Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Five Endangered and Two Threatened Mussels in Four Northeast Gulf of Mexico Drainages, 64286-64340 [07-5551]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 72, Number 220 (Thursday, November 15, 2007)]
[Rules and Regulations]
[Pages 64286-64340]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-5551]



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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; Designation of Critical 
Habitat for Five Endangered and Two Threatened Mussels in Four 
Northeast Gulf of Mexico Drainages; Final Rule

Federal Register / Vol. 72, No. 220 / Thursday, November 15, 2007 / 
Rules and Regulations

[[Page 64286]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU87


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Five Endangered and Two Threatened Mussels in Four 
Northeast Gulf of Mexico Drainages

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
designating critical habitat for the endangered fat threeridge (Amblema 
neislerii), shinyrayed pocketbook (Lampsilis subangulata), Gulf 
moccasinshell (Medionidus penicillatus), Ochlockonee moccasinshell 
(Medionidus simpsonianus), and oval pigtoe (Pleurobema pyriforme), and 
the threatened Chipola slabshell (Elliptio chipolaensis) and purple 
bankclimber (Elliptoideus sloatianus) (collectively referred to as the 
seven mussels) under the Endangered Species Act of 1973, as amended 
(Act). The total length of streams designated is approximately 1,185.9 
river miles (river mi) (1,908.5 river kilometers (river km)). The 
critical habitat is located in Houston and Russell counties, Alabama; 
in Alachua, Bay, Bradford, Calhoun, Columbia, Franklin, Gadsden, Gulf, 
Jackson, Leon, Liberty, Union, Wakulla, and Washington counties, 
Florida; and in Baker, Calhoun, Coweta, Crawford, Crisp, Decatur, 
Dooly, Dougherty, Early, Fayette, Grady, Lee, Macon, Marion, 
Meriwether, Miller, Mitchell, Peach, Pike, Schley, Spalding, Sumter, 
Talbot, Taylor, Terrell, Thomas, Upson, Webster, and Worth counties, 
Georgia.

DATES: This rule becomes effective on December 17, 2007.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, will be 
available for public inspection, by appointment, during normal business 
hours, at the U.S. Fish and Wildlife Service, Panama City Ecological 
Services Office, 1601 Balboa Avenue, Panama City, FL 32405 (telephone 
850-769-0552). The final rule, economic analysis, and maps will also be 
available via the Internet at https://www.fws.gov/panamacity/.

FOR FURTHER INFORMATION CONTACT: Gail Carmody, Field Supervisor, Panama 
City Ecological Services Office, 1601 Balboa Avenue, Panama City, FL 
32405; telephone 850-769-0552; facsimile 850-763-2177. If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this final rule. For additional 
information on the seven mussels, refer to the final listing rule 
published in the Federal Register on March 16, 1998 (63 FR 12664), the 
final recovery plan that was approved September 19, 2003 (available 
from our Panama City, Florida Office or online at https://www.fws.gov/
endangered/recovery/#plans), and the proposed critical 
habitat rule published in the Federal Register on June 6, 2006 (71 FR 
32746).
    The shinyrayed pocketbook was listed as federally endangered under 
the scientific name Lampsilis subangulata. The shinyrayed pocketbook 
and three other Lampsilis species are now assigned to the newly 
recognized genus Hamiota (Roe and Hartfield 2005, p. 1). The Service 
intends to implement the name change in a separate rulemaking. In 
November 2006, an Auburn University scientist working under contract 
for the Service identified eight mussels as shinyrayed pocketbooks that 
he found in a segment of Econfina Creek (M. Gangloff, personal 
communication November 3, 2006). This stream segment is within the area 
designated in this rule as critical habitat for the Gulf moccasinshell 
and oval pigtoe. If the identification is correct, this find represents 
the first record of the shinyrayed pocketbook in the Econfina Creek 
Basin, which was previously known only from the Apalachicola-
Chattahoochee-Flint (ACF) and Ochlockonee basins. The Service intends 
to conduct further surveys to confirm whether the species is in 
Econfina Creek and, if so, to estimate its range and abundance in the 
basin. In this rule, we do not designate Econfina Creek as critical 
habitat for the shinyrayed pocketbook.

Previous Federal Actions

    On March 15, 2004, the Center for Biological Diversity (Center) 
filed a lawsuit against the Department of the Interior and the Service 
(Civil Action No. 1:04 CV-0729-GET) challenging the failure to 
designate critical habitat for the seven mussels. In a settlement 
agreement dated August 31, 2004, the Service agreed to reevaluate the 
prudency of critical habitat for the seven mussels and, if prudent, 
submit a proposed designation of critical habitat to the Federal 
Register by May 30, 2006, and a final designation by May 30, 2007. On 
March 7, 2007, the court granted an extension and set the new final 
designation deadline for October 31, 2007.
    We published the proposed critical habitat rule for the seven 
mussels in the Federal Register on June 6, 2006 (71 FR 32746). We 
accepted public comments on the proposal for 60 days until August 7, 
2007. We completed a draft economic analysis (DEA) for the proposed 
designation on June 6, 2007, and published a notice of availability for 
this DEA in the Federal Register on June 21, 2007 (72 FR 34215). The 
public comment period for the DEA was open until August 6, 2007.
    For more information on previous Federal actions concerning the 
seven mussels, refer to the proposed critical habitat designation (71 
FR 32746, June 6, 2006) and our notice of availability of the draft 
economic analysis (72 FR 34215, June 21, 2007). This final rule 
complies with the settlement agreement.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the seven mussels in the proposed 
rule, and again in the subsequent notice of availability (72 FR 34215). 
On both occasions, we contacted appropriate Federal, State, and local 
agencies; scientific organizations; and other interested parties and 
invited them to comment on the proposed rule. Three public hearings 
were held during the second comment period on July 9, 2007, in 
Columbus, Georgia, July 10, 2007, in Albany, Georgia, and July 11, 
2007, in Tallahassee, Florida.
    During the first comment period that opened on June 6, 2006, and 
closed on August 7, 2006, we received comments from 30 entities that 
directly addressed the proposed critical habitat designation: one from 
a peer reviewer, 3 from Federal agencies, 16 from State and local 
governmental agencies, and 10 from organizations or individuals. We 
received 4 requests for a public hearing, all from entities in the 
LaGrange and Columbus, Georgia, area. During the second comment period 
that opened on June 21, 2007, and closed on August 6, 2007, including 
the three public hearings, we received comments from 25 entities that 
directly addressed the proposed critical habitat designation or the 
draft economic analysis: 4 from peer reviewers, 3 from Federal 
agencies, 7

[[Page 64287]]

from State and local governmental agencies, and 11 from organizations 
or individuals. Of the comments provided during both comment periods, 
six commenters supported the designation of critical habitat for the 
seven mussels and nine opposed the designation. Forty commenters 
provided suggestions or information, but did not indicate support or 
opposition to the critical habitat designation. We received comments 
that were grouped into 70 issues specifically relating to the proposed 
critical habitat designation for the seven mussels, and are addressed 
in the following summary and incorporated into the final rule as 
appropriate.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from seven knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region in which the species occurs, and 
conservation biology principles. We received responses from four of the 
peer reviewers. The peer reviewers generally concurred with our methods 
and conclusions, and provided additional information, clarifications, 
and suggestions to improve the final critical habitat rule. We address 
peer reviewer comments in the following summary and incorporate into 
the final rule as appropriate.
    We reviewed all comments received from the peer reviewers and the 
public for substantive issues and new information regarding critical 
habitat for the seven mussels, and address them in the following 
summary.

Peer Reviewer Comments

    (1) Comment: The Service stated in the proposed rule that ``Most of 
the tributary streams in the four basins that may support one or more 
of the seven species have never been surveyed.'' This seems to cast 
doubt on the adequacy of the data used to designate critical habitat. 
Most streams in this region that are large enough to support these 
species have been surveyed at least to some extent.
    Our Response: We acknowledge that a substantial fraction of the 
unsurveyed tributary streams in the region are probably not large 
enough to support populations of the seven mussels. However, the 
drainage area associated with the upstream-most location in most of the 
occupied watersheds is often quite small (e.g., less than about 5,000 
ha (20 mi\2\)), and we have no data for a majority of locations in the 
four basins that drain areas of this size. Regardless, we have 
considered all available survey data in our analysis for identifying 
critical habitat. We designated only where presence is confirmed by 
surveys.
    (2) Comment: The designation of critical habitat should consider 
whether re-establishing populations in streams where a species formerly 
occurred is necessary to fully recover the species.
    Our Response: The Act provides for designating areas that are 
unoccupied at the time of listing when such areas are essential for the 
conservation of a listed species. We listed the seven mussels based on 
a substantial decline in range and abundance and threats to their 
habitats. Our recovery plan (USFWS 2003:76-83) quantifies the amount of 
range expansion into formerly occupied areas that we believe is 
necessary to achieve recovery for the five species we listed as 
endangered. By delineating critical habitat units as the collective 
extent of occurrence of all seven listed species within a sub-basin, 
our proposed critical habitat included a stream length that met the 
recovery plan's geographic range recovery criteria for each of the five 
endangered species. We do not believe a substantial increase in extent 
of occurrence is either feasible or necessary for the recovery of the 
two threatened species, which have experienced a lesser decline in 
range than the five endangered species. The seven mussels historically 
occupied overlapping but also different portions of the eleven units, 
and it is not necessary for each species to occupy all suitable habitat 
within its designated critical habitat units to achieve recovery. We 
considered designating units for species that are entirely extirpated 
from those units but determined that doing so is not essential for 
their conservation.
    (3) Comment: Characterizing the stream substrates that are 
essential to the conservation of the seven mussels as composed of 
predominantly coarse materials is too simplistic and potentially 
misleading. Fine sediments (silts and clays) are a natural component of 
stream substrates in the coastal plain, including substrates used by 
the seven listed species. In this region, very coarse substrates are 
often associated with channel scouring and are devoid of mussels.
    Our Response: We agree that some amount (generally less than 50 
percent by dry weight) of fine sediment is a normal component of the 
substrate that is essential to the conservation of the seven mussels. 
Coarse sands without any silt or clay, for example, lack cohesiveness 
and do not appear to support many mussels, including the listed 
species. By emphasizing the adverse affects of excessive amounts of 
fine sediments, we may have implied that the seven mussels are 
altogether intolerant of fine sediments, which is not the case. 
Therefore, we have revised the substrate primary constituent element 
(PCE) and our discussion of substrate quality to acknowledge the 
appropriate role of fine sediments in substrate quality.
    (4) Comment: The proposed rule stated that the three other species 
reassigned from the genus Lampsilis to the newly recognized genus 
Hamiota are not federally listed, but two of these are: H. altilis and 
H. perovalis. The third, H. australis, is considered a candidate for 
protection under the Act.
    Our Response: The comment is correct. We erred in stating that the 
three other species are not federally listed, and we have revised the 
text of the final rule accordingly.
    (5) Comment: Because other portions of the Uchee Creek sub-basin 
besides those proposed for designation have supported the shinyrayed 
pocketbook and other listed species as recently as 1973, but have not 
been surveyed much or at all since then, the rule should designate all 
portions of this sub-basin below the Fall Line as critical habitat.
    Our Response: Riverine habitats are dynamic and subject to a 
variety of threats, which makes survey data about the presence of 
particular mussel species time-specific. It is not feasible to 
routinely survey the full range of the seven species, which 
collectively spans over 1,000 river miles. We chose post-1990 live 
occurrence records as a criterion for evidence that a site has 
supported recent occupancy because a great deal of our data comes from 
a range-wide status survey conducted in 1991 and 1992, shortly before 
the species were proposed for listing in 1994. Occurrence records from 
1973 do not meet the criterion we set for evidence of recent occupancy; 
therefore, we did not designate other portions of the Uchee Creek sub-
basin. Our method of identifying stream segments that meet the 
criterion of recent occupancy by one or more of the listed species and 
then delineating units as contiguous groups of these stream segments 
resulted in designating a total length of stream habitat meets our 
recovery plan's geographic range recovery criteria for each of the 
seven mussels (see response to Comment 2). Therefore, we 
believe that designating additional areas for which we do not have 
evidence of recent occupancy is not essential to their conservation. 
Listed species that may occur outside of designated critical habitat 
still receive protection under the

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jeopardy standard of section 7 and the take prohibition of section 9 of 
the Act.
    (6) Comment: Because Sawhatchee and Kirkland creeks are separated 
by unsuitable habitat in an impounded section of the Chattahoochee 
River, these creeks should be designated as separate critical habitat 
units.
    Our Response: We have grouped Sawhatchee and Kirkland creeks in the 
same unit because they share two of three listed species in common and 
flow unimpeded by fish passage barriers into a common water body. Host 
fish, such as largemouth bass, could conceivably transport glochidia 
between these two streams.

Comments from States

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for his failure to adopt 
regulations consistent with the agency's comments or petition.'' We 
address comments received from States regarding the proposal to 
designate critical habitat for the seven mussels below.
    (7) Comment: The designation is overly broad because it includes 
areas at high elevations within the lateral boundaries and areas 
between the upstream and downstream boundaries that do not support the 
mussels.
    Our Response: Our regulations allow the inclusive designation of 
occupied and unoccupied areas in proximity to each other that are each 
essential to the conservation of a species (50 CFR 424.12(d)). We agree 
that the adult seven mussels are seldom found at or near the ordinary 
high water marks in a stream, as this portion of the stream bed is 
inundated only during relatively high flows; however, we have 
determined that the entire stream channel between the ordinary high 
water marks is essential to their conservation as the larval life stage 
of these mussels while attached to a fish host or drifting in the 
current could ``occupy'' all habitats that the fish visits or the 
current takes them, including places at or near the ordinary high water 
marks during high water conditions. The location of suitable areas for 
mussel habitat is dependent on fluvial dynamics that occur mostly 
within the channel up to the ordinary high water marks. A stable stream 
bank that is laterally adjacent to but vertically above a mussel bed is 
essential to the viability of the mussel bed. Further, our regulations 
prescribe the use of reference points and lines as found on standard 
topographic maps for describing the boundaries of critical habitat (50 
CFR 424.12(c)). The ordinary high water marks as defined in the Corps' 
navigation regulations (33 CFR 329.11) roughly correspond to how river 
channels are represented on standard topographic maps. We agree also 
that the adult seven mussels are not found at all locations between the 
upstream and downstream boundaries given the unit descriptions. 
However, as with the lateral boundaries, we have determined that the 
entire stream channel between the upstream and downstream limits is 
essential to their conservation. Riverine habitats are dynamic, and 
locations that provide suitable conditions for mussels may shift over 
time between these upstream and downstream limits. Connectivity between 
the upstream and downstream limits provides for host fish movement, 
gametes transport, dispersal into newly suitable habitats, and food 
items transport. Therefore, we have kept these areas in the 
designation.
    (8) Comment: The designation is contrary to the Act because it 
includes areas that do not contain all of the physical and biological 
features that the Service determined are essential to the conservation 
of a listed species and may require special management (PCEs). For 
example, Unit 8 (Apalachicola River) includes the distributary Swift 
Slough, which has aggraded (filled with sediment) in recent years and 
no longer flows continuously.
    Our Response: Each of the 11 units designated as critical habitat 
contains all of the PCEs, and each stream segment listed in the unit 
descriptions contains one or more of the PCEs. Neither the Act nor our 
regulations require that all portions of a designated critical habitat 
unit contain all of the PCEs. Mobile animals typically satisfy various 
life history requirements by relying upon different habitat features in 
different portions of their range. While juveniles and adults of the 
seven mussels are relatively immobile animals, their glochidia (larvae) 
and host fish are not. Dispersal via fish hosts is how the species 
colonize new areas and is necessary to achieve recovery, although 
mussels are also sometimes moved into new areas by high-flow events. 
Mussels will best survive and reproduce in specific areas that 
consistently provide all of the PCEs, but do not necessarily persist 
permanently in any one area given the dynamic nature of the riverine 
environment. Interrupted flow due to the accumulation of sediment in 
the bed of Swift Slough has recently led to substantial mortality of 
listed mussels in this stream during periods of low-flow in the 
Apalachicola River. However, it does not follow that this or any 
particular area within a critical habitat unit that lacks all of the 
PCEs cannot be included in a critical habitat unit. Stream bed 
aggradation in Swift Slough signals the need for special management of 
the channel stability PCE in at least the Swift Slough portion of Unit 
8. While permanently flowing water, channel stability, etc., are 
features essential to the conservation of the seven mussels in each 
designated unit, we recognize that some portions of all 11 units have 
problems with at least one of the PCEs that may require special 
management or protections.
    (9) Comment: Florida Fish and Wildlife Conservation Commission 
personnel found shell material of the listed species in the Brushy 
Creek ``feeders'' (floodplain distributaries of the Apalachicola River 
that flow into Brushy Creek). The Service must determine whether the 
Brushy Creek feeders were likely occupied in 1998 (the time of 
listing), and if so, designate those streams if they otherwise qualify 
as critical habitat. Areas like the Brushy Creek feeders, currently 
unoccupied, should be designated anyway if they are essential for the 
conservation of the species. Areas like the Brushy Creek feeders are 
key to the recovery of mussels because they can act as nursery areas 
and provide for population expansion.
    Our Response: We relied upon post-1990 live occurrence records to 
provide evidence that areas were likely occupied at the time of 
listing, and we have no such evidence for the Brushy Creek feeders. 
Dead shells found recently in these distributaries, which receive flow 
directly from a part of the main channel of the Apalachicola River 
where listed species are known to occur, is not evidence that these 
streams support the listed species now or at the time of listing. It is 
more likely that the shells found in the Brushy Creek feeders were 
transported by currents from the main channel. We believe that areas 
for which we have no evidence of recent occupancy are not essential to 
the conservation of the listed mussels (see responses to comments 
2 and 5). We do not believe that the Brushy Creek 
feeders or other similar sites not included in this designation provide 
``nursery'' areas for mussels that are necessary for their recovery. 
The concept of a nursery area implies that mussels occupy one area as 
juveniles and another as adults. We have no evidence that such 
movements are occurring.

Public Comments

    (10) Comment: Line Creek in Unit 5 (Upper Flint River) does not 
provide suitable habitat for the listed mussels.

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    Our Response: Live listed species have been found in Line Creek 
downstream of its confluence with Whitewater Creek since 1990, and this 
segment contains PCEs. Consistent with our criteria for identifying 
critical habitat, we included this section of Line Creek in Unit 5.
    (11) Comment: Critical habitat designation will add costly delays 
to permitting a recreational reservoir on Tired Creek, which is 
upstream of designated habitat in Unit 9 (Upper Ochlockonee River).
    Our Response: The Service is designating critical habitat only 
where the mussels are currently present. Therefore, a Federal action 
that ``may affect'' critical habitat (and would trigger formal 
interagency consultation) would also result in a ``may affect'' 
determination for one or more mussel species (requiring formal 
consultation in and of itself). Our regulations prescribe specific 
timeframes in which to complete the formal consultation process with 
Federal agencies. These timeframes are the same whether or not critical 
habitat is designated and consulted upon during the required 
consultation process. Critical habitat designation does not create a 
separate consultation process. While the need to consult on adverse 
modification on critical habitat does not increase the statutorily 
allowed amount of time for consultation, it could increase the amount 
of effort that goes into the consultation process due to the different 
criteria for a jeopardy consultation versus an adverse modification 
consultation. Consideration of designated critical habitat in other 
environmental requirements (such as National Environmental Policy Act 
(42 U.S.C. 4321 et seq.)), similarly would not add to the length of 
time needed to comply with those requirements.
    (12) Comment: The proposed critical habitat for the seven mussels 
overlooks large areas of potential habitat and essentially disregards 
the Service's own recovery goals for these species. The Service should 
designate unoccupied areas containing PCEs within the historical range 
of the seven mussels.
    Our Response: Our June 6, 2006, proposed rule explained how we 
delineated the upstream and downstream limits of proposed critical 
habitat using the collective current distribution (post-1990 surveys) 
of all seven mussels and landscape features (e.g., tributary 
confluence, upstream extent of a reservoir) that indicated a 
significant change in aquatic habitat conditions (71 FR 32757-32758 
``Criteria Used To Identify Critical Habitat''). This approach resulted 
in 11 hydrologically and ecologically contiguous units, each of which 
is a collection of stream segments that flow unimpeded by fish passage 
barriers into a common reservoir or estuary. Moreover, as we noted in 
our response to peer-review comment 2, the total stream length 
delineated by these methods meets the geographic range recovery 
criteria in the recovery plan (Service 2003) for each of the five 
species listed as endangered.
    (13) Comment: Currently occupied habitat is insufficient for 
conservation of the seven mussels and, therefore, the critical habitat 
designation must include unoccupied habitat. Unsurveyed tributary 
creeks that likely support the seven mussels are excluded from the 
proposed critical habitat because the Service cannot confirm that 
mussels are present.
    Our Response: Our recovery plan for the seven mussels (Service 
2003) notes that re-introduction in presently unoccupied habitat is 
needed for the conservation of the five mussels listed as endangered, 
but not for the two threatened, species. The two threatened species, 
the Chipola slabshell and the purple bankclimber, each occupy well more 
than 50 percent of the historical range, which is the criterion we 
adopted for range expansion as a measure of recovery in the recovery 
plan. For the five endangered species, the stream length included in 
the designation meets the recovery plan's geographic range recovery 
criteria (see our responses to peer-review comment 2). 
Therefore, we believe the units designated provide a sufficient amount 
of habitat to support recovery, which precludes the need to designate 
unsurveyed tributaries that are not known to support the seven mussels. 
Nevertheless, we would recognize the contribution towards recovery of 
any populations found in previously unsurveyed streams in our periodic 
reviews of the conservation status of the seven species.
    (14) Comment: While permanently flowing water is essential to the 
seven mussels' survival, flowing water alone is insufficient for the 
conservation of these species. The final rule should adopt the Service-
Environmental Protection Agency (EPA) instream flow guidelines as the 
flow-related PCE.
    Our Response: We discussed in the June 6, 2006, proposed rule the 
role of natural variability in the flow regime to the structure, 
composition, and functioning of riverine biological communities. The 
Service-EPA flow guidelines are measures of flow variability that may 
serve as thresholds for ``may affect'' determinations for proposed 
Federal actions that would alter a flow regime (e.g., water 
withdrawals, dam operations). It was not practical or useful to compute 
the flow guidelines for the entire region that this designation spans, 
because the guidelines were designed as a tool for site- and project-
specific analysis. Further, the guidelines do not establish a general 
standard or ``bottom line'' for flow regime features that are essential 
to the conservation of listed species. Recognizing the many 
complexities involved in quantifying essential flow regime features for 
the seven mussels, we adopted a qualitative expression that applies 
throughout the range of the seven mussels and is clearly necessary for 
their recovery: ``permanently flowing water.''
    (15) Comment: Riparian buffers are essential to the conservation of 
the seven mussels and should be designated as primary constituent 
elements. If the final rule does not include intact riparian buffers as 
a primary constituent element, it should address riparian zones as a 
necessary element of related primary constituent elements.
    Our Response: Many factors operating outside the channel in the 
larger watershed affect streams and their inhabitants. Conditions in 
the riparian zone are among the most influential of these factors by 
virtue of immediate proximity to the stream channel, but the seven 
mussels do not occur in the riparian zone. A wide array of riparian 
buffer dimensions and vegetative characteristics are associated with 
the mussels. Activities within the riparian zone are among those that 
may adversely affect the PCEs, and likewise, some conservation actions 
to protect or enhance the PCEs may occur within the riparian zone. 
However, specific biological and physical features within the riparian 
zone are themselves not essential to the conservation of the seven 
mussels. We have used the ordinary high water marks of the channel as 
the lateral bounds for this designation (see also our response to 
comment 7), which encompasses all of the PCEs that we have 
defined for this designation.
    (16) Comment: One PCE recognizes fish hosts as necessary to 
``support the larval life stages of the seven mussels,'' but none 
address the habitat needs of the host fish species. The final critical 
habitat designation should be consistent with the rule for five 
Tennessee and Cumberland River mussels, which defined ``Fish hosts with 
adequate living, foraging, and spawning areas for them'' as a PCE, and 
also linked the ``flow regime'' and ``water quality'' PCEs

[[Page 64290]]

for the mussels with the needs of the host fish.
    Our Response: PCEs are essential physical and biological features 
that are found within critical habitat, the lateral boundaries of which 
we have delimited as the ordinary high water marks of the stream 
channel. The final critical habitat rule for five endangered mussels in 
the Tennessee and Cumberland River basins also used the same criteria 
(ordinary high water mark) to define the lateral boundaries of critical 
habitat. Therefore, while the wording of the PCEs might be different, 
the protection levels are the same since both use the ordinary high 
water mark to delineate the lateral boundaries of critical habitat.
    Several fish species that have been identified through laboratory 
tests as potential hosts for the seven mussels are known to spawn most 
successfully in floodplain habitats (e.g., largemouth bass), which 
occur outside the critical habitat boundaries. We agree that the 
habitat needs of host fish are important considerations in mussel 
conservation, but as with our response to Comment 15 regarding 
riparian buffers, we distinguish between PCEs and factors that may 
affect PCEs. The timely presence of appropriate host fish is the 
habitat feature that is essential for the survival and recovery of the 
mussels (i.e., the PCE itself), whereas the habitat requirements of the 
host fish are factors affecting that PCE.
    (17) Comment: The rule does not contain the summary of data on 
which the proposal is based, does not show the relationship of such 
data to the rule proposed, or provide citations to the mussel surveys 
relied upon, as required by the Service's regulations at 50 CFR 424.16.
    Our Response: Our summary of data supporting the PCEs is provided 
in the ``Primary Constituent Elements'' section. Our summary of data 
supporting the delineation of units is given in the ``Criteria Used To 
Identify Critical Habitat'' section. The mapping process involved an 
overlay of all available site-specific locality data for the seven 
mussels, which itself was not included in the published proposed rule 
and is not included in this final rule. The sources for all mussels 
survey data used in the mapping process are cited at the conclusion of 
each unit's description, where we list the species for which each unit 
is designated. A complete list of these and all references cited in 
this rulemaking is available upon request from the Panama City 
Ecological Services Office (see ADDRESSES).
    (18) Comment: The Service should not designate Swift Slough, which 
is part of Unit 8 (Apalachicola River), because it does not have the 
permanently flowing water PCE.
    Our Response: It is not necessary for all PCEs to be present in all 
portions of critical habitat at all times (see our response to Comment 
8). Habitat features change over time, and different portions 
of a unit will provide a different mix of the PCEs. At the time we 
initially drafted the proposed rule, we were not yet aware of sediment 
accumulation in Swift Slough that now results in its disconnection from 
the main channel of the Apalachicola River during low flows. Although 
mussels in Swift Slough have suffered considerable mortality since the 
summer of 2006, some animals persist from what was apparently a 
relatively large population. Swift Slough still meets the criteria we 
used to identify critical habitat; therefore, it is still included in 
the designation.
    (19) Comment: Water withdrawals are mentioned as causing changes in 
riverine habitats. This is a mis-statement of facts. If water is 
withdrawn and used and properly treated and returned to the basin of 
origin, it does not change the riverine habitat.
    Our Response: Most out-of-stream uses of water return less than 100 
percent of the water that is withdrawn, due to evaporation and other 
losses. In 2005, about half of the water withdrawn for municipal and 
industrial use in the Chattahoochee Basin upstream of West Point Dam 
was not returned to the river (Georgia Environmental Protection 
Division, unpublished data). Water withdrawals may affect aquatic 
habitat conditions and aquatic communities, depending on their timing 
and magnitude relative to stream flow. For example, fish assemblages 
were significantly less diverse downstream from relatively large water 
withdrawals and downstream from water supply reservoirs in the lower 
Piedmont region of Georgia (Freeman 2005).
    (20) Comment: The fact that the fecal coliform bacteria standard is 
violated in some reaches of the critical habitat has no effect on 
mussels. This standard is set to protect humans engaging in whole body 
contact with the water such as swimming.
    Our Response: We agree that fecal coliform bacteria standards are 
established to protect human health and violations of these standards 
do not necessarily indicate conditions that are harmful to mussels. 
However, it is possible that some of the bacteria and protozoans 
associated with wastewater discharges, which often includes fecal 
coliform bacteria, may adversely affect mussel reproduction (Goudreau 
et al. 1993:221). High fecal coliform levels may also derive from non-
point sources such as pastures and farms following rain events. Because 
the overland runoff that delivers fecal coliform bacteria from non-
point sources to streams may also carry pesticides, fertilizers, and 
other pollutants, elevated levels of other pollutants are often 
associated with high coliform counts.
    (21) Comment: The statements that ``Many pollutants in the ACF 
Basin originate from * * * and municipal waste water facilities'' in 
the proposed rule implies that waste water facilities are the source of 
pollutants that are harmful to the mussels. This is not correct if the 
waste water facilities are in compliance with National Pollutant 
Discharge Elimination System (NPDES) permits. All NPDES permits are 
required to ``not violate water quality standards,'' therefore the 
mussels would be protected. The fact that someone counted 137 municipal 
waste water facilities in the ACF basin is not relevant to the 
protection of the mussels assuming that these facilities all have NPDES 
permits and are in compliance. To arbitrarily assume that these 
facilities are not in compliance without factual data is wrong and is 
unscientific.
    Our Response: Municipal waste water treatment processes remove most 
but generally not 100 percent of all pollutants. Although treatment 
facilities and other point-source discharges may comply with NPDES 
permit conditions, the combined pollutant loading from all sources in a 
watershed may contribute to a total loading such that some reaches do 
not meet one or more water quality standards. When a stream is 
identified as impaired under the Clean Water Act (33 U.S.C. 1251 et 
seq.), the States initiate a process for developing total maximum daily 
load regulations under their delegated administration of the Clean 
Water Act. Our proposed rule indicated which critical habitat units 
contain stream segments on the impaired waters lists of the States. Our 
reference to the number of treatment facilities in the ACF Basin was 
part of describing the environmental setting of the critical habitat 
units. We did not assume or mean to imply that treatment facilities in 
the ACF were or were not in compliance with NPDES permits.
    (22) Comment: These two statements in the proposed rule contradict 
each other: (1) ``The ranges of several standard physical and chemical 
water quality parameters (such as temperature, DO, pH, conductivity) 
that define suitable habitat conditions for the seven mussels have not 
been specifically investigated;'' and (2) ``Various contaminants in 
point and non-point

[[Page 64291]]

source discharges can degrade water and substrate quality and adversely 
affect mussel populations.''
    Our Response: Our reference to ``several standard physical and 
chemical water quality parameters'' did not include contaminant 
concentrations. Parameters are those that aquatic biologists routinely 
measure with instruments in the field. Concentrations of contaminants 
that are known to adversely affect mussels, such as ammonia and heavy 
metals, are generally measured using water or sediment samples taken to 
a laboratory and not using instruments in the field. We have revised 
the rule language to avoid the apparent contradiction of these two 
statements.
    (23) Comment: There is no scientific basis given for implying that 
septic systems are responsible for mussel threats.
    Our Response: We include maintaining septic systems among the 
management considerations to deal with the threat of pollution to 
mussel habitats because inadequately maintained systems may contribute 
nutrients and other pollutants to ground water that can seep into 
surface water bodies. Nutrient loading can lead to algal blooms and low 
dissolved oxygen levels that adversely affect mussels, which we discuss 
under the water quality PCE.
    (24) Comment: The impacts associated with Whitewater Creek Park are 
minimal; therefore, the Service should exclude Macon County, Georgia, 
from the designation.
    Our Response: We do not include Whitewater Creek and Whitewater 
Creek Park in Macon County in designated critical habitat for the seven 
mussels. However, we do include a different Whitewater Creek in Fayette 
County, Georgia. We also include the main channel of the Flint River 
and Hogcrawl Creek in Macon County as parts of Unit 5 (Upper Flint 
River).
    (25) Comment: Critical habitat for the seven mussels is not 
determinable because the Service has insufficient data. Most of the 
mussel distributional records are from the early 1990s and further 
studies are needed to define suitable habitat conditions for the seven 
mussels.
    Our Response: Much of the survey data upon which we relied dates 
from the early 1990s, but this does not in and of itself render 
critical habitat undeterminable. The Act contemplates critical habitat 
designation ``at the time it [the species] is listed'' (Sect. 
3(5)(A)(i)); therefore, we must necessarily rely on distributional data 
from the time of listing as well as more recent data. It happens that 
most of our records are from the early 1990s because the most 
comprehensive survey effort in the range of the seven mussels 
immediately preceded the listing proposal, which was published on 
August 3, 1994 (59 FR 39524). Due to a moratorium on listing actions 
declared by Congress shortly thereafter, we did not publish a final 
rule until March 16, 1998 (63 FR 12664). We agree that further studies 
are needed to more quantitatively define the seven mussels habitat 
requirements; however, the best available information regarding those 
requirements is sufficient to define qualitative but workable and 
meaningful PCEs. Further, the PCEs adopted in this rule are generally 
consistent with those adopted in previous rules designating critical 
habitat for freshwater mussels.
    (26) Comment: Contrary to the Service's regulations at 50 CFR 
424.12(c), the Service has used an imprecise ephemeral boundary, the 
ordinary high water marks, to define the lateral extent of the proposed 
critical habitat area.
    Our Response: Although the ordinary high water marks of a stream 
may shift location over time, they do not disappear. The intent of the 
regulation cited is avoiding reliance in critical habitat descriptions 
on ephemeral features, i.e., features that last a relatively short 
time. We agree that the ordinary high water marks are not a precise or 
a fixed set of coordinates over time, but they are an appropriate 
descriptor for dynamic riverine habitat. A fixed set of coordinates 
that would fully encompass the areas we have determined are essential 
would either become quickly obsolete through natural or human-induced 
lateral channel migration, or would delineate an overly broad area by 
including a fair amount of terrestrial habitat.
    (27) Comment: The analysis of what activities may affect the 
proposed critical habitat designation set forth in the proposed rule is 
both misleading and incomplete. As a result some persons may conclude 
by default that any and all activities affecting portions of the 
critical habitat, however minimally, will require consultation under 
section 7 of the Act.
    Our Response: The section 7 consultation process applies only to 
Federal actions. Federal agencies are responsible for determining 
whether their actions may affect listed species or designated critical 
habitats. Action for which the action agency makes ``no effect'' 
determinations does not require further consultation with the Service. 
Service concurrence is required for other determinations, and the 
Service routinely assists Federal agencies in defining classes of 
actions that may comply with section 7 through informal consultation. 
The formal consultation process, which requires the Service to prepare 
a biological opinion, applies to those actions that Federal agencies 
determine may adversely affect the listed species or designated 
habitat. We do not expect the designation of critical habitat to 
appreciably increase either the number of actions per year to which the 
consultation process applies or for which formal consultation is 
required.
    (28) Comment: The proposed rule provides no guidance for 
determining which features of the flow regime are important to mussels 
and their host fishes. Therefore, it is impossible to determine whether 
the Service has actually made a determination that certain activities 
presumptively ``may affect'' critical habitat. The Service-United 
States Environmental Protection Agency instream flow guidelines 
referenced in the proposed rule do not provide a sufficient or 
appropriate basis for evaluating proposed activities, because the 
guidelines are not self-explanatory and are not obviously relevant to 
the seven mussels.
    Our Response: The measures of flow magnitude, duration, frequency, 
and seasonality that are included in the Service-USEPA instream flow 
guidelines (USFWS and USEPA 1999) may be used to determine whether 
Federal actions may affect listed species. This is the express purpose 
of the guidelines, which is relevant to the seven mussels. Application 
of the guidelines for this purpose is a site-specific and data-
intensive process that involves computing long-term flow statistics for 
a project area with and without a proposed Federal action. Actions that 
would alter the flow parameters included in the guidelines, e.g., 
increase the maximum number of days per year that flow is less than 25 
percent of average annual discharge, may adversely affect listed 
species and require formal consultation. The process for computing and 
applying the guidelines is explained in the guidelines document. 
However, to provide more information about the guidelines in this 
designation, we have added a listing of the flow regime features that 
are included in the guidelines to the flow regime PCE discussion.
    (29) Comment: The Service should follow the procedures prescribed 
by the National Environmental Policy Act (NEPA) as part of this 
rulemaking.
    Our Response: It is our position that, outside the jurisdiction of 
the Tenth Federal Judicial Circuit, we are not required to prepare 
environmental analyses as defined by NEPA in

[[Page 64292]]

connection with designating critical habitat under the Endangered 
Species Act of 1973, as amended (see Required Determinations--NEPA).
    (30) Comment: The Service fails to note that impoundments are very 
efficient in removing sediment, with large southeastern reservoirs 
trapping 80-90% of the incoming sediment.
    Our Response: In the ``Summary of Threats to Surviving 
Populations'' section, we note how impoundments block the natural 
downstream movement of sediment, which commonly leads to channel 
degradation in the tailwaters of dams built in alluvial rivers 
(Williams and Wolman 1984, p. 14; Lignon et al. 1995, p. 187). Rather 
than providing a net benefit to mussels by trapping excessive sediment 
loads, dams may largely remove native riverine mussels from tailwater 
areas through channel scouring processes as well as from stream 
segments inundated by reservoirs. For example, the fat threeridge was 
formerly abundant but is now rare in the upstream reaches of the 
Apalachicola River, most likely due to substantial channel incision 
resulting from the construction of Jim Woodruff Lock and Dam.
    (31) Comment: The Service fails to note that impoundments with 
large storage capacity may increase base flows downstream during 
periods of drought. Increased minimum flow may benefit downstream 
mussel habitat. The storage capacity of large reservoirs may also 
reduce the impact of flood flows that historically would result in 
scour and bank erosion.
    Our Response: The seven mussels evolved under natural flow regimes 
that include droughts and floods. Human consumptive uses of water may 
decrease stream flow below naturally occurring levels, and releases 
from reservoirs may offset the impact of this depletion, depending on 
how reservoirs are operated. However, reservoirs generally reduce the 
average annual discharge of a river by increasing evaporative losses 
via a greater water surface area. Increasing river flow with releases 
from reservoir storage necessarily requires decreasing river flow at 
other times to replenish storage, which may adversely affect mussels. 
However, we are aware of no evidence that the magnitude, frequency, 
duration, or timing of flood flows has been appreciably altered by dams 
in the stream reaches that are included in this critical habitat 
designation.
    (32) Comment: Relative to the application of the jeopardy and 
adverse modification standards, the Service provides no evidence that 
the operation of dams would alter flows in a manner that would destroy 
or adversely modify critical habitat.
    Our Response: Federal actions that would destroy or adversely 
modify critical habitat are those that alter the PCEs to an extent that 
the conservation value of the habitat is appreciably reduced. We 
included dam operations as an activity that could, but does not 
necessarily, significantly alter flow regimes. Determining whether dam 
operations may adversely affect critical habitat is a site- and 
project-specific analysis. The Service-USEPA instream flow guidelines 
(USFWS and USEPA 1999) are an appropriate tool for making such 
determinations (see comment 28). It is not necessary to 
establish that an action, such as dam operations, is certain to 
adversely modify critical habitat in order to name it in our 
designation among the actions that could do so.
    (33) Comment: The Service is required to list the specific PCEs for 
each individual mussel in each unit designated as critical habitat. The 
Service does not provide evidence, explanations, or citations detailing 
the requirements of each species relative to each of the PCEs.
    Our Response: The Act and our regulations do not prohibit multi-
species critical habitat designation rules, and the Service has 
previously issued several multi-species critical habitat rules in which 
a common set of PCEs applies to more than one species (for example, 
July 17, 2007, final rule for Peck's Cave amphipod, Comal Springs 
dryopid beetle, and Comal Springs riffle beetle, 72 FR 39248). We 
acknowledge that each of the seven mussels has a unique life history 
and niche in the riverine environment, but that these are similar 
enough to describe PCEs for the seven mussels as a group. Although the 
PCEs are the same for all seven mussels, the mix of units designated as 
critical habitat for each species is unique, reflecting differences in 
their spatial distribution.
    (34) Comment: The rule should address the threat of dam removal to 
the mussels and include dam removal as an action that could appreciably 
alter the channel stability and flow PCEs.
    Our Response: The Service is unaware of dam removal proposals 
within the areas we are designating as critical habitat. Dam removal 
could conceivably initiate channel instability; however, the most 
likely motivation for a dam removal project would be restoration of 
free-flowing conditions that were previously impaired by impoundment. 
This is the motivation for the proposed removal of the Eagle-Phenix Dam 
and the City Mills Dam, which would restore a total of approximately 
2.3 miles of the biologically significant Fall Line shoal habitat in 
the Chattahoochee River. Although this area has not been designated as 
critical habitat, it is within the historical range of some of the 
seven mussels. Eagle-Phenix and City Mills dams do not store an 
appreciable volume of water, and removing these dams would not affect 
downstream flow regimes.
    (35) Comment: The proposed rule cites no evidence to support the 
assertion that the seven mussels are not found in impoundments.
    Our Response: Brim Box and Williams (2000) surveyed 324 sites in 
the ACF, including several sites within several impoundments, including 
Lake Seminole, Lake Walter F. George, and West Point Lake. They found 
no live individuals of the listed species within any of the 
impoundments.

Economic Analysis--Policy Issues

    (36) Comment: Multiple commenters requested the economic analysis 
consider those impacts due solely to the designation of critical 
habitat for the seven mussels.
    Our Response: Appendix B of the Final Economic Analysis (FEA) 
estimates the potential incremental impacts of critical habitat 
designation for the seven mussels. It does so by attempting to isolate 
those direct and indirect impacts that are expected to be triggered 
specifically by the critical habitat designation. The incremental 
conservation efforts and associated impacts included in Appendix B 
would not be expected to occur absent the designation of critical 
habitat for the seven mussels. Total present value potential 
incremental impacts are estimated to be $501,000. All other impacts 
quantified in the FEA are considered baseline impacts and are not 
expected to be affected by the critical habitat designation.
    (37) Comment: Several commenters stated the Initial Regulatory 
Flexibility Analysis does not adequately estimate the potential impacts 
to small entities.
    Our Response: Appendix C in the FEA has been revised and now 
considers the extent to which the incremental impacts analysis 
described in Appendix B could be borne by small entities and the energy 
industry as opposed to fully co-extensive impacts quantified in 
Sections 3 though 6. The incremental impacts of the rulemaking are 
considered most relevant for the small business and energy impacts 
analyses as they are expected to stem from the critical habitat 
designation, and are therefore not expected to occur in the case that 
critical habitat is not

[[Page 64293]]

designated for the seven mussels. The analysis concludes that one 
hydropower operator and 10 deadhead logging companies may be affected 
by critical habitat designation as proposed.
    (38) Comment: One commenter states that the Draft Economic Analysis 
(DEA) explains that no estimates of minimum flow have been developed by 
the Service or any other entity. In order to assess ultimate hydropower 
impacts, these estimates must be made, and included in the economic 
analysis.
    Our Response: In the absence of information on minimum flow levels 
for the seven mussels the FEA relies on the best available information 
solicited from resource managers on the likely efforts that would be 
needed to protect the seven mussels to estimate the potential future 
impacts associated with conservation efforts in areas proposed for 
designation.
    (39) Comment: One commenter indicates that the impacts of 
implementing the U.S. Army Corps of Engineers (USACE) Modified Interim 
Operating Plan (Modified IOP) need to be distributed between gulf 
sturgeon and mussels, as it considers both.
    Our Response: The Modified IOP is intended to protect the mussels, 
their host fish, and gulf sturgeon. Specific information on which 
species generated which conservation efforts in the plan is not 
available. This analysis therefore quantifies the full impact of the 
plan as co-extensive with seven mussels conservation. Appendix B in the 
Final Economic Analysis (FEA) estimates the incremental impacts 
associated solely with the designation of critical habitat for the 
seven mussels; impacts associated with the Modified IOP are not 
considered to be incrementally due to critical habitat.
    (40) Comment: Several commenters state that potential benefits of 
critical habitat designation should be quantified.
    Our Response: The economic analysis conducted for this rule points 
out that there are some potential benefits of critical habitat 
designation. However, it is difficult to develop credible estimates of 
such values, as they are not readily observed through typical market 
transactions and can only be inferred through advanced, tailor-made 
studies that are time consuming and expensive to conduct. We currently 
lack both the budget and time needed to conduct such research before 
meeting our court-ordered final rule deadline. The economic analysis is 
done primarily to provide decisionmakers with information about 
potential exclusions from the rule. Given the impracticality of 
conducting this additional analysis we do not believe it is necessary 
to quantify the positive consequences of this rule in order to weigh 
the benefits of including versus excluding areas from the rule. The 
Congress has already determined that the benefits of species recovery 
are high. Therefore, we do not require quantification of how high in 
order to make a sound decision.

Economic Analysis--Economic Issues

    (41) Comment: One commenter states that the DEA did not desegregate 
impacts in Unit 8, Apalachicola River to focus on Swift Slough, River 
Styx, and Kennedy Slough.
    Our Response: The water management adopted per Reasonable and 
Prudent Measure (RPM) 3 of the Biological Opinion for USACE operations 
at Jim Woodruff Dam raised the minimum flow in the Apalachicola River 
to 6,500 cfs when composite storage (all reservoirs combined) is above 
zone 3, at which time it reverts to 5,000 cfs. At this time the Service 
does not anticipate maintaining higher minimum flows for Swift Slough, 
River Styx, and Kennedy Slough than already considered in the Modified 
IOP. Therefore, the FEA does not estimate any additional impacts 
associated with these tributaries.
    (42) Comment: One stakeholder commented that the Modified IOP is an 
interim plan and can change soon. Another commenter noted that the 
USACE 2007 Environmental Assessment quoted in Section 4 of the report 
has not been vetted through an official process, and that a May 16, 
2007, letter from USACE to the Service indicates that changes to 
Modified IOP operations are ongoing, and make USACE statements suspect 
as they are subject to change.
    Our Response: The USACE currently manages its operations in 
accordance with the 1989 Draft Water Control Plan for the Apalachicola-
Chattahoochee-Flint (ACF) reservoir system and makes minor adjustments 
as necessary to accommodate changes in current needs. Current 
management under the Draft Water Control Plan is set out in the 
Modified IOP. The Modified IOP reflects how the USACE is regulating the 
minimum releases and maximum fall rates at Jim Woodruff Dam. In 2007, 
the USACE completed an Environmental Assessment of the Modified IOP. 
Finalization of the Draft Water Control Plan depends on the result of 
ongoing litigation filed by the State of Alabama in 1990. Although it 
is expected that the Water Control Plan, and the Modified IOP will be 
updated subsequent to the resolution of the litigation process, 
information is not available to identify what changes to management may 
occur. The FEA therefore applies the best information available, i.e., 
the Modified IOP and Draft Water Control Plan, regarding water 
management and acknowledges the uncertainty regarding this activity in 
the future.
    (43) Comment: A few commenters stated that the input parameters 
that the USACE uses for its HEC-5 hydrological model differ from the 
parameters used by Georgia and Florida and that the results presented 
in the DEA could change if these different input parameters are 
included in the analysis.
    Our Response: To address the comment, the FEA includes additional 
results from Georgia Environmental and Protection Division's (EPD) 
analysis of the Modified IOP. Section 2 has been updated with a 
detailed discussion of how the USACE's assessment of the depletion of 
water storage in the major dams on the Chattahoochee River is 
consistently less than Georgia EPD's assessment. Several exhibits have 
been added that compare the two agencies' interpretations of the impact 
of the Modified IOP on reservoir storage capacity. The comparisons are 
made for both year 2000 and year 2030 water demand levels, and for 
normal and drought conditions. Section 3 of the FEA was revised to 
include these new estimates. Using this new information the present 
value of potential economic impacts to recreationists associated with 
conservation efforts for the seven mussels in Unit 8, Apalachicola 
River, increased to be between $27.7 million and $54.1 million 
(discounted at three percent).
    (44) Comment: A commenter stated that the Service's use of instream 
flow guidelines in Section 2 of the DEA was not mentioned in the 
September 2006 Biological Opinion on USACE's IOP for Jim Woodruff Dam.
    Our Response: Instream flow guidelines discussed in the DEA are as 
described by the Service in the June 6, 2006, proposed rule for the 
critical habitat designation of the seven mussels, not the 2006 
biological opinion. The EPA-USFWS guidelines are referenced in Section 
2 of the FEA.
    (45) Comment: One commenter stated that the assumption that 
municipal and industrial impacts may result due to USACE's water 
management operations of the ACF system is directly contradicted by 
USACE language, which indicates that lake levels will not fall below 
water intake structures because of operations under the Modified IOP.
    Our Response: The USACE analysis of the impacts of the Modified IOP 
impacts models year 2000 water demand; it does not assess the impact of 
the Modified IOP for year 2030 water demands.

[[Page 64294]]

However, Georgia EPD provides simulated lake levels for both year 2000 
and year 2030 water demand levels. Section 2 of the FEA, discusses how 
model simulations conducted by the Georgia EPD suggest that lake levels 
may go below water intake structures in the future, especially under 
year 2030 water demand levels. This can happen even without the 
modifications introduced by the Modified IOP. Thus, in the case that 
sustained drought conditions exist in the future, the Modified IOP can 
potentially further decrease lake levels.

Potential Economic Impacts Related to Changes in Water Use and 
Management

    (46) Comment: A few commenters have expressed reservations about 
attributing the impact of the Modified IOP on municipal and industrial 
water supply and recreation to the critical habitat of the three 
mussels found in the Apalachicola River complex because the Modified 
IOP predates the designation.
    Our Response: The impact of the Modified IOP on municipal and 
industrial water supply is not quantified in the DEA. For recreation 
related impacts, which are quantified in Section 3, the FEA quantifies 
the fully co-extensive impacts of any Federal, State, or local 
regulations or guidelines that may benefit the seven mussels in the 
proposed critical habitat area. Appendix B of the FEA acknowledges that 
implementing the Modified IOP is not an incremental impact attributable 
to the proposed rule.
    (47) Comment: Several commenters have indicated that water quality 
could become a concern at lower lake levels.
    Our Response: Section 2 of the FEA notes these concerns based on 
Georgia EPD's analysis of how declining lake levels during sustained 
periods of drought could expose the water intake structures of several 
local governments in Georgia. Additionally, Georgia EPD concludes that 
the Modified IOP leads to an increase in the number of days that the 
desired flow for wastewater assimilation below the Columbus gage will 
not be met. Section 5 discusses other potential water quality-related 
impacts. These potential water quality impacts are associated with 
Modified IOP implementation and are not expected to result from the 
critical habitat designation as proposed.
    (48) Comment: One commenter mentioned that there is no mechanism 
for the Flint River Drought Prevention Act (FRDPA) to restrict 
agricultural uses based solely on impacts to protected mussels.
    Our Response: The DEA does not make assumptions or recommendations 
regarding how changes in irrigated agricultural use will occur, or who 
will bear the cost of changes in water management and use. As discussed 
in Section 6 of the FEA, the Georgia Department of Natural Resources, 
Wildlife Resources Division plans to develop a Habitat Conservation 
Plan (HCP) to address agriculture related impacts to seven mussels 
conservation in the Lower Flint River Basin. The HCP is expected to 
reduce irrigation in the Lower Flint River Basin during severe drought. 
In addition, there were reverse auctions conducted associated with the 
Flint River Drought Protection Act (2000), during which irrigation 
rights were purchased from farmers, during the drought periods in 2001 
and 2002.
    (49) Comment: Several commenters indicate that information 
necessary to quantify municipal and industrial impacts is ``readily 
available and should have been collected and analyzed as part of the 
economic analysis.''
    Our Response: Section 3 of the