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, 12338-12384 [2022-02994]

Download as PDF 12338 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R3–ES–2021–0061; FF09E21000 FXES1111090FEDR 223] RIN 1018–BE79 Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for Western Fanshell and ‘‘Ouachita’’ Fanshell and Designation of Critical Habitat Fish and Wildlife Service, Interior. ACTION: Proposed rule. AGENCY: We, the U.S. Fish and Wildlife Service (Service), propose to list the western fanshell (Cyprogenia aberti), a freshwater mussel species from Arkansas, Kansas, Missouri, and Oklahoma, and the ‘‘Ouachita’’ fanshell (Cyprogenia cf. aberti), a freshwater mussel species from Arkansas and Louisiana, as threatened species and to designate critical habitat for these species under the Endangered Species Act of 1973, as amended (Act). This document also proposes a rule issued under section 4(d) of the Act (4(d) rule) for these mussel species and serves as our 12-month finding on a petition to list the western fanshell. The proposed critical habitat designation for the western fanshell totals approximately 360 river miles (579 kilometers), all of which are occupied by the species, in Arkansas, Kansas, and Missouri, and the proposed critical habitat designation for the ‘‘Ouachita’’ fanshell totals approximately 294 river miles (474 kilometers), all of which are occupied by the species, in Arkansas. We also announce the availability of a draft economic analysis (DEA) of the proposed designation of critical habitat for the western fanshell and ‘‘Ouachita’’ fanshell. If we finalize this rule as proposed, it would add these species to the List of Endangered and Threatened Wildlife and extend the Act’s protections to these species and their designated critical habitats. DATES: We will accept comments received or postmarked on or before May 2, 2022. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for a public hearing, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by April 18, 2022. ADDRESSES: khammond on DSKJM1Z7X2PROD with PROPOSALS3 SUMMARY: VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 Written comments: You may submit comments by one of the following methods: (1) Electronically: Go to the Federal eRulemaking Portal: http:// www.regulations.gov. In the Search box, enter FWS–R3–ES–2021–0061, which is the docket number for this rulemaking. Then, click on the Search button. On the resulting page, in the Search panel on the left side of the screen, under the Document Type heading, check the Proposed Rule box to locate this document. You may submit a comment by clicking on ‘‘Comment.’’ (2) By hard copy: Submit by U.S. mail to: Public Comments Processing, Attn: FWS–R3–ES–2021–0061, U.S. Fish and Wildlife Service, MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041– 3803. We request that you send comments only by the methods described above. We will post all comments on http:// www.regulations.gov. This generally means that we will post any personal information you provide us (see Information Requested, below, for more information). Availability of supporting materials: For the critical habitat designation, the coordinates or plot points or both from which the maps are generated are included in the decision file and are available at https://www.fws.gov/ midwest/ for western fanshell and https://www.fws.gov/southeast/ for ‘‘Ouachita’’ fanshell, at http:// www.regulations.gov under Docket No. FWS–R3–ES–2021–0061, and at the Missouri and Arkansas Ecological Services Field Offices (see FOR FURTHER INFORMATION CONTACT). Any additional tools or supporting information that we may develop for the critical habitat designation will also be available at the Service websites and field offices set out above or at http://www.regulations.gov. FOR FURTHER INFORMATION CONTACT: For information about the western fanshell, contact Karen Herrington, Field Supervisor, U.S. Fish and Wildlife Service, Missouri Ecological Services Field Office, 101 Park DeVille Drive, Suite A, Columbia, MO 65203–0057; telephone 573–234–2132. For information about the ‘‘Ouachita’’ fanshell, contact Melvin Tobin, Field Supervisor, U.S. Fish and Wildlife Service, Arkansas Ecological Services Field Office, 110 South Amity, Suite 300, Conway, AR 72032–8975; telephone 501–513–4473. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800–877–8339. SUPPLEMENTARY INFORMATION: PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 Executive Summary Why we need to publish a rule. Under the Act, if we determine that a species is an endangered or threatened species throughout all or a significant portion of its range, we are required to promptly publish a proposal in the Federal Register and make a determination on our proposal within 1 year. To the maximum extent prudent and determinable, we must designate critical habitat for any species that we determine to be an endangered or threatened species under the Act. Listing a species as an endangered or threatened species and designation of critical habitat can only be completed by issuing a rule. What this document does. We propose to list the western fanshell and ‘‘Ouachita’’ fanshell as threatened species with a rule issued under section 4(d) of the Act, and we propose the designation of critical habitat for these two species. The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that water quality degradation, altered flow, landscape changes, and habitat fragmentation, all of which are exacerbated by the effects of climate change, are the primary threats affecting the western fanshell and ‘‘Ouachita’’ fanshell. Section 4(a)(3) of the Act requires the Secretary of the Interior (Secretary) to designate critical habitat concurrent with listing to the maximum extent prudent and determinable. Section 3(5)(A) of the Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protections; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. Section 4(b)(2) of the Act states that the Secretary must make the designation on the basis of the best scientific data available and after taking into E:\FR\FM\03MRP3.SGM 03MRP3 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS3 consideration the economic impact, the impact on national security, and any other relevant impacts of specifying any particular area as critical habitat. Information Requested We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other governmental agencies, Native American Tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning: (1) The species’ biology, range, and population trends, including: (a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering; (b) Genetics and taxonomy; (c) Historical and current range, including distribution patterns; (d) Historical and current population levels, and current and projected trends; and (e) Past and ongoing conservation measures for the species, its habitat, or both. (2) Factors that may affect the continued existence of these species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors. (3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to these species and existing regulations that may be addressing those threats. (4) Additional information concerning the historical and current status, range, distribution, and population size of these species, including the locations of any additional populations of these species. (5) Information on regulations that are necessary and advisable to provide for the conservation of western fanshell and ‘‘Ouachita’’ fanshell and that the Service can consider in developing a 4(d) rule for these species. In particular, we seek information concerning the extent to which we should include any of the Act’s section 9 prohibitions in the 4(d) rule or whether we should consider any additional exceptions from the prohibitions in the 4(d) rule. In addition, we request comments on whether we should include an exception from permitting requirements for individuals conducting presence/ absence surveys, studies to document VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 habitat use, population monitoring, and evaluations of potential impacts to the fanshells, provided the individual holds a valid scientific collecting permit for mussels from the appropriate State agency. (6) The reasons why we should or should not designate habitat as ‘‘critical habitat’’ under section 4 of the Act (16 U.S.C. 1531 et seq.), including information to inform the following factors that the regulations identify as reasons why designation of critical habitat may be not prudent: (a) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species; (b) The present or threatened destruction, modification, or curtailment of a species’ habitat or range is not a threat to the species, or threats to the species’ habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act; (c) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States; or (d) No areas meet the definition of critical habitat. (7) Specific information on: (a) The amount and distribution of western fanshell and ‘‘Ouachita’’ fanshell habitat; (b) What areas, that were occupied at the time of listing and that contain the physical or biological features essential to the conservation of these species, should be included in the designation and why; (c) Any additional areas occurring within the range of the species that should be included in the designation because they (1) are occupied at the time of listing and contain the physical or biological features that are essential to the conservation of the species and that may require special management considerations, or (2) are unoccupied at the time of listing and are essential for the conservation of the species; (d) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and (e) What areas not occupied at the time of listing are essential for the conservation of these species. We particularly seek comments: (i) Regarding whether occupied areas are adequate for the conservation of these species; PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 12339 (ii) Providing specific information regarding whether or not unoccupied areas would, with reasonable certainty, contribute to the conservation of these species and contain at least one physical or biological feature essential to the conservation of these species; and (iii) Explaining whether or not unoccupied areas fall within the definition of ‘‘habitat’’ at 50 CFR 424.02 and why. (8) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat. (9) Any probable economic, national security, or other relevant impacts of designating any area that may be included in the final designation, and the related benefits of including or excluding specific areas. (10) Information on the extent to which the description of probable economic impacts in the draft economic analysis is a reasonable estimate of the likely economic impacts, the description of the environmental impacts in the draft environmental assessment is complete and accurate, and any additional information regarding probable economic impacts that we should consider. (11) Whether any specific areas we are proposing for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act. If you think we should exclude any additional areas, please provide credible information regarding the existence of a meaningful economic or other relevant impact supporting a benefit of exclusion. (12) Whether we could improve or modify our approach to designating critical habitat in any way to provide for greater public participation and understanding, or to better accommodate public concerns and comments. Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. Please note that submissions merely stating support for, or opposition to, the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or a threatened species must be made ‘‘solely on the E:\FR\FM\03MRP3.SGM 03MRP3 khammond on DSKJM1Z7X2PROD with PROPOSALS3 12340 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules basis of the best scientific and commercial data available.’’ You may submit your comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES. If you submit information via http:// www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the website. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov. Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov. Because we will consider all comments and information we receive during the comment period, our final determinations may differ from this proposal. Based on the new information we receive (and any comments on that new information), we may conclude that the western fanshell or ‘‘Ouachita’’ fanshell is endangered instead of threatened, or we may conclude that either species does not warrant listing as either an endangered species or a threatened species. For critical habitat, our final designation may not include all areas proposed, may include some additional areas that meet the definition of critical habitat, and may exclude some areas if we find the benefits of exclusion outweigh the benefits of inclusion. In addition, we may change the parameters of the prohibitions or the exceptions to those prohibitions in the 4(d) rule if we conclude it is appropriate in light of comments and new information we receive. For example, we may expand the prohibitions to include prohibiting additional activities if we conclude that those additional activities are not compatible with conservation of the species. Conversely, we may establish additional exceptions to the prohibitions in the final rule if we conclude that the activities would facilitate or are compatible with the conservation and recovery of the species. Public Hearing Section 4(b)(5) of the Act provides for a public hearing on this proposal, if requested. Requests must be received by the date specified in DATES. Such requests must be sent to the address VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 shown in FOR FURTHER INFORMATION CONTACT. We will schedule a public hearing on this proposal, if requested, and announce the date, time, and place of the hearing, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing. For the immediate future, we will provide these public hearings using webinars that will be announced on the Service’s website, in addition to the Federal Register. The use of these virtual public hearings is consistent with our regulations at 50 CFR 424.16(c)(3). Previous Federal Actions We identified the western fanshell as a ‘‘Category 2’’ candidate in our May 22, 1984, Review of Invertebrate Wildlife for Listing as Endangered or Threatened Species (49 FR 21664). Category 2 candidates were defined as species for which we had information that proposed listing was possibly appropriate, but conclusive data on biological vulnerability and threats were not available to support a proposed rule at the time. The species remained so designated in subsequent candidate notices of review (CNORs) (54 FR 554, January 6, 1989; 56 FR 58804, November 21, 1991; 59 FR 58982, November 15, 1994). In the February 28, 1996, CNOR (61 FR 7596), we discontinued the designation of Category 2 species as candidates; therefore, the western fanshell was no longer a candidate species. On April 20, 2010, we received a petition from the Center for Biological Diversity (CBD), Alabama Rivers Alliance, Clinch Coalition, Dogwood Alliance, Gulf Restoration Network, Tennessee Forests Council, and West Virginia Highlands Conservancy, to list 404 aquatic, riparian, and wetland species, including the western fanshell, from the southeastern United States as endangered or threatened species and to designate critical habitat concurrent with listing under the Act. On September 27, 2011, we published a 90day finding in the Federal Register (76 FR 59836), concluding that the petition presented substantial information that indicated listing the western fanshell may be warranted. Since that time, the ‘‘Ouachita’’ fanshell has been determined to be a separate species from western fanshell (Williams et al. 2017, p. 47; see discussion of taxonomy below); therefore, we conducted a discretionary status review for the ‘‘Ouachita’’ fanshell concurrent with our status review for the western fanshell. PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 Supporting Documents A species status assessment (SSA) team prepared an SSA report for the western fanshell and ‘‘Ouachita’’ fanshell. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of these species, including the impacts of past, present, and future factors (both negative and beneficial) affecting these species. In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we sought the expert opinions of five appropriate specialists regarding the SSA report. We received two responses. We also sent the SSA report to eight Federal and State partners with expertise in aquatic ecology and freshwater mussel biology, taxonomy, and conservation. We received reviews from a Federal biologist and a State biologist. I. Proposed Listing Determination Background The western fanshell (Cyprogenia aberti) is a freshwater mussel in the Unionidae family. Adults are a dull tan with a distinctive ray pattern from bands of tiny pigment flecks. The shell is thick, compressed to moderately inflated, and round to triangular (up to 3 inches (76 millimeters)), with a wrinkled or rough appearance (Conrad 1850, p. 10; McMurray et al. 2012, p. 30; Oesch 1995, pp. 143–144; Roe 2004, pp. 4–5). Recent molecular analysis of Cyprogenia identified the fanshell from the Ouachita River basin in Arkansas and Louisiana as an independent evolutionary lineage (Chong et al. 2016, pp. 2445–2449). There is confusion regarding what name is available for the Ouachita River drainage fanshell, but the distinctiveness of this species was recognized in the most recent list of freshwater mussels of the United States and Canada (Williams et al. 2017, p. 47). The Arkansas Wildlife Action Plan refers to the species as the ‘‘Ouachita’’ fanshell (C. cf. aberti) (Arkansas Game and Fish Commission 2015, p. 974). Based on this information, we find the ‘‘Ouachita’’ fanshell is a listable entity under the Act, and we follow this naming convention until a specific epithet can be designated. The western fanshell is currently found in the Lower Mississippi-St. Francis, Neosho-Verdigris, and Upper E:\FR\FM\03MRP3.SGM 03MRP3 12341 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules White River basins, within the States of Arkansas, Kansas, Missouri, and Oklahoma (Service 2020, pp. 21–28; see Figure 1, below). It is considered extirpated from the Lower Arkansas basin. The ‘‘Ouachita’’ fanshell currently occurs in the Lower RedOuachita basin in Arkansas and historically in Louisiana (Service 2020, pp. 29–31; see Figure 2, below). BILLING CODE 4333–15–P Index Map: Western Fanshell Rangewide Distribution NE IL KS OK AR MS TX ~ Extant Management Units 1111 Extirpated Management Units - State Boundaries O 31 I I I I I I I I 55 110 Kilometers Figure 1. Distribution of the extant and extirpated management units of western fanshell in Arkansas, Kansas, Missouri, and Oklahoma. VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4725 E:\FR\FM\03MRP3.SGM 03MRP3 EP03MR22.001</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS3 o 62 Miles 12342 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules Index Map: "Ouachita" Fanshell Rangewide Distribution AR LA ~ · Extant Management Units 1111 Extirpated Management Units - State Boundaries 0 12.5 25 Miles I 1 111 24.5 1. 49 Kilometers A Figure 2. Distribution of the extant and extirpated management units of "Ouachita" fanshell in Arkansas and Louisiana. BILLING CODE 4333–15–C Both species are typically found in large creeks and rivers with good water quality, moderate to swift current, and gravel-sand substrates, but specific VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 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 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 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, E:\FR\FM\03MRP3.SGM 03MRP3 EP03MR22.002</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS3 0 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules the fanshell mussels have a unique life cycle that relies on fish hosts for successful reproduction (Barnhart et al. 2008, pp. 371–373; Vaughn and Taylor 1999, p. 913; Barnhart 1997, p. 12). Thorough reviews of the taxonomy, life history, and ecology of the western fanshell and ‘‘Ouachita’’ fanshell are presented in detail in the SSA report (Service 2020, pp. 9–12). khammond on DSKJM1Z7X2PROD with PROPOSALS3 Regulatory and Analytical Framework Regulatory Framework Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species is an endangered species or a threatened species. The Act defines an ‘‘endangered species’’ as a species that is in danger of extinction throughout all or a significant portion of its range, and a ‘‘threatened species’’ as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether any species is an endangered species or a threatened species because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence. These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species’ continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects. We use the term ‘‘threat’’ to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term ‘‘threat’’ includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term ‘‘threat’’ may encompass—either together or separately—the source of the action or condition or the action or condition itself. However, the mere identification of any threat(s) does not necessarily mean VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 that the species meets the statutory definition of an ‘‘endangered species’’ or a ‘‘threatened species.’’ In determining whether a species meets either definition, we must evaluate all identified threats by considering the expected response by the species, and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species, such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the definition of an ‘‘endangered species’’ or a ‘‘threatened species’’ only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future. The Act does not define the term ‘‘foreseeable future,’’ which appears in the statutory definition of ‘‘threatened species.’’ Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis. The term ‘‘foreseeable future’’ extends only so far into the future as the Service can reasonably determine that both the future threats and the species’ responses to those threats are likely. In other words, the foreseeable future is the period of time in which we can make reliable predictions. ‘‘Reliable’’ does not mean ‘‘certain’’; it means sufficient to provide a reasonable degree of confidence in the prediction. Thus, a prediction is reliable if it is reasonable to depend on it when making decisions. It is not always possible or necessary to define foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species’ likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species’ biological response include speciesspecific 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 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 12343 data regarding the status of these species, including an assessment of the potential threats to these species. The SSA report does not represent a decision by the Service on whether these species should be proposed for listing as an endangered or threatened species under the Act. However, it does provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found at Docket No. FWS–R3–ES–2021–0061 on http:// www.regulations.gov and at https:// www.fws.gov/midwest/ and https:// www.fws.gov/southeast/. To assess the western fanshell’s and ‘‘Ouachita’’ fanshell’s viability, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306–310). Briefly, resiliency supports the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years), redundancy supports the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation supports the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes). In general, the more resilient and redundant a species is and the more representation it has, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we identified the species’ ecological requirements for survival and reproduction at the individual, population, and species levels and described the beneficial and risk factors influencing the species’ viability. The SSA process can be categorized into three sequential stages. During the first stage, we evaluated each individual species’ life-history needs. The next stage involved an assessment of the historical and current condition of the species’ demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species’ responses to positive and negative environmental and anthropogenic influences. Throughout all of these stages, we used the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We use this information to inform our regulatory decision. E:\FR\FM\03MRP3.SGM 03MRP3 12344 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules Summary of Biological Status and Threats In this discussion, we review the biological condition of the two species and their resources, and the threats that influence both species’ current and future condition, to assess each species’ overall viability and the risks to that viability. khammond on DSKJM1Z7X2PROD with PROPOSALS3 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 VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 fitness at all life stages for the western fanshell and ‘‘Ouachita’’ fanshell. Full descriptions of all needs are available in chapter 2 of the SSA report (Service 2020, pp. 9–15). Based upon the best available scientific and commercial information, the resource needs for both species are characterized as: • 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; • 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; • Habitat connectivity (that is, a lack of barriers for passage of host fish, which are necessary for dispersal of mussels); • 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 (°F) (27 degrees Celsius (°C)), low concentrations of metals, and an absence of excessive total suspended solids and other pollutants; • 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 • Appropriate food sources (phytoplankton, zooplankton, protozoans, detritus, and dissolved organic matter) in adequate supply. Threats Analysis We identified water quality degradation, altered flow, landscape changes, and habitat fragmentation, all of which are exacerbated by the effects of climate change, as the primary threats affecting the western fanshell and ‘‘Ouachita’’ fanshell (Service 2020, p. 65). We acknowledge that invasive species can have individual and, in some circumstances, population-level effects to mussels. However, the best available data do not support that invasive species are a driving force affecting the current or future conditions of these two fanshell mussels (Service 2020, pp. 62–63). The primary threats are discussed below. Water Quality Chemical contaminants are a major threat in the decline of mussel species (Cope et al. 2008, p. 451; Richter et al. PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 1997, p. 1081; Strayer et al. 2004, p. 436; Wang et al. 2007a, p. 2029). Chemicals enter rivers through point and nonpoint discharges, including spills, industrial and municipal effluents, and residential and agricultural runoff. These sources contribute organic compounds, heavy metals, nutrients, pesticides, and a wide variety of newly emerging contaminants, such as pharmaceuticals, to the aquatic environment. The western fanshell has been exposed to zinc and copper at concentrations that cause acute toxicity (Service 2020, p. 41) and may be exposed to toxic levels of lead in the future (Service 2020, Appendix I–D—I– E). Metals from mine water runoff (for example, Tri-State Mining District in southwest Missouri and southeast Kansas) contributed to mussel declines in Shoal Creek and Spring River in the Arkansas River basin (Angelo et al. 2007, p. 467; EcoAnalysts, Inc. 2018, p. 59). Nutrients, such as nitrogen and phosphorus, primarily occur in runoff from livestock farms, feedlots, heavily fertilized row crops and pastures (Peterjohn and Correll 1984, p. 1471), post timber management activities, and urban and suburban runoff (including residential lawns and leaking septic tanks). Sources of ammonia include agricultural wastes (animal feedlots and nitrogenous fertilizers), municipal wastewater treatment plants, and industrial waste (Augspurger et al. 2007, p. 2569), as well as precipitation and natural processes (decomposition of organic nitrogen) (Augspurger et al. 2003, p. 2569; Goudreau et al. 1993, p. 212; Hickey and Martin 1999, p. 44; Newton et al. 2003, p. 1243). As discussed above under Species Needs, both fanshell species require dissolved oxygen above 3 ppm and ammonia generally below 1.0 ppm total ammonianitrogen. We analyzed total ammonia nitrogen data in rivers occupied by the two fanshell mussel species, but did not find concentrations at levels expected to result in acute or chronic toxicity to mussels (Service 2020, p. 41, Appendix I–D—I–E). In addition, nutrient enrichment increases primary productivity, and the associated algae respiration depletes dissolved oxygen levels. However, available water quality data indicate that hypoxia (low dissolved oxygen) is not occurring in occupied streams and is not currently a threat to the fanshell mussels. Flow Reductions in the diversity and abundance of mussels are principally attributed to habitat alteration caused by inundation of free-flowing rivers and E:\FR\FM\03MRP3.SGM 03MRP3 khammond on DSKJM1Z7X2PROD with PROPOSALS3 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 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 °F (27 °C). In ‘‘Ouachita’’ fanshell occupied streams from 1990 to 2018, the percent of water temperature samples exceeding 27 °C ranged from 6.9 to 15.4 percent, with maximum water temperature ranging from 30.3 °C to 36.6 °C. In western fanshell MUs from 1990 to 2018, the percent of water temperature samples exceeding 27 °C ranged from 0 to 12.6 percent, with maximum water temperature ranging from 22.0 °C to 35.8 °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). VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 Fanshell mussels undoubtedly evolved in the presence of extreme hydrological conditions to some degree, including severe droughts leading to dewatering, and heavy rains leading to damaging scour events and movement of mussels and substrate, although the frequency, duration, and intensity of these events may be different from today. Streamflow and overall discharge for rivers inhabited by western and ‘‘Ouachita’’ fanshell mussels will likely decline due to climate change and projected increases in temperatures and evaporation rates, resulting in more frequent and intense droughts (LaFontaine et al. 2019, entire). Excessive sediments adversely affect riverine mussel populations requiring clean, stable streams (Brim Box and Mossa 1999, p. 99; Ellis 1936, pp. 39– 40). Specific biological effects include reduced feeding and respiratory efficiency from clogged gills, disrupted metabolic processes, reduced growth rates, limited burrowing activity, physical smothering, and disrupted host fish attraction mechanisms (Ellis 1936, pp. 39–40; Hartfield and Hartfield 1996, p. 373; Marking and Bills 1979, p. 210; Vannote and Minshall 1982, pp. 4105– 4106; Waters 1995, pp. 173–175). The physical effects of sediment on mussel habitat include changes in suspended and bed material load; changes in bed sediment composition associated with increased sediment production and runoff in the watershed; channel changes in form, position, and degree of stability; changes in depth or the width and depth ratio that affects light penetration and flow regime, actively aggrading (filling) or degrading (scouring) channels; and changes in channel position. These effects to habitat may dislodge, transport downstream, or leave mussels stranded (Brim Box and Mossa 1999, pp. 109– 112; Kanehl and Lyons 1992, pp. 4–5; Vannote and Minshall 1982, p. 4106). The majority of sediment transport occurs during floods (Clark and Mangham 2019, pp. 6–7; Kondolf 1997, p. 533). The increase in flooding severity results in greater sediment transport, with important effects to substrate stability and benthic habitats for freshwater mussels, as well as other organisms that are dependent on stable benthic habitats (Kondolf 1997, p. 535). High base flows can incise channels, erode riverbanks, scour mussel beds, and remove substrate preferred by mussels. Over time, the physical force of these higher base flows can dislodge mussels from the sediment and permanently alter the geomorphology of rivers (Clark and Mangham 2019, pp. 6– 7; Kondolf 1997, p. 533). PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 12345 Runoff from impervious surfaces prevalent in urban areas affects the natural hydrology of streams by increasing flood magnitude, duration, and frequency (Bressler et al. 2009, p. 292). Frequent floods in urban areas scour stream substrate and banks, thereby increasing erosion and sedimentation and altering geomorphology. Geomorphic changes, such as changes in channel width, occur with impervious areas as low as 2 to 10 percent (Booth and Jackson 1997, p. 1084; Dunne and Leopold 1978, pp. 275–277; Morisawa and LaFlure 1979, Figure 11). Initial degradation of fish communities and lower larval densities have been associated with as low as 10 percent impervious areas (Limburg and Schmidt 1990, pp. 1241–1242; Steedman 1988, pp. 498–499). Unpaved road networks also interact with streams, delivering sediment runoff and increasing water velocity entering stream channels, thereby increasing stream energy, eroding streambanks, scouring channels, and increasing flooding (Coffin 2007, pp. 397–398). Landscape Alterations Many rivers where the western fanshell and ‘‘Ouachita’’ fanshell occur are threatened by land use activities and changes (for example, increased urbanization, alteration of riparian buffers, improperly designed and maintained unpaved roads). Urbanization of a watershed can result in increased pollutant loads from stormwater runoff, altered flow, decreased bank stability, and increased water temperature. Urbanization can also indirectly increase channel erosion and downstream sedimentation by increasing the frequency and volume of channel-altering storm flows (Hammer 1972, p. 1530; Leopold 1968, entire). These effects of urbanization can lower fish species richness and density, leading to predictable changes in species composition, and these changes can accrue rapidly (less than 10 years) and are detectable at low levels (approximately 5 to 10 percent urbanization) (Walters et al. 2005, p. 1). In 2016, 80 percent of the western and ‘‘Ouachita’’ fanshell MUs had 5 percent or greater urban land use, but all were less than 10 percent (Service 2020, Appendix I–A). The amount of impervious surface and riparian forest cover influences stream hydrology and water quality (Brabec et al. 2002, pp. 505–507). Riparian forest cover intercepts and moderates the timing of runoff, buffers temperature extremes, filters pollutants in runoff, provides woody debris to stream channels that enhances aquatic E:\FR\FM\03MRP3.SGM 03MRP3 12346 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS3 food webs, and stabilizes excessive erosion. Furthermore, the removal of riparian trees in forested watersheds has a strong influence on stream invertebrate communities (Wallace et al. 1997, entire). In 2016, forest cover ranged from 70 to 76 percent in ‘‘Ouachita’’ fanshell MUs and 12 to 77 percent in western fanshell MUs (Service 2020, Appendix I–A). Agricultural practices, such as livestock grazing and tilling on land adjacent to streams, can lead to soil erosion and subsequent runoff of fine sediments, nutrients, and pesticides (for example, Schulz and Liess 1999, p. 155). Watersheds with the most habitat converted to farmland often have the greatest levels of mussel richness decline (Poole and Downing 2004, p. 123). In 2016, agricultural land use ranged from 5 to 13 percent in ‘‘Ouachita’’ fanshell MUs and 17 to 68 percent in western fanshell MUs, and decreased in all MUs for both species from 2011 to 2016 (Service 2020, Appendix I–A). Roads adversely affect watershed integrity by intercepting, concentrating, and diverting water. Roads directly affect natural sediment and hydrologic regimes by altering stream flow, sediment loading, sediment transport and deposition, channel morphology, channel stability, substrate composition, stream temperature, water quality, and riparian condition (Lee et al. 1997, pp. 1102–1104). Hydrologic effects are sensitive to road density, with increased peak flows evident at road densities of 2 to 3 kilometers (km)/square kilometers (km2) (Forman and Alexander 1998, p. 223). In 2016, unpaved road density in all the western and ‘‘Ouachita’’ fanshell mussel MUs were 1.6 km/km2 or less. Habitat Fragmentation Hydrologic and geomorphic processes directly relate to habitat extent. The number and distribution of habitat patches and their connectivity influence species population health. Historically, the two fanshell species likely occurred throughout the river basins described in the SSA (Service 2020, pp. 21–31). Large-scale reductions in mussel diversity and abundance are largely due to habitat changes caused by impoundments (Neves et al. 1997, p. 63). The number of impoundments in ‘‘Ouachita’’ fanshell MUs ranges from 3 to 51, and in western fanshell MUs ranges from 4 to 73. Effects of Climate Change We examined information on the anticipated effects of climate change, including changes to water temperatures and precipitation patterns. In its 5th VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 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 °C increase in stream water temperature for every 1 °C increase in air temperature (Morrill et al. 2005, pp. 1–2, 15). These water temperature changes will have implications for temperature-dependent water quality parameters (such as dissolved oxygen and ammonia toxicity), spawning, and physiological effects to thermally sensitive species. Future increases in the frequency and severity of both extreme drought and extreme rainfall are expected to transform many ecosystems in the Southeast, including Arkansas (Carter et al. 2018, pp. 743–808). Mussels are highly sensitive to secondary effects of drought (for example, water temperature, etc.), but their ability to withstand severe drought is highly dependent on where they occur (Haag and Warren 2008, p. 1165) and sufficient time between sequential drought events for mussel populations to recover (Vaughn et al. 2015, pp. 1297–1298). We also considered whether the threats discussed above may be exacerbated by small population size (or low condition). Although there are populations in low condition in all the basins in which the two species occur, none of the basins have seen their populations reduced to one or two populations in low condition. Regulatory Mechanisms State Protections The western fanshell is listed as State endangered with designated critical habitats under the Kansas Nongame and Endangered Species Conservation Act. Under State law, any time an eligible project is proposed that will impact the species’ preferred habitats within its probable range in Kansas, the project sponsor must contact the Kansas Department of Wildlife, Parks and PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 Tourism, regarding potential permit requirements. The western fanshell and ‘‘Ouachita’’ fanshell do not receive protection under State law in any other States. Other Regulatory Mechanisms The U.S. Forest Service (2005, p. 58) established a wildlife and fish habitat road density objective of less than or equal to 1.6 km/2.6 km2 on the Ouachita National Forest in west-central Arkansas, which includes the Ouachita Headwaters and Caddo MUs for ‘‘Ouachita’’ Fanshell. The Arkansas Unpaved Roads Program, authorized by Act 898 of the 90th General Assembly in 2005, establishes a proactive, incentive-based management program that results in utilization of best management practices on unpaved roads to minimize erosion and maintain and improve the health of priority lakes and rivers (TNC 2017, entire), including those where both fanshell mussel species occur. Current Conditions Current (and future) conditions are described using categories that estimate the overall condition (resiliency) of the western fanshell and ‘‘Ouachita’’ fanshell populations. These categories are based on an evaluation of multiple population and habitat factors (Service 2020, pp. 16–19). Given that both of the fanshells’ ranges include medium to large rivers with some populations fragmented by dams and creation of navigation channels, we delineated separate populations for each watershed through which these streams flow (if there was an occurrence record for the stream in that watershed), based on the hydrologic unit code (HUC) (Seaber et al. 1987, entire; U.S. Geological Survey 2018, entire) at the fourth of six levels (that is, the HUC–8 watershed), and termed these ‘‘management units’’ (MUs). MUs represent areas with one or more populations capable of dispersal and interaction. As a result, some watersheds have been combined into one management unit because of a lack of dispersal barriers and some divided into multiple management units. MUs were identified as most appropriate for assessing population-level resiliency because the stream level was determined to be too coarse of a scale to estimate the condition factors influencing resiliency (Service 2020, p. 16). We defined a MU as currently extant if it contains live or recent dead individuals observed in surveys from 2000 to the present (Service 2020, p. 21). E:\FR\FM\03MRP3.SGM 03MRP3 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules To evaluate the species’ genetic and ecological diversity (representation) in the absence of species-specific genetic information, we considered the extent and variability of environmental conditions within the two species’ geographic ranges. Based on the best available data, we identified representation units at the HUC–4 watershed level, which is the second HUC level and covers a larger area than HUC–8. Western Fanshell The western fanshell’s current range includes a total of 11 MUs across three HUC–4 units: Neosho-Verdigris (2 MUs), Lower Mississippi-St. Francis (3 MUs), and Upper White (6 MUs) river drainages of Arkansas, Missouri, Kansas, and Oklahoma. Historically, the western fanshell occurred in another 14 MUs and is presumed extirpated from the Lower Arkansas (HUC–4) river drainage. Of the current MUs, three (27 percent) are estimated to be highly resilient, three (27 percent) are estimated to be moderately resilient, and five (46 percent) are estimated to have low resiliency (Service 2020, pp. 36–46). The habitat conditions across the 11 extant populations are medium to high (Service 2020, p. 41). khammond on DSKJM1Z7X2PROD with PROPOSALS3 ‘‘Ouachita’’ Fanshell The ‘‘Ouachita’’ fanshell currently occurs in 4 MUs within portions of the Ouachita River basin (HUC–4) in Arkansas. One population is presumed extirpated. Of the current MUs, one (25 percent) is estimated to be highly resilient, one (25 percent) is estimated to be moderately resilient, and two (50 percent) are estimated to have low resiliency (Service 2020, pp. 46–50). The habitat conditions across the 4 extant populations are medium to high (Service 2020, p. 47). Future Conditions We forecasted the western fanshell’s and ‘‘Ouachita’’ fanshell’s responses to plausible future scenarios of environmental conditions. The future scenarios project the threats into the future and consider the impacts those threats could have on the viability of the western fanshell and ‘‘Ouachita’’ fanshell. We apply the concepts of resiliency, redundancy, and representation to the future scenarios to describe possible future conditions of the western fanshell and ‘‘Ouachita’’ fanshell. The scenarios described in the SSA report represent only two possible future conditions for each species. Uncertainty is inherent in any projection of future condition, so we must consider plausible scenarios to VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 make our determinations. When assessing the future, viability is not a specific state, but rather a continuous measure of the likelihood that the species will sustain populations over time. In the SSA, we considered two future scenarios. Scenario 1 assesses the species’ responses to moderate increases in stressors influencing the western fanshell and ‘‘Ouachita’’ fanshell populations, although current conservation practices would remain in place. Scenario 2 assesses the species’ responses to severe increases in stressors. Due to a lack of resolution of the available data, we were unable to distinguish any meaningful difference between a moderate increase in stressors and a moderate decrease in stressors. As a result, we limited the future forecasts to these two scenarios, which we projected over a 40-year period. We restricted our evaluation to 40 years primarily due to limitations projecting non-modeled, extrapolated future conditions for water quality, road density, and habitat fragmentation. A full description of the future scenarios and our methods is available in the SSA report (Service 2020, pp. 64–69). Under Scenario 1, populations of both fanshell species are projected to decline in resiliency and redundancy over time as conditions moderately decline from current conditions. For western fanshell, we project five (45 percent) of the currently extant MUs to become extirpated. Of the remaining six populations, four (67 percent) would be in medium condition, and two (33 percent) in low condition, with no MUs in high condition. For ‘‘Ouachita’’ fanshell, we project two (50 percent) of the currently extant MUs to become extirpated. Of the remaining two populations, one (50 percent) would be in medium condition, and one (50 percent) in low condition, with no MUs in high condition. All of the extant HUC–4 river basins would remain occupied for both species. While our projections under Scenario 2 do not anticipate additional extirpations from those observed under Scenario 1, we expect all remaining populations of both species to be in low condition in 40 years. All extant HUC– 4 river basins would remain occupied for both species. We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA report, we have not only analyzed individual effects on the species, but we have also analyzed their potential cumulative effects. We incorporate the cumulative effects into our SSA analysis when we characterize PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 12347 the current and future condition of the species. To assess the current and future condition of the species, we undertake an iterative analysis that encompasses and incorporates the threats individually and then accumulates and evaluates the effects of all the factors that may be influencing the species, including threats and conservation efforts. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis. Determination of Western Fanshell and ‘‘Ouachita’’ Fanshell Status Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of an ‘‘endangered species’’ or a ‘‘threatened species.’’ The Act defines ‘‘endangered species’’ as a species in danger of extinction throughout all or a significant portion of its range, and ‘‘threatened species’’ as a species likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether a species meets the definition of ‘‘endangered species’’ or ‘‘threatened species’’ because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. Western Fanshell—Status Throughout All of Its Range After evaluating threats to the species and assessing the cumulative effect of the threats under the Act’s section 4(a)(1) factors, we determined that the western fanshell has experienced a reduction in populations/management units from historical conditions. However, the species still ranges over three of the four major drainages (HUC– 4 representation units) in which it historically occurred. Eleven of 27 historical MUs are extant. Of those 11, 3 MUs are currently in high condition, 3 in medium condition, and 5 in low condition. The majority (54 percent) of the MUs are in high or medium condition. There is at least one MU in high condition in each of the 3 extant representation units. With 11 extant E:\FR\FM\03MRP3.SGM 03MRP3 khammond on DSKJM1Z7X2PROD with PROPOSALS3 12348 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules MUs across three HUC–4s, the species currently retains redundancy to withstand and survive potential catastrophic events, although there is no imminent catastrophic threat. Therefore, we determined that the species is not in danger of extinction throughout all of its range. However, the following threats currently acting on the western fanshell will likely continue into the foreseeable future and decrease the condition of the species further over time: Habitat loss and degradation from siltation, water quality degradation, altered flow, landscape changes, and habitat fragmentation (Factor A). These threats are reasonably expected to be exacerbated by continued urbanization, and threats of water quality (temperature) and flow are especially exacerbated by climate change (Factor E). These threats will continue to impact the species into the foreseeable future, and the existing regulatory mechanisms (Factor D) are not adequately reducing the impact of these threats on the species. The best available data do not indicate that the western fanshell is currently impacted at the population level by overutilization for commercial, recreational, scientific, or educational purposes (Factor B) or predation or disease (Factor C), nor do the best available data indicate that the species will be impacted by these factors in the future. Given the projection of threats 40 years into the future, the number of western fanshell populations will decline with the projected loss of five MUs, reducing the species’ redundancy. Across the plausible future scenarios, resiliency also declines with zero to four populations projected to be in medium condition and two to six populations in low condition. No populations are projected to be in high condition in the foreseeable future. Representation is projected to remain across the range, but the considerable loss of redundancy and resiliency makes the species likely to become in danger of extinction in the foreseeable future throughout its range. Thus, after assessing the best available information, we conclude that the western fanshell is likely to become in danger of extinction within the foreseeable future throughout all of its range. Western Fanshell—Status Throughout a Significant Portion of Its Range Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. The court in Center VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 for Biological Diversity v. Everson, 2020 WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological Diversity), vacated the aspect of the Final Policy on Interpretation of the Phrase ‘‘Significant Portion of Its Range’’ in the Endangered Species Act’s Definitions of ‘‘Endangered Species’’ and ‘‘Threatened Species’’ (79 FR 37578; July 1, 2014) that provided that the Service does not undertake an analysis of significant portions of a species’ range if the species warrants listing as threatened throughout all of its range. Therefore, we proceed to evaluating whether the species is endangered in a significant portion of its range—that is, whether there is any portion of the species’ range for which both (1) the portion is significant; and (2) the species is in danger of extinction in that portion. Depending on the case, it might be more efficient for us to address the ‘‘significance’’ question or the ‘‘status’’ question first. We can choose to address either question first. Regardless of which question we address first, if we reach a negative answer with respect to the first question that we address, we do not need to evaluate the other question for that portion of the species’ range. Following the court’s holding in Center for Biological Diversity, we now consider whether there are any significant portions of the species’ range where the species is in danger of extinction now (that is, endangered). In undertaking this analysis for western fanshell, we choose to address the status question first—we consider information pertaining to the geographic distribution of both the species and the threats that the species faces to identify any portions of the range where the species is endangered. For western fanshell, we considered whether the threats are geographically concentrated in any portion of the species’ range at a biologically meaningful scale. We examined the following threats: Water quality degradation, altered flow, landscape changes, and habitat fragmentation, including cumulative effects. We evaluated multiple factors—including various water quality parameters, land cover data, road density, and barriers— that contribute to these primary threats. These habitat factors are in a medium to high condition across the species’ range. Overall, we found that threats are acting similarly within the occupied river basins across the species’ range. We found no concentration of threats in any portion of the western fanshell’s range at a biologically meaningful scale. Thus, there are no portions of the species’ range where the species has a different status from its rangewide status. PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 Therefore, no portion of the species’ range provides a basis for determining that the species is in danger of extinction in a significant portion of its range, and we determine that the species is likely to become in danger of extinction within the foreseeable future throughout all of its range. This is consistent with the courts’ holdings in Desert Survivors v. Department of the Interior, No. 16–cv–01165–JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017). Western Fanshell—Determination of Status Our review of the best available scientific and commercial information indicates that the western fanshell meets the Act’s definition of a threatened species. Therefore, we propose to list the western fanshell as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act. ‘‘Ouachita’’ Fanshell—Status Throughout All of Its Range After evaluating threats to the species and assessing the cumulative effect of the threats under the section 4(a)(1) factors, we determined that the ‘‘Ouachita’’ fanshell has experienced a reduction in resiliency and redundancy from historical conditions. The species is extant in four MUs within one major drainage (HUC–4 representation unit). The species historically occurred in Bayou Bartholomew in Louisiana. Of the four extant MUs, one is currently in high condition, one in medium condition, and two in low condition. The species appears to be endemic to the Ouachita River basin. Although the species is known from only one representation unit, half of the extant populations are in high or medium condition. The species currently retains redundancy to withstand and survive potential catastrophic events, although there is no imminent catastrophic threat. Therefore, we determined that the species is not in danger of extinction throughout all of its range. The following threats currently acting on the ‘‘Ouachita’’ fanshell will likely continue into the foreseeable future and decrease the condition of the species further over time: Habitat loss and degradation from siltation, water quality degradation, altered flow, landscape changes, and habitat fragmentation (Factor A). These threats are reasonably expected to be exacerbated by continued urbanization, and threats of water quality (temperature) and flow are especially exacerbated by climate change (Factor E). These threats will E:\FR\FM\03MRP3.SGM 03MRP3 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS3 continue to impact the species into the foreseeable future, and the existing regulatory mechanisms (Factor D) are not adequately reducing the impact of these threats on the species. The best available data do not indicate that the ‘‘Ouachita’’ fanshell is currently impacted at the population level by overutilization for commercial, recreational, scientific, or educational purposes (Factor B) or predation or disease (Factor C), nor do the best available data indicate that the species will be impacted by these factors in the future. Given the projection of threats 40 years into the future, the number of ‘‘Ouachita’’ fanshell populations will decline with the projected loss of two MUs, reducing the species’ redundancy. Resiliency also declines with three to four populations projected to be in low condition and zero to one population(s) in medium condition. No populations are projected to be in high condition in the foreseeable future. As the species occurs in only the Ouachita River basin, representation is projected to remain, but the considerable loss of redundancy and resiliency makes the species likely to become in danger of extinction in the foreseeable future throughout its range. Thus, after assessing the best available information, we conclude that the ‘‘Ouachita’’ fanshell is likely to become in danger of extinction within the foreseeable future throughout all of its range. ‘‘Ouachita’’ Fanshell—Status Throughout a Significant Portion of Its Range See above, under Western Fanshell— Status Throughout a Significant Portion of Its Range, for a description of our evaluation methods and our policy application. In undertaking the analysis for the ‘‘Ouachita’’ fanshell, we choose to address the status question first—we consider information pertaining to the geographic distribution of both the species and the threats that the species faces to identify any portions of the range where the species is endangered. We examined the following threats: Water quality degradation, altered flow, landscape changes, and habitat fragmentation, including cumulative effects. We evaluated multiple factors— including various water quality parameters, land cover data, road density, and barriers—that contribute to these primary threats. These habitat factors are in a medium to high condition across the species’ range. Overall, we found that threats are acting similarly across the species’ range. We found no concentration of threats in any VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 portion of the ‘‘Ouachita’’ fanshell’s range at a biologically meaningful scale. Thus, there are no portions of the species’ range where the species has a different status from its rangewide status. Therefore, no portion of the species’ range provides a basis for determining that the species is in danger of extinction in a significant portion of its range, and we determine that the species is likely to become in danger of extinction within the foreseeable future throughout all of its range. This is consistent with the courts’ holdings in Desert Survivors v. Department of the Interior, No. 16–cv–01165–JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and Center for Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 2017). ‘‘Ouachita’’ Fanshell—Determination of Status Our review of the best available scientific and commercial information indicates that the ‘‘Ouachita’’ fanshell meets the Act’s definition of a threatened species. Therefore, we propose to list the ‘‘Ouachita’’ fanshell as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act. Available Conservation Measures Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below. The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Section 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species’ decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 12349 point where they are secure, selfsustaining, and functioning components of their ecosystems. Recovery planning consists of preparing draft and final recovery plans, beginning with the development of a recovery outline and making it available to the public within 30 days of a final listing determination. The recovery outline guides the immediate implementation of urgent recovery actions. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for reclassification from endangered to threatened (‘‘downlisting’’) or removal from protected status (‘‘delisting’’), and as a benchmark for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our website (http:// www.fws.gov/endangered), or from our Arkansas Ecological Services Field Office for ‘‘Ouachita’’ fanshell or Missouri Ecological Services Field Office for western fanshell (see FOR FURTHER INFORMATION CONTACT). Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (for example, restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on nonFederal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands. If this species is listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost-share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the States of Arkansas, Kansas, Missouri, and Oklahoma would be eligible for Federal funds to implement management actions that promote the protection or recovery of the western fanshell and the States of Arkansas and E:\FR\FM\03MRP3.SGM 03MRP3 khammond on DSKJM1Z7X2PROD with PROPOSALS3 12350 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules Louisiana would be eligible for Federal funds to implement management actions that promote the protection or recovery of the ‘‘Ouachita’’ fanshell. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants. Although the western fanshell and ‘‘Ouachita’’ fanshell are only proposed for listing under the Act at this time, please let us know if you are interested in participating in conservation efforts for these species. Additionally, we invite you to submit any new information on these species whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT). Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service. Federal agency actions within the species’ habitat that may require conference or consultation or both as described in the preceding paragraph include, but are not limited to, activities authorized, funded, or carried out by the following agencies: (1) U.S. Army Corps of Engineers (channel dredging and maintenance; dam projects including flood control, navigation, hydropower, bridge projects, stream restoration, and Clean Water Act permitting). (2) U.S. Department of Agriculture, including the Natural Resources Conservation Service and Farm Service Agency (technical and financial assistance for projects) and the Forest Service (aquatic habitat restoration, fire management plans, fuel reduction treatments, forest plans, mining permits). VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 (3) U.S. Department of Energy (renewable and alternative energy projects). (4) Federal Energy Regulatory Commission (interstate pipeline construction and maintenance, dam relicensing, hydrokinetics). (5) U.S. Department of Transportation (highway and bridge construction and maintenance). (6) U.S. Fish and Wildlife Service (issuance of section 10 permits for enhancement of survival, habitat conservation plans, and safe harbor agreements; National Wildlife Refuge planning and refuge activities; Partners for Fish and Wildlife program projects benefiting these species or other listed species; Wildlife and Sportfish Restoration program sportfish stocking). (7) Environmental Protection Agency (water quality criteria, permitting). (8) Office of Surface Mining (land resource management plans, mining permits, oil and natural gas permits, renewable energy development). It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a proposed listing on proposed and ongoing activities within the range of the species proposed for listing. The discussion below regarding protective regulations under section 4(d) of the Act complies with our policy. II. Proposed Rule Issued Under Section 4(d) of the Act Background Section 4(d) of the Act contains two sentences. The first sentence states that the Secretary shall issue such regulations as she deems necessary and advisable to provide for the conservation of species listed as threatened. The U.S. Supreme Court has noted that statutory language like ‘‘necessary and advisable’’ demonstrates a large degree of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)). Conservation is defined in the Act to mean the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Additionally, the second sentence of section 4(d) of the Act states that the Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 9(a)(1), in the case of fish or wildlife, or section 9(a)(2), in the case PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 of plants. Thus, the combination of the two sentences of section 4(d) provides the Secretary with wide latitude of discretion to select and promulgate appropriate regulations tailored to the specific conservation needs of the threatened species. The second sentence grants particularly broad discretion to the Service when adopting the prohibitions under section 9. The courts have recognized the extent of the Secretary’s discretion under this standard to develop rules that are appropriate for the conservation of a species. For example, courts have upheld rules developed under section 4(d) as a valid exercise of agency authority where they prohibited take of threatened wildlife, or include a limited taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007 U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D. Wash. 2002)). Courts have also upheld 4(d) rules that do not address all of the threats a species faces (see State of Louisiana v. Verity, 853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when the Act was initially enacted, ‘‘once an animal is on the threatened list, the Secretary has an almost infinite number of options available to him [or her] with regard to the permitted activities for those species. He [or she] may, for example, permit taking, but not importation of such species, or he [or she] may choose to forbid both taking and importation but allow the transportation of such species’’ (H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973). Exercising this authority under section 4(d), we have developed a proposed rule that is designed to address the western fanshell’s and ‘‘Ouachita’’ fanshell’s specific threats and conservation needs. Although the statute does not require us to make a ‘‘necessary and advisable’’ finding with respect to the adoption of specific prohibitions under section 9, we find that this rule as a whole satisfies the requirement in section 4(d) of the Act to issue regulations deemed necessary and advisable to provide for the conservation of the western fanshell and ‘‘Ouachita’’ fanshell. As discussed above under Summary of Biological Status and Threats, we have concluded that the western fanshell and ‘‘Ouachita’’ fanshell are likely to become in danger of extinction within the foreseeable future primarily due to habitat loss and degradation from siltation, water and sediment quality degradation, changes to flow, and impoundments. These threats, which E:\FR\FM\03MRP3.SGM 03MRP3 khammond on DSKJM1Z7X2PROD with PROPOSALS3 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules are expected to be exacerbated by continued urbanization and the effects of climate change, were central to our assessment of the future viability of the western fanshell and ‘‘Ouachita’’ fanshell. The provisions of this proposed 4(d) rule would promote conservation of the western fanshell and ‘‘Ouachita’’ fanshell by encouraging management of the landscape in ways that meet both land management considerations and the conservation needs of the western fanshell and ‘‘Ouachita’’ fanshell. The provisions of this proposed rule are one of many tools that we would use to promote the conservation of the western fanshell and ‘‘Ouachita’’ fanshell. This proposed 4(d) rule would apply only if and when we make final the listing of the western fanshell and ‘‘Ouachita’’ fanshell as threatened species. Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, Tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat—and actions on State, Tribal, local, or private lands that are not federally funded, authorized, or carried out by a Federal agency—do not require section 7 consultation. This obligation does not change in any way for a threatened species with a species-specific 4(d) rule. Actions that result in a determination by a Federal agency of ‘‘not likely to adversely VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 affect’’ continue to require the Service’s written concurrence and actions that are ‘‘likely to adversely affect’’ a species require formal consultation and the formulation of a biological opinion. Provisions of the Proposed 4(d) Rule This proposed 4(d) rule would provide for the conservation of the western fanshell and ‘‘Ouachita’’ fanshell by prohibiting the following activities, except as otherwise authorized or permitted: Importing or exporting; take; possession and other acts with unlawfully taken specimens; delivering, receiving, transporting, or shipping in interstate or foreign commerce in the course of commercial activity; or selling or offering for sale in interstate or foreign commerce. As discussed above under Summary of Biological Status and Threats, multiple factors are affecting the status of western fanshell and ‘‘Ouachita’’ fanshell. A range of activities have the potential to affect these species, including, for example, habitat loss and degradation from siltation, water and sediment quality degradation, changes to flow, and impoundments. These threats, which are expected to be exacerbated by continued urbanization and the effects of climate change, were central to our assessment of the future viability of western fanshell and ‘‘Ouachita’’ fanshell. Therefore, we prohibit actions resulting in the incidental take of western fanshell and ‘‘Ouachita’’ fanshell by altering or degrading the habitat. Regulating incidental take resulting from these activities would help preserve the species’ remaining populations, slow their rate of decline, and decrease synergistic, negative effects from other stressors. Under the Act, ‘‘take’’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Some of these provisions have been further defined in regulation at 50 CFR 17.3. Take can result knowingly or otherwise, by direct and indirect impacts, intentionally or incidentally. The proposed 4(d) rule would also provide for the conservation of the species by allowing exceptions to actions and activities that, while they may have some minimal level of disturbance to the western fanshell and ‘‘Ouachita’’ fanshell, are not expected to negatively affect the species’ conservation and recovery efforts. The proposed exceptions to these prohibitions include: (1) Channel and bank restoration projects; (2) silviculture and forest management that implements best management practices; and (3) PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 12351 transportation projects that avoid instream disturbance in waters occupied by the species. The first exception is for incidental take resulting from channel and bank restoration projects for creation of natural, physically stable, ecologically functioning streams, taking into consideration connectivity with floodplain and groundwater aquifers. This exception includes a requirement that bank restoration projects require planting appropriate native vegetation, including woody species appropriate for the region and habitat. We also propose language that would require surveys and relocation prior to commencement of restoration actions (and, if applicable, monitoring after relocation) for western fanshell and ‘‘Ouachita’’ fanshell that would otherwise be negatively affected by the actions. Actions related to restoration activities that would negatively affect western fanshell and ‘‘Ouachita’’ fanshell include: Individual mussels being removed, dislodged, crushed and/or killed by heavy equipment operations and rip-rap placement; removal, destruction and/or replacement of habitat; increased turbidity from streambed disturbance; and alterations to flow and turbidity from permanent (weirs) or temporary (causeways) structures needed for construction. The second exception is for incidental take resulting from silviculture and forest management activities that use State-approved best management practices to protect water and sediment quality and stream and riparian habitat. Best management practices are designed to reduce sedimentation, erosion, and bank destruction, thereby protecting instream habitat for these species. The third exception is for incidental take resulting from transportation projects that do not include activities that disturb instream habitat. Bridge designs that include spanning the stream and avoiding stream bank disturbance reduce sedimentation and erosion, thereby protecting instream habitat for these species. We reiterate that these actions and activities may have some minimal level of take of the western fanshell and ‘‘Ouachita’’ fanshell, but any such take is expected to be rare and insignificant, and is not expected to negatively impact the species’ conservation and recovery efforts. Rather, we expect they would have a net beneficial effect on the species. Across the species’ range, instream habitats have been degraded physically by sedimentation and by direct and indirect channel disturbance. The habitat restoration activities in the proposed 4(d) rule are intended to E:\FR\FM\03MRP3.SGM 03MRP3 khammond on DSKJM1Z7X2PROD with PROPOSALS3 12352 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules improve habitat conditions for the species in the long term. We may issue permits to carry out otherwise prohibited activities, including those described above, involving threatened wildlife under certain circumstances. Regulations governing permits for threatened wildlife are codified at 50 CFR 17.32. With regard to threatened wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, for economic hardship, for zoological exhibition, for educational purposes, for incidental taking, or for special purposes consistent with the purposes of the Act. The statute also contains certain exemptions from the prohibitions, which are found in sections 9 and 10 of the Act. In addition, we are considering, but have not specifically proposed in this document, an exception from permitting requirements for individuals conducting presence/absence surveys, studies to document habitat use, population monitoring, and evaluations of potential impacts to the fanshells, provided the individual holds a valid scientific collecting permit for mussels from the appropriate State agency. If we conclude that this measure would provide for the conservation of the species, we may include a provision in the final 4(d) rule. We specifically request comments on this provision we are considering. We recognize the special and unique relationship with our State natural resource agency partners in contributing to conservation of listed species. State agencies often possess scientific data and valuable expertise on the status and distribution of endangered, threatened, and candidate species of wildlife and plants. State agencies, because of their authorities and their close working relationships with local governments and landowners, are in a unique position to assist the Service in implementing all aspects of the Act. In this regard, section 6 of the Act provides that the Service shall cooperate to the maximum extent practicable with the States in carrying out programs authorized by the Act. Therefore, any qualified employee or agent of a State conservation agency that is a party to a cooperative agreement with the Service in accordance with section 6(c) of the Act, who is designated by his or her agency for such purposes, would be able to conduct activities designed to conserve the western fanshell and ‘‘Ouachita’’ fanshell that may result in otherwise prohibited take without additional authorization. Nothing in this proposed 4(d) rule would change in any way the recovery VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 planning provisions of section 4(f) of the Act, the consultation requirements under section 7 of the Act, or the ability of the Service to enter into partnerships for the management and protection of the western fanshell and ‘‘Ouachita’’ fanshell. However, interagency cooperation may be further streamlined through planned programmatic consultations for the species between Federal agencies and the Service, where appropriate. We ask the public, particularly State agencies and other interested stakeholders that may be affected by the proposed 4(d) rule, to provide comments and suggestions regarding additional guidance and methods that the Service could provide or use, respectively, to streamline the implementation of this proposed 4(d) rule (see Information Requested, above). III. Critical Habitat Background Critical habitat is defined in section 3 of the Act as: (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features: (a) Essential to the conservation of the species, and (b) Which may require special management considerations or protection; and (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as an area that may generally be delineated around species’ occurrences, as determined by the Secretary (that is, range). Such areas may include those areas used throughout all or part of the species’ life cycle, even if not used on a regular basis (for example, migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals). Additionally, our regulations at 50 CFR 424.02 define the word ‘‘habitat,’’ for the purposes of designating critical habitat only, as the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species. Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking. Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation also does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by nonFederal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7(a)(2) of the Act. However, even if the Service were to conclude that the proposed activity would result in destruction or adverse modification of the critical habitat, the Federal action agency and the landowner are not required to abandon the proposed activity, or to restore or recover the species; instead, they must implement ‘‘reasonable and prudent alternatives’’ to avoid destruction or adverse modification of critical habitat. Under the first prong of the Act’s definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features that occur in specific occupied areas, we focus on the specific E:\FR\FM\03MRP3.SGM 03MRP3 khammond on DSKJM1Z7X2PROD with PROPOSALS3 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules features that are essential to support the life-history needs of the species, including, but not limited to, water characteristics, soil type, geological features, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. Under the second prong of the Act’s definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. The implementing regulations at 50 CFR 424.12(b)(2) further delineate unoccupied critical habitat by setting out three specific parameters: (1) When designating critical habitat, the Secretary will first evaluate areas occupied by the species; (2) the Secretary will consider unoccupied areas to be essential only where a critical habitat designation limited to geographical areas occupied by the species would be inadequate to ensure the conservation of the species; and (3) for an unoccupied area to be considered essential, the Secretary must determine that there is a reasonable certainty both that the area will contribute to the conservation of the species and that the area contains one or more of those physical or biological features essential to the conservation of the species. Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106–554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When we are determining which areas should be designated as critical habitat, VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 our primary source of information is generally the information from the SSA report and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species; the recovery plan for the species; articles in peer-reviewed journals; conservation plans developed by States and counties; scientific status surveys and studies; biological assessments; other unpublished materials; or experts’ opinions or personal knowledge. As the regulatory definition of ‘‘habitat’’ reflects (50 CFR 424.02), habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act; (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species; and (3) the prohibitions found in section 9 of the Act. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of these species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of those planning efforts calls for a different outcome. Prudency Determination Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 12353 endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary may, but is not required to, determine that a designation would not be prudent in the following circumstances: (i) The species is threatened by taking or other human activity and identification of critical habitat can be expected to increase the degree of such threat to the species; (ii) The present or threatened destruction, modification, or curtailment of a species’ habitat or range is not a threat to the species, or threats to the species’ habitat stem solely from causes that cannot be addressed through management actions resulting from consultations under section 7(a)(2) of the Act; (iii) Areas within the jurisdiction of the United States provide no more than negligible conservation value, if any, for a species occurring primarily outside the jurisdiction of the United States; (iv) No areas meet the definition of critical habitat; or (v) The Secretary otherwise determines that designation of critical habitat would not be prudent based on the best scientific data available. As discussed earlier in this document, there is currently no imminent threat of collection or vandalism identified under Factor B for these species, and identification and mapping of critical habitat is not expected to initiate any such threat. In our SSA and proposed listing determination for the western fanshell and ‘‘Ouachita’’ fanshell, we determined that the present or threatened destruction, modification, or curtailment of habitat or range is a threat to the western fanshell and ‘‘Ouachita’’ fanshell and that those threats can be addressed in some way by section 7(a)(2) consultation measures. These species occur wholly in the jurisdiction of the United States, and we are able to identify areas that meet the definition of critical habitat. Therefore, because none of the circumstances enumerated in our regulations at 50 CFR 424.12(a)(1) have been met and because the Secretary has not identified other circumstances for which this designation of critical habitat would be not prudent, we have determined that the designation of critical habitat is prudent for the western fanshell and ‘‘Ouachita’’ fanshell. Critical Habitat Determinability Having determined that designation is prudent, under section 4(a)(3) of the Act we must find whether critical habitat for the western fanshell and ‘‘Ouachita’’ fanshell is determinable. Our regulations at 50 CFR 424.12(a)(2) state E:\FR\FM\03MRP3.SGM 03MRP3 12354 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules that critical habitat is not determinable when one or both of the following situations exist: (i) Data sufficient to perform required analyses are lacking, or (ii) The biological needs of the species are not sufficiently well known to identify any area that meets the definition of ‘‘critical habitat.’’ When critical habitat is not determinable, the Act allows the Service an additional year to publish a critical habitat designation (16 U.S.C. 1533(b)(6)(C)(ii)). We reviewed the available information pertaining to the biological needs of the species and habitat characteristics where these species are located. This and other information represent the best scientific data available and led us to conclude that the designation of critical habitat is determinable for the western fanshell and ‘‘Ouachita’’ fanshell. Physical or Biological Features Essential to the Conservation of the Species In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12(b), in determining which areas we will designate as critical habitat from within the geographical area occupied by the species at the time of listing, we consider the physical or biological features that are essential to the conservation of the species and which may require special management considerations or protection. The regulations at 50 CFR 424.02 define ‘‘physical or biological features essential to the conservation of the species’’ as the features that occur in specific areas and that are essential to support the life- history needs of the species, including, but not limited to, water characteristics, soil type, geological features, sites, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity. For example, physical features essential to the conservation of the species might include gravel of a particular size required for spawning, alkaline soil for seed germination, protective cover for migration, or susceptibility to flooding or fire that maintains necessary earlysuccessional habitat characteristics. Biological features might include prey species, forage grasses, specific kinds or ages of trees for roosting or nesting, symbiotic fungi, or absence of or a particular level of nonnative species consistent with conservation needs of the listed species. The features may also be combinations of habitat characteristics and may encompass the relationship between characteristics or the necessary amount of a characteristic essential to support the life history of the species. In considering whether features are essential to the conservation of the species, we may consider an appropriate quality, quantity, and spatial and temporal arrangement of habitat characteristics in the context of the lifehistory needs, condition, and status of the species. These characteristics include, but are not limited to, space for individual and population growth and for normal behavior; food, water, air, light, minerals, or other nutritional or physiological requirements; cover or shelter; sites for breeding, reproduction, or rearing (or development) of offspring; and habitats that are protected from disturbance. As described above under Summary of Biological Status and Threats, western fanshell and ‘‘Ouachita’’ fanshell occur in large creeks and rivers. Occasional or regular interaction among individuals in different river reaches not interrupted by a barrier likely occurs, but in general, interaction is strongly influenced by habitat fragmentation and distance between occupied river or stream reaches. Once released from their fish host, freshwater mussels are benthic (bottom-dwelling), generally sedentary aquatic organisms and closely associated with appropriate habitat patches within a river or stream. We derive the specific physical or biological features essential for the western fanshell and ‘‘Ouachita’’ fanshell from studies of these species’ (or appropriate surrogate species’) habitat, ecology, and life history. The primary habitat elements that influence resiliency of the western fanshell and ‘‘Ouachita’’ fanshell include water quality, water quantity, substrate, habitat connectivity, and the presence of host fish species to ensure recruitment. These features are also described above as species needs under Summary of Biological Status and Threats, and a full description is available in the SSA report; the individuals’ needs are summarized below in Table 1. khammond on DSKJM1Z7X2PROD with PROPOSALS3 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 with little or no harmful pollutants (that is, pollutants occur below tolerance limits of mussels, fish hosts, prey). The values below are based on the best available science and assume mussels respond to average values of a constituent over time (acute or chronic exposure). ➢ Dissolved oxygen >3 milligrams per liter (mg/L) ➢ Low salinity/total dissolved solids ➢ Low nutrient concentrations ➢ Total ammonia nitrogen <0.3–1.0 mg/L at pH 8.0 & 25 °C ➢ Nitrate <2.0 mg/L ➢ Nitrite <55.8 mg/L ➢ Low concentrations of metals ➢ Cadmium <0.014 mg/L at 50 mg/L calcium carbonate (CaCO3) hardness ➢ Zinc <0.120 mg/L at 50 mg/L CaCO3 hardness ➢ Lead <0.205 mg/L at 50 mg/L CaCO3 hardness ➢ Copper <0.005 mg/L in moderately hard water ➢ Natural, unaltered ambient water temperature generally <27 °C Water Quantity: Flowing water in sufficient quantity to support the life-history requirements of mussels and their fish hosts. Allen et al. 2007, pp. 80–85; Augspurger et al. 2003, p. 2569; Bringolf et al. 2007a, p. 2094; 2007b, p. 2086; Cope et al. 2008, p. 455; Fuller 1974, pp. 240–246; Gillis et al. 2008, pp. 140–141; Gray et al. 2002, pp. 155–156; Kolpin et al. 2002, pp. 1208– 1210; Spooner and Vaughn 2008, p. 311; Steingraeber et al. 2007, p. 297; Wang et al. 2007a, 2007b, 2010, 2013, entire. VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 Galbraith and Vaughn 2009, p. 46; Allen and Vaughn 2010, p. 390; Peterson et al. 2011, p. 115; Daraio et al. 2010, p. 838. E:\FR\FM\03MRP3.SGM 03MRP3 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 12355 TABLE 1—REQUIREMENTS FOR LIFE STAGES OF WESTERN FANSHELL AND ‘‘OUACHITA’’ FANSHELL—Continued Life stage Resource needs—habitat requirements References Gamete (sperm, egg development, fertilization). Glochidia ....................... ➢ Sexually mature males and females with appropriate water temperatures for spawning, fertilization, and brooding. ➢ Presence of fish hosts (of appropriate species) with sufficient flow to allow attachment, encystment, relocation, excystment, and dispersal of glochidia. ➢ Stable substrate comprised of mixed sand, gravel and cobble, and appropriate for burrowing, pedal feeding, and survival. ➢ Appropriate food sources (phytoplankton, zooplankton, protozoans, detritus, dissolved organic matter) in adequate supply. ➢ Presence and abundance of fish hosts available for recruitment. Haag 2012, pp. 38–39; Galbraith and Vaughn 2009, pp. 45–46; Barnhart et al. 2008, p. 372. 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 (°F) (27 degrees Celsius (°C)). Additionally, water and sediment should be low in ammonia (generally below 1.0 ppm total ammonia-nitrogen) and heavy metals, and lack excessive total suspended solids and other pollutants. (4) The presence and abundance of fish hosts necessary for recruitment of the western fanshell and ‘‘Ouachita’’ fanshell, including logperch (Percina caprodes), rainbow darter (Etheostoma caeruleum), slenderhead darter (Percina phoxocephala), fantail darter (Etheostoma flabellare), or orangebelly darter (Etheostoma radiosum). municipal effluents, mining, and agricultural activities; (4) land use activities that remove large areas of forested wetlands and riparian systems; (5) dam construction and culvert and pipe installation that create barriers to movement for the western fanshell and ‘‘Ouachita’’ fanshell, or their host fishes; (6) changes and shifts in seasonal precipitation patterns as a result of climate change; and (7) other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water. Management activities that could ameliorate these threats include, but are not limited to: Use of best management practices designed to reduce sedimentation, erosion, and bank destruction; protection of riparian corridors and woody vegetation; moderation of surface and ground water withdrawals to maintain natural flow regimes; improved stormwater management; and reduction of other watershed and floodplain disturbances that release sediments, pollutants, or nutrients into the water. In summary, we find that the occupied areas we are proposing to designate as critical habitat contain the physical or biological features that are essential to the conservation of the species and which may require special management considerations or protection. Special management considerations or protection may be required of the Federal action agency to eliminate, or to reduce to negligible levels, the threats affecting the physical and biological features of each unit. khammond on DSKJM1Z7X2PROD with PROPOSALS3 Juvenile, sub-adult, and adult (from excystment to maturity). Summary of Essential Physical or Biological Features We derive the specific physical or biological features essential to the conservation of the western fanshell and ‘‘Ouachita’’ fanshell from studies of the species’ habitat, ecology, and life history as described below. Additional information can be found in chapter 2 of the SSA report (Service 2020, pp. 9– 15), which is available on http:// www.regulations.gov under Docket No. FWS–R3–ES–2021–0061. We have determined that the following physical or biological features are essential to the conservation of the western fanshell and ‘‘Ouachita’’ fanshell: (1) Adequate flows, or a hydrologic flow regime (magnitude, timing, frequency, duration, rate of change, and overall seasonality of discharge over time), necessary to maintain benthic habitats where the species are found and to maintain stream connectivity, specifically providing for the exchange of nutrients and sediment for maintenance of the mussels’ and fish hosts’ habitat and food availability, maintenance of spawning habitat for native host fishes, and the ability for newly transformed juveniles to settle and become established in their habitats. Adequate flows ensure delivery of oxygen, enable reproduction, deliver food to filter-feeding mussels, and reduce contaminants and fine sediments from interstitial spaces. (2) Suitable substrates and connected instream habitats, characterized by geomorphically stable stream channels and banks (that is, channels that maintain lateral dimensions, longitudinal profiles, and sinuosity patterns over time without an aggrading or degrading bed elevation) with habitats that support a diversity of freshwater mussel and native fish (such as stable riffle-run-pool habitats that provide flow refuges consisting of siltfree gravel and coarse sand substrates). (3) Water and sediment quality necessary to sustain natural physiological processes for normal VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 Special Management Considerations or Protection When designating critical habitat, we assess whether the specific areas within the geographical area occupied by the species at the time of listing contain features essential to the conservation of the species and which may require special management considerations or protection. The features essential to the conservation of the western fanshell and ‘‘Ouachita’’ fanshell may require special management considerations or protections to reduce the following threats: (1) Alteration of the natural flow regime (modifying the natural hydrograph and seasonal flows), including water withdrawals, resulting in flow reduction and available water quantity; (2) urbanization of the landscape, including (but not limited to) land conversion for urban and commercial use, infrastructure (pipelines, roads, bridges, utilities), and urban water uses (resource extraction activities, water supply reservoirs, wastewater treatment, etc.); (3) significant alteration of water quality and nutrient pollution from a variety of activities, such as industrial and PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 Allen and Vaughn 2010, pp. 384–385; Haag 2012, pp. 26–42; Eckert 2003, pp. 18–19, 33. 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 E:\FR\FM\03MRP3.SGM 03MRP3 12356 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS3 area occupied by the species at the time of listing and any specific areas outside the geographical area occupied by the species to be considered for designation as critical habitat. We anticipate that recovery will require conserving the genetic diversity of extant populations across the HUC– 4 watersheds within the species’ current range and maintaining and, where necessary, improving habitat and habitat connectivity to ensure the long-term viability of western fanshell and ‘‘Ouachita’’ fanshell. We have determined that the currently occupied MUs of western fanshell and ‘‘Ouachita’’ fanshell would maintain each species’ resiliency, redundancy, and representation and are sufficient to conserve these two species. Therefore, we are not currently proposing to designate any areas outside the geographical area occupied by the species. Methodology Used for Selection of Proposed Units First, we included current populations with high or medium resiliency. These populations show recruitment or varied age class structure and could be used for recovery actions to augment other populations through propagation activities or direct translocations within their basins. We defined a population as ‘‘current’’ if it contains live or recent dead individuals observed in surveys from 2000 to the present (Service 2020, p. 21). Second, we evaluated spatial representation and redundancy across the species’ ranges, to include last remaining population(s) in major river basins. Third, we examined the overall contribution of populations in low condition and threats to those populations. We considered adjacency and connectivity to high and medium populations, as well as isolated populations with potentially important genetic or adaptive traits, and did not include populations that have potentially low likelihood of recovery due to low abundance and limited distribution or populations currently under high levels of threats. Sources of data for this proposed critical habitat designation include information from State agencies throughout the species’ ranges and numerous survey reports on streams throughout the species’ ranges (Service 2020, entire). We have also reviewed available information that pertains to the habitat requirements of these species. Sources of information on habitat requirements include studies conducted at occupied sites and VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 published in peer-reviewed articles, agency reports, and data collected during monitoring efforts (Service 2020, entire). In summary, for areas within the geographic area occupied by these species at the time of listing, we delineated critical habitat unit boundaries using a precise set of criteria. Specifically, we identified river and stream reaches with observations from 2000 to present. We determined it is reasonable to find these areas occupied, given the variable data associated with timing and frequency of mussel surveys conducted throughout the species’ ranges and available State heritage databases, and information supports the likelihood of both species’ continued presence in these areas within this timeframe. Specific habitat areas were delineated, based on Natural Heritage Element Occurrences, published reports, and unpublished survey data provided by States. These areas provide habitat for western fanshell and ‘‘Ouachita’’ fanshell populations and are large enough to be self-sustaining over time, despite fluctuations in local conditions. The areas within the proposed units represent continuous river and stream reaches of free-flowing habitat patches capable of sustaining host fishes and allowing for seasonal transport of glochidia, which are essential for reproduction and dispersal of western fanshell and ‘‘Ouachita’’ fanshell. We consider portions of the following rivers and streams to be occupied by these species at the time of proposed listing, and appropriate for critical habitat designation: (1) Western fanshell—Black River, Fall River, Middle Fork Little Red River, St. Francis River, South Fork Spring River, Spring River, Strawberry River, and Verdigris River. (2) ‘‘Ouachita’’ fanshell—Little Missouri River, Ouachita River, and Saline River. When determining proposed critical habitat boundaries, we made every effort to avoid inclusion of developed areas, such as lands covered by buildings, pavement, and other structures because such lands lack physical or biological features necessary for the western fanshell and ‘‘Ouachita’’ fanshell. The scale of the maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this proposed rule have been excluded by text in the proposed rule and are not proposed for designation as PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 critical habitat. Therefore, if the critical habitat is finalized as proposed, a Federal action involving these lands would not trigger section 7 consultation with respect to critical habitat and the requirement of no adverse modification unless the specific action would affect the physical or biological features in the adjacent critical habitat. We propose to designate as critical habitat lands that we have determined are occupied at the time of listing (that is, currently occupied) and that contain one or more of the physical or biological features that are essential to support life-history processes of the species. We are proposing to designate as critical habitat nine units for the western fanshell and four units for the ‘‘Ouachita’’ fanshell based on one or more of the physical or biological features being present to support the western fanshell’s or ‘‘Ouachita’’ fanshell’s life-history processes. Some units contain all of the identified physical or biological features and support multiple life-history processes. Some units contain only some of the physical or biological features necessary to support the western fanshell’s and ‘‘Ouachita’’ fanshell’s particular use of that habitat. The proposed critical habitat designation is defined by the map or maps, as modified by any accompanying regulatory text, presented at the end of this document under Proposed Regulation Promulgation. We include more detailed information on the boundaries of the critical habitat designation in the preamble of this document. We will make the coordinates or plot points or both on which each map is based available to the public on http:// www.regulations.gov at Docket No. FWS–R3–ES–2021–0061 and on our internet sites https://www.fws.gov/ midwest/ for western fanshell and https://www.fws.gov/southeast/ for ‘‘Ouachita’’ fanshell. Proposed Critical Habitat Designation We are proposing to designate approximately 360 river miles (river mi) (579 kilometers (km)) in nine units as critical habitat for western fanshell and approximately 294 river mi (474 km) in four units for ‘‘Ouachita’’ fanshell. The critical habitat areas we describe below constitute our current best assessment of areas that meet the definition of critical habitat for western fanshell and ‘‘Ouachita’’ fanshell. All units are occupied by their respective species. The nine areas we propose as critical habitat for western fanshell are: (1) Upper Black River, (2) Lower Black/ Strawberry River, (3) Fall River, (4) E:\FR\FM\03MRP3.SGM 03MRP3 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules Middle Fork Little Red River, (5) St. Francis River, (6) South Fork Spring River, (7) Spring River (AR), (8) Spring River (MO/KS), and (9) Verdigris River. The four areas we propose as critical habitat for ‘‘Ouachita’’ fanshell are: (1) Little Missouri River, (2) Ouachita Headwaters, (3) Ouachita River, and (4) 12357 Saline River. Tables 2 and 3 show the proposed critical habitat units and the approximate area of each unit. TABLE 2—PROPOSED CRITICAL HABITAT UNITS FOR WESTERN FANSHELL [Area estimates reflect all land within critical habitat unit boundaries.] River miles (kilometers) Critical habitat unit Adjacent riparian land ownership by type WF 1. Upper Black River ................................................................................ WF 9. Verdigris River ..................................................................................... Public (Federal, State) ........................................... Private .................................................................... Public (State) .......................................................... Private .................................................................... Private .................................................................... Public (Federal) ...................................................... Private .................................................................... Public (Federal, State) ........................................... Private .................................................................... Private .................................................................... Private .................................................................... Public (State) .......................................................... Private .................................................................... Private .................................................................... 13.7 (22) 51 (82.1) 10.9 (17.5) 100.4 (161.6) 45.5 (73.2) 3.5 (5.6) 30.6 (49.2) 12.6 (20.2) 36.7 (59.1) 13.4 (21.6) 14.2 (22.9) 1.0 (1.6) 14.0 (22.5) 12.4 (20) Totals ....................................................................................................... Public ...................................................................... 41.7 (67.1) Private .................................................................... Total ................................................................ 318.2 (512.1) 359.9 (579.2) WF 2. Lower Black/Strawberry River ............................................................. WF 3. Fall River .............................................................................................. WF 4. Middle Fork Little Red River ................................................................ WF 5. St. Francis River .................................................................................. WF 6. South Fork Spring River ...................................................................... WF 7. Spring River (AR) ................................................................................ WF 8. Spring River (MO/KS) .......................................................................... Note: Area sizes may not sum due to rounding. TABLE 3—PROPOSED CRITICAL HABITAT UNITS FOR ‘‘OUACHITA’’ FANSHELL [Area estimates reflect all land within critical habitat unit boundaries.] River miles (kilometers) Critical habitat unit Adjacent riparian land ownership by type OF 1. Little Missouri River .............................................................................. OF 2. Ouachita Headwaters ........................................................................... Private .................................................................... Public (Federal) ...................................................... Private .................................................................... Private .................................................................... Public (State) .......................................................... Private .................................................................... 22.9 (36.9) 2.8 (4.5) 29.9 (48.1) 53.5 (86.1) 0.5 (0.8) 184.8 (297.4) Public ...................................................................... Private .................................................................... 3.3 (5.3) 291.1 (468.5) Total ................................................................ 294.4 (473.8) OF 3. Ouachita River ...................................................................................... OF 4. Saline River .......................................................................................... Totals ....................................................................................................... Note: Area sizes may not sum due to rounding. We present brief descriptions of all units, and reasons why they meet the definition of critical habitat for the western fanshell or ‘‘Ouachita’’ fanshell, below. khammond on DSKJM1Z7X2PROD with PROPOSALS3 WF 1: Upper Black River Unit WF 1 consists of 64.7 river mi (104.1 km) of Black River in Butler and Wayne Counties, Missouri, from Clearwater Dam southwest of Piedmont, Wayne County, extending downstream to Butler County Road 658 crossing southeast of Poplar Bluff, Butler County, and includes the river channel up to the ordinary high water mark. Riparian lands that border the unit include approximately 51 river mi (82.1 km; 79 percent) in private ownership and 13.7 VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 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 PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 operated by the USACE. Unit WF 1 is occupied by the species and contains all of the physical or biological features essential to the conservation of the species. There is no overlap with any designated critical habitat for other listed species. Threats identified within the unit include degradation of habitat and water quality from impoundments, channelization, and point and nonpoint source water pollution, including siltation and pollution associated with agriculture, development, and wastewater treatment plants. Special management considerations or protection measures to reduce or alleviate the threats may include reducing water quality degradation and E:\FR\FM\03MRP3.SGM 03MRP3 12358 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS3 habitat loss associated with agriculture, development, and wastewater treatment plants (see Special Management Considerations or Protection, above). WF 2: Lower Black/Strawberry River Unit WF 2 consists of 111.3 river mi (179.1 km) of Black River and Strawberry River in Independence, Jackson, Lawrence, and Sharp Counties in Arkansas and includes the river channel up to the ordinary high water mark. Black River makes up 54.6 river mi (87.9 km) from the mouth of Spring River northeast of Black Rock, extending downstream to the mouth of Strawberry River northeast of Dowdy, Independence County, Arkansas. Strawberry River makes up 56.7 river mi (91.2 km) from the mouth of Lave Creek north of Evening Shade, Sharp County, extending downstream to the confluence with Black River northeast of Dowdy, Independence County, Arkansas. Riparian lands that border the unit include approximately 100.4 river mi (161.6 km; 90 percent) in private ownership and 10.9 river mi (17.5 km; 10 percent) in public (State) ownership. The public land ownership in this unit is associated with Arkansas Game and Fish Commission’s Shirey Bay Rainey Brake Wildlife Management Area on Black River. The Nature Conservancy’s Strawberry River Preserve and Ranch on Strawberry River is also in this unit. General land use within this unit includes forest, agriculture, Statemanaged game lands, the town of Powhatan, and city of Black Rock. Unit WF 2 is occupied by the species and contains one or more of the physical or biological features essential to the species’ conservation. There is overlap of 70.3 river mi (113.1 km) of this unit with designated critical habitat for rabbitsfoot (Quadrula cylindrica cylindrica) (see 50 CFR 17.95(f) and 80 FR 24692, April 30, 2015). Threats identified within the unit include degradation of habitat and water quality from impoundments, channelization, and point and nonpoint source water pollution, including siltation and pollution associated with agriculture, development, unpaved roads, and wastewater treatment plants. Special management considerations or protection measures to reduce or alleviate the threats may include reducing water quality degradation and habitat loss associated with agriculture, development, and wastewater treatment plants (see Special Management Considerations or Protection, above). WF 3: Fall River Unit WF 3 consists of 45.5 river mi (73.2 km) of Fall River in Greenwood VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 and Wilson Counties, Kansas, from the Greenwood County Road 33/Merchants Avenue crossing at Fall River, Greenwood County, extending downstream to the U.S. Route 400 crossing west of Neodesha, Wilson County, and includes the river channel up to the ordinary high water mark. Approximately 100 percent of the riparian lands that border the unit are in private ownership. General land use within the adjacent riparian areas of this unit includes forest, agriculture, and the city of Fall River. Unit WF 3 is occupied by the species and contains one or more of the physical or biological features essential to the species’ conservation. There is overlap of 45.5 river mi (73.2 km) of this unit with designated critical habitat for Neosho mucket (Lampsilis rafinesqueana) (see 50 CFR 17.95(f) and 80 FR 24692, April 30, 2015). Threats identified within the unit include degradation of habitat and water quality from impoundments and point and nonpoint source water pollution, including siltation and pollution associated with agriculture, development, unpaved roads, and wastewater treatment plants. Special management considerations or protection measures to reduce or alleviate the threats may include reducing water quality degradation and habitat loss associated with agriculture, development, and wastewater treatment plants (see Special Management Considerations or Protection, above). WF 4: Middle Fork Little Red River Unit WF 4 consists of 34.1 river mi (54.8 km) of Middle Fork Little Red River in Cleburne, Stone, and Van Buren Counties, Arkansas, from the mouth of Linn Creek east of Dennard, Van Buren County, extending downstream to the mouth of Wild Goose Creek north of Fairfield Bay, Cleburne and Van Buren Counties, and includes the river channel up to the ordinary high water mark. Riparian lands that border the unit include approximately 30.6 river mi (49.2 km; 90 percent) in private ownership and 3.5 river mi (5.6 km; 10 percent) in public (Federal) ownership. All of the public land ownership in this unit is Federal land associated with the USACE’s Greers Ferry Recreation Area. General land use within the adjacent riparian areas of this unit includes forest, pasture, the town of Shirley, and the city of Fairfield Bay. Unit WF 4 is occupied by the species and contains one or more of the physical or biological features essential to the species’ conservation. There is overlap of 34.1 river mi (54.9 km) of this unit with designated critical habitat for yellowcheek darter (Etheostoma moorei) PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 (see 50 CFR 17.95(e) and 77 FR 63604, October 16, 2012) and rabbitsfoot (see 50 CFR 17.95(f) and 80 FR 24692, April 30, 2015). Threats identified within the unit include degradation of habitat and water quality from impoundments and point and nonpoint source water pollution, including siltation and pollution associated with agriculture, development, unpaved roads, and wastewater treatment plants. Special management considerations or protection measures to reduce or alleviate the threats may include reducing water quality degradation and habitat loss associated with agriculture, development, and wastewater treatment plants (see Special Management Considerations or Protection, above). WF 5: St. Francis River Unit WF 5 consists of 49.3 river mi (79.3 km) of St. Francis River in Madison and Wayne Counties, Missouri, extending from the mouth of Wachita Creek west of Fredericktown, Madison County, downstream to the mouth of Big Creek northwest of Silva, Wayne County, and includes the river channel up to the ordinary high water mark. Riparian lands that border the unit include approximately 36.7 river mi (59.1 km; 74 percent) in private ownership and 12.6 river mi (20.2 km; 26 percent) in public (Federal or State) ownership. Approximately 2.4 river mi of the public ownership in this unit are State lands associated with MDC’s Coldwater Conservation Area, Mill Stream Gardens, and Roselle Access. Ten miles are Federal land associated with the USFS’s Mark Twain National Forest. General land use within the adjacent riparian areas of this unit is predominantly forest and pasture with isolated occurrences of developed areas. Unit WF 5 is occupied by the species and contains one or more of the physical or biological features essential to the species’ conservation. There is overlap of 49.3 river mi (79.3 km) of this unit with designated critical habitat for rabbitsfoot (see 50 CFR 17.95(f) and 80 FR 24692, April 30, 2015). Threats identified within the unit include degradation of habitat and water quality from impoundments and point and nonpoint source water pollution, including siltation and pollution associated with development, unpaved roads, and wastewater treatment plants. Special management considerations or protection measures to reduce or alleviate the threats may include reducing water quality degradation and habitat loss associated with agriculture, development, and wastewater treatment E:\FR\FM\03MRP3.SGM 03MRP3 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules plants (see Special Management Considerations or Protection, above). khammond on DSKJM1Z7X2PROD with PROPOSALS3 WF 6: South Fork Spring River Unit WF 6 consists of 13.4 river mi (21.6 km) of South Fork Spring River in Fulton County, Arkansas, from the mouth of Camp Creek east of Salem, Fulton County, extending downstream to the Arkansas Highway 289 crossing northwest of Cherokee Village, Fulton and Sharp Counties, and includes the river channel up to the ordinary high water mark. Approximately 100 percent of the riparian lands that border the unit are in private ownership. General land use within the adjacent riparian areas of this unit is predominantly forest, agriculture, and pasture with isolated occurrences of developed areas. Unit WF 6 is occupied by the species and contains one or more of the physical or biological features essential to the species’ conservation. There is no overlap with any designated critical habitat for other listed species. Threats identified within the unit include degradation of habitat and water quality from point and nonpoint source water pollution, including siltation and pollution associated with agriculture, development, unpaved roads, and wastewater treatment plants. Special management considerations or protection measures to reduce or alleviate the threats may include reducing water quality degradation and habitat loss associated with agriculture, development, and wastewater treatment plants (see Special Management Considerations or Protection, above). WF 7: Spring River (AR) Unit WF 7 consists of 14.2 river mi (22.9 km) of Spring River in Lawrence and Randolph Counties, Arkansas, from the mouth of Wells Creek at Ravenden, extending downstream to the mouth of Stennitt Creek southeast of Imboden, Lawrence County, and includes the river channel up to the ordinary high water mark. Approximately 100 percent of the riparian lands that border the unit are in private ownership. General land use within the adjacent riparian areas of this unit includes forest, agriculture, pasture, and the towns of Imboden and Ravenden. Unit WF 7 is occupied by the species and contains one or more of the physical or biological features essential to the species’ conservation. There is overlap of 14.2 river mi (22.9 km) of this unit with designated critical habitat for rabbitsfoot (see 50 CFR 17.95(f) and 80 FR 24692, April 30, 2015). Threats identified within the unit include degradation of habitat and water quality from point and nonpoint source water pollution, including siltation and VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 pollution associated with agriculture, development, unpaved roads, and wastewater treatment plants. Special management considerations or protection measures to reduce or alleviate the threats may include reducing water quality degradation and habitat loss associated with agriculture, development, and wastewater treatment plants (see Special Management Considerations or Protection, above). WF 8: Spring River (MO/KS) Unit WF 8 consists of 15 river mi (24.1 km) of Spring River in Jasper County, Missouri, and Cherokee County, Kansas, from the mouth of North Fork Spring River east of Asbury, Jasper County, Missouri, extending downstream through Cherokee County, Kansas, to the mouth of Center Creek west of Carl Junction, Jasper County, Missouri, and includes the river channel up to the ordinary high water mark. Riparian lands that border the unit include approximately 14.0 river mi (22.5 km; 94 percent) in private ownership and 1.0 river mi (1.6 km; 6 percent) in public (State) ownership. The public ownership of this unit is State land associated with the Kansas Department of Wildlife, Parks and Tourism’s Spring River Wildlife Area. General land use within the adjacent riparian areas of this unit is predominantly forest, agriculture, pasture, and State-managed lands with isolated occurrences of developed areas. Unit WF 8 is occupied by the species and contains one or more of the physical or biological features essential to the species’ conservation. There is overlap of 15 river mi (24.1 km) of this unit with designated critical habitat for Neosho mucket and rabbitsfoot (see 50 CFR 17.95(f) and 80 FR 24692, April 30, 2015). Threats identified within the unit include degradation of habitat and water quality from point and nonpoint source water pollution, including siltation and pollution associated with agriculture, development, unpaved roads, wastewater treatment plants, and historical heavy metal mining. Special management considerations or protection measures to reduce or alleviate the threats may include reducing water quality degradation and habitat loss associated with agriculture, development, wastewater treatment plants, and heavy metal contamination (see Special Management Considerations or Protection, above). WF 9: Verdigris River Unit WF 9 consists of 12.4 river mi (20 km) of Verdigris River in Montgomery and Wilson Counties, PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 12359 Kansas, from the mouth of Fall River south of Neodesha, Wilson County, extending downstream to the mouth of Choteau Creek northeast of Independence, Montgomery County, and includes the river channel up to the ordinary high water mark. Approximately 100 percent of the riparian lands that border the unit are in private ownership. General land use within the adjacent riparian areas of this unit is predominantly forest and agriculture with isolated occurrences of developed areas. Unit WF 9 is occupied by the species and contains one or more of the physical or biological features essential to the species’ conservation. There is overlap of 12.4 river mi (20 km) of this unit with designated critical habitat for Neosho mucket (see 50 CFR 17.95(f) and 80 FR 24692, April 30, 2015). Threats identified within the unit include degradation of habitat and water quality from point and nonpoint source water pollution, including siltation and pollution associated with agriculture, development, unpaved roads, and wastewater treatment plants. Special management considerations or protection measures to reduce or alleviate the threats may include reducing water quality degradation and habitat loss associated with agriculture, development, and wastewater treatment plants (see Special Management Considerations or Protection, above). OF 1: Little Missouri River Unit OF 1 consists of 22.9 river mi (36.9 km) of Little Missouri River in Clark, Nevada, and Ouachita Counties, Arkansas, from the mouth of Garland Creek northeast of Prescott, Nevada County, downstream to the mouth of Horse Branch north of Red Hill, Ouachita County, and includes the river channel up to the ordinary high water mark. Approximately 100 percent of the riparian lands that border the unit are in private ownership. General land use within the adjacent riparian areas of this unit includes forest and agriculture. Unit OF 1 is occupied by the species and contains one or more of the physical or biological features essential to the species’ conservation. There is no overlap with any designated critical habitat for other listed species. Threats identified within the unit include dams, impoundments, and point and nonpoint source water pollution, including siltation and pollution associated with a variety of land uses. Special management considerations or protection measures to reduce or alleviate the threats may include reducing water quality degradation and habitat loss and E:\FR\FM\03MRP3.SGM 03MRP3 12360 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules fragmentation (see Special Management Considerations or Protection, above). khammond on DSKJM1Z7X2PROD with PROPOSALS3 OF 2: Ouachita Headwaters Unit OF 2 consists of 32.7 river mi (52.6 km) of Ouachita River in Montgomery and Polk Counties, Arkansas, from the County Road 67 crossing south of Cherry Hill, Polk County, downstream to the U.S. Route 270 crossing southeast of Pencil Bluff, Montgomery County, and includes the river channel up to the ordinary high water mark. Riparian lands that border the unit include approximately 29.9 river mi (48.1 km; 91 percent) in private ownership and 2.8 river mi (4.5 km; 9 percent) in public (Federal) ownership. The public ownership in this unit is Federal land associated with USFS’s Ouachita National Forest. General land use within the adjacent riparian areas of this unit includes forest and agriculture. Unit OF 2 is occupied by the species and contains one or more of the physical or biological features essential to the species’ conservation. There is no overlap with any designated critical habitat for other listed species. Threats identified within the unit include impoundments and point and nonpoint source water pollution, including siltation and pollution associated with a variety of land uses. Special management considerations or protection measures to reduce or alleviate the threats may include reducing water quality degradation and habitat loss and fragmentation (see Special Management Considerations or Protection, above). OF 3: Ouachita River Unit OF 3 consists of 53.5 river mi (86.1 km) of Ouachita River in Clark, Dallas, and Ouachita Counties, Arkansas, from the mouth of L’Eau Frais Creek southeast of Arkadelphia, Clark County, downstream to the mouth of Ecore Fabre Bayou north of Camden, Ouachita County, and includes the river channel up to the ordinary high water mark. Approximately 100 percent of the riparian lands that border the unit are in private ownership. There is a Wetlands Reserve Program easement within the unit. General land use within the adjacent riparian areas of this unit includes forest, agriculture, and pasture. Unit OF 3 is occupied by the species and contains one or more of the physical or biological features essential to the species’ conservation. There is overlap of 22.8 river mi (36.7 km) of this unit with designated critical habitat for rabbitsfoot (see 50 CFR 17.95(f) and 80 FR 24692, April 30, 2015). Threats identified within the unit include dams, impoundments, and VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 point and nonpoint source water pollution, including siltation and pollution associated with a variety of land uses. Special management considerations or protection measures to reduce or alleviate the threats may include reducing water quality degradation and habitat loss and fragmentation (see Special Management Considerations or Protection, above). OF 4: Saline River Unit OF 4 consists of 185.3 river mi (298.2 km) of Saline River in Ashley, Bradley, Cleveland, Dallas, Drew, Grant, and Saline Counties, Arkansas, from the mouth of North Fork Saline River north of Benton, Saline County, downstream to the mouth of Mill Creek north of Stillions, Ashley County, and includes the river channel up to the ordinary high water mark. Approximately 100 percent of the riparian lands that border the unit are in private ownership and less than 1 percent is in public ownership. The public ownership in this unit is State-owned land associated with Jenkins Ferry State Park. General land use within the adjacent riparian areas of this unit includes forest, agriculture, pasture, the town of Tull, and the city of Benton. Unit OF 4 is occupied by the species and contains one or more of the physical or biological features essential to the species’ conservation. There is overlap of 185.3 river mi (298.2 km) of this unit with designated critical habitat for the rabbitsfoot (see 50 CFR 17.95(f) and 80 FR 24692, April 30, 2015). Threats identified within the unit include dams, impoundments, mining, development, and point and nonpoint source water pollution, including siltation and pollution associated with development in the headwaters and a variety of other land uses. Special management considerations or protection measures to reduce or alleviate the threats may include reducing water quality degradation and habitat loss and fragmentation (see Special Management Considerations or Protection, above). Effects of Critical Habitat Designation Section 7 Consultation Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that any action they fund, authorize, or carry out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of designated critical habitat of such species. In addition, section 7(a)(4) of the Act requires Federal agencies to confer with PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 the Service on any agency action that is likely to jeopardize the continued existence of any species proposed to be listed under the Act or result in the destruction or adverse modification of proposed critical habitat. We published a final rule revising the definition of destruction or adverse modification on August 27, 2019 (84 FR 44976). Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Examples of actions that are subject to the section 7 consultation process are actions on State, Tribal, local, or private lands that require a Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 of the Act) or that involve some other Federal action (such as funding from the Federal Highway Administration, Federal Aviation Administration, or the Federal Emergency Management Agency). Federal actions not affecting listed species or critical habitat—and actions on State, Tribal, local, or private lands that are not federally funded, authorized, or carried out by a Federal agency—do not require section 7 consultation. Compliance with the requirements of section 7(a)(2) is documented through our issuance of: (1) A concurrence letter for Federal actions that may affect, but are not likely to adversely affect, listed species or critical habitat; or (2) A biological opinion for Federal actions that may affect, and are likely to adversely affect, listed species or critical habitat. When we issue a biological opinion concluding that a project is likely to jeopardize the continued existence of a listed species and/or destroy or adversely modify critical habitat, we provide reasonable and prudent alternatives to the project, if any are identifiable, that would avoid the likelihood of jeopardy and/or destruction or adverse modification of critical habitat. We define ‘‘reasonable and prudent alternatives’’ (at 50 CFR 402.02) as alternative actions identified during consultation that: (1) Can be implemented in a manner consistent with the intended purpose of the action, E:\FR\FM\03MRP3.SGM 03MRP3 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules (2) Can be implemented consistent with the scope of the Federal agency’s legal authority and jurisdiction, (3) Are economically and technologically feasible, and (4) Would, in the Service Director’s opinion, avoid the likelihood of jeopardizing the continued existence of the listed species and/or avoid the likelihood of destroying or adversely modifying critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable. Regulations at 50 CFR 402.16 set forth requirements for Federal agencies to reinitiate formal consultation on previously reviewed actions. These requirements apply when the Federal agency has retained discretionary involvement or control over the action (or the agency’s discretionary involvement or control is authorized by law) and, subsequent to the previous consultation: (1) If the amount or extent of taking specified in the incidental take statement is exceeded; (2) if new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; (3) if the identified action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that was not considered in the biological opinion; or (4) if a new species is listed or critical habitat designated that may be affected by the identified action. In such situations, Federal agencies sometimes may need to request reinitiation of consultation with us, but the regulations also specify some exceptions to the requirement to reinitiate consultation on specific land management plans after subsequently listing a new species or designating new critical habitat. See the regulations for a description of those exceptions. khammond on DSKJM1Z7X2PROD with PROPOSALS3 Application of the ‘‘Destruction or Adverse Modification’’ Standard The key factor related to the destruction or adverse modification determination is whether implementation of the proposed Federal action directly or indirectly alters the designated critical habitat in a way that appreciably diminishes the value of the critical habitat as a whole for the conservation of the listed species. As discussed above, the role of critical habitat is to support physical or biological features essential to the conservation of a listed species and VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 provide for the conservation of the species. Section 4(b)(8) of the Act requires us to briefly evaluate and describe, in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may violate section 7(a)(2) of the Act by destroying or adversely modifying such habitat, or that may be affected by such designation. Activities that the Service may, during a consultation under section 7(a)(2) of the Act, consider likely to destroy or adversely modify critical habitat include, but are not limited to, actions that would: (1) Alter the geomorphology of the species’ stream and river habitats (for example, instream excavation or dredging, impoundment, channelization, sand and gravel mining, clearing riparian vegetation, and discharge of fill materials); (2) significantly alter the existing flow regime where these species occur (for example, impoundment, urban development, water diversion, water withdrawal, water draw-down, and hydropower generation); (3) significantly alter water chemistry or water quality (for example, hydropower discharges, or the release of chemicals, biological pollutants, or heated effluents into surface water or connected groundwater at a point source or by dispersed release (nonpoint source)); and (4) significantly alter stream bed material composition and quality by increasing sediment deposition or filamentous algal growth (for example, construction projects, gravel and sand mining, oil and gas development, coal mining, livestock grazing, irresponsible logging practices, and other watershed and floodplain disturbances that release sediments or nutrients into the water). Exemptions Application of Section 4(a)(3) of the Act Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) provides that the Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense (DoD), or designated for its use, that are subject to an integrated natural resources management plan (INRMP) prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation. No DoD lands with a completed INRMP are within the proposed critical habitat designation. PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 12361 Consideration of Impacts Under Section 4(b)(2) of the Act Section 4(b)(2) of the Act states that the Secretary shall designate and make revisions to critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from designated critical habitat based on economic impacts, impacts on national security, or any other relevant impacts. In considering whether to exclude a particular area from the designation, we identify the benefits of including the area in the designation, identify the benefits of excluding the area from the designation, and evaluate whether the benefits of exclusion outweigh the benefits of inclusion. If the analysis indicates that the benefits of exclusion outweigh the benefits of inclusion, the Secretary may exercise discretion to exclude the area only if such exclusion would not result in the extinction of the species. In making the determination to exclude a particular area, the statute on its face, as well as the legislative history, are clear that the Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. We describe below the process that we undertook for taking into consideration each category of impacts and our analyses of the relevant impacts. Consideration of Economic Impacts Section 4(b)(2) of the Act and its implementing regulations require that we consider the economic impact that may result from a designation of critical habitat. To assess the probable economic impacts of a designation, we must first evaluate specific land uses or activities and projects that may occur in the area of the critical habitat. We then must evaluate the impacts that a specific critical habitat designation may have on restricting or modifying specific land uses or activities for the benefit of the species and its habitat within the areas proposed. We then identify which conservation efforts may be the result of the species being listed under the Act versus those attributed solely to the designation of critical habitat for this particular species. The probable economic impact of a proposed critical habitat designation is analyzed by comparing scenarios both ‘‘with critical habitat’’ and ‘‘without critical habitat.’’ The ‘‘without critical habitat’’ scenario represents the baseline for the analysis, which includes the existing E:\FR\FM\03MRP3.SGM 03MRP3 khammond on DSKJM1Z7X2PROD with PROPOSALS3 12362 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat (for example, under the Federal listing as well as other Federal, State, and local regulations). Therefore, the baseline represents the costs of all efforts attributable to the listing of the species under the Act (that is, conservation of the species and its habitat incurred regardless of whether critical habitat is designated). The ‘‘with critical habitat’’ scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts would not be expected without the designation of critical habitat for the species. In other words, the incremental costs are those attributable solely to the designation of critical habitat, above and beyond the baseline costs. These are the costs we use when evaluating the benefits of inclusion and exclusion of particular areas from the final designation of critical habitat should we choose to conduct a discretionary 4(b)(2) exclusion analysis. For this particular designation, we developed an incremental effects memorandum (IEM) considering the probable incremental economic impacts that may result from this proposed designation of critical habitat. The information contained in our IEM was then used to develop a screening analysis of the probable effects of the designation of critical habitat for the western fanshell and ‘‘Ouachita’’ fanshell (Industrial Economics, Inc. 2021, entire). We began by conducting a screening analysis of the proposed designation of critical habitat in order to focus our analysis on the key factors that are likely to result in incremental economic impacts. The purpose of the screening analysis is to filter out particular geographic areas of critical habitat that are already subject to such protections and are, therefore, unlikely to incur incremental economic impacts. In particular, the screening analysis considers baseline costs (that is, absent critical habitat designation) and includes any probable incremental economic impacts where land and water use may already be subject to conservation plans, land management plans, best management practices, or regulations that protect the habitat area as a result of the Federal listing status of the species. Ultimately, the screening analysis allows us to focus our analysis on evaluating the specific areas or sectors that may incur probable incremental economic impacts as a VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 result of the designation. If the proposed critical habitat designation contains any unoccupied units, the screening analysis assesses whether those units require additional management or conservation efforts that may incur incremental economic impacts. This screening analysis combined with the information contained in our IEM constitute what we consider to be our draft economic analysis (DEA) of the proposed critical habitat designations for the western fanshell and ‘‘Ouachita’’ fanshell; our DEA is summarized in the narrative below. Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to assess the costs and benefits of available regulatory alternatives in quantitative (to the extent feasible) and qualitative terms. Consistent with the E.O. regulatory analysis requirements, our effects analysis under the Act may take into consideration impacts to both directly and indirectly affected entities, where practicable and reasonable. If sufficient data are available, we assess to the extent practicable the probable impacts to both directly and indirectly affected entities. As part of our screening analysis, we considered the types of economic activities that are likely to occur within the areas likely affected by the critical habitat designation. In our evaluation of the probable incremental economic impacts that may result from the proposed designation of critical habitat for the western fanshell and ‘‘Ouachita’’ fanshell, first we identified, in the IEM dated February 1, 2021, probable incremental economic impacts associated with the following categories of activities: Instream excavation or dredging; impoundments; channelization; sand and gravel mining; clearing riparian vegetation; discharge of fill materials; urban development; water diversion; water withdrawal; water draw-down; hydropower generation and discharges; release of chemicals, biological pollutants, or heated effluents into surface water or connected ground water at a point source or by dispersed release (nonpoint); construction projects; oil and gas development; coal mining; livestock grazing; timber harvest; and other watershed or floodplain disturbances that release sediments or nutrients into the water. We considered each industry or category individually. Additionally, we considered whether their activities have any Federal involvement. Critical habitat designation generally will not affect activities that do not have any Federal involvement; under the Act, designation PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 of critical habitat affects only activities conducted, funded, permitted, or authorized by Federal agencies. If we list these species, in areas where the western fanshell or ‘‘Ouachita’’ fanshell are present, Federal agencies would be required to consult with the Service under section 7 of the Act on activities they fund, permit, or implement that may affect the species. If, when we list these species, we also finalize this proposed critical habitat designation, consultations would include an evaluation of measures to avoid the destruction or adverse modification of critical habitat. In our IEM, we attempted to clarify the distinction between the effects that would result from the species being listed and those attributable to the critical habitat designation (that is, difference between the jeopardy and adverse modification standards) for the western fanshell’s and ‘‘Ouachita’’ fanshell’s critical habitat. Because the designation of critical habitat for western fanshell and ‘‘Ouachita’’ fanshell is proposed concurrently with the listing, it has been our experience that it is more difficult to discern which conservation efforts are attributable to the species being listed and those which would result solely from the designation of critical habitat. However, the following specific circumstances in this case help to inform our evaluation: (1) The essential physical or biological features identified for critical habitat are the same features essential for the life requisites of the species, and (2) any actions that would result in sufficient harm or harassment to constitute jeopardy to the western fanshell or ‘‘Ouachita’’ fanshell would also likely adversely affect the essential physical or biological features of critical habitat. The IEM outlines our rationale concerning this limited distinction between baseline conservation efforts and incremental impacts of the designation of critical habitat for this species. This evaluation of the incremental effects has been used as the basis to evaluate the probable incremental economic impacts of this proposed designation of critical habitat. The proposed critical habitat designation for the western fanshell includes nine units, all of which are occupied by the species. Ownership of riparian lands adjacent to the proposed units includes 318.2 river mi (512.1 km; 88 percent) in private ownership and 41.7 river mi (67.1 km; 12 percent) in public (Federal or State) ownership. The proposed critical habitat designation for the ‘‘Ouachita’’ fanshell includes four units, all of which are occupied by the species. Ownership of riparian lands E:\FR\FM\03MRP3.SGM 03MRP3 khammond on DSKJM1Z7X2PROD with PROPOSALS3 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules adjacent to the proposed units includes 291.1 river mi (468.5 km; 99 percent) in private ownership and 3.3 river mi (5.3 km; 1 percent) in public (Federal or State) ownership. Total incremental costs of critical habitat designation for the western fanshell and ‘‘Ouachita’’ fanshell are not expected to exceed $79,000 (2021 dollars) per year. The costs are reflective of: (1) All proposed units are considered occupied, (2) project modifications requested to avoid adverse modification are likely to be the same as those recommended to avoid jeopardy in occupied habitat for these species, and (3) the proposed designations receive baseline protection from the presence of critical habitat for co-occurring listed mussel species with similar habitat needs in 60 percent of the proposed western fanshell critical habitat and in 71 percent of the proposed ‘‘Ouachita’’ fanshell critical habitat. Because consultation would be required as a result of the listing of the western fanshell and ‘‘Ouachita’’ fanshell and is already required in some of these areas as a result of the presence of other listed species and critical habitats, the economic costs of the critical habitat designation would likely be primarily limited to additional administrative efforts to consider adverse modification for these two species in section 7 consultations. Based on the consultation history regarding historical projects and activities overlapping the proposed critical habitat area for the western fanshell, the number of future consultations, including technical assistance efforts, is likely to be no more than 23 per year across all nine units. Based on the consultation history regarding historical projects and activities overlapping the proposed critical habitat area for the ‘‘Ouachita’’ fanshell, the number of future consultations, including technical assistance efforts, is likely to be no more than 15 per year across all four units. Overall, transportation and utilities activities are expected to result in the largest portion of consultations for both the western and ‘‘Ouachita’’ fanshells and, therefore, incur the highest costs. The geographic distribution of future section 7 consultations and associated costs are likely to be most heavily concentrated in western fanshell proposed Unit 2 and ‘‘Ouachita’’ fanshell proposed Unit 4. However, even assuming consultation activity increases substantially, incremental administrative costs are still likely to remain well under $100 million per year. VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 We are soliciting data and comments from the public on the DEA discussed above, as well as on all aspects of this proposed rule and our required determinations. During the development of a final designation, we will consider the information presented in the DEA and any additional information on economic impacts we receive during the public comment period to determine whether any specific areas should be excluded from the final critical habitat designation under authority of section 4(b)(2) and our implementing regulations at 50 CFR 17.90. If we receive credible information regarding the existence of a meaningful economic or other relevant impact supporting a benefit of exclusion, we will conduct an exclusion analysis for the relevant area or areas. We may also exercise the discretion to evaluate any other particular areas for possible exclusion. Furthermore, when we conduct an exclusion analysis based on impacts identified by experts in, or sources with firsthand knowledge about, impacts that are outside the scope of the Service’s expertise, we will give weight to those impacts consistent with the expert or firsthand information unless we have rebutting information. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of either species. Consideration of National Security Impacts Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or areas that pose potential national-security concerns (for example, a DoD installation that is in the process of revising its INRMP for a newly listed species or a species previously not covered). If a particular area is not covered under section 4(a)(3)(B)(i), then national-security or homeland-security concerns are not a factor in the process of determining what areas meet the definition of ‘‘critical habitat.’’ However, the Service must still consider impacts on national security, including homeland security, on those lands or areas not covered by section 4(a)(3)(B)(i), because section 4(b)(2) requires the Service to consider those impacts whenever it designates critical habitat. Accordingly, if DoD, Department of Homeland Security (DHS), or another Federal agency has requested exclusion based on an assertion of national-security or homeland-security concerns, or we have otherwise identified national-security or homeland-security impacts from PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 12363 designating particular areas as critical habitat, we generally have reason to consider excluding those areas. However, we cannot automatically exclude requested areas. When DoD, DHS, or another Federal agency requests exclusion from critical habitat on the basis of national-security or homelandsecurity impacts, we must conduct an exclusion analysis if the Federal requester provides credible information, including a reasonably specific justification of an incremental impact on national security that would result from the designation of that specific area as critical habitat. That justification could include demonstration of probable impacts, such as impacts to ongoing border-security patrols and surveillance activities, or a delay in training or facility construction, as a result of compliance with section 7(a)(2) of the Act. If the agency requesting the exclusion does not provide us with a reasonably specific justification, we will contact the agency to recommend that it provide a specific justification or clarification of its concerns relative to the probable incremental impact that could result from the designation. If we conduct an exclusion analysis because the agency provides a reasonably specific justification or because we decide to exercise the discretion to conduct an exclusion analysis, we will defer to the expert judgment of DoD, DHS, or another Federal agency as to: (1) Whether activities on its lands or waters, or its activities on other lands or waters, have national-security or homeland-security implications; (2) the importance of those implications; and (3) the degree to which the cited implications would be adversely affected in the absence of an exclusion. In that circumstance, in conducting a discretionary section 4(b)(2) exclusion analysis, we will give great weight to national-security and homeland-security concerns in analyzing the benefits of exclusion. Under section 4(b)(2) of the Act, we also consider whether a nationalsecurity or homeland-security impact might exist on lands not owned or managed by DoD or DHS. In preparing this proposal, we have determined that the lands within the proposed designation of critical habitat for western fanshell and ‘‘Ouachita’’ fanshell are not owned or managed by the DoD or DHS. Therefore, we anticipate no impact on national security. However, if through the public comment period we receive credible information regarding impacts on national security or homeland security from designating particular areas as critical habitat, then as part of E:\FR\FM\03MRP3.SGM 03MRP3 12364 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules developing the final designation of critical habitat, we will conduct a discretionary exclusion analysis to determine whether to exclude those areas under authority of section 4(b)(2) and our implementing regulations at 50 CFR 17.90. khammond on DSKJM1Z7X2PROD with PROPOSALS3 Consideration of Other Relevant Impacts Under section 4(b)(2) of the Act, we consider any other relevant impacts, in addition to economic impacts and impacts on national security discussed above. Other relevant impacts may include, but are not limited to, impacts to Tribes, States, local governments, public health and safety, community interests, the environment (such as increased risk of wildfire or pest and invasive species management), Federal lands, and conservation plans, agreements, or partnerships. To identify other relevant impacts that may affect the exclusion analysis, we consider a number of factors, including whether there are permitted conservation plans covering the species in the area—such as HCPs, safe harbor agreements (SHAs), or candidate conservation agreements with assurances (CCAAs)—or whether there are non-permitted conservation agreements and partnerships that may be impaired by designation of, or exclusion from, critical habitat. In addition, we look at whether Tribal conservation plans or partnerships, Tribal resources, or government-togovernment relationships of the United States with Tribal entities may be affected by the designation. We also consider any State, local, public-health, community-interest, environmental, or social impacts that might occur because of the designation. We have not identified any areas to consider for exclusion from critical habitat based on other relevant impacts. However, during the development of a final designation, we will consider all information currently available or received during the public comment period. If we receive credible information regarding the existence of a meaningful impact supporting a benefit of excluding any areas, we will undertake an exclusion analysis and determine whether those areas should be excluded from the final critical habitat designation under the authority of section 4(b)(2) and our implementing regulations at 50 CFR 17.90. We may also exercise the discretion to undertake exclusion analyses for other areas as well, and we will describe all of our exclusion analyses as part of a final critical habitat determination. VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 Summary of Exclusions Considered Under 4(b)(2) of the Act At this time, we are not considering any exclusions from the proposed designation based on economic impacts, national security impacts, or other relevant impacts—such as partnerships, management, or protection afforded by cooperative management efforts—under section 4(b)(2) of the Act. In preparing this proposal, we have determined that no HCPs or other management plans for western fanshell or ‘‘Ouachita’’ fanshell currently exist, and the proposed designation does not include any Tribal lands or trust resources. Therefore, we anticipate no impact on Tribal lands, partnerships, or HCPs from this proposed critical habitat designation and thus, as described above, we are not considering excluding any particular areas on the basis of the presence of conservation agreements or impacts to trust resources. During the development of a final designation, we will consider any additional information received through the public comment period regarding other relevant impacts to determine whether any specific areas should be excluded from the final critical habitat designation under authority of section 4(b)(2) and our implementing regulations at 50 CFR 17.90. Required Determinations Clarity of the Rule We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must: (1) Be logically organized; (2) Use the active voice to address readers directly; (3) Use clear language rather than jargon; (4) Be divided into short sections and sentences; and (5) Use lists and tables wherever possible. If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc. Regulatory Planning and Review (Executive Orders 12866 and 13563) Executive Order 12866 provides that the Office of Information and Regulatory PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is not significant. Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation’s regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this proposed rule in a manner consistent with these requirements. Regulatory Flexibility Act (5 U.S.C. 601 et seq.) Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (that is, small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less E:\FR\FM\03MRP3.SGM 03MRP3 khammond on DSKJM1Z7X2PROD with PROPOSALS3 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine whether potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term ‘‘significant economic impact’’ is meant to apply to a typical small business firm’s business operations. Under the RFA, as amended, and as understood in light of recent court decisions, Federal agencies are required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself; in other words, the RFA does not require agencies to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried out by the agency is not likely to destroy or adversely modify critical habitat. Therefore, under section 7, only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Consequently, it is our position that only Federal action agencies would be directly regulated if we adopt the proposed critical habitat designations. The RFA does not require evaluation of the potential impacts to entities not directly regulated. Moreover, Federal agencies are not small entities. Therefore, because no small entities would be directly regulated by this rulemaking, the Service certifies that, if made final as proposed, the proposed critical habitat designations will not have a significant economic impact on a substantial number of small entities. In summary, we have considered whether the proposed designations would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if made final, the proposed critical habitat designations would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required. VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 Energy Supply, Distribution, or Use— Executive Order 13211 Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. Facilities that provide energy supply, distribution, or use occur within some units of the proposed critical habitat designations (for example, dams, pipelines) and may potentially be affected. We determined that consultations, technical assistance, and requests for species lists may be necessary in some instances. In our economic analysis, we did not find that this proposed critical habitat designation would significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required. Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.) In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), we make the following finding: (1) This proposed rule would not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or Tribal governments, or the private sector, and includes both ‘‘Federal intergovernmental mandates’’ and ‘‘Federal private sector mandates.’’ These terms are defined in 2 U.S.C. 658(5)–(7). ‘‘Federal intergovernmental mandate’’ includes a regulation that ‘‘would impose an enforceable duty upon State, local, or Tribal governments’’ with two exceptions. It excludes ‘‘a condition of Federal assistance.’’ It also excludes ‘‘a duty arising from participation in a voluntary Federal program,’’ unless the regulation ‘‘relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and Tribal governments under entitlement authority,’’ if the provision would ‘‘increase the stringency of conditions of assistance’’ or ‘‘place caps upon, or otherwise decrease, the Federal Government’s responsibility to provide funding,’’ and the State, local, or Tribal governments ‘‘lack authority’’ to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 12365 Living; Family Support Welfare Services; and Child Support Enforcement. ‘‘Federal private sector mandate’’ includes a regulation that ‘‘would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.’’ The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. While nonFederal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above onto State governments. (2) We do not believe that this rule would significantly or uniquely affect small governments because it will not produce a Federal mandate of $100 million or greater in any year, that is, it is not a ‘‘significant regulatory action’’ under the Unfunded Mandates Reform Act. The designation of critical habitat imposes no obligations on State or local governments and, as such, a Small Government Agency Plan is not required. Takings—Executive Order 12630 In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for western fanshell and ‘‘Ouachita’’ fanshell in a takings implications assessment. The Act does not authorize the Service to regulate private actions on private lands or confiscate private property as a result of critical habitat designation. Designation of critical habitat does not affect land ownership, or establish any closures, or restrictions on use of or access to the designated areas. Furthermore, the designation of critical habitat does not affect landowner actions that do not require Federal E:\FR\FM\03MRP3.SGM 03MRP3 12366 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS3 funding or permits, nor does it preclude development of habitat conservation programs or issuance of incidental take permits to permit actions that do require Federal funding or permits to go forward. However, Federal agencies are prohibited from carrying out, funding, or authorizing actions that would destroy or adversely modify critical habitat. A takings implications assessment has been completed for the proposed designation of critical habitat for western fanshell and ‘‘Ouachita’’ fanshell, and it concludes that, if adopted, these designations of critical habitat would not pose significant takings implications for lands within or affected by the designations. Federalism—Executive Order 13132 In accordance with E.O. 13132 (Federalism), this proposed rule does not have significant Federalism effects. A federalism summary impact statement is not required. In keeping with Department of the Interior and Department of Commerce policy, we requested information from, and coordinated development of these proposed critical habitat designations with, appropriate State resource agencies. From a federalism perspective, the designation of critical habitat directly affects only the responsibilities of Federal agencies. The Act imposes no other duties with respect to critical habitat, either for States and local governments, or for anyone else. As a result, the proposed rule does not have substantial direct effects either on the States, or on the relationship between the national government and the States, or on the distribution of powers and responsibilities among the various levels of government. The proposed designations may have some benefit to these governments because the areas that contain the features essential to the conservation of the species are more clearly defined, and the physical or biological features of the habitat necessary for the conservation of the species are specifically identified. This information does not alter where and what federally sponsored activities may occur. However, it may assist State and local governments in long-range planning because they no longer have to wait for case-by-case section 7 consultations to occur. Where State and local governments require approval or authorization from a Federal agency for actions that may affect critical habitat, consultation under section 7(a)(2) of the Act would be required. While non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 agency for an action, may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Civil Justice Reform—Executive Order 12988 In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule would not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order. We have proposed designating critical habitat in accordance with the provisions of the Act. To assist the public in understanding the habitat needs of the species, this proposed rule identifies the physical or biological features essential to the conservation of the species. The proposed areas of designated critical habitat are presented on maps, and the proposed rule provides several options for the interested public to obtain more detailed location information, if desired. Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) This rule does not contain information collection requirements, and a submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not required. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number. National Environmental Policy Act (42 U.S.C. 4321 et seq.) It is our position that, outside the jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses pursuant to the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with regulations adopted pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). This position was upheld by the U.S. Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). However, when the range of the species includes States within the Tenth Circuit, such as that of the western fanshell, under the Tenth Circuit ruling in Catron County Board of Commissioners v. U.S. Fish and Wildlife Service, 75 F.3d 1429 (10th Cir. 1996), we undertake a NEPA analysis for PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 critical habitat designation. We invite the public to comment on the extent to which this proposed regulation may have a significant impact on the human environment, or fall within one of the categorical exclusions for actions that have no individual or cumulative effect on the quality of the human environment. We will complete our analysis, in compliance with NEPA, before finalizing this proposed rule. Government-to-Government Relationship With Tribes In accordance with the President’s memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), and the Department of the Interior’s manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that Tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. We have determined that no Tribal lands fall within the boundaries of the proposed critical habitat for the western fanshell and ‘‘Ouachita’’ fanshell, so no Tribal lands would be affected by the proposed designation. References Cited A complete list of references cited in this rulemaking is available on the internet at http://www.regulations.gov and upon request from the Missouri Ecological Services Field Office for western fanshell and the Arkansas Ecological Services Field Office for ‘‘Ouachita’’ fanshell (see FOR FURTHER INFORMATION CONTACT). Authors The primary authors of this proposed rule are the staff members of the Fish and Wildlife Service’s Species Assessment Team and the Missouri and Arkansas Ecological Services Field Offices. List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and E:\FR\FM\03MRP3.SGM 03MRP3 12367 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules recordkeeping requirements, Transportation. PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS Proposed Regulation Promulgation ■ Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: Authority: 16 U.S.C. 1361–1407; 1531– 1544; and 4201–4245, unless otherwise noted. Common name * CLAMS Where listed * Status * * Wherever found .............. T Fanshell, western ............ Cyprogenia aberti ........... Wherever found .............. T ■ * 3. Add § 17.45 to read as follows: § 17.45 Special rules—snails and clams. (a)–(d) [Reserved] (e) ‘‘Ouachita’’ fanshell (Cyprogenia cf. aberti) and western fanshell (Cyprogenia aberti). (1) Prohibitions. The following prohibitions that apply to endangered wildlife also apply to the ‘‘Ouachita’’ fanshell and western fanshell. Except as provided under paragraph (e)(2) of this section and §§ 17.4 and 17.5, it is unlawful for any person subject to the jurisdiction of the United States to commit, to attempt to commit, to solicit another to commit, or cause to be committed, any of the following acts in regard to this species: (i) Import or export, as set forth at § 17.21(b) for endangered wildlife. (ii) Take, as set forth at § 17.21(c)(1) for endangered wildlife. (iii) Possession and other acts with unlawfully taken specimens, as set forth at § 17.21(d)(1) for endangered wildlife. (iv) Interstate or foreign commerce in the course of commercial activity, as set forth at § 17.21(e) for endangered wildlife. (v) Sale or offer for sale, as set forth at § 17.21(f) for endangered wildlife. (2) Exceptions from prohibitions. In regard to this species, you may: (i) Conduct activities as authorized by a permit under § 17.32. (ii) Take, as set forth at § 17.21(c)(2) through (c)(4) for endangered wildlife. (iii) Take, as set forth at § 17.31(b). (iv) Take incidental to an otherwise lawful activity caused by: VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 * Frm 00031 Fmt 4701 * * [Federal Register final rule]; 50 17.95(f).CH [Federal Register final rule]; 50 17.95(f).CH * Sfmt 4702 * * Listing citations and applicable rules (A) Channel and bank restoration projects for creation of natural, physically stable, ecologically functioning streams, taking into consideration connectivity with floodplain and groundwater aquifers. These projects can be accomplished using a variety of methods, but the desired outcome is a natural channel with low shear stress (force of water moving against the channel); bank heights that enable reconnection to the floodplain; connection of surface and groundwater systems, resulting in perennial flows in the channel; riffles and pools comprised of existing soil, rock, and wood instead of large imported materials; low compaction of soils within adjacent riparian areas; and inclusion of riparian wetlands. For bank stabilization projects that use bioengineering methods to replace preexisting, bare, eroding stream banks with vegetated, stable stream banks, thereby reducing bank erosion and instream sedimentation and improving habitat conditions for the species, stream banks may be stabilized using native species live stakes (live, vegetative cuttings inserted or tamped into the ground in a manner that allows the stake to take root and grow), native species live fascines (live branch cuttings, usually willows, bound together into long, cigar-shaped bundles), or native species brush layering (cuttings or branches of easily rooted tree species layered between successive lifts of soil fill). Bank restoration projects require planting appropriate native vegetation, including PO 00000 * * (h) * * * * * * Cyprogenia cf. aberti ...... * * 2. Amend § 17.11(h) by adding entries for ‘‘Fanshell, ‘Ouachita’’’ and Scientific name * § 17.11 Endangered and threatened wildlife. ■ * Fanshell, ‘‘Ouachita’’ ....... * khammond on DSKJM1Z7X2PROD with PROPOSALS3 1. The authority citation for part 17 continues to read as follows: ‘‘Fanshell, western’’ to the List of Endangered and Threatened Wildlife in alphabetical order under CLAMS to read as follows: * * * citation when published as a CFR 17.45(e); 4d 50 CFR citation when published as a CFR 17.45(e); 4d 50 CFR * * woody species appropriate for the region and habitat. These projects will not include the sole use of quarried rock (rip-rap) or the use of rock baskets or gabion structures. To qualify under this exception, restoration projects must include the following: (1) Surveys to determine presence of ‘‘Ouachita’’ fanshell and western fanshell prior to the commencement of restoration actions; (2) If either mussel is present, coordination with the Service’s local Ecological Services field office for relocation of ‘‘Ouachita’’ fanshell and western fanshell mussels to suitable habitat outside of the project footprint prior to project implementation; and (3) If relocation of mussels occurs, monitoring of relocated mussels postimplementation of restoration activities. (B) Silviculture practices and forest management activities that use Stateapproved best management practices to protect water and sediment quality and stream and riparian habitat. (C) Transportation projects that avoid or do not include instream disturbance in waters occupied by the species. (v) Possess and engage in other acts with unlawfully taken wildlife, as set forth at § 17.21(d)(2) for endangered wildlife. ■ 4. Amend § 17.95(f) by adding entries for ‘‘ ‘Ouachita’ Fanshell (Cyprogenia cf. aberti)’’ and ‘‘Western Fanshell (Cyprogenia aberti)’’ immediately following the entry for ‘‘Appalachian Elktoe (Alasmidonta raveneliana)’’, to read as follows: E:\FR\FM\03MRP3.SGM 03MRP3 12368 § 17.95 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules Critical habitat—fish and wildlife. * * * * * (f) Clams and Snails. * * * * * ‘‘Ouachita’’ Fanshell (Cyprogenia cf. aberti) khammond on DSKJM1Z7X2PROD with PROPOSALS3 (1) Critical habitat units are depicted for Ashley, Bradley, Clark, Cleveland, Dallas, Drew, Grant, Montgomery, Nevada, Ouachita, Polk, and Saline Counties, Arkansas, on the maps in this entry. (2) Within these areas, the physical or biological features essential to the conservation of ‘‘Ouachita’’ fanshell consist of the following components: (i) 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 is found and to maintain stream connectivity, specifically providing for the exchange of nutrients and sediment for maintenance of the mussel’s 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. (ii) Suitable substrates and connected instream habitats, characterized by geomorphically stable stream channels and banks (that is, channels that VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 maintain lateral dimensions, longitudinal profiles, and sinuosity patterns over time without an aggrading or degrading bed elevation) with habitats that support a diversity of freshwater mussel and native fish (such as stable riffle-run-pool habitats that provide flow refuges consisting of siltfree gravel and coarse sand substrates). (iii) 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 (°F) (27 degrees Celsius (°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. (iv) The presence and abundance of fish hosts necessary for recruitment of the ‘‘Ouachita’’ fanshell, including logperch (Percina caprodes), slenderhead darter (Percina phoxocephala), or orangebelly darter (Etheostoma radiosum). (3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on the effective date of the rule. (4) Data layers defining map units were created by overlaying Natural Heritage Element Occurrence data and PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 U.S. Geological Survey hydrologic data for stream reaches using ESRI ArcGIS mapping software. Critical habitat unit upstream and downstream limits were delineated at the nearest road crossing or stream confluence of each occupied reach. Data layers defining map units were created with U.S. Geological Survey National Hydrography Dataset (NHD) Medium Flowline data. ArcGIS was also used to calculate river kilometers and river miles from the NHD dataset, and it was used to determine longitude and latitude coordinates in decimal degrees. The projection used in mapping and calculating distances and locations within the units was EPSG:4269– NAD83 Geographic. Natural Heritage program and State mussel database species presence data from Arkansas were used to select specific river and stream segments for inclusion in the critical habitat layer. The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at the Service’s internet site at https://www.fws.gov/southeast/, at http://www.regulations.gov at Docket No. FWS–R3–ES–2021–0061, and at the field office responsible for this designation. You may obtain field office location information by contacting one of the Service regional offices, the addresses of which are listed at 50 CFR 2.2. (5) Note: Index map follows: BILLING CODE 4333–15–P E:\FR\FM\03MRP3.SGM 03MRP3 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 12369 Index Map: "Ouachita" Fanshell Critical Habitat Units ARKANSAS LOUISIANA Critical Habitat - State Boundaries o 9 N , 18 Miles ,. . .,-':;:=,'::.-:;::.-:::.:-, . . . . · ........ ·. . . . khammond on DSKJM1Z7X2PROD with PROPOSALS3 o (6) Unit OF 1: Little Missouri River; Clark, Nevada, and Ouachita Counties, Arkansas. (i) Unit OF 1 consists of 22.9 river miles (mi) (36.9 kilometers (km)) of Little Missouri River in Clark, Nevada, VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 18.5 37 Kilometers A and Ouachita Counties, Arkansas, from the mouth of Garland Creek northeast of Prescott, Nevada County, downstream to the mouth of Horse Branch north of Red Hill, Ouachita County, and includes the river channel up to the ordinary high PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 water mark. Approximately 100 percent of the riparian lands that border the unit are in private ownership. (ii) Map of Unit OF 1 follows: E:\FR\FM\03MRP3.SGM 03MRP3 EP03MR22.003</GPH> - 12370 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules Critical Habitat for "Ouachita" Fanshell OF1 Little Missouri River; Clark, Nevada, and Ouachita Counties, Arkansas Clark County Garland Cr • Red Hill Nevada County Ouachita County Critical Habitat Major Road County Boundary -.,,,. State Boundary River Waterbody (7) Unit OF 2: Ouachita Headwaters; Montgomery and Polk Counties, Arkansas. (i) Unit OF 2 consists of 32.7 river mi (52.6 km) of Ouachita River in Montgomery and Polk Counties, Arkansas, from the County Road 67 crossing south of Cherry Hill, Polk VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 N A 1 inch = 5 Kilometers 1 inch = 3 miles County, downstream to the U.S. Route 270 crossing southeast of Pencil Bluff, Montgomery County, and includes the river channel up to the ordinary high water mark. Riparian lands that border the unit include approximately 29.9 river mi (48.1 km; 91 percent) in private ownership and 2.8 river mi (4.5 km; 9 PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 percent) in public (Federal) ownership. The public ownership in this unit is Federal land associated with the U.S. Forest Service’s Ouachita National Forest. (ii) Map of Unit OF 2 follows: E:\FR\FM\03MRP3.SGM 03MRP3 EP03MR22.004</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS3 - Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 12371 Critical Habitat for "Ouachita" Fanshell OF2 Ouachita Headwaters; Montgomery and Polk Counties, Arkansas Scott County f I • • • • • • • • Montgomery County Polk County - Critical Habitat MajorRoad ----- County Boundary State Boundary - - River Waterbody N (8) Unit OF 3: Ouachita River; Clark, Dallas, and Ouachita Counties, Arkansas. (i) Unit OF 3 consists of 53.5 river mi (86.1 km) of Ouachita River in Clark, Dallas, and Ouachita Counties, VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 A 1 inch = 6 Kilometers 1 inch = 4 miles Arkansas, from the mouth of L’Eau Frais Creek southeast of Arkadelphia, Clark County, downstream to the mouth of Ecore Fabre Bayou north of Camden, Ouachita County, and includes the river channel up to the ordinary high water PO 00000 Frm 00035 Fmt 4701 Sfmt 4702 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. (ii) Map of Unit OF 3 follows: E:\FR\FM\03MRP3.SGM 03MRP3 EP03MR22.005</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS3 = 12372 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules Critical Habitat for "Ouachita" Fanshell OF3 Ouachita River; Clark, Danas, and Ouachita Counties, Arkansas Dallas county Clark County Ouachita County Nevada County , Critical Habitat Major Road County Boundary State' Boundary River Waterbody (9) Unit OF 4: Saline River; Ashley, Bradley, Cleveland, Dallas, Drew, Grant, and Saline Counties, Arkansas. (i) Unit OF 4 consists of 185.3 river mi (298.2 km) of Saline River in Ashley, Bradley, Cleveland, Dallas, Drew, Grant, and Saline Counties, Arkansas, from the VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 N A 1 inch = 11 Kilometers 1 inch = 7 miles mouth of North Fork Saline River north of Benton, Saline County, downstream to the mouth of Mill Creek north of Stillions, Ashley County, and includes the river channel up to the ordinary high water mark. Approximately 100 percent of the riparian lands that border PO 00000 Frm 00036 Fmt 4701 Sfmt 4702 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. (ii) Map of Unit OF 4 follows: E:\FR\FM\03MRP3.SGM 03MRP3 EP03MR22.006</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS3 -~----- Calhoun County 12373 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules Critical Habitat for "Ouachita" Fanshell OF4 Saline River; Ashley, Bradley, Cleveland, Dallas, Drew, Grant, and Saline Counties, Arkansas Dallas County ..,.,.··~;,;··;.,_·;..;· . :,:..;.;•:..··..:··..;·'...;·;,;;·;,,;,.;;."' . .;,;;,.·, ~ Drew county Bradley County Critical Habitat Major Road County Boundary State Boundary River Waterbody Western Fanshell (Cyprogenia aberti) (1) Critical habitat units are depicted for Cleburne, Fulton, Independence, Jackson, Lawrence, Randolph, Sharp, Stone, and Van Buren Counties, Arkansas; Cherokee, Greenwood, Montgomery, and Wilson Counties, Kansas; and Butler, Jasper, Madison, VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 N A 1 inch = 34 Kilometers 1 inch = 21 miles and Wayne Counties, Missouri, on the maps in this entry. (2) Within these areas, the physical or biological features essential to the conservation of western fanshell consist of the following components: (i) Adequate flows, or a hydrologic flow regime (magnitude, timing, frequency, duration, rate of change, and overall seasonality of discharge over PO 00000 Frm 00037 Fmt 4701 Sfmt 4702 time), necessary to maintain benthic habitats where the species is found and to maintain stream connectivity, specifically providing for the exchange of nutrients and sediment for maintenance of the mussel’s and fish hosts’ habitat and food availability, maintenance of spawning habitat for native host fishes, and the ability for newly transformed juveniles to settle E:\FR\FM\03MRP3.SGM 03MRP3 EP03MR22.007</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS3 --~---- 12374 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules khammond on DSKJM1Z7X2PROD with PROPOSALS3 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. (ii) Suitable substrates and connected instream habitats, characterized by geomorphically stable stream channels and banks (that is, channels that maintain lateral dimensions, longitudinal profiles, and sinuosity patterns over time without an aggrading or degrading bed elevation) with habitats that support a diversity of freshwater mussel and native fish (such as stable riffle-run-pool habitats that provide flow refuges consisting of siltfree gravel and coarse sand substrates). (iii) 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 (°F) (27 degrees Celsius (°C)). Additionally, water and sediment should be low in ammonia (generally below 1.0 ppm total ammonia-nitrogen) and heavy metals, and lack excessive VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 total suspended solids and other pollutants. (iv) The presence and abundance of fish hosts necessary for recruitment of the western fanshell, including logperch (Percina caprodes), rainbow darter (Etheostoma caeruleum), slenderhead darter (Percina phoxocephala), fantail darter (Etheostoma flabellare), or orangebelly darter (Etheostoma radiosum). (3) Critical habitat does not include manmade structures (such as buildings, aqueducts, runways, roads, and other paved areas) and the land on which they are located existing within the legal boundaries on the effective date of the rule. (4) Data layers defining map units were created by overlaying Natural Heritage Element Occurrence data and U.S. Geological Survey hydrologic data for stream reaches using ESRI ArcGIS mapping software. Critical habitat unit upstream and downstream limits were delineated at the nearest road crossing or stream confluence of each occupied reach. Data layers defining map units were created with U.S. Geological Survey National Hydrography Dataset (NHD) Medium Flowline data. ArcGIS was also used to calculate river PO 00000 Frm 00038 Fmt 4701 Sfmt 4702 kilometers and river miles from the NHD dataset, and it was used to determine longitude and latitude coordinates in decimal degrees. The projection used in mapping and calculating distances and locations within the units was EPSG:4269– NAD83 Geographic. Natural Heritage program and State mussel database species presence data from Arkansas, Kansas, and Missouri were used to select specific river and stream segments for inclusion in the critical habitat layer. The maps in this entry, as modified by any accompanying regulatory text, establish the boundaries of the critical habitat designation. The coordinates or plot points or both on which each map is based are available to the public at the Service’s internet site at https://www.fws.gov/midwest/, at http://www.regulations.gov at Docket No. FWS–R3–ES–2021–0061, and at the field office responsible for this designation. You may obtain field office location information by contacting one of the Service regional offices, the addresses of which are listed at 50 CFR 2.2. (5) Note: Index map follows: E:\FR\FM\03MRP3.SGM 03MRP3 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 12375 Index Map: Western Fanshell Critical Habitat Units AN AS - - - Critical Habitat State Boundaries o 26.5 53 Miles N . I .........,,_,,..I.,.., ' I-,I ,-I khammond on DSKJM1Z7X2PROD with PROPOSALS3 o (6) Unit WF 1: Upper Black River; Butler and Wayne Counties, Missouri. (i) Unit WF 1 consists of 64.7 river miles (mi) (104.1 kilometers (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 VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 so A . oo Kilometers 1 Poplar Bluff, Butler County, and includes the river channel up to the ordinary high water mark. Riparian lands that border the unit include approximately 51 river mi (82.1 km; 79 percent) in private ownership and 13.7 river mi (22 km; 21 percent) in public (Federal or State) ownership. Approximately 2.7 miles of the public PO 00000 Frm 00039 Fmt 4701 Sfmt 4702 • 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. E:\FR\FM\03MRP3.SGM 03MRP3 EP03MR22.008</GPH> - 12376 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules Army Corps of Engineers (USACE) Clearwater Recreation Area. (ii) Map of Unit WF 1 follows: Critical Habitat for Western Fanshell WF1 Upper Black River; Butler and Wayne Counties, Missouri Carter County Ripley County Critical Habitat ==-=- Major Road ----- County Boundary State Boundary - - River Waterbody (7) Unit WF 2: Lower Black/ Strawberry River; Independence, Jackson, Lawrence, and Sharp Counties, Arkansas. (i) Unit WF 2 consists of 111.3 river mi (179.1 km) of Black River and VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 N A 1 inch = 12 Kilometers 1 inch = 8 miles Strawberry River in Independence, Jackson, Lawrence, and Sharp Counties in Arkansas, and includes the river channel up to the ordinary high water mark. Black River makes up 54.6 river mi (87.9 km) from the mouth of Spring PO 00000 Frm 00040 Fmt 4701 Sfmt 4702 River northeast of Black Rock, extending downstream to the mouth of Strawberry River northeast of Dowdy, Independence County. Strawberry River makes up 56.7 river mi (91.2 km) from the mouth of Lave Creek north of E:\FR\FM\03MRP3.SGM 03MRP3 EP03MR22.009</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS3 - Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules Evening Shade, Sharp County, extending downstream to the confluence with Black River northeast of Dowdy, Independence County. 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 12377 Brake Wildlife Management Area on Black River. The Nature Conservancy’s Strawberry River Preserve and Ranch on Strawberry River is also in this unit. (ii) Map of Unit WF 2 follows: Critical Habitat for Western Fanshell WF2 Lower Black/Strawberry River; Independence, Jackson, Lawrence, and Sharp Counties, Arkansas Fulton County.••• Randolph County 412c:@ s~~ J ~y l( ~ ~~ tP"" l r:.r Lawrence County -",;:::;=~ti. • Dowdy Independence County Critical Habitat = Major Road -···- County Boundary State Boundary - - River Waterbody (8) Unit WF 3: Fall River; Greenwood and Wilson Counties, Kansas. VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 N A 1 inch = 13 Kilometers 1 inch = 8 miles (i) Unit WF 3 consists of 45.5 river mi (73.2 km) of Fall River in Greenwood PO 00000 Frm 00041 Fmt 4701 Sfmt 4702 and Wilson Counties, Kansas, from the Greenwood County Road 33/Merchants E:\FR\FM\03MRP3.SGM 03MRP3 EP03MR22.010</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS3 - 12378 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules Avenue crossing at Fall River, Greenwood County, extending downstream to the U.S. Route 400 crossing west of Neodesha, Wilson County, and includes the river channel up to the ordinary high water mark. Approximately 100 percent of the riparian lands that border the unit are in private ownership. (ii) Map of Unit WF 3 follows: Critical Habitat for Western Fanshell WF3 Fall River; Greenwood and Wilson Counties, Kansas Greenwood County \ "' Elk County ~~~' ~F==i'. @=:.:-=~~ \\ ~ 400 s;, 7~ ~ \' , i ~ -, -(_.✓ Wils-0n County ' 39 u ------- Critical Habitat Major Road County Boundary State Boundary River N A 1 inch =8 Kilometers 1 inch = 5 miles Wat~rbody (9) Unit WF 4: Middle Fork Little Red River; Cleburne, Stone, and Van Buren Counties, Arkansas. VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 (i) Unit WF 4 consists of 34.1 river mi (54.8 km) of the Middle Fork Little Red River in Cleburne, Stone, and Van Buren Counties, Arkansas, from the PO 00000 Frm 00042 Fmt 4701 Sfmt 4702 mouth of Linn Creek east of Dennard, Van Buren County, extending downstream to the mouth of Wild Goose Creek north of Fairfield Bay, Cleburne E:\FR\FM\03MRP3.SGM 03MRP3 EP03MR22.011</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS3 Montgomery County Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules and Van Buren counties, and includes the river channel up to the ordinary high water mark. Riparian lands that border the unit include approximately 30.6 river mi (49.2 km; 90 percent) in private ownership and 3.5 river mi (5.6 km; 10 percent) in public (Federal) ownership. All of the public land 12379 ownership in this unit is Federal land associated with the USACE’s Greers Ferry Recreation Area. (ii) Map of Unit WF 4 follows: Critical Habitat for Western Fanshell WF4 Middle Fork Little Red River; Cleburne, Stone, and Van Buren Counties, Arkansas r,==df;', /"::::::;,:.J --·@f~J Searcy County Stone County ( Cfeburne ) County Van Buren County := ~-.#) / ,. ------- Critical Habitat Major Road County Boundary State Boundary River Waterbody (10) Unit WF 5: St. Francis River; Madison and Wayne Counties, Missouri. (i) Unit WF 5 consists of 49.3 river mi (79.3 km) of St. Francis River in VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 N A 1 inch = 6 Kilometers 1 inch = 4 miles Madison and Wayne Counties, Missouri, extending from the mouth of Wachita Creek west of Fredericktown, Madison County, downstream to the mouth of Big PO 00000 Frm 00043 Fmt 4701 Sfmt 4702 Creek northwest of Silva, Wayne County, and includes the river channel up to the ordinary high water mark. Riparian lands that border the unit E:\FR\FM\03MRP3.SGM 03MRP3 EP03MR22.012</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS3 Fairfield Bay 12380 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 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. (ii) Map of Unit WF 5 follows: Critical Habitat for Western Fanshell WF5 St. Francis River; Madison and Wayne Counties, Missouri St. Francois County -·-·------- Critical Habitat Major Road County Boundary State Boundary River Waterbody (11) Unit WF 6: South Fork Spring River; Fulton County, Arkansas. VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 N A 1 inch = 9 Kilometers 1 inch = 6 miles (i) Unit WF 6 consists of 13.4 river mi (21.6 km) of South Fork Spring River in Fulton County, Arkansas, from the PO 00000 Frm 00044 Fmt 4701 Sfmt 4702 mouth of Camp Creek east of Salem, Fulton County, extending downstream to the Arkansas Highway 289 crossing E:\FR\FM\03MRP3.SGM 03MRP3 EP03MR22.013</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS3 Iron County 12381 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules northwest of Cherokee Village, Fulton and Sharp Counties, and includes the river channel up to the ordinary high water mark. Approximately 100 percent of the riparian lands that border the unit are in private ownership. (ii) Map of Unit WF 6 follows: Critical Habitat for Western Fanshell WF6 South Fork Spring River; Fulton County, Arkansas Fulton County • - - Critical Habitat = Major Road ------ County Boundary . - . State Boundary ---- River 1111 Waterbody (12) Unit WF 7: Spring River (AR); Lawrence and Randolph Counties, Arkansas. (i) Unit WF 7 consists of 14.2 river mi (22.9 km) of Spring River in Lawrence VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 -1 inch = 2 Kilometers 1 inch = 1 miles and Randolph Counties, Arkansas, from the mouth of Wells Creek at Ravenden, extending downstream to the mouth of Stennitt Creek southeast of Imboden, Lawrence County, and includes the PO 00000 Frm 00045 Fmt 4701 Sfmt 4702 river channel up to the ordinary high water mark. Approximately 100 percent of the riparian lands that border the unit are in private ownership. (ii) Map of Unit WF 7 follows: E:\FR\FM\03MRP3.SGM 03MRP3 EP03MR22.014</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS3 //Cherokee Village 12382 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules Critical Habitat for Western Fanshell WF7 Spring River (AR); Lawrence and Randolph Counties, Arkansas Sharp County Randolph County Lawrence county Critical Habitat Major Road County Boundary State Boundary River Waterbody (13) Unit WF 8: Spring River (MO/ KS); Jasper County, Missouri, and Cherokee County, Kansas. (i) Unit WF 8 consists of 15 river mi (24.1 km) of Spring River in Jasper County, Missouri, and Cherokee County, Kansas, from the mouth of North Fork Spring River east of Asbury, Jasper VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 N. A 1 inch = 4 Kilometers 1 inch = 2 miles County, Missouri, extending downstream through Cherokee County, Kansas, to the mouth of Center Creek west of Carl Junction, Jasper County, Missouri, and includes the river channel up to the ordinary high water mark. Riparian lands that border the unit include approximately 14.0 river mi PO 00000 Frm 00046 Fmt 4701 Sfmt 4702 (22.5 km; 94 percent) in private ownership and 1.0 river mi (1.6 km; 6 percent) in public (State) ownership. The public ownership of this unit is State land associated with the Kansas Department of Wildlife, Parks and Tourism’s Spring River Wildlife Area. (ii) Map of Unit WF 8 follows: E:\FR\FM\03MRP3.SGM 03MRP3 EP03MR22.015</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS3 ---··-- Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 12383 Critical Habitat for Western Fanshell WF8 Spring River (MO/KS); Jasper County, Missouri; Cherokee County, Kansas Cherokee County Jasper County Critical Habitat Major Road County Boundary ,s_-__,,, State Boundary River Waterbody (14) Unit WF 9: Verdigris River; Montgomery and Wilson Counties, Kansas. (i) Unit WF 9 consists of 12.4 river mi (20 km) of Verdigris River in Montgomery and Wilson Counties, VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 N A 1 inch= 3 Kilometers 1 inch = 2 miles Kansas, from the mouth of Fall River south of Neodesha, Wilson County, extending downstream to the mouth of Choteau Creek northeast of Independence, Montgomery County, and includes the river channel up to the PO 00000 Frm 00047 Fmt 4701 Sfmt 4702 ordinary high water mark. Approximately 100 percent of the riparian lands that border the unit are in private ownership. (ii) Map of Unit WF 9 follows: E:\FR\FM\03MRP3.SGM 03MRP3 EP03MR22.016</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS3 - 12384 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules Critical Habitat for Western Fanshell WF9 Verdigris River; Montgomery and Wilson Counties, Kansas ;1 --:/· 7~:.~:::> 1: ru ~ @ Wilson County Montgomery County Independence • - * * * N A 1 inch = 3 Kilometers 1 inch = 2 miles * Martha Williams, Principal Deputy Director, Exercising the Delegated Authority of the Director, U.S. Fish and Wildlife Service. [FR Doc. 2022–02994 Filed 3–2–22; 8:45 am] BILLING CODE 4333–15–C VerDate Sep<11>2014 18:41 Mar 02, 2022 Jkt 256001 PO 00000 Frm 00048 Fmt 4701 Sfmt 9990 E:\FR\FM\03MRP3.SGM 03MRP3 EP03MR22.017</GPH> khammond on DSKJM1Z7X2PROD with PROPOSALS3 * Critical Habitat Major Road County Boundary State River Waterbody

Agencies

[Federal Register Volume 87, Number 42 (Thursday, March 3, 2022)]
[Proposed Rules]
[Pages 12338-12384]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02994]



[[Page 12337]]

Vol. 87

Thursday,

No. 42

March 3, 2022

Part IV





 Department of the Interior





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Fish and Wildlife Service





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50 CFR Part 17





Endangered and Threatened Wildlife and Plants; Threatened Species 
Status With Section 4(d) Rule for Western Fanshell and ``Ouachita'' 
Fanshell and Designation of Critical Habitat; Proposed Rule

Federal Register / Vol. 87 , No. 42 / Thursday, March 3, 2022 / 
Proposed Rules

[[Page 12338]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R3-ES-2021-0061; FF09E21000 FXES1111090FEDR 223]
RIN 1018-BE79


Endangered and Threatened Wildlife and Plants; Threatened Species 
Status With Section 4(d) Rule for Western Fanshell and ``Ouachita'' 
Fanshell and Designation of Critical Habitat

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
list the western fanshell (Cyprogenia aberti), a freshwater mussel 
species from Arkansas, Kansas, Missouri, and Oklahoma, and the 
``Ouachita'' fanshell (Cyprogenia cf. aberti), a freshwater mussel 
species from Arkansas and Louisiana, as threatened species and to 
designate critical habitat for these species under the Endangered 
Species Act of 1973, as amended (Act). This document also proposes a 
rule issued under section 4(d) of the Act (4(d) rule) for these mussel 
species and serves as our 12-month finding on a petition to list the 
western fanshell. The proposed critical habitat designation for the 
western fanshell totals approximately 360 river miles (579 kilometers), 
all of which are occupied by the species, in Arkansas, Kansas, and 
Missouri, and the proposed critical habitat designation for the 
``Ouachita'' fanshell totals approximately 294 river miles (474 
kilometers), all of which are occupied by the species, in Arkansas. We 
also announce the availability of a draft economic analysis (DEA) of 
the proposed designation of critical habitat for the western fanshell 
and ``Ouachita'' fanshell. If we finalize this rule as proposed, it 
would add these species to the List of Endangered and Threatened 
Wildlife and extend the Act's protections to these species and their 
designated critical habitats.

DATES: We will accept comments received or postmarked on or before May 
2, 2022. Comments submitted electronically using the Federal 
eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 
p.m. Eastern Time on the closing date. We must receive requests for a 
public hearing, in writing, at the address shown in FOR FURTHER 
INFORMATION CONTACT by April 18, 2022.

ADDRESSES: 
    Written comments: You may submit comments by one of the following 
methods:
    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R3-ES-2021-0061, 
which is the docket number for this rulemaking. Then, click on the 
Search button. On the resulting page, in the Search panel on the left 
side of the screen, under the Document Type heading, check the Proposed 
Rule box to locate this document. You may submit a comment by clicking 
on ``Comment.''
    (2) By hard copy: Submit by U.S. mail to: Public Comments 
Processing, Attn: FWS-R3-ES-2021-0061, U.S. Fish and Wildlife Service, 
MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041-3803.
    We request that you send comments only by the methods described 
above. We will post all comments on http://www.regulations.gov. This 
generally means that we will post any personal information you provide 
us (see Information Requested, below, for more information).
    Availability of supporting materials: For the critical habitat 
designation, the coordinates or plot points or both from which the maps 
are generated are included in the decision file and are available at 
https://www.fws.gov/midwest/ for western fanshell and https://www.fws.gov/southeast/ for ``Ouachita'' fanshell, at http://www.regulations.gov under Docket No. FWS-R3-ES-2021-0061, and at the 
Missouri and Arkansas Ecological Services Field Offices (see FOR 
FURTHER INFORMATION CONTACT). Any additional tools or supporting 
information that we may develop for the critical habitat designation 
will also be available at the Service websites and field offices set 
out above or at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For information about the western 
fanshell, contact Karen Herrington, Field Supervisor, U.S. Fish and 
Wildlife Service, Missouri Ecological Services Field Office, 101 Park 
DeVille Drive, Suite A, Columbia, MO 65203-0057; telephone 573-234-
2132. For information about the ``Ouachita'' fanshell, contact Melvin 
Tobin, Field Supervisor, U.S. Fish and Wildlife Service, Arkansas 
Ecological Services Field Office, 110 South Amity, Suite 300, Conway, 
AR 72032-8975; telephone 501-513-4473. Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal Relay 
Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Act, if we determine that 
a species is an endangered or threatened species throughout all or a 
significant portion of its range, we are required to promptly publish a 
proposal in the Federal Register and make a determination on our 
proposal within 1 year. To the maximum extent prudent and determinable, 
we must designate critical habitat for any species that we determine to 
be an endangered or threatened species under the Act. Listing a species 
as an endangered or threatened species and designation of critical 
habitat can only be completed by issuing a rule.
    What this document does. We propose to list the western fanshell 
and ``Ouachita'' fanshell as threatened species with a rule issued 
under section 4(d) of the Act, and we propose the designation of 
critical habitat for these two species.
    The basis for our action. Under the Act, we may determine that a 
species is an endangered or threatened species because of any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that water quality degradation, 
altered flow, landscape changes, and habitat fragmentation, all of 
which are exacerbated by the effects of climate change, are the primary 
threats affecting the western fanshell and ``Ouachita'' fanshell.
    Section 4(a)(3) of the Act requires the Secretary of the Interior 
(Secretary) to designate critical habitat concurrent with listing to 
the maximum extent prudent and determinable. Section 3(5)(A) of the Act 
defines critical habitat as (i) the specific areas within the 
geographical area occupied by the species, at the time it is listed, on 
which are found those physical or biological features (I) essential to 
the conservation of the species and (II) which may require special 
management considerations or protections; and (ii) specific areas 
outside the geographical area occupied by the species at the time it is 
listed, upon a determination by the Secretary that such areas are 
essential for the conservation of the species. Section 4(b)(2) of the 
Act states that the Secretary must make the designation on the basis of 
the best scientific data available and after taking into

[[Page 12339]]

consideration the economic impact, the impact on national security, and 
any other relevant impacts of specifying any particular area as 
critical habitat.

Information Requested

    We intend that any final action resulting from this proposed rule 
will be based on the best scientific and commercial data available and 
be as accurate and as effective as possible. Therefore, we request 
comments or information from other governmental agencies, Native 
American Tribes, the scientific community, industry, or any other 
interested parties concerning this proposed rule.
    We particularly seek comments concerning:
    (1) The species' biology, range, and population trends, including:
    (a) Biological or ecological requirements of the species, including 
habitat requirements for feeding, breeding, and sheltering;
    (b) Genetics and taxonomy;
    (c) Historical and current range, including distribution patterns;
    (d) Historical and current population levels, and current and 
projected trends; and
    (e) Past and ongoing conservation measures for the species, its 
habitat, or both.
    (2) Factors that may affect the continued existence of these 
species, which may include habitat modification or destruction, 
overutilization, disease, predation, the inadequacy of existing 
regulatory mechanisms, or other natural or manmade factors.
    (3) Biological, commercial trade, or other relevant data concerning 
any threats (or lack thereof) to these species and existing regulations 
that may be addressing those threats.
    (4) Additional information concerning the historical and current 
status, range, distribution, and population size of these species, 
including the locations of any additional populations of these species.
    (5) Information on regulations that are necessary and advisable to 
provide for the conservation of western fanshell and ``Ouachita'' 
fanshell and that the Service can consider in developing a 4(d) rule 
for these species. In particular, we seek information concerning the 
extent to which we should include any of the Act's section 9 
prohibitions in the 4(d) rule or whether we should consider any 
additional exceptions from the prohibitions in the 4(d) rule. In 
addition, we request comments on whether we should include an exception 
from permitting requirements for individuals conducting presence/
absence surveys, studies to document habitat use, population 
monitoring, and evaluations of potential impacts to the fanshells, 
provided the individual holds a valid scientific collecting permit for 
mussels from the appropriate State agency.
    (6) The reasons why we should or should not designate habitat as 
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et 
seq.), including information to inform the following factors that the 
regulations identify as reasons why designation of critical habitat may 
be not prudent:
    (a) The species is threatened by taking or other human activity and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species;
    (b) The present or threatened destruction, modification, or 
curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem solely from causes 
that cannot be addressed through management actions resulting from 
consultations under section 7(a)(2) of the Act;
    (c) Areas within the jurisdiction of the United States provide no 
more than negligible conservation value, if any, for a species 
occurring primarily outside the jurisdiction of the United States; or
    (d) No areas meet the definition of critical habitat.
    (7) Specific information on:
    (a) The amount and distribution of western fanshell and 
``Ouachita'' fanshell habitat;
    (b) What areas, that were occupied at the time of listing and that 
contain the physical or biological features essential to the 
conservation of these species, should be included in the designation 
and why;
    (c) Any additional areas occurring within the range of the species 
that should be included in the designation because they (1) are 
occupied at the time of listing and contain the physical or biological 
features that are essential to the conservation of the species and that 
may require special management considerations, or (2) are unoccupied at 
the time of listing and are essential for the conservation of the 
species;
    (d) Special management considerations or protection that may be 
needed in critical habitat areas we are proposing, including managing 
for the potential effects of climate change; and
    (e) What areas not occupied at the time of listing are essential 
for the conservation of these species. We particularly seek comments:
    (i) Regarding whether occupied areas are adequate for the 
conservation of these species;
    (ii) Providing specific information regarding whether or not 
unoccupied areas would, with reasonable certainty, contribute to the 
conservation of these species and contain at least one physical or 
biological feature essential to the conservation of these species; and
    (iii) Explaining whether or not unoccupied areas fall within the 
definition of ``habitat'' at 50 CFR 424.02 and why.
    (8) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat.
    (9) Any probable economic, national security, or other relevant 
impacts of designating any area that may be included in the final 
designation, and the related benefits of including or excluding 
specific areas.
    (10) Information on the extent to which the description of probable 
economic impacts in the draft economic analysis is a reasonable 
estimate of the likely economic impacts, the description of the 
environmental impacts in the draft environmental assessment is complete 
and accurate, and any additional information regarding probable 
economic impacts that we should consider.
    (11) Whether any specific areas we are proposing for critical 
habitat designation should be considered for exclusion under section 
4(b)(2) of the Act, and whether the benefits of potentially excluding 
any specific area outweigh the benefits of including that area under 
section 4(b)(2) of the Act. If you think we should exclude any 
additional areas, please provide credible information regarding the 
existence of a meaningful economic or other relevant impact supporting 
a benefit of exclusion.
    (12) Whether we could improve or modify our approach to designating 
critical habitat in any way to provide for greater public participation 
and understanding, or to better accommodate public concerns and 
comments.
    Please include sufficient information with your submission (such as 
scientific journal articles or other publications) to allow us to 
verify any scientific or commercial information you include.
    Please note that submissions merely stating support for, or 
opposition to, the action under consideration without providing 
supporting information, although noted, will not be considered in 
making a determination, as section 4(b)(1)(A) of the Act directs that 
determinations as to whether any species is an endangered or a 
threatened species must be made ``solely on the

[[Page 12340]]

basis of the best scientific and commercial data available.''
    You may submit your comments and materials concerning this proposed 
rule by one of the methods listed in ADDRESSES. We request that you 
send comments only by the methods described in ADDRESSES.
    If you submit information via http://www.regulations.gov, your 
entire submission--including any personal identifying information--will 
be posted on the website. If your submission is made via a hardcopy 
that includes personal identifying information, you may request at the 
top of your document that we withhold this information from public 
review. However, we cannot guarantee that we will be able to do so. We 
will post all hardcopy submissions on http://www.regulations.gov.
    Comments and materials we receive, as well as supporting 
documentation we used in preparing this proposed rule, will be 
available for public inspection on http://www.regulations.gov.
    Because we will consider all comments and information we receive 
during the comment period, our final determinations may differ from 
this proposal. Based on the new information we receive (and any 
comments on that new information), we may conclude that the western 
fanshell or ``Ouachita'' fanshell is endangered instead of threatened, 
or we may conclude that either species does not warrant listing as 
either an endangered species or a threatened species. For critical 
habitat, our final designation may not include all areas proposed, may 
include some additional areas that meet the definition of critical 
habitat, and may exclude some areas if we find the benefits of 
exclusion outweigh the benefits of inclusion. In addition, we may 
change the parameters of the prohibitions or the exceptions to those 
prohibitions in the 4(d) rule if we conclude it is appropriate in light 
of comments and new information we receive. For example, we may expand 
the prohibitions to include prohibiting additional activities if we 
conclude that those additional activities are not compatible with 
conservation of the species. Conversely, we may establish additional 
exceptions to the prohibitions in the final rule if we conclude that 
the activities would facilitate or are compatible with the conservation 
and recovery of the species.

Public Hearing

    Section 4(b)(5) of the Act provides for a public hearing on this 
proposal, if requested. Requests must be received by the date specified 
in DATES. Such requests must be sent to the address shown in FOR 
FURTHER INFORMATION CONTACT. We will schedule a public hearing on this 
proposal, if requested, and announce the date, time, and place of the 
hearing, as well as how to obtain reasonable accommodations, in the 
Federal Register and local newspapers at least 15 days before the 
hearing. For the immediate future, we will provide these public 
hearings using webinars that will be announced on the Service's 
website, in addition to the Federal Register. The use of these virtual 
public hearings is consistent with our regulations at 50 CFR 
424.16(c)(3).

Previous Federal Actions

    We identified the western fanshell as a ``Category 2'' candidate in 
our May 22, 1984, Review of Invertebrate Wildlife for Listing as 
Endangered or Threatened Species (49 FR 21664). Category 2 candidates 
were defined as species for which we had information that proposed 
listing was possibly appropriate, but conclusive data on biological 
vulnerability and threats were not available to support a proposed rule 
at the time. The species remained so designated in subsequent candidate 
notices of review (CNORs) (54 FR 554, January 6, 1989; 56 FR 58804, 
November 21, 1991; 59 FR 58982, November 15, 1994). In the February 28, 
1996, CNOR (61 FR 7596), we discontinued the designation of Category 2 
species as candidates; therefore, the western fanshell was no longer a 
candidate species.
    On April 20, 2010, we received a petition from the Center for 
Biological Diversity (CBD), Alabama Rivers Alliance, Clinch Coalition, 
Dogwood Alliance, Gulf Restoration Network, Tennessee Forests Council, 
and West Virginia Highlands Conservancy, to list 404 aquatic, riparian, 
and wetland species, including the western fanshell, from the 
southeastern United States as endangered or threatened species and to 
designate critical habitat concurrent with listing under the Act. On 
September 27, 2011, we published a 90-day finding in the Federal 
Register (76 FR 59836), concluding that the petition presented 
substantial information that indicated listing the western fanshell may 
be warranted. Since that time, the ``Ouachita'' fanshell has been 
determined to be a separate species from western fanshell (Williams et 
al. 2017, p. 47; see discussion of taxonomy below); therefore, we 
conducted a discretionary status review for the ``Ouachita'' fanshell 
concurrent with our status review for the western fanshell.

Supporting Documents

    A species status assessment (SSA) team prepared an SSA report for 
the western fanshell and ``Ouachita'' fanshell. The SSA team was 
composed of Service biologists, in consultation with other species 
experts. The SSA report represents a compilation of the best scientific 
and commercial data available concerning the status of these species, 
including the impacts of past, present, and future factors (both 
negative and beneficial) affecting these species. In accordance with 
our joint policy on peer review published in the Federal Register on 
July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum 
updating and clarifying the role of peer review of listing actions 
under the Act, we sought the expert opinions of five appropriate 
specialists regarding the SSA report. We received two responses. We 
also sent the SSA report to eight Federal and State partners with 
expertise in aquatic ecology and freshwater mussel biology, taxonomy, 
and conservation. We received reviews from a Federal biologist and a 
State biologist.

I. Proposed Listing Determination

Background

    The western fanshell (Cyprogenia aberti) is a freshwater mussel in 
the Unionidae family. Adults are a dull tan with a distinctive ray 
pattern from bands of tiny pigment flecks. The shell is thick, 
compressed to moderately inflated, and round to triangular (up to 3 
inches (76 millimeters)), with a wrinkled or rough appearance (Conrad 
1850, p. 10; McMurray et al. 2012, p. 30; Oesch 1995, pp. 143-144; Roe 
2004, pp. 4-5).
    Recent molecular analysis of Cyprogenia identified the fanshell 
from the Ouachita River basin in Arkansas and Louisiana as an 
independent evolutionary lineage (Chong et al. 2016, pp. 2445-2449). 
There is confusion regarding what name is available for the Ouachita 
River drainage fanshell, but the distinctiveness of this species was 
recognized in the most recent list of freshwater mussels of the United 
States and Canada (Williams et al. 2017, p. 47). The Arkansas Wildlife 
Action Plan refers to the species as the ``Ouachita'' fanshell (C. cf. 
aberti) (Arkansas Game and Fish Commission 2015, p. 974). Based on this 
information, we find the ``Ouachita'' fanshell is a listable entity 
under the Act, and we follow this naming convention until a specific 
epithet can be designated.
    The western fanshell is currently found in the Lower Mississippi-
St. Francis, Neosho-Verdigris, and Upper

[[Page 12341]]

White River basins, within the States of Arkansas, Kansas, Missouri, 
and Oklahoma (Service 2020, pp. 21-28; see Figure 1, below). It is 
considered extirpated from the Lower Arkansas basin. The ``Ouachita'' 
fanshell currently occurs in the Lower Red-Ouachita basin in Arkansas 
and historically in Louisiana (Service 2020, pp. 29-31; see Figure 2, 
below).
BILLING CODE 4333-15-P
[GRAPHIC] [TIFF OMITTED] TP03MR22.001


[[Page 12342]]


[GRAPHIC] [TIFF OMITTED] TP03MR22.002

BILLING CODE 4333-15-C
    Both species are typically found in large creeks and rivers with 
good water quality, moderate to swift current, and gravel-sand 
substrates, but specific information on microhabitat requirements is 
lacking. Like all mussels, these two species of fanshell are omnivores 
that primarily filter-feed on a wide variety of microscopic particulate 
matter suspended in the water column, including phytoplankton, 
zooplankton, bacteria, detritus, and dissolved organic matter (Haag 
2012, p. 26). As with most freshwater mussels,

[[Page 12343]]

the fanshell mussels have a unique life cycle that relies on fish hosts 
for successful reproduction (Barnhart et al. 2008, pp. 371-373; Vaughn 
and Taylor 1999, p. 913; Barnhart 1997, p. 12).
    Thorough reviews of the taxonomy, life history, and ecology of the 
western fanshell and ``Ouachita'' fanshell are presented in detail in 
the SSA report (Service 2020, pp. 9-12).

Regulatory and Analytical Framework

Regulatory Framework

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species is an endangered species or a threatened species. The 
Act defines an ``endangered species'' as a species that is in danger of 
extinction throughout all or a significant portion of its range, and a 
``threatened species'' as a species that is likely to become an 
endangered species within the foreseeable future throughout all or a 
significant portion of its range. The Act requires that we determine 
whether any species is an endangered species or a threatened species 
because of any of the following factors:
    (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range;
    (B) Overutilization for commercial, recreational, scientific, or 
educational purposes;
    (C) Disease or predation;
    (D) The inadequacy of existing regulatory mechanisms; or
    (E) Other natural or manmade factors affecting its continued 
existence.
    These factors represent broad categories of natural or human-caused 
actions or conditions that could have an effect on a species' continued 
existence. In evaluating these actions and conditions, we look for 
those that may have a negative effect on individuals of the species, as 
well as other actions or conditions that may ameliorate any negative 
effects or may have positive effects.
    We use the term ``threat'' to refer in general to actions or 
conditions that are known to or are reasonably likely to negatively 
affect individuals of a species. The term ``threat'' includes actions 
or conditions that have a direct impact on individuals (direct 
impacts), as well as those that affect individuals through alteration 
of their habitat or required resources (stressors). The term ``threat'' 
may encompass--either together or separately--the source of the action 
or condition or the action or condition itself.
    However, the mere identification of any threat(s) does not 
necessarily mean that the species meets the statutory definition of an 
``endangered species'' or a ``threatened species.'' In determining 
whether a species meets either definition, we must evaluate all 
identified threats by considering the expected response by the species, 
and the effects of the threats--in light of those actions and 
conditions that will ameliorate the threats--on an individual, 
population, and species level. We evaluate each threat and its expected 
effects on the species, then analyze the cumulative effect of all of 
the threats on the species as a whole. We also consider the cumulative 
effect of the threats in light of those actions and conditions that 
will have positive effects on the species, such as any existing 
regulatory mechanisms or conservation efforts. The Secretary determines 
whether the species meets the definition of an ``endangered species'' 
or a ``threatened species'' only after conducting this cumulative 
analysis and describing the expected effect on the species now and in 
the foreseeable future.
    The Act does not define the term ``foreseeable future,'' which 
appears in the statutory definition of ``threatened species.'' Our 
implementing regulations at 50 CFR 424.11(d) set forth a framework for 
evaluating the foreseeable future on a case-by-case basis. The term 
``foreseeable future'' extends only so far into the future as the 
Service can reasonably determine that both the future threats and the 
species' responses to those threats are likely. In other words, the 
foreseeable future is the period of time in which we can make reliable 
predictions. ``Reliable'' does not mean ``certain''; it means 
sufficient to provide a reasonable degree of confidence in the 
prediction. Thus, a prediction is reliable if it is reasonable to 
depend on it when making decisions.
    It is not always possible or necessary to define foreseeable future 
as a particular number of years. Analysis of the foreseeable future 
uses the best scientific and commercial data available and should 
consider the timeframes applicable to the relevant threats and to the 
species' likely responses to those threats in view of its life-history 
characteristics. Data that are typically relevant to assessing the 
species' biological response include species-specific factors such as 
lifespan, reproductive rates or productivity, certain behaviors, and 
other demographic factors.

Analytical Framework

    The SSA report documents the results of our comprehensive 
biological review of the best scientific and commercial data regarding 
the status of these species, including an assessment of the potential 
threats to these species. The SSA report does not represent a decision 
by the Service on whether these species should be proposed for listing 
as an endangered or threatened species under the Act. However, it does 
provide the scientific basis that informs our regulatory decisions, 
which involve the further application of standards within the Act and 
its implementing regulations and policies. The following is a summary 
of the key results and conclusions from the SSA report; the full SSA 
report can be found at Docket No. FWS-R3-ES-2021-0061 on http://www.regulations.gov and at https://www.fws.gov/midwest/ and https://www.fws.gov/southeast/.
    To assess the western fanshell's and ``Ouachita'' fanshell's 
viability, we used the three conservation biology principles of 
resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 
306-310). Briefly, resiliency supports the ability of the species to 
withstand environmental and demographic stochasticity (for example, wet 
or dry, warm or cold years), redundancy supports the ability of the 
species to withstand catastrophic events (for example, droughts, large 
pollution events), and representation supports the ability of the 
species to adapt over time to long-term changes in the environment (for 
example, climate changes). In general, the more resilient and redundant 
a species is and the more representation it has, the more likely it is 
to sustain populations over time, even under changing environmental 
conditions. Using these principles, we identified the species' 
ecological requirements for survival and reproduction at the 
individual, population, and species levels and described the beneficial 
and risk factors influencing the species' viability.
    The SSA process can be categorized into three sequential stages. 
During the first stage, we evaluated each individual species' life-
history needs. The next stage involved an assessment of the historical 
and current condition of the species' demographics and habitat 
characteristics, including an explanation of how the species arrived at 
its current condition. The final stage of the SSA involved making 
predictions about the species' responses to positive and negative 
environmental and anthropogenic influences. Throughout all of these 
stages, we used the best available information to characterize 
viability as the ability of a species to sustain populations in the 
wild over time. We use this information to inform our regulatory 
decision.

[[Page 12344]]

Summary of Biological Status and Threats

    In this discussion, we review the biological condition of the two 
species and their resources, and the threats that influence both 
species' current and future condition, to assess each species' overall 
viability and the risks to that viability.

Species Needs

    Fanshell mussels feed primarily on a wide variety of microscopic 
particulate matter, including phytoplankton, zooplankton, bacteria, 
detritus, and dissolved organic matter (Haag 2012, p. 26). Juveniles 
likely pedal feed in the sediment, whereas adults filter-feed from the 
water column.
    As with most freshwater mussels, both fanshell mussels rely on a 
host fish for reproduction. The female mussel holds the fertilized eggs 
internally as they develop into larvae. Once mature, the larvae are 
released as glochidia, which attach on the gills, head, or fins of 
fishes (Barnhart et al. 2008, pp. 371-373; Vaughn and Taylor 1999, p. 
913). Glochidia encyst (enclose in a cyst-like structure) on the host's 
tissue and draw nutrients from the fish. The glochidia for the fanshell 
mussels remain encysted for about a month until transformation to the 
juvenile stage, at which point they release from the fish and drop to 
the substrate (Barnhart 1997, p. 12). Glochidia die if they fail to 
find a host fish, attach to the wrong species of host fish, attach to a 
fish that has developed immunity from prior infestations, or attach to 
the wrong location on a host fish (Bogan 1993, p. 599; Neves 1991, p. 
254).
    Logperch (Percina caprodes) is a suitable fish host for both 
fanshell species in all river basins (Eckert 2003, pp. 18-19). 
Slenderhead darter (Percina phoxocephala) and orangebelly darter 
(Etheostoma radiosum) are suitable hosts for ``Ouachita'' fanshell 
(Eckert 2003, p. 46), while slenderhead darter, fantail darter 
(Etheostoma flabellare), rainbow darter (Etheostoma caeruleum), and 
orangebelly darter are suitable hosts for western fanshell, but only 
for their respective sympatric fanshell mussel population (Eckert 2003, 
p. 33). In other words, glochidia had greater success transforming on 
darters from the same stream as the mussel. For example, a higher 
percentage of glochidia from Ouachita River transformed on orangebelly 
darters from Ouachita River than on orangebelly darters from Verdigris 
River (Eckert 2003, p. 11).
    We assessed the best available information to identify the physical 
and biological needs to support individual fitness at all life stages 
for the western fanshell and ``Ouachita'' fanshell. Full descriptions 
of all needs are available in chapter 2 of the SSA report (Service 
2020, pp. 9-15). Based upon the best available scientific and 
commercial information, the resource needs for both species are 
characterized as:
     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;
     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;
     Habitat connectivity (that is, a lack of barriers for 
passage of host fish, which are necessary for dispersal of mussels);
     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;
     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
     Appropriate food sources (phytoplankton, zooplankton, 
protozoans, detritus, and dissolved organic matter) in adequate supply.

Threats Analysis

    We identified water quality degradation, altered flow, landscape 
changes, and habitat fragmentation, all of which are exacerbated by the 
effects of climate change, as the primary threats affecting the western 
fanshell and ``Ouachita'' fanshell (Service 2020, p. 65). We 
acknowledge that invasive species can have individual and, in some 
circumstances, population-level effects to mussels. However, the best 
available data do not support that invasive species are a driving force 
affecting the current or future conditions of these two fanshell 
mussels (Service 2020, pp. 62-63). The primary threats are discussed 
below.
Water Quality
    Chemical contaminants are a major threat in the decline of mussel 
species (Cope et al. 2008, p. 451; Richter et al. 1997, p. 1081; 
Strayer et al. 2004, p. 436; Wang et al. 2007a, p. 2029). Chemicals 
enter rivers through point and nonpoint discharges, including spills, 
industrial and municipal effluents, and residential and agricultural 
runoff. These sources contribute organic compounds, heavy metals, 
nutrients, pesticides, and a wide variety of newly emerging 
contaminants, such as pharmaceuticals, to the aquatic environment.
    The western fanshell has been exposed to zinc and copper at 
concentrations that cause acute toxicity (Service 2020, p. 41) and may 
be exposed to toxic levels of lead in the future (Service 2020, 
Appendix I-D--I-E). Metals from mine water runoff (for example, Tri-
State Mining District in southwest Missouri and southeast Kansas) 
contributed to mussel declines in Shoal Creek and Spring River in the 
Arkansas River basin (Angelo et al. 2007, p. 467; EcoAnalysts, Inc. 
2018, p. 59).
    Nutrients, such as nitrogen and phosphorus, primarily occur in 
runoff from livestock farms, feedlots, heavily fertilized row crops and 
pastures (Peterjohn and Correll 1984, p. 1471), post timber management 
activities, and urban and suburban runoff (including residential lawns 
and leaking septic tanks). Sources of ammonia include agricultural 
wastes (animal feedlots and nitrogenous fertilizers), municipal 
wastewater treatment plants, and industrial waste (Augspurger et al. 
2007, p. 2569), as well as precipitation and natural processes 
(decomposition of organic nitrogen) (Augspurger et al. 2003, p. 2569; 
Goudreau et al. 1993, p. 212; Hickey and Martin 1999, p. 44; Newton et 
al. 2003, p. 1243). As discussed above under Species Needs, both 
fanshell species require dissolved oxygen above 3 ppm and ammonia 
generally below 1.0 ppm total ammonia-nitrogen. We analyzed total 
ammonia nitrogen data in rivers occupied by the two fanshell mussel 
species, but did not find concentrations at levels expected to result 
in acute or chronic toxicity to mussels (Service 2020, p. 41, Appendix 
I-D--I-E). In addition, nutrient enrichment increases primary 
productivity, and the associated algae respiration depletes dissolved 
oxygen levels. However, available water quality data indicate that 
hypoxia (low dissolved oxygen) is not occurring in occupied streams and 
is not currently a threat to the fanshell mussels.
Flow
    Reductions in the diversity and abundance of mussels are 
principally attributed to habitat alteration caused by inundation of 
free-flowing rivers and

[[Page 12345]]

streams (Neves et al. 1997, p. 60), which has occurred in portions of 
the fanshell mussels' ranges (for example, White, Ouachita, Caddo, and 
Neosho rivers). The construction of reservoirs and other impoundments 
permanently alters the hydrology, with deleterious effects to fish host 
movement and mussel dispersal.
    The water released from the hypolimnion (lower layers of the lake) 
in large reservoirs is cold and often devoid of oxygen and necessary 
nutrients, which adversely affects mussel survival. Cold water can 
stunt mussel growth and delay or hinder spawning (Vaughn and Taylor 
1999, p. 917). Reservoirs, like Bull Shoals on the White River in 
north-central Arkansas, that release cold water from the bottom of the 
reservoir (in part to support nonnative rainbow trout and brown trout 
recreational fisheries) can affect water temperatures for many 
kilometers downstream. These cold releases create an extinction 
gradient, where freshwater mussels are absent or present in low numbers 
near the dam, and abundance does not rebound until some distance 
downstream where ambient conditions raise the water temperature to 
within the tolerance limits of mussels (Vaughn and Taylor 1999, pp. 
915-916).
    In addition to low water temperature limits, freshwater mussels 
also have an upper water temperature threshold. As described above 
under Species Needs, both fanshell species require water temperatures 
generally below 80 [deg]F (27 [deg]C).
    In ``Ouachita'' fanshell occupied streams from 1990 to 2018, the 
percent of water temperature samples exceeding 27 [deg]C ranged from 
6.9 to 15.4 percent, with maximum water temperature ranging from 30.3 
[deg]C to 36.6 [deg]C. In western fanshell MUs from 1990 to 2018, the 
percent of water temperature samples exceeding 27 [deg]C ranged from 0 
to 12.6 percent, with maximum water temperature ranging from 22.0 
[deg]C to 35.8 [deg]C.
    Recruitment in some species of mussels is significantly related to 
components of spring and summer flow (Ries et al. 2016, p. 711). High 
velocity flows during spawning can decrease fertilization success (Ries 
et al. 2016, p. 712) and affect juvenile settling (Daraio et al. 2010, 
p. 838; Hardison and Layzer 2001, p. 77). Mussel beds may be 
constrained by threshold limits at both flow extremes. Under low flow 
conditions, mussels may require a minimum flow to transport nutrients, 
oxygen, and waste products. Under high flow conditions, areas with 
relatively low flow may provide a refuge for mussels (Steuer et al. 
2008, p. 67). Fanshell mussels undoubtedly evolved in the presence of 
extreme hydrological conditions to some degree, including severe 
droughts leading to dewatering, and heavy rains leading to damaging 
scour events and movement of mussels and substrate, although the 
frequency, duration, and intensity of these events may be different 
from today. Streamflow and overall discharge for rivers inhabited by 
western and ``Ouachita'' fanshell mussels will likely decline due to 
climate change and projected increases in temperatures and evaporation 
rates, resulting in more frequent and intense droughts (LaFontaine et 
al. 2019, entire).
    Excessive sediments adversely affect riverine mussel populations 
requiring clean, stable streams (Brim Box and Mossa 1999, p. 99; Ellis 
1936, pp. 39-40). Specific biological effects include reduced feeding 
and respiratory efficiency from clogged gills, disrupted metabolic 
processes, reduced growth rates, limited burrowing activity, physical 
smothering, and disrupted host fish attraction mechanisms (Ellis 1936, 
pp. 39-40; Hartfield and Hartfield 1996, p. 373; Marking and Bills 
1979, p. 210; Vannote and Minshall 1982, pp. 4105-4106; Waters 1995, 
pp. 173-175). The physical effects of sediment on mussel habitat 
include changes in suspended and bed material load; changes in bed 
sediment composition associated with increased sediment production and 
runoff in the watershed; channel changes in form, position, and degree 
of stability; changes in depth or the width and depth ratio that 
affects light penetration and flow regime, actively aggrading (filling) 
or degrading (scouring) channels; and changes in channel position. 
These effects to habitat may dislodge, transport downstream, or leave 
mussels stranded (Brim Box and Mossa 1999, pp. 109-112; Kanehl and 
Lyons 1992, pp. 4-5; Vannote and Minshall 1982, p. 4106).
    The majority of sediment transport occurs during floods (Clark and 
Mangham 2019, pp. 6-7; Kondolf 1997, p. 533). The increase in flooding 
severity results in greater sediment transport, with important effects 
to substrate stability and benthic habitats for freshwater mussels, as 
well as other organisms that are dependent on stable benthic habitats 
(Kondolf 1997, p. 535). High base flows can incise channels, erode 
riverbanks, scour mussel beds, and remove substrate preferred by 
mussels. Over time, the physical force of these higher base flows can 
dislodge mussels from the sediment and permanently alter the 
geomorphology of rivers (Clark and Mangham 2019, pp. 6-7; Kondolf 1997, 
p. 533).
    Runoff from impervious surfaces prevalent in urban areas affects 
the natural hydrology of streams by increasing flood magnitude, 
duration, and frequency (Bressler et al. 2009, p. 292). Frequent floods 
in urban areas scour stream substrate and banks, thereby increasing 
erosion and sedimentation and altering geomorphology. Geomorphic 
changes, such as changes in channel width, occur with impervious areas 
as low as 2 to 10 percent (Booth and Jackson 1997, p. 1084; Dunne and 
Leopold 1978, pp. 275-277; Morisawa and LaFlure 1979, Figure 11). 
Initial degradation of fish communities and lower larval densities have 
been associated with as low as 10 percent impervious areas (Limburg and 
Schmidt 1990, pp. 1241-1242; Steedman 1988, pp. 498-499). Unpaved road 
networks also interact with streams, delivering sediment runoff and 
increasing water velocity entering stream channels, thereby increasing 
stream energy, eroding streambanks, scouring channels, and increasing 
flooding (Coffin 2007, pp. 397-398).
Landscape Alterations
    Many rivers where the western fanshell and ``Ouachita'' fanshell 
occur are threatened by land use activities and changes (for example, 
increased urbanization, alteration of riparian buffers, improperly 
designed and maintained unpaved roads). Urbanization of a watershed can 
result in increased pollutant loads from stormwater runoff, altered 
flow, decreased bank stability, and increased water temperature. 
Urbanization can also indirectly increase channel erosion and 
downstream sedimentation by increasing the frequency and volume of 
channel-altering storm flows (Hammer 1972, p. 1530; Leopold 1968, 
entire). These effects of urbanization can lower fish species richness 
and density, leading to predictable changes in species composition, and 
these changes can accrue rapidly (less than 10 years) and are 
detectable at low levels (approximately 5 to 10 percent urbanization) 
(Walters et al. 2005, p. 1). In 2016, 80 percent of the western and 
``Ouachita'' fanshell MUs had 5 percent or greater urban land use, but 
all were less than 10 percent (Service 2020, Appendix I-A).
    The amount of impervious surface and riparian forest cover 
influences stream hydrology and water quality (Brabec et al. 2002, pp. 
505-507). Riparian forest cover intercepts and moderates the timing of 
runoff, buffers temperature extremes, filters pollutants in runoff, 
provides woody debris to stream channels that enhances aquatic

[[Page 12346]]

food webs, and stabilizes excessive erosion. Furthermore, the removal 
of riparian trees in forested watersheds has a strong influence on 
stream invertebrate communities (Wallace et al. 1997, entire). In 2016, 
forest cover ranged from 70 to 76 percent in ``Ouachita'' fanshell MUs 
and 12 to 77 percent in western fanshell MUs (Service 2020, Appendix I-
A).
    Agricultural practices, such as livestock grazing and tilling on 
land adjacent to streams, can lead to soil erosion and subsequent 
runoff of fine sediments, nutrients, and pesticides (for example, 
Schulz and Liess 1999, p. 155). Watersheds with the most habitat 
converted to farmland often have the greatest levels of mussel richness 
decline (Poole and Downing 2004, p. 123). In 2016, agricultural land 
use ranged from 5 to 13 percent in ``Ouachita'' fanshell MUs and 17 to 
68 percent in western fanshell MUs, and decreased in all MUs for both 
species from 2011 to 2016 (Service 2020, Appendix I-A).
    Roads adversely affect watershed integrity by intercepting, 
concentrating, and diverting water. Roads directly affect natural 
sediment and hydrologic regimes by altering stream flow, sediment 
loading, sediment transport and deposition, channel morphology, channel 
stability, substrate composition, stream temperature, water quality, 
and riparian condition (Lee et al. 1997, pp. 1102-1104). Hydrologic 
effects are sensitive to road density, with increased peak flows 
evident at road densities of 2 to 3 kilometers (km)/square kilometers 
(km\2\) (Forman and Alexander 1998, p. 223). In 2016, unpaved road 
density in all the western and ``Ouachita'' fanshell mussel MUs were 
1.6 km/km\2\ or less.
Habitat Fragmentation
    Hydrologic and geomorphic processes directly relate to habitat 
extent. The number and distribution of habitat patches and their 
connectivity influence species population health. Historically, the two 
fanshell species likely occurred throughout the river basins described 
in the SSA (Service 2020, pp. 21-31). Large-scale reductions in mussel 
diversity and abundance are largely due to habitat changes caused by 
impoundments (Neves et al. 1997, p. 63). The number of impoundments in 
``Ouachita'' fanshell MUs ranges from 3 to 51, and in western fanshell 
MUs ranges from 4 to 73.
Effects of Climate Change
    We examined information on the anticipated effects of climate 
change, including changes to water temperatures and precipitation 
patterns. In its 5th Assessment Report, the Intergovernmental Panel on 
Climate Change (IPCC) adopted ``representative concentration pathways'' 
(RCPs), which are greenhouse gas concentration trajectories, to 
describe potential future climate outcomes, depending on the amount of 
greenhouse gases that are emitted in the future (IPCC 2014, pp. 126-
127). Under RCP4.5 and RCP8.5, the seasonal averages of 30 Coupled 
Model Intercomparison Project 5 (CMIP5) models from 1950 to 2100 
indicate warming air temperatures in the Lower Mississippi River 
region, with a central tendency of less than 2 inches change in 
precipitation (Alder and Hostetler 2013, pp. 2-3). We expect changes in 
stream temperatures to reflect changes in air temperature, at a rate of 
an approximately 0.6-0.8 [deg]C increase in stream water temperature 
for every 1 [deg]C increase in air temperature (Morrill et al. 2005, 
pp. 1-2, 15). These water temperature changes will have implications 
for temperature-dependent water quality parameters (such as dissolved 
oxygen and ammonia toxicity), spawning, and physiological effects to 
thermally sensitive species.
    Future increases in the frequency and severity of both extreme 
drought and extreme rainfall are expected to transform many ecosystems 
in the Southeast, including Arkansas (Carter et al. 2018, pp. 743-808). 
Mussels are highly sensitive to secondary effects of drought (for 
example, water temperature, etc.), but their ability to withstand 
severe drought is highly dependent on where they occur (Haag and Warren 
2008, p. 1165) and sufficient time between sequential drought events 
for mussel populations to recover (Vaughn et al. 2015, pp. 1297-1298).
    We also considered whether the threats discussed above may be 
exacerbated by small population size (or low condition). Although there 
are populations in low condition in all the basins in which the two 
species occur, none of the basins have seen their populations reduced 
to one or two populations in low condition.

Regulatory Mechanisms

State Protections
    The western fanshell is listed as State endangered with designated 
critical habitats under the Kansas Nongame and Endangered Species 
Conservation Act. Under State law, any time an eligible project is 
proposed that will impact the species' preferred habitats within its 
probable range in Kansas, the project sponsor must contact the Kansas 
Department of Wildlife, Parks and Tourism, regarding potential permit 
requirements. The western fanshell and ``Ouachita'' fanshell do not 
receive protection under State law in any other States.
Other Regulatory Mechanisms
    The U.S. Forest Service (2005, p. 58) established a wildlife and 
fish habitat road density objective of less than or equal to 1.6 km/2.6 
km\2\ on the Ouachita National Forest in west-central Arkansas, which 
includes the Ouachita Headwaters and Caddo MUs for ``Ouachita'' 
Fanshell. The Arkansas Unpaved Roads Program, authorized by Act 898 of 
the 90th General Assembly in 2005, establishes a proactive, incentive-
based management program that results in utilization of best management 
practices on unpaved roads to minimize erosion and maintain and improve 
the health of priority lakes and rivers (TNC 2017, entire), including 
those where both fanshell mussel species occur.

Current Conditions

    Current (and future) conditions are described using categories that 
estimate the overall condition (resiliency) of the western fanshell and 
``Ouachita'' fanshell populations. These categories are based on an 
evaluation of multiple population and habitat factors (Service 2020, 
pp. 16-19).
    Given that both of the fanshells' ranges include medium to large 
rivers with some populations fragmented by dams and creation of 
navigation channels, we delineated separate populations for each 
watershed through which these streams flow (if there was an occurrence 
record for the stream in that watershed), based on the hydrologic unit 
code (HUC) (Seaber et al. 1987, entire; U.S. Geological Survey 2018, 
entire) at the fourth of six levels (that is, the HUC-8 watershed), and 
termed these ``management units'' (MUs). MUs represent areas with one 
or more populations capable of dispersal and interaction. As a result, 
some watersheds have been combined into one management unit because of 
a lack of dispersal barriers and some divided into multiple management 
units. MUs were identified as most appropriate for assessing 
population-level resiliency because the stream level was determined to 
be too coarse of a scale to estimate the condition factors influencing 
resiliency (Service 2020, p. 16). We defined a MU as currently extant 
if it contains live or recent dead individuals observed in surveys from 
2000 to the present (Service 2020, p. 21).

[[Page 12347]]

    To evaluate the species' genetic and ecological diversity 
(representation) in the absence of species-specific genetic 
information, we considered the extent and variability of environmental 
conditions within the two species' geographic ranges. Based on the best 
available data, we identified representation units at the HUC-4 
watershed level, which is the second HUC level and covers a larger area 
than HUC-8.
Western Fanshell
    The western fanshell's current range includes a total of 11 MUs 
across three HUC-4 units: Neosho-Verdigris (2 MUs), Lower Mississippi-
St. Francis (3 MUs), and Upper White (6 MUs) river drainages of 
Arkansas, Missouri, Kansas, and Oklahoma. Historically, the western 
fanshell occurred in another 14 MUs and is presumed extirpated from the 
Lower Arkansas (HUC-4) river drainage. Of the current MUs, three (27 
percent) are estimated to be highly resilient, three (27 percent) are 
estimated to be moderately resilient, and five (46 percent) are 
estimated to have low resiliency (Service 2020, pp. 36-46). The habitat 
conditions across the 11 extant populations are medium to high (Service 
2020, p. 41).
``Ouachita'' Fanshell
    The ``Ouachita'' fanshell currently occurs in 4 MUs within portions 
of the Ouachita River basin (HUC-4) in Arkansas. One population is 
presumed extirpated. Of the current MUs, one (25 percent) is estimated 
to be highly resilient, one (25 percent) is estimated to be moderately 
resilient, and two (50 percent) are estimated to have low resiliency 
(Service 2020, pp. 46-50). The habitat conditions across the 4 extant 
populations are medium to high (Service 2020, p. 47).

Future Conditions

    We forecasted the western fanshell's and ``Ouachita'' fanshell's 
responses to plausible future scenarios of environmental conditions. 
The future scenarios project the threats into the future and consider 
the impacts those threats could have on the viability of the western 
fanshell and ``Ouachita'' fanshell. We apply the concepts of 
resiliency, redundancy, and representation to the future scenarios to 
describe possible future conditions of the western fanshell and 
``Ouachita'' fanshell. The scenarios described in the SSA report 
represent only two possible future conditions for each species. 
Uncertainty is inherent in any projection of future condition, so we 
must consider plausible scenarios to make our determinations. When 
assessing the future, viability is not a specific state, but rather a 
continuous measure of the likelihood that the species will sustain 
populations over time.
    In the SSA, we considered two future scenarios. Scenario 1 assesses 
the species' responses to moderate increases in stressors influencing 
the western fanshell and ``Ouachita'' fanshell populations, although 
current conservation practices would remain in place. Scenario 2 
assesses the species' responses to severe increases in stressors. Due 
to a lack of resolution of the available data, we were unable to 
distinguish any meaningful difference between a moderate increase in 
stressors and a moderate decrease in stressors. As a result, we limited 
the future forecasts to these two scenarios, which we projected over a 
40-year period. We restricted our evaluation to 40 years primarily due 
to limitations projecting non-modeled, extrapolated future conditions 
for water quality, road density, and habitat fragmentation. A full 
description of the future scenarios and our methods is available in the 
SSA report (Service 2020, pp. 64-69).
    Under Scenario 1, populations of both fanshell species are 
projected to decline in resiliency and redundancy over time as 
conditions moderately decline from current conditions. For western 
fanshell, we project five (45 percent) of the currently extant MUs to 
become extirpated. Of the remaining six populations, four (67 percent) 
would be in medium condition, and two (33 percent) in low condition, 
with no MUs in high condition. For ``Ouachita'' fanshell, we project 
two (50 percent) of the currently extant MUs to become extirpated. Of 
the remaining two populations, one (50 percent) would be in medium 
condition, and one (50 percent) in low condition, with no MUs in high 
condition. All of the extant HUC-4 river basins would remain occupied 
for both species.
    While our projections under Scenario 2 do not anticipate additional 
extirpations from those observed under Scenario 1, we expect all 
remaining populations of both species to be in low condition in 40 
years. All extant HUC-4 river basins would remain occupied for both 
species.
    We note that, by using the SSA framework to guide our analysis of 
the scientific information documented in the SSA report, we have not 
only analyzed individual effects on the species, but we have also 
analyzed their potential cumulative effects. We incorporate the 
cumulative effects into our SSA analysis when we characterize the 
current and future condition of the species. To assess the current and 
future condition of the species, we undertake an iterative analysis 
that encompasses and incorporates the threats individually and then 
accumulates and evaluates the effects of all the factors that may be 
influencing the species, including threats and conservation efforts. 
Because the SSA framework considers not just the presence of the 
factors, but to what degree they collectively influence risk to the 
entire species, our assessment integrates the cumulative effects of the 
factors and replaces a standalone cumulative effects analysis.

Determination of Western Fanshell and ``Ouachita'' Fanshell Status

    Section 4 of the Act (16 U.S.C. 1533) and its implementing 
regulations (50 CFR part 424) set forth the procedures for determining 
whether a species meets the definition of an ``endangered species'' or 
a ``threatened species.'' The Act defines ``endangered species'' as a 
species in danger of extinction throughout all or a significant portion 
of its range, and ``threatened species'' as a species likely to become 
an endangered species within the foreseeable future throughout all or a 
significant portion of its range. The Act requires that we determine 
whether a species meets the definition of ``endangered species'' or 
``threatened species'' because of any of the following factors: (A) The 
present or threatened destruction, modification, or curtailment of its 
habitat or range; (B) overutilization for commercial, recreational, 
scientific, or educational purposes; (C) disease or predation; (D) the 
inadequacy of existing regulatory mechanisms; or (E) other natural or 
manmade factors affecting its continued existence.

Western Fanshell--Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the Act's section 4(a)(1) 
factors, we determined that the western fanshell has experienced a 
reduction in populations/management units from historical conditions. 
However, the species still ranges over three of the four major 
drainages (HUC-4 representation units) in which it historically 
occurred. Eleven of 27 historical MUs are extant. Of those 11, 3 MUs 
are currently in high condition, 3 in medium condition, and 5 in low 
condition. The majority (54 percent) of the MUs are in high or medium 
condition. There is at least one MU in high condition in each of the 3 
extant representation units. With 11 extant

[[Page 12348]]

MUs across three HUC-4s, the species currently retains redundancy to 
withstand and survive potential catastrophic events, although there is 
no imminent catastrophic threat. Therefore, we determined that the 
species is not in danger of extinction throughout all of its range.
    However, the following threats currently acting on the western 
fanshell will likely continue into the foreseeable future and decrease 
the condition of the species further over time: Habitat loss and 
degradation from siltation, water quality degradation, altered flow, 
landscape changes, and habitat fragmentation (Factor A). These threats 
are reasonably expected to be exacerbated by continued urbanization, 
and threats of water quality (temperature) and flow are especially 
exacerbated by climate change (Factor E). These threats will continue 
to impact the species into the foreseeable future, and the existing 
regulatory mechanisms (Factor D) are not adequately reducing the impact 
of these threats on the species. The best available data do not 
indicate that the western fanshell is currently impacted at the 
population level by overutilization for commercial, recreational, 
scientific, or educational purposes (Factor B) or predation or disease 
(Factor C), nor do the best available data indicate that the species 
will be impacted by these factors in the future.
    Given the projection of threats 40 years into the future, the 
number of western fanshell populations will decline with the projected 
loss of five MUs, reducing the species' redundancy. Across the 
plausible future scenarios, resiliency also declines with zero to four 
populations projected to be in medium condition and two to six 
populations in low condition. No populations are projected to be in 
high condition in the foreseeable future. Representation is projected 
to remain across the range, but the considerable loss of redundancy and 
resiliency makes the species likely to become in danger of extinction 
in the foreseeable future throughout its range. Thus, after assessing 
the best available information, we conclude that the western fanshell 
is likely to become in danger of extinction within the foreseeable 
future throughout all of its range.

Western Fanshell--Status Throughout a Significant Portion of Its Range

    Under the Act and our implementing regulations, a species may 
warrant listing if it is in danger of extinction or likely to become so 
in the foreseeable future throughout all or a significant portion of 
its range. The court in Center for Biological Diversity v. Everson, 
2020 WL 437289 (D.D.C. Jan. 28, 2020) (Center for Biological 
Diversity), vacated the aspect of the Final Policy on Interpretation of 
the Phrase ``Significant Portion of Its Range'' in the Endangered 
Species Act's Definitions of ``Endangered Species'' and ``Threatened 
Species'' (79 FR 37578; July 1, 2014) that provided that the Service 
does not undertake an analysis of significant portions of a species' 
range if the species warrants listing as threatened throughout all of 
its range. Therefore, we proceed to evaluating whether the species is 
endangered in a significant portion of its range--that is, whether 
there is any portion of the species' range for which both (1) the 
portion is significant; and (2) the species is in danger of extinction 
in that portion. Depending on the case, it might be more efficient for 
us to address the ``significance'' question or the ``status'' question 
first. We can choose to address either question first. Regardless of 
which question we address first, if we reach a negative answer with 
respect to the first question that we address, we do not need to 
evaluate the other question for that portion of the species' range.
    Following the court's holding in Center for Biological Diversity, 
we now consider whether there are any significant portions of the 
species' range where the species is in danger of extinction now (that 
is, endangered). In undertaking this analysis for western fanshell, we 
choose to address the status question first--we consider information 
pertaining to the geographic distribution of both the species and the 
threats that the species faces to identify any portions of the range 
where the species is endangered.
    For western fanshell, we considered whether the threats are 
geographically concentrated in any portion of the species' range at a 
biologically meaningful scale. We examined the following threats: Water 
quality degradation, altered flow, landscape changes, and habitat 
fragmentation, including cumulative effects. We evaluated multiple 
factors--including various water quality parameters, land cover data, 
road density, and barriers--that contribute to these primary threats. 
These habitat factors are in a medium to high condition across the 
species' range. Overall, we found that threats are acting similarly 
within the occupied river basins across the species' range. We found no 
concentration of threats in any portion of the western fanshell's range 
at a biologically meaningful scale. Thus, there are no portions of the 
species' range where the species has a different status from its 
rangewide status. Therefore, no portion of the species' range provides 
a basis for determining that the species is in danger of extinction in 
a significant portion of its range, and we determine that the species 
is likely to become in danger of extinction within the foreseeable 
future throughout all of its range. This is consistent with the courts' 
holdings in Desert Survivors v. Department of the Interior, No. 16-cv-
01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and Center for 
Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 
2017).

Western Fanshell--Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the western fanshell meets the Act's 
definition of a threatened species. Therefore, we propose to list the 
western fanshell as a threatened species in accordance with sections 
3(20) and 4(a)(1) of the Act.

``Ouachita'' Fanshell--Status Throughout All of Its Range

    After evaluating threats to the species and assessing the 
cumulative effect of the threats under the section 4(a)(1) factors, we 
determined that the ``Ouachita'' fanshell has experienced a reduction 
in resiliency and redundancy from historical conditions. The species is 
extant in four MUs within one major drainage (HUC-4 representation 
unit). The species historically occurred in Bayou Bartholomew in 
Louisiana. Of the four extant MUs, one is currently in high condition, 
one in medium condition, and two in low condition. The species appears 
to be endemic to the Ouachita River basin. Although the species is 
known from only one representation unit, half of the extant populations 
are in high or medium condition. The species currently retains 
redundancy to withstand and survive potential catastrophic events, 
although there is no imminent catastrophic threat. Therefore, we 
determined that the species is not in danger of extinction throughout 
all of its range.
    The following threats currently acting on the ``Ouachita'' fanshell 
will likely continue into the foreseeable future and decrease the 
condition of the species further over time: Habitat loss and 
degradation from siltation, water quality degradation, altered flow, 
landscape changes, and habitat fragmentation (Factor A). These threats 
are reasonably expected to be exacerbated by continued urbanization, 
and threats of water quality (temperature) and flow are especially 
exacerbated by climate change (Factor E). These threats will

[[Page 12349]]

continue to impact the species into the foreseeable future, and the 
existing regulatory mechanisms (Factor D) are not adequately reducing 
the impact of these threats on the species. The best available data do 
not indicate that the ``Ouachita'' fanshell is currently impacted at 
the population level by overutilization for commercial, recreational, 
scientific, or educational purposes (Factor B) or predation or disease 
(Factor C), nor do the best available data indicate that the species 
will be impacted by these factors in the future.
    Given the projection of threats 40 years into the future, the 
number of ``Ouachita'' fanshell populations will decline with the 
projected loss of two MUs, reducing the species' redundancy. Resiliency 
also declines with three to four populations projected to be in low 
condition and zero to one population(s) in medium condition. No 
populations are projected to be in high condition in the foreseeable 
future. As the species occurs in only the Ouachita River basin, 
representation is projected to remain, but the considerable loss of 
redundancy and resiliency makes the species likely to become in danger 
of extinction in the foreseeable future throughout its range. Thus, 
after assessing the best available information, we conclude that the 
``Ouachita'' fanshell is likely to become in danger of extinction 
within the foreseeable future throughout all of its range.

``Ouachita'' Fanshell--Status Throughout a Significant Portion of Its 
Range

    See above, under Western Fanshell--Status Throughout a Significant 
Portion of Its Range, for a description of our evaluation methods and 
our policy application.
    In undertaking the analysis for the ``Ouachita'' fanshell, we 
choose to address the status question first--we consider information 
pertaining to the geographic distribution of both the species and the 
threats that the species faces to identify any portions of the range 
where the species is endangered. We examined the following threats: 
Water quality degradation, altered flow, landscape changes, and habitat 
fragmentation, including cumulative effects. We evaluated multiple 
factors--including various water quality parameters, land cover data, 
road density, and barriers--that contribute to these primary threats. 
These habitat factors are in a medium to high condition across the 
species' range. Overall, we found that threats are acting similarly 
across the species' range. We found no concentration of threats in any 
portion of the ``Ouachita'' fanshell's range at a biologically 
meaningful scale. Thus, there are no portions of the species' range 
where the species has a different status from its rangewide status. 
Therefore, no portion of the species' range provides a basis for 
determining that the species is in danger of extinction in a 
significant portion of its range, and we determine that the species is 
likely to become in danger of extinction within the foreseeable future 
throughout all of its range. This is consistent with the courts' 
holdings in Desert Survivors v. Department of the Interior, No. 16-cv-
01165-JCS, 2018 WL 4053447 (N.D. Cal. Aug. 24, 2018), and Center for 
Biological Diversity v. Jewell, 248 F. Supp. 3d, 946, 959 (D. Ariz. 
2017).

``Ouachita'' Fanshell--Determination of Status

    Our review of the best available scientific and commercial 
information indicates that the ``Ouachita'' fanshell meets the Act's 
definition of a threatened species. Therefore, we propose to list the 
``Ouachita'' fanshell as a threatened species in accordance with 
sections 3(20) and 4(a)(1) of the Act.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness, and 
conservation by Federal, State, Tribal, and local agencies, private 
organizations, and individuals. The Act encourages cooperation with the 
States and other countries and calls for recovery actions to be carried 
out for listed species. The protection required by Federal agencies and 
the prohibitions against certain activities are discussed, in part, 
below.
    The primary purpose of the Act is the conservation of endangered 
and threatened species and the ecosystems upon which they depend. The 
ultimate goal of such conservation efforts is the recovery of these 
listed species, so that they no longer need the protective measures of 
the Act. Section 4(f) of the Act calls for the Service to develop and 
implement recovery plans for the conservation of endangered and 
threatened species. The recovery planning process involves the 
identification of actions that are necessary to halt or reverse the 
species' decline by addressing the threats to its survival and 
recovery. The goal of this process is to restore listed species to a 
point where they are secure, self-sustaining, and functioning 
components of their ecosystems.
    Recovery planning consists of preparing draft and final recovery 
plans, beginning with the development of a recovery outline and making 
it available to the public within 30 days of a final listing 
determination. The recovery outline guides the immediate implementation 
of urgent recovery actions. Revisions of the plan may be done to 
address continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan also identifies 
recovery criteria for review of when a species may be ready for 
reclassification from endangered to threatened (``downlisting'') or 
removal from protected status (``delisting''), and as a benchmark for 
monitoring recovery progress. Recovery plans also establish a framework 
for agencies to coordinate their recovery efforts and provide estimates 
of the cost of implementing recovery tasks. When completed, the 
recovery outline, draft recovery plan, and the final recovery plan will 
be available on our website (http://www.fws.gov/endangered), or from 
our Arkansas Ecological Services Field Office for ``Ouachita'' fanshell 
or Missouri Ecological Services Field Office for western fanshell (see 
FOR FURTHER INFORMATION CONTACT).
    Implementation of recovery actions generally requires the 
participation of a broad range of partners, including other Federal 
agencies, States, Tribes, nongovernmental organizations, businesses, 
and private landowners. Examples of recovery actions include habitat 
restoration (for example, restoration of native vegetation), research, 
captive propagation and reintroduction, and outreach and education. The 
recovery of many listed species cannot be accomplished solely on 
Federal lands because their range may occur primarily or solely on non-
Federal lands. To achieve recovery of these species requires 
cooperative conservation efforts on private, State, and Tribal lands.
    If this species is listed, funding for recovery actions will be 
available from a variety of sources, including Federal budgets, State 
programs, and cost-share grants for non-Federal landowners, the 
academic community, and nongovernmental organizations. In addition, 
pursuant to section 6 of the Act, the States of Arkansas, Kansas, 
Missouri, and Oklahoma would be eligible for Federal funds to implement 
management actions that promote the protection or recovery of the 
western fanshell and the States of Arkansas and

[[Page 12350]]

Louisiana would be eligible for Federal funds to implement management 
actions that promote the protection or recovery of the ``Ouachita'' 
fanshell. Information on our grant programs that are available to aid 
species recovery can be found at: http://www.fws.gov/grants.
    Although the western fanshell and ``Ouachita'' fanshell are only 
proposed for listing under the Act at this time, please let us know if 
you are interested in participating in conservation efforts for these 
species. Additionally, we invite you to submit any new information on 
these species whenever it becomes available and any information you may 
have for recovery planning purposes (see FOR FURTHER INFORMATION 
CONTACT).
    Section 7(a) of the Act requires Federal agencies to evaluate their 
actions with respect to any species that is proposed or listed as an 
endangered or threatened species and with respect to its critical 
habitat, if any is designated. Regulations implementing this 
interagency cooperation provision of the Act are codified at 50 CFR 
part 402. Section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any action that is likely to jeopardize the 
continued existence of a species proposed for listing or result in 
destruction or adverse modification of proposed critical habitat. If a 
species is listed subsequently, section 7(a)(2) of the Act requires 
Federal agencies to ensure that activities they authorize, fund, or 
carry out are not likely to jeopardize the continued existence of the 
species or destroy or adversely modify its critical habitat. If a 
Federal action may affect a listed species or its critical habitat, the 
responsible Federal agency must enter into consultation with the 
Service.
    Federal agency actions within the species' habitat that may require 
conference or consultation or both as described in the preceding 
paragraph include, but are not limited to, activities authorized, 
funded, or carried out by the following agencies:
    (1) U.S. Army Corps of Engineers (channel dredging and maintenance; 
dam projects including flood control, navigation, hydropower, bridge 
projects, stream restoration, and Clean Water Act permitting).
    (2) U.S. Department of Agriculture, including the Natural Resources 
Conservation Service and Farm Service Agency (technical and financial 
assistance for projects) and the Forest Service (aquatic habitat 
restoration, fire management plans, fuel reduction treatments, forest 
plans, mining permits).
    (3) U.S. Department of Energy (renewable and alternative energy 
projects).
    (4) Federal Energy Regulatory Commission (interstate pipeline 
construction and maintenance, dam relicensing, hydrokinetics).
    (5) U.S. Department of Transportation (highway and bridge 
construction and maintenance).
    (6) U.S. Fish and Wildlife Service (issuance of section 10 permits 
for enhancement of survival, habitat conservation plans, and safe 
harbor agreements; National Wildlife Refuge planning and refuge 
activities; Partners for Fish and Wildlife program projects benefiting 
these species or other listed species; Wildlife and Sportfish 
Restoration program sportfish stocking).
    (7) Environmental Protection Agency (water quality criteria, 
permitting).
    (8) Office of Surface Mining (land resource management plans, 
mining permits, oil and natural gas permits, renewable energy 
development).
    It is our policy, as published in the Federal Register on July 1, 
1994 (59 FR 34272), to identify to the maximum extent practicable at 
the time a species is listed, those activities that would or would not 
constitute a violation of section 9 of the Act. The intent of this 
policy is to increase public awareness of the effect of a proposed 
listing on proposed and ongoing activities within the range of the 
species proposed for listing. The discussion below regarding protective 
regulations under section 4(d) of the Act complies with our policy.

II. Proposed Rule Issued Under Section 4(d) of the Act

Background

    Section 4(d) of the Act contains two sentences. The first sentence 
states that the Secretary shall issue such regulations as she deems 
necessary and advisable to provide for the conservation of species 
listed as threatened. The U.S. Supreme Court has noted that statutory 
language like ``necessary and advisable'' demonstrates a large degree 
of deference to the agency (see Webster v. Doe, 486 U.S. 592 (1988)). 
Conservation is defined in the Act to mean the use of all methods and 
procedures which are necessary to bring any endangered species or 
threatened species to the point at which the measures provided pursuant 
to the Act are no longer necessary. Additionally, the second sentence 
of section 4(d) of the Act states that the Secretary may by regulation 
prohibit with respect to any threatened species any act prohibited 
under section 9(a)(1), in the case of fish or wildlife, or section 
9(a)(2), in the case of plants. Thus, the combination of the two 
sentences of section 4(d) provides the Secretary with wide latitude of 
discretion to select and promulgate appropriate regulations tailored to 
the specific conservation needs of the threatened species. The second 
sentence grants particularly broad discretion to the Service when 
adopting the prohibitions under section 9.
    The courts have recognized the extent of the Secretary's discretion 
under this standard to develop rules that are appropriate for the 
conservation of a species. For example, courts have upheld rules 
developed under section 4(d) as a valid exercise of agency authority 
where they prohibited take of threatened wildlife, or include a limited 
taking prohibition (see Alsea Valley Alliance v. Lautenbacher, 2007 
U.S. Dist. Lexis 60203 (D. Or. 2007); Washington Environmental Council 
v. National Marine Fisheries Service, 2002 U.S. Dist. Lexis 5432 (W.D. 
Wash. 2002)). Courts have also upheld 4(d) rules that do not address 
all of the threats a species faces (see State of Louisiana v. Verity, 
853 F.2d 322 (5th Cir. 1988)). As noted in the legislative history when 
the Act was initially enacted, ``once an animal is on the threatened 
list, the Secretary has an almost infinite number of options available 
to him [or her] with regard to the permitted activities for those 
species. He [or she] may, for example, permit taking, but not 
importation of such species, or he [or she] may choose to forbid both 
taking and importation but allow the transportation of such species'' 
(H.R. Rep. No. 412, 93rd Cong., 1st Sess. 1973).
    Exercising this authority under section 4(d), we have developed a 
proposed rule that is designed to address the western fanshell's and 
``Ouachita'' fanshell's specific threats and conservation needs. 
Although the statute does not require us to make a ``necessary and 
advisable'' finding with respect to the adoption of specific 
prohibitions under section 9, we find that this rule as a whole 
satisfies the requirement in section 4(d) of the Act to issue 
regulations deemed necessary and advisable to provide for the 
conservation of the western fanshell and ``Ouachita'' fanshell. As 
discussed above under Summary of Biological Status and Threats, we have 
concluded that the western fanshell and ``Ouachita'' fanshell are 
likely to become in danger of extinction within the foreseeable future 
primarily due to habitat loss and degradation from siltation, water and 
sediment quality degradation, changes to flow, and impoundments. These 
threats, which

[[Page 12351]]

are expected to be exacerbated by continued urbanization and the 
effects of climate change, were central to our assessment of the future 
viability of the western fanshell and ``Ouachita'' fanshell. The 
provisions of this proposed 4(d) rule would promote conservation of the 
western fanshell and ``Ouachita'' fanshell by encouraging management of 
the landscape in ways that meet both land management considerations and 
the conservation needs of the western fanshell and ``Ouachita'' 
fanshell. The provisions of this proposed rule are one of many tools 
that we would use to promote the conservation of the western fanshell 
and ``Ouachita'' fanshell. This proposed 4(d) rule would apply only if 
and when we make final the listing of the western fanshell and 
``Ouachita'' fanshell as threatened species.
    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action which is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, Tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat--and actions 
on State, Tribal, local, or private lands that are not federally 
funded, authorized, or carried out by a Federal agency--do not require 
section 7 consultation.
    This obligation does not change in any way for a threatened species 
with a species-specific 4(d) rule. Actions that result in a 
determination by a Federal agency of ``not likely to adversely affect'' 
continue to require the Service's written concurrence and actions that 
are ``likely to adversely affect'' a species require formal 
consultation and the formulation of a biological opinion.

Provisions of the Proposed 4(d) Rule

    This proposed 4(d) rule would provide for the conservation of the 
western fanshell and ``Ouachita'' fanshell by prohibiting the following 
activities, except as otherwise authorized or permitted: Importing or 
exporting; take; possession and other acts with unlawfully taken 
specimens; delivering, receiving, transporting, or shipping in 
interstate or foreign commerce in the course of commercial activity; or 
selling or offering for sale in interstate or foreign commerce.
    As discussed above under Summary of Biological Status and Threats, 
multiple factors are affecting the status of western fanshell and 
``Ouachita'' fanshell. A range of activities have the potential to 
affect these species, including, for example, habitat loss and 
degradation from siltation, water and sediment quality degradation, 
changes to flow, and impoundments. These threats, which are expected to 
be exacerbated by continued urbanization and the effects of climate 
change, were central to our assessment of the future viability of 
western fanshell and ``Ouachita'' fanshell. Therefore, we prohibit 
actions resulting in the incidental take of western fanshell and 
``Ouachita'' fanshell by altering or degrading the habitat. Regulating 
incidental take resulting from these activities would help preserve the 
species' remaining populations, slow their rate of decline, and 
decrease synergistic, negative effects from other stressors.
    Under the Act, ``take'' means to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect, or to attempt to engage in any 
such conduct. Some of these provisions have been further defined in 
regulation at 50 CFR 17.3. Take can result knowingly or otherwise, by 
direct and indirect impacts, intentionally or incidentally.
    The proposed 4(d) rule would also provide for the conservation of 
the species by allowing exceptions to actions and activities that, 
while they may have some minimal level of disturbance to the western 
fanshell and ``Ouachita'' fanshell, are not expected to negatively 
affect the species' conservation and recovery efforts. The proposed 
exceptions to these prohibitions include: (1) Channel and bank 
restoration projects; (2) silviculture and forest management that 
implements best management practices; and (3) transportation projects 
that avoid instream disturbance in waters occupied by the species.
    The first exception is for incidental take resulting from channel 
and bank restoration projects for creation of natural, physically 
stable, ecologically functioning streams, taking into consideration 
connectivity with floodplain and groundwater aquifers. This exception 
includes a requirement that bank restoration projects require planting 
appropriate native vegetation, including woody species appropriate for 
the region and habitat. We also propose language that would require 
surveys and relocation prior to commencement of restoration actions 
(and, if applicable, monitoring after relocation) for western fanshell 
and ``Ouachita'' fanshell that would otherwise be negatively affected 
by the actions. Actions related to restoration activities that would 
negatively affect western fanshell and ``Ouachita'' fanshell include: 
Individual mussels being removed, dislodged, crushed and/or killed by 
heavy equipment operations and rip-rap placement; removal, destruction 
and/or replacement of habitat; increased turbidity from streambed 
disturbance; and alterations to flow and turbidity from permanent 
(weirs) or temporary (causeways) structures needed for construction.
    The second exception is for incidental take resulting from 
silviculture and forest management activities that use State-approved 
best management practices to protect water and sediment quality and 
stream and riparian habitat. Best management practices are designed to 
reduce sedimentation, erosion, and bank destruction, thereby protecting 
instream habitat for these species.
    The third exception is for incidental take resulting from 
transportation projects that do not include activities that disturb 
instream habitat. Bridge designs that include spanning the stream and 
avoiding stream bank disturbance reduce sedimentation and erosion, 
thereby protecting instream habitat for these species.
    We reiterate that these actions and activities may have some 
minimal level of take of the western fanshell and ``Ouachita'' 
fanshell, but any such take is expected to be rare and insignificant, 
and is not expected to negatively impact the species' conservation and 
recovery efforts. Rather, we expect they would have a net beneficial 
effect on the species. Across the species' range, instream habitats 
have been degraded physically by sedimentation and by direct and 
indirect channel disturbance. The habitat restoration activities in the 
proposed 4(d) rule are intended to

[[Page 12352]]

improve habitat conditions for the species in the long term.
    We may issue permits to carry out otherwise prohibited activities, 
including those described above, involving threatened wildlife under 
certain circumstances. Regulations governing permits for threatened 
wildlife are codified at 50 CFR 17.32. With regard to threatened 
wildlife, a permit may be issued for the following purposes: For 
scientific purposes, to enhance the propagation or survival of the 
species, for economic hardship, for zoological exhibition, for 
educational purposes, for incidental taking, or for special purposes 
consistent with the purposes of the Act. The statute also contains 
certain exemptions from the prohibitions, which are found in sections 9 
and 10 of the Act. In addition, we are considering, but have not 
specifically proposed in this document, an exception from permitting 
requirements for individuals conducting presence/absence surveys, 
studies to document habitat use, population monitoring, and evaluations 
of potential impacts to the fanshells, provided the individual holds a 
valid scientific collecting permit for mussels from the appropriate 
State agency. If we conclude that this measure would provide for the 
conservation of the species, we may include a provision in the final 
4(d) rule. We specifically request comments on this provision we are 
considering.
    We recognize the special and unique relationship with our State 
natural resource agency partners in contributing to conservation of 
listed species. State agencies often possess scientific data and 
valuable expertise on the status and distribution of endangered, 
threatened, and candidate species of wildlife and plants. State 
agencies, because of their authorities and their close working 
relationships with local governments and landowners, are in a unique 
position to assist the Service in implementing all aspects of the Act. 
In this regard, section 6 of the Act provides that the Service shall 
cooperate to the maximum extent practicable with the States in carrying 
out programs authorized by the Act. Therefore, any qualified employee 
or agent of a State conservation agency that is a party to a 
cooperative agreement with the Service in accordance with section 6(c) 
of the Act, who is designated by his or her agency for such purposes, 
would be able to conduct activities designed to conserve the western 
fanshell and ``Ouachita'' fanshell that may result in otherwise 
prohibited take without additional authorization.
    Nothing in this proposed 4(d) rule would change in any way the 
recovery planning provisions of section 4(f) of the Act, the 
consultation requirements under section 7 of the Act, or the ability of 
the Service to enter into partnerships for the management and 
protection of the western fanshell and ``Ouachita'' fanshell. However, 
interagency cooperation may be further streamlined through planned 
programmatic consultations for the species between Federal agencies and 
the Service, where appropriate. We ask the public, particularly State 
agencies and other interested stakeholders that may be affected by the 
proposed 4(d) rule, to provide comments and suggestions regarding 
additional guidance and methods that the Service could provide or use, 
respectively, to streamline the implementation of this proposed 4(d) 
rule (see Information Requested, above).

III. Critical Habitat

Background

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by the 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features:
    (a) Essential to the conservation of the species, and
    (b) Which may require special management considerations or 
protection; and
    (2) Specific areas outside the geographical area occupied by the 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Our regulations at 50 CFR 424.02 define the geographical area 
occupied by the species as an area that may generally be delineated 
around species' occurrences, as determined by the Secretary (that is, 
range). Such areas may include those areas used throughout all or part 
of the species' life cycle, even if not used on a regular basis (for 
example, migratory corridors, seasonal habitats, and habitats used 
periodically, but not solely by vagrant individuals). Additionally, our 
regulations at 50 CFR 424.02 define the word ``habitat,'' for the 
purposes of designating critical habitat only, as the abiotic and 
biotic setting that currently or periodically contains the resources 
and conditions necessary to support one or more life processes of a 
species.
    Conservation, as defined under section 3 of the Act, means to use 
and the use of all methods and procedures that are necessary to bring 
an endangered or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, and transplantation, and, in the extraordinary case where 
population pressures within a given ecosystem cannot be otherwise 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the requirement that Federal agencies ensure, in consultation 
with the Service, that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat. The designation of critical habitat does not affect 
land ownership or establish a refuge, wilderness, reserve, preserve, or 
other conservation area. Such designation also does not allow the 
government or public to access private lands. Such designation does not 
require implementation of restoration, recovery, or enhancement 
measures by non-Federal landowners. Where a landowner requests Federal 
agency funding or authorization for an action that may affect a listed 
species or critical habitat, the Federal agency would be required to 
consult with the Service under section 7(a)(2) of the Act. However, 
even if the Service were to conclude that the proposed activity would 
result in destruction or adverse modification of the critical habitat, 
the Federal action agency and the landowner are not required to abandon 
the proposed activity, or to restore or recover the species; instead, 
they must implement ``reasonable and prudent alternatives'' to avoid 
destruction or adverse modification of critical habitat.
    Under the first prong of the Act's definition of critical habitat, 
areas within the geographical area occupied by the species at the time 
it was listed are included in a critical habitat designation if they 
contain physical or biological features (1) essential to the 
conservation of the species and (2) which may require special 
management considerations or protection. For these areas, critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, those physical or biological 
features that are essential to the conservation of the species (such as 
space, food, cover, and protected habitat). In identifying those 
physical or biological features that occur in specific occupied areas, 
we focus on the specific

[[Page 12353]]

features that are essential to support the life-history needs of the 
species, including, but not limited to, water characteristics, soil 
type, geological features, prey, vegetation, symbiotic species, or 
other features. A feature may be a single habitat characteristic or a 
more complex combination of habitat characteristics. Features may 
include habitat characteristics that support ephemeral or dynamic 
habitat conditions. Features may also be expressed in terms relating to 
principles of conservation biology, such as patch size, distribution 
distances, and connectivity.
    Under the second prong of the Act's definition of critical habitat, 
we can designate critical habitat in areas outside the geographical 
area occupied by the species at the time it is listed, upon a 
determination that such areas are essential for the conservation of the 
species. The implementing regulations at 50 CFR 424.12(b)(2) further 
delineate unoccupied critical habitat by setting out three specific 
parameters: (1) When designating critical habitat, the Secretary will 
first evaluate areas occupied by the species; (2) the Secretary will 
consider unoccupied areas to be essential only where a critical habitat 
designation limited to geographical areas occupied by the species would 
be inadequate to ensure the conservation of the species; and (3) for an 
unoccupied area to be considered essential, the Secretary must 
determine that there is a reasonable certainty both that the area will 
contribute to the conservation of the species and that the area 
contains one or more of those physical or biological features essential 
to the conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Further, our Policy on 
Information Standards Under the Endangered Species Act (published in 
the Federal Register on July 1, 1994 (59 FR 34271)), the Information 
Quality Act (section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), 
and our associated Information Quality Guidelines provide criteria, 
establish procedures, and provide guidance to ensure that our decisions 
are based on the best scientific data available. They require our 
biologists, to the extent consistent with the Act and with the use of 
the best scientific data available, to use primary and original sources 
of information as the basis for recommendations to designate critical 
habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information from the SSA report and information developed during the 
listing process for the species. Additional information sources may 
include any generalized conservation strategy, criteria, or outline 
that may have been developed for the species; the recovery plan for the 
species; articles in peer-reviewed journals; conservation plans 
developed by States and counties; scientific status surveys and 
studies; biological assessments; other unpublished materials; or 
experts' opinions or personal knowledge.
    As the regulatory definition of ``habitat'' reflects (50 CFR 
424.02), habitat is dynamic, and species may move from one area to 
another over time. We recognize that critical habitat designated at a 
particular point in time may not include all of the habitat areas that 
we may later determine are necessary for the recovery of the species. 
For these reasons, a critical habitat designation does not signal that 
habitat outside the designated area is unimportant or may not be needed 
for recovery of the species. Areas that are important to the 
conservation of the species, both inside and outside the critical 
habitat designation, will continue to be subject to: (1) Conservation 
actions implemented under section 7(a)(1) of the Act; (2) regulatory 
protections afforded by the requirement in section 7(a)(2) of the Act 
for Federal agencies to ensure their actions are not likely to 
jeopardize the continued existence of any endangered or threatened 
species; and (3) the prohibitions found in section 9 of the Act. 
Federally funded or permitted projects affecting listed species outside 
their designated critical habitat areas may still result in jeopardy 
findings in some cases. These protections and conservation tools will 
continue to contribute to recovery of these species. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans 
(HCPs), or other species conservation planning efforts if new 
information available at the time of those planning efforts calls for a 
different outcome.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, the Secretary shall designate critical habitat at the 
time the species is determined to be an endangered or threatened 
species. Our regulations (50 CFR 424.12(a)(1)) state that the Secretary 
may, but is not required to, determine that a designation would not be 
prudent in the following circumstances:
    (i) The species is threatened by taking or other human activity and 
identification of critical habitat can be expected to increase the 
degree of such threat to the species;
    (ii) The present or threatened destruction, modification, or 
curtailment of a species' habitat or range is not a threat to the 
species, or threats to the species' habitat stem solely from causes 
that cannot be addressed through management actions resulting from 
consultations under section 7(a)(2) of the Act;
    (iii) Areas within the jurisdiction of the United States provide no 
more than negligible conservation value, if any, for a species 
occurring primarily outside the jurisdiction of the United States;
    (iv) No areas meet the definition of critical habitat; or
    (v) The Secretary otherwise determines that designation of critical 
habitat would not be prudent based on the best scientific data 
available.
    As discussed earlier in this document, there is currently no 
imminent threat of collection or vandalism identified under Factor B 
for these species, and identification and mapping of critical habitat 
is not expected to initiate any such threat. In our SSA and proposed 
listing determination for the western fanshell and ``Ouachita'' 
fanshell, we determined that the present or threatened destruction, 
modification, or curtailment of habitat or range is a threat to the 
western fanshell and ``Ouachita'' fanshell and that those threats can 
be addressed in some way by section 7(a)(2) consultation measures. 
These species occur wholly in the jurisdiction of the United States, 
and we are able to identify areas that meet the definition of critical 
habitat. Therefore, because none of the circumstances enumerated in our 
regulations at 50 CFR 424.12(a)(1) have been met and because the 
Secretary has not identified other circumstances for which this 
designation of critical habitat would be not prudent, we have 
determined that the designation of critical habitat is prudent for the 
western fanshell and ``Ouachita'' fanshell.

Critical Habitat Determinability

    Having determined that designation is prudent, under section 
4(a)(3) of the Act we must find whether critical habitat for the 
western fanshell and ``Ouachita'' fanshell is determinable. Our 
regulations at 50 CFR 424.12(a)(2) state

[[Page 12354]]

that critical habitat is not determinable when one or both of the 
following situations exist:
    (i) Data sufficient to perform required analyses are lacking, or
    (ii) The biological needs of the species are not sufficiently well 
known to identify any area that meets the definition of ``critical 
habitat.''
    When critical habitat is not determinable, the Act allows the 
Service an additional year to publish a critical habitat designation 
(16 U.S.C. 1533(b)(6)(C)(ii)).
    We reviewed the available information pertaining to the biological 
needs of the species and habitat characteristics where these species 
are located. This and other information represent the best scientific 
data available and led us to conclude that the designation of critical 
habitat is determinable for the western fanshell and ``Ouachita'' 
fanshell.

Physical or Biological Features Essential to the Conservation of the 
Species

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12(b), in determining which areas we will designate as 
critical habitat from within the geographical area occupied by the 
species at the time of listing, we consider the physical or biological 
features that are essential to the conservation of the species and 
which may require special management considerations or protection. The 
regulations at 50 CFR 424.02 define ``physical or biological features 
essential to the conservation of the species'' as the features that 
occur in specific areas and that are essential to support the life-
history needs of the species, including, but not limited to, water 
characteristics, soil type, geological features, sites, prey, 
vegetation, symbiotic species, or other features. A feature may be a 
single habitat characteristic or a more complex combination of habitat 
characteristics. Features may include habitat characteristics that 
support ephemeral or dynamic habitat conditions. Features may also be 
expressed in terms relating to principles of conservation biology, such 
as patch size, distribution distances, and connectivity. For example, 
physical features essential to the conservation of the species might 
include gravel of a particular size required for spawning, alkaline 
soil for seed germination, protective cover for migration, or 
susceptibility to flooding or fire that maintains necessary early-
successional habitat characteristics. Biological features might include 
prey species, forage grasses, specific kinds or ages of trees for 
roosting or nesting, symbiotic fungi, or absence of or a particular 
level of nonnative species consistent with conservation needs of the 
listed species. The features may also be combinations of habitat 
characteristics and may encompass the relationship between 
characteristics or the necessary amount of a characteristic essential 
to support the life history of the species.
    In considering whether features are essential to the conservation 
of the species, we may consider an appropriate quality, quantity, and 
spatial and temporal arrangement of habitat characteristics in the 
context of the life-history needs, condition, and status of the 
species. These characteristics include, but are not limited to, space 
for individual and population growth and for normal behavior; food, 
water, air, light, minerals, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding, reproduction, or 
rearing (or development) of offspring; and habitats that are protected 
from disturbance.
    As described above under Summary of Biological Status and Threats, 
western fanshell and ``Ouachita'' fanshell occur in large creeks and 
rivers. Occasional or regular interaction among individuals in 
different river reaches not interrupted by a barrier likely occurs, but 
in general, interaction is strongly influenced by habitat fragmentation 
and distance between occupied river or stream reaches. Once released 
from their fish host, freshwater mussels are benthic (bottom-dwelling), 
generally sedentary aquatic organisms and closely associated with 
appropriate habitat patches within a river or stream.
    We derive the specific physical or biological features essential 
for the western fanshell and ``Ouachita'' fanshell from studies of 
these species' (or appropriate surrogate species') habitat, ecology, 
and life history. The primary habitat elements that influence 
resiliency of the western fanshell and ``Ouachita'' fanshell include 
water quality, water quantity, substrate, habitat connectivity, and the 
presence of host fish species to ensure recruitment. These features are 
also described above as species needs under Summary of Biological 
Status and Threats, and a full description is available in the SSA 
report; the individuals' needs are summarized below in Table 1.

               Table 1--Requirements for Life Stages of Western Fanshell and ``Ouachita'' Fanshell
----------------------------------------------------------------------------------------------------------------
              Life stage                  Resource needs--habitat requirements              References
----------------------------------------------------------------------------------------------------------------
All Life Stages.......................  Water Quality: Naturally clean, high      Allen et al. 2007, pp. 80-85;
                                         quality water with little or no harmful   Augspurger et al. 2003, p.
                                         pollutants (that is, pollutants occur     2569; Bringolf et al. 2007a,
                                         below tolerance limits of mussels, fish   p. 2094; 2007b, p. 2086; Cope
                                         hosts, prey). The values below are        et al. 2008, p. 455; Fuller
                                         based on the best available science and   1974, pp. 240-246; Gillis et
                                         assume mussels respond to average         al. 2008, pp. 140-141; Gray
                                         values of a constituent over time         et al. 2002, pp. 155-156;
                                         (acute or chronic exposure).              Kolpin et al. 2002, pp. 1208-
                                        [rtarr8] Dissolved oxygen >3 milligrams    1210; Spooner and Vaughn
                                         per liter (mg/L).                         2008, p. 311; Steingraeber et
                                        [rtarr8] Low salinity/total dissolved      al. 2007, p. 297; Wang et al.
                                         solids.                                   2007a, 2007b, 2010, 2013,
                                        [rtarr8] Low nutrient concentrations....   entire.
                                        [rtarr8] Total ammonia nitrogen <0.3-1.0
                                         mg/L at pH 8.0 & 25 [deg]C.
                                            [rtarr8] Nitrate <2.0 mg/L..........
                                            [rtarr8] Nitrite <55.8 mg/L.........
                                          [rtarr8] Low concentrations of metals.
                                            [rtarr8] Cadmium <0.014 mg/L at 50
                                             mg/L calcium carbonate (CaCO3)
                                             hardness.
                                            [rtarr8] Zinc <0.120 mg/L at 50 mg/L
                                             CaCO3 hardness.
                                            [rtarr8] Lead <0.205 mg/L at 50 mg/L
                                             CaCO3 hardness.
                                            [rtarr8] Copper <0.005 mg/L in
                                             moderately hard water.
                                          [rtarr8] Natural, unaltered ambient
                                           water temperature generally <27
                                           [deg]C.
                                        Water Quantity: Flowing water in          Galbraith and Vaughn 2009, p.
                                         sufficient quantity to support the life-  46; Allen and Vaughn 2010, p.
                                         history requirements of mussels and       390; Peterson et al. 2011, p.
                                         their fish hosts.                         115; Daraio et al. 2010, p.
                                                                                   838.

[[Page 12355]]

 
Gamete (sperm, egg development,         [rtarr8] Sexually mature males and        Haag 2012, pp. 38-39;
 fertilization).                         females with appropriate water            Galbraith and Vaughn 2009,
Glochidia.............................   temperatures for spawning,                pp. 45-46; Barnhart et al.
                                         fertilization, and brooding.              2008, p. 372.
                                        [rtarr8] Presence of fish hosts (of
                                         appropriate species) with sufficient
                                         flow to allow attachment, encystment,
                                         relocation, excystment, and dispersal
                                         of glochidia..
Juvenile, sub-adult, and adult (from    [rtarr8] Stable substrate comprised of    Allen and Vaughn 2010, pp. 384-
 excystment to maturity).                mixed sand, gravel and cobble, and        385; Haag 2012, pp. 26-42;
                                         appropriate for burrowing, pedal          Eckert 2003, pp. 18-19, 33.
                                         feeding, and survival.
                                        [rtarr8] Appropriate food sources
                                         (phytoplankton, zooplankton,
                                         protozoans, detritus, dissolved organic
                                         matter) in adequate supply..
                                        [rtarr8] Presence and abundance of fish
                                         hosts available for recruitment..
----------------------------------------------------------------------------------------------------------------

Summary of Essential Physical or Biological Features

    We derive the specific physical or biological features essential to 
the conservation of the western fanshell and ``Ouachita'' fanshell from 
studies of the species' habitat, ecology, and life history as described 
below. Additional information can be found in chapter 2 of the SSA 
report (Service 2020, pp. 9-15), which is available on http://www.regulations.gov under Docket No. FWS-R3-ES-2021-0061. We have 
determined that the following physical or biological features are 
essential to the conservation of the western fanshell and ``Ouachita'' 
fanshell:
    (1) Adequate flows, or a hydrologic flow regime (magnitude, timing, 
frequency, duration, rate of change, and overall seasonality of 
discharge over time), necessary to maintain benthic habitats where the 
species are found and to maintain stream connectivity, specifically 
providing for the exchange of nutrients and sediment for maintenance of 
the mussels' and fish hosts' habitat and food availability, maintenance 
of spawning habitat for native host fishes, and the ability for newly 
transformed juveniles to settle and become established in their 
habitats. Adequate flows ensure delivery of oxygen, enable 
reproduction, deliver food to filter-feeding mussels, and reduce 
contaminants and fine sediments from interstitial spaces.
    (2) Suitable substrates and connected instream habitats, 
characterized by geomorphically stable stream channels and banks (that 
is, channels that maintain lateral dimensions, longitudinal profiles, 
and sinuosity patterns over time without an aggrading or degrading bed 
elevation) with habitats that support a diversity of freshwater mussel 
and native fish (such as stable riffle-run-pool habitats that provide 
flow refuges consisting of silt-free gravel and coarse sand 
substrates).
    (3) Water and sediment quality necessary to sustain natural 
physiological processes for normal behavior, growth, and viability of 
all life stages, including, but not limited to: Dissolved oxygen 
(generally above 3 parts per million (ppm)) and water temperature 
(generally below 80 degrees Fahrenheit ([deg]F) (27 degrees Celsius 
([deg]C)). Additionally, water and sediment should be low in ammonia 
(generally below 1.0 ppm total ammonia-nitrogen) and heavy metals, and 
lack excessive total suspended solids and other pollutants.
    (4) The presence and abundance of fish hosts necessary for 
recruitment of the western fanshell and ``Ouachita'' fanshell, 
including logperch (Percina caprodes), rainbow darter (Etheostoma 
caeruleum), slenderhead darter (Percina phoxocephala), fantail darter 
(Etheostoma flabellare), or orangebelly darter (Etheostoma radiosum).

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the specific 
areas within the geographical area occupied by the species at the time 
of listing contain features essential to the conservation of the 
species and which may require special management considerations or 
protection.
    The features essential to the conservation of the western fanshell 
and ``Ouachita'' fanshell may require special management considerations 
or protections to reduce the following threats: (1) Alteration of the 
natural flow regime (modifying the natural hydrograph and seasonal 
flows), including water withdrawals, resulting in flow reduction and 
available water quantity; (2) urbanization of the landscape, including 
(but not limited to) land conversion for urban and commercial use, 
infrastructure (pipelines, roads, bridges, utilities), and urban water 
uses (resource extraction activities, water supply reservoirs, 
wastewater treatment, etc.); (3) significant alteration of water 
quality and nutrient pollution from a variety of activities, such as 
industrial and municipal effluents, mining, and agricultural 
activities; (4) land use activities that remove large areas of forested 
wetlands and riparian systems; (5) dam construction and culvert and 
pipe installation that create barriers to movement for the western 
fanshell and ``Ouachita'' fanshell, or their host fishes; (6) changes 
and shifts in seasonal precipitation patterns as a result of climate 
change; and (7) other watershed and floodplain disturbances that 
release sediments, pollutants, or nutrients into the water.
    Management activities that could ameliorate these threats include, 
but are not limited to: Use of best management practices designed to 
reduce sedimentation, erosion, and bank destruction; protection of 
riparian corridors and woody vegetation; moderation of surface and 
ground water withdrawals to maintain natural flow regimes; improved 
stormwater management; and reduction of other watershed and floodplain 
disturbances that release sediments, pollutants, or nutrients into the 
water.
    In summary, we find that the occupied areas we are proposing to 
designate as critical habitat contain the physical or biological 
features that are essential to the conservation of the species and 
which may require special management considerations or protection. 
Special management considerations or protection may be required of the 
Federal action agency to eliminate, or to reduce to negligible levels, 
the threats affecting the physical and biological features of each 
unit.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(2) of the Act, we use the best 
scientific data available to designate critical habitat. In accordance 
with the Act and our implementing regulations at 50 CFR 424.12(b), we 
review available information pertaining to the habitat requirements of 
the species and identify specific areas within the geographical

[[Page 12356]]

area occupied by the species at the time of listing and any specific 
areas outside the geographical area occupied by the species to be 
considered for designation as critical habitat.
    We anticipate that recovery will require conserving the genetic 
diversity of extant populations across the HUC-4 watersheds within the 
species' current range and maintaining and, where necessary, improving 
habitat and habitat connectivity to ensure the long-term viability of 
western fanshell and ``Ouachita'' fanshell. We have determined that the 
currently occupied MUs of western fanshell and ``Ouachita'' fanshell 
would maintain each species' resiliency, redundancy, and representation 
and are sufficient to conserve these two species. Therefore, we are not 
currently proposing to designate any areas outside the geographical 
area occupied by the species.

Methodology Used for Selection of Proposed Units

    First, we included current populations with high or medium 
resiliency. These populations show recruitment or varied age class 
structure and could be used for recovery actions to augment other 
populations through propagation activities or direct translocations 
within their basins. We defined a population as ``current'' if it 
contains live or recent dead individuals observed in surveys from 2000 
to the present (Service 2020, p. 21).
    Second, we evaluated spatial representation and redundancy across 
the species' ranges, to include last remaining population(s) in major 
river basins.
    Third, we examined the overall contribution of populations in low 
condition and threats to those populations. We considered adjacency and 
connectivity to high and medium populations, as well as isolated 
populations with potentially important genetic or adaptive traits, and 
did not include populations that have potentially low likelihood of 
recovery due to low abundance and limited distribution or populations 
currently under high levels of threats.
    Sources of data for this proposed critical habitat designation 
include information from State agencies throughout the species' ranges 
and numerous survey reports on streams throughout the species' ranges 
(Service 2020, entire). We have also reviewed available information 
that pertains to the habitat requirements of these species. Sources of 
information on habitat requirements include studies conducted at 
occupied sites and published in peer-reviewed articles, agency reports, 
and data collected during monitoring efforts (Service 2020, entire).
    In summary, for areas within the geographic area occupied by these 
species at the time of listing, we delineated critical habitat unit 
boundaries using a precise set of criteria. Specifically, we identified 
river and stream reaches with observations from 2000 to present. We 
determined it is reasonable to find these areas occupied, given the 
variable data associated with timing and frequency of mussel surveys 
conducted throughout the species' ranges and available State heritage 
databases, and information supports the likelihood of both species' 
continued presence in these areas within this timeframe. Specific 
habitat areas were delineated, based on Natural Heritage Element 
Occurrences, published reports, and unpublished survey data provided by 
States. These areas provide habitat for western fanshell and 
``Ouachita'' fanshell populations and are large enough to be self-
sustaining over time, despite fluctuations in local conditions. The 
areas within the proposed units represent continuous river and stream 
reaches of free-flowing habitat patches capable of sustaining host 
fishes and allowing for seasonal transport of glochidia, which are 
essential for reproduction and dispersal of western fanshell and 
``Ouachita'' fanshell. We consider portions of the following rivers and 
streams to be occupied by these species at the time of proposed 
listing, and appropriate for critical habitat designation:
    (1) Western fanshell--Black River, Fall River, Middle Fork Little 
Red River, St. Francis River, South Fork Spring River, Spring River, 
Strawberry River, and Verdigris River.
    (2) ``Ouachita'' fanshell--Little Missouri River, Ouachita River, 
and Saline River.
    When determining proposed critical habitat boundaries, we made 
every effort to avoid inclusion of developed areas, such as lands 
covered by buildings, pavement, and other structures because such lands 
lack physical or biological features necessary for the western fanshell 
and ``Ouachita'' fanshell. The scale of the maps we prepared under the 
parameters for publication within the Code of Federal Regulations may 
not reflect the exclusion of such developed lands. Any such lands 
inadvertently left inside critical habitat boundaries shown on the maps 
of this proposed rule have been excluded by text in the proposed rule 
and are not proposed for designation as critical habitat. Therefore, if 
the critical habitat is finalized as proposed, a Federal action 
involving these lands would not trigger section 7 consultation with 
respect to critical habitat and the requirement of no adverse 
modification unless the specific action would affect the physical or 
biological features in the adjacent critical habitat.
    We propose to designate as critical habitat lands that we have 
determined are occupied at the time of listing (that is, currently 
occupied) and that contain one or more of the physical or biological 
features that are essential to support life-history processes of the 
species.
    We are proposing to designate as critical habitat nine units for 
the western fanshell and four units for the ``Ouachita'' fanshell based 
on one or more of the physical or biological features being present to 
support the western fanshell's or ``Ouachita'' fanshell's life-history 
processes. Some units contain all of the identified physical or 
biological features and support multiple life-history processes. Some 
units contain only some of the physical or biological features 
necessary to support the western fanshell's and ``Ouachita'' fanshell's 
particular use of that habitat.
    The proposed critical habitat designation is defined by the map or 
maps, as modified by any accompanying regulatory text, presented at the 
end of this document under Proposed Regulation Promulgation. We include 
more detailed information on the boundaries of the critical habitat 
designation in the preamble of this document. We will make the 
coordinates or plot points or both on which each map is based available 
to the public on http://www.regulations.gov at Docket No. FWS-R3-ES-
2021-0061 and on our internet sites https://www.fws.gov/midwest/ for 
western fanshell and https://www.fws.gov/southeast/ for ``Ouachita'' 
fanshell.

Proposed Critical Habitat Designation

    We are proposing to designate approximately 360 river miles (river 
mi) (579 kilometers (km)) in nine units as critical habitat for western 
fanshell and approximately 294 river mi (474 km) in four units for 
``Ouachita'' fanshell. The critical habitat areas we describe below 
constitute our current best assessment of areas that meet the 
definition of critical habitat for western fanshell and ``Ouachita'' 
fanshell. All units are occupied by their respective species. The nine 
areas we propose as critical habitat for western fanshell are: (1) 
Upper Black River, (2) Lower Black/Strawberry River, (3) Fall River, 
(4)

[[Page 12357]]

Middle Fork Little Red River, (5) St. Francis River, (6) South Fork 
Spring River, (7) Spring River (AR), (8) Spring River (MO/KS), and (9) 
Verdigris River. The four areas we propose as critical habitat for 
``Ouachita'' fanshell are: (1) Little Missouri River, (2) Ouachita 
Headwaters, (3) Ouachita River, and (4) Saline River. Tables 2 and 3 
show the proposed critical habitat units and the approximate area of 
each unit.

      Table 2--Proposed Critical Habitat Units for Western Fanshell
      [Area estimates reflect all land within critical habitat unit
                              boundaries.]
------------------------------------------------------------------------
                                  Adjacent riparian land    River miles
      Critical habitat unit          ownership by type     (kilometers)
------------------------------------------------------------------------
WF 1. Upper Black River.........  Public (Federal,             13.7 (22)
                                   State).
                                  Private...............       51 (82.1)
WF 2. Lower Black/Strawberry      Public (State)........     10.9 (17.5)
 River.
                                  Private...............   100.4 (161.6)
WF 3. Fall River................  Private...............     45.5 (73.2)
WF 4. Middle Fork Little Red      Public (Federal)......       3.5 (5.6)
 River.
                                  Private...............     30.6 (49.2)
WF 5. St. Francis River.........  Public (Federal,           12.6 (20.2)
                                   State).
                                  Private...............     36.7 (59.1)
WF 6. South Fork Spring River...  Private...............     13.4 (21.6)
WF 7. Spring River (AR).........  Private...............     14.2 (22.9)
WF 8. Spring River (MO/KS)......  Public (State)........       1.0 (1.6)
                                  Private...............     14.0 (22.5)
WF 9. Verdigris River...........  Private...............       12.4 (20)
                                                         ---------------
    Totals......................  Public................     41.7 (67.1)
                                                         ---------------
                                  Private...............   318.2 (512.1)
                                     Total..............   359.9 (579.2)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.


   Table 3--Proposed Critical Habitat Units for ``Ouachita'' Fanshell
      [Area estimates reflect all land within critical habitat unit
                              boundaries.]
------------------------------------------------------------------------
                                  Adjacent riparian land    River miles
      Critical habitat unit          ownership by type     (kilometers)
------------------------------------------------------------------------
OF 1. Little Missouri River.....  Private...............     22.9 (36.9)
OF 2. Ouachita Headwaters.......  Public (Federal)......       2.8 (4.5)
                                  Private...............     29.9 (48.1)
OF 3. Ouachita River............  Private...............     53.5 (86.1)
OF 4. Saline River..............  Public (State)........       0.5 (0.8)
                                  Private...............   184.8 (297.4)
                                                         ---------------
    Totals......................  Public................       3.3 (5.3)
                                  Private...............   291.1 (468.5)
                                                         ---------------
                                     Total..............   294.4 (473.8)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding.

    We present brief descriptions of all units, and reasons why they 
meet the definition of critical habitat for the western fanshell or 
``Ouachita'' fanshell, below.

WF 1: Upper Black River

    Unit WF 1 consists of 64.7 river mi (104.1 km) of Black River in 
Butler and Wayne Counties, Missouri, from Clearwater Dam southwest of 
Piedmont, Wayne County, extending downstream to Butler County Road 658 
crossing southeast of Poplar Bluff, Butler County, and includes the 
river channel up to the ordinary high water mark. Riparian lands that 
border the unit include approximately 51 river mi (82.1 km; 79 percent) 
in private ownership and 13.7 river mi (22 km; 21 percent) in public 
(Federal or State) ownership. Approximately 2.7 miles of the public 
ownership in this unit are State lands associated with Missouri 
Department of Conservation's (MDC) Bradley A. Hammer Memorial 
Conservation Area, Dan River Access, Hilliard Access, and Stephen J. 
Sun Conservation Area. Eleven miles are Federal land associated with 
the U.S. Forest Service's (USFS) Mark Twain National Forest and U.S. 
Army Corps of Engineers (USACE) Clearwater Recreation Area. General 
land use within the adjacent riparian areas of this unit includes 
forest, agriculture, several State-managed game lands, the town of Mill 
Spring, and city of Poplar Bluff. Clearwater Dam is operated by the 
USACE. Unit WF 1 is occupied by the species and contains all of the 
physical or biological features essential to the conservation of the 
species. There is no overlap with any designated critical habitat for 
other listed species.
    Threats identified within the unit include degradation of habitat 
and water quality from impoundments, channelization, and point and 
nonpoint source water pollution, including siltation and pollution 
associated with agriculture, development, and wastewater treatment 
plants. Special management considerations or protection measures to 
reduce or alleviate the threats may include reducing water quality 
degradation and

[[Page 12358]]

habitat loss associated with agriculture, development, and wastewater 
treatment plants (see Special Management Considerations or Protection, 
above).

WF 2: Lower Black/Strawberry River

    Unit WF 2 consists of 111.3 river mi (179.1 km) of Black River and 
Strawberry River in Independence, Jackson, Lawrence, and Sharp Counties 
in Arkansas and includes the river channel up to the ordinary high 
water mark. Black River makes up 54.6 river mi (87.9 km) from the mouth 
of Spring River northeast of Black Rock, extending downstream to the 
mouth of Strawberry River northeast of Dowdy, Independence County, 
Arkansas. Strawberry River makes up 56.7 river mi (91.2 km) from the 
mouth of Lave Creek north of Evening Shade, Sharp County, extending 
downstream to the confluence with Black River northeast of Dowdy, 
Independence County, Arkansas. Riparian lands that border the unit 
include approximately 100.4 river mi (161.6 km; 90 percent) in private 
ownership and 10.9 river mi (17.5 km; 10 percent) in public (State) 
ownership. The public land ownership in this unit is associated with 
Arkansas Game and Fish Commission's Shirey Bay Rainey Brake Wildlife 
Management Area on Black River. The Nature Conservancy's Strawberry 
River Preserve and Ranch on Strawberry River is also in this unit. 
General land use within this unit includes forest, agriculture, State-
managed game lands, the town of Powhatan, and city of Black Rock. Unit 
WF 2 is occupied by the species and contains one or more of the 
physical or biological features essential to the species' conservation. 
There is overlap of 70.3 river mi (113.1 km) of this unit with 
designated critical habitat for rabbitsfoot (Quadrula cylindrica 
cylindrica) (see 50 CFR 17.95(f) and 80 FR 24692, April 30, 2015).
    Threats identified within the unit include degradation of habitat 
and water quality from impoundments, channelization, and point and 
nonpoint source water pollution, including siltation and pollution 
associated with agriculture, development, unpaved roads, and wastewater 
treatment plants. Special management considerations or protection 
measures to reduce or alleviate the threats may include reducing water 
quality degradation and habitat loss associated with agriculture, 
development, and wastewater treatment plants (see Special Management 
Considerations or Protection, above).

WF 3: Fall River

    Unit WF 3 consists of 45.5 river mi (73.2 km) of Fall River in 
Greenwood and Wilson Counties, Kansas, from the Greenwood County Road 
33/Merchants Avenue crossing at Fall River, Greenwood County, extending 
downstream to the U.S. Route 400 crossing west of Neodesha, Wilson 
County, and includes the river channel up to the ordinary high water 
mark. Approximately 100 percent of the riparian lands that border the 
unit are in private ownership. General land use within the adjacent 
riparian areas of this unit includes forest, agriculture, and the city 
of Fall River. Unit WF 3 is occupied by the species and contains one or 
more of the physical or biological features essential to the species' 
conservation. There is overlap of 45.5 river mi (73.2 km) of this unit 
with designated critical habitat for Neosho mucket (Lampsilis 
rafinesqueana) (see 50 CFR 17.95(f) and 80 FR 24692, April 30, 2015).
    Threats identified within the unit include degradation of habitat 
and water quality from impoundments and point and nonpoint source water 
pollution, including siltation and pollution associated with 
agriculture, development, unpaved roads, and wastewater treatment 
plants. Special management considerations or protection measures to 
reduce or alleviate the threats may include reducing water quality 
degradation and habitat loss associated with agriculture, development, 
and wastewater treatment plants (see Special Management Considerations 
or Protection, above).

WF 4: Middle Fork Little Red River

    Unit WF 4 consists of 34.1 river mi (54.8 km) of Middle Fork Little 
Red River in Cleburne, Stone, and Van Buren Counties, Arkansas, from 
the mouth of Linn Creek east of Dennard, Van Buren County, extending 
downstream to the mouth of Wild Goose Creek north of Fairfield Bay, 
Cleburne and Van Buren Counties, and includes the river channel up to 
the ordinary high water mark. Riparian lands that border the unit 
include approximately 30.6 river mi (49.2 km; 90 percent) in private 
ownership and 3.5 river mi (5.6 km; 10 percent) in public (Federal) 
ownership. All of the public land ownership in this unit is Federal 
land associated with the USACE's Greers Ferry Recreation Area. General 
land use within the adjacent riparian areas of this unit includes 
forest, pasture, the town of Shirley, and the city of Fairfield Bay. 
Unit WF 4 is occupied by the species and contains one or more of the 
physical or biological features essential to the species' conservation. 
There is overlap of 34.1 river mi (54.9 km) of this unit with 
designated critical habitat for yellowcheek darter (Etheostoma moorei) 
(see 50 CFR 17.95(e) and 77 FR 63604, October 16, 2012) and rabbitsfoot 
(see 50 CFR 17.95(f) and 80 FR 24692, April 30, 2015).
    Threats identified within the unit include degradation of habitat 
and water quality from impoundments and point and nonpoint source water 
pollution, including siltation and pollution associated with 
agriculture, development, unpaved roads, and wastewater treatment 
plants. Special management considerations or protection measures to 
reduce or alleviate the threats may include reducing water quality 
degradation and habitat loss associated with agriculture, development, 
and wastewater treatment plants (see Special Management Considerations 
or Protection, above).

WF 5: St. Francis River

    Unit WF 5 consists of 49.3 river mi (79.3 km) of St. Francis River 
in Madison and Wayne Counties, Missouri, extending from the mouth of 
Wachita Creek west of Fredericktown, Madison County, downstream to the 
mouth of Big Creek northwest of Silva, Wayne County, and includes the 
river channel up to the ordinary high water mark. Riparian lands that 
border the unit include approximately 36.7 river mi (59.1 km; 74 
percent) in private ownership and 12.6 river mi (20.2 km; 26 percent) 
in public (Federal or State) ownership. Approximately 2.4 river mi of 
the public ownership in this unit are State lands associated with MDC's 
Coldwater Conservation Area, Mill Stream Gardens, and Roselle Access. 
Ten miles are Federal land associated with the USFS's Mark Twain 
National Forest. General land use within the adjacent riparian areas of 
this unit is predominantly forest and pasture with isolated occurrences 
of developed areas. Unit WF 5 is occupied by the species and contains 
one or more of the physical or biological features essential to the 
species' conservation. There is overlap of 49.3 river mi (79.3 km) of 
this unit with designated critical habitat for rabbitsfoot (see 50 CFR 
17.95(f) and 80 FR 24692, April 30, 2015).
    Threats identified within the unit include degradation of habitat 
and water quality from impoundments and point and nonpoint source water 
pollution, including siltation and pollution associated with 
development, unpaved roads, and wastewater treatment plants. Special 
management considerations or protection measures to reduce or alleviate 
the threats may include reducing water quality degradation and habitat 
loss associated with agriculture, development, and wastewater treatment

[[Page 12359]]

plants (see Special Management Considerations or Protection, above).

WF 6: South Fork Spring River

    Unit WF 6 consists of 13.4 river mi (21.6 km) of South Fork Spring 
River in Fulton County, Arkansas, from the mouth of Camp Creek east of 
Salem, Fulton County, extending downstream to the Arkansas Highway 289 
crossing northwest of Cherokee Village, Fulton and Sharp Counties, and 
includes the river channel up to the ordinary high water mark. 
Approximately 100 percent of the riparian lands that border the unit 
are in private ownership. General land use within the adjacent riparian 
areas of this unit is predominantly forest, agriculture, and pasture 
with isolated occurrences of developed areas. Unit WF 6 is occupied by 
the species and contains one or more of the physical or biological 
features essential to the species' conservation. There is no overlap 
with any designated critical habitat for other listed species.
    Threats identified within the unit include degradation of habitat 
and water quality from point and nonpoint source water pollution, 
including siltation and pollution associated with agriculture, 
development, unpaved roads, and wastewater treatment plants. Special 
management considerations or protection measures to reduce or alleviate 
the threats may include reducing water quality degradation and habitat 
loss associated with agriculture, development, and wastewater treatment 
plants (see Special Management Considerations or Protection, above).

WF 7: Spring River (AR)

    Unit WF 7 consists of 14.2 river mi (22.9 km) of Spring River in 
Lawrence and Randolph Counties, Arkansas, from the mouth of Wells Creek 
at Ravenden, extending downstream to the mouth of Stennitt Creek 
southeast of Imboden, Lawrence County, and includes the river channel 
up to the ordinary high water mark. Approximately 100 percent of the 
riparian lands that border the unit are in private ownership. General 
land use within the adjacent riparian areas of this unit includes 
forest, agriculture, pasture, and the towns of Imboden and Ravenden. 
Unit WF 7 is occupied by the species and contains one or more of the 
physical or biological features essential to the species' conservation. 
There is overlap of 14.2 river mi (22.9 km) of this unit with 
designated critical habitat for rabbitsfoot (see 50 CFR 17.95(f) and 80 
FR 24692, April 30, 2015).
    Threats identified within the unit include degradation of habitat 
and water quality from point and nonpoint source water pollution, 
including siltation and pollution associated with agriculture, 
development, unpaved roads, and wastewater treatment plants. Special 
management considerations or protection measures to reduce or alleviate 
the threats may include reducing water quality degradation and habitat 
loss associated with agriculture, development, and wastewater treatment 
plants (see Special Management Considerations or Protection, above).

WF 8: Spring River (MO/KS)

    Unit WF 8 consists of 15 river mi (24.1 km) of Spring River in 
Jasper County, Missouri, and Cherokee County, Kansas, from the mouth of 
North Fork Spring River east of Asbury, Jasper County, Missouri, 
extending downstream through Cherokee County, Kansas, to the mouth of 
Center Creek west of Carl Junction, Jasper County, Missouri, and 
includes the river channel up to the ordinary high water mark. Riparian 
lands that border the unit include approximately 14.0 river mi (22.5 
km; 94 percent) in private ownership and 1.0 river mi (1.6 km; 6 
percent) in public (State) ownership. The public ownership of this unit 
is State land associated with the Kansas Department of Wildlife, Parks 
and Tourism's Spring River Wildlife Area. General land use within the 
adjacent riparian areas of this unit is predominantly forest, 
agriculture, pasture, and State-managed lands with isolated occurrences 
of developed areas. Unit WF 8 is occupied by the species and contains 
one or more of the physical or biological features essential to the 
species' conservation. There is overlap of 15 river mi (24.1 km) of 
this unit with designated critical habitat for Neosho mucket and 
rabbitsfoot (see 50 CFR 17.95(f) and 80 FR 24692, April 30, 2015).
    Threats identified within the unit include degradation of habitat 
and water quality from point and nonpoint source water pollution, 
including siltation and pollution associated with agriculture, 
development, unpaved roads, wastewater treatment plants, and historical 
heavy metal mining. Special management considerations or protection 
measures to reduce or alleviate the threats may include reducing water 
quality degradation and habitat loss associated with agriculture, 
development, wastewater treatment plants, and heavy metal contamination 
(see Special Management Considerations or Protection, above).

WF 9: Verdigris River

    Unit WF 9 consists of 12.4 river mi (20 km) of Verdigris River in 
Montgomery and Wilson Counties, Kansas, from the mouth of Fall River 
south of Neodesha, Wilson County, extending downstream to the mouth of 
Choteau Creek northeast of Independence, Montgomery County, and 
includes the river channel up to the ordinary high water mark. 
Approximately 100 percent of the riparian lands that border the unit 
are in private ownership. General land use within the adjacent riparian 
areas of this unit is predominantly forest and agriculture with 
isolated occurrences of developed areas. Unit WF 9 is occupied by the 
species and contains one or more of the physical or biological features 
essential to the species' conservation. There is overlap of 12.4 river 
mi (20 km) of this unit with designated critical habitat for Neosho 
mucket (see 50 CFR 17.95(f) and 80 FR 24692, April 30, 2015).
    Threats identified within the unit include degradation of habitat 
and water quality from point and nonpoint source water pollution, 
including siltation and pollution associated with agriculture, 
development, unpaved roads, and wastewater treatment plants. Special 
management considerations or protection measures to reduce or alleviate 
the threats may include reducing water quality degradation and habitat 
loss associated with agriculture, development, and wastewater treatment 
plants (see Special Management Considerations or Protection, above).

OF 1: Little Missouri River

    Unit OF 1 consists of 22.9 river mi (36.9 km) of Little Missouri 
River in Clark, Nevada, and Ouachita Counties, Arkansas, from the mouth 
of Garland Creek northeast of Prescott, Nevada County, downstream to 
the mouth of Horse Branch north of Red Hill, Ouachita County, and 
includes the river channel up to the ordinary high water mark. 
Approximately 100 percent of the riparian lands that border the unit 
are in private ownership. General land use within the adjacent riparian 
areas of this unit includes forest and agriculture. Unit OF 1 is 
occupied by the species and contains one or more of the physical or 
biological features essential to the species' conservation. There is no 
overlap with any designated critical habitat for other listed species.
    Threats identified within the unit include dams, impoundments, and 
point and nonpoint source water pollution, including siltation and 
pollution associated with a variety of land uses. Special management 
considerations or protection measures to reduce or alleviate the 
threats may include reducing water quality degradation and habitat loss 
and

[[Page 12360]]

fragmentation (see Special Management Considerations or Protection, 
above).

OF 2: Ouachita Headwaters

    Unit OF 2 consists of 32.7 river mi (52.6 km) of Ouachita River in 
Montgomery and Polk Counties, Arkansas, from the County Road 67 
crossing south of Cherry Hill, Polk County, downstream to the U.S. 
Route 270 crossing southeast of Pencil Bluff, Montgomery County, and 
includes the river channel up to the ordinary high water mark. Riparian 
lands that border the unit include approximately 29.9 river mi (48.1 
km; 91 percent) in private ownership and 2.8 river mi (4.5 km; 9 
percent) in public (Federal) ownership. The public ownership in this 
unit is Federal land associated with USFS's Ouachita National Forest. 
General land use within the adjacent riparian areas of this unit 
includes forest and agriculture. Unit OF 2 is occupied by the species 
and contains one or more of the physical or biological features 
essential to the species' conservation. There is no overlap with any 
designated critical habitat for other listed species.
    Threats identified within the unit include impoundments and point 
and nonpoint source water pollution, including siltation and pollution 
associated with a variety of land uses. Special management 
considerations or protection measures to reduce or alleviate the 
threats may include reducing water quality degradation and habitat loss 
and fragmentation (see Special Management Considerations or Protection, 
above).

OF 3: Ouachita River

    Unit OF 3 consists of 53.5 river mi (86.1 km) of Ouachita River in 
Clark, Dallas, and Ouachita Counties, Arkansas, from the mouth of L'Eau 
Frais Creek southeast of Arkadelphia, Clark County, downstream to the 
mouth of Ecore Fabre Bayou north of Camden, Ouachita County, and 
includes the river channel up to the ordinary high water mark. 
Approximately 100 percent of the riparian lands that border the unit 
are in private ownership. There is a Wetlands Reserve Program easement 
within the unit. General land use within the adjacent riparian areas of 
this unit includes forest, agriculture, and pasture. Unit OF 3 is 
occupied by the species and contains one or more of the physical or 
biological features essential to the species' conservation. There is 
overlap of 22.8 river mi (36.7 km) of this unit with designated 
critical habitat for rabbitsfoot (see 50 CFR 17.95(f) and 80 FR 24692, 
April 30, 2015).
    Threats identified within the unit include dams, impoundments, and 
point and nonpoint source water pollution, including siltation and 
pollution associated with a variety of land uses. Special management 
considerations or protection measures to reduce or alleviate the 
threats may include reducing water quality degradation and habitat loss 
and fragmentation (see Special Management Considerations or Protection, 
above).

OF 4: Saline River

    Unit OF 4 consists of 185.3 river mi (298.2 km) of Saline River in 
Ashley, Bradley, Cleveland, Dallas, Drew, Grant, and Saline Counties, 
Arkansas, from the mouth of North Fork Saline River north of Benton, 
Saline County, downstream to the mouth of Mill Creek north of 
Stillions, Ashley County, and includes the river channel up to the 
ordinary high water mark. Approximately 100 percent of the riparian 
lands that border the unit are in private ownership and less than 1 
percent is in public ownership. The public ownership in this unit is 
State-owned land associated with Jenkins Ferry State Park. General land 
use within the adjacent riparian areas of this unit includes forest, 
agriculture, pasture, the town of Tull, and the city of Benton. Unit OF 
4 is occupied by the species and contains one or more of the physical 
or biological features essential to the species' conservation. There is 
overlap of 185.3 river mi (298.2 km) of this unit with designated 
critical habitat for the rabbitsfoot (see 50 CFR 17.95(f) and 80 FR 
24692, April 30, 2015).
    Threats identified within the unit include dams, impoundments, 
mining, development, and point and nonpoint source water pollution, 
including siltation and pollution associated with development in the 
headwaters and a variety of other land uses. Special management 
considerations or protection measures to reduce or alleviate the 
threats may include reducing water quality degradation and habitat loss 
and fragmentation (see Special Management Considerations or Protection, 
above).

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that any action they fund, authorize, or carry out 
is not likely to jeopardize the continued existence of any endangered 
species or threatened species or result in the destruction or adverse 
modification of designated critical habitat of such species. In 
addition, section 7(a)(4) of the Act requires Federal agencies to 
confer with the Service on any agency action that is likely to 
jeopardize the continued existence of any species proposed to be listed 
under the Act or result in the destruction or adverse modification of 
proposed critical habitat.
    We published a final rule revising the definition of destruction or 
adverse modification on August 27, 2019 (84 FR 44976). Destruction or 
adverse modification means a direct or indirect alteration that 
appreciably diminishes the value of critical habitat as a whole for the 
conservation of a listed species.
    If a Federal action may affect a listed species or its critical 
habitat, the responsible Federal agency (action agency) must enter into 
consultation with us. Examples of actions that are subject to the 
section 7 consultation process are actions on State, Tribal, local, or 
private lands that require a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 10 
of the Act) or that involve some other Federal action (such as funding 
from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency). Federal 
actions not affecting listed species or critical habitat--and actions 
on State, Tribal, local, or private lands that are not federally 
funded, authorized, or carried out by a Federal agency--do not require 
section 7 consultation.
    Compliance with the requirements of section 7(a)(2) is documented 
through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that may affect, and 
are likely to adversely affect, listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species and/or 
destroy or adversely modify critical habitat, we provide reasonable and 
prudent alternatives to the project, if any are identifiable, that 
would avoid the likelihood of jeopardy and/or destruction or adverse 
modification of critical habitat. We define ``reasonable and prudent 
alternatives'' (at 50 CFR 402.02) as alternative actions identified 
during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,

[[Page 12361]]

    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Service Director's opinion, avoid the likelihood 
of jeopardizing the continued existence of the listed species and/or 
avoid the likelihood of destroying or adversely modifying critical 
habitat.
    Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 set forth requirements for Federal 
agencies to reinitiate formal consultation on previously reviewed 
actions. These requirements apply when the Federal agency has retained 
discretionary involvement or control over the action (or the agency's 
discretionary involvement or control is authorized by law) and, 
subsequent to the previous consultation: (1) If the amount or extent of 
taking specified in the incidental take statement is exceeded; (2) if 
new information reveals effects of the action that may affect listed 
species or critical habitat in a manner or to an extent not previously 
considered; (3) if the identified action is subsequently modified in a 
manner that causes an effect to the listed species or critical habitat 
that was not considered in the biological opinion; or (4) if a new 
species is listed or critical habitat designated that may be affected 
by the identified action. In such situations, Federal agencies 
sometimes may need to request reinitiation of consultation with us, but 
the regulations also specify some exceptions to the requirement to 
reinitiate consultation on specific land management plans after 
subsequently listing a new species or designating new critical habitat. 
See the regulations for a description of those exceptions.

Application of the ``Destruction or Adverse Modification'' Standard

    The key factor related to the destruction or adverse modification 
determination is whether implementation of the proposed Federal action 
directly or indirectly alters the designated critical habitat in a way 
that appreciably diminishes the value of the critical habitat as a 
whole for the conservation of the listed species. As discussed above, 
the role of critical habitat is to support physical or biological 
features essential to the conservation of a listed species and provide 
for the conservation of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may violate section 
7(a)(2) of the Act by destroying or adversely modifying such habitat, 
or that may be affected by such designation.
    Activities that the Service may, during a consultation under 
section 7(a)(2) of the Act, consider likely to destroy or adversely 
modify critical habitat include, but are not limited to, actions that 
would: (1) Alter the geomorphology of the species' stream and river 
habitats (for example, instream excavation or dredging, impoundment, 
channelization, sand and gravel mining, clearing riparian vegetation, 
and discharge of fill materials); (2) significantly alter the existing 
flow regime where these species occur (for example, impoundment, urban 
development, water diversion, water withdrawal, water draw-down, and 
hydropower generation); (3) significantly alter water chemistry or 
water quality (for example, hydropower discharges, or the release of 
chemicals, biological pollutants, or heated effluents into surface 
water or connected groundwater at a point source or by dispersed 
release (nonpoint source)); and (4) significantly alter stream bed 
material composition and quality by increasing sediment deposition or 
filamentous algal growth (for example, construction projects, gravel 
and sand mining, oil and gas development, coal mining, livestock 
grazing, irresponsible logging practices, and other watershed and 
floodplain disturbances that release sediments or nutrients into the 
water).

Exemptions

Application of Section 4(a)(3) of the Act

    Section 4(a)(3)(B)(i) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 
provides that the Secretary shall not designate as critical habitat any 
lands or other geographical areas owned or controlled by the Department 
of Defense (DoD), or designated for its use, that are subject to an 
integrated natural resources management plan (INRMP) prepared under 
section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary 
determines in writing that such plan provides a benefit to the species 
for which critical habitat is proposed for designation. No DoD lands 
with a completed INRMP are within the proposed critical habitat 
designation.

Consideration of Impacts Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that the Secretary shall 
designate and make revisions to critical habitat on the basis of the 
best available scientific data after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying any particular area as critical habitat. The 
Secretary may exclude an area from designated critical habitat based on 
economic impacts, impacts on national security, or any other relevant 
impacts. In considering whether to exclude a particular area from the 
designation, we identify the benefits of including the area in the 
designation, identify the benefits of excluding the area from the 
designation, and evaluate whether the benefits of exclusion outweigh 
the benefits of inclusion. If the analysis indicates that the benefits 
of exclusion outweigh the benefits of inclusion, the Secretary may 
exercise discretion to exclude the area only if such exclusion would 
not result in the extinction of the species. In making the 
determination to exclude a particular area, the statute on its face, as 
well as the legislative history, are clear that the Secretary has broad 
discretion regarding which factor(s) to use and how much weight to give 
to any factor.
    We describe below the process that we undertook for taking into 
consideration each category of impacts and our analyses of the relevant 
impacts.

Consideration of Economic Impacts

    Section 4(b)(2) of the Act and its implementing regulations require 
that we consider the economic impact that may result from a designation 
of critical habitat. To assess the probable economic impacts of a 
designation, we must first evaluate specific land uses or activities 
and projects that may occur in the area of the critical habitat. We 
then must evaluate the impacts that a specific critical habitat 
designation may have on restricting or modifying specific land uses or 
activities for the benefit of the species and its habitat within the 
areas proposed. We then identify which conservation efforts may be the 
result of the species being listed under the Act versus those 
attributed solely to the designation of critical habitat for this 
particular species. The probable economic impact of a proposed critical 
habitat designation is analyzed by comparing scenarios both ``with 
critical habitat'' and ``without critical habitat.''
    The ``without critical habitat'' scenario represents the baseline 
for the analysis, which includes the existing

[[Page 12362]]

regulatory and socio-economic burden imposed on landowners, managers, 
or other resource users potentially affected by the designation of 
critical habitat (for example, under the Federal listing as well as 
other Federal, State, and local regulations). Therefore, the baseline 
represents the costs of all efforts attributable to the listing of the 
species under the Act (that is, conservation of the species and its 
habitat incurred regardless of whether critical habitat is designated). 
The ``with critical habitat'' scenario describes the incremental 
impacts associated specifically with the designation of critical 
habitat for the species. The incremental conservation efforts and 
associated impacts would not be expected without the designation of 
critical habitat for the species. In other words, the incremental costs 
are those attributable solely to the designation of critical habitat, 
above and beyond the baseline costs. These are the costs we use when 
evaluating the benefits of inclusion and exclusion of particular areas 
from the final designation of critical habitat should we choose to 
conduct a discretionary 4(b)(2) exclusion analysis.
    For this particular designation, we developed an incremental 
effects memorandum (IEM) considering the probable incremental economic 
impacts that may result from this proposed designation of critical 
habitat. The information contained in our IEM was then used to develop 
a screening analysis of the probable effects of the designation of 
critical habitat for the western fanshell and ``Ouachita'' fanshell 
(Industrial Economics, Inc. 2021, entire). We began by conducting a 
screening analysis of the proposed designation of critical habitat in 
order to focus our analysis on the key factors that are likely to 
result in incremental economic impacts. The purpose of the screening 
analysis is to filter out particular geographic areas of critical 
habitat that are already subject to such protections and are, 
therefore, unlikely to incur incremental economic impacts. In 
particular, the screening analysis considers baseline costs (that is, 
absent critical habitat designation) and includes any probable 
incremental economic impacts where land and water use may already be 
subject to conservation plans, land management plans, best management 
practices, or regulations that protect the habitat area as a result of 
the Federal listing status of the species. Ultimately, the screening 
analysis allows us to focus our analysis on evaluating the specific 
areas or sectors that may incur probable incremental economic impacts 
as a result of the designation. If the proposed critical habitat 
designation contains any unoccupied units, the screening analysis 
assesses whether those units require additional management or 
conservation efforts that may incur incremental economic impacts. This 
screening analysis combined with the information contained in our IEM 
constitute what we consider to be our draft economic analysis (DEA) of 
the proposed critical habitat designations for the western fanshell and 
``Ouachita'' fanshell; our DEA is summarized in the narrative below.
    Executive Orders (E.O.s) 12866 and 13563 direct Federal agencies to 
assess the costs and benefits of available regulatory alternatives in 
quantitative (to the extent feasible) and qualitative terms. Consistent 
with the E.O. regulatory analysis requirements, our effects analysis 
under the Act may take into consideration impacts to both directly and 
indirectly affected entities, where practicable and reasonable. If 
sufficient data are available, we assess to the extent practicable the 
probable impacts to both directly and indirectly affected entities. As 
part of our screening analysis, we considered the types of economic 
activities that are likely to occur within the areas likely affected by 
the critical habitat designation. In our evaluation of the probable 
incremental economic impacts that may result from the proposed 
designation of critical habitat for the western fanshell and 
``Ouachita'' fanshell, first we identified, in the IEM dated February 
1, 2021, probable incremental economic impacts associated with the 
following categories of activities: Instream excavation or dredging; 
impoundments; channelization; sand and gravel mining; clearing riparian 
vegetation; discharge of fill materials; urban development; water 
diversion; water withdrawal; water draw-down; hydropower generation and 
discharges; release of chemicals, biological pollutants, or heated 
effluents into surface water or connected ground water at a point 
source or by dispersed release (nonpoint); construction projects; oil 
and gas development; coal mining; livestock grazing; timber harvest; 
and other watershed or floodplain disturbances that release sediments 
or nutrients into the water. We considered each industry or category 
individually. Additionally, we considered whether their activities have 
any Federal involvement. Critical habitat designation generally will 
not affect activities that do not have any Federal involvement; under 
the Act, designation of critical habitat affects only activities 
conducted, funded, permitted, or authorized by Federal agencies. If we 
list these species, in areas where the western fanshell or ``Ouachita'' 
fanshell are present, Federal agencies would be required to consult 
with the Service under section 7 of the Act on activities they fund, 
permit, or implement that may affect the species. If, when we list 
these species, we also finalize this proposed critical habitat 
designation, consultations would include an evaluation of measures to 
avoid the destruction or adverse modification of critical habitat.
    In our IEM, we attempted to clarify the distinction between the 
effects that would result from the species being listed and those 
attributable to the critical habitat designation (that is, difference 
between the jeopardy and adverse modification standards) for the 
western fanshell's and ``Ouachita'' fanshell's critical habitat. 
Because the designation of critical habitat for western fanshell and 
``Ouachita'' fanshell is proposed concurrently with the listing, it has 
been our experience that it is more difficult to discern which 
conservation efforts are attributable to the species being listed and 
those which would result solely from the designation of critical 
habitat. However, the following specific circumstances in this case 
help to inform our evaluation: (1) The essential physical or biological 
features identified for critical habitat are the same features 
essential for the life requisites of the species, and (2) any actions 
that would result in sufficient harm or harassment to constitute 
jeopardy to the western fanshell or ``Ouachita'' fanshell would also 
likely adversely affect the essential physical or biological features 
of critical habitat. The IEM outlines our rationale concerning this 
limited distinction between baseline conservation efforts and 
incremental impacts of the designation of critical habitat for this 
species. This evaluation of the incremental effects has been used as 
the basis to evaluate the probable incremental economic impacts of this 
proposed designation of critical habitat.
    The proposed critical habitat designation for the western fanshell 
includes nine units, all of which are occupied by the species. 
Ownership of riparian lands adjacent to the proposed units includes 
318.2 river mi (512.1 km; 88 percent) in private ownership and 41.7 
river mi (67.1 km; 12 percent) in public (Federal or State) ownership. 
The proposed critical habitat designation for the ``Ouachita'' fanshell 
includes four units, all of which are occupied by the species. 
Ownership of riparian lands

[[Page 12363]]

adjacent to the proposed units includes 291.1 river mi (468.5 km; 99 
percent) in private ownership and 3.3 river mi (5.3 km; 1 percent) in 
public (Federal or State) ownership.
    Total incremental costs of critical habitat designation for the 
western fanshell and ``Ouachita'' fanshell are not expected to exceed 
$79,000 (2021 dollars) per year. The costs are reflective of: (1) All 
proposed units are considered occupied, (2) project modifications 
requested to avoid adverse modification are likely to be the same as 
those recommended to avoid jeopardy in occupied habitat for these 
species, and (3) the proposed designations receive baseline protection 
from the presence of critical habitat for co-occurring listed mussel 
species with similar habitat needs in 60 percent of the proposed 
western fanshell critical habitat and in 71 percent of the proposed 
``Ouachita'' fanshell critical habitat. Because consultation would be 
required as a result of the listing of the western fanshell and 
``Ouachita'' fanshell and is already required in some of these areas as 
a result of the presence of other listed species and critical habitats, 
the economic costs of the critical habitat designation would likely be 
primarily limited to additional administrative efforts to consider 
adverse modification for these two species in section 7 consultations.
    Based on the consultation history regarding historical projects and 
activities overlapping the proposed critical habitat area for the 
western fanshell, the number of future consultations, including 
technical assistance efforts, is likely to be no more than 23 per year 
across all nine units. Based on the consultation history regarding 
historical projects and activities overlapping the proposed critical 
habitat area for the ``Ouachita'' fanshell, the number of future 
consultations, including technical assistance efforts, is likely to be 
no more than 15 per year across all four units. Overall, transportation 
and utilities activities are expected to result in the largest portion 
of consultations for both the western and ``Ouachita'' fanshells and, 
therefore, incur the highest costs. The geographic distribution of 
future section 7 consultations and associated costs are likely to be 
most heavily concentrated in western fanshell proposed Unit 2 and 
``Ouachita'' fanshell proposed Unit 4. However, even assuming 
consultation activity increases substantially, incremental 
administrative costs are still likely to remain well under $100 million 
per year.
    We are soliciting data and comments from the public on the DEA 
discussed above, as well as on all aspects of this proposed rule and 
our required determinations. During the development of a final 
designation, we will consider the information presented in the DEA and 
any additional information on economic impacts we receive during the 
public comment period to determine whether any specific areas should be 
excluded from the final critical habitat designation under authority of 
section 4(b)(2) and our implementing regulations at 50 CFR 17.90. If we 
receive credible information regarding the existence of a meaningful 
economic or other relevant impact supporting a benefit of exclusion, we 
will conduct an exclusion analysis for the relevant area or areas. We 
may also exercise the discretion to evaluate any other particular areas 
for possible exclusion. Furthermore, when we conduct an exclusion 
analysis based on impacts identified by experts in, or sources with 
firsthand knowledge about, impacts that are outside the scope of the 
Service's expertise, we will give weight to those impacts consistent 
with the expert or firsthand information unless we have rebutting 
information. We may exclude an area from critical habitat if we 
determine that the benefits of excluding the area outweigh the benefits 
of including the area, provided the exclusion will not result in the 
extinction of either species.

Consideration of National Security Impacts

    Section 4(a)(3)(B)(i) of the Act may not cover all DoD lands or 
areas that pose potential national-security concerns (for example, a 
DoD installation that is in the process of revising its INRMP for a 
newly listed species or a species previously not covered). If a 
particular area is not covered under section 4(a)(3)(B)(i), then 
national-security or homeland-security concerns are not a factor in the 
process of determining what areas meet the definition of ``critical 
habitat.'' However, the Service must still consider impacts on national 
security, including homeland security, on those lands or areas not 
covered by section 4(a)(3)(B)(i), because section 4(b)(2) requires the 
Service to consider those impacts whenever it designates critical 
habitat. Accordingly, if DoD, Department of Homeland Security (DHS), or 
another Federal agency has requested exclusion based on an assertion of 
national-security or homeland-security concerns, or we have otherwise 
identified national-security or homeland-security impacts from 
designating particular areas as critical habitat, we generally have 
reason to consider excluding those areas.
    However, we cannot automatically exclude requested areas. When DoD, 
DHS, or another Federal agency requests exclusion from critical habitat 
on the basis of national-security or homeland-security impacts, we must 
conduct an exclusion analysis if the Federal requester provides 
credible information, including a reasonably specific justification of 
an incremental impact on national security that would result from the 
designation of that specific area as critical habitat. That 
justification could include demonstration of probable impacts, such as 
impacts to ongoing border-security patrols and surveillance activities, 
or a delay in training or facility construction, as a result of 
compliance with section 7(a)(2) of the Act. If the agency requesting 
the exclusion does not provide us with a reasonably specific 
justification, we will contact the agency to recommend that it provide 
a specific justification or clarification of its concerns relative to 
the probable incremental impact that could result from the designation. 
If we conduct an exclusion analysis because the agency provides a 
reasonably specific justification or because we decide to exercise the 
discretion to conduct an exclusion analysis, we will defer to the 
expert judgment of DoD, DHS, or another Federal agency as to: (1) 
Whether activities on its lands or waters, or its activities on other 
lands or waters, have national-security or homeland-security 
implications; (2) the importance of those implications; and (3) the 
degree to which the cited implications would be adversely affected in 
the absence of an exclusion. In that circumstance, in conducting a 
discretionary section 4(b)(2) exclusion analysis, we will give great 
weight to national-security and homeland-security concerns in analyzing 
the benefits of exclusion.
    Under section 4(b)(2) of the Act, we also consider whether a 
national-security or homeland-security impact might exist on lands not 
owned or managed by DoD or DHS. In preparing this proposal, we have 
determined that the lands within the proposed designation of critical 
habitat for western fanshell and ``Ouachita'' fanshell are not owned or 
managed by the DoD or DHS. Therefore, we anticipate no impact on 
national security. However, if through the public comment period we 
receive credible information regarding impacts on national security or 
homeland security from designating particular areas as critical 
habitat, then as part of

[[Page 12364]]

developing the final designation of critical habitat, we will conduct a 
discretionary exclusion analysis to determine whether to exclude those 
areas under authority of section 4(b)(2) and our implementing 
regulations at 50 CFR 17.90.

Consideration of Other Relevant Impacts

    Under section 4(b)(2) of the Act, we consider any other relevant 
impacts, in addition to economic impacts and impacts on national 
security discussed above. Other relevant impacts may include, but are 
not limited to, impacts to Tribes, States, local governments, public 
health and safety, community interests, the environment (such as 
increased risk of wildfire or pest and invasive species management), 
Federal lands, and conservation plans, agreements, or partnerships. To 
identify other relevant impacts that may affect the exclusion analysis, 
we consider a number of factors, including whether there are permitted 
conservation plans covering the species in the area--such as HCPs, safe 
harbor agreements (SHAs), or candidate conservation agreements with 
assurances (CCAAs)--or whether there are non-permitted conservation 
agreements and partnerships that may be impaired by designation of, or 
exclusion from, critical habitat. In addition, we look at whether 
Tribal conservation plans or partnerships, Tribal resources, or 
government-to-government relationships of the United States with Tribal 
entities may be affected by the designation. We also consider any 
State, local, public-health, community-interest, environmental, or 
social impacts that might occur because of the designation.
    We have not identified any areas to consider for exclusion from 
critical habitat based on other relevant impacts. However, during the 
development of a final designation, we will consider all information 
currently available or received during the public comment period. If we 
receive credible information regarding the existence of a meaningful 
impact supporting a benefit of excluding any areas, we will undertake 
an exclusion analysis and determine whether those areas should be 
excluded from the final critical habitat designation under the 
authority of section 4(b)(2) and our implementing regulations at 50 CFR 
17.90. We may also exercise the discretion to undertake exclusion 
analyses for other areas as well, and we will describe all of our 
exclusion analyses as part of a final critical habitat determination.

Summary of Exclusions Considered Under 4(b)(2) of the Act

    At this time, we are not considering any exclusions from the 
proposed designation based on economic impacts, national security 
impacts, or other relevant impacts--such as partnerships, management, 
or protection afforded by cooperative management efforts--under section 
4(b)(2) of the Act. In preparing this proposal, we have determined that 
no HCPs or other management plans for western fanshell or ``Ouachita'' 
fanshell currently exist, and the proposed designation does not include 
any Tribal lands or trust resources. Therefore, we anticipate no impact 
on Tribal lands, partnerships, or HCPs from this proposed critical 
habitat designation and thus, as described above, we are not 
considering excluding any particular areas on the basis of the presence 
of conservation agreements or impacts to trust resources.
    During the development of a final designation, we will consider any 
additional information received through the public comment period 
regarding other relevant impacts to determine whether any specific 
areas should be excluded from the final critical habitat designation 
under authority of section 4(b)(2) and our implementing regulations at 
50 CFR 17.90.

Required Determinations

Clarity of the Rule

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (1) Be logically organized;
    (2) Use the active voice to address readers directly;
    (3) Use clear language rather than jargon;
    (4) Be divided into short sections and sentences; and
    (5) Use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in ADDRESSES. To better help us 
revise the rule, your comments should be as specific as possible. For 
example, you should tell us the numbers of the sections or paragraphs 
that are unclearly written, which sections or sentences are too long, 
the sections where you feel lists or tables would be useful, etc.

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs (OIRA) in the Office of Management and Budget will 
review all significant rules. OIRA has determined that this rule is not 
significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this proposed rule in a manner 
consistent with these requirements.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA; 5 U.S.C. 801 et seq.), whenever an agency is required to 
publish a notice of rulemaking for any proposed or final rule, it must 
prepare and make available for public comment a regulatory flexibility 
analysis that describes the effects of the rule on small entities (that 
is, small businesses, small organizations, and small government 
jurisdictions). However, no regulatory flexibility analysis is required 
if the head of the agency certifies the rule will not have a 
significant economic impact on a substantial number of small entities. 
The SBREFA amended the RFA to require Federal agencies to provide a 
certification statement of the factual basis for certifying that the 
rule will not have a significant economic impact on a substantial 
number of small entities.
    According to the Small Business Administration, small entities 
include small organizations such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less

[[Page 12365]]

than $27.5 million in annual business, special trade contractors doing 
less than $11.5 million in annual business, and agricultural businesses 
with annual sales less than $750,000. To determine whether potential 
economic impacts to these small entities are significant, we considered 
the types of activities that might trigger regulatory impacts under 
this designation as well as types of project modifications that may 
result. In general, the term ``significant economic impact'' is meant 
to apply to a typical small business firm's business operations.
    Under the RFA, as amended, and as understood in light of recent 
court decisions, Federal agencies are required to evaluate the 
potential incremental impacts of rulemaking on those entities directly 
regulated by the rulemaking itself; in other words, the RFA does not 
require agencies to evaluate the potential impacts to indirectly 
regulated entities. The regulatory mechanism through which critical 
habitat protections are realized is section 7 of the Act, which 
requires Federal agencies, in consultation with the Service, to ensure 
that any action authorized, funded, or carried out by the agency is not 
likely to destroy or adversely modify critical habitat. Therefore, 
under section 7, only Federal action agencies are directly subject to 
the specific regulatory requirement (avoiding destruction and adverse 
modification) imposed by critical habitat designation. Consequently, it 
is our position that only Federal action agencies would be directly 
regulated if we adopt the proposed critical habitat designations. The 
RFA does not require evaluation of the potential impacts to entities 
not directly regulated. Moreover, Federal agencies are not small 
entities. Therefore, because no small entities would be directly 
regulated by this rulemaking, the Service certifies that, if made final 
as proposed, the proposed critical habitat designations will not have a 
significant economic impact on a substantial number of small entities.
    In summary, we have considered whether the proposed designations 
would result in a significant economic impact on a substantial number 
of small entities. For the above reasons and based on currently 
available information, we certify that, if made final, the proposed 
critical habitat designations would not have a significant economic 
impact on a substantial number of small business entities. Therefore, 
an initial regulatory flexibility analysis is not required.

Energy Supply, Distribution, or Use--Executive Order 13211

    Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use) requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. Facilities that provide energy supply, distribution, 
or use occur within some units of the proposed critical habitat 
designations (for example, dams, pipelines) and may potentially be 
affected. We determined that consultations, technical assistance, and 
requests for species lists may be necessary in some instances. In our 
economic analysis, we did not find that this proposed critical habitat 
designation would significantly affect energy supplies, distribution, 
or use. Therefore, this action is not a significant energy action, and 
no Statement of Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following finding:
    (1) This proposed rule would not produce a Federal mandate. In 
general, a Federal mandate is a provision in legislation, statute, or 
regulation that would impose an enforceable duty upon State, local, or 
Tribal governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or Tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and Tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children work programs; Child Nutrition; Food Stamps; 
Social Services Block Grants; Vocational Rehabilitation State Grants; 
Foster Care, Adoption Assistance, and Independent Living; Family 
Support Welfare Services; and Child Support Enforcement. ``Federal 
private sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (2) We do not believe that this rule would significantly or 
uniquely affect small governments because it will not produce a Federal 
mandate of $100 million or greater in any year, that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. The designation of critical habitat imposes no obligations on 
State or local governments and, as such, a Small Government Agency Plan 
is not required.

Takings--Executive Order 12630

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating critical 
habitat for western fanshell and ``Ouachita'' fanshell in a takings 
implications assessment. The Act does not authorize the Service to 
regulate private actions on private lands or confiscate private 
property as a result of critical habitat designation. Designation of 
critical habitat does not affect land ownership, or establish any 
closures, or restrictions on use of or access to the designated areas. 
Furthermore, the designation of critical habitat does not affect 
landowner actions that do not require Federal

[[Page 12366]]

funding or permits, nor does it preclude development of habitat 
conservation programs or issuance of incidental take permits to permit 
actions that do require Federal funding or permits to go forward. 
However, Federal agencies are prohibited from carrying out, funding, or 
authorizing actions that would destroy or adversely modify critical 
habitat. A takings implications assessment has been completed for the 
proposed designation of critical habitat for western fanshell and 
``Ouachita'' fanshell, and it concludes that, if adopted, these 
designations of critical habitat would not pose significant takings 
implications for lands within or affected by the designations.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this proposed rule does 
not have significant Federalism effects. A federalism summary impact 
statement is not required. In keeping with Department of the Interior 
and Department of Commerce policy, we requested information from, and 
coordinated development of these proposed critical habitat designations 
with, appropriate State resource agencies. From a federalism 
perspective, the designation of critical habitat directly affects only 
the responsibilities of Federal agencies. The Act imposes no other 
duties with respect to critical habitat, either for States and local 
governments, or for anyone else. As a result, the proposed rule does 
not have substantial direct effects either on the States, or on the 
relationship between the national government and the States, or on the 
distribution of powers and responsibilities among the various levels of 
government. The proposed designations may have some benefit to these 
governments because the areas that contain the features essential to 
the conservation of the species are more clearly defined, and the 
physical or biological features of the habitat necessary for the 
conservation of the species are specifically identified. This 
information does not alter where and what federally sponsored 
activities may occur. However, it may assist State and local 
governments in long-range planning because they no longer have to wait 
for case-by-case section 7 consultations to occur.
    Where State and local governments require approval or authorization 
from a Federal agency for actions that may affect critical habitat, 
consultation under section 7(a)(2) of the Act would be required. While 
non-Federal entities that receive Federal funding, assistance, or 
permits, or that otherwise require approval or authorization from a 
Federal agency for an action, may be indirectly impacted by the 
designation of critical habitat, the legally binding duty to avoid 
destruction or adverse modification of critical habitat rests squarely 
on the Federal agency.

Civil Justice Reform--Executive Order 12988

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that the rule would not 
unduly burden the judicial system and that it meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We have proposed designating 
critical habitat in accordance with the provisions of the Act. To 
assist the public in understanding the habitat needs of the species, 
this proposed rule identifies the physical or biological features 
essential to the conservation of the species. The proposed areas of 
designated critical habitat are presented on maps, and the proposed 
rule provides several options for the interested public to obtain more 
detailed location information, if desired.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain information collection requirements, and 
a submission to the Office of Management and Budget (OMB) under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is not 
required. We may not conduct or sponsor and you are not required to 
respond to a collection of information unless it displays a currently 
valid OMB control number.

National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    It is our position that, outside the jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses pursuant to the National Environmental Policy 
Act (NEPA; 42 U.S.C. 4321 et seq.) in connection with regulations 
adopted pursuant to section 4(a) of the Act. We published a notice 
outlining our reasons for this determination in the Federal Register on 
October 25, 1983 (48 FR 49244). This position was upheld by the U.S. 
Court of Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 
F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)). However, 
when the range of the species includes States within the Tenth Circuit, 
such as that of the western fanshell, under the Tenth Circuit ruling in 
Catron County Board of Commissioners v. U.S. Fish and Wildlife Service, 
75 F.3d 1429 (10th Cir. 1996), we undertake a NEPA analysis for 
critical habitat designation. We invite the public to comment on the 
extent to which this proposed regulation may have a significant impact 
on the human environment, or fall within one of the categorical 
exclusions for actions that have no individual or cumulative effect on 
the quality of the human environment. We will complete our analysis, in 
compliance with NEPA, before finalizing this proposed rule.

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994 
(Government-to-Government Relations with Native American Tribal 
Governments; 59 FR 22951), Executive Order 13175 (Consultation and 
Coordination with Indian Tribal Governments), and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that Tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to Tribes. We have determined that no Tribal 
lands fall within the boundaries of the proposed critical habitat for 
the western fanshell and ``Ouachita'' fanshell, so no Tribal lands 
would be affected by the proposed designation.

References Cited

    A complete list of references cited in this rulemaking is available 
on the internet at http://www.regulations.gov and upon request from the 
Missouri Ecological Services Field Office for western fanshell and the 
Arkansas Ecological Services Field Office for ``Ouachita'' fanshell 
(see FOR FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this proposed rule are the staff members of 
the Fish and Wildlife Service's Species Assessment Team and the 
Missouri and Arkansas Ecological Services Field Offices.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and

[[Page 12367]]

recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--ENDANGERED AND THREATENED WILDLIFE AND PLANTS

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless 
otherwise noted.

0
2. Amend Sec.  17.11(h) by adding entries for ``Fanshell, `Ouachita''' 
and ``Fanshell, western'' to the List of Endangered and Threatened 
Wildlife in alphabetical order under CLAMS to read as follows:


Sec.  17.11   Endangered and threatened wildlife.

* * * * *
    (h) * * *

----------------------------------------------------------------------------------------------------------------
                                                                                          Listing citations and
           Common name              Scientific name      Where listed         Status         applicable rules
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
              CLAMS
 
                                                  * * * * * * *
Fanshell, ``Ouachita''..........  Cyprogenia cf.      Wherever found....  T              [Federal Register
                                   aberti.                                                citation when
                                                                                          published as a final
                                                                                          rule]; 50 CFR
                                                                                          17.45(e); \4d\ 50 CFR
                                                                                          17.95(f).\CH\
Fanshell, western...............  Cyprogenia aberti.  Wherever found....  T              [Federal Register
                                                                                          citation when
                                                                                          published as a final
                                                                                          rule]; 50 CFR
                                                                                          17.45(e); \4d\ 50 CFR
                                                                                          17.95(f).\CH\
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

0
3. Add Sec.  17.45 to read as follows:


Sec.  17.45   Special rules--snails and clams.

    (a)-(d) [Reserved]
    (e) ``Ouachita'' fanshell (Cyprogenia cf. aberti) and western 
fanshell (Cyprogenia aberti).
    (1) Prohibitions. The following prohibitions that apply to 
endangered wildlife also apply to the ``Ouachita'' fanshell and western 
fanshell. Except as provided under paragraph (e)(2) of this section and 
Sec. Sec.  17.4 and 17.5, it is unlawful for any person subject to the 
jurisdiction of the United States to commit, to attempt to commit, to 
solicit another to commit, or cause to be committed, any of the 
following acts in regard to this species:
    (i) Import or export, as set forth at Sec.  17.21(b) for endangered 
wildlife.
    (ii) Take, as set forth at Sec.  17.21(c)(1) for endangered 
wildlife.
    (iii) Possession and other acts with unlawfully taken specimens, as 
set forth at Sec.  17.21(d)(1) for endangered wildlife.
    (iv) Interstate or foreign commerce in the course of commercial 
activity, as set forth at Sec.  17.21(e) for endangered wildlife.
    (v) Sale or offer for sale, as set forth at Sec.  17.21(f) for 
endangered wildlife.
    (2) Exceptions from prohibitions. In regard to this species, you 
may:
    (i) Conduct activities as authorized by a permit under Sec.  17.32.
    (ii) Take, as set forth at Sec.  17.21(c)(2) through (c)(4) for 
endangered wildlife.
    (iii) Take, as set forth at Sec.  17.31(b).
    (iv) Take incidental to an otherwise lawful activity caused by:
    (A) Channel and bank restoration projects for creation of natural, 
physically stable, ecologically functioning streams, taking into 
consideration connectivity with floodplain and groundwater aquifers. 
These projects can be accomplished using a variety of methods, but the 
desired outcome is a natural channel with low shear stress (force of 
water moving against the channel); bank heights that enable 
reconnection to the floodplain; connection of surface and groundwater 
systems, resulting in perennial flows in the channel; riffles and pools 
comprised of existing soil, rock, and wood instead of large imported 
materials; low compaction of soils within adjacent riparian areas; and 
inclusion of riparian wetlands. For bank stabilization projects that 
use bioengineering methods to replace preexisting, bare, eroding stream 
banks with vegetated, stable stream banks, thereby reducing bank 
erosion and instream sedimentation and improving habitat conditions for 
the species, stream banks may be stabilized using native species live 
stakes (live, vegetative cuttings inserted or tamped into the ground in 
a manner that allows the stake to take root and grow), native species 
live fascines (live branch cuttings, usually willows, bound together 
into long, cigar-shaped bundles), or native species brush layering 
(cuttings or branches of easily rooted tree species layered between 
successive lifts of soil fill). Bank restoration projects require 
planting appropriate native vegetation, including woody species 
appropriate for the region and habitat. These projects will not include 
the sole use of quarried rock (rip-rap) or the use of rock baskets or 
gabion structures. To qualify under this exception, restoration 
projects must include the following:
    (1) Surveys to determine presence of ``Ouachita'' fanshell and 
western fanshell prior to the commencement of restoration actions;
    (2) If either mussel is present, coordination with the Service's 
local Ecological Services field office for relocation of ``Ouachita'' 
fanshell and western fanshell mussels to suitable habitat outside of 
the project footprint prior to project implementation; and
    (3) If relocation of mussels occurs, monitoring of relocated 
mussels post-implementation of restoration activities.
    (B) Silviculture practices and forest management activities that 
use State-approved best management practices to protect water and 
sediment quality and stream and riparian habitat.
    (C) Transportation projects that avoid or do not include instream 
disturbance in waters occupied by the species.
    (v) Possess and engage in other acts with unlawfully taken 
wildlife, as set forth at Sec.  17.21(d)(2) for endangered wildlife.
0
4. Amend Sec.  17.95(f) by adding entries for `` `Ouachita' Fanshell 
(Cyprogenia cf. aberti)'' and ``Western Fanshell (Cyprogenia aberti)'' 
immediately following the entry for ``Appalachian Elktoe (Alasmidonta 
raveneliana)'', to read as follows:

[[Page 12368]]

Sec.  17.95   Critical habitat--fish and wildlife.

* * * * *
    (f) Clams and Snails.
* * * * *
``Ouachita'' Fanshell (Cyprogenia cf. aberti)
    (1) Critical habitat units are depicted for Ashley, Bradley, Clark, 
Cleveland, Dallas, Drew, Grant, Montgomery, Nevada, Ouachita, Polk, and 
Saline Counties, Arkansas, on the maps in this entry.
    (2) Within these areas, the physical or biological features 
essential to the conservation of ``Ouachita'' fanshell consist of the 
following components:
    (i) 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 is found and to maintain stream connectivity, specifically 
providing for the exchange of nutrients and sediment for maintenance of 
the mussel's 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.
    (ii) Suitable substrates and connected instream habitats, 
characterized by geomorphically stable stream channels and banks (that 
is, channels that maintain lateral dimensions, longitudinal profiles, 
and sinuosity patterns over time without an aggrading or degrading bed 
elevation) with habitats that support a diversity of freshwater mussel 
and native fish (such as stable riffle-run-pool habitats that provide 
flow refuges consisting of silt-free gravel and coarse sand 
substrates).
    (iii) 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.
    (iv) The presence and abundance of fish hosts necessary for 
recruitment of the ``Ouachita'' fanshell, including logperch (Percina 
caprodes), slenderhead darter (Percina phoxocephala), or orangebelly 
darter (Etheostoma radiosum).
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of the rule.
    (4) Data layers defining map units were created by overlaying 
Natural Heritage Element Occurrence data and U.S. Geological Survey 
hydrologic data for stream reaches using ESRI ArcGIS mapping software. 
Critical habitat unit upstream and downstream limits were delineated at 
the nearest road crossing or stream confluence of each occupied reach. 
Data layers defining map units were created with U.S. Geological Survey 
National Hydrography Dataset (NHD) Medium Flowline data. ArcGIS was 
also used to calculate river kilometers and river miles from the NHD 
dataset, and it was used to determine longitude and latitude 
coordinates in decimal degrees. The projection used in mapping and 
calculating distances and locations within the units was EPSG:4269-
NAD83 Geographic. Natural Heritage program and State mussel database 
species presence data from Arkansas were used to select specific river 
and stream segments for inclusion in the critical habitat layer. The 
maps in this entry, as modified by any accompanying regulatory text, 
establish the boundaries of the critical habitat designation. The 
coordinates or plot points or both on which each map is based are 
available to the public at the Service's internet site at https://www.fws.gov/southeast/, at http://www.regulations.gov at Docket No. 
FWS-R3-ES-2021-0061, and at the field office responsible for this 
designation. You may obtain field office location information by 
contacting one of the Service regional offices, the addresses of which 
are listed at 50 CFR 2.2.
    (5) Note: Index map follows:
BILLING CODE 4333-15-P

[[Page 12369]]

[GRAPHIC] [TIFF OMITTED] TP03MR22.003

    (6) Unit OF 1: Little Missouri River; Clark, Nevada, and Ouachita 
Counties, Arkansas.
    (i) Unit OF 1 consists of 22.9 river miles (mi) (36.9 kilometers 
(km)) of Little Missouri River in Clark, Nevada, and Ouachita Counties, 
Arkansas, from the mouth of Garland Creek northeast of Prescott, Nevada 
County, downstream to the mouth of Horse Branch north of Red Hill, 
Ouachita County, and includes the river channel up to the ordinary high 
water mark. Approximately 100 percent of the riparian lands that border 
the unit are in private ownership.
    (ii) Map of Unit OF 1 follows:

[[Page 12370]]

[GRAPHIC] [TIFF OMITTED] TP03MR22.004

    (7) Unit OF 2: Ouachita Headwaters; Montgomery and Polk Counties, 
Arkansas.
    (i) Unit OF 2 consists of 32.7 river mi (52.6 km) of Ouachita River 
in Montgomery and Polk Counties, Arkansas, from the County Road 67 
crossing south of Cherry Hill, Polk County, downstream to the U.S. 
Route 270 crossing southeast of Pencil Bluff, Montgomery County, and 
includes the river channel up to the ordinary high water mark. Riparian 
lands that border the unit include approximately 29.9 river mi (48.1 
km; 91 percent) in private ownership and 2.8 river mi (4.5 km; 9 
percent) in public (Federal) ownership. The public ownership in this 
unit is Federal land associated with the U.S. Forest Service's Ouachita 
National Forest.
    (ii) Map of Unit OF 2 follows:

[[Page 12371]]

[GRAPHIC] [TIFF OMITTED] TP03MR22.005

    (8) Unit OF 3: Ouachita River; Clark, Dallas, and Ouachita 
Counties, Arkansas.
    (i) Unit OF 3 consists of 53.5 river mi (86.1 km) of Ouachita River 
in Clark, Dallas, and Ouachita Counties, Arkansas, from the mouth of 
L'Eau Frais Creek southeast of Arkadelphia, Clark County, downstream to 
the mouth of Ecore Fabre Bayou north of Camden, Ouachita County, and 
includes the river channel up to the ordinary high water mark. 
Approximately 100 percent of the riparian lands that border the unit 
are in private ownership. There is a Wetlands Reserve Program easement 
within the unit.
    (ii) Map of Unit OF 3 follows:

[[Page 12372]]

[GRAPHIC] [TIFF OMITTED] TP03MR22.006

    (9) Unit OF 4: Saline River; Ashley, Bradley, Cleveland, Dallas, 
Drew, Grant, and Saline Counties, Arkansas.
    (i) Unit OF 4 consists of 185.3 river mi (298.2 km) of Saline River 
in Ashley, Bradley, Cleveland, Dallas, Drew, Grant, and Saline 
Counties, Arkansas, from the mouth of North Fork Saline River north of 
Benton, Saline County, downstream to the mouth of Mill Creek north of 
Stillions, Ashley County, and includes the river channel up to the 
ordinary high water mark. Approximately 100 percent of the riparian 
lands that border the unit are in private ownership and less than 1 
percent is in public ownership. The public ownership in this unit is 
State-owned land associated with Jenkins Ferry State Park.
    (ii) Map of Unit OF 4 follows:

[[Page 12373]]

[GRAPHIC] [TIFF OMITTED] TP03MR22.007

Western Fanshell (Cyprogenia aberti)
    (1) Critical habitat units are depicted for Cleburne, Fulton, 
Independence, Jackson, Lawrence, Randolph, Sharp, Stone, and Van Buren 
Counties, Arkansas; Cherokee, Greenwood, Montgomery, and Wilson 
Counties, Kansas; and Butler, Jasper, Madison, and Wayne Counties, 
Missouri, on the maps in this entry.
    (2) Within these areas, the physical or biological features 
essential to the conservation of western fanshell consist of the 
following components:
    (i) 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 is found and to maintain stream connectivity, specifically 
providing for the exchange of nutrients and sediment for maintenance of 
the mussel's and fish hosts' habitat and food availability, maintenance 
of spawning habitat for native host fishes, and the ability for newly 
transformed juveniles to settle

[[Page 12374]]

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.
    (ii) Suitable substrates and connected instream habitats, 
characterized by geomorphically stable stream channels and banks (that 
is, channels that maintain lateral dimensions, longitudinal profiles, 
and sinuosity patterns over time without an aggrading or degrading bed 
elevation) with habitats that support a diversity of freshwater mussel 
and native fish (such as stable riffle-run-pool habitats that provide 
flow refuges consisting of silt-free gravel and coarse sand 
substrates).
    (iii) 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.
    (iv) The presence and abundance of fish hosts necessary for 
recruitment of the western fanshell, including logperch (Percina 
caprodes), rainbow darter (Etheostoma caeruleum), slenderhead darter 
(Percina phoxocephala), fantail darter (Etheostoma flabellare), or 
orangebelly darter (Etheostoma radiosum).
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of the rule.
    (4) Data layers defining map units were created by overlaying 
Natural Heritage Element Occurrence data and U.S. Geological Survey 
hydrologic data for stream reaches using ESRI ArcGIS mapping software. 
Critical habitat unit upstream and downstream limits were delineated at 
the nearest road crossing or stream confluence of each occupied reach. 
Data layers defining map units were created with U.S. Geological Survey 
National Hydrography Dataset (NHD) Medium Flowline data. ArcGIS was 
also used to calculate river kilometers and river miles from the NHD 
dataset, and it was used to determine longitude and latitude 
coordinates in decimal degrees. The projection used in mapping and 
calculating distances and locations within the units was EPSG:4269-
NAD83 Geographic. Natural Heritage program and State mussel database 
species presence data from Arkansas, Kansas, and Missouri were used to 
select specific river and stream segments for inclusion in the critical 
habitat layer. The maps in this entry, as modified by any accompanying 
regulatory text, establish the boundaries of the critical habitat 
designation. The coordinates or plot points or both on which each map 
is based are available to the public at the Service's internet site at 
https://www.fws.gov/midwest/, at http://www.regulations.gov at Docket 
No. FWS-R3-ES-2021-0061, and at the field office responsible for this 
designation. You may obtain field office location information by 
contacting one of the Service regional offices, the addresses of which 
are listed at 50 CFR 2.2.
    (5) Note: Index map follows:

[[Page 12375]]

[GRAPHIC] [TIFF OMITTED] TP03MR22.008

    (6) Unit WF 1: Upper Black River; Butler and Wayne Counties, 
Missouri.
    (i) Unit WF 1 consists of 64.7 river miles (mi) (104.1 kilometers 
(km)) of Black River in Butler and Wayne Counties, Missouri, from 
Clearwater Dam southwest of Piedmont, Wayne County, extending 
downstream to Butler County Road 658 crossing southeast of Poplar 
Bluff, Butler County, and includes the river channel up to the ordinary 
high water mark. Riparian lands that border the unit include 
approximately 51 river mi (82.1 km; 79 percent) in private ownership 
and 13.7 river mi (22 km; 21 percent) in public (Federal or State) 
ownership. Approximately 2.7 miles of the public ownership in this unit 
are State lands associated with Missouri Department of Conservation's 
(MDC) Bradley A. Hammer Memorial Conservation Area, Dan River Access, 
Hilliard Access, and Stephen J. Sun Conservation Area. Eleven miles are 
Federal land associated with the U.S. Forest Service's (USFS) Mark 
Twain National Forest and U.S.

[[Page 12376]]

Army Corps of Engineers (USACE) Clearwater Recreation Area.
    (ii) Map of Unit WF 1 follows:
    [GRAPHIC] [TIFF OMITTED] TP03MR22.009
    
    (7) Unit WF 2: Lower Black/Strawberry River; Independence, Jackson, 
Lawrence, and Sharp Counties, Arkansas.
    (i) Unit WF 2 consists of 111.3 river mi (179.1 km) of Black River 
and Strawberry River in Independence, Jackson, Lawrence, and Sharp 
Counties in Arkansas, and includes the river channel up to the ordinary 
high water mark. Black River makes up 54.6 river mi (87.9 km) from the 
mouth of Spring River northeast of Black Rock, extending downstream to 
the mouth of Strawberry River northeast of Dowdy, Independence County. 
Strawberry River makes up 56.7 river mi (91.2 km) from the mouth of 
Lave Creek north of

[[Page 12377]]

Evening Shade, Sharp County, extending downstream to the confluence 
with Black River northeast of Dowdy, Independence County. 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.
    (ii) Map of Unit WF 2 follows:
    [GRAPHIC] [TIFF OMITTED] TP03MR22.010
    
    (8) Unit WF 3: Fall River; Greenwood and Wilson Counties, Kansas.
    (i) Unit WF 3 consists of 45.5 river mi (73.2 km) of Fall River in 
Greenwood and Wilson Counties, Kansas, from the Greenwood County Road 
33/Merchants

[[Page 12378]]

Avenue crossing at Fall River, Greenwood County, extending downstream 
to the U.S. Route 400 crossing west of Neodesha, Wilson County, and 
includes the river channel up to the ordinary high water mark. 
Approximately 100 percent of the riparian lands that border the unit 
are in private ownership.
    (ii) Map of Unit WF 3 follows:
    [GRAPHIC] [TIFF OMITTED] TP03MR22.011
    
    (9) Unit WF 4: Middle Fork Little Red River; Cleburne, Stone, and 
Van Buren Counties, Arkansas.
    (i) Unit WF 4 consists of 34.1 river mi (54.8 km) of the Middle 
Fork Little Red River in Cleburne, Stone, and Van Buren Counties, 
Arkansas, from the mouth of Linn Creek east of Dennard, Van Buren 
County, extending downstream to the mouth of Wild Goose Creek north of 
Fairfield Bay, Cleburne

[[Page 12379]]

and Van Buren counties, and includes the river channel up to the 
ordinary high water mark. Riparian lands that border the unit include 
approximately 30.6 river mi (49.2 km; 90 percent) in private ownership 
and 3.5 river mi (5.6 km; 10 percent) in public (Federal) ownership. 
All of the public land ownership in this unit is Federal land 
associated with the USACE's Greers Ferry Recreation Area.
    (ii) Map of Unit WF 4 follows:
    [GRAPHIC] [TIFF OMITTED] TP03MR22.012
    
    (10) Unit WF 5: St. Francis River; Madison and Wayne Counties, 
Missouri.
    (i) Unit WF 5 consists of 49.3 river mi (79.3 km) of St. Francis 
River in Madison and Wayne Counties, Missouri, extending from the mouth 
of Wachita Creek west of Fredericktown, Madison County, downstream to 
the mouth of Big Creek northwest of Silva, Wayne County, and includes 
the river channel up to the ordinary high water mark. Riparian lands 
that border the unit

[[Page 12380]]

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.
    (ii) Map of Unit WF 5 follows:
    [GRAPHIC] [TIFF OMITTED] TP03MR22.013
    
    (11) Unit WF 6: South Fork Spring River; Fulton County, Arkansas.
    (i) 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

[[Page 12381]]

northwest of Cherokee Village, Fulton and Sharp Counties, and includes 
the river channel up to the ordinary high water mark. Approximately 100 
percent of the riparian lands that border the unit are in private 
ownership.
    (ii) Map of Unit WF 6 follows:
    [GRAPHIC] [TIFF OMITTED] TP03MR22.014
    
    (12) Unit WF 7: Spring River (AR); Lawrence and Randolph Counties, 
Arkansas.
    (i) Unit WF 7 consists of 14.2 river mi (22.9 km) of Spring River 
in Lawrence and Randolph Counties, Arkansas, from the mouth of Wells 
Creek at Ravenden, extending downstream to the mouth of Stennitt Creek 
southeast of Imboden, Lawrence County, and includes the river channel 
up to the ordinary high water mark. Approximately 100 percent of the 
riparian lands that border the unit are in private ownership.
    (ii) Map of Unit WF 7 follows:

[[Page 12382]]

[GRAPHIC] [TIFF OMITTED] TP03MR22.015

    (13) Unit WF 8: Spring River (MO/KS); Jasper County, Missouri, and 
Cherokee County, Kansas.
    (i) Unit WF 8 consists of 15 river mi (24.1 km) of Spring River in 
Jasper County, Missouri, and Cherokee County, Kansas, from the mouth of 
North Fork Spring River east of Asbury, Jasper County, Missouri, 
extending downstream through Cherokee County, Kansas, to the mouth of 
Center Creek west of Carl Junction, Jasper County, Missouri, and 
includes the river channel up to the ordinary high water mark. Riparian 
lands that border the unit include approximately 14.0 river mi (22.5 
km; 94 percent) in private ownership and 1.0 river mi (1.6 km; 6 
percent) in public (State) ownership. The public ownership of this unit 
is State land associated with the Kansas Department of Wildlife, Parks 
and Tourism's Spring River Wildlife Area.
    (ii) Map of Unit WF 8 follows:

[[Page 12383]]

[GRAPHIC] [TIFF OMITTED] TP03MR22.016

    (14) Unit WF 9: Verdigris River; Montgomery and Wilson Counties, 
Kansas.
    (i) Unit WF 9 consists of 12.4 river mi (20 km) of Verdigris River 
in Montgomery and Wilson Counties, Kansas, from the mouth of Fall River 
south of Neodesha, Wilson County, extending downstream to the mouth of 
Choteau Creek northeast of Independence, Montgomery County, and 
includes the river channel up to the ordinary high water mark. 
Approximately 100 percent of the riparian lands that border the unit 
are in private ownership.
    (ii) Map of Unit WF 9 follows:

[[Page 12384]]

[GRAPHIC] [TIFF OMITTED] TP03MR22.017

* * * * *

Martha Williams,
Principal Deputy Director, Exercising the Delegated Authority of the 
Director, U.S. Fish and Wildlife Service.
[FR Doc. 2022-02994 Filed 3-2-22; 8:45 am]
BILLING CODE 4333-15-C