Proposed Rule2022-02994
Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for Western Fanshell and “Ouachita” Fanshell and Designation of Critical Habitat
Primary source
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Published
March 3, 2022
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), propose to list the western fanshell (Cyprogenia aberti), a freshwater mussel species from Arkansas, Kansas, Missouri, and Oklahoma, and the "Ouachita" fanshell (Cyprogenia cf. aberti), a freshwater mussel species from Arkansas and Louisiana, as threatened species and to designate critical habitat for these species under the Endangered Species Act of 1973, as amended (Act). This document also proposes a rule issued under section 4(d) of the Act (4(d) rule) for these mussel species and serves as our 12-month finding on a petition to list the western fanshell. The proposed critical habitat designation for the western fanshell totals approximately 360 river miles (579 kilometers), all of which are occupied by the species, in Arkansas, Kansas, and Missouri, and the proposed critical habitat designation for the "Ouachita" fanshell totals approximately 294 river miles (474 kilometers), all of which are occupied by the species, in Arkansas. We also announce the availability of a draft economic analysis (DEA) of the proposed designation of critical habitat for the western fanshell and "Ouachita" fanshell. If we finalize this rule as proposed, it would add these species to the List of Endangered and Threatened Wildlife and extend the Act's protections to these species and their designated critical habitats.
Full Text
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[Federal Register Volume 87, Number 42 (Thursday, March 3, 2022)]
[Proposed Rules]
[Pages 12338-12384]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-02994]
[[Page 12337]]
Vol. 87
Thursday,
No. 42
March 3, 2022
Part IV
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 Western Fanshell and ``Ouachita''
Fanshell and Designation of Critical Habitat; Proposed Rule
Federal Register / Vol. 87 , No. 42 / Thursday, March 3, 2022 /
Proposed Rules
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R3-ES-2021-0061; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BE79
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for Western Fanshell and ``Ouachita''
Fanshell 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 western fanshell (Cyprogenia aberti), a freshwater mussel
species from Arkansas, Kansas, Missouri, and Oklahoma, and the
``Ouachita'' fanshell (Cyprogenia cf. aberti), a freshwater mussel
species from Arkansas and Louisiana, as threatened species and to
designate critical habitat for these species under the Endangered
Species Act of 1973, as amended (Act). This document also proposes a
rule issued under section 4(d) of the Act (4(d) rule) for these mussel
species and serves as our 12-month finding on a petition to list the
western fanshell. The proposed critical habitat designation for the
western fanshell totals approximately 360 river miles (579 kilometers),
all of which are occupied by the species, in Arkansas, Kansas, and
Missouri, and the proposed critical habitat designation for the
``Ouachita'' fanshell totals approximately 294 river miles (474
kilometers), all of which are occupied by the species, in Arkansas. We
also announce the availability of a draft economic analysis (DEA) of
the proposed designation of critical habitat for the western fanshell
and ``Ouachita'' fanshell. If we finalize this rule as proposed, it
would add these species to the List of Endangered and Threatened
Wildlife and extend the Act's protections to these species and their
designated critical habitats.
DATES: We will accept comments received or postmarked on or before May
2, 2022. 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 April 18, 2022.
ADDRESSES:
Written comments: You may submit comments by one of the following
methods:
(1) Electronically: Go to the Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>. In the Search box, enter FWS-R3-ES-2021-0061,
which is the docket number for this rulemaking. Then, click on the
Search button. On the resulting page, in the Search 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-R3-ES-2021-0061, U.S. Fish and Wildlife Service,
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
We request that you send comments only by the methods described
above. We will post all comments on <a href="http://www.regulations.gov">http://www.regulations.gov</a>. This
generally means that we will post any personal information you provide
us (see Information Requested, below, for more information).
Availability of supporting materials: For the critical habitat
designation, the coordinates or plot points or both from which the maps
are generated are included in the decision file and are available at
<a href="https://www.fws.gov/midwest/">https://www.fws.gov/midwest/</a> for western fanshell and <a href="https://www.fws.gov/southeast/">https://www.fws.gov/southeast/</a> for ``Ouachita'' fanshell, at <a href="http://www.regulations.gov">http://www.regulations.gov</a> under Docket No. FWS-R3-ES-2021-0061, and at the
Missouri and Arkansas Ecological Services Field Offices (see FOR
FURTHER INFORMATION CONTACT). Any additional tools or supporting
information that we may develop for the critical habitat designation
will also be available at the Service websites and field offices set
out above or at <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: For information about the western
fanshell, contact Karen Herrington, Field Supervisor, U.S. Fish and
Wildlife Service, Missouri Ecological Services Field Office, 101 Park
DeVille Drive, Suite A, Columbia, MO 65203-0057; telephone 573-234-
2132. For information about the ``Ouachita'' fanshell, contact Melvin
Tobin, Field Supervisor, U.S. Fish and Wildlife Service, Arkansas
Ecological Services Field Office, 110 South Amity, Suite 300, Conway,
AR 72032-8975; telephone 501-513-4473. Persons who use a
telecommunications device for the deaf (TDD) may call the Federal Relay
Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, if we determine that
a species is an endangered or threatened species throughout all or a
significant portion of its range, we are required to promptly publish a
proposal in the Federal Register and make a determination on our
proposal within 1 year. To the maximum extent prudent and determinable,
we must designate critical habitat for any species that we determine to
be an endangered or threatened species under the Act. Listing a species
as an endangered or threatened species and designation of critical
habitat can only be completed by issuing a rule.
What this document does. We propose to list the western fanshell
and ``Ouachita'' fanshell as threatened species with a rule issued
under section 4(d) of the Act, and we propose the designation of
critical habitat for these two 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 water quality degradation,
altered flow, landscape changes, and habitat fragmentation, all of
which are exacerbated by the effects of climate change, are the primary
threats affecting the western fanshell and ``Ouachita'' fanshell.
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary) to designate critical habitat concurrent with listing to
the maximum extent prudent and determinable. Section 3(5)(A) of the Act
defines critical habitat as (i) the specific areas within the
geographical area occupied by the species, at the time it is listed, on
which are found those physical or biological features (I) essential to
the conservation of the species and (II) which may require special
management considerations or protections; and (ii) specific areas
outside the geographical area occupied by the species at the time it is
listed, upon a determination by the Secretary that such areas are
essential for the conservation of the species. Section 4(b)(2) of the
Act states that the Secretary must make the designation on the basis of
the best scientific data available and after taking into
[[Page 12339]]
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 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;
(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) Factors that may affect the continued existence of these
species, which may include habitat modification or destruction,
overutilization, disease, predation, the inadequacy of existing
regulatory mechanisms, or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to these species and existing regulations
that may be addressing those threats.
(4) Additional information concerning the historical and current
status, range, distribution, and population size of these species,
including the locations of any additional populations of these species.
(5) Information on regulations that are necessary and advisable to
provide for the conservation of western fanshell and ``Ouachita''
fanshell and that the Service can consider in developing a 4(d) rule
for these species. In particular, we seek information concerning the
extent to which we should include any of the Act's section 9
prohibitions in the 4(d) rule or whether we should consider any
additional exceptions from the prohibitions in the 4(d) rule. In
addition, we request comments on whether we should include an exception
from permitting requirements for individuals conducting presence/
absence surveys, studies to document habitat use, population
monitoring, and evaluations of potential impacts to the fanshells,
provided the individual holds a valid scientific collecting permit for
mussels from the appropriate State agency.
(6) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.), including information to inform the following factors that the
regulations identify as reasons why designation of critical habitat may
be not prudent:
(a) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(b) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(c) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States; or
(d) No areas meet the definition of critical habitat.
(7) Specific information on:
(a) The amount and distribution of western fanshell and
``Ouachita'' fanshell habitat;
(b) What areas, that were occupied at the time of listing and that
contain the physical or biological features essential to the
conservation of these species, should be included in the designation
and why;
(c) Any additional areas occurring within the range of the species
that should be included in the designation because they (1) 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 (2) are unoccupied at
the time of listing and are essential for the conservation of the
species;
(d) 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
(e) What areas not occupied at the time of listing are essential
for the conservation of these species. We particularly seek comments:
(i) Regarding whether occupied areas are adequate for the
conservation of these species;
(ii) Providing specific information regarding whether or not
unoccupied areas would, with reasonable certainty, contribute to the
conservation of these species and contain at least one physical or
biological feature essential to the conservation of these species; and
(iii) Explaining whether or not unoccupied areas fall within the
definition of ``habitat'' at 50 CFR 424.02 and why.
(8) Land use designations and current or planned activities in the
subject areas and their possible impacts on proposed critical habitat.
(9) 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.
(10) 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, the description of the
environmental impacts in the draft environmental assessment is complete
and accurate, and any additional information regarding probable
economic impacts that we should consider.
(11) 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 credible information regarding the
existence of a meaningful economic or other relevant impact supporting
a benefit of exclusion.
(12) 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, will not be considered in
making a determination, as 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
[[Page 12340]]
basis of the best scientific and commercial data available.''
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via <a href="http://www.regulations.gov">http://www.regulations.gov</a>, your
entire submission--including any personal identifying information--will
be posted on the website. If your submission is made via a hardcopy
that includes personal identifying information, you may request at the
top of your document that we withhold this information from public
review. However, we cannot guarantee that we will be able to do so. We
will post all hardcopy submissions on <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Because we will consider all comments and information we receive
during the comment period, our final determinations may differ from
this proposal. Based on the new information we receive (and any
comments on that new information), we may conclude that the western
fanshell or ``Ouachita'' fanshell is endangered instead of threatened,
or we may conclude that either 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, and may exclude some areas if we find the benefits of
exclusion outweigh the benefits of inclusion. 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 we receive. 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.
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. For the immediate future, we will provide these public
hearings using webinars that will be announced on the Service's
website, in addition to the Federal Register. The use of these virtual
public hearings is consistent with our regulations at 50 CFR
424.16(c)(3).
Previous Federal Actions
We identified the western fanshell as a ``Category 2'' candidate in
our May 22, 1984, Review of Invertebrate Wildlife for Listing as
Endangered or Threatened Species (49 FR 21664). Category 2 candidates
were defined as species for which we had information that proposed
listing was possibly appropriate, but conclusive data on biological
vulnerability and threats were not available to support a proposed rule
at the time. The species remained so designated in subsequent candidate
notices of review (CNORs) (54 FR 554, January 6, 1989; 56 FR 58804,
November 21, 1991; 59 FR 58982, November 15, 1994). In the February 28,
1996, CNOR (61 FR 7596), we discontinued the designation of Category 2
species as candidates; therefore, the western fanshell was no longer a
candidate species.
On April 20, 2010, we received a petition from the Center for
Biological Diversity (CBD), Alabama Rivers Alliance, Clinch Coalition,
Dogwood Alliance, Gulf Restoration Network, Tennessee Forests Council,
and West Virginia Highlands Conservancy, to list 404 aquatic, riparian,
and wetland species, including the western fanshell, from the
southeastern United States as endangered or threatened species and to
designate critical habitat concurrent with listing under the Act. On
September 27, 2011, we published a 90-day finding in the Federal
Register (76 FR 59836), concluding that the petition presented
substantial information that indicated listing the western fanshell may
be warranted. Since that time, the ``Ouachita'' fanshell has been
determined to be a separate species from western fanshell (Williams et
al. 2017, p. 47; see discussion of taxonomy below); therefore, we
conducted a discretionary status review for the ``Ouachita'' fanshell
concurrent with our status review for the western fanshell.
Supporting Documents
A species status assessment (SSA) team prepared an SSA report for
the western fanshell and ``Ouachita'' fanshell. 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 these species,
including the impacts of past, present, and future factors (both
negative and beneficial) affecting these 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 sought the expert opinions of five appropriate
specialists regarding the SSA report. We received two responses. We
also sent the SSA report to eight Federal and State partners with
expertise in aquatic ecology and freshwater mussel biology, taxonomy,
and conservation. We received reviews from a Federal biologist and a
State biologist.
I. Proposed Listing Determination
Background
The western fanshell (Cyprogenia aberti) is a freshwater mussel in
the Unionidae family. Adults are a dull tan with a distinctive ray
pattern from bands of tiny pigment flecks. The shell is thick,
compressed to moderately inflated, and round to triangular (up to 3
inches (76 millimeters)), with a wrinkled or rough appearance (Conrad
1850, p. 10; McMurray et al. 2012, p. 30; Oesch 1995, pp. 143-144; Roe
2004, pp. 4-5).
Recent molecular analysis of Cyprogenia identified the fanshell
from the Ouachita River basin in Arkansas and Louisiana as an
independent evolutionary lineage (Chong et al. 2016, pp. 2445-2449).
There is confusion regarding what name is available for the Ouachita
River drainage fanshell, but the distinctiveness of this species was
recognized in the most recent list of freshwater mussels of the United
States and Canada (Williams et al. 2017, p. 47). The Arkansas Wildlife
Action Plan refers to the species as the ``Ouachita'' fanshell (C. cf.
aberti) (Arkansas Game and Fish Commission 2015, p. 974). Based on this
information, we find the ``Ouachita'' fanshell is a listable entity
under the Act, and we follow this naming convention until a specific
epithet can be designated.
The western fanshell is currently found in the Lower Mississippi-
St. Francis, Neosho-Verdigris, and Upper
[[Page 12341]]
White River basins, within the States of Arkansas, Kansas, Missouri,
and Oklahoma (Service 2020, pp. 21-28; see Figure 1, below). It is
considered extirpated from the Lower Arkansas basin. The ``Ouachita''
fanshell currently occurs in the Lower Red-Ouachita basin in Arkansas
and historically in Louisiana (Service 2020, pp. 29-31; see Figure 2,
below).
BILLING CODE 4333-15-P
[GRAPHIC] [TIFF OMITTED] TP03MR22.001
[[Page 12342]]
[GRAPHIC] [TIFF OMITTED] TP03MR22.002
BILLING CODE 4333-15-C
Both species are typically found in large creeks and rivers with
good water quality, moderate to swift current, and gravel-sand
substrates, but specific information on microhabitat requirements is
lacking. Like all mussels, these two species of fanshell are omnivores
that primarily filter-feed on a wide variety of microscopic particulate
matter suspended in the water column, including phytoplankton,
zooplankton, bacteria, detritus, and dissolved organic matter (Haag
2012, p. 26). As with most freshwater mussels,
[[Page 12343]]
the fanshell mussels have a unique life cycle that relies on fish hosts
for successful reproduction (Barnhart et al. 2008, pp. 371-373; Vaughn
and Taylor 1999, p. 913; Barnhart 1997, p. 12).
Thorough reviews of the taxonomy, life history, and ecology of the
western fanshell and ``Ouachita'' fanshell are presented in detail in
the SSA report (Service 2020, pp. 9-12).
Regulatory and Analytical Framework
Regulatory Framework
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 is an endangered species or a threatened species. The
Act defines an ``endangered species'' as a species that is in danger of
extinction throughout all or a significant portion of its range, and a
``threatened species'' as a species that is likely to become an
endangered species within the foreseeable future throughout all or a
significant portion of its range. The Act requires that we determine
whether any species is an endangered species or a threatened species
because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the expected response by the species,
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 the
Service 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 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.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of these species, including an assessment of the potential
threats to these species. The SSA report does not represent a decision
by the Service on whether these 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. 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-R3-ES-2021-0061 on <a href="http://www.regulations.gov">http://www.regulations.gov</a> and at <a href="https://www.fws.gov/midwest/">https://www.fws.gov/midwest/</a> and <a href="https://www.fws.gov/southeast/">https://www.fws.gov/southeast/</a>.
To assess the western fanshell's and ``Ouachita'' fanshell's
viability, we used the three conservation biology principles of
resiliency, redundancy, and representation (Shaffer and Stein 2000, pp.
306-310). Briefly, resiliency supports the ability of the species to
withstand environmental and demographic stochasticity (for example, wet
or dry, warm or cold years), redundancy supports the ability of the
species to withstand catastrophic events (for example, droughts, large
pollution events), and representation supports the ability of the
species to adapt over time to long-term changes in the environment (for
example, climate changes). In general, the more resilient and redundant
a species is and the more representation it has, the more likely it is
to sustain populations over time, even under changing environmental
conditions. 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 each individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the species' demographics and habitat
characteristics, including an explanation of how the species arrived at
its current condition. The final stage of the SSA involved making
predictions about the species' responses to positive and negative
environmental and anthropogenic influences. Throughout all of these
stages, we used the best available information to characterize
viability as the ability of a species to sustain populations in the
wild over time. We use this information to inform our regulatory
decision.
[[Page 12344]]
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the two
species and their resources, and the threats that influence both
species' current and future condition, to assess each species' overall
viability and the risks to that viability.
Species Needs
Fanshell mussels feed primarily on a wide variety of microscopic
particulate matter, including phytoplankton, zooplankton, bacteria,
detritus, and dissolved organic matter (Haag 2012, p. 26). Juveniles
likely pedal feed in the sediment, whereas adults filter-feed from the
water column.
As with most freshwater mussels, both fanshell mussels rely on a
host fish for reproduction. The female mussel holds the fertilized eggs
internally as they develop into larvae. Once mature, the larvae are
released as glochidia, which attach on the gills, head, or fins of
fishes (Barnhart et al. 2008, pp. 371-373; Vaughn and Taylor 1999, p.
913). Glochidia encyst (enclose in a cyst-like structure) on the host's
tissue and draw nutrients from the fish. The glochidia for the fanshell
mussels remain encysted for about a month until transformation to the
juvenile stage, at which point they release from the fish and drop to
the substrate (Barnhart 1997, p. 12). Glochidia die if they fail to
find a host fish, attach to the wrong species of host fish, attach to a
fish that has developed immunity from prior infestations, or attach to
the wrong location on a host fish (Bogan 1993, p. 599; Neves 1991, p.
254).
Logperch (Percina caprodes) is a suitable fish host for both
fanshell species in all river basins (Eckert 2003, pp. 18-19).
Slenderhead darter (Percina phoxocephala) and orangebelly darter
(Etheostoma radiosum) are suitable hosts for ``Ouachita'' fanshell
(Eckert 2003, p. 46), while slenderhead darter, fantail darter
(Etheostoma flabellare), rainbow darter (Etheostoma caeruleum), and
orangebelly darter are suitable hosts for western fanshell, but only
for their respective sympatric fanshell mussel population (Eckert 2003,
p. 33). In other words, glochidia had greater success transforming on
darters from the same stream as the mussel. For example, a higher
percentage of glochidia from Ouachita River transformed on orangebelly
darters from Ouachita River than on orangebelly darters from Verdigris
River (Eckert 2003, p. 11).
We assessed the best available information to identify the physical
and biological needs to support individual fitness at all life stages
for the western fanshell and ``Ouachita'' fanshell. Full descriptions
of all needs are available in chapter 2 of the SSA report (Service
2020, pp. 9-15). Based upon the best available scientific and
commercial information, the resource needs for both species are
characterized as:
<bullet> Stable river channels and banks (for example, stable
riffles, sometimes with runs, and mid-channel island habitats that
provide flow refuges), consisting of mixed sand, gravel, and cobble
substrates with low to moderate amounts of fine sediment and attached
filamentous algae;
<bullet> A hydrologic flow regime (the severity, frequency,
duration, and seasonality of discharge over time) that maintains the
benthic habitats where the species are found and the river connectivity
with the floodplain;
<bullet> Habitat connectivity (that is, a lack of barriers for
passage of host fish, which are necessary for dispersal of mussels);
<bullet> Water and sediment quality, such as (but not limited to)
dissolved oxygen above 3 parts per million (ppm), ammonia generally
below 1.0 ppm total ammonia-nitrogen, temperatures generally below 80
degrees Fahrenheit ([deg]F) (27 degrees Celsius ([deg]C)), low
concentrations of metals, and an absence of excessive total suspended
solids and other pollutants;
<bullet> The presence and abundance of fish hosts (logperch,
slenderhead darter, fantail darter, rainbow darter, and orangebelly
darter) necessary for recruitment of the fanshell mussels; and
<bullet> Appropriate food sources (phytoplankton, zooplankton,
protozoans, detritus, and dissolved organic matter) in adequate supply.
Threats Analysis
We identified water quality degradation, altered flow, landscape
changes, and habitat fragmentation, all of which are exacerbated by the
effects of climate change, as the primary threats affecting the western
fanshell and ``Ouachita'' fanshell (Service 2020, p. 65). We
acknowledge that invasive species can have individual and, in some
circumstances, population-level effects to mussels. However, the best
available data do not support that invasive species are a driving force
affecting the current or future conditions of these two fanshell
mussels (Service 2020, pp. 62-63). The primary threats are discussed
below.
Water Quality
Chemical contaminants are a major threat in the decline of mussel
species (Cope et al. 2008, p. 451; Richter et al. 1997, p. 1081;
Strayer et al. 2004, p. 436; Wang et al. 2007a, p. 2029). Chemicals
enter rivers through point and nonpoint discharges, including spills,
industrial and municipal effluents, and residential and agricultural
runoff. These sources contribute organic compounds, heavy metals,
nutrients, pesticides, and a wide variety of newly emerging
contaminants, such as pharmaceuticals, to the aquatic environment.
The western fanshell has been exposed to zinc and copper at
concentrations that cause acute toxicity (Service 2020, p. 41) and may
be exposed to toxic levels of lead in the future (Service 2020,
Appendix I-D--I-E). Metals from mine water runoff (for example, Tri-
State Mining District in southwest Missouri and southeast Kansas)
contributed to mussel declines in Shoal Creek and Spring River in the
Arkansas River basin (Angelo et al. 2007, p. 467; EcoAnalysts, Inc.
2018, p. 59).
Nutrients, such as nitrogen and phosphorus, primarily occur in
runoff from livestock farms, feedlots, heavily fertilized row crops and
pastures (Peterjohn and Correll 1984, p. 1471), post timber management
activities, and urban and suburban runoff (including residential lawns
and leaking septic tanks). Sources of ammonia include agricultural
wastes (animal feedlots and nitrogenous fertilizers), municipal
wastewater treatment plants, and industrial waste (Augspurger et al.
2007, p. 2569), as well as precipitation and natural processes
(decomposition of organic nitrogen) (Augspurger et al. 2003, p. 2569;
Goudreau et al. 1993, p. 212; Hickey and Martin 1999, p. 44; Newton et
al. 2003, p. 1243). As discussed above under Species Needs, both
fanshell species require dissolved oxygen above 3 ppm and ammonia
generally below 1.0 ppm total ammonia-nitrogen. We analyzed total
ammonia nitrogen data in rivers occupied by the two fanshell mussel
species, but did not find concentrations at levels expected to result
in acute or chronic toxicity to mussels (Service 2020, p. 41, Appendix
I-D--I-E). In addition, nutrient enrichment increases primary
productivity, and the associated algae respiration depletes dissolved
oxygen levels. However, available water quality data indicate that
hypoxia (low dissolved oxygen) is not occurring in occupied streams and
is not currently a threat to the fanshell mussels.
Flow
Reductions in the diversity and abundance of mussels are
principally attributed to habitat alteration caused by inundation of
free-flowing rivers and
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streams (Neves et al. 1997, p. 60), which has occurred in portions of
the fanshell mussels' ranges (for example, White, Ouachita, Caddo, and
Neosho rivers). The construction of reservoirs and other impoundments
permanently alters the hydrology, with deleterious effects to fish host
movement and mussel dispersal.
The water released from the hypolimnion (lower layers of the lake)
in large reservoirs is cold and often devoid of oxygen and necessary
nutrients, which adversely affects mussel survival. Cold water can
stunt mussel growth and delay or hinder spawning (Vaughn and Taylor
1999, p. 917). Reservoirs, like Bull Shoals on the White River in
north-central Arkansas, that release cold water from the bottom of the
reservoir (in part to support nonnative rainbow trout and brown trout
recreational fisheries) can affect water temperatures for many
kilometers downstream. These cold releases create an extinction
gradient, where freshwater mussels are absent or present in low numbers
near the dam, and abundance does not rebound until some distance
downstream where ambient conditions raise the water temperature to
within the tolerance limits of mussels (Vaughn and Taylor 1999, pp.
915-916).
In addition to low water temperature limits, freshwater mussels
also have an upper water temperature threshold. As described above
under Species Needs, both fanshell species require water temperatures
generally below 80 [deg]F (27 [deg]C).
In ``Ouachita'' fanshell occupied streams from 1990 to 2018, the
percent of water temperature samples exceeding 27 [deg]C ranged from
6.9 to 15.4 percent, with maximum water temperature ranging from 30.3
[deg]C to 36.6 [deg]C. In western fanshell MUs from 1990 to 2018, the
percent of water temperature samples exceeding 27 [deg]C ranged from 0
to 12.6 percent, with maximum water temperature ranging from 22.0
[deg]C to 35.8 [deg]C.
Recruitment in some species of mussels is significantly related to
components of spring and summer flow (Ries et al. 2016, p. 711). High
velocity flows during spawning can decrease fertilization success (Ries
et al. 2016, p. 712) and affect juvenile settling (Daraio et al. 2010,
p. 838; Hardison and Layzer 2001, p. 77). Mussel beds may be
constrained by threshold limits at both flow extremes. Under low flow
conditions, mussels may require a minimum flow to transport nutrients,
oxygen, and waste products. Under high flow conditions, areas with
relatively low flow may provide a refuge for mussels (Steuer et al.
2008, p. 67). Fanshell mussels undoubtedly evolved in the presence of
extreme hydrological conditions to some degree, including severe
droughts leading to dewatering, and heavy rains leading to damaging
scour events and movement of mussels and substrate, although the
frequency, duration, and intensity of these events may be different
from today. Streamflow and overall discharge for rivers inhabited by
western and ``Ouachita'' fanshell mussels will likely decline due to
climate change and projected increases in temperatures and evaporation
rates, resulting in more frequent and intense droughts (LaFontaine et
al. 2019, entire).
Excessive sediments adversely affect riverine mussel populations
requiring clean, stable streams (Brim Box and Mossa 1999, p. 99; Ellis
1936, pp. 39-40). Specific biological effects include reduced feeding
and respiratory efficiency from clogged gills, disrupted metabolic
processes, reduced growth rates, limited burrowing activity, physical
smothering, and disrupted host fish attraction mechanisms (Ellis 1936,
pp. 39-40; Hartfield and Hartfield 1996, p. 373; Marking and Bills
1979, p. 210; Vannote and Minshall 1982, pp. 4105-4106; Waters 1995,
pp. 173-175). The physical effects of sediment on mussel habitat
include changes in suspended and bed material load; changes in bed
sediment composition associated with increased sediment production and
runoff in the watershed; channel changes in form, position, and degree
of stability; changes in depth or the width and depth ratio that
affects light penetration and flow regime, actively aggrading (filling)
or degrading (scouring) channels; and changes in channel position.
These effects to habitat may dislodge, transport downstream, or leave
mussels stranded (Brim Box and Mossa 1999, pp. 109-112; Kanehl and
Lyons 1992, pp. 4-5; Vannote and Minshall 1982, p. 4106).
The majority of sediment transport occurs during floods (Clark and
Mangham 2019, pp. 6-7; Kondolf 1997, p. 533). The increase in flooding
severity results in greater sediment transport, with important effects
to substrate stability and benthic habitats for freshwater mussels, as
well as other organisms that are dependent on stable benthic habitats
(Kondolf 1997, p. 535). High base flows can incise channels, erode
riverbanks, scour mussel beds, and remove substrate preferred by
mussels. Over time, the physical force of these higher base flows can
dislodge mussels from the sediment and permanently alter the
geomorphology of rivers (Clark and Mangham 2019, pp. 6-7; Kondolf 1997,
p. 533).
Runoff from impervious surfaces prevalent in urban areas affects
the natural hydrology of streams by increasing flood magnitude,
duration, and frequency (Bressler et al. 2009, p. 292). Frequent floods
in urban areas scour stream substrate and banks, thereby increasing
erosion and sedimentation and altering geomorphology. Geomorphic
changes, such as changes in channel width, occur with impervious areas
as low as 2 to 10 percent (Booth and Jackson 1997, p. 1084; Dunne and
Leopold 1978, pp. 275-277; Morisawa and LaFlure 1979, Figure 11).
Initial degradation of fish communities and lower larval densities have
been associated with as low as 10 percent impervious areas (Limburg and
Schmidt 1990, pp. 1241-1242; Steedman 1988, pp. 498-499). Unpaved road
networks also interact with streams, delivering sediment runoff and
increasing water velocity entering stream channels, thereby increasing
stream energy, eroding streambanks, scouring channels, and increasing
flooding (Coffin 2007, pp. 397-398).
Landscape Alterations
Many rivers where the western fanshell and ``Ouachita'' fanshell
occur are threatened by land use activities and changes (for example,
increased urbanization, alteration of riparian buffers, improperly
designed and maintained unpaved roads). Urbanization of a watershed can
result in increased pollutant loads from stormwater runoff, altered
flow, decreased bank stability, and increased water temperature.
Urbanization can also indirectly increase channel erosion and
downstream sedimentation by increasing the frequency and volume of
channel-altering storm flows (Hammer 1972, p. 1530; Leopold 1968,
entire). These effects of urbanization can lower fish species richness
and density, leading to predictable changes in species composition, and
these changes can accrue rapidly (less than 10 years) and are
detectable at low levels (approximately 5 to 10 percent urbanization)
(Walters et al. 2005, p. 1). In 2016, 80 percent of the western and
``Ouachita'' fanshell MUs had 5 percent or greater urban land use, but
all were less than 10 percent (Service 2020, Appendix I-A).
The amount of impervious surface and riparian forest cover
influences stream hydrology and water quality (Brabec et al. 2002, pp.
505-507). Riparian forest cover intercepts and moderates the timing of
runoff, buffers temperature extremes, filters pollutants in runoff,
provides woody debris to stream channels that enhances aquatic
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food webs, and stabilizes excessive erosion. Furthermore, the removal
of riparian trees in forested watersheds has a strong influence on
stream invertebrate communities (Wallace et al. 1997, entire). In 2016,
forest cover ranged from 70 to 76 percent in ``Ouachita'' fanshell MUs
and 12 to 77 percent in western fanshell MUs (Service 2020, Appendix I-
A).
Agricultural practices, such as livestock grazing and tilling on
land adjacent to streams, can lead to soil erosion and subsequent
runoff of fine sediments, nutrients, and pesticides (for example,
Schulz and Liess 1999, p. 155). Watersheds with the most habitat
converted to farmland often have the greatest levels of mussel richness
decline (Poole and Downing 2004, p. 123). In 2016, agricultural land
use ranged from 5 to 13 percent in ``Ouachita'' fanshell MUs and 17 to
68 percent in western fanshell MUs, and decreased in all MUs for both
species from 2011 to 2016 (Service 2020, Appendix I-A).
Roads adversely affect watershed integrity by intercepting,
concentrating, and diverting water. Roads directly affect natural
sediment and hydrologic regimes by altering stream flow, sediment
loading, sediment transport and deposition, channel morphology, channel
stability, substrate composition, stream temperature, water quality,
and riparian condition (Lee et al. 1997, pp. 1102-1104). Hydrologic
effects are sensitive to road density, with increased peak flows
evident at road densities of 2 to 3 kilometers (km)/square kilometers
(km\2\) (Forman and Alexander 1998, p. 223). In 2016, unpaved road
density in all the western and ``Ouachita'' fanshell mussel MUs were
1.6 km/km\2\ or less.
Habitat Fragmentation
Hydrologic and geomorphic processes directly relate to habitat
extent. The number and distribution of habitat patches and their
connectivity influence species population health. Historically, the two
fanshell species likely occurred throughout the river basins described
in the SSA (Service 2020, pp. 21-31). Large-scale reductions in mussel
diversity and abundance are largely due to habitat changes caused by
impoundments (Neves et al. 1997, p. 63). The number of impoundments in
``Ouachita'' fanshell MUs ranges from 3 to 51, and in western fanshell
MUs ranges from 4 to 73.
Effects of Climate Change
We examined information on the anticipated effects of climate
change, including changes to water temperatures and precipitation
patterns. In its 5th Assessment Report, the Intergovernmental Panel on
Climate Change (IPCC) adopted ``representative concentration pathways''
(RCPs), which are greenhouse gas concentration trajectories, to
describe potential future climate outcomes, depending on the amount of
greenhouse gases that are emitted in the future (IPCC 2014, pp. 126-
127). Under RCP4.5 and RCP8.5, the seasonal averages of 30 Coupled
Model Intercomparison Project 5 (CMIP5) models from 1950 to 2100
indicate warming air temperatures in the Lower Mississippi River
region, with a central tendency of less than 2 inches change in
precipitation (Alder and Hostetler 2013, pp. 2-3). We expect changes in
stream temperatures to reflect changes in air temperature, at a rate of
an approximately 0.6-0.8 [deg]C increase in stream water temperature
for every 1 [deg]C increase in air temperature (Morrill et al. 2005,
pp. 1-2, 15). These water temperature changes will have implications
for temperature-dependent water quality parameters (such as dissolved
oxygen and ammonia toxicity), spawning, and physiological effects to
thermally sensitive species.
Future increases in the frequency and severity of both extreme
drought and extreme rainfall are expected to transform many ecosystems
in the Southeast, including Arkansas (Carter et al. 2018, pp. 743-808).
Mussels are highly sensitive to secondary effects of drought (for
example, water temperature, etc.), but their ability to withstand
severe drought is highly dependent on where they occur (Haag and Warren
2008, p. 1165) and sufficient time between sequential drought events
for mussel populations to recover (Vaughn et al. 2015, pp. 1297-1298).
We also considered whether the threats discussed above may be
exacerbated by small population size (or low condition). Although there
are populations in low condition in all the basins in which the two
species occur, none of the basins have seen their populations reduced
to one or two populations in low condition.
Regulatory Mechanisms
State Protections
The western fanshell is listed as State endangered with designated
critical habitats under the Kansas Nongame and Endangered Species
Conservation Act. Under State law, any time an eligible project is
proposed that will impact the species' preferred habitats within its
probable range in Kansas, the project sponsor must contact the Kansas
Department of Wildlife, Parks and Tourism, regarding potential permit
requirements. The western fanshell and ``Ouachita'' fanshell do not
receive protection under State law in any other States.
Other Regulatory Mechanisms
The U.S. Forest Service (2005, p. 58) established a wildlife and
fish habitat road density objective of less than or equal to 1.6 km/2.6
km\2\ on the Ouachita National Forest in west-central Arkansas, which
includes the Ouachita Headwaters and Caddo MUs for ``Ouachita''
Fanshell. The Arkansas Unpaved Roads Program, authorized by Act 898 of
the 90th General Assembly in 2005, establishes a proactive, incentive-
based management program that results in utilization of best management
practices on unpaved roads to minimize erosion and maintain and improve
the health of priority lakes and rivers (TNC 2017, entire), including
those where both fanshell mussel species occur.
Current Conditions
Current (and future) conditions are described using categories that
estimate the overall condition (resiliency) of the western fanshell and
``Ouachita'' fanshell populations. These categories are based on an
evaluation of multiple population and habitat factors (Service 2020,
pp. 16-19).
Given that both of the fanshells' ranges include medium to large
rivers with some populations fragmented by dams and creation of
navigation channels, we delineated separate populations for each
watershed through which these streams flow (if there was an occurrence
record for the stream in that watershed), based on the hydrologic unit
code (HUC) (Seaber et al. 1987, entire; U.S. Geological Survey 2018,
entire) at the fourth of six levels (that is, the HUC-8 watershed), and
termed these ``management units'' (MUs). MUs represent areas with one
or more populations capable of dispersal and interaction. As a result,
some watersheds have been combined into one management unit because of
a lack of dispersal barriers and some divided into multiple management
units. MUs were identified as most appropriate for assessing
population-level resiliency because the stream level was determined to
be too coarse of a scale to estimate the condition factors influencing
resiliency (Service 2020, p. 16). We defined a MU as currently extant
if it contains live or recent dead individuals observed in surveys from
2000 to the present (Service 2020, p. 21).
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To evaluate the species' genetic and ecological diversity
(representation) in the absence of species-specific genetic
information, we considered the extent and variability of environmental
conditions within the two species' geographic ranges. Based on the best
available data, we identified representation units at the HUC-4
watershed level, which is the second HUC level and covers a larger area
than HUC-8.
Western Fanshell
The western fanshell's current range includes a total of 11 MUs
across three HUC-4 units: Neosho-Verdigris (2 MUs), Lower Mississippi-
St. Francis (3 MUs), and Upper White (6 MUs) river drainages of
Arkansas, Missouri, Kansas, and Oklahoma. Historically, the western
fanshell occurred in another 14 MUs and is presumed extirpated from the
Lower Arkansas (HUC-4) river drainage. Of the current MUs, three (27
percent) are estimated to be highly resilient, three (27 percent) are
estimated to be moderately resilient, and five (46 percent) are
estimated to have low resiliency (Service 2020, pp. 36-46). The habitat
conditions across the 11 extant populations are medium to high (Service
2020, p. 41).
``Ouachita'' Fanshell
The ``Ouachita'' fanshell currently occurs in 4 MUs within portions
of the Ouachita River basin (HUC-4) in Arkansas. One population is
presumed extirpated. Of the current MUs, one (25 percent) is estimated
to be highly resilient, one (25 percent) is estimated to be moderately
resilient, and two (50 percent) are estimated to have low resiliency
(Service 2020, pp. 46-50). The habitat conditions across the 4 extant
populations are medium to high (Service 2020, p. 47).
Future Conditions
We forecasted the western fanshell's and ``Ouachita'' fanshell's
responses to plausible future scenarios of environmental conditions.
The future scenarios project the threats into the future and consider
the impacts those threats could have on the viability of the western
fanshell and ``Ouachita'' fanshell. We apply the concepts of
resiliency, redundancy, and representation to the future scenarios to
describe possible future conditions of the western fanshell and
``Ouachita'' fanshell. The scenarios described in the SSA report
represent only two possible future conditions for each species.
Uncertainty is inherent in any projection of future condition, so we
must consider plausible scenarios to make our determinations. When
assessing the future, viability is not a specific state, but rather a
continuous measure of the likelihood that the species will sustain
populations over time.
In the SSA, we considered two future scenarios. Scenario 1 assesses
the species' responses to moderate increases in stressors influencing
the western fanshell and ``Ouachita'' fanshell populations, although
current conservation practices would remain in place. Scenario 2
assesses the species' responses to severe increases in stressors. Due
to a lack of resolution of the available data, we were unable to
distinguish any meaningful difference between a moderate increase in
stressors and a moderate decrease in stressors. As a result, we limited
the future forecasts to these two scenarios, which we projected over a
40-year period. We restricted our evaluation to 40 years primarily due
to limitations projecting non-modeled, extrapolated future conditions
for water quality, road density, and habitat fragmentation. A full
description of the future scenarios and our methods is available in the
SSA report (Service 2020, pp. 64-69).
Under Scenario 1, populations of both fanshell species are
projected to decline in resiliency and redundancy over time as
conditions moderately decline from current conditions. For western
fanshell, we project five (45 percent) of the currently extant MUs to
become extirpated. Of the remaining six populations, four (67 percent)
would be in medium condition, and two (33 percent) in low condition,
with no MUs in high condition. For ``Ouachita'' fanshell, we project
two (50 percent) of the currently extant MUs to become extirpated. Of
the remaining two populations, one (50 percent) would be in medium
condition, and one (50 percent) in low condition, with no MUs in high
condition. All of the extant HUC-4 river basins would remain occupied
for both species.
While our projections under Scenario 2 do not anticipate additional
extirpations from those observed under Scenario 1, we expect all
remaining populations of both species to be in low condition in 40
years. All extant HUC-4 river basins would remain occupied for both
species.
We note that, by using the SSA framework to guide our analysis of
the scientific information documented in the SSA report, we have not
only analyzed individual effects on the species, but we have also
analyzed their potential cumulative effects. We incorporate the
cumulative effects into our SSA analysis when we characterize the
current and future condition of the species. To assess the current and
future condition of the species, we undertake an iterative analysis
that encompasses and incorporates the threats individually and then
accumulates and evaluates the effects of all the 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.
Determination of Western Fanshell and ``Ouachita'' Fanshell 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 ``endangered species'' as a
species in danger of extinction throughout all or a significant portion
of its range, and ``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 ``endangered species'' or
``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.
Western Fanshell--Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the Act's section 4(a)(1)
factors, we determined that the western fanshell has experienced a
reduction in populations/management units from historical conditions.
However, the species still ranges over three of the four major
drainages (HUC-4 representation units) in which it historically
occurred. Eleven of 27 historical MUs are extant. Of those 11, 3 MUs
are currently in high condition, 3 in medium condition, and 5 in low
condition. The majority (54 percent) of the MUs are in high or medium
condition. There is at least one MU in high condition in each of the 3
extant representation units. With 11 extant
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MUs across three HUC-4s, the species currently retains redundancy to
withstand and survive potential catastrophic events, although there is
no imminent catastrophic threat. Therefore, we determined that the
species is not in danger of extinction throughout all of its range.
However, the following threats currently acting on the western
fanshell will likely continue into the foreseeable future and decrease
the condition of the species further over time: Habitat loss and
degradation from siltation, water quality degradation, altered flow,
landscape changes, and habitat fragmentation (Factor A). These threats
are reasonably expected to be exacerbated by continued urbanization,
and threats of water quality (temperature) and flow are especially
exacerbated by climate change (Factor E). These threats will continue
to impact the species into the foreseeable future, and the existing
regulatory mechanisms (Factor D) are not adequately reducing the impact
of these threats on the species. The best available data do not
indicate that the western fanshell is currently impacted at the
population level by overutilization for commercial, recreational,
scientific, or educational purposes (Factor B) or predation or disease
(Factor C), nor do the best available data indicate that the species
will be impacted by these factors in the future.
Given the projection of threats 40 years into the future, the
number of western fanshell populations will decline with the projected
loss of five MUs, reducing the species' redundancy. Across the
plausible future scenarios, resiliency also declines with zero to four
populations projected to be in medium condition and two to six
populations in low condition. No populations are projected to be in
high condition in the foreseeable future. Representation is projected
to remain across the range, but the considerable loss of redundancy and
resiliency makes the species likely to become in danger of extinction
in the foreseeable future throughout its range. Thus, after assessing
the best available information, we conclude that the western fanshell
is likely to become in danger of extinction within the foreseeable
future throughout all of its range.
Western Fanshell--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,
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological
Diversity), vacated the aspect 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'' (79 FR 37578; July 1, 2014) that provided that the Service
does not undertake an analysis of significant portions of a species'
range if the species warrants listing as threatened throughout all 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 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 Center for Biological Diversity,
we now consider whether there are any significant portions of the
species' range where the species is in danger of extinction now (that
is, endangered). In undertaking this analysis for western fanshell, 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 is endangered.
For western fanshell, we considered whether the threats are
geographically concentrated in any portion of the species' range at a
biologically meaningful scale. We examined the following threats: Water
quality degradation, altered flow, landscape changes, and habitat
fragmentation, including cumulative effects. We evaluated multiple
factors--including various water quality parameters, land cover data,
road density, and barriers--that contribute to these primary threats.
These habitat factors are in a medium to high condition across the
species' range. Overall, we found that threats are acting similarly
within the occupied river basins across the species' range. We found no
concentration of threats in any portion of the western fanshell's range
at a biologically meaningful scale. Thus, there are no portions of the
species' range where the species has a different status from its
rangewide status. Therefore, 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 is consistent with the courts'
holdings in Desert Survivors v. Department of the Interior, No. 16-cv-
01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and Center for
Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz.
2017).
Western Fanshell--Determination of Status
Our review of the best available scientific and commercial
information indicates that the western fanshell meets the Act's
definition of a threatened species. Therefore, we propose to list the
western fanshell as a threatened species in accordance with sections
3(20) and 4(a)(1) of the Act.
``Ouachita'' Fanshell--Status Throughout All of Its Range
After evaluating threats to the species and assessing the
cumulative effect of the threats under the section 4(a)(1) factors, we
determined that the ``Ouachita'' fanshell has experienced a reduction
in resiliency and redundancy from historical conditions. The species is
extant in four MUs within one major drainage (HUC-4 representation
unit). The species historically occurred in Bayou Bartholomew in
Louisiana. Of the four extant MUs, one is currently in high condition,
one in medium condition, and two in low condition. The species appears
to be endemic to the Ouachita River basin. Although the species is
known from only one representation unit, half of the extant populations
are in high or medium condition. The species currently retains
redundancy to withstand and survive potential catastrophic events,
although there is no imminent catastrophic threat. Therefore, we
determined that the species is not in danger of extinction throughout
all of its range.
The following threats currently acting on the ``Ouachita'' fanshell
will likely continue into the foreseeable future and decrease the
condition of the species further over time: Habitat loss and
degradation from siltation, water quality degradation, altered flow,
landscape changes, and habitat fragmentation (Factor A). These threats
are reasonably expected to be exacerbated by continued urbanization,
and threats of water quality (temperature) and flow are especially
exacerbated by climate change (Factor E). These threats will
[[Page 12349]]
continue to impact the species into the foreseeable future, and the
existing regulatory mechanisms (Factor D) are not adequately reducing
the impact of these threats on the species. The best available data do
not indicate that the ``Ouachita'' fanshell is currently impacted at
the population level by overutilization for commercial, recreational,
scientific, or educational purposes (Factor B) or predation or disease
(Factor C), nor do the best available data indicate that the species
will be impacted by these factors in the future.
Given the projection of threats 40 years into the future, the
number of ``Ouachita'' fanshell populations will decline with the
projected loss of two MUs, reducing the species' redundancy. Resiliency
also declines with three to four populations projected to be in low
condition and zero to one population(s) in medium condition. No
populations are projected to be in high condition in the foreseeable
future. As the species occurs in only the Ouachita River basin,
representation is projected to remain, but the considerable loss of
redundancy and resiliency makes the species likely to become in danger
of extinction in the foreseeable future throughout its range. Thus,
after assessing the best available information, we conclude that the
``Ouachita'' fanshell is likely to become in danger of extinction
within the foreseeable future throughout all of its range.
``Ouachita'' Fanshell--Status Throughout a Significant Portion of Its
Range
See above, under Western Fanshell--Status Throughout a Significant
Portion of Its Range, for a description of our evaluation methods and
our policy application.
In undertaking the analysis for the ``Ouachita'' fanshell, 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 is endangered. We examined the following threats:
Water quality degradation, altered flow, landscape changes, and habitat
fragmentation, including cumulative effects. We evaluated multiple
factors--including various water quality parameters, land cover data,
road density, and barriers--that contribute to these primary threats.
These habitat factors are in a medium to high condition across the
species' range. Overall, we found that threats are acting similarly
across the species' range. We found no concentration of threats in any
portion of the ``Ouachita'' fanshell's range at a biologically
meaningful scale. Thus, there are no portions of the species' range
where the species has a different status from its rangewide status.
Therefore, 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 is consistent with the courts'
holdings in Desert Survivors v. Department of the Interior, No. 16-cv-
01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and Center for
Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz.
2017).
``Ouachita'' Fanshell--Determination of Status
Our review of the best available scientific and commercial
information indicates that the ``Ouachita'' fanshell meets the Act's
definition of a threatened species. Therefore, we propose to list the
``Ouachita'' fanshell 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, 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 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 recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. 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.
Recovery planning consists of preparing draft and final recovery
plans, beginning with the development of a recovery outline and making
it available to the public within 30 days of a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions. Revisions of the plan may be done to
address continuing or new threats to the species, as new substantive
information becomes available. The recovery plan also identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and as a benchmark 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. When completed, the
recovery outline, draft recovery plan, and the final recovery plan will
be available on our website (<a href="http://www.fws.gov/endangered">http://www.fws.gov/endangered</a>), or from
our Arkansas Ecological Services Field Office for ``Ouachita'' fanshell
or Missouri Ecological Services Field Office for western fanshell (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 (for example, 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 Arkansas, Kansas,
Missouri, and Oklahoma would be eligible for Federal funds to implement
management actions that promote the protection or recovery of the
western fanshell and the States of Arkansas and
[[Page 12350]]
Louisiana would be eligible for Federal funds to implement management
actions that promote the protection or recovery of the ``Ouachita''
fanshell. Information on our grant programs that are available to aid
species recovery can be found at: <a href="http://www.fws.gov/grants">http://www.fws.gov/grants</a>.
Although the western fanshell and ``Ouachita'' fanshell are only
proposed for listing under the Act at this time, please let us know if
you are interested in participating in conservation efforts for these
species. Additionally, we invite you to submit any new information on
these species whenever it becomes available and any information you may
have for recovery planning purposes (see FOR FURTHER INFORMATION
CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as an
endangered or threatened species and with respect to its critical
habitat, if any is designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any action that is likely to jeopardize the
continued existence of a species proposed for listing or result in
destruction or adverse modification of proposed critical habitat. If a
species is listed subsequently, section 7(a)(2) of the Act requires
Federal agencies to ensure that activities they authorize, fund, or
carry out are not likely to jeopardize the continued existence of the
species or destroy or adversely modify its critical habitat. If a
Federal action may affect a listed species or its critical habitat, the
responsible Federal agency must enter into consultation with the
Service.
Federal agency actions within the species' habitat that may require
conference or consultation or both as described in the preceding
paragraph include, but are not limited to, activities authorized,
funded, or carried out by the following agencies:
(1) U.S. Army Corps of Engineers (channel dredging and maintenance;
dam projects including flood control, navigation, hydropower, bridge
projects, stream restoration, and Clean Water Act permitting).
(2) U.S. Department of Agriculture, including the Natural Resources
Conservation Service and Farm Service Agency (technical and financial
assistance for projects) and the Forest Service (aquatic habitat
restoration, fire management plans, fuel reduction treatments, forest
plans, mining permits).
(3) U.S. Department of Energy (renewable and alternative energy
projects).
(4) Federal Energy Regulatory Commission (interstate pipeline
construction and maintenance, dam relicensing, hydrokinetics).
(5) U.S. Department of Transportation (highway and bridge
construction and maintenance).
(6) U.S. Fish and Wildlife Service (issuance of section 10 permits
for enhancement of survival, habitat conservation plans, and safe
harbor agreements; National Wildlife Refuge planning and refuge
activities; Partners for Fish and Wildlife program projects benefiting
these species or other listed species; Wildlife and Sportfish
Restoration program sportfish stocking).
(7) Environmental Protection Agency (water quality criteria,
permitting).
(8) Office of Surface Mining (land resource management plans,
mining permits, oil and natural gas permits, renewable energy
development).
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a proposed
listing on proposed and ongoing activities within the range of the
species proposed for listing. The discussion below regarding protective
regulations under section 4(d) of the Act complies with our policy.
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. The U.S. Supreme Court has noted that statutory
language like ``necessary and advisable'' demonstrates a large degree
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (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 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 rules
developed under section 4(d) as a valid exercise of agency authority
where they prohibited take of threatened wildlife, or include a limited
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (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 him [or her] with regard to the permitted activities for those
species. He [or she] may, for example, permit taking, but not
importation of such species, or he [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).
Exercising this authority under section 4(d), we have developed a
proposed rule that is designed to address the western fanshell's and
``Ouachita'' fanshell's specific threats and conservation needs.
Although the statute does not require us to make a ``necessary and
advisable'' finding with respect to the adoption of specific
prohibitions under section 9, we find that this rule as a whole
satisfies the requirement in section 4(d) of the Act to issue
regulations deemed necessary and advisable to provide for the
conservation of the western fanshell and ``Ouachita'' fanshell. As
discussed above under Summary of Biological Status and Threats, we have
concluded that the western fanshell and ``Ouachita'' fanshell are
likely to become in danger of extinction within the foreseeable future
primarily due to habitat loss and degradation from siltation, water and
sediment quality degradation, changes to flow, and impoundments. These
threats, which
[[Page 12351]]
are expected to be exacerbated by continued urbanization and the
effects of climate change, were central to our assessment of the future
viability of the western fanshell and ``Ouachita'' fanshell. The
provisions of this proposed 4(d) rule would promote conservation of the
western fanshell and ``Ouachita'' fanshell by encouraging management of
the landscape in ways that meet both land management considerations and
the conservation needs of the western fanshell and ``Ouachita''
fanshell. The provisions of this proposed rule are one of many tools
that we would use to promote the conservation of the western fanshell
and ``Ouachita'' fanshell. This proposed 4(d) rule would apply only if
and when we make final the listing of the western fanshell and
``Ouachita'' fanshell as threatened species.
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, 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.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are 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
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
This obligation does not change in any way for a threatened species
with a species-specific 4(d) rule. Actions that result in a
determination by a Federal agency of ``not likely to adversely affect''
continue to require the Service's written concurrence and actions that
are ``likely to adversely affect'' a species require formal
consultation and the formulation of a biological opinion.
Provisions of the Proposed 4(d) Rule
This proposed 4(d) rule would provide for the conservation of the
western fanshell and ``Ouachita'' fanshell by prohibiting the following
activities, except as otherwise authorized or permitted: Importing or
exporting; take; possession and other acts with unlawfully taken
specimens; delivering, receiving, 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.
As discussed above under Summary of Biological Status and Threats,
multiple factors are affecting the status of western fanshell and
``Ouachita'' fanshell. A range of activities have the potential to
affect these species, including, for example, habitat loss and
degradation from siltation, water and sediment quality degradation,
changes to flow, and impoundments. These threats, which are expected to
be exacerbated by continued urbanization and the effects of climate
change, were central to our assessment of the future viability of
western fanshell and ``Ouachita'' fanshell. Therefore, we prohibit
actions resulting in the incidental take of western fanshell and
``Ouachita'' fanshell by altering or degrading the habitat. Regulating
incidental take resulting from these activities would help preserve the
species' remaining populations, slow their rate of decline, and
decrease synergistic, negative effects from other stressors.
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
regulation at 50 CFR 17.3. Take can result knowingly or otherwise, by
direct and indirect impacts, intentionally or incidentally.
The proposed 4(d) rule would also provide for the conservation of
the species by allowing exceptions to actions and activities that,
while they may have some minimal level of disturbance to the western
fanshell and ``Ouachita'' fanshell, are not expected to negatively
affect the species' conservation and recovery efforts. The proposed
exceptions to these prohibitions include: (1) Channel and bank
restoration projects; (2) silviculture and forest management that
implements best management practices; and (3) transportation projects
that avoid instream disturbance in waters occupied by the species.
The first exception is for incidental take resulting from channel
and bank restoration projects for creation of natural, physically
stable, ecologically functioning streams, taking into consideration
connectivity with floodplain and groundwater aquifers. This exception
includes a requirement that bank restoration projects require planting
appropriate native vegetation, including woody species appropriate for
the region and habitat. We also propose language that would require
surveys and relocation prior to commencement of restoration actions
(and, if applicable, monitoring after relocation) for western fanshell
and ``Ouachita'' fanshell that would otherwise be negatively affected
by the actions. Actions related to restoration activities that would
negatively affect western fanshell and ``Ouachita'' fanshell include:
Individual mussels being removed, dislodged, crushed and/or killed by
heavy equipment operations and rip-rap placement; removal, destruction
and/or replacement of habitat; increased turbidity from streambed
disturbance; and alterations to flow and turbidity from permanent
(weirs) or temporary (causeways) structures needed for construction.
The second exception is for incidental take resulting from
silviculture and forest management activities that use State-approved
best management practices to protect water and sediment quality and
stream and riparian habitat. Best management practices are designed to
reduce sedimentation, erosion, and bank destruction, thereby protecting
instream habitat for these species.
The third exception is for incidental take resulting from
transportation projects that do not include activities that disturb
instream habitat. Bridge designs that include spanning the stream and
avoiding stream bank disturbance reduce sedimentation and erosion,
thereby protecting instream habitat for these species.
We reiterate that these actions and activities may have some
minimal level of take of the western fanshell and ``Ouachita''
fanshell, but any such take is expected to be rare and insignificant,
and is not expected to negatively impact the species' conservation and
recovery efforts. Rather, we expect they would have a net beneficial
effect on the species. Across the species' range, instream habitats
have been degraded physically by sedimentation and by direct and
indirect channel disturbance. The habitat restoration activities in the
proposed 4(d) rule are intended to
[[Page 12352]]
improve habitat conditions for the species in the long term.
We may issue permits to carry out otherwise prohibited activities,
including those described above, involving threatened wildlife under
certain circumstances. Regulations governing permits for threatened
wildlife are codified at 50 CFR 17.32. With regard to threatened
wildlife, a permit may be issued for the following purposes: For
scientific purposes, to enhance the propagation or survival of the
species, for economic hardship, for zoological exhibition, for
educational purposes, for incidental taking, or for special purposes
consistent with the purposes of the Act. The statute also contains
certain exemptions from the prohibitions, which are found in sections 9
and 10 of the Act. In addition, we are considering, but have not
specifically proposed in this document, an exception from permitting
requirements for individuals conducting presence/absence surveys,
studies to document habitat use, population monitoring, and evaluations
of potential impacts to the fanshells, provided the individual holds a
valid scientific collecting permit for mussels from the appropriate
State agency. If we conclude that this measure would provide for the
conservation of the species, we may include a provision in the final
4(d) rule. We specifically request comments on this provision we are
considering.
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 the Service in implementing all aspects of the Act.
In this regard, section 6 of the Act provides that the Service shall
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 the Service 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 the western
fanshell and ``Ouachita'' fanshell 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 the ability of
the Service to enter into partnerships for the management and
protection of the western fanshell and ``Ouachita'' fanshell. However,
interagency cooperation may be further streamlined through planned
programmatic consultations for the species between Federal agencies and
the Service, 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 the Service 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 (that is,
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 (for
example, migratory corridors, seasonal habitats, and habitats used
periodically, but not solely by vagrant individuals). Additionally, our
regulations at 50 CFR 424.02 define the word ``habitat,'' for the
purposes of designating critical habitat only, as the abiotic and
biotic setting that currently or periodically contains the resources
and conditions necessary to support one or more life processes of a
species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided pursuant to the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies 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. Where a landowner requests Federal
agency funding or authorization for an action that may affect a listed
species or critical habitat, the Federal agency would be required to
consult with the Service under section 7(a)(2) of the Act. However,
even if the Service were to conclude that the proposed activity would
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) 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). In identifying those
physical or biological features that occur in specific occupied areas,
we focus on the specific
[[Page 12353]]
features that are essential to support the life-history needs of the
species, including, but not limited to, water characteristics, soil
type, geological features, 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.
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. The implementing regulations at 50 CFR 424.12(b)(2) further
delineate unoccupied critical habitat by setting out three specific
parameters: (1) When designating critical habitat, the Secretary will
first evaluate areas occupied by the species; (2) the Secretary will
consider unoccupied areas to be essential only where a critical habitat
designation limited to geographical areas occupied by the species would
be inadequate to ensure the conservation of the species; and (3) for an
unoccupied area to be considered essential, the Secretary must
determine that there is a reasonable certainty both that the area will
contribute to the conservation of the species and that the area
contains one or more of those physical or biological features essential
to 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.
As the regulatory definition of ``habitat'' reflects (50 CFR
424.02), 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 section 9 of the Act.
Federally funded or permitted projects affecting listed species outside
their designated critical habitat areas may still result in jeopardy
findings in some cases. These protections and conservation tools will
continue to contribute to recovery of these 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.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that, to the maximum extent prudent
and determinable, the Secretary shall designate critical habitat at the
time the species is determined to be an endangered or threatened
species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary
may, but is not required to, determine that a designation would not be
prudent in the following circumstances:
(i) The species is threatened by taking or other human activity and
identification of critical habitat can be expected to increase the
degree of such threat to the species;
(ii) The present or threatened destruction, modification, or
curtailment of a species' habitat or range is not a threat to the
species, or threats to the species' habitat stem solely from causes
that cannot be addressed through management actions resulting from
consultations under section 7(a)(2) of the Act;
(iii) Areas within the jurisdiction of the United States provide no
more than negligible conservation value, if any, for a species
occurring primarily outside the jurisdiction of the United States;
(iv) No areas meet the definition of critical habitat; or
(v) The Secretary otherwise determines that designation of critical
habitat would not be prudent based on the best scientific data
available.
As discussed earlier in this document, there is currently no
imminent threat of collection or vandalism identified under Factor B
for these species, and identification and mapping of critical habitat
is not expected to initiate any such threat. In our SSA and proposed
listing determination for the western fanshell and ``Ouachita''
fanshell, we determined that the present or threatened destruction,
modification, or curtailment of habitat or range is a threat to the
western fanshell and ``Ouachita'' fanshell and that those threats can
be addressed in some way by section 7(a)(2) consultation measures.
These species occur wholly in the jurisdiction of the United States,
and we are able to identify areas that meet the definition of critical
habitat. Therefore, because none of the circumstances enumerated in our
regulations at 50 CFR 424.12(a)(1) have been met and because the
Secretary has not identified other circumstances for which this
designation of critical habitat would be not prudent, we have
determined that the designation of critical habitat is prudent for the
western fanshell and ``Ouachita'' fanshell.
Critical Habitat Determinability
Having determined that designation is prudent, under section
4(a)(3) of the Act we must find whether critical habitat for the
western fanshell and ``Ouachita'' fanshell is determinable. Our
regulations at 50 CFR 424.12(a)(2) state
[[Page 12354]]
that critical habitat is not determinable when one or both of the
following situations exist:
(i) Data sufficient to perform required analyses are lacking, or
(ii) The biological needs of the species are not sufficiently well
known to identify any area that meets the definition of ``critical
habitat.''
When critical habitat is not determinable, the Act allows the
Service an additional year to publish a critical habitat designation
(16 U.S.C. 1533(b)(6)(C)(ii)).
We reviewed the available information pertaining to the biological
needs of the species and habitat characteristics where these species
are located. This and other information represent the best scientific
data available and led us to conclude that the designation of critical
habitat is determinable for the western fanshell and ``Ouachita''
fanshell.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and
which may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkaline
soil for seed germination, protective cover for migration, or
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include
prey species, forage grasses, specific kinds or ages of trees for
roosting or nesting, symbiotic fungi, or absence of or 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,
western fanshell and ``Ouachita'' fanshell occur in large creeks and
rivers. Occasional or regular interaction among individuals in
different river reaches not interrupted by a barrier likely occurs, but
in general, interaction is strongly influenced by habitat fragmentation
and distance between occupied river or stream reaches. Once released
from their fish host, freshwater mussels are benthic (bottom-dwelling),
generally sedentary aquatic organisms and closely associated with
appropriate habitat patches within a river or stream.
We derive the specific physical or biological features essential
for the western fanshell and ``Ouachita'' fanshell from studies of
these species' (or appropriate surrogate species') habitat, ecology,
and life history. The primary habitat elements that influence
resiliency of the western fanshell and ``Ouachita'' fanshell include
water quality, water quantity, substrate, habitat connectivity, and the
presence of host fish species to ensure recruitment. These features are
also described above as species needs under Summary of Biological
Status and Threats, and a full description is available in the SSA
report; the individuals' needs are summarized below in Table 1.
Table 1--Requirements for Life Stages of Western Fanshell and ``Ouachita'' Fanshell
----------------------------------------------------------------------------------------------------------------
Life stage Resource needs--habitat requirements References
----------------------------------------------------------------------------------------------------------------
All Life Stages....................... Water Quality: Naturally clean, high Allen et al. 2007, pp. 80-85;
quality water with little or no harmful Augspurger et al. 2003, p.
pollutants (that is, pollutants occur 2569; Bringolf et al. 2007a,
below tolerance limits of mussels, fish p. 2094; 2007b, p. 2086; Cope
hosts, prey). The values below are et al. 2008, p. 455; Fuller
based on the best available science and 1974, pp. 240-246; Gillis et
assume mussels respond to average al. 2008, pp. 140-141; Gray
values of a constituent over time et al. 2002, pp. 155-156;
(acute or chronic exposure). Kolpin et al. 2002, pp. 1208-
[rtarr8] Dissolved oxygen >3 milligrams 1210; Spooner and Vaughn
per liter (mg/L). 2008, p. 311; Steingraeber et
[rtarr8] Low salinity/total dissolved al. 2007, p. 297; Wang et al.
solids. 2007a, 2007b, 2010, 2013,
[rtarr8] Low nutrient concentrations.... entire.
[rtarr8] Total ammonia nitrogen <0.3-1.0
mg/L at pH 8.0 & 25 [deg]C.
[rtarr8] Nitrate <2.0 mg/L..........
[rtarr8] Nitrite <55.8 mg/L.........
[rtarr8] Low concentrations of metals.
[rtarr8] Cadmium <0.014 mg/L at 50
mg/L calcium carbonate (CaCO3)
hardness.
[rtarr8] Zinc <0.120 mg/L at 50 mg/L
CaCO3 hardness.
[rtarr8] Lead <0.205 mg/L at 50 mg/L
CaCO3 hardness.
[rtarr8] Copper <0.005 mg/L in
moderately hard water.
[rtarr8] Natural, unaltered ambient
water temperature generally <27
[deg]C.
Water Quantity: Flowing water in Galbraith and Vaughn 2009, p.
sufficient quantity to support the life- 46; Allen and Vaughn 2010, p.
history requirements of mussels and 390; Peterson et al. 2011, p.
their fish hosts. 115; Daraio et al. 2010, p.
838.
[[Page 12355]]
Gamete (sperm, egg development, [rtarr8] Sexually mature males and Haag 2012, pp. 38-39;
fertilization). females with appropriate water Galbraith and Vaughn 2009,
Glochidia............................. temperatures for spawning, pp. 45-46; Barnhart et al.
fertilization, and brooding. 2008, p. 372.
[rtarr8] Presence of fish hosts (of
appropriate species) with sufficient
flow to allow attachment, encystment,
relocation, excystment, and dispersal
of glochidia..
Juvenile, sub-adult, and adult (from [rtarr8] Stable substrate comprised of Allen and Vaughn 2010, pp. 384-
excystment to maturity). mixed sand, gravel and cobble, and 385; Haag 2012, pp. 26-42;
appropriate for burrowing, pedal Eckert 2003, pp. 18-19, 33.
feeding, and survival.
[rtarr8] Appropriate food sources
(phytoplankton, zooplankton,
protozoans, detritus, dissolved organic
matter) in adequate supply..
[rtarr8] Presence and abundance of fish
hosts available for recruitment..
----------------------------------------------------------------------------------------------------------------
Summary of Essential Physical or Biological Features
We derive the specific physical or biological features essential to
the conservation of the western fanshell and ``Ouachita'' fanshell from
studies of the species' habitat, ecology, and life history as described
below. Additional information can be found in chapter 2 of the SSA
report (Service 2020, pp. 9-15), which is available on <a href="http://www.regulations.gov">http://www.regulations.gov</a> under Docket No. FWS-R3-ES-2021-0061. We have
determined that the following physical or biological features are
essential to the conservation of the western fanshell and ``Ouachita''
fanshell:
(1) Adequate flows, or a hydrologic flow regime (magnitude, timing,
frequency, duration, rate of change, and overall seasonality of
discharge over time), necessary to maintain benthic habitats where the
species are found and to maintain stream connectivity, specifically
providing for the exchange of nutrients and sediment for maintenance of
the mussels' and fish hosts' habitat and food availability, maintenance
of spawning habitat for native host fishes, and the ability for newly
transformed juveniles to settle and become established in their
habitats. Adequate flows ensure delivery of oxygen, enable
reproduction, deliver food to filter-feeding mussels, and reduce
contaminants and fine sediments from interstitial spaces.
(2) Suitable substrates and connected instream habitats,
characterized by geomorphically stable stream channels and banks (that
is, channels that maintain lateral dimensions, longitudinal profiles,
and sinuosity patterns over time without an aggrading or degrading bed
elevation) with habitats that support a diversity of freshwater mussel
and native fish (such as stable riffle-run-pool habitats that provide
flow refuges consisting of silt-free gravel and coarse sand
substrates).
(3) 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: Dissolved oxygen
(generally above 3 parts per million (ppm)) and water temperature
(generally below 80 degrees Fahrenheit ([deg]F) (27 degrees Celsius
([deg]C)). Additionally, water and sediment should be low in ammonia
(generally below 1.0 ppm total ammonia-nitrogen) and heavy metals, and
lack excessive total suspended solids and other pollutants.
(4) The presence and abundance of fish hosts necessary for
recruitment of the western fanshell and ``Ouachita'' fanshell,
including logperch (Percina caprodes), rainbow darter (Etheostoma
caeruleum), slenderhead darter (Percina phoxocephala), fantail darter
(Etheostoma flabellare), or orangebelly darter (Etheostoma radiosum).
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 essential to the conservation of the
species and which may require special management considerations or
protection.
The features essential to the conservation of the western fanshell
and ``Ouachita'' fanshell may require special management considerations
or protections to reduce the following threats: (1) Alteration of the
natural flow regime (modifying the natural hydrograph and seasonal
flows), including water withdrawals, resulting in flow reduction and
available water quantity; (2) urbanization of the landscape, including
(but not limited to) land conversion for urban and commercial use,
infrastructure (pipelines, roads, bridges, utilities), and urban water
uses (resource extraction activities, water supply reservoirs,
wastewater treatment, etc.); (3) significant alteration of water
quality and nutrient pollution from a variety of activities, such as
industrial and municipal effluents, mining, and agricultural
activities; (4) land use activities that remove large areas of forested
wetlands and riparian systems; (5) dam construction and culvert and
pipe installation that create barriers to movement for the western
fanshell and ``Ouachita'' fanshell, or their host fishes; (6) changes
and shifts in seasonal precipitation patterns as a result of climate
change; and (7) other watershed and floodplain disturbances that
release sediments, pollutants, or nutrients into the water.
Management activities that could ameliorate these threats include,
but are not limited to: Use of best management practices designed to
reduce sedimentation, erosion, and bank destruction; protection of
riparian corridors and woody vegetation; moderation of surface and
ground water withdrawals to maintain natural flow regimes; improved
stormwater management; and reduction of other watershed and floodplain
disturbances that release sediments, pollutants, or nutrients into the
water.
In summary, we find that the occupied areas we are proposing to
designate as critical habitat contain the physical or biological
features that are essential to the conservation of the species and
which may require special management considerations or protection.
Special management considerations or protection may be required of the
Federal action agency to eliminate, or to reduce to negligible levels,
the threats affecting the physical and biological features of each
unit.
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 12356]]
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 anticipate that recovery will require conserving the genetic
diversity of extant populations across the HUC-4 watersheds within the
species' current range and maintaining and, where necessary, improving
habitat and habitat connectivity to ensure the long-term viability of
western fanshell and ``Ouachita'' fanshell. We have determined that the
currently occupied MUs of western fanshell and ``Ouachita'' fanshell
would maintain each species' resiliency, redundancy, and representation
and are sufficient to conserve these two species. Therefore, we are not
currently proposing to designate any areas outside the geographical
area occupied by the species.
Methodology Used for Selection of Proposed Units
First, we included current populations with high or medium
resiliency. These populations show recruitment or varied age class
structure and could be used for recovery actions to augment other
populations through propagation activities or direct translocations
within their basins. We defined a population as ``current'' if it
contains live or recent dead individuals observed in surveys from 2000
to the present (Service 2020, p. 21).
Second, we evaluated spatial representation and redundancy across
the species' ranges, to include last remaining population(s) in major
river basins.
Third, we examined the overall contribution of populations in low
condition and threats to those populations. We considered adjacency and
connectivity to high and medium populations, as well as isolated
populations with potentially important genetic or adaptive traits, and
did not include populations that have potentially low likelihood of
recovery due to low abundance and limited distribution or populations
currently under high levels of threats.
Sources of data for this proposed critical habitat designation
include information from State agencies throughout the species' ranges
and numerous survey reports on streams throughout the species' ranges
(Service 2020, entire). We have also reviewed available information
that pertains to the habitat requirements of these species. Sources of
information on habitat requirements include studies conducted at
occupied sites and published in peer-reviewed articles, agency reports,
and data collected during monitoring efforts (Service 2020, entire).
In summary, for areas within the geographic area occupied by these
species at the time of listing, we delineated critical habitat unit
boundaries using a precise set of criteria. Specifically, we identified
river and stream reaches with observations from 2000 to present. We
determined it is reasonable to find these areas occupied, given the
variable data associated with timing and frequency of mussel surveys
conducted throughout the species' ranges and available State heritage
databases, and information supports the likelihood of both species'
continued presence in these areas within this timeframe. Specific
habitat areas were delineated, based on Natural Heritage Element
Occurrences, published reports, and unpublished survey data provided by
States. These areas provide habitat for western fanshell and
``Ouachita'' fanshell populations and are large enough to be self-
sustaining over time, despite fluctuations in local conditions. The
areas within the proposed units represent continuous river and stream
reaches of free-flowing habitat patches capable of sustaining host
fishes and allowing for seasonal transport of glochidia, which are
essential for reproduction and dispersal of western fanshell and
``Ouachita'' fanshell. We consider portions of the following rivers and
streams to be occupied by these species at the time of proposed
listing, and appropriate for critical habitat designation:
(1) Western fanshell--Black River, Fall River, Middle Fork Little
Red River, St. Francis River, South Fork Spring River, Spring River,
Strawberry River, and Verdigris River.
(2) ``Ouachita'' fanshell--Little Missouri River, Ouachita River,
and Saline River.
When determining proposed critical habitat boundaries, we made
every effort to avoid inclusion of developed areas, such as lands
covered by buildings, pavement, and other structures because such lands
lack physical or biological features necessary for the western fanshell
and ``Ouachita'' fanshell. 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 lands that we have
determined are occupied at the time of listing (that is, currently
occupied) and that contain one or more of the physical or biological
features that are essential to support life-history processes of the
species.
We are proposing to designate as critical habitat nine units for
the western fanshell and four units for the ``Ouachita'' fanshell based
on one or more of the physical or biological features being present to
support the western fanshell's or ``Ouachita'' fanshell's life-history
processes. Some units contain all of the identified physical or
biological features and support multiple life-history processes. Some
units contain only some of the physical or biological features
necessary to support the western fanshell's and ``Ouachita'' fanshell's
particular use of that habitat.
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 <a href="http://www.regulations.gov">http://www.regulations.gov</a> at Docket No. FWS-R3-ES-
2021-0061 and on our internet sites <a href="https://www.fws.gov/midwest/">https://www.fws.gov/midwest/</a> for
western fanshell and <a href="https://www.fws.gov/southeast/">https://www.fws.gov/southeast/</a> for ``Ouachita''
fanshell.
Proposed Critical Habitat Designation
We are proposing to designate approximately 360 river miles (river
mi) (579 kilometers (km)) in nine units as critical habitat for western
fanshell and approximately 294 river mi (474 km) in four units for
``Ouachita'' fanshell. The critical habitat areas we describe below
constitute our current best assessment of areas that meet the
definition of critical habitat for western fanshell and ``Ouachita''
fanshell. All units are occupied by their respective species. The nine
areas we propose as critical habitat for western fanshell are: (1)
Upper Black River, (2) Lower Black/Strawberry River, (3) Fall River,
(4)
[[Page 12357]]
Middle Fork Little Red River, (5) St. Francis River, (6) South Fork
Spring River, (7) Spring River (AR), (8) Spring River (MO/KS), and (9)
Verdigris River. The four areas we propose as critical habitat for
``Ouachita'' fanshell are: (1) Little Missouri River, (2) Ouachita
Headwaters, (3) Ouachita River, and (4) Saline River. Tables 2 and 3
show the proposed critical habitat units and the approximate area of
each unit.
Table 2--Proposed Critical Habitat Units for Western Fanshell
[Area estimates reflect all land within critical habitat unit
boundaries.]
------------------------------------------------------------------------
Adjacent riparian land River miles
Critical habitat unit ownership by type (kilometers)
------------------------------------------------------------------------
WF 1. Upper Black River......... Public (Federal, 13.7 (22)
State).
Private............... 51 (82.1)
WF 2. Lower Black/Strawberry Public (State)........ 10.9 (17.5)
River.
Private............... 100.4 (161.6)
WF 3. Fall River................ Private............... 45.5 (73.2)
WF 4. Middle Fork Little Red Public (Federal)...... 3.5 (5.6)
River.
Private............... 30.6 (49.2)
WF 5. St. Francis River......... Public (Federal, 12.6 (20.2)
State).
Private............... 36.7 (59.1)
WF 6. South Fork Spring River... Private............... 13.4 (21.6)
WF 7. Spring River (AR)......... Private............... 14.2 (22.9)
WF 8. Spring River (MO/KS)...... Public (State)........ 1.0 (1.6)
Private............... 14.0 (22.5)
WF 9. Verdigris River........... Private............... 12.4 (20)
---------------
Totals...................... Public................ 41.7 (67.1)
---------------
Private............... 318.2 (512.1)
Total.............. 359.9 (579.2)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
Table 3--Proposed Critical Habitat Units for ``Ouachita'' Fanshell
[Area estimates reflect all land within critical habitat unit
boundaries.]
------------------------------------------------------------------------
Adjacent riparian land River miles
Critical habitat unit ownership by type (kilometers)
------------------------------------------------------------------------
OF 1. Little Missouri River..... Private............... 22.9 (36.9)
OF 2. Ouachita Headwaters....... Public (Federal)...... 2.8 (4.5)
Private............... 29.9 (48.1)
OF 3. Ouachita River............ Private............... 53.5 (86.1)
OF 4. Saline River.............. Public (State)........ 0.5 (0.8)
Private............... 184.8 (297.4)
---------------
Totals...................... Public................ 3.3 (5.3)
Private............... 291.1 (468.5)
---------------
Total.............. 294.4 (473.8)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.
We present brief descriptions of all units, and reasons why they
meet the definition of critical habitat for the western fanshell or
``Ouachita'' fanshell, below.
WF 1: Upper Black River
Unit WF 1 consists of 64.7 river mi (104.1 km) of Black River in
Butler and Wayne Counties, Missouri, from Clearwater Dam southwest of
Piedmont, Wayne County, extending downstream to Butler County Road 658
crossing southeast of Poplar Bluff, Butler County, and includes the
river channel up to the ordinary high water mark. Riparian lands that
border the unit include approximately 51 river mi (82.1 km; 79 percent)
in private ownership and 13.7 river mi (22 km; 21 percent) in public
(Federal or State) ownership. Approximately 2.7 miles of the public
ownership in this unit are State lands associated with Missouri
Department of Conservation's (MDC) Bradley A. Hammer Memorial
Conservation Area, Dan River Access, Hilliard Access, and Stephen J.
Sun Conservation Area. Eleven miles are Federal land associated with
the U.S. Forest Service's (USFS) Mark Twain National Forest and U.S.
Army Corps of Engineers (USACE) Clearwater Recreation Area. General
land use within the adjacent riparian areas of this unit includes
forest, agriculture, several State-managed game lands, the town of Mill
Spring, and city of Poplar Bluff. Clearwater Dam is operated by the
USACE. Unit WF 1 is occupied by the species and contains all of the
physical or biological features essential to the conservation of the
species. There is no overlap with any designated critical habitat for
other listed species.
Threats identified within the unit include degradation of habitat
and water quality from impoundments, channelization, and point and
nonpoint source water pollution, including siltation and pollution
associated with agriculture, development, and wastewater treatment
plants. Special management considerations or protection measures to
reduce or alleviate the threats may include reducing water quality
degradation and
[[Page 12358]]
habitat loss associated with agriculture, development, and wastewater
treatment plants (see Special Management Considerations or Protection,
above).
WF 2: Lower Black/Strawberry River
Unit WF 2 consists of 111.3 river mi (179.1 km) of Black River and
Strawberry River in Independence, Jackson, Lawrence, and Sharp Counties
in Arkansas and includes the river channel up to the ordinary high
water mark. Black River makes up 54.6 river mi (87.9 km) from the mouth
of Spring River northeast of Black Rock, extending downstream to the
mouth of Strawberry River northeast of Dowdy, Independence County,
Arkansas. Strawberry River makes up 56.7 river mi (91.2 km) from the
mouth of Lave Creek north of Evening Shade, Sharp County, extending
downstream to the confluence with Black River northeast of Dowdy,
Independence County, Arkansas. Riparian lands that border the unit
include approximately 100.4 river mi (161.6 km; 90 percent) in private
ownership and 10.9 river mi (17.5 km; 10 percent) in public (State)
ownership. The public land ownership in this unit is associated with
Arkansas Game and Fish Commission's Shirey Bay Rainey Brake Wildlife
Management Area on Black River. The Nature Conservancy's Strawberry
River Preserve and Ranch on Strawberry River is also in this unit.
General land use within this unit includes forest, agriculture, State-
managed game lands, the town of Powhatan, and city of Black Rock. Unit
WF 2 is occupied by the species and contains one or more of the
physical or biological features essential to the species' conservation.
There is overlap of 70.3 river mi (113.1 km) of this unit with
designated critical habitat for rabbitsfoot (Quadrula cylindrica
cylindrica) (see 50 CFR 17.95(f) and 80 FR 24692, April 30, 2015).
Threats identified within the unit include degradation of habitat
and water quality from impoundments, channelization, and point and
nonpoint source water pollution, including siltation and pollution
associated with agriculture, development, unpaved roads, and wastewater
treatment plants. Special management considerations or protection
measures to reduce or alleviate the threats may include reducing water
quality degradation and habitat loss associated with agriculture,
development, and wastewater treatment plants (see Special Management
Considerations or Protection, above).
WF 3: Fall River
Unit WF 3 consists of 45.5 river mi (73.2 km) of Fall River in
Greenwood and Wilson Counties, Kansas, from the Greenwood County Road
33/Merchants Avenue crossing at Fall River, Greenwood County, extending
downstream to the U.S. Route 400 crossing west of Neodesha, Wilson
County, and includes the river channel up to the ordinary high water
mark. Approximately 100 percent of the riparian lands that border the
unit are in private ownership. General land use within the adjacent
riparian areas of this unit includes forest, agriculture, and the city
of Fall River. Unit WF 3 is occupied by the species and contains one or
more of the physical or biological features essential to the species'
conservation. There is overlap of 45.5 river mi (73.2 km) of this unit
with designated critical habitat for Neosho mucket (Lampsilis
rafinesqueana) (see 50 CFR 17.95(f) and 80 FR 24692, April 30, 2015).
Threats identified within the unit include degradation of habitat
and water quality from impoundments and point and nonpoint source water
pollution, including siltation and pollution associated with
agriculture, development, unpaved roads, and wastewater treatment
plants. Special management considerations or protection measures to
reduce or alleviate the threats may include reducing water quality
degradation and habitat loss associated with agriculture, development,
and wastewater treatment plants (see Special Management Considerations
or Protection, above).
WF 4: Middle Fork Little Red River
Unit WF 4 consists of 34.1 river mi (54.8 km) of Middle Fork Little
Red River in Cleburne, Stone, and Van Buren Counties, Arkansas, from
the mouth of Linn Creek east of Dennard, Van Buren County, extending
downstream to the mouth of Wild Goose Creek north of Fairfield Bay,
Cleburne and Van Buren Counties, and includes the river channel up to
the ordinary high water mark. Riparian lands that border the unit
include approximately 30.6 river mi (49.2 km; 90 percent) in private
ownership and 3.5 river mi (5.6 km; 10 percent) in public (Federal)
ownership. All of the public land ownership in this unit is Federal
land associated with the USACE's Greers Ferry Recreation Area. General
land use within the adjacent riparian areas of this unit includes
forest, pasture, the town of Shirley, and the city of Fairfield Bay.
Unit WF 4 is occupied by the species and contains one or more of the
physical or biological features essential to the species' conservation.
There is overlap of 34.1 river mi (54.9 km) of this unit with
designated critical habitat for yellowcheek darter (Etheostoma moorei)
(see 50 CFR 17.95(e) and 77 FR 63604, October 16, 2012) and rabbitsfoot
(see 50 CFR 17.95(f) and 80 FR 24692, April 30, 2015).
Threats identified within the unit include degradation of habitat
and water quality from impoundments and point and nonpoint source water
pollution, including siltation and pollution associated with
agriculture, development, unpaved roads, and wastewater treatment
plants. Special management considerations or protection measures to
reduce or alleviate the threats may include reducing water quality
degradation and habitat loss associated with agriculture, development,
and wastewater treatment plants (see Special Management Considerations
or Protection, above).
WF 5: St. Francis River
Unit WF 5 consists of 49.3 river mi (79.3 km) of St. Francis River
in Madison and Wayne Counties, Missouri, extending from the mouth of
Wachita Creek west of Fredericktown, Madison County, downstream to the
mouth of Big Creek northwest of Silva, Wayne County, and includes the
river channel up to the ordinary high water mark. Riparian lands that
border the unit include approximately 36.7 river mi (59.1 km; 74
percent) in private ownership and 12.6 river mi (20.2 km; 26 percent)
in public (Federal or State) ownership. Approximately 2.4 river mi of
the public ownership in this unit are State lands associated with MDC's
Coldwater Conservation Area, Mill Stream Gardens, and Roselle Access.
Ten miles are Federal land associated with the USFS's Mark Twain
National Forest. General land use within the adjacent riparian areas of
this unit is predominantly forest and pasture with isolated occurrences
of developed areas. Unit WF 5 is occupied by the species and contains
one or more of the physical or biological features essential to the
species' conservation. There is overlap of 49.3 river mi (79.3 km) of
this unit with designated critical habitat for rabbitsfoot (see 50 CFR
17.95(f) and 80 FR 24692, April 30, 2015).
Threats identified within the unit include degradation of habitat
and water quality from impoundments and point and nonpoint source water
pollution, including siltation and pollution associated with
development, unpaved roads, and wastewater treatment plants. Special
management considerations or protection measures to reduce or alleviate
the threats may include reducing water quality degradation and habitat
loss associated with agriculture, development, and wastewater treatment
[[Page 12359]]
plants (see Special Management Considerations or Protection, above).
WF 6: South Fork Spring River
Unit WF 6 consists of 13.4 river mi (21.6 km) of South Fork Spring
River in Fulton County, Arkansas, from the mouth of Camp Creek east of
Salem, Fulton County, extending downstream to the Arkansas Highway 289
crossing northwest of Cherokee Village, Fulton and Sharp Counties, and
includes the river channel up to the ordinary high water mark.
Approximately 100 percent of the riparian lands that border the unit
are in private ownership. General land use within the adjacent riparian
areas of this unit is predominantly forest, agriculture, and pasture
with isolated occurrences of developed areas. Unit WF 6 is occupied by
the species and contains one or more of the physical or biological
features essential to the species' conservation. There is no overlap
with any designated critical habitat for other listed species.
Threats identified within the unit include degradation of habitat
and water quality from point and nonpoint source water pollution,
including siltation and pollution associated with agriculture,
development, unpaved roads, and wastewater treatment plants. Special
management considerations or protection measures to reduce or alleviate
the threats may include reducing water quality degradation and habitat
loss associated with agriculture, development, and wastewater treatment
plants (see Special Management Considerations or Protection, above).
WF 7: Spring River (AR)
Unit WF 7 consists of 14.2 river mi (22.9 km) of Spring River in
Lawrence and Randolph Counties, Arkansas, from the mouth of Wells Creek
at Ravenden, extending downstream to the mouth of Stennitt Creek
southeast of Imboden, Lawrence County, and includes the river channel
up to the ordinary high water mark. Approximately 100 percent of the
riparian lands that border the unit are in private ownership. General
land use within the adjacent riparian areas of this unit includes
forest, agriculture, pasture, and the towns of Imboden and Ravenden.
Unit WF 7 is occupied by the species and contains one or more of the
physical or biological features essential to the species' conservation.
There is overlap of 14.2 river mi (22.9 km) of this unit with
designated critical habitat for rabbitsfoot (see 50 CFR 17.95(f) and 80
FR 24692, April 30, 2015).
Threats identified within the unit include degradation of habitat
and water quality from point and nonpoint source water pollution,
including siltation and pollution associated with agriculture,
development, unpaved roads, and wastewater treatment plants. Special
management considerations or protection measures to reduce or alleviate
the threats may include reducing water quality degradation and habitat
loss associated with agriculture, development, and wastewater treatment
plants (see Special Management Considerations or Protection, above).
WF 8: Spring River (MO/KS)
Unit WF 8 consists of 15 river mi (24.1 km) of Spring River in
Jasper County, Missouri, and Cherokee County, Kansas, from the mouth of
North Fork Spring River east of Asbury, Jasper County, Missouri,
extending downstream through Cherokee County, Kansas, to the mouth of
Center Creek west of Carl Junction, Jasper County, Missouri, and
includes the river channel up to the ordinary high water mark. Riparian
lands that border the unit include approximately 14.0 river mi (22.5
km; 94 percent) in private ownership and 1.0 river mi (1.6 km; 6
percent) in public (State) ownership. The public ownership of this unit
is State land associated with the Kansas Department of Wildlife, Parks
and Tourism's Spring River Wildlife Area. General land use within the
adjacent riparian areas of this unit is predominantly forest,
agriculture, pasture, and State-managed lands with isolated occurrences
of developed areas. Unit WF 8 is occupied by the species and contains
one or more of the physical or biological features essential to the
species' conservation. There is overlap of 15 river mi (24.1 km) of
this unit with designated critical habitat for Neosho mucket and
rabbitsfoot (see 50 CFR 17.95(f) and 80 FR 24692, April 30, 2015).
Threats identified within the unit include degradation of habitat
and water quality from point and nonpoint source water pollution,
including siltation and pollution associated with agriculture,
development, unpaved roads, wastewater treatment plants, and historical
heavy metal mining. Special management considerations or protection
measures to reduce or alleviate the threats may include reducing water
quality degradation and habitat loss associated with agriculture,
development, wastewater treatment plants, and heavy metal contamination
(see Special Management Considerations or Protection, above).
WF 9: Verdigris River
Unit WF 9 consists of 12.4 river mi (20 km) of Verdigris River in
Montgomery and Wilson Counties, Kansas, from the mouth of Fall River
south of Neodesha, Wilson County, extending downstream to the mouth of
Choteau Creek northeast of Independence, Montgomery County, and
includes the river channel up to the ordinary high water mark.
Approximately 100 percent of the riparian lands that border the unit
are in private ownership. General land use within the adjacent riparian
areas of this unit is predominantly forest and agriculture with
isolated occurrences of developed areas. Unit WF 9 is occupied by the
species and contains one or more of the physical or biological features
essential to the species' conservation. There is overlap of 12.4 river
mi (20 km) of this unit with designated critical habitat for Neosho
mucket (see 50 CFR 17.95(f) and 80 FR 24692, April 30, 2015).
Threats identified within the unit include degradation of habitat
and water quality from point and nonpoint source water pollution,
including siltation and pollution associated with agriculture,
development, unpaved roads, and wastewater treatment plants. Special
management considerations or protection measures to reduce or alleviate
the threats may include reducing water quality degradation and habitat
loss associated with agriculture, development, and wastewater treatment
plants (see Special Management Considerations or Protection, above).
OF 1: Little Missouri River
Unit OF 1 consists of 22.9 river mi (36.9 km) of Little Missouri
River in Clark, Nevada, and Ouachita Counties, Arkansas, from the mouth
of Garland Creek northeast of Prescott, Nevada County, downstream to
the mouth of Horse Branch north of Red Hill, Ouachita County, and
includes the river channel up to the ordinary high water mark.
Approximately 100 percent of the riparian lands that border the unit
are in private ownership. General land use within the adjacent riparian
areas of this unit includes forest and agriculture. Unit OF 1 is
occupied by the species and contains one or more of the physical or
biological features essential to the species' conservation. There is no
overlap with any designated critical habitat for other listed species.
Threats identified within the unit include dams, impoundments, and
point and nonpoint source water pollution, including siltation and
pollution associated with a variety of land uses. Special management
considerations or protection measures to reduce or alleviate the
threats may include reducing water quality degradation and habitat loss
and
[[Page 12360]]
fragmentation (see Special Management Considerations or Protection,
above).
OF 2: Ouachita Headwaters
Unit OF 2 consists of 32.7 river mi (52.6 km) of Ouachita River in
Montgomery and Polk Counties, Arkansas, from the County Road 67
crossing south of Cherry Hill, Polk County, downstream to the U.S.
Route 270 crossing southeast of Pencil Bluff, Montgomery County, and
includes the river channel up to the ordinary high water mark. Riparian
lands that border the unit include approximately 29.9 river mi (48.1
km; 91 percent) in private ownership and 2.8 river mi (4.5 km; 9
percent) in public (Federal) ownership. The public ownership in this
unit is Federal land associated with USFS's Ouachita National Forest.
General land use within the adjacent riparian areas of this unit
includes forest and agriculture. Unit OF 2 is occupied by the species
and contains one or more of the physical or biological features
essential to the species' conservation. There is no overlap with any
designated critical habitat for other listed species.
Threats identified within the unit include impoundments and point
and nonpoint source water pollution, including siltation and pollution
associated with a variety of land uses. Special management
considerations or protection measures to reduce or alleviate the
threats may include reducing water quality degradation and habitat loss
and fragmentation (see Special Management Considerations or Protection,
above).
OF 3: Ouachita River
Unit OF 3 consists of 53.5 river mi (86.1 km) of Ouachita River in
Clark, Dallas, and Ouachita Counties, Arkansas, from the mouth of L'Eau
Frais Creek southeast of Arkadelphia, Clark County, downstream to the
mouth of Ecore Fabre Bayou north of Camden, Ouachita County, and
includes the river channel up to the ordinary high water mark.
Approximately 100 percent of the riparian lands that border the unit
are in private ownership. There is a Wetlands Reserve Program easement
within the unit. General land use within the adjacent riparian areas of
this unit includes forest, agriculture, and pasture. Unit OF 3 is
occupied by the species and contains one or more of the physical or
biological features essential to the species' conservation. There is
overlap of 22.8 river mi (36.7 km) of this unit with designated
critical habitat for rabbitsfoot (see 50 CFR 17.95(f) and 80 FR 24692,
April 30, 2015).
Threats identified within the unit include dams, impoundments, and
point and nonpoint source water pollution, including siltation and
pollution associated with a variety of land uses. Special management
considerations or protection measures to reduce or alleviate the
threats may include reducing water quality degradation and habitat loss
and fragmentation (see Special Management Considerations or Protection,
above).
OF 4: Saline River
Unit OF 4 consists of 185.3 river mi (298.2 km) of Saline River in
Ashley, Bradley, Cleveland, Dallas, Drew, Grant, and Saline Counties,
Arkansas, from the mouth of North Fork Saline River north of Benton,
Saline County, downstream to the mouth of Mill Creek north of
Stillions, Ashley County, and includes the river channel up to the
ordinary high water mark. Approximately 100 percent of the riparian
lands that border the unit are in private ownership and less than 1
percent is in public ownership. The public ownership in this unit is
State-owned land associated with Jenkins Ferry State Park. General land
use within the adjacent riparian areas of this unit includes forest,
agriculture, pasture, the town of Tull, and the city of Benton. Unit OF
4 is occupied by the species and contains one or more of the physical
or biological features essential to the species' conservation. There is
overlap of 185.3 river mi (298.2 km) of this unit with designated
critical habitat for the rabbitsfoot (see 50 CFR 17.95(f) and 80 FR
24692, April 30, 2015).
Threats identified within the unit include dams, impoundments,
mining, development, and point and nonpoint source water pollution,
including siltation and pollution associated with development in the
headwaters and a variety of other land uses. Special management
considerations or protection measures to reduce or alleviate the
threats may include reducing water quality degradation and habitat loss
and fragmentation (see Special Management Considerations or Protection,
above).
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 fund, authorize, 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 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
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.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are 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
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10
of the Act) or that involve some other Federal action (such as funding
from the Federal Highway Administration, Federal Aviation
Administration, or the Federal Emergency Management Agency). Federal
actions not affecting listed species or critical habitat--and actions
on State, Tribal, local, or private lands that are not federally
funded, authorized, or carried out by a Federal agency--do not require
section 7 consultation.
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,
[[Page 12361]]
(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
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 formal consultation on previously reviewed
actions. These requirements apply when the Federal agency has retained
discretionary involvement or control over the action (or the agency's
discretionary involvement or control is authorized by law) and,
subsequent to the previous consultation: (1) If the amount or extent of
taking specified in the incidental take statement is exceeded; (2) if
new information reveals effects of the action that may affect listed
species or critical habitat in a manner or to an extent not previously
considered; (3) if the identified action is subsequently modified in a
manner that causes an effect to the listed species or critical habitat
that was not considered in the biological opinion; or (4) if a new
species is listed or critical habitat designated that may be affected
by the identified action. In such situations, Federal agencies
sometimes may need to request reinitiation of consultation with us, but
the regulations also specify some exceptions to the requirement to
reinitiate consultation on specific land management plans after
subsequently listing a new species or designating new critical habitat.
See the regulations for a description of those exceptions.
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 as a
whole 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 the Service 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, actions that
would: (1) Alter the geomorphology of the species' stream and river
habitats (for example, instream excavation or dredging, impoundment,
channelization, sand and gravel mining, clearing riparian vegetation,
and discharge of fill materials); (2) significantly alter the existing
flow regime where these species occur (for example, impoundment, urban
development, water diversion, water withdrawal, water draw-down, and
hydropower generation); (3) significantly alter water chemistry or
water quality (for example, hydropower discharges, or the release of
chemicals, biological pollutants, or heated effluents into surface
water or connected groundwater at a point source or by dispersed
release (nonpoint source)); and (4) significantly alter stream bed
material composition and quality by increasing sediment deposition or
filamentous algal growth (for example, construction projects, gravel
and sand mining, oil and gas development, coal mining, livestock
grazing, irresponsible logging practices, and other watershed and
floodplain disturbances that release sediments or nutrients into the
water).
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 (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. 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.
We describe below the process that we undertook for taking into
consideration each category of impacts and our 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
[[Page 12362]]
regulatory and socio-economic burden imposed on landowners, managers,
or other resource users potentially affected by the designation of
critical habitat (for example, 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 (that is, 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.
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 western fanshell and ``Ouachita'' fanshell
(Industrial Economics, Inc. 2021, 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 (that is,
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. If the proposed critical habitat
designation contains any unoccupied units, the screening analysis
assesses whether those units require 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 designations for the western fanshell and
``Ouachita'' fanshell; our DEA is summarized in the narrative below.
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. 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 western fanshell and
``Ouachita'' fanshell, first we identified, in the IEM dated February
1, 2021, probable incremental economic impacts associated with the
following categories of activities: Instream excavation or dredging;
impoundments; channelization; sand and gravel mining; clearing riparian
vegetation; discharge of fill materials; urban development; water
diversion; water withdrawal; water draw-down; hydropower generation and
discharges; release of chemicals, biological pollutants, or heated
effluents into surface water or connected ground water at a point
source or by dispersed release (nonpoint); construction projects; oil
and gas development; coal mining; livestock grazing; timber harvest;
and other watershed or floodplain disturbances that release sediments
or nutrients into the water. We considered each industry or category
individually. Additionally, we considered whether their activities have
any Federal involvement. Critical habitat designation generally will
not affect activities that do not have any Federal involvement; under
the Act, designation of critical habitat affects only activities
conducted, funded, permitted, or authorized by Federal agencies. If we
list these species, in areas where the western fanshell or ``Ouachita''
fanshell are present, Federal agencies would be required to consult
with the Service under section 7 of the Act on activities they fund,
permit, or implement that may affect the species. If, when we list
these species, we also finalize this proposed critical habitat
designation, 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 (that is, difference
between the jeopardy and adverse modification standards) for the
western fanshell's and ``Ouachita'' fanshell's critical habitat.
Because the designation of critical habitat for western fanshell and
``Ouachita'' fanshell is 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 would 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 result in sufficient harm or harassment to constitute
jeopardy to the western fanshell or ``Ouachita'' fanshell would also
likely adversely affect the essential physical or biological features
of critical habitat. 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 western fanshell
includes nine units, all of which are occupied by the species.
Ownership of riparian lands adjacent to the proposed units includes
318.2 river mi (512.1 km; 88 percent) in private ownership and 41.7
river mi (67.1 km; 12 percent) in public (Federal or State) ownership.
The proposed critical habitat designation for the ``Ouachita'' fanshell
includes four units, all of which are occupied by the species.
Ownership of riparian lands
[[Page 12363]]
adjacent to the proposed units includes 291.1 river mi (468.5 km; 99
percent) in private ownership and 3.3 river mi (5.3 km; 1 percent) in
public (Federal or State) ownership.
Total incremental costs of critical habitat designation for the
western fanshell and ``Ouachita'' fanshell are not expected to exceed
$79,000 (2021 dollars) per year. The costs are reflective of: (1) All
proposed units are considered occupied, (2) project modifications
requested to avoid adverse modification are likely to be the same as
those recommended to avoid jeopardy in occupied habitat for these
species, and (3) the proposed designations receive baseline protection
from the presence of critical habitat for co-occurring listed mussel
species with similar habitat needs in 60 percent of the proposed
western fanshell critical habitat and in 71 percent of the proposed
``Ouachita'' fanshell critical habitat. Because consultation would be
required as a result of the listing of the western fanshell and
``Ouachita'' fanshell and is already required in some of these areas as
a result of the presence of other listed species and critical habitats,
the economic costs of the critical habitat designation would likely be
primarily limited to additional administrative efforts to consider
adverse modification for these two species in section 7 consultations.
Based on the consultation history regarding historical projects and
activities overlapping the proposed critical habitat area for the
western fanshell, the number of future consultations, including
technical assistance efforts, is likely to be no more than 23 per year
across all nine units. Based on the consultation history regarding
historical projects and activities overlapping the proposed critical
habitat area for the ``Ouachita'' fanshell, the number of future
consultations, including technical assistance efforts, is likely to be
no more than 15 per year across all four units. Overall, transportation
and utilities activities are expected to result in the largest portion
of consultations for both the western and ``Ouachita'' fanshells and,
therefore, incur the highest costs. The geographic distribution of
future section 7 consultations and associated costs are likely to be
most heavily concentrated in western fanshell proposed Unit 2 and
``Ouachita'' fanshell proposed Unit 4. However, even assuming
consultation activity increases substantially, incremental
administrative costs are still likely to remain well under $100 million
per year.
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) and our implementing regulations at 50 CFR 17.90. If we
receive credible information regarding the existence of a meaningful
economic or other relevant impact supporting a benefit of exclusion, we
will conduct an exclusion analysis for the relevant area or areas. We
may also exercise the discretion to evaluate any other particular areas
for possible exclusion. Furthermore, when we conduct an exclusion
analysis based on impacts identified by experts in, or sources with
firsthand knowledge about, impacts that are outside the scope of the
Service's expertise, we will give weight to those impacts consistent
with the expert or firsthand information unless we have rebutting
information. 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 either 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 (for example, 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
credible information, including a reasonably specific justification of
an incremental impact on national security that would result from the
designation of that specific area as critical habitat. That
justification could include demonstration of probable impacts, such as
impacts to ongoing border-security patrols and surveillance activities,
or a delay in training or facility construction, as a result of
compliance with section 7(a)(2) of the Act. If the agency requesting
the exclusion does not provide us with a reasonably specific
justification, we will contact the agency to recommend that it provide
a specific justification or clarification of its concerns relative to
the probable incremental impact that could result from the designation.
If we conduct an exclusion analysis because the agency provides a
reasonably specific justification or because we decide to exercise the
discretion to conduct an exclusion analysis, we will defer to the
expert judgment of DoD, DHS, or another Federal agency as to: (1)
Whether activities on its lands or waters, or its activities on other
lands or waters, have national-security or homeland-security
implications; (2) the importance of those implications; and (3) the
degree to which the cited implications would be adversely affected in
the absence of an exclusion. In that circumstance, in conducting a
discretionary section 4(b)(2) exclusion analysis, we will give great
weight to national-security and homeland-security concerns in analyzing
the benefits of exclusion.
Under section 4(b)(2) of the Act, we also consider whether a
national-security or homeland-security impact might exist on lands not
owned or managed by DoD or DHS. In preparing this proposal, we have
determined that the lands within the proposed designation of critical
habitat for western fanshell and ``Ouachita'' fanshell are not owned or
managed by the DoD or DHS. Therefore, we anticipate no impact on
national security. However, if through the public comment period we
receive credible information regarding impacts on national security or
homeland security from designating particular areas as critical
habitat, then as part of
[[Page 12364]]
developing the final designation of critical habitat, we will 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 17.90.
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. Other relevant impacts may include, but are
not limited to, impacts to Tribes, States, local governments, public
health and safety, community interests, the environment (such as
increased risk of wildfire or pest and invasive species management),
Federal lands, and conservation plans, agreements, or partnerships. 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, public-health, community-interest, environmental, or
social impacts that might occur because of the designation.
We have not identified any areas to consider for exclusion from
critical habitat based on other relevant impacts. However, during the
development of a final designation, we will consider all information
currently available or received during the public comment period. If we
receive credible information regarding the existence of a meaningful
impact supporting a benefit of excluding any areas, we will undertake
an exclusion analysis and determine whether those areas should be
excluded from the final critical habitat designation under the
authority of section 4(b)(2) and our implementing regulations at 50 CFR
17.90. We may also exercise the discretion to undertake exclusion
analyses for other areas as well, and we will describe all of our
exclusion analyses as part of a final critical habitat determination.
Summary of Exclusions Considered Under 4(b)(2) of the Act
At this time, we are not considering any exclusions from the
proposed designation based on economic impacts, national security
impacts, or other relevant impacts--such as partnerships, management,
or protection afforded by cooperative management efforts--under section
4(b)(2) of the Act. In preparing this proposal, we have determined that
no HCPs or other management plans for western fanshell or ``Ouachita''
fanshell currently exist, and the proposed designation does not include
any Tribal lands or trust resources. 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.
During the development of a final designation, we will consider any
additional information received through the public comment period
regarding other relevant impacts to determine whether any specific
areas should be excluded from the final critical habitat designation
under authority of section 4(b)(2) and our implementing regulations at
50 CFR 17.90.
Required Determinations
Clarity of the Rule
We are required by Executive Orders 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 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) in the Office of Management and Budget will
review all significant rules. OIRA has determined that this rule is not
significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this proposed rule in a manner
consistent with these requirements.
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 (that
is, 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
[[Page 12365]]
than $27.5 million in annual business, special trade contractors doing
less than $11.5 million in annual business, and agricultural businesses
with annual sales less than $750,000. To determine whether potential
economic impacts to these small entities are significant, we considered
the types of activities that might trigger regulatory impacts under
this designation as well as types of project modifications that may
result. In general, the term ``significant economic impact'' is meant
to apply to a typical small business firm's business operations.
Under the RFA, as amended, and as understood in light of recent
court decisions, Federal agencies are required to evaluate the
potential incremental impacts of rulemaking on those entities directly
regulated by the rulemaking itself; in other words, the RFA does not
require agencies to evaluate the potential impacts to indirectly
regulated entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried out by the agency is not
likely to destroy or adversely modify critical habitat. Therefore,
under section 7, only Federal action agencies are directly subject to
the specific regulatory requirement (avoiding destruction and adverse
modification) imposed by critical habitat designation. Consequently, it
is our position that only Federal action agencies would be directly
regulated if we adopt the proposed critical habitat designations. 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 designations will not have a
significant economic impact on a substantial number of small entities.
In summary, we have considered whether the proposed designations
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 designations 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 occur within some units of the proposed critical habitat
designations (for example, dams, pipelines) and may potentially be
affected. We determined that consultations, technical assistance, and
requests for species lists may be necessary in some instances. In our
economic analysis, we did not find that this proposed critical habitat
designation would significantly affect energy supplies, distribution,
or use. 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 $100 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.
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 western fanshell and ``Ouachita'' fanshell 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
[[Page 12366]]
funding or permits, nor does it preclude development of habitat
conservation programs or issuance of incidental take permits to permit
actions that do require Federal funding or permits to go forward.
However, Federal agencies are prohibited from carrying out, funding, or
authorizing actions that would destroy or adversely modify critical
habitat. A takings implications assessment has been completed for the
proposed designation of critical habitat for western fanshell and
``Ouachita'' fanshell, and it concludes that, if adopted, these
designations of critical habitat would not pose significant takings
implications for lands within or affected by the designations.
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 these proposed critical habitat designations
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 national government and the States, or on the
distribution of powers and responsibilities among the various levels of
government. The proposed designations 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
[…truncated; see source link]Indexed from Federal Register on March 3, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.