73330 Federal Register / Vol. 89, No. 175 / Tuesday, September 10, 2024 / Proposed Rules 

the TCPA and whether it may 

inadvertently encumber technologies 

that do not fall within the TCPA. Next, 

the Commission seeks comment on 

whether there are ways in which the 

telecommunications industry might 

assist to ensure that calls made by 

individuals with disabilities under the 

proposed exemption do not run afoul of 

the condition that such calls not be 

charged to the called party. The 

Commission seeks comment on 

alternative ways to accomplish this 

objective including voluntary efforts by 

industry or equipment manufacturers. 

57. The Commission expects to more 

fully consider the economic impact and 

alternatives for small entities following 

review of comments and costs and 

benefits analysis filed in response to the 

NPRM. The Commission’s evaluation of 

this information will shape the final 

alternatives it considers, the final 

conclusions it reaches, and any final 

actions it ultimately takes in this 

proceeding to minimize any significant 

economic impact that may occur on 

small entities. 

Federal Rules That May Duplicate, 

Overlap, or Conflict With the Proposed 

Rules 

58. None. 

Ordering Clauses 

59. Accordingly, it is ordered, 

pursuant to sections 1–4, 225, 227, 255, 

and 403 of the Communications Act of 

1934, as amended, 47 U.S.C. 151–154, 

227, 255, and 403 that the Notice of 

Proposed Rulemaking and Notice of 

Inquiry is hereby Adopted. 

60. It is further ordered that, pursuant 

to applicable procedures set forth in 

§§ 1.415 and 1.419 of the Commission’s 

Rules, 47 CFR 1.415, 1.419, interested 

parties may file comments on the Notice 

of Proposed Rulemaking and Notice of 

Inquiry on or before 30 days after 

publication in the Federal Register, and 

reply comments on or before 45 days 

after publication in the Federal 

Register. 

61. It is further ordered that the 

Commission’s Office of Secretary, shall 

send a copy of the Notice of Proposed 

Rulemaking, including the Initial 

Regulatory Flexibility Analyses, to the 

Chief Counsel for Advocacy of the Small 

Business Administration. 

List of Subjects in 47 CFR Part 64 

Communications common carriers, 

Communications equipment, 

Individuals with disabilities, Reporting 

and recordkeeping requirements, 

Telecommunications, Telephone. 

Federal Communications Commission. 

Marlene Dortch, 

Secretary. 

Proposed Rules 

For the reasons discussed above, the 

Federal Communications Commission 

proposes to amend 47 CFR part 64 as 

follows: 

PART 64—MISCELLANEOUS RULES 

RELATING TO COMMON CARRIERS 

■ 1. The authority citation for part 64 

continues to read as follows: 

Authority: 47 U.S.C. 151, 152, 154, 201, 

202, 217, 218, 220, 222, 225, 226, 227, 227b, 

228, 251(a), 251(e), 254(k), 255, 262, 276, 

403(b)(2)(B), (c), 616, 620, 716, 1401–1473, 

unless otherwise noted; Pub. L. 115–141, Div. 

P, sec. 503, 132 Stat. 348, 1091. 

Subpart L—Restrictions on 

Telemarketing, Telephone Solicitation, 

and Facsimile Advertising 

■ 2. Amend § 64.1200 by: 

■ a. Removing the word ‘‘or’’ at the end 

of paragraph (a)(3)(iv); 

■ b. Removing the period at the end of 

paragraph (a)(3)(v) and adding ‘‘; or’’ in 

its place; 

■ c. Adding paragraphs (a)(3)(vi), 

(a)(9)(v), and (a)(13); 

■ d. Revising paragraph (b)(1); 

■ e. Removing the word ‘‘and’’ at the 

end of paragraph (f)(9)(i)(A); 

■ f. Removing the period at the end of 

paragraph (f)(9)(i)(B) and adding ‘‘; and’’ 

in its place; and 

■ g. Adding paragraphs (f)(9)(i)(C) and 

(f)(20). 

The additions and revisions read as 

follows: 

§ 64.1200 Delivery restrictions. 

(a) * * * 

(3) * * * 

(vi) Is made by an individual with a 

speech or hearing disability using any 

technology, including artificial 

intelligence technologies, designed to 

facilitate the ability of such individuals 

to communicate using an artificial or 

prerecorded voice over the telephone 

and does not include or introduce an 

advertisement or constitute 

telemarketing. 

* * * * * 

(9) * * * 

(v) Calls made by individuals with 

speech or hearing disabilities using any 

technology, including artificial 

intelligence (AI) technologies, designed 

to facilitate the ability of such 

individuals to communicate using an 

artificial or prerecorded voice over the 

telephone, provided that the calls must 

not include any telemarketing or 

advertising content. 

* * * * * 

(13) Callers making an AI-generated 

call subject to the requirements 

contained in paragraphs (a)(1) through 

(3) of this section must provide clear 

and conspicuous disclosure that they 

intend to use AI-generated voice or text 

content on such calls when obtaining 

the prior express consent of the called 

party. 

(b) * * * 

(1) At the beginning of the message, 

state clearly the identity of the business, 

individual, or other entity that is 

responsible for initiating the call, and 

disclose whether the call uses an 

artificial intelligence-generated voice. If 

a business is responsible for initiating 

the call, the name under which the 

entity is registered to conduct business 

with the State Corporation Commission 

(or comparable regulatory authority) 

must be stated; 

* * * * * 

(f) * * * 

(9) * * * 

(i) * * * 

(C) For AI-generated calls, that the 

caller intends to make use of AItechnology to generate voice or text 

content and the person signing the 

agreement specifically agrees to receive 

calls that include AI-generated content. 

* * * * * 

(20) The term AI-generated call means 

a call that uses any technology or tool 

to generate an artificial or prerecorded 

voice or a text using computational 

technology or other machine learning, 

including predictive algorithms, and 

large language models, to process 

natural language and produce voice or 

text content to communicate with a 

called party over an outbound telephone 

call. 

* * * * * 

[FR Doc. 2024–19028 Filed 9–9–24; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R4–ES–2024–0130; 

FXES111109FEDR–245–FF09E21000] 

RIN 1018–BH45 

Endangered and Threatened Wildlife 

and Plants; Endangered Species 

Status for the Alabama Hickorynut and 

Threatened Status With Section 4(d) 

Rule for Obovaria cf. unicolor 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 


khammond on DSKJM1Z7X2PROD with PROPOSALS
Federal Register / Vol. 89, No. 175 / Tuesday, September 10, 2024 / Proposed Rules 73331 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

list the Alabama hickorynut (Obovaria 

unicolor) as an endangered species and 

the undescribed Obovaria cf. unicolor as 

a threatened species under the 

Endangered Species Act of 1973 (Act), 

as amended. Both species are freshwater 

mussels. This document also serves as 

our 12-month finding on a petition to 

list the Alabama hickorynut. For 

Obovaria cf. unicolor, we also propose 

a rule issued under section 4(d) of the 

Act to provide for the conservation of 

the species. If we adopt this rule as 

proposed, it would apply the 

protections of the Act to these species. 

We find that designation of critical 

habitat for both the Alabama hickorynut 

and Obovaria cf. unicolor is prudent but 

not determinable at this time. 

DATES: We will accept comments 

received or postmarked on or before 

November 12, 2024. 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 October 25, 2024. 

ADDRESSES: You may submit comments 

by one of the following methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: https://

www.regulations.gov. In the Search box, 

enter FWS–R4–ES–2024–0130, which is 

the docket number for this rulemaking. 

Then, click on the Search button. On the 

resulting page, in the panel on the left 

side of the screen, under the Document 

Type heading, check the Proposed Rule 

box to locate this document. You may 

submit a comment by clicking on 

‘‘Comment.’’ 

(2) By hard copy: Submit by U.S. mail 

to: Public Comments Processing, Attn: 

FWS–R4–ES–2024–0130, U.S. Fish and 

Wildlife Service, MS: PRB/3W, 5275 

Leesburg Pike, Falls Church, VA 22041– 

3803. 

We request that you send comments 

only by the methods described above. 

We will post all comments on https:// 

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see 

Information Requested, below, for more 

information). 

Availability of supporting materials: 

Supporting materials, such as the 

species status assessment report, are 

available at https://www.regulations.gov 

under Docket No. FWS–R4–ES–2024– 

0130. 

FOR FURTHER INFORMATION CONTACT: Bill 

Pearson, Field Supervisor, U.S. Fish and 

Wildlife Service, Alabama Ecological 

Services Field Office, 1208 Main Street, 

Daphne, AL 36526; telephone 251–441– 

5870. Individuals in the United States 

who are deaf, deafblind, hard of hearing, 

or have a speech disability may dial 711 

(TTY, TDD, or TeleBraille) to access 

telecommunications relay services. 

Individuals outside the United States 

should use the relay services offered 

within their country to make 

international calls to the point-ofcontact in the United States. Please see 

Docket No. FWS–R4–ES–2024–0130 on 

https://www.regulations.gov for a 

document that summarizes this 

rulemaking. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

Why we need to publish a rule. Under 

the Act (16 U.S.C. 1531 et seq.), a 

species warrants listing if it meets the 

definition of an endangered (in danger 

of extinction throughout all or a 

significant portion of its range) or a 

threatened species (likely to become an 

endangered species within the 

foreseeable future throughout all or a 

significant portion of its range). If we 

determine that a species warrants 

listing, we must list the species 

promptly and designate the species’ 

critical habitat to the maximum extent 

prudent and determinable. We have 

determined that the Alabama 

hickorynut meets the Act’s definition of 

an endangered species and that 

Obovaria cf. unicolor meets the Act’s 

definition of a threatened species; 

therefore, we are proposing to list them 

accordingly. Listing a species as an 

endangered species or a threatened 

species can be completed only by 

issuing a rule through the 

Administrative Procedure Act 

rulemaking process (5 U.S.C. 551 et 

seq.). 

What this document does. We 

propose to list the Alabama hickorynut 

as an endangered species, and we 

propose to list Obovaria cf. unicolor as 

a threatened species with a rule issued 

under section 4(d) of the Act (a ‘‘4(d) 

rule’’). 

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 the Alabama 

hickorynut is endangered due to the 

following threats: sedimentation, altered 

flow regimes, point and nonpoint source 

pollution, climate change, direct and 

indirect impacts of development and 

anthropogenic disturbances, and sea 

level rise associated with climate 

change. We have further determined 

that Obovaria cf. unicolor is threatened 

due to the following threats: 

sedimentation, altered flow regimes, 

point and nonpoint source pollution, 

climate change, direct and indirect 

impacts of development and 

anthropogenic disturbances, and sea 

level rise associated with climate 

change. 

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 and the 

locations of any additional populations 

of these species; 

(d) Historical and current population 

levels, and current and projected trends; 

and 

(e) Past and ongoing conservation 

measures for these species, their 

habitats, or both. 

(2) Threats and conservation actions 

affecting these species, including: 

(a) Factors that may be affecting 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; 

(b) Biological, commercial trade, or 

other relevant data concerning any 

threats (or lack thereof) to these species; 

and 

(c) Existing regulations or 

conservation actions that may be 

addressing threats to these species. 

(3) Additional information concerning 

the historical and current status of these 

species. 


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73332 Federal Register / Vol. 89, No. 175 / Tuesday, September 10, 2024 / Proposed Rules 

(4) Information to assist with applying 

or issuing protective regulations under 

section 4(d) of the Act that may be 

necessary and advisable to provide for 

the conservation of the Obovaria cf. 

unicolor. In particular, we seek 

information concerning: 

(a) The extent to which we should 

include any of the Act’s section 9 

prohibitions in the 4(d) rule; and 

(b) Whether we should consider any 

additional or different exceptions from 

the prohibitions in the 4(d) rule. 

Please include sufficient information 

with your submission (such as scientific 

journal articles or other publications) to 

allow us to verify any scientific or 

commercial information you include. 

Please note that submissions merely 

stating support for, or opposition to, the 

action under consideration without 

providing supporting information, 

although noted, do not provide 

substantial information necessary to 

support a determination. Section 

4(b)(1)(A) of the Act directs that 

determinations as to whether any 

species is an endangered or a threatened 

species must be made solely on the 

basis of the best scientific and 

commercial data available. 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in 

ADDRESSES. We request that you send 

comments only by the methods 

described in ADDRESSES. 

If you submit information via https:// 

www.regulations.gov, your entire 

submission—including any personal 

identifying information—will be posted 

on the website. If your submission is 

made via a hardcopy that includes 

personal identifying information, you 

may request at the top of your document 

that we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

We will post all hardcopy submissions 

on https://www.regulations.gov. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection 

on https://www.regulations.gov. 

Our final determinations may differ 

from this proposal because we will 

consider all comments we receive 

during the comment period as well as 

any information that may become 

available after this proposal. Based on 

the new information we receive (and, if 

relevant, any comments on that new 

information), we may conclude that one 

or both species are a different status, or 

we may conclude that one or both 

species do not warrant listing as either 

an endangered species or a threatened 

species. In addition, for Obovaria cf. 

unicolor, we may change the parameters 

of the prohibitions or the exceptions to 

those prohibitions in the protective 

regulations under section 4(d) of the Act 

if we conclude it is appropriate in light 

of comments and new information 

received. For example, we may expand 

the prohibitions if we conclude that the 

protective regulation as a whole, 

including those additional prohibitions, 

is necessary and advisable to provide for 

the conservation of the species. 

Conversely, we may establish additional 

or different exceptions to the 

prohibitions in the final rule if we 

conclude that the activities would 

facilitate or are compatible with the 

conservation and recovery of the 

species. In our final rule, we will clearly 

explain our rationale and the basis for 

our final decisions, including why we 

made changes, if any, that differ from 

this proposal. 

Public Hearing 

Section 4(b)(5) of the Act provides for 

a public hearing on this proposal, if 

requested. Requests must be received by 

the date specified in DATES. Such 

requests must be sent to the address 

shown in FOR FURTHER INFORMATION

CONTACT. We will schedule a public 

hearing on this proposal, if requested, 

and announce the date, time, and place 

of the hearing, as well as how to obtain 

reasonable accommodations, in the 

Federal Register and local newspapers 

at least 15 days before the hearing. We 

may hold the public hearing in person 

or virtually via webinar. We will 

announce any public hearing on our 

website, in addition to in the Federal 

Register. The use of virtual public 

hearings is consistent with our 

regulations at 50 CFR 424.16(c)(3). 

Previous Federal Actions 

In April 2010, the Alabama 

hickorynut was included in a petition 

from the Center for Biological Diversity 

and others (CBD 2010, entire) requesting 

that the Service list 404 aquatic, 

riparian, and wetland species as 

endangered or threatened species under 

the Act. In response to the petition, on 

September 27, 2011, the Service 

published in the Federal Register (76 

FR 59836) a partial 90-day finding in 

which we announced our finding that 

the petition contained substantial 

information indicating that listing may 

be warranted for numerous species, 

including the Alabama hickorynut. 

On February 27, 2020, the Center for 

Biological Diversity filed a lawsuit 

against the Service, alleging, among 

other claims, that the Service violated 

the Act (16 U.S.C. 1533(b)(3)(B)) by 

delaying the 12-month finding for the 

listing of the Alabama hickorynut. The 

parties entered a settlement agreement 

on July 24, 2023, in which the Service 

committed to submit the 12-month 

finding to the Federal Register by 

September 2, 2024. This document 

complies with the settlement agreement. 

We note that the April 2010 petition 

specified an accepted range for the 

Alabama hickorynut of the eastern Gulf 

Coast drainages of the Mobile River 

Basin, the Pascagoula River drainage, 

the Pearl River drainage, and the Lake 

Pontchartrain drainages. However, as 

discussed below under I. Proposed 

Listing Determination, Background, 

preliminary data support that Alabama 

hickorynut (Obovaria unicolor) is found 

only in the Mobile River Basin, and the 

individuals from the other three 

drainages are a distinct species still 

undescribed, Obovaria cf. unicolor. 

Because the Alabama hickorynut was 

petitioned with the accepted range 

including all four drainages and because 

the genetic analysis distinguishing two 

distinct species is still unpublished, we 

evaluated the Alabama hickorynut and 

the undescribed species throughout the 

entire accepted petitioned range. 

Peer Review 

A species status assessment (SSA) 

team prepared an SSA report for 

Alabama hickorynut, including the 

undescribed Obovaria cf. unicolor. The 

SSA team was composed of Service 

biologists, in consultation with other 

species experts. The SSA report 

represents a compilation of the best 

scientific and commercial data available 

concerning the status of the species, 

including the impacts of past, present, 

and future factors (both negative and 

beneficial) affecting the species. 

In accordance with our joint policy on 

peer review published in the Federal 

Register on July 1, 1994 (59 FR 34270), 

and our August 22, 2016, memorandum 

updating and clarifying the role of peer 

review in listing and recovery actions 

under the Act, we solicited independent 

scientific review of the information 

contained in the SSA report for the 

Alabama hickorynut and Obovaria cf. 

unicolor. We sent the SSA report to five 

independent peer reviewers and 

received no responses. 

I. Proposed Listing Determination 

Background 

The SSA report (Service 2023, pp. 9– 

16) presents a thorough review of the 

taxonomy, life history, and ecology of 

the Alabama hickorynut (Obovaria 

unicolor) and Obovaria cf. unicolor. 

Species taxonomic status remains 

unclear for the Alabama hickorynut. 


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Federal Register / Vol. 89, No. 175 / Tuesday, September 10, 2024 / Proposed Rules 73333 

Genetics data support Alabama 

hickorynut (Obovaria unicolor) as a 

Mobile River Basin endemic and the 

individuals of the western drainages 

(Pascagoula, Pearl, and Pontchartrain) 

comprising a distinct species yet to be 

formally described, Obovaria cf. 

unicolor (Inoue et al. 2013, pp. 2670– 

2683). Genetics work by the U.S. 

Geological Survey (USGS) is upcoming 

to resolve the taxonomic uncertainty. In 

the SSA report, we evaluated both the 

Alabama hickorynut and Obovaria cf. 

unicolor because the petitioned entity 

included the entire range of both species 

and because Obovaria cf. unicolor has 

not yet been formally described. Both 

species have a lifespan of 20 to 44 years. 

The two entities are allopatric, meaning 

they occur in separate, non-overlapping 

geographical areas. In the SSA report, 

we have assumed similarities between 

the two species in biology and ecology, 

but we have assessed their differences 

in geographic occupancy and threats 

faced. 

The Alabama hickorynut (Obovaria 

unicolor) has a generally round to oval 

shape with a moderately thick shell. 

The species is moderately inflated and 

grows up to a length of 50 to 70 

millimeters (mm). Males grow to be 

slightly larger than females (Haag and 

Rypel 2011, pp. 225–247). Posterior and 

anterior margins are rounded. The umbo 

is inflated and elevated above the hinge 

line (Williams et al. 2008, pp. 476–477; 

Haag, from Mirarchi et al. 2004, p. 99). 

The lateral teeth are short and straight. 

The pseudocardinal teeth are triangular 

and erect with two divergent teeth in 

the left valve and one in the right valve. 

The nacre inside the shell is usually 

white but occasionally pink (Williams et 

al. 2008, pp. 476–477). Obovaria cf. 

unicolor has yet to be formally 

described, but has a similar morphology 

to Alabama hickorynut. 

The Alabama hickorynut and 

Obovaria cf. unicolor occupy large 

creeks and streams to large rivers with 

sand, gravel, and silt substrates in slow 

to moderate current (Williams et al. 

2008, p. 477; Mirarchi et al. 2004, p. 99). 

Historically, the Alabama hickorynut 

occupied the mainstem of the 

Tombigbee and Alabama Rivers along 

with their associated large tributaries. 

Obovaria cf. unicolor historically 

occupied the mainstem and associated 

large tributaries of the Pascagoula, Pearl, 

Tangipahoa, Tickfaw, and Amite Rivers. 

Occurrence data collected over time 

indicate that both species were 

historically found in low densities and 

were relatively rare in mussel 

assemblages. 

The Alabama hickorynut and 

Obovaria cf. unicolor have complex life 

cycles that rely on fish hosts for 

successful reproduction, similar to other 

mussels. Both species are long-term 

brooders, gravid from August to the 

following June, with glochidia being 

fully developed by November (Haag and 

Warren 2003, p. 83). Several host fish 

species have been documented for the 

Alabama hickorynut and Obovaria cf. 

unicolor, and all host fishes appear to be 

relatively common species of darters 

(Percidae) of the genera Ammocrypta, 

Etheostoma, and Percina. 

Regulatory and Analytical Framework 

Regulatory Framework 

Section 4 of the Act (16 U.S.C. 1533) 

and the implementing regulations in 

title 50 of the Code of Federal 

Regulations set forth the procedures for 

determining whether a species is an 

endangered species or a threatened 

species, issuing protective regulations 

for threatened species, and designating 

critical habitat for endangered and 

threatened species. 

The Act defines an ‘‘endangered 

species’’ as a species that is in danger 

of extinction throughout all or a 

significant portion of its range, and a 

‘‘threatened species’’ as a species that is 

likely to become an endangered species 

within the foreseeable future throughout 

all or a significant portion of its range. 

The Act requires that we determine 

whether any species is an endangered 

species or a threatened species because 

of any of the following factors: 

(A) The present or threatened 

destruction, modification, or 

curtailment of its habitat or range; 

(B) Overutilization for commercial, 

recreational, scientific, or educational 

purposes; 

(C) Disease or predation; 

(D) The inadequacy of existing 

regulatory mechanisms; or 

(E) Other natural or manmade factors 

affecting its continued existence. 

These factors represent broad 

categories of natural or human-caused 

actions or conditions that could have an 

effect on a species’ continued existence. 

In evaluating these actions and 

conditions, we look for those that may 

have a negative effect on individuals of 

the species, as well as other actions or 

conditions that may ameliorate any 

negative effects or may have positive 

effects. 

We use the term ‘‘threat’’ to refer in 

general to actions or conditions that are 

known to or are reasonably likely to 

negatively affect individuals of a 

species. The term ‘‘threat’’ includes 

actions or conditions that have a direct 

impact on individuals (direct impacts), 

as well as those that affect individuals 

through alteration of their habitat or 

required resources (stressors). The term 

‘‘threat’’ may encompass—either 

together or separately—the source of the 

action or condition or the action or 

condition itself. 

However, the mere identification of 

any threat(s) does not necessarily mean 

that the species meets the statutory 

definition of an ‘‘endangered species’’ or 

a ‘‘threatened species.’’ In determining 

whether a species meets either 

definition, we must evaluate all 

identified threats by considering the 

species’ expected response and the 

effects of the threats—in light of those 

actions and conditions that will 

ameliorate the threats—on an 

individual, population, and species 

level. We evaluate each threat and its 

expected effects on the species, then 

analyze the cumulative effect of all of 

the threats on the species as a whole. 

We also consider the cumulative effect 

of the threats in light of those actions 

and conditions that will have positive 

effects on the species, such as any 

existing regulatory mechanisms or 

conservation efforts. The Secretary 

determines whether the species meets 

the definition of an ‘‘endangered 

species’’ or a ‘‘threatened species’’ only 

after conducting this cumulative 

analysis and describing the expected 

effect on the species. 

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, which is 

further described in the 2009 

Memorandum Opinion on the 

foreseeable future from the Department 

of the Interior, Office of the Solicitor 

(M–37021, January 16, 2009; ‘‘M– 

Opinion,’’ available online at https://

www.doi.gov/sites/doi.opengov.

ibmcloud.com/files/uploads/M37021.pdf). The foreseeable future 

extends as far into the future as the U.S. 

Fish and Wildlife Service and National 

Marine Fisheries Service (hereafter, the 

Services) can make reasonably reliable 

predictions about the threats to the 

species and the species’ responses to 

those threats. We need not identify the 

foreseeable future in terms of a specific 

period of time. We will describe the 

foreseeable future on a case-by-case 

basis, using the best available data and 

taking into account considerations such 

as the species’ life-history 

characteristics, threat projection 

timeframes, and environmental 

variability. In other words, the 

foreseeable future is the period of time 

over which we can make reasonably 


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73334 Federal Register / Vol. 89, No. 175 / Tuesday, September 10, 2024 / Proposed Rules 

reliable predictions. ‘‘Reliable’’ does not 

mean ‘‘certain’’; it means sufficient to 

provide a reasonable degree of 

confidence in the prediction, in light of 

the conservation purposes of the Act. 

Analytical Framework 

The SSA report documents the results 

of our comprehensive biological review 

of the best scientific and commercial 

data regarding the status of the species, 

including an assessment of the potential 

threats to the species. The SSA report 

does not represent our decision on 

whether the species should be proposed 

for listing as endangered or threatened 

species under the Act. However, it does 

provide the scientific basis that informs 

our regulatory decisions, which involve 

the further application of standards 

within the Act and its implementing 

regulations and policies. 

To assess the viability of Alabama 

hickorynut and Obovaria cf. unicolor, 

we used the three conservation biology 

principles of resiliency, redundancy, 

and representation (Shaffer and Stein 

2000, pp. 306–310). Briefly, resiliency is 

the ability of the species to withstand 

environmental and demographic 

stochasticity (for example, wet or dry, 

warm or cold years), redundancy is the 

ability of the species to withstand 

catastrophic events (for example, 

droughts, large pollution events), and 

representation is the ability of the 

species to adapt to both near-term and 

long-term changes in its physical and 

biological environment (for example, 

climate conditions, pathogens). In 

general, species viability will increase 

with increases in resiliency, 

redundancy, and representation (Smith 

et al. 2018, p. 306). Using these 

principles, we identified the species’ 

ecological requirements for survival and 

reproduction at the individual, 

population, and species levels, and 

described the beneficial and risk factors 

influencing the species’ viability. 

The SSA process can be categorized 

into three sequential stages. During the 

first stage, we evaluated the individual 

species’ life-history needs. The next 

stage involved an assessment of the 

historical and current condition of the 

species’ demographics and habitat 

characteristics, including an 

explanation of how each 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, which we then used to inform our 

regulatory decision. 

The following is a summary of the key 

results and conclusions from the SSA 

report; the full SSA report can be found 

at Docket No. FWS–R4–ES–2024–0130 

on https://www.regulations.gov. 

Summary of Biological Status and 

Threats 

In this discussion, we review the 

biological conditions of the species and 

their resources, and the threats that 

influence the species’ current and future 

conditions, in order to assess each 

species’ overall viability and the risks to 

that viability. 

Population and Species Needs 

The individual, population-level, and 

species-level needs of the species are 

summarized below in table 1. For 

additional information, please see the 

SSA report (Service 2023, pp. 19–20). 

Briefly, for populations to be 

sufficiently resilient, they must have 

adequate water quality, natural flow 

regimes, stable habitat, and substrates 

on a larger scale. Connectivity is also an 

important factor for populations because 

it facilitates gene flow within and 

among populations, thereby promoting 

adaptive potential, and it enables 

movement and dispersal of individuals 

to suitable habitat. Natural flow regimes 

are an important resource need for 

Alabama hickorynut and Obovaria cf. 

unicolor populations as flows are a 

habitat requirement for all life stages. 

More specifically, the species require 

flowing water for sheltering (habitat 

requirement), feeding, reproduction, 

and dispersal. Altered flow regimes may 

thus cause decreased spawning, 

recruitment, and survival. Adequate 

water quality is a need at the individual 

level for sheltering, reproduction, and 

feeding (to ensure food source is 

present). Stable habitat, and in 

particular the presence of stable sand, 

gravel, and silt substrates, is an 

important resource need for sheltering 

and feeding, especially for juveniles and 

adults due to their limited movement 

and dispersal abilities during these life 

stages. At the species level, both species 

need a sufficient number and 

distribution of healthy populations to 

withstand environmental and 

demographic stochasticity (resiliency), 

withstand catastrophes (redundancy), 

and adapt to biological and physical 

changes in their environment 

(representation). Genetic diversity 

should be high enough that the species 

will be able to adapt to changing 

environmental factors through the 

process of natural selection. 

TABLE 1—SUMMARY OF THE INDIVIDUAL RESOURCE NEEDS BY LIFE STAGE OF THE ALABAMA HICKORYNUT (Obovaria 

unicolor) AND Obovaria cf. unicolor 

Life stage Resources needed 

Fertilized Eggs ..................................... • Mature males upstream from mature females. 

• Suitable flow. 

• Suitable water quality and quantity. 

Glochidia .............................................. • Interactions with appropriate host fish. 

• Connectivity to suitable habitat for dispersal by fish. 

• Suitable flow. 

• Suitable water quality and quantity for glochidia and host fish. 

Juveniles .............................................. • Suitable, stable substrate. 

• Sufficient food availability within sediment. 

• Sufficient water flow. 

• Suitable water quality and quantity. 

Adults ................................................... • Suitable, stable substrate. 

• Sufficient food availability in water column. 

• Suitable flow. 

• Suitable water quality and quantity. 


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Summary of Threats 

To assess the status of the Alabama 

hickorynut and Obovaria cf. unicolor, 

we first examined the following 

influences on viability in our SSA 

analysis: sedimentation; altered flow 

regimes; point and nonpoint source 

pollution, which come from a variety of 

sources, including urbanization, 

agriculture, forestry, and mining; and a 

constricted range and reduced 

connectivity from impoundments 

(Service 2023, p. 21). We then 

determined which influences were most 

significant for viability of both the 

species, then modeled those influences 

and carried them forward in our 

analysis. Those influences include: 

habitat loss, degradation, and 

fragmentation (Factor A); water quality 

degradation (Factor A); altered flow 

regimes (Factor A); sedimentation from 

land use (Factor A); the influences of 

climate change on stream flow, water 

temperature, and sea level rise (Factor 

E); and their cumulative effects. We 

summarize these threats, as well as their 

sources and the responses of the 

Alabama hickorynut and Obovaria cf. 

unicolor to those threats, below. For a 

detailed description of threats that may 

influence the viability of both species, 

please refer to chapter 4 of the SSA 

report (Service 2023, pp. 21–36). 

Sedimentation 

Sedimentation due to a variety of 

sources, including agriculture, forestry 

practices, urbanization, bank erosion, 

and gravel mining, is considered a 

stressor to Alabama hickorynut and 

Obovaria cf. unicolor throughout their 

ranges. Sediment is composed of both 

organic (biological material) and 

inorganic (sand, silt, clay) particulate 

matter formed through various 

processes including weathering, wind/ 

wave/ice action, and tectonic uplift 

(Perkins et al. 2022, p. 2). Sediment is 

listed as the most common pollutant in 

rivers, streams, lakes, and reservoirs and 

is estimated to cause approximately $16 

billion in damage every year (EPA 2005, 

pp. 9–25; Du Plessis 2019, pp. 86–87). 

While all streams carry some sediment, 

aquatic ecosystems are negatively 

affected if sediment loads are excessive 

enough to alter channel formation, 

stream productivity, or both. 

River channel erosion, precipitation 

runoff, and wind transport account for 

30 percent of the total sediment load in 

aquatic systems, while land-use 

activities such as agriculture (Peacock et 

al. 2005, p. 548), logging (Beschta 1978, 

entire), mining (Seakem Group et al. 

1992, p. 17), urbanization (Guy and 

Ferguson 1963, entire), and hydrological 

alteration (Hastie et al. 2001, entire) 

account for the remaining 70 percent 

(Du Plessis 2019, pp. 86–87). 

Agricultural activities have been found 

to produce the most significant amount 

of sedimentation (e.g., livestock grazing/ 

trampling near water’s edge; Nolte et al. 

2013, p. 296). 

Increased sedimentation may result in 

decreases in feeding and respiration, 

which could result in negative 

alterations to mussel’s energetic 

metabolism and growth (Dimock and 

Wright 1993, p. 183; La Peyre et al. 

2019, p. 5). Specifically, as 

sedimentation increases, clearance rates 

(i.e., volume of water completely 

cleared of particles per unit time) 

decrease and pseudofeces (i.e., waste) 

increase to prevent gill filaments from 

clogging (Bayne and Newell 1983, 

entire; Madon et al. 1998, p. 401). If the 

stressor becomes long-term, mussels 

may find feeding to be outweighed by 

the energetic cost of sorting food vs. 

non-food material, decreasing the 

individual’s body condition (Bayne and 

Widdows 1978, p. 137; Madon et al. 

1998, p. 401). 

Increased sedimentation is expected 

to interfere with mussel-host fish 

interaction, further impacting the 

reproductive success of mussels due to 

physical abrasion of the host fish’s gills 

or decreased visibility within the water 

column. Successful glochidial 

attachment and metamorphosis has 

been found to be reduced at 

concentrations ranging from 1,250 to 

5,000 milligrams per liter (mg/L) of 

montmorillonite clay in the water 

column (Beussink et al. 2007, pp. 15– 

17). This reduction is attributed to 

physical abrasion of fish gill tissues 

from increased suspended sediment; 

increased fish mucus production in 

attempt to protect the gill from physical 

abrasion; coughing, which may dislodge 

glochidia from the gills; or declines in 

keratocytes (i.e., wound-healing cells), 

which would harm glochidia’s ability to 

encapsulate (Beussink et al. 2007, pp. 

15–17). 

Dams and Impoundments 

The detrimental effects of 

impoundments and dams on aquatic 

habitats and freshwater mussels are 

relatively well-documented (Watters 

1999, p. 261). Increased demand for 

transportation, power, and water needs 

in the 1920s and 1930s led to rapid 

industrialization (Haag 2012, p. 329). 

Currently, there are an estimated 3,404 

dams within the Mobile River basin. 

More than 1,000 miles of small and 

large river habitat in the Mobile River 

drainage have been impounded for 

navigation, flood control, water supply, 

and/or hydroelectric production 

purposes (58 FR 14330 at 14335, March 

17, 1993). These impoundments kill 

riverine mussels during construction 

and dredging, suffocate them by 

accumulating sediments, lower food and 

oxygen availability for the mussels by 

the reducing water flow, and cause local 

extirpation of host fish. Within the 

eastern United States, extinction and/or 

extirpation of native freshwater mussels 

has been attributed to impoundment 

and inundation of riffle habitats in all 

major river basins (Haag 2008 p. 107; 

Neves et al. 1997, p. 63). 

After a dam is installed and reservoir 

created, the aquatic habitat typically 

accumulates more silt, loses shallow 

water habitat, decreases in water flow, 

accumulates more pollutants (adhered 

to sediment particles), and overall 

accumulates more nutrient-poor water 

(due to decaying algae within the 

reservoir, which depletes dissolved 

oxygen) (Watters 1999, p. 261). 

Typically, mussels are abundant in 

shallower waters and cannot tolerate 

impoundment depths and temperatures 

or fluctuating conditions found in 

tailwaters of dams (Fagin 2020, p. 2). 

Further, impoundments become 

sediment traps, which may increase the 

chance of smothering and decrease 

species’ interactions with host fish. 

Mussels living in the tailwaters may 

experience fluctuations in temperatures 

and water levels (Watters 1999, p. 262). 

These fluctuations may expose 

individuals to dewatering events and/or 

excessively warm- or cold-water 

temperatures (Watters 1999, p. 262). 

Ultimately, the survival and overall 

reproductive success of mussels is 

influenced both upstream and 

downstream of dams. 

Within the range of Obovaria cf. 

unicolor, plans for a new reservoir on 

the Pearl River downstream of Ross 

Barnett Reservoir near Jackson, 

Mississippi, are under consideration 

(Lindeman 2013, pp. 202–203). Of 

particular note is the proposed One 

Lake project, which includes a new dam 

and commercial development area 9 

miles (14.5 kilometers) south of the 

current Ross Barnett Reservoir Dam near 

Interstate 20. The intent of the One Lake 

project is to dredge the Pearl River in 

order to widen, deepen, and straighten 

an additional 10 miles (16.1 kilometers) 

of waterway for flood control protection 

and commercial development 

opportunities. The One Lake project is 

still being debated, and the project’s 

future is uncertain. If the One Lake 

project is implemented, it will likely 

alter the hydrologic regime and 

geomorphology of the Pearl River 

(similar to how the construction of Ross 


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Barnett Reservoir altered the system in 

the 1960s). This potential altered regime 

could increase channel instability and 

erosion through drastic changes in water 

outflows at dams, which can lead to 

bank collapse. 

Also within the range of Obovaria cf. 

unicolor, plans for new reservoirs on Big 

Cedar Creek in the Pascagoula River 

drainage have been proposed in the past 

as the Lake George Project; however, the 

current status of the project is unknown. 

If the Lake George project is 

implemented, it will likely alter the 

hydrologic regime and geomorphology 

of the Big Cedar Creek and subsequently 

the Pascagoula River. This potential 

altered regime could lead to increased 

channel instability. 

Channelization 

Channelization activities profoundly 

alter riverine habitats by reducing 

habitat heterogeneity and aquatic 

diversity (Ebert 1993, p. 157; Watters 

1999, p. 268). These activities affect 

many physical characteristics of streams 

through accelerated erosion (i.e., 

headcutting), increased bedload 

(sediment that moves along the 

streambed), reduced depth, decreased 

habitat diversity, geomorphic instability 

(channel modification and subsequent 

instability), and riparian canopy loss 

(Hartfield 1993, p. 139). Further, 

changes in water velocity and depth 

associated with channelization increase 

turbulence and suspended sediments. 

These impacts contribute to loss of 

habitat for the Alabama hickorynut and 

Obovaria cf. unicolor, as well as 

interfere with gravid female host-fish 

interactions. 

One of the largest water development 

projects within the United States, the 

Tennessee-Tombigbee Waterway (TTW) 

in Alabama and Mississippi is within 

the Alabama hickorynut’s range. While 

the project was authorized in 1946, the 

TTW did not begin construction until 

1972. The TTW constructed to provide 

more direct access from the Tennessee 

River to the Gulf of Mexico, was 

completed in 1984 and includes 10 lock 

and dams as well as 377 km of 

channelization (Haag 2012, p. 330). This 

project significantly altered the 

Tombigbee River, which had been the 

last free-flowing, unpolluted, diverse 

stream systems within the Mobile Basin, 

into a series of artificial canals and 

reservoirs. The construction of the TTW 

has significantly negatively impacted 

the Alabama hickorynut’s range and 

abundance by rendering the majority of 

the mainstem of the Tombigbee River 

inhospitable to the Alabama hickorynut. 

The impacts of this channelization are 

ongoing. 

No other new channelization projects 

are on the horizon; however, the U.S. 

Army Corps of Engineers (USACE) is 

undergoing planning efforts to improve 

navigation in the TTW, which will 

include deepening the channel. Because 

the underlying geology is particularly 

sensitive to disturbance, further bed 

instability is likely throughout the 

channel and downstream without 

effective planning and designs to 

prevent head-cuts. 

Dredging and channelization of 

fluvial (flowing water) systems include 

the widening and deepening of stream 

channels, which increases channel 

capacity, shortens stream length, and 

increases stream gradient (Pierce and 

King 2013, p. 223). These activities 

allow greater volumes of water to move 

through the system at a faster rate; 

however, they also hydrologically 

disconnect river channels from the 

adjacent floodplain. Within the 

southeastern United States, 

channelization has been used for 

navigation and to reduce flooding, and 

it is likely even more extensive than 

damming (Haag 2012, p. 330). 

Channels dredged for navigation or 

flood control will eventually begin to 

refill with material. To ensure minimum 

depth, the channel is often periodically 

re-dredged. Subsequent dredge spoil 

(i.e., unconsolidated mixed sediment 

composed of rock, soil, and/or shell 

material) and contaminants associated 

with the waste are often deposited in 

upland areas (Watters 1999, p. 268). 

Over time, this waste may re-enter the 

water via surface runoff, biological 

uptake and cycling, and/or leaching into 

groundwater (Watters 1999, p. 268), and 

may subsequently affect the Alabama 

hickorynut and Obovaria cf. unicolor 

directly or may affect their habitats. 

Gravel Mining 

The Alabama hickorynut and 

Obovaria cf. unicolor are not found in 

impounded waters and are intolerant of 

lentic (standing water) habitats that may 

be formed by gravel mining or other 

landscape-altering practices. 

Incompatible sand and gravel mining, 

with its disruption of topography, 

vegetation, and flow pattern of streams, 

is considered a major stressor to the 

Bogue Chitto River in the Pearl River 

drainage where Obovaria cf. unicolor 

occurs (TNC 2004, p. 16). Although 

Louisiana has reduced the number of 

gravel mining permits issued, mining in 

the floodplain continues to be a 

significant threat to Obovaria cf. 

unicolor in that state. 

In Obovaria cf. unicolor’s range in the 

Pascagoula River drainage, the results of 

historical sand and gravel dredging 

impacts have been a concern for the 

Bouie and Leaf Rivers (Mississippi 

Department of Environmental Quality 

(MDEQ) 2000, pp. 1–98) Historically, 

the American Sand and Gravel 

Company (1995, p. B4) has mined sand 

and gravel using a hydraulic suction 

dredge, operating within the banks or 

adjacent to the Bouie and Leaf Rivers. 

Large gravel bars of the river and its 

floodplain were removed over a period 

of 50 years, creating open-water areas 

that function as deep lake systems 

(American Sand and Gravel Company 

1995, pp. B4–B8). The creation of these 

large, open-water areas has accelerated 

geomorphic processes, specifically 

headcutting (erosional feature causing 

an abrupt drop in the streambed) that 

has adversely affected the flora and 

fauna of many coastal plain streams 

(Patrick et al. 1993, p. 90). The infilling 

of these gravel pits and their 

downstream effects back to a natural 

riverine state is predicted to take 

hundreds of years (Grimball and 

Heitmuller 2012, p. 158). Mining in 

active river channels typically results in 

incision upstream of the mine by 

knickpoints (breaks in the slope of a 

river or stream profile caused by 

renewed erosion attributed to a bottom 

disturbance that may retreat upstream), 

sediment deposition downstream, and 

an alteration in channel morphology 

that can have impacts for years (Mossa 

and Coley 2004, pp. 1–20). The 

upstream migration of knickpoints, or 

headcutting, may cause undermining of 

structures, lowering of alluvial water 

tables (aquifer comprising 

unconsolidated materials deposited by 

water and typically adjacent to rivers), 

channel destabilization and widening, 

and loss of aquatic and riparian habitat. 

This geomorphic change may cause the 

extirpation of riparian and lotic (flowing 

water) species (Patrick et al. 1993, p. 

96). 

Contaminants 

Metals—Freshwater mussels are one 

of the most sensitive species to metals, 

ammonia, and ion constituents 

including copper, alachlor (i.e., an 

herbicide), nickel, chloride, sulfate, 

zinc, and potassium (Wang et al. 2017, 

p. 1). Despite limited research, data 

indicate mussels representing different 

families or tribes have similar 

sensitivities to most chemicals, 

regardless of mode of toxic exposure 

(Wang et al. 2017, p. 1). This 

information indicates thresholds 

identified for other freshwater mussels 

can be used to infer the response of the 

Alabama hickorynut and Obovaria cf. 

unicolor. 


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Metals naturally occur in aquatic 

ecosystems and are primarily 

introduced to waterways due to 

weathering of rocks, soil erosion, and/or 

dissolution of water-soluble salts 

(Garbarino et al. 1995, p. 1). While 

naturally occurring metals often move 

through aquatic ecosystems without 

detrimental effects to aquatic biota, this 

is not necessarily the case with 

anthropogenic sources of metals. 

Industrial and forestry activities within 

the region that do not employ best 

management practices (BMPs) and 

directly discharge into river systems 

significantly increase heavy metal loads 

(Suryawanshi 2017, p. 625; Uttermann 

et al. 2019, p. 200). As a result, river 

systems that are habitat for the Alabama 

hickorynut and Obovaria cf. unicolor 

may have metal contamination, which 

may negatively impact the species; 

however, we do not have specific data 

about the streams the two species 

inhabits. 

Nutrients and ions—The southeastern 

United States is affected by intense 

pressures of fossil fuel mining, urban 

development/sprawl, agricultural and 

forestry practices, and increasing 

demands for fresh water (Archambault 

et al. 2017, p. 395). Runoff associated 

with these practices when BMPs are not 

employed (i.e., fertilizers, pesticides, 

industrial and wastewater effluents, 

mining discharge, and sediment) 

increases nutrient and ion 

concentrations in waterways that 

(depending on magnitude and duration) 

may exceed freshwater mussel 

thresholds (Salerno et al. 2020, pp. 1– 

2). 

Climate Change 

Climate change has the potential to 

increase vulnerability of the Alabama 

hickorynut and Obovaria cf. unicolor to 

catastrophic events or to alter habitat 

suitability (e.g., water temperature, 

dissolved oxygen, sea level rise) within 

the species’ range. Over the years, 

climate change impacts (impaired 

waters and reduced water supply 

security) have been reportedly more 

frequent and intense (Intergovernmental 

Panel on Climate Change (IPCC) 2022, p. 

1931). Extreme heat and precipitation 

trends have altered ecosystem processes 

(e.g., freshwater cycling). Further, 

projected droughts will become more 

intense because of higher temperatures, 

and the progressive loss of seasonal 

water storage will lead to lower summer 

stream flows (IPCC 2022, p. 1932). 

Population growth and agricultural 

activities are expected to continue to 

place high demands on the water supply 

within the range of the species, 

impacting stream flow. These lower 

stream flows may negatively impact the 

Alabama hickorynut and Obovaria cf. 

unicolor. 

Conservation Efforts and Regulatory 

Mechanisms 

Most of the land within the ranges of 

the Alabama hickorynut and Obovaria 

cf. unicolor is privately owned, with 

some exceptions. The Alabama 

hickorynut currently occupies 58 

protected river miles of habitat in the 

Buttahatchee River, 28 protected river 

miles in the Sipsey River, and 30 

protected river miles of the Noxubee 

River, all of which are tributaries to the 

Tombigbee River. The protected land of 

the Buttahatchee is Wildlife Mississippi 

property and the Sam R. Murphy 

Wildlife Management Area. In the 

Sipsey River, the protected land is Stateowned Forever Wild land, and in the 

Noxubee River, the protected land is 

federally owned as the Sam D. Hamilton 

Noxubee National Wildlife Refuge. 

For Obovaria cf. unicolor, there are 

currently occupied protected lands in 

the Pascagoula River system and in the 

Pearl River system. In the Pascagoula 

River system, there are a total of 113 

protected river miles, most of which are 

within the Pascagoula Wildlife 

Management Area (WMA) in the 

Pascagoula River, Black Creek, and Red 

Creek. The Nature Conservancy protects 

7 river miles of currently occupied 

habitat in the Chickasawhay River, and 

there are 16 river miles protected on the 

Leaf River by the Camp Shelby and 

Mississippi Land Trust and the 

Mississippi River Trust. In the Pearl 

River system, there are a total of 69 

protected river miles that are currently 

occupied. Three river miles are 

protected in the upper Pearl River as 

Wildlife Mississippi property, and 66 

river miles are protected on the lower 

Pearl River as the Bogue Chitto National 

Wildlife Refuge. 

Neither Alabama hickorynut or 

Obovaria cf. unicolor are protected 

under state laws. However, some 

streams that are occupied by the species 

have water quality protections in place. 

The Clean Water Act of 1972 (33 U.S.C. 

1251 et seq.) regulates dredge and fill 

activities that would adversely affect 

streams and wetlands. Such activities 

are commonly associated with dry land 

projects for development, flood control, 

and land clearing, as well as for waterdependent projects such as docks/ 

marinas and maintenance of 

navigational channels. The USACE and 

the Environmental Protection Agency 

(EPA) share the responsibility for 

implementing the permitting program 

under section 404 of the Clean Water 

Act. Permit review and issuance follows 

a process that encourages avoidance, 

minimizing and requiring mitigation for 

unavoidable impacts to the aquatic 

environment and habitats. This includes 

protecting the riverine habitat occupied 

by Alabama hickorynut and Obovaria cf. 

unicolor. This law has resulted in some 

enhancement of water quality and 

habitat for aquatic life, particularly by 

reducing point-source pollutants. For 

Alabama hickorynut, two occupied 

waterways have Total Maximum Daily 

Loads (TMDLs) established by Alabama 

Department of Environmental 

Management (ADEM) for E. coli: the 

Luxapallila River and the Noxubee 

River. For Obovaria cf. unicolor, 

Tallahala Creek in the Pascagoula 

drainage has a TMDL established by 

Mississippi Department of 

Environmental Quality (MDEQ) for 

biological impairment, total nitrogen, 

pH, and total phosphorous. 

Cumulative Effects 

We note that, by using the SSA 

framework to guide our analysis of the 

scientific information documented in 

the SSA report, we have analyzed the 

cumulative effects of identified threats 

and conservation actions on the species. 

To assess the current and future 

condition of the species, we evaluate the 

effects of all the relevant factors that 

may be influencing the species, 

including threats and conservation 

efforts. Because the SSA framework 

considers not just the presence of the 

factors, but to what degree they 

collectively influence risk to the entire 

species, our assessment integrates the 

cumulative effects of the factors and 

replaces a standalone cumulative-effects 

analysis. 

Current Conditions 

Delineating Populations 

To assess resiliency of Alabama 

hickorynut and Obovaria cf. unicolor 

populations, we first delineated 

populations in the most biologically 

meaningful way. We based our 

delineations on occurrence records 

through time, on our knowledge of the 

species’ habitat and resource needs, and 

on expert input. We determined there to 

be three total Alabama hickorynut 

populations and six total Obovaria cf. 

unicolor populations. We also 

delineated subpopulations for each 

species to refine occupancy, influence 

of threats, and average abundance. The 

Alabama hickorynut has 13 

subpopulations within its three 

populations, and Obovaria cf. unicolor 

has 16 subpopulations within its six 

populations. 


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Delineating Representative Units 

Representation is the ability of a 

species to adapt to both near-term and 

long-term changes in its physical and 

biological environment. Differences in 

life-history traits, habitat features, and/ 

or genetics often aid in the delineation 

of representative units, which are used 

to assess species representation. For 

representative unit delineation, we 

consulted with experts in each State and 

considered differences in ecological 

setting and connectivity at a larger scale. 

Based on the natural lack of large-scale 

connectivity, the Alabama hickorynut in 

the Mobile River Basin was split into 

two representative units: Eastern Mobile 

River Basin (Alabama and Cahaba 

Rivers) and Western Mobile River Basin 

(Tombigbee River). Obovaria cf. 

unicolor was divided into five 

representative units: the Pascagoula, the 

Pearl, the Tangipahoa, the Tickfaw, and 

the Amite Rivers. The Tangipahoa, 

Tickfaw, and Amite Rivers all drain into 

Lake Pontchartrain, and occurrences 

extend very close to the mouth of each 

river; however, the influence of salt 

water in Lake Pontchartrain likely limits 

any connectivity between these 

representative units. 

Current Resiliency 

Sufficiently resilient populations of 

the Alabama hickorynut and Obovaria 

cf. unicolor should be robust following 

normal demographic and environmental 

stochastic events or disturbances. We 

assessed the resilience of each Alabama 

hickorynut and Obovaria cf. unicolor 

population by synthesizing the best 

available information about habitat 

condition and population 

demographics. Based on the individual 

and population needs of the Alabama 

hickorynut and Obovaria cf. unicolor 

(such as adequate water quality/ 

quantity; the presence of stable, 

unaltered habitat; and appropriate 

population size and connectivity to 

support reproduction and recruitment 

within a population), we developed an 

approach using key habitat and 

demographic factors to assess 

population resiliency. We assessed two 

demographic condition parameters 

(persistence through time (amount of 

historical range that is still currently 

occupied) and estimated average 

abundance) and one habitat condition 

parameter (amount of altered habitat 

(impoundment, channelization, head 

cutting, etc.)). Based on the Alabama 

hickorynut’s lifespan, we determined 

the time period from 2000 to 2023 to 

represent the current condition of these 

species. We ranked subpopulations 

based on estimated average abundance 

by reviewing count data from 

occurrence records and using expert 

elicitation based on the experts’ 

knowledge of historical numbers. We 

considered a subpopulation to have a 

low abundance if the estimated average 

count per sample is 0 to 5 individuals. 

A subpopulation with moderate 

abundance has an estimated average 

count per sample of 6 to 10 individuals, 

and a subpopulation with high 

abundance has an estimated average 

count of more than 10 individuals. 

In order to better facilitate 

comparisons of current and future 

conditions, we categorized resiliency 

into three levels, as follows: 

• High—population substantially 

contributes to overall species viability 

by having more than 75 percent of its 

historical range that is currently 

occupied, relatively low amounts of 

altered habitat, and high abundance. 

• Moderate—population contributes 

to overall species viability by having 

50–75 percent of its historical range that 

is currently occupied, relatively 

moderate amounts of altered habitat, 

and ample abundance. 

• Low—population is likely 

persisting but also likely does not 

contribute to overall species viability 

because less than 50 percent of its 

historical range is currently occupied, 

there is relatively high amounts of 

altered habitat, and low abundance. 

i. Alabama Hickorynut (Obovaria 

Unicolor) 

Alabama River—There are two 

subpopulations within the Alabama 

River population: mainstem Alabama 

River and Pine Barren Creek. The 

Alabama hickorynut historically 

occupied at least 233 river miles in the 

Alabama River and 11 river miles in 

Pine Barren Creek. Degradation and loss 

of habitat due to impoundment resulted 

in the extirpation of this population. 

Live individuals were last detected in 

the Alabama River mainstem in 1999 

(Mcgregor et al. 2000, pp. 215–237) and 

last detected in Pine Barren Creek in 

1917. Our analysis indicated that 100 

percent of the Alabama River 

population’s habitat has been altered. 

Cahaba River—Historically, Alabama 

hickorynut occupied 117 river miles in 

the Cahaba River, a major tributary to 

the Alabama River. The species is now 

considered extirpated from this system. 

Surveys from 2000 to present have only 

detected relic, weathered shells. 

Seventy-four river miles of the historical 

range within the Cahaba River are 

altered. 

Tombigbee River—The Alabama 

hickorynut occurred throughout 

approximately 1,077 river miles of the 

mainstem Tombigbee River and several 

large tributaries: the Buttahatchee River, 

the East Fork of the Tombigbee, the 

Sucarnoochee River, the Sipsey River, 

the Black Warrior River, Luxapallila 

Creek, the Noxubee River, Lubbub 

Creek, Trussels Creek, Tibbee Creek, 

Bogue Chitto Creek, and Santa Bogue 

Creek. The construction of the TTW, 

which artificially connects the 

Tennessee River to the Tombigbee 

River, has led to the extirpation of many 

species from the river’s main channel 

(Bennett et al. 2008, p. 467). Today, the 

Alabama hickorynut is considered 

extirpated from the mainstem 

Tombigbee River (approximately 300 

river miles) and the Black Warrior River 

(approximately 170 river miles) due to 

impoundment, dredging, and the 

creation of the TTW. Most of the 

tributaries also experienced a reduction 

in extant range due to these effects. As 

discussed previously, the Alabama 

hickorynut is naturally a larger river 

species, occupying mostly mainstem 

rivers and then branching out into larger 

tributaries of those rivers. In the 

Tombigbee River system, the species has 

lost suitable habitat in the mainstem 

Tombigbee and is now isolated to 

several tributaries. We do not find there 

is much, if any, subpopulation 

connectivity between these tributaries 

due to the loss of the connecting 

mainstem Tombigbee habitat. However, 

historically, these units would all have 

been connected, so we consider the 

entire Tombigbee River system one 

population with 13 subpopulations. Of 

the 1,077 river miles historically 

occupied in this population, only 362 

river miles are considered to be 

currently occupied, meaning the 

Alabama hickorynut currently occupies 

33.62 percent of its historical range in 

the Tombigbee population. As a result, 

we consider the Tombigbee population 

to have low resiliency. 

Currently, the Alabama hickorynut is 

extant in seven subpopulations of the 

Tombigbee population, and the species 

is considered extirpated in six 

subpopulations. Extant subpopulations 

are the East Fork of the Tombigbee, the 

Buttahatchee River, the Sipsey River, 

Luxapallila Creek, Lubbub Creek, the 

Noxubee River, and the Sucarnoochee 

River. Although the species is still 

extant in those subpopulations, it 

experienced range contraction in five of 

the seven extant subpopulations. All the 

extant subpopulations were classified as 

having low abundance except for the 

Sipsey River, which is considered to 

have high abundance. The Alabama 

hickorynut is considered extirpated 

from the following subpopulations: the 


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mainstem Tombigbee River, Tibbee 

Creek, Santa Bogue Creek, the Black 

Warrior River, Trussels Creek, and 

Bogue Chitto Creek. 

The stronghold for the entire species 

is in the Sipsey River. Samples collected 

from the Sipsey River frequently contain 

counts of Alabama hickorynut that are 

orders of magnitude higher than counts 

currently found anywhere else within 

the species’ range. The Sipsey River 

supports other rare mussel species that 

have also experienced precipitous 

declines elsewhere within their range in 

the Mobile River Basin, including 

Alabama spike (Elliptio arca), Alabama 

moccasinshell (Medionidus 

acutissimus), and Southern clubshell 

(Pleurobema decisum), indicating that 

the Sipsey River has maintained its 

ecological integrity through time 

(Mirarchi et al. 2004, entire; Williams et 

al. 2008, entire; Haag and Warren 2010, 

pp. 655–667). As noted above, the 

Sipsey River is the only subpopulation 

that we consider to have a ‘‘high’’ 

abundance rating. 

Alabama Hickorynut: Summary 

Resiliency Results 

Of the three populations of Alabama 

hickorynut in the Mobile River Basin, 

two are considered extirpated (Alabama 

and Cahaba), and one has low resiliency 

(Tombigbee). The species historically 

has been known to occur in 1,438 river 

miles in Alabama and Mississippi in the 

Mobile River Basin. The species 

currently occupies 362 river miles 

across its range, meaning it currently 

occupies 25.17 percent of its historical 

range. Overall, resiliency is considered 

low, meaning the species is not likely to 

withstand environmental stochasticity 

(fire, flood, storms) or disease and 

mortality events. 

ii. Obovaria cf. Unicolor 

Pascagoula River—Obovaria cf. 

unicolor historically occupied 549 river 

miles and is presumed to still occupy 

the full extent of the river system. The 

Pascagoula population is divided into 

five subpopulations: Pascagoula River, 

Leaf River, Chickasawhay River, Black 

Creek, and Red Creek. The Service 

surveyed the Pascagoula River for the 

species in 2023, and we confirmed 

current presence with a moderate 

abundance level. The other four 

subpopulations do not have current 

records of the species; however, these 

rivers and creeks have also not been 

surveyed recently. A system-wide 

mussel survey is planned for 2024 by 

the Mississippi Department of Fish, 

Wildlife, and Parks (MDWFP). We still 

assume presence throughout the entire 

Pascagoula River system despite not 

having current records because the 

Pascagoula River is undammed and not 

impounded, with 0 miles of the species’ 

range altered. Additionally, 113 river 

miles of the system are considered 

protected. Because we predict the 

Pascagoula River population occupies 

all of its historical range within the river 

system, the population is considered to 

have high resiliency. 

Upper Pearl River, above Ross Barnett 

Reservoir—Above the Ross Barnett 

Reservoir in the Pearl River system, 

Obovaria cf. unicolor historically 

occupied 92 river miles within two 

subpopulations: 27 river miles in the 

Yockanookany River and 65 river miles 

in the mainstem Pearl River. Currently, 

the species occupies 32 river miles 

within this population: 27 river miles in 

the Yockanookany River and 5 river 

miles in the mainstem Pearl River. 

The Yockanookany River is 

considered unaltered and 18 river miles 

are protected in the Natchez Trace 

Parkway. Twenty-seven river miles of 

the 65 historically occupied river miles 

of the mainstem Pearl River in this 

population are considered altered. 

Three river miles are in the mainstem 

Pearl River are protected by Wildlife 

Mississippi property. The species 

occupies 34.78 percent of its historical 

range in the upper Pearl River 

population. Where found in the upper 

Pearl population, Obovaria cf. unicolor 

is considered to have low abundance. 

Therefore, the upper Pearl River 

population above Ross Barnett Reservoir 

is considered to have low resiliency. 

Lower Pearl River, below Ross Barnett 

Reservoir—Of the total 589 river miles 

historically occupied in the lower Pearl 

population, Obovaria cf. unicolor still 

currently occupies 112 river miles, 

which is 19.02 percent of its historical 

range. Historically, there were three 

subpopulations in the Pearl River 

system below the Ross Barnett 

Reservoir; however, the Strong River 

subpopulation, which historically 

occupied 46 river miles, is now 

considered extirpated. Obovaria cf. 

unicolor is extant in the Bogue Chitto 

River and in the mainstem Pearl River. 

All of the historical range in the lower 

Pearl population has been altered, and 

where the species is still found, its 

abundance is considered low. The lower 

Pearl River population below Ross 

Barnett Reservoir is considered to have 

low resiliency. 

Tangipahoa River—Obovaria cf. 

unicolor historically occurred in 78 

river miles of the Tangipahoa River and 

currently occupies 60 river miles of this 

system, meaning it occupies 76.92 

percent of its historical range within the 

Tangipahoa River. Twenty river miles of 

the historical range are considered 

altered. The Tangipahoa River 

population is considered to have high 

resiliency. 

Tickfaw River—Obovaria cf. unicolor 

historically occurred in 44 river miles of 

the Tickfaw and currently occupies 35 

river miles of this system, meaning it 

occupies 79.55 percent of its historical 

range within the Tickfaw River. The 

entire historical range within this 

population is considered unaltered. The 

Tickfaw River population is considered 

to have high resiliency. 

Amite River—Obovaria cf. unicolor 

historically occurred in 102 river miles 

of the Amite River but has not been 

detected in the system since 1988, so 

the Amite population is considered 

extirpated. There are 49 river miles 

within the historical range that are 

considered altered. 

Obovaria cf. Unicolor: Summary 

Resiliency Results 

Of the six populations of Obovaria cf. 

unicolor, one population is considered 

extirpated (Amite), two populations are 

considered to have low resiliency 

(Upper Pearl and Lower Pearl), and 

three populations are considered to 

have high resiliency (Pascagoula, 

Tangipahoa, and Tickfaw). The species 

historically has been known to occur in 

1,454 river miles in Mississippi and 

Louisiana. The species currently 

occupies 788 river miles across its 

range, meaning it currently occupies 

54.2 percent of its historical range. 

Overall, Obovaria cf. unicolor has 

moderate resiliency. 

Current Representation 

Representation is the ability of a 

species to adapt to both near-term and 

long-term changes in its physical and 

biological environment. The greater the 

genetic diversity a species has, the more 

successfully a species can respond to 

changing environmental conditions. In 

the absence of population-level genetic 

data for the Alabama hickorynut and 

Obovaria cf. unicolor, we considered 

environmental diversity across each 

species’ range. The best available data 

indicate two representative units (i.e., 

two major river systems) where the 

Alabama hickorynut was historically 

found, the Alabama River system and 

the Tombigbee River system, and four 

representative units where Obovaria cf. 

unicolor is currently found, the 

Pascagoula River system, the Pearl River 

system, the Tangipahoa River, and the 

Tickfaw River. 

Alabama Hickorynut 

Of the two representative units for 

Alabama hickorynut, only one remains 


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extant. The species has been extirpated 

from the Eastern Mobile River Basin and 

now only occupies about 25 percent of 

its historical range. Although still 

extant, the Western Mobile River Basin 

representative unit has been left highly 

fragmented with no connectivity 

between subpopulations. The Alabama 

hickorynut was extirpated from the 

mainstem of the Tombigbee because of 

the TTW. This also eliminated gene 

flow between the tributaries of the 

Tombigbee River. The variety of trend 

information available across its range 

(i.e., loss of populations in tributaries or 

major river systems, declines in 

population extent and size in portions 

of the species’ range) indicate that the 

Alabama hickorynut’s overall ability to 

adapt to changing environmental 

conditions is minimal. This is largely 

due to pervasive human alteration of 

habitats, such as the construction and 

operation of impoundments. Thus, 

overall representation for the Alabama 

hickorynut is considered low. 

Obovaria cf. Unicolor 

Of the five representative units for 

Obovaria cf. unicolor, four remain 

extant. The Pearl River unit, though still 

extant, lost nearly 80 percent of its 

historical range due to human habitat 

alteration and degradation, which 

exemplifies that like Alabama 

hickorynut, Obovaria cf. unicolor also 

has minimal ability to adapt to changing 

environmental conditions. The loss of 

connectivity is a significant issue in the 

Pearl River representative unit. 

However, Obovaria cf. unicolor has 

representative units still spread across 

its historical range. One representative 

unit is considered extirpated, and 

because the species has shown that it is 

intolerant of major environmental 

changes (sedimentation, significant 

changes in water chemistry, habitat 

destabilization), we do not expect that 

the species will return to the unit 

without significant efforts to address the 

identified threats in this unit. For these 

reasons, we consider Obovaria cf. 

unicolor to have moderate 

representation. 

Current Redundancy 

Redundancy refers to the ability of a 

species to withstand a catastrophic 

event. To determine species 

redundancy, we assess the species’ 

distribution across its range. The greater 

the size, resiliency, and/or number of 

populations, and the more widely they 

are distributed, the greater the 

likelihood that the species will be able 

to withstand and bounce back from a 

significant loss (e.g., extirpation of a 

population) from a catastrophic event. 

Alabama Hickorynut 

Of the three populations known for 

Alabama hickorynut, only one, the 

Tombigbee River population, remains 

extant, and this population has low 

resiliency. Within the Tombigbee River 

population, 7 of the 13 subpopulations 

are still extant. However, all but one of 

the extant subpopulations are 

considered to have low abundance, and 

two of the subpopulations span less 

than 10 river miles within their 

tributaries, making them more 

vulnerable to potential extirpation; the 

other subpopulations each span at least 

20 river miles. All of the extant 

subpopulations face ongoing 

headcutting, sedimentation, and 

erosional issues from surrounding land 

use practices and dredging operations in 

the main channel. Due to the lack of 

connectivity between subpopulations, 

the species’ ability to rebound or 

recolonize areas after catastrophic 

events is severely limited. We consider 

the Alabama hickorynut to have a low 

level of redundancy overall because 

only one extant population remains 

with a low level of resiliency. 

Obovaria cf. Unicolor 

Of the six populations of Obovaria cf. 

unicolor, one is considered extirpated 

and five are extant. Three of the extant 

populations, the Pascagoula, the 

Tangipahoa, and the Tickfaw, are 

considered to have a high level of 

resiliency. The other two extant 

populations, the upper Pearl (above 

Ross Barnett Reservoir) and the lower 

Pearl (below Ross Barnett Reservoir), 

have low resiliency. Although the 

Tangipahoa and Tickfaw populations 

show a high level of resiliency in the 

current condition, these two 

populations represent a small 

proportion of the total range of the 

species. The Tangipahoa population 

made up 5.4 percent of the species’ 

historical range, and currently makes up 

7.6 percent of the species’ range. The 

Tickfaw population made up 3 percent 

of the species’ historical range, and now 

makes up 4.4 percent of the species’ 

range. In contrast, the Pascagoula 

currently makes up 70 percent of the 

occupied range and has high resiliency, 

the lower Pearl currently makes up 14 

percent of the occupied range and has 

low resiliency, and the upper Pearl 

makes up 4 percent of the currently 

occupied range and has low resiliency. 

Overall, we consider Obovaria cf. 

unicolor to have moderate redundancy. 

Future Conditions 

As a part of the SSA, we considered 

multiple future influences and projected 

responses by Alabama hickorynut and 

Obovaria cf. unicolor. Because we 

determined that the current condition of 

Alabama hickorynut is consistent with 

an endangered status (see Determination 

of Alabama hickorynut Status, below), 

we are not presenting the results of the 

future scenarios for Alabama hickorynut 

in this proposed rule. Below. we present 

the results for Obovaria cf. unicolor. 

Please refer to the SSA report (Service 

2023, pp. 51–55) for the full analysis of 

future scenarios for both species. 

Obovaria cf. unicolor is most 

susceptible to climate change, sea level 

rise, and destruction and/or 

modification of habitat. We developed 

multiple future scenarios to capture the 

range of uncertainties regarding sea 

level rise and the projected responses by 

Obovaria cf. unicolor. 

Climate Change 

Climate change predictions under all 

scenarios are likely to exacerbate the 

currently declining trend of Obovaria cf. 

unicolor. Most climate change models 

predict an increase in extreme weather 

events, such as droughts and heavy 

precipitation (IPCC 2022 p. 15), and 

they project that average annual 

temperatures will increase, cold days 

will become less frequent, the freezefree season will lengthen by up to a 

month, temperatures exceeding 95 

degrees Fahrenheit (°F) will increase, 

and heat waves will become longer 

(Ingram et al. 2013, p. 32; IPCC 2021, 

entire). Since the 1970s, moderate to 

severe droughts in the Southeast have 

increased by 12 percent during spring 

months and by 14 percent during 

summer months (Jones et al. 2015, p. 

126). Declines of 65–83 percent in 

mussel density were observed after 

severe droughts in the upper reaches of 

the Sipsey River, and decreases in 

dissolved oxygen and increases in 

temperature were cited as causes for the 

decline (Haag and Warren 2008, pp. 

1165–1178). As mentioned, Obovaria cf. 

unicolor is sensitive to drops and 

fluctuations in dissolved oxygen and to 

elevated temperatures (van Ee et al. 

2022, pp.1–14) since it is naturally 

adapted to larger riverine systems. The 

effects of higher temperatures and 

reduced flows are expected to affect 

subpopulations of the species in 

upstream reaches first, reducing overall 

population resiliency (Haag and Warren 

2008, pp.1165–1178). 

Sea Level Rise 

Sea level rise (SLR) impacts future 

resilience of Obovaria cf. unicolor by 

influencing the area occupied and 

habitat available through increased 

salinity. To estimate loss/degradation of 


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habitat due to inundation from SLR, we 

used the National Oceanic and 

Atmospheric Administration’s 

(NOAA’s) shapefiles available at their 

online sea level rise viewer (NOAA 

2020, unpaginated). Projected SLR 

scenarios from NOAA provide a range of 

inundation levels from low to extreme. 

We chose NOAA’s intermediate-high 

and extreme scenarios, which 

correspond to the representative 

concentration pathway (RCP)4.5 and 

RCP8.5 emission scenarios, to 

encompass the breadth of possible 

scenarios (IPCC 2013, p. 20). Local 

scenarios are available at a location near 

Mobile Bay in Alabama, and they 

provide estimates of SLR affecting the 

range of Obovaria cf. unicolor at decadal 

time steps out to the year 2100. We 

found the average+ SLR estimate for the 

intermediate and extreme NOAA 

scenarios from this station and used the 

estimate (rounded to the nearest foot, 

because shapefiles are only available at 

1-foot increments) to project estimated 

habitat loss at years 2040 and 2070. 

Where SLR estimates overlap with 

known occupied portions of the river 

system, we assume that area is no longer 

occupiable by Obovaria cf. unicolor. 

As expected, projections of SLR only 

impacted Obovaria cf. unicolor in 

occupied habitat of coastal drainages. 

Obovaria cf. unicolor has projected SLR 

impacts in the three Pontchartrain 

drainages: the Amite, the Tickfaw, and 

the Tangipahoa. The Amite population 

is already considered extirpated, but we 

expect SLR to result in contraction of 

the Tickfaw and Tangipahoa 

populations in the future, which would 

reduce each of these population’s 

resiliency from high resiliency to 

moderate resiliency, and thus reduce 

their contribution to species 

representation and redundancy in the 

future. In the Tickfaw, we project a loss 

of 8.4 to 17.9 river miles, which 

corresponds to a 24 to 51 percent range 

reduction, and in the Tangipahoa, we 

project a loss of 4.5 to 7.3 river miles, 

which corresponds to a 7.5 to 12.1 

percent range reduction. 

Future Viability Summary 

In summary, we expect decreased 

resiliency, redundancy, and 

representation in the future for Obovaria 

cf. unicolor. The magnitude of reduction 

in resiliency, redundancy, and 

representation for this species will 

depend on the climate change scenario 

realized and the outcomes of future 

water engineering projects, which are 

the two main influences that are 

expected to exacerbate the negative 

impacts that populations are 

experiencing due to habitat 

fragmentation and range constriction. 

Obovaria cf. unicolor will be 

vulnerable to future impacts throughout 

its remaining range. The effects of 

climate change from sea level rise will 

reduce the already limited ranges of the 

Tangipahoa and Tickfaw populations. 

Obovaria cf. unicolor will also 

experience negative impacts from the 

increased temperatures, increased 

occurrences of drought, and reduced 

dissolved oxygen across the species’ 

range. Meanwhile, the effects of future 

channel modification projects have the 

potential to reduce resiliency in the 

Upper Pearl, Lower Pearl, and 

Pascagoula populations. Only one 

population will have high resiliency 

(Pascagoula), two will have moderate 

resiliency (Tangipahoa and Tickfaw), 

and one will have low resiliency (Pearl); 

the Amite population would remain 

extirpated. Additionally, due to this 

expected decrease in future population 

resiliency and to the expected 

continued reduction in population 

ranges, species redundancy and 

representation are also expected to 

decrease in the future. Representation 

will move from currently moderate to 

low. This will result in decreased 

adaptive capacity. Redundancy will 

move from currently moderate to low. 

Determination of Status 

Section 4 of the Act (16 U.S.C. 1533) 

and its implementing regulations (50 

CFR part 424) set forth the procedures 

for determining whether a species meets 

the definition of an endangered species 

or a threatened species. The Act defines 

an ‘‘endangered species’’ as a species in 

danger of extinction throughout all or a 

significant portion of its range and a 

‘‘threatened species’’ as a species likely 

to become an endangered species within 

the foreseeable future throughout all or 

a significant portion of its range. The 

Act requires that we determine whether 

a species meets the definition of an 

endangered species or a threatened 

species because of any of the following 

factors: (A) The present or threatened 

destruction, modification, or 

curtailment of its habitat or range; (B) 

overutilization for commercial, 

recreational, scientific, or educational 

purposes; (C) disease or predation; (D) 

the inadequacy of existing regulatory 

mechanisms; or (E) other natural or 

manmade factors affecting its continued 

existence. 

i. Alabama Hickorynut 

Alabama Hickorynut—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 the 

primary threats affecting the biological 

status of Alabama hickorynut include 

the following: sedimentation, altered 

flow regimes, point and nonpoint source 

pollution, and direct and indirect 

impacts of development and 

anthropogenic disturbances (Factor A), 

and impacts of climate change, 

including sea level rise (Factor E). We 

delineated 16 Alabama hickorynut 

subpopulations in three populations 

across the species’ historical range; 13 

subpopulations in one population are 

extant. In our current condition 

analysis, we assessed habitat condition 

and population demographics to 

determine the species’ current 

resiliency. Populations with 

occurrences since 2000 were considered 

current. Two Alabama hickorynut 

populations in the Mobile River Basin 

have been extirpated (Alabama and 

Cahaba) and are not expected to 

naturally re-establish. The one extant 

Alabama hickorynut population exhibits 

low current resiliency (Tombigbee). 

Based on differences in ecological 

settings and connectivity at a larger 

scale, we delineated two representative 

units for the Alabama hickorynut in the 

Mobile River Basin: the extirpated 

Eastern Mobile River Basin (Alabama 

and Cahaba Rivers) and the Western 

Mobile River Basin (Tombigbee River). 

The extant Western Mobile River Basin 

representative unit is highly fragmented 

with no connectivity between 

subpopulations following the 

completion of the TTW in 1984. This 

project led to the extirpation of the 

species from the Tombigbee mainstem 

due to dredging, channelization, and 

installation of impoundments, which 

eliminated gene flow between the 

tributaries of the Tombigbee River. We 

determined that the Alabama 

hickorynut’s overall ability to adapt to 

changing environmental conditions 

(representation or adaptive capacity) is 

low. 

With one population in low 

resiliency, the Alabama hickorynut has 

low redundancy. However, some 

redundancy is possible within the 

population, with 7 of the 13 

subpopulations distributed such that it 

would be unlikely for one catastrophic 

event to extirpate all the subpopulations 

at once. However, six of seven 

subpopulations have low abundance, 

making them more vulnerable to 


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potential extirpation by catastrophic 

events. 

Our analysis of the species’ current 

condition, as well as the conservation 

efforts discussed above, show that the 

Alabama hickorynut is currently in 

danger of extinction throughout all of its 

range due to the severity and immediacy 

of threats currently impacting its 

populations. The threats are occurring 

across the entire range of this species, 

and the species currently exhibits low 

resiliency, redundancy, and 

representation. Thus, after assessing the 

best scientific and commercial data 

available, we determined that the 

species meets the definition of an 

endangered species throughout all of its 

range. 

Alabama Hickorynut—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 within the 

foreseeable future throughout all or a 

significant portion of its range. We have 

determined that the Alabama 

hickorynut is in danger of extinction 

throughout all of its range and 

accordingly did not undertake an 

analysis of any significant portion of its 

range. Because the Alabama hickorynut 

warrants listing as endangered 

throughout all of its range, our 

determination does not conflict with the 

decision in Center for Biological 

Diversity v. Everson, 435 F. Supp. 3d. 69 

(D.D.C. 2020) (Everson), because that 

decision related to significant portion of 

the range analyses for species that 

warrant listing as threatened, not 

endangered, throughout all of their 

range. 

Alabama Hickorynut—Determination of 

Status 

Our review of the best available 

scientific and commercial information 

indicates that the Alabama hickorynut 

meets the Act’s definition of an 

endangered species. Therefore, we 

propose to list the Alabama hickorynut 

as an endangered species in accordance 

with sections 3(6) and 4(a)(1) of the Act. 

ii. Obovaria cf. Unicolor 

Obovaria cf. Unicolor—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 

primary threats affecting the biological 

status of Obovaria cf. unicolor include: 

sedimentation, altered flow regimes, 

point and nonpoint source pollution, 

and direct and indirect impacts of 

development and anthropogenic 

disturbances (Factor A), and impacts of 

climate change, including sea level rise 

(Factor E). 

Historically, Obovaria cf. unicolor 

was known from 1,454 river miles in 

Mississippi and Louisiana. The species 

currently occupies 788 river miles, or 54 

percent of its historical range. We 

delineated 13 subpopulations in 6 

populations across the species’ 

historical range. The Amite population 

of Obovaria cf. unicolor is extirpated. Of 

five extant populations, two exhibit low 

current resiliency (Upper Pearl, Lower 

Pearl), and three exhibit high current 

resiliency (Pascagoula, Tangipahoa, 

Tickfaw). 

Although Obovaria cf. unicolor is 

extant in four of five representative 

units: Pascagoula, Pearl, Tangipahoa, 

and Tickfaw, connectivity within and 

between the representative units is very 

low due to unsuitable habitat 

conditions. The species declines in 

abundance and distribution indicate it 

may not be able to tolerate major 

environmental changes; therefore, we 

determined Obovaria cf. unicolor also 

has minimal ability to adapt to changing 

environmental conditions (adaptive 

capacity). However, three Obovaria cf. 

unicolor populations currently with 

high resiliency are distributed across the 

species range, so the species currently 

has moderate redundancy. Given that 

Obovaria cf. unicolor is still present in 

four representative units, three of the 

populations are high resiliency, and 

these populations are distributed across 

the range, Obovaria cf. unicolor is not 

currently in danger of extinction. 

In the future, continued modification 

to channels and resource extraction are 

expected to occur within the range of 

Obovaria cf. unicolor. Additionally, one 

to 5 feet of sea level rise (depending on 

the sea level rise scenario) would affect 

the Tickfaw and Tangipahoa 

populations, causing a range contraction 

for the species. Species resilience will 

decrease, with only one population with 

high resiliency (Pascagoula), two with 

moderate resiliency (Tangipahoa and 

Tickfaw), and one with low resiliency 

(Pearl); the Amite population will 

remain extirpated. Representation will 

move from currently moderate to low. 

This will result in decreased adaptive 

capacity. Redundancy will move from 

currently moderate to low. 

Thus, after assessing the best 

scientific and commercial data 

available, we determine that Obovaria 

cf. unicolor is not currently in danger of 

extinction but is likely to become in 

danger of extinction within the 

foreseeable future throughout all of its 

range. 

Obovaria cf. Unicolor—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 within the 

foreseeable future throughout all or a 

significant portion of its range. The 

court in Everson 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’’ (hereafter 

‘‘Final Policy’’; 79 FR 37578, July 1, 

2014) that provided if the Services 

determine that a species is threatened 

throughout all of its range, the Services 

will not analyze whether the species is 

endangered in a significant portion of its 

range. 

Therefore, we proceed to evaluating 

whether the species is endangered in a 

significant portion of its range—that is, 

whether there is any portion of the 

species’ range for which both (1) the 

portion is significant; and (2) the species 

is in danger of extinction in that 

portion. Depending on the case, it might 

be more efficient for us to address the 

‘‘significance’’ question or the ‘‘status’’ 

question first. We can choose to address 

either question first. Regardless of 

which question we address first, if we 

reach a negative answer with respect to 

the first question that we address, we do 

not need to evaluate the other question 

for that portion of the species’ range. 

Following the court’s holding in 

Everson, we now consider whether the 

species is in danger of extinction in a 

significant portion of its range. In 

undertaking this analysis for Obovaria 

cf. unicolor, we choose to address the 

status question first. 

We evaluated the range of the 

Obovaria cf. unicolor to determine if the 

species is in danger of extinction in any 

portion of its range. The range of the 

species can theoretically be divided into 

portions in an infinite number of ways. 

We focused our analysis on portions of 

the species’ range that may meet the 

definition of an endangered species. For 

Obovaria cf. unicolor, we considered 

whether the threats or their effects on 

the species are greater in any 

biologically meaningful portion of the 

species’ range than in other portions 

such that the species is in danger of 

extinction in that portion. 

We examined the following threats: 

sedimentation, altered flow regimes, 

point and nonpoint source pollution, 

impacts of climate change, including sea 


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level rise, and direct and indirect 

impacts of development and 

anthropogenic disturbances, including 

cumulative effects. 

The Pearl River unit (upper and lower 

populations) is the only unit that could 

conceivably be in danger of extinction 

now. The Amite population is 

extirpated, and lost historical range 

cannot be a significant portion of a 

species’ range under the Final Policy. 

The Pascagoula, Tangipahoa, and 

Tickfaw populations all currently 

exhibit high resiliency. On the other 

hand, the Pearl River unit has highly 

fragmented habitat and low resiliency, 

representation, and redundancy. 

Additionally, within this unit, Obovaria 

cf. unicolor has lost a large portion of its 

range, and the Pearl River (above and 

below the reservoir) has experienced a 

high degree of channel modification and 

changes in flow regime, resulting in 

degraded and unsuitable habitat 

conditions for Obovaria cf. unicolor 

Therefore, the populations in this unit 

may have a different status than the rest 

of the range (i.e., this portion may be in 

danger of extinction). 

As a result, we move to the 

significance question. We considered 

whether the portion may (1) occur in a 

unique habitat or ecoregion for the 

species; (2) contain high-quality or highvalue habitat relative to the remaining 

portions of the range; (3) contain habitat 

that is essential to a specific life-history 

function for the species and that is not 

found in the other portions (for 

example, the principal breeding ground 

for the species); or (4) contain a large 

geographic portion of the suitable 

habitat relative to the remaining 

portions of the range for the species. 

The Pearl River unit is not a significant 

portion of the range because it does not 

represent a large geographic portion of 

Obovaria cf. unicolor’s range (i.e., it 

constitutes approximately 18 percent of 

the occupied range), it is not highquality habitat relative to the remaining 

portion of the range (the highest quality 

habitat is in the Pascagoula unit), and it 

does not provide unique or important 

resources to a particular life stage of 

Obovaria cf. unicolor. 

Therefore, no portion of the species’ 

range provides a basis for determining 

that the species is in danger of 

extinction in a significant portion of its 

range, and we determine that the 

species is likely to become in danger of 

extinction within the foreseeable future 

throughout all of its range. This does not 

conflict with the courts’ holdings in 

Desert Survivors v. Department of the 

Interior, 321 F. Supp. 3d 1011, 1070–74 

(N.D. Cal. 2018), and Center for 

Biological Diversity v. Jewell, 248 F. 

Supp. 3d, 946, 959 (D. Ariz. 2017), 

because, in reaching this conclusion, we 

did not apply the aspects of the Final 

Policy, including the definition of 

‘‘significant’’ that those court decisions 

held to be invalid. 

Obovaria cf. Unicolor—Determination of 

Status 

Our review of the best available 

scientific and commercial information 

indicates that Obovaria cf. unicolor 

meets the Act’s definition of a 

threatened species. Therefore, we 

propose to list Obovaria cf. unicolor as 

a threatened species in accordance with 

sections 3(20) and 4(a)(1) of the Act. 

Available Conservation Measures 

Conservation measures provided to 

species listed as endangered or 

threatened species under the Act 

include recognition as a listed species, 

planning and implementation of 

recovery actions, requirements for 

Federal protection, and prohibitions 

against certain practices. Recognition 

through listing results in public 

awareness, and conservation by Federal, 

State, Tribal, and local agencies, foreign 

governments, private organizations, and 

individuals. The Act encourages 

cooperation with the States and other 

countries and calls for recovery actions 

to be carried out for listed species. The 

protection required by Federal agencies, 

including the Service, and the 

prohibitions against certain activities 

are discussed, in part, below. 

The primary purpose of the Act is the 

conservation of endangered and 

threatened species and the ecosystems 

upon which they depend. The ultimate 

goal of such conservation efforts is the 

recovery of these listed species, so that 

they no longer need the protective 

measures of the Act. Section 4(f) of the 

Act calls for the Service to develop and 

implement recovery plans for the 

conservation of endangered and 

threatened species. The goal of this 

process is to restore listed species to a 

point where they are secure, selfsustaining, and functioning components 

of their ecosystems. 

The recovery planning process begins 

with development of a recovery outline 

made available to the public soon after 

a final listing determination. The 

recovery outline guides the immediate 

implementation of urgent recovery 

actions while a recovery plan is being 

developed. Recovery teams (composed 

of species experts, Federal and State 

agencies, nongovernmental 

organizations, and stakeholders) may be 

established to develop and implement 

recovery plans. The recovery planning 

process involves the identification of 

actions that are necessary to halt and 

reverse the species’ decline by 

addressing the threats to its survival and 

recovery. The recovery plan identifies 

recovery criteria for review of when a 

species may be ready for reclassification 

from endangered to threatened 

(‘‘downlisting’’) or removal from 

protected status (‘‘delisting’’), and 

methods for monitoring recovery 

progress. Recovery plans also establish 

a framework for agencies to coordinate 

their recovery efforts and provide 

estimates of the cost of implementing 

recovery tasks. Revisions of the plan 

may be done to address continuing or 

new threats to the species, as new 

substantive information becomes 

available. The recovery outline, draft 

recovery plan, final recovery plan, and 

any revisions will be available on our 

website as they are completed (https:// 

www.fws.gov/program/endangeredspecies), or from our Alabama 

Ecological Services Field Office (see FOR

FURTHER INFORMATION CONTACT). 

Implementation of recovery actions 

generally requires the participation of a 

broad range of partners, including other 

Federal agencies, States, Tribes, 

nongovernmental organizations, 

businesses, and private landowners. 

Examples of recovery actions include 

habitat restoration (e.g., restoration of 

native vegetation), research, captive 

propagation and reintroduction, and 

outreach and education. The recovery of 

many listed species cannot be 

accomplished solely on Federal lands 

because their ranges 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 these species are listed, funding for 

recovery actions will be available from 

a variety of sources, including Federal 

budgets, State programs, and cost-share 

grants for non-Federal landowners, the 

academic community, and 

nongovernmental organizations. In 

addition, pursuant to section 6 of the 

Act, the State of Alabama would be 

eligible for Federal funds to implement 

management actions that promote the 

protection or recovery of Alabama 

hickorynut or Obovaria cf. unicolor. 

Information on our grant programs that 

are available to aid species recovery can 

be found at: https://www.fws.gov/ 

service/financial-assistance. 

Although the Alabama hickorynut 

and Obovaria cf. unicolor are only 

proposed for listing under the Act at 

this time, please let us know if you are 

interested in participating in recovery 

efforts for this species. Additionally, we 

invite you to submit any new 


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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 of the Act is titled, 

‘‘Interagency Cooperation,’’ and it 

mandates all Federal action agencies to 

use their existing authorities to further 

the conservation purposes of the Act 

and to ensure that their actions are not 

likely to jeopardize the continued 

existence of listed species or adversely 

modify critical habitat. Regulations 

implementing section 7 are codified at 

50 CFR part 402. 

Section 7(a)(2) states that each Federal 

action agency shall, in consultation with 

the Secretary, ensure that any action 

they authorize, fund, or carry out is not 

likely to jeopardize the continued 

existence of a listed species or result in 

the destruction or adverse modification 

of designated critical habitat. Each 

Federal agency shall review its action at 

the earliest possible time to determine 

whether it may affect listed species or 

critical habitat. If a determination is 

made that the action may affect listed 

species or critical habitat, formal 

consultation is required (50 CFR 

402.14(a)), unless the Service concurs in 

writing that the action is not likely to 

adversely affect listed species or critical 

habitat. At the end of a formal 

consultation, the Service issues a 

biological opinion, containing its 

determination of whether the Federal 

action is likely to result in jeopardy or 

adverse modification. 

In contrast, section 7(a)(4) of the Act 

requires Federal agencies to confer with 

the Service on any action which is 

likely to jeopardize the continued 

existence of any species proposed to be 

listed under the Act or result in the 

destruction or adverse modification of 

critical habitat proposed to be 

designated for such species. Although 

the conference procedures are required 

only when an action is likely to result 

in jeopardy or adverse modification, 

action agencies may voluntarily confer 

with the Service on actions that may 

affect species proposed for listing or 

critical habitat proposed to be 

designated. In the event that the subject 

species is listed or the relevant critical 

habitat is designated, a conference 

opinion may be adopted as a biological 

opinion and serve as compliance with 

section 7(a)(2) of the Act. 

Examples of discretionary actions for 

Alabama hickorynut and Obovaria cf. 

unicolor that may be subject to 

conference and consultation under 

section 7 are land management or other 

landscape-altering activities on Federal 

lands administered by the USACE, U.S. 

Department of Agriculture (including 

the Natural Resources Conservation 

Service, Farm Services Agency, and U.S. 

Forest Service), U.S. Department of 

Energy, U.S. Department of 

Transportation, U.S. Environmental 

Protection Agency (EPA), and U.S. Fish 

and Wildlife Service, as well as actions 

on State, Tribal, local, or private lands 

that require a Federal permit (such as a 

permit from the USACE 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. Federal agencies should 

coordinate with the local Service Field 

Office (see FOR FURTHER INFORMATION

CONTACT, above) with any specific 

questions on section 7 consultation and 

conference requirements. 

The Act and its implementing 

regulations set forth a series of general 

prohibitions and exceptions that apply 

to endangered wildlife. The prohibitions 

of section 9(a)(1) of the Act, and the 

Service’s implementing regulations 

codified at 50 CFR 17.21, make it illegal 

for any person subject to the jurisdiction 

of the United States to commit, to 

attempt to commit, to solicit another to 

commit, or to cause to be committed any 

of the following acts with regard to any 

endangered wildlife: (1) import into, or 

export from, the United States; (2) take 

(which includes harass, harm, pursue, 

hunt, shoot, wound, kill, trap, capture, 

or collect, or to attempt to engage in any 

such conduct) within the United States, 

within the territorial sea of the United 

States, or on the high seas; (3) possess, 

sell, deliver, carry, transport, or ship, by 

any means whatsoever, any such 

wildlife that has been taken illegally; (4) 

deliver, receive, carry, transport, or ship 

in interstate or foreign commerce, by 

any means whatsoever and in the course 

of commercial activity; or (5) sell or 

offer for sale in interstate or foreign 

commerce. Certain exceptions to these 

prohibitions apply to employees or 

agents of the Service, the National 

Marine Fisheries Service, other Federal 

land management agencies, and State 

conservation agencies. 

We may issue permits to carry out 

otherwise prohibited activities 

involving endangered wildlife under 

certain circumstances. Regulations 

governing permits for endangered 

wildlife are codified at 50 CFR 17.22, 

and general Service permitting 

regulations are codified at 50 CFR part 

13. With regard to endangered wildlife, 

a permit may be issued: for scientific 

purposes, for enhancing the propagation 

or survival of the species, or for take 

incidental to otherwise lawful activities. 

The statute also contains certain 

exemptions from the prohibitions, 

which are found in sections 9 and 10 of 

the Act. 

II. Protective Regulations Under 

Section 4(d) of the Act for Obovaria cf. 

Unicolor 

Background 

Section 4(d) of the Act contains two 

sentences. The first sentence states that 

the Secretary shall issue such 

regulations as she deems necessary and 

advisable to provide for the 

conservation of species listed as 

threatened species. 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. 

With these two sentences in section 

4(d), Congress delegated broad authority 

to the Secretary to determine what 

protections would be necessary and 

advisable to provide for the 

conservation of threatened species, and 

even broader authority to put in place 

any of the section 9 prohibitions for a 

given species. 

The courts have recognized the extent 

of the Secretary’s discretion under this 

standard to develop rules that are 

appropriate for the conservation of a 

species. For example, courts have 

upheld, as a valid exercise of agency 

authority, rules developed under section 

4(d) that included limited prohibitions 

against takings (see Alsea Valley 

Alliance v. Lautenbacher, 2007 WL 

2344927 (D. Or. 2007); Washington 

Environmental Council v. National 

Marine Fisheries Service, 2002 WL 

511479 (W.D. Wash. 2002)). Courts have 

also upheld 4(d) rules that do not 

address all of the threats a species faces 

(see State of Louisiana v. Verity, 853 

F.2d 322 (5th Cir. 1988)). As noted in 

the legislative history when the Act was 

initially enacted, ‘‘once an animal is on 

the threatened list, the Secretary has an 


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almost infinite number of options 

available to [her] with regard to the 

permitted activities for those species. 

[She] may, for example, permit taking, 

but not importation of such species, or 

[she] may choose to forbid both taking 

and importation but allow the 

transportation of such species’’ (H.R. 

Rep. No. 412, 93rd Cong., 1st Sess. 

1973). 

The provisions of this species’ 

proposed protective regulations under 

section 4(d) of the Act are one of many 

tools that we would use to promote the 

conservation of Obovaria cf. unicolor. 

The proposed protective regulations 

would apply only if and when we make 

final the listing of Obovaria cf. unicolor 

as a threatened species. Nothing in 4(d) 

rules 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 

Obovaria cf. unicolor. As mentioned 

previously in Available Conservation 

Measures, section 7(a)(2) of the Act 

requires Federal agencies, including the 

Service, to ensure that any action they 

authorize, fund, or carry out is not likely 

to jeopardize the continued existence of 

any endangered species or threatened 

species or result in the destruction or 

adverse modification of designated 

critical habitat of such species. In 

addition, even before the listing of any 

species or the designation of its critical 

habitat is finalized, section 7(a)(4) of the 

Act requires Federal agencies to confer 

with the Service on any agency action 

which is likely to jeopardize the 

continued existence of any species 

proposed to be listed under the Act or 

result in the destruction or adverse 

modification of critical habitat proposed 

to be designated for such species. These 

requirements are the same for a 

threatened species regardless of what is 

included in its 4(d) rule. 

Section 7 consultation is required for 

Federal actions that ‘‘may affect’’ a 

listed species regardless of whether take 

caused by the activity is prohibited or 

excepted by a 4(d) rule (under general 

application of the ‘‘blanket rule’’ option 

(for more information, see 89 FR 23919, 

April 5, 2024) or a species-specific 4(d) 

rule). A 4(d) rule does not change the 

process and criteria for informal or 

formal consultations and does not alter 

the analytical process used for 

biological opinions or concurrence 

letters. For example, as with an 

endangered species, if a Federal agency 

determines that an action is ‘‘not likely 

to adversely affect’’ a threatened 

species, this will require the Service’s 

written concurrence (50 CFR 402.13(c)). 

Similarly, if a Federal agency 

determinates that an action is ‘‘likely to 

adversely affect’’ a threatened species, 

the action will require formal 

consultation with the Service and the 

formulation of a biological opinion (50 

CFR 402.14(a)). Because consultation 

obligations and processes are unaffected 

by 4(d) rules, we may consider 

developing tools to streamline future 

intra-Service and interagency 

consultations for actions that result in 

forms of take that are not prohibited by 

the 4(d) rule (but that still require 

consultation). These tools may include 

consultation guidance, Information for 

Planning and Consultation effects 

determination keys, template language 

for biological opinions, or programmatic 

consultations. 

Provisions of the Proposed 4(d) Rule 

Exercising the Secretary’s authority 

under section 4(d) of the Act, we have 

developed a proposed rule that is 

designed to address Obovaria cf. 

unicolor’s conservation needs. As 

discussed previously under Summary of 

Biological Status and Threats, we have 

concluded that Obovaria cf. unicolor is 

likely to become in danger of extinction 

within the foreseeable future primarily 

due to sedimentation, altered flow 

regimes, point and nonpoint source 

pollution, impacts of climate change, 

including sea level rise, and direct and 

indirect impacts of development and 

anthropogenic disturbances. There are 

other activities that could affect the 

species and its habitat if they occur in 

areas occupied by the species, such as 

impacts to water quality and quantity. 

Section 4(d) requires the Secretary to 

issue such regulations as she deems 

necessary and advisable to provide for 

the conservation of each threatened 

species and authorizes the Secretary to 

include among those protective 

regulations any of the prohibitions that 

section 9(a)(1) of the Act prescribes for 

endangered species. We are not required 

to make a ‘‘necessary and advisable’’ 

determination when we apply or do not 

apply specific section 9 prohibitions to 

a threatened species (In re: Polar Bear 

Endangered Species Act Listing and 4(d) 

Rule Litigation, 818 F. Supp. 2d 214, 

228 (D.D.C. 2011) (citing Sweet Home 

Chapter of Cmtys. for a Great Or. v. 

Babbitt, 1 F.3d 1, 8 (D.C. Cir. 1993), 

rev’d on other grounds, 515 U.S. 687 

(1995))). Nevertheless, even though we 

are not required to make such a 

determination, we have chosen to be as 

transparent as possible and explain 

below why we find that, if finalized, the 

protections, prohibitions, and 

exceptions in this proposed rule as a 

whole would satisfy the requirement in 

section 4(d) of the Act to issue 

regulations deemed necessary and 

advisable to provide for the 

conservation of the Obovaria cf. 

unicolor. 

The protective regulations we are 

proposing for Obovaria cf. unicolor 

incorporate prohibitions from section 

9(a)(1) of the Act to address the threats 

to the species. The prohibitions of 

section 9(a)(1) of the Act, and 

implementing regulations codified at 50 

CFR 17.21, make it illegal for any person 

subject to the jurisdiction of the United 

States to commit, to attempt to commit, 

to solicit another to commit or to cause 

to be committed any of the following 

acts with regard to any endangered 

wildlife: (1) import into, or export from, 

the United States; (2) take (which 

includes harass, harm, pursue, hunt, 

shoot, wound, kill, trap, capture, or 

collect) within the United States, within 

the territorial sea of the United States, 

or on the high seas; (3) possess, sell, 

deliver, carry, transport, or ship, by any 

means whatsoever, any such wildlife 

that has been taken illegally; (4) deliver, 

receive, carry, transport, or ship in 

interstate or foreign commerce, by any 

means whatsoever and in the course of 

commercial activity; or (5) sell or offer 

for sale in interstate or foreign 

commerce. 

In particular, this proposed 4(d) rule 

would provide for the conservation of 

the Obovaria cf. unicolor by prohibiting 

the following activities, unless they fall 

within specific exceptions or are 

otherwise authorized or permitted: 

importing or exporting; take; possession 

and other acts with unlawfully taken 

specimens; delivering, receiving, 

carrying, transporting, or shipping in 

interstate or foreign commerce in the 

course of commercial activity; or selling 

or offering for sale in interstate or 

foreign commerce. 

Under the Act, ‘‘take’’ means to 

harass, harm, pursue, hunt, shoot, 

wound, kill, trap, capture, or collect, or 

to attempt to engage in any such 

conduct. Some of these provisions have 

been further defined in regulations at 50 

CFR 17.3. Take can result knowingly or 

otherwise, by direct and indirect 

impacts, intentionally or incidentally. 

Regulating take would help preserve the 

species’ remaining populations and 

decrease synergistic, negative effects 

from other ongoing or future threats. 

Therefore, we propose to prohibit take 

of Obovaria cf. unicolor, except for take 

resulting from those actions and 

activities specifically excepted by the 

4(d) rule. 

Exceptions to the prohibition on take 

would include all of the general 

exceptions to the prohibition on take of 


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endangered wildlife, as set forth in 50 

CFR 17.21, and additional exceptions, 

as described below. 

Despite the prohibitions regarding 

threatened species, we may under 

certain circumstances issue permits to 

carry out one or more otherwiseprohibited activities, including those 

described above. The regulations that 

govern permits for threatened wildlife 

state that the Director may issue a 

permit authorizing any activity 

otherwise prohibited with regard to 

threatened species. These include 

permits issued for the following 

purposes: for scientific purposes, to 

enhance propagation or survival, for 

economic hardship, for zoological 

exhibition, for educational purposes, for 

incidental taking, or for special 

purposes consistent with the purposes 

of the Act (see 50 CFR 17.32). The 

statute also contains certain exemptions 

from the prohibitions, which are found 

in sections 9 and 10 of the Act. 

In addition, to further the 

conservation of the species, any 

employee or agent of the Service, any 

other Federal land management agency, 

the National Marine Fisheries Service, a 

State conservation agency, or a federally 

recognized Tribe, who is designated by 

their agency or Tribe for such purposes, 

may, when acting in the course of their 

official duties, take threatened wildlife 

without a permit if such action is 

necessary to: (i) Aid a sick, injured, or 

orphaned specimen; or (ii) dispose of a 

dead specimen; or (iii) salvage a dead 

specimen that may be useful for 

scientific study; or (iv) remove 

specimens that constitute a 

demonstrable but nonimmediate threat 

to human safety, provided that the 

taking is done in a humane manner; the 

taking may involve killing or injuring 

only if it has not been reasonably 

possible to eliminate such threat by live 

capturing and releasing the specimen 

unharmed, in an appropriate area. 

We recognize the special and unique 

relationship with our State natural 

resource agency partners in contributing 

to conservation of listed species. State 

agencies often possess scientific data 

and valuable expertise on the status and 

distribution of endangered, threatened, 

and candidate species of wildlife and 

plants. State agencies, because of their 

authorities and their close working 

relationships with local governments 

and landowners, are in a unique 

position to assist us in implementing all 

aspects of the Act. In this regard, section 

6 of the Act provides that we must 

cooperate to the maximum extent 

practicable with the States in carrying 

out programs authorized by the Act. 

Therefore, any qualified employee or 

agent of a State conservation agency that 

is a party to a cooperative agreement 

with us in accordance with section 6(c) 

of the Act, who is designated by his or 

her agency for such purposes, would be 

able to conduct activities designed to 

conserve Obovaria cf. unicolor that may 

result in otherwise prohibited take 

without additional authorization. 

The proposed 4(d) rule would also 

provide for the conservation of the 

species by allowing exceptions that 

incentivize conservation actions or that, 

while they may have some minimal 

level of take of Obovaria cf. unicolor, are 

not expected to rise to the level that 

would have a negative impact (i.e., 

would have only de minimis impacts) 

on the species’ conservation. The 

proposed exceptions to the prohibitions 

include (1) channel and bank restoration 

projects, (2) silviculture practices and 

forest management activities that 

implement State-approved best 

management practices (BMPs), and (3) 

transportation projects that avoid 

instream disturbance in waters occupied 

by Obovaria cf. unicolor. These 

proposed exceptions to the prohibitions 

are described further below and are 

expected to have negligible impacts to 

Obovaria cf. unicolor and its habitat. 

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 stream bank restoration projects 

require planting appropriate native 

vegetation, including woody species 

appropriate for the region and habitat. 

Actions related to these restoration 

projects that would negatively affect 

Obovaria cf. unicolor include individual 

mussels being removed, 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. This 

provision of the proposed 4(d) rule for 

channel and bank restoration would 

promote conservation of Obovaria cf. 

unicolor by excepting incidental take 

resulting from activities that would 

improve channel conditions and restore 

degraded, physically unstable streams 

or stream segments. We anticipate these 

activities will advance ecological 

conditions within a watershed to a more 

natural state that would benefit 

Obovaria cf. unicolor, providing for its 

conservation. 

The second exception is for incidental 

take resulting from silviculture practices 

and forest management activities that 

use State-approved BMPs to protect 

water and sediment quality and stream 

and riparian habitat. Silviculture and 

forest management activities that use 

State-approved BMPs to protect water 

and sediment quality and stream and 

riparian habitat would provide for the 

conservation of Obovaria cf. unicolor. 

Best management practices would have 

to be designed to reduce sedimentation, 

erosion, and bank destruction, thereby 

protecting instream habitat for the 

species. We recognize that silvicultural 

operations are widely implemented in 

accordance with State-approved BMPs 

(as reviewed by Cristan et al. 2018, 

entire), and the adherence to these 

BMPs broadly protects water quality, 

particularly related to sedimentation (as 

reviewed by Cristan et al. 2016, entire; 

Warrington et al. 2017, entire; Schilling 

et al. 2021, entire). This provision of the 

4(d) rule would promote conservation of 

Obovaria cf. unicolor by excepting from 

the prohibition on incidental take those 

silviculture and forest management 

activities that use State-approved BMPs 

because this exception would allow 

these activities to continue while 

protecting Obovaria cf. unicolor’s 

habitat. 

The third exception is for incidental 

take resulting from transportation 

projects that avoid or 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 Obovaria cf. unicolor. This 

provision of the 4(d) rule would 

promote conservation of Obovaria cf. 

unicolor by encouraging project designs 

that preserve and potentially improve 

stream habitat. 

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 


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essential for the conservation of the 

species. 

Our regulations at 50 CFR 424.02 

define the geographical area occupied 

by the species as an area that may 

generally be delineated around species’ 

occurrences, as determined by the 

Secretary (i.e., range). Such areas may 

include those areas used throughout all 

or part of the species’ life cycle, even if 

not used on a regular basis (e.g., 

migratory corridors, seasonal habitats, 

and habitats used periodically, but not 

solely by vagrant individuals). 

Conservation, as defined under 

section 3 of the Act, means to use and 

the use of all methods and procedures 

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 nonFederal landowners. Rather, designation 

requires that, where a landowner 

requests Federal agency funding or 

authorization for an action that may 

affect an area designated as critical 

habitat, the Federal agency consult with 

the Service under section 7(a)(2) of the 

Act. If the action may affect the listed 

species itself (such as for occupied 

critical habitat), the Federal agency 

would have already been required to 

consult with the Service even absent the 

designation because of the requirement 

to ensure that the action is not likely to 

jeopardize the continued existence of 

the species. Even if the Service were to 

conclude after consultation that the 

proposed activity is likely to result in 

destruction or adverse modification of 

the critical habitat, the Federal action 

agency and the landowner are not 

required to abandon the proposed 

activity, or to restore or recover the 

species; instead, they must implement 

‘‘reasonable and prudent alternatives’’ 

to avoid destruction or adverse 

modification of critical habitat. 

Under the first prong of the Act’s 

definition of critical habitat, areas 

within the geographical area occupied 

by the species at the time it was listed 

are included in a critical habitat 

designation if they contain physical or 

biological features (1) which are 

essential to the conservation of the 

species and (2) which may require 

special management considerations or 

protection. For these areas, critical 

habitat designations identify, to the 

extent known using the best scientific 

and commercial data available, those 

physical or biological features that are 

essential to the conservation of the 

species (such as space, food, cover, and 

protected habitat). 

Under the second prong of the Act’s 

definition of critical habitat, we can 

designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time it is listed, 

upon a determination that such areas 

are essential for the conservation of the 

species. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. 

Further, our Policy on Information 

Standards Under the Endangered 

Species Act (published in the Federal 

Register on July 1, 1994 (59 FR 34271)), 

the Information Quality Act (section 515 

of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106–554; H.R. 

5658)), and our associated Information 

Quality Guidelines provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our biologists, to 

the extent consistent with the Act and 

with the use of the best scientific data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. 

When we are determining which areas 

should be designated as critical habitat, 

our primary source of information is 

generally the information from the SSA 

report and information developed 

during the listing process for the 

species. Additional information sources 

may include any generalized 

conservation, criteria, or outline that 

may have been developed for the 

species; the recovery plan for the 

species; articles in peer-reviewed 

journals; conservation plans developed 

by States and counties; scientific status 

surveys and studies; biological 

assessments; other unpublished 

materials; or experts’ opinions or 

personal knowledge. 

Habitat is dynamic, and species may 

move from one area to another over 

time. We recognize that critical habitat 

designated at a particular point in time 

may not include all of the habitat areas 

that we may later determine are 

necessary for the recovery of the 

species. For these reasons, a critical 

habitat designation does not signal that 

habitat outside the designated area is 

unimportant or may not be needed for 

recovery of the species. Areas that are 

important to the conservation of the 

species, both inside and outside the 

critical habitat designation, will 

continue to be subject to: (1) 

Conservation actions implemented 

under section 7(a)(1) of the Act; (2) 

regulatory protections afforded by the 

requirement in section 7(a)(2) of the Act 

for Federal agencies to ensure their 

actions are not likely to jeopardize the 

continued existence of any endangered 

or threatened species; and (3) the 

prohibitions found in section 9 of the 

Act for Alabama hickorynut and in the 

4(d) rule for Obovaria cf. unicolor. 

Federally funded or permitted projects 

affecting listed species outside their 

designated critical habitat areas may 

still result in jeopardy findings in some 

cases. These protections and 

conservation tools will continue to 

contribute to recovery of the species. 

Similarly, critical habitat designations 

made on the basis of the best available 

information at the time of designation 

will not control the direction and 

substance of future recovery plans, 

habitat conservation plans (HCPs), or 

other species conservation planning 

efforts if new information available at 

the time of those planning efforts calls 

for a different outcome. 

Critical Habitat Determinability 

We determine that designating critical 

habitat for the Alabama hickorynut and 

Obovaria cf. unicolor is prudent. Our 

regulations at 50 CFR 424.12(a)(2) state 

that designation of 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.’’ 

We reviewed the available 

informationpertaining to the biological 

needs of the species and habitat 

characteristics where these species are 


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73348 Federal Register / Vol. 89, No. 175 / Tuesday, September 10, 2024 / Proposed Rules 

located. The species’ needs of both the 

Alabama hickorynut and Obovaria cf. 

unicolor are sufficiently well known, 

but a careful assessment of the 

economic impacts that may occur due to 

a critical habitat designation is ongoing. 

Until these efforts are complete, 

information sufficient to perform a 

required analysis of the impacts of the 

designation is lacking; therefore, we 

find designation of critical habitat for 

both the Alabama hickorynut and 

Obovaria cf. unicolor is prudent but not 

determinable at this time. We plan to 

publish a proposed rule to designate 

critical habitat for both the Alabama 

hickorynut and Obovaria cf. unicolor 

concurrently with the availability of an 

economic analysis of the proposed 

designation. 

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. 

National Environmental Policy Act (42 

U.S.C. 4321 et seq.) 

Regulations adopted pursuant to 

section 4(a) of the Act are exempt from 

the National Environmental Policy Act 

(NEPA; 42 U.S.C. 4321 et seq.) and do 

not require an environmental analysis 

under NEPA. We published a notice 

outlining our reasons for this 

determination in the Federal Register 

on October 25, 1983 (48 FR 49244). This 

includes listing, delisting, and 

reclassification rules, as well as critical 

habitat designations and speciesspecific protective regulations 

promulgated concurrently with a 

decision to list or reclassify a species as 

threatened. The courts have upheld this 

position (e.g., Douglas County v. 

Babbitt, 48 F.3d 1495 (9th Cir. 1995) 

(critical habitat); Center for Biological 

Diversity v. U.S. Fish and Wildlife 

Service, 2005 WL 2000928 (N.D. Cal. 

Aug. 19, 2005) (concurrent 4(d) rule)). 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994 

(Government-to-Government Relations 

with Native American Tribal 

Governments; 59 FR 22951, May 4, 

1994), Executive Order 13175 

(Consultation and Coordination with 

Indian Tribal Governments), the 

President’s memorandum of November 

30, 2022 (Uniform Standards for Tribal 

Consultation; 87 FR 74479, December 5, 

2022), and the Department of the 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

Federally recognized Tribes and Alaska 

Native Corporations (ANCs) on a 

government-to-government basis. In 

accordance with Secretary’s 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 range of the 

Alabama hickorynut or Obovaria cf. 

unicolor, and no Tribes will be affected 

if we list these species. 

References Cited 

A complete list of references cited in 

this rulemaking is available on the 

internet at https://www.regulations.gov 

and upon request from the Alabama 

Ecological Services Field Office (see FOR

FURTHER INFORMATION CONTACT). 

Authors 

The primary authors of this proposed 

rule are the staff members of the Fish 

and Wildlife Service’s Species 

Assessment Team and the Alabama 

Ecological Services Field Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Plants, Reporting and 

recordkeeping requirements, 

Transportation, Wildlife. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

as set forth below: 

PART 17—ENDANGERED AND 

THREATENED WILDLIFE AND PLANTS 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 1531– 

1544; and 4201–4245, unless otherwise 

noted. 

■ 2. In § 17.11, amend paragraph (h) by 

adding entries for ‘‘Hickorynut, [no 

common name]’’ and ‘‘Hickorynut, 

Alabama’’ to the List of Endangered and 

Threatened Wildlife in alphabetical 

order under CLAMS to read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Common name Scientific name Where listed Status Listing citations and applicable rules 

*******

CLAMS

*******

Hickorynut, [no common 

name].

Obovaria cf. unicolor ..... Wherever found T [Federal Register citation when published as a final rule]; 50 

CFR 17.45(i).4d

Hickorynut, Alabama ...... Obovaria unicolor .......... Wherever found E [Federal Register citation when published as a final rule]. 

* * * * * * * 


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Federal Register / Vol. 89, No. 175 / Tuesday, September 10, 2024 / Proposed Rules 73349 

■ 3. Further amend § 17.45, as proposed 

to be amended on March 20, 2023, at 88 

FR 16776 and on July 26, 2023, at 88 FR 

48294, by adding paragraph (i) to read 

as follows: 

§ 17.45 Species-specific rules—snails and 

clams. 

* * * * * 

(i) Hickorynut, [no common name] 

(Obovaria cf. unicolor)—(1) 

Prohibitions. The following prohibitions 

that apply to endangered wildlife also 

apply to Obovaria cf. unicolor. Except as 

provided under paragraph (i)(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 a 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)(3) 

and (4) for endangered wildlife. 

(iii) Take, as set forth at § 17.31(b). 

(iv) Possess and engage in other acts 

with unlawfully taken wildlife, as set 

forth at § 17.21(d)(2) for endangered 

wildlife. 

(v) Take incidental to an otherwise 

lawful activity caused by: 

(A) Channel and bank restoration 

projects for creation of natural, 

physically stable, ecologically 

functioning streams, taking into 

consideration connectivity with 

floodplain and groundwater aquifers. 

Stream bank restoration projects require 

planting appropriate native vegetation, 

including woody species appropriate for 

the region and habitat. 

(B) Silviculture practices and forest 

management activities that implement 

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 activities that disturb 

instream habitat, including, but not 

limited to, bridge designs that span the 

stream and avoid stream bank 

disturbance. 

Martha Williams, 

Director, U.S. Fish and Wildlife Service. 

[FR Doc. 2024–20158 Filed 9–9–24; 8:45 am] 

BILLING CODE 4333–15–P 


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