Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for Green Floater and Designation of Critical Habitat, 48294-48349 [2023-15143]
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Federal Register / Vol. 88, No. 142 / Wednesday, July 26, 2023 / Proposed Rules
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R5–ES–2023–0012;
FF09E21000 FXES1111090FEDR 234]
RIN 1018–BF80
Endangered and Threatened Wildlife
and Plants; Threatened Species Status
With Section 4(d) Rule for Green
Floater and Designation of Critical
Habitat
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), propose to
list the green floater (Lasmigona
subviridis), a mussel species from as
many as 10 States in the eastern United
States and the District of Columbia, as
a threatened species with a rule issued
under section 4(d) of the Endangered
Species Act of 1973, as amended (Act).
This document also serves as our 12month finding on a petition to list the
green floater. After a review of the best
available scientific and commercial
information, we find that listing the
species is warranted. We also propose to
designate critical habitat for the green
floater under the Act. In total,
approximately 2,553 kilometers (1,586
miles) of streams in Maryland, New
York, North Carolina, Pennsylvania,
Virginia, and West Virginia fall within
the boundaries of the proposed critical
habitat designation. We also announce
the availability of a draft economic
analysis of the proposed designation of
critical habitat for the green floater. If
we finalize this rule as proposed, it
would add this species to the List of
Endangered and Threatened Wildlife
and extend the Act’s protections to the
species and its designated critical
habitat.
DATES: We will accept comments
received or postmarked on or before
September 25, 2023. Comments
submitted electronically using the
Federal eRulemaking Portal (see
ADDRESSES, below) must be received by
11:59 p.m. eastern time on the closing
date. We must receive requests for a
public hearing, in writing, at the address
shown in FOR FURTHER INFORMATION
CONTACT by September 11, 2023.
ADDRESSES: You may submit comments
by one of the following methods:
(1) Electronically: Go to the Federal
eRulemaking Portal: https://
www.regulations.gov. In the Search box,
enter FWS–R5–ES–2023–0012, which is
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SUMMARY:
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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–R5–ES–2023–0012, U.S. Fish and
Wildlife Service, MS: PRB/3W, 5275
Leesburg Pike, Falls Church, VA 22041–
3803.
We request that you send comments
only by the methods described above.
We will post all comments on https://
www.regulations.gov. This generally
means that we will post any personal
information you provide us (see
Information Requested, below, for more
information).
Availability of supporting materials:
Supporting materials, such as the
species status assessment report, are
available at https://www.regulations.gov
at Docket No. FWS–R5–ES–2023–0012.
For the proposed critical habitat
designation, the coordinates or plot
points or both from which the maps are
generated are included in the decision
file for this proposed critical habitat
designation and are available at https://
www.regulations.gov at Docket No.
FWS–R5–ES–2023–0012 and on our
internet site at https://www.fws.gov/
office/new-york-ecological-servicesfield.
Ian
Drew, Field Supervisor, U.S. Fish and
Wildlife Service, New York Ecological
Services Field Office, 3817 Luker Road,
Cortland, NY 13045; telephone 607–
753–9334. 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-ofcontact in the United States.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
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 endangered 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’
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critical habitat to the maximum extent
prudent and determinable. We have
determined that the green floater meets
the Act’s definition of a threatened
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 the listing of the green floater
as a threatened species with a rule
under section 4(d) of the Act (a ‘‘4(d)
rule’’), and we propose the designation
of critical habitat for the species.
The basis for our action. Under the
Act, we may determine that a species is
an endangered or threatened species
because of any of five factors: (A) The
present or threatened destruction,
modification, or curtailment of its
habitat or range; (B) overutilization for
commercial, recreational, scientific, or
educational purposes; (C) disease or
predation; (D) the inadequacy of
existing regulatory mechanisms; or (E)
other natural or manmade factors
affecting its continued existence. We
have determined that habitat
degradation (Factor A), resulting from
the cumulative impacts of land use
change and associated watershed-level
effects on water quality, habitat
connectivity, and stream conditions,
poses the greatest risk to the future
viability of the green floater. Habitat
degradation can occur as a result of
increased surface runoff, sedimentation,
and pollution, and decreased substrate
stability, both instream and along
streambanks. These degraded conditions
negatively impact the green floater by,
for example, smothering the organism or
washing the organism downstream. In
the future, climate change (Factor A) is
expected to exacerbate the degradation
of the green floater’s habitat through
increased water temperatures, changes
and shifts in seasonal patterns of
precipitation and runoff, and extreme
weather events such as flood or
droughts.
Section 4(a)(3) of the Act requires the
Secretary of the Interior (Secretary), to
the maximum extent prudent and
determinable, to designate critical
habitat concurrent with listing. Section
3(5)(A) of the Act defines critical habitat
as (i) the specific areas within the
geographical area occupied by the
species, at the time it is listed, on which
are found those physical or biological
features (I) essential to the conservation
of the species and (II) which may
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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
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, including additional
information, 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 affect 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) The historical and current status of
this species.
(4) Regulations that may be necessary
and advisable to provide for the
conservation of the green floater and
that we can consider in developing a
4(d) rule for the species. In particular,
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we seek information concerning the
extent to which we should include any
of the section 9 prohibitions in the 4(d)
rule or whether we should consider any
additional exceptions from the
prohibitions in the 4(d) rule.
(5) Specific information on the
species’ habitat, including:
(a) The amount and distribution of
green floater habitat;
(b) Any additional areas occurring
within the range of the species (the
States of Alabama, Georgia, Maryland,
New Jersey, New York, North Carolina,
Pennsylvania, Tennessee, Virginia, and
West Virginia, and the District of
Columbia) 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 (ii) are unoccupied at
the time of listing and are essential for
the conservation of the species;
(c) Special management
considerations or protection that may be
needed in critical habitat areas we are
proposing, including managing for the
potential effects of climate change; and
(d) Whether occupied areas are
adequate for the conservation of the
species. This information may help us
evaluate the potential to include areas
not occupied at the time of listing.
Additionally, please provide specific
information regarding whether or not
unoccupied areas would, with
reasonable certainty, contribute to the
conservation of the species and contain
at least one physical or biological
feature essential to the conservation of
the species. We also seek comments or
information regarding whether areas not
occupied at the time of listing qualify as
habitat for the species.
(6) Land use designations and current
or planned activities in the subject areas
and their possible impacts on proposed
critical habitat.
(7) 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.
(8) 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.
(9) 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
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area under section 4(b)(2) of the Act. If
you think we should exclude any
additional areas, please provide
information supporting a benefit of
exclusion.
(10) Whether we could improve or
modify our approach to designating
critical habitat in any way to provide for
greater public participation and
understanding, or to better
accommodate public concerns and
comments.
Please include sufficient information
with your submission (such as scientific
journal articles or other publications) to
allow us to verify any scientific or
commercial information you include.
Please note that submissions merely
stating support for, or opposition to, the
action under consideration without
providing supporting information,
although noted, do not provide
substantial information necessary to
support a determination. Section
4(b)(1)(A) of the Act directs that
determinations as to whether any
species is an endangered or a threatened
species must be made solely on the
basis of the best scientific and
commercial data available, and section
4(b)(2) of the Act directs that the
Secretary shall designate critical habitat
on the basis of the best scientific data
available.
You may submit your comments and
materials concerning this proposed rule
by one of the methods listed in
ADDRESSES. We request that you send
comments only by the methods
described in ADDRESSES.
If you submit information via https://
www.regulations.gov, your entire
submission—including any personal
identifying information—will be posted
on the website. If your submission is
made via a hardcopy that includes
personal identifying information, you
may request at the top of your document
that we withhold this information from
public review. However, we cannot
guarantee that we will be able to do so.
We will post all hardcopy submissions
on https://www.regulations.gov.
Comments and materials we receive,
as well as supporting documentation we
used in preparing this proposed rule,
will be available for public inspection
on https://www.regulations.gov.
Our final determinations 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 endangered instead of
threatened, or we may conclude that the
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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 addition, we may change the
parameters of the prohibitions or the
exceptions to those prohibitions in the
4(d) rule if we conclude it is appropriate
in light of comments and new
information received. For example, we
may expand the prohibitions to include
prohibiting additional activities if we
conclude that those additional activities
are not compatible with conservation of
the species. Conversely, we may
establish additional exceptions to the
prohibitions in the final rule if we
conclude that the activities would
facilitate or are compatible with the
conservation and recovery 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).
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Previous Federal Actions
In our November 21, 1991, candidate
notice of review (CNOR; published at 56
FR 58804) we identified the green
floater as a Category 2 candidate
species. Category 2 candidate species
were those taxa for which listing was
possibly appropriate, but for which
conclusive data on biological
vulnerability and threats were not
available to support proposed rules. In
the February 28, 1996, CNOR (61 FR
7596), we discontinued the designation
of species as Category 2 candidates;
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therefore, the green floater was no
longer a candidate species.
On April 20, 2010, we were petitioned
to list 404 aquatic species in the
southeastern United States, including
the green floater. In response to the
petition, we published a partial 90-day
finding on September 27, 2011 (76 FR
59836), in which we announced our
finding that the petition contained
substantial information that listing
might be warranted for numerous
species, including the green floater.
Peer Review
A species status assessment (SSA)
team prepared an SSA report for the
green floater (Service 2021, entire). The
SSA team was composed of Service
biologists, in consultation with other
species experts. The SSA report
represents a compilation of the best
scientific and commercial data available
concerning the status of the species,
including the impacts of past, present,
and future factors (both negative and
beneficial) affecting the species.
In accordance with our joint policy on
peer review published in the Federal
Register on July 1, 1994 (59 FR 34270),
and our August 22, 2016, memorandum
updating and clarifying the role of peer
review of listing actions under the Act,
we solicited independent scientific
review of the information contained in
the green floater SSA report. We sent
the SSA report to five independent peer
reviewers and received one response.
Results of this structured peer review
process can be found at https://
www.regulations.gov under Docket No.
FWS–R5–ES–2023–0012. In preparing
this proposed rule, we incorporated the
results of this 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 generally
concurred with our methods and
conclusions and provided additional
information and other editorial
suggestions. No substantive changes to
our analysis and conclusions within the
SSA report were necessary, and peer
reviewer comments are addressed in
version 1.0 of the SSA report (Service
2021, entire).
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I. Proposed Listing Determination
Background
The green floater is a freshwater
mussel found in small streams to large
rivers in the eastern United States. It is
historically native to the District of
Columbia and 10 States (Alabama,
Georgia, Maryland, New Jersey, New
York, North Carolina, Pennsylvania,
Tennessee, Virginia, and West Virginia).
Today, however, green floaters are
considered extirpated in Alabama and
Georgia, and there are no recent records
from New Jersey or the District of
Columbia.
Green floaters are small freshwater
mussels with ovate trapezoidal shaped
shells. Their shells are yellowish brown
to olive green with green rays (Bogan
and Ashton 2016, p. 43). Adults rarely
exceed 5.5 centimeters (cm) (2.2 inches
(in)) (Johnson 1970, p. 344) but can
grow to 7.0 cm (2.8 in) in length
(Watters et al. 2009, p. 347). Like all
freshwater mussels, the green floater is
an omnivore that feeds on a wide
variety of microscopic particulate matter
(i.e., bacteria and algae).
The best available information
suggests the green floater is a shortlived, fast-growing species compared to
similar mussels. The green floater is
considered a long-term brooder because
individuals produce eggs that develop
as larvae in the adult mussels and are
then released after several months (Haag
2012, pp. 40–41, 203–204). In contrast,
short-term brooders are similar in that
larvae develop in the adult mussels, but
the brood period is shorter, lasting
several days or weeks. While some
mussels can live to 100 years old, green
floaters typically live just 3 to 4 years
(Watters et al. 2009, p. 349). In
laboratory settings, green floaters can
mature and release sperm at less than 1
year of age (Mair 2020, pers. comm.)
Green floaters are hermaphroditic
(Ortmann 1919, p. 122; van der Schalie
1970, p. 106) and have the ability to
self-fertilize, which increases the
probability of fertilization (Haag 2012,
p. 191). Spawning and reproduction
occur during the late summer or early
fall. In the winter, green floaters can
directly metamorphose larvae, called
glochidia, meaning that adults keep the
glochidia in their gills until they mature
into juveniles and then release them
into the water column in the spring
(Barfield and Watters 1998, p. 22; Lellis
and King 1998, p. 23; Haag 2012, p.
150). For most freshwater mussels,
glochidia are released into the water
column and must attach to the gills of
a host fish in order to undergo
metamorphosis and transform into
juveniles. Several weeks or months
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later, the juveniles detach from the fish
and burrow into the substrate. Green
floater adults have the ability to expel
glochidia that use fish hosts, too (J.
Jones 2020, unpublished data), but it is
not known what proportion of green
floaters use this method of
reproduction. The added ability to
directly metamorphose glochidia
without requiring an intermediate fish
host is unique to the green floater. This
life strategy may allow the green floater
to occur in small streams with small
populations and few fish (Haag 2012,
pp. 150, 191), although the use of fish
hosts is necessary for periodic upstream
dispersal.
Green floaters likely maximize
population growth during periods of
favorable conditions (Haag 2012, pp.
208, 284). Adult green floaters can
produce between 2,600 and 33,300
juveniles per individual each year (R.
Mair, Service, unpublished data), and
the number of juveniles produced can
vary greatly from year to year. For
example, researchers at Harrison Lake
National Fish Hatchery in Virginia
observed that the average number of
juveniles released per individual
jumped from 4,600 to 22,500 per
individual in a 2-year span. These
numbers do not represent the total
number of juveniles expected to survive
to adulthood, a number which is
unknown but is likely to be a small
proportion of the juveniles released.
When they are found in natural
environments, green floaters can occur
singly or in small aggregations of a few
individuals.
Streams with slow to medium flows
and good water quality provide the best
habitat for green floaters (Ortmann 1919,
p. 124; Johnson 1970, p. 345; Clarke
1985, p. 56; Kerferl 1990, p. 47). They
are often found in sand or small gravel
substrates where they establish a
foothold and bury themselves as deep as
38 cm (15 in) (Haag 2012, p. 31; Lord
2020, pers. comm.). Their mobility is
limited, and fast flowing currents or
high-water events can cause them to be
washed downstream (Strayer 1999, pp.
468, 472). When they occur in larger
streams and rivers, they are found in
quieter pools and eddies, away from
strong currents (WVDNR 2008, p. 2).
For more information, please refer to
the SSA report (version 1.0; Service
2021, pp. 1–30), which presents a
thorough review of the taxonomy, life
history, and ecology of the green floater.
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533)
and the implementing regulations in
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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. In 2019, jointly with
the National Marine Fisheries Service,
the Service issued a final rule that
revised the regulations in 50 CFR part
424 regarding how we add, remove, and
reclassify endangered and threatened
species and the criteria for designating
listed species’ critical habitat (84 FR
45020; August 27, 2019). On the same
day, the Service also issued final
regulations that, for species listed as
threatened species after September 26,
2019, eliminated the Service’s general
protective regulations automatically
applying to threatened species the
prohibitions that section 9 of the Act
applies to endangered species (84 FR
44753; August 27, 2019).
The Act defines an ‘‘endangered
species’’ as a species that is in danger
of extinction throughout all or a
significant portion of its range, and a
‘‘threatened species’’ as a species that is
likely to become an endangered species
within the foreseeable future throughout
all or a significant portion of its range.
The Act requires that we determine
whether any species is an endangered
species or a threatened species because
of any of the following factors:
(A) The present or threatened
destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial,
recreational, scientific, or educational
purposes;
(C) Disease or predation;
(D) The inadequacy of existing
regulatory mechanisms; or
(E) Other natural or manmade factors
affecting its continued existence.
These factors represent broad
categories of natural or human-caused
actions or conditions that could have an
effect on a species’ continued existence.
In evaluating these actions and
conditions, we look for those that may
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
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‘‘threat’’ may encompass—either
together or separately—the source of the
action or condition or the action or
condition itself.
However, the mere identification of
any threat(s) does not necessarily mean
that the species meets the statutory
definition of an ‘‘endangered species’’ or
a ‘‘threatened species.’’ In determining
whether a species meets either
definition, we must evaluate all
identified threats by considering the
species’ expected response and the
effects of the threats—in light of those
actions and conditions that will
ameliorate the threats on an individual,
population, and species level. We
evaluate each threat and its expected
effects on the species, then analyze the
cumulative effect of all of the threats on
the species as a whole. We also consider
the cumulative effect of the threats in
light of those actions and conditions
that will have positive effects on the
species, such as any existing regulatory
mechanisms or conservation efforts. The
Secretary determines whether the
species meets the definition of an
‘‘endangered species’’ or a ‘‘threatened
species’’ only after conducting this
cumulative analysis and describing the
expected effect on the species now and
in the foreseeable future.
The Act does not define the term
‘‘foreseeable future,’’ which appears in
the statutory definition of ‘‘threatened
species.’’ Our implementing regulations
at 50 CFR 424.11(d) set forth a
framework for evaluating the foreseeable
future on a case-by-case basis. The term
‘‘foreseeable future’’ extends only so far
into the future as we can reasonably
determine that both the future threats
and the species’ responses to those
threats are likely. In other words, the
foreseeable future is the period of time
in which we can make reliable
predictions. ‘‘Reliable’’ does not mean
‘‘certain’’; it means sufficient to provide
a reasonable degree of confidence in the
prediction. Thus, a prediction is reliable
if it is reasonable to depend on it when
making decisions.
It is not always possible or necessary
to define the foreseeable future as a
particular number of years. Analysis of
the foreseeable future uses the best
scientific and commercial data available
and should consider the timeframes
applicable to the relevant threats and to
the species’ likely responses to those
threats in view of its life-history
characteristics. Data that are typically
relevant to assessing the species’
biological response include speciesspecific factors such as lifespan,
reproductive rates or productivity,
certain behaviors, and other
demographic factors.
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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 green floater’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 change, 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 use the best
available information to characterize
viability as the ability of a species to
sustain populations in the wild over
time. We use this information to inform
our regulatory decision.
The following is a summary of the key
results and conclusions from the SSA
report; the full SSA report can be found
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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. We analyze these factors both
individually and cumulatively to
determine the current condition of the
species and project the future condition
of the species under several plausible
future scenarios.
Species Needs
We assessed the best available
information to identify the physical and
biological needs to support all life stages
for the green floater. Green floaters
occur in a variety of habitats across the
species’ large range, but they require
specific conditions for the habitat to be
suitable. Water flow, streambed
substrate, water quality, water
temperature, and conditions that
support their host fish are all important
habitat components for the health of
green floaters.
Green floaters occur in small streams
to large rivers, pools, eddies, and canals
with current speeds that are low or
moderate (Ortmann 1919, p. 124; Clarke
1985, p. 56; WVDNR 2008, p. 2). The
optimal current is stable, not flashy, and
responds slowly to precipitation events
(Strayer 1993, pp. 241, 244). Green
floaters require slow and stable flows
because they spend most of their lives
buried just below the surface of the
streambed with their posterior end
angled upward and their anterior end in
the substrate. This position allows them
to siphon water through their incurrent
aperture, secrete waste through their
excurrent aperture, and stabilize
themselves using their foot. The
incoming current speeds must be
adequate to deliver a steady supply of
food and oxygen.
Green floaters are able to survive high
flow events by burying into the
substrate. Adult green floaters have been
found buried between 8 and 13 cm (3
and 5 in) while juveniles have been
found as deep as 38 cm (15 in) (Barber
2020, pers. comm.; Lord 2020, pers.
comm.). They are associated with
substrates composed primarily of sand
or small gravel (Holst 2020, pers.
comm.). They can be found in both
quiet, backwater areas (e.g., eddies) with
more silt and large, boulder-dominated
streams, but some amount of sand or
gravel is necessary for them to establish
a foothold (Clayton 2020, pers. comm.).
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If they become dislodged from the
substrate, they can take up to 30
minutes to rebury themselves, possibly
requiring less time in sand and silt
substrates (Haag 2012, p. 32). If they
become dislodged during a high water
event or flood, they could be washed
downstream (Strayer 1999, pp. 468,
472).
Like all freshwater mussels, green
floaters are sensitive to certain water
quality parameters and need clean water
with low levels of contaminants,
adequate dissolved oxygen, and low
salinity. Juvenile mussels may be more
sensitive than adults to the presence of
contaminants, especially copper and
ammonia, which can cause
physiological effects or death (Goudreau
et al. 1993, pp. 224, 226–227; Jacobson
et al. 1993, p. 882). The specific
dissolved oxygen requirements for green
floaters are unknown; however, other
freshwater mussels begin to exhibit
stress when dissolved oxygen levels fall
below 6 milligrams per liter (mg/L)
(Chen et al. 2001, pp. 213–214). Stress
is apparent through behavioral changes
such as gaping (i.e., opening of the
shells to maintain oxygen levels) and
lying on the surface of the substrate
(Sparks and Strayer 1998, pp. 131–133).
Green floaters are also intolerant to
brackish water and require the low
salinity levels that occur naturally in
freshwater streams.
Green floaters require water
temperatures that are warm enough for
glochidia release but not so warm that
they kill or stress the adults. Research
from lab and field studies indicate that
the appropriate temperature for
glochidia release is likely between 15
and 20 degrees Celsius (°C) (59 and 68
degrees Fahrenheit (°F)). Adult mussels
begin to exhibit the gaping behaviors
described above when water
temperatures get too warm. Lethal
maximum water temperatures for green
floaters have not been studied but are
expected to be between 25.3 and 42.7 °C
(77.5 and 106.0 °F), similar to those
reported for comparable species.
Maximum temperatures are related to
the duration of exposure. Mussels can
survive temperatures on the higher end
of the spectrum for short periods of time
(i.e., minutes or hours) and can survive
temperatures on the lower end for days
or weeks. Juvenile mussels may be more
sensitive to warm temperatures.
Adequate water quality and
temperatures are important habitat
components for the health of host fish
as well, which green floaters require for
upstream dispersal. In laboratory
studies, green floaters successfully used
mottled sculpin (Cottus bairdii), rock
bass (Ambloplites rupestris), central
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stoneroller (Campostoma anomalum),
blacknose dace (Rhinichthys atratulus),
and margined madtom (Noturus
insignis) for glochidia metamorphosis (J.
Jones 2020, unpublished data). These
species all occur within the range of the
green floater and could function as hosts
in natural settings as well.
The green floater historically occurred
in four major drainages: the Atlantic
Slope (i.e., watersheds along the east
coast of the United States), St.
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Lawrence-Great Lakes, Mississippi River
(Clarke 1985, p. 57), and Gulf (i.e.,
hydrologically connected to the Gulf of
Mexico) (Brim Box and Williams 2000,
p. 59). We delineated analysis units for
the green floater in these drainages
based on recent occupancy information.
We used data from surveys conducted
by partners, including State agencies,
Federal agencies, nonprofit
organizations, and contractors, between
1999 to 2019. This period covers
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approximately three generations of
green floaters, which are thought to live
up to 7 years (Watters et al. 2009, p.
349). Using these survey data, we
determined the green floater historically
existed in 179 watersheds across 10
States and the District of Columbia; 85
of these watersheds have had no
sightings since 1999 (see figure 1,
below, and Service 2021, appendix C).
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To assess resiliency, we evaluated
relevant environmental and
demographic factors to determine the
condition of populations across the
range of the species. Green floater
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populations must be able to survive
varying habitat conditions (i.e., good
and bad years) to respond to and recover
from stochastic events (e.g., seasonal
events such as heavy rain or severe
drought). They must have a healthy
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demography, i.e., a population that
includes organisms at a range of life
stages and occupy areas with suitable
habitat conditions for all life stages and
seasons. Healthy demography is
achieved by having a sufficient number
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of adults, recruitment (i.e., presence of
adults and juveniles), and habitat
connectivity that supports genetic
exchange within and between
populations. Genetic exchange is
needed to preserve genetic diversity,
without which the health of populations
can decrease. Barriers, such as large
dams and blocked culvert pipes, can
impede genetic exchange by limiting the
dispersal of juvenile mussels and
preventing host fish migration. Some
populations are found between barriers
and downstream of dams, but the
healthiest green floater populations are
likely to be found in free-flowing
streams and rivers.
To assess representation, we
evaluated the ecological and genetic
diversity across the current range of the
species. It is important to have
sufficiently resilient populations
(referred to in figure 1, above, as
analysis units) where both genetic and
ecological differences are apparent to
maintain the existing adaptive capacity.
To evaluate representation in the
current condition of the green floater,
we consider both genetic information
and the geographic distribution of
populations. The green floater must
have healthy populations distributed
across the range to capture the breadth
of genetic, climate, elevation, and
habitat diversity, and sufficient
connectivity for periodic genetic
exchange across the range of the species.
To assess redundancy, we considered
the number and distribution of
populations across the range of the
species and the potential for
catastrophic events to impact the green
floater’s ability to persist. To have high
redundancy, the species needs to have
multiple populations distributed across
a large area relative to the scale of
anticipated catastrophic events.
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Factors Influencing Species Viability
Excessive Sedimentation
Excessive sedimentation is one of the
primary factors affecting green floater
viability. Sedimentation originates from
instream (e.g., bank erosion, shifting
channels) and upland sources (e.g., soil
erosion). Increases in sediment load can
accumulate on the stream/river bottom
and may lead to bottom scour; lead to
embeddedness of rocks, gravel, and
cobble; and affect some baseline water
quality parameters (e.g., turbidity).
Excess sedimentation can harm mussels
in multiple ways: suspended particles
can abrade mussels and clog the gills
and respiratory systems of both mussels
and host fish, while deposited sediment
can bury mussels and smother host fish
eggs (Wood and Armitage 1997, p. 211;
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Burkhead and Jelks 2001, p. 965). Even
where sedimentation does not clog gills
so severely as to kill mussels, it may
still significantly impact their feeding
efficiency and filtering clearance rates
(Aldridge et al. 1987, p. 25; Brim Box
and Mossa 1999, pp. 100–101).
Increases in suspended sediment can
also adversely affect mussels’ ability to
feed and reproduce. Mussels must have
their valves open to feed, but in heavily
silted water, they are forced to close
their valves to wait for conditions to
improve. Mussels in turbid water have
been observed closing their valves up to
90 percent of the time, compared to 50
percent of the time for individuals in
silt-free environments (Ellis 1936, p.
40). Extended valve closure can lead to
decreased health or starvation. Increases
in suspended particles can also reduce
mussels’ ability to encounter sperm,
become gravid, and reproduce (Landis
et al. 2013, p. 74).
However, a reduced sediment load
can also destabilize the stream channel.
When a decrease in sediment supply
coincides with increased stream flow,
the imbalance can cause streams to
narrow and deepen (Rakovan and
Renwick 2011, p. 40), channeling the
flow of water and making the habitat
unsuitable for green floaters. Other
activities, like dredging, channelization,
or storm damage, can also adversely
affect physical habitat. Changes in
primary productivity (i.e., algae and
aquatic plant growth) as a result of
nutrient loads or reduced stream flows
can limit the suitability of stream
habitats for the green floater and other
aquatic species (Bogan 1993, p. 604;
Wood and Armitage 1997, pp. 209–210;
Taylor et al. 2007, p. 374). Fine
sediment suspension and deposition
affect the primary producers by
reducing the amount of sunlight and
damaging leaves of plants, which
reduces photosynthesis (Lewis 1973, p.
253; Davies-Colley et al. 1992, p. 232),
and, in extreme cases, by smothering
and eliminating algae and plants
(Yamada and Nakamura 2002, p. 489).
During periods of stress, green floaters
bury themselves deeper in the substrate
and take refuge in interstitial spaces
(i.e., small openings between rocks and
gravels). While in interstitial spaces,
they rely on available pore water (i.e.,
the water in interstitial spaces between
rock and gravel substrates) for oxygen
and food particles. Interstitial spaces
provide essential habitat for adults and
juvenile green floaters by protecting
them from high water events and
periods of drought, and allowing water
loaded with oxygen and food particles
to reach the mussels. Excess
sedimentation adversely affects mussel
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habitat by blocking or filling in the
interstitial spaces. Excess sand or silt
can reduce or block these areas (Brim
Box and Mossa 1999, p. 100), which
may cause them to become unsuitable
for green floaters by having reduced
dissolved oxygen levels and limited
food availability (Strayer and Malcom
2012, p. 1781).
Pollutants bound to fine sediment and
pore water inside interstitial spaces can
also be toxic to mussels. The degree of
bioavailability of pollutants bound to
sediments can be affected by
environmental characteristics such as
oxygen, temperature, hardness,
alkalinity, dissolved organic carbon,
chloride, and acidity (Farris and van
Hassel 2006, p. 206; Archambault et al.
2017, p. 403).
Excessive sedimentation can be
caused by land-disturbing activities
associated with development (i.e.,
residential/commercial, energy, and
transportation development). These
types of activities increase the amount
of impervious surfaces and leave areas
of bare, unvegetated soil exposed to
direct rainfall. Energy development,
agriculture, and forestry activities all
take place within the range of the green
floater. Energy development is a source
of sediment because solar farms, oil and
gas pipelines, and transmission lines
can cause soil disturbance during
installation and maintenance of
equipment. Agriculture activities can
also cause excessive sedimentation
when best management practices are not
implemented to minimize soil erosion
and increased overland flow, and some
forestry practices have the potential to
result in increased siltation in riparian
systems through the cycle of forest
thinning, final harvest, site preparation,
and re-planting activities. However,
implementation of best management
practices and establishment of
streamside management zones can
minimize the impacts from forestry
(Service 2018 and 2019, chapter 6).
Adherence to these best management
practices and streamside management
zones broadly protects water quality,
particularly related to sedimentation (as
reviewed by Cristan et al. 2016, entire;
Warrington et al. 2017, entire; Schilling
et al. 2021, entire).
Impervious surfaces (e.g., roads,
concrete) are a source of pollutants such
as oil and gas because the surfaces
prevent liquids from entering the
ground. During precipitation events, the
pollutants collect in the rainfall, and
because water is unable to absorb into
the impervious surfaces too, the mixture
flows into overland and subsurface
drainage runoff. In addition, sediments,
which come from the bare, unvegetated
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soil, join the polluted runoff and flow
into rivers and streams. The increased
surface and drainages waters lead to
higher stream flows which erode
streambanks and riverbanks, increasing
turbidity and decreasing streambed
stability, all of which negatively impact
green floaters.
Water Quality Degradation
In addition to impacts to water quality
from sedimentation, water quality can
be degraded due to contamination or
changes in temperature. Chemical
contaminants are widespread and are a
major reason for the current declining
status of freshwater mussel species
nationwide (Augspurger et al. 2007, p.
2025). Chemical contamination of
waterways can greatly impact aquatic
organisms, and freshwater mussels
appear to be more sensitive to some of
these chemical contaminants than other
test organisms. As sedentary benthic
feeders, mussels are exposed to toxic
pollutants that enter aquatic
environments through direct discharges
and stormwater runoff. Contaminants
can enter waterways through both point
and nonpoint sources, including spills,
industrial discharges, municipal
effluents, agricultural runoff, and
atmospheric deposition from
precipitation. These sources contribute
excess nutrients, organic compounds,
heavy metals, pesticides, and a wide
variety of newly emerging contaminants
(e.g., antibiotics and hormones from
wastewater treatment facilities) to the
aquatic environment.
Green floaters are negatively affected
by low levels of dissolved oxygen.
Dissolved oxygen levels become
reduced when nutrients in the water
column increase, causing eutrophication
and algal blooms. Both natural and
anthropogenic sources of organic matter
can increase nutrient levels in
waterways, but most nutrient pollution
is the result of ongoing and large-scale
discharges of nitrogen from
anthropogenic sources, such as
fertilizers and livestock waste.
Depletion of dissolved oxygen affects
the chemistry and increases the
bioavailability of some contaminants.
Dissolved oxygen may have the greatest
impact on juvenile mussels, which are
more sensitive to low levels than adults
(Dimock and Wright 1993, p. 189;
Sparks and Strayer 1998, pp. 131–133).
When there is low dissolved oxygen,
juveniles exhibit stress behaviors, such
as surfacing, gaping, and exposing their
foot and siphons, that expose them to
predators (Sparks and Strayer 1998, pp.
132–133).
Freshwater mollusks, including the
green floater, are sensitive to chemical
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pollutants, including chlorine,
ammonia, copper, fungicides, and
herbicide surfactants (Augspurger et al.
2007, pp. 2025–2028). These chemicals
occur in sediments and water and are
ingested when mussels filter and feed
on particles (Yeager et al. 1994, p. 217;
Newton et al. 2003, p. 2553). Ammonia
occurs naturally in aquatic systems as a
waste product from bacteria. Additional
ammonia is deposited into streams
through surface water runoff from
sources such as industrial, municipal,
and agricultural wastewater;
decomposition of organic nitrogen; and
atmospheric ammonia (Newton 2003, p.
2543; Yao and Zhang 2019, p. 22139).
Ammonia is suspended in the
atmosphere and returns to the ground as
either gaseous ammonia or ammonium
ions in precipitation (Air Quality
Research Subcommittee 2000, pp. 8–9).
Domestic livestock is the largest global
contributor to atmospheric ammonia
and a growing source of atmospheric
deposition (Bouwman et al. 1997, p.
561). Excess nitrogen (in the form of
nitrates) in waterways causes plants and
algae to flourish and die off, using up
dissolved oxygen sources in the water,
depleting sources of oxygen for other
aquatic organisms, causing
eutrophication, and increasing the risk
of die offs of fish and aquatic
invertebrates (USGS 2022, unpaginated).
Excessive inputs of organic matter can
also cause ammonia in waterways to
reach levels that are detrimental to
freshwater mussels (Haag 2012, p. 379).
However, the degree of ammonia
toxicity varies depending on
temperature and pH conditions, which
influence the proportion of ammonia in
its less toxic (ionized ammonium,
NH4+) or more toxic (un-ionized
ammonia, NH3) state (Augspurger et al.
2003, pp. 2569–70; Haag 2012, p. 379).
When temperature and pH levels
increase, concentrations of the more
highly toxic un-ionized ammonia also
increase and can reach levels that are
lethal to the green floater and other
freshwater mussels (Strayer 2020, pers.
comm.). High concentrations of unionized ammonia are thought to be a
contributing cause of widespread
decline of mussels in the Hudson River
(Strayer and Malcom 2012, p. 1786).
When un-ionized ammonia reached
concentrations of 0.2 mg/L, recruitment
in wild mussel populations failed
(Strayer and Malcom 2012, p. 1787).
Juvenile mussels are highly sensitive to
un-ionized ammonia, and chronic
exposure at concentrations of 0.57 mg/
L in 25 °C (77 °F) water was lethal to
juveniles in the lab (Augspurger et al.
2003, p. 2572). The Lasmigona genus, of
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which the green floater is a member,
was the most sensitive of 12 genera
tested for ammonia toxicity of juveniles
and adults (Augspurger et al. 2003, p.
2573).
In addition to ammonia, manganese,
nickel, chlorine, and sodium dodecyl
sulfate have also been linked to mussel
declines and/or toxicity (Archambault et
al. 2017, entire; Gibson 2015, pp. 90–91;
Gibson et al. 2016, p. 33). Sediments
that contain manganese and ammonia as
a result of mining and agriculture can
negatively affect mussel survival and
biomass, as observed in the Clinch River
and its tributaries (Archambault et al.
2017, pp. 403–405). Manganese and
nickel generally enter waterways in the
wastewater from various industries,
including alloy, glass, and battery
manufacturing; via atmospheric
deposition as a result of the combustion
of fossil fuels; and in the runoff from
agriculture and mining operations
(Rollin 2011, pp. 618–619). Long-term
exposure to ammonia and manganese
could reduce immunity and fecundity
in mussels (Archambault et al. 2017, p.
405). Sodium dodecyl sulfate, a
surfactant found in household
detergents and herbicides, can be lethal
to some mussels after acute exposure
(Gibson et al. 2016, p. 30).
State and Federal regulatory
mechanisms (e.g., the Clean Water Act
(33 U.S.C. 1251 et seq.)) have helped to
reduce the negative effects of point
source discharges since the 1970s.
However, while new water quality
criteria are being developed that
consider more sensitive aquatic species,
most criteria currently do not have any
limits associated with them. On August
22, 2013, the U.S. Environmental
Protection Agency (EPA) published in
the Federal Register (78 FR 52192)
national recommended ambient water
quality criteria for the protection of
aquatic life from the effects of ammonia
in fresh water. These criteria
incorporate the latest scientific
knowledge on the toxicity of ammonia
to freshwater aquatic species, including
freshwater mollusks. So far, few States
have adopted the new criteria, which
are considerably more stringent than
previous criteria. Nickel and chlorine
have been shown to be toxic to juvenile
mussels at levels below the EPA’s
current water quality criteria (Gibson
2015, pp. 90–91). Water quality criteria
for other compounds that are harmful to
mussels, such as sodium dodecyl
sulfate, do not currently exist (Gibson et
al. 2016, p. 33).
Increased water temperature caused
by loss of riparian trees, impoundments,
climate change, stormwater, wastewater
effluents, and low flows during drought
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periods can exacerbate low dissolved
oxygen levels and negatively affect
juvenile and adult green floaters. Higher
water temperatures increase metabolic
processes in freshwater mussels and can
outstrip energy reserves if they remain
above the natural thermal tolerance of a
mussel for extended periods of time.
Because ammonia toxicity in freshwater
environments increases as temperature
and pH increase (Newton 2003, p.
2543), temperature increases may
exacerbate existing pollution,
compounding the threats to green floater
growth and survival.
Salt, which enters waterways from
road runoff and industrial discharges,
can be toxic to freshwater mussels, and
concentrations observed in streams and
rivers have resulted in death of
glochidia in laboratory settings (Gillis
2011, pp. 1704–1707). The largest
chloride spikes happen in the winter
(Kaushal et al. 2005, pp. 13518–13519),
when road salt washes into waterways,
keeping chloride levels elevated in
months when green floaters release
glochidia.
Discharges of high salinity wastewater
(called brine), a waste product from oil
and gas drilling operations, into streams
can also adversely affect freshwater
mussels. In Pennsylvania, mussel
abundance and diversity were found to
be lower downstream of a brine
treatment facility (Patnode et al. 2015, p.
59). In northern Appalachia, natural gas
operations have negatively affected
groundwater and surface water quality
through wastewater disposal and
increased sedimentation (Vidic et al.
2013, p. 1235009–6; Olmstead et al.
2013, p. 4966), likely impacting mussels
in the region.
Organic contaminants such as
polycyclic aromatic hydrocarbons
(PAHs) and polychlorinated biphenyls
(PCBs) are toxic to humans and
organisms and can bioaccumulate in
plants and animals (Newton and Cope
2007, entire; Maryland DNR 2020,
unpaginated). These toxins contaminate
water via petroleum spills and
discharges, industrial and municipal
wastewater, and atmospheric deposition
(e.g., coal plants, incinerators) (Albers
2003, p. 346). Natural sources of PAHs
are forest and grassland fires, oil seeps,
volcanoes, plants, fungi, and bacteria.
Anthropogenic sources are petroleum,
electric power generation, burning of
waste, home heating oil, coke (a fuel
derived from coal), carbon, coal tar,
asphalt, and internal combustion
engines (Albers 2003, p. 345). Oil and
gas that drip from automobiles onto
pavement eventually enter waterways,
especially in urban environments.
Where roads cross over streams, PAHs
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are found in significantly higher
concentrations than in upstream reaches
(Archambault et al. 2018, p. 470).
Cumulative concentrations of PAHs in
streams can cause adverse effects to
mussels, including reduced immune
system function and reduced
reproduction (Archambault et al. 2018,
p. 474).
In use between approximately 1929
until 1978, PCBs are long-lasting toxic
compounds that have significantly
degraded major waterbodies throughout
the range of the green floater. Despite
having been banned, PCBs have
accumulated and persist in sediment,
affecting aquatic life (including mussels)
to this day (Jahn 2020, pers. comm.). For
example, up to 1.3 million pounds of
PCBs were discharged into the Hudson
River between the 1940s and 1970s
(USEPA 2016, entire). The area is now
a Federal Superfund remediation site,
and cleanup activities, which began in
2009, include dredging of the riverbed.
Because PCBs exist in the sediment,
they are released into the water and
continue to persist in the environment.
Alteration of Water Flows
Mussels typically experience low flow
and high flow periods and are adapted
to deal with seasonal variability.
However, extreme drought or flooding
can adversely affect mussel populations
that are already stressed (Hastie et al.
2001, p. 114; Golladay et al. 2004, p.
504) and can eliminate appropriate
habitats. Green floaters may be able to
survive extreme low or high flow events
if the duration is short (in the case of
stream drying), but populations that
experience these events regularly or for
extended durations may be at risk.
Very low water levels can be caused
by severe drought or water use. During
low water flow periods, mussel
mortality is primarily caused by
dehydration, thermal stress, and
exposure to predation (Golladay et al.
2004, p. 504; Pandolfo et al. 2010, p.
965; Galbraith et al. 2015, pp. 49–50).
Water withdrawals are associated with
public and private water uses, sewage
treatment, and power generation (e.g.,
dams), and may be exacerbated by
climate change (Neff et al. 2000, p. 207).
Rapid dewatering can lead to increased
stress and mortality, especially in more
sensitive mussel species (Galbraith et al.
2015, p. 50), and prevent dispersal.
While green floaters can survive short
periods of low flows, persistent low
flows can cause them to experience
oxygen deprivation and increased water
temperatures, ultimately stranding them
in place if conditions do not improve or
they are unable to relocate. If deeper
water is unavailable, they may bury
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themselves for long periods of time,
which can cause mortality, stress, and
reduced reproduction and recruitment
in the population.
High flows can be caused by extreme
precipitation (i.e., snowmelt or rainfall)
events or regulated dam releases. These
events cause water levels to rise,
increasing flow velocities which can
substantially change, destabilize, or
destroy mussel habitat. High flow
velocities can completely change the
course of the stream, scour streambeds,
erode stream banks, and fill interstitial
spaces with sediment. Where a channel
is no longer connected to floodplains,
peak flows are higher and faster, which
can degrade or eliminate green floater
habitat (Clayton 2020, pers. comm.).
High flows may also result in
dislodgement or displacement of
mussels. Flooding can bury mussels in
silt, crush them with large rocks moved
by the current, or dislodge and relocate
them to downstream areas that may or
may not provide suitable habitat (Hastie
et al. 2001, pp. 113–114).
Barriers, such as improperly installed
or maintained culverts, and
impoundments associated with dams
(reservoirs), reduce the diversity and
abundance of mussels by altering
habitat both upstream and downstream
(Bogan 1993, p. 605; Neves et al. 1997,
p. 63). Culverts and dams can inundate
upstream shallow-water habitats,
increasing sediment deposition behind
the barrier. The excess sediment can
smother green floaters by filling the
interstitial spaces where they occur,
thereby depriving them of oxygen and
nutrients. Besides sedimentation, the
increase in depth can degrade mussel
habitat in a few ways. For instance, in
large reservoirs, deep water is very cold
and often devoid of oxygen and
necessary nutrients. Smaller reservoirs
often accumulate excess nutrients, and
hence lower dissolved oxygen, and have
higher water temperatures than adjacent
stream reaches, all of which can stress
mussel populations.
Dams and other barriers also tend to
reduce the water available to mussel
populations downstream. In addition,
the frequency, duration, timing, and
location of water releases from dams can
affect the suitability of downstream
habitats for green floaters. Sudden, highvolume releases can increase scour in
some places by washing away sediment,
then smother other areas by depositing
sediment, filling interstitial spaces, and
burying the sandy and gravelly habitats
that mussels prefer. Large fluctuations
in flow regimes from dam releases can
also cause seasonal dissolved oxygen
depletion, lead to significant variation
in water temperatures, and change the
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species of fish present in the stream, all
of which can lead to unsuitable
conditions and negatively impact green
floaters. The instability of sediment
from scour, flushing, and deposition of
eroded bank material can result in
juvenile mussels failing to settle and
stay in interstitial spaces (Hastie et al.
2001, p. 114).
Nevertheless, there are cases of
populations of other mussel species
thriving in stable conditions
downstream of some dams, especially
small, low head dams (Gangloff 2013, p.
476 and references therein; BowersAltman 2020, pers. comm.). Smaller
dams have fewer adverse effects because
they do not tend to act as complete
barriers for water flow. Small dams and
their impoundments can benefit mussel
habitat by filtering and lowering
nutrient loads, oxygenating streams
during low-water periods, and
stabilizing stream beds (Gangloff 2013,
pp. 478–479). Impoundments can also
benefit the habitat by retaining fine
sediments and associated toxins,
inhibiting the spread of invasive
species, and slowing or weakening
water flows during flood events
(Fairchild and Velinsky 2006, p. 328;
Jackson and Pringle 2010, entire).
Although dams and impoundments are
considered to have an overall negative
impact across the range of the green
floater, altered or reduced hydrologic
connectivity can be preferable to natural
connectivity regimes in highly
developed landscapes.
Loss and Fragmentation of Habitat
Habitat fragmentation isolates mussel
populations, which contributes to their
risk of extirpation from stochastic
events (Haag 2012, pp. 336–338).
Streams are naturally dynamic,
frequently creating, destroying, or
shifting areas of quality habitat over a
particular timeframe. However, humancaused factors can lead to permanent
fragmentation of suitable habitat. For
instance, barriers (e.g., dams,
improperly installed or maintained
culverts with poor fish passage) can
disrupt the connectivity of green floater
habitat and isolate mussel populations
by preventing host fish from moving
upstream or downstream. Dams have
caused genetic isolation in river systems
for fish and could have the same effect
on mussel populations. The alteration in
fish populations can be a threat to the
survival of mussels and their overall
reproductive success over time (Haag
2009, pp. 117–118).
Fragmentation has other causes, too.
Pollution or other habitat degradation at
specific points can completely separate
stream reaches from one another (Fagan
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2002, p. 3246). Similarly, drought
conditions can temporarily fragment
habitat by reducing or eliminating flows
and preventing movement of fish hosts
carrying glochidia. Where mussel
populations are small, habitat
fragmentation can cause local
extirpation because populations cannot
be reestablished by colonization from
other areas. Connectivity between
mussel beds or occupied habitats is thus
particularly important where reaches of
suitable habitat are created and
destroyed frequently.
Invasive Species
Several invasive species, including
zebra and quagga mussels (Dreissena
spp.), Asian clams (Corbicula fluminea),
invasive crayfish species (especially the
rusty crayfish (Faxonius rusticus)), and
various species of bass, catfish, and carp
are present in the green floater’s range
and are likely to prey upon or compete
with green floater and alter the green
floater’s habitat (Strayer 2020, pers.
comm). Although the extent of the
effects of these invasive species on the
green floater are unknown, their
influence on the green floater is likely
to be detrimental and is expected to
increase in the future. Populations of
these species and others are expanding
their ranges and becoming established
in more watersheds inhabited by green
floaters over time. When invasive
species are introduced to natural
systems, they may have many
advantages over native species, such as
the ability to adapt to varying
environments and a high tolerance of
conditions that allows them to thrive
outside of their native range. There may
not be natural predators adapted to
control the invasive species; thus, they
have the potential to live longer and
reproduce more often, rapidly
increasing their populations and range.
Native species may become an easy food
source for invasive species, and the
invasive species can carry diseases that
could potentially spread to native
species. Some invasive species can
drastically alter aquatic habitats by
affecting flow dynamics and can
contaminate streams by dying in mass
mortality events that change the amount
of dissolved oxygen and ammonia in the
water.
Effects of Climate Change
There are a multitude of ongoing and
anticipated changes in the environment
resulting from climate change. Likely
impacts of these changes on aquatic
systems that could affect green floaters
include increases in water temperatures,
changes in seasonal precipitation, and
changes in extreme precipitation events.
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Sedentary freshwater mussels have
limited refugia from disturbances such
as droughts and floods, and since their
physiological processes are constrained
by water temperature, increases in water
temperature caused by climate change
can further stress vulnerable
populations and lead to shifts in mussel
community structure (Galbraith et al.
2010, p. 1176). Extreme events have
become more common as the climate
changes, and both floods and droughts
can degrade habitat and affect water
quality parameters, like dissolved
oxygen (see ‘‘Alteration of Water
Flows,’’ above). Low water flows (e.g.,
following a prolonged summer drought)
can expose mussels to intense
opportunistic predation (Wicklow et al.
2017, pp. 45, 47, 55, 137). All of these
predicted impacts of climate change are
already occurring in the range of the
green floater, and they are expected to
worsen over time (Poff et al. 2002, pp.
ii–v), and human alteration of channels
and flow regimes may limit the ability
of green floater and host fish species to
adapt and relocate.
Inherent Factors
Green floaters exhibit several inherent
traits that likely influence population
viability, including hermaphroditism,
direct development of juvenile mussels
in the marsupia (i.e., brood chamber in
the outer gills), and low fecundity
compared to some other mussel species.
When habitat conditions are favorable,
their abilities to develop glochidia
without host fish and to self-fertilize
allow green floaters to persist in small
streams with small populations and few
fish, which positively impacts the
species’ viability (Haag 2012, pp. 150,
191). However, low fecundity rates limit
the ability of populations to quickly
rebound after stochastic events. In
addition, hermaphroditism can lead to
lower genetic diversity, and reliance on
juvenile development without a host
fish can lead to a diminished
distribution.
Green floaters are frequently found in
low numbers within their occupied
habitats, with some found in mussel
beds along with other mussel species
and some found individually. Smaller
population size puts sites at greater risk
of extirpation from demographic or
environmental stochasticity (e.g.,
periods of poor reproductive success or
periods of severe flooding or drought) or
genetic drift. The smallest populations
of green floaters also face greater threats
from anthropogenic changes and
management activities that affect
habitat. In addition, smaller populations
may have reduced genetic diversity and
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fitness and thus are more susceptible to
environmental changes.
Conservation Efforts and Regulatory
Mechanisms
There are several regulatory
mechanisms that protect the green
floater or its habitat. The green floater is
State-listed as endangered or threatened
in 8 States (Maryland, New Jersey, New
York, North Carolina, Pennsylvania,
Tennessee, Virginia, and West Virginia)
of the 10 States where it historically
occurred. In these eight States, the green
floater receives some level of protection
due to the State listing, though this
varies by State. The green floater has
been identified on the lists of Northeast
and Southeast Regional Species of
Greatest Conservation Need, which
enables States in those regions to
prioritize research and conservation of
the species through State wildlife action
plans.
Green floaters may be afforded some
protection by the Clean Water Act’s
(CWA) dredge or fill permitting
framework. CWA section 404
established a program to regulate the
discharge of dredged and fill material
into waters of the United States. Permits
to fill wetlands or streams are issued by
the U.S. Army Corps of Engineers, and
mitigation is required to offset impacts
above minimal levels. Such mitigation
could include preservation or
restoration of stream reaches inhabited
by the green floater. CWA section 401
requires that an applicant for a Federal
dredge or fill permit under section 404
obtain a certification that any discharges
from the facility will not violate waterquality standards, including some
established by States. Current State
water quality standards are designed to
be protective of aquatic organisms;
however, freshwater mollusks may be
more susceptible to the effects of some
pollutants than organisms for which the
CWA standards were developed. In
addition, several State laws require
setbacks or buffers for development in
or near aquatic systems but allow
variances/waivers for those restrictions.
Accordingly, both Federal and State
laws and regulations afford some
protection to water quality in the green
floater’s habitat; however, because these
laws do not prohibit development, and
because it is not known whether
existing water quality standards are
adequate to protect the green floater, the
impacts caused and protections afforded
by the regulatory framework are not
precisely known.
Several States are taking additional
actions to improve habitat for freshwater
mussels, including green floaters. For
example, the West Virginia Department
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of Natural Resources has created a West
Virginia Conservation Strategy (2019)
and works with partners to implement
watershed protection, stream protection,
the restoration and maintenance of
natural flow regimes, and the reduction
of pollutants (e.g., road salt, industrial
and agricultural effluents, and sewage)
to improve aquatic habitat for mussels.
In a bridge project on the Rappahannock
River, for instance, the Virginia
Department of Wildlife Resources
collected and relocated a total of 30
green floaters. Agency staff
subsequently documented recruitment
of green floaters at the relocation site in
the Rappahannock River (Watson 2020,
pers. comm.).
A variety of agencies and
organizations (e.g., the Service, the U.S.
Department of Agriculture’s Natural
Resources Conservation Service, The
Nature Conservancy, Trout Unlimited,
and American Rivers) fund and
implement projects to remove barriers to
fish passage, plant and maintain
sufficient riparian buffers, and improve
water quality by capturing and treating
wastewater and sediment before they
enter rivers and streams. These efforts
have the effect of improving habitat for
freshwater mussels, among other aquatic
species. For instance, Federal and State
agencies (Delaware, the District of
Columbia, Maryland, Pennsylvania,
New York, Virginia, and West Virginia),
local governments, nonprofit
organizations, and academic institutions
have worked together since 1983 to
implement the Chesapeake Bay
Watershed Agreement, with the goal of
reducing pollution (in particular,
nutrient pollution), restoring wetland
and other aquatic habitats, and
promoting environmentally friendly
land-use practices in the Chesapeake
Bay watershed. In 2017, a system was
put in place to monitor progress and
document adaptive management
strategies. These efforts have
demonstrated continued improvement
of the habitat over time, which has
likely benefited green floater
populations in the area.
Several captive breeding efforts have
been conducted to determine the
feasibility of propagating green floaters.
In 2017 and 2018, the White Sulphur
Springs National Fish Hatchery grew
over 80,000 juvenile green floaters in
West Virginia. The Harrison Lake
National Fish Hatchery in Richmond
has successfully propagated and
released juvenile green floaters into
Virginia rivers and streams. These
efforts have the potential to restore
populations of green floater in the
future; however, they are currently
limited in scope, and long-term
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population increases in the wild have
yet to be documented.
Summary
Our analysis of the factors influencing
the green floater revealed multiple
threats to the current and future
viability of the species: habitat loss or
fragmentation; changes in water flows;
degraded water quality; and impacts of
climate change. Factors like low
fecundity that are inherent to the
species contribute to the likelihood of
populations becoming extirpated,
especially when populations consist of
just a few individuals. Secondary factors
that may pose a threat are the impacts
that invasive species may have on the
green floater. Other potential factors
such as disease and predation were also
considered but the extent of these issues
and their effects on green floater
populations are unknown. There are
conservation programs and water
quality standards that may benefit
freshwater mussels but few that target
the green floater specifically.
Many of the above-summarized risk
factors may act synergistically or
additively on the green floater. The
combined impact of multiple stressors is
likely more harmful than a single
stressor acting alone. For the green
floater, the inherent factor of having low
fecundity is likely to work in
conjunction with each of the other
stressors to limit the species’ ability to
recover from catastrophes (e.g., severe
floods, droughts) or to expand the
population when conditions are
favorable. For a full explanation of the
impact of stressors on the viability of
the species, see chapter 4 of the SSA
report (Service 2021, pp. 36–57).
We note that, by using the SSA
framework to guide our analysis of the
scientific information documented in
the SSA report, we have analyzed the
cumulative effects of identified threats
and conservation actions on the species.
To assess the current and future
condition of the species, we evaluate the
effects of all the relevant factors that
may be influencing the species,
including threats and conservation
efforts. Because the SSA framework
considers not just the presence of the
factors, but to what degree they
collectively influence risk to the entire
species, our assessment integrates the
cumulative effects of the factors and
replaces a standalone cumulative-effects
analysis.
Current Condition
To evaluate the current condition of
the green floater, we considered the
resiliency of the known population, the
redundancy of populations or analysis
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units, and the ecological or genetic
representation within the species across
its range. We assessed the resiliency of
the 179 analysis units by evaluating the
number of live green floaters reported
per year and trend, the length of
occupied stream segments, and habitat
quality that were established based on
evidence from documented studies,
available unpublished information, and
expert opinion (see Service 2021,
appendix C). Metrics were evaluated in
sequential order. Abundance and trend
data from surveys were considered the
most accurate indicators of current
condition and the occupied habitat and
habitat quality metrics were only
assessed if abundance and trend data
were lacking. Then current condition
categories of high, medium, low,
presumed extirpated, and historical/
unknown were assigned to the analysis
units. Condition categories were
assigned as high, medium, or low
resiliency in places where one or more
live individuals were found in a
geographic area since 1999. High
resiliency indicates that green floaters
are abundant (more than 100
individuals) in the analysis unit and
that the population appears to be stable
or increasing. For analysis units that
meet the requirements for high
resiliency, the amount of occupied
habitat and habitat quality are not
considered. Medium resiliency
indicates either that green floaters are
common (10 to 100 individuals) in the
analysis unit and the population is
stable or increasing, or that green
floaters are abundant in the analysis
unit and the population is decreasing.
Medium resiliency also indicates that
occupied steams are greater or equal to
1 km (0.62 mi) in length. Low resiliency
indicates that green floaters are rare
(fewer than 10 individuals) and that the
likelihood of the population
withstanding a stochastic event is low.
Low resiliency also indicates that
occupied steams are less than 1 km
(0.62 mi) in length or observations are
highly fragmented, and that the habitat
is considered by experts to be less
suitable for green floaters. Presumed
extirpated was assigned to geographic
areas where green floaters have not been
found recently (1999 to 2019), and
multiple surveys have been conducted
and local experts do not expect to find
them there in the future. Historical/
unknown was assigned to geographic
areas in which green floaters have not
been found recently (1999 to 2019), but
sufficient surveys have not been
conducted to declare the analysis unit
as having the condition ‘‘presumed
extirpated.’’
The results of our analysis show that
across the range of the green floater, 16
percent of analysis units are designated
as having medium (13 percent) or high
(3 percent) resiliency. The condition of
the other 84 percent of analysis units is
low (36 percent), presumed extirpated
(14 percent), or historical/unknown (34
percent). In many of the analysis units
where the green floater’s condition is
designated as medium or high,
distribution is not continuous and small
groups of green floaters are found in
pockets of habitat. It is common to find
fewer than 10 live individuals at a
location in a survey year, and in many
analysis units, few green floaters are
found over long stretches of river. For
example, in several analysis units in
New York (including the Cohocton and
Unadilla Rivers), green floaters were
found in very low numbers dispersed
over 20 to 30 miles of suitable habitat.
In addition, there is one analysis unit in
West Virginia (Knapp Creek) in which
green floaters were found in 2014 in
high numbers but, due to habitat
alterations, were not found the
subsequent year. In these unique cases,
information provided by local experts
helped determine the appropriate
condition category.
Green floaters have not been found in
approximately half (47 percent) of the
analysis units since before 1999.
However, many of these analysis units
were categorized as historical/unknown
because not enough surveys have been
conducted to determine with high
confidence that the species no longer
occurs. Of the 179 analysis units, 60 are
considered historical/unknown. Using
present land use (e.g., landscape
attributes and water quality) and climate
projections, we modeled the
probabilities of the historical/unknown
units being in each category (high,
medium, low, or presumed extirpated).
The results suggest that almost all of the
analysis units designated as historical/
unknown are likely in low condition,
with a small subset of eight analysis
units having a high likelihood of being
presumed extirpated. The analysis
indicates that green floaters currently
occupy the majority (53 to 82 percent)
of analysis units in their historical range
(see full results in table 1).
TABLE 1—SUMMARY OF THE CURRENT CONDITION OF THE RESILIENCY OF GREEN FLOATER ANALYSIS UNITS, INCLUDING
MODELED RESULTS FOR ANALYSIS UNITS IN THE HISTORICAL/UNKNOWN CATEGORY
Number of analysis units
High
Medium
Low
Presumed
extirpated
Current condition of high, medium, low, and presumed extirpated analysis units ...........................
Modeled condition of historical/unknown analysis units ....................................................................
6
*1
24
*1
64
51
25
8
Totals ..........................................................................................................................................
7
25
115
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* One analysis unit (South Branch Potomac, West Virginia) was predicted to have lower risk of being in the presumed extirpated or low categories. Therefore, the unit is likely in medium or high condition, but the model was not designed to predict one over the other.
The green floater must be able to
respond to physical (e.g., climate
conditions, habitat conditions or
structure across large areas) and
biological changes (e.g., novel diseases,
pathogens, predators) in its environment
into the future. The species’ adaptive
capacity is shown through its multiple
reproductive strategies (i.e., direct
development of glochidia and use of
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host fish) and ability to occur over a
large geographical range. The green
floater occurs in both sides of the
Eastern Continental Divide in the
Atlantic Slope and Mississippi River
drainages, a rare distribution for
mussels, where it endures a wide array
of climatic conditions (e.g.,
temperatures) and elevational gradients
(e.g., 200 to 900 meters (650 to 3,000
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feet) above sea level in West Virginia).
We assume that there is little
connectivity between populations
separated by the Continental Divide
now and there is significant genetic
information indicating the species does
not exist as a single continuous
population as well. A zone of
discontinuity exists suggesting
individuals in the northern part of the
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range are evolving separately from those
in the southern parts (King et al. 1999,
pp. S69–73, S76).
We considered the green floater’s
reproductive strategies as well as its
broad historical geographic range to
determine the breadth of the species’
representation and adaptive capacity in
five regions, which we refer to as
representation units (Great Lakes, MidAtlantic, South Atlantic, Mississippi,
and Gulf). The boundaries of these units
are based on the major watersheds and
locations of known genetic differences
among green floater populations. The
genetic differences that exist among
populations north and south of the
Potomac River indicate that populations
in the Mid-Atlantic and South Atlantic
representation units may be adapted to
local environmental conditions (e.g.,
temperature).
As discussed in the paragraphs above,
the majority of the analysis units
considered in the resiliency analysis are
categorized as low or presumed
extirpated, and these are scattered
throughout four representation units
(Great Lakes, Mid-Atlantic, South
Atlantic, and Mississippi). The green
floater is likely extirpated entirely from
the Gulf representation unit. Analysis
units designated as medium and high
are unevenly distributed across the
representation units: 17 are found in the
Mid-Atlantic, 9 are found in the South
Atlantic, 4 are found in the Mississippi,
and none are found in the Great Lakes
representation unit.
We considered the green floater’s
current redundancy by assessing the
number of and distribution of healthy
populations across the species’ range.
Thirty of the 179 analysis units (16
percent) were found to be sufficiently
resilient (in medium or high condition).
Green floater populations in six of these
analysis units (designated as high
condition) are thought to be capable of
expanding their range if suitable
adjacent habitat is available. Should a
large-scale catastrophic event occur, the
species would be best able to recover
without human intervention in the MidAtlantic, South Atlantic, and
Mississippi representation units.
Future Condition Projections
To assess the future condition of the
green floater, we projected changes in
land use and climate to model future
conditions for each analysis unit to year
2060. We first modeled the probability
that an analysis unit would be classified
in each condition category based on
historical land use and climate patterns.
These probabilities produced by the
present condition model represent the
species’ current (or baseline) risk
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profile. We then modeled future
condition for each analysis unit out to
year 2060 and incorporated a range of
plausible scenarios for each parameter,
including land use projections under
four emission scenarios (A1B, A2, B1,
and B2), and climate projections under
12 climate scenarios derived from six
global climate models (bcc–csm1–1–m,
BNU–ESM, CanESM2, GFDL–ESM2G,
GFDL–ESM2M, inmcm4) and two
representative concentration pathways
(RCP 4.5 and 8.5) (see Service 2021,
Appendix D). The presentation of the
results focused on the probability that
an analysis unit would be classified as
either presumed extirpated or low
condition, combining the two categories
discussed in the current condition
analysis. Presumed extirpated and low
were grouped together in the results to
accurately represent the uncertainty of
the model for each category.
The variables most likely to have
negative effects on green floater
condition were the percentage of
developed land, the patch density of
developed land (i.e., proportional cover
of development and its spatial pattern),
and mean runoff, which likely reflect
deteriorating habitat quality from
increased erosion, decreased substrate
stability, and poor water quality.
The results of the present condition
model indicated that all analysis units
(179 total), except 4 in West Virginia
and North Carolina, have a mean
probability greater than 50 percent of
being classified as presumed extirpated
or low resiliency based on surrounding
land use. Sixty-four of the 94 analysis
units with confirmed occurrence are
currently classified as having low
resiliency, and the remaining 30 appear
to be at high risk of becoming so, based
on land use patterns. Most analysis
units (97 of 179) are located within the
Mid-Atlantic representative unit, which
is the central region that has the greatest
future risk. According to the future
condition model, 2 of the 179 analysis
units (1 percent) are projected to be in
high condition in 2060, 4 analysis units
(2 percent) are projected to be in
medium condition, and 173 analysis
units (97 percent) are projected to be in
presumed extirpated or low condition.
The future risk of an analysis unit being
classified as presumed extirpated or low
condition at 2060 was generally similar
to baseline risk throughout the range;
however, variation tended to be wider
for most analysis units due to the added
uncertainty across multiple future
scenarios. The major rangewide trends
indicate there is a high risk that future
populations will have low resiliency in
the central portion of the range and,
according to the future condition model,
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a projected increase in risk in the
remaining southern portion. Most
populations have already been
extirpated from regions where there is
projected increase in development (the
metro areas of Washington, District of
Columbia; Philadelphia, Pennsylvania;
New York, New York; and Albany, New
York). The major exceptions are analysis
units in the southern portion of the
range surrounding Greensboro, North
Carolina; Raleigh-Durham, North
Carolina; and Lynchburg, Virginia. The
risk of extirpation (presumed extirpated)
is projected to increase 20 to 30 percent
in populations in these metro areas
(James, Dan, Eno, Neuse, and Tar River
watersheds) by 2060. This suggests that
increased risk in the southern portion of
the range could have large impacts on
species-level resilience and
representation.
In summary, there are very few
locations where the green floater is
expected to continue to be healthy and
sufficiently resilient into the future. By
the year 2060, 97 percent of the known
locations are likely to have low
resiliency or will be extirpated. We
anticipate a continued declining status
of the green floater due to ongoing and
increasing threats primarily related to
increases in developed land use. Due to
the biology and current distribution of
the species, it is unlikely that green
floaters will be able to disperse and shift
their range in response to predicted
habitat changes or novel threats in most
watersheds.
Determination of Green Floater’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.
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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, our analysis indicates
that the most important risk factor
affecting the green floater’s current and
future status and trends is the
destruction and modification of its
habitat (Factor A). The primary drivers
of the status of the species to the present
have been excessive sedimentation,
water quality degradation, alteration of
water flows, loss and fragmentation of
habitat, invasive species, and the effects
of climate change (Factor A). Landdisturbing activities associated with
development (e.g., residential/
commercial, energy, and transportation
development) have contributed to soil
erosion and excessive sedimentation in
many areas of the green floater’s range.
Development and an increase in
impervious surfaces have created
conditions in which heavy rain events
cause higher stream flows, which have
eroded streambanks and riverbanks,
increased turbidity, and decreased
streambed stability at numerous sites.
These conditions have also caused
sediment and pollutants from a wide
variety of anthropogenic sources (e.g.,
mining, agriculture, wastewater,
industrial discharge, oil and gas drilling
operations) to wash into rivers and
streams. Many of these stressors have
directly killed green floaters while
others have reduced the fitness of
individuals or reduced fecundity.
We considered whether the green
floater is presently in danger of
extinction and determined that, despite
the stressors acting upon the species,
proposing endangered status is not
appropriate. Green floaters currently
occupy the majority (53 to 82 percent)
of analysis units in their historical
range. They are currently found in seven
States, primarily occurring in the
Atlantic Slope. Individuals have
recently been found in New York,
Pennsylvania, Maryland, West Virginia,
Virginia, North Carolina, and
Tennessee, although the range has
contracted, and the species occurs as
disjunct populations in rivers and
streams in these States. Green floaters
have been observed recently (since
1999) in 94 of the 179 analysis units and
are likely to occur in another 52 units
for which the status was modeled based
on current land use patterns.
Populations in 30 of the observed
locations (32 percent) are currently
healthy and resilient to stochastic
events. Populations in six of the
observed locations (6 percent) are likely
capable of expanding their range if
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suitable adjacent habitat is available.
These moderately to highly resilient
populations are scattered across the
Mid-Atlantic, South Atlantic, and
Mississippi regions, an area covering
both sides of the Eastern Continental
Divide in the Atlantic Slope and
Mississippi River drainages. Given the
number and distribution of sufficiently
resilient populations, the green floater is
likely to persist at multiple locations
should a large-scale catastrophic event
occur, and it is unlikely that a single
catastrophic event would affect the
entire species across its large range.
The species’ current representation
(adaptive capacity) is evident through
its use of two reproductive strategies
(i.e., direct development of glochidia
and use of host fish) and continued
persistence over a large geographical
range where the climatic and habitat
conditions vary widely. While threats
are currently acting on the species and
many of those threats are expected to
continue into the future (see below), we
did not find that the green floater is
currently in danger of extinction
throughout all of its range. With 30
moderately or highly resilient
populations in three physiographic
regions, the current condition of the
species provides for enough resiliency,
redundancy, and representation such
that it is not currently at risk of
extinction.
While the green floater is not
currently in danger of extinction, under
the Act we must determine whether the
species is likely to become in danger of
extinction within the foreseeable future
throughout all of its range (i.e., whether
the species warrants listing as
threatened). In the foreseeable future,
we anticipate the status of the green
floater to continue to decline due to
ongoing and increasing threats primarily
related to increases in developed land
use (Factor A). By the year 2060, 173 (97
percent) of green floater analysis units
have a mean probability greater than 50
percent of being in low condition or
extirpated, and only 6 analysis units (3
percent) are expected to be moderately
or highly resilient. Green floater
populations in the Mid-Atlantic and
South Atlantic regions that are currently
the most highly resilient, especially
those near growing metropolitan areas
in North Carolina and Virginia, are
expected to experience the greatest
change. Loss of green floaters from these
regions could impact the species’
resilience and representation by
severely decreasing its distribution in
the central and southern parts of the
range.
Concurrent with the growing threat of
loss and degradation of habitat caused
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by development, climate change (Factor
A) is expected to further exacerbate the
degradation of green floater habitat
through increased water temperatures,
changes and shifts in seasonal patterns
of precipitation and runoff, and extreme
weather events such as flood or
droughts. These changes will make the
habitat less hospitable to the species in
the future by disrupting fundamental
ecological processes upon which the
species relies to meet basic needs such
as food and oxygen. The effects of
climate change on the environment are
expected to disrupt and limit green
floater reproduction as well. Because of
biological factors inherent to the
species’ life history, the green floater
has likely always occurred in smaller
populations compared to other mussel
species. However, in conjunction with
the climate-related stressors such as
floods and droughts, small population
size puts the species at high risk of
becoming extirpated from sites where
the habitat is in poor condition, such as
those conditions expected with
increased development. The cumulative
effect of these threats will be continued
decreases in the green floater’s
resiliency, redundancy, and
representation, which will negatively
impact the species’ viability into the
future. Thus, after assessing the best
available information, we conclude that
the green floater is not currently in
danger of extinction but is likely to
become in danger of extinction within
the foreseeable future 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. The court in Center
for Biological Diversity v. Everson, 435
F. Supp. 3d 69 (D.D.C. 2020) (Everson),
vacated the provision of the Final Policy
on Interpretation of the Phrase
‘‘Significant Portion of Its Range’’ in the
Endangered Species Act’s Definitions of
‘‘Endangered Species’’ and ‘‘Threatened
Species’’ (hereafter ‘‘Final Policy’’; 79
FR 37578, July 1, 2014) that provided if
the Service determines that a species is
threatened throughout all of its range,
the Service will not analyze whether the
species is endangered in a significant
portion of its range.
Therefore, we proceed to evaluating
whether the species is endangered in a
significant portion of its range—that is,
whether there is any portion of the
species’ range for which both (1) the
portion is significant; and (2) the species
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is in danger of extinction in that
portion. Depending on the case, it might
be more efficient for us to address the
‘‘significance’’ question or the ‘‘status’’
question first. We can choose to address
either question first. Regardless of
which question we address first, if we
reach a negative answer with respect to
the first question that we address, we do
not need to evaluate the other question
for that portion of the species’ range.
Following the court’s holding in
Everson, we now consider whether there
are any significant portions of the
species’ range where the species is in
danger of extinction now (i.e.,
endangered). In undertaking this
analysis for the green floater, we choose
to address the status question first—we
consider information pertaining to the
geographic distribution of both the
species and the threats that the species
faces to identify any portions of the
range where the species may be
endangered.
We evaluated the range of the green
floater to determine if the species is in
danger of extinction now in any portion
of its range. The range of a species can
theoretically be divided into portions in
an infinite number of ways. We focused
our analysis on portions of the species’
range that may meet the definition of an
endangered species. For the green
floater, we considered whether the
threats or their effects on the species are
greater in any biologically meaningful
portion of the species’ range. We
examined the following threats:
excessive sedimentation, water quality
degradation, alteration of water flows,
the loss and fragmentation of habitat,
invasive species, climate change, and
factors inherent to the species,
including cumulative effects.
We identified one portion of the
species’ range that warranted further
consideration as a potentially significant
portion of the range. We identified the
Great Lakes representation unit as a
portion of the range for further analysis
because no populations with moderate
or high resiliency are located there. We
analyzed whether the Great Lakes
representation unit might be a
biologically meaningful portion of the
species’ range where threats are
impacting individuals differently from
how they are affecting the species
elsewhere in its range. Overall, we
found that the loss and degradation of
suitable habitats caused by the threats is
pervasive across the green floater’s
range and we did not identify any
threats that were concentrated in any of
the five representation units analyzed or
other portions of the range, including
the Great Lakes. However, although we
did not identify any particular threats
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that are concentrated in the Great Lakes
representation unit, all six analysis
units in that area have low resiliency. It
is possible that the threats affecting the
Great Lakes region could be having a
disproportionate impact in that area
compared to the rest of the species’
range. Therefore, the species’ response
to those threats may be causing the
species in that portion of the range to
have a different biological status than its
biological status rangewide.
Because we concluded that the
biological status of the green floater in
the Great Lakes representation unit may
differ from its biological status
rangewide, we next evaluated whether
or not this area is significant. Of the
representation units that are currently
occupied by green floaters, the Great
Lakes unit is the smallest, covering the
smallest land area and containing only
6 percent of the analysis units with
confirmed occupancy rangewide.
Although all representation units
provide some contribution to the
species’ resiliency, representation, and
redundancy, the Great Lakes
representation unit encompasses only a
small portion of the total range, the
habitat there is not high quality relative
to the other portions of the range, and
the unit does not constitute high or
unique value habitat for the species.
Therefore, we concluded that the Great
Lakes representation unit is not
significant in the context of our
‘‘significant portion of the range’’
analysis.
The Gulf representation unit, which is
part of the green floater’s larger
historical range, has no resilient
populations, but because it is
completely extirpated, we cannot
consider it as part of this analysis to be
a significant portion of the range.
While there may be some variation in
the intensity of threats in the five
representation units, we found that the
loss and degradation of suitable habitats
caused by the threats is pervasive across
the species’ range. Consequently, no
portion of the species’ range provides a
basis for determining that the species is
in danger of extinction in a significant
portion of its range, and we determine
that the species is likely to become in
danger of extinction within the
foreseeable future throughout all of its
range. This does not conflict with the
courts’ holdings in Desert Survivors v.
U.S. Department of the Interior, 321 F.
Supp. 3d 1011, 1070–74 (N.D. Cal. 2018)
and Center for Biological Diversity v.
Jewell, 248 F. Supp. 3d 946, 959 (D.
Ariz. 2017) because, in reaching this
conclusion, we did not need to consider
whether any portions are significant,
and, therefore, we did not apply the
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aspects of the Final Policy, including
the definition of ‘‘significant’’ that those
court decisions held to be invalid.
Determination of Status
Our review of the best available
scientific and commercial information
indicates that the green floater meets the
Act’s definition of a threatened species.
Therefore, we propose to list the green
floater as a threatened species in
accordance with sections 3(20) and
4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to
species listed as endangered or
threatened species under the Act
include recognition as a listed species,
planning and implementation of
recovery actions, requirements for
Federal protection, and prohibitions
against certain practices. Recognition
through listing results in public
awareness, and conservation by Federal,
State, Tribal, and local agencies, private
organizations, and individuals. The Act
encourages cooperation with the States
and other countries and calls for
recovery actions to be carried out for
listed species. The protection required
by Federal agencies, including the
Service, and the prohibitions against
certain activities are discussed, in part,
below.
The primary purpose of the Act is the
conservation of endangered and
threatened species and the ecosystems
upon which they depend. The ultimate
goal of such conservation efforts is the
recovery of these listed species, so that
they no longer need the protective
measures of the Act. Section 4(f) of the
Act calls for the Service to develop and
implement recovery plans for the
conservation of endangered and
threatened species. The goal of this
process is to restore listed species to a
point where they are secure, selfsustaining, 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
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recovery criteria for review of when a
species may be ready for reclassification
from endangered to threatened
(‘‘downlisting’’) or removal from
protected status (‘‘delisting’’), and
methods for monitoring recovery
progress. Recovery plans also establish
a framework for agencies to coordinate
their recovery efforts and provide
estimates of the cost of implementing
recovery tasks. Revisions of the plan
may be done to address continuing or
new threats to the species, as new
substantive information becomes
available. The recovery outline, draft
recovery plan, final recovery plan, and
any revisions will be available on our
website as they are completed (https://
www.fws.gov/program/endangeredspecies), or from our New York
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 Alabama, Georgia,
Maryland, New Jersey, New York, North
Carolina, Pennsylvania, Tennessee,
Virginia, and West Virginia would be
eligible for Federal funds to implement
management actions that promote the
protection or recovery of the green
floater. Information on our grant
programs that are available to aid
species recovery can be found at:
https://www.fws.gov/service/financialassistance.
Although the green floater 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
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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 green floater 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.
Fish and Wildlife Service, U.S. Forest
Service, and National Park Service, as
well as actions on State, Tribal, local, or
private lands that require a Federal
permit (such as a permit from the U.S.
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Army Corps of Engineers under section
404 of the Clean Water Act 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. Examples of Federal
agency actions that may require
consultation for the green floater could
include replacing and repairing bridges
and culverts, road construction projects,
and managing vegetation near streams.
Federal agencies should coordinate with
the local Service Field Office (see FOR
FURTHER INFORMATION CONTACT, above)
with any specific questions on section 7
consultation and conference
requirements.
It the policy of the Service, as
published in the Federal Register on
July 1, 1994 (59 FR 34272), to identify
to the extent known at the time a
species is listed, specific activities that
will not be considered likely to result in
violation of section 9 of the Act. To the
extent possible, activities that will be
considered likely to result in violation
will also be identified in as specific a
manner as possible. The intent of this
policy is to increase public awareness of
the effect of a proposed listing on
proposed and ongoing activities within
the range of the species proposed for
listing. Although most of the
prohibitions in section 9 of the Act
apply to endangered species, sections
9(a)(1)(G) and 9(a)(2)(E) of the Act
prohibit the violation of any regulation
under section 4(d) pertaining to any
threatened species of fish or wildlife, or
threatened species of plant,
respectively. Section 4(d) of the Act
directs the Secretary to promulgate
protective regulations that are necessary
and advisable for the conservation of
threatened species. As a result, we
interpret our policy to mean that, when
we list a species as a threatened species,
to the extent possible, we identify
activities that will or will not be
considered likely to result in violation
of the protective regulations under
section 4(d) for that species.
At this time, we are unable to identify
specific activities that will or will not be
considered likely to result in violation
of section 9 of the Act beyond what is
already clear from the descriptions of
prohibitions and exceptions established
by protective regulation under section
4(d) of the Act.
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Questions regarding whether specific
activities would constitute violation of
section 9 of the Act should be directed
to the New York Ecological Services
Field Office (see FOR FURTHER
INFORMATION CONTACT).
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II. Proposed Rule Issued Under Section
4(d) of the Act
Background
Section 4(d) of the Act contains two
sentences. The first sentence states that
the Secretary shall issue such
regulations as she deems necessary and
advisable to provide for the
conservation of species listed as
threatened species. The U.S. Supreme
Court has noted that statutory language
similar to the language in section 4(d) of
the Act authorizing the Secretary to take
action that she ‘‘deems necessary and
advisable’’ affords a large degree of
deference to the agency (see Webster v.
Doe, 486 U.S. 592, 600 (1988)).
Conservation is defined in the Act to
mean the use of all methods and
procedures which are necessary to bring
any endangered species or threatened
species to the point at which the
measures provided pursuant to the Act
are no longer necessary. Additionally,
the second sentence of section 4(d) of
the Act states that the Secretary may by
regulation prohibit with respect to any
threatened species any act prohibited
under section 9(a)(1), in the case of fish
or wildlife, or section 9(a)(2), in the case
of plants. Thus, the combination of the
two sentences of section 4(d) provides
the Secretary with wide latitude of
discretion to select and promulgate
appropriate regulations tailored to the
specific conservation needs of the
threatened species. The second sentence
grants particularly broad discretion to
the Service when adopting one or more
of the prohibitions under section 9.
The courts have recognized the extent
of the Secretary’s discretion under this
standard to develop rules that are
appropriate for the conservation of a
species. For example, courts have
upheld, as a valid exercise of agency
authority, rules developed under section
4(d) that included limited prohibitions
against takings (see Alsea Valley
Alliance v. Lautenbacher, 2007 WL
2344927 (D. Or. 2007); Washington
Environmental Council v. National
Marine Fisheries Service, 2002 WL
511479 (W.D. Wash. 2002)). Courts have
also upheld 4(d) rules that do not
address all of the threats a species faces
(see State of Louisiana v. Verity, 853
F.2d 322 (5th Cir. 1988)). As noted in
the legislative history when the Act was
initially enacted, ‘‘once an animal is on
the threatened list, the Secretary has an
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almost infinite number of options
available to [her] with regard to the
permitted activities for those species.
[She] may, for example, permit taking,
but not importation of such species, or
[she] may choose to forbid both taking
and importation but allow the
transportation of such species’’ (H.R.
Rep. No. 412, 93rd Cong., 1st Sess.
1973).
The provisions of this proposed 4(d)
rule would promote conservation of the
green floater by encouraging
management of the habitat in ways that
meet both stream management
considerations and the conservation
needs of the green floater. The
provisions of this proposed rule are one
of many tools that we would use to
promote the conservation of the green
floater. This proposed 4(d) rule would
apply only if and when we make final
the listing of the green floater as a
threatened species.
As mentioned above in Available
Conservation Measures, 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, even before the
listing of any species or the designation
of its critical habitat is finalized, section
7(a)(4) of the Act requires Federal
agencies to confer with the Service on
any agency action that 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.
These requirements are the same for
a threatened species with a speciesspecific 4(d) rule. For example, as with
an endangered species, if a Federal
agency determines that an action is ‘‘not
likely to adversely affect’’ a threatened
species, it will require the Service’s
written concurrence (50 CFR 402.13(c)).
Similarly, if a Federal agency
determinates that an action is ‘‘likely to
adversely affect’’ a threatened species,
the action will require formal
consultation with the Service and the
formulation of a biological opinion (50
CFR 402.14(a)).
Provisions of the Proposed 4(d) Rule
Exercising the Secretary’s authority
under section 4(d) of the Act, we have
developed a proposed rule that is
designed to address the green floater’s
conservation needs. As discussed above
in Summary of Biological Status and
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Threats, we have concluded that the
green floater is likely to become in
danger of extinction within the
foreseeable future primarily due to
habitat degradation caused by
development and climate change.
Section 4(d) requires the Secretary to
issue such regulations as she deems
necessary and advisable to provide for
the conservation of each threatened
species and authorizes the Secretary to
include among those protective
regulations any of the prohibitions that
section 9(a)(1) of the Act prescribes for
endangered species. We find that, if
finalized, the protections, prohibitions,
and exceptions in this proposed rule as
a whole satisfy the requirement in
section 4(d) of the Act to issue
regulations deemed necessary and
advisable to provide for the
conservation of the green floater.
The protective regulations we are
proposing for green floater incorporate
prohibitions from the Act’s section
9(a)(1) to address the threats to the
species. Section 9(a)(1) prohibits the
following activities for endangered
wildlife: importing or exporting; take;
possession and other acts with
unlawfully taken specimens; delivering,
receiving, carrying, transporting, or
shipping in interstate or foreign
commerce in the course of commercial
activity; or selling or offering for sale in
interstate or foreign commerce. This
protective regulation includes all of
these prohibitions because the green
floater is at risk of extinction within the
foreseeable future and putting these
prohibitions in place will help prevent
further declines, preserve the species’
remaining populations, slow its rate of
decline, and decrease synergistic,
negative effects from other ongoing or
future threats.
In particular, this proposed 4(d) rule
would provide for the conservation of
the green floater by prohibiting the
following activities, unless they fall
within specific exceptions or are
otherwise authorized or permitted:
importing or exporting; take; possession
and other acts with unlawfully taken
specimens; delivering, receiving,
carrying, transporting, or shipping in
interstate or foreign commerce in the
course of commercial activity; or selling
or offering for sale in interstate or
foreign commerce.
Under the Act, ‘‘take’’ means to
harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or
to attempt to engage in any such
conduct. Some of these provisions have
been further defined in regulations at 50
CFR 17.3. Take can result knowingly or
otherwise, by direct and indirect
impacts, intentionally or incidentally.
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Regulating take would help preserve the
species’ remaining populations, slow
their rate of decline, and decrease
synergistic, negative effects from other
ongoing or future threats. Therefore, we
propose to prohibit take of the green
floater, except for take resulting from
those actions and activities specifically
excepted by the 4(d) rule.
Exceptions to the prohibition on take
would include all of the general
exceptions to the prohibition against
take of endangered wildlife, as set forth
in 50 CFR 17.21 and certain other
specific activities that we propose for
exception, as described below.
The proposed 4(d) rule would also
provide for the conservation of the
species by allowing exceptions that
incentivize conservation actions or that,
while they may have some minimal
level of take of the green floater, are not
expected to rise to the level that would
have a negative impact (i.e., would have
only de minimis impacts) on the
species’ conservation. The proposed
exceptions to these prohibitions include
streambank restoration projects and
bridge and culvert replacement or
removal projects (described below) that
are expected to have negligible impacts
to the green floater and its habitat.
A major threat to the green floater is
the degradation of stream habitat,
particularly the erosion of banks, which
leads to excessive sedimentation and
poor water quality that can bury green
floaters or deprive them of oxygen and
nutrients. Stream bank restoration
projects that stabilize and vegetate bare
or incised stream banks help to reduce
bank erosion and concomitant instream
sedimentation and improve habitat
conditions for the species. Streambank
projects that use vegetation and
bioengineering techniques (e.g.,
instream structures to redirect flows)
rather than hardscapes (e.g., rock
revetments and riprap) to stabilize the
habitat create more suitable conditions
for green floaters. Vegetated banks
contribute to cooler water temperatures
and provide habitat for other wildlife.
When streambanks are stable, the
streams are more resilient to damage
caused by catastrophic events related to
climate change like heavy precipitation
and floods.
Bridge and culvert replacement or
removal projects can benefit the green
floater by restoring water flow to stream
segments that have become
disconnected from the larger watershed
or improving fish passage or both. In
places where bridges and culverts have
collapsed, become blocked, or in some
other way prevent the flow of water,
green floater glochidia are not able to
disperse to other suitable habitat, and
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reproduction and gene flow become
limited. Water flows that are too slow to
hold adequate oxygen can cause green
floaters to become stressed or die.
Before conducting instream activities in
places where green floaters may occur,
surveys are required to determine if they
are present. Survey plans must be
submitted to and approved by the local
Service field office before conducting
surveys. All surveys must be conducted
by a qualified and permitted biologist,
as allowed by Section 10(a)(1)(A) of the
Act. If green floaters are found, the
biologist must coordinate with their
local Service field office regarding
salvage and relocation of individuals to
suitable habitat before project
implementation. Should green floaters
be relocated, monitoring must be
conducted after project implementation.
In most cases where water flows are
very low, we would not expect
conditions to support live green floaters.
This step is meant to prevent
unintended harm where individuals
have survived and preserve potential
adaptive traits to low-quality habitats.
Despite these prohibitions regarding
threatened species, we may under
certain circumstances issue permits to
carry out one or more otherwise
prohibited activities, including those
described above. The regulations that
govern permits for threatened wildlife
state that the Director may issue a
permit authorizing any activity
otherwise prohibited with regard to
threatened species. These include
permits issued for the following
purposes: for scientific purposes, to
enhance propagation or survival, for
economic hardship, for zoological
exhibition, for educational purposes, for
incidental taking, or for special
purposes consistent with the purposes
of the Act (50 CFR 17.32). The statute
also contains certain exemptions from
the prohibitions, which are found in
sections 9 and 10 of the Act.
We recognize the special and unique
relationship with our State natural
resource agency partners in contributing
to conservation of listed species. State
agencies often possess scientific data
and valuable expertise on the status and
distribution of endangered, threatened,
and candidate species of wildlife and
plants. State agencies, because of their
authorities and their close working
relationships with local governments
and landowners, are in a unique
position to assist us in implementing all
aspects of the Act. In this regard, section
6 of the Act provides that we must
cooperate to the maximum extent
practicable with the States in carrying
out programs authorized by the Act.
Therefore, any qualified employee or
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agent of a State conservation agency that
is a party to a cooperative agreement
with us in accordance with section 6(c)
of the Act, who is designated by his or
her agency for such purposes, would be
able to conduct activities designed to
conserve green floater that may result in
otherwise prohibited take without
additional authorization.
Nothing in this proposed 4(d) rule
would change in any way the recovery
planning provisions of section 4(f) of the
Act, the consultation requirements
under section 7 of the Act, or our ability
to enter into partnerships for the
management and protection of the green
floater. However, interagency
cooperation may be further streamlined
through planned programmatic
consultations for the species between us
and other Federal agencies, where
appropriate. We ask the public,
particularly State agencies and other
interested stakeholders that may be
affected by the proposed 4(d) rule, to
provide comments and suggestions
regarding additional guidance and
methods that we could provide or use,
respectively, to streamline the
implementation of this proposed 4(d)
rule (see Information Requested, above).
III. 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
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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 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
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 nonFederal 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
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special management considerations or
protection. For these areas, critical
habitat designations identify, to the
extent known using the best scientific
and commercial 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 from the SSA
report and information developed
during the listing process for the
species. Additional information sources
may include any generalized
conservation strategy, criteria, or outline
that may have been developed for the
species; the recovery plan for the
species; articles in peer-reviewed
journals; conservation plans developed
by States and counties; scientific status
surveys and studies; biological
assessments; other unpublished
materials; or experts’ opinions or
personal knowledge.
Habitat is dynamic, and species may
move from one area to another over
time. We recognize that critical habitat
designated at a particular point in time
may not include all of the habitat areas
that we may later determine are
necessary for the recovery of the
species. For these reasons, a critical
habitat designation does not signal that
habitat outside the designated area is
unimportant or may not be needed for
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recovery of the species. Areas that are
important to the conservation of the
species, both inside and outside the
critical habitat designation, will
continue to be subject to: (1)
Conservation actions implemented
under section 7(a)(1) of the Act; (2)
regulatory protections afforded by the
requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their
actions are not likely to jeopardize the
continued existence of any endangered
or threatened species; and (3) the
prohibitions found in the 4(d) rule.
Federally funded or permitted projects
affecting listed species outside their
designated critical habitat areas may
still result in jeopardy findings in some
cases. These protections and
conservation tools will continue to
contribute to recovery of the species.
Similarly, critical habitat designations
made on the basis of the best available
information at the time of designation
will not control the direction and
substance of future recovery plans,
habitat conservation plans (HCPs), or
other species conservation planning
efforts if new information available at
the time of those planning efforts calls
for a different outcome.
Physical or Biological Features
Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i)
of the Act and regulations at 50 CFR
424.12(b), in determining which areas
we will designate as critical habitat from
within the geographical area occupied
by the species at the time of listing, we
consider the physical or biological
features that are essential to the
conservation of the species and which
may require special management
considerations or protection. The
regulations at 50 CFR 424.02 define
‘‘physical or biological features essential
to the conservation of the species’’ as
the features that occur in specific areas
and that are essential to support the lifehistory 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
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seed germination, protective cover for
migration, or susceptibility to flooding
or fire that maintains necessary earlysuccessional 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 lifehistory needs, condition, and status of
the species. These characteristics
include, but are not limited to, space for
individual and population growth and
for normal behavior; food, water, air,
light, minerals, or other nutritional or
physiological requirements; cover or
shelter; sites for breeding, reproduction,
or rearing (or development) of offspring;
and habitats that are protected from
disturbance.
As described above under Summary
of Biological Status and Threats, the
green floater occurs in small streams to
large rivers with stable flow regimes and
suitable substrates. When they occur in
larger streams and rivers, they are found
in quieter pools and eddies, away from
strong currents. Their mobility is
limited, and fast flowing currents or
high-water events can cause them to
lose their foothold and be washed
downstream.
The primary habitat elements that
influence resiliency of the green floater
include water flow, streambed substrate,
water quality, water temperature, and
conditions that support their host fish.
All life stages of green floaters require
aquatic habitats with stable sand and
gravel substrates, a sufficient amount of
clean water with slow to moderate flow
and refugia (i.e., eddies and ponded
areas in streams), and sufficient food
resources (i.e., microscopic particulates
from plankton, bacteria, detritus, or
dissolved organic matter). Based on
what is known from studying surrogate
species, glochidia require temperatures
between 59 and 68 °F (15 and 20 °C) for
release, and juvenile mussels cannot
survive temperatures above 86 °F
(30 °C). Green floaters have the ability
reproduce by directly metamorphosing
glochidia without requiring an
intermediate fish host, but the use of
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fish hosts is necessary for upstream
dispersal of the species. 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 (Service 2021, pp. 18–35).
Summary of Essential Physical or
Biological Features
We derive the specific physical or
biological features essential to the
conservation of green floater from
studies of the species’ habitat, ecology,
and life history as described below.
Additional information can be found in
the SSA report (Service 2021, entire;
available on https://
www.regulations.gov under Docket No.
FWS–R5–ES–2023–0012). We have
determined that the following physical
or biological features are essential to the
conservation of green floater:
(1) Flows adequate to maintain both
benthic habitats and stream
connectivity, allow glochidia and
juveniles to become established in their
habitats, allow the exchange of nutrients
and oxygen to mussels, and maintain
food availability and spawning habitat
for host fishes. The characteristics of
such flows include a stable, not flashy,
flow regime, with slow to moderate
currents to provide refugia during
periods of higher flows.
(2) Suitable sand and gravel substrates
and connected instream habitats
characterized by stable stream channels
and banks and by minimal
sedimentation and erosion.
(3) Sufficient amount of food
resources, including microscopic
particulate matter (plankton, bacteria,
detritus, or dissolved organic matter).
(4) Water and sediment quality
necessary to sustain natural
physiological processes for normal
behavior, growth, and viability of all life
stages, including, but not limited to,
those general to other mussel species:
• Adequate dissolved oxygen;
• Low salinity;
• Low temperature (generally below
86 °F (30 °C));
• Low ammonia (generally below 0.5
parts per million total ammonianitrogen), PAHs, PCBs, and heavy metal
concentrations; and
• No excessive total suspended solids
and other pollutants, including
contaminants of emerging concern.
(5) The presence and abundance of
fish hosts necessary for recruitment of
the green floater (including, but not
limited to, mottled sculpin (Cottus
bairdii), rock bass (Ambloplites
rupestris), central stoneroller
(Campostoma anomalum), blacknose
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dace (Rhinichthys atratulus), and
margined madtom (Noturus insignis)).
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 green floater may require special
management considerations or
protection to reduce the following
threats: (1) land-disturbing activities
associated with development (i.e.,
residential/commercial, energy, and
transportation development); (2)
agriculture and forestry activities that
do not implement best management
practices to minimize soil erosion and
increased overland flow and (3) barriers
that fragment streams and rivers (e.g.,
dams and improperly installed or
maintained culverts); (4) contaminants
from point and non-point sources (e.g.,
spills, industrial discharges, municipal
effluents, agricultural runoff, and
atmospheric deposition from
precipitation); (5) impacts of climate
change; and (6) potential effects of
nonnative species.
Special management considerations
or protection may be required within
critical habitat areas to address these
threats. Management activities that
could ameliorate these threats include,
but are not limited to, protecting and
restoring streams and streambank
habitats, including stable sand and
gravel substrates; maintaining and
restoring slow to moderate, not flashy,
water flows in streams that may support
the species; maintaining and restoring
connectivity between streams; reducing
or removing contaminants from
waterways and sediments; coordinating
with landowners and local managers to
implement best management practices
during agriculture and forestry
activities; and minimizing the
likelihood that agriculture or energy
development projects will impact the
quality or quantity of suitable habitat.
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
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area occupied by the species at the time
of listing and any specific areas outside
the geographical area occupied by the
species to be considered for designation
as critical habitat. We are not currently
proposing to designate any areas outside
the geographical area occupied by the
species because we have not identified
any unoccupied areas that meet the
definition of critical habitat, and we
have determined that the occupied areas
are sufficient to conserve the species.
We anticipate that recovery will
require maintaining and, where
necessary, improving habitat and habitat
connectivity to ensure the long-term
viability of the green floater. We have
determined that the areas containing
one or more of the essential physical or
biological features and occupied by the
green floater are sufficient to maintain
the species’ resiliency, redundancy, and
representation and to conserve the
species. Therefore, we are not currently
proposing to designate any areas outside
the geographical area occupied by the
species.
In summary, for areas within the
geographic area occupied by the species
at the time of listing, we delineated
critical habitat stream segment
boundaries using the following criteria:
Evaluate suitability of streams within
the hydrologic units occupied at the
time of listing and delineate those areas
that contain some or all of the physical
or biological features necessary to
support life-history functions essential
to the conservation of the species. All
stream segments proposed for
designation contain one or more of the
physical or biological features and
support multiple life-history processes.
From the complete list of occupied
watersheds (see Service 2021, appendix
C), which were based on HUC 10
watersheds, we identified a subset of
watersheds that provide the most highly
suitable green floater habitat and
present the best opportunities for the
species’ recovery. This subset includes
all the analysis units classified as being
in medium or high condition according
to the SSA report (version 1.0; Service
2021, pp. 61–76). This subset also
includes analysis units classified or
modeled as being in low condition that
are between or adjacent to units in
medium or high condition. These low
condition areas represent areas where
green floaters are expected to be able to
increase in numbers with the
protections afforded by the Act,
potentially increasing the future
resiliency of the species. We then also
identified analysis units classified or
modeled as being in low condition in
the SSA report, but that are
disconnected from watersheds
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determined to be in better condition,
that present opportunities to increase
the species’ future resiliency,
redundancy, and representation.
The critical habitat designation does
not include all rivers and streams
currently occupied by the species, nor
all rivers and streams known to have
been occupied by the species
historically. Instead, it includes only the
occupied rivers and streams within the
current range that we determined have
the physical or biological features that
are essential to the conservation of these
species and meet the definition of
critical habitat. These rivers and streams
contain populations most likely to be
self-sustaining over time and
populations that will allow for the
maintenance and expansion of the
species. Adjacent units and
disconnected units in low condition
that are not being proposed as critical
habitat have been omitted because they
are located near highly developed areas
or have very low-quality habitat that is
unlikely to be restored to a condition
suitable to support a healthy population
of green floaters. Analysis units where
green floater occupancy has not been
confirmed since before 1999 have also
been omitted because they are not
considered currently occupied. The
time period between 1999 and 2019 was
selected to represent recent occurrences
because this period covers
approximately three generations of
green floaters and is notable for the
relative increase in mussel survey effort.
We are not designating any areas
outside the areas confirmed occupied by
the green floater during this time period
because we determined that these areas
are sufficient to conserve the species.
In the selected analysis units, we
identified the coordinates of the
occupied rivers and streams and then
refined the length of each segment by
matching the starting and ending points
to locations of known green floater
occurrences collected between 1999 and
2019. We then expanded the area
upstream to the next named tributary
and downstream to the next confluence,
stream intersection, or barrier. We
assumed that where green floaters have
been observed or collected, the entire
stream is occupied upstream to the next
named tributary and downstream to the
next confluence, stream intersection, or
barrier. Thus, we have interpreted
‘‘occupied’’ in a conservative manner
and have assumed green floaters to be
present in all stream segments with
similar conditions that are physically
accessible to the ones in which they
have been documented.
When determining proposed critical
habitat boundaries, we made every
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48315
effort to avoid including developed
areas such as lands covered by
buildings, pavement, and other
structures because such lands lack the
physical or biological features necessary
for green floaters. 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 stream and river segments 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.
Stream and river segments are
proposed for designation based on one
or more of the physical or biological
features being present to support the
green floater’s life-history processes. All
of the segments contain one or more of
the physical or biological features
necessary to support the green floater’s
particular use of that habitat. Because
all of the proposed segments are
currently occupied by the species, they
are likely to contain all of the physical
or biological features necessary to
support the species to some degree, but
the quality of those physical or
biological features may not be in
optimal condition. For example, a unit
may have some sand and gravel
substrates but the suitability of these
substrates for green floaters may be
improved if sources of sedimentation
and erosion were minimized.
The proposed critical habitat
designation is defined by the map or
maps, as modified by any accompanying
regulatory text, presented at the end of
this document under Proposed
Regulation Promulgation. We include
more detailed information on the
boundaries of the critical habitat
designation in the preamble of this
document. We will make the
coordinates or plot points or both on
which each map is based available to
the public on https://
www.regulations.gov at Docket No.
FWS–R5–ES–2023–0012 and on our
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internet site at https://www.fws.gov/
office/new-york-ecological-servicesfield.
Proposed Critical Habitat Designation
We are proposing to designate
approximately 2,553 river km (1,586
river mi) in eight units as critical habitat
for the green floater. The critical habitat
areas we describe below constitute our
current best assessment of areas that
meet the definition of critical habitat for
green floater. The eight areas we
propose as critical habitat are the
following watersheds: (1) Southwestern
Lake Ontario, (2) Susquehanna, (3)
Potomac, (4) Kanawha, (5) Lower
Chesapeake, (6) Chowan-Roanoke, (7)
Neuse-Pamlico, and (8) Upper
Tennessee. Table 2 shows the proposed
critical habitat units and subunits and
the approximate area of each.
TABLE 2—PROPOSED CRITICAL HABITAT UNITS FOR THE GREEN FLOATER
[All proposed units are occupied by the species]
Critical habitat unit
Adjacent riparian land ownership by type
Unit 1: Southwestern Lake Ontario Watershed (NY):
1. Genesee River ...........................................................
Unit 2: Susquehanna Watershed (NY and PA):
2a. Susquehanna River .................................................
2b. Fivemile Creek .........................................................
2c. Cohocton River ........................................................
2d. Tioga River ...............................................................
2e. Chemung River ........................................................
2f. Catatonk Creek .........................................................
2g. Tunkhannock Creek .................................................
2h. Tioughnioga River ....................................................
2i. Chenango River ........................................................
2j. Unadilla River ............................................................
2k. Upper Susquehanna River .......................................
2l. Pine Creek ................................................................
2m. Marsh Creek ...........................................................
2n. West Branch Susquehanna .....................................
2o. Buffalo Creek ...........................................................
2p. Penns Creek ............................................................
Unit 3: Potomac Watershed (PA, MD, and WV):
3a. Potomac River .........................................................
3b. Patterson Creek .......................................................
3c. Sideling Hill Creek ....................................................
3d. Cacapon River .........................................................
3e. Licking Creek ...........................................................
3f. Back Creek ...............................................................
Unit 4: Kanawha Watershed (NC, VA, and WV):
4a. Greenbrier ................................................................
4b. Deer Creek ...............................................................
4c. Knapp Creek ............................................................
4d. New River ................................................................
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4e. Little River (Kanawha) .............................................
4f. South Fork New River ..............................................
Unit 5: Lower Chesapeake Watershed (VA):
5a. Tye River ..................................................................
5b. Pedlar River .............................................................
Unit 6: Chowan-Roanoke Watershed (NC and VA):
6a. Dan River .................................................................
6b. South Mayo ..............................................................
6c. North Mayo ...............................................................
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Approximate river km
(mi)
Private ..................................................................................
55.6 (34.6)
Public (State) .......................................................................
Private ..................................................................................
Private ..................................................................................
Public (State, Local) ............................................................
Private ..................................................................................
Public (State) .......................................................................
Private ..................................................................................
Public (State, Local) ............................................................
Private ..................................................................................
Private ..................................................................................
Private ..................................................................................
Public (Local) .......................................................................
Private ..................................................................................
Public (State) .......................................................................
Private ..................................................................................
Private ..................................................................................
Private ..................................................................................
Public (State) .......................................................................
Private ..................................................................................
Public (State) .......................................................................
Private ..................................................................................
Private ..................................................................................
Public (Local) .......................................................................
Private ..................................................................................
Public (Local) .......................................................................
Private ..................................................................................
10.3 (6.4)
335.5 (208.5)
13.9 (8.7)
6.6 (4.1)
41.1 (25.6)
0.6 (0.4)
15.1 (9.4)
11.0 (6.8)
62.0 (38.5)
34.2 (21.2)
4.5 (2.8)
0.2 (0.1)
59.2 (36.8 )
6.3 (3.9)
134.7 (83.7)
93.7 (58.2)
99.3 (61.7)
39.1 (24.3)
76.4 (47.5)
1.7 (1.1)
2.7 (1.7)
45.8 (28.5)
7.4 (4.6)
5.8 (3.5)
0.3 (0.2)
35.2 (21.9)
Public (Federal, State) .........................................................
Private ..................................................................................
Private ..................................................................................
Public (State) .......................................................................
Private ..................................................................................
Private ..................................................................................
Private ..................................................................................
Private ..................................................................................
52.7 (32.7)
27.6 (17.1)
22.3 (13.9)
16.5 (10.3)
34.8 (21.6)
123.0 (76.5)
6.7 (4.1)
46.8 (29.1)
Public (Federal, State) .........................................................
Private ..................................................................................
Public (Federal, State) .........................................................
Public (Federal, State, Local) ..............................................
Private ..................................................................................
Public (State) .......................................................................
Private ..................................................................................
Private ..................................................................................
Private ..................................................................................
258.0 (160.3)
1.7 (1.1)
17.4 (10.8)
30.3 (18.8)
1.9 (1.2)
6.5 (4.0)
9.0 (5.6)
17.9 (11.1)
146.7 (90.5)
Public (Federal) ...................................................................
Private ..................................................................................
Private ..................................................................................
0.6 (0.4)
53.5 (33.2)
8.6 (5.4)
Public (State, Local) ............................................................
Private ..................................................................................
Public (State) .......................................................................
Private ..................................................................................
Public (State) .......................................................................
Private ..................................................................................
2.5 (1.6)
218.8 (135.9)
1.8 (1.1)
2.8 (1.8)
2.5 (1.6)
3.4 (2.1)
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TABLE 2—PROPOSED CRITICAL HABITAT UNITS FOR THE GREEN FLOATER—Continued
[All proposed units are occupied by the species]
Critical habitat unit
Adjacent riparian land ownership by type
6d. Mayo River ...............................................................
6e. Meherrin River .........................................................
Unit 7: Neuse-Pamlico Watershed (NC):
7a. Neuse River .............................................................
7b. Eno River .................................................................
7c. Flat River ..................................................................
7d. Little River (Neuse-Pamlico) ....................................
Unit 8: Upper Tennessee Watershed (NC):
8. Watauga River ...........................................................
Total ........................................................................
Approximate river km
(mi)
Public (State) .......................................................................
Private ..................................................................................
Private ..................................................................................
15.9 (9.9)
9.2 (5.7)
106.1 (65.9)
Public (State, Local) ............................................................
Private ..................................................................................
Public (Federal, State, Local) ..............................................
Private ..................................................................................
Public (Federal, State, Local) ..............................................
Private ..................................................................................
Public (State, Local) ............................................................
Private ..................................................................................
16.0 (9.9)
10.8 (6.7)
33.1 (20.6)
21.3 (13.2)
17.6 (10.9)
13.3 (8.3)
7.4 (4.6)
1.2 (0.8)
Private ..................................................................................
..............................................................................................
16.0 (9.9)
2,552.6 (1,586.1)
Note: Area sizes may not sum due to rounding.
We present brief descriptions of all
proposed units, and reasons why they
meet the definition of critical habitat for
the green floater, below. Each of these
proposed units and subunits are
occupied by the species and currently
support the breeding, feeding, and
sheltering needs for the species.
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Unit 1: Southwestern Lake Ontario
Watershed
Unit 1 consists of 55.6 stream km
(34.6 mi) of the Genesee River in the
Southwestern Lake Ontario watershed
in Livingston County, New York, from
New York Route 36 downstream to the
river’s confluence with White Creek. It
includes the river channel up to the
ordinary high water mark. Riparian
lands that border the unit are all (100
percent) privately owned. This unit
contains one or more of the physical or
biological features essential to the
species’ conservation.
Special management considerations
or protection may be required within
Unit 1 to address excess nutrients,
sediment, and pollutants that enter the
river as well as recreation and
management activities. Sources of these
types of pollution are wastewater,
agricultural runoff, and urban
stormwater runoff that could come from
the nearby towns of Avon, Geneseo, and
Mount Morris adjacent to the river or
towns located upstream. The Mount
Morris Lake and Dam and Genesee River
Gorge are approximately 2.4 km (1.5 mi)
upstream of Unit 1. Management
activities, such as debris and sediment
removal at the dam and lake, as well as
water releases from the dam, have the
potential to impact the water quality
and quantity in Unit 1.
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Unit 2: Susquehanna Watershed
Unit 2 consists of 16 subunits of the
Susquehanna watershed in New York
(Broome, Chemung, Chenango,
Cortland, Delaware, Herkimer, Madison,
Otsego, Steuben, and Tioga Counties)
and Pennsylvania (Bradford, Clinton,
Columbia, Dauphin, Lackawanna,
Luzerne, Lycoming, Montour,
Northumberland, Perry, Snyder, Tioga,
Union, and Wyoming Counties). Each of
the subunits in this unit contain one or
more of the physical or biological
features essential to the species’
conservation.
Special management considerations
or protection may be required within
Unit 2 to address excess nutrients,
sediment, and pollutants that enter the
river, construction projects, and
conservation activities. Several major
urban areas are encompassed by Unit 2,
including Scranton, Pennsylvania, and
Binghamton, New York, in addition to
numerous small towns adjacent to rivers
and streams that have the potential to
influence the water quality and quantity
in the unit. Future construction projects
to repair or replace bridges, roads,
culverts, and embankments; to remove
debris; and to repair or remove hazard
dams have the potential to impact
habitat in this unit as well.
In New York, the U.S. Department of
Agriculture’s Natural Resources
Conservation Service supports several
programs designed to restore and
conserve rivers and streams. Future
restoration plans include construction
of stream crossings, planting of riparian
buffers, installation of streambank and
shoreline protection, channel bed
stabilization, and clearing and snagging
woody debris from streams. During
construction, these restoration activities
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may result in short-term impacts to
water quality but are expected to benefit
the green floater in the long term.
The subunits of Unit 2 overlap with
numerous public lands for which
existing protections and management
will likely maintain habitat conditions
that support the green floater (water
quality, water quantity/flow, instream
substrate, and connectivity) into the
future. In Pennsylvania, these public
lands include State-owned forests and
natural areas (e.g., Tioga and Tiadaghton
State Forests, Pine Gorge State Natural
Area, Algerine Wild Area) and State
Parks (e.g., Colton Point and L. Harrison
State Parks). In New York, public lands
include the Chenango Valley State Park
and a series of easements associated
with the Federal Wetlands Reserve
Program. Each of these land types
ensure some protection from
development and land-disturbing
activities. Activities on Wetlands
Reserve Program easements that would
affect vegetation or hydrology, or would
alter wildlife patterns, would first
require a compatible use permit, and
only activities consistent with the longterm protection and enhancement of the
easement area are authorized.
Subunit 2a is a total length of 345.8
km (214.9 mi) of the Susquehanna River
in Tioga County, New York, and
Columbia, Montour, and
Northumberland Counties,
Pennsylvania. This subunit includes the
river channel up to the ordinary high
water mark. The upper section of
subunit 2a flows from the entrance of
Owego Creek to Harvey’s Creek. The
lower section starts at Nescopeck Creek
and flows to the confluence of Fishing
Creek. The land adjacent to the
Susquehanna River in this subunit is
primarily private (97 percent), although
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some land along the river is owned by
the State of Pennsylvania (3 percent).
Subunit 2b consists of a 13.9-km (8.7mi) segment of Fivemile Creek in
Steuben County, New York. This
subunit includes the river channel up to
the ordinary high water mark. It starts
at the entrance of an unnamed tributary
and ends at the confluence of Fivemile
Creek and the Cohocton River. Riparian
lands that border the subunit are all
(100 percent) privately owned.
Subunit 2c consists of a 47.6-km
(29.6-mi) segment of the Cohocton River
in Steuben County, New York. This
subunit includes the river channel up to
the ordinary high water mark. It starts
at the confluence of Cotton Creek and
Tenmile Creek and ends at the
confluence of the Tioga River and
Middle Cohocton Creek. The land
adjacent to the Cohocton River in this
subunit is primarily private (86
percent), although some land along the
river is owned by the State of New York
(6 percent) and local governments (8
percent).
Subunit 2d consists of a 15.7-km (9.7mi) segment of the Canisteo and Tioga
Rivers in Steuben County, New York.
This subunit includes the river channel
up to the ordinary high water mark. It
starts at the confluence of Tuscarora
Creek at the Canisteo River and ends at
the confluence of the Tioga River and
Chemung River. The land adjacent to
the Canisteo and Tioga Rivers in this
subunit is primarily private (96
percent), although some land along the
river is owned by the State (4 percent).
Subunit 2e consists of a 73.0-km
(45.4-mi) segment of the Chemung River
in Steuben and Chemung Counties, New
York, and Bradford County,
Pennsylvania. This subunit includes the
river channel up to the ordinary high
water mark. It starts at the confluence of
the Tioga River with the Cohocton River
and ends at the confluence of the
Chemung River and the Susquehanna
River. The land adjacent to the Tioga
River in this subunit is primarily private
(85 percent), although some land along
the river is owned by the State (9
percent) and local governments (6
percent).
Subunit 2f consists of a 34.2-km (21.2mi) segment of Catatonk Creek in Tioga
County, New York, and Bradford
County, Pennsylvania. This subunit
includes the river channel up to the
ordinary high water mark. It starts at the
confluence of Miller Creek and
Michigan Creek and ends at the
confluence of Fishing Creek and West
Branch Owego Creek. Riparian lands
that border the subunit are all (100
percent) privately owned.
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Subunit 2g consists of a 4.5-km (2.8mi) segment of Tunkhannock Creek in
Bradford, Wyoming, Lackawanna, and
Luzerne Counties, Pennsylvania. This
subunit includes the river channel up to
the ordinary high water mark. It starts
at the entrance of Billings Mill Brook
and ends at the confluence of
Tunkhannock Creek and the
Susquehanna River. Riparian lands that
border the subunit are all (100 percent)
privately owned.
Subunit 2h consists of a 59.4-km
(36.9-mi) segment of the Tioughnioga
River in Broome and Cortland Counties,
New York. This subunit includes the
river channel up to the ordinary high
water mark. It starts at the confluence of
the East Branch Tioughnioga and West
Branch Tioughnioga Rivers and ends at
the confluence of the Tioughnioga River
and the Chenango River. The land
adjacent to the Tioughnioga River in
this subunit is primarily private (nearly
100 percent), although some land along
the river is owned by local governments
(less than 1 percent).
Subunit 2i consists of a 140.9-km
(87.6-mi) segment of the Chenango River
in Broome, Chenango, and Madison
Counties, New York. This subunit
includes the river channel up to the
ordinary high water mark. It starts in the
Sangerfield River downstream of
Ninemile Swamp and ends at the
confluence of the Chenango River and
the Susquehanna River. The land
adjacent to the Chenango River in this
subunit is primarily private (96
percent), although some land along the
river is owned by the State of New York
(4 percent).
Subunit 2j consists of a 93.7-km (58.2mi) segment of the Unadilla River in
Chenango, Herkimer, and Otsego
Counties, New York. This subunit
includes the river channel up to the
ordinary high water mark. It starts at the
entrance of North Winfield Creek and
ends at the confluence of the Unadilla
River and the Susquehanna River.
Riparian lands that border the subunit
are all (100 percent) privately owned.
Subunit 2k consists of a 99.3-km
(61.7-mi) segment of the Upper
Susquehanna River in Broome,
Chenango, Delaware, and Otsego
Counties, New York, and Susquehanna
County, Pennsylvania. This subunit
includes the river channel up to the
ordinary high water mark. It starts at the
entrance of Mill Creek and ends at the
entrance of Starrucca Creek. Riparian
lands that border the subunit are all
(100 percent) privately owned.
Subunit 2l consists of a 115.5-km
(71.8-mi) segment of Pine Creek in
Clinton, Lycoming, and Tioga Counties,
Pennsylvania. This subunit includes the
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river channel up to the ordinary high
water mark. It starts at the entrance of
Phoenix Run and ends at the confluence
of Pine Creek and the Susquehanna
River. The land adjacent to Pine Creek
in this subunit is owned by private
entities (66 percent) and the State of
Pennsylvania (34 percent).
Subunit 2m consists of a 4.4-km (2.7mi) segment of Marsh Creek in Tioga
County, New York. This subunit
includes the river channel up to the
ordinary high water mark. It starts at the
entrance of Asaph Run and ends at the
confluence of Marsh Creek and Pine
Creek. The land adjacent to Marsh Creek
in this subunit is owned by private
entities (62 percent) and the State of
Pennsylvania (38 percent).
Subunit 2n consists of a 45.8-km
(28.5-mi) segment of the West Branch
Susquehanna River in Lycoming,
Northumberland, and Union Counties,
Pennsylvania. This subunit includes the
river channel up to the ordinary high
water mark. It starts at the entrance of
Muncy Creek and ends at the
confluence of the West Branch
Susquehanna River and the
Susquehanna River. Riparian lands that
border the subunit are all (100 percent)
privately owned.
Subunit 2o consists of a 13.2-km (8.2mi) segment of Buffalo Creek in Union
County, Pennsylvania. This subunit
includes the river channel up to the
ordinary high water mark. It starts at the
intersection of Johnson Mill Road and
Buffalo Creek and ends at the
confluence of Buffalo Creek and the
West Branch Susquehanna River. The
last segment of Buffalo Creek is also
known as Mill Race. The land adjacent
to Buffalo Creek in this subunit is
owned by local governments (56
percent), nongovernmental
organizations (5 percent), and private
entities (39 percent).
Subunit 2p consists of a 35.5-km
(22.1-mi) segment of Penns Creek in
Dauphin, Northumberland, Perry,
Snyder, and Union Counties,
Pennsylvania. This subunit includes the
river channel up to the ordinary high
water mark. It starts at the entrance of
an unnamed tributary near the
intersection of Penns Creek Road and
Wildwood Road and ends at the
confluence of Penns Creek and the
Susquehanna River. The land adjacent
to Penns Creek in this subunit is
primarily private (99 percent), although
some land along the creek is owned by
local governments (1 percent).
Unit 3: Potomac Watershed
Unit 3 consists of six subunits of the
Potomac watershed in Pennsylvania
(Bedford and Fulton Counties),
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Maryland (Allegany and Washington
Counties), and West Virginia (Berkeley,
Hampshire, Hardy, Mineral, and Morgan
Counties). Each of the subunits in this
unit contain one or more of the physical
or biological features essential to the
species’ conservation.
Special management considerations
or protection may be required within
Unit 3 to address excess nutrients,
sediment, and pollutants that enter the
river, as well as maintenance and
construction projects. Sources of these
types of pollution are wastewater,
agricultural runoff, and urban
stormwater runoff that come from
Cumberland, Maryland; Martinsburg,
West Virginia; and numerous small
towns adjacent to rivers and streams
that influence the water quality and
quantity in the unit. The Potomac River
is adjacent to the Chesapeake and Ohio
(C&O) Canal National Historical Park, a
federally owned property managed by
the National Park Service. In support of
a recent project to stabilize a retaining
wall within the banks of the Potomac
River, National Park Service staff
surveyed for freshwater mussels and
observed 10 green floaters. Anticipated
maintenance projects in the National
Historical Park include dredging of
sediment and repairs of utility lines,
walls, and boat ramps along the C&O
Canal. Future construction projects
throughout the watershed to repair or
remove hazard dams and canals, dredge
sections of the river, install pipelines,
and replace bridges have the potential to
impact water quality and quantity in
this unit as well.
The subunits of Unit 3 overlap with
public lands for which protections and
management will likely enable habitat
conditions that support the green floater
to remain high into the future. In
Maryland, overlapping public lands
include State-owned forests and parks
(e.g., Green Ridge State Forest and Fort
Frederick State Park) and the C&O Canal
National Historical Park. Beginning in
Pennsylvania and continuing into
Maryland, the forests and streams of
Sideling Hill Creek are maintained as a
nature preserve by The Nature
Conservancy. These land types ensure
some protection from development and
land-disturbing activities.
Subunit 3a consists of an 80.3-km
(49.9-mi) segment of the Potomac River
in Washington County, Maryland, and
Berkeley County, West Virginia. This
subunit includes the river channel up to
the ordinary high water mark. It starts
at the entrance of the Cacapon River and
ends at the entrance of Downey Branch.
The land adjacent to the Potomac River
in this subunit is owned by the Federal
(62 percent) and State (4 percent)
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governments and private entities (34
percent).
Subunit 3b consists of a 22.3-km
(13.9-mi) segment of Patterson Creek in
Mineral County, West Virginia. This
subunit includes the river channel up to
the ordinary high water mark. It starts
at the entrance of Cabin Run and ends
at the confluence of Patterson Creek and
the Potomac River. Riparian lands that
border the subunit are all (100 percent)
privately owned.
Subunit 3c consists of a 51.3-km
(31.9-mi) segment of Sideling Hill Creek
in Allegany County, Maryland, and
Bedford and Fulton Counties,
Pennsylvania. This subunit includes the
river channel up to the ordinary high
water mark. It starts at the Rice Road
crossing of West Branch Sideling Hill
Creek and ends at the confluence of
Sideling Hill Creek and the Potomac
River. The land adjacent to Sideling Hill
Creek in this subunit is owned by State
governments (32 percent),
nongovernmental organizations (7
percent), and private entities (61
percent).
Subunit 3d consists of a 123.0-km
(76.5-mi) segment of the Cacapon River
in Washington County, Maryland; and
Hardy, Hampshire, and Morgan
Counties, West Virginia. This subunit
includes the river channel up to the
ordinary high water mark. It starts at the
entrance of Trout Run and ends at the
confluence of the Cacapon River and the
Potomac River. Riparian lands that
border the subunit are all (100 percent)
privately owned.
Subunit 3e consists of a 6.7-km (4.1mi) segment of Licking Creek in
Washington County, Maryland. This
subunit includes the river channel up to
the ordinary high water mark. It starts
at the crossing of Pecktonville Road and
ends at the confluence of Licking Creek
and the Potomac River. Riparian lands
that border the subunit are all (100
percent) privately owned.
Subunit 3f consists of a 46.8-km (29.1mi) segment of Back Creek in Berkeley
County, West Virginia. This subunit
includes the river channel up to the
ordinary high water mark. It starts at the
entrance of Big Run and ends at the
confluence of Back Creek and the
Potomac River. Riparian lands that
border the subunit are all (100 percent)
privately owned.
Unit 4: Kanawha Watershed
Unit 4 consists of six subunits of the
Kanawha watershed in North Carolina
(Allegany, Ashe, and Watauga
Counties), Virginia (Carroll and Grayson
Counties), and West Virginia
(Greenbrier, Monroe, Pocahontas, and
Summers Counties). Each of the
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subunits in this unit contain one or
more of the physical or biological
features essential to the species’
conservation.
Special management considerations
or protection may be required within
Unit 4 to address excess nutrients,
sediment, and pollutants that enter the
river, as well as land-disturbing
activities. Sources of these types of
pollution are wastewater, agricultural
runoff, and urban stormwater runoff
from the nearby towns of Boone, North
Carolina; Lewisburg, West Virginia; and
numerous small towns in the watershed
that influence the water quality and
quantity in the unit. Parts of the
Kanawha waterhead are encompassed
by the Monongahela National Forest, a
federally owned property managed by
the U.S. Forest Service. Anticipated
projects within the National Forest that
could impact water quality and quantity
in this unit include vegetation
management and removal, and
maintenance of locks and dams.
In addition to the Monongahela
National Forest, the subunits of Unit 4
overlap with numerous other public
lands for which protections and
management will help maintain habitat
conditions that support the green
floater. In West Virginia, overlapping
public lands include State-owned
forests (e.g., Calvin Price and Seneca
State Forests), parks (e.g., Cass Scenic
Railroad and Watoga State Parks), and
wildlife management areas (e.g., Rimel,
Little River, and Neola Wildlife
Management Areas). In Virginia,
overlapping public lands include the
New River Trail State Park. Each of
these land types ensures some
protection from development and landdisturbing activities.
Subunit 4a consists of a 259.7-km
(161.4-mi) segment of the Greenbrier
River in Greenbrier, Monroe,
Pocahontas, and Summers Counties,
West Virginia. This subunit includes the
river channel up to the ordinary high
water mark. It starts at the entrance of
Cove Run and ends at the confluence of
the Greenbrier River and the New River.
The land adjacent to the Greenbrier
River in this subunit is owned by the
Federal (30 percent) and State (69
percent) governments and private
entities (1 percent).
Subunit 4b consists of a 17.4-km
(10.8-mi) segment of Deer Creek in
Pocahontas County, West Virginia. This
subunit includes the river channel up to
the ordinary high water mark. It starts
at the entrance of Hospital Run and
ends at the confluence of Deer Creek
and the Greenbrier River. The land
adjacent to Deer Creek in this subunit is
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owned by the Federal (34 percent) and
State (66 percent) governments.
Subunit 4c consists of a 32.2-km (20mi) segment of Knapp Creek in
Pocahontas County, West Virginia. This
subunit includes the river channel up to
the ordinary high water mark. It starts
at the confluence of Moore Run and
Knapp Creek and ends at the confluence
of Knapp Creek and the Greenbrier
River. The land adjacent to Knapp Creek
in this subunit is owned by the Federal
(31 percent), State (62 percent), and
local (1 percent) governments and
private entities (6 percent).
Subunit 4d consists of a 15.5-km (9.7mi) segment of the New River in Carroll
and Grayson Counties, Virginia. This
subunit includes the river channel up to
the ordinary high water mark. It starts
at Sarasota Lane and ends at the
confluence of Chestnut Creek and the
New River. The land adjacent to the
New River in this subunit is owned by
the State of Virginia (42 percent) and
private entities (58 percent).
Subunit 4e consists of a 17.9-km
(11.1-mi) segment of the Little River in
the Kanawha watershed in Alleghany
County, North Carolina, and Grayson
County, Virginia. This subunit includes
the river channel up to the ordinary
high water mark. It starts at the entrance
of Brush Creek and ends at the
confluence of the Little River and the
New River. Riparian lands that border
the subunit are all (100 percent)
privately owned.
Subunit 4f consists of a 145.7-km
(90.5-mi) segment of the South Fork
New River in Alleghany, Ashe, and
Watauga Counties, North Carolina. This
subunit includes the river channel up to
the ordinary high water mark. It starts
at the confluence of the East Fork South
Fork New River, Middle Fork South
Fork New River, and Winkler Creek and
ends at the confluence of the South Fork
New River and North Fork New River.
Riparian lands that border the subunit
are all (100 percent) privately owned.
Unit 5: Lower Chesapeake Watershed
Unit 5 consists of two subunits of the
Lower Chesapeake watershed in
Virginia (Amherst, Buckingham, and
Nelson Counties). Each of the subunits
in this unit contain one or more of the
physical or biological features essential
to the species’ conservation.
Special management considerations
or protection may be required within
Unit 5 to address excess nutrients,
sediment, and pollutants that enter the
river. Sources of these types of pollution
are wastewater, agricultural runoff, and
urban stormwater runoff that come from
Lynchburg, Virginia, and numerous
small towns adjacent to rivers and
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streams that have the potential to
influence the water quality and quantity
in the unit.
Unit 5 overlaps with public lands for
which protections and management will
help to maintain habitat conditions that
support the green floater. The George
Washington and Jefferson National
Forest, a federally owned property
managed by the U.S. Forest Service,
overlaps with Subunit 5a.
Subunit 5a consists of a 54.1-km
(33.6-mi) segment of the Tye River in
Amherst, Buckingham, and Nelson
Counties, Virginia. This subunit
includes the river channel up to the
ordinary high water mark. It starts at the
confluence of Coxs Creek and Campbell
Creek and ends at the confluence of the
Tye River and the James River. The land
adjacent to the Tye River in this subunit
is primarily private (99 percent),
although some land along the river is
owned by the Federal government (1
percent).
Subunit 5b consists of a 8.6-km (5.4mi) segment of the Pedlar River in
Amherst County, Virginia. This subunit
includes the river channel up to the
ordinary high water mark. It starts at the
entrance of Horsley Creek and ends at
the confluence of the Pedlar River and
James River. Riparian lands that border
the subunit are all (100 percent)
privately owned.
Unit 6: Chowan-Roanoke Watershed
Unit 6 consists of five subunits in the
Chowan-Roanoke watershed of North
Carolina (Caswell, Rockingham, and
Stokes Counties) and Virginia
(Brunswick, Greensville, Halifax, Henry,
Patrick, Pittsylvania, and Southampton
Counties). Each of the subunits in this
unit contain one or more of the physical
or biological features essential to the
species’ conservation.
Special management considerations
or protection may be required within
Unit 6 to address excess nutrients,
sediment, and pollutants that enter the
river, as well as land-disturbing
activities. Sources of these types of
pollution are wastewater, agricultural
runoff, and urban stormwater runoff
from the nearby towns Eden, North
Carolina; Danville, Virginia; and
numerous small towns adjacent to rivers
and streams that have the potential to
influence the water quality and quantity
in the unit. Land-disturbing activities to
maintain locks and dams have the
potential to impact water quality and
quantity in this unit as well.
The subunits of Unit 6 overlap with
public lands for which protections and
management will likely enable habitat
conditions that support the green floater
to remain high into the future. State
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Parks along the Mayo River exist in both
Virginia and North Carolina. In North
Carolina, overlapping public lands
include the Hanging Rock State Park.
This designation as a State Park ensures
some protection from development and
land-disturbing activities.
Subunit 6a consists of a 221.3-km
(137.5-mi) segment of the Dan River in
Caswell, Rockingham, and Stokes
Counties, North Carolina, and Halifax,
Henry, Patrick, and Pittsylvania
Counties, Virginia. This subunit
includes the river channel up to the
ordinary high water mark. It starts at the
entrance of Squall Creek and ends at the
entrance of County Line Creek. The land
adjacent to the Dan River in this subunit
is primarily private (98 percent),
although some land along the river is
owned by nongovernmental
organizations (1 percent) and State and
local governments (1 percent).
Subunit 6b consists of a 4.6-km (2.9mi) segment of the South Mayo River in
Henry County, Virginia, and
Rockingham County, North Carolina.
This subunit includes the river channel
up to the ordinary high water mark. It
starts at the entrance of Crooked Creek
and ends at the confluence of the South
Mayo River and the Mayo River. The
land adjacent to the South Mayo River
in this subunit is owned by State
governments (39 percent) and private
entities (61 percent).
Subunit 6c consists of a 5.9-km (3.7mi) segment of the North Mayo River in
Henry County, Virginia, and
Rockingham County, North Carolina.
This subunit includes the river channel
up to the ordinary high water mark. It
starts at the entrance of Jumping Branch
and ends at the confluence of the North
Mayo River and the Mayo River. The
land adjacent to the North Mayo River
in this subunit is owned by State
governments (42 percent) and private
entities (58 percent).
Subunit 6d consists of a 25.1-km
(15.6-mi) segment of the Mayo River in
Rockingham County, North Carolina.
This subunit includes the river channel
up to the ordinary high water mark. It
starts at the confluence of the North
Mayo and South Mayo Rivers and ends
at the confluence of the Mayo River and
the Dan River. The land adjacent to the
Mayo River in this subunit is owned by
the State of North Carolina (63 percent)
and private entities (37 percent).
Subunit 6e consists of a 106.1-km
(65.9-mi) segment of the Meherrin River
in Brunswick, Greensville, and
Southampton Counties, Virginia. This
subunit includes the river channel up to
the ordinary high water mark. It starts
at the entrance of Shining Creek and
ends at the entrance of Fountains Creek.
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are all (100 percent) privately owned.
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Unit 7: Neuse-Pamlico Watershed
Unit 7 consists of four subunits of the
Neuse-Pamlico watershed in North
Carolina (Durham, Johnston, Orange,
Person, and Wake Counties). Each of the
subunits in this unit contain one or
more of the physical or biological
features essential to the species’
conservation.
Special management considerations
or protection may be required within
Unit 7 to address excess nutrients,
sediment, and pollutants that enter the
river, as well as urban development.
Several major urban areas are
encompassed by Unit 7, including the
Raleigh-Durham metro area, in addition
to numerous small towns adjacent to
rivers and streams that have the
potential to influence the water quality
and quantity in the unit. Growth and
development in the Raleigh-Durham
area are expected to continue and
special management protections may be
required to address potential decreases
of forest cover and increases of
impervious surfaces.
The subunits of Unit 7 overlap with
numerous public lands for which
protections and management will likely
help maintain habitat conditions that
support the green floater. Overlapping
public lands include State-owned
properties such as the Falls Lake
Recreation Area, Occoneechee
Mountain and Mitchell Mill Natural
Areas, Eno River State Park, and Eno
River Diabase Sill Plant Conservation
Preserve. Numerous county-owned
properties (e.g., Neuse River Greenway,
Lake Michie Recreation Area, Durham
County Parks, and Wake County Parks)
overlap in Unit 7 as well. The Falls Lake
Natural Area is part of a larger reservoir
that is owned and managed by a
network of partners, including the State
and local governments and the U.S.
Army Corps of Engineers. Each of these
land types ensure some protection from
development and land-disturbing
activities.
Subunit 7a consists of a 26.8-km
(16.6-mi) segment of the Neuse River in
Johnston and Wake Counties, North
Carolina. This subunit includes the river
channel up to the ordinary high water
mark. It starts at the entrance of Crabtree
Creek and ends near Prestwick Drive.
The land adjacent to the Neuse River in
this subunit is owned by local
governments (50 percent), the State of
North Carolina (10 percent),
nongovernmental organizations (10
percent), and private entities (30
percent).
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Subunit 7b consists of a 54.4-km
(33.8-mi) segment of the Eno River in
Durham and Orange Counties, North
Carolina. This subunit includes the river
channel up to the ordinary high water
mark. It starts at the entrance of
McGowan Creek and ends at Falls Lake.
The land adjacent to the Eno River in
this subunit is owned by Federal (3
percent), State (40 percent), and local
(18 percent) governments,
nongovernmental organizations (1
percent), and private entities (38
percent).
Subunit 7c consists of a 30.9-km
(19.2-mi) segment of the Flat River in
Durham and Person Counties, North
Carolina. This subunit includes the river
channel up to the ordinary high water
mark. It starts at the confluence of the
North Flat River and South Flat River
and ends at Falls Lake. The land
adjacent to the Flat River in this subunit
is owned by Federal (8 percent), State
(18 percent), and local (31 percent)
governments, and private entities (43
percent).
Subunit 7d consists of an 8.6-km (5.4mi) segment of the Little River in the
Neuse-Pamlico watershed in Wake
County, North Carolina. This subunit
includes the river channel up to the
ordinary high water mark. It starts at the
confluence with Perry Creek and ends at
the entrance of Big Branch. The land
adjacent to the Little River in this
subunit is owned by State (17 percent)
and local (69 percent) governments,
nongovernmental organizations (3
percent), and private entities (11
percent).
Unit 8: Upper Tennessee Watershed
Unit 8 consists of 16.0-km (9.9-mi) of
the Watauga River in the Upper
Tennessee Watershed in Watauga
County, North Carolina, from the
entrance of Baird Creek to the entrance
of Beech Creek. It includes the river
channel up to the ordinary high water
mark. Riparian lands that border the
unit are all (100 percent) privately
owned. This unit contains one or more
of the physical or biological features
essential to the species’ conservation.
Special management considerations
or protection may be required within
Unit 8 to address excess nutrients,
sediment, and pollutants that enter the
river. Sources of these types of pollution
are wastewater, agricultural runoff, and
urban stormwater runoff from numerous
small towns and farms adjacent to rivers
and streams.
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Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires
Federal agencies, including the Service,
to ensure that any action they authorize,
fund, or carry out is not likely to
jeopardize the continued existence of
any endangered species or threatened
species or result in the destruction or
adverse modification of designated
critical habitat of such species. In
addition, section 7(a)(4) of the Act
requires Federal agencies to confer with
the Service on any agency action which
is likely to jeopardize the continued
existence of any species proposed to be
listed under the Act or result in the
destruction or adverse modification of
proposed critical habitat.
We published a final rule revising the
definition of destruction or adverse
modification on August 27, 2019 (84 FR
44976). Destruction or adverse
modification means a direct or indirect
alteration that appreciably diminishes
the value of critical habitat as a whole
for the conservation of a listed species.
Compliance with the requirements of
section 7(a)(2) is documented through
our issuance of:
(1) A concurrence letter for Federal
actions that may affect, but are not
likely to adversely affect, listed species
or critical habitat; or
(2) A biological opinion for Federal
actions that may affect, and are likely to
adversely affect, listed species or critical
habitat.
When we issue a biological opinion
concluding that a project is likely to
jeopardize the continued existence of a
listed species and/or destroy or
adversely modify critical habitat, we
provide reasonable and prudent
alternatives to the project, if any are
identifiable, that would avoid the
likelihood of jeopardy and/or
destruction or adverse modification of
critical habitat. We define ‘‘reasonable
and prudent alternatives’’ (at 50 CFR
402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner
consistent with the intended purpose of
the action,
(2) Can be implemented consistent
with the scope of the Federal agency’s
legal authority and jurisdiction,
(3) Are economically and
technologically feasible, and
(4) Would, in the Service Director’s
opinion, avoid the likelihood of
jeopardizing the continued existence of
the listed species and/or avoid the
likelihood of destroying or adversely
modifying critical habitat.
Reasonable and prudent alternatives
can vary from slight project
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modifications to extensive redesign or
relocation of the project. Costs
associated with implementing a
reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth
requirements for Federal agencies to
reinitiate consultation if any of the
following four conditions occur: (1) the
amount or extent of taking specified in
the incidental take statement is
exceeded; (2) new information reveals
effects of the action that may affect
listed species or critical habitat in a
manner or to an extent not previously
considered; (3) the identified action is
subsequently modified in a manner that
causes an effect to the listed species or
critical habitat that was not considered
in the biological opinion or written
concurrence; or (4) a new species is
listed or critical habitat designated that
may be affected by the identified action.
The reinitiation requirement applies
only to actions that remain subject to
some discretionary Federal involvement
or control. As provided in 50 CFR
402.16, the requirement to reinitiate
consultations for new species listings or
critical habitat designation does not
apply to certain agency actions (e.g.,
land management plans issued by the
Bureau of Land Management in certain
circumstances.
Application of the ‘‘Destruction or
Adverse Modification’’ Standard
The key factor related to the
destruction or adverse modification
determination is whether
implementation of the proposed Federal
action directly or indirectly alters the
designated critical habitat in a way that
appreciably diminishes the value of the
critical habitat for the conservation of
the listed species. As discussed above,
the role of critical habitat is to support
physical or biological features essential
to the conservation of a listed species
and provide for the conservation of the
species.
Section 4(b)(8) of the Act requires us
to briefly evaluate and describe, in any
proposed or final regulation that
designates critical habitat, activities
involving a Federal action that may
violate section 7(a)(2) of the Act by
destroying or adversely modifying such
habitat, or that may be affected by such
designation.
Activities that we may, during a
consultation under section 7(a)(2) of the
Act, consider likely to destroy or
adversely modify critical habitat
include, but are not limited to:
(1) Actions that would alter the
minimum flow or the existing flow
regime. Such activities could include,
but are not limited to, impoundment,
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channelization, water diversion, water
withdrawal, and hydropower
generation. These activities could
eliminate or reduce the habitat
necessary for the growth and
reproduction of the green floater and its
fish hosts by decreasing or altering
flows to levels that would adversely
affect their ability to complete their life
cycles.
(2) Actions that would significantly
alter water chemistry or temperature.
Such activities could include, but are
not limited to, release of chemicals
(including pesticides, pharmaceuticals,
metals, and salts), biological pollutants,
or heated effluents into the surface
water or connected groundwater at a
point source or by dispersed release
(non-point source). These activities
could alter water conditions to levels
that are beyond the tolerances of the
mussel or its host fish and result in
direct or cumulative adverse effects to
these individuals and their life cycles.
(3) Actions that would significantly
increase sediment deposition within the
stream channel. Such activities could
include, but are not limited to, excessive
sedimentation from livestock grazing,
road and other construction projects, oil
and gas exploration and extraction,
channel alteration, timber harvest, offroad vehicle use, and other watershed
and floodplain disturbances. When
appropriate best management practices
are not followed, these activities could
eliminate or reduce the habitat
necessary for the growth and
reproduction of the green floater and its
host fish by increasing the sediment
deposition to levels that would
adversely affect their ability to complete
their life cycles.
(4) Actions that would significantly
increase the algal community within the
stream channel. Such activities could
include, but are not limited to, release
of nutrients into the surface water or
connected groundwater at a point
source or by dispersed release (nonpoint source). These activities can result
in excessive algal growth, which
degrades or reduces habitat for the green
floater and its fish hosts, by generating
nutrients during their decay and
decreasing dissolved oxygen levels to
levels below the tolerances of the
mussel and/or its fish hosts. Algae can
also directly compete with mussel
offspring by covering the sediment,
thereby preventing the glochidia from
settling into the sediment.
(5) Actions that would significantly
alter channel morphology or geometry.
Such activities could include, but are
not limited to, channelization,
impoundment, road and bridge
construction, pipeline and utility
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maintenance, oil and gas extraction,
mining, dredging, and destruction of
riparian vegetation. These activities may
lead to changes in water flows and
levels that would degrade or eliminate
the mussel or its fish hosts and/or their
habitats. These actions can also lead to
increased sedimentation and
degradation in water quality to levels
that are beyond the tolerances of the
green floater or its fish hosts.
(6) Actions that result in the
introduction, spread, or augmentation of
nonnative aquatic species in occupied
stream segments, or in stream segments
that are hydrologically connected to
occupied stream segments, even if those
segments are occasionally intermittent,
or introduction of other species that
compete with or prey on the green
floater. Possible actions could include,
but are not limited to, stocking of
nonnative fishes, stocking of sport fish,
or other related actions. These activities
can introduce parasites or disease for
host fish, and could result in direct
predation, or affect the growth,
reproduction, and survival, of green
floaters.
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
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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 the National Marine Fisheries
Service (NMFS). We also refer to a 2008
Department of the Interior Solicitor’s
opinion entitled, ‘‘The Secretary’s
Authority to Exclude Areas from a
Critical Habitat Designation under
Section 4(b)(2) of the Endangered
Species Act’’ (M–37016).
In considering whether to exclude a
particular area from the designation, we
identify the benefits of including the
area in the designation, identify the
benefits of excluding the area from the
designation, and evaluate whether the
benefits of exclusion outweigh the
benefits of inclusion. If the analysis
indicates that the benefits of exclusion
outweigh the benefits of inclusion, the
Secretary may exercise discretion to
exclude the area only if such exclusion
would not result in the extinction of the
species. In making the determination to
exclude a particular area, the statute on
its face, as well as the legislative history,
are clear that the Secretary has broad
discretion regarding which factor(s) to
use and how much weight to give to any
factor. In our final rules, we explain any
decision to exclude areas, as well as
decisions not to exclude, to make clear
the rational basis for our decision. We
describe below the process that we use
for taking into consideration each
category of impacts and any initial
analyses of the relevant impacts.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its
implementing regulations require that
we consider the economic impact that
may result from a designation of critical
habitat. To assess the probable
economic impacts of a designation, we
must first evaluate specific land uses or
activities and projects that may occur in
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
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imposed on landowners, managers, or
other resource users potentially affected
by the designation of critical habitat
(e.g., under the Federal listing as well as
other Federal, State, and local
regulations). Therefore, the baseline
represents the costs of all efforts
attributable to the listing of the species
under the Act (i.e., conservation of the
species and its habitat incurred
regardless of whether critical habitat is
designated). The ‘‘with critical habitat’’
scenario describes the incremental
impacts associated specifically with the
designation of critical habitat for the
species. The incremental conservation
efforts and associated impacts would
not be expected without the designation
of critical habitat for the species. In
other words, the incremental costs are
those attributable solely to the
designation of critical habitat, above and
beyond the baseline costs. These are the
costs we use when evaluating the
benefits of inclusion and exclusion of
particular areas from the final
designation of critical habitat should we
choose to conduct a discretionary
4(b)(2) exclusion analysis.
Executive Orders (E.O.s) 12866 and
13563 direct Federal agencies to assess
the costs and benefits of available
regulatory alternatives in quantitative
(to the extent feasible) and qualitative
terms. Consistent with the E.O.
regulatory analysis requirements, our
effects analysis under the Act may take
into consideration impacts to both
directly and indirectly affected entities,
where practicable and reasonable. If
sufficient data are available, we assess
to the extent practicable the probable
impacts to both directly and indirectly
affected entities. Section 3(f) of E.O.
12866 identifies four criteria for when a
regulation is considered a ‘‘significant
regulatory action,’’ and if any one of
these criteria are met, the regulation
requires additional analysis, review, and
approval. 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.
Therefore, our consideration of
economic impacts uses a screening
analysis to assess whether a designation
of critical habitat for the green floater is
likely to have an annual effect on the
economy of $200 million or more.
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
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green floater (IEc 2022, entire). We
began by conducting a screening
analysis of the proposed designation of
critical habitat in order to focus our
analysis on the key factors that are
likely to result in incremental economic
impacts. The purpose of the screening
analysis is to filter out particular
geographic areas of critical habitat that
are already subject to such protections
and are, therefore, unlikely to incur
incremental economic impacts. In
particular, the screening analysis
considers baseline costs (i.e., absent
critical habitat designation) and
includes any probable incremental
economic impacts where land and water
use may already be subject to
conservation plans, land management
plans, best management practices, or
regulations that protect the habitat area
as a result of the Federal listing status
of the species. Ultimately, the screening
analysis allows us to focus our analysis
on evaluating the specific areas or
sectors that may incur probable
incremental economic impacts as a
result of the designation. The presence
of the listed species in occupied areas
of critical habitat means that any
destruction or adverse modification of
those areas is also likely to jeopardize
the continued existence of the species.
Therefore, designating occupied areas as
critical habitat typically causes little if
any incremental impacts above and
beyond the impacts of listing the
species. As a result, we generally focus
the screening analysis on areas of
unoccupied critical habitat (unoccupied
units or unoccupied areas within
occupied units). Overall, the screening
analysis assesses whether designation of
critical habitat is likely to result in any
additional management or conservation
efforts that may incur incremental
economic impacts. This screening
analysis combined with the information
contained in our IEM constitute what
we consider to be our draft economic
analysis (DEA) of the proposed critical
habitat designation for the green floater;
our DEA is summarized in the narrative
below.
As part of our screening analysis, we
considered the types of economic
activities that are likely to occur within
the areas likely affected by the critical
habitat designation. In our evaluation of
the probable incremental economic
impacts that may result from the
proposed designation of critical habitat
for the green floater, first we identified,
in the IEM dated June 7, 2022, probable
incremental economic impacts
associated with the following categories
of activities: (1) culvert and bridge
replacement; (2) pipeline maintenance;
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(3) bank stabilization; (4) stream
crossing; (5) watershed restoration; (6)
road construction and maintenance; (7)
pesticide use; (8) streambank and
shoreline protection; (9) channel bed
stabilization; and (10) riparian forest
buffer. 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 only
affects activities conducted, funded,
permitted, or authorized by Federal
agencies. If we list the species, in areas
where the green floater 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
green floater’s critical habitat. Because
the designation of critical habitat for
green floater 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 green floater
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
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incremental economic impacts of this
proposed designation of critical habitat.
The proposed critical habitat
designation for the green floater totals
approximately 2,553 km (1,586 mi) of
stream in eight units, all of which are
currently occupied by the species.
Ownership of riparian lands adjacent to
the proposed units includes 2,007 km
(1,247 mi; 79 percent) in private
ownership and 546 km (339 mi; 21
percent) in public (Federal, State, or
local government) ownership.
The total incremental costs of critical
habitat designation for the green floater
is anticipated to be less than $8.8
million per year. The costs are reflective
of the proposed critical habitat area, the
presence of the species (i.e., already
occupied) in these areas, and the
presence of other federally listed species
and designated critical habitats. Since
consultation is already required in some
of these areas as a result of the presence
of three other aquatic listed species (i.e.,
candy darter (Etheostoma osburni),
Carolina madtom (Noturus furiosus),
and Neuse River waterdog (Necturus
lewisi)) and their critical habitats and
would be required as a result of the
listing of the green floater, the economic
costs of the critical habitat designation
would likely be primarily limited to
additional administrative efforts to
consider adverse modification for the
green floater in section 7 consultations.
In total, 4,198 section 7 consultation
actions (approximately 58 formal
consultations, 3,100 informal
consultations, and 1,040 technical
assistance efforts) are anticipated to
occur annually in proposed critical
habitat areas. Critical habitat may also
trigger additional regulatory changes.
For example, the designation may cause
other Federal, State, or local permitting
or regulatory agencies to expand or
change standards or requirements.
Regulatory uncertainty generated by
critical habitat may also have impacts.
For example, landowners or buyers may
perceive that the rule would restrict
land or water use activities in some way
and therefore value the use of the land
less than they would have absent
critical habitat. This is a perception, or
stigma, effect of critical habitat on
markets.
We are soliciting data and comments
from the public on the DEA discussed
above, as well as on all aspects of this
proposed rule and our required
determinations. During the development
of a final designation, we will consider
the information presented in the DEA
and any additional information on
economic impacts we receive during the
public comment period to determine
whether any specific areas should be
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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, the Service
must still consider impacts on national
security, including homeland security,
on those lands or areas not covered by
section 4(a)(3)(B)(i) because section
4(b)(2) requires the Service to consider
those impacts whenever it designates
critical habitat. Accordingly, if DoD,
Department of Homeland Security
(DHS), or another Federal agency has
requested exclusion based on an
assertion of national-security or
homeland-security concerns, or we have
otherwise identified national-security or
homeland-security impacts from
designating particular areas as critical
habitat, we generally have reason to
consider excluding those areas.
However, we cannot automatically
exclude requested areas. When DoD,
DHS, or another Federal agency requests
exclusion from critical habitat on the
basis of national-security or homelandsecurity 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
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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 green floater are not owned or
managed by the DoD or DHS, and,
therefore, we anticipate no impact on
national security or homeland security.
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.
Consideration of Other Relevant
Impacts
Under section 4(b)(2) of the Act, we
consider any other relevant impacts, in
addition to economic impacts and
impacts on national security discussed
above. To identify other relevant
impacts that may affect the exclusion
analysis, we consider a number of
factors, including whether there are
permitted conservation plans covering
the species in the area—such as HCPs,
safe harbor agreements (SHAs), or
candidate conservation agreements with
assurances (CCAAs)—or whether there
are non-permitted conservation
agreements and partnerships that may
be impaired by designation of, or
exclusion from, critical habitat. In
addition, we look at whether Tribal
conservation plans or partnerships,
Tribal resources, or government-togovernment 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.
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:
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 green floater
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.
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Required Determinations
(1) Be logically organized;
(2) Use the active voice to address readers
directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and
sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these
requirements, send us comments by one
of the methods listed in ADDRESSES. To
better help us revise the rule, your
comments should be as specific as
possible. For example, you should tell
us the numbers of the sections or
paragraphs that are unclearly written,
which sections or sentences are too
long, the sections where you feel lists or
tables would be useful, etc.
Regulatory Planning and Review—
Executive Orders 12866, 13563, and
14094
Executive Order 14094 reaffirms the
principles of E.O. 12866 and E.O. 13563
and states that regulatory analysis
should facilitate agency efforts to
develop regulations that serve the
public interest, advance statutory
objectives, and are consistent with E.O.
12866, E.O. 13563, and the Presidential
Memorandum of January 20, 2021
(Modernizing Regulatory Review).
Regulatory analysis, as practicable and
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appropriate, shall recognize distributive
impacts and equity, to the extent
permitted by law. E.O. 13563
emphasizes further that regulations
must be based on the best available
science and that the rulemaking process
must allow for public participation and
an open exchange of ideas. We have
developed this final rule in a manner
consistent with these requirements.
E.O. 12866, as reaffirmed by E.O.
13563 and E.O. 14094, provides that the
Office of Information and Regulatory
Affairs (OIRA) in the Office of
Management and Budget (OMB) will
review all significant rules. OIRA has
determined that this rule is not
significant.
Regulatory Flexibility Act (5 U.S.C. 601
et seq.)
Under the Regulatory Flexibility Act
(RFA; 5 U.S.C. 601 et seq.), as amended
by the Small Business Regulatory
Enforcement Fairness Act of 1996
(SBREFA; 5 U.S.C. 801 et seq.),
whenever an agency is required to
publish a notice of rulemaking for any
proposed or final rule, it must prepare
and make available for public comment
a regulatory flexibility analysis that
describes the effects of the rule on small
entities (i.e., small businesses, small
organizations, and small government
jurisdictions). However, no regulatory
flexibility analysis is required if the
head of the agency certifies the rule will
not have a significant economic impact
on a substantial number of small
entities. The SBREFA amended the RFA
to require Federal agencies to provide a
certification statement of the factual
basis for certifying that the rule will not
have a significant economic impact on
a substantial number of small entities.
According to the Small Business
Administration, small entities include
small organizations such as
independent nonprofit organizations;
small governmental jurisdictions,
including school boards and city and
town governments that serve fewer than
50,000 residents; and small businesses
(13 CFR 121.201). Small businesses
include manufacturing and mining
concerns with fewer than 500
employees, wholesale trade entities
with fewer than 100 employees, retail
and service businesses with less than $5
million in annual sales, general and
heavy construction businesses with less
than $27.5 million in annual business,
special trade contractors doing less than
$11.5 million in annual business, and
agricultural businesses with annual
sales less than $750,000. To determine
whether potential economic impacts to
these small entities are significant, we
considered the types of activities that
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might trigger regulatory impacts under
this designation as well as types of
project modifications that may result. In
general, the term ‘‘significant economic
impact’’ is meant to apply to a typical
small business firm’s business
operations.
Under the RFA, as amended, and as
understood in light of recent court
decisions, Federal agencies are required
to evaluate the potential incremental
impacts of rulemaking on those entities
directly regulated by the rulemaking
itself; in other words, the RFA does not
require agencies to evaluate the
potential impacts to indirectly regulated
entities. The regulatory mechanism
through which critical habitat
protections are realized is section 7 of
the Act, which requires Federal
agencies, in consultation with the
Service, to ensure that any action
authorized, funded, or carried out by the
agency is not likely to destroy or
adversely modify critical habitat.
Therefore, under section 7, only Federal
action agencies are directly subject to
the specific regulatory requirement
(avoiding destruction and adverse
modification) imposed by critical
habitat designation. Consequently, it is
our position that only Federal action
agencies would be directly regulated if
we adopt the proposed critical habitat
designation. The RFA does not require
evaluation of the potential impacts to
entities not directly regulated.
Moreover, Federal agencies are not
small entities. Therefore, because no
small entities would be directly
regulated by this rulemaking, the
Service certifies that, if made final as
proposed, the proposed critical habitat
designation will not have a significant
economic impact on a substantial
number of small entities.
In summary, we have considered
whether the proposed designation
would result in a significant economic
impact on a substantial number of small
entities. For the above reasons and
based on currently available
information, we certify that, if made
final, the proposed critical habitat
designation would not have a significant
economic impact on a substantial
number of small business entities.
Therefore, an initial regulatory
flexibility analysis is not required.
Energy Supply, Distribution, or Use—
Executive Order 13211
Executive Order 13211 (Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use) requires agencies
to prepare statements of energy effects
when undertaking certain actions.
Facilities that provide energy supply,
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distribution, or use (e.g., dams,
pipelines) occur within some units of
the proposed critical habitat designation
and may potentially be affected. We
determined that consultations, technical
assistance, and requests for species lists
may be necessary in some instances.
However, in our economic analysis, we
did not find that this proposed critical
habitat designation would significantly
affect energy supplies, distribution, or
use and will not have an annual effect
on the economy of $200 million or
more. Therefore, this action is not a
significant energy action, and no
statement of energy effects is required.
Unfunded Mandates Reform Act (2
U.S.C. 1501 et seq.)
In accordance with the Unfunded
Mandates Reform Act (2 U.S.C. 1501 et
seq.), we make the following finding:
(1) This proposed rule would not
produce a Federal mandate. In general,
a Federal mandate is a provision in
legislation, statute, or regulation that
would impose an enforceable duty upon
State, local, or Tribal governments, or
the private sector, and includes both
‘‘Federal intergovernmental mandates’’
and ‘‘Federal private sector mandates.’’
These terms are defined in 2 U.S.C.
658(5)–(7). ‘‘Federal intergovernmental
mandate’’ includes a regulation that
‘‘would impose an enforceable duty
upon State, local, or Tribal
governments’’ with two exceptions. It
excludes ‘‘a condition of Federal
assistance.’’ It also excludes ‘‘a duty
arising from participation in a voluntary
Federal program,’’ unless the regulation
‘‘relates to a then-existing Federal
program under which $500,000,000 or
more is provided annually to State,
local, and Tribal governments under
entitlement authority,’’ if the provision
would ‘‘increase the stringency of
conditions of assistance’’ or ‘‘place caps
upon, or otherwise decrease, the Federal
Government’s responsibility to provide
funding,’’ and the State, local, or Tribal
governments ‘‘lack authority’’ to adjust
accordingly. At the time of enactment,
these entitlement programs were:
Medicaid; Aid to Families with
Dependent Children work programs;
Child Nutrition; Food Stamps; Social
Services Block Grants; Vocational
Rehabilitation State Grants; Foster Care,
Adoption Assistance, and Independent
Living; Family Support Welfare
Services; and Child Support
Enforcement. ‘‘Federal private sector
mandate’’ includes a regulation that
‘‘would impose an enforceable duty
upon the private sector, except (i) a
condition of Federal assistance or (ii) a
duty arising from participation in a
voluntary Federal program.’’
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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 do not
destroy or adversely modify critical
habitat under section 7. While nonFederal entities that receive Federal
funding, assistance, or permits, or that
otherwise require approval or
authorization from a Federal agency for
an action, may be indirectly impacted
by the designation of critical habitat, the
legally binding duty to avoid
destruction or adverse modification of
critical habitat rests squarely on the
Federal agency. Furthermore, to the
extent that non-Federal entities are
indirectly impacted because they
receive Federal assistance or participate
in a voluntary Federal aid program, the
Unfunded Mandates Reform Act would
not apply, nor would critical habitat
shift the costs of the large entitlement
programs listed above onto State
governments.
(2) We do not believe that this rule
would significantly or uniquely affect
small governments because it will not
produce a Federal mandate of $200
million or greater in any year, that is, it
is not a ‘‘significant regulatory action’’
under the Unfunded Mandates Reform
Act. The designation of critical habitat
imposes no obligations on State or local
governments and, as such, a Small
Government Agency Plan is not
required. 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 green
floater in a takings implications
assessment. The Act does not authorize
the Service to regulate private actions
on private lands or confiscate private
property as a result of critical habitat
designation. Designation of critical
habitat does not affect land ownership,
or establish any closures, or restrictions
on use of or access to the designated
areas. Furthermore, the designation of
critical habitat does not affect
landowner actions that do not require
Federal funding or permits, nor does it
preclude development of habitat
conservation programs or issuance of
incidental take permits to permit actions
that do require Federal funding or
permits to go forward. However, Federal
agencies are prohibited from carrying
out, funding, or authorizing actions that
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would destroy or adversely modify
critical habitat. A takings implications
assessment has been completed for the
proposed designation of critical habitat
for green floater, 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.
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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.
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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.
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 and speciesspecific protective regulations
promulgated concurrently with a
decision to list or reclassify a species as
threatened. The courts have upheld this
position (e.g., Douglas County v.
Babbitt, 48 F.3d 1495 (9th Cir. 1995)
(critical habitat); Center for Biological
Diversity v. U.S. Fish and Wildlife
Service, 2005 WL 2000928 (N.D. Cal.
Aug. 19, 2005) (concurrent 4(d) rule)).
Government-to-Government
Relationship With Tribes
In accordance with the President’s
memorandum of April 29, 1994
(Government-to-Government Relations
with Native American Tribal
Governments; 59 FR 22951), E.O. 13175
(Consultation and Coordination with
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48327
Indian Tribal Governments), and the
Department of the Interior’s manual at
512 DM 2, we readily acknowledge our
responsibility to communicate
meaningfully with federally recognized
Tribes on a government-to-government
basis. In accordance with Secretaries’
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 green floater, so no Tribal
lands would be affected by the proposed
designation.
References Cited
A complete list of references cited in
this rulemaking is available on the
internet at https://www.regulations.gov
and upon request from the New York
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 New York
Ecological Services Field Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species,
Exports, Imports, Plants, Reporting and
recordkeeping requirements,
Transportation, Wildlife.
Proposed Regulation Promulgation
Accordingly, we propose to amend
part 17, subchapter B of chapter I, title
50 of the Code of Federal Regulations,
as set forth below:
PART 17—ENDANGERED AND
THREATENED WILDLIFE AND PLANTS
1. The authority citation for part 17
continues to read as follows:
■
Authority: 16 U.S.C. 1361–1407; 1531–
1544; and 4201–4245, unless otherwise
noted.
2. In § 17.11, in paragraph (h), amend
the List of Endangered and Threatened
Wildlife by adding an entry for ‘‘Floater,
green’’ in alphabetical order under
CLAMS to read as follows:
■
§ 17.11 Endangered and threatened
wildlife.
*
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(h) * * *
Common name
Scientific name
*
CLAMS
*
Floater, green .................
*
*
*
*
Lasmigona subviridis ....
*
*
3. Amend § 17.45 by adding a new
paragraph (h) to read as follows:
Special rules—snails and clams.
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*
*
*
*
*
(h) Green floater (Lasmigona
subviridis)—(1) Prohibitions. The
following prohibitions that apply to
endangered wildlife also apply to the
green floater. Except as provided under
paragraph (h)(2) of this section and
§§ 17.4 and 17.5, it is unlawful for any
person subject to the jurisdiction of the
United States to commit, to attempt to
commit, to solicit another to commit, or
cause to be committed, any of the
following acts in regard to this species:
(i) Import or export, as set forth at
§ 17.21(b) for endangered wildlife.
(ii) Take, as set forth at § 17.21(c)(1)
for endangered wildlife.
(iii) Possession and other acts with
unlawfully taken specimens, as set forth
at § 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in
the course of commercial activity, as set
forth at § 17.21(e) for endangered
wildlife.
(v) Sale or offer for sale, as set forth
at § 17.21(f) for endangered wildlife.
(2) Exceptions from prohibitions. In
regard to this species, you may:
(i) Conduct activities as authorized by
a permit under § 17.32.
(ii) Take, as set forth at § 17.21(c)(2)
through (4) for endangered wildlife.
(iii) Take, as set forth at § 17.31(b).
(iv) Possess and engage in other acts
with unlawfully taken wildlife, as set
forth at § 17.21(d)(2) for endangered
wildlife.
(v) Take incidental to an otherwise
lawful activity caused by:
(A) Stream bank restoration projects
that use bioengineering methods to
replace preexisting, bare, eroding stream
banks with vegetated, stable stream
banks, thereby reducing bank erosion
and instream sedimentation and
improving habitat conditions for the
species. Following these bioengineering
methods, stream banks must be
stabilized using native species
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Listing citations and
applicable rules
Status
*
*
*
Wherever found ............
*
■
§ 17.45
Where listed
*
*
T
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*
*
*
[Federal Register citation when published as a
final rule]; 50 CFR 17.45(h); 4d 50 CFR
17.95(f).CH
*
appropriate for the region (e.g., native
species live stakes (live, vegetative
cuttings inserted or tamped into the
ground in a manner that allows the
stake to take root and grow), native
species live fascines (live branch
cuttings, usually willows, bound
together into long, cigar-shaped
bundles), or native species brush
layering (cuttings or branches of easily
rooted tree species layered between
successive lifts of soil fill)). These
methods must not include the sole use
of quarried rock (riprap) or the use of
rock baskets (e.g., gabion baskets).
Stream bank restoration projects must
also satisfy all Federal, State, and local
permitting requirements.
(B) Bridge or culvert replacement/
removal projects that remove migration
barriers (e.g., collapsing, blocked, or
perched culverts) or generally allow for
improved connectivity and upstream
and downstream movements of green
floaters or their fish hosts while
maintaining normal stream flows,
preventing bed and bank erosion, and
improving habitat conditions for the
species (using aquatic organism passage
methods). Before starting stream
crossing activities, surveys to determine
presence of green floaters must be
performed by a qualified and permitted
biologist (defined as a biologist or
aquatic resources manager that has been
approved by the Service to locate,
identify, and handle green floaters as
allowed by Section 10(a)(1)(A) of the
Endangered Species Act). Before
conducting instream activities in places
where green floaters may occur, surveys
are required to determine if they are
present. Survey plans must be
submitted to and approved by the local
Service field office before conducting
surveys. If green floaters are found, the
biologist must coordinate with their
local Service field office regarding
salvage and relocation of individuals to
suitable habitat before project
implementation. Should green floaters
be relocated, monitoring must be
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*
*
*
conducted after project implementation.
Bridge or culvert replacement/removal
projects must also satisfy all Federal,
State, and local permitting
requirements.
■ 4. In § 17.95, amend paragraph (f) by
adding an entry for ‘‘Green Floater
(Lasmigona subviridis)’’ immediately
before the entry for ‘‘Carolina
Heelsplitter (Lasmigona decorata)’’, to
read as follows:
§ 17.95
Critical habitat—fish and wildlife.
*
*
*
*
*
(f) Clams and Snails.
*
*
*
*
*
Green Floater (Lasmigona subviridis)
(1) Critical habitat units are depicted
on the maps in this entry for Allegany
and Washington Counties, Maryland;
Broome, Chemung, Chenango, Cortland,
Delaware, Herkimer, Livingston,
Madison, Otsego, Steuben, and Tioga
Counties, New York; Allegany, Ashe,
Caswell, Durham, Johnston, Orange,
Person, Rockingham, Stokes, Wake, and
Watauga Counties, North Carolina;
Bedford, Bradford, Clinton, Columbia,
Dauphin, Fulton, Lackawanna, Luzerne,
Lycoming, Montour, Northumberland,
Perry, Snyder, Susquehanna, Tioga,
Union, and Wyoming Counties,
Pennsylvania; Amherst, Brunswick,
Buckingham, Carroll, Grayson,
Greensville, Halifax, Henry, Nelson,
Patrick, Pittsylvania, and Southampton
Counties, Virginia; and Berkeley,
Greenbrier, Hampshire, Hardy, Mineral,
Monroe, Morgan, Pocahontas, and
Summers Counties, West Virginia.
(2) Within these areas, the physical or
biological features essential to the
conservation of the green floater consist
of the following components:
(i) Flows adequate to maintain both
benthic habitats and stream
connectivity, allow glochidia and
juveniles to become established in their
habitats, allow the exchange of nutrients
and oxygen to mussels, and maintain
food availability and spawning habitat
for host fishes. The characteristics of
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such flows include a stable, not flashy,
flow regime, with slow to moderate
currents to provide refugia during
periods of higher flows.
(ii) Suitable sand and gravel
substrates and connected instream
habitats characterized by stable stream
channels and banks and by minimal
sedimentation and erosion.
(iii) Sufficient amount of food
resources, including microscopic
particulate matter (plankton, bacteria,
detritus, or dissolved organic matter).
(iv) Water and sediment quality
necessary to sustain natural
physiological processes for normal
behavior, growth, and viability of all life
stages, including, but not limited to,
those general to other mussel species:
(A) Adequate dissolved oxygen;
(B) Low salinity;
(C) Low temperature (generally below
86 °F (30 °C));
(D) Low ammonia (generally below
0.5 parts per million total ammonianitrogen), polycyclic aromatic
hydrocarbons (PAHs), polychlorinated
biphenyls (PCBs), and heavy metal
concentrations; and
(E) No excessive total suspended
solids and other pollutants, including
contaminants of emerging concern.
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(v) The presence and abundance of
fish hosts necessary for recruitment of
the green floater (including, but not
limited to, mottled sculpin (Cottus
bairdii), rock bass (Ambloplites
rupestris), central stoneroller
(Campostoma anomalum), blacknose
dace (Rhinichthys atratulus), and
margined madtom (Noturus insignis)).
(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 by overlaying Natural
Heritage Element Occurrence data and
U.S. Geological Survey hydrologic data
for stream reaches. The hydrologic data
used in the critical habitat maps were
extracted from the U.S. Environmental
Protection Agency’s National
Hydrography Dataset Plus Version 2
(NHDPlusV2) 1:100k scale nationwide
hydrologic layer (USEPA 2012,
unpaginated) with a projection of
NAD83 Geographic. Natural Heritage
program and State mussel database
species presence data from Maryland,
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48329
New York, North Carolina,
Pennsylvania, Virginia, and West
Virginia were used to select specific
river and stream segments for inclusion
in the critical habitat layer. The U.S.
Major Rivers database is from ArcGIS
Online (last modified February 22,
2018) with a projection of World
Geodetic System (WGS) 1984 Web
Mercator Auxiliary Sphere. The maps in
this entry, as modified by any
accompanying regulatory text, establish
the boundaries of the critical habitat
designation. The coordinates or plot
points or both on which each map is
based are available to the public at the
Service’s internet site at https://fws.gov/
office/new-york-ecological-servicesfield, at https://www.regulations.gov at
Docket No. FWS–R5–ES–2023–0012,
and at the field office responsible for
this designation. You may obtain field
office location information by
contacting one of the Service regional
offices, the addresses of which are listed
at 50 CFR 2.2.
(5) Index map follows:
Figure 1 to Green Floater (Lasmigona
subviridis) paragraph (5)
BILLING CODE 4333–15–P
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(6) Unit 1: Southwestern Lake Ontario
Watershed (Livingston County, New
York).
(i) Unit 1 consists of 55.6 stream
kilometers (km) (34.6 stream miles (mi))
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of the Genesee River in Livingston
County, New York, from New York
Route 36 downstream to the river’s
confluence with White Creek. It
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includes the river channel up to the
ordinary high water mark.
(ii) Map of Unit 1 follows:
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(7) Unit 2: Susquehanna Watershed
(Broome, Chemung, Chenango,
Cortland, Delaware, Herkimer, Madison,
Otsego, Steuben, and Tioga Counties,
New York; and Bradford, Clinton,
Columbia, Dauphin, Lackawanna,
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Luzerne, Lycoming, Montour,
Northumberland, Perry, Snyder,
Susquehanna, Tioga, Union, and
Wyoming Counties, Pennsylvania).
(i) Unit 2 consists of the following 16
subunits:
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(A) Subunit 2a is a total length of
345.8 km (214.9 mi) of the Susquehanna
River in Tioga County, New York, and
Columbia, Montour, and
Northumberland Counties,
Pennsylvania. This subunit includes the
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Figure 2 to Green Floater (Lasmigona
subviridis) paragraph (6)(ii)
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river channel up to the ordinary high
water mark. The upper section of
Subunit 2a flows from the entrance of
Owego Creek to Harvey’s Creek. The
lower section starts at Nescopeck Creek
and flows to the confluence of Fishing
Creek.
(B) Subunit 2b consists of a 13.9-km
(8.7-mi) segment of Fivemile Creek in
Steuben County, New York. This
subunit includes the river channel up to
the ordinary high water mark. It starts
at the entrance of an unnamed tributary
and ends at the confluence of Fivemile
Creek and the Cohocton River.
(C) Subunit 2c consists of a 47.6-km
(29.6-mi) segment of the Cohocton River
in Steuben County, New York. This
subunit includes the river channel up to
the ordinary high water mark. It starts
at the confluence of Cotton Creek and
Tenmile Creek and ends at the
confluence of the Tioga River and
Middle Cohocton Creek.
(D) Subunit 2d consists of a 15.7-km
(9.7-mi) segment of the Canisteo and
Tioga Rivers in Steuben County, New
York. This subunit includes the river
channel up to the ordinary high water
mark. It starts at the confluence of
Tuscarora Creek at the Canisteo River
and ends at the confluence of the Tioga
River and Chemung River.
(E) Subunit 2e consists of a 73.0-km
(45.4-mi) segment of the Chemung River
in Steuben and Chemung Counties, New
York, and Bradford County,
Pennsylvania. This subunit includes the
river channel up to the ordinary high
water mark. It starts at the confluence of
the Tioga River with the Cohocton River
and ends at the confluence of the
Chemung River and the Susquehanna
River.
(F) Subunit 2f consists of a 34.2-km
(21.2-mi) segment of Catatonk Creek in
Tioga County, New York, and Bradford
County, Pennsylvania. This subunit
includes the river channel up to the
ordinary high water mark. It starts at the
confluence of Miller Creek and
Michigan Creek and ends at the
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confluence of Fishing Creek with West
Branch Owego Creek.
(G) Subunit 2g consists of a 4.5-km
(2.8-mi) segment of Tunkhannock Creek
in Bradford, Wyoming, Lackawanna,
and Luzerne Counties, Pennsylvania.
This subunit includes the river channel
up to the ordinary high water mark. It
starts at the entrance of Billings Mill
Brook and ends at the confluence of
Tunkhannock Creek and the
Susquehanna River.
(H) Subunit 2h consists of a 59.4-km
(36.9-mi) segment of the Tioughnioga
River in Broome and Cortland Counties,
New York. This subunit includes the
river channel up to the ordinary high
water mark. It starts at the confluence of
the East Branch Tioughnioga and West
Branch Tioughnioga Rivers and ends at
the confluence of the Tioughnioga River
and the Chenango River.
(I) Subunit 2i consists of a 140.9-km
(87.6-mi) segment of the Chenango River
in Broome, Chenango, and Madison
Counties, New York. This subunit
includes the river channel up to the
ordinary high water mark. It starts in the
Sangerfield River downstream of
Ninemile Swamp and ends at the
confluence of the Chenango River and
the Susquehanna River.
(J) Subunit 2j consists of a 93.7-km
(58.2-mi) segment of the Unadilla River
in Chenango, Herkimer, and Otsego
Counties, New York. This subunit
includes the river channel up to the
ordinary high water mark. It starts at the
entrance of North Winfield Creek and
ends at the confluence of the Unadilla
River and the Susquehanna River.
(K) Subunit 2k consists of a 99.3-km
(61.7-mi) segment of the Upper
Susquehanna River in Broome,
Chenango, Delaware, and Otsego
Counties, New York, and Susquehanna
County, Pennsylvania. This subunit
includes the river channel up to the
ordinary high water mark. It starts at the
entrance of Mill Creek and ends at the
entrance of Starrucca Creek.
(L) Subunit 2l consists of a 115.5-km
(71.8-mi) segment of Pine Creek in
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Clinton, Lycoming, and Tioga Counties,
Pennsylvania. This subunit includes the
river channel up to the ordinary high
water mark. It starts at the entrance of
Phoenix Run and ends at the confluence
of Pine Creek and the Susquehanna
River.
(M) Subunit 2m consists of a 4.4-km
(2.7-mi) segment of Marsh Creek in
Tioga County, New York. This subunit
includes the river channel up to the
ordinary high water mark. It starts at the
entrance of Asaph Run and ends at the
confluence of Marsh Creek and Pine
Creek.
(N) Subunit 2n consists of a 45.8-km
(28.5-mi) segment of the West Branch
Susquehanna River in Lycoming,
Northumberland, and Union Counties,
Pennsylvania. This subunit includes the
river channel up to the ordinary high
water mark. It starts at the entrance of
Muncy Creek and ends at the
confluence of the West Branch
Susquehanna River and the
Susquehanna River.
(O) Subunit 2o consists of a 13.2-km
(8.2-mi) segment of Buffalo Creek in
Union County, Pennsylvania. This
subunit includes the river channel up to
the ordinary high water mark. It starts
at the intersection of Johnson Mill Road
and Buffalo Creek and ends at the
confluence of Buffalo Creek and the
West Branch Susquehanna River. The
last segment of Buffalo Creek is also
known as Mill Race.
(P) Subunit 2p consists of a 35.5-km
(22.1-mi) segment of Penns Creek in
Dauphin, Northumberland, Perry,
Snyder, and Union Counties,
Pennsylvania. This subunit includes the
river channel up to the ordinary high
water mark. It starts at the entrance of
an unnamed tributary near the
intersection of Penns Creek Road and
Wildwood Road and ends at the
confluence of Penns Creek and the
Susquehanna River.
(ii) Maps of Unit 2 follow:
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Figure 3 to Green Floater (Lasmigona
subviridis) paragraph (7)(ii)
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Figure 4 to Green Floater (Lasmigona
subviridis) paragraph (7)(ii)
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Figure 5 to Green Floater (Lasmigona
subviridis) paragraph (7)(ii)
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Figure 6 to Green Floater (Lasmigona
subviridis) paragraph (7)(ii)
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Figure 7 to Green Floater (Lasmigona
subviridis) paragraph (7)(ii)
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(8) Unit 3: Potomac Watershed
(Bedford and Fulton Counties,
Pennsylvania; Allegany and Washington
Counties, Maryland; and Berkeley,
Hampshire, Hardy, Mineral, and Morgan
Counties, West Virginia).
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(i) Unit 3 consists of the following six
subunits:
(A) Subunit 3a consists of an 80.3-km
(49.9-mi) segment of the Potomac River
in Washington County, Maryland, and
Berkeley County, West Virginia. This
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subunit includes the river channel up to
the ordinary high water mark. It starts
at the entrance of the Cacapon River and
ends at the entrance of Downey Branch.
(B) Subunit 3b consists of a 22.3-km
(13.9-mi) segment of Patterson Creek in
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Figure 8 to Green Floater (Lasmigona
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Mineral County, West Virginia. This
subunit includes the river channel up to
the ordinary high water mark. It starts
at the entrance of Cabin Run and ends
at the confluence of Patterson Creek and
the Potomac River.
(C) Subunit 3c consists of a 51.3-km
(31.9-mi) segment of Sideling Hill Creek
in Allegany County, Maryland, and
Bedford and Fulton Counties,
Pennsylvania. This subunit includes the
river channel up to the ordinary high
water mark. It starts at the Rice Road
crossing of West Branch Sideling Hill
Creek and ends at the confluence of
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Sideling Hill Creek and the Potomac
River.
(D) Subunit 3d consists of a 123.0-km
(76.5-mi) segment of the Cacapon River
in Washington County, Maryland, and
in Hardy, Hampshire, and Morgan
Counties, West Virginia. This subunit
includes the river channel up to the
ordinary high water mark. It starts at the
entrance of Trout Run and ends at the
confluence of the Cacapon River and the
Potomac River.
(E) Subunit 3e consists of a 6.7-km
(4.1-mi) segment of Licking Creek in
Washington County, Maryland. This
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48339
subunit includes the river channel up to
the ordinary high water mark. It starts
at the crossing of Pecktonville Road and
ends at the confluence of Licking Creek
and the Potomac River.
(F) Subunit 3f consists of a 46.8-km
(29.1-mi) segment of Back Creek in
Berkeley County, West Virginia. This
subunit includes the river channel up to
the ordinary high water mark. It starts
at the entrance of Big Run and ends at
the confluence of Back Creek and the
Potomac River.
(ii) Map of Unit 3 follows:
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(9) Unit 4: Kanawha Watershed
(Allegany, Ashe, and Watauga Counties,
North Carolina; Carroll and Grayson
Counties, Virginia; and Greenbrier,
Monroe, Pocahontas, and Summers
Counties, West Virginia).
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(i) Unit 4 consists of the following six
subunits:
(A) Subunit 4a consists of a 259.7-km
(161.4-mi) segment of the Greenbrier
River in Greenbrier, Monroe,
Pocahontas, and Summers Counties,
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West Virginia. This subunit includes the
river channel up to the ordinary high
water mark. It starts at the entrance of
Cove Run and ends at the confluence of
the Greenbrier River and the New River.
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Figure 9 to Green Floater (Lasmigona
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(B) Subunit 4b consists of a 17.4-km
(10.8-mi) segment of Deer Creek in
Pocahontas County, West Virginia. This
subunit includes the river channel up to
the ordinary high water mark. It starts
at the entrance of Hospital Run and
ends at the confluence of Deer Creek
and the Greenbrier River.
(C) Subunit 4c consists of a 32.2-km
(20-mi) segment of Knapp Creek in
Pocahontas County, West Virginia. This
subunit includes the river channel up to
the ordinary high water mark. It starts
at the entrance of Moore Run and Knapp
Creek and ends at the confluence of
Knapp Creek and the Greenbrier River.
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(D) Subunit 4d consists of a 15.5-km
(9.7-mi) segment of the New River in
Carroll and Grayson Counties, Virginia.
This subunit includes the river channel
up to the ordinary high water mark. It
starts at Sarasota Lane and ends at the
confluence of Chestnut Creek and the
New River.
(E) Subunit 4e consists of a 17.9-km
(11.1-mi) segment of the Little River in
the Kanawha watershed in Alleghany
County, North Carolina, and Grayson
County, Virginia. This subunit includes
the river channel up to the ordinary
high water mark. It starts at the entrance
of Brush Creek and ends at the
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confluence of the Little River and the
New River.
(F) Subunit 4f consists of a 145.7-km
(90.5-mi) segment of the South Fork
New River in Alleghany, Ashe, and
Watauga Counties, North Carolina. This
subunit includes the river channel up to
the ordinary high water mark. It starts
at the confluence of the East Fork South
Fork New River, Middle Fork South
Fork New River, and Winkler Creek and
ends at the confluence of the South Fork
New River and North Fork New River.
(ii) Maps of Unit 4 follow:
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Figure 10 to Green Floater (Lasmigona
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(10) Unit 5: Lower Chesapeake
Watershed (Amherst, Buckingham, and
Nelson Counties, Virginia).
(i) Unit 5 consists of the following two
subunits:
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(A) Subunit 5a consists of a 54.1-km
(33.6-mi) segment of the Tye River in
Amherst, Buckingham, and Nelson
Counties, Virginia. This subunit
includes the river channel up to the
ordinary high water mark. It starts at the
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confluence of Coxs Creek and Campbell
Creek and ends at the confluence of the
Tye River and the James River.
(B) Subunit 5b consists of a 8.6-km
(5.4-mi) segment of the Pedlar River in
Amherst County, Virginia. This subunit
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includes the river channel up to the
ordinary high water mark. It starts at the
entrance of Horsley Creek and ends at
the confluence of the Pedlar River and
James River.
(ii) Map of Unit 5 follows:
Figure 12 to Green Floater (Lasmigona
subviridis) paragraph (10)(ii)
(11) Unit 6: Chowan-Roanoke
Watershed (Caswell, Rockingham, and
Stokes Counties, North Carolina; and
Brunswick, Greensville, Halifax, Henry,
Patrick, Pittsylvania, and Southampton
Counties, Virginia).
(i) Unit 6 consists of the following five
subunits:
(A) Subunit 6a consists of a 221.3-km
(137.5-mi) segment of the Dan River in
Caswell, Rockingham, and Stokes
Counties, North Carolina, and in
Halifax, Henry, Patrick, and Pittsylvania
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Counties, Virginia. This subunit
includes the river channel up to the
ordinary high water mark. It starts at the
entrance of Squall Creek and ends at the
entrance of County Line Creek.
(B) Subunit 6b consists of a 4.6-km
(2.9-mi) segment of the South Mayo
River in Henry County, Virginia, and
Rockingham County, North Carolina.
This subunit includes the river channel
up to the ordinary high water mark. It
starts at the entrance of Crooked Creek
and ends at the confluence of the South
Mayo River and the Mayo River.
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(C) Subunit 6c consists of a 5.9-km
(3.7-mi) segment of the North Mayo
River in Henry County, Virginia, and
Rockingham County, North Carolina.
This subunit includes the river channel
up to the ordinary high water mark. It
starts at the entrance of Jumping Branch
and ends at the confluence of the North
Mayo River and the Mayo River.
(D) Subunit 6d consists of a 25.1-km
(15.6-mi) segment of the Mayo River in
Rockingham County, North Carolina.
This subunit includes the river channel
up to the ordinary high water mark. It
starts at the confluence of the North
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Mayo and South Mayo Rivers and ends
at the confluence of the Mayo River and
the Dan River.
(E) Subunit 6e consists of a 106.1-km
(65.9-mi) segment of the Meherrin River
in Brunswick, Greensville, and
Southampton Counties, Virginia. This
subunit includes the river channel up to
the ordinary high water mark. It starts
at the entrance of Shining Creek and
ends at the entrance of Fountains Creek.
(ii) Maps of Unit 6 follow:
Figure 13 to Green Floater (Lasmigona
subviridis) paragraph (11)(ii)
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Figure 14 to Green Floater (Lasmigona
subviridis) paragraph (11)(ii)
(12) Unit 7: Neuse-Pamlico Watershed
(Durham, Johnston, Orange, Person, and
Wake Counties, North Carolina).
(i) Unit 7 consists of the following
four subunits:
(A) Subunit 7a consists of a 26.8-km
(16.6-mi) segment of the Neuse River in
Johnston and Wake Counties, North
Carolina. This subunit includes the river
channel up to the ordinary high water
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mark. It starts at the entrance of Crabtree
Creek and ends near Prestwick Drive.
(B) Subunit 7b consists of a 54.4-km
(33.8-mi) segment of the Eno River in
Durham and Orange Counties, North
Carolina. This subunit includes the river
channel up to the ordinary high water
mark. It starts at the entrance of
McGowan Creek and ends at Falls Lake.
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(C) Subunit 7c consists of a 30.9-km
(19.2-mi) segment of the Flat River in
Durham and Person Counties, North
Carolina. This subunit includes the river
channel up to the ordinary high water
mark. It starts at the confluence of the
North Flat River and South Flat River
and ends at Falls Lake.
(D) Subunit 7d consists of an 8.6-km
(5.4-mi) segment of the Little River in
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the Neuse-Pamlico watershed in Wake
County, North Carolina. This subunit
includes the river channel up to the
ordinary high water mark. It starts at the
confluence with Perry Creek and ends at
the entrance of Big Branch.
(13) Unit 8: Upper Tennessee
Watershed (Watauga County, North
Carolina).
(i) Unit 8 consists of 16.0-km (9.9-mi)
of the Watauga River in Watauga
County, North Carolina, from the
entrance of Baird Creek to the entrance
of Beech Creek. It includes the river
channel up to the ordinary high water
mark.
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(ii) Map of Unit 7 follows:
Figure 15 to Green Floater (Lasmigona
subviridis) paragraph (12)(ii)
(ii) Map of Unit 8 follows:
Figure 16 to Green Floater (Lasmigona
subviridis) paragraph (13)(ii)
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*
*
*
*
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023–15143 Filed 7–25–23; 8:45 am]
BILLING CODE 4333–15–C
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*
48349
Agencies
[Federal Register Volume 88, Number 142 (Wednesday, July 26, 2023)]
[Proposed Rules]
[Pages 48294-48349]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15143]
[[Page 48293]]
Vol. 88
Wednesday,
No. 142
July 26, 2023
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; Threatened Species
Status With Section 4(d) Rule for Green Floater and Designation of
Critical Habitat; Proposed Rule
Federal Register / Vol. 88, No. 142 / Wednesday, July 26, 2023 /
Proposed Rules
[[Page 48294]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R5-ES-2023-0012; FF09E21000 FXES1111090FEDR 234]
RIN 1018-BF80
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for Green Floater 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 green floater (Lasmigona subviridis), a mussel species from as
many as 10 States in the eastern United States and the District of
Columbia, as a threatened species with a rule issued under section 4(d)
of the Endangered Species Act of 1973, as amended (Act). This document
also serves as our 12-month finding on a petition to list the green
floater. After a review of the best available scientific and commercial
information, we find that listing the species is warranted. We also
propose to designate critical habitat for the green floater under the
Act. In total, approximately 2,553 kilometers (1,586 miles) of streams
in Maryland, New York, North Carolina, Pennsylvania, Virginia, and West
Virginia fall within the boundaries of the proposed critical habitat
designation. We also announce the availability of a draft economic
analysis of the proposed designation of critical habitat for the green
floater. If we finalize this rule as proposed, it would add this
species to the List of Endangered and Threatened Wildlife and extend
the Act's protections to the species and its designated critical
habitat.
DATES: We will accept comments received or postmarked on or before
September 25, 2023. Comments submitted electronically using the Federal
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59
p.m. eastern time on the closing date. We must receive requests for a
public hearing, in writing, at the address shown in FOR FURTHER
INFORMATION CONTACT by September 11, 2023.
ADDRESSES: You may submit comments by one of the following methods:
(1) Electronically: Go to the Federal eRulemaking Portal: https://www.regulations.gov. In the Search box, enter FWS-R5-ES-2023-0012,
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-R5-ES-2023-0012, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on https://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: Supporting materials, such as
the species status assessment report, are available at https://www.regulations.gov at Docket No. FWS-R5-ES-2023-0012. For the proposed
critical habitat designation, the coordinates or plot points or both
from which the maps are generated are included in the decision file for
this proposed critical habitat designation and are available at https://www.regulations.gov at Docket No. FWS-R5-ES-2023-0012 and on our
internet site at https://www.fws.gov/office/new-york-ecological-services-field.
FOR FURTHER INFORMATION CONTACT: Ian Drew, Field Supervisor, U.S. Fish
and Wildlife Service, New York Ecological Services Field Office, 3817
Luker Road, Cortland, NY 13045; telephone 607-753-9334. Individuals in
the United States who are deaf, deafblind, hard of hearing, or have a
speech disability may dial 711 (TTY, TDD, or TeleBraille) to access
telecommunications relay services. Individuals outside the United
States should use the relay services offered within their country to
make international calls to the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species warrants
listing if it meets the definition of an endangered species (in danger
of extinction throughout all or a significant portion of its range) or
a threatened species (likely to become endangered 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
green floater meets the Act's definition of a threatened 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 the listing of the green
floater as a threatened species with a rule under section 4(d) of the
Act (a ``4(d) rule''), and we propose the designation of critical
habitat for the species.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species because of any of five
factors: (A) The present or threatened destruction, modification, or
curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific, or educational purposes; (C)
disease or predation; (D) the inadequacy of existing regulatory
mechanisms; or (E) other natural or manmade factors affecting its
continued existence. We have determined that habitat degradation
(Factor A), resulting from the cumulative impacts of land use change
and associated watershed-level effects on water quality, habitat
connectivity, and stream conditions, poses the greatest risk to the
future viability of the green floater. Habitat degradation can occur as
a result of increased surface runoff, sedimentation, and pollution, and
decreased substrate stability, both instream and along streambanks.
These degraded conditions negatively impact the green floater by, for
example, smothering the organism or washing the organism downstream. In
the future, climate change (Factor A) is expected to exacerbate the
degradation of the green floater's habitat through increased water
temperatures, changes and shifts in seasonal patterns of precipitation
and runoff, and extreme weather events such as flood or droughts.
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary), to the maximum extent prudent and determinable, to
designate critical habitat concurrent with listing. Section 3(5)(A) of
the Act defines critical habitat as (i) the specific areas within the
geographical area occupied by the species, at the time it is listed, on
which are found those physical or biological features (I) essential to
the conservation of the species and (II) which may
[[Page 48295]]
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 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, including additional information, 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 affect 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) The historical and current status of this species.
(4) Regulations that may be necessary and advisable to provide for
the conservation of the green floater and that we can consider in
developing a 4(d) rule for the species. In particular, we seek
information concerning the extent to which we should include any of the
section 9 prohibitions in the 4(d) rule or whether we should consider
any additional exceptions from the prohibitions in the 4(d) rule.
(5) Specific information on the species' habitat, including:
(a) The amount and distribution of green floater habitat;
(b) Any additional areas occurring within the range of the species
(the States of Alabama, Georgia, Maryland, New Jersey, New York, North
Carolina, Pennsylvania, Tennessee, Virginia, and West Virginia, and the
District of Columbia) 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 (ii) are unoccupied at the time of listing and are essential for the
conservation of the species;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change; and
(d) Whether occupied areas are adequate for the conservation of the
species. This information may help us evaluate the potential to include
areas not occupied at the time of listing. Additionally, please provide
specific information regarding whether or not unoccupied areas would,
with reasonable certainty, contribute to the conservation of the
species and contain at least one physical or biological feature
essential to the conservation of the species. We also seek comments or
information regarding whether areas not occupied at the time of listing
qualify as habitat for the species.
(6) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(7) 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.
(8) 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.
(9) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act. If you think we should exclude any
additional areas, please provide information supporting a benefit of
exclusion.
(10) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Please include sufficient information with your submission (such as
scientific journal articles or other publications) to allow us to
verify any scientific or commercial information you include.
Please note that submissions merely stating support for, or
opposition to, the action under consideration without providing
supporting information, although noted, do not provide substantial
information necessary to support a determination. Section 4(b)(1)(A) of
the Act directs that determinations as to whether any species is an
endangered or a threatened species must be made solely on the basis of
the best scientific and commercial data available, and section 4(b)(2)
of the Act directs that the Secretary shall designate critical habitat
on the basis of the best scientific data available.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via https://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on https://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on https://www.regulations.gov.
Our final determinations 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 endangered
instead of threatened, or we may conclude that the
[[Page 48296]]
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
addition, we may change the parameters of the prohibitions or the
exceptions to those prohibitions in the 4(d) rule if we conclude it is
appropriate in light of comments and new information received. For
example, we may expand the prohibitions to include prohibiting
additional activities if we conclude that those additional activities
are not compatible with conservation of the species. Conversely, we may
establish additional exceptions to the prohibitions in the final rule
if we conclude that the activities would facilitate or are compatible
with the conservation and recovery 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).
Previous Federal Actions
In our November 21, 1991, candidate notice of review (CNOR;
published at 56 FR 58804) we identified the green floater as a Category
2 candidate species. Category 2 candidate species were those taxa for
which listing was possibly appropriate, but for which conclusive data
on biological vulnerability and threats were not available to support
proposed rules. In the February 28, 1996, CNOR (61 FR 7596), we
discontinued the designation of species as Category 2 candidates;
therefore, the green floater was no longer a candidate species.
On April 20, 2010, we were petitioned to list 404 aquatic species
in the southeastern United States, including the green floater. In
response to the petition, we published a partial 90-day finding on
September 27, 2011 (76 FR 59836), in which we announced our finding
that the petition contained substantial information that listing might
be warranted for numerous species, including the green floater.
Peer Review
A species status assessment (SSA) team prepared an SSA report for
the green floater (Service 2021, entire). The SSA team was composed of
Service biologists, in consultation with other species experts. The SSA
report represents a compilation of the best scientific and commercial
data available concerning the status of the species, including the
impacts of past, present, and future factors (both negative and
beneficial) affecting the species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we solicited independent scientific
review of the information contained in the green floater SSA report. We
sent the SSA report to five independent peer reviewers and received one
response. Results of this structured peer review process can be found
at https://www.regulations.gov under Docket No. FWS-R5-ES-2023-0012. In
preparing this proposed rule, we incorporated the results of this
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 generally concurred with our methods and conclusions and
provided additional information and other editorial suggestions. No
substantive changes to our analysis and conclusions within the SSA
report were necessary, and peer reviewer comments are addressed in
version 1.0 of the SSA report (Service 2021, entire).
I. Proposed Listing Determination
Background
The green floater is a freshwater mussel found in small streams to
large rivers in the eastern United States. It is historically native to
the District of Columbia and 10 States (Alabama, Georgia, Maryland, New
Jersey, New York, North Carolina, Pennsylvania, Tennessee, Virginia,
and West Virginia). Today, however, green floaters are considered
extirpated in Alabama and Georgia, and there are no recent records from
New Jersey or the District of Columbia.
Green floaters are small freshwater mussels with ovate trapezoidal
shaped shells. Their shells are yellowish brown to olive green with
green rays (Bogan and Ashton 2016, p. 43). Adults rarely exceed 5.5
centimeters (cm) (2.2 inches (in)) (Johnson 1970, p. 344) but can grow
to 7.0 cm (2.8 in) in length (Watters et al. 2009, p. 347). Like all
freshwater mussels, the green floater is an omnivore that feeds on a
wide variety of microscopic particulate matter (i.e., bacteria and
algae).
The best available information suggests the green floater is a
short-lived, fast-growing species compared to similar mussels. The
green floater is considered a long-term brooder because individuals
produce eggs that develop as larvae in the adult mussels and are then
released after several months (Haag 2012, pp. 40-41, 203-204). In
contrast, short-term brooders are similar in that larvae develop in the
adult mussels, but the brood period is shorter, lasting several days or
weeks. While some mussels can live to 100 years old, green floaters
typically live just 3 to 4 years (Watters et al. 2009, p. 349). In
laboratory settings, green floaters can mature and release sperm at
less than 1 year of age (Mair 2020, pers. comm.)
Green floaters are hermaphroditic (Ortmann 1919, p. 122; van der
Schalie 1970, p. 106) and have the ability to self-fertilize, which
increases the probability of fertilization (Haag 2012, p. 191).
Spawning and reproduction occur during the late summer or early fall.
In the winter, green floaters can directly metamorphose larvae, called
glochidia, meaning that adults keep the glochidia in their gills until
they mature into juveniles and then release them into the water column
in the spring (Barfield and Watters 1998, p. 22; Lellis and King 1998,
p. 23; Haag 2012, p. 150). For most freshwater mussels, glochidia are
released into the water column and must attach to the gills of a host
fish in order to undergo metamorphosis and transform into juveniles.
Several weeks or months
[[Page 48297]]
later, the juveniles detach from the fish and burrow into the
substrate. Green floater adults have the ability to expel glochidia
that use fish hosts, too (J. Jones 2020, unpublished data), but it is
not known what proportion of green floaters use this method of
reproduction. The added ability to directly metamorphose glochidia
without requiring an intermediate fish host is unique to the green
floater. This life strategy may allow the green floater to occur in
small streams with small populations and few fish (Haag 2012, pp. 150,
191), although the use of fish hosts is necessary for periodic upstream
dispersal.
Green floaters likely maximize population growth during periods of
favorable conditions (Haag 2012, pp. 208, 284). Adult green floaters
can produce between 2,600 and 33,300 juveniles per individual each year
(R. Mair, Service, unpublished data), and the number of juveniles
produced can vary greatly from year to year. For example, researchers
at Harrison Lake National Fish Hatchery in Virginia observed that the
average number of juveniles released per individual jumped from 4,600
to 22,500 per individual in a 2-year span. These numbers do not
represent the total number of juveniles expected to survive to
adulthood, a number which is unknown but is likely to be a small
proportion of the juveniles released. When they are found in natural
environments, green floaters can occur singly or in small aggregations
of a few individuals.
Streams with slow to medium flows and good water quality provide
the best habitat for green floaters (Ortmann 1919, p. 124; Johnson
1970, p. 345; Clarke 1985, p. 56; Kerferl 1990, p. 47). They are often
found in sand or small gravel substrates where they establish a
foothold and bury themselves as deep as 38 cm (15 in) (Haag 2012, p.
31; Lord 2020, pers. comm.). Their mobility is limited, and fast
flowing currents or high-water events can cause them to be washed
downstream (Strayer 1999, pp. 468, 472). When they occur in larger
streams and rivers, they are found in quieter pools and eddies, away
from strong currents (WVDNR 2008, p. 2).
For more information, please refer to the SSA report (version 1.0;
Service 2021, pp. 1-30), which presents a thorough review of the
taxonomy, life history, and ecology of the green floater.
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. In 2019, jointly with the National Marine Fisheries
Service, the Service issued a final rule that revised the regulations
in 50 CFR part 424 regarding how we add, remove, and reclassify
endangered and threatened species and the criteria for designating
listed species' critical habitat (84 FR 45020; August 27, 2019). On the
same day, the Service also issued final regulations that, for species
listed as threatened species after September 26, 2019, eliminated the
Service's general protective regulations automatically applying to
threatened species the prohibitions that section 9 of the Act applies
to endangered species (84 FR 44753; August 27, 2019).
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all of the threats on
the species as a whole. We also consider the cumulative effect of the
threats in light of those actions and conditions that will have
positive effects on the species, such as any existing regulatory
mechanisms or conservation efforts. The Secretary determines whether
the species meets the definition of an ``endangered species'' or a
``threatened species'' only after conducting this cumulative analysis
and describing the expected effect on the species now and in the
foreseeable future.
The Act does not define the term ``foreseeable future,'' which
appears in the statutory definition of ``threatened species.'' Our
implementing regulations at 50 CFR 424.11(d) set forth a framework for
evaluating the foreseeable future on a case-by-case basis. The term
``foreseeable future'' extends only so far into the future as we can
reasonably determine that both the future threats and the species'
responses to those threats are likely. In other words, the foreseeable
future is the period of time in which we can make reliable predictions.
``Reliable'' does not mean ``certain''; it means sufficient to provide
a reasonable degree of confidence in the prediction. Thus, a prediction
is reliable if it is reasonable to depend on it when making decisions.
It is not always possible or necessary to define the foreseeable
future as a particular number of years. Analysis of the foreseeable
future uses the best scientific and commercial data available and
should consider the timeframes applicable to the relevant threats and
to the species' likely responses to those threats in view of its life-
history characteristics. Data that are typically relevant to assessing
the species' biological response include species-specific factors such
as lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
[[Page 48298]]
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 green floater'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 change, 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 use the best available information to characterize viability
as the ability of a species to sustain populations in the wild over
time. We use this information to inform our regulatory decision.
The following is a summary of the key results and conclusions from
the SSA report; the full SSA report can be found at Docket No. FWS-R5-
ES-2023-0012 on https://www.regulations.gov.
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. We analyze these factors
both individually and cumulatively to determine the current condition
of the species and project the future condition of the species under
several plausible future scenarios.
Species Needs
We assessed the best available information to identify the physical
and biological needs to support all life stages for the green floater.
Green floaters occur in a variety of habitats across the species' large
range, but they require specific conditions for the habitat to be
suitable. Water flow, streambed substrate, water quality, water
temperature, and conditions that support their host fish are all
important habitat components for the health of green floaters.
Green floaters occur in small streams to large rivers, pools,
eddies, and canals with current speeds that are low or moderate
(Ortmann 1919, p. 124; Clarke 1985, p. 56; WVDNR 2008, p. 2). The
optimal current is stable, not flashy, and responds slowly to
precipitation events (Strayer 1993, pp. 241, 244). Green floaters
require slow and stable flows because they spend most of their lives
buried just below the surface of the streambed with their posterior end
angled upward and their anterior end in the substrate. This position
allows them to siphon water through their incurrent aperture, secrete
waste through their excurrent aperture, and stabilize themselves using
their foot. The incoming current speeds must be adequate to deliver a
steady supply of food and oxygen.
Green floaters are able to survive high flow events by burying into
the substrate. Adult green floaters have been found buried between 8
and 13 cm (3 and 5 in) while juveniles have been found as deep as 38 cm
(15 in) (Barber 2020, pers. comm.; Lord 2020, pers. comm.). They are
associated with substrates composed primarily of sand or small gravel
(Holst 2020, pers. comm.). They can be found in both quiet, backwater
areas (e.g., eddies) with more silt and large, boulder-dominated
streams, but some amount of sand or gravel is necessary for them to
establish a foothold (Clayton 2020, pers. comm.). If they become
dislodged from the substrate, they can take up to 30 minutes to rebury
themselves, possibly requiring less time in sand and silt substrates
(Haag 2012, p. 32). If they become dislodged during a high water event
or flood, they could be washed downstream (Strayer 1999, pp. 468, 472).
Like all freshwater mussels, green floaters are sensitive to
certain water quality parameters and need clean water with low levels
of contaminants, adequate dissolved oxygen, and low salinity. Juvenile
mussels may be more sensitive than adults to the presence of
contaminants, especially copper and ammonia, which can cause
physiological effects or death (Goudreau et al. 1993, pp. 224, 226-227;
Jacobson et al. 1993, p. 882). The specific dissolved oxygen
requirements for green floaters are unknown; however, other freshwater
mussels begin to exhibit stress when dissolved oxygen levels fall below
6 milligrams per liter (mg/L) (Chen et al. 2001, pp. 213-214). Stress
is apparent through behavioral changes such as gaping (i.e., opening of
the shells to maintain oxygen levels) and lying on the surface of the
substrate (Sparks and Strayer 1998, pp. 131-133). Green floaters are
also intolerant to brackish water and require the low salinity levels
that occur naturally in freshwater streams.
Green floaters require water temperatures that are warm enough for
glochidia release but not so warm that they kill or stress the adults.
Research from lab and field studies indicate that the appropriate
temperature for glochidia release is likely between 15 and 20 degrees
Celsius ([deg]C) (59 and 68 degrees Fahrenheit ([deg]F)). Adult mussels
begin to exhibit the gaping behaviors described above when water
temperatures get too warm. Lethal maximum water temperatures for green
floaters have not been studied but are expected to be between 25.3 and
42.7 [deg]C (77.5 and 106.0 [deg]F), similar to those reported for
comparable species. Maximum temperatures are related to the duration of
exposure. Mussels can survive temperatures on the higher end of the
spectrum for short periods of time (i.e., minutes or hours) and can
survive temperatures on the lower end for days or weeks. Juvenile
mussels may be more sensitive to warm temperatures.
Adequate water quality and temperatures are important habitat
components for the health of host fish as well, which green floaters
require for upstream dispersal. In laboratory studies, green floaters
successfully used mottled sculpin (Cottus bairdii), rock bass
(Ambloplites rupestris), central
[[Page 48299]]
stoneroller (Campostoma anomalum), blacknose dace (Rhinichthys
atratulus), and margined madtom (Noturus insignis) for glochidia
metamorphosis (J. Jones 2020, unpublished data). These species all
occur within the range of the green floater and could function as hosts
in natural settings as well.
The green floater historically occurred in four major drainages:
the Atlantic Slope (i.e., watersheds along the east coast of the United
States), St. Lawrence-Great Lakes, Mississippi River (Clarke 1985, p.
57), and Gulf (i.e., hydrologically connected to the Gulf of Mexico)
(Brim Box and Williams 2000, p. 59). We delineated analysis units for
the green floater in these drainages based on recent occupancy
information. We used data from surveys conducted by partners, including
State agencies, Federal agencies, nonprofit organizations, and
contractors, between 1999 to 2019. This period covers approximately
three generations of green floaters, which are thought to live up to 7
years (Watters et al. 2009, p. 349). Using these survey data, we
determined the green floater historically existed in 179 watersheds
across 10 States and the District of Columbia; 85 of these watersheds
have had no sightings since 1999 (see figure 1, below, and Service
2021, appendix C).
BILLING CODE 4333-15-P
[[Page 48300]]
[GRAPHIC] [TIFF OMITTED] TP26JY23.000
BILLING CODE 4333-15-C
To assess resiliency, we evaluated relevant environmental and
demographic factors to determine the condition of populations across
the range of the species. Green floater populations must be able to
survive varying habitat conditions (i.e., good and bad years) to
respond to and recover from stochastic events (e.g., seasonal events
such as heavy rain or severe drought). They must have a healthy
demography, i.e., a population that includes organisms at a range of
life stages and occupy areas with suitable habitat conditions for all
life stages and seasons. Healthy demography is achieved by having a
sufficient number
[[Page 48301]]
of adults, recruitment (i.e., presence of adults and juveniles), and
habitat connectivity that supports genetic exchange within and between
populations. Genetic exchange is needed to preserve genetic diversity,
without which the health of populations can decrease. Barriers, such as
large dams and blocked culvert pipes, can impede genetic exchange by
limiting the dispersal of juvenile mussels and preventing host fish
migration. Some populations are found between barriers and downstream
of dams, but the healthiest green floater populations are likely to be
found in free-flowing streams and rivers.
To assess representation, we evaluated the ecological and genetic
diversity across the current range of the species. It is important to
have sufficiently resilient populations (referred to in figure 1,
above, as analysis units) where both genetic and ecological differences
are apparent to maintain the existing adaptive capacity. To evaluate
representation in the current condition of the green floater, we
consider both genetic information and the geographic distribution of
populations. The green floater must have healthy populations
distributed across the range to capture the breadth of genetic,
climate, elevation, and habitat diversity, and sufficient connectivity
for periodic genetic exchange across the range of the species.
To assess redundancy, we considered the number and distribution of
populations across the range of the species and the potential for
catastrophic events to impact the green floater's ability to persist.
To have high redundancy, the species needs to have multiple populations
distributed across a large area relative to the scale of anticipated
catastrophic events.
Factors Influencing Species Viability
Excessive Sedimentation
Excessive sedimentation is one of the primary factors affecting
green floater viability. Sedimentation originates from instream (e.g.,
bank erosion, shifting channels) and upland sources (e.g., soil
erosion). Increases in sediment load can accumulate on the stream/river
bottom and may lead to bottom scour; lead to embeddedness of rocks,
gravel, and cobble; and affect some baseline water quality parameters
(e.g., turbidity). Excess sedimentation can harm mussels in multiple
ways: suspended particles can abrade mussels and clog the gills and
respiratory systems of both mussels and host fish, while deposited
sediment can bury mussels and smother host fish eggs (Wood and Armitage
1997, p. 211; Burkhead and Jelks 2001, p. 965). Even where
sedimentation does not clog gills so severely as to kill mussels, it
may still significantly impact their feeding efficiency and filtering
clearance rates (Aldridge et al. 1987, p. 25; Brim Box and Mossa 1999,
pp. 100-101).
Increases in suspended sediment can also adversely affect mussels'
ability to feed and reproduce. Mussels must have their valves open to
feed, but in heavily silted water, they are forced to close their
valves to wait for conditions to improve. Mussels in turbid water have
been observed closing their valves up to 90 percent of the time,
compared to 50 percent of the time for individuals in silt-free
environments (Ellis 1936, p. 40). Extended valve closure can lead to
decreased health or starvation. Increases in suspended particles can
also reduce mussels' ability to encounter sperm, become gravid, and
reproduce (Landis et al. 2013, p. 74).
However, a reduced sediment load can also destabilize the stream
channel. When a decrease in sediment supply coincides with increased
stream flow, the imbalance can cause streams to narrow and deepen
(Rakovan and Renwick 2011, p. 40), channeling the flow of water and
making the habitat unsuitable for green floaters. Other activities,
like dredging, channelization, or storm damage, can also adversely
affect physical habitat. Changes in primary productivity (i.e., algae
and aquatic plant growth) as a result of nutrient loads or reduced
stream flows can limit the suitability of stream habitats for the green
floater and other aquatic species (Bogan 1993, p. 604; Wood and
Armitage 1997, pp. 209-210; Taylor et al. 2007, p. 374). Fine sediment
suspension and deposition affect the primary producers by reducing the
amount of sunlight and damaging leaves of plants, which reduces
photosynthesis (Lewis 1973, p. 253; Davies-Colley et al. 1992, p. 232),
and, in extreme cases, by smothering and eliminating algae and plants
(Yamada and Nakamura 2002, p. 489).
During periods of stress, green floaters bury themselves deeper in
the substrate and take refuge in interstitial spaces (i.e., small
openings between rocks and gravels). While in interstitial spaces, they
rely on available pore water (i.e., the water in interstitial spaces
between rock and gravel substrates) for oxygen and food particles.
Interstitial spaces provide essential habitat for adults and juvenile
green floaters by protecting them from high water events and periods of
drought, and allowing water loaded with oxygen and food particles to
reach the mussels. Excess sedimentation adversely affects mussel
habitat by blocking or filling in the interstitial spaces. Excess sand
or silt can reduce or block these areas (Brim Box and Mossa 1999, p.
100), which may cause them to become unsuitable for green floaters by
having reduced dissolved oxygen levels and limited food availability
(Strayer and Malcom 2012, p. 1781).
Pollutants bound to fine sediment and pore water inside
interstitial spaces can also be toxic to mussels. The degree of
bioavailability of pollutants bound to sediments can be affected by
environmental characteristics such as oxygen, temperature, hardness,
alkalinity, dissolved organic carbon, chloride, and acidity (Farris and
van Hassel 2006, p. 206; Archambault et al. 2017, p. 403).
Excessive sedimentation can be caused by land-disturbing activities
associated with development (i.e., residential/commercial, energy, and
transportation development). These types of activities increase the
amount of impervious surfaces and leave areas of bare, unvegetated soil
exposed to direct rainfall. Energy development, agriculture, and
forestry activities all take place within the range of the green
floater. Energy development is a source of sediment because solar
farms, oil and gas pipelines, and transmission lines can cause soil
disturbance during installation and maintenance of equipment.
Agriculture activities can also cause excessive sedimentation when best
management practices are not implemented to minimize soil erosion and
increased overland flow, and some forestry practices have the potential
to result in increased siltation in riparian systems through the cycle
of forest thinning, final harvest, site preparation, and re-planting
activities. However, implementation of best management practices and
establishment of streamside management zones can minimize the impacts
from forestry (Service 2018 and 2019, chapter 6). Adherence to these
best management practices and streamside management zones broadly
protects water quality, particularly related to sedimentation (as
reviewed by Cristan et al. 2016, entire; Warrington et al. 2017,
entire; Schilling et al. 2021, entire).
Impervious surfaces (e.g., roads, concrete) are a source of
pollutants such as oil and gas because the surfaces prevent liquids
from entering the ground. During precipitation events, the pollutants
collect in the rainfall, and because water is unable to absorb into the
impervious surfaces too, the mixture flows into overland and subsurface
drainage runoff. In addition, sediments, which come from the bare,
unvegetated
[[Page 48302]]
soil, join the polluted runoff and flow into rivers and streams. The
increased surface and drainages waters lead to higher stream flows
which erode streambanks and riverbanks, increasing turbidity and
decreasing streambed stability, all of which negatively impact green
floaters.
Water Quality Degradation
In addition to impacts to water quality from sedimentation, water
quality can be degraded due to contamination or changes in temperature.
Chemical contaminants are widespread and are a major reason for the
current declining status of freshwater mussel species nationwide
(Augspurger et al. 2007, p. 2025). Chemical contamination of waterways
can greatly impact aquatic organisms, and freshwater mussels appear to
be more sensitive to some of these chemical contaminants than other
test organisms. As sedentary benthic feeders, mussels are exposed to
toxic pollutants that enter aquatic environments through direct
discharges and stormwater runoff. Contaminants can enter waterways
through both point and nonpoint sources, including spills, industrial
discharges, municipal effluents, agricultural runoff, and atmospheric
deposition from precipitation. These sources contribute excess
nutrients, organic compounds, heavy metals, pesticides, and a wide
variety of newly emerging contaminants (e.g., antibiotics and hormones
from wastewater treatment facilities) to the aquatic environment.
Green floaters are negatively affected by low levels of dissolved
oxygen. Dissolved oxygen levels become reduced when nutrients in the
water column increase, causing eutrophication and algal blooms. Both
natural and anthropogenic sources of organic matter can increase
nutrient levels in waterways, but most nutrient pollution is the result
of ongoing and large-scale discharges of nitrogen from anthropogenic
sources, such as fertilizers and livestock waste. Depletion of
dissolved oxygen affects the chemistry and increases the
bioavailability of some contaminants. Dissolved oxygen may have the
greatest impact on juvenile mussels, which are more sensitive to low
levels than adults (Dimock and Wright 1993, p. 189; Sparks and Strayer
1998, pp. 131-133). When there is low dissolved oxygen, juveniles
exhibit stress behaviors, such as surfacing, gaping, and exposing their
foot and siphons, that expose them to predators (Sparks and Strayer
1998, pp. 132-133).
Freshwater mollusks, including the green floater, are sensitive to
chemical pollutants, including chlorine, ammonia, copper, fungicides,
and herbicide surfactants (Augspurger et al. 2007, pp. 2025-2028).
These chemicals occur in sediments and water and are ingested when
mussels filter and feed on particles (Yeager et al. 1994, p. 217;
Newton et al. 2003, p. 2553). Ammonia occurs naturally in aquatic
systems as a waste product from bacteria. Additional ammonia is
deposited into streams through surface water runoff from sources such
as industrial, municipal, and agricultural wastewater; decomposition of
organic nitrogen; and atmospheric ammonia (Newton 2003, p. 2543; Yao
and Zhang 2019, p. 22139). Ammonia is suspended in the atmosphere and
returns to the ground as either gaseous ammonia or ammonium ions in
precipitation (Air Quality Research Subcommittee 2000, pp. 8-9).
Domestic livestock is the largest global contributor to atmospheric
ammonia and a growing source of atmospheric deposition (Bouwman et al.
1997, p. 561). Excess nitrogen (in the form of nitrates) in waterways
causes plants and algae to flourish and die off, using up dissolved
oxygen sources in the water, depleting sources of oxygen for other
aquatic organisms, causing eutrophication, and increasing the risk of
die offs of fish and aquatic invertebrates (USGS 2022, unpaginated).
Excessive inputs of organic matter can also cause ammonia in waterways
to reach levels that are detrimental to freshwater mussels (Haag 2012,
p. 379). However, the degree of ammonia toxicity varies depending on
temperature and pH conditions, which influence the proportion of
ammonia in its less toxic (ionized ammonium, NH4+) or more
toxic (un-ionized ammonia, NH3) state (Augspurger et al.
2003, pp. 2569-70; Haag 2012, p. 379). When temperature and pH levels
increase, concentrations of the more highly toxic un-ionized ammonia
also increase and can reach levels that are lethal to the green floater
and other freshwater mussels (Strayer 2020, pers. comm.). High
concentrations of un-ionized ammonia are thought to be a contributing
cause of widespread decline of mussels in the Hudson River (Strayer and
Malcom 2012, p. 1786). When un-ionized ammonia reached concentrations
of 0.2 mg/L, recruitment in wild mussel populations failed (Strayer and
Malcom 2012, p. 1787). Juvenile mussels are highly sensitive to un-
ionized ammonia, and chronic exposure at concentrations of 0.57 mg/L in
25 [deg]C (77 [deg]F) water was lethal to juveniles in the lab
(Augspurger et al. 2003, p. 2572). The Lasmigona genus, of which the
green floater is a member, was the most sensitive of 12 genera tested
for ammonia toxicity of juveniles and adults (Augspurger et al. 2003,
p. 2573).
In addition to ammonia, manganese, nickel, chlorine, and sodium
dodecyl sulfate have also been linked to mussel declines and/or
toxicity (Archambault et al. 2017, entire; Gibson 2015, pp. 90-91;
Gibson et al. 2016, p. 33). Sediments that contain manganese and
ammonia as a result of mining and agriculture can negatively affect
mussel survival and biomass, as observed in the Clinch River and its
tributaries (Archambault et al. 2017, pp. 403-405). Manganese and
nickel generally enter waterways in the wastewater from various
industries, including alloy, glass, and battery manufacturing; via
atmospheric deposition as a result of the combustion of fossil fuels;
and in the runoff from agriculture and mining operations (Rollin 2011,
pp. 618-619). Long-term exposure to ammonia and manganese could reduce
immunity and fecundity in mussels (Archambault et al. 2017, p. 405).
Sodium dodecyl sulfate, a surfactant found in household detergents and
herbicides, can be lethal to some mussels after acute exposure (Gibson
et al. 2016, p. 30).
State and Federal regulatory mechanisms (e.g., the Clean Water Act
(33 U.S.C. 1251 et seq.)) have helped to reduce the negative effects of
point source discharges since the 1970s. However, while new water
quality criteria are being developed that consider more sensitive
aquatic species, most criteria currently do not have any limits
associated with them. On August 22, 2013, the U.S. Environmental
Protection Agency (EPA) published in the Federal Register (78 FR 52192)
national recommended ambient water quality criteria for the protection
of aquatic life from the effects of ammonia in fresh water. These
criteria incorporate the latest scientific knowledge on the toxicity of
ammonia to freshwater aquatic species, including freshwater mollusks.
So far, few States have adopted the new criteria, which are
considerably more stringent than previous criteria. Nickel and chlorine
have been shown to be toxic to juvenile mussels at levels below the
EPA's current water quality criteria (Gibson 2015, pp. 90-91). Water
quality criteria for other compounds that are harmful to mussels, such
as sodium dodecyl sulfate, do not currently exist (Gibson et al. 2016,
p. 33).
Increased water temperature caused by loss of riparian trees,
impoundments, climate change, stormwater, wastewater effluents, and low
flows during drought
[[Page 48303]]
periods can exacerbate low dissolved oxygen levels and negatively
affect juvenile and adult green floaters. Higher water temperatures
increase metabolic processes in freshwater mussels and can outstrip
energy reserves if they remain above the natural thermal tolerance of a
mussel for extended periods of time. Because ammonia toxicity in
freshwater environments increases as temperature and pH increase
(Newton 2003, p. 2543), temperature increases may exacerbate existing
pollution, compounding the threats to green floater growth and
survival.
Salt, which enters waterways from road runoff and industrial
discharges, can be toxic to freshwater mussels, and concentrations
observed in streams and rivers have resulted in death of glochidia in
laboratory settings (Gillis 2011, pp. 1704-1707). The largest chloride
spikes happen in the winter (Kaushal et al. 2005, pp. 13518-13519),
when road salt washes into waterways, keeping chloride levels elevated
in months when green floaters release glochidia.
Discharges of high salinity wastewater (called brine), a waste
product from oil and gas drilling operations, into streams can also
adversely affect freshwater mussels. In Pennsylvania, mussel abundance
and diversity were found to be lower downstream of a brine treatment
facility (Patnode et al. 2015, p. 59). In northern Appalachia, natural
gas operations have negatively affected groundwater and surface water
quality through wastewater disposal and increased sedimentation (Vidic
et al. 2013, p. 1235009-6; Olmstead et al. 2013, p. 4966), likely
impacting mussels in the region.
Organic contaminants such as polycyclic aromatic hydrocarbons
(PAHs) and polychlorinated biphenyls (PCBs) are toxic to humans and
organisms and can bioaccumulate in plants and animals (Newton and Cope
2007, entire; Maryland DNR 2020, unpaginated). These toxins contaminate
water via petroleum spills and discharges, industrial and municipal
wastewater, and atmospheric deposition (e.g., coal plants,
incinerators) (Albers 2003, p. 346). Natural sources of PAHs are forest
and grassland fires, oil seeps, volcanoes, plants, fungi, and bacteria.
Anthropogenic sources are petroleum, electric power generation, burning
of waste, home heating oil, coke (a fuel derived from coal), carbon,
coal tar, asphalt, and internal combustion engines (Albers 2003, p.
345). Oil and gas that drip from automobiles onto pavement eventually
enter waterways, especially in urban environments. Where roads cross
over streams, PAHs are found in significantly higher concentrations
than in upstream reaches (Archambault et al. 2018, p. 470). Cumulative
concentrations of PAHs in streams can cause adverse effects to mussels,
including reduced immune system function and reduced reproduction
(Archambault et al. 2018, p. 474).
In use between approximately 1929 until 1978, PCBs are long-lasting
toxic compounds that have significantly degraded major waterbodies
throughout the range of the green floater. Despite having been banned,
PCBs have accumulated and persist in sediment, affecting aquatic life
(including mussels) to this day (Jahn 2020, pers. comm.). For example,
up to 1.3 million pounds of PCBs were discharged into the Hudson River
between the 1940s and 1970s (USEPA 2016, entire). The area is now a
Federal Superfund remediation site, and cleanup activities, which began
in 2009, include dredging of the riverbed. Because PCBs exist in the
sediment, they are released into the water and continue to persist in
the environment.
Alteration of Water Flows
Mussels typically experience low flow and high flow periods and are
adapted to deal with seasonal variability. However, extreme drought or
flooding can adversely affect mussel populations that are already
stressed (Hastie et al. 2001, p. 114; Golladay et al. 2004, p. 504) and
can eliminate appropriate habitats. Green floaters may be able to
survive extreme low or high flow events if the duration is short (in
the case of stream drying), but populations that experience these
events regularly or for extended durations may be at risk.
Very low water levels can be caused by severe drought or water use.
During low water flow periods, mussel mortality is primarily caused by
dehydration, thermal stress, and exposure to predation (Golladay et al.
2004, p. 504; Pandolfo et al. 2010, p. 965; Galbraith et al. 2015, pp.
49-50). Water withdrawals are associated with public and private water
uses, sewage treatment, and power generation (e.g., dams), and may be
exacerbated by climate change (Neff et al. 2000, p. 207). Rapid
dewatering can lead to increased stress and mortality, especially in
more sensitive mussel species (Galbraith et al. 2015, p. 50), and
prevent dispersal. While green floaters can survive short periods of
low flows, persistent low flows can cause them to experience oxygen
deprivation and increased water temperatures, ultimately stranding them
in place if conditions do not improve or they are unable to relocate.
If deeper water is unavailable, they may bury themselves for long
periods of time, which can cause mortality, stress, and reduced
reproduction and recruitment in the population.
High flows can be caused by extreme precipitation (i.e., snowmelt
or rainfall) events or regulated dam releases. These events cause water
levels to rise, increasing flow velocities which can substantially
change, destabilize, or destroy mussel habitat. High flow velocities
can completely change the course of the stream, scour streambeds, erode
stream banks, and fill interstitial spaces with sediment. Where a
channel is no longer connected to floodplains, peak flows are higher
and faster, which can degrade or eliminate green floater habitat
(Clayton 2020, pers. comm.).
High flows may also result in dislodgement or displacement of
mussels. Flooding can bury mussels in silt, crush them with large rocks
moved by the current, or dislodge and relocate them to downstream areas
that may or may not provide suitable habitat (Hastie et al. 2001, pp.
113-114).
Barriers, such as improperly installed or maintained culverts, and
impoundments associated with dams (reservoirs), reduce the diversity
and abundance of mussels by altering habitat both upstream and
downstream (Bogan 1993, p. 605; Neves et al. 1997, p. 63). Culverts and
dams can inundate upstream shallow-water habitats, increasing sediment
deposition behind the barrier. The excess sediment can smother green
floaters by filling the interstitial spaces where they occur, thereby
depriving them of oxygen and nutrients. Besides sedimentation, the
increase in depth can degrade mussel habitat in a few ways. For
instance, in large reservoirs, deep water is very cold and often devoid
of oxygen and necessary nutrients. Smaller reservoirs often accumulate
excess nutrients, and hence lower dissolved oxygen, and have higher
water temperatures than adjacent stream reaches, all of which can
stress mussel populations.
Dams and other barriers also tend to reduce the water available to
mussel populations downstream. In addition, the frequency, duration,
timing, and location of water releases from dams can affect the
suitability of downstream habitats for green floaters. Sudden, high-
volume releases can increase scour in some places by washing away
sediment, then smother other areas by depositing sediment, filling
interstitial spaces, and burying the sandy and gravelly habitats that
mussels prefer. Large fluctuations in flow regimes from dam releases
can also cause seasonal dissolved oxygen depletion, lead to significant
variation in water temperatures, and change the
[[Page 48304]]
species of fish present in the stream, all of which can lead to
unsuitable conditions and negatively impact green floaters. The
instability of sediment from scour, flushing, and deposition of eroded
bank material can result in juvenile mussels failing to settle and stay
in interstitial spaces (Hastie et al. 2001, p. 114).
Nevertheless, there are cases of populations of other mussel
species thriving in stable conditions downstream of some dams,
especially small, low head dams (Gangloff 2013, p. 476 and references
therein; Bowers-Altman 2020, pers. comm.). Smaller dams have fewer
adverse effects because they do not tend to act as complete barriers
for water flow. Small dams and their impoundments can benefit mussel
habitat by filtering and lowering nutrient loads, oxygenating streams
during low-water periods, and stabilizing stream beds (Gangloff 2013,
pp. 478-479). Impoundments can also benefit the habitat by retaining
fine sediments and associated toxins, inhibiting the spread of invasive
species, and slowing or weakening water flows during flood events
(Fairchild and Velinsky 2006, p. 328; Jackson and Pringle 2010,
entire). Although dams and impoundments are considered to have an
overall negative impact across the range of the green floater, altered
or reduced hydrologic connectivity can be preferable to natural
connectivity regimes in highly developed landscapes.
Loss and Fragmentation of Habitat
Habitat fragmentation isolates mussel populations, which
contributes to their risk of extirpation from stochastic events (Haag
2012, pp. 336-338). Streams are naturally dynamic, frequently creating,
destroying, or shifting areas of quality habitat over a particular
timeframe. However, human-caused factors can lead to permanent
fragmentation of suitable habitat. For instance, barriers (e.g., dams,
improperly installed or maintained culverts with poor fish passage) can
disrupt the connectivity of green floater habitat and isolate mussel
populations by preventing host fish from moving upstream or downstream.
Dams have caused genetic isolation in river systems for fish and could
have the same effect on mussel populations. The alteration in fish
populations can be a threat to the survival of mussels and their
overall reproductive success over time (Haag 2009, pp. 117-118).
Fragmentation has other causes, too. Pollution or other habitat
degradation at specific points can completely separate stream reaches
from one another (Fagan 2002, p. 3246). Similarly, drought conditions
can temporarily fragment habitat by reducing or eliminating flows and
preventing movement of fish hosts carrying glochidia. Where mussel
populations are small, habitat fragmentation can cause local
extirpation because populations cannot be reestablished by colonization
from other areas. Connectivity between mussel beds or occupied habitats
is thus particularly important where reaches of suitable habitat are
created and destroyed frequently.
Invasive Species
Several invasive species, including zebra and quagga mussels
(Dreissena spp.), Asian clams (Corbicula fluminea), invasive crayfish
species (especially the rusty crayfish (Faxonius rusticus)), and
various species of bass, catfish, and carp are present in the green
floater's range and are likely to prey upon or compete with green
floater and alter the green floater's habitat (Strayer 2020, pers.
comm). Although the extent of the effects of these invasive species on
the green floater are unknown, their influence on the green floater is
likely to be detrimental and is expected to increase in the future.
Populations of these species and others are expanding their ranges and
becoming established in more watersheds inhabited by green floaters
over time. When invasive species are introduced to natural systems,
they may have many advantages over native species, such as the ability
to adapt to varying environments and a high tolerance of conditions
that allows them to thrive outside of their native range. There may not
be natural predators adapted to control the invasive species; thus,
they have the potential to live longer and reproduce more often,
rapidly increasing their populations and range. Native species may
become an easy food source for invasive species, and the invasive
species can carry diseases that could potentially spread to native
species. Some invasive species can drastically alter aquatic habitats
by affecting flow dynamics and can contaminate streams by dying in mass
mortality events that change the amount of dissolved oxygen and ammonia
in the water.
Effects of Climate Change
There are a multitude of ongoing and anticipated changes in the
environment resulting from climate change. Likely impacts of these
changes on aquatic systems that could affect green floaters include
increases in water temperatures, changes in seasonal precipitation, and
changes in extreme precipitation events. Sedentary freshwater mussels
have limited refugia from disturbances such as droughts and floods, and
since their physiological processes are constrained by water
temperature, increases in water temperature caused by climate change
can further stress vulnerable populations and lead to shifts in mussel
community structure (Galbraith et al. 2010, p. 1176). Extreme events
have become more common as the climate changes, and both floods and
droughts can degrade habitat and affect water quality parameters, like
dissolved oxygen (see ``Alteration of Water Flows,'' above). Low water
flows (e.g., following a prolonged summer drought) can expose mussels
to intense opportunistic predation (Wicklow et al. 2017, pp. 45, 47,
55, 137). All of these predicted impacts of climate change are already
occurring in the range of the green floater, and they are expected to
worsen over time (Poff et al. 2002, pp. ii-v), and human alteration of
channels and flow regimes may limit the ability of green floater and
host fish species to adapt and relocate.
Inherent Factors
Green floaters exhibit several inherent traits that likely
influence population viability, including hermaphroditism, direct
development of juvenile mussels in the marsupia (i.e., brood chamber in
the outer gills), and low fecundity compared to some other mussel
species. When habitat conditions are favorable, their abilities to
develop glochidia without host fish and to self-fertilize allow green
floaters to persist in small streams with small populations and few
fish, which positively impacts the species' viability (Haag 2012, pp.
150, 191). However, low fecundity rates limit the ability of
populations to quickly rebound after stochastic events. In addition,
hermaphroditism can lead to lower genetic diversity, and reliance on
juvenile development without a host fish can lead to a diminished
distribution.
Green floaters are frequently found in low numbers within their
occupied habitats, with some found in mussel beds along with other
mussel species and some found individually. Smaller population size
puts sites at greater risk of extirpation from demographic or
environmental stochasticity (e.g., periods of poor reproductive success
or periods of severe flooding or drought) or genetic drift. The
smallest populations of green floaters also face greater threats from
anthropogenic changes and management activities that affect habitat. In
addition, smaller populations may have reduced genetic diversity and
[[Page 48305]]
fitness and thus are more susceptible to environmental changes.
Conservation Efforts and Regulatory Mechanisms
There are several regulatory mechanisms that protect the green
floater or its habitat. The green floater is State-listed as endangered
or threatened in 8 States (Maryland, New Jersey, New York, North
Carolina, Pennsylvania, Tennessee, Virginia, and West Virginia) of the
10 States where it historically occurred. In these eight States, the
green floater receives some level of protection due to the State
listing, though this varies by State. The green floater has been
identified on the lists of Northeast and Southeast Regional Species of
Greatest Conservation Need, which enables States in those regions to
prioritize research and conservation of the species through State
wildlife action plans.
Green floaters may be afforded some protection by the Clean Water
Act's (CWA) dredge or fill permitting framework. CWA section 404
established a program to regulate the discharge of dredged and fill
material into waters of the United States. Permits to fill wetlands or
streams are issued by the U.S. Army Corps of Engineers, and mitigation
is required to offset impacts above minimal levels. Such mitigation
could include preservation or restoration of stream reaches inhabited
by the green floater. CWA section 401 requires that an applicant for a
Federal dredge or fill permit under section 404 obtain a certification
that any discharges from the facility will not violate water-quality
standards, including some established by States. Current State water
quality standards are designed to be protective of aquatic organisms;
however, freshwater mollusks may be more susceptible to the effects of
some pollutants than organisms for which the CWA standards were
developed. In addition, several State laws require setbacks or buffers
for development in or near aquatic systems but allow variances/waivers
for those restrictions. Accordingly, both Federal and State laws and
regulations afford some protection to water quality in the green
floater's habitat; however, because these laws do not prohibit
development, and because it is not known whether existing water quality
standards are adequate to protect the green floater, the impacts caused
and protections afforded by the regulatory framework are not precisely
known.
Several States are taking additional actions to improve habitat for
freshwater mussels, including green floaters. For example, the West
Virginia Department of Natural Resources has created a West Virginia
Conservation Strategy (2019) and works with partners to implement
watershed protection, stream protection, the restoration and
maintenance of natural flow regimes, and the reduction of pollutants
(e.g., road salt, industrial and agricultural effluents, and sewage) to
improve aquatic habitat for mussels. In a bridge project on the
Rappahannock River, for instance, the Virginia Department of Wildlife
Resources collected and relocated a total of 30 green floaters. Agency
staff subsequently documented recruitment of green floaters at the
relocation site in the Rappahannock River (Watson 2020, pers. comm.).
A variety of agencies and organizations (e.g., the Service, the
U.S. Department of Agriculture's Natural Resources Conservation
Service, The Nature Conservancy, Trout Unlimited, and American Rivers)
fund and implement projects to remove barriers to fish passage, plant
and maintain sufficient riparian buffers, and improve water quality by
capturing and treating wastewater and sediment before they enter rivers
and streams. These efforts have the effect of improving habitat for
freshwater mussels, among other aquatic species. For instance, Federal
and State agencies (Delaware, the District of Columbia, Maryland,
Pennsylvania, New York, Virginia, and West Virginia), local
governments, nonprofit organizations, and academic institutions have
worked together since 1983 to implement the Chesapeake Bay Watershed
Agreement, with the goal of reducing pollution (in particular, nutrient
pollution), restoring wetland and other aquatic habitats, and promoting
environmentally friendly land-use practices in the Chesapeake Bay
watershed. In 2017, a system was put in place to monitor progress and
document adaptive management strategies. These efforts have
demonstrated continued improvement of the habitat over time, which has
likely benefited green floater populations in the area.
Several captive breeding efforts have been conducted to determine
the feasibility of propagating green floaters. In 2017 and 2018, the
White Sulphur Springs National Fish Hatchery grew over 80,000 juvenile
green floaters in West Virginia. The Harrison Lake National Fish
Hatchery in Richmond has successfully propagated and released juvenile
green floaters into Virginia rivers and streams. These efforts have the
potential to restore populations of green floater in the future;
however, they are currently limited in scope, and long-term population
increases in the wild have yet to be documented.
Summary
Our analysis of the factors influencing the green floater revealed
multiple threats to the current and future viability of the species:
habitat loss or fragmentation; changes in water flows; degraded water
quality; and impacts of climate change. Factors like low fecundity that
are inherent to the species contribute to the likelihood of populations
becoming extirpated, especially when populations consist of just a few
individuals. Secondary factors that may pose a threat are the impacts
that invasive species may have on the green floater. Other potential
factors such as disease and predation were also considered but the
extent of these issues and their effects on green floater populations
are unknown. There are conservation programs and water quality
standards that may benefit freshwater mussels but few that target the
green floater specifically.
Many of the above-summarized risk factors may act synergistically
or additively on the green floater. The combined impact of multiple
stressors is likely more harmful than a single stressor acting alone.
For the green floater, the inherent factor of having low fecundity is
likely to work in conjunction with each of the other stressors to limit
the species' ability to recover from catastrophes (e.g., severe floods,
droughts) or to expand the population when conditions are favorable.
For a full explanation of the impact of stressors on the viability of
the species, see chapter 4 of the SSA report (Service 2021, pp. 36-57).
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have
analyzed the cumulative effects of identified threats and conservation
actions on the species. To assess the current and future condition of
the species, we evaluate the effects of all the relevant factors that
may be influencing the species, including threats and conservation
efforts. Because the SSA framework considers not just the presence of
the factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative-effects analysis.
Current Condition
To evaluate the current condition of the green floater, we
considered the resiliency of the known population, the redundancy of
populations or analysis
[[Page 48306]]
units, and the ecological or genetic representation within the species
across its range. We assessed the resiliency of the 179 analysis units
by evaluating the number of live green floaters reported per year and
trend, the length of occupied stream segments, and habitat quality that
were established based on evidence from documented studies, available
unpublished information, and expert opinion (see Service 2021, appendix
C). Metrics were evaluated in sequential order. Abundance and trend
data from surveys were considered the most accurate indicators of
current condition and the occupied habitat and habitat quality metrics
were only assessed if abundance and trend data were lacking. Then
current condition categories of high, medium, low, presumed extirpated,
and historical/unknown were assigned to the analysis units. Condition
categories were assigned as high, medium, or low resiliency in places
where one or more live individuals were found in a geographic area
since 1999. High resiliency indicates that green floaters are abundant
(more than 100 individuals) in the analysis unit and that the
population appears to be stable or increasing. For analysis units that
meet the requirements for high resiliency, the amount of occupied
habitat and habitat quality are not considered. Medium resiliency
indicates either that green floaters are common (10 to 100 individuals)
in the analysis unit and the population is stable or increasing, or
that green floaters are abundant in the analysis unit and the
population is decreasing. Medium resiliency also indicates that
occupied steams are greater or equal to 1 km (0.62 mi) in length. Low
resiliency indicates that green floaters are rare (fewer than 10
individuals) and that the likelihood of the population withstanding a
stochastic event is low. Low resiliency also indicates that occupied
steams are less than 1 km (0.62 mi) in length or observations are
highly fragmented, and that the habitat is considered by experts to be
less suitable for green floaters. Presumed extirpated was assigned to
geographic areas where green floaters have not been found recently
(1999 to 2019), and multiple surveys have been conducted and local
experts do not expect to find them there in the future. Historical/
unknown was assigned to geographic areas in which green floaters have
not been found recently (1999 to 2019), but sufficient surveys have not
been conducted to declare the analysis unit as having the condition
``presumed extirpated.''
The results of our analysis show that across the range of the green
floater, 16 percent of analysis units are designated as having medium
(13 percent) or high (3 percent) resiliency. The condition of the other
84 percent of analysis units is low (36 percent), presumed extirpated
(14 percent), or historical/unknown (34 percent). In many of the
analysis units where the green floater's condition is designated as
medium or high, distribution is not continuous and small groups of
green floaters are found in pockets of habitat. It is common to find
fewer than 10 live individuals at a location in a survey year, and in
many analysis units, few green floaters are found over long stretches
of river. For example, in several analysis units in New York (including
the Cohocton and Unadilla Rivers), green floaters were found in very
low numbers dispersed over 20 to 30 miles of suitable habitat. In
addition, there is one analysis unit in West Virginia (Knapp Creek) in
which green floaters were found in 2014 in high numbers but, due to
habitat alterations, were not found the subsequent year. In these
unique cases, information provided by local experts helped determine
the appropriate condition category.
Green floaters have not been found in approximately half (47
percent) of the analysis units since before 1999. However, many of
these analysis units were categorized as historical/unknown because not
enough surveys have been conducted to determine with high confidence
that the species no longer occurs. Of the 179 analysis units, 60 are
considered historical/unknown. Using present land use (e.g., landscape
attributes and water quality) and climate projections, we modeled the
probabilities of the historical/unknown units being in each category
(high, medium, low, or presumed extirpated). The results suggest that
almost all of the analysis units designated as historical/unknown are
likely in low condition, with a small subset of eight analysis units
having a high likelihood of being presumed extirpated. The analysis
indicates that green floaters currently occupy the majority (53 to 82
percent) of analysis units in their historical range (see full results
in table 1).
Table 1--Summary of the Current Condition of the Resiliency of Green
Floater Analysis Units, Including Modeled Results for Analysis Units in
the Historical/Unknown Category
------------------------------------------------------------------------
Number of analysis units
------------------------------------------
Presumed
High Medium Low extirpated
------------------------------------------------------------------------
Current condition of high, 6 24 64 25
medium, low, and presumed
extirpated analysis units...
Modeled condition of * 1 * 1 51 8
historical/unknown analysis
units.......................
------------------------------------------
Totals................... 7 25 115 33
------------------------------------------------------------------------
* One analysis unit (South Branch Potomac, West Virginia) was predicted
to have lower risk of being in the presumed extirpated or low
categories. Therefore, the unit is likely in medium or high condition,
but the model was not designed to predict one over the other.
The green floater must be able to respond to physical (e.g.,
climate conditions, habitat conditions or structure across large areas)
and biological changes (e.g., novel diseases, pathogens, predators) in
its environment into the future. The species' adaptive capacity is
shown through its multiple reproductive strategies (i.e., direct
development of glochidia and use of host fish) and ability to occur
over a large geographical range. The green floater occurs in both sides
of the Eastern Continental Divide in the Atlantic Slope and Mississippi
River drainages, a rare distribution for mussels, where it endures a
wide array of climatic conditions (e.g., temperatures) and elevational
gradients (e.g., 200 to 900 meters (650 to 3,000 feet) above sea level
in West Virginia). We assume that there is little connectivity between
populations separated by the Continental Divide now and there is
significant genetic information indicating the species does not exist
as a single continuous population as well. A zone of discontinuity
exists suggesting individuals in the northern part of the
[[Page 48307]]
range are evolving separately from those in the southern parts (King et
al. 1999, pp. S69-73, S76).
We considered the green floater's reproductive strategies as well
as its broad historical geographic range to determine the breadth of
the species' representation and adaptive capacity in five regions,
which we refer to as representation units (Great Lakes, Mid-Atlantic,
South Atlantic, Mississippi, and Gulf). The boundaries of these units
are based on the major watersheds and locations of known genetic
differences among green floater populations. The genetic differences
that exist among populations north and south of the Potomac River
indicate that populations in the Mid-Atlantic and South Atlantic
representation units may be adapted to local environmental conditions
(e.g., temperature).
As discussed in the paragraphs above, the majority of the analysis
units considered in the resiliency analysis are categorized as low or
presumed extirpated, and these are scattered throughout four
representation units (Great Lakes, Mid-Atlantic, South Atlantic, and
Mississippi). The green floater is likely extirpated entirely from the
Gulf representation unit. Analysis units designated as medium and high
are unevenly distributed across the representation units: 17 are found
in the Mid-Atlantic, 9 are found in the South Atlantic, 4 are found in
the Mississippi, and none are found in the Great Lakes representation
unit.
We considered the green floater's current redundancy by assessing
the number of and distribution of healthy populations across the
species' range. Thirty of the 179 analysis units (16 percent) were
found to be sufficiently resilient (in medium or high condition). Green
floater populations in six of these analysis units (designated as high
condition) are thought to be capable of expanding their range if
suitable adjacent habitat is available. Should a large-scale
catastrophic event occur, the species would be best able to recover
without human intervention in the Mid-Atlantic, South Atlantic, and
Mississippi representation units.
Future Condition Projections
To assess the future condition of the green floater, we projected
changes in land use and climate to model future conditions for each
analysis unit to year 2060. We first modeled the probability that an
analysis unit would be classified in each condition category based on
historical land use and climate patterns. These probabilities produced
by the present condition model represent the species' current (or
baseline) risk profile. We then modeled future condition for each
analysis unit out to year 2060 and incorporated a range of plausible
scenarios for each parameter, including land use projections under four
emission scenarios (A1B, A2, B1, and B2), and climate projections under
12 climate scenarios derived from six global climate models (bcc-csm1-
1-m, BNU-ESM, CanESM2, GFDL-ESM2G, GFDL-ESM2M, inmcm4) and two
representative concentration pathways (RCP 4.5 and 8.5) (see Service
2021, Appendix D). The presentation of the results focused on the
probability that an analysis unit would be classified as either
presumed extirpated or low condition, combining the two categories
discussed in the current condition analysis. Presumed extirpated and
low were grouped together in the results to accurately represent the
uncertainty of the model for each category.
The variables most likely to have negative effects on green floater
condition were the percentage of developed land, the patch density of
developed land (i.e., proportional cover of development and its spatial
pattern), and mean runoff, which likely reflect deteriorating habitat
quality from increased erosion, decreased substrate stability, and poor
water quality.
The results of the present condition model indicated that all
analysis units (179 total), except 4 in West Virginia and North
Carolina, have a mean probability greater than 50 percent of being
classified as presumed extirpated or low resiliency based on
surrounding land use. Sixty-four of the 94 analysis units with
confirmed occurrence are currently classified as having low resiliency,
and the remaining 30 appear to be at high risk of becoming so, based on
land use patterns. Most analysis units (97 of 179) are located within
the Mid-Atlantic representative unit, which is the central region that
has the greatest future risk. According to the future condition model,
2 of the 179 analysis units (1 percent) are projected to be in high
condition in 2060, 4 analysis units (2 percent) are projected to be in
medium condition, and 173 analysis units (97 percent) are projected to
be in presumed extirpated or low condition. The future risk of an
analysis unit being classified as presumed extirpated or low condition
at 2060 was generally similar to baseline risk throughout the range;
however, variation tended to be wider for most analysis units due to
the added uncertainty across multiple future scenarios. The major
rangewide trends indicate there is a high risk that future populations
will have low resiliency in the central portion of the range and,
according to the future condition model, a projected increase in risk
in the remaining southern portion. Most populations have already been
extirpated from regions where there is projected increase in
development (the metro areas of Washington, District of Columbia;
Philadelphia, Pennsylvania; New York, New York; and Albany, New York).
The major exceptions are analysis units in the southern portion of the
range surrounding Greensboro, North Carolina; Raleigh-Durham, North
Carolina; and Lynchburg, Virginia. The risk of extirpation (presumed
extirpated) is projected to increase 20 to 30 percent in populations in
these metro areas (James, Dan, Eno, Neuse, and Tar River watersheds) by
2060. This suggests that increased risk in the southern portion of the
range could have large impacts on species-level resilience and
representation.
In summary, there are very few locations where the green floater is
expected to continue to be healthy and sufficiently resilient into the
future. By the year 2060, 97 percent of the known locations are likely
to have low resiliency or will be extirpated. We anticipate a continued
declining status of the green floater due to ongoing and increasing
threats primarily related to increases in developed land use. Due to
the biology and current distribution of the species, it is unlikely
that green floaters will be able to disperse and shift their range in
response to predicted habitat changes or novel threats in most
watersheds.
Determination of Green Floater'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.
[[Page 48308]]
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, our analysis indicates that the most important risk factor
affecting the green floater's current and future status and trends is
the destruction and modification of its habitat (Factor A). The primary
drivers of the status of the species to the present have been excessive
sedimentation, water quality degradation, alteration of water flows,
loss and fragmentation of habitat, invasive species, and the effects of
climate change (Factor A). Land-disturbing activities associated with
development (e.g., residential/commercial, energy, and transportation
development) have contributed to soil erosion and excessive
sedimentation in many areas of the green floater's range. Development
and an increase in impervious surfaces have created conditions in which
heavy rain events cause higher stream flows, which have eroded
streambanks and riverbanks, increased turbidity, and decreased
streambed stability at numerous sites. These conditions have also
caused sediment and pollutants from a wide variety of anthropogenic
sources (e.g., mining, agriculture, wastewater, industrial discharge,
oil and gas drilling operations) to wash into rivers and streams. Many
of these stressors have directly killed green floaters while others
have reduced the fitness of individuals or reduced fecundity.
We considered whether the green floater is presently in danger of
extinction and determined that, despite the stressors acting upon the
species, proposing endangered status is not appropriate. Green floaters
currently occupy the majority (53 to 82 percent) of analysis units in
their historical range. They are currently found in seven States,
primarily occurring in the Atlantic Slope. Individuals have recently
been found in New York, Pennsylvania, Maryland, West Virginia,
Virginia, North Carolina, and Tennessee, although the range has
contracted, and the species occurs as disjunct populations in rivers
and streams in these States. Green floaters have been observed recently
(since 1999) in 94 of the 179 analysis units and are likely to occur in
another 52 units for which the status was modeled based on current land
use patterns. Populations in 30 of the observed locations (32 percent)
are currently healthy and resilient to stochastic events. Populations
in six of the observed locations (6 percent) are likely capable of
expanding their range if suitable adjacent habitat is available. These
moderately to highly resilient populations are scattered across the
Mid-Atlantic, South Atlantic, and Mississippi regions, an area covering
both sides of the Eastern Continental Divide in the Atlantic Slope and
Mississippi River drainages. Given the number and distribution of
sufficiently resilient populations, the green floater is likely to
persist at multiple locations should a large-scale catastrophic event
occur, and it is unlikely that a single catastrophic event would affect
the entire species across its large range.
The species' current representation (adaptive capacity) is evident
through its use of two reproductive strategies (i.e., direct
development of glochidia and use of host fish) and continued
persistence over a large geographical range where the climatic and
habitat conditions vary widely. While threats are currently acting on
the species and many of those threats are expected to continue into the
future (see below), we did not find that the green floater is currently
in danger of extinction throughout all of its range. With 30 moderately
or highly resilient populations in three physiographic regions, the
current condition of the species provides for enough resiliency,
redundancy, and representation such that it is not currently at risk of
extinction.
While the green floater is not currently in danger of extinction,
under the Act we must determine whether the species is likely to become
in danger of extinction within the foreseeable future throughout all of
its range (i.e., whether the species warrants listing as threatened).
In the foreseeable future, we anticipate the status of the green
floater to continue to decline due to ongoing and increasing threats
primarily related to increases in developed land use (Factor A). By the
year 2060, 173 (97 percent) of green floater analysis units have a mean
probability greater than 50 percent of being in low condition or
extirpated, and only 6 analysis units (3 percent) are expected to be
moderately or highly resilient. Green floater populations in the Mid-
Atlantic and South Atlantic regions that are currently the most highly
resilient, especially those near growing metropolitan areas in North
Carolina and Virginia, are expected to experience the greatest change.
Loss of green floaters from these regions could impact the species'
resilience and representation by severely decreasing its distribution
in the central and southern parts of the range.
Concurrent with the growing threat of loss and degradation of
habitat caused by development, climate change (Factor A) is expected to
further exacerbate the degradation of green floater habitat through
increased water temperatures, changes and shifts in seasonal patterns
of precipitation and runoff, and extreme weather events such as flood
or droughts. These changes will make the habitat less hospitable to the
species in the future by disrupting fundamental ecological processes
upon which the species relies to meet basic needs such as food and
oxygen. The effects of climate change on the environment are expected
to disrupt and limit green floater reproduction as well. Because of
biological factors inherent to the species' life history, the green
floater has likely always occurred in smaller populations compared to
other mussel species. However, in conjunction with the climate-related
stressors such as floods and droughts, small population size puts the
species at high risk of becoming extirpated from sites where the
habitat is in poor condition, such as those conditions expected with
increased development. The cumulative effect of these threats will be
continued decreases in the green floater's resiliency, redundancy, and
representation, which will negatively impact the species' viability
into the future. Thus, after assessing the best available information,
we conclude that the green floater is not currently in danger of
extinction but is likely to become in danger of extinction within the
foreseeable future 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. The court in Center for Biological Diversity v. Everson, 435
F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the provision of the
Final Policy on Interpretation of the Phrase ``Significant Portion of
Its Range'' in the Endangered Species Act's Definitions of ``Endangered
Species'' and ``Threatened Species'' (hereafter ``Final Policy''; 79 FR
37578, July 1, 2014) that provided if the Service determines that a
species is threatened throughout all of its range, the Service will not
analyze whether the species is endangered in a significant portion of
its range.
Therefore, we proceed to evaluating whether the species is
endangered in a significant portion of its range--that is, whether
there is any portion of the species' range for which both (1) the
portion is significant; and (2) the species
[[Page 48309]]
is in danger of extinction in that portion. Depending on the case, it
might be more efficient for us to address the ``significance'' question
or the ``status'' question first. We can choose to address either
question first. Regardless of which question we address first, if we
reach a negative answer with respect to the first question that we
address, we do not need to evaluate the other question for that portion
of the species' range.
Following the court's holding in Everson, we now consider whether
there are any significant portions of the species' range where the
species is in danger of extinction now (i.e., endangered). In
undertaking this analysis for the green floater, we choose to address
the status question first--we consider information pertaining to the
geographic distribution of both the species and the threats that the
species faces to identify any portions of the range where the species
may be endangered.
We evaluated the range of the green floater to determine if the
species is in danger of extinction now in any portion of its range. The
range of a species can theoretically be divided into portions in an
infinite number of ways. We focused our analysis on portions of the
species' range that may meet the definition of an endangered species.
For the green floater, we considered whether the threats or their
effects on the species are greater in any biologically meaningful
portion of the species' range. We examined the following threats:
excessive sedimentation, water quality degradation, alteration of water
flows, the loss and fragmentation of habitat, invasive species, climate
change, and factors inherent to the species, including cumulative
effects.
We identified one portion of the species' range that warranted
further consideration as a potentially significant portion of the
range. We identified the Great Lakes representation unit as a portion
of the range for further analysis because no populations with moderate
or high resiliency are located there. We analyzed whether the Great
Lakes representation unit might be a biologically meaningful portion of
the species' range where threats are impacting individuals differently
from how they are affecting the species elsewhere in its range.
Overall, we found that the loss and degradation of suitable habitats
caused by the threats is pervasive across the green floater's range and
we did not identify any threats that were concentrated in any of the
five representation units analyzed or other portions of the range,
including the Great Lakes. However, although we did not identify any
particular threats that are concentrated in the Great Lakes
representation unit, all six analysis units in that area have low
resiliency. It is possible that the threats affecting the Great Lakes
region could be having a disproportionate impact in that area compared
to the rest of the species' range. Therefore, the species' response to
those threats may be causing the species in that portion of the range
to have a different biological status than its biological status
rangewide.
Because we concluded that the biological status of the green
floater in the Great Lakes representation unit may differ from its
biological status rangewide, we next evaluated whether or not this area
is significant. Of the representation units that are currently occupied
by green floaters, the Great Lakes unit is the smallest, covering the
smallest land area and containing only 6 percent of the analysis units
with confirmed occupancy rangewide. Although all representation units
provide some contribution to the species' resiliency, representation,
and redundancy, the Great Lakes representation unit encompasses only a
small portion of the total range, the habitat there is not high quality
relative to the other portions of the range, and the unit does not
constitute high or unique value habitat for the species. Therefore, we
concluded that the Great Lakes representation unit is not significant
in the context of our ``significant portion of the range'' analysis.
The Gulf representation unit, which is part of the green floater's
larger historical range, has no resilient populations, but because it
is completely extirpated, we cannot consider it as part of this
analysis to be a significant portion of the range.
While there may be some variation in the intensity of threats in
the five representation units, we found that the loss and degradation
of suitable habitats caused by the threats is pervasive across the
species' range. Consequently, no portion of the species' range provides
a basis for determining that the species is in danger of extinction in
a significant portion of its range, and we determine that the species
is likely to become in danger of extinction within the foreseeable
future throughout all of its range. This does not conflict with the
courts' holdings in Desert Survivors v. U.S. Department of the
Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. Cal. 2018) and Center for
Biological Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz.
2017) because, in reaching this conclusion, we did not need to consider
whether any portions are significant, and, therefore, we did not apply
the aspects of the Final Policy, including the definition of
``significant'' that those court decisions held to be invalid.
Determination of Status
Our review of the best available scientific and commercial
information indicates that the green floater meets the Act's definition
of a threatened species. Therefore, we propose to list the green
floater as a threatened species in accordance with sections 3(20) and
4(a)(1) of the Act.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition as a listed
species, planning and implementation of recovery actions, requirements
for Federal protection, and prohibitions against certain practices.
Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies,
including the Service, and the prohibitions against certain activities
are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The goal of this process is to restore listed
species to a point where they are secure, self-sustaining, and
functioning components of their ecosystems.
The recovery planning process begins with development of a recovery
outline made available to the public soon after a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions while a recovery plan is being developed.
Recovery teams (composed of species experts, Federal and State
agencies, nongovernmental organizations, and stakeholders) may be
established to develop and implement recovery plans. The recovery
planning process involves the identification of actions that are
necessary to halt and reverse the species' decline by addressing the
threats to its survival and recovery. The recovery plan identifies
[[Page 48310]]
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Revisions of the plan may
be done to address continuing or new threats to the species, as new
substantive information becomes available. The recovery outline, draft
recovery plan, final recovery plan, and any revisions will be available
on our website as they are completed (https://www.fws.gov/program/endangered-species), or from our New York 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 Alabama, Georgia,
Maryland, New Jersey, New York, North Carolina, Pennsylvania,
Tennessee, Virginia, and West Virginia would be eligible for Federal
funds to implement management actions that promote the protection or
recovery of the green floater. Information on our grant programs that
are available to aid species recovery can be found at: https://www.fws.gov/service/financial-assistance.
Although the green floater 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 green floater 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. Fish and Wildlife Service, U.S. Forest
Service, and National Park Service, as well as actions on State,
Tribal, local, or private lands that require a Federal permit (such as
a permit from the U.S. Army Corps of Engineers under section 404 of the
Clean Water Act 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.
Examples of Federal agency actions that may require consultation for
the green floater could include replacing and repairing bridges and
culverts, road construction projects, and managing vegetation near
streams. Federal agencies should coordinate with the local Service
Field Office (see FOR FURTHER INFORMATION CONTACT, above) with any
specific questions on section 7 consultation and conference
requirements.
It the policy of the Service, as published in the Federal Register
on July 1, 1994 (59 FR 34272), to identify to the extent known at the
time a species is listed, specific activities that will not be
considered likely to result in violation of section 9 of the Act. To
the extent possible, activities that will be considered likely to
result in violation will also be identified in as specific a manner as
possible. The intent of this policy is to increase public awareness of
the effect of a proposed listing on proposed and ongoing activities
within the range of the species proposed for listing. Although most of
the prohibitions in section 9 of the Act apply to endangered species,
sections 9(a)(1)(G) and 9(a)(2)(E) of the Act prohibit the violation of
any regulation under section 4(d) pertaining to any threatened species
of fish or wildlife, or threatened species of plant, respectively.
Section 4(d) of the Act directs the Secretary to promulgate protective
regulations that are necessary and advisable for the conservation of
threatened species. As a result, we interpret our policy to mean that,
when we list a species as a threatened species, to the extent possible,
we identify activities that will or will not be considered likely to
result in violation of the protective regulations under section 4(d)
for that species.
At this time, we are unable to identify specific activities that
will or will not be considered likely to result in violation of section
9 of the Act beyond what is already clear from the descriptions of
prohibitions and exceptions established by protective regulation under
section 4(d) of the Act.
[[Page 48311]]
Questions regarding whether specific activities would constitute
violation of section 9 of the Act should be directed to the New York
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
II. Proposed Rule Issued Under Section 4(d) of the Act
Background
Section 4(d) of the Act contains two sentences. The first sentence
states that the Secretary shall issue such regulations as she deems
necessary and advisable to provide for the conservation of species
listed as threatened species. The U.S. Supreme Court has noted that
statutory language similar to the language in section 4(d) of the Act
authorizing the Secretary to take action that she ``deems necessary and
advisable'' affords a large degree of deference to the agency (see
Webster v. Doe, 486 U.S. 592, 600 (1988)). Conservation is defined in
the Act to mean the use of all methods and procedures which are
necessary to bring any endangered species or threatened species to the
point at which the measures provided pursuant to the Act are no longer
necessary. Additionally, the second sentence of section 4(d) of the Act
states that the Secretary may by regulation prohibit with respect to
any threatened species any act prohibited under section 9(a)(1), in the
case of fish or wildlife, or section 9(a)(2), in the case of plants.
Thus, the combination of the two sentences of section 4(d) provides the
Secretary with wide latitude of discretion to select and promulgate
appropriate regulations tailored to the specific conservation needs of
the threatened species. The second sentence grants particularly broad
discretion to the Service when adopting one or more of the prohibitions
under section 9.
The courts have recognized the extent of the Secretary's discretion
under this standard to develop rules that are appropriate for the
conservation of a species. For example, courts have upheld, as a valid
exercise of agency authority, rules developed under section 4(d) that
included limited prohibitions against takings (see Alsea Valley
Alliance v. Lautenbacher, 2007 WL 2344927 (D. Or. 2007); Washington
Environmental Council v. National Marine Fisheries Service, 2002 WL
511479 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do
not address all of the threats a species faces (see State of Louisiana
v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative
history when the Act was initially enacted, ``once an animal is on the
threatened list, the Secretary has an almost infinite number of options
available to [her] with regard to the permitted activities for those
species. [She] may, for example, permit taking, but not importation of
such species, or [she] may choose to forbid both taking and importation
but allow the transportation of such species'' (H.R. Rep. No. 412, 93rd
Cong., 1st Sess. 1973).
The provisions of this proposed 4(d) rule would promote
conservation of the green floater by encouraging management of the
habitat in ways that meet both stream management considerations and the
conservation needs of the green floater. The provisions of this
proposed rule are one of many tools that we would use to promote the
conservation of the green floater. This proposed 4(d) rule would apply
only if and when we make final the listing of the green floater as a
threatened species.
As mentioned above in Available Conservation Measures, 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, even
before the listing of any species or the designation of its critical
habitat is finalized, section 7(a)(4) of the Act requires Federal
agencies to confer with the Service on any agency action that 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.
These requirements are the same for a threatened species with a
species-specific 4(d) rule. For example, as with an endangered species,
if a Federal agency determines that an action is ``not likely to
adversely affect'' a threatened species, it will require the Service's
written concurrence (50 CFR 402.13(c)). Similarly, if a Federal agency
determinates that an action is ``likely to adversely affect'' a
threatened species, the action will require formal consultation with
the Service and the formulation of a biological opinion (50 CFR
402.14(a)).
Provisions of the Proposed 4(d) Rule
Exercising the Secretary's authority under section 4(d) of the Act,
we have developed a proposed rule that is designed to address the green
floater's conservation needs. As discussed above in Summary of
Biological Status and Threats, we have concluded that the green floater
is likely to become in danger of extinction within the foreseeable
future primarily due to habitat degradation caused by development and
climate change. Section 4(d) requires the Secretary to issue such
regulations as she deems necessary and advisable to provide for the
conservation of each threatened species and authorizes the Secretary to
include among those protective regulations any of the prohibitions that
section 9(a)(1) of the Act prescribes for endangered species. We find
that, if finalized, the protections, prohibitions, and exceptions in
this proposed rule as a whole satisfy the requirement in section 4(d)
of the Act to issue regulations deemed necessary and advisable to
provide for the conservation of the green floater.
The protective regulations we are proposing for green floater
incorporate prohibitions from the Act's section 9(a)(1) to address the
threats to the species. Section 9(a)(1) prohibits the following
activities for endangered wildlife: importing or exporting; take;
possession and other acts with unlawfully taken specimens; delivering,
receiving, carrying, transporting, or shipping in interstate or foreign
commerce in the course of commercial activity; or selling or offering
for sale in interstate or foreign commerce. This protective regulation
includes all of these prohibitions because the green floater is at risk
of extinction within the foreseeable future and putting these
prohibitions in place will help prevent further declines, preserve the
species' remaining populations, slow its rate of decline, and decrease
synergistic, negative effects from other ongoing or future threats.
In particular, this proposed 4(d) rule would provide for the
conservation of the green floater by prohibiting the following
activities, unless they fall within specific exceptions or are
otherwise authorized or permitted: importing or exporting; take;
possession and other acts with unlawfully taken specimens; delivering,
receiving, carrying, transporting, or shipping in interstate or foreign
commerce in the course of commercial activity; or selling or offering
for sale in interstate or foreign commerce.
Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct. Some of these provisions have been further defined in
regulations at 50 CFR 17.3. Take can result knowingly or otherwise, by
direct and indirect impacts, intentionally or incidentally.
[[Page 48312]]
Regulating take would help preserve the species' remaining populations,
slow their rate of decline, and decrease synergistic, negative effects
from other ongoing or future threats. Therefore, we propose to prohibit
take of the green floater, except for take resulting from those actions
and activities specifically excepted by the 4(d) rule.
Exceptions to the prohibition on take would include all of the
general exceptions to the prohibition against take of endangered
wildlife, as set forth in 50 CFR 17.21 and certain other specific
activities that we propose for exception, as described below.
The proposed 4(d) rule would also provide for the conservation of
the species by allowing exceptions that incentivize conservation
actions or that, while they may have some minimal level of take of the
green floater, are not expected to rise to the level that would have a
negative impact (i.e., would have only de minimis impacts) on the
species' conservation. The proposed exceptions to these prohibitions
include streambank restoration projects and bridge and culvert
replacement or removal projects (described below) that are expected to
have negligible impacts to the green floater and its habitat.
A major threat to the green floater is the degradation of stream
habitat, particularly the erosion of banks, which leads to excessive
sedimentation and poor water quality that can bury green floaters or
deprive them of oxygen and nutrients. Stream bank restoration projects
that stabilize and vegetate bare or incised stream banks help to reduce
bank erosion and concomitant instream sedimentation and improve habitat
conditions for the species. Streambank projects that use vegetation and
bioengineering techniques (e.g., instream structures to redirect flows)
rather than hardscapes (e.g., rock revetments and riprap) to stabilize
the habitat create more suitable conditions for green floaters.
Vegetated banks contribute to cooler water temperatures and provide
habitat for other wildlife. When streambanks are stable, the streams
are more resilient to damage caused by catastrophic events related to
climate change like heavy precipitation and floods.
Bridge and culvert replacement or removal projects can benefit the
green floater by restoring water flow to stream segments that have
become disconnected from the larger watershed or improving fish passage
or both. In places where bridges and culverts have collapsed, become
blocked, or in some other way prevent the flow of water, green floater
glochidia are not able to disperse to other suitable habitat, and
reproduction and gene flow become limited. Water flows that are too
slow to hold adequate oxygen can cause green floaters to become
stressed or die. Before conducting instream activities in places where
green floaters may occur, surveys are required to determine if they are
present. Survey plans must be submitted to and approved by the local
Service field office before conducting surveys. All surveys must be
conducted by a qualified and permitted biologist, as allowed by Section
10(a)(1)(A) of the Act. If green floaters are found, the biologist must
coordinate with their local Service field office regarding salvage and
relocation of individuals to suitable habitat before project
implementation. Should green floaters be relocated, monitoring must be
conducted after project implementation. In most cases where water flows
are very low, we would not expect conditions to support live green
floaters. This step is meant to prevent unintended harm where
individuals have survived and preserve potential adaptive traits to
low-quality habitats.
Despite these prohibitions regarding threatened species, we may
under certain circumstances issue permits to carry out one or more
otherwise prohibited activities, including those described above. The
regulations that govern permits for threatened wildlife state that the
Director may issue a permit authorizing any activity otherwise
prohibited with regard to threatened species. These include permits
issued for the following purposes: for scientific purposes, to enhance
propagation or survival, for economic hardship, for zoological
exhibition, for educational purposes, for incidental taking, or for
special purposes consistent with the purposes of the Act (50 CFR
17.32). The statute also contains certain exemptions from the
prohibitions, which are found in sections 9 and 10 of the Act.
We recognize the special and unique relationship with our State
natural resource agency partners in contributing to conservation of
listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist us in implementing all aspects of the Act. In this
regard, section 6 of the Act provides that we must cooperate to the
maximum extent practicable with the States in carrying out programs
authorized by the Act. Therefore, any qualified employee or agent of a
State conservation agency that is a party to a cooperative agreement
with us in accordance with section 6(c) of the Act, who is designated
by his or her agency for such purposes, would be able to conduct
activities designed to conserve green floater that may result in
otherwise prohibited take without additional authorization.
Nothing in this proposed 4(d) rule would change in any way the
recovery planning provisions of section 4(f) of the Act, the
consultation requirements under section 7 of the Act, or our ability to
enter into partnerships for the management and protection of the green
floater. However, interagency cooperation may be further streamlined
through planned programmatic consultations for the species between us
and other Federal agencies, where appropriate. We ask the public,
particularly State agencies and other interested stakeholders that may
be affected by the proposed 4(d) rule, to provide comments and
suggestions regarding additional guidance and methods that we could
provide or use, respectively, to streamline the implementation of this
proposed 4(d) rule (see Information Requested, above).
III. 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
[[Page 48313]]
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 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 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 and commercial 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 from the SSA report and information developed during the
listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in the 4(d) rule. Federally
funded or permitted projects affecting listed species outside their
designated critical habitat areas may still result in jeopardy findings
in some cases. These protections and conservation tools will continue
to contribute to recovery of the species. Similarly, critical habitat
designations made on the basis of the best available information at the
time of designation will not control the direction and substance of
future recovery plans, habitat conservation plans (HCPs), or other
species conservation planning efforts if new information available at
the time of those planning efforts calls for a different outcome.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and
which may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkaline
soil for
[[Page 48314]]
seed germination, protective cover for migration, or susceptibility to
flooding or fire that maintains necessary early-successional habitat
characteristics. Biological features might include prey species, forage
grasses, specific kinds or ages of trees for roosting or nesting,
symbiotic fungi, or absence of a particular level of nonnative species
consistent with conservation needs of the listed species. The features
may also be combinations of habitat characteristics and may encompass
the relationship between characteristics or the necessary amount of a
characteristic essential to support the life history of the species.
In considering whether features are essential to the conservation
of the species, we may consider an appropriate quality, quantity, and
spatial and temporal arrangement of habitat characteristics in the
context of the life-history needs, condition, and status of the
species. These characteristics include, but are not limited to, space
for individual and population growth and for normal behavior; food,
water, air, light, minerals, or other nutritional or physiological
requirements; cover or shelter; sites for breeding, reproduction, or
rearing (or development) of offspring; and habitats that are protected
from disturbance.
As described above under Summary of Biological Status and Threats,
the green floater occurs in small streams to large rivers with stable
flow regimes and suitable substrates. When they occur in larger streams
and rivers, they are found in quieter pools and eddies, away from
strong currents. Their mobility is limited, and fast flowing currents
or high-water events can cause them to lose their foothold and be
washed downstream.
The primary habitat elements that influence resiliency of the green
floater include water flow, streambed substrate, water quality, water
temperature, and conditions that support their host fish. All life
stages of green floaters require aquatic habitats with stable sand and
gravel substrates, a sufficient amount of clean water with slow to
moderate flow and refugia (i.e., eddies and ponded areas in streams),
and sufficient food resources (i.e., microscopic particulates from
plankton, bacteria, detritus, or dissolved organic matter). Based on
what is known from studying surrogate species, glochidia require
temperatures between 59 and 68 [deg]F (15 and 20 [deg]C) for release,
and juvenile mussels cannot survive temperatures above 86 [deg]F (30
[deg]C). Green floaters have the ability reproduce by directly
metamorphosing glochidia without requiring an intermediate fish host,
but the use of fish hosts is necessary for upstream dispersal of the
species. 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 (Service 2021, pp. 18-35).
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of green floater from studies of the species' habitat,
ecology, and life history as described below. Additional information
can be found in the SSA report (Service 2021, entire; available on
https://www.regulations.gov under Docket No. FWS-R5-ES-2023-0012). We
have determined that the following physical or biological features are
essential to the conservation of green floater:
(1) Flows adequate to maintain both benthic habitats and stream
connectivity, allow glochidia and juveniles to become established in
their habitats, allow the exchange of nutrients and oxygen to mussels,
and maintain food availability and spawning habitat for host fishes.
The characteristics of such flows include a stable, not flashy, flow
regime, with slow to moderate currents to provide refugia during
periods of higher flows.
(2) Suitable sand and gravel substrates and connected instream
habitats characterized by stable stream channels and banks and by
minimal sedimentation and erosion.
(3) Sufficient amount of food resources, including microscopic
particulate matter (plankton, bacteria, detritus, or dissolved organic
matter).
(4) Water and sediment quality necessary to sustain natural
physiological processes for normal behavior, growth, and viability of
all life stages, including, but not limited to, those general to other
mussel species:
Adequate dissolved oxygen;
Low salinity;
Low temperature (generally below 86 [deg]F (30 [deg]C));
Low ammonia (generally below 0.5 parts per million total
ammonia-nitrogen), PAHs, PCBs, and heavy metal concentrations; and
No excessive total suspended solids and other pollutants,
including contaminants of emerging concern.
(5) The presence and abundance of fish hosts necessary for
recruitment of the green floater (including, but not limited to,
mottled sculpin (Cottus bairdii), rock bass (Ambloplites rupestris),
central stoneroller (Campostoma anomalum), blacknose dace (Rhinichthys
atratulus), and margined madtom (Noturus insignis)).
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 green
floater may require special management considerations or protection to
reduce the following threats: (1) land-disturbing activities associated
with development (i.e., residential/commercial, energy, and
transportation development); (2) agriculture and forestry activities
that do not implement best management practices to minimize soil
erosion and increased overland flow and (3) barriers that fragment
streams and rivers (e.g., dams and improperly installed or maintained
culverts); (4) contaminants from point and non-point sources (e.g.,
spills, industrial discharges, municipal effluents, agricultural
runoff, and atmospheric deposition from precipitation); (5) impacts of
climate change; and (6) potential effects of nonnative species.
Special management considerations or protection may be required
within critical habitat areas to address these threats. Management
activities that could ameliorate these threats include, but are not
limited to, protecting and restoring streams and streambank habitats,
including stable sand and gravel substrates; maintaining and restoring
slow to moderate, not flashy, water flows in streams that may support
the species; maintaining and restoring connectivity between streams;
reducing or removing contaminants from waterways and sediments;
coordinating with landowners and local managers to implement best
management practices during agriculture and forestry activities; and
minimizing the likelihood that agriculture or energy development
projects will impact the quality or quantity of suitable habitat.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, we use the best
scientific data available to designate critical habitat. In accordance
with the Act and our implementing regulations at 50 CFR 424.12(b), we
review available information pertaining to the habitat requirements of
the species and identify specific areas within the geographical
[[Page 48315]]
area occupied by the species at the time of listing and any specific
areas outside the geographical area occupied by the species to be
considered for designation as critical habitat. We are not currently
proposing to designate any areas outside the geographical area occupied
by the species because we have not identified any unoccupied areas that
meet the definition of critical habitat, and we have determined that
the occupied areas are sufficient to conserve the species.
We anticipate that recovery will require maintaining and, where
necessary, improving habitat and habitat connectivity to ensure the
long-term viability of the green floater. We have determined that the
areas containing one or more of the essential physical or biological
features and occupied by the green floater are sufficient to maintain
the species' resiliency, redundancy, and representation and to conserve
the species. Therefore, we are not currently proposing to designate any
areas outside the geographical area occupied by the species.
In summary, for areas within the geographic area occupied by the
species at the time of listing, we delineated critical habitat stream
segment boundaries using the following criteria: Evaluate suitability
of streams within the hydrologic units occupied at the time of listing
and delineate those areas that contain some or all of the physical or
biological features necessary to support life-history functions
essential to the conservation of the species. All stream segments
proposed for designation contain one or more of the physical or
biological features and support multiple life-history processes.
From the complete list of occupied watersheds (see Service 2021,
appendix C), which were based on HUC 10 watersheds, we identified a
subset of watersheds that provide the most highly suitable green
floater habitat and present the best opportunities for the species'
recovery. This subset includes all the analysis units classified as
being in medium or high condition according to the SSA report (version
1.0; Service 2021, pp. 61-76). This subset also includes analysis units
classified or modeled as being in low condition that are between or
adjacent to units in medium or high condition. These low condition
areas represent areas where green floaters are expected to be able to
increase in numbers with the protections afforded by the Act,
potentially increasing the future resiliency of the species. We then
also identified analysis units classified or modeled as being in low
condition in the SSA report, but that are disconnected from watersheds
determined to be in better condition, that present opportunities to
increase the species' future resiliency, redundancy, and
representation.
The critical habitat designation does not include all rivers and
streams currently occupied by the species, nor all rivers and streams
known to have been occupied by the species historically. Instead, it
includes only the occupied rivers and streams within the current range
that we determined have the physical or biological features that are
essential to the conservation of these species and meet the definition
of critical habitat. These rivers and streams contain populations most
likely to be self-sustaining over time and populations that will allow
for the maintenance and expansion of the species. Adjacent units and
disconnected units in low condition that are not being proposed as
critical habitat have been omitted because they are located near highly
developed areas or have very low-quality habitat that is unlikely to be
restored to a condition suitable to support a healthy population of
green floaters. Analysis units where green floater occupancy has not
been confirmed since before 1999 have also been omitted because they
are not considered currently occupied. The time period between 1999 and
2019 was selected to represent recent occurrences because this period
covers approximately three generations of green floaters and is notable
for the relative increase in mussel survey effort. We are not
designating any areas outside the areas confirmed occupied by the green
floater during this time period because we determined that these areas
are sufficient to conserve the species.
In the selected analysis units, we identified the coordinates of
the occupied rivers and streams and then refined the length of each
segment by matching the starting and ending points to locations of
known green floater occurrences collected between 1999 and 2019. We
then expanded the area upstream to the next named tributary and
downstream to the next confluence, stream intersection, or barrier. We
assumed that where green floaters have been observed or collected, the
entire stream is occupied upstream to the next named tributary and
downstream to the next confluence, stream intersection, or barrier.
Thus, we have interpreted ``occupied'' in a conservative manner and
have assumed green floaters to be present in all stream segments with
similar conditions that are physically accessible to the ones in which
they have been documented.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
the physical or biological features necessary for green floaters. 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 stream and river
segments 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.
Stream and river segments are proposed for designation based on one
or more of the physical or biological features being present to support
the green floater's life-history processes. All of the segments contain
one or more of the physical or biological features necessary to support
the green floater's particular use of that habitat. Because all of the
proposed segments are currently occupied by the species, they are
likely to contain all of the physical or biological features necessary
to support the species to some degree, but the quality of those
physical or biological features may not be in optimal condition. For
example, a unit may have some sand and gravel substrates but the
suitability of these substrates for green floaters may be improved if
sources of sedimentation and erosion were minimized.
The proposed critical habitat designation is defined by the map or
maps, as modified by any accompanying regulatory text, presented at the
end of this document under Proposed Regulation Promulgation. We include
more detailed information on the boundaries of the critical habitat
designation in the preamble of this document. We will make the
coordinates or plot points or both on which each map is based available
to the public on https://www.regulations.gov at Docket No. FWS-R5-ES-
2023-0012 and on our
[[Page 48316]]
internet site at https://www.fws.gov/office/new-york-ecological-services-field.
Proposed Critical Habitat Designation
We are proposing to designate approximately 2,553 river km (1,586
river mi) in eight units as critical habitat for the green floater. The
critical habitat areas we describe below constitute our current best
assessment of areas that meet the definition of critical habitat for
green floater. The eight areas we propose as critical habitat are the
following watersheds: (1) Southwestern Lake Ontario, (2) Susquehanna,
(3) Potomac, (4) Kanawha, (5) Lower Chesapeake, (6) Chowan-Roanoke, (7)
Neuse-Pamlico, and (8) Upper Tennessee. Table 2 shows the proposed
critical habitat units and subunits and the approximate area of each.
Table 2--Proposed Critical Habitat Units for the Green Floater
[All proposed units are occupied by the species]
------------------------------------------------------------------------
Adjacent riparian
Critical habitat unit land ownership by Approximate river km
type (mi)
------------------------------------------------------------------------
Unit 1: Southwestern Lake
Ontario Watershed (NY):
1. Genesee River........ Private............. 55.6 (34.6)
Unit 2: Susquehanna
Watershed (NY and PA):
2a. Susquehanna River... Public (State)...... 10.3 (6.4)
Private............. 335.5 (208.5)
2b. Fivemile Creek...... Private............. 13.9 (8.7)
2c. Cohocton River...... Public (State, 6.6 (4.1)
Local). 41.1 (25.6)
Private.............
2d. Tioga River......... Public (State)...... 0.6 (0.4)
Private............. 15.1 (9.4)
2e. Chemung River....... Public (State, 11.0 (6.8)
Local). 62.0 (38.5)
Private.............
2f. Catatonk Creek...... Private............. 34.2 (21.2)
2g. Tunkhannock Creek... Private............. 4.5 (2.8)
2h. Tioughnioga River... Public (Local)...... 0.2 (0.1)
Private............. 59.2 (36.8 )
2i. Chenango River...... Public (State)...... 6.3 (3.9)
Private............. 134.7 (83.7)
2j. Unadilla River...... Private............. 93.7 (58.2)
2k. Upper Susquehanna Private............. 99.3 (61.7)
River.
2l. Pine Creek.......... Public (State)...... 39.1 (24.3)
Private............. 76.4 (47.5)
2m. Marsh Creek......... Public (State)...... 1.7 (1.1)
Private............. 2.7 (1.7)
2n. West Branch Private............. 45.8 (28.5)
Susquehanna.
2o. Buffalo Creek....... Public (Local)...... 7.4 (4.6)
Private............. 5.8 (3.5)
2p. Penns Creek......... Public (Local)...... 0.3 (0.2)
Private............. 35.2 (21.9)
Unit 3: Potomac Watershed
(PA, MD, and WV):
3a. Potomac River....... Public (Federal, 52.7 (32.7)
State). 27.6 (17.1)
Private.............
3b. Patterson Creek..... Private............. 22.3 (13.9)
3c. Sideling Hill Creek. Public (State)...... 16.5 (10.3)
Private............. 34.8 (21.6)
3d. Cacapon River....... Private............. 123.0 (76.5)
3e. Licking Creek....... Private............. 6.7 (4.1)
3f. Back Creek.......... Private............. 46.8 (29.1)
Unit 4: Kanawha Watershed
(NC, VA, and WV):
4a. Greenbrier.......... Public (Federal, 258.0 (160.3)
State). 1.7 (1.1)
Private.............
4b. Deer Creek.......... Public (Federal, 17.4 (10.8)
State).
4c. Knapp Creek......... Public (Federal, 30.3 (18.8)
State, Local). 1.9 (1.2)
Private.............
4d. New River........... Public (State)...... 6.5 (4.0)
Private............. 9.0 (5.6)
4e. Little River Private............. 17.9 (11.1)
(Kanawha).
4f. South Fork New River Private............. 146.7 (90.5)
Unit 5: Lower Chesapeake
Watershed (VA):
5a. Tye River........... Public (Federal).... 0.6 (0.4)
Private............. 53.5 (33.2)
5b. Pedlar River........ Private............. 8.6 (5.4)
Unit 6: Chowan-Roanoke
Watershed (NC and VA):
6a. Dan River........... Public (State, 2.5 (1.6)
Local). 218.8 (135.9)
Private.............
6b. South Mayo.......... Public (State)...... 1.8 (1.1)
Private............. 2.8 (1.8)
6c. North Mayo.......... Public (State)...... 2.5 (1.6)
Private............. 3.4 (2.1)
[[Page 48317]]
6d. Mayo River.......... Public (State)...... 15.9 (9.9)
Private............. 9.2 (5.7)
6e. Meherrin River...... Private............. 106.1 (65.9)
Unit 7: Neuse-Pamlico
Watershed (NC):
7a. Neuse River......... Public (State, 16.0 (9.9)
Local). 10.8 (6.7)
Private.............
7b. Eno River........... Public (Federal, 33.1 (20.6)
State, Local). 21.3 (13.2)
Private.............
7c. Flat River.......... Public (Federal, 17.6 (10.9)
State, Local). 13.3 (8.3)
Private.............
7d. Little River (Neuse- Public (State, 7.4 (4.6)
Pamlico). Local). 1.2 (0.8)
Private.............
Unit 8: Upper Tennessee
Watershed (NC):
8. Watauga River........ Private............. 16.0 (9.9)
Total............... .................... 2,552.6 (1,586.1)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
We present brief descriptions of all proposed units, and reasons
why they meet the definition of critical habitat for the green floater,
below. Each of these proposed units and subunits are occupied by the
species and currently support the breeding, feeding, and sheltering
needs for the species.
Unit 1: Southwestern Lake Ontario Watershed
Unit 1 consists of 55.6 stream km (34.6 mi) of the Genesee River in
the Southwestern Lake Ontario watershed in Livingston County, New York,
from New York Route 36 downstream to the river's confluence with White
Creek. It includes the river channel up to the ordinary high water
mark. Riparian lands that border the unit are all (100 percent)
privately owned. This unit contains one or more of the physical or
biological features essential to the species' conservation.
Special management considerations or protection may be required
within Unit 1 to address excess nutrients, sediment, and pollutants
that enter the river as well as recreation and management activities.
Sources of these types of pollution are wastewater, agricultural
runoff, and urban stormwater runoff that could come from the nearby
towns of Avon, Geneseo, and Mount Morris adjacent to the river or towns
located upstream. The Mount Morris Lake and Dam and Genesee River Gorge
are approximately 2.4 km (1.5 mi) upstream of Unit 1. Management
activities, such as debris and sediment removal at the dam and lake, as
well as water releases from the dam, have the potential to impact the
water quality and quantity in Unit 1.
Unit 2: Susquehanna Watershed
Unit 2 consists of 16 subunits of the Susquehanna watershed in New
York (Broome, Chemung, Chenango, Cortland, Delaware, Herkimer, Madison,
Otsego, Steuben, and Tioga Counties) and Pennsylvania (Bradford,
Clinton, Columbia, Dauphin, Lackawanna, Luzerne, Lycoming, Montour,
Northumberland, Perry, Snyder, Tioga, Union, and Wyoming Counties).
Each of the subunits in this unit contain one or more of the physical
or biological features essential to the species' conservation.
Special management considerations or protection may be required
within Unit 2 to address excess nutrients, sediment, and pollutants
that enter the river, construction projects, and conservation
activities. Several major urban areas are encompassed by Unit 2,
including Scranton, Pennsylvania, and Binghamton, New York, in addition
to numerous small towns adjacent to rivers and streams that have the
potential to influence the water quality and quantity in the unit.
Future construction projects to repair or replace bridges, roads,
culverts, and embankments; to remove debris; and to repair or remove
hazard dams have the potential to impact habitat in this unit as well.
In New York, the U.S. Department of Agriculture's Natural Resources
Conservation Service supports several programs designed to restore and
conserve rivers and streams. Future restoration plans include
construction of stream crossings, planting of riparian buffers,
installation of streambank and shoreline protection, channel bed
stabilization, and clearing and snagging woody debris from streams.
During construction, these restoration activities may result in short-
term impacts to water quality but are expected to benefit the green
floater in the long term.
The subunits of Unit 2 overlap with numerous public lands for which
existing protections and management will likely maintain habitat
conditions that support the green floater (water quality, water
quantity/flow, instream substrate, and connectivity) into the future.
In Pennsylvania, these public lands include State-owned forests and
natural areas (e.g., Tioga and Tiadaghton State Forests, Pine Gorge
State Natural Area, Algerine Wild Area) and State Parks (e.g., Colton
Point and L. Harrison State Parks). In New York, public lands include
the Chenango Valley State Park and a series of easements associated
with the Federal Wetlands Reserve Program. Each of these land types
ensure some protection from development and land-disturbing activities.
Activities on Wetlands Reserve Program easements that would affect
vegetation or hydrology, or would alter wildlife patterns, would first
require a compatible use permit, and only activities consistent with
the long-term protection and enhancement of the easement area are
authorized.
Subunit 2a is a total length of 345.8 km (214.9 mi) of the
Susquehanna River in Tioga County, New York, and Columbia, Montour, and
Northumberland Counties, Pennsylvania. This subunit includes the river
channel up to the ordinary high water mark. The upper section of
subunit 2a flows from the entrance of Owego Creek to Harvey's Creek.
The lower section starts at Nescopeck Creek and flows to the confluence
of Fishing Creek. The land adjacent to the Susquehanna River in this
subunit is primarily private (97 percent), although
[[Page 48318]]
some land along the river is owned by the State of Pennsylvania (3
percent).
Subunit 2b consists of a 13.9-km (8.7-mi) segment of Fivemile Creek
in Steuben County, New York. This subunit includes the river channel up
to the ordinary high water mark. It starts at the entrance of an
unnamed tributary and ends at the confluence of Fivemile Creek and the
Cohocton River. Riparian lands that border the subunit are all (100
percent) privately owned.
Subunit 2c consists of a 47.6-km (29.6-mi) segment of the Cohocton
River in Steuben County, New York. This subunit includes the river
channel up to the ordinary high water mark. It starts at the confluence
of Cotton Creek and Tenmile Creek and ends at the confluence of the
Tioga River and Middle Cohocton Creek. The land adjacent to the
Cohocton River in this subunit is primarily private (86 percent),
although some land along the river is owned by the State of New York (6
percent) and local governments (8 percent).
Subunit 2d consists of a 15.7-km (9.7-mi) segment of the Canisteo
and Tioga Rivers in Steuben County, New York. This subunit includes the
river channel up to the ordinary high water mark. It starts at the
confluence of Tuscarora Creek at the Canisteo River and ends at the
confluence of the Tioga River and Chemung River. The land adjacent to
the Canisteo and Tioga Rivers in this subunit is primarily private (96
percent), although some land along the river is owned by the State (4
percent).
Subunit 2e consists of a 73.0-km (45.4-mi) segment of the Chemung
River in Steuben and Chemung Counties, New York, and Bradford County,
Pennsylvania. This subunit includes the river channel up to the
ordinary high water mark. It starts at the confluence of the Tioga
River with the Cohocton River and ends at the confluence of the Chemung
River and the Susquehanna River. The land adjacent to the Tioga River
in this subunit is primarily private (85 percent), although some land
along the river is owned by the State (9 percent) and local governments
(6 percent).
Subunit 2f consists of a 34.2-km (21.2-mi) segment of Catatonk
Creek in Tioga County, New York, and Bradford County, Pennsylvania.
This subunit includes the river channel up to the ordinary high water
mark. It starts at the confluence of Miller Creek and Michigan Creek
and ends at the confluence of Fishing Creek and West Branch Owego
Creek. Riparian lands that border the subunit are all (100 percent)
privately owned.
Subunit 2g consists of a 4.5-km (2.8-mi) segment of Tunkhannock
Creek in Bradford, Wyoming, Lackawanna, and Luzerne Counties,
Pennsylvania. This subunit includes the river channel up to the
ordinary high water mark. It starts at the entrance of Billings Mill
Brook and ends at the confluence of Tunkhannock Creek and the
Susquehanna River. Riparian lands that border the subunit are all (100
percent) privately owned.
Subunit 2h consists of a 59.4-km (36.9-mi) segment of the
Tioughnioga River in Broome and Cortland Counties, New York. This
subunit includes the river channel up to the ordinary high water mark.
It starts at the confluence of the East Branch Tioughnioga and West
Branch Tioughnioga Rivers and ends at the confluence of the Tioughnioga
River and the Chenango River. The land adjacent to the Tioughnioga
River in this subunit is primarily private (nearly 100 percent),
although some land along the river is owned by local governments (less
than 1 percent).
Subunit 2i consists of a 140.9-km (87.6-mi) segment of the Chenango
River in Broome, Chenango, and Madison Counties, New York. This subunit
includes the river channel up to the ordinary high water mark. It
starts in the Sangerfield River downstream of Ninemile Swamp and ends
at the confluence of the Chenango River and the Susquehanna River. The
land adjacent to the Chenango River in this subunit is primarily
private (96 percent), although some land along the river is owned by
the State of New York (4 percent).
Subunit 2j consists of a 93.7-km (58.2-mi) segment of the Unadilla
River in Chenango, Herkimer, and Otsego Counties, New York. This
subunit includes the river channel up to the ordinary high water mark.
It starts at the entrance of North Winfield Creek and ends at the
confluence of the Unadilla River and the Susquehanna River. Riparian
lands that border the subunit are all (100 percent) privately owned.
Subunit 2k consists of a 99.3-km (61.7-mi) segment of the Upper
Susquehanna River in Broome, Chenango, Delaware, and Otsego Counties,
New York, and Susquehanna County, Pennsylvania. This subunit includes
the river channel up to the ordinary high water mark. It starts at the
entrance of Mill Creek and ends at the entrance of Starrucca Creek.
Riparian lands that border the subunit are all (100 percent) privately
owned.
Subunit 2l consists of a 115.5-km (71.8-mi) segment of Pine Creek
in Clinton, Lycoming, and Tioga Counties, Pennsylvania. This subunit
includes the river channel up to the ordinary high water mark. It
starts at the entrance of Phoenix Run and ends at the confluence of
Pine Creek and the Susquehanna River. The land adjacent to Pine Creek
in this subunit is owned by private entities (66 percent) and the State
of Pennsylvania (34 percent).
Subunit 2m consists of a 4.4-km (2.7-mi) segment of Marsh Creek in
Tioga County, New York. This subunit includes the river channel up to
the ordinary high water mark. It starts at the entrance of Asaph Run
and ends at the confluence of Marsh Creek and Pine Creek. The land
adjacent to Marsh Creek in this subunit is owned by private entities
(62 percent) and the State of Pennsylvania (38 percent).
Subunit 2n consists of a 45.8-km (28.5-mi) segment of the West
Branch Susquehanna River in Lycoming, Northumberland, and Union
Counties, Pennsylvania. This subunit includes the river channel up to
the ordinary high water mark. It starts at the entrance of Muncy Creek
and ends at the confluence of the West Branch Susquehanna River and the
Susquehanna River. Riparian lands that border the subunit are all (100
percent) privately owned.
Subunit 2o consists of a 13.2-km (8.2-mi) segment of Buffalo Creek
in Union County, Pennsylvania. This subunit includes the river channel
up to the ordinary high water mark. It starts at the intersection of
Johnson Mill Road and Buffalo Creek and ends at the confluence of
Buffalo Creek and the West Branch Susquehanna River. The last segment
of Buffalo Creek is also known as Mill Race. The land adjacent to
Buffalo Creek in this subunit is owned by local governments (56
percent), nongovernmental organizations (5 percent), and private
entities (39 percent).
Subunit 2p consists of a 35.5-km (22.1-mi) segment of Penns Creek
in Dauphin, Northumberland, Perry, Snyder, and Union Counties,
Pennsylvania. This subunit includes the river channel up to the
ordinary high water mark. It starts at the entrance of an unnamed
tributary near the intersection of Penns Creek Road and Wildwood Road
and ends at the confluence of Penns Creek and the Susquehanna River.
The land adjacent to Penns Creek in this subunit is primarily private
(99 percent), although some land along the creek is owned by local
governments (1 percent).
Unit 3: Potomac Watershed
Unit 3 consists of six subunits of the Potomac watershed in
Pennsylvania (Bedford and Fulton Counties),
[[Page 48319]]
Maryland (Allegany and Washington Counties), and West Virginia
(Berkeley, Hampshire, Hardy, Mineral, and Morgan Counties). Each of the
subunits in this unit contain one or more of the physical or biological
features essential to the species' conservation.
Special management considerations or protection may be required
within Unit 3 to address excess nutrients, sediment, and pollutants
that enter the river, as well as maintenance and construction projects.
Sources of these types of pollution are wastewater, agricultural
runoff, and urban stormwater runoff that come from Cumberland,
Maryland; Martinsburg, West Virginia; and numerous small towns adjacent
to rivers and streams that influence the water quality and quantity in
the unit. The Potomac River is adjacent to the Chesapeake and Ohio
(C&O) Canal National Historical Park, a federally owned property
managed by the National Park Service. In support of a recent project to
stabilize a retaining wall within the banks of the Potomac River,
National Park Service staff surveyed for freshwater mussels and
observed 10 green floaters. Anticipated maintenance projects in the
National Historical Park include dredging of sediment and repairs of
utility lines, walls, and boat ramps along the C&O Canal. Future
construction projects throughout the watershed to repair or remove
hazard dams and canals, dredge sections of the river, install
pipelines, and replace bridges have the potential to impact water
quality and quantity in this unit as well.
The subunits of Unit 3 overlap with public lands for which
protections and management will likely enable habitat conditions that
support the green floater to remain high into the future. In Maryland,
overlapping public lands include State-owned forests and parks (e.g.,
Green Ridge State Forest and Fort Frederick State Park) and the C&O
Canal National Historical Park. Beginning in Pennsylvania and
continuing into Maryland, the forests and streams of Sideling Hill
Creek are maintained as a nature preserve by The Nature Conservancy.
These land types ensure some protection from development and land-
disturbing activities.
Subunit 3a consists of an 80.3-km (49.9-mi) segment of the Potomac
River in Washington County, Maryland, and Berkeley County, West
Virginia. This subunit includes the river channel up to the ordinary
high water mark. It starts at the entrance of the Cacapon River and
ends at the entrance of Downey Branch. The land adjacent to the Potomac
River in this subunit is owned by the Federal (62 percent) and State (4
percent) governments and private entities (34 percent).
Subunit 3b consists of a 22.3-km (13.9-mi) segment of Patterson
Creek in Mineral County, West Virginia. This subunit includes the river
channel up to the ordinary high water mark. It starts at the entrance
of Cabin Run and ends at the confluence of Patterson Creek and the
Potomac River. Riparian lands that border the subunit are all (100
percent) privately owned.
Subunit 3c consists of a 51.3-km (31.9-mi) segment of Sideling Hill
Creek in Allegany County, Maryland, and Bedford and Fulton Counties,
Pennsylvania. This subunit includes the river channel up to the
ordinary high water mark. It starts at the Rice Road crossing of West
Branch Sideling Hill Creek and ends at the confluence of Sideling Hill
Creek and the Potomac River. The land adjacent to Sideling Hill Creek
in this subunit is owned by State governments (32 percent),
nongovernmental organizations (7 percent), and private entities (61
percent).
Subunit 3d consists of a 123.0-km (76.5-mi) segment of the Cacapon
River in Washington County, Maryland; and Hardy, Hampshire, and Morgan
Counties, West Virginia. This subunit includes the river channel up to
the ordinary high water mark. It starts at the entrance of Trout Run
and ends at the confluence of the Cacapon River and the Potomac River.
Riparian lands that border the subunit are all (100 percent) privately
owned.
Subunit 3e consists of a 6.7-km (4.1-mi) segment of Licking Creek
in Washington County, Maryland. This subunit includes the river channel
up to the ordinary high water mark. It starts at the crossing of
Pecktonville Road and ends at the confluence of Licking Creek and the
Potomac River. Riparian lands that border the subunit are all (100
percent) privately owned.
Subunit 3f consists of a 46.8-km (29.1-mi) segment of Back Creek in
Berkeley County, West Virginia. This subunit includes the river channel
up to the ordinary high water mark. It starts at the entrance of Big
Run and ends at the confluence of Back Creek and the Potomac River.
Riparian lands that border the subunit are all (100 percent) privately
owned.
Unit 4: Kanawha Watershed
Unit 4 consists of six subunits of the Kanawha watershed in North
Carolina (Allegany, Ashe, and Watauga Counties), Virginia (Carroll and
Grayson Counties), and West Virginia (Greenbrier, Monroe, Pocahontas,
and Summers Counties). Each of the subunits in this unit contain one or
more of the physical or biological features essential to the species'
conservation.
Special management considerations or protection may be required
within Unit 4 to address excess nutrients, sediment, and pollutants
that enter the river, as well as land-disturbing activities. Sources of
these types of pollution are wastewater, agricultural runoff, and urban
stormwater runoff from the nearby towns of Boone, North Carolina;
Lewisburg, West Virginia; and numerous small towns in the watershed
that influence the water quality and quantity in the unit. Parts of the
Kanawha waterhead are encompassed by the Monongahela National Forest, a
federally owned property managed by the U.S. Forest Service.
Anticipated projects within the National Forest that could impact water
quality and quantity in this unit include vegetation management and
removal, and maintenance of locks and dams.
In addition to the Monongahela National Forest, the subunits of
Unit 4 overlap with numerous other public lands for which protections
and management will help maintain habitat conditions that support the
green floater. In West Virginia, overlapping public lands include
State-owned forests (e.g., Calvin Price and Seneca State Forests),
parks (e.g., Cass Scenic Railroad and Watoga State Parks), and wildlife
management areas (e.g., Rimel, Little River, and Neola Wildlife
Management Areas). In Virginia, overlapping public lands include the
New River Trail State Park. Each of these land types ensures some
protection from development and land-disturbing activities.
Subunit 4a consists of a 259.7-km (161.4-mi) segment of the
Greenbrier River in Greenbrier, Monroe, Pocahontas, and Summers
Counties, West Virginia. This subunit includes the river channel up to
the ordinary high water mark. It starts at the entrance of Cove Run and
ends at the confluence of the Greenbrier River and the New River. The
land adjacent to the Greenbrier River in this subunit is owned by the
Federal (30 percent) and State (69 percent) governments and private
entities (1 percent).
Subunit 4b consists of a 17.4-km (10.8-mi) segment of Deer Creek in
Pocahontas County, West Virginia. This subunit includes the river
channel up to the ordinary high water mark. It starts at the entrance
of Hospital Run and ends at the confluence of Deer Creek and the
Greenbrier River. The land adjacent to Deer Creek in this subunit is
[[Page 48320]]
owned by the Federal (34 percent) and State (66 percent) governments.
Subunit 4c consists of a 32.2-km (20-mi) segment of Knapp Creek in
Pocahontas County, West Virginia. This subunit includes the river
channel up to the ordinary high water mark. It starts at the confluence
of Moore Run and Knapp Creek and ends at the confluence of Knapp Creek
and the Greenbrier River. The land adjacent to Knapp Creek in this
subunit is owned by the Federal (31 percent), State (62 percent), and
local (1 percent) governments and private entities (6 percent).
Subunit 4d consists of a 15.5-km (9.7-mi) segment of the New River
in Carroll and Grayson Counties, Virginia. This subunit includes the
river channel up to the ordinary high water mark. It starts at Sarasota
Lane and ends at the confluence of Chestnut Creek and the New River.
The land adjacent to the New River in this subunit is owned by the
State of Virginia (42 percent) and private entities (58 percent).
Subunit 4e consists of a 17.9-km (11.1-mi) segment of the Little
River in the Kanawha watershed in Alleghany County, North Carolina, and
Grayson County, Virginia. This subunit includes the river channel up to
the ordinary high water mark. It starts at the entrance of Brush Creek
and ends at the confluence of the Little River and the New River.
Riparian lands that border the subunit are all (100 percent) privately
owned.
Subunit 4f consists of a 145.7-km (90.5-mi) segment of the South
Fork New River in Alleghany, Ashe, and Watauga Counties, North
Carolina. This subunit includes the river channel up to the ordinary
high water mark. It starts at the confluence of the East Fork South
Fork New River, Middle Fork South Fork New River, and Winkler Creek and
ends at the confluence of the South Fork New River and North Fork New
River. Riparian lands that border the subunit are all (100 percent)
privately owned.
Unit 5: Lower Chesapeake Watershed
Unit 5 consists of two subunits of the Lower Chesapeake watershed
in Virginia (Amherst, Buckingham, and Nelson Counties). Each of the
subunits in this unit contain one or more of the physical or biological
features essential to the species' conservation.
Special management considerations or protection may be required
within Unit 5 to address excess nutrients, sediment, and pollutants
that enter the river. Sources of these types of pollution are
wastewater, agricultural runoff, and urban stormwater runoff that come
from Lynchburg, Virginia, and numerous small towns adjacent to rivers
and streams that have the potential to influence the water quality and
quantity in the unit.
Unit 5 overlaps with public lands for which protections and
management will help to maintain habitat conditions that support the
green floater. The George Washington and Jefferson National Forest, a
federally owned property managed by the U.S. Forest Service, overlaps
with Subunit 5a.
Subunit 5a consists of a 54.1-km (33.6-mi) segment of the Tye River
in Amherst, Buckingham, and Nelson Counties, Virginia. This subunit
includes the river channel up to the ordinary high water mark. It
starts at the confluence of Coxs Creek and Campbell Creek and ends at
the confluence of the Tye River and the James River. The land adjacent
to the Tye River in this subunit is primarily private (99 percent),
although some land along the river is owned by the Federal government
(1 percent).
Subunit 5b consists of a 8.6-km (5.4-mi) segment of the Pedlar
River in Amherst County, Virginia. This subunit includes the river
channel up to the ordinary high water mark. It starts at the entrance
of Horsley Creek and ends at the confluence of the Pedlar River and
James River. Riparian lands that border the subunit are all (100
percent) privately owned.
Unit 6: Chowan-Roanoke Watershed
Unit 6 consists of five subunits in the Chowan-Roanoke watershed of
North Carolina (Caswell, Rockingham, and Stokes Counties) and Virginia
(Brunswick, Greensville, Halifax, Henry, Patrick, Pittsylvania, and
Southampton Counties). Each of the subunits in this unit contain one or
more of the physical or biological features essential to the species'
conservation.
Special management considerations or protection may be required
within Unit 6 to address excess nutrients, sediment, and pollutants
that enter the river, as well as land-disturbing activities. Sources of
these types of pollution are wastewater, agricultural runoff, and urban
stormwater runoff from the nearby towns Eden, North Carolina; Danville,
Virginia; and numerous small towns adjacent to rivers and streams that
have the potential to influence the water quality and quantity in the
unit. Land-disturbing activities to maintain locks and dams have the
potential to impact water quality and quantity in this unit as well.
The subunits of Unit 6 overlap with public lands for which
protections and management will likely enable habitat conditions that
support the green floater to remain high into the future. State Parks
along the Mayo River exist in both Virginia and North Carolina. In
North Carolina, overlapping public lands include the Hanging Rock State
Park. This designation as a State Park ensures some protection from
development and land-disturbing activities.
Subunit 6a consists of a 221.3-km (137.5-mi) segment of the Dan
River in Caswell, Rockingham, and Stokes Counties, North Carolina, and
Halifax, Henry, Patrick, and Pittsylvania Counties, Virginia. This
subunit includes the river channel up to the ordinary high water mark.
It starts at the entrance of Squall Creek and ends at the entrance of
County Line Creek. The land adjacent to the Dan River in this subunit
is primarily private (98 percent), although some land along the river
is owned by nongovernmental organizations (1 percent) and State and
local governments (1 percent).
Subunit 6b consists of a 4.6-km (2.9-mi) segment of the South Mayo
River in Henry County, Virginia, and Rockingham County, North Carolina.
This subunit includes the river channel up to the ordinary high water
mark. It starts at the entrance of Crooked Creek and ends at the
confluence of the South Mayo River and the Mayo River. The land
adjacent to the South Mayo River in this subunit is owned by State
governments (39 percent) and private entities (61 percent).
Subunit 6c consists of a 5.9-km (3.7-mi) segment of the North Mayo
River in Henry County, Virginia, and Rockingham County, North Carolina.
This subunit includes the river channel up to the ordinary high water
mark. It starts at the entrance of Jumping Branch and ends at the
confluence of the North Mayo River and the Mayo River. The land
adjacent to the North Mayo River in this subunit is owned by State
governments (42 percent) and private entities (58 percent).
Subunit 6d consists of a 25.1-km (15.6-mi) segment of the Mayo
River in Rockingham County, North Carolina. This subunit includes the
river channel up to the ordinary high water mark. It starts at the
confluence of the North Mayo and South Mayo Rivers and ends at the
confluence of the Mayo River and the Dan River. The land adjacent to
the Mayo River in this subunit is owned by the State of North Carolina
(63 percent) and private entities (37 percent).
Subunit 6e consists of a 106.1-km (65.9-mi) segment of the Meherrin
River in Brunswick, Greensville, and Southampton Counties, Virginia.
This subunit includes the river channel up to the ordinary high water
mark. It starts at the entrance of Shining Creek and ends at the
entrance of Fountains Creek.
[[Page 48321]]
Riparian lands that border the subunit are all (100 percent) privately
owned.
Unit 7: Neuse-Pamlico Watershed
Unit 7 consists of four subunits of the Neuse-Pamlico watershed in
North Carolina (Durham, Johnston, Orange, Person, and Wake Counties).
Each of the subunits in this unit contain one or more of the physical
or biological features essential to the species' conservation.
Special management considerations or protection may be required
within Unit 7 to address excess nutrients, sediment, and pollutants
that enter the river, as well as urban development. Several major urban
areas are encompassed by Unit 7, including the Raleigh-Durham metro
area, in addition to numerous small towns adjacent to rivers and
streams that have the potential to influence the water quality and
quantity in the unit. Growth and development in the Raleigh-Durham area
are expected to continue and special management protections may be
required to address potential decreases of forest cover and increases
of impervious surfaces.
The subunits of Unit 7 overlap with numerous public lands for which
protections and management will likely help maintain habitat conditions
that support the green floater. Overlapping public lands include State-
owned properties such as the Falls Lake Recreation Area, Occoneechee
Mountain and Mitchell Mill Natural Areas, Eno River State Park, and Eno
River Diabase Sill Plant Conservation Preserve. Numerous county-owned
properties (e.g., Neuse River Greenway, Lake Michie Recreation Area,
Durham County Parks, and Wake County Parks) overlap in Unit 7 as well.
The Falls Lake Natural Area is part of a larger reservoir that is owned
and managed by a network of partners, including the State and local
governments and the U.S. Army Corps of Engineers. Each of these land
types ensure some protection from development and land-disturbing
activities.
Subunit 7a consists of a 26.8-km (16.6-mi) segment of the Neuse
River in Johnston and Wake Counties, North Carolina. This subunit
includes the river channel up to the ordinary high water mark. It
starts at the entrance of Crabtree Creek and ends near Prestwick Drive.
The land adjacent to the Neuse River in this subunit is owned by local
governments (50 percent), the State of North Carolina (10 percent),
nongovernmental organizations (10 percent), and private entities (30
percent).
Subunit 7b consists of a 54.4-km (33.8-mi) segment of the Eno River
in Durham and Orange Counties, North Carolina. This subunit includes
the river channel up to the ordinary high water mark. It starts at the
entrance of McGowan Creek and ends at Falls Lake. The land adjacent to
the Eno River in this subunit is owned by Federal (3 percent), State
(40 percent), and local (18 percent) governments, nongovernmental
organizations (1 percent), and private entities (38 percent).
Subunit 7c consists of a 30.9-km (19.2-mi) segment of the Flat
River in Durham and Person Counties, North Carolina. This subunit
includes the river channel up to the ordinary high water mark. It
starts at the confluence of the North Flat River and South Flat River
and ends at Falls Lake. The land adjacent to the Flat River in this
subunit is owned by Federal (8 percent), State (18 percent), and local
(31 percent) governments, and private entities (43 percent).
Subunit 7d consists of an 8.6-km (5.4-mi) segment of the Little
River in the Neuse-Pamlico watershed in Wake County, North Carolina.
This subunit includes the river channel up to the ordinary high water
mark. It starts at the confluence with Perry Creek and ends at the
entrance of Big Branch. The land adjacent to the Little River in this
subunit is owned by State (17 percent) and local (69 percent)
governments, nongovernmental organizations (3 percent), and private
entities (11 percent).
Unit 8: Upper Tennessee Watershed
Unit 8 consists of 16.0-km (9.9-mi) of the Watauga River in the
Upper Tennessee Watershed in Watauga County, North Carolina, from the
entrance of Baird Creek to the entrance of Beech Creek. It includes the
river channel up to the ordinary high water mark. Riparian lands that
border the unit are all (100 percent) privately owned. This unit
contains one or more of the physical or biological features essential
to the species' conservation.
Special management considerations or protection may be required
within Unit 8 to address excess nutrients, sediment, and pollutants
that enter the river. Sources of these types of pollution are
wastewater, agricultural runoff, and urban stormwater runoff from
numerous small towns and farms adjacent to rivers and streams.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they authorize, fund, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
We published a final rule revising the definition of destruction or
adverse modification on August 27, 2019 (84 FR 44976). Destruction or
adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat as a whole for the
conservation of a listed species.
Compliance with the requirements of section 7(a)(2) is documented
through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action,
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction,
(3) Are economically and technologically feasible, and
(4) Would, in the Service Director's opinion, avoid the likelihood
of jeopardizing the continued existence of the listed species and/or
avoid the likelihood of destroying or adversely modifying critical
habitat.
Reasonable and prudent alternatives can vary from slight project
[[Page 48322]]
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 set forth requirements for Federal
agencies to reinitiate consultation if any of the following four
conditions occur: (1) the amount or extent of taking specified in the
incidental take statement is exceeded; (2) new information reveals
effects of the action that may affect listed species or critical
habitat in a manner or to an extent not previously considered; (3) the
identified action is subsequently modified in a manner that causes an
effect to the listed species or critical habitat that was not
considered in the biological opinion or written concurrence; or (4) a
new species is listed or critical habitat designated that may be
affected by the identified action. The reinitiation requirement applies
only to actions that remain subject to some discretionary Federal
involvement or control. As provided in 50 CFR 402.16, the requirement
to reinitiate consultations for new species listings or critical
habitat designation does not apply to certain agency actions (e.g.,
land management plans issued by the Bureau of Land Management in
certain circumstances.
Application of the ``Destruction or Adverse Modification'' Standard
The key factor related to the destruction or adverse modification
determination is whether implementation of the proposed Federal action
directly or indirectly alters the designated critical habitat in a way
that appreciably diminishes the value of the critical habitat for the
conservation of the listed species. As discussed above, the role of
critical habitat is to support physical or biological features
essential to the conservation of a listed species and provide for the
conservation of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may violate section
7(a)(2) of the Act by destroying or adversely modifying such habitat,
or that may be affected by such designation.
Activities that we may, during a consultation under section 7(a)(2)
of the Act, consider likely to destroy or adversely modify critical
habitat include, but are not limited to:
(1) Actions that would alter the minimum flow or the existing flow
regime. Such activities could include, but are not limited to,
impoundment, channelization, water diversion, water withdrawal, and
hydropower generation. These activities could eliminate or reduce the
habitat necessary for the growth and reproduction of the green floater
and its fish hosts by decreasing or altering flows to levels that would
adversely affect their ability to complete their life cycles.
(2) Actions that would significantly alter water chemistry or
temperature. Such activities could include, but are not limited to,
release of chemicals (including pesticides, pharmaceuticals, metals,
and salts), biological pollutants, or heated effluents into the surface
water or connected groundwater at a point source or by dispersed
release (non-point source). These activities could alter water
conditions to levels that are beyond the tolerances of the mussel or
its host fish and result in direct or cumulative adverse effects to
these individuals and their life cycles.
(3) Actions that would significantly increase sediment deposition
within the stream channel. Such activities could include, but are not
limited to, excessive sedimentation from livestock grazing, road and
other construction projects, oil and gas exploration and extraction,
channel alteration, timber harvest, off-road vehicle use, and other
watershed and floodplain disturbances. When appropriate best management
practices are not followed, these activities could eliminate or reduce
the habitat necessary for the growth and reproduction of the green
floater and its host fish by increasing the sediment deposition to
levels that would adversely affect their ability to complete their life
cycles.
(4) Actions that would significantly increase the algal community
within the stream channel. Such activities could include, but are not
limited to, release of nutrients into the surface water or connected
groundwater at a point source or by dispersed release (non-point
source). These activities can result in excessive algal growth, which
degrades or reduces habitat for the green floater and its fish hosts,
by generating nutrients during their decay and decreasing dissolved
oxygen levels to levels below the tolerances of the mussel and/or its
fish hosts. Algae can also directly compete with mussel offspring by
covering the sediment, thereby preventing the glochidia from settling
into the sediment.
(5) Actions that would significantly alter channel morphology or
geometry. Such activities could include, but are not limited to,
channelization, impoundment, road and bridge construction, pipeline and
utility maintenance, oil and gas extraction, mining, dredging, and
destruction of riparian vegetation. These activities may lead to
changes in water flows and levels that would degrade or eliminate the
mussel or its fish hosts and/or their habitats. These actions can also
lead to increased sedimentation and degradation in water quality to
levels that are beyond the tolerances of the green floater or its fish
hosts.
(6) Actions that result in the introduction, spread, or
augmentation of nonnative aquatic species in occupied stream segments,
or in stream segments that are hydrologically connected to occupied
stream segments, even if those segments are occasionally intermittent,
or introduction of other species that compete with or prey on the green
floater. Possible actions could include, but are not limited to,
stocking of nonnative fishes, stocking of sport fish, or other related
actions. These activities can introduce parasites or disease for host
fish, and could result in direct predation, or affect the growth,
reproduction, and survival, of green floaters.
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
[[Page 48323]]
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 the National Marine Fisheries Service (NMFS). We also
refer to a 2008 Department of the Interior Solicitor's opinion
entitled, ``The Secretary's Authority to Exclude Areas from a Critical
Habitat Designation under Section 4(b)(2) of the Endangered Species
Act'' (M-37016).
In considering whether to exclude a particular area from the
designation, we identify the benefits of including the area in the
designation, identify the benefits of excluding the area from the
designation, and evaluate whether the benefits of exclusion outweigh
the benefits of inclusion. If the analysis indicates that the benefits
of exclusion outweigh the benefits of inclusion, the Secretary may
exercise discretion to exclude the area only if such exclusion would
not result in the extinction of the species. In making the
determination to exclude a particular area, the statute on its face, as
well as the legislative history, are clear that the Secretary has broad
discretion regarding which factor(s) to use and how much weight to give
to any factor. In our final rules, we explain any decision to exclude
areas, as well as decisions not to exclude, to make clear the rational
basis for our decision. We describe below the process that we use for
taking into consideration each category of impacts and any initial
analyses of the relevant impacts.
Consideration of Economic Impacts
Section 4(b)(2) of the Act and its implementing regulations require
that we consider the economic impact that may result from a designation
of critical habitat. To assess the probable economic impacts of a
designation, we must first evaluate specific land uses or activities
and projects that may occur in the area of the critical habitat. We
then must evaluate the impacts that a specific critical habitat
designation may have on restricting or modifying specific land uses or
activities for the benefit of the species and its habitat within the
areas proposed. We then identify which conservation efforts may be the
result of the species being listed under the Act versus those
attributed solely to the designation of critical habitat for this
particular species. The probable economic impact of a proposed critical
habitat designation is analyzed by comparing scenarios both ``with
critical habitat'' and ``without critical habitat.''
The ``without critical habitat'' scenario represents the baseline
for the analysis, which includes the existing regulatory and socio-
economic burden imposed on landowners, managers, or other resource
users potentially affected by the designation of critical habitat
(e.g., under the Federal listing as well as other Federal, State, and
local regulations). Therefore, the baseline represents the costs of all
efforts attributable to the listing of the species under the Act (i.e.,
conservation of the species and its habitat incurred regardless of
whether critical habitat is designated). The ``with critical habitat''
scenario describes the incremental impacts associated specifically with
the designation of critical habitat for the species. The incremental
conservation efforts and associated impacts would not be expected
without the designation of critical habitat for the species. In other
words, the incremental costs are those attributable solely to the
designation of critical habitat, above and beyond the baseline costs.
These are the costs we use when evaluating the benefits of inclusion
and exclusion of particular areas from the final designation of
critical habitat should we choose to conduct a discretionary 4(b)(2)
exclusion analysis.
Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to
assess the costs and benefits of available regulatory alternatives in
quantitative (to the extent feasible) and qualitative terms. Consistent
with the E.O. regulatory analysis requirements, our effects analysis
under the Act may take into consideration impacts to both directly and
indirectly affected entities, where practicable and reasonable. If
sufficient data are available, we assess to the extent practicable the
probable impacts to both directly and indirectly affected entities.
Section 3(f) of E.O. 12866 identifies four criteria for when a
regulation is considered a ``significant regulatory action,'' and if
any one of these criteria are met, the regulation requires additional
analysis, review, and approval. 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. Therefore, our consideration of
economic impacts uses a screening analysis to assess whether a
designation of critical habitat for the green floater is likely to have
an annual effect on the economy of $200 million or more.
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 green floater (IEc 2022, entire). We began by
conducting a screening analysis of the proposed designation of critical
habitat in order to focus our analysis on the key factors that are
likely to result in incremental economic impacts. The purpose of the
screening analysis is to filter out particular geographic areas of
critical habitat that are already subject to such protections and are,
therefore, unlikely to incur incremental economic impacts. In
particular, the screening analysis considers baseline costs (i.e.,
absent critical habitat designation) and includes any probable
incremental economic impacts where land and water use may already be
subject to conservation plans, land management plans, best management
practices, or regulations that protect the habitat area as a result of
the Federal listing status of the species. Ultimately, the screening
analysis allows us to focus our analysis on evaluating the specific
areas or sectors that may incur probable incremental economic impacts
as a result of the designation. The presence of the listed species in
occupied areas of critical habitat means that any destruction or
adverse modification of those areas is also likely to jeopardize the
continued existence of the species. Therefore, designating occupied
areas as critical habitat typically causes little if any incremental
impacts above and beyond the impacts of listing the species. As a
result, we generally focus the screening analysis on areas of
unoccupied critical habitat (unoccupied units or unoccupied areas
within occupied units). Overall, the screening analysis assesses
whether designation of critical habitat is likely to result in any
additional management or conservation efforts that may incur
incremental economic impacts. This screening analysis combined with the
information contained in our IEM constitute what we consider to be our
draft economic analysis (DEA) of the proposed critical habitat
designation for the green floater; our DEA is summarized in the
narrative below.
As part of our screening analysis, we considered the types of
economic activities that are likely to occur within the areas likely
affected by the critical habitat designation. In our evaluation of the
probable incremental economic impacts that may result from the proposed
designation of critical habitat for the green floater, first we
identified, in the IEM dated June 7, 2022, probable incremental
economic impacts associated with the following categories of
activities: (1) culvert and bridge replacement; (2) pipeline
maintenance;
[[Page 48324]]
(3) bank stabilization; (4) stream crossing; (5) watershed restoration;
(6) road construction and maintenance; (7) pesticide use; (8)
streambank and shoreline protection; (9) channel bed stabilization; and
(10) riparian forest buffer. 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 only affects activities
conducted, funded, permitted, or authorized by Federal agencies. If we
list the species, in areas where the green floater 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 green
floater's critical habitat. Because the designation of critical habitat
for green floater 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 green floater 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 green floater
totals approximately 2,553 km (1,586 mi) of stream in eight units, all
of which are currently occupied by the species. Ownership of riparian
lands adjacent to the proposed units includes 2,007 km (1,247 mi; 79
percent) in private ownership and 546 km (339 mi; 21 percent) in public
(Federal, State, or local government) ownership.
The total incremental costs of critical habitat designation for the
green floater is anticipated to be less than $8.8 million per year. The
costs are reflective of the proposed critical habitat area, the
presence of the species (i.e., already occupied) in these areas, and
the presence of other federally listed species and designated critical
habitats. Since consultation is already required in some of these areas
as a result of the presence of three other aquatic listed species
(i.e., candy darter (Etheostoma osburni), Carolina madtom (Noturus
furiosus), and Neuse River waterdog (Necturus lewisi)) and their
critical habitats and would be required as a result of the listing of
the green floater, the economic costs of the critical habitat
designation would likely be primarily limited to additional
administrative efforts to consider adverse modification for the green
floater in section 7 consultations. In total, 4,198 section 7
consultation actions (approximately 58 formal consultations, 3,100
informal consultations, and 1,040 technical assistance efforts) are
anticipated to occur annually in proposed critical habitat areas.
Critical habitat may also trigger additional regulatory changes. For
example, the designation may cause other Federal, State, or local
permitting or regulatory agencies to expand or change standards or
requirements. Regulatory uncertainty generated by critical habitat may
also have impacts. For example, landowners or buyers may perceive that
the rule would restrict land or water use activities in some way and
therefore value the use of the land less than they would have absent
critical habitat. This is a perception, or stigma, effect of critical
habitat on markets.
We are soliciting data and comments from the public on the DEA
discussed above, as well as on all aspects of this proposed rule and
our required determinations. During the development of a final
designation, we will consider the information presented in the DEA and
any additional information on economic impacts we receive during the
public comment period to determine whether any specific areas should be
excluded from the final critical habitat designation under 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, the Service must still consider impacts on national security,
including homeland security, on those lands or areas not covered by
section 4(a)(3)(B)(i) because section 4(b)(2) requires the Service to
consider those impacts whenever it designates critical habitat.
Accordingly, if DoD, Department of Homeland Security (DHS), or another
Federal agency has requested exclusion based on an assertion of
national-security or homeland-security concerns, or we have otherwise
identified national-security or homeland-security impacts from
designating particular areas as critical habitat, we generally have
reason to consider excluding those areas.
However, we cannot automatically exclude requested areas. When DoD,
DHS, or another Federal agency requests exclusion from critical habitat
on the basis of national-security or homeland-security impacts, we must
conduct an exclusion analysis if the Federal requester provides
information, including a reasonably specific justification of an
incremental impact on national security that would result from the
designation of that specific area as critical habitat. That
justification could include demonstration of probable impacts, such as
impacts to ongoing border-security patrols and surveillance activities,
or a delay in training or facility construction, as a result of
compliance with section 7(a)(2) of the Act. If the agency requesting
the exclusion does not provide us with a reasonably specific
justification, we will contact the agency to recommend that it provide
a specific justification or clarification of its concerns relative to
the probable incremental impact that
[[Page 48325]]
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 green floater
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 HCPs, safe harbor agreements (SHAs), or
candidate conservation agreements with assurances (CCAAs)--or whether
there are non-permitted conservation agreements and partnerships that
may be impaired by designation of, or exclusion from, critical habitat.
In addition, we look at whether Tribal conservation plans or
partnerships, Tribal resources, or government-to-government
relationships of the United States with Tribal entities may be affected
by the designation. We also consider any State, local, social, or other
impacts that might occur because of the designation.
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 green floater 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.
Required Determinations
Clarity of the Rule
We are required by E.O.s 12866 and 12988 and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
Regulatory Planning and Review--Executive Orders 12866, 13563, and
14094
Executive Order 14094 reaffirms the principles of E.O. 12866 and
E.O. 13563 and states that regulatory analysis should facilitate agency
efforts to develop regulations that serve the public interest, advance
statutory objectives, and are consistent with E.O. 12866, E.O. 13563,
and the Presidential Memorandum of January 20, 2021 (Modernizing
Regulatory Review). Regulatory analysis, as practicable and
appropriate, shall recognize distributive impacts and equity, to the
extent permitted by law. E.O. 13563 emphasizes further that regulations
must be based on the best available science and that the rulemaking
process must allow for public participation and an open exchange of
ideas. We have developed this final rule in a manner consistent with
these requirements.
E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides
that the Office of Information and Regulatory Affairs (OIRA) in the
Office of Management and Budget (OMB) will review all significant
rules. OIRA has determined that this rule is not significant.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(i.e., small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include manufacturing and mining concerns with fewer than 500
employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine whether potential
economic impacts to these small entities are significant, we considered
the types of activities that
[[Page 48326]]
might trigger regulatory impacts under this designation as well as
types of project modifications that may result. In general, the term
``significant economic impact'' is meant to apply to a typical small
business firm's business operations.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirement (avoiding destruction and adverse
modification) imposed by critical habitat designation. Consequently, it
is our position that only Federal action agencies would be directly
regulated if we adopt the proposed critical habitat designation. The
RFA does not require evaluation of the potential impacts to entities
not directly regulated. Moreover, Federal agencies are not small
entities. Therefore, because no small entities would be directly
regulated by this rulemaking, the Service certifies that, if made final
as proposed, the proposed critical habitat designation will not have a
significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. For the above reasons and based on currently
available information, we certify that, if made final, the proposed
critical habitat designation would not have a significant economic
impact on a substantial number of small business entities. Therefore,
an initial regulatory flexibility analysis is not required.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 (Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use) requires
agencies to prepare statements of energy effects when undertaking
certain actions. Facilities that provide energy supply, distribution,
or use (e.g., dams, pipelines) occur within some units of the proposed
critical habitat designation and may potentially be affected. We
determined that consultations, technical assistance, and requests for
species lists may be necessary in some instances. However, in our
economic analysis, we did not find that this proposed critical habitat
designation would significantly affect energy supplies, distribution,
or use and will not have an annual effect on the economy of $200
million or more. Therefore, this action is not a significant energy
action, and no statement of energy effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following finding:
(1) This proposed rule would not produce a Federal mandate. In
general, a Federal mandate is a provision in legislation, statute, or
regulation that would impose an enforceable duty upon State, local, or
Tribal governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, nor would
critical habitat shift the costs of the large entitlement programs
listed above onto State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments because it will not produce a Federal
mandate of $200 million or greater in any year, that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The designation of critical habitat imposes no obligations on
State or local governments and, as such, a Small Government Agency Plan
is not required. 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 green floater in a takings implications assessment. The
Act does not authorize the Service to regulate private actions on
private lands or confiscate private property as a result of critical
habitat designation. Designation of critical habitat does not affect
land ownership, or establish any closures, or restrictions on use of or
access to the designated areas. Furthermore, the designation of
critical habitat does not affect landowner actions that do not require
Federal funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that
[[Page 48327]]
would destroy or adversely modify critical habitat. A takings
implications assessment has been completed for the proposed designation
of critical habitat for green floater, 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.
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 and species-specific protective regulations
promulgated concurrently with a decision to list or reclassify a
species as threatened. The courts have upheld this position (e.g.,
Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995) (critical
habitat); Center for Biological Diversity v. U.S. Fish and Wildlife
Service, 2005 WL 2000928 (N.D. Cal. Aug. 19, 2005) (concurrent 4(d)
rule)).
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), E.O. 13175 (Consultation and Coordination
with Indian Tribal Governments), and the Department of the Interior's
manual at 512 DM 2, we readily acknowledge our responsibility to
communicate meaningfully with federally recognized Tribes on a
government-to-government basis. In accordance with Secretaries' 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 green floater, so
no Tribal lands would be affected by the proposed designation.
References Cited
A complete list of references cited in this rulemaking is available
on the internet at https://www.regulations.gov and upon request from
the New York 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 New
York 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, in paragraph (h), amend the List of Endangered and
Threatened Wildlife by adding an entry for ``Floater, green'' in
alphabetical order under CLAMS to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
[[Page 48328]]
(h) * * *
----------------------------------------------------------------------------------------------------------------
Listing citations and
Common name Scientific name Where listed Status applicable rules
----------------------------------------------------------------------------------------------------------------
* * * * * * *
Clams
* * * * * * *
Floater, green.................. Lasmigona Wherever found.... T [Federal Register
subviridis. citation when
published as a final
rule]; 50 CFR
17.45(h); \4d\ 50 CFR
17.95(f).CH
* * * * * * *
----------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.45 by adding a new paragraph (h) to read as follows:
Sec. 17.45 Special rules--snails and clams.
* * * * *
(h) Green floater (Lasmigona subviridis)--(1) Prohibitions. The
following prohibitions that apply to endangered wildlife also apply to
the green floater. Except as provided under paragraph (h)(2) of this
section and Sec. Sec. 17.4 and 17.5, it is unlawful for any person
subject to the jurisdiction of the United States to commit, to attempt
to commit, to solicit another to commit, or cause to be committed, any
of the following acts in regard to this species:
(i) Import or export, as set forth at Sec. 17.21(b) for endangered
wildlife.
(ii) Take, as set forth at Sec. 17.21(c)(1) for endangered
wildlife.
(iii) Possession and other acts with unlawfully taken specimens, as
set forth at Sec. 17.21(d)(1) for endangered wildlife.
(iv) Interstate or foreign commerce in the course of commercial
activity, as set forth at Sec. 17.21(e) for endangered wildlife.
(v) Sale or offer for sale, as set forth at Sec. 17.21(f) for
endangered wildlife.
(2) Exceptions from prohibitions. In regard to this species, you
may:
(i) Conduct activities as authorized by a permit under Sec. 17.32.
(ii) Take, as set forth at Sec. 17.21(c)(2) through (4) for
endangered wildlife.
(iii) Take, as set forth at Sec. 17.31(b).
(iv) Possess and engage in other acts with unlawfully taken
wildlife, as set forth at Sec. 17.21(d)(2) for endangered wildlife.
(v) Take incidental to an otherwise lawful activity caused by:
(A) Stream bank restoration projects that use bioengineering
methods to replace preexisting, bare, eroding stream banks with
vegetated, stable stream banks, thereby reducing bank erosion and
instream sedimentation and improving habitat conditions for the
species. Following these bioengineering methods, stream banks must be
stabilized using native species appropriate for the region (e.g.,
native species live stakes (live, vegetative cuttings inserted or
tamped into the ground in a manner that allows the stake to take root
and grow), native species live fascines (live branch cuttings, usually
willows, bound together into long, cigar-shaped bundles), or native
species brush layering (cuttings or branches of easily rooted tree
species layered between successive lifts of soil fill)). These methods
must not include the sole use of quarried rock (riprap) or the use of
rock baskets (e.g., gabion baskets). Stream bank restoration projects
must also satisfy all Federal, State, and local permitting
requirements.
(B) Bridge or culvert replacement/removal projects that remove
migration barriers (e.g., collapsing, blocked, or perched culverts) or
generally allow for improved connectivity and upstream and downstream
movements of green floaters or their fish hosts while maintaining
normal stream flows, preventing bed and bank erosion, and improving
habitat conditions for the species (using aquatic organism passage
methods). Before starting stream crossing activities, surveys to
determine presence of green floaters must be performed by a qualified
and permitted biologist (defined as a biologist or aquatic resources
manager that has been approved by the Service to locate, identify, and
handle green floaters as allowed by Section 10(a)(1)(A) of the
Endangered Species Act). Before conducting instream activities in
places where green floaters may occur, surveys are required to
determine if they are present. Survey plans must be submitted to and
approved by the local Service field office before conducting surveys.
If green floaters are found, the biologist must coordinate with their
local Service field office regarding salvage and relocation of
individuals to suitable habitat before project implementation. Should
green floaters be relocated, monitoring must be conducted after project
implementation. Bridge or culvert replacement/removal projects must
also satisfy all Federal, State, and local permitting requirements.
0
4. In Sec. 17.95, amend paragraph (f) by adding an entry for ``Green
Floater (Lasmigona subviridis)'' immediately before the entry for
``Carolina Heelsplitter (Lasmigona decorata)'', to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(f) Clams and Snails.
* * * * *
Green Floater (Lasmigona subviridis)
(1) Critical habitat units are depicted on the maps in this entry
for Allegany and Washington Counties, Maryland; Broome, Chemung,
Chenango, Cortland, Delaware, Herkimer, Livingston, Madison, Otsego,
Steuben, and Tioga Counties, New York; Allegany, Ashe, Caswell, Durham,
Johnston, Orange, Person, Rockingham, Stokes, Wake, and Watauga
Counties, North Carolina; Bedford, Bradford, Clinton, Columbia,
Dauphin, Fulton, Lackawanna, Luzerne, Lycoming, Montour,
Northumberland, Perry, Snyder, Susquehanna, Tioga, Union, and Wyoming
Counties, Pennsylvania; Amherst, Brunswick, Buckingham, Carroll,
Grayson, Greensville, Halifax, Henry, Nelson, Patrick, Pittsylvania,
and Southampton Counties, Virginia; and Berkeley, Greenbrier,
Hampshire, Hardy, Mineral, Monroe, Morgan, Pocahontas, and Summers
Counties, West Virginia.
(2) Within these areas, the physical or biological features
essential to the conservation of the green floater consist of the
following components:
(i) Flows adequate to maintain both benthic habitats and stream
connectivity, allow glochidia and juveniles to become established in
their habitats, allow the exchange of nutrients and oxygen to mussels,
and maintain food availability and spawning habitat for host fishes.
The characteristics of
[[Page 48329]]
such flows include a stable, not flashy, flow regime, with slow to
moderate currents to provide refugia during periods of higher flows.
(ii) Suitable sand and gravel substrates and connected instream
habitats characterized by stable stream channels and banks and by
minimal sedimentation and erosion.
(iii) Sufficient amount of food resources, including microscopic
particulate matter (plankton, bacteria, detritus, or dissolved organic
matter).
(iv) Water and sediment quality necessary to sustain natural
physiological processes for normal behavior, growth, and viability of
all life stages, including, but not limited to, those general to other
mussel species:
(A) Adequate dissolved oxygen;
(B) Low salinity;
(C) Low temperature (generally below 86 [deg]F (30 [deg]C));
(D) Low ammonia (generally below 0.5 parts per million total
ammonia-nitrogen), polycyclic aromatic hydrocarbons (PAHs),
polychlorinated biphenyls (PCBs), and heavy metal concentrations; and
(E) No excessive total suspended solids and other pollutants,
including contaminants of emerging concern.
(v) The presence and abundance of fish hosts necessary for
recruitment of the green floater (including, but not limited to,
mottled sculpin (Cottus bairdii), rock bass (Ambloplites rupestris),
central stoneroller (Campostoma anomalum), blacknose dace (Rhinichthys
atratulus), and margined madtom (Noturus insignis)).
(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 by overlaying
Natural Heritage Element Occurrence data and U.S. Geological Survey
hydrologic data for stream reaches. The hydrologic data used in the
critical habitat maps were extracted from the U.S. Environmental
Protection Agency's National Hydrography Dataset Plus Version 2
(NHDPlusV2) 1:100k scale nationwide hydrologic layer (USEPA 2012,
unpaginated) with a projection of NAD83 Geographic. Natural Heritage
program and State mussel database species presence data from Maryland,
New York, North Carolina, Pennsylvania, Virginia, and West Virginia
were used to select specific river and stream segments for inclusion in
the critical habitat layer. The U.S. Major Rivers database is from
ArcGIS Online (last modified February 22, 2018) with a projection of
World Geodetic System (WGS) 1984 Web Mercator Auxiliary Sphere. The
maps in this entry, as modified by any accompanying regulatory text,
establish the boundaries of the critical habitat designation. The
coordinates or plot points or both on which each map is based are
available to the public at the Service's internet site at https://fws.gov/office/new-york-ecological-services-field, at https://www.regulations.gov at Docket No. FWS-R5-ES-2023-0012, and at the field
office responsible for this designation. You may obtain field office
location information by contacting one of the Service regional offices,
the addresses of which are listed at 50 CFR 2.2.
(5) Index map follows:
Figure 1 to Green Floater (Lasmigona subviridis) paragraph (5)
BILLING CODE 4333-15-P
[[Page 48330]]
[GRAPHIC] [TIFF OMITTED] TP26JY23.001
(6) Unit 1: Southwestern Lake Ontario Watershed (Livingston County,
New York).
(i) Unit 1 consists of 55.6 stream kilometers (km) (34.6 stream
miles (mi)) of the Genesee River in Livingston County, New York, from
New York Route 36 downstream to the river's confluence with White
Creek. It includes the river channel up to the ordinary high water
mark.
(ii) Map of Unit 1 follows:
[[Page 48331]]
Figure 2 to Green Floater (Lasmigona subviridis) paragraph (6)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.002
(7) Unit 2: Susquehanna Watershed (Broome, Chemung, Chenango,
Cortland, Delaware, Herkimer, Madison, Otsego, Steuben, and Tioga
Counties, New York; and Bradford, Clinton, Columbia, Dauphin,
Lackawanna, Luzerne, Lycoming, Montour, Northumberland, Perry, Snyder,
Susquehanna, Tioga, Union, and Wyoming Counties, Pennsylvania).
(i) Unit 2 consists of the following 16 subunits:
(A) Subunit 2a is a total length of 345.8 km (214.9 mi) of the
Susquehanna River in Tioga County, New York, and Columbia, Montour, and
Northumberland Counties, Pennsylvania. This subunit includes the
[[Page 48332]]
river channel up to the ordinary high water mark. The upper section of
Subunit 2a flows from the entrance of Owego Creek to Harvey's Creek.
The lower section starts at Nescopeck Creek and flows to the confluence
of Fishing Creek.
(B) Subunit 2b consists of a 13.9-km (8.7-mi) segment of Fivemile
Creek in Steuben County, New York. This subunit includes the river
channel up to the ordinary high water mark. It starts at the entrance
of an unnamed tributary and ends at the confluence of Fivemile Creek
and the Cohocton River.
(C) Subunit 2c consists of a 47.6-km (29.6-mi) segment of the
Cohocton River in Steuben County, New York. This subunit includes the
river channel up to the ordinary high water mark. It starts at the
confluence of Cotton Creek and Tenmile Creek and ends at the confluence
of the Tioga River and Middle Cohocton Creek.
(D) Subunit 2d consists of a 15.7-km (9.7-mi) segment of the
Canisteo and Tioga Rivers in Steuben County, New York. This subunit
includes the river channel up to the ordinary high water mark. It
starts at the confluence of Tuscarora Creek at the Canisteo River and
ends at the confluence of the Tioga River and Chemung River.
(E) Subunit 2e consists of a 73.0-km (45.4-mi) segment of the
Chemung River in Steuben and Chemung Counties, New York, and Bradford
County, Pennsylvania. This subunit includes the river channel up to the
ordinary high water mark. It starts at the confluence of the Tioga
River with the Cohocton River and ends at the confluence of the Chemung
River and the Susquehanna River.
(F) Subunit 2f consists of a 34.2-km (21.2-mi) segment of Catatonk
Creek in Tioga County, New York, and Bradford County, Pennsylvania.
This subunit includes the river channel up to the ordinary high water
mark. It starts at the confluence of Miller Creek and Michigan Creek
and ends at the confluence of Fishing Creek with West Branch Owego
Creek.
(G) Subunit 2g consists of a 4.5-km (2.8-mi) segment of Tunkhannock
Creek in Bradford, Wyoming, Lackawanna, and Luzerne Counties,
Pennsylvania. This subunit includes the river channel up to the
ordinary high water mark. It starts at the entrance of Billings Mill
Brook and ends at the confluence of Tunkhannock Creek and the
Susquehanna River.
(H) Subunit 2h consists of a 59.4-km (36.9-mi) segment of the
Tioughnioga River in Broome and Cortland Counties, New York. This
subunit includes the river channel up to the ordinary high water mark.
It starts at the confluence of the East Branch Tioughnioga and West
Branch Tioughnioga Rivers and ends at the confluence of the Tioughnioga
River and the Chenango River.
(I) Subunit 2i consists of a 140.9-km (87.6-mi) segment of the
Chenango River in Broome, Chenango, and Madison Counties, New York.
This subunit includes the river channel up to the ordinary high water
mark. It starts in the Sangerfield River downstream of Ninemile Swamp
and ends at the confluence of the Chenango River and the Susquehanna
River.
(J) Subunit 2j consists of a 93.7-km (58.2-mi) segment of the
Unadilla River in Chenango, Herkimer, and Otsego Counties, New York.
This subunit includes the river channel up to the ordinary high water
mark. It starts at the entrance of North Winfield Creek and ends at the
confluence of the Unadilla River and the Susquehanna River.
(K) Subunit 2k consists of a 99.3-km (61.7-mi) segment of the Upper
Susquehanna River in Broome, Chenango, Delaware, and Otsego Counties,
New York, and Susquehanna County, Pennsylvania. This subunit includes
the river channel up to the ordinary high water mark. It starts at the
entrance of Mill Creek and ends at the entrance of Starrucca Creek.
(L) Subunit 2l consists of a 115.5-km (71.8-mi) segment of Pine
Creek in Clinton, Lycoming, and Tioga Counties, Pennsylvania. This
subunit includes the river channel up to the ordinary high water mark.
It starts at the entrance of Phoenix Run and ends at the confluence of
Pine Creek and the Susquehanna River.
(M) Subunit 2m consists of a 4.4-km (2.7-mi) segment of Marsh Creek
in Tioga County, New York. This subunit includes the river channel up
to the ordinary high water mark. It starts at the entrance of Asaph Run
and ends at the confluence of Marsh Creek and Pine Creek.
(N) Subunit 2n consists of a 45.8-km (28.5-mi) segment of the West
Branch Susquehanna River in Lycoming, Northumberland, and Union
Counties, Pennsylvania. This subunit includes the river channel up to
the ordinary high water mark. It starts at the entrance of Muncy Creek
and ends at the confluence of the West Branch Susquehanna River and the
Susquehanna River.
(O) Subunit 2o consists of a 13.2-km (8.2-mi) segment of Buffalo
Creek in Union County, Pennsylvania. This subunit includes the river
channel up to the ordinary high water mark. It starts at the
intersection of Johnson Mill Road and Buffalo Creek and ends at the
confluence of Buffalo Creek and the West Branch Susquehanna River. The
last segment of Buffalo Creek is also known as Mill Race.
(P) Subunit 2p consists of a 35.5-km (22.1-mi) segment of Penns
Creek in Dauphin, Northumberland, Perry, Snyder, and Union Counties,
Pennsylvania. This subunit includes the river channel up to the
ordinary high water mark. It starts at the entrance of an unnamed
tributary near the intersection of Penns Creek Road and Wildwood Road
and ends at the confluence of Penns Creek and the Susquehanna River.
(ii) Maps of Unit 2 follow:
[[Page 48333]]
Figure 3 to Green Floater (Lasmigona subviridis) paragraph (7)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.003
[[Page 48334]]
Figure 4 to Green Floater (Lasmigona subviridis) paragraph (7)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.004
[[Page 48335]]
Figure 5 to Green Floater (Lasmigona subviridis) paragraph (7)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.005
[[Page 48336]]
Figure 6 to Green Floater (Lasmigona subviridis) paragraph (7)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.006
[[Page 48337]]
Figure 7 to Green Floater (Lasmigona subviridis) paragraph (7)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.007
[[Page 48338]]
Figure 8 to Green Floater (Lasmigona subviridis) paragraph (7)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.008
(8) Unit 3: Potomac Watershed (Bedford and Fulton Counties,
Pennsylvania; Allegany and Washington Counties, Maryland; and Berkeley,
Hampshire, Hardy, Mineral, and Morgan Counties, West Virginia).
(i) Unit 3 consists of the following six subunits:
(A) Subunit 3a consists of an 80.3-km (49.9-mi) segment of the
Potomac River in Washington County, Maryland, and Berkeley County, West
Virginia. This subunit includes the river channel up to the ordinary
high water mark. It starts at the entrance of the Cacapon River and
ends at the entrance of Downey Branch.
(B) Subunit 3b consists of a 22.3-km (13.9-mi) segment of Patterson
Creek in
[[Page 48339]]
Mineral County, West Virginia. This subunit includes the river channel
up to the ordinary high water mark. It starts at the entrance of Cabin
Run and ends at the confluence of Patterson Creek and the Potomac
River.
(C) Subunit 3c consists of a 51.3-km (31.9-mi) segment of Sideling
Hill Creek in Allegany County, Maryland, and Bedford and Fulton
Counties, Pennsylvania. This subunit includes the river channel up to
the ordinary high water mark. It starts at the Rice Road crossing of
West Branch Sideling Hill Creek and ends at the confluence of Sideling
Hill Creek and the Potomac River.
(D) Subunit 3d consists of a 123.0-km (76.5-mi) segment of the
Cacapon River in Washington County, Maryland, and in Hardy, Hampshire,
and Morgan Counties, West Virginia. This subunit includes the river
channel up to the ordinary high water mark. It starts at the entrance
of Trout Run and ends at the confluence of the Cacapon River and the
Potomac River.
(E) Subunit 3e consists of a 6.7-km (4.1-mi) segment of Licking
Creek in Washington County, Maryland. This subunit includes the river
channel up to the ordinary high water mark. It starts at the crossing
of Pecktonville Road and ends at the confluence of Licking Creek and
the Potomac River.
(F) Subunit 3f consists of a 46.8-km (29.1-mi) segment of Back
Creek in Berkeley County, West Virginia. This subunit includes the
river channel up to the ordinary high water mark. It starts at the
entrance of Big Run and ends at the confluence of Back Creek and the
Potomac River.
(ii) Map of Unit 3 follows:
[[Page 48340]]
Figure 9 to Green Floater (Lasmigona subviridis) paragraph (8)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.009
(9) Unit 4: Kanawha Watershed (Allegany, Ashe, and Watauga
Counties, North Carolina; Carroll and Grayson Counties, Virginia; and
Greenbrier, Monroe, Pocahontas, and Summers Counties, West Virginia).
(i) Unit 4 consists of the following six subunits:
(A) Subunit 4a consists of a 259.7-km (161.4-mi) segment of the
Greenbrier River in Greenbrier, Monroe, Pocahontas, and Summers
Counties, West Virginia. This subunit includes the river channel up to
the ordinary high water mark. It starts at the entrance of Cove Run and
ends at the confluence of the Greenbrier River and the New River.
[[Page 48341]]
(B) Subunit 4b consists of a 17.4-km (10.8-mi) segment of Deer
Creek in Pocahontas County, West Virginia. This subunit includes the
river channel up to the ordinary high water mark. It starts at the
entrance of Hospital Run and ends at the confluence of Deer Creek and
the Greenbrier River.
(C) Subunit 4c consists of a 32.2-km (20-mi) segment of Knapp Creek
in Pocahontas County, West Virginia. This subunit includes the river
channel up to the ordinary high water mark. It starts at the entrance
of Moore Run and Knapp Creek and ends at the confluence of Knapp Creek
and the Greenbrier River.
(D) Subunit 4d consists of a 15.5-km (9.7-mi) segment of the New
River in Carroll and Grayson Counties, Virginia. This subunit includes
the river channel up to the ordinary high water mark. It starts at
Sarasota Lane and ends at the confluence of Chestnut Creek and the New
River.
(E) Subunit 4e consists of a 17.9-km (11.1-mi) segment of the
Little River in the Kanawha watershed in Alleghany County, North
Carolina, and Grayson County, Virginia. This subunit includes the river
channel up to the ordinary high water mark. It starts at the entrance
of Brush Creek and ends at the confluence of the Little River and the
New River.
(F) Subunit 4f consists of a 145.7-km (90.5-mi) segment of the
South Fork New River in Alleghany, Ashe, and Watauga Counties, North
Carolina. This subunit includes the river channel up to the ordinary
high water mark. It starts at the confluence of the East Fork South
Fork New River, Middle Fork South Fork New River, and Winkler Creek and
ends at the confluence of the South Fork New River and North Fork New
River.
(ii) Maps of Unit 4 follow:
[[Page 48342]]
Figure 10 to Green Floater (Lasmigona subviridis) paragraph (9)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.010
[[Page 48343]]
Figure 11 to Green Floater (Lasmigona subviridis) paragraph (9)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.011
(10) Unit 5: Lower Chesapeake Watershed (Amherst, Buckingham, and
Nelson Counties, Virginia).
(i) Unit 5 consists of the following two subunits:
(A) Subunit 5a consists of a 54.1-km (33.6-mi) segment of the Tye
River in Amherst, Buckingham, and Nelson Counties, Virginia. This
subunit includes the river channel up to the ordinary high water mark.
It starts at the confluence of Coxs Creek and Campbell Creek and ends
at the confluence of the Tye River and the James River.
(B) Subunit 5b consists of a 8.6-km (5.4-mi) segment of the Pedlar
River in Amherst County, Virginia. This subunit
[[Page 48344]]
includes the river channel up to the ordinary high water mark. It
starts at the entrance of Horsley Creek and ends at the confluence of
the Pedlar River and James River.
(ii) Map of Unit 5 follows:
Figure 12 to Green Floater (Lasmigona subviridis) paragraph (10)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.012
(11) Unit 6: Chowan-Roanoke Watershed (Caswell, Rockingham, and
Stokes Counties, North Carolina; and Brunswick, Greensville, Halifax,
Henry, Patrick, Pittsylvania, and Southampton Counties, Virginia).
(i) Unit 6 consists of the following five subunits:
(A) Subunit 6a consists of a 221.3-km (137.5-mi) segment of the Dan
River in Caswell, Rockingham, and Stokes Counties, North Carolina, and
in Halifax, Henry, Patrick, and Pittsylvania
[[Page 48345]]
Counties, Virginia. This subunit includes the river channel up to the
ordinary high water mark. It starts at the entrance of Squall Creek and
ends at the entrance of County Line Creek.
(B) Subunit 6b consists of a 4.6-km (2.9-mi) segment of the South
Mayo River in Henry County, Virginia, and Rockingham County, North
Carolina. This subunit includes the river channel up to the ordinary
high water mark. It starts at the entrance of Crooked Creek and ends at
the confluence of the South Mayo River and the Mayo River.
(C) Subunit 6c consists of a 5.9-km (3.7-mi) segment of the North
Mayo River in Henry County, Virginia, and Rockingham County, North
Carolina. This subunit includes the river channel up to the ordinary
high water mark. It starts at the entrance of Jumping Branch and ends
at the confluence of the North Mayo River and the Mayo River.
(D) Subunit 6d consists of a 25.1-km (15.6-mi) segment of the Mayo
River in Rockingham County, North Carolina. This subunit includes the
river channel up to the ordinary high water mark. It starts at the
confluence of the North Mayo and South Mayo Rivers and ends at the
confluence of the Mayo River and the Dan River.
(E) Subunit 6e consists of a 106.1-km (65.9-mi) segment of the
Meherrin River in Brunswick, Greensville, and Southampton Counties,
Virginia. This subunit includes the river channel up to the ordinary
high water mark. It starts at the entrance of Shining Creek and ends at
the entrance of Fountains Creek.
(ii) Maps of Unit 6 follow:
Figure 13 to Green Floater (Lasmigona subviridis) paragraph (11)(ii)
[[Page 48346]]
[GRAPHIC] [TIFF OMITTED] TP26JY23.013
Figure 14 to Green Floater (Lasmigona subviridis) paragraph (11)(ii)
[[Page 48347]]
[GRAPHIC] [TIFF OMITTED] TP26JY23.014
(12) Unit 7: Neuse-Pamlico Watershed (Durham, Johnston, Orange,
Person, and Wake Counties, North Carolina).
(i) Unit 7 consists of the following four subunits:
(A) Subunit 7a consists of a 26.8-km (16.6-mi) segment of the Neuse
River in Johnston and Wake Counties, North Carolina. This subunit
includes the river channel up to the ordinary high water mark. It
starts at the entrance of Crabtree Creek and ends near Prestwick Drive.
(B) Subunit 7b consists of a 54.4-km (33.8-mi) segment of the Eno
River in Durham and Orange Counties, North Carolina. This subunit
includes the river channel up to the ordinary high water mark. It
starts at the entrance of McGowan Creek and ends at Falls Lake.
(C) Subunit 7c consists of a 30.9-km (19.2-mi) segment of the Flat
River in Durham and Person Counties, North Carolina. This subunit
includes the river channel up to the ordinary high water mark. It
starts at the confluence of the North Flat River and South Flat River
and ends at Falls Lake.
(D) Subunit 7d consists of an 8.6-km (5.4-mi) segment of the Little
River in
[[Page 48348]]
the Neuse-Pamlico watershed in Wake County, North Carolina. This
subunit includes the river channel up to the ordinary high water mark.
It starts at the confluence with Perry Creek and ends at the entrance
of Big Branch.
(ii) Map of Unit 7 follows:
Figure 15 to Green Floater (Lasmigona subviridis) paragraph (12)(ii)
[GRAPHIC] [TIFF OMITTED] TP26JY23.015
(13) Unit 8: Upper Tennessee Watershed (Watauga County, North
Carolina).
(i) Unit 8 consists of 16.0-km (9.9-mi) of the Watauga River in
Watauga County, North Carolina, from the entrance of Baird Creek to the
entrance of Beech Creek. It includes the river channel up to the
ordinary high water mark.
(ii) Map of Unit 8 follows:
Figure 16 to Green Floater (Lasmigona subviridis) paragraph (13)(ii)
[[Page 48349]]
[GRAPHIC] [TIFF OMITTED] TP26JY23.016
* * * * *
Martha Williams,
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2023-15143 Filed 7-25-23; 8:45 am]
BILLING CODE 4333-15-C