and frequency of
river discharge events. The species occurs in stable sand, cobble, and
gravel substrates in riffles and runs that are predominantly silt-free.
(2) As filter feeders, Kentucky creekshells require adequate
nutrition for survival and growth of juveniles and adults that includes
suspended food and nutrients including (but not limited to)
phytoplankton, zooplankton, rotifers, protozoans, detritus, and
dissolved organic matter from the water column or sediments.
(3) The Kentucky creekshell requires host fish to complete its life
cycle. Kentucky creekshell use the banded sculpin as a host fish (Haag
and Cicerello 2016, p. 261); it is the only sculpin known to occur in
the Kentucky creekshell range. The Kentucky creekshell requires
sufficient host fish numbers to provide nutrition to and dispersal of
glochidia. The presence of life history requirements for the banded
sculpin influence Kentucky creekshell viability through host fish
contribution to mussel recruitment. Suitable habitat for the banded
sculpin is characterized as spring-fed and spring-influenced streams
with riffle and pool areas with gravel and rubble substrate, adjacent
riparian cover, and sufficient food items, including macroinvertebrates
and small fish such as darters. The banded sculpin is susceptible to
impacts from habitat fragmentation due to its small size and lower
ability to swim the distance between suitable habitat patches compared
to larger fishes (Etnier and Starnes 1993, p. 387). Additionally, even
small vertical drops (2-3 inches) created by culverts can be a
significant barrier to the banded sculpin's upstream movement. Being a
benthic species, the banded sculpin is particularly sensitive to silt
and
[[Page 76201]]
sedimentation (Greenberg and Holtzman 1987, entire).
(4) Connectivity among Kentucky creekshell populations is also
important for species viability. Although the species' capability to
disperse is evident through its historical occurrence in a wide range
of rivers and streams, instream barriers have fragmented Kentucky
creekshell populations and suitable habitat, resulting in the isolation
of populations, loss of access to quality habitat for one or more life
stages, and prevention of host fish movement, which in turn, influences
Kentucky creekshell distribution. Barriers to movement can cause
isolation or patchy distributions of Kentucky creekshells, which may
limit both genetic exchange and recolonization. Genetic exchange occurs
between and among Kentucky creekshell beds via sperm drift, host fish
movement, and movement of Kentucky creekshells during high flow events.
For genetic exchange to occur, connectivity must be maintained, and
proximity of males and females is essential.
(5) Most freshwater mussels, including the Kentucky creekshell, are
found in mussel beds with other species that vary in size and density.
The Kentucky creekshell occurs very sporadically within these beds,
which are often separated by stream reaches in which the species is
absent or rare. Because the Kentucky creekshell is often a component of
these healthy mussel assemblages within optimal mussel habitats,
maintaining the beds and connectivity between these populations is
necessary for the species to maintain resiliency over time.
Threats
The following discussions include the evaluations of threats and
associated stressors that are affecting the Kentucky creekshell and its
habitats: (1) Habitat loss and degradation, including water quality
degradation; (2) changing climate conditions; and (3) nonnative
invasive species (Service 2023, chapter 3). We also considered the
effects of small population size and enigmatic population declines in
mussels. Full descriptions of each of the threats and their sources are
available in chapter 3 of the SSA report (Service 2023, pp. 16-27).
Habitat Loss and Degradation
Land Cover
Certain land cover types have been correlated with degrading
aquatic systems including urbanization and development and agricultural
uses including cultivated crops, hay/pasture land cover, and livestock
operations.
Urbanization or Development
As a land cover type, the term ``development'' refers to
urbanization of the landscape, including (but not limited to) land
conversion for residential, commercial, and industrial uses and the
accompanying infrastructure. The effects of urbanization may include
alterations to water quality, water quantity, and habitat (both in-
stream and streamside) (EPA 2003, entire). Urban development can lead
to increased variability in streamflow, typically increasing the extent
and volume of water entering a stream after a storm and decreasing the
time it takes for the water to travel over the land before entering the
stream (Giddings et al. 2009, p. 1). Impervious surface refers to all
hard surfaces like paved roads, parking lots, roofs, and even highly
compacted soils like sports fields. Impervious surfaces prevent the
natural soaking of rainwater into the ground and ultimately and
gradually seeping into streams (Brabec et al. 2002, p. 499). Instead,
rainwater accumulates and often flows into storm drains, which rapidly
drain to local streams. This flow results in deleterious effects on
streams in three important ways (USGS 2014, pp. 2-5):
(1) Water quantity: Storm drains deliver large volumes of water to
streams much faster than would naturally occur, often resulting in
flooding and bank erosion that reshapes the channel and causes
substrate instability. Increased high-velocity discharges can cause
species living in streams (including mussels) to be stressed,
displaced, or killed by fast-moving water and the debris and sediment
carried in it. Displaced individuals may be left stranded out of the
water once floodwaters recede or displaced into less suitable or
unsuitable habitat.
(2) Water quality: Pollutants (e.g., gasoline, oil, road salts)
that accumulate on impervious surfaces may be washed directly into
streams during storm events. Freshwater mussels, as a group, are
particularly sensitive to changes in water quality parameters
including, but not limited to, dissolved oxygen, salinity, ammonia,
elevated temperature, excessive suspended solids, and other pollutants.
(3) Water temperature: During warm and hot weather, the temperature
of rainwater that falls on impervious surfaces rapidly warms to
temperatures outside the species' tolerance and can stress or kill
freshwater species when it enters streams.
Urbanization increases the quantity of impervious surfaces (Center
for Watershed Protection 2003, p. 1). The resulting storm water runoff
affects water quality parameters such as temperature, pH, dissolved
oxygen, and salinity, which in turn alters the water chemistry such
that it is less able to support aquatic biota, including mussels. The
rapid runoff also reduces the amount of infiltration into the soil and
into the water table, resulting in lower sustained streamflow,
especially during droughts and dry periods (Giddings et al. 2009, p.
1). Within the Kentucky creekshell's range, there is one major city,
Bowling Green, Kentucky (U.S. Census Bureau 2022). Bowling Green has a
population of approximately 75,000 people and is the third most
populated city in Kentucky. Bowling Green is located on the mainstem
Barren River between the Gasper River and Drakes Creek, which both have
populations of Kentucky creekshell. This city, along with other,
smaller towns, ultimately contribute to the degradation of the aquatic
conditions of the nearby rivers and streams due to the relatively high
amounts of impervious surfaces.
Agricultural Land Cover
Cultivated crops, hay/pasture land cover types, and large crop
farming operations contribute to nutrient pollution when best
management practices are not properly implemented (EPA 2016, entire).
Fertilizers from these operations are both rich in nitrogen and
phosphorus and are the primary sources of nutrient pollution from
agricultural sources. If fertilizers are not applied according to best
management practices, including the appropriate rate, timing, and
application method, water quality in stream systems can be negatively
affected by excess nutrients from fertilizers.
Excess nutrients are transported to streams when it rains or when
water and soil containing nitrogen and phosphorus wash into nearby
waters or leach into groundwater. Excess nitrogen and phosphorus affect
water quality and may cause lethal algal blooms in surface waters,
which can reduce the dissolved oxygen to fatal levels for aquatic life
(Carpenter et al. 1998, entire). Fertilized soils and livestock can
also contribute significant sources of nitrogen-based compounds like
ammonia and nitrogen oxides (Carpenter et al. 1998, entire). Ammonia is
extremely toxic to freshwater mussels and other aquatic life and can be
extremely detrimental if large amounts are deposited to surface waters
(Augspurger et al. 2003, entire). Stream banks with unstable slopes
from
[[Page 76202]]
agricultural clearing with no vegetative riparian buffer or the lack of
stable cover crops between rotations on farmed lands can increase the
amount of nutrients that enter nearby streams by way of increased soil
erosion. Conversely, cover crops and other vegetation will use excess
nutrients and increase soil stability (Barling and Moore 1994, p. 543).
Livestock often use streams, which degrades water quality and stream
bank stability and reduces water quantity available for mussels and
other aquatic fauna that may occur downstream from these agricultural
activities.
Siltation/Sedimentation
Excess siltation is a threat to mussel survival and can be a
significant factor affecting mussel distribution when siltation
prevents mussel life history needs from being met in habitat reaches
(Dennis 1984, p. 150). Major sources of siltation and sedimentation
(when silt and sediment particles accumulate on the stream bottom) are
development and agriculture (Hasse and Lathrop 2003, p. 159) and
instream gravel mining (see Instream Gravel Mining below). Legacy
sediment resulting from past landscape development persists in the
Green River drainage, but much of the current siltation/sedimentation
is caused by activities that directly destabilize stream channels and
remove riparian vegetation (e.g., channelization, construction
projects, land development). Stream bank erosion and stream scour are
the primary generators of excess sediment in the Green River basin.
According to the Kentucky Division of Water list of impaired streams
that meet section 305(b) of the Clean Water Act (33 U.S.C. 1251 et
seq.), the most prevalent pollutant in impaired streams in the Green
River drainage is sedimentation/siltation, affecting 18 percent of
assessed stream miles (KDOW 2022). Based on these data, 134 of 222
stream segments with known causes of impairment in the Green River
drainage are impaired due to siltation and sedimentation, and the
leading sources of the impairment include agriculture, coal mining,
channelization, and loss of riparian habitat.
Sedimentation causes several negative effects on freshwater
mussels, including reduced reproduction, reduced feeding, reduced
respiration, and decreased survival (Goldsmith et al. 2021 pp. 104-
105). The Kentucky creekshell relies on sight-feeding fishes as part of
its life cycle; therefore, turbidity and high levels of suspended
solids during critical reproductive periods may affect glochidial
attachment to host fish and ultimately decrease recruitment in any
given population (McLeod et al. 2017, p. 348). Sedimentation affects
mussel reproduction as elevated levels of suspended sediment may cause
host fish to avoid such areas, thereby decreasing the likelihood of
physical interaction between host fishes and gravid female mussels
(Goldsmith et al. 2021, p. 12).
Elevated levels of suspended sediment affect the ability of
freshwater mussels to filter sperm and food items from the water
column. Suspended silt can interfere with mussel filtration and
respiration and reduce mussel food consumption rates (Dennis 1984, p.
212; McMahon and Bogan 2001, p. 382). Stream beds can become inundated
with fine sediment, which may lead to smothering of mussels (Goldsmith
et al. 2021 p. 18). For example, one live Kentucky creekshell was found
in the Upper Nolin River among stable substrates; however, the site was
covered in shifting sands one year later and the individual was
presumed dead (Compton 2023, pers. comm.). Additionally, silt hinders
surface water infiltration into groundwater, and increased
sedimentation can reduce or stop groundwater recharge, causing a
decline in groundwater levels (Abdalla and Rawahi 2013, p. 1956;
Rajendran et al. 2020, p. 1). The presence of groundwater and spring-
fed streams are vitally important to the Kentucky creekshell as this is
the preferred habitat of its host fish, the banded sculpin. In the
future, siltation and sedimentation in rivers and streams are expected
to increase due to associated human disturbance.
Instream Gravel Mining
Instream sand and alluvial gravel mining has been implicated in the
destruction of mussel populations in the Southeast (Hartfield 1993, p.
138). Negative effects associated with gravel mining include stream
channel modifications such as altered habitat, disrupted flow patterns,
and sediment transport. Additionally, gravel mining degrades water
quality, including increased turbidity, reduced light penetration,
increased temperature, and increased sedimentation. This habitat and
water quality degradation results in reductions in aquatic
macroinvertebrate and fish populations, as well as negatively affects
fish spawning and nursery habitats, causing cumulative food web
disruptions (Kondolf 1997, p. 541; Brown et al. 1998, p. 988). Instream
gravel mining has negatively affected Kentucky creekshell habitat for
many years. (Cicerello 2005, p. 14).
Multiple instream gravel mining operations have been observed
throughout the species' range within the last 10 years. For example, in
2021, evidence of heavy machinery in the stream and severely altered
streambed was noted at one gravel mine site immediately upstream of a
known Kentucky creekshell population (Compton 2023, pers. comm.). This
type of habitat alteration reduces the amount of suitable habitat and
limits the ability of the species to move farther upstream. An
additional gravel mining operation occurs in a stream valley
immediately adjacent to a known Kentucky creekshell population. The
Kentucky creekshell has not been observed in the mined stream valley;
however, based on proximity to known populations and habitat
conditions, the species very likely occurred there historically
(Dinkins 2023, pers. comm.). Consequently, instream mining may be
linked to the loss of the species from areas where it was historically
present.
Impoundment Effects
The negative effects of impoundments and barriers on aquatic
habitats and freshwater mussels are well-documented (Watters 2000, p.
261). Extinction/extirpation of North American freshwater mussels can
be traced to impoundment and inundation of riffle habitats in all major
river basins of the central and eastern United States (Haag 2009, p.
107; North Carolina Wildlife Resources Commission 2015, p. 109). Dams,
either natural (by beavers or aggregations of woody debris) or manmade,
can have various effects on stream ecosystems, many of them negative.
Reductions in the diversity and abundance of mussels are primarily
attributed to habitat loss caused by human-made impoundments (Neves et
al. 1987, p. 63).
The Kentucky creekshell requires rivers and streams with natural
flow regimes because the species requires a lotic (flowing water)
environment. Perturbations that disrupt natural water flow patterns
(e.g., dams) thus have a negative influence on the Kentucky creekshell
and its host fish species, the banded sculpin. Effects from instream
barriers include population isolation, hydrological instability, high
shear stress, scour, and cold-water releases, all of which suppress
mussel recruitment (Hardison and Layzer 2001, p. 79; Smith and Meyer
2010, p. 543; Hubbs 2012, p. 8). Consequently, the construction and
continued operation of dams has resulted in the likely extirpation of
the Kentucky creekshell in many portions of its historical range
including the decline of the species in the Green River which can be
partly attributed to long-term altered flows from the Green River Lake
[[Page 76203]]
Dam (Konrad et al. 2011, entire; Haag and Cicerello 2016, p. 261).
Furthermore, Kentucky creekshell occurrences have not been reported
from heavily dam-influenced reaches on the mainstem Barren, Nolin, and
Rough Rivers indicating dam-influenced reaches do not provide
conditions that meet the species' life-history needs.
The construction and presence of dams had a substantial negative
impact on the Kentucky creekshell and was a primary driver of its
condition historically. The historical negative impact of dams
continues through isolation of populations and the degradation and
fragmentation of habitat throughout the range of the species. Although
some obsolete navigation locks and dams on the Green and Barren Rivers
have been removed, the historical negative effects associated with
large reservoir dams and smaller, more numerous low-head dams continue
to negatively influence the species and its habitats.
Changing Climate Conditions
Changing climate conditions can affect freshwater mussels, their
habitat, and their host fish by altering water temperatures and
precipitation patterns that increase flooding, prolong droughts, or
reduce stream flows (Nobles and Zhang 2011, pp. 147-148). Increases in
water temperatures alter fundamental ecological processes, thermal
suitability of aquatic habitats for resident species, and their
geographic distribution, thus increasing the likelihood of species
extinction and loss of biodiversity.
Climate change may cause changes and shifts in seasonal patterns of
precipitation and runoff, which can alter the hydrology of stream
systems, affecting species composition and ecosystem productivity.
Aquatic organisms are sensitive to changes in frequency, duration, and
timing of extreme precipitation events such as floods or droughts,
potentially resulting in interference of reproduction. Further,
increased water temperatures and seasonally reduced streamflow can
alter many ecosystem processes, including increases in nuisance algal
blooms.
Some nonnative invasive species may be better adapted to the
effects of climate change, including more tolerance to higher
temperatures (Ferreira-Rodriguez et al. 2017, entire). Changes in
presence or combinations of native and nonnative invasive species could
result in specific ecological responses to changing climate conditions
that cannot be easily predicted at this time. Shifts in mussel
community structure may occur in response to climate-induced changes in
water temperatures since sedentary freshwater mussels have limited
refugia from disturbances such as droughts and floods, and because they
are thermo-conformers whose physiological processes are constrained by
water temperature within species-specific thermal preferences
(Galbraith et al. 2010, p. 1,176).
The Kentucky creekshell is particularly vulnerable to climate
change given its limited spatial distribution as an endemic to the
Green River basin. The expected effects of climate change in this
region will lead to more frequent and severe storms and droughts, which
will destabilize suitable habitat, dewater headwater streams occupied
by the species, and negatively affect host fish distribution. The
species is susceptible to droughts that affect smaller streams to a
greater degree, as well as flooding/scouring events, as the species is
found in streams with unstable and mobile substrates. Conversely, the
species is associated with spring-influenced habitats, which may
provide cool, flowing water during long dry periods.
Overall, we expect the effects of climate change will negatively
impact the Kentucky creekshell through changes in hydrology and stream
flow, water temperature, mussel community structure (including invasive
species), and drought. These impacts are anticipated to increase in the
future.
Invasive Species
Approximately 42 percent of federally threatened or endangered
species are estimated to be significantly affected by invasive species
(Pimentel et al. 2004). When an invasive species is introduced into an
ecosystem, it may have many advantages over native species, such as
easy adaptation to varying environments and a high tolerance of living
conditions that allow it to thrive in its new habitat. There may not be
natural predators to keep the invasive species in check; therefore, it
can potentially live longer and reproduce more often, further reducing
the biodiversity in the system. The native species may become an easy
food source for invasive species, or the invasive species may carry
diseases that extirpate populations of native species. There are
several invasive species that affect freshwater mussels (Service 2023,
p. 23). Currently, only the Asian clam is likely to pose a significant
risk to the Kentucky creekshell.
The Asian clam has several competitive advantages over freshwater
mussels including competing for space and food resources while being
more tolerant of higher temperatures (Fuller and Richardson 1976, p.
52, Strayer 1999, p. 82; Ferreira-Rodriguez and Pardo 2017, p. 171;
Ferreira-Rodriguez et al. 2017, p. 941; Haag et al. 2020, entire).
While feeding, the Asian clam may ingest large numbers of freshwater
mussel sperm, glochidia, and newly metamorphosed juveniles that could
severely alter the reproductive ability of nearby mussel populations
(Strayer 1999, p. 82). The effect of Asian clams on freshwater mussel
habitat may also contribute to the below-described enigmatic decline
(Haag 2019, entire).
Asian clams grow rapidly and experience a rapid die-off following
reproduction, causing toxic ammonia spikes in the streams and rivers
(Scheller 1997, p. 2; Strayer 1999, p. 82; Cherry et al. 2005, p. 377).
Although we do not have information that the Asian clam is currently
impacting Kentucky creekshell populations, the clam has been documented
to outcompete other freshwater mussels and occurs throughout the
Kentucky creekshell range. We expect the negative effects of this
nonnative invasive species will continue into the future as well as to
receive more documented information about the Asian clam's effect on
native mussel populations once studies are published.
Enigmatic Population Declines
Enigmatic population declines have been documented in freshwater
river mussel populations since the 1960s. Mussel populations
occasionally experience declines in the absence of any obvious cause.
These declines are termed enigmatic population declines, due to their
mysterious and currently puzzling nature (Haag 2012, p. 341). The cause
of these die-offs is unknown, but researchers suspect either disease or
the introduction of the Asian clam (see section 3.4 of the SSA report)
are likely factors (Haag 2019, entire; Service 2023, pp. 22-24).
Contaminants that are not easily observable, such as metals bound in
sediments, a result of past land cover, could also be a contributor
(Price et al. 2014, p. 855). Characteristics of enigmatic declines
include fauna-wide collapse affecting all mussel species, recruitment
failure leading to a senescent fauna, rapid onset often leading to
faunal collapse within 10 years, and a faunal collapse that proceeds
upstream over 10 to 20 years in most cases (Haag 2019, entire). These
enigmatic declines have been documented within rivers and streams
occupied by the Kentucky creekshell including: the Nolin River, Drakes
Creek, and Gasper River, all which have extant Kentucky creekshell
populations characterized as low resiliency (Haag 2019, p. 49).
[[Page 76204]]
Cumulative/Synergistic Effects
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have
analyzed the cumulative effects of identified threats and conservation
actions on the species. To assess the current and future condition of
the species, we evaluate the effects of all the relevant factors that
may be influencing the species, including threats and conservation
efforts. Because the SSA framework considers not just the presence of
the factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative-effects analysis.
Populations that have a small effective population size (number of
breeding individuals) and that are geographically isolated from one
another are more vulnerable than more robust populations. The
fragmentation of habitat segments and isolation caused by instream
barriers and inundation of riffle habitats contribute to the extinction
risk that mussel populations face from stochastic events (Haag 2008, p.
107) and restrict or prevent the movement of host fish.
Cumulative or synergistic impacts can occur when climate change
acts as an additional stressor to sensitive freshwater systems, which
are already adversely affected by a variety of other human impacts,
such as altered flow regimes and deterioration of water quality.
Changes in presence or combinations of native and nonnative invasive
species could result in specific ecological responses to changing
climate conditions. These types of changes (e.g., increased
temperatures that are more favorable or more tolerated by a nonnative
invasive species compared to a native species) can result in novel
interactions or situations that may necessitate adaptive management
strategies.
Depletion of energetic reserves of native mussels to cope with
increasing temperatures could compromise native mussels' tolerance to
additional stressors such as competition with invasive species,
including the Asian clam, or food reduction (Ferreira-Rodriguez and
Pardo 2017, p. 171) (see Changing Climate Conditions above).
Conservation Efforts and Regulatory Mechanisms
Large dams in the Green River basin fall into two general
categories: reservoir dams and navigation dams. Reservoir dams such as
Rough River Dam, Nolin River Dam, Green River Dam, and Barren River Dam
are used primarily for hydropower production, flood control, and/or
municipal water supply. Navigation dams in the species' range include
the Green River Locks and Dams 1-6 and Barren River Lock and Dam 1.
Several conservation efforts are occurring in the range of the Kentucky
creekshell that address habitat fragmentation and isolation of
populations as well as Kentucky creekshell reintroduction efforts.
Green River Lock and Dam (L&D) 6 and Barren River L&D 1 were removed in
2017 and 2022, respectively, through a collaborative effort between
State and Federal agencies and nongovernmental partners (Compton et al.
2017, entire). Additionally, a substantial portion of Green River L&D 5
was removed in 2022 with plans to complete the removal in the fall of
2024. These dam removals have expanded free-flowing hydrological
conditions of the Green and Barren Rivers by more than 40 kilometers
(km) (25 miles (mi)) and have provided increased aquatic habitat
connectivity throughout much of the Kentucky creekshell range. For
example, the removal of Barren River L&D 1 in 2022 restored
approximately 24 continuous km (15 mi) of stream habitat, changing this
reach from a lentic (still water) habitat into a lotic (moving water)
habitat suitable for the Kentucky creekshell and its host fish.
Additionally, this dam removal now connects the Gasper River Kentucky
creekshell population with the Drakes Creek and Trammel Creek
populations.
The Center for Mollusk Conservation (CMC) is a mussel propagation
facility operated by the Kentucky Department of Fish and Wildlife
Resources since 2002 with the mission to restore and recover rare and
imperiled freshwater mollusks. The CMC has been working on propagation
efforts for the Kentucky creekshell for more than 10 years and has
reared juveniles for release since 2016 using the banded sculpin and in
vitro (outside the body) culturing methods since 2021resulting in
higher numbers of juveniles (McGregor 2023, pers. comm.). Approximately
4,888 juveniles have been released in 14 locations in the Green River,
Rough River, South Fork Nolin River, Middle Creek, Russel Creek,
Walter's Creek, and Nolin River. Propagation efforts are ongoing with
reintroductions and augmentations scheduled to be released in the fall
of 2024. However, the post-release survival and reproduction of
propagated Kentucky creekshell juveniles and the establishment of new
Kentucky creekshell populations as a result of these releases have not
been fully assessed.
State Conservation Actions and Laws
The Kentucky creekshell is State-listed as endangered in Kentucky.
This listing status protects the species by prohibiting any person from
the import, transport, possession for resale or sale of the Kentucky
creekshell or parts (shell, etc.) (KRS Sec. 150.180). The Kentucky
creekshell is not currently listed by the State of Tennessee. The
Kentucky creekshell and its habitats are afforded some protection from
water quality and habitat degradation under Kentucky's Forest
Conservation Act of 1998 (KRS Sec. Sec. 149.330-149.355), Kentucky's
Agriculture Water Quality Act of 1994 (KRS Sec. Sec. 224.71-224.140)
and the Tennessee Water Quality Control Act of 1971 (TN Code Sec. 69-
3-121). Although the protections afforded by these statutes and
regulations are not directed specifically towards Kentucky creekshell
and have not prevented the degradation of some habitats used by the
Kentucky creekshell, there have been some improvements in water quality
and habitat conditions in areas occupied by the species stemming from
these regulatory mechanisms.
The Kentucky creekshell is identified as a Species of Greatest
Conservation Need in Kentucky's State Wildlife Action Plan (SWAP). By
identifying declining or rare species and management or protection
needed to improve their conservation status, the SWAP intends to guide
management and conservation of species and habitats before they become
too rare or costly to restore. The Kentucky creekshell has a State rank
of S1S2 (imperiled) with the highest priority for the State. Actions
outlined in the SWAP to benefit Kentucky creekshell include population
monitoring, propagation, augmentation of existing low-resilient
populations, and further genetic or taxonomic studies. Conservation
issues identified by the SWAP include dams and water management/use,
ecosystem modifications, and pollution (Kentucky Department of Fish and
Wildlife Resources 2023, entire). The Kentucky creekshell is not listed
in the Tennessee SWAP plan as it was not known to occur in the State at
the time the latest SWAP plan was written.
Federal Laws
The Kentucky creekshell and its habitats are afforded some
protection from water quality and habitat degradation under the Clean
Water Act. While the protections afforded are not directed specifically
towards Kentucky creekshell and have not prevented the
[[Page 76205]]
degradation of some habitats used by the Kentucky creekshell, there
have been certain improvements in water quality and habitat conditions
stemming from these regulatory mechanisms.
The Kentucky creekshell receives incidental protection under the
Endangered Species Act because populations in portions of the Barren
River and Green River share habitats with multiple federally listed
mussels and critical habitat. Some of these mussels include the
fanshell (Cyprogenia stegaria), rough pigtoe (Pleurobema plenum),
spectaclecase (Cumberlandia monodonta), pink mucket (Lampsilis
abrupta), and sheepnose mussel (Plethobasus cyphyus); and critical
habitat for the longsolid (Fusconaia subrotunda) and round hickorynut
(Obovaria subrotunda). Section 7 of the Act requires Federal agencies
to consult with the Service on any action that may affect a listed
species or any action that may destroy or adversely modify critical
habitat. Section 9 of the Act also provides protection against ``take''
of the species (``take'' means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or attempt to engage in any
such conduct). In Kentucky, streams supporting federally threatened or
endangered species receive additional protection under Kentucky's water
quality standards. Pursuant to 401 KAR Sec. Sec. 10:031, Section 8,
the existing water quality and habitat of these Outstanding State
Resource Waters (OSRWs) shall be maintained and protected, unless it
can be demonstrated that lowering of water quality or a habitat
modification will not have a harmful effect on the threatened or
endangered species that the water supports. Kentucky Pollutant
Discharge Elimination System permits associated with OSRWs typically
contain additional requirements designed to protect waters supporting
listed species.
It is also unlawful under the Lacey Act (see 16 U.S.C.
3372(a)(2)(A)) to import, export, transport, sell, receive, acquire, or
purchase in interstate or foreign commerce any fish or wildlife taken,
possessed, transported, or sold in violation of any law or regulation
of any State. Because the possession of Kentucky creekshell is illegal
in Kentucky, interstate or international sale of individuals collected
is prohibited by the Lacey Act.
Current Condition
The Kentucky creekshell's range and distribution has declined over
time. Four of 13 analytical units (AUs) are now extirpated. In our SSA
analyses, we considered an analytical unit extant if it contained
records after 2003. We considered AUs with observations prior to 2003
(and no more recent observations) as historical. We considered
analytical units to be extirpated if no individuals were detected since
1973, indicating a 50-year absence. This species was formerly the most
abundant species found in the Nolin River in the 1960s, and hundreds of
shells were found in the 1980s. Very few individuals have been found in
this system since 2003. On the Green River mainstem at Munfordville,
hundreds of live individuals were found, and hundreds of shells were
collected multiple times during the 1960s, whereas a 2022 survey
targeting the species for propagation efforts in the same general
location found just three individuals in 24 person-hours search time.
In our SSA, we describe the current condition of the species using
categories that estimate overall condition (resiliency) of the Kentucky
creekshell populations. We identified five major factors that act or
will act on the viability of Kentucky creekshell populations. These
include habitat loss and degradation (i.e., aquatic degrading land
cover, siltation/sedimentation, gravel mining, impoundment effects),
climate change, invasive species, enigmatic population declines, and
conservation actions. See chapter 4 in the SSA report for further
explanation of the analysis methodology (Service 2023, pp. 28-31). The
Kentucky creekshell is known historically from 13 AUs. Historical
populations in the Lower Nolin River, Bays Fork-Barren River, Skaggs
Creek, Little Muddy Creek-Barren River are now considered to be
extirpated, and current condition was not assessed for these AUs.
Currently, the Kentucky creekshell occurs in nine AUs in the Green
River Basin. We assessed the current condition of these nine AUs to
inform species' current viability. We determined no AU currently
exhibits high resiliency, two AUs exhibit moderate resiliency, and
seven AUs exhibit low resiliency. To assess resiliency, we considered
five variables for each AU--instream habitat (substrates), percent of
suitable land cover, length of occupied reaches, abundance of
individuals on surveys, and connectivity as a result of the presence or
absence of dams/barriers. The two moderately resilient AUs are
characterized by higher habitat condition scores (substrates, land
cover, and connectivity) and higher extent of occupancy than low-
resiliency AUs. The Kentucky creekshell currently occurs in a limited
number of populations/watersheds that are disjunct from each other.
Each of those populations is very small, and only a small portion of
those populations is reproducing. It is not clear or expected that
these populations can sustain themselves at such low levels, which
elevates the risk of local extirpations. In addition, the majority of
AUs have low resiliency (seven of nine), and the two moderate-
resiliency AUs are impacted by existing and ongoing threats, such as
low population numbers and sedimentation, as well as increasing threats
from urbanization and incompatible land use changes.
Representation describes the ability of a species to adapt to
changing environmental conditions over time and is characterized by the
breadth of genetic and environmental diversity within and among
populations. The more representation a species has, the more it is
capable of adapting to changes (natural or human caused) in its
environment. We determined the Kentucky creekshell's current
representation by assessing attributes that demonstrate a species'
inherent adaptive capacity. These attributes relate to the species'
ability to shift in space or persist in place in response to changing
environmental conditions. We found that the species' representation is
moderate given its inherent ability to adapt to change. Movement and
abiotic niche are deemed to be low for the species because it cannot
readily move away from stressors, and it relies on a fish host with a
relatively small home range. However, many characteristics such as
minimal parental investment, high fecundity, and multiple reproductive
cycles in lifetime are high abilities to adapt to change for the
species. The combination of high and low abilities to adapt to change
bring us to conclude that the species exhibits moderate representation.
We have determined the species' current redundancy to be low based
on its geographically small range, limiting preferred habitat; lack of
connectivity between and among populations; and lack of highly
resilient AUs. Low redundancy means the Kentucky creekshell is more
vulnerable to catastrophic events than species with higher redundancy.
Potential catastrophes that could affect the species include extreme,
range-wide drought or a chemical or other hazardous waste spill that
affects water quality conditions across multiple populations.
In summary, the Kentucky creekshell currently occurs in a limited
number of populations/watersheds that are disjunct from each other. The
majority
[[Page 76206]]
of AUs have low resiliency (seven of nine), and the two moderate-
resiliency AUs are impacted by existing and ongoing threats, such as
low population numbers and sedimentation, as well as increasing threats
from urbanization and incompatible land use changes.
As part of the SSA, we also developed two plausible future-
condition scenarios to capture the range of future viability including
future threats and the projected responses by the Kentucky creekshell.
We evaluated the future condition of the Kentucky creekshell in 2040
and 2060 by assessing future land cover change and climate change under
high emissions and lower emissions scenarios. Because we determined
that the current condition of the Kentucky creekshell is consistent
with an endangered species (see Determination of the Kentucky
Creekshell's Status), we are not presenting the results of the future
scenarios in this proposed rule. Please refer to the SSA report
(Service 2023, pp. 43-49) for the full analysis of future scenarios.
Determination of the Kentucky Creekshell's Status
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range, and a ``threatened species'' as a species likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether a species meets the definition of an endangered
species or a threatened species because of any of the following
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence.
Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we determined the Kentucky creekshell currently has limited
resiliency, redundancy, and representation and is expected to decline
further. Historically, the Kentucky creekshell was known from 13 AUs in
the Green River basin. Historical populations in the Lower Nolin River,
Bays Fork-Barren River, Skaggs Creek, and Little Muddy Creek-Barren
River are now considered to be extirpated, and the species is currently
known from 9 AUs. Current factors affecting the species' viability
include loss and degradation of suitable habitat, low connectivity
(i.e., isolation by dams), and small population size. There is not
enough evidence yet to assess the direct effects of invasive species,
enigmatic population declines, or conservation actions on Kentucky
creekshell or its host fish. We determined that seven analytical units
exhibit low current resiliency, two analytical units exhibit moderate
resiliency, and no units exhibit high resiliency. Current resiliency is
driven by poor instream habitat, low percent of suitable land cover,
abundance as detected on recent surveys, shorter occupied reaches, and
lack of connectivity due to dams/barriers.
With regard to the species' adaptive capacity, the Kentucky
creekshell has moderate representation at the species level, with an
inherent capacity to adapt in place. The species' redundancy is low
based on its geographically small range, limiting preferred habitat;
lack of connectivity with other populations; and lack of highly
resilient analytical units or populations.
Thus, after evaluating the best available information and as a
result of the combination of these factors, the threats have a high
imminence and magnitude such that they are significantly affecting the
species' current viability. Accordingly, the species meets the
definition of an endangered species.
We do not find the Kentucky creekshell meets the definition of a
threatened species because the species has already shown dramatic
declines in abundance and resiliency of its populations. With the
majority of populations in low resiliency, the species' condition is
currently in poor condition and is expected to decline over time due to
existing threats, such as low population numbers and sedimentation, as
well as increasing threats in some of the watersheds from increasing
urbanization and incompatible land use changes. The Kentucky creekshell
has low redundancy and moderate species-level representation, with an
inherent capacity to adapt to changing environmental conditions but
increased vulnerability to catastrophic events because it cannot
readily move away from stressors, and it relies on a fish host with a
relatively small home range. Thus, after assessing the best available
information, we determine that Kentucky creekshell is in danger of
extinction throughout all of its range.
Status Throughout a Significant Portion of Its Range
Under the Act and our implementing regulations, a species may
warrant listing if it is in danger of extinction or likely to become so
in the foreseeable future throughout all or a significant portion of
its range. We have determined that the Kentucky creekshell is in danger
of extinction throughout all of its range and accordingly did not
undertake an analysis of any significant portion of its range. Because
the Kentucky creekshell warrants listing as endangered throughout all
of its range, our determination does not conflict with the decision in
Center for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C.
2020), because that decision related to significant portion of the
range analyses for species that warrant listing as threatened, not
endangered, throughout all of their range.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the Kentucky creekshell meets the definition
of an endangered species. Therefore, we propose to list the Kentucky
creekshell as an endangered species in accordance with sections 3(6)
and 4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition as a listed
species, planning and implementation of recovery actions, requirements
for Federal protection, and prohibitions against certain practices.
Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, foreign
governments, private organizations, and individuals. The Act encourages
cooperation with the States and other countries and calls for recovery
actions to be carried out for listed species. The protection required
by Federal agencies, including the Service, and the prohibitions
against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the
[[Page 76207]]
conservation of endangered and threatened species. The goal of this
process is to restore listed species to a point where they are secure,
self-sustaining, and functioning components of their ecosystems.
The recovery planning process begins with development of a recovery
outline made available to the public soon after a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions while a recovery plan is being developed.
Recovery teams (composed of species experts, Federal and State
agencies, nongovernmental organizations, and stakeholders) may be
established to develop and implement recovery plans. The recovery
planning process involves the identification of actions that are
necessary to halt and reverse the species' decline by addressing the
threats to its survival and recovery. The recovery plan identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Revisions of the plan may
be done to address continuing or new threats to the species, as new
substantive information becomes available. The recovery outline, draft
recovery plan, final recovery plan, and any revisions will be available
on our website as they are completed (<a href="https://www.fws.gov/program/endangered-species">https://www.fws.gov/program/endangered-species</a>), or from our Kentucky Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribes, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
If this species is listed, funding for recovery actions will be
available from a variety of sources, including Federal budgets, State
programs, and cost-share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
pursuant to section 6 of the Act, the States of Kentucky and Tennessee
would be eligible for Federal funds to implement management actions
that promote the protection or recovery of the Kentucky creekshell.
Information on our grant programs that are available to aid species
recovery can be found at: <a href="https://www.fws.gov/service/financial-assistance">https://www.fws.gov/service/financial-assistance</a>.
Although the Kentucky creekshell is only proposed for listing under
the Act at this time, please let us know if you are interested in
participating in recovery efforts for this species. Additionally, we
invite you to submit any new information on this species whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7 of the Act is titled Interagency Cooperation and mandates
all Federal action agencies to use their existing authorities to
further the conservation purposes of the Act and to ensure that their
actions are not likely to jeopardize the continued existence of listed
species or adversely modify critical habitat. Regulations implementing
section 7 are codified at 50 CFR part 402.
Section 7(a)(2) states that each Federal action agency shall, in
consultation with the Secretary, ensure that any action they authorize,
fund, or carry out is not likely to jeopardize the continued existence
of a listed species or result in the destruction or adverse
modification of designated critical habitat. Each Federal agency shall
review its action at the earliest possible time to determine whether it
may affect listed species or critical habitat. If a determination is
made that the action may affect listed species or critical habitat,
formal consultation is required (50 CFR 402.14(a)), unless the Service
concurs in writing that the action is not likely to adversely affect
listed species or critical habitat. At the end of a formal
consultation, the Service issues a biological opinion, containing its
determination of whether the federal action is likely to result in
jeopardy or adverse modification.
In contrast, section 7(a)(4) of the Act requires Federal agencies
to confer with the Service on any action which is likely to jeopardize
the continued existence of any species proposed to be listed under the
Act or result in the destruction or adverse modification of critical
habitat proposed to be designated for such species. Although the
conference procedures are required only when an action is likely to
result in jeopardy or adverse modification, action agencies may
voluntarily confer with the Service on actions that may affect species
proposed for listing or critical habitat proposed to be designated. In
the event that the subject species is listed or the relevant critical
habitat is designated, a conference opinion may be adopted as a
biological opinion and serve as compliance with section 7(a)(2).
Examples of discretionary actions for the Kentucky creekshell that
may be subject to conference and consultation procedures under section
7 are land management or other landscape-altering activities on Federal
lands administered by the U.S. Department of Agriculture, Environmental
Protection Agency, or National Park Service (NPS) as well as actions on
State, Tribal, local, or private lands that require a Federal permit
(such as a permit from the U.S. Army Corps of Engineers (USACE) under
section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit
from the Service under section 10 of the Act) or that involve some
other Federal action (such as funding from the Federal Highway
Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency). Federal actions not affecting listed
species or critical habitat--and actions on State, Tribal, local, or
private lands that are not federally funded, authorized, or carried out
by a Federal agency--do not require section 7 consultation. Federal
agencies should coordinate with the Kentucky Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT) with any specific
questions on section 7 consultation and conference requirements.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to endangered wildlife.
The prohibitions of section 9(a)(1) of the Act, and the Service's
implementing regulations codified at 50 CFR 17.21, make it illegal for
any person subject to the jurisdiction of the United States to commit,
to attempt to commit, to solicit another to commit or to cause to be
committed any of the following acts with regard to any endangered
wildlife: (1) import into, or export from, the United States; (2) take
(which includes harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect) within the United States, within the territorial
sea of the United States, or on the high seas; (3) possess, sell,
deliver, carry, transport, or ship, by any means whatsoever, any such
wildlife that has been taken illegally; (4) deliver, receive, carry,
transport, or ship in interstate or foreign commerce, by any means
whatsoever and in the course of commercial activity; or (5) sell or
[[Page 76208]]
offer for sale in interstate or foreign commerce. Certain exceptions to
these prohibitions apply to employees or agents of the Service, NMFS,
other Federal land management agencies, and State conservation
agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered wildlife under certain circumstances. Regulations
governing permits for endangered wildlife are codified at 50 CFR 17.22,
and general Service permitting regulations are codified at 50 CFR part
13. With regard to endangered wildlife, a permit may be issued: for
scientific purposes, for enhancing the propagation or survival of the
species, or for take incidental to otherwise lawful activities. The
statute also contains certain exemptions from the prohibitions, which
are found in sections 9 and 10 of the Act.
II. Critical Habitat
Background
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that each Federal action agency ensure, in
consultation with the Service, that any action they authorize, fund, or
carry out is not likely to result in the destruction or adverse
modification of designated critical habitat. The designation of
critical habitat does not affect land ownership or establish a refuge,
wilderness, reserve, preserve, or other conservation area. Such
designation also does not allow the government or public to access
private lands. Such designation does not require implementation of
restoration, recovery, or enhancement measures by non-Federal
landowners. Rather, designation requires that, where a landowner
requests Federal agency funding or authorization for an action that may
affect an area designated as critical habitat, the Federal agency
consult with the Service under section 7(a)(2) of the Act. If the
action may affect the listed species itself (such as for occupied
critical habitat), the Federal agency would have already been required
to consult with the Service even absent the designation because of the
requirement to ensure that the action is not likely to jeopardize the
continued existence of the species. Even if the Service were to
conclude after consultation that the proposed activity is likely to
result in destruction or adverse modification of the critical habitat,
the Federal action agency and the landowner are not required to abandon
the proposed activity, or to restore or recover the species; instead,
they must implement ``reasonable and prudent alternatives'' to avoid
destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographical area occupied by the species at the time
it was listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific data available, those physical or biological features that
are essential to the conservation of the species (such as space, food,
cover, and protected habitat).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information compiled in the SSA report and information developed during
the listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2)
[[Page 76209]]
regulatory protections afforded by the requirement in section 7(a)(2)
of the Act for Federal agencies to ensure their actions are not likely
to jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of the species. Similarly, critical
habitat designations made on the basis of the best scientific data
available at the time of designation will not control the direction and
substance of future recovery plans, habitat conservation plans (HCPs),
or other species conservation planning efforts if new information
available at the time of those planning efforts calls for a different
outcome.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and
which may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkaline
soil for seed germination, protective cover for migration, or
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include
prey species, forage grasses, specific kinds or ages of trees for
roosting or nesting, symbiotic fungi, or absence of a particular level
of nonnative species consistent with conservation needs of the listed
species. The features may also be combinations of habitat
characteristics and may encompass the relationship between
characteristics or the necessary amount of a characteristic essential
to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics include, but are not limited to, space
for individual and population growth and for normal behavior; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.
Summary of Essential Physical or Biological Features
As described in Summary of Biological Status and Threats, the
Kentucky creekshell is a freshwater mussel that occurs in rivers and
streams. Occasional or regular interaction among individuals in
different reaches not interrupted by a barrier likely occurs, but in
general, interaction is strongly influenced by habitat fragmentation
and distance between occupied river or stream reaches. Once released
from their fish host, freshwater mussels are benthic, generally
sedentary aquatic organisms and closely associated with appropriate
habitat patches within a river or stream.
We derive the specific physical or biological features essential to
the conservation of the Kentucky creekshell from studies of the
species' habitat, ecology, and life history as described below. The
primary habitat elements that influence resiliency of the Kentucky
creekshell include water quality, water quantity, substrate, habitat
connectivity, and the presence of host fish species to ensure
recruitment. Adequate flows ensure delivery of oxygen, enable
reproduction, deliver food to filter-feeding mussels, and reduce
contaminants and fine sediments from interstitial spaces. Stream
velocity is not static over time, and variations may be attributed to
seasonal changes (with higher flows in winter/spring and lower flows in
summer/fall), extreme weather events (e.g., drought or floods), or
anthropogenic influence (e.g., flow regulation via impoundments). These
features are also described above as species needs under Summary of
Biological Status and Threats, and a full description is available in
the SSA report; the resource and demographic needs for breeding,
feeding, sheltering, and dispersal of the Kentucky creekshell include
the following: (1) Adequate freshwater availability (water quantity)
and sufficient water quality, including spring-influenced river
sections; (2) appropriate substrates; (3) sufficient food and
nutrition; (4) availability of sufficient host fish numbers; (5)
connected instream habitats; and (6) appropriate abundance, density,
and distribution of mussel beds (aggregations of freshwater mussels).
Additional information can be found in the SSA report (Service
2023, entire; available on <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No.
FWS-R4-ES-2024-0065). We have determined that the following physical or
biological features are essential to the conservation of the Kentucky
creekshell:
(1) Water quantity and quality necessary to sustain natural
physiological processes for normal behavior, growth, and viability of
all life stages, including (but not limited to): water conditions in
the stream that are cool; are well-oxygenated with no evidence of
excessive sediments or suspended solids, salinity, ammonia, nutrients,
pesticides, or herbicides; and have a stream flow and pattern
consistent with natural flow regimes. Spring-influenced river sections
are important habitat types for this species as most Kentucky
creekshell populations are associated with this habitat type, and this
is also the preferred habitat type for the host fish, the banded
sculpin.
(2) Suitable substrates and connected instream habitats
characterized by geomorphically stable stream channels and banks (i.e.,
channels that maintain lateral dimensions, longitudinal profiles, and
sinuosity patterns over time without an aggrading or degrading bed
elevation) and stable riffle-run-pool habitats that provide flow
refuges consisting of predominantly silt-free, stable coarse sand,
gravel, and cobble substrates.
(3) Adequate food availability for Kentucky creekshell including
(but not limited to): suspended phytoplankton, zooplankton, rotifers,
protozoans, detritus, and dissolved organic matter from the water
column or sediments.
(4) Habitat conditions that support the presence and abundance of
banded sculpin, the host fish necessary for Kentucky creekshell
recruitment, as well as the actual presence and
[[Page 76210]]
abundance of the banded sculpin in the habitat.
(5) Connected instream habitats without barriers such as dams and
perched or undersized culverts to provide suitable lotic rather than
lentic habitat; access to quality habitat for multiple life stages of
Kentucky creekshell; access for host fish movement, which in turn, may
influence Kentucky creekshell distribution and provide genetic exchange
for both species and recolonization of Kentucky creekshell.
(6) Appropriate abundance, density, and distribution of mussel beds
(aggregations of freshwater mussels) such that local stochastic events
do not necessarily eliminate the bed(s), allowing the mussel beds and
the overall local population within a stream reach to recover from any
single event and for resilient populations.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection.
The features essential to the conservation of the Kentucky
creekshell may require special management considerations or protections
to reduce the following threats:
(1) Alteration of the natural flow regime (modifying the natural
hydrograph and seasonal flows), including groundwater and surface water
withdrawal as well as water releases from impoundments and reservoirs,
resulting in hydrological instability, high shear stress, and scour.
(2) significant alteration of water quality and nutrient pollution
from a variety of activities, such as urban development, mining, and
agricultural activities;
(3) alteration of instream substrate, stream channels, and stream
banks from a variety of activities, including but not limited to those
that cause stream siltation and sedimentation, destabilize stream
channels, and result in the removal of riparian vegetation (e.g.,
instream gravel mining, agriculture, channelization, construction
projects, and land development);
(4) urbanization of the landscape, including (but not limited to)
land conversion for residential, commercial, and industrial uses and
the accompanying infrastructure (impervious surfaces, pipelines, roads,
bridges, utilities), and urban water uses (resource extraction
activities, water supply reservoirs, wastewater treatment, etc.);
(5) land use activities that remove large areas of forested
wetlands and riparian systems;
(6) dam, culvert and pipe, or other instream installations that
create barriers to movement for the Kentucky creekshell, or their host
fish, the banded sculpin;
(7) impacts from invasive species;
(8) changes and shifts in seasonal temperature and precipitation
patterns as a result of climate change; and
(9) other watershed and floodplain disturbances that release
sediments, pollutants, or nutrients into the water.
Management activities that could ameliorate these threats include
but are not limited to: use of best management practices designed to
reduce sedimentation, erosion, and bank destruction; protection of
riparian corridors and woody vegetation; 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.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat.
We are proposing to designate critical habitat in areas within the
geographical area occupied by the species at the time of listing. We
also are proposing to designate specific areas outside the geographical
area occupied by the species because we have determined those areas are
essential for the conservation of the species. Rangewide recovery
considerations, such as maintaining existing genetic diversity and
representation of all major portions of the species' current range,
were considered in formulating this proposed critical habitat
designation. Given the Kentucky creekshell's substantial lost
historical range and currently fragmented populations, we are
designating unoccupied areas. The unoccupied critical habitat areas we
are adding each contain one or more physical or biological features
essential to the conservation of the Kentucky creekshell (although not
required by 50 CFR 424.12). These features include suitable water
quality and quantity, substrates, food, host fish, connected instream
habitat, and/or mussel beds. Designating unoccupied areas would aid in
increasing the species' currently low redundancy, as having additional
protected and connected habitat will contribute to the conservation of
the species as it will allow the species to expand in the future
through recovery efforts. Thus, the unoccupied units we are designating
are essential for the conservation of the Kentucky creekshell.
Sources of data for this proposed critical habitat designation
include multiple databases maintained by universities, information from
State agencies throughout the species' range, and survey reports on
streams throughout the species' range (see SSA report (Service 2023,
entire)). We have also reviewed available information that pertains to
the habitat requirements of this species. Sources of information on
habitat requirements include studies conducted at occupied sites,
agency reports, and data collected during monitoring efforts (Service
2023, entire).
In summary, for areas within the geographical area occupied by the
species at the time of listing, we delineated occupied critical habitat
unit boundaries using the following criteria:
(1) Stream reaches with species occurrences after 2003;
(2) Suitable habitat with at least one physical or biological
feature present, such as suitable substrates and spring-influenced
river reaches;
(3) A stream reach that provides a connective corridor between
populations; and/or
(4) A stream reach that may contain a historical Kentucky
creekshell occurrence.
For areas within the geographical area not occupied by the species
at the time of listing, we delineated unoccupied critical habitat unit
boundaries using the following criteria:
(1) Stream reaches with species occurrences before 2003 or expert
opinion that the species likely once existed in the reach;
(2) Suitable habitat with at least one physical or biological
feature present,
[[Page 76211]]
such as suitable substrates and spring-influenced river reaches; and
(3) A stream reach that provides a connective corridor between
populations or provides a logical reintroduction location for the
recovery of a unit.
In addition, we determined the upstream extent of critical habitat
units as the first perennial tributary confluence upstream of the
upstream-most occurrence record and the downstream extent as the mouth
of the stream of the farthest downstream record. The lateral extent of
each unit includes the bankfull width of the stream. We considered
portions of the Kentucky creekshell's historical, current range as well
as any stream segment that had one or more PBFs that would contribute
to the continuation of the species. The scale of the maps we prepared
under the parameters for publication within the Code of Federal
Regulations may not reflect the exclusion of such developed lands. Any
such lands inadvertently left inside critical habitat boundaries shown
on the maps of this proposed rule have been excluded by text in the
proposed rule and are not proposed for designation as critical habitat.
Therefore, if the critical habitat is finalized as proposed, a Federal
action involving these lands would not trigger section 7 consultation
with respect to critical habitat and the requirement of no adverse
modification unless the specific action would affect the physical or
biological features in the adjacent critical habitat. The scale of the
maps we prepared under the parameters for publication within the Code
of Federal Regulations may not reflect the exclusion of such developed
lands. Any such lands inadvertently left inside critical habitat
boundaries shown on the maps of this proposed rule have been excluded
by text in the proposed rule and are not proposed for designation as
critical habitat. Therefore, if the critical habitat is finalized as
proposed, a Federal action involving these lands would not trigger
section 7 consultation with respect to critical habitat and the
requirement of no adverse modification unless the specific action would
affect the physical or biological features in the adjacent critical
habitat.
We propose to designate as critical habitat areas that we have
determined are occupied at the time of listing (i.e., currently
occupied) and that contain one or more of the physical or biological
features that are essential to support life-history processes of the
species. We have also identified, and propose for designation as
critical habitat, four unoccupied areas that are essential for the
conservation of the species. These unoccupied areas all have one or
more of the physical or biological features present to support Kentucky
creekshell's life-history processes.
The proposed critical habitat designation is defined by the map or
maps, as modified by any accompanying regulatory text, presented at the
end of this document under Proposed Regulation Promulgation. We include
more detailed information on the boundaries of the critical habitat
designation in the preamble of this document.
Proposed Critical Habitat Designation
We are proposing 10 units as critical habitat for Kentucky
creekshell. The critical habitat areas we describe below constitute our
current best assessment of areas that meet the definition of critical
habitat for Kentucky creekshell. Critical habitat includes only stream
channels up to bankfull height, where the stream base flow is contained
within the channel. The 10 areas that we propose as critical habitat
are: (1) Green River; (2) Barren River; (3) Gasper River; (4) Drakes
Creek; (5) Trammel Creek; (6) Salt Lick Creek; (7) Russell Creek; (8)
Middle Nolin River; (9) Upper Nolin River; and (10) Rough River. Table
1 shows the proposed critical habitat units and the approximate area of
each unit.
Table 1--Proposed Critical Habitat Units for Kentucky Creekshell
[Area estimates reflect all land within critical habitat unit boundaries.]
----------------------------------------------------------------------------------------------------------------
Adjacent riparian land Length of unit in miles
Critical habitat unit number/name ownership (kilometers) Occupied?
----------------------------------------------------------------------------------------------------------------
Unit 1: Green River, Subunit 1a Private, NPS, State 72.21 (116.2) Yes.
(Green River). agency.
0.67 (1.1)
0.12 (0.2)
Total = 73.0 (117.5)
Unit 1: Green River, Subunit 1b Private, NPS........... 50.2 (80.8) No.
(Green River).
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 Private, USACE, State 53.7 (86.4) No.
8a (Nolin River). agency.
0.38 (0.63)
0.39 (0.68)
Total = 54.5 (87.7)
Unit 8: Middle Nolin River Subunit 8b Private, USACE......... 9.8 (15.9) Yes.
(Round Stone Creek).
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 Private, USACE......... 35.8 (57.6) Yes.
(Rough River and Meeting Creek).
1.6 (2.7)
Total = 37.5 (60.4)
Unit 10: Rough River Subunit 10b Private, USACE......... 11.3 (18.2) No.
(Clifty Creek).
0.34 (0.54)
[[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
[[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
[[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
[[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
[[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
[[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.
[[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
[[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.
[[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
[[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.
[[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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. In Sec. 17.11, amend paragraph (h) in the List of Endangered and
Threatened Wildlife by adding an entry for ``Creekshell, Kentucky'' in
alphabetical order under CLAMS to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations
Common name Scientific name Where listed Status 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\
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. In Sec. 17.95, amend paragraph (f) by adding an entry for
``Kentucky Creekshell (Leaunio ortmanni)'' after the entry for ``Canoe
Creek Clubshell (Pleurobema athearni)'' to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(f) * * *
* * * * *
Kentucky Creekshell (Leaunio ortmanni)
(1) Critical habitat units are depicted for Adair, Allen, Barren,
Breckinridge, Butler, Edmonson, Grayson, Green, Hardin, Hart, Larue,
Logan, Monroe, Simpson, and Warren Counties, Kentucky, and Macon
County, Tennessee, on the maps in this entry.
(2) Within these areas, the physical or biological features
essential to the conservation of Kentucky creekshell consist of the
following components:
(i) Water quantity and quality necessary to sustain natural
physiological processes for normal behavior, growth, and viability of
all life stages, including (but not limited to) water conditions in the
stream that are cool; are well-oxygenated with no evidence of excessive
sediments or suspended solids, salinity, ammonia, nutrients,
pesticides, or herbicides; and have a stream flow and pattern
consistent with natural flow regimes. Spring-influenced river sections
are important: Most Kentucky creekshell populations are associated with
this habitat type, and it is also the preferred habitat type for the
host fish, the banded sculpin (Cottus carolinae).
(ii) Suitable substrates and connected instream habitats
characterized by
[[Page 76223]]
geomorphically stable stream channels and banks (i.e., channels that
maintain lateral dimensions, longitudinal profiles, and sinuosity
patterns over time without an aggrading or degrading bed elevation);
stable riffle-run-pool habitats that provide flow refuges consisting of
predominantly silt-free, stable coarse sand, gravel, and cobble
substrates.
(iii) Adequate food availability for Kentucky creekshell including
(but not limited to): suspended phytoplankton, zooplankton, rotifers,
protozoans, detritus, and dissolved organic matter from the water
column or sediments.
(iv) Habitat conditions that support the presence and abundance of
banded sculpin, the host fish necessary for Kentucky creekshell
recruitment, as well as the actual presence and abundance of the banded
sculpin in the habitat.
(v) Connected instream habitats without barriers such as dams and
perched or undersized culverts to provide suitable lotic rather than
lentic habitat; access to quality habitat for multiple life stages of
Kentucky creekshell; access for host fish movement, which in turn, may
influence Kentucky creekshell distribution and provide genetic exchange
for both species and recolonization of Kentucky creekshell.
(vi) Appropriate abundance, density, and distribution of mussel
beds (aggregations of freshwater mussels) such that local stochastic
events do not necessarily eliminate the bed(s), allowing the mussel
beds and the overall local population within a stream reach to recover
from any single event and for resilient populations.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of the final rule.
(4) Data layers defining map units were created using ArcGIS
Profession version 3.2.2 (Environmental Systems Research Institute,
Inc.), a geographic information systems program on a base of USA Topo
Maps. Critical habitat units were then mapped by delineating stream
segments and polygons from the National Hydrography Database high-
resolution flow lines and areas with USA Contiguous Albers Equal Area
Conic USGS projection and NAD83 datum. The maps in this entry, as
modified by any accompanying regulatory text, establish the boundaries
of the critical habitat designation.
(5) Index map follows:
BILLING CODE 4333-15-P
Figure 1 to Kentucky creekshell (Leaunio ortmanni) paragraph (5)
[GRAPHIC] [TIFF OMITTED] TP17SE24.001
[[Page 76224]]
(6) Unit 1: Green River; Green, Hart, Edmonson, Butler, and Warren
Counties, Kentucky.
(i) Unit 1 consists of 130.7 stream miles (210.4 km) in Green,
Hart, Edmonson, Butler, and Warren Counties, Kentucky. The unit
includes both occupied and unoccupied subunits.
(A) Subunit 1a (Green River) is approximately 73.0 stream miles
(117.5km) and considered occupied habitat. Nearly all (approximately 99
percent) of the lands adjacent to subunit 1a are privately owned. The
remaining lands adjacent to this subunit (one percent) are federally or
State owned.
(B) Subunit 1b (Green River) is approximately 57.7 stream miles
(92.9 km) and considered unoccupied habitat. Approximately 87 percent
of the lands adjacent to subunit 1b are privately owned. The remaining
13 percent is federally owned.
(ii) Map of Unit 1 follows:
Figure 2 to Kentucky creekshell (Leaunio ortmanni) paragraph (6)(ii)
[GRAPHIC] [TIFF OMITTED] TP17SE24.002
(7) Unit 2: Barren River; Butler, Warren, Allen, and Barren
Counties, Kentucky.
(i) Unit 2 consists of 79.9
[…truncated; see source link]Indexed from Federal Register on September 17, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.