Rule2023-13461
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
June 27, 2023
Effective
July 27, 2023
Issuing agencies
Interior DepartmentFish and Wildlife Service
Abstract
We, the U.S. Fish and Wildlife Service (Service), determine threatened species status under the Endangered Species Act of 1973 (Act), as amended, for 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. We also designate critical habitat for both species. In total, approximately 261.4 river miles (420.7 kilometers) in Arkansas and Missouri fall within the boundaries of the critical habitat designation for western fanshell. In total, approximately 227.7 river miles (366.5 kilometers) in Arkansas fall within the boundaries of the critical habitat designation for "Ouachita" fanshell. In addition, we finalize a rule under the authority of section 4(d) of the Act that provides measures that are necessary and advisable to provide for the conservation of these species. This rule extends the Act's protections to these species and their designated critical habitats.
Full Text
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[Federal Register Volume 88, Number 122 (Tuesday, June 27, 2023)]
[Rules and Regulations]
[Pages 41724-41771]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-13461]
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Vol. 88
Tuesday,
No. 122
June 27, 2023
Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Threatened Species
Status With Section 4(d) Rule for Western Fanshell and ``Ouachita''
Fanshell and Designation of Critical Habitat; Final Rule
Federal Register / Vol. 88 , No. 122 / Tuesday, June 27, 2023 / Rules
and Regulations
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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 234]
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: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine
threatened species status under the Endangered Species Act of 1973
(Act), as amended, for 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. We also
designate critical habitat for both species. In total, approximately
261.4 river miles (420.7 kilometers) in Arkansas and Missouri fall
within the boundaries of the critical habitat designation for western
fanshell. In total, approximately 227.7 river miles (366.5 kilometers)
in Arkansas fall within the boundaries of the critical habitat
designation for ``Ouachita'' fanshell. In addition, we finalize a rule
under the authority of section 4(d) of the Act that provides measures
that are necessary and advisable to provide for the conservation of
these species. This rule extends the Act's protections to these species
and their designated critical habitats.
DATES: This rule is effective July 27, 2023.
ADDRESSES: This final rule is available on the internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, <a href="https://www.fws.gov/species/western-fanshell-cyprogenia-aberti">https://www.fws.gov/species/western-fanshell-cyprogenia-aberti</a>, and <a href="https://www.fws.gov/species/ouachita-fanshell-cyprogenia-sp-cf-aberti">https://www.fws.gov/species/ouachita-fanshell-cyprogenia-sp-cf-aberti</a>. Comments and materials we received are
available for public inspection at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under
Docket No. FWS-R3-ES-2021-0061.
Supporting materials we used in preparing this rule, such as the
species status assessment report, are available at <a href="https://www.fws.gov/species/western-fanshell-cyprogenia-aberti">https://www.fws.gov/species/western-fanshell-cyprogenia-aberti</a>, <a href="https://www.fws.gov/species/ouachita-fanshell-cyprogenia-sp-cf-aberti">https://www.fws.gov/species/ouachita-fanshell-cyprogenia-sp-cf-aberti</a>, and <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No. FWS-R3-ES-2021-0061. For the
critical habitat designation, the coordinates or plot points or both
from which the maps are generated are included in the decision file for
this critical habitat designation and are available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R3-ES-2021-0061, and on the
Service's websites at <a href="https://www.fws.gov/species/western-fanshell-cyprogenia-aberti">https://www.fws.gov/species/western-fanshell-cyprogenia-aberti</a> for western fanshell and <a href="https://www.fws.gov/species/ouachita-fanshell-cyprogenia-sp-cf-aberti">https://www.fws.gov/species/ouachita-fanshell-cyprogenia-sp-cf-aberti</a> for ``Ouachita'' fanshell.
FOR FURTHER INFORMATION CONTACT: For information about the western
fanshell, contact John Weber, 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 Road, Suite 300, Conway, AR
72032-8975; telephone 501-513-4473. Individuals in the United States
who are deaf, deafblind, hard of hearing, or have a speech disability
may dial 711 (TTY, TDD, or TeleBraille) to access telecommunications
relay services. Individuals outside the United States should use the
relay services offered within their country to make international calls
to the point-of-contact in the United States.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. Under the Act, a species warrants
listing if it meets the definition of an endangered species (in danger
of extinction throughout all or a significant portion of its range) or
a threatened species (likely to become endangered within the
foreseeable future throughout all or a significant portion of its
range). If we determine that a species warrants listing, we must list
the species promptly and designate the species' critical habitat to the
maximum extent prudent and determinable. We have determined that the
western fanshell and ``Ouachita'' fanshell meet the definition of
threatened species; therefore, we are listing them as such and
finalizing a designation of their critical habitat. Both listing a
species as an endangered or threatened species and designating critical
habitat can be completed only by issuing a rule through the
Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq.).
What this document does. This rule lists the western fanshell and
``Ouachita'' fanshell as threatened species and issues regulations
under section 4(d) of the Act (a ``4(d) rule'') for the conservation of
both species. This rule designates critical habitat for the western
fanshell in 6 units totaling approximately 261.4 river miles (river mi)
(420.7 kilometers (km)) within portions of 6 counties in Arkansas and 4
counties in Missouri. Additionally, this rule designates critical
habitat for the ``Ouachita'' fanshell in 3 units totaling approximately
227.7 river mi (366.5 km) within portions of 12 counties in Arkansas.
The basis for our action. Under the Act, we may determine that a
species is an endangered or threatened species based on 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 western fanshell and
``Ouachita'' fanshell are threatened due to the following threats:
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).
Section 4(a)(3) of the Act requires the Secretary of the Interior
(Secretary), to the maximum extent prudent and determinable, to
designate critical habitat concurrent with listing. Section 3(5)(A) of
the Act defines critical habitat as (i) the specific areas within the
geographical area occupied by the species, at the time it is listed, on
which are found those physical or biological features (I) essential to
the conservation of the species and (II) which may require special
management considerations or protections; and (ii) specific areas
outside the geographical area occupied by the species at the time it is
listed, upon a determination by the Secretary that such areas are
essential for the conservation of the species. Section 4(b)(2) of the
Act states that the Secretary must make the designation on the basis of
the best scientific data available and after taking into consideration
the economic impact, the impact on national security, and any other
relevant impacts of specifying any particular area as critical habitat.
Also,
[[Page 41725]]
although this critical habitat designation was proposed when the
regulatory definition of ``habitat'' (85 FR 81411; December 16, 2020)
and the regulations at 50 CFR 17.90 concerning exclusions from critical
habitat designation (85 FR 82376; December 18, 2020) were in place and
in effect, those two regulations have been rescinded (87 FR 37757, June
24, 2022; 87 FR 43433, July 21, 2022) and no longer apply to any
designations of critical habitat. Therefore, for this final rule
designating critical habitat for the western fanshell and ``Ouachita''
fanshell, we apply the regulations at 50 CFR 424.19 and the 2016 joint
(with the National Marine Fisheries Service of the National Oceanic and
Atmospheric Administration) Policy Regarding Implementation of Section
4(b)(2) of the Act (81 FR 7226; February 11, 2016).
Previous Federal Actions
Please refer to our March 3, 2022, proposed rule (87 FR 12338) for
detailed descriptions of previous Federal actions concerning the
western fanshell and ``Ouachita'' fanshell.
Peer Review
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 the western
fanshell and ``Ouachita'' fanshell, including the impacts of past,
present, and future factors (both negative and beneficial) affecting
each species.
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), and our August 22,
2016, memorandum updating and clarifying the role of peer review of
listing actions under the Act, we solicited independent scientific
review of the information contained in the SSA report. As discussed in
our March 3, 2022, proposed rule (87 FR 12338), we sent the SSA report
to five independent peer reviewers and received two responses. The peer
reviews can be found at <a href="https://www.regulations.gov">https://www.regulations.gov</a> under Docket No.
FWS-R3-ES-2021-0061. In preparing the March 3, 2022, proposed rule, we
incorporated the results of these reviews, as appropriate, into the SSA
report, which was the foundation for the proposed rule and this final
rule. A summary of the peer review comments and our responses can be
found in the Summary of Comments and Recommendations below.
Summary of Changes From the Proposed Rule
This final rule incorporates changes from our March 3, 2022,
proposed rule (87 FR 12338) based on the comments that we received and
respond to in this document, and this rule considers efforts in
Arkansas and Kansas to conserve the western fanshell and ``Ouachita''
fanshell. We made minor, nonsubstantive changes to the SSA report in
response to comments we received (e.g., we added information on and
citations for forestry best management practices in the discussion of
threats in the SSA report). The information we received during the
comment period did not change our determination that the western
fanshell and ``Ouachita'' fanshell are threatened species.
Substantive comments we received during the public comment period
for the March 3, 2022, proposed rule (see Summary of Comments and
Recommendations, below) include a request to exclude critical habitat
from the State of Kansas because of overlap with existing State
critical habitat designations. Subsequently, the Service approved an
amendment, submitted by the State of Kansas, to include the western
fanshell as a covered species under The Kansas Aquatic Species
Conservation Agreement: A Programmatic Safe Harbor Agreement and
Candidate Conservation Agreement with Assurances for Fourteen Aquatic
Species in Kansas (hereafter, the ``Kansas Agreement'') on December 13,
2022.
Based on our analysis, which incorporates the value of the Kansas
Agreement plus two additional agreements in Arkansas, in this final
rule, we are excluding proposed Unit WF 4 in Arkansas, and all proposed
critical habitat in Kansas (including proposed Units WF 3 and WF 9, as
well as a portion of proposed Unit WF 8) for the western fanshell, a
net decrease of 98.5 river mi (158.4 km) from the proposed designation
(see table 2, below). We are also excluding proposed Unit OF 2 and a
portion of proposed Unit OF 4 in Arkansas for ``Ouachita'' fanshell, a
net decrease of 66.8 river mi (107.4 km) from the proposed designation
(see table 3, below). More information can be found below under
Consideration of Impacts under Section 4(b)(2) of the Act, Exclusions
Based on Other Relevant Impacts.
To minimize disruptions to surveys and research, we added to the
4(d) rule a temporary exception for purposeful take that results from
capture, handling, and release of western fanshell and ``Ouachita''
fanshell related to presence/absence surveys, studies to document
habitat use, and population monitoring by individuals permitted to
conduct these same activities for other species of mussels for a period
of 6 months from this final rule's effective date (see DATES, above).
After the 6-month period, a permit pursuant to section 10(a)(1)(A) of
the Act is required for the capture and handling of western fanshell
and ``Ouachita'' fanshell.
Summary of Comments and Recommendations
In our March 3, 2022, proposed rule (87 FR 12338), we requested
that all interested parties submit written comments on or before May 2,
2022. We also contacted appropriate Federal and State agencies,
scientific experts and organizations, and other interested parties and
invited them to comment on the proposed rule. Newspaper notices
inviting general public comment were published in the following
newspapers: Daily Journal (March 5, 2022), Joplin Globe (March 4,
2022), Wayne County Journal Banner (March 7, 2022), Daily American
Republic (March 5, 2022), Arkansas Democratic Gazette (March 6, 2022),
Examiner-Enterprise (March 8, 2022), Tulsa World (March 6, 2022),
Independence Daily Reporter (March 5, 2022), The Morning Sun (March 8,
2022), The Eureka Herald (March 9, 2022), and The Galena Sentinel Times
(March 9, 2022). We did not receive any requests for a public hearing.
All substantive information received during the comment period has
either been incorporated directly into this final rule or is addressed
below.
Peer Reviewer Comments
As discussed in Peer Review above, we received comments from two
peer reviewers on the draft SSA report. We reviewed all comments we
received from the peer reviewers for substantive issues and new
information regarding the information contained in the SSA report. The
peer reviewers generally concurred with our methods and conclusions and
provided support for thorough and descriptive narratives of assessed
issues, additional information and citations, clarifications, and
suggestions to improve the final SSA report. A theme from one reviewer
indicated that the SSA under-represents available science, specifically
related to the water quality, flow, and landscape conditions described
in the SSA. We incorporated available species-specific and river-
specific data into the SSA, including existing high stream
[[Page 41726]]
temperatures and expected rises in the future, the percent of forest
along an occupied stream, and the density of road crossings. Otherwise,
no substantive changes to our analyses and conclusions within the SSA
report were deemed necessary, and peer reviewer comments are addressed
in version 1.0 of the SSA report.
State Agency Comments
We received comments from agencies in two States: Kansas and
Oklahoma.
(1) Comment: The Kansas Department of Wildlife and Parks (KDWP)
suggested that overlapping Federal critical habitat with State-
designated critical habitat would not provide additional net benefits
to the species and requested that we exclude all areas of proposed
critical habitat in Kansas that are currently designated as State
critical habitat.
Our Response: The Service is not relieved of its statutory
obligation to designate critical habitat based on the contention that
it will not provide additional conservation benefit (see Ctr. for
Biological Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003)).
However, subsequent to their comment on the proposed rule, the KDWP
submitted an application to amend the Kansas Agreement to include the
western fanshell as a covered species. We approved the amendment on
December 13, 2022. We have determined that the benefits of exclusion
outweigh the benefits of inclusion of proposed critical habitat in the
State of Kansas (including proposed Units WF 3 and WF 9, as well as a
portion of proposed Unit WF 8) for western fanshell, and we are,
therefore, excluding proposed critical habitat in Kansas from this
final designation. See Consideration of Impacts under Section 4(b)(2)
of the Act, below, for more information.
(2) Comment: The KDWP requested that the 4(d) rule include a
requirement for consultation with KDWP for channel and bank restoration
projects, if mussels are found during surveys, to obtain proper State
permits.
Our Response: For channel and bank restoration projects, the 4(d)
rule excepts take incidental to otherwise lawful activities. This means
that to qualify under this exception, project proponents must satisfy
all Federal, State, and local permitting requirements. Therefore, we
have not made any changes to the 4(d) rule in response to this comment.
(3) Comment: The KDWP recommended that the 4(d) rule include a
requirement to conduct surveys for species prior to commencing
transportation project activities and to relocate species in
consultation with the Service and KDWP.
Our Response: The exception for incidental take for transportation
projects in the 4(d) rule covers only those activities that avoid or do
not include instream disturbance; transportation projects with instream
disturbance are not covered by this exception. Therefore, requirements
for surveys are not necessary in this exception, and we have made no
changes to the 4(d) rule in response to this comment.
(4) Comment: The KDWP suggested that we add an exception to the
4(d) rule that all activities associated with conducting scientific
presence/absence surveys, studies to document habitat use, population
monitoring, evaluation of potential impacts to the species, and
relocation efforts be exempt from Service permitting requirements,
provided that the individual holds a valid scientific collecting permit
for mussels from the appropriate State wildlife agency.
Our Response: During the public comment period, we specifically
sought comments on inclusion of the suggested exception in the 4(d)
rule. However, we have determined that permitting requirements and
regulations vary by State and that including this exception in the 4(d)
rule would not provide for the conservation of the species. Therefore,
we are not including the suggested exception in this final 4(d) rule.
To allow time for us to process applications for amendments to
existing permit holders, the final 4(d) rule does temporarily except
purposeful take that results from capture, handling, and release of
western fanshell and ``Ouachita'' fanshell related to presence/absence
surveys, studies to document habitat use, and population monitoring by
individuals permitted to conduct these same activities for other
species of mussels for a period of 6 months from this final rule's
effective date (see DATES, above).
(5) Comment: The KDWP suggested that we include an exception in the
4(d) rule for the temporary collection of females for propagation when
used in conjunction with approved species recovery efforts by State and
Federal hatcheries, as well as an exception for holding offspring
during these efforts, and the Oklahoma Department of Wildlife
Conservation (ODWC) requested that we include an exception in the 4(d)
rule for mussel community surveys that are conducted or sponsored by a
State wildlife agency.
Our Response: This final 4(d) rule includes an exception for take,
as set forth at 50 CFR 17.31(b). This provision allows any employee or
agent of the Service, National Marine Fisheries Service, or State
conservation agency that is operating a conservation program pursuant
to the terms of a cooperative agreement with the Service in accordance
with section 6(c) of the Act, who is designated by that agency for such
purposes when acting in the course of official duties, to take those
threatened species of wildlife that are covered by an approved
cooperative agreement to carry out conservation programs. The temporary
collection of females for propagation by State hatcheries, holding
females and offspring for propagation for recovery purposes at State
hatcheries, and surveys conducted by a State agency or an agent of the
State are covered under this exception if the activity is included in
the State's cooperative agreement with the Service. Therefore, an
additional exception in the 4(d) rule is not necessary, and we made no
changes to the final rule in response to this comment.
(6) Comment: The ODWC stated that surveys for western fanshell in
Oklahoma from 1989 onward have shown the species to be rare and lacking
a self-sustaining population within the State of Oklahoma. The ODWC
also indicated that a future mussel community project is planned for
the Oklahoma portions of the Caney and Verdigris rivers, which will
provide updated status information for western fanshell in those
portions.
Our Response: The most recently documented occurrences of western
fanshell in Oklahoma from 2006 are likely part of a population
inhabiting Middle Verdigris River, including both sides of the Kansas-
Oklahoma State line. Available data indicate that population is
increasing in abundance and is successfully recruiting new juveniles.
We look forward to updated information from Oklahoma.
Public Comments
(7) Comment: One commenter stated the scientific literature does
not justify recognition of ``Ouachita'' fanshell as a distinct species,
specifically referencing Kim and Roe (2021) findings that more work is
necessary before the ``genetically distinct clusters'' are formally
recognized, and the commenter expressed concern with the Service
listing ``Ouachita'' fanshell as an undescribed species.
Our Response: We acknowledge that ``Ouachita'' fanshell has not
been formally recognized by the scientific
[[Page 41727]]
community. However, there is compelling scientific evidence supporting
its eventual recognition. Kim and Roe (2021, p. 10) found that
Cyprogenia west of the Mississippi River, within the range of C.
aberti, form two distinct lineages (Ozark and Ouachita regions) and
both entities are distinct enough to warrant recognition as separate
species. We acknowledge that more samples are needed from the Arkansas
River drainage in Kansas because these samples formed a sister clade to
the Ozark region C. aberti populations and were also a distinct group
in the Bayesian clustering analysis (Kim and Roe 2021, p. 10). Because
Fall and Verdigris rivers in the Arkansas River basin are the type
localities for the names Unio aberti (Conrad 1850) and Unio popenoi
(Call 1855), determining the affinities of the Fall and Verdigris River
populations is essential to the correct name assignment for C. aberti.
This is the primary reason cited by Kim and Roe (2021, p. 10) for
waiting on taxonomic changes until additional geographic sampling
occurs in the Arkansas River basin, specifically pertaining to C.
aberti from the Ozark region and Arkansas River basin.
The process for naming a newly recognized species may sometimes
take longer even though the science has been accepted. We acknowledge
that questions remain surrounding the application of a specific name to
``Ouachita'' fanshell, as discussed above; however, this does not
invalidate the scientific validity of ``Ouachita'' fanshell as a
separate species. The Act requires us to use the best scientific and
commercial data available, which indicate that the ``Ouachita''
fanshell is a separate species from western fanshell. Therefore, we are
listing the ``Ouachita'' fanshell as it is currently described. We will
update this mussel's entry on the List of Endangered and Threatened
Wildlife once a name has been formally established in the future.
(8) Comment: One commenter stated that the western fanshell is
already listed and receives protections under State law in Kansas,
including State critical habitat; therefore, listing the western
fanshell as threatened is unnecessary for the conservation of the
species.
Our Response: Under the Act, a species warrants listing if it meets
the definition of an endangered species (in danger of extinction
throughout all or a significant portion of its range) or a threatened
species (likely to become endangered within the foreseeable future
throughout all or a significant portion of its range). In determining
whether a species meets the Act's definition of an endangered or
threatened species, under section 4(b)(1)(A) of the Act, we are
required to make that determination based solely on the best scientific
and commercial data available. Based on the best available scientific
and commercial data, we have determined that western fanshell and
``Ouachita'' fanshell are threatened species due to the following
threats: 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). Based on our analysis, we have determined
that the western fanshell and ``Ouachita'' fanshell meet the Act's
definition of threatened species; therefore, we are listing them as
such and finalizing a designation of their critical habitat. Under 16
U.S.C. 1531(b), the purposes of listing and designation of critical
habitat under the Act for these mussel species and other listed species
are to provide, in part, a means whereby the ecosystems upon which they
depend may be conserved and to provide a program for the species'
conservation.
(9) Comment: One commenter suggested expanding the 4(d) rule to
expressly include all conservation efforts beneficial to the species,
such as scientific studies and monitoring, as well as an exception from
take for conservation efforts (including propagation and holding of
offspring until they can be stocked). The commenter suggested that
without this expansion, conservation efforts would be complicated and
neighboring landowners would be less willing to participate in
conservation programs or to allow conservation efforts on their lands
because of the risk of liability under the Act.
Our Response: Existing agreements between the Service and State
wildlife agencies under section 6 of the Act already provide
authorization for the States to perform surveys and conduct other
conservation work on listed species. As noted above (see our response
to (4) Comment), we have concluded that an exception to requirements
for obtaining a permit for surveys under section 10(a)(1)(A) of the Act
would not provide for the conservation of the species due to varying
permitting requirements and regulations among States. Programs are
available to private landowners for managing habitat for listed
species; permits can also be obtained to protect private landowners
from the take prohibition when such taking is incidental to, and not
the purpose of, the carrying out of an otherwise lawful activity.
Private landowners may contact their local Service field office to
obtain information about these programs and permits.
However, this final 4(d) rule does temporarily except purposeful
take that results from capture, handling, and release of western
fanshell and ``Ouachita'' fanshell related to presence/absence surveys,
studies to document habitat use, and population monitoring by
individuals permitted to conduct these same activities for other
species of mussels for a period of 6 months from this final rule's
effective date (see DATES, above).
(10) Comment: One commenter expressed concern that listing could
frustrate the KDWP and private landowners and complicate conservation
measures taken by them for the conservation of the western fanshell and
other aquatic species.
Our Response: We understand that listing the western fanshell may
generate concern about the effect on conservation efforts. The KDWP
applied for an amendment to include the western fanshell as a covered
species under the Kansas Agreement, which we approved on December 13,
2022. Inclusion of the species in the Kansas Agreement will enhance
engagement with private landowners to implement conservation actions
for the species by providing assurances to landowners and removing
regulatory uncertainty.
(11) Comment: One commenter stated that the areas proposed as
critical habitat for western fanshell in Kansas overlap with critical
habitat for State-listed species and, therefore, are redundant and
unnecessary.
Our Response: The Service is not relieved of its statutory
obligation to designate critical habitat based on the contention that
it will not provide additional conservation benefit. In Ctr. for
Biological Diversity v. Norton, 240 F. Supp. 2d 1090 (D. Ariz. 2003),
the court held that the Act does not direct us to designate critical
habitat only in those areas where ``additional'' special management
considerations or protection are needed. See also Cape Hatteras Access
Preservation Alliance v. U.S. Dept. of Interior, 731 F.Supp.2d (D.D.C.
2010). If any area provides the PBFs essential to the conservation of
the species, even if that area is already well managed or protected,
that area may still qualify as critical habitat under the statutory
definition.
(12) Comment: One commenter stated that the proposed rule's
description of water quality threats is generic and fails
[[Page 41728]]
to point out which specific contaminants have led to mussel population
declines in the proposed critical habitat units.
Our Response: The water quality parameters we considered are
discussed in the Species Needs, ``Water Quality,'' and Physical or
Biological Features Essential to the Conservation of the Species
discussions in the proposed rule (see 87 FR 12338, March 3, 2022, pp.
12344, 12354) and in the same discussions (below) in this final rule.
Specific contaminants and their toxicity levels are discussed in the
SSA report (Service 2022, pp. 53-58). These contaminants include total
ammonia nitrogen (TAN), nitrates and nitrites, cadmium, copper, zinc,
and lead. Table 4.4 of the SSA report lists the toxicity levels of each
contaminant, and table 4.6 shows the data by river (Service 2022, pp.
35, 41). Water quality data indicate the two fanshell mussels have been
exposed to nitrates, nitrites, zinc, and copper at concentrations that
cause acute toxicity and may be exposed to toxic levels of lead in the
future (Service 2022, p. 55). However, our results indicated that TAN
and cadmium were not stressors to either species now or in future
scenarios (Service 2022, p. 36). Water quality data are available for
each river within the species' ranges but not for each critical habitat
unit specifically.
(13) Comment: One commenter noted that ammonia nitrogen levels and
low dissolved oxygen were not found to be threats and suggested the
4(d) rule should include an exception for take resulting from standard
agricultural practices to allow neighboring landowners to continue
their routine agricultural practices and incentivize partnerships
between the landowner, State, and Service.
Our Response: Under section 4(d) of the Act, when we list a species
as a threatened species, we issue such regulations as deemed necessary
and advisable to provide for the conservation of the species. In
species-specific 4(d) rules, we focus our efforts on incentivizing
known beneficial actions for the species, as well as removing the
regulatory burden on forms of take that are considered inconsequential
to the conservation of the species. While the SSA report did not find
TAN or low dissolved oxygen were threats to either species (Service
2022, p. 36), our analysis found nitrates, nitrites, and sedimentation
with agricultural activities as partial sources are threats to both
species (Service 2022, pp. 40, 55-57). While we carefully considered
this request, excepting incidental take from agricultural activities
would not provide a clear conservation benefit to the western fanshell
or ``Ouachita'' fanshell, and we did not include this exception in the
final 4(d) rule.
We acknowledge that building partnerships and promoting cooperation
of landowners are essential to understanding the status of species on
non-Federal lands and may be necessary to implement recovery actions
such as habitat restoration. For private landowners, we offer voluntary
SHAs that can contribute to the recovery of species, habitat
conservation plans (HCPs) that allow activities to proceed while
minimizing effects to species, and funding through the Partners for
Fish and Wildlife Program to help promote conservation actions.
(14) Comment: One commenter expressed concern that not many channel
and bank restoration and transportation projects would qualify as
projects that do not involve disturbing the water as stipulated in the
proposed 4(d) rule.
Our Response: The purpose of the 4(d) rule is to incentivize
positive conservation actions and streamline the regulatory process for
minor impacts. To clarify, the exception in the 4(d) rule for channel
and bank restoration does not require that projects do not disturb
instream waters. The exception for transportation projects is for those
projects that avoid instream disturbance in waters occupied by the
western fanshell or ``Ouachita'' fanshell. We are not excepting take
from transportation projects with instream disturbance because these
project types may require incorporation of site-specific measures to
avoid and minimize effects to the western fanshell or ``Ouachita''
fanshell.
(15) Comment: One commenter expressed concern that critical habitat
may lead to severe restrictions to private property and restricting
bank stabilization and channel maintenance activities in the critical
habitat units will limit stream restoration activities benefiting the
species.
Our Response: The designation of critical habitat will not impose
any restrictions on non-Federal actions for private landowners,
provided there is no Federal nexus. If there is a Federal nexus and the
action of the Federal agency may affect the species or its designated
critical habitat, then the Federal agency will need to consult with the
Service. However, the 4(d) rule provides, among others, an exception
for take related to channel and bank restoration projects. Although the
4(d) rule does not alleviate a Federal agency's obligation to consult
under section 7 of the Act, this exception for channel and bank
restoration projects will help to streamline future consultations.
I. Final 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 (Kim and Roe 2021, p. 10; Chong et al.
2016, pp. 2445-2449). There is uncertainty regarding what name is
available for the Ouachita River drainage fanshell. Further taxonomic
changes are pending additional geographic sampling to understand the
correct name assignment (Kim and Roe 2021, p. 10), but this does not
invalidate the distinctiveness of the Ouachita River basin Cyprogenia
as a separate species.
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 White River basins, within the
States of Arkansas, Kansas, Missouri, and Oklahoma (Service 2022, pp.
22-29; 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
2022, pp. 29-32; see figure 2, below).
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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 41731]]
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 2022, pp. 9-16).
Regulatory and Analytical Framework
Regulatory Framework
Section 4 of the Act (16 U.S.C. 1533) and the implementing
regulations in title 50 of the Code of Federal Regulations set forth
the procedures for determining whether a species is an endangered
species or a threatened species, issuing protective regulations for
threatened species, and designating critical habitat for endangered and
threatened species. In 2019, jointly with the National Marine Fisheries
Service, the Service issued a final rule that revised the regulations
in 50 CFR part 424 regarding how we add, remove, and reclassify
endangered and threatened species and the criteria for designating
listed species' critical habitat (84 FR 45020; August 27, 2019). On the
same day, the Service also issued final regulations that, for species
listed as threatened species after September 26, 2019, eliminated the
Service's general protective regulations automatically applying to
threatened species the prohibitions that section 9 of the Act applies
to endangered species (84 FR 44753; August 27, 2019).
The Act defines an ``endangered species'' as a species that is in
danger of extinction throughout all or a significant portion of its
range, and a ``threatened species'' as a species that is likely to
become an endangered species within the foreseeable future throughout
all or a significant portion of its range. The Act requires that we
determine whether any species is an endangered species or a threatened
species because of any of the following factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
These factors represent broad categories of natural or human-caused
actions or conditions that could have an effect on a species' continued
existence. In evaluating these actions and conditions, we look for
those that may have a negative effect on individuals of the species, as
well as other actions or conditions that may ameliorate any negative
effects or may have positive effects.
We use the term ``threat'' to refer in general to actions or
conditions that are known to or are reasonably likely to negatively
affect individuals of a species. The term ``threat'' includes actions
or conditions that have a direct impact on individuals (direct
impacts), as well as those that affect individuals through alteration
of their habitat or required resources (stressors). The term ``threat''
may encompass--either together or separately--the source of the action
or condition or the action or condition itself.
However, the mere identification of any threat(s) does not
necessarily mean that the species meets the statutory definition of an
``endangered species'' or a ``threatened species.'' In determining
whether a species meets either definition, we must evaluate all
identified threats by considering the species' expected response and
the effects of the threats--in light of those actions and conditions
that will ameliorate the threats--on an individual, population, and
species level. We evaluate each threat and its expected effects on the
species, then analyze the cumulative effect of all 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
Services can reasonably determine that both the future threats and the
species' responses to those threats are likely. In other words, the
foreseeable future is the period of time in which we can make reliable
predictions. ``Reliable'' does not mean ``certain''; it means
sufficient to provide a reasonable degree of confidence in the
prediction. Thus, a prediction is reliable if it is reasonable to
depend on it when making decisions.
It is not always possible or necessary to define the foreseeable
future as a particular number of years. Analysis of the foreseeable
future uses the best scientific and commercial data available and
should consider the timeframes applicable to the relevant threats and
to the species' likely responses to those threats in view of its life-
history characteristics. Data that are typically relevant to assessing
the species' biological response include species-specific factors such
as lifespan, reproductive rates or productivity, certain behaviors, and
other demographic factors.
Analytical Framework
The SSA report documents the results of our comprehensive
biological review of the best scientific and commercial data regarding
the status of both species, including an assessment of potential
threats to the species. The SSA report does not represent our decision
on whether either species should be listed as an endangered or
threatened species under the Act. However, it does provide the
scientific basis that informs our regulatory decisions, which involve
the further application of standards within the Act and its
implementing regulations and policies.
To assess the 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 is the ability of the species to
withstand environmental and demographic stochasticity (for example, wet
or dry, warm or cold years), redundancy is the ability of the species
to withstand catastrophic events (for example, droughts, large
pollution events), and representation is the ability of the species to
adapt to both near-term and long-term changes in its physical and
biological environment (for example, climate conditions, pathogens). In
general, species viability will increase with increases in resiliency,
redundancy, and representation (Smith et al. 2018, p. 306). Using these
principles, we identified the species' ecological requirements for
survival and reproduction at the individual, population, and species
levels and described the beneficial and risk factors influencing the
species' viability.
The SSA process can be categorized into three sequential stages.
During the first stage, we evaluated the individual species' life-
history needs. The next stage involved an assessment of the historical
and current condition of the
[[Page 41732]]
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.
The following is a summary of the key results and conclusions from
the SSA report for the western fanshell and ``Ouachita'' fanshell; the
full SSA report can be found in Docket No. FWS-R3-ES-2021-0061 at
<a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Summary of Biological Status and Threats
In this discussion, we review the biological condition of the
western fanshell and ``Ouachita'' fanshell, 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
2022, pp. 9-16). 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 2022, p. 53). 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 2022, pp. 64-65). The primary threats are discussed
below.
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 2022, p. 17). We defined a MU as currently extant
if it contains live or recent dead individuals observed in surveys from
2000 to the present (Service 2022, p. 22).
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
[[Page 41733]]
concentrations that cause acute toxicity (Service 2022, p. 41) and may
be exposed to toxic levels of lead in the future (Service 2022,
appendix I-D-I-E). Metals from mine water runoff (for example, the 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 2022, 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 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).
Most sediment transport occurs during floods (Clark and Mangham
2019, pp. 6-7; Kondolf 1997, p. 533). An 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.
[[Page 41734]]
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 2022, 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 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
from 12 to 77 percent in western fanshell MUs (Service 2022, 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 from
17 to 68 percent in western fanshell MUs and decreased in all MUs for
both species from 2011 to 2016 (Service 2022, 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 report (Service 2022, pp. 22-32). 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
In Kansas, 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 KDWP
regarding potential permit requirements. In addition, Kansas manages
the take and possession of mussels for personal use and prohibits the
personal take of any mussel species listed as endangered or threatened
by Kansas or the Federal Government. The western fanshell and
``Ouachita'' fanshell do not receive protection under State law in any
other States.
[[Page 41735]]
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 that
State's Act 898 of the 90th General Assembly in 2015, 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
We described current (and future) conditions 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 2022,
pp. 17-21). In the absence of species-specific genetic information, we
used contiguous hydrologic units at the HUC-4 level to assess the
species' genetic, ecological, and geographical diversity
(representation), and we used the number of populations and MUs to
describe the species' redundancy.
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 2022, pp. 37-46). The habitat
conditions across the 11 extant populations are medium to high (Service
2022, p. 42).
``Ouachita'' Fanshell
The ``Ouachita'' fanshell currently occurs in four MUs within
portions of the Ouachita River basin (HUC-4) in Arkansas. One MU 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 2022, pp. 47-49). The habitat conditions across the four
extant populations are medium to high (Service 2022, p. 50).
Future Conditions
We forecasted the western fanshell's and ``Ouachita'' fanshell's
responses to plausible future scenarios of varying 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 the plausible upper and lower bounds of the 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. We
projected these two scenarios 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 2022,
pp. 67-72).
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. Neither species loses any areas of representation although
redundancy is reduced within the representation units (HUC-4 river
basins) for both species. However, we do not expect reduced adaptive
capacity of either species to future environmental change in the next
40 years.
While our projections under Scenario 2 do not anticipate additional
extirpations (and therefore further loss of redundancy) 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. However, we do not
expect reduced adaptive capacity of either species to future
environmental change in the next 40 years.
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 relevant factors that
may be influencing the species, including threats and conservation
efforts. Because the SSA framework considers not just the presence of
the factors, but to what degree they collectively influence risk to the
entire species, our assessment integrates the cumulative effects of the
factors and replaces a standalone cumulative effects analysis.
Determination of Status for the Western Fanshell and ``Ouachita''
Fanshell
Section 4 of the Act (16 U.S.C. 1533) and its implementing
regulations (50 CFR part 424) set forth the procedures for determining
whether a species meets the definition of an endangered species or a
threatened species. The Act defines an ``endangered species'' as a
species 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 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
[[Page 41736]]
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.
In conducting our status assessment of the western fanshell and
``Ouachita'' fanshell, we evaluated all identified threats under the
Act's section 4(a)(1) factors and assessed how the cumulative impact of
all threats acts on the viability of the species as a whole. That is,
all the anticipated effects from both habitat-based and direct
mortality-based threats are examined in total and then evaluated in the
context of what those combined negative effects will mean to the
current and future condition of the western fanshell and ``Ouachita''
fanshell. However, for the majority of potential threats, the effect on
the western fanshell and ``Ouachita'' fanshell (e.g., total losses of
individual mussels or their habitat) cannot be quantified with
available information. Instead, we use the best available information
to gauge the magnitude of each individual threat on the western
fanshell and ``Ouachita'' fanshell, and then assess how those effects
combined (and may be ameliorated by any existing regulatory mechanisms
or conservation efforts) will impact the western fanshell's or
``Ouachita'' fanshell's current and future viability.
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/MUs from historical conditions. However, the
species still ranges over three of 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. Representation
is maintained with at least one MU in high condition in each of the 3
extant representation units. With 11 extant 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, after assessing the best available
information, we conclude that the species is not currently 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: 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, 435
F. Supp. 3d 69 (D.D.C. 2020) (Everson), vacated the provision of the
Final Policy on Interpretation of the Phrase ``Significant Portion of
Its Range'' in the Endangered Species Act's Definitions of ``Endangered
Species'' and ``Threatened Species'' (Final Policy; 79 FR 37578; July
1, 2014) that provided if the Services determine that a species is
threatened throughout all of its range, the Services will not analyze
whether the species is endangered in a significant portion of its
range.
Therefore, we proceed to evaluating whether the species is
endangered in a significant portion of its range--that is, whether
there is any portion of the species' range for which both (1) the
portion is significant; and (2) the species is in danger of extinction
in that portion. Depending on the case, it might be more efficient for
us to address the ``significance'' question or the ``status'' question
first. We can choose to address either question first. Regardless of
which question we address first, if we reach a negative answer with
respect to the first question that we address, we do not need to
evaluate the other question for that portion of the species' range.
Following the court's holding in Everson, we now consider whether
there are any significant portions of the species' range where the
species is in danger of extinction now (i.e., endangered). In
undertaking this analysis for the 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 may be endangered.
We evaluated the range of the western fanshell to determine if the
species is in danger of extinction now in any portion of its range. The
range of a species can theoretically be divided into portions in an
infinite number of ways. We focused our analysis on portions of the
species' range that may meet the definition of an endangered species.
For the western fanshell, we considered whether the threats or their
effects on the species are greater in any biologically meaningful
portion of the species' range than in other portions such that the
species is in danger of extinction now in that portion.
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 with the exception
of the Spring River MU, which has low water quality and low landscape
conditions. However, overall habitat for the Spring River MU is medium
condition. Based on this assessment, we found that threats are
[[Page 41737]]
acting similarly within the occupied river basins across the species'
range. We found no locations where threats are more concentrated in any
portion of the western fanshell's range at a biologically meaningful
scale. There are no threats that are having greater impacts on the
species in any one area. Therefore, there is no biologically meaningful
portion that has a different status from the overall rangewide status.
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 does
not conflict with the courts' holdings in Desert Survivors v. U.S.
Department of the Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. Cal.
2018) and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d
946, 959 (D. Ariz. 2017) because, in reaching this conclusion, we did
not apply the aspects of the Final Policy, including the definition of
``significant'' that those court decisions held to be invalid.
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 are listing 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 Act's 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, maintaining the species'
representation. 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 currently 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: 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 ``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 may be endangered. For the ``Ouachita'' fanshell, we
considered whether the threats or their effects on the species are
greater in any biologically meaningful portion of the species' range
than in other portions such that the species is in danger of extinction
now in that portion.
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 with no habitat
factors in low condition. Based on this assessment, we found that
threats are acting similarly across the species' range. We found no
locations where threats are more concentrated in any portion of the
``Ouachita'' fanshell's range at a biologically meaningful scale. There
are no threats that are having greater impacts on the species in any
one area. Therefore, there is no biologically meaningful portion that
has a different status from the overall rangewide status. 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 does not conflict
with the courts' holdings in Desert Survivors v. U.S. Department of the
Interior, 321 F. Supp. 3d 1011, 1070-74 (N.D. Cal. 2018) and Center for
Biological Diversity v. Jewell, 248 F. Supp. 3d 946, 959 (D. Ariz.
2017) because, in reaching this conclusion, we did not apply the
aspects of the Final Policy, including the definition of
``significant'' that those court decisions held to be invalid.
``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 are listing the
``Ouachita'' fanshell as a threatened species in accordance with
sections 3(20) and 4(a)(1) of the Act.
[[Page 41738]]
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened species under the Act include recognition as a listed
species, planning and implementation of recovery actions, requirements
for Federal protection, and prohibitions against certain practices.
Recognition through listing results in public awareness, and
conservation by Federal, State, Tribal, and local agencies, private
organizations, and individuals. The Act encourages cooperation with the
States and other countries and calls for recovery actions to be carried
out for listed species. The protection required by Federal agencies and
the prohibitions against certain activities are discussed, in part,
below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Section 4(f) of the Act calls for the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The goal of this process is to restore listed
species to a point where they are secure, self-sustaining, and
functioning components of their ecosystems.
The recovery planning process begins with development of a recovery
outline made available to the public soon after a final listing
determination. The recovery outline guides the immediate implementation
of urgent recovery actions while a recovery plan is being developed.
Recovery teams (composed of species experts, Federal and State
agencies, nongovernmental organizations, and stakeholders) may be
established to develop and implement recovery plans. The recovery
planning process involves the identification of actions that are
necessary to halt and reverse the species' decline by addressing the
threats to its survival and recovery. The recovery plan identifies
recovery criteria for review of when a species may be ready for
reclassification from endangered to threatened (``downlisting'') or
removal from protected status (``delisting''), and methods for
monitoring recovery progress. Recovery plans also establish a framework
for agencies to coordinate their recovery efforts and provide estimates
of the cost of implementing recovery tasks. Revisions of the plan may
be done to address continuing or new threats to the species, as new
substantive information becomes available. The recovery outline, draft
recovery plan, final recovery plan, and any revisions will be available
on our website as they are completed (<a href="https://www.fws.gov/program/endangered-species">https://www.fws.gov/program/endangered-species</a>), or from our 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 (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires
cooperative conservation efforts on private, State, and Tribal lands.
Once these species are 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 will be eligible for Federal funds to implement
management actions that promote the protection or recovery of the
western fanshell or ``Ouachita'' fanshell or both species. Information
on our grant programs that are available to aid species recovery can be
found at: <a href="https://www.fws.gov/service/financial-assistance">https://www.fws.gov/service/financial-assistance</a>.
Please let us know if you are interested in participating in
recovery efforts for the western fanshell or ``Ouachita'' fanshell.
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 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)(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 any endangered or threatened 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 may include, but are not limited to, management and any other
landscape-altering activities on Federal lands administered 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 (33 U.S.C. 1251 et
seq.) 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, and 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, HCPs, and SHAs; 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 listing on
proposed and ongoing activities within the range of the listed species.
The discussion below regarding protective regulations under
[[Page 41739]]
section 4(d) of the Act complies with our policy.
II. Final 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 [her] with regard to the permitted activities for those species.
[She] may, for example, permit taking, but not importation of such
species, or [s]he 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 our authority under section 4(d), we have developed a
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 water quality degradation, changes to flow, and
impoundments, which are expected to be exacerbated by continued
urbanization and effects of climate change.
The provisions of this 4(d) rule will promote conservation of the
western fanshell and ``Ouachita'' fanshell by encouraging management of
the landscape in ways that meet both land management considerations and
conservation needs of the western fanshell and ``Ouachita'' fanshell.
The provisions of this rule are one of many tools that the Service will
use to promote the conservation of the western fanshell and
``Ouachita'' fanshell.
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.
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 4(d) Rule
The protective regulations for western fanshell and ``Ouachita''
fanshell incorporate prohibitions from section 9(a)(1) of the Act to
address the threats to the species. In particular, this 4(d) rule will
provide for the conservation of the western fanshell and ``Ouachita''
fanshell by prohibiting the following activities, unless they fall
within specific exceptions or are otherwise authorized or permitted:
Importing or exporting; take; possession and other acts with unlawfully
taken specimens; delivering, receiving, carrying, transporting, or
shipping in interstate or foreign commerce in the course of commercial
activity; or selling or offering for sale in interstate or foreign
commerce.
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 water quality degradation, changes to flow, and
impoundments, which are expected to be exacerbated by continued
urbanization and effects of climate change.
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. Regulating
take will help preserve the species' remaining populations, slow their
rate of decline, and decrease synergistic, negative effects from other
stressors. Therefore, we prohibit take of the western fanshell and
``Ouachita'' fanshell, except for take resulting from those actions and
activities specifically excepted by the 4(d) rule.
[[Page 41740]]
The 4(d) rule provides for the conservation of the species by
allowing exceptions, including certain standard exceptions, to take
prohibitions caused by actions and activities that, while they may have
some minimal level of disturbance to the western fanshell and
``Ouachita'' fanshell, will not have a negative impact (i.e., will have
only de minimis impacts) on the species' conservation. The exceptions
to these prohibitions include incidental take associated with (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. This exception also includes a requirement for
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.
In addition, as discussed above under Summary of Changes from the
Proposed Rule, the 4(d) rule temporarily excepts purposeful take that
results from capture, handling, and release of western fanshell and
``Ouachita'' fanshell related to presence/absence surveys, studies to
document habitat use, and population monitoring by individuals
permitted to conduct these same activities for other species of mussels
for a period of 6 months from this final rule's effective date (see
DATES, above). This provision will allow time for us to process
applications for amendments to existing permit holders.
We may issue permits to carry out otherwise prohibited activities,
including those described above, involving threatened wildlife under
certain circumstances. Regulations governing permits 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
propagation or survival, for economic hardship, for zoological
exhibition, for educational purposes, for incidental taking, or for
special purposes consistent with the purposes of the Act. The statute
also contains certain exemptions from the prohibitions, which are found
in sections 9 and 10 of the Act.
We recognize the special and unique relationship with our State
natural resource agency partners in contributing to the conservation of
listed species. State agencies often possess scientific data and
valuable expertise on the status and distribution of endangered,
threatened, and candidate species of wildlife and plants. State
agencies, because of their authorities and their close working
relationships with local governments and landowners, are in a unique
position to assist us in implementing all aspects of the Act. In this
regard, section 6 of the Act provides that we must cooperate to the
maximum extent practicable with the States in carrying out programs
authorized by the Act. Therefore, any qualified employee or agent of a
State conservation agency that is a party to a cooperative agreement
with us in accordance with section 6(c) of the Act, who is designated
by his or her agency for such purposes, is 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 4(d) rule changes in any way the recovery planning
provisions of section 4(f) of the Act, the consultation requirements
under section 7 of the Act, or our ability to enter into partnerships
for the management and protection of the western fanshell and
``Ouachita'' fanshell. However, interagency cooperation may be further
streamlined through planned programmatic consultations for the species
between us and other Federal agencies, where appropriate.
III. Critical Habitat for the Western Fanshell and ``Ouachita''
Fanshell
Background
Section 4(a)(3) of the Act requires that, to the maximum extent
prudent and determinable, we designate a species' critical habitat
concurrently with listing the species. Critical habitat is defined in
section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define the geographical area
occupied by the species as an area that may generally be delineated
around species' occurrences, as determined by the Secretary (i.e.,
range). Such areas may include those areas used throughout all or part
of the species' life cycle, even if not used on a regular basis (e.g.,
migratory corridors, seasonal habitats, and habitats used periodically,
but not solely by vagrant individuals).
This critical habitat designation was proposed when the regulations
defining ``habitat'' (85 FR 81411; December 16, 2020) and governing the
4(b)(2) exclusion process for the Service (85 FR 82376; December 18,
2020) were in place and in effect. However, those two regulations have
been rescinded (87 FR 37757; June 24, 2022, and 87 FR 43433; July 21,
2022) and no longer apply to any designations of critical habitat.
Therefore, for this final rule designating critical habitat for the
western fanshell and ``Ouachita'' fanshell, we apply the regulations at
424.19 and the 2016 Joint Policy on 4(b)(2) exclusions (81 FR 7226;
February 11, 2016).
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures
[[Page 41741]]
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,
habitat restoration, 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 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) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. For these areas, critical
habitat designations identify, to the extent known using the best
scientific and commercial data available, those physical or biological
features that are essential to the conservation of the species (such as
space, food, cover, and protected habitat).
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographical
area occupied by the species at the time it is listed, upon a
determination that such areas are essential for the conservation of the
species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Further, our Policy on
Information Standards Under the Endangered Species Act (published in
the Federal Register on July 1, 1994 (59 FR 34271)), the Information
Quality Act (section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)),
and our associated Information Quality Guidelines provide criteria,
establish procedures, and provide guidance to ensure that our decisions
are based on the best scientific data available. They require our
biologists, to the extent consistent with the Act and with the use of
the best scientific data available, to use primary and original sources
of information as the basis for recommendations to designate critical
habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information from the SSA report and other information developed during
the listing process for the species. Additional information sources may
include any generalized conservation strategy, criteria, or outline
that may have been developed for the species; the recovery plan for the
species; articles in peer-reviewed journals; conservation plans
developed by States and counties; scientific status surveys and
studies; biological assessments; other unpublished materials; or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. Areas that are important to the
conservation of the species, both inside and outside the critical
habitat designation, will continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act; (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species; and (3) the prohibitions found in the 4(d) rule. Federally
funded or permitted projects affecting listed species outside their
designated critical habitat areas may still result in jeopardy findings
in some cases. These protections and conservation tools will continue
to contribute to recovery of 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, HCPs, or other species conservation planning
efforts if new information available at the time of these planning
efforts calls for a different outcome.
Physical or Biological Features Essential to the Conservation of the
Species
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12(b), in determining which areas we will designate as
critical habitat from within the geographical area occupied by the
species at the time of listing, we consider the physical or biological
features that are essential to the conservation of the species and
which may require special management considerations or protection. The
regulations at 50 CFR 424.02 define ``physical or biological features
essential to the conservation of the species'' as the features that
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water
characteristics, soil type, geological features, sites, prey,
vegetation, symbiotic species, or other features. A feature may be a
single habitat characteristic or a more complex combination of habitat
characteristics. Features may include habitat characteristics that
support ephemeral or dynamic habitat conditions. Features may also be
expressed in terms relating to principles of conservation biology, such
as patch size, distribution distances, and connectivity. For example,
physical features essential to the conservation of the species might
include gravel of a particular size required for spawning, alkaline
soil for seed germination, protective cover for migration, or
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include
prey species, forage grasses, specific kinds or ages of trees for
roosting or nesting, symbiotic fungi, or a particular level of
nonnative species consistent with conservation needs of the listed
species. The features may also be combinations
[[Page 41742]]
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
reports; 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 quality water Allen et al. 2007, pp.
with little or no harmful pollutants (that is, 80-85; Augspurger et
pollutants occur below tolerance limits of mussels, al. 2003, p. 2569;
fish hosts, prey). The values below are based on the Bringolf et al. 2007a,
best available science and assume mussels respond to p. 2094; 2007b, p.
average values of a constituent over time (acute or 2086; Cope et al.
chronic exposure). 2008, p. 455; Fuller
[rtarr8] Dissolved oxygen >3 milligrams per liter (mg/ 1974, pp. 240-246;
L). Gillis et al. 2008,
[rtarr8] Low salinity/total dissolved solids. pp. 140-141; Gray et
[rtarr8] Low nutrient concentrations: al. 2002, pp. 155-156;
[rtarr8] Total ammonia nitrogen <0.3-1.0 mg/L at pH Kolpin et al. 2002,
8.0 and 25 [deg]C. pp. 1208-1210; Spooner
and Vaughn 2008, p.
311; Steingraeber et
al. 2007, p. 297; Wang
et al. 2007a, 2007b,
2010, 2013, entire.
[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 sufficient quantity Galbraith and Vaughn
to support the life-history requirements of mussels 2009, p. 46; Allen and
and their fish hosts. Vaughn 2010, p. 390;
Peterson et al. 2011,
p. 115; Daraio et al.
2010, p. 838.
Gamete (sperm, egg development, [rtarr8] Sexually mature males and females with Haag 2012, pp. 38-39;
fertilization) Glochidia. appropriate water temperatures for spawning, Galbraith and Vaughn
fertilization, and brooding. 2009, pp. 45-46;
[rtarr8] Presence of fish hosts (of appropriate Barnhart et al. 2008,
species) with sufficient flow to allow attachment, p. 372.
encystment, relocation, excystment, and dispersal of
glochidia.
Juvenile, sub-adult, and adult [rtarr8] Stable substrate comprised of mixed sand, Allen and Vaughn 2010,
(from excyst- ment to maturity). gravel and cobble, and appropriate for burrowing, pp. 384-385; Haag
pedal feeding, and survival. 2012, pp. 26-42;
[rtarr8] Appropriate food sources (phytoplankton, Eckert 2003, pp. 18-
zooplankton, protozoans, detritus, dissolved organic 19, 33.
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 2022, pp. 9-16), which is available on <a href="https://www.regulations.gov">https://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 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,
[[Page 41743]]
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. For the
western fanshell, this includes logperch (Percina caprodes), rainbow
darter (Etheostoma caeruleum), slenderhead darter (Percina
phoxocephala), fantail darter (Etheostoma flabellare), or orangebelly
darter (Etheostoma radiosum). For the ``Ouachita'' fanshell, this
includes logperch (Percina caprodes), slenderhead darter (Percina
phoxocephala), 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 which are essential to the conservation of
the species and which may require special management considerations or
protection.
The features essential to the conservation of the 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 designating 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 area
occupied by the species at the time of listing and any specific areas
outside the geographical area occupied by the species to be considered
for designation as critical habitat. We are not designating any areas
outside the geographical area occupied by the western fanshell or
``Ouachita'' fanshell because we have not identified any unoccupied
areas that meet the definition of critical habitat. We have determined
that occupied areas are sufficient to conserve these species.
Methodology Used For Selection of 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 present (Service 2022, p. 22).
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
we 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 these critical habitat designations include
information from State agencies throughout the species' ranges and
numerous survey reports on streams throughout the species' ranges
(Service 2022, 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 2022, 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
[[Page 41744]]
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 critical habitat 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 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 (see Final Critical Habitat
Designation, below).
(2) ``Ouachita'' fanshell--Little Missouri River, Ouachita River,
and Saline River (see Final Critical Habitat Designation, below).
Critical Habitat Maps
When determining critical habitat boundaries, we made every effort
to avoid including developed areas, such as lands covered by buildings,
pavement, and other structures, because such lands lack 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 rule have
been excluded by text in the rule and are not designated as critical
habitat. Therefore, a Federal action involving these lands will not
trigger section 7 consultation under the Act with respect to critical
habitat and the requirement of no adverse modification unless the
specific action will affect the physical or biological features in the
adjacent critical habitat.
We are designating as critical habitat stream reaches that we have
determined are occupied at the time of listing (i.e., currently
occupied) and that contain one or more of the physical or biological
features that are essential to support life-history processes of the
species. Six units for the western fanshell and three units for the
``Ouachita'' fanshell are designated based on the presence of the
physical or biological features that 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 or
``Ouachita'' fanshell's particular use of that habitat.
The 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 Regulation Promulgation. We include more detailed
information on the boundaries of the critical habitat designation in
the discussion of individual units below. We will make the coordinates
or plot points or both on which each map is based available to the
public on <a href="https://www.regulations.gov">https://www.regulations.gov</a> at Docket No. FWS-R3-ES-2021-
0061, and on our internet sites at <a href="https://www.fws.gov/species/western-fanshell-cyprogenia-aberti">https://www.fws.gov/species/western-fanshell-cyprogenia-aberti</a> for western fanshell and <a href="https://www.fws.gov/species/ouachita-fanshell-cyprogenia-sp-cf-aberti">https://www.fws.gov/species/ouachita-fanshell-cyprogenia-sp-cf-aberti</a> for
``Ouachita'' fanshell.
Final Critical Habitat Designation
We are designating a total of 261.4 river miles (river mi) (420.7
kilometers (km)) in 6 units as critical habitat for the western
fanshell and a total of 227.7 river mi (366.5 km) in 3 units as
critical habitat for the ``Ouachita'' fanshell. All units are occupied
by their respective species. The critical habitat areas we describe
below constitute our current best assessment of areas that meet the
definition of critical habitat for the western fanshell and
``Ouachita'' fanshell. The six areas designated as critical habitat for
the western fanshell are: Upper Black River (Unit WF 1), Lower Black/
Strawberry River (Unit WF 2), St. Francis River (Unit WF 5), South Fork
Spring River (Unit WF 6), Spring River (AR) (Unit WF 7), and Spring
River (MO) (Unit WF 8). The three areas designated as critical habitat
for the ``Ouachita'' fanshell are: Little Missouri River (Unit OF 1),
Ouachita River (Unit OF 3), and Saline River (Unit OF 4). For both the
western fanshell and ``Ouachita'' fanshell, unit numbers are not
sequential because of exclusions we are making in this final rule; see
Exclusions Based on Other Relevant Impacts, below, for more
information. Tables 2 and 3 show the critical habitat units and the
approximate river miles of each unit.
Table 2--Critical Habitat Units for the Western Fanshell
[Area estimates reflect all land within critical habitat unit
boundaries]
------------------------------------------------------------------------
Adjacent riparian
Critical habitat unit land ownership by River miles
type (kilometers)
------------------------------------------------------------------------
WF 1. Upper Black River......... Public (Federal, 13.7 (22)
State). 51 (82.1)
Private............
WF 2. Lower Black/Strawberry Public (State)..... 10.9 (17.5)
River. Private............ 100.4 (161.6)
WF 5. St. Francis River......... Public (Federal, 12.6 (20.2)
State). 36.7 (59.1)
Private............
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)......... Private............ 8.5 (13.7)
------------------
Totals...................... Public............. 37.2 (59.7)
Private............ 224.2 (361)
------------------
Total........... 261.4 (420.7)
------------------------------------------------------------------------
Note: River miles may not sum due to rounding.
[[Page 41745]]
Table 3--Critical Habitat Units for the ``Ouachita'' Fanshell
[Area estimates reflect all land within critical habitat unit
boundaries]
------------------------------------------------------------------------
Adjacent riparian
Critical habitat unit land ownership by River miles
type (kilometers)
------------------------------------------------------------------------
OF 1. Little Missouri River..... Private............ 22.9 (36.9)
OF 3. Ouachita River............ Private............ 53.5 (86.1)
OF 4. Saline River.............. Public (State)..... 0.5 (0.8)
Private............ 150.8 (242.7)
------------------
Totals...................... Public............. 0.5 (0.8)
Private............ 227.2 (365.7)
------------------
Total........... 227.7 (366.5)
------------------------------------------------------------------------
Note: River miles may not sum due to rounding.
We present brief descriptions of all units and reasons why they
meet the definition of critical habitat for 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. Unit WF 1 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. This unit does not 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 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. Unit WF 2 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 the adjacent riparian areas of 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 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. Unit WF 5 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
[[Page 41746]]
to the species' conservation. Unit WF 5 entirely overlaps 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
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 in Fulton County. Unit WF 6
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. This unit does not
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. Unit WF 7 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. Unit WF 7 entirely overlaps 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)
Unit WF 8 consists of 8.5 river mi (13.7 km) of Spring River in
Jasper County, Missouri, from the mouth of North Fork Spring River east
of Asbury, Jasper County, Missouri, extending downstream to the Kansas
State line, then from where it re-enters Missouri to the mouth of
Center Creek west of Carl Junction, Jasper County, Missouri. Unit WF 8
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 8 is occupied by
the species and contains one or more of the physical or biological
features essential to the species' conservation. Unit WF 8 entirely
overlaps 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).
In our March 3, 2022, proposed rule, we proposed Unit WF 8 as
including 15 river mi (24.1 km) of Spring River in Jasper County,
Missouri, and Cherokee County, Kansas. The Kansas Agreement covers 6.5
river miles (10.5 km) of the proposed Unit WF 8, and we have excluded
that portion of the proposed unit from this final designation (see
Exclusions Based on Other Relevant Impacts, below).
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. Unit OF 1
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. This unit
does not 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 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. Unit OF 3
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
[[Page 41747]]
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 151.3 river mi (243.5 km) of Saline River in
Ashley, Bradley, Cleveland, Dallas, Drew, and Grant Counties, Arkansas,
from U.S. Highway 270 east of Poyen, Grant County, downstream to the
mouth of Mill Creek north of Stillions, Ashley County. Unit OF 4
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 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
74.2 river mi (119.4 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).
In our March 3, 2022, proposed rule, we proposed Unit OF 4 as
including 185.3 river mi (298.2 km) of Saline River in Ashley, Bradley,
Cleveland, Dallas, Drew, Grant, and Saline Counties, Arkansas. The
Headwaters Agreement covers 34.1 river miles (54.9 km) of the proposed
Unit OF 4, and we have excluded that portion of the proposed unit from
this final designation (see Exclusions Based on Other Relevant Impacts,
below).
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. 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,
(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 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: (a) if the amount or extent of
taking specified in the incidental take statement is exceeded; (b) 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; (c) if the identified action is subsequently modified in a
manner that causes an effect to the listed species or critical habitat
that was not considered in the biological opinion or written
concurrence; or (d) if a new species is listed or critical habitat
designated that may be affected by the identified action. The
reinitiation requirement applies only to actions that remain subject to
some discretionary Federal involvement or control. As provided in 50
CFR 402.16, the requirement to reinitiate consultations for new species
listings or critical habitat designation does not apply to certain
agency actions (e.g., land management plans issued by the Bureau of
Land Management in certain circumstances).
[[Page 41748]]
Application of the ``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 we may, during a consultation under section 7(a)(2)
of the Act, consider likely to destroy or adversely modify critical
habitat include, but are not limited to, 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)); or (4) significantly alter streambed 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 Improvement Act of 1997 (16 U.S.C. 670a),
if the Secretary determines in writing that such plan provides a
benefit to the species for which critical habitat is proposed for
designation. There are no DoD lands with a completed INRMP within the
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 critical habitat based on economic
impacts, impacts on national security, or any other relevant impacts.
Exclusion decisions are governed by the regulations at 50 CFR 424.19
and the Policy Regarding Implementation of Section 4(b)(2) of the
Endangered Species Act (2016 Policy; 81 FR 7226, February 11, 2016)--
both of which were developed jointly with National Marine Fisheries
Service (NMFS). We also refer to a 2008 Department of the Interior
Solicitor's opinion entitled, ``The Secretary's Authority to Exclude
Areas from a Critical Habitat Designation under Section 4(b)(2) of the
Endangered Species Act'' (M-37016). We explain each decision to exclude
areas, as well as decisions not to exclude, to demonstrate that the
decision is reasonable.
The Secretary may exclude any particular area if she determines
that the benefits of such exclusion outweigh the benefits of including
such area as part of the critical habitat, unless she determines, based
on the best scientific data available, that the failure to designate
such area as critical habitat will 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 deciding
whether to exclude any areas--taking into consideration each category
of impacts and our analyses of the relevant impacts.
Exclusions Based on 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. In order to consider economic impacts, we prepared
an incremental effects memorandum (IEM) and screening analysis which,
together with our narrative and interpretation of effects, we consider
our economic analysis of the critical habitat designation and related
factors (Service 2021, entire). The analysis, dated March 19, 2021, was
made available for public review from March 3, 2022, through May 2,
2022 (87 FR 12338; March 3, 2022). The economic analysis addressed
probable economic impacts of critical habitat designation for the
western fanshell and ``Ouachita'' fanshell. Following the close of the
comment period, we reviewed and evaluated all information submitted
during the comment period that may pertain to our consideration of the
probable incremental economic impacts of this critical habitat
designation. Additional information relevant to the probable
incremental economic impacts of critical habitat designation for the
western fanshell and ``Ouachita'' fanshell is summarized below and
available in the screening analysis for the species (Industrial
Economics, Inc. 2021, entire), available at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
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 designation of
critical habitat for the western fanshell and ``Ouachita'' fanshell,
first we identified, in the IEM dated February 1, 2021 (Service 2021,
entire), probable incremental economic impacts associated with the
following categories of activities: Instream excavation or dredging;
impoundments; channelization; sand and gravel mining;
[[Page 41749]]
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 activities
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, the
designation of critical habitat affects activities conducted, funded,
permitted, or authorized by Federal agencies only. In areas where the
western fanshell or ``Ouachita'' fanshell are present, Federal agencies
are required to consult with the Service under section 7 of the Act on
activities they fund, permit, or implement that may affect the species.
Consultations to avoid the destruction or adverse modification of
critical habitat will be incorporated into the existing consultation
process.
In our IEM, we attempted to clarify the distinction between the
effects that would result from the species being listed and those
attributable to the critical habitat designation (i.e., difference
between the jeopardy and adverse modification standards) for the
western fanshell's and ``Ouachita'' fanshell's critical habitat.
Because we are designating critical habitat for the western fanshell
and ``Ouachita'' fanshell concurrently with listing the species, it has
been our experience that it is more difficult to discern which
conservation efforts are attributable to the species' being listed and
those which will result solely from the designation of critical
habitat; this is particularly difficult where there is no unoccupied
critical habitat and, thus, there will be consultations for all areas
based on the species' presence in those areas. 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 designation of critical habitat.
The final critical habitat designation for the western fanshell
includes six units, all of which are occupied by the species. Ownership
of riparian lands adjacent to the units includes 224.2 river mi (361
km; 86 percent) in private ownership and 37.2 river mi (59.7 km; 14
percent) in public (Federal or State government) ownership. The final
critical habitat designation for the ``Ouachita'' fanshell includes
three units, all of which are occupied by the species. Ownership of
riparian lands adjacent to the units includes 227.2 river mi (365.7 km;
99.8 percent) in private ownership and 0.5 river mi (0.8 km; 0.2
percent) in public (State government) ownership.
Total incremental costs of critical habitat designation for the
western fanshell are not expected to exceed $48,000 (2021 dollars) per
year (Industrial Economics, Inc. 2021, p. 18). With the exclusion of
proposed Units WF 3, 4, and 9 and the Kansas portion of proposed Unit
WF 8, we anticipate these costs will be even lower. Total incremental
costs of critical habitat designation for the ``Ouachita'' fanshell are
not expected to exceed $30,000 (2021 dollars) per year (Industrial
Economics, Inc. 2021, p. 18). With the exclusion of proposed Unit OF 2
and a portion of proposed Unit OF 4, we anticipate these costs will
also be lower. The costs are reflective of: (1) All 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
designations receive baseline protection from the presence of critical
habitat for co-occurring listed mussel species with similar habitat
needs in 54 percent of the western fanshell's designated critical
habitat and in 43 percent of the ``Ouachita'' fanshell's designated
critical habitat. Because consultation will 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 will likely be primarily limited to
additional administrative efforts to consider adverse modification for
these two species in section 7 consultations (Industrial Economics,
Inc. 2021, p. 12).
Based on the consultation history regarding historical projects and
activities overlapping the 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
six units. Based on the consultation history regarding historical
projects and activities overlapping the 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 three 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 Unit 2 and ``Ouachita''
fanshell Unit 4. However, even assuming consultation activity increases
substantially, incremental administrative costs are still likely to
remain well under $100 million per year (Industrial Economics, Inc.
2021, p. 18).
We solicited data and comments from the public regarding the
economic analysis, as well as all aspects of the March 3, 2022,
proposed rule (87 FR 12338). We did not receive any additional
information on economic impacts during the public comment period to
determine whether any specific areas should be excluded from the final
critical habitat designation under authority of the Act's section
4(b)(2) and our implementing regulations at 50 CFR 424.19.
As discussed above, we considered the economic impacts of the
critical habitat designation, and the Secretary is not exercising her
discretion to exclude any areas from this designation of critical
habitat for the western fanshell and ``Ouachita'' fanshell based on
economic impacts.
A copy of the IEM and screening analysis with supporting documents
may be obtained by contacting the Missouri Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT) or by downloading from the
internet at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Exclusions Based on Impacts on National Security and Homeland Security
In preparing this rule, we determined that there are no lands
within the designated critical habitat for western fanshell or
``Ouachita'' fanshell that are
[[Page 41750]]
owned or managed by the DoD or Department of Homeland Security;
therefore, we anticipate no impact on national security or homeland
security. We did not receive any additional information during the
public comment period for the proposed designation regarding impacts of
the designation on national security or homeland security that would
support excluding any specific areas from the final critical habitat
designation under authority of section 4(b)(2) of the Act and our
implementing regulations at 50 CFR 424.19, as well as the 2016 Policy.
Exclusions Based on 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 as discussed above. To identify other relevant impacts that
may affect the exclusion analysis, we consider a number of factors,
including whether there are permitted conservation plans covering the
species in the area such as HCPs, SHAs, or CCAAs, or whether there are
non-permitted conservation agreements and partnerships that would be
encouraged by designation of, or exclusion from, critical habitat. In
addition, we look at whether Tribal conservation plans or partnerships,
Tribal resources, or government-to-government relationships of the
United States with Tribal entities may be affected by the designation.
We also consider any State, local, social, or other impacts that might
occur because of the designation.
When identifying the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive due to the
protection from destruction or adverse modification as a result of
actions with a Federal nexus, the educational benefits of mapping
essential habitat for recovery of the listed species, and any benefits
that may result from a designation due to State or Federal laws that
may apply to critical habitat.
In the case of western fanshell and ``Ouachita'' fanshell, the
benefits of critical habitat include public awareness of the presence
of the species and the importance of habitat protection, and, where a
Federal nexus exists, increased habitat protection for western fanshell
and ``Ouachita'' fanshell due to protection from destruction or adverse
modification of critical habitat.
When identifying the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation, or in the continuation, strengthening, or
encouragement of partnerships. Additionally, continued implementation
of an ongoing management plan that provides equal to or more
conservation than a critical habitat designation would reduce the
benefits of including that specific area in the critical habitat
designation.
We evaluate the existence of a conservation plan when considering
the benefits of inclusion. We consider a variety of factors, including,
but not limited to, whether the plan is finalized; how it provides for
the conservation of the essential physical or biological features;
whether there is a reasonable expectation that the conservation
management strategies and actions contained in a management plan will
be implemented into the future; whether the conservation strategies in
the plan are likely to be effective; and whether the plan contains a
monitoring program or adaptive management to ensure that the
conservation measures are effective and can be adapted in the future in
response to new information.
After identifying the benefits of inclusion and the benefits of
exclusion, we carefully weigh the two sides to evaluate whether the
benefits of exclusion outweigh those of inclusion. If our analysis
indicates that the benefits of exclusion outweigh the benefits of
inclusion, we then determine whether exclusion would result in
extinction of the species. If exclusion of an area from critical
habitat will result in extinction, we will not exclude it from the
designation.
Based on the information provided by entities seeking exclusion, as
well as any additional public comments we received, and the best
scientific data available, we evaluated whether certain lands in the
proposed critical habitat Units WF 3, WF 4, WF 8, WF 9, OF 2, and OF 4
are appropriate for exclusion from this final designation under section
4(b)(2) of the Act. If our analysis indicates that the benefits of
excluding lands from the final designation outweigh the benefits of
designating those lands as critical habitat, then the Secretary may
exercise her discretion to exclude the lands from the final
designation. In the paragraphs below, we provide a detailed balancing
analysis of the areas being excluded under section 4(b)(2) of the Act.
Private or Other Non-Federal Conservation Plans Related to Permits
Under Section 10 of the Act
HCPs for incidental take permits under section 10(a)(1)(B) of the
Act provide for partnerships with non-Federal entities to minimize and
mitigate impacts to listed species and their habitat. In some cases,
HCP permittees agree to do more for the conservation of the species and
their habitats on private lands than designation of critical habitat
would provide alone. We place great value on the partnerships that are
developed during the preparation and implementation of HCPs.
CCAAs and SHAs are voluntary agreements designed to conserve
candidate and listed species, respectively, on non-Federal lands. In
exchange for actions that contribute to the conservation of species on
non-Federal lands, participating property owners are covered by an
``enhancement of survival'' permit under section 10(a)(1)(A) of the
Act, which authorizes incidental take of the covered species that may
result from implementation of conservation actions, specific land uses,
and, in the case of SHAs, the option to return to a baseline condition
under the agreements. We also provide enrollees assurances that we will
not impose further land-, water-, or resource-use restrictions, or
require additional commitments of land, water, or finances, beyond
those agreed to in the agreements.
When we undertake a discretionary section 4(b)(2) exclusion
analysis, we will always consider areas covered by an approved CCAA/
SHA/HCP, and we anticipate consistently excluding such areas if
incidental take caused by the activities in those areas is covered by
the permit under section 10 of the Act and the CCAA/SHA/HCP meets all
of the following three factors (see the 2016 Policy for additional
details):
a. The permittee is properly implementing the CCAA/SHA/HCP and is
expected to continue to do so for the term of the agreement. A CCAA/
SHA/HCP is properly implemented if the permittee is, and has been,
fully implementing the commitments and provisions in the CCAA/SHA/HCP,
implementing agreement, and permit.
b. The species for which critical habitat is being designated is a
covered species in the CCAA/SHA/HCP, or very similar in its habitat
requirements to a covered species. The recognition that we extend to
such an agreement depends on the degree to which the conservation
measures undertaken in the CCAA/SHA/HCP would also protect the habitat
features of the similar species.
c. The CCAA/SHA/HCP specifically addresses the habitat of the
species for which critical habitat is being designated and meets the
conservation needs of the species in the planning area.
[[Page 41751]]
The Kansas Aquatic Species Conservation Agreement: A Programmatic Safe
Harbor Agreement and Candidate Conservation Agreement With Assurances
for Fourteen Aquatic Species in Kansas (``Kansas Agreement'')
In 2021, the Secretary of the KDWP signed the Kansas Agreement, and
on December 13, 2022, the Service approved an amendment to this
agreement, submitted by the State of Kansas, to include western
fanshell as a covered species. The Kansas Agreement was part of an
application for an enhancement-of-survival permit under section
10(a)(1)(A) of the Act. The Kansas Agreement facilitates the
introduction, reintroduction, augmentation, and translocation, and
conserves the habitat, of imperiled native aquatic species in the State
of Kansas. The Kansas Agreement, a programmatic SHA and CCAA, is
between the KDWP and the Service (collectively, ``the Parties'').
The Kansas Agreement covers all eligible, non-Federal lands in the
State of Kansas for all eligible non-Federal landowners who wish to
participate in the Kansas Agreement (``cooperators''). Non-Federal
lands are those lands owned by non-Federal landowners which include,
but are not limited to, State, Tribal, regional, or local governments;
private or nonprofit organizations; or private citizens. By entering
into this agreement, the Parties are using the Service's SHA and CCAA
programs to further the conservation of the Nation's fish and wildlife.
Both components of the Kansas Agreement and their associated permits
target non-Federal lands in Kansas, whose owners or land managers are
willing to engage in habitat management actions to benefit the species
covered by the agreement (the ``covered species'').
The duration of the Kansas Agreement is 50 years from its effective
date. Each participating landowner, or cooperator, will enroll in the
SHA, CCAA, or both through a landowner management agreement
(``landowner agreement''). Once the landowner agreement is signed, KDWP
will issue the cooperator a certificate of inclusion (COI). The
duration of the landowner agreements entered into under the Kansas
Agreement and the associated COI will be for the remaining duration of
the permit unless another time period is agreed upon by the Parties and
the cooperator.
The conservation goals of the Kansas Agreement are to increase the
resiliency, redundancy, and representation of the covered species'
populations through reintroductions and to protect, enhance, and expand
habitat availability (stream bed and banks). Under the Kansas
Agreement, cooperators will maintain habitat available to the covered
species and will assist with habitat conservation for the remainder of
the term of the Kansas Agreement. Cooperators will facilitate the
ability to reintroduce and augment populations and manage enrolled
lands, as agreed to in their landowner agreement, in a manner that
maintains existing habitat and improves and restores habitat for the
covered species.
Expected outcomes of implementing the Kansas Agreement include the
protection, enhancement, and restoration of instream habitat; improved
water quality; reduced erosion and sedimentation; improved riparian
habitat; and improved land use practices on enrolled lands during the
term of the Kansas Agreement. The Kansas Agreement covers activities
that will maintain existing or baseline riparian habitat, ensure the
connectivity of covered species, and adhere to best management
practices to protect water quantity and quality. Cooperators are
encouraged to include habitat management actions on enrolled lands that
will enhance the habitat beyond the documented baseline or existing
conditions. These activities could include establishment and
enhancement of stream buffers; installation and maintenance of erosion
and pollution control measures; cessation, reduction, or modification
of land use practices, such as pesticide application, animal or vehicle
activity in streamside areas, or ground disturbance; capture and
treatment of stormwater or other runoff to improve water quality, and
fish passage improvement projects. The Kansas Agreement includes the
plains minnow, Topeka shiner, and Neosho madtom within the range of
western fanshell and although these are not host fish for western
fanshell, improvements to their habitat and populations would also
benefit western fanshell host fish. Implementation of these activities
would maintain and/or improve the physical or biological features of
adequate flow, suitable substrate and connected instream habitat, water
and sediment quality, and the presence and abundance of host fish. The
reintroduction activities included in the Kansas Agreement will
increase the probability that covered species will expand their range,
survive, and recruit new cohorts in reintroduced areas. Under the
Kansas Agreement, the criteria for eligible landowners with land
neighboring western fanshell habitat is: ``Mainstem of waterbody where
reintroduction occurs extending onto adjoining parcels, plus direct
tributaries containing suitable habitat. Eligible property must also
support suitable habitat for mainstem and direct tributaries (i.e.,
perennial flows and the presence of host fish species).'' The Kansas
Agreement in its entirety can be found at: <a href="https://ecos.fws.gov/ecp/report/conservation-plan?plan_id=4829">https://ecos.fws.gov/ecp/report/conservation-plan?plan_id=4829</a>.
The Amended Programmatic Safe Harbor Agreement and Programmatic
Candidate Conservation Agreement With Assurances for the Speckled
Pocketbook, Yellowcheek Darter, Rabbitsfoot, and Nineteen Other Aquatic
Species of Greatest Conservation Need in the Upper Little Red River
Watershed, Arkansas (the ``Upper Little Red River Agreement'')
In 2015, the Arkansas Game and Fish Commission (AGFC) and three
other parties signed the Upper Little Red River Agreement, which
includes western fanshell as a covered species. The Upper Little Red
River Agreement was part of an application for an enhancement-of-
survival permit under section 10(a)(1)(A) of the Act. The agreement
facilitates the conservation of habitat for 22 imperiled aquatic
species in the upper Little Red River watershed in the State of
Arkansas. The Upper Little Red River Agreement, a programmatic SHA and
a CCAA, is between the AGFC, the Service, The Nature Conservancy, and
Natural Resources Conservation Service (NRCS) (collectively, ``the
Parties'').
The Upper Little Red River Agreement covers all eligible, non-
Federal lands in the upper Little Red River watershed for all eligible
non-Federal landowners (``cooperators'') who wish to participate in
this agreement. Non-Federal lands are those lands owned by non-Federal
landowners which include, but are not limited to, State, Tribal,
regional, or local governments; private or nonprofit organizations; or
private citizens. By entering into the Upper Little Red River
Agreement, the Parties are using the Service's SHA and CCAA programs to
further the conservation of the Nation's fish and wildlife. Both
components of this agreement and their associated permits target non-
Federal lands in the upper Little Red River watershed in Arkansas,
whose owners or land managers are willing to engage in habitat
management actions to benefit the species covered by the agreement (the
``covered species'').
The duration of the Upper Little Red River Agreement is 29 years
from its effective date, and the permit for the
[[Page 41752]]
Upper Little Red River Agreement expires on January 1, 2044. Each
participating landowner, or cooperator, will enroll in the SHA, CCAA,
or both through a property owner management agreement (POMA). Once the
POMA is signed, the enrolling Party will issue the cooperator a
certificate of inclusion (COI). The duration of the POMAs entered into
under the Upper Little Red River Agreement and the associated COI will
be for the remaining duration of the permit unless another time period
is agreed upon by the Parties and cooperator.
The conservation goals of the Upper Little Red River Agreement are
to protect, enhance, and expand habitat availability (stream bed and
banks); reduce sediment and pollutant runoff, thereby enhancing water
quality and instream habitat (water and stream bed); and allow for
subsequent natural population expansion or, if necessary,
reintroduction of the covered species in the upper Little Red River
watershed. Under the Upper Little Red River Agreement, cooperators will
maintain habitat available to the covered species and will assist with
habitat conservation for the remainder of the term of the Upper Little
Red River Agreement. Cooperators will manage their enrolled lands in a
manner that maintains existing habitat and improves and restores
habitat for the covered species.
Expected outcomes of implementing the Upper Little Red River
Agreement include the protection, enhancement, and restoration of
instream habitat; improved water quality; reduced erosion and
sedimentation; improved riparian habitat; and improved land use
practices on enrolled lands during the term of this agreement.
Implementation of these activities would maintain and/or improve the
physical or biological features of suitable substrate and connected
instream habitat and water and sediment quality. The conservation
[…truncated; see source link]Indexed from Federal Register on June 27, 2023.
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.