12338 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket No. FWS–R3–ES–2021–0061; 

FF09E21000 FXES1111090FEDR 223] 

RIN 1018–BE79 

Endangered and Threatened Wildlife 

and Plants; Threatened Species Status 

With Section 4(d) Rule for Western 

Fanshell and ‘‘Ouachita’’ Fanshell and 

Designation of Critical Habitat 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

list the western fanshell (Cyprogenia 

aberti), a freshwater mussel species 

from Arkansas, Kansas, Missouri, and 

Oklahoma, and the ‘‘Ouachita’’ fanshell 

(Cyprogenia cf. aberti), a freshwater 

mussel species from Arkansas and 

Louisiana, as threatened species and to 

designate critical habitat for these 

species under the Endangered Species 

Act of 1973, as amended (Act). This 

document also proposes a rule issued 

under section 4(d) of the Act (4(d) rule) 

for these mussel species and serves as 

our 12-month finding on a petition to 

list the western fanshell. The proposed 

critical habitat designation for the 

western fanshell totals approximately 

360 river miles (579 kilometers), all of 

which are occupied by the species, in 

Arkansas, Kansas, and Missouri, and the 

proposed critical habitat designation for 

the ‘‘Ouachita’’ fanshell totals 

approximately 294 river miles (474 

kilometers), all of which are occupied 

by the species, in Arkansas. We also 

announce the availability of a draft 

economic analysis (DEA) of the 

proposed designation of critical habitat 

for the western fanshell and ‘‘Ouachita’’ 

fanshell. If we finalize this rule as 

proposed, it would add these species to 

the List of Endangered and Threatened 

Wildlife and extend the Act’s 

protections to these species and their 

designated critical habitats. 

DATES: We will accept comments 

received or postmarked on or before 

May 2, 2022. Comments submitted 

electronically using the Federal 

eRulemaking Portal (see ADDRESSES, 

below) must be received by 11:59 p.m. 

Eastern Time on the closing date. We 

must receive requests for a public 

hearing, in writing, at the address 

shown in FOR FURTHER INFORMATION

CONTACT by April 18, 2022. 

ADDRESSES: 

Written comments: You may submit 

comments by one of the following 

methods: 

(1) Electronically: Go to the Federal 

eRulemaking Portal: http://

www.regulations.gov. In the Search box, 

enter FWS–R3–ES–2021–0061, which is 

the docket number for this rulemaking. 

Then, click on the Search button. On the 

resulting page, in the Search panel on 

the left side of the screen, under the 

Document Type heading, check the 

Proposed Rule box to locate this 

document. You may submit a comment 

by clicking on ‘‘Comment.’’ 

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

to: Public Comments Processing, Attn: 

FWS–R3–ES–2021–0061, U.S. Fish and 

Wildlife Service, MS: PRB/3W, 5275 

Leesburg Pike, Falls Church, VA 22041– 

3803. 

We request that you send comments 

only by the methods described above. 

We will post all comments on http://

www.regulations.gov. This generally 

means that we will post any personal 

information you provide us (see 

Information Requested, below, for more 

information). 

Availability of supporting materials: 

For the critical habitat designation, the 

coordinates or plot points or both from 

which the maps are generated are 

included in the decision file and are 

available at https://www.fws.gov/ 

midwest/ for western fanshell and 

https://www.fws.gov/southeast/ for 

‘‘Ouachita’’ fanshell, at http://

www.regulations.gov under Docket No. 

FWS–R3–ES–2021–0061, and at the 

Missouri and Arkansas Ecological 

Services Field Offices (see FOR FURTHER

INFORMATION CONTACT). Any additional 

tools or supporting information that we 

may develop for the critical habitat 

designation will also be available at the 

Service websites and field offices set out 

above or at http://www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: For 

information about the western fanshell, 

contact Karen Herrington, Field 

Supervisor, U.S. Fish and Wildlife 

Service, Missouri Ecological Services 

Field Office, 101 Park DeVille Drive, 

Suite A, Columbia, MO 65203–0057; 

telephone 573–234–2132. For 

information about the ‘‘Ouachita’’ 

fanshell, contact Melvin Tobin, Field 

Supervisor, U.S. Fish and Wildlife 

Service, Arkansas Ecological Services 

Field Office, 110 South Amity, Suite 

300, Conway, AR 72032–8975; 

telephone 501–513–4473. Persons who 

use a telecommunications device for the 

deaf (TDD) may call the Federal Relay 

Service at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

Why we need to publish a rule. Under 

the Act, if we determine that a species 

is an endangered or threatened species 

throughout all or a significant portion of 

its range, we are required to promptly 

publish a proposal in the Federal 

Register and make a determination on 

our proposal within 1 year. To the 

maximum extent prudent and 

determinable, we must designate critical 

habitat for any species that we 

determine to be an endangered or 

threatened species under the Act. 

Listing a species as an endangered or 

threatened species and designation of 

critical habitat can only be completed 

by issuing a rule. 

What this document does. We 

propose to list the western fanshell and 

‘‘Ouachita’’ fanshell as threatened 

species with a rule issued under section 

4(d) of the Act, and we propose the 

designation of critical habitat for these 

two species. 

The basis for our action. Under the 

Act, we may determine that a species is 

an endangered or threatened species 

because of any of five factors: (A) The 

present or threatened destruction, 

modification, or curtailment of its 

habitat or range; (B) overutilization for 

commercial, recreational, scientific, or 

educational purposes; (C) disease or 

predation; (D) the inadequacy of 

existing regulatory mechanisms; or (E) 

other natural or manmade factors 

affecting its continued existence. We 

have determined that water quality 

degradation, altered flow, landscape 

changes, and habitat fragmentation, all 

of which are exacerbated by the effects 

of climate change, are the primary 

threats affecting the western fanshell 

and ‘‘Ouachita’’ fanshell. 

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

Secretary of the Interior (Secretary) to 

designate critical habitat concurrent 

with listing to the maximum extent 

prudent and determinable. Section 

3(5)(A) of the Act defines critical habitat 

as (i) the specific areas within the 

geographical area occupied by the 

species, at the time it is listed, on which 

are found those physical or biological 

features (I) essential to the conservation 

of the species and (II) which may 

require special management 

considerations or protections; and (ii) 

specific areas outside the geographical 

area occupied by the species at the time 

it is listed, upon a determination by the 

Secretary that such areas are essential 

for the conservation of the species. 

Section 4(b)(2) of the Act states that the 

Secretary must make the designation on 

the basis of the best scientific data 

available and after taking into 


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Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 12339 

consideration the economic impact, the 

impact on national security, and any 

other relevant impacts of specifying any 

particular area as critical habitat. 

Information Requested 

We intend that any final action 

resulting from this proposed rule will be 

based on the best scientific and 

commercial data available and be as 

accurate and as effective as possible. 

Therefore, we request comments or 

information from other governmental 

agencies, Native American Tribes, the 

scientific community, industry, or any 

other interested parties concerning this 

proposed rule. 

We particularly seek comments 

concerning: 

(1) The species’ biology, range, and 

population trends, including: 

(a) Biological or ecological 

requirements of the species, including 

habitat requirements for feeding, 

breeding, and sheltering; 

(b) Genetics and taxonomy; 

(c) Historical and current range, 

including distribution patterns; 

(d) Historical and current population 

levels, and current and projected trends; 

and 

(e) Past and ongoing conservation 

measures for the species, its habitat, or 

both. 

(2) Factors that may affect the 

continued existence of these species, 

which may include habitat modification 

or destruction, overutilization, disease, 

predation, the inadequacy of existing 

regulatory mechanisms, or other natural 

or manmade factors. 

(3) Biological, commercial trade, or 

other relevant data concerning any 

threats (or lack thereof) to these species 

and existing regulations that may be 

addressing those threats. 

(4) Additional information concerning 

the historical and current status, range, 

distribution, and population size of 

these species, including the locations of 

any additional populations of these 

species. 

(5) Information on regulations that are 

necessary and advisable to provide for 

the conservation of western fanshell and 

‘‘Ouachita’’ fanshell and that the Service 

can consider in developing a 4(d) rule 

for these species. In particular, we seek 

information concerning the extent to 

which we should include any of the 

Act’s section 9 prohibitions in the 4(d) 

rule or whether we should consider any 

additional exceptions from the 

prohibitions in the 4(d) rule. In 

addition, we request comments on 

whether we should include an 

exception from permitting requirements 

for individuals conducting presence/ 

absence surveys, studies to document 

habitat use, population monitoring, and 

evaluations of potential impacts to the 

fanshells, provided the individual holds 

a valid scientific collecting permit for 

mussels from the appropriate State 

agency. 

(6) The reasons why we should or 

should not designate habitat as ‘‘critical 

habitat’’ under section 4 of the Act (16 

U.S.C. 1531 et seq.), including 

information to inform the following 

factors that the regulations identify as 

reasons why designation of critical 

habitat may be not prudent: 

(a) The species is threatened by taking 

or other human activity and 

identification of critical habitat can be 

expected to increase the degree of such 

threat to the species; 

(b) The present or threatened 

destruction, modification, or 

curtailment of a species’ habitat or range 

is not a threat to the species, or threats 

to the species’ habitat stem solely from 

causes that cannot be addressed through 

management actions resulting from 

consultations under section 7(a)(2) of 

the Act; 

(c) Areas within the jurisdiction of the 

United States provide no more than 

negligible conservation value, if any, for 

a species occurring primarily outside 

the jurisdiction of the United States; or 

(d) No areas meet the definition of 

critical habitat. 

(7) Specific information on: 

(a) The amount and distribution of 

western fanshell and ‘‘Ouachita’’ 

fanshell habitat; 

(b) What areas, that were occupied at 

the time of listing and that contain the 

physical or biological features essential 

to the conservation of these species, 

should be included in the designation 

and why; 

(c) Any additional areas occurring 

within the range of the species that 

should be included in the designation 

because they (1) are occupied at the 

time of listing and contain the physical 

or biological features that are essential 

to the conservation of the species and 

that may require special management 

considerations, or (2) are unoccupied at 

the time of listing and are essential for 

the conservation of the species; 

(d) Special management 

considerations or protection that may be 

needed in critical habitat areas we are 

proposing, including managing for the 

potential effects of climate change; and 

(e) What areas not occupied at the 

time of listing are essential for the 

conservation of these species. We 

particularly seek comments: 

(i) Regarding whether occupied areas 

are adequate for the conservation of 

these species; 

(ii) Providing specific information 

regarding whether or not unoccupied 

areas would, with reasonable certainty, 

contribute to the conservation of these 

species and contain at least one physical 

or biological feature essential to the 

conservation of these species; and 

(iii) Explaining whether or not 

unoccupied areas fall within the 

definition of ‘‘habitat’’ at 50 CFR 424.02 

and why. 

(8) Land use designations and current 

or planned activities in the subject areas 

and their possible impacts on proposed 

critical habitat. 

(9) Any probable economic, national 

security, or other relevant impacts of 

designating any area that may be 

included in the final designation, and 

the related benefits of including or 

excluding specific areas. 

(10) Information on the extent to 

which the description of probable 

economic impacts in the draft economic 

analysis is a reasonable estimate of the 

likely economic impacts, the 

description of the environmental 

impacts in the draft environmental 

assessment is complete and accurate, 

and any additional information 

regarding probable economic impacts 

that we should consider. 

(11) Whether any specific areas we are 

proposing for critical habitat 

designation should be considered for 

exclusion under section 4(b)(2) of the 

Act, and whether the benefits of 

potentially excluding any specific area 

outweigh the benefits of including that 

area under section 4(b)(2) of the Act. If 

you think we should exclude any 

additional areas, please provide credible 

information regarding the existence of a 

meaningful economic or other relevant 

impact supporting a benefit of 

exclusion. 

(12) Whether we could improve or 

modify our approach to designating 

critical habitat in any way to provide for 

greater public participation and 

understanding, or to better 

accommodate public concerns and 

comments. 

Please include sufficient information 

with your submission (such as scientific 

journal articles or other publications) to 

allow us to verify any scientific or 

commercial information you include. 

Please note that submissions merely 

stating support for, or opposition to, the 

action under consideration without 

providing supporting information, 

although noted, will not be considered 

in making a determination, as section 

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

determinations as to whether any 

species is an endangered or a threatened 

species must be made ‘‘solely on the 


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12340 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 

basis of the best scientific and 

commercial data available.’’ 

You may submit your comments and 

materials concerning this proposed rule 

by one of the methods listed in 

ADDRESSES. We request that you send 

comments only by the methods 

described in ADDRESSES. 

If you submit information via http:// 

www.regulations.gov, your entire 

submission—including any personal 

identifying information—will be posted 

on the website. If your submission is 

made via a hardcopy that includes 

personal identifying information, you 

may request at the top of your document 

that we withhold this information from 

public review. However, we cannot 

guarantee that we will be able to do so. 

We will post all hardcopy submissions 

on http://www.regulations.gov. 

Comments and materials we receive, 

as well as supporting documentation we 

used in preparing this proposed rule, 

will be available for public inspection 

on http://www.regulations.gov. 

Because we will consider all 

comments and information we receive 

during the comment period, our final 

determinations may differ from this 

proposal. Based on the new information 

we receive (and any comments on that 

new information), we may conclude that 

the western fanshell or ‘‘Ouachita’’ 

fanshell is endangered instead of 

threatened, or we may conclude that 

either species does not warrant listing as 

either an endangered species or a 

threatened species. For critical habitat, 

our final designation may not include 

all areas proposed, may include some 

additional areas that meet the definition 

of critical habitat, and may exclude 

some areas if we find the benefits of 

exclusion outweigh the benefits of 

inclusion. In addition, we may change 

the parameters of the prohibitions or the 

exceptions to those prohibitions in the 

4(d) rule if we conclude it is appropriate 

in light of comments and new 

information we receive. For example, 

we may expand the prohibitions to 

include prohibiting additional activities 

if we conclude that those additional 

activities are not compatible with 

conservation of the species. Conversely, 

we may establish additional exceptions 

to the prohibitions in the final rule if we 

conclude that the activities would 

facilitate or are compatible with the 

conservation and recovery of the 

species. 

Public Hearing 

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

a public hearing on this proposal, if 

requested. Requests must be received by 

the date specified in DATES. Such 

requests must be sent to the address 

shown in FOR FURTHER INFORMATION

CONTACT. We will schedule a public 

hearing on this proposal, if requested, 

and announce the date, time, and place 

of the hearing, as well as how to obtain 

reasonable accommodations, in the 

Federal Register and local newspapers 

at least 15 days before the hearing. For 

the immediate future, we will provide 

these public hearings using webinars 

that will be announced on the Service’s 

website, in addition to the Federal 

Register. The use of these virtual public 

hearings is consistent with our 

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

Previous Federal Actions 

We identified the western fanshell as 

a ‘‘Category 2’’ candidate in our May 22, 

1984, Review of Invertebrate Wildlife 

for Listing as Endangered or Threatened 

Species (49 FR 21664). Category 2 

candidates were defined as species for 

which we had information that 

proposed listing was possibly 

appropriate, but conclusive data on 

biological vulnerability and threats were 

not available to support a proposed rule 

at the time. The species remained so 

designated in subsequent candidate 

notices of review (CNORs) (54 FR 554, 

January 6, 1989; 56 FR 58804, November 

21, 1991; 59 FR 58982, November 15, 

1994). In the February 28, 1996, CNOR 

(61 FR 7596), we discontinued the 

designation of Category 2 species as 

candidates; therefore, the western 

fanshell was no longer a candidate 

species. 

On April 20, 2010, we received a 

petition from the Center for Biological 

Diversity (CBD), Alabama Rivers 

Alliance, Clinch Coalition, Dogwood 

Alliance, Gulf Restoration Network, 

Tennessee Forests Council, and West 

Virginia Highlands Conservancy, to list 

404 aquatic, riparian, and wetland 

species, including the western fanshell, 

from the southeastern United States as 

endangered or threatened species and to 

designate critical habitat concurrent 

with listing under the Act. On 

September 27, 2011, we published a 90- 

day finding in the Federal Register (76 

FR 59836), concluding that the petition 

presented substantial information that 

indicated listing the western fanshell 

may be warranted. Since that time, the 

‘‘Ouachita’’ fanshell has been 

determined to be a separate species from 

western fanshell (Williams et al. 2017, 

p. 47; see discussion of taxonomy 

below); therefore, we conducted a 

discretionary status review for the 

‘‘Ouachita’’ fanshell concurrent with 

our status review for the western 

fanshell. 

Supporting Documents 

A species status assessment (SSA) 

team prepared an SSA report for the 

western fanshell and ‘‘Ouachita’’ 

fanshell. The SSA team was composed 

of Service biologists, in consultation 

with other species experts. The SSA 

report represents a compilation of the 

best scientific and commercial data 

available concerning the status of these 

species, including the impacts of past, 

present, and future factors (both 

negative and beneficial) affecting these 

species. In accordance with our joint 

policy on peer review published in the 

Federal Register on July 1, 1994 (59 FR 

34270), and our August 22, 2016, 

memorandum updating and clarifying 

the role of peer review of listing actions 

under the Act, we sought the expert 

opinions of five appropriate specialists 

regarding the SSA report. We received 

two responses. We also sent the SSA 

report to eight Federal and State 

partners with expertise in aquatic 

ecology and freshwater mussel biology, 

taxonomy, and conservation. We 

received reviews from a Federal 

biologist and a State biologist. 

I. Proposed Listing Determination 

Background 

The western fanshell (Cyprogenia 

aberti) is a freshwater mussel in the 

Unionidae family. Adults are a dull tan 

with a distinctive ray pattern from 

bands of tiny pigment flecks. The shell 

is thick, compressed to moderately 

inflated, and round to triangular (up to 

3 inches (76 millimeters)), with a 

wrinkled or rough appearance (Conrad 

1850, p. 10; McMurray et al. 2012, p. 30; 

Oesch 1995, pp. 143–144; Roe 2004, pp. 

4–5). 

Recent molecular analysis of 

Cyprogenia identified the fanshell from 

the Ouachita River basin in Arkansas 

and Louisiana as an independent 

evolutionary lineage (Chong et al. 2016, 

pp. 2445–2449). There is confusion 

regarding what name is available for the 

Ouachita River drainage fanshell, but 

the distinctiveness of this species was 

recognized in the most recent list of 

freshwater mussels of the United States 

and Canada (Williams et al. 2017, p. 47). 

The Arkansas Wildlife Action Plan 

refers to the species as the ‘‘Ouachita’’ 

fanshell (C. cf. aberti) (Arkansas Game 

and Fish Commission 2015, p. 974). 

Based on this information, we find the 

‘‘Ouachita’’ fanshell is a listable entity 

under the Act, and we follow this 

naming convention until a specific 

epithet can be designated. 

The western fanshell is currently 

found in the Lower Mississippi-St. 

Francis, Neosho-Verdigris, and Upper 


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Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 12341 

White River basins, within the States of 

Arkansas, Kansas, Missouri, and 

Oklahoma (Service 2020, pp. 21–28; see 

Figure 1, below). It is considered 

extirpated from the Lower Arkansas 

basin. The ‘‘Ouachita’’ fanshell 

currently occurs in the Lower RedOuachita basin in Arkansas and 

historically in Louisiana (Service 2020, 

pp. 29–31; see Figure 2, below). 

BILLING CODE 4333–15–P 


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Index Map: Western Fanshell 

Rangewide Distribution 

NE 

KS 

OK 

AR 

TX 

~ Extant Management Units 

1111 Extirpated Management Units 

- State Boundaries 

O 31 62 Miles 

I I I 

I I I I I 

o 55 110 Kilometers 

IL 

MS 

Figure 1. Distribution of the extant and extirpated management units of western 

fanshell in Arkansas, Kansas, Missouri, and Oklahoma. 
12342 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 

BILLING CODE 4333–15–C 

Both species are typically found in 

large creeks and rivers with good water 

quality, moderate to swift current, and 

gravel-sand substrates, but specific 

information on microhabitat 

requirements is lacking. Like all 

mussels, these two species of fanshell 

are omnivores that primarily filter-feed 

on a wide variety of microscopic 

particulate matter suspended in the 

water column, including phytoplankton, 

zooplankton, bacteria, detritus, and 

dissolved organic matter (Haag 2012, p. 

26). As with most freshwater mussels, 


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Index Map: "Ouachita" Fanshell 

Rangewide Distribution 

~· Extant Management Units 

1111 Extirpated Management Units 

- State Boundaries 

0 

I 

0 

AR 

LA 

12.5 25 Miles 

111

1 1. A 

24.5 49 Kilometers 

Figure 2. Distribution of the extant and extirpated management units of "Ouachita" 

fanshell in Arkansas and Louisiana. 
Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 12343 

the fanshell mussels have a unique life 

cycle that relies on fish hosts for 

successful reproduction (Barnhart et al. 

2008, pp. 371–373; Vaughn and Taylor 

1999, p. 913; Barnhart 1997, p. 12). 

Thorough reviews of the taxonomy, 

life history, and ecology of the western 

fanshell and ‘‘Ouachita’’ fanshell are 

presented in detail in the SSA report 

(Service 2020, pp. 9–12). 

Regulatory and Analytical Framework 

Regulatory Framework 

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

and its implementing regulations (50 

CFR part 424) set forth the procedures 

for determining whether a species is an 

endangered species or a threatened 

species. The Act defines an 

‘‘endangered species’’ as a species that 

is in danger of extinction throughout all 

or a significant portion of its range, and 

a ‘‘threatened species’’ as a species that 

is likely to become an endangered 

species within the foreseeable future 

throughout all or a significant portion of 

its range. The Act requires that we 

determine whether any species is an 

endangered species or a threatened 

species because of any of the following 

factors: 

(A) The present or threatened 

destruction, modification, or 

curtailment of its habitat or range; 

(B) Overutilization for commercial, 

recreational, scientific, or educational 

purposes; 

(C) Disease or predation; 

(D) The inadequacy of existing 

regulatory mechanisms; or 

(E) Other natural or manmade factors 

affecting its continued existence. 

These factors represent broad 

categories of natural or human-caused 

actions or conditions that could have an 

effect on a species’ continued existence. 

In evaluating these actions and 

conditions, we look for those that may 

have a negative effect on individuals of 

the species, as well as other actions or 

conditions that may ameliorate any 

negative effects or may have positive 

effects. 

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

general to actions or conditions that are 

known to or are reasonably likely to 

negatively affect individuals of a 

species. The term ‘‘threat’’ includes 

actions or conditions that have a direct 

impact on individuals (direct impacts), 

as well as those that affect individuals 

through alteration of their habitat or 

required resources (stressors). The term 

‘‘threat’’ may encompass—either 

together or separately—the source of the 

action or condition or the action or 

condition itself. 

However, the mere identification of 

any threat(s) does not necessarily mean 

that the species meets the statutory 

definition of an ‘‘endangered species’’ or 

a ‘‘threatened species.’’ In determining 

whether a species meets either 

definition, we must evaluate all 

identified threats by considering the 

expected response by the species, and 

the effects of the threats—in light of 

those actions and conditions that will 

ameliorate the threats—on an 

individual, population, and species 

level. We evaluate each threat and its 

expected effects on the species, then 

analyze the cumulative effect of all of 

the threats on the species as a whole. 

We also consider the cumulative effect 

of the threats in light of those actions 

and conditions that will have positive 

effects on the species, such as any 

existing regulatory mechanisms or 

conservation efforts. The Secretary 

determines whether the species meets 

the definition of an ‘‘endangered 

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

after conducting this cumulative 

analysis and describing the expected 

effect on the species now and in the 

foreseeable future. 

The Act does not define the term 

‘‘foreseeable future,’’ which appears in 

the statutory definition of ‘‘threatened 

species.’’ Our implementing regulations 

at 50 CFR 424.11(d) set forth a 

framework for evaluating the foreseeable 

future on a case-by-case basis. The term 

‘‘foreseeable future’’ extends only so far 

into the future as the Service can 

reasonably determine that both the 

future threats and the species’ responses 

to those threats are likely. In other 

words, the foreseeable future is the 

period of time in which we can make 

reliable predictions. ‘‘Reliable’’ does not 

mean ‘‘certain’’; it means sufficient to 

provide a reasonable degree of 

confidence in the prediction. Thus, a 

prediction is reliable if it is reasonable 

to depend on it when making decisions. 

It is not always possible or necessary 

to define foreseeable future as a 

particular number of years. Analysis of 

the foreseeable future uses the best 

scientific and commercial data available 

and should consider the timeframes 

applicable to the relevant threats and to 

the species’ likely responses to those 

threats in view of its life-history 

characteristics. Data that are typically 

relevant to assessing the species’ 

biological response include speciesspecific factors such as lifespan, 

reproductive rates or productivity, 

certain behaviors, and other 

demographic factors. 

Analytical Framework 

The SSA report documents the results 

of our comprehensive biological review 

of the best scientific and commercial 

data regarding the status of these 

species, including an assessment of the 

potential threats to these species. The 

SSA report does not represent a 

decision by the Service on whether 

these species should be proposed for 

listing as an endangered or threatened 

species under the Act. However, it does 

provide the scientific basis that informs 

our regulatory decisions, which involve 

the further application of standards 

within the Act and its implementing 

regulations and policies. The following 

is a summary of the key results and 

conclusions from the SSA report; the 

full SSA report can be found at Docket 

No. FWS–R3–ES–2021–0061 on http://

www.regulations.gov and at https://

www.fws.gov/midwest/ and https://

www.fws.gov/southeast/. 

To assess the western fanshell’s and 

‘‘Ouachita’’ fanshell’s viability, we used 

the three conservation biology 

principles of resiliency, redundancy, 

and representation (Shaffer and Stein 

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

supports the ability of the species to 

withstand environmental and 

demographic stochasticity (for example, 

wet or dry, warm or cold years), 

redundancy supports the ability of the 

species to withstand catastrophic events 

(for example, droughts, large pollution 

events), and representation supports the 

ability of the species to adapt over time 

to long-term changes in the environment 

(for example, climate changes). In 

general, the more resilient and 

redundant a species is and the more 

representation it has, the more likely it 

is to sustain populations over time, even 

under changing environmental 

conditions. Using these principles, we 

identified the species’ ecological 

requirements for survival and 

reproduction at the individual, 

population, and species levels and 

described the beneficial and risk factors 

influencing the species’ viability. 

The SSA process can be categorized 

into three sequential stages. During the 

first stage, we evaluated each individual 

species’ life-history needs. The next 

stage involved an assessment of the 

historical and current condition of the 

species’ demographics and habitat 

characteristics, including an 

explanation of how the species arrived 

at its current condition. The final stage 

of the SSA involved making predictions 

about the species’ responses to positive 

and negative environmental and 

anthropogenic influences. Throughout 

all of these stages, we used the best 

available information to characterize 

viability as the ability of a species to 

sustain populations in the wild over 

time. We use this information to inform 

our regulatory decision. 


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Summary of Biological Status and 

Threats 

In this discussion, we review the 

biological condition of the two species 

and their resources, and the threats that 

influence both species’ current and 

future condition, to assess each species’ 

overall viability and the risks to that 

viability. 

Species Needs 

Fanshell mussels feed primarily on a 

wide variety of microscopic particulate 

matter, including phytoplankton, 

zooplankton, bacteria, detritus, and 

dissolved organic matter (Haag 2012, p. 

26). Juveniles likely pedal feed in the 

sediment, whereas adults filter-feed 

from the water column. 

As with most freshwater mussels, 

both fanshell mussels rely on a host fish 

for reproduction. The female mussel 

holds the fertilized eggs internally as 

they develop into larvae. Once mature, 

the larvae are released as glochidia, 

which attach on the gills, head, or fins 

of fishes (Barnhart et al. 2008, pp. 371– 

373; Vaughn and Taylor 1999, p. 913). 

Glochidia encyst (enclose in a cyst-like 

structure) on the host’s tissue and draw 

nutrients from the fish. The glochidia 

for the fanshell mussels remain 

encysted for about a month until 

transformation to the juvenile stage, at 

which point they release from the fish 

and drop to the substrate (Barnhart 

1997, p. 12). Glochidia die if they fail 

to find a host fish, attach to the wrong 

species of host fish, attach to a fish that 

has developed immunity from prior 

infestations, or attach to the wrong 

location on a host fish (Bogan 1993, p. 

599; Neves 1991, p. 254). 

Logperch (Percina caprodes) is a 

suitable fish host for both fanshell 

species in all river basins (Eckert 2003, 

pp. 18–19). Slenderhead darter (Percina 

phoxocephala) and orangebelly darter 

(Etheostoma radiosum) are suitable 

hosts for ‘‘Ouachita’’ fanshell (Eckert 

2003, p. 46), while slenderhead darter, 

fantail darter (Etheostoma flabellare), 

rainbow darter (Etheostoma caeruleum), 

and orangebelly darter are suitable hosts 

for western fanshell, but only for their 

respective sympatric fanshell mussel 

population (Eckert 2003, p. 33). In other 

words, glochidia had greater success 

transforming on darters from the same 

stream as the mussel. For example, a 

higher percentage of glochidia from 

Ouachita River transformed on 

orangebelly darters from Ouachita River 

than on orangebelly darters from 

Verdigris River (Eckert 2003, p. 11). 

We assessed the best available 

information to identify the physical and 

biological needs to support individual 

fitness at all life stages for the western 

fanshell and ‘‘Ouachita’’ fanshell. Full 

descriptions of all needs are available in 

chapter 2 of the SSA report (Service 

2020, pp. 9–15). Based upon the best 

available scientific and commercial 

information, the resource needs for both 

species are characterized as: 

• Stable river channels and banks (for 

example, stable riffles, sometimes with 

runs, and mid-channel island habitats 

that provide flow refuges), consisting of 

mixed sand, gravel, and cobble 

substrates with low to moderate 

amounts of fine sediment and attached 

filamentous algae; 

• A hydrologic flow regime (the 

severity, frequency, duration, and 

seasonality of discharge over time) that 

maintains the benthic habitats where 

the species are found and the river 

connectivity with the floodplain; 

• Habitat connectivity (that is, a lack 

of barriers for passage of host fish, 

which are necessary for dispersal of 

mussels); 

• Water and sediment quality, such as 

(but not limited to) dissolved oxygen 

above 3 parts per million (ppm), 

ammonia generally below 1.0 ppm total 

ammonia-nitrogen, temperatures 

generally below 80 degrees Fahrenheit 

(°F) (27 degrees Celsius (°C)), low 

concentrations of metals, and an 

absence of excessive total suspended 

solids and other pollutants; 

• The presence and abundance of fish 

hosts (logperch, slenderhead darter, 

fantail darter, rainbow darter, and 

orangebelly darter) necessary for 

recruitment of the fanshell mussels; and 

• Appropriate food sources 

(phytoplankton, zooplankton, 

protozoans, detritus, and dissolved 

organic matter) in adequate supply. 

Threats Analysis 

We identified water quality 

degradation, altered flow, landscape 

changes, and habitat fragmentation, all 

of which are exacerbated by the effects 

of climate change, as the primary threats 

affecting the western fanshell and 

‘‘Ouachita’’ fanshell (Service 2020, p. 

65). We acknowledge that invasive 

species can have individual and, in 

some circumstances, population-level 

effects to mussels. However, the best 

available data do not support that 

invasive species are a driving force 

affecting the current or future 

conditions of these two fanshell mussels 

(Service 2020, pp. 62–63). The primary 

threats are discussed below. 

Water Quality 

Chemical contaminants are a major 

threat in the decline of mussel species 

(Cope et al. 2008, p. 451; Richter et al. 

1997, p. 1081; Strayer et al. 2004, p. 436; 

Wang et al. 2007a, p. 2029). Chemicals 

enter rivers through point and nonpoint 

discharges, including spills, industrial 

and municipal effluents, and residential 

and agricultural runoff. These sources 

contribute organic compounds, heavy 

metals, nutrients, pesticides, and a wide 

variety of newly emerging 

contaminants, such as pharmaceuticals, 

to the aquatic environment. 

The western fanshell has been 

exposed to zinc and copper at 

concentrations that cause acute toxicity 

(Service 2020, p. 41) and may be 

exposed to toxic levels of lead in the 

future (Service 2020, Appendix I–D—I– 

E). Metals from mine water runoff (for 

example, Tri-State Mining District in 

southwest Missouri and southeast 

Kansas) contributed to mussel declines 

in Shoal Creek and Spring River in the 

Arkansas River basin (Angelo et al. 

2007, p. 467; EcoAnalysts, Inc. 2018, p. 

59). 

Nutrients, such as nitrogen and 

phosphorus, primarily occur in runoff 

from livestock farms, feedlots, heavily 

fertilized row crops and pastures 

(Peterjohn and Correll 1984, p. 1471), 

post timber management activities, and 

urban and suburban runoff (including 

residential lawns and leaking septic 

tanks). Sources of ammonia include 

agricultural wastes (animal feedlots and 

nitrogenous fertilizers), municipal 

wastewater treatment plants, and 

industrial waste (Augspurger et al. 2007, 

p. 2569), as well as precipitation and 

natural processes (decomposition of 

organic nitrogen) (Augspurger et al. 

2003, p. 2569; Goudreau et al. 1993, p. 

212; Hickey and Martin 1999, p. 44; 

Newton et al. 2003, p. 1243). As 

discussed above under Species Needs, 

both fanshell species require dissolved 

oxygen above 3 ppm and ammonia 

generally below 1.0 ppm total ammonianitrogen. We analyzed total ammonia 

nitrogen data in rivers occupied by the 

two fanshell mussel species, but did not 

find concentrations at levels expected to 

result in acute or chronic toxicity to 

mussels (Service 2020, p. 41, Appendix 

I–D—I–E). In addition, nutrient 

enrichment increases primary 

productivity, and the associated algae 

respiration depletes dissolved oxygen 

levels. However, available water quality 

data indicate that hypoxia (low 

dissolved oxygen) is not occurring in 

occupied streams and is not currently a 

threat to the fanshell mussels. 

Flow 

Reductions in the diversity and 

abundance of mussels are principally 

attributed to habitat alteration caused by 

inundation of free-flowing rivers and 


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streams (Neves et al. 1997, p. 60), which 

has occurred in portions of the fanshell 

mussels’ ranges (for example, White, 

Ouachita, Caddo, and Neosho rivers). 

The construction of reservoirs and other 

impoundments permanently alters the 

hydrology, with deleterious effects to 

fish host movement and mussel 

dispersal. 

The water released from the 

hypolimnion (lower layers of the lake) 

in large reservoirs is cold and often 

devoid of oxygen and necessary 

nutrients, which adversely affects 

mussel survival. Cold water can stunt 

mussel growth and delay or hinder 

spawning (Vaughn and Taylor 1999, p. 

917). Reservoirs, like Bull Shoals on the 

White River in north-central Arkansas, 

that release cold water from the bottom 

of the reservoir (in part to support 

nonnative rainbow trout and brown 

trout recreational fisheries) can affect 

water temperatures for many kilometers 

downstream. These cold releases create 

an extinction gradient, where freshwater 

mussels are absent or present in low 

numbers near the dam, and abundance 

does not rebound until some distance 

downstream where ambient conditions 

raise the water temperature to within 

the tolerance limits of mussels (Vaughn 

and Taylor 1999, pp. 915–916). 

In addition to low water temperature 

limits, freshwater mussels also have an 

upper water temperature threshold. As 

described above under Species Needs, 

both fanshell species require water 

temperatures generally below 80 °F (27 

°C). 

In ‘‘Ouachita’’ fanshell occupied 

streams from 1990 to 2018, the percent 

of water temperature samples exceeding 

27 °C ranged from 6.9 to 15.4 percent, 

with maximum water temperature 

ranging from 30.3 °C to 36.6 °C. In 

western fanshell MUs from 1990 to 

2018, the percent of water temperature 

samples exceeding 27 °C ranged from 0 

to 12.6 percent, with maximum water 

temperature ranging from 22.0 °C to 35.8 

°C. 

Recruitment in some species of 

mussels is significantly related to 

components of spring and summer flow 

(Ries et al. 2016, p. 711). High velocity 

flows during spawning can decrease 

fertilization success (Ries et al. 2016, p. 

712) and affect juvenile settling (Daraio 

et al. 2010, p. 838; Hardison and Layzer 

2001, p. 77). Mussel beds may be 

constrained by threshold limits at both 

flow extremes. Under low flow 

conditions, mussels may require a 

minimum flow to transport nutrients, 

oxygen, and waste products. Under high 

flow conditions, areas with relatively 

low flow may provide a refuge for 

mussels (Steuer et al. 2008, p. 67). 

Fanshell mussels undoubtedly evolved 

in the presence of extreme hydrological 

conditions to some degree, including 

severe droughts leading to dewatering, 

and heavy rains leading to damaging 

scour events and movement of mussels 

and substrate, although the frequency, 

duration, and intensity of these events 

may be different from today. Streamflow 

and overall discharge for rivers 

inhabited by western and ‘‘Ouachita’’ 

fanshell mussels will likely decline due 

to climate change and projected 

increases in temperatures and 

evaporation rates, resulting in more 

frequent and intense droughts 

(LaFontaine et al. 2019, entire). 

Excessive sediments adversely affect 

riverine mussel populations requiring 

clean, stable streams (Brim Box and 

Mossa 1999, p. 99; Ellis 1936, pp. 39– 

40). Specific biological effects include 

reduced feeding and respiratory 

efficiency from clogged gills, disrupted 

metabolic processes, reduced growth 

rates, limited burrowing activity, 

physical smothering, and disrupted host 

fish attraction mechanisms (Ellis 1936, 

pp. 39–40; Hartfield and Hartfield 1996, 

p. 373; Marking and Bills 1979, p. 210; 

Vannote and Minshall 1982, pp. 4105– 

4106; Waters 1995, pp. 173–175). The 

physical effects of sediment on mussel 

habitat include changes in suspended 

and bed material load; changes in bed 

sediment composition associated with 

increased sediment production and 

runoff in the watershed; channel 

changes in form, position, and degree of 

stability; changes in depth or the width 

and depth ratio that affects light 

penetration and flow regime, actively 

aggrading (filling) or degrading 

(scouring) channels; and changes in 

channel position. These effects to 

habitat may dislodge, transport 

downstream, or leave mussels stranded 

(Brim Box and Mossa 1999, pp. 109– 

112; Kanehl and Lyons 1992, pp. 4–5; 

Vannote and Minshall 1982, p. 4106). 

The majority of sediment transport 

occurs during floods (Clark and 

Mangham 2019, pp. 6–7; Kondolf 1997, 

p. 533). The increase in flooding 

severity results in greater sediment 

transport, with important effects to 

substrate stability and benthic habitats 

for freshwater mussels, as well as other 

organisms that are dependent on stable 

benthic habitats (Kondolf 1997, p. 535). 

High base flows can incise channels, 

erode riverbanks, scour mussel beds, 

and remove substrate preferred by 

mussels. Over time, the physical force of 

these higher base flows can dislodge 

mussels from the sediment and 

permanently alter the geomorphology of 

rivers (Clark and Mangham 2019, pp. 6– 

7; Kondolf 1997, p. 533). 

Runoff from impervious surfaces 

prevalent in urban areas affects the 

natural hydrology of streams by 

increasing flood magnitude, duration, 

and frequency (Bressler et al. 2009, p. 

292). Frequent floods in urban areas 

scour stream substrate and banks, 

thereby increasing erosion and 

sedimentation and altering 

geomorphology. Geomorphic changes, 

such as changes in channel width, occur 

with impervious areas as low as 2 to 10 

percent (Booth and Jackson 1997, p. 

1084; Dunne and Leopold 1978, pp. 

275–277; Morisawa and LaFlure 1979, 

Figure 11). Initial degradation of fish 

communities and lower larval densities 

have been associated with as low as 10 

percent impervious areas (Limburg and 

Schmidt 1990, pp. 1241–1242; 

Steedman 1988, pp. 498–499). Unpaved 

road networks also interact with 

streams, delivering sediment runoff and 

increasing water velocity entering 

stream channels, thereby increasing 

stream energy, eroding streambanks, 

scouring channels, and increasing 

flooding (Coffin 2007, pp. 397–398). 

Landscape Alterations 

Many rivers where the western 

fanshell and ‘‘Ouachita’’ fanshell occur 

are threatened by land use activities and 

changes (for example, increased 

urbanization, alteration of riparian 

buffers, improperly designed and 

maintained unpaved roads). 

Urbanization of a watershed can result 

in increased pollutant loads from 

stormwater runoff, altered flow, 

decreased bank stability, and increased 

water temperature. Urbanization can 

also indirectly increase channel erosion 

and downstream sedimentation by 

increasing the frequency and volume of 

channel-altering storm flows (Hammer 

1972, p. 1530; Leopold 1968, entire). 

These effects of urbanization can lower 

fish species richness and density, 

leading to predictable changes in 

species composition, and these changes 

can accrue rapidly (less than 10 years) 

and are detectable at low levels 

(approximately 5 to 10 percent 

urbanization) (Walters et al. 2005, p. 1). 

In 2016, 80 percent of the western and 

‘‘Ouachita’’ fanshell MUs had 5 percent 

or greater urban land use, but all were 

less than 10 percent (Service 2020, 

Appendix I–A). 

The amount of impervious surface 

and riparian forest cover influences 

stream hydrology and water quality 

(Brabec et al. 2002, pp. 505–507). 

Riparian forest cover intercepts and 

moderates the timing of runoff, buffers 

temperature extremes, filters pollutants 

in runoff, provides woody debris to 

stream channels that enhances aquatic 


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food webs, and stabilizes excessive 

erosion. Furthermore, the removal of 

riparian trees in forested watersheds has 

a strong influence on stream 

invertebrate communities (Wallace et al. 

1997, entire). In 2016, forest cover 

ranged from 70 to 76 percent in 

‘‘Ouachita’’ fanshell MUs and 12 to 77 

percent in western fanshell MUs 

(Service 2020, Appendix I–A). 

Agricultural practices, such as 

livestock grazing and tilling on land 

adjacent to streams, can lead to soil 

erosion and subsequent runoff of fine 

sediments, nutrients, and pesticides (for 

example, Schulz and Liess 1999, p. 

155). Watersheds with the most habitat 

converted to farmland often have the 

greatest levels of mussel richness 

decline (Poole and Downing 2004, p. 

123). In 2016, agricultural land use 

ranged from 5 to 13 percent in 

‘‘Ouachita’’ fanshell MUs and 17 to 68 

percent in western fanshell MUs, and 

decreased in all MUs for both species 

from 2011 to 2016 (Service 2020, 

Appendix I–A). 

Roads adversely affect watershed 

integrity by intercepting, concentrating, 

and diverting water. Roads directly 

affect natural sediment and hydrologic 

regimes by altering stream flow, 

sediment loading, sediment transport 

and deposition, channel morphology, 

channel stability, substrate composition, 

stream temperature, water quality, and 

riparian condition (Lee et al. 1997, pp. 

1102–1104). Hydrologic effects are 

sensitive to road density, with increased 

peak flows evident at road densities of 

2 to 3 kilometers (km)/square kilometers 

(km2) (Forman and Alexander 1998, p. 

223). In 2016, unpaved road density in 

all the western and ‘‘Ouachita’’ fanshell 

mussel MUs were 1.6 km/km2 or less. 

Habitat Fragmentation 

Hydrologic and geomorphic processes 

directly relate to habitat extent. The 

number and distribution of habitat 

patches and their connectivity influence 

species population health. Historically, 

the two fanshell species likely occurred 

throughout the river basins described in 

the SSA (Service 2020, pp. 21–31). 

Large-scale reductions in mussel 

diversity and abundance are largely due 

to habitat changes caused by 

impoundments (Neves et al. 1997, p. 

63). The number of impoundments in 

‘‘Ouachita’’ fanshell MUs ranges from 3 

to 51, and in western fanshell MUs 

ranges from 4 to 73. 

Effects of Climate Change 

We examined information on the 

anticipated effects of climate change, 

including changes to water temperatures 

and precipitation patterns. In its 5th 

Assessment Report, the 

Intergovernmental Panel on Climate 

Change (IPCC) adopted ‘‘representative 

concentration pathways’’ (RCPs), which 

are greenhouse gas concentration 

trajectories, to describe potential future 

climate outcomes, depending on the 

amount of greenhouse gases that are 

emitted in the future (IPCC 2014, pp. 

126–127). Under RCP4.5 and RCP8.5, 

the seasonal averages of 30 Coupled 

Model Intercomparison Project 5 

(CMIP5) models from 1950 to 2100 

indicate warming air temperatures in 

the Lower Mississippi River region, 

with a central tendency of less than 2 

inches change in precipitation (Alder 

and Hostetler 2013, pp. 2–3). We expect 

changes in stream temperatures to 

reflect changes in air temperature, at a 

rate of an approximately 0.6–0.8 °C 

increase in stream water temperature for 

every 1 °C increase in air temperature 

(Morrill et al. 2005, pp. 1–2, 15). These 

water temperature changes will have 

implications for temperature-dependent 

water quality parameters (such as 

dissolved oxygen and ammonia 

toxicity), spawning, and physiological 

effects to thermally sensitive species. 

Future increases in the frequency and 

severity of both extreme drought and 

extreme rainfall are expected to 

transform many ecosystems in the 

Southeast, including Arkansas (Carter et 

al. 2018, pp. 743–808). Mussels are 

highly sensitive to secondary effects of 

drought (for example, water 

temperature, etc.), but their ability to 

withstand severe drought is highly 

dependent on where they occur (Haag 

and Warren 2008, p. 1165) and 

sufficient time between sequential 

drought events for mussel populations 

to recover (Vaughn et al. 2015, pp. 

1297–1298). 

We also considered whether the 

threats discussed above may be 

exacerbated by small population size (or 

low condition). Although there are 

populations in low condition in all the 

basins in which the two species occur, 

none of the basins have seen their 

populations reduced to one or two 

populations in low condition. 

Regulatory Mechanisms 

State Protections 

The western fanshell is listed as State 

endangered with designated critical 

habitats under the Kansas Nongame and 

Endangered Species Conservation Act. 

Under State law, any time an eligible 

project is proposed that will impact the 

species’ preferred habitats within its 

probable range in Kansas, the project 

sponsor must contact the Kansas 

Department of Wildlife, Parks and 

Tourism, regarding potential permit 

requirements. The western fanshell and 

‘‘Ouachita’’ fanshell do not receive 

protection under State law in any other 

States. 

Other Regulatory Mechanisms 

The U.S. Forest Service (2005, p. 58) 

established a wildlife and fish habitat 

road density objective of less than or 

equal to 1.6 km/2.6 km2 on the Ouachita 

National Forest in west-central 

Arkansas, which includes the Ouachita 

Headwaters and Caddo MUs for 

‘‘Ouachita’’ Fanshell. The Arkansas 

Unpaved Roads Program, authorized by 

Act 898 of the 90th General Assembly 

in 2005, establishes a proactive, 

incentive-based management program 

that results in utilization of best 

management practices on unpaved 

roads to minimize erosion and maintain 

and improve the health of priority lakes 

and rivers (TNC 2017, entire), including 

those where both fanshell mussel 

species occur. 

Current Conditions 

Current (and future) conditions are 

described using categories that estimate 

the overall condition (resiliency) of the 

western fanshell and ‘‘Ouachita’’ 

fanshell populations. These categories 

are based on an evaluation of multiple 

population and habitat factors (Service 

2020, pp. 16–19). 

Given that both of the fanshells’ 

ranges include medium to large rivers 

with some populations fragmented by 

dams and creation of navigation 

channels, we delineated separate 

populations for each watershed through 

which these streams flow (if there was 

an occurrence record for the stream in 

that watershed), based on the hydrologic 

unit code (HUC) (Seaber et al. 1987, 

entire; U.S. Geological Survey 2018, 

entire) at the fourth of six levels (that is, 

the HUC–8 watershed), and termed 

these ‘‘management units’’ (MUs). MUs 

represent areas with one or more 

populations capable of dispersal and 

interaction. As a result, some 

watersheds have been combined into 

one management unit because of a lack 

of dispersal barriers and some divided 

into multiple management units. MUs 

were identified as most appropriate for 

assessing population-level resiliency 

because the stream level was 

determined to be too coarse of a scale 

to estimate the condition factors 

influencing resiliency (Service 2020, p. 

16). We defined a MU as currently 

extant if it contains live or recent dead 

individuals observed in surveys from 

2000 to the present (Service 2020, p. 

21). 


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To evaluate the species’ genetic and 

ecological diversity (representation) in 

the absence of species-specific genetic 

information, we considered the extent 

and variability of environmental 

conditions within the two species’ 

geographic ranges. Based on the best 

available data, we identified 

representation units at the HUC–4 

watershed level, which is the second 

HUC level and covers a larger area than 

HUC–8. 

Western Fanshell 

The western fanshell’s current range 

includes a total of 11 MUs across three 

HUC–4 units: Neosho-Verdigris (2 

MUs), Lower Mississippi-St. Francis (3 

MUs), and Upper White (6 MUs) river 

drainages of Arkansas, Missouri, 

Kansas, and Oklahoma. Historically, the 

western fanshell occurred in another 14 

MUs and is presumed extirpated from 

the Lower Arkansas (HUC–4) river 

drainage. Of the current MUs, three (27 

percent) are estimated to be highly 

resilient, three (27 percent) are 

estimated to be moderately resilient, 

and five (46 percent) are estimated to 

have low resiliency (Service 2020, pp. 

36–46). The habitat conditions across 

the 11 extant populations are medium to 

high (Service 2020, p. 41). 

‘‘Ouachita’’ Fanshell 

The ‘‘Ouachita’’ fanshell currently 

occurs in 4 MUs within portions of the 

Ouachita River basin (HUC–4) in 

Arkansas. One population is presumed 

extirpated. Of the current MUs, one (25 

percent) is estimated to be highly 

resilient, one (25 percent) is estimated 

to be moderately resilient, and two (50 

percent) are estimated to have low 

resiliency (Service 2020, pp. 46–50). 

The habitat conditions across the 4 

extant populations are medium to high 

(Service 2020, p. 47). 

Future Conditions 

We forecasted the western fanshell’s 

and ‘‘Ouachita’’ fanshell’s responses to 

plausible future scenarios of 

environmental conditions. The future 

scenarios project the threats into the 

future and consider the impacts those 

threats could have on the viability of the 

western fanshell and ‘‘Ouachita’’ 

fanshell. We apply the concepts of 

resiliency, redundancy, and 

representation to the future scenarios to 

describe possible future conditions of 

the western fanshell and ‘‘Ouachita’’ 

fanshell. The scenarios described in the 

SSA report represent only two possible 

future conditions for each species. 

Uncertainty is inherent in any 

projection of future condition, so we 

must consider plausible scenarios to 

make our determinations. When 

assessing the future, viability is not a 

specific state, but rather a continuous 

measure of the likelihood that the 

species will sustain populations over 

time. 

In the SSA, we considered two future 

scenarios. Scenario 1 assesses the 

species’ responses to moderate increases 

in stressors influencing the western 

fanshell and ‘‘Ouachita’’ fanshell 

populations, although current 

conservation practices would remain in 

place. Scenario 2 assesses the species’ 

responses to severe increases in 

stressors. Due to a lack of resolution of 

the available data, we were unable to 

distinguish any meaningful difference 

between a moderate increase in stressors 

and a moderate decrease in stressors. As 

a result, we limited the future forecasts 

to these two scenarios, which we 

projected over a 40-year period. We 

restricted our evaluation to 40 years 

primarily due to limitations projecting 

non-modeled, extrapolated future 

conditions for water quality, road 

density, and habitat fragmentation. A 

full description of the future scenarios 

and our methods is available in the SSA 

report (Service 2020, pp. 64–69). 

Under Scenario 1, populations of both 

fanshell species are projected to decline 

in resiliency and redundancy over time 

as conditions moderately decline from 

current conditions. For western 

fanshell, we project five (45 percent) of 

the currently extant MUs to become 

extirpated. Of the remaining six 

populations, four (67 percent) would be 

in medium condition, and two (33 

percent) in low condition, with no MUs 

in high condition. For ‘‘Ouachita’’ 

fanshell, we project two (50 percent) of 

the currently extant MUs to become 

extirpated. Of the remaining two 

populations, one (50 percent) would be 

in medium condition, and one (50 

percent) in low condition, with no MUs 

in high condition. All of the extant 

HUC–4 river basins would remain 

occupied for both species. 

While our projections under Scenario 

2 do not anticipate additional 

extirpations from those observed under 

Scenario 1, we expect all remaining 

populations of both species to be in low 

condition in 40 years. All extant HUC– 

4 river basins would remain occupied 

for both species. 

We note that, by using the SSA 

framework to guide our analysis of the 

scientific information documented in 

the SSA report, we have not only 

analyzed individual effects on the 

species, but we have also analyzed their 

potential cumulative effects. We 

incorporate the cumulative effects into 

our SSA analysis when we characterize 

the current and future condition of the 

species. To assess the current and future 

condition of the species, we undertake 

an iterative analysis that encompasses 

and incorporates the threats 

individually and then accumulates and 

evaluates the effects of all the factors 

that may be influencing the species, 

including threats and conservation 

efforts. Because the SSA framework 

considers not just the presence of the 

factors, but to what degree they 

collectively influence risk to the entire 

species, our assessment integrates the 

cumulative effects of the factors and 

replaces a standalone cumulative effects 

analysis. 

Determination of Western Fanshell and 

‘‘Ouachita’’ Fanshell Status 

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

and its implementing regulations (50 

CFR part 424) set forth the procedures 

for determining whether a species meets 

the definition of an ‘‘endangered 

species’’ or a ‘‘threatened species.’’ The 

Act defines ‘‘endangered species’’ as a 

species in danger of extinction 

throughout all or a significant portion of 

its range, and ‘‘threatened species’’ as a 

species likely to become an endangered 

species within the foreseeable future 

throughout all or a significant portion of 

its range. The Act requires that we 

determine whether a species meets the 

definition of ‘‘endangered species’’ or 

‘‘threatened species’’ because of any of 

the following factors: (A) The present or 

threatened destruction, modification, or 

curtailment of its habitat or range; (B) 

overutilization for commercial, 

recreational, scientific, or educational 

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

the inadequacy of existing regulatory 

mechanisms; or (E) other natural or 

manmade factors affecting its continued 

existence. 

Western Fanshell—Status Throughout 

All of Its Range 

After evaluating threats to the species 

and assessing the cumulative effect of 

the threats under the Act’s section 

4(a)(1) factors, we determined that the 

western fanshell has experienced a 

reduction in populations/management 

units from historical conditions. 

However, the species still ranges over 

three of the four major drainages (HUC– 

4 representation units) in which it 

historically occurred. Eleven of 27 

historical MUs are extant. Of those 11, 

3 MUs are currently in high condition, 

3 in medium condition, and 5 in low 

condition. The majority (54 percent) of 

the MUs are in high or medium 

condition. There is at least one MU in 

high condition in each of the 3 extant 

representation units. With 11 extant 


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MUs across three HUC–4s, the species 

currently retains redundancy to 

withstand and survive potential 

catastrophic events, although there is no 

imminent catastrophic threat. Therefore, 

we determined that the species is not in 

danger of extinction throughout all of its 

range. 

However, the following threats 

currently acting on the western fanshell 

will likely continue into the foreseeable 

future and decrease the condition of the 

species further over time: Habitat loss 

and degradation from siltation, water 

quality degradation, altered flow, 

landscape changes, and habitat 

fragmentation (Factor A). These threats 

are reasonably expected to be 

exacerbated by continued urbanization, 

and threats of water quality 

(temperature) and flow are especially 

exacerbated by climate change (Factor 

E). These threats will continue to impact 

the species into the foreseeable future, 

and the existing regulatory mechanisms 

(Factor D) are not adequately reducing 

the impact of these threats on the 

species. The best available data do not 

indicate that the western fanshell is 

currently impacted at the population 

level by overutilization for commercial, 

recreational, scientific, or educational 

purposes (Factor B) or predation or 

disease (Factor C), nor do the best 

available data indicate that the species 

will be impacted by these factors in the 

future. 

Given the projection of threats 40 

years into the future, the number of 

western fanshell populations will 

decline with the projected loss of five 

MUs, reducing the species’ redundancy. 

Across the plausible future scenarios, 

resiliency also declines with zero to four 

populations projected to be in medium 

condition and two to six populations in 

low condition. No populations are 

projected to be in high condition in the 

foreseeable future. Representation is 

projected to remain across the range, but 

the considerable loss of redundancy and 

resiliency makes the species likely to 

become in danger of extinction in the 

foreseeable future throughout its range. 

Thus, after assessing the best available 

information, we conclude that the 

western fanshell is likely to become in 

danger of extinction within the 

foreseeable future throughout all of its 

range. 

Western Fanshell—Status Throughout a 

Significant Portion of Its Range 

Under the Act and our implementing 

regulations, a species may warrant 

listing if it is in danger of extinction or 

likely to become so in the foreseeable 

future throughout all or a significant 

portion of its range. The court in Center 

for Biological Diversity v. Everson, 2020 

WL 437289 (D.D.C. Jan. 28, 2020) 

(Center for Biological Diversity), vacated 

the aspect of the Final Policy on 

Interpretation of the Phrase ‘‘Significant 

Portion of Its Range’’ in the Endangered 

Species Act’s Definitions of 

‘‘Endangered Species’’ and ‘‘Threatened 

Species’’ (79 FR 37578; July 1, 2014) 

that provided that the Service does not 

undertake an analysis of significant 

portions of a species’ range if the 

species warrants listing as threatened 

throughout all of its range. Therefore, 

we proceed to evaluating whether the 

species is endangered in a significant 

portion of its range—that is, whether 

there is any portion of the species’ range 

for which both (1) the portion is 

significant; and (2) the species is in 

danger of extinction in that portion. 

Depending on the case, it might be more 

efficient for us to address the 

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

question first. We can choose to address 

either question first. Regardless of 

which question we address first, if we 

reach a negative answer with respect to 

the first question that we address, we do 

not need to evaluate the other question 

for that portion of the species’ range. 

Following the court’s holding in 

Center for Biological Diversity, we now 

consider whether there are any 

significant portions of the species’ range 

where the species is in danger of 

extinction now (that is, endangered). In 

undertaking this analysis for western 

fanshell, we choose to address the status 

question first—we consider information 

pertaining to the geographic distribution 

of both the species and the threats that 

the species faces to identify any 

portions of the range where the species 

is endangered. 

For western fanshell, we considered 

whether the threats are geographically 

concentrated in any portion of the 

species’ range at a biologically 

meaningful scale. We examined the 

following threats: Water quality 

degradation, altered flow, landscape 

changes, and habitat fragmentation, 

including cumulative effects. We 

evaluated multiple factors—including 

various water quality parameters, land 

cover data, road density, and barriers— 

that contribute to these primary threats. 

These habitat factors are in a medium to 

high condition across the species’ range. 

Overall, we found that threats are acting 

similarly within the occupied river 

basins across the species’ range. We 

found no concentration of threats in any 

portion of the western fanshell’s range 

at a biologically meaningful scale. Thus, 

there are no portions of the species’ 

range where the species has a different 

status from its rangewide status. 

Therefore, no portion of the species’ 

range provides a basis for determining 

that the species is in danger of 

extinction in a significant portion of its 

range, and we determine that the 

species is likely to become in danger of 

extinction within the foreseeable future 

throughout all of its range. This is 

consistent with the courts’ holdings in 

Desert Survivors v. Department of the 

Interior, No. 16–cv–01165–JCS, 2018 

WL 4053447 (N.D. Cal. Aug. 24, 2018), 

and Center for Biological Diversity v. 

Jewell, 248 F. Supp. 3d, 946, 959 (D. 

Ariz. 2017). 

Western Fanshell—Determination of 

Status 

Our review of the best available 

scientific and commercial information 

indicates that the western fanshell 

meets the Act’s definition of a 

threatened species. Therefore, we 

propose to list the western fanshell as a 

threatened species in accordance with 

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

‘‘Ouachita’’ Fanshell—Status 

Throughout All of Its Range 

After evaluating threats to the species 

and assessing the cumulative effect of 

the threats under the section 4(a)(1) 

factors, we determined that the 

‘‘Ouachita’’ fanshell has experienced a 

reduction in resiliency and redundancy 

from historical conditions. The species 

is extant in four MUs within one major 

drainage (HUC–4 representation unit). 

The species historically occurred in 

Bayou Bartholomew in Louisiana. Of 

the four extant MUs, one is currently in 

high condition, one in medium 

condition, and two in low condition. 

The species appears to be endemic to 

the Ouachita River basin. Although the 

species is known from only one 

representation unit, half of the extant 

populations are in high or medium 

condition. The species currently retains 

redundancy to withstand and survive 

potential catastrophic events, although 

there is no imminent catastrophic 

threat. Therefore, we determined that 

the species is not in danger of extinction 

throughout all of its range. 

The following threats currently acting 

on the ‘‘Ouachita’’ fanshell will likely 

continue into the foreseeable future and 

decrease the condition of the species 

further over time: Habitat loss and 

degradation from siltation, water quality 

degradation, altered flow, landscape 

changes, and habitat fragmentation 

(Factor A). These threats are reasonably 

expected to be exacerbated by continued 

urbanization, and threats of water 

quality (temperature) and flow are 

especially exacerbated by climate 

change (Factor E). These threats will 


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continue to impact the species into the 

foreseeable future, and the existing 

regulatory mechanisms (Factor D) are 

not adequately reducing the impact of 

these threats on the species. The best 

available data do not indicate that the 

‘‘Ouachita’’ fanshell is currently 

impacted at the population level by 

overutilization for commercial, 

recreational, scientific, or educational 

purposes (Factor B) or predation or 

disease (Factor C), nor do the best 

available data indicate that the species 

will be impacted by these factors in the 

future. 

Given the projection of threats 40 

years into the future, the number of 

‘‘Ouachita’’ fanshell populations will 

decline with the projected loss of two 

MUs, reducing the species’ redundancy. 

Resiliency also declines with three to 

four populations projected to be in low 

condition and zero to one population(s) 

in medium condition. No populations 

are projected to be in high condition in 

the foreseeable future. As the species 

occurs in only the Ouachita River basin, 

representation is projected to remain, 

but the considerable loss of redundancy 

and resiliency makes the species likely 

to become in danger of extinction in the 

foreseeable future throughout its range. 

Thus, after assessing the best available 

information, we conclude that the 

‘‘Ouachita’’ fanshell is likely to become 

in danger of extinction within the 

foreseeable future throughout all of its 

range. 

‘‘Ouachita’’ Fanshell—Status 

Throughout a Significant Portion of Its 

Range 

See above, under Western Fanshell— 

Status Throughout a Significant Portion 

of Its Range, for a description of our 

evaluation methods and our policy 

application. 

In undertaking the analysis for the 

‘‘Ouachita’’ fanshell, we choose to 

address the status question first—we 

consider information pertaining to the 

geographic distribution of both the 

species and the threats that the species 

faces to identify any portions of the 

range where the species is endangered. 

We examined the following threats: 

Water quality degradation, altered flow, 

landscape changes, and habitat 

fragmentation, including cumulative 

effects. We evaluated multiple factors— 

including various water quality 

parameters, land cover data, road 

density, and barriers—that contribute to 

these primary threats. These habitat 

factors are in a medium to high 

condition across the species’ range. 

Overall, we found that threats are acting 

similarly across the species’ range. We 

found no concentration of threats in any 

portion of the ‘‘Ouachita’’ fanshell’s 

range at a biologically meaningful scale. 

Thus, there are no portions of the 

species’ range where the species has a 

different status from its rangewide 

status. Therefore, no portion of the 

species’ range provides a basis for 

determining that the species is in danger 

of extinction in a significant portion of 

its range, and we determine that the 

species is likely to become in danger of 

extinction within the foreseeable future 

throughout all of its range. This is 

consistent with the courts’ holdings in 

Desert Survivors v. Department of the 

Interior, No. 16–cv–01165–JCS, 2018 

WL 4053447 (N.D. Cal. Aug. 24, 2018), 

and Center for Biological Diversity v. 

Jewell, 248 F. Supp. 3d, 946, 959 (D. 

Ariz. 2017). 

‘‘Ouachita’’ Fanshell—Determination of 

Status 

Our review of the best available 

scientific and commercial information 

indicates that the ‘‘Ouachita’’ fanshell 

meets the Act’s definition of a 

threatened species. Therefore, we 

propose to list the ‘‘Ouachita’’ fanshell 

as a threatened species in accordance 

with sections 3(20) and 4(a)(1) of the 

Act. 

Available Conservation Measures 

Conservation measures provided to 

species listed as endangered or 

threatened species under the Act 

include recognition, recovery actions, 

requirements for Federal protection, and 

prohibitions against certain practices. 

Recognition through listing results in 

public awareness, and conservation by 

Federal, State, Tribal, and local 

agencies, private organizations, and 

individuals. The Act encourages 

cooperation with the States and other 

countries and calls for recovery actions 

to be carried out for listed species. The 

protection required by Federal agencies 

and the prohibitions against certain 

activities are discussed, in part, below. 

The primary purpose of the Act is the 

conservation of endangered and 

threatened species and the ecosystems 

upon which they depend. The ultimate 

goal of such conservation efforts is the 

recovery of these listed species, so that 

they no longer need the protective 

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

Act calls for the Service to develop and 

implement recovery plans for the 

conservation of endangered and 

threatened species. The recovery 

planning process involves the 

identification of actions that are 

necessary to halt or reverse the species’ 

decline by addressing the threats to its 

survival and recovery. The goal of this 

process is to restore listed species to a 

point where they are secure, selfsustaining, and functioning components 

of their ecosystems. 

Recovery planning consists of 

preparing draft and final recovery plans, 

beginning with the development of a 

recovery outline and making it available 

to the public within 30 days of a final 

listing determination. The recovery 

outline guides the immediate 

implementation of urgent recovery 

actions. Revisions of the plan may be 

done to address continuing or new 

threats to the species, as new 

substantive information becomes 

available. The recovery plan also 

identifies recovery criteria for review of 

when a species may be ready for 

reclassification from endangered to 

threatened (‘‘downlisting’’) or removal 

from protected status (‘‘delisting’’), and 

as a benchmark for monitoring recovery 

progress. Recovery plans also establish 

a framework for agencies to coordinate 

their recovery efforts and provide 

estimates of the cost of implementing 

recovery tasks. When completed, the 

recovery outline, draft recovery plan, 

and the final recovery plan will be 

available on our website (http://

www.fws.gov/endangered), or from our 

Arkansas Ecological Services Field 

Office for ‘‘Ouachita’’ fanshell or 

Missouri Ecological Services Field 

Office for western fanshell (see FOR

FURTHER INFORMATION CONTACT). 

Implementation of recovery actions 

generally requires the participation of a 

broad range of partners, including other 

Federal agencies, States, Tribes, 

nongovernmental organizations, 

businesses, and private landowners. 

Examples of recovery actions include 

habitat restoration (for example, 

restoration of native vegetation), 

research, captive propagation and 

reintroduction, and outreach and 

education. The recovery of many listed 

species cannot be accomplished solely 

on Federal lands because their range 

may occur primarily or solely on nonFederal lands. To achieve recovery of 

these species requires cooperative 

conservation efforts on private, State, 

and Tribal lands. 

If this species is listed, funding for 

recovery actions will be available from 

a variety of sources, including Federal 

budgets, State programs, and cost-share 

grants for non-Federal landowners, the 

academic community, and 

nongovernmental organizations. In 

addition, pursuant to section 6 of the 

Act, the States of Arkansas, Kansas, 

Missouri, and Oklahoma would be 

eligible for Federal funds to implement 

management actions that promote the 

protection or recovery of the western 

fanshell and the States of Arkansas and 


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Louisiana would be eligible for Federal 

funds to implement management 

actions that promote the protection or 

recovery of the ‘‘Ouachita’’ fanshell. 

Information on our grant programs that 

are available to aid species recovery can 

be found at: http://www.fws.gov/grants. 

Although the western fanshell and 

‘‘Ouachita’’ fanshell are only proposed 

for listing under the Act at this time, 

please let us know if you are interested 

in participating in conservation efforts 

for these species. Additionally, we 

invite you to submit any new 

information on these species whenever 

it becomes available and any 

information you may have for recovery 

planning purposes (see FOR FURTHER

INFORMATION CONTACT). 

Section 7(a) of the Act requires 

Federal agencies to evaluate their 

actions with respect to any species that 

is proposed or listed as an endangered 

or threatened species and with respect 

to its critical habitat, if any is 

designated. Regulations implementing 

this interagency cooperation provision 

of the Act are codified at 50 CFR part 

402. Section 7(a)(4) of the Act requires 

Federal agencies to confer with the 

Service on any action that is likely to 

jeopardize the continued existence of a 

species proposed for listing or result in 

destruction or adverse modification of 

proposed critical habitat. If a species is 

listed subsequently, section 7(a)(2) of 

the Act requires Federal agencies to 

ensure that activities they authorize, 

fund, or carry out are not likely to 

jeopardize the continued existence of 

the species or destroy or adversely 

modify its critical habitat. If a Federal 

action may affect a listed species or its 

critical habitat, the responsible Federal 

agency must enter into consultation 

with the Service. 

Federal agency actions within the 

species’ habitat that may require 

conference or consultation or both as 

described in the preceding paragraph 

include, but are not limited to, activities 

authorized, funded, or carried out by the 

following agencies: 

(1) U.S. Army Corps of Engineers 

(channel dredging and maintenance; 

dam projects including flood control, 

navigation, hydropower, bridge projects, 

stream restoration, and Clean Water Act 

permitting). 

(2) U.S. Department of Agriculture, 

including the Natural Resources 

Conservation Service and Farm Service 

Agency (technical and financial 

assistance for projects) and the Forest 

Service (aquatic habitat restoration, fire 

management plans, fuel reduction 

treatments, forest plans, mining 

permits). 

(3) U.S. Department of Energy 

(renewable and alternative energy 

projects). 

(4) Federal Energy Regulatory 

Commission (interstate pipeline 

construction and maintenance, dam 

relicensing, hydrokinetics). 

(5) U.S. Department of Transportation 

(highway and bridge construction and 

maintenance). 

(6) U.S. Fish and Wildlife Service 

(issuance of section 10 permits for 

enhancement of survival, habitat 

conservation plans, and safe harbor 

agreements; National Wildlife Refuge 

planning and refuge activities; Partners 

for Fish and Wildlife program projects 

benefiting these species or other listed 

species; Wildlife and Sportfish 

Restoration program sportfish stocking). 

(7) Environmental Protection Agency 

(water quality criteria, permitting). 

(8) Office of Surface Mining (land 

resource management plans, mining 

permits, oil and natural gas permits, 

renewable energy development). 

It is our policy, as published in the 

Federal Register on July 1, 1994 (59 FR 

34272), to identify to the maximum 

extent practicable at the time a species 

is listed, those activities that would or 

would not constitute a violation of 

section 9 of the Act. The intent of this 

policy is to increase public awareness of 

the effect of a proposed listing on 

proposed and ongoing activities within 

the range of the species proposed for 

listing. The discussion below regarding 

protective regulations under section 4(d) 

of the Act complies with our policy. 

II. Proposed Rule Issued Under Section 

4(d) of the Act 

Background 

Section 4(d) of the Act contains two 

sentences. The first sentence states that 

the Secretary shall issue such 

regulations as she deems necessary and 

advisable to provide for the 

conservation of species listed as 

threatened. The U.S. Supreme Court has 

noted that statutory language like 

‘‘necessary and advisable’’ demonstrates 

a large degree of deference to the agency 

(see Webster v. Doe, 486 U.S. 592 

(1988)). Conservation is defined in the 

Act to mean the use of all methods and 

procedures which are necessary to bring 

any endangered species or threatened 

species to the point at which the 

measures provided pursuant to the Act 

are no longer necessary. Additionally, 

the second sentence of section 4(d) of 

the Act states that the Secretary may by 

regulation prohibit with respect to any 

threatened species any act prohibited 

under section 9(a)(1), in the case of fish 

or wildlife, or section 9(a)(2), in the case 

of plants. Thus, the combination of the 

two sentences of section 4(d) provides 

the Secretary with wide latitude of 

discretion to select and promulgate 

appropriate regulations tailored to the 

specific conservation needs of the 

threatened species. The second sentence 

grants particularly broad discretion to 

the Service when adopting the 

prohibitions under section 9. 

The courts have recognized the extent 

of the Secretary’s discretion under this 

standard to develop rules that are 

appropriate for the conservation of a 

species. For example, courts have 

upheld rules developed under section 

4(d) as a valid exercise of agency 

authority where they prohibited take of 

threatened wildlife, or include a limited 

taking prohibition (see Alsea Valley 

Alliance v. Lautenbacher, 2007 U.S. 

Dist. Lexis 60203 (D. Or. 2007); 

Washington Environmental Council v. 

National Marine Fisheries Service, 2002 

U.S. Dist. Lexis 5432 (W.D. Wash. 

2002)). Courts have also upheld 4(d) 

rules that do not address all of the 

threats a species faces (see State of 

Louisiana v. Verity, 853 F.2d 322 (5th 

Cir. 1988)). As noted in the legislative 

history when the Act was initially 

enacted, ‘‘once an animal is on the 

threatened list, the Secretary has an 

almost infinite number of options 

available to him [or her] with regard to 

the permitted activities for those 

species. He [or she] may, for example, 

permit taking, but not importation of 

such species, or he [or she] may choose 

to forbid both taking and importation 

but allow the transportation of such 

species’’ (H.R. Rep. No. 412, 93rd Cong., 

1st Sess. 1973). 

Exercising this authority under 

section 4(d), we have developed a 

proposed rule that is designed to 

address the western fanshell’s and 

‘‘Ouachita’’ fanshell’s specific threats 

and conservation needs. Although the 

statute does not require us to make a 

‘‘necessary and advisable’’ finding with 

respect to the adoption of specific 

prohibitions under section 9, we find 

that this rule as a whole satisfies the 

requirement in section 4(d) of the Act to 

issue regulations deemed necessary and 

advisable to provide for the 

conservation of the western fanshell and 

‘‘Ouachita’’ fanshell. As discussed 

above under Summary of Biological 

Status and Threats, we have concluded 

that the western fanshell and 

‘‘Ouachita’’ fanshell are likely to 

become in danger of extinction within 

the foreseeable future primarily due to 

habitat loss and degradation from 

siltation, water and sediment quality 

degradation, changes to flow, and 

impoundments. These threats, which 


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are expected to be exacerbated by 

continued urbanization and the effects 

of climate change, were central to our 

assessment of the future viability of the 

western fanshell and ‘‘Ouachita’’ 

fanshell. The provisions of this 

proposed 4(d) rule would promote 

conservation of the western fanshell and 

‘‘Ouachita’’ fanshell by encouraging 

management of the landscape in ways 

that meet both land management 

considerations and the conservation 

needs of the western fanshell and 

‘‘Ouachita’’ fanshell. The provisions of 

this proposed rule are one of many tools 

that we would use to promote the 

conservation of the western fanshell and 

‘‘Ouachita’’ fanshell. This proposed 4(d) 

rule would apply only if and when we 

make final the listing of the western 

fanshell and ‘‘Ouachita’’ fanshell as 

threatened species. 

Section 7(a)(2) of the Act requires 

Federal agencies, including the Service, 

to ensure that any action they fund, 

authorize, or carry out is not likely to 

jeopardize the continued existence of 

any endangered species or threatened 

species or result in the destruction or 

adverse modification of designated 

critical habitat of such species. In 

addition, section 7(a)(4) of the Act 

requires Federal agencies to confer with 

the Service on any agency action which 

is likely to jeopardize the continued 

existence of any species proposed to be 

listed under the Act or result in the 

destruction or adverse modification of 

proposed critical habitat. 

If a Federal action may affect a listed 

species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. Examples of actions that are 

subject to the section 7 consultation 

process are actions on State, Tribal, 

local, or private lands that require a 

Federal permit (such as a permit from 

the U.S. Army Corps of Engineers under 

section 404 of the Clean Water Act (33 

U.S.C. 1251 et seq.) or a permit from the 

Service under section 10 of the Act) or 

that involve some other Federal action 

(such as funding from the Federal 

Highway Administration, Federal 

Aviation Administration, or the Federal 

Emergency Management Agency). 

Federal actions not affecting listed 

species or critical habitat—and actions 

on State, Tribal, local, or private lands 

that are not federally funded, 

authorized, or carried out by a Federal 

agency—do not require section 7 

consultation. 

This obligation does not change in 

any way for a threatened species with a 

species-specific 4(d) rule. Actions that 

result in a determination by a Federal 

agency of ‘‘not likely to adversely 

affect’’ continue to require the Service’s 

written concurrence and actions that are 

‘‘likely to adversely affect’’ a species 

require formal consultation and the 

formulation of a biological opinion. 

Provisions of the Proposed 4(d) Rule 

This proposed 4(d) rule would 

provide for the conservation of the 

western fanshell and ‘‘Ouachita’’ 

fanshell by prohibiting the following 

activities, except as otherwise 

authorized or permitted: Importing or 

exporting; take; possession and other 

acts with unlawfully taken specimens; 

delivering, receiving, transporting, or 

shipping in interstate or foreign 

commerce in the course of commercial 

activity; or selling or offering for sale in 

interstate or foreign commerce. 

As discussed above under Summary 

of Biological Status and Threats, 

multiple factors are affecting the status 

of western fanshell and ‘‘Ouachita’’ 

fanshell. A range of activities have the 

potential to affect these species, 

including, for example, habitat loss and 

degradation from siltation, water and 

sediment quality degradation, changes 

to flow, and impoundments. These 

threats, which are expected to be 

exacerbated by continued urbanization 

and the effects of climate change, were 

central to our assessment of the future 

viability of western fanshell and 

‘‘Ouachita’’ fanshell. Therefore, we 

prohibit actions resulting in the 

incidental take of western fanshell and 

‘‘Ouachita’’ fanshell by altering or 

degrading the habitat. Regulating 

incidental take resulting from these 

activities would help preserve the 

species’ remaining populations, slow 

their rate of decline, and decrease 

synergistic, negative effects from other 

stressors. 

Under the Act, ‘‘take’’ means to 

harass, harm, pursue, hunt, shoot, 

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

to attempt to engage in any such 

conduct. Some of these provisions have 

been further defined in regulation at 50 

CFR 17.3. Take can result knowingly or 

otherwise, by direct and indirect 

impacts, intentionally or incidentally. 

The proposed 4(d) rule would also 

provide for the conservation of the 

species by allowing exceptions to 

actions and activities that, while they 

may have some minimal level of 

disturbance to the western fanshell and 

‘‘Ouachita’’ fanshell, are not expected to 

negatively affect the species’ 

conservation and recovery efforts. The 

proposed exceptions to these 

prohibitions include: (1) Channel and 

bank restoration projects; (2) silviculture 

and forest management that implements 

best management practices; and (3) 

transportation projects that avoid 

instream disturbance in waters occupied 

by the species. 

The first exception is for incidental 

take resulting from channel and bank 

restoration projects for creation of 

natural, physically stable, ecologically 

functioning streams, taking into 

consideration connectivity with 

floodplain and groundwater aquifers. 

This exception includes a requirement 

that bank restoration projects require 

planting appropriate native vegetation, 

including woody species appropriate for 

the region and habitat. We also propose 

language that would require surveys and 

relocation prior to commencement of 

restoration actions (and, if applicable, 

monitoring after relocation) for western 

fanshell and ‘‘Ouachita’’ fanshell that 

would otherwise be negatively affected 

by the actions. Actions related to 

restoration activities that would 

negatively affect western fanshell and 

‘‘Ouachita’’ fanshell include: Individual 

mussels being removed, dislodged, 

crushed and/or killed by heavy 

equipment operations and rip-rap 

placement; removal, destruction and/or 

replacement of habitat; increased 

turbidity from streambed disturbance; 

and alterations to flow and turbidity 

from permanent (weirs) or temporary 

(causeways) structures needed for 

construction. 

The second exception is for incidental 

take resulting from silviculture and 

forest management activities that use 

State-approved best management 

practices to protect water and sediment 

quality and stream and riparian habitat. 

Best management practices are designed 

to reduce sedimentation, erosion, and 

bank destruction, thereby protecting 

instream habitat for these species. 

The third exception is for incidental 

take resulting from transportation 

projects that do not include activities 

that disturb instream habitat. Bridge 

designs that include spanning the 

stream and avoiding stream bank 

disturbance reduce sedimentation and 

erosion, thereby protecting instream 

habitat for these species. 

We reiterate that these actions and 

activities may have some minimal level 

of take of the western fanshell and 

‘‘Ouachita’’ fanshell, but any such take 

is expected to be rare and insignificant, 

and is not expected to negatively impact 

the species’ conservation and recovery 

efforts. Rather, we expect they would 

have a net beneficial effect on the 

species. Across the species’ range, 

instream habitats have been degraded 

physically by sedimentation and by 

direct and indirect channel disturbance. 

The habitat restoration activities in the 

proposed 4(d) rule are intended to 


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improve habitat conditions for the 

species in the long term. 

We may issue permits to carry out 

otherwise prohibited activities, 

including those described above, 

involving threatened wildlife under 

certain circumstances. Regulations 

governing permits for threatened 

wildlife are codified at 50 CFR 17.32. 

With regard to threatened wildlife, a 

permit may be issued for the following 

purposes: For scientific purposes, to 

enhance the propagation or survival of 

the species, for economic hardship, for 

zoological exhibition, for educational 

purposes, for incidental taking, or for 

special purposes consistent with the 

purposes of the Act. The statute also 

contains certain exemptions from the 

prohibitions, which are found in 

sections 9 and 10 of the Act. In addition, 

we are considering, but have not 

specifically proposed in this document, 

an exception from permitting 

requirements for individuals conducting 

presence/absence surveys, studies to 

document habitat use, population 

monitoring, and evaluations of potential 

impacts to the fanshells, provided the 

individual holds a valid scientific 

collecting permit for mussels from the 

appropriate State agency. If we conclude 

that this measure would provide for the 

conservation of the species, we may 

include a provision in the final 4(d) 

rule. We specifically request comments 

on this provision we are considering. 

We recognize the special and unique 

relationship with our State natural 

resource agency partners in contributing 

to conservation of listed species. State 

agencies often possess scientific data 

and valuable expertise on the status and 

distribution of endangered, threatened, 

and candidate species of wildlife and 

plants. State agencies, because of their 

authorities and their close working 

relationships with local governments 

and landowners, are in a unique 

position to assist the Service in 

implementing all aspects of the Act. In 

this regard, section 6 of the Act provides 

that the Service shall cooperate to the 

maximum extent practicable with the 

States in carrying out programs 

authorized by the Act. Therefore, any 

qualified employee or agent of a State 

conservation agency that is a party to a 

cooperative agreement with the Service 

in accordance with section 6(c) of the 

Act, who is designated by his or her 

agency for such purposes, would be able 

to conduct activities designed to 

conserve the western fanshell and 

‘‘Ouachita’’ fanshell that may result in 

otherwise prohibited take without 

additional authorization. 

Nothing in this proposed 4(d) rule 

would change in any way the recovery 

planning provisions of section 4(f) of the 

Act, the consultation requirements 

under section 7 of the Act, or the ability 

of the Service to enter into partnerships 

for the management and protection of 

the western fanshell and ‘‘Ouachita’’ 

fanshell. However, interagency 

cooperation may be further streamlined 

through planned programmatic 

consultations for the species between 

Federal agencies and the Service, where 

appropriate. We ask the public, 

particularly State agencies and other 

interested stakeholders that may be 

affected by the proposed 4(d) rule, to 

provide comments and suggestions 

regarding additional guidance and 

methods that the Service could provide 

or use, respectively, to streamline the 

implementation of this proposed 4(d) 

rule (see Information Requested, above). 

III. Critical Habitat 

Background 

Critical habitat is defined in section 3 

of the Act as: 

(1) The specific areas within the 

geographical area occupied by the 

species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features: 

(a) Essential to the conservation of the 

species, and 

(b) Which may require special 

management considerations or 

protection; and 

(2) Specific areas outside the 

geographical area occupied by the 

species at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Our regulations at 50 CFR 424.02 

define the geographical area occupied 

by the species as an area that may 

generally be delineated around species’ 

occurrences, as determined by the 

Secretary (that is, range). Such areas 

may include those areas used 

throughout all or part of the species’ life 

cycle, even if not used on a regular basis 

(for example, migratory corridors, 

seasonal habitats, and habitats used 

periodically, but not solely by vagrant 

individuals). Additionally, our 

regulations at 50 CFR 424.02 define the 

word ‘‘habitat,’’ for the purposes of 

designating critical habitat only, as the 

abiotic and biotic setting that currently 

or periodically contains the resources 

and conditions necessary to support one 

or more life processes of a species. 

Conservation, as defined under 

section 3 of the Act, means to use and 

the use of all methods and procedures 

that are necessary to bring an 

endangered or threatened species to the 

point at which the measures provided 

pursuant to the Act are no longer 

necessary. Such methods and 

procedures include, but are not limited 

to, all activities associated with 

scientific resources management such as 

research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, live trapping, and 

transplantation, and, in the 

extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

requirement that Federal agencies 

ensure, in consultation with the Service, 

that any action they authorize, fund, or 

carry out is not likely to result in the 

destruction or adverse modification of 

critical habitat. The designation of 

critical habitat does not affect land 

ownership or establish a refuge, 

wilderness, reserve, preserve, or other 

conservation area. Such designation also 

does not allow the government or public 

to access private lands. Such 

designation does not require 

implementation of restoration, recovery, 

or enhancement measures by nonFederal landowners. Where a landowner 

requests Federal agency funding or 

authorization for an action that may 

affect a listed species or critical habitat, 

the Federal agency would be required to 

consult with the Service under section 

7(a)(2) of the Act. However, even if the 

Service were to conclude that the 

proposed activity would result in 

destruction or adverse modification of 

the critical habitat, the Federal action 

agency and the landowner are not 

required to abandon the proposed 

activity, or to restore or recover the 

species; instead, they must implement 

‘‘reasonable and prudent alternatives’’ 

to avoid destruction or adverse 

modification of critical habitat. 

Under the first prong of the Act’s 

definition of critical habitat, areas 

within the geographical area occupied 

by the species at the time it was listed 

are included in a critical habitat 

designation if they contain physical or 

biological features (1) essential to the 

conservation of the species and (2) 

which may require special management 

considerations or protection. For these 

areas, critical habitat designations 

identify, to the extent known using the 

best scientific and commercial data 

available, those physical or biological 

features that are essential to the 

conservation of the species (such as 

space, food, cover, and protected 

habitat). In identifying those physical or 

biological features that occur in specific 

occupied areas, we focus on the specific 


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features that are essential to support the 

life-history needs of the species, 

including, but not limited to, water 

characteristics, soil type, geological 

features, prey, vegetation, symbiotic 

species, or other features. A feature may 

be a single habitat characteristic or a 

more complex combination of habitat 

characteristics. Features may include 

habitat characteristics that support 

ephemeral or dynamic habitat 

conditions. Features may also be 

expressed in terms relating to principles 

of conservation biology, such as patch 

size, distribution distances, and 

connectivity. 

Under the second prong of the Act’s 

definition of critical habitat, we can 

designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time it is listed, 

upon a determination that such areas 

are essential for the conservation of the 

species. The implementing regulations 

at 50 CFR 424.12(b)(2) further delineate 

unoccupied critical habitat by setting 

out three specific parameters: (1) When 

designating critical habitat, the 

Secretary will first evaluate areas 

occupied by the species; (2) the 

Secretary will consider unoccupied 

areas to be essential only where a 

critical habitat designation limited to 

geographical areas occupied by the 

species would be inadequate to ensure 

the conservation of the species; and (3) 

for an unoccupied area to be considered 

essential, the Secretary must determine 

that there is a reasonable certainty both 

that the area will contribute to the 

conservation of the species and that the 

area contains one or more of those 

physical or biological features essential 

to the conservation of the species. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. 

Further, our Policy on Information 

Standards Under the Endangered 

Species Act (published in the Federal 

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

the Information Quality Act (section 515 

of the Treasury and General 

Government Appropriations Act for 

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

5658)), and our associated Information 

Quality Guidelines provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our biologists, to 

the extent consistent with the Act and 

with the use of the best scientific data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. 

When we are determining which areas 

should be designated as critical habitat, 

our primary source of information is 

generally the information from the SSA 

report and information developed 

during the listing process for the 

species. Additional information sources 

may include any generalized 

conservation strategy, criteria, or outline 

that may have been developed for the 

species; the recovery plan for the 

species; articles in peer-reviewed 

journals; conservation plans developed 

by States and counties; scientific status 

surveys and studies; biological 

assessments; other unpublished 

materials; or experts’ opinions or 

personal knowledge. 

As the regulatory definition of 

‘‘habitat’’ reflects (50 CFR 424.02), 

habitat is dynamic, and species may 

move from one area to another over 

time. We recognize that critical habitat 

designated at a particular point in time 

may not include all of the habitat areas 

that we may later determine are 

necessary for the recovery of the 

species. For these reasons, a critical 

habitat designation does not signal that 

habitat outside the designated area is 

unimportant or may not be needed for 

recovery of the species. Areas that are 

important to the conservation of the 

species, both inside and outside the 

critical habitat designation, will 

continue to be subject to: (1) 

Conservation actions implemented 

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

regulatory protections afforded by the 

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

for Federal agencies to ensure their 

actions are not likely to jeopardize the 

continued existence of any endangered 

or threatened species; and (3) the 

prohibitions found in section 9 of the 

Act. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. These protections and 

conservation tools will continue to 

contribute to recovery of these species. 

Similarly, critical habitat designations 

made on the basis of the best available 

information at the time of designation 

will not control the direction and 

substance of future recovery plans, 

habitat conservation plans (HCPs), or 

other species conservation planning 

efforts if new information available at 

the time of those planning efforts calls 

for a different outcome. 

Prudency Determination 

Section 4(a)(3) of the Act, as 

amended, and implementing regulations 

(50 CFR 424.12) require that, to the 

maximum extent prudent and 

determinable, the Secretary shall 

designate critical habitat at the time the 

species is determined to be an 

endangered or threatened species. Our 

regulations (50 CFR 424.12(a)(1)) state 

that the Secretary may, but is not 

required to, determine that a 

designation would not be prudent in the 

following circumstances: 

(i) The species is threatened by taking 

or other human activity and 

identification of critical habitat can be 

expected to increase the degree of such 

threat to the species; 

(ii) The present or threatened 

destruction, modification, or 

curtailment of a species’ habitat or range 

is not a threat to the species, or threats 

to the species’ habitat stem solely from 

causes that cannot be addressed through 

management actions resulting from 

consultations under section 7(a)(2) of 

the Act; 

(iii) Areas within the jurisdiction of 

the United States provide no more than 

negligible conservation value, if any, for 

a species occurring primarily outside 

the jurisdiction of the United States; 

(iv) No areas meet the definition of 

critical habitat; or 

(v) The Secretary otherwise 

determines that designation of critical 

habitat would not be prudent based on 

the best scientific data available. 

As discussed earlier in this document, 

there is currently no imminent threat of 

collection or vandalism identified under 

Factor B for these species, and 

identification and mapping of critical 

habitat is not expected to initiate any 

such threat. In our SSA and proposed 

listing determination for the western 

fanshell and ‘‘Ouachita’’ fanshell, we 

determined that the present or 

threatened destruction, modification, or 

curtailment of habitat or range is a 

threat to the western fanshell and 

‘‘Ouachita’’ fanshell and that those 

threats can be addressed in some way by 

section 7(a)(2) consultation measures. 

These species occur wholly in the 

jurisdiction of the United States, and we 

are able to identify areas that meet the 

definition of critical habitat. Therefore, 

because none of the circumstances 

enumerated in our regulations at 50 CFR 

424.12(a)(1) have been met and because 

the Secretary has not identified other 

circumstances for which this 

designation of critical habitat would be 

not prudent, we have determined that 

the designation of critical habitat is 

prudent for the western fanshell and 

‘‘Ouachita’’ fanshell. 

Critical Habitat Determinability 

Having determined that designation is 

prudent, under section 4(a)(3) of the Act 

we must find whether critical habitat for 

the western fanshell and ‘‘Ouachita’’ 

fanshell is determinable. Our 

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


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that critical habitat is not determinable 

when one or both of the following 

situations exist: 

(i) Data sufficient to perform required 

analyses are lacking, or 

(ii) The biological needs of the species 

are not sufficiently well known to 

identify any area that meets the 

definition of ‘‘critical habitat.’’ 

When critical habitat is not 

determinable, the Act allows the Service 

an additional year to publish a critical 

habitat designation (16 U.S.C. 

1533(b)(6)(C)(ii)). 

We reviewed the available 

information pertaining to the biological 

needs of the species and habitat 

characteristics where these species are 

located. This and other information 

represent the best scientific data 

available and led us to conclude that the 

designation of critical habitat is 

determinable for the western fanshell 

and ‘‘Ouachita’’ fanshell. 

Physical or Biological Features 

Essential to the Conservation of the 

Species 

In accordance with section 3(5)(A)(i) 

of the Act and regulations at 50 CFR 

424.12(b), in determining which areas 

we will designate as critical habitat from 

within the geographical area occupied 

by the species at the time of listing, we 

consider the physical or biological 

features that are essential to the 

conservation of the species and which 

may require special management 

considerations or protection. The 

regulations at 50 CFR 424.02 define 

‘‘physical or biological features essential 

to the conservation of the species’’ as 

the features that occur in specific areas 

and that are essential to support the lifehistory needs of the species, including, 

but not limited to, water characteristics, 

soil type, geological features, sites, prey, 

vegetation, symbiotic species, or other 

features. A feature may be a single 

habitat characteristic or a more complex 

combination of habitat characteristics. 

Features may include habitat 

characteristics that support ephemeral 

or dynamic habitat conditions. Features 

may also be expressed in terms relating 

to principles of conservation biology, 

such as patch size, distribution 

distances, and connectivity. For 

example, physical features essential to 

the conservation of the species might 

include gravel of a particular size 

required for spawning, alkaline soil for 

seed germination, protective cover for 

migration, or susceptibility to flooding 

or fire that maintains necessary earlysuccessional habitat characteristics. 

Biological features might include prey 

species, forage grasses, specific kinds or 

ages of trees for roosting or nesting, 

symbiotic fungi, or absence of or a 

particular level of nonnative species 

consistent with conservation needs of 

the listed species. The features may also 

be combinations of habitat 

characteristics and may encompass the 

relationship between characteristics or 

the necessary amount of a characteristic 

essential to support the life history of 

the species. 

In considering whether features are 

essential to the conservation of the 

species, we may consider an appropriate 

quality, quantity, and spatial and 

temporal arrangement of habitat 

characteristics in the context of the lifehistory needs, condition, and status of 

the species. These characteristics 

include, but are not limited to, space for 

individual and population growth and 

for normal behavior; food, water, air, 

light, minerals, or other nutritional or 

physiological requirements; cover or 

shelter; sites for breeding, reproduction, 

or rearing (or development) of offspring; 

and habitats that are protected from 

disturbance. 

As described above under Summary 

of Biological Status and Threats, 

western fanshell and ‘‘Ouachita’’ 

fanshell occur in large creeks and rivers. 

Occasional or regular interaction among 

individuals in different river reaches not 

interrupted by a barrier likely occurs, 

but in general, interaction is strongly 

influenced by habitat fragmentation and 

distance between occupied river or 

stream reaches. Once released from their 

fish host, freshwater mussels are benthic 

(bottom-dwelling), generally sedentary 

aquatic organisms and closely 

associated with appropriate habitat 

patches within a river or stream. 

We derive the specific physical or 

biological features essential for the 

western fanshell and ‘‘Ouachita’’ 

fanshell from studies of these species’ 

(or appropriate surrogate species’) 

habitat, ecology, and life history. The 

primary habitat elements that influence 

resiliency of the western fanshell and 

‘‘Ouachita’’ fanshell include water 

quality, water quantity, substrate, 

habitat connectivity, and the presence of 

host fish species to ensure recruitment. 

These features are also described above 

as species needs under Summary of 

Biological Status and Threats, and a full 

description is available in the SSA 

report; the individuals’ needs are 

summarized below in Table 1. 

TABLE 1—REQUIREMENTS FOR LIFE STAGES OF WESTERN FANSHELL AND ‘‘OUACHITA’’ FANSHELL

Life stage Resource needs—habitat requirements References 

All Life Stages ............... Water Quality: Naturally clean, high quality water with little or no 

harmful pollutants (that is, pollutants occur below tolerance limits of 

mussels, fish hosts, prey). The values below are based on the best 

available science and assume mussels respond to average values 

of a constituent over time (acute or chronic exposure). 

➢ Dissolved oxygen >3 milligrams per liter (mg/L) 

➢ Low salinity/total dissolved solids 

➢ Low nutrient concentrations 

➢ Total ammonia nitrogen <0.3–1.0 mg/L at pH 8.0 & 25 °C 

Allen et al. 2007, pp. 80–85; Augspurger et al. 

2003, p. 2569; Bringolf et al. 2007a, p. 

2094; 2007b, p. 2086; Cope et al. 2008, p. 

455; Fuller 1974, pp. 240–246; Gillis et al. 

2008, pp. 140–141; Gray et al. 2002, pp. 

155–156; Kolpin et al. 2002, pp. 1208– 

1210; Spooner and Vaughn 2008, p. 311; 

Steingraeber et al. 2007, p. 297; Wang et 

al. 2007a, 2007b, 2010, 2013, entire. 

➢ Nitrate <2.0 mg/L 

➢ Nitrite <55.8 mg/L 

➢ Low concentrations of metals 

➢ Cadmium <0.014 mg/L at 50 mg/L calcium carbonate 

(CaCO3) hardness 

➢ Zinc <0.120 mg/L at 50 mg/L CaCO3 hardness 

➢ Lead <0.205 mg/L at 50 mg/L CaCO3 hardness 

➢ Copper <0.005 mg/L in moderately hard water 

➢ Natural, unaltered ambient water temperature generally <27 °C 

Water Quantity: Flowing water in sufficient quantity to support the 

life-history requirements of mussels and their fish hosts. 

Galbraith and Vaughn 2009, p. 46; Allen and 

Vaughn 2010, p. 390; Peterson et al. 2011, 

p. 115; Daraio et al. 2010, p. 838. 


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TABLE 1—REQUIREMENTS FOR LIFE STAGES OF WESTERN FANSHELL AND ‘‘OUACHITA’’ FANSHELL—Continued 

Life stage Resource needs—habitat requirements References 

Gamete (sperm, egg development, fertilization).

Glochidia .......................

➢ Sexually mature males and females with appropriate water temperatures for spawning, fertilization, and brooding. 

➢ Presence of fish hosts (of appropriate species) with sufficient flow 

to allow attachment, encystment, relocation, excystment, and dispersal of glochidia. 

Haag 2012, pp. 38–39; Galbraith and Vaughn 

2009, pp. 45–46; Barnhart et al. 2008, p. 

372. 

Juvenile, sub-adult, and 

adult (from 

excystment to maturity).

➢ Stable substrate comprised of mixed sand, gravel and cobble, 

and appropriate for burrowing, pedal feeding, and survival. 

➢ Appropriate food sources (phytoplankton, zooplankton, 

protozoans, detritus, dissolved organic matter) in adequate supply. 

➢ Presence and abundance of fish hosts available for recruitment. 

Allen and Vaughn 2010, pp. 384–385; Haag 

2012, pp. 26–42; Eckert 2003, pp. 18–19, 

33. 

Summary of Essential Physical or 

Biological Features 

We derive the specific physical or 

biological features essential to the 

conservation of the western fanshell and 

‘‘Ouachita’’ fanshell from studies of the 

species’ habitat, ecology, and life history 

as described below. Additional 

information can be found in chapter 2 

of the SSA report (Service 2020, pp. 9– 

15), which is available on http://

www.regulations.gov under Docket No. 

FWS–R3–ES–2021–0061. We have 

determined that the following physical 

or biological features are essential to the 

conservation of the western fanshell and 

‘‘Ouachita’’ fanshell: 

(1) Adequate flows, or a hydrologic 

flow regime (magnitude, timing, 

frequency, duration, rate of change, and 

overall seasonality of discharge over 

time), necessary to maintain benthic 

habitats where the species are found 

and to maintain stream connectivity, 

specifically providing for the exchange 

of nutrients and sediment for 

maintenance of the mussels’ and fish 

hosts’ habitat and food availability, 

maintenance of spawning habitat for 

native host fishes, and the ability for 

newly transformed juveniles to settle 

and become established in their 

habitats. Adequate flows ensure 

delivery of oxygen, enable reproduction, 

deliver food to filter-feeding mussels, 

and reduce contaminants and fine 

sediments from interstitial spaces. 

(2) Suitable substrates and connected 

instream habitats, characterized by 

geomorphically stable stream channels 

and banks (that is, channels that 

maintain lateral dimensions, 

longitudinal profiles, and sinuosity 

patterns over time without an aggrading 

or degrading bed elevation) with 

habitats that support a diversity of 

freshwater mussel and native fish (such 

as stable riffle-run-pool habitats that 

provide flow refuges consisting of siltfree gravel and coarse sand substrates). 

(3) Water and sediment quality 

necessary to sustain natural 

physiological processes for normal 

behavior, growth, and viability of all life 

stages, including, but not limited to: 

Dissolved oxygen (generally above 3 

parts per million (ppm)) and water 

temperature (generally below 80 degrees 

Fahrenheit (°F) (27 degrees Celsius (°C)). 

Additionally, water and sediment 

should be low in ammonia (generally 

below 1.0 ppm total ammonia-nitrogen) 

and heavy metals, and lack excessive 

total suspended solids and other 

pollutants. 

(4) The presence and abundance of 

fish hosts necessary for recruitment of 

the western fanshell and ‘‘Ouachita’’ 

fanshell, including logperch (Percina 

caprodes), rainbow darter (Etheostoma 

caeruleum), slenderhead darter (Percina 

phoxocephala), fantail darter 

(Etheostoma flabellare), or orangebelly 

darter (Etheostoma radiosum). 

Special Management Considerations or 

Protection 

When designating critical habitat, we 

assess whether the specific areas within 

the geographical area occupied by the 

species at the time of listing contain 

features essential to the conservation of 

the species and which may require 

special management considerations or 

protection. 

The features essential to the 

conservation of the western fanshell and 

‘‘Ouachita’’ fanshell may require special 

management considerations or 

protections to reduce the following 

threats: (1) Alteration of the natural flow 

regime (modifying the natural 

hydrograph and seasonal flows), 

including water withdrawals, resulting 

in flow reduction and available water 

quantity; (2) urbanization of the 

landscape, including (but not limited to) 

land conversion for urban and 

commercial use, infrastructure 

(pipelines, roads, bridges, utilities), and 

urban water uses (resource extraction 

activities, water supply reservoirs, 

wastewater treatment, etc.); (3) 

significant alteration of water quality 

and nutrient pollution from a variety of 

activities, such as industrial and 

municipal effluents, mining, and 

agricultural activities; (4) land use 

activities that remove large areas of 

forested wetlands and riparian systems; 

(5) dam construction and culvert and 

pipe installation that create barriers to 

movement for the western fanshell and 

‘‘Ouachita’’ fanshell, or their host fishes; 

(6) changes and shifts in seasonal 

precipitation patterns as a result of 

climate change; and (7) other watershed 

and floodplain disturbances that release 

sediments, pollutants, or nutrients into 

the water. 

Management activities that could 

ameliorate these threats include, but are 

not limited to: Use of best management 

practices designed to reduce 

sedimentation, erosion, and bank 

destruction; protection of riparian 

corridors and woody vegetation; 

moderation of surface and ground water 

withdrawals to maintain natural flow 

regimes; improved stormwater 

management; and reduction of other 

watershed and floodplain disturbances 

that release sediments, pollutants, or 

nutrients into the water. 

In summary, we find that the 

occupied areas we are proposing to 

designate as critical habitat contain the 

physical or biological features that are 

essential to the conservation of the 

species and which may require special 

management considerations or 

protection. Special management 

considerations or protection may be 

required of the Federal action agency to 

eliminate, or to reduce to negligible 

levels, the threats affecting the physical 

and biological features of each unit. 

Criteria Used To Identify Critical 

Habitat 

As required by section 4(b)(2) of the 

Act, we use the best scientific data 

available to designate critical habitat. In 

accordance with the Act and our 

implementing regulations at 50 CFR 

424.12(b), we review available 

information pertaining to the habitat 

requirements of the species and identify 

specific areas within the geographical 


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area occupied by the species at the time 

of listing and any specific areas outside 

the geographical area occupied by the 

species to be considered for designation 

as critical habitat. 

We anticipate that recovery will 

require conserving the genetic diversity 

of extant populations across the HUC– 

4 watersheds within the species’ current 

range and maintaining and, where 

necessary, improving habitat and habitat 

connectivity to ensure the long-term 

viability of western fanshell and 

‘‘Ouachita’’ fanshell. We have 

determined that the currently occupied 

MUs of western fanshell and 

‘‘Ouachita’’ fanshell would maintain 

each species’ resiliency, redundancy, 

and representation and are sufficient to 

conserve these two species. Therefore, 

we are not currently proposing to 

designate any areas outside the 

geographical area occupied by the 

species. 

Methodology Used for Selection of 

Proposed Units 

First, we included current 

populations with high or medium 

resiliency. These populations show 

recruitment or varied age class structure 

and could be used for recovery actions 

to augment other populations through 

propagation activities or direct 

translocations within their basins. We 

defined a population as ‘‘current’’ if it 

contains live or recent dead individuals 

observed in surveys from 2000 to the 

present (Service 2020, p. 21). 

Second, we evaluated spatial 

representation and redundancy across 

the species’ ranges, to include last 

remaining population(s) in major river 

basins. 

Third, we examined the overall 

contribution of populations in low 

condition and threats to those 

populations. We considered adjacency 

and connectivity to high and medium 

populations, as well as isolated 

populations with potentially important 

genetic or adaptive traits, and did not 

include populations that have 

potentially low likelihood of recovery 

due to low abundance and limited 

distribution or populations currently 

under high levels of threats. 

Sources of data for this proposed 

critical habitat designation include 

information from State agencies 

throughout the species’ ranges and 

numerous survey reports on streams 

throughout the species’ ranges (Service 

2020, entire). We have also reviewed 

available information that pertains to 

the habitat requirements of these 

species. Sources of information on 

habitat requirements include studies 

conducted at occupied sites and 

published in peer-reviewed articles, 

agency reports, and data collected 

during monitoring efforts (Service 2020, 

entire). 

In summary, for areas within the 

geographic area occupied by these 

species at the time of listing, we 

delineated critical habitat unit 

boundaries using a precise set of 

criteria. Specifically, we identified river 

and stream reaches with observations 

from 2000 to present. We determined it 

is reasonable to find these areas 

occupied, given the variable data 

associated with timing and frequency of 

mussel surveys conducted throughout 

the species’ ranges and available State 

heritage databases, and information 

supports the likelihood of both species’ 

continued presence in these areas 

within this timeframe. Specific habitat 

areas were delineated, based on Natural 

Heritage Element Occurrences, 

published reports, and unpublished 

survey data provided by States. These 

areas provide habitat for western 

fanshell and ‘‘Ouachita’’ fanshell 

populations and are large enough to be 

self-sustaining over time, despite 

fluctuations in local conditions. The 

areas within the proposed units 

represent continuous river and stream 

reaches of free-flowing habitat patches 

capable of sustaining host fishes and 

allowing for seasonal transport of 

glochidia, which are essential for 

reproduction and dispersal of western 

fanshell and ‘‘Ouachita’’ fanshell. We 

consider portions of the following rivers 

and streams to be occupied by these 

species at the time of proposed listing, 

and appropriate for critical habitat 

designation: 

(1) Western fanshell—Black River, 

Fall River, Middle Fork Little Red River, 

St. Francis River, South Fork Spring 

River, Spring River, Strawberry River, 

and Verdigris River. 

(2) ‘‘Ouachita’’ fanshell—Little 

Missouri River, Ouachita River, and 

Saline River. 

When determining proposed critical 

habitat boundaries, we made every 

effort to avoid inclusion of developed 

areas, such as lands covered by 

buildings, pavement, and other 

structures because such lands lack 

physical or biological features necessary 

for the western fanshell and ‘‘Ouachita’’ 

fanshell. The scale of the maps we 

prepared under the parameters for 

publication within the Code of Federal 

Regulations may not reflect the 

exclusion of such developed lands. Any 

such lands inadvertently left inside 

critical habitat boundaries shown on the 

maps of this proposed rule have been 

excluded by text in the proposed rule 

and are not proposed for designation as 

critical habitat. Therefore, if the critical 

habitat is finalized as proposed, a 

Federal action involving these lands 

would not trigger section 7 consultation 

with respect to critical habitat and the 

requirement of no adverse modification 

unless the specific action would affect 

the physical or biological features in the 

adjacent critical habitat. 

We propose to designate as critical 

habitat lands that we have determined 

are occupied at the time of listing (that 

is, currently occupied) and that contain 

one or more of the physical or biological 

features that are essential to support 

life-history processes of the species. 

We are proposing to designate as 

critical habitat nine units for the 

western fanshell and four units for the 

‘‘Ouachita’’ fanshell based on one or 

more of the physical or biological 

features being present to support the 

western fanshell’s or ‘‘Ouachita’’ 

fanshell’s life-history processes. Some 

units contain all of the identified 

physical or biological features and 

support multiple life-history processes. 

Some units contain only some of the 

physical or biological features necessary 

to support the western fanshell’s and 

‘‘Ouachita’’ fanshell’s particular use of 

that habitat. 

The proposed critical habitat 

designation is defined by the map or 

maps, as modified by any accompanying 

regulatory text, presented at the end of 

this document under Proposed 

Regulation Promulgation. We include 

more detailed information on the 

boundaries of the critical habitat 

designation in the preamble of this 

document. We will make the 

coordinates or plot points or both on 

which each map is based available to 

the public on http://

www.regulations.gov at Docket No. 

FWS–R3–ES–2021–0061 and on our 

internet sites https://www.fws.gov/ 

midwest/ for western fanshell and 

https://www.fws.gov/southeast/ for 

‘‘Ouachita’’ fanshell. 

Proposed Critical Habitat Designation 

We are proposing to designate 

approximately 360 river miles (river mi) 

(579 kilometers (km)) in nine units as 

critical habitat for western fanshell and 

approximately 294 river mi (474 km) in 

four units for ‘‘Ouachita’’ fanshell. The 

critical habitat areas we describe below 

constitute our current best assessment of 

areas that meet the definition of critical 

habitat for western fanshell and 

‘‘Ouachita’’ fanshell. All units are 

occupied by their respective species. 

The nine areas we propose as critical 

habitat for western fanshell are: (1) 

Upper Black River, (2) Lower Black/ 

Strawberry River, (3) Fall River, (4) 


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Middle Fork Little Red River, (5) St. 

Francis River, (6) South Fork Spring 

River, (7) Spring River (AR), (8) Spring 

River (MO/KS), and (9) Verdigris River. 

The four areas we propose as critical 

habitat for ‘‘Ouachita’’ fanshell are: (1) 

Little Missouri River, (2) Ouachita 

Headwaters, (3) Ouachita River, and (4) 

Saline River. Tables 2 and 3 show the 

proposed critical habitat units and the 

approximate area of each unit. 

TABLE 2—PROPOSED CRITICAL HABITAT UNITS FOR WESTERN FANSHELL

[Area estimates reflect all land within critical habitat unit boundaries.] 

Critical habitat unit Adjacent riparian land ownership by type River miles 

(kilometers) 

WF 1. Upper Black River ................................................................................ Public (Federal, State) ........................................... 13.7 (22) 

Private .................................................................... 51 (82.1) 

WF 2. Lower Black/Strawberry River ............................................................. Public (State) .......................................................... 10.9 (17.5) 

Private .................................................................... 100.4 (161.6) 

WF 3. Fall River .............................................................................................. Private .................................................................... 45.5 (73.2) 

WF 4. Middle Fork Little Red River ................................................................ Public (Federal) ...................................................... 3.5 (5.6) 

Private .................................................................... 30.6 (49.2) 

WF 5. St. Francis River .................................................................................. Public (Federal, State) ........................................... 12.6 (20.2) 

Private .................................................................... 36.7 (59.1) 

WF 6. South Fork Spring River ...................................................................... Private .................................................................... 13.4 (21.6) 

WF 7. Spring River (AR) ................................................................................ Private .................................................................... 14.2 (22.9) 

WF 8. Spring River (MO/KS) .......................................................................... Public (State) .......................................................... 1.0 (1.6) 

Private .................................................................... 14.0 (22.5) 

WF 9. Verdigris River ..................................................................................... Private .................................................................... 12.4 (20) 

Totals ....................................................................................................... Public ...................................................................... 41.7 (67.1) 

Private .................................................................... 318.2 (512.1) 

Total ................................................................ 359.9 (579.2) 

Note: Area sizes may not sum due to rounding. 

TABLE 3—PROPOSED CRITICAL HABITAT UNITS FOR ‘‘OUACHITA’’ FANSHELL

[Area estimates reflect all land within critical habitat unit boundaries.] 

Critical habitat unit Adjacent riparian land ownership by type River miles 

(kilometers) 

OF 1. Little Missouri River .............................................................................. Private .................................................................... 22.9 (36.9) 

OF 2. Ouachita Headwaters ........................................................................... Public (Federal) ...................................................... 2.8 (4.5) 

Private .................................................................... 29.9 (48.1) 

OF 3. Ouachita River ...................................................................................... Private .................................................................... 53.5 (86.1) 

OF 4. Saline River .......................................................................................... Public (State) .......................................................... 0.5 (0.8) 

Private .................................................................... 184.8 (297.4) 

Totals ....................................................................................................... Public ...................................................................... 3.3 (5.3) 

Private .................................................................... 291.1 (468.5) 

Total ................................................................ 294.4 (473.8) 

Note: Area sizes may not sum due to rounding. 

We present brief descriptions of all 

units, and reasons why they meet the 

definition of critical habitat for the 

western fanshell or ‘‘Ouachita’’ fanshell, 

below. 

WF 1: Upper Black River 

Unit WF 1 consists of 64.7 river mi 

(104.1 km) of Black River in Butler and 

Wayne Counties, Missouri, from 

Clearwater Dam southwest of Piedmont, 

Wayne County, extending downstream 

to Butler County Road 658 crossing 

southeast of Poplar Bluff, Butler County, 

and includes the river channel up to the 

ordinary high water mark. Riparian 

lands that border the unit include 

approximately 51 river mi (82.1 km; 79 

percent) in private ownership and 13.7 

river mi (22 km; 21 percent) in public 

(Federal or State) ownership. 

Approximately 2.7 miles of the public 

ownership in this unit are State lands 

associated with Missouri Department of 

Conservation’s (MDC) Bradley A. 

Hammer Memorial Conservation Area, 

Dan River Access, Hilliard Access, and 

Stephen J. Sun Conservation Area. 

Eleven miles are Federal land associated 

with the U.S. Forest Service’s (USFS) 

Mark Twain National Forest and U.S. 

Army Corps of Engineers (USACE) 

Clearwater Recreation Area. General 

land use within the adjacent riparian 

areas of this unit includes forest, 

agriculture, several State-managed game 

lands, the town of Mill Spring, and city 

of Poplar Bluff. Clearwater Dam is 

operated by the USACE. Unit WF 1 is 

occupied by the species and contains all 

of the physical or biological features 

essential to the conservation of the 

species. There is no overlap with any 

designated critical habitat for other 

listed species. 

Threats identified within the unit 

include degradation of habitat and water 

quality from impoundments, 

channelization, and point and nonpoint 

source water pollution, including 

siltation and pollution associated with 

agriculture, development, and 

wastewater treatment plants. Special 

management considerations or 

protection measures to reduce or 

alleviate the threats may include 

reducing water quality degradation and 


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habitat loss associated with agriculture, 

development, and wastewater treatment 

plants (see Special Management 

Considerations or Protection, above). 

WF 2: Lower Black/Strawberry River 

Unit WF 2 consists of 111.3 river mi 

(179.1 km) of Black River and 

Strawberry River in Independence, 

Jackson, Lawrence, and Sharp Counties 

in Arkansas and includes the river 

channel up to the ordinary high water 

mark. Black River makes up 54.6 river 

mi (87.9 km) from the mouth of Spring 

River northeast of Black Rock, extending 

downstream to the mouth of Strawberry 

River northeast of Dowdy, 

Independence County, Arkansas. 

Strawberry River makes up 56.7 river mi 

(91.2 km) from the mouth of Lave Creek 

north of Evening Shade, Sharp County, 

extending downstream to the 

confluence with Black River northeast 

of Dowdy, Independence County, 

Arkansas. Riparian lands that border the 

unit include approximately 100.4 river 

mi (161.6 km; 90 percent) in private 

ownership and 10.9 river mi (17.5 km; 

10 percent) in public (State) ownership. 

The public land ownership in this unit 

is associated with Arkansas Game and 

Fish Commission’s Shirey Bay Rainey 

Brake Wildlife Management Area on 

Black River. The Nature Conservancy’s 

Strawberry River Preserve and Ranch on 

Strawberry River is also in this unit. 

General land use within this unit 

includes forest, agriculture, Statemanaged game lands, the town of 

Powhatan, and city of Black Rock. Unit 

WF 2 is occupied by the species and 

contains one or more of the physical or 

biological features essential to the 

species’ conservation. There is overlap 

of 70.3 river mi (113.1 km) of this unit 

with designated critical habitat for 

rabbitsfoot (Quadrula cylindrica 

cylindrica) (see 50 CFR 17.95(f) and 80 

FR 24692, April 30, 2015). 

Threats identified within the unit 

include degradation of habitat and water 

quality from impoundments, 

channelization, and point and nonpoint 

source water pollution, including 

siltation and pollution associated with 

agriculture, development, unpaved 

roads, and wastewater treatment plants. 

Special management considerations or 

protection measures to reduce or 

alleviate the threats may include 

reducing water quality degradation and 

habitat loss associated with agriculture, 

development, and wastewater treatment 

plants (see Special Management 

Considerations or Protection, above). 

WF 3: Fall River 

Unit WF 3 consists of 45.5 river mi 

(73.2 km) of Fall River in Greenwood 

and Wilson Counties, Kansas, from the 

Greenwood County Road 33/Merchants 

Avenue crossing at Fall River, 

Greenwood County, extending 

downstream to the U.S. Route 400 

crossing west of Neodesha, Wilson 

County, and includes the river channel 

up to the ordinary high water mark. 

Approximately 100 percent of the 

riparian lands that border the unit are in 

private ownership. General land use 

within the adjacent riparian areas of this 

unit includes forest, agriculture, and the 

city of Fall River. Unit WF 3 is occupied 

by the species and contains one or more 

of the physical or biological features 

essential to the species’ conservation. 

There is overlap of 45.5 river mi (73.2 

km) of this unit with designated critical 

habitat for Neosho mucket (Lampsilis 

rafinesqueana) (see 50 CFR 17.95(f) and 

80 FR 24692, April 30, 2015). 

Threats identified within the unit 

include degradation of habitat and water 

quality from impoundments and point 

and nonpoint source water pollution, 

including siltation and pollution 

associated with agriculture, 

development, unpaved roads, and 

wastewater treatment plants. Special 

management considerations or 

protection measures to reduce or 

alleviate the threats may include 

reducing water quality degradation and 

habitat loss associated with agriculture, 

development, and wastewater treatment 

plants (see Special Management 

Considerations or Protection, above). 

WF 4: Middle Fork Little Red River 

Unit WF 4 consists of 34.1 river mi 

(54.8 km) of Middle Fork Little Red 

River in Cleburne, Stone, and Van 

Buren Counties, Arkansas, from the 

mouth of Linn Creek east of Dennard, 

Van Buren County, extending 

downstream to the mouth of Wild Goose 

Creek north of Fairfield Bay, Cleburne 

and Van Buren Counties, and includes 

the river channel up to the ordinary 

high water mark. Riparian lands that 

border the unit include approximately 

30.6 river mi (49.2 km; 90 percent) in 

private ownership and 3.5 river mi (5.6 

km; 10 percent) in public (Federal) 

ownership. All of the public land 

ownership in this unit is Federal land 

associated with the USACE’s Greers 

Ferry Recreation Area. General land use 

within the adjacent riparian areas of this 

unit includes forest, pasture, the town of 

Shirley, and the city of Fairfield Bay. 

Unit WF 4 is occupied by the species 

and contains one or more of the 

physical or biological features essential 

to the species’ conservation. There is 

overlap of 34.1 river mi (54.9 km) of this 

unit with designated critical habitat for 

yellowcheek darter (Etheostoma moorei) 

(see 50 CFR 17.95(e) and 77 FR 63604, 

October 16, 2012) and rabbitsfoot (see 

50 CFR 17.95(f) and 80 FR 24692, April 

30, 2015). 

Threats identified within the unit 

include degradation of habitat and water 

quality from impoundments and point 

and nonpoint source water pollution, 

including siltation and pollution 

associated with agriculture, 

development, unpaved roads, and 

wastewater treatment plants. Special 

management considerations or 

protection measures to reduce or 

alleviate the threats may include 

reducing water quality degradation and 

habitat loss associated with agriculture, 

development, and wastewater treatment 

plants (see Special Management 

Considerations or Protection, above). 

WF 5: St. Francis River 

Unit WF 5 consists of 49.3 river mi 

(79.3 km) of St. Francis River in 

Madison and Wayne Counties, Missouri, 

extending from the mouth of Wachita 

Creek west of Fredericktown, Madison 

County, downstream to the mouth of Big 

Creek northwest of Silva, Wayne 

County, and includes the river channel 

up to the ordinary high water mark. 

Riparian lands that border the unit 

include approximately 36.7 river mi 

(59.1 km; 74 percent) in private 

ownership and 12.6 river mi (20.2 km; 

26 percent) in public (Federal or State) 

ownership. Approximately 2.4 river mi 

of the public ownership in this unit are 

State lands associated with MDC’s 

Coldwater Conservation Area, Mill 

Stream Gardens, and Roselle Access. 

Ten miles are Federal land associated 

with the USFS’s Mark Twain National 

Forest. General land use within the 

adjacent riparian areas of this unit is 

predominantly forest and pasture with 

isolated occurrences of developed areas. 

Unit WF 5 is occupied by the species 

and contains one or more of the 

physical or biological features essential 

to the species’ conservation. There is 

overlap of 49.3 river mi (79.3 km) of this 

unit with designated critical habitat for 

rabbitsfoot (see 50 CFR 17.95(f) and 80 

FR 24692, April 30, 2015). 

Threats identified within the unit 

include degradation of habitat and water 

quality from impoundments and point 

and nonpoint source water pollution, 

including siltation and pollution 

associated with development, unpaved 

roads, and wastewater treatment plants. 

Special management considerations or 

protection measures to reduce or 

alleviate the threats may include 

reducing water quality degradation and 

habitat loss associated with agriculture, 

development, and wastewater treatment 


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plants (see Special Management 

Considerations or Protection, above). 

WF 6: South Fork Spring River 

Unit WF 6 consists of 13.4 river mi 

(21.6 km) of South Fork Spring River in 

Fulton County, Arkansas, from the 

mouth of Camp Creek east of Salem, 

Fulton County, extending downstream 

to the Arkansas Highway 289 crossing 

northwest of Cherokee Village, Fulton 

and Sharp Counties, and includes the 

river channel up to the ordinary high 

water mark. Approximately 100 percent 

of the riparian lands that border the unit 

are in private ownership. General land 

use within the adjacent riparian areas of 

this unit is predominantly forest, 

agriculture, and pasture with isolated 

occurrences of developed areas. Unit 

WF 6 is occupied by the species and 

contains one or more of the physical or 

biological features essential to the 

species’ conservation. There is no 

overlap with any designated critical 

habitat for other listed species. 

Threats identified within the unit 

include degradation of habitat and water 

quality from point and nonpoint source 

water pollution, including siltation and 

pollution associated with agriculture, 

development, unpaved roads, and 

wastewater treatment plants. Special 

management considerations or 

protection measures to reduce or 

alleviate the threats may include 

reducing water quality degradation and 

habitat loss associated with agriculture, 

development, and wastewater treatment 

plants (see Special Management 

Considerations or Protection, above). 

WF 7: Spring River (AR) 

Unit WF 7 consists of 14.2 river mi 

(22.9 km) of Spring River in Lawrence 

and Randolph Counties, Arkansas, from 

the mouth of Wells Creek at Ravenden, 

extending downstream to the mouth of 

Stennitt Creek southeast of Imboden, 

Lawrence County, and includes the 

river channel up to the ordinary high 

water mark. Approximately 100 percent 

of the riparian lands that border the unit 

are in private ownership. General land 

use within the adjacent riparian areas of 

this unit includes forest, agriculture, 

pasture, and the towns of Imboden and 

Ravenden. Unit WF 7 is occupied by the 

species and contains one or more of the 

physical or biological features essential 

to the species’ conservation. There is 

overlap of 14.2 river mi (22.9 km) of this 

unit with designated critical habitat for 

rabbitsfoot (see 50 CFR 17.95(f) and 80 

FR 24692, April 30, 2015). 

Threats identified within the unit 

include degradation of habitat and water 

quality from point and nonpoint source 

water pollution, including siltation and 

pollution associated with agriculture, 

development, unpaved roads, and 

wastewater treatment plants. Special 

management considerations or 

protection measures to reduce or 

alleviate the threats may include 

reducing water quality degradation and 

habitat loss associated with agriculture, 

development, and wastewater treatment 

plants (see Special Management 

Considerations or Protection, above). 

WF 8: Spring River (MO/KS) 

Unit WF 8 consists of 15 river mi 

(24.1 km) of Spring River in Jasper 

County, Missouri, and Cherokee County, 

Kansas, from the mouth of North Fork 

Spring River east of Asbury, Jasper 

County, Missouri, extending 

downstream through Cherokee County, 

Kansas, to the mouth of Center Creek 

west of Carl Junction, Jasper County, 

Missouri, and includes the river channel 

up to the ordinary high water mark. 

Riparian lands that border the unit 

include approximately 14.0 river mi 

(22.5 km; 94 percent) in private 

ownership and 1.0 river mi (1.6 km; 6 

percent) in public (State) ownership. 

The public ownership of this unit is 

State land associated with the Kansas 

Department of Wildlife, Parks and 

Tourism’s Spring River Wildlife Area. 

General land use within the adjacent 

riparian areas of this unit is 

predominantly forest, agriculture, 

pasture, and State-managed lands with 

isolated occurrences of developed areas. 

Unit WF 8 is occupied by the species 

and contains one or more of the 

physical or biological features essential 

to the species’ conservation. There is 

overlap of 15 river mi (24.1 km) of this 

unit with designated critical habitat for 

Neosho mucket and rabbitsfoot (see 50 

CFR 17.95(f) and 80 FR 24692, April 30, 

2015). 

Threats identified within the unit 

include degradation of habitat and water 

quality from point and nonpoint source 

water pollution, including siltation and 

pollution associated with agriculture, 

development, unpaved roads, 

wastewater treatment plants, and 

historical heavy metal mining. Special 

management considerations or 

protection measures to reduce or 

alleviate the threats may include 

reducing water quality degradation and 

habitat loss associated with agriculture, 

development, wastewater treatment 

plants, and heavy metal contamination 

(see Special Management 

Considerations or Protection, above). 

WF 9: Verdigris River 

Unit WF 9 consists of 12.4 river mi 

(20 km) of Verdigris River in 

Montgomery and Wilson Counties, 

Kansas, from the mouth of Fall River 

south of Neodesha, Wilson County, 

extending downstream to the mouth of 

Choteau Creek northeast of 

Independence, Montgomery County, 

and includes the river channel up to the 

ordinary high water mark. 

Approximately 100 percent of the 

riparian lands that border the unit are in 

private ownership. General land use 

within the adjacent riparian areas of this 

unit is predominantly forest and 

agriculture with isolated occurrences of 

developed areas. Unit WF 9 is occupied 

by the species and contains one or more 

of the physical or biological features 

essential to the species’ conservation. 

There is overlap of 12.4 river mi (20 km) 

of this unit with designated critical 

habitat for Neosho mucket (see 50 CFR 

17.95(f) and 80 FR 24692, April 30, 

2015). 

Threats identified within the unit 

include degradation of habitat and water 

quality from point and nonpoint source 

water pollution, including siltation and 

pollution associated with agriculture, 

development, unpaved roads, and 

wastewater treatment plants. Special 

management considerations or 

protection measures to reduce or 

alleviate the threats may include 

reducing water quality degradation and 

habitat loss associated with agriculture, 

development, and wastewater treatment 

plants (see Special Management 

Considerations or Protection, above). 

OF 1: Little Missouri River 

Unit OF 1 consists of 22.9 river mi 

(36.9 km) of Little Missouri River in 

Clark, Nevada, and Ouachita Counties, 

Arkansas, from the mouth of Garland 

Creek northeast of Prescott, Nevada 

County, downstream to the mouth of 

Horse Branch north of Red Hill, 

Ouachita County, and includes the river 

channel up to the ordinary high water 

mark. Approximately 100 percent of the 

riparian lands that border the unit are in 

private ownership. General land use 

within the adjacent riparian areas of this 

unit includes forest and agriculture. 

Unit OF 1 is occupied by the species 

and contains one or more of the 

physical or biological features essential 

to the species’ conservation. There is no 

overlap with any designated critical 

habitat for other listed species. 

Threats identified within the unit 

include dams, impoundments, and 

point and nonpoint source water 

pollution, including siltation and 

pollution associated with a variety of 

land uses. Special management 

considerations or protection measures to 

reduce or alleviate the threats may 

include reducing water quality 

degradation and habitat loss and 


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fragmentation (see Special Management 

Considerations or Protection, above). 

OF 2: Ouachita Headwaters 

Unit OF 2 consists of 32.7 river mi 

(52.6 km) of Ouachita River in 

Montgomery and Polk Counties, 

Arkansas, from the County Road 67 

crossing south of Cherry Hill, Polk 

County, downstream to the U.S. Route 

270 crossing southeast of Pencil Bluff, 

Montgomery County, and includes the 

river channel up to the ordinary high 

water mark. Riparian lands that border 

the unit include approximately 29.9 

river mi (48.1 km; 91 percent) in private 

ownership and 2.8 river mi (4.5 km; 9 

percent) in public (Federal) ownership. 

The public ownership in this unit is 

Federal land associated with USFS’s 

Ouachita National Forest. General land 

use within the adjacent riparian areas of 

this unit includes forest and agriculture. 

Unit OF 2 is occupied by the species 

and contains one or more of the 

physical or biological features essential 

to the species’ conservation. There is no 

overlap with any designated critical 

habitat for other listed species. 

Threats identified within the unit 

include impoundments and point and 

nonpoint source water pollution, 

including siltation and pollution 

associated with a variety of land uses. 

Special management considerations or 

protection measures to reduce or 

alleviate the threats may include 

reducing water quality degradation and 

habitat loss and fragmentation (see 

Special Management Considerations or 

Protection, above). 

OF 3: Ouachita River 

Unit OF 3 consists of 53.5 river mi 

(86.1 km) of Ouachita River in Clark, 

Dallas, and Ouachita Counties, 

Arkansas, from the mouth of L’Eau Frais 

Creek southeast of Arkadelphia, Clark 

County, downstream to the mouth of 

Ecore Fabre Bayou north of Camden, 

Ouachita County, and includes the river 

channel up to the ordinary high water 

mark. Approximately 100 percent of the 

riparian lands that border the unit are in 

private ownership. There is a Wetlands 

Reserve Program easement within the 

unit. General land use within the 

adjacent riparian areas of this unit 

includes forest, agriculture, and pasture. 

Unit OF 3 is occupied by the species 

and contains one or more of the 

physical or biological features essential 

to the species’ conservation. There is 

overlap of 22.8 river mi (36.7 km) of this 

unit with designated critical habitat for 

rabbitsfoot (see 50 CFR 17.95(f) and 80 

FR 24692, April 30, 2015). 

Threats identified within the unit 

include dams, impoundments, and 

point and nonpoint source water 

pollution, including siltation and 

pollution associated with a variety of 

land uses. Special management 

considerations or protection measures to 

reduce or alleviate the threats may 

include reducing water quality 

degradation and habitat loss and 

fragmentation (see Special Management 

Considerations or Protection, above). 

OF 4: Saline River 

Unit OF 4 consists of 185.3 river mi 

(298.2 km) of Saline River in Ashley, 

Bradley, Cleveland, Dallas, Drew, Grant, 

and Saline Counties, Arkansas, from the 

mouth of North Fork Saline River north 

of Benton, Saline County, downstream 

to the mouth of Mill Creek north of 

Stillions, Ashley County, and includes 

the river channel up to the ordinary 

high water mark. Approximately 100 

percent of the riparian lands that border 

the unit are in private ownership and 

less than 1 percent is in public 

ownership. The public ownership in 

this unit is State-owned land associated 

with Jenkins Ferry State Park. General 

land use within the adjacent riparian 

areas of this unit includes forest, 

agriculture, pasture, the town of Tull, 

and the city of Benton. Unit OF 4 is 

occupied by the species and contains 

one or more of the physical or biological 

features essential to the species’ 

conservation. There is overlap of 185.3 

river mi (298.2 km) of this unit with 

designated critical habitat for the 

rabbitsfoot (see 50 CFR 17.95(f) and 80 

FR 24692, April 30, 2015). 

Threats identified within the unit 

include dams, impoundments, mining, 

development, and point and nonpoint 

source water pollution, including 

siltation and pollution associated with 

development in the headwaters and a 

variety of other land uses. Special 

management considerations or 

protection measures to reduce or 

alleviate the threats may include 

reducing water quality degradation and 

habitat loss and fragmentation (see 

Special Management Considerations or 

Protection, above). 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7(a)(2) of the Act requires 

Federal agencies, including the Service, 

to ensure that any action they fund, 

authorize, or carry out is not likely to 

jeopardize the continued existence of 

any endangered species or threatened 

species or result in the destruction or 

adverse modification of designated 

critical habitat of such species. In 

addition, section 7(a)(4) of the Act 

requires Federal agencies to confer with 

the Service on any agency action that is 

likely to jeopardize the continued 

existence of any species proposed to be 

listed under the Act or result in the 

destruction or adverse modification of 

proposed critical habitat. 

We published a final rule revising the 

definition of destruction or adverse 

modification on August 27, 2019 (84 FR 

44976). Destruction or adverse 

modification means a direct or indirect 

alteration that appreciably diminishes 

the value of critical habitat as a whole 

for the conservation of a listed species. 

If a Federal action may affect a listed 

species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. Examples of actions that are 

subject to the section 7 consultation 

process are actions on State, Tribal, 

local, or private lands that require a 

Federal permit (such as a permit from 

the U.S. Army Corps of Engineers under 

section 404 of the Clean Water Act (33 

U.S.C. 1251 et seq.) or a permit from the 

Service under section 10 of the Act) or 

that involve some other Federal action 

(such as funding from the Federal 

Highway Administration, Federal 

Aviation Administration, or the Federal 

Emergency Management Agency). 

Federal actions not affecting listed 

species or critical habitat—and actions 

on State, Tribal, local, or private lands 

that are not federally funded, 

authorized, or carried out by a Federal 

agency—do not require section 7 

consultation. 

Compliance with the requirements of 

section 7(a)(2) is documented through 

our issuance of: 

(1) A concurrence letter for Federal 

actions that may affect, but are not 

likely to adversely affect, listed species 

or critical habitat; or 

(2) A biological opinion for Federal 

actions that may affect, and are likely to 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

jeopardize the continued existence of a 

listed species and/or destroy or 

adversely modify critical habitat, we 

provide reasonable and prudent 

alternatives to the project, if any are 

identifiable, that would avoid the 

likelihood of jeopardy and/or 

destruction or adverse modification of 

critical habitat. We define ‘‘reasonable 

and prudent alternatives’’ (at 50 CFR 

402.02) as alternative actions identified 

during consultation that: 

(1) Can be implemented in a manner 

consistent with the intended purpose of 

the action, 


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(2) Can be implemented consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, 

(3) Are economically and 

technologically feasible, and 

(4) Would, in the Service Director’s 

opinion, avoid the likelihood of 

jeopardizing the continued existence of 

the listed species and/or avoid the 

likelihood of destroying or adversely 

modifying critical habitat. 

Reasonable and prudent alternatives 

can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 set forth 

requirements for Federal agencies to 

reinitiate formal consultation on 

previously reviewed actions. These 

requirements apply when the Federal 

agency has retained discretionary 

involvement or control over the action 

(or the agency’s discretionary 

involvement or control is authorized by 

law) and, subsequent to the previous 

consultation: (1) If the amount or extent 

of taking specified in the incidental take 

statement is exceeded; (2) if new 

information reveals effects of the action 

that may affect listed species or critical 

habitat in a manner or to an extent not 

previously considered; (3) if the 

identified action is subsequently 

modified in a manner that causes an 

effect to the listed species or critical 

habitat that was not considered in the 

biological opinion; or (4) if a new 

species is listed or critical habitat 

designated that may be affected by the 

identified action. In such situations, 

Federal agencies sometimes may need to 

request reinitiation of consultation with 

us, but the regulations also specify some 

exceptions to the requirement to 

reinitiate consultation on specific land 

management plans after subsequently 

listing a new species or designating new 

critical habitat. See the regulations for a 

description of those exceptions. 

Application of the ‘‘Destruction or 

Adverse Modification’’ Standard 

The key factor related to the 

destruction or adverse modification 

determination is whether 

implementation of the proposed Federal 

action directly or indirectly alters the 

designated critical habitat in a way that 

appreciably diminishes the value of the 

critical habitat as a whole for the 

conservation of the listed species. As 

discussed above, the role of critical 

habitat is to support physical or 

biological features essential to the 

conservation of a listed species and 

provide for the conservation of the 

species. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe, in any 

proposed or final regulation that 

designates critical habitat, activities 

involving a Federal action that may 

violate section 7(a)(2) of the Act by 

destroying or adversely modifying such 

habitat, or that may be affected by such 

designation. 

Activities that the Service may, 

during a consultation under section 

7(a)(2) of the Act, consider likely to 

destroy or adversely modify critical 

habitat include, but are not limited to, 

actions that would: (1) Alter the 

geomorphology of the species’ stream 

and river habitats (for example, instream 

excavation or dredging, impoundment, 

channelization, sand and gravel mining, 

clearing riparian vegetation, and 

discharge of fill materials); (2) 

significantly alter the existing flow 

regime where these species occur (for 

example, impoundment, urban 

development, water diversion, water 

withdrawal, water draw-down, and 

hydropower generation); (3) 

significantly alter water chemistry or 

water quality (for example, hydropower 

discharges, or the release of chemicals, 

biological pollutants, or heated effluents 

into surface water or connected 

groundwater at a point source or by 

dispersed release (nonpoint source)); 

and (4) significantly alter stream bed 

material composition and quality by 

increasing sediment deposition or 

filamentous algal growth (for example, 

construction projects, gravel and sand 

mining, oil and gas development, coal 

mining, livestock grazing, irresponsible 

logging practices, and other watershed 

and floodplain disturbances that release 

sediments or nutrients into the water). 

Exemptions 

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

Section 4(a)(3)(B)(i) of the Act (16 

U.S.C. 1533(a)(3)(B)(i)) provides that the 

Secretary shall not designate as critical 

habitat any lands or other geographical 

areas owned or controlled by the 

Department of Defense (DoD), or 

designated for its use, that are subject to 

an integrated natural resources 

management plan (INRMP) prepared 

under section 101 of the Sikes Act (16 

U.S.C. 670a), if the Secretary determines 

in writing that such plan provides a 

benefit to the species for which critical 

habitat is proposed for designation. No 

DoD lands with a completed INRMP are 

within the proposed critical habitat 

designation. 

Consideration of Impacts Under Section 

4(b)(2) of the Act 

Section 4(b)(2) of the Act states that 

the Secretary shall designate and make 

revisions to critical habitat on the basis 

of the best available scientific data after 

taking into consideration the economic 

impact, national security impact, and 

any other relevant impact of specifying 

any particular area as critical habitat. 

The Secretary may exclude an area from 

designated critical habitat based on 

economic impacts, impacts on national 

security, or any other relevant impacts. 

In considering whether to exclude a 

particular area from the designation, we 

identify the benefits of including the 

area in the designation, identify the 

benefits of excluding the area from the 

designation, and evaluate whether the 

benefits of exclusion outweigh the 

benefits of inclusion. If the analysis 

indicates that the benefits of exclusion 

outweigh the benefits of inclusion, the 

Secretary may exercise discretion to 

exclude the area only if such exclusion 

would not result in the extinction of the 

species. In making the determination to 

exclude a particular area, the statute on 

its face, as well as the legislative history, 

are clear that the Secretary has broad 

discretion regarding which factor(s) to 

use and how much weight to give to any 

factor. 

We describe below the process that 

we undertook for taking into 

consideration each category of impacts 

and our analyses of the relevant 

impacts. 

Consideration of Economic Impacts 

Section 4(b)(2) of the Act and its 

implementing regulations require that 

we consider the economic impact that 

may result from a designation of critical 

habitat. To assess the probable 

economic impacts of a designation, we 

must first evaluate specific land uses or 

activities and projects that may occur in 

the area of the critical habitat. We then 

must evaluate the impacts that a specific 

critical habitat designation may have on 

restricting or modifying specific land 

uses or activities for the benefit of the 

species and its habitat within the areas 

proposed. We then identify which 

conservation efforts may be the result of 

the species being listed under the Act 

versus those attributed solely to the 

designation of critical habitat for this 

particular species. The probable 

economic impact of a proposed critical 

habitat designation is analyzed by 

comparing scenarios both ‘‘with critical 

habitat’’ and ‘‘without critical habitat.’’ 

The ‘‘without critical habitat’’ 

scenario represents the baseline for the 

analysis, which includes the existing 


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regulatory and socio-economic burden 

imposed on landowners, managers, or 

other resource users potentially affected 

by the designation of critical habitat (for 

example, under the Federal listing as 

well as other Federal, State, and local 

regulations). Therefore, the baseline 

represents the costs of all efforts 

attributable to the listing of the species 

under the Act (that is, conservation of 

the species and its habitat incurred 

regardless of whether critical habitat is 

designated). The ‘‘with critical habitat’’ 

scenario describes the incremental 

impacts associated specifically with the 

designation of critical habitat for the 

species. The incremental conservation 

efforts and associated impacts would 

not be expected without the designation 

of critical habitat for the species. In 

other words, the incremental costs are 

those attributable solely to the 

designation of critical habitat, above and 

beyond the baseline costs. These are the 

costs we use when evaluating the 

benefits of inclusion and exclusion of 

particular areas from the final 

designation of critical habitat should we 

choose to conduct a discretionary 

4(b)(2) exclusion analysis. 

For this particular designation, we 

developed an incremental effects 

memorandum (IEM) considering the 

probable incremental economic impacts 

that may result from this proposed 

designation of critical habitat. The 

information contained in our IEM was 

then used to develop a screening 

analysis of the probable effects of the 

designation of critical habitat for the 

western fanshell and ‘‘Ouachita’’ 

fanshell (Industrial Economics, Inc. 

2021, entire). We began by conducting 

a screening analysis of the proposed 

designation of critical habitat in order to 

focus our analysis on the key factors 

that are likely to result in incremental 

economic impacts. The purpose of the 

screening analysis is to filter out 

particular geographic areas of critical 

habitat that are already subject to such 

protections and are, therefore, unlikely 

to incur incremental economic impacts. 

In particular, the screening analysis 

considers baseline costs (that is, absent 

critical habitat designation) and 

includes any probable incremental 

economic impacts where land and water 

use may already be subject to 

conservation plans, land management 

plans, best management practices, or 

regulations that protect the habitat area 

as a result of the Federal listing status 

of the species. Ultimately, the screening 

analysis allows us to focus our analysis 

on evaluating the specific areas or 

sectors that may incur probable 

incremental economic impacts as a 

result of the designation. If the proposed 

critical habitat designation contains any 

unoccupied units, the screening 

analysis assesses whether those units 

require additional management or 

conservation efforts that may incur 

incremental economic impacts. This 

screening analysis combined with the 

information contained in our IEM 

constitute what we consider to be our 

draft economic analysis (DEA) of the 

proposed critical habitat designations 

for the western fanshell and ‘‘Ouachita’’ 

fanshell; our DEA is summarized in the 

narrative below. 

Executive Orders (E.O.s) 12866 and 

13563 direct Federal agencies to assess 

the costs and benefits of available 

regulatory alternatives in quantitative 

(to the extent feasible) and qualitative 

terms. Consistent with the E.O. 

regulatory analysis requirements, our 

effects analysis under the Act may take 

into consideration impacts to both 

directly and indirectly affected entities, 

where practicable and reasonable. If 

sufficient data are available, we assess 

to the extent practicable the probable 

impacts to both directly and indirectly 

affected entities. As part of our 

screening analysis, we considered the 

types of economic activities that are 

likely to occur within the areas likely 

affected by the critical habitat 

designation. In our evaluation of the 

probable incremental economic impacts 

that may result from the proposed 

designation of critical habitat for the 

western fanshell and ‘‘Ouachita’’ 

fanshell, first we identified, in the IEM 

dated February 1, 2021, probable 

incremental economic impacts 

associated with the following categories 

of activities: Instream excavation or 

dredging; impoundments; 

channelization; sand and gravel mining; 

clearing riparian vegetation; discharge 

of fill materials; urban development; 

water diversion; water withdrawal; 

water draw-down; hydropower 

generation and discharges; release of 

chemicals, biological pollutants, or 

heated effluents into surface water or 

connected ground water at a point 

source or by dispersed release 

(nonpoint); construction projects; oil 

and gas development; coal mining; 

livestock grazing; timber harvest; and 

other watershed or floodplain 

disturbances that release sediments or 

nutrients into the water. We considered 

each industry or category individually. 

Additionally, we considered whether 

their activities have any Federal 

involvement. Critical habitat 

designation generally will not affect 

activities that do not have any Federal 

involvement; under the Act, designation 

of critical habitat affects only activities 

conducted, funded, permitted, or 

authorized by Federal agencies. If we 

list these species, in areas where the 

western fanshell or ‘‘Ouachita’’ fanshell 

are present, Federal agencies would be 

required to consult with the Service 

under section 7 of the Act on activities 

they fund, permit, or implement that 

may affect the species. If, when we list 

these species, we also finalize this 

proposed critical habitat designation, 

consultations would include an 

evaluation of measures to avoid the 

destruction or adverse modification of 

critical habitat. 

In our IEM, we attempted to clarify 

the distinction between the effects that 

would result from the species being 

listed and those attributable to the 

critical habitat designation (that is, 

difference between the jeopardy and 

adverse modification standards) for the 

western fanshell’s and ‘‘Ouachita’’ 

fanshell’s critical habitat. Because the 

designation of critical habitat for 

western fanshell and ‘‘Ouachita’’ 

fanshell is proposed concurrently with 

the listing, it has been our experience 

that it is more difficult to discern which 

conservation efforts are attributable to 

the species being listed and those which 

would result solely from the designation 

of critical habitat. However, the 

following specific circumstances in this 

case help to inform our evaluation: (1) 

The essential physical or biological 

features identified for critical habitat are 

the same features essential for the life 

requisites of the species, and (2) any 

actions that would result in sufficient 

harm or harassment to constitute 

jeopardy to the western fanshell or 

‘‘Ouachita’’ fanshell would also likely 

adversely affect the essential physical or 

biological features of critical habitat. 

The IEM outlines our rationale 

concerning this limited distinction 

between baseline conservation efforts 

and incremental impacts of the 

designation of critical habitat for this 

species. This evaluation of the 

incremental effects has been used as the 

basis to evaluate the probable 

incremental economic impacts of this 

proposed designation of critical habitat. 

The proposed critical habitat 

designation for the western fanshell 

includes nine units, all of which are 

occupied by the species. Ownership of 

riparian lands adjacent to the proposed 

units includes 318.2 river mi (512.1 km; 

88 percent) in private ownership and 

41.7 river mi (67.1 km; 12 percent) in 

public (Federal or State) ownership. The 

proposed critical habitat designation for 

the ‘‘Ouachita’’ fanshell includes four 

units, all of which are occupied by the 

species. Ownership of riparian lands 


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adjacent to the proposed units includes 

291.1 river mi (468.5 km; 99 percent) in 

private ownership and 3.3 river mi (5.3 

km; 1 percent) in public (Federal or 

State) ownership. 

Total incremental costs of critical 

habitat designation for the western 

fanshell and ‘‘Ouachita’’ fanshell are not 

expected to exceed $79,000 (2021 

dollars) per year. The costs are reflective 

of: (1) All proposed units are considered 

occupied, (2) project modifications 

requested to avoid adverse modification 

are likely to be the same as those 

recommended to avoid jeopardy in 

occupied habitat for these species, and 

(3) the proposed designations receive 

baseline protection from the presence of 

critical habitat for co-occurring listed 

mussel species with similar habitat 

needs in 60 percent of the proposed 

western fanshell critical habitat and in 

71 percent of the proposed ‘‘Ouachita’’ 

fanshell critical habitat. Because 

consultation would be required as a 

result of the listing of the western 

fanshell and ‘‘Ouachita’’ fanshell and is 

already required in some of these areas 

as a result of the presence of other listed 

species and critical habitats, the 

economic costs of the critical habitat 

designation would likely be primarily 

limited to additional administrative 

efforts to consider adverse modification 

for these two species in section 7 

consultations. 

Based on the consultation history 

regarding historical projects and 

activities overlapping the proposed 

critical habitat area for the western 

fanshell, the number of future 

consultations, including technical 

assistance efforts, is likely to be no more 

than 23 per year across all nine units. 

Based on the consultation history 

regarding historical projects and 

activities overlapping the proposed 

critical habitat area for the ‘‘Ouachita’’ 

fanshell, the number of future 

consultations, including technical 

assistance efforts, is likely to be no more 

than 15 per year across all four units. 

Overall, transportation and utilities 

activities are expected to result in the 

largest portion of consultations for both 

the western and ‘‘Ouachita’’ fanshells 

and, therefore, incur the highest costs. 

The geographic distribution of future 

section 7 consultations and associated 

costs are likely to be most heavily 

concentrated in western fanshell 

proposed Unit 2 and ‘‘Ouachita’’ 

fanshell proposed Unit 4. However, 

even assuming consultation activity 

increases substantially, incremental 

administrative costs are still likely to 

remain well under $100 million per 

year. 

We are soliciting data and comments 

from the public on the DEA discussed 

above, as well as on all aspects of this 

proposed rule and our required 

determinations. During the development 

of a final designation, we will consider 

the information presented in the DEA 

and any additional information on 

economic impacts we receive during the 

public comment period to determine 

whether any specific areas should be 

excluded from the final critical habitat 

designation under authority of section 

4(b)(2) and our implementing 

regulations at 50 CFR 17.90. If we 

receive credible information regarding 

the existence of a meaningful economic 

or other relevant impact supporting a 

benefit of exclusion, we will conduct an 

exclusion analysis for the relevant area 

or areas. We may also exercise the 

discretion to evaluate any other 

particular areas for possible exclusion. 

Furthermore, when we conduct an 

exclusion analysis based on impacts 

identified by experts in, or sources with 

firsthand knowledge about, impacts that 

are outside the scope of the Service’s 

expertise, we will give weight to those 

impacts consistent with the expert or 

firsthand information unless we have 

rebutting information. We may exclude 

an area from critical habitat if we 

determine that the benefits of excluding 

the area outweigh the benefits of 

including the area, provided the 

exclusion will not result in the 

extinction of either species. 

Consideration of National Security 

Impacts 

Section 4(a)(3)(B)(i) of the Act may 

not cover all DoD lands or areas that 

pose potential national-security 

concerns (for example, a DoD 

installation that is in the process of 

revising its INRMP for a newly listed 

species or a species previously not 

covered). If a particular area is not 

covered under section 4(a)(3)(B)(i), then 

national-security or homeland-security 

concerns are not a factor in the process 

of determining what areas meet the 

definition of ‘‘critical habitat.’’ 

However, the Service must still consider 

impacts on national security, including 

homeland security, on those lands or 

areas not covered by section 

4(a)(3)(B)(i), because section 4(b)(2) 

requires the Service to consider those 

impacts whenever it designates critical 

habitat. Accordingly, if DoD, 

Department of Homeland Security 

(DHS), or another Federal agency has 

requested exclusion based on an 

assertion of national-security or 

homeland-security concerns, or we have 

otherwise identified national-security or 

homeland-security impacts from 

designating particular areas as critical 

habitat, we generally have reason to 

consider excluding those areas. 

However, we cannot automatically 

exclude requested areas. When DoD, 

DHS, or another Federal agency requests 

exclusion from critical habitat on the 

basis of national-security or homelandsecurity impacts, we must conduct an 

exclusion analysis if the Federal 

requester provides credible information, 

including a reasonably specific 

justification of an incremental impact 

on national security that would result 

from the designation of that specific 

area as critical habitat. That justification 

could include demonstration of 

probable impacts, such as impacts to 

ongoing border-security patrols and 

surveillance activities, or a delay in 

training or facility construction, as a 

result of compliance with section 7(a)(2) 

of the Act. If the agency requesting the 

exclusion does not provide us with a 

reasonably specific justification, we will 

contact the agency to recommend that it 

provide a specific justification or 

clarification of its concerns relative to 

the probable incremental impact that 

could result from the designation. If we 

conduct an exclusion analysis because 

the agency provides a reasonably 

specific justification or because we 

decide to exercise the discretion to 

conduct an exclusion analysis, we will 

defer to the expert judgment of DoD, 

DHS, or another Federal agency as to: 

(1) Whether activities on its lands or 

waters, or its activities on other lands or 

waters, have national-security or 

homeland-security implications; (2) the 

importance of those implications; and 

(3) the degree to which the cited 

implications would be adversely 

affected in the absence of an exclusion. 

In that circumstance, in conducting a 

discretionary section 4(b)(2) exclusion 

analysis, we will give great weight to 

national-security and homeland-security 

concerns in analyzing the benefits of 

exclusion. 

Under section 4(b)(2) of the Act, we 

also consider whether a nationalsecurity or homeland-security impact 

might exist on lands not owned or 

managed by DoD or DHS. In preparing 

this proposal, we have determined that 

the lands within the proposed 

designation of critical habitat for 

western fanshell and ‘‘Ouachita’’ 

fanshell are not owned or managed by 

the DoD or DHS. Therefore, we 

anticipate no impact on national 

security. However, if through the public 

comment period we receive credible 

information regarding impacts on 

national security or homeland security 

from designating particular areas as 

critical habitat, then as part of 


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developing the final designation of 

critical habitat, we will conduct a 

discretionary exclusion analysis to 

determine whether to exclude those 

areas under authority of section 4(b)(2) 

and our implementing regulations at 50 

CFR 17.90. 

Consideration of Other Relevant 

Impacts 

Under section 4(b)(2) of the Act, we 

consider any other relevant impacts, in 

addition to economic impacts and 

impacts on national security discussed 

above. Other relevant impacts may 

include, but are not limited to, impacts 

to Tribes, States, local governments, 

public health and safety, community 

interests, the environment (such as 

increased risk of wildfire or pest and 

invasive species management), Federal 

lands, and conservation plans, 

agreements, or partnerships. To identify 

other relevant impacts that may affect 

the exclusion analysis, we consider a 

number of factors, including whether 

there are permitted conservation plans 

covering the species in the area—such 

as HCPs, safe harbor agreements (SHAs), 

or candidate conservation agreements 

with assurances (CCAAs)—or whether 

there are non-permitted conservation 

agreements and partnerships that may 

be impaired by designation of, or 

exclusion from, critical habitat. In 

addition, we look at whether Tribal 

conservation plans or partnerships, 

Tribal resources, or government-togovernment relationships of the United 

States with Tribal entities may be 

affected by the designation. We also 

consider any State, local, public-health, 

community-interest, environmental, or 

social impacts that might occur because 

of the designation. 

We have not identified any areas to 

consider for exclusion from critical 

habitat based on other relevant impacts. 

However, during the development of a 

final designation, we will consider all 

information currently available or 

received during the public comment 

period. If we receive credible 

information regarding the existence of a 

meaningful impact supporting a benefit 

of excluding any areas, we will 

undertake an exclusion analysis and 

determine whether those areas should 

be excluded from the final critical 

habitat designation under the authority 

of section 4(b)(2) and our implementing 

regulations at 50 CFR 17.90. We may 

also exercise the discretion to undertake 

exclusion analyses for other areas as 

well, and we will describe all of our 

exclusion analyses as part of a final 

critical habitat determination. 

Summary of Exclusions Considered 

Under 4(b)(2) of the Act 

At this time, we are not considering 

any exclusions from the proposed 

designation based on economic impacts, 

national security impacts, or other 

relevant impacts—such as partnerships, 

management, or protection afforded by 

cooperative management efforts—under 

section 4(b)(2) of the Act. In preparing 

this proposal, we have determined that 

no HCPs or other management plans for 

western fanshell or ‘‘Ouachita’’ fanshell 

currently exist, and the proposed 

designation does not include any Tribal 

lands or trust resources. Therefore, we 

anticipate no impact on Tribal lands, 

partnerships, or HCPs from this 

proposed critical habitat designation 

and thus, as described above, we are not 

considering excluding any particular 

areas on the basis of the presence of 

conservation agreements or impacts to 

trust resources. 

During the development of a final 

designation, we will consider any 

additional information received through 

the public comment period regarding 

other relevant impacts to determine 

whether any specific areas should be 

excluded from the final critical habitat 

designation under authority of section 

4(b)(2) and our implementing 

regulations at 50 CFR 17.90. 

Required Determinations 

Clarity of the Rule 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: 

(1) Be logically organized; 

(2) Use the active voice to address 

readers directly; 

(3) Use clear language rather than 

jargon; 

(4) Be divided into short sections and 

sentences; and 

(5) Use lists and tables wherever 

possible. 

If you feel that we have not met these 

requirements, send us comments by one 

of the methods listed in ADDRESSES. To 

better help us revise the rule, your 

comments should be as specific as 

possible. For example, you should tell 

us the numbers of the sections or 

paragraphs that are unclearly written, 

which sections or sentences are too 

long, the sections where you feel lists or 

tables would be useful, etc. 

Regulatory Planning and Review 

(Executive Orders 12866 and 13563) 

Executive Order 12866 provides that 

the Office of Information and Regulatory 

Affairs (OIRA) in the Office of 

Management and Budget will review all 

significant rules. OIRA has determined 

that this rule is not significant. 

Executive Order 13563 reaffirms the 

principles of E.O. 12866 while calling 

for improvements in the nation’s 

regulatory system to promote 

predictability, to reduce uncertainty, 

and to use the best, most innovative, 

and least burdensome tools for 

achieving regulatory ends. The 

executive order directs agencies to 

consider regulatory approaches that 

reduce burdens and maintain flexibility 

and freedom of choice for the public 

where these approaches are relevant, 

feasible, and consistent with regulatory 

objectives. E.O. 13563 emphasizes 

further that regulations must be based 

on the best available science and that 

the rulemaking process must allow for 

public participation and an open 

exchange of ideas. We have developed 

this proposed rule in a manner 

consistent with these requirements. 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(RFA; 5 U.S.C. 601 et seq.), as amended 

by the Small Business Regulatory 

Enforcement Fairness Act of 1996 

(SBREFA; 5 U.S.C. 801 et seq.), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (that is, small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the RFA 

to require Federal agencies to provide a 

certification statement of the factual 

basis for certifying that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

According to the Small Business 

Administration, small entities include 

small organizations such as 

independent nonprofit organizations; 

small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents; and small businesses 

(13 CFR 121.201). Small businesses 

include manufacturing and mining 

concerns with fewer than 500 

employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 


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than $27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

whether potential economic impacts to 

these small entities are significant, we 

considered the types of activities that 

might trigger regulatory impacts under 

this designation as well as types of 

project modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations. 

Under the RFA, as amended, and as 

understood in light of recent court 

decisions, Federal agencies are required 

to evaluate the potential incremental 

impacts of rulemaking on those entities 

directly regulated by the rulemaking 

itself; in other words, the RFA does not 

require agencies to evaluate the 

potential impacts to indirectly regulated 

entities. The regulatory mechanism 

through which critical habitat 

protections are realized is section 7 of 

the Act, which requires Federal 

agencies, in consultation with the 

Service, to ensure that any action 

authorized, funded, or carried out by the 

agency is not likely to destroy or 

adversely modify critical habitat. 

Therefore, under section 7, only Federal 

action agencies are directly subject to 

the specific regulatory requirement 

(avoiding destruction and adverse 

modification) imposed by critical 

habitat designation. Consequently, it is 

our position that only Federal action 

agencies would be directly regulated if 

we adopt the proposed critical habitat 

designations. The RFA does not require 

evaluation of the potential impacts to 

entities not directly regulated. 

Moreover, Federal agencies are not 

small entities. Therefore, because no 

small entities would be directly 

regulated by this rulemaking, the 

Service certifies that, if made final as 

proposed, the proposed critical habitat 

designations will not have a significant 

economic impact on a substantial 

number of small entities. 

In summary, we have considered 

whether the proposed designations 

would result in a significant economic 

impact on a substantial number of small 

entities. For the above reasons and 

based on currently available 

information, we certify that, if made 

final, the proposed critical habitat 

designations would not have a 

significant economic impact on a 

substantial number of small business 

entities. Therefore, an initial regulatory 

flexibility analysis is not required. 

Energy Supply, Distribution, or Use— 

Executive Order 13211 

Executive Order 13211 (Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use) requires agencies 

to prepare Statements of Energy Effects 

when undertaking certain actions. 

Facilities that provide energy supply, 

distribution, or use occur within some 

units of the proposed critical habitat 

designations (for example, dams, 

pipelines) and may potentially be 

affected. We determined that 

consultations, technical assistance, and 

requests for species lists may be 

necessary in some instances. In our 

economic analysis, we did not find that 

this proposed critical habitat 

designation would significantly affect 

energy supplies, distribution, or use. 

Therefore, this action is not a significant 

energy action, and no Statement of 

Energy Effects is required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), we make the following finding: 

(1) This proposed rule would not 

produce a Federal mandate. In general, 

a Federal mandate is a provision in 

legislation, statute, or regulation that 

would impose an enforceable duty upon 

State, local, or Tribal governments, or 

the private sector, and includes both 

‘‘Federal intergovernmental mandates’’ 

and ‘‘Federal private sector mandates.’’ 

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or Tribal 

governments’’ with two exceptions. It 

excludes ‘‘a condition of Federal 

assistance.’’ It also excludes ‘‘a duty 

arising from participation in a voluntary 

Federal program,’’ unless the regulation 

‘‘relates to a then-existing Federal 

program under which $500,000,000 or 

more is provided annually to State, 

local, and Tribal governments under 

entitlement authority,’’ if the provision 

would ‘‘increase the stringency of 

conditions of assistance’’ or ‘‘place caps 

upon, or otherwise decrease, the Federal 

Government’s responsibility to provide 

funding,’’ and the State, local, or Tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; Aid to Families with 

Dependent Children work programs; 

Child Nutrition; Food Stamps; Social 

Services Block Grants; Vocational 

Rehabilitation State Grants; Foster Care, 

Adoption Assistance, and Independent 

Living; Family Support Welfare 

Services; and Child Support 

Enforcement. ‘‘Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except (i) a 

condition of Federal assistance or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’ 

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal Government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action, may be indirectly impacted 

by the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply, nor would critical habitat 

shift the costs of the large entitlement 

programs listed above onto State 

governments. 

(2) We do not believe that this rule 

would significantly or uniquely affect 

small governments because it will not 

produce a Federal mandate of $100 

million or greater in any year, that is, it 

is not a ‘‘significant regulatory action’’ 

under the Unfunded Mandates Reform 

Act. The designation of critical habitat 

imposes no obligations on State or local 

governments and, as such, a Small 

Government Agency Plan is not 

required. 

Takings—Executive Order 12630 

In accordance with E.O. 12630 

(Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights), we have analyzed the 

potential takings implications of 

designating critical habitat for western 

fanshell and ‘‘Ouachita’’ fanshell in a 

takings implications assessment. The 

Act does not authorize the Service to 

regulate private actions on private lands 

or confiscate private property as a result 

of critical habitat designation. 

Designation of critical habitat does not 

affect land ownership, or establish any 

closures, or restrictions on use of or 

access to the designated areas. 

Furthermore, the designation of critical 

habitat does not affect landowner 

actions that do not require Federal 


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12366 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 

funding or permits, nor does it preclude 

development of habitat conservation 

programs or issuance of incidental take 

permits to permit actions that do require 

Federal funding or permits to go 

forward. However, Federal agencies are 

prohibited from carrying out, funding, 

or authorizing actions that would 

destroy or adversely modify critical 

habitat. A takings implications 

assessment has been completed for the 

proposed designation of critical habitat 

for western fanshell and ‘‘Ouachita’’ 

fanshell, and it concludes that, if 

adopted, these designations of critical 

habitat would not pose significant 

takings implications for lands within or 

affected by the designations. 

Federalism—Executive Order 13132 

In accordance with E.O. 13132 

(Federalism), this proposed rule does 

not have significant Federalism effects. 

A federalism summary impact statement 

is not required. In keeping with 

Department of the Interior and 

Department of Commerce policy, we 

requested information from, and 

coordinated development of these 

proposed critical habitat designations 

with, appropriate State resource 

agencies. From a federalism perspective, 

the designation of critical habitat 

directly affects only the responsibilities 

of Federal agencies. The Act imposes no 

other duties with respect to critical 

habitat, either for States and local 

governments, or for anyone else. As a 

result, the proposed rule does not have 

substantial direct effects either on the 

States, or on the relationship between 

the national government and the States, 

or on the distribution of powers and 

responsibilities among the various 

levels of government. The proposed 

designations may have some benefit to 

these governments because the areas 

that contain the features essential to the 

conservation of the species are more 

clearly defined, and the physical or 

biological features of the habitat 

necessary for the conservation of the 

species are specifically identified. This 

information does not alter where and 

what federally sponsored activities may 

occur. However, it may assist State and 

local governments in long-range 

planning because they no longer have to 

wait for case-by-case section 7 

consultations to occur. 

Where State and local governments 

require approval or authorization from a 

Federal agency for actions that may 

affect critical habitat, consultation 

under section 7(a)(2) of the Act would 

be required. While non-Federal entities 

that receive Federal funding, assistance, 

or permits, or that otherwise require 

approval or authorization from a Federal 

agency for an action, may be indirectly 

impacted by the designation of critical 

habitat, the legally binding duty to 

avoid destruction or adverse 

modification of critical habitat rests 

squarely on the Federal agency. 

Civil Justice Reform—Executive Order 

12988 

In accordance with Executive Order 

12988 (Civil Justice Reform), the Office 

of the Solicitor has determined that the 

rule would not unduly burden the 

judicial system and that it meets the 

requirements of sections 3(a) and 3(b)(2) 

of the Order. We have proposed 

designating critical habitat in 

accordance with the provisions of the 

Act. To assist the public in 

understanding the habitat needs of the 

species, this proposed rule identifies the 

physical or biological features essential 

to the conservation of the species. The 

proposed areas of designated critical 

habitat are presented on maps, and the 

proposed rule provides several options 

for the interested public to obtain more 

detailed location information, if desired. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain 

information collection requirements, 

and a submission to the Office of 

Management and Budget (OMB) under 

the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.) is not required. 

We may not conduct or sponsor and you 

are not required to respond to a 

collection of information unless it 

displays a currently valid OMB control 

number. 

National Environmental Policy Act (42 

U.S.C. 4321 et seq.) 

It is our position that, outside the 

jurisdiction of the U.S. Court of Appeals 

for the Tenth Circuit, we do not need to 

prepare environmental analyses 

pursuant to the National Environmental 

Policy Act (NEPA; 42 U.S.C. 4321 et 

seq.) in connection with regulations 

adopted pursuant to section 4(a) of the 

Act. We published a notice outlining 

our reasons for this determination in the 

Federal Register on October 25, 1983 

(48 FR 49244). This position was upheld 

by the U.S. Court of Appeals for the 

Ninth Circuit (Douglas County v. 

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

cert. denied 516 U.S. 1042 (1996)). 

However, when the range of the species 

includes States within the Tenth 

Circuit, such as that of the western 

fanshell, under the Tenth Circuit ruling 

in Catron County Board of 

Commissioners v. U.S. Fish and Wildlife 

Service, 75 F.3d 1429 (10th Cir. 1996), 

we undertake a NEPA analysis for 

critical habitat designation. We invite 

the public to comment on the extent to 

which this proposed regulation may 

have a significant impact on the human 

environment, or fall within one of the 

categorical exclusions for actions that 

have no individual or cumulative effect 

on the quality of the human 

environment. We will complete our 

analysis, in compliance with NEPA, 

before finalizing this proposed rule. 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994 

(Government-to-Government Relations 

with Native American Tribal 

Governments; 59 FR 22951), Executive 

Order 13175 (Consultation and 

Coordination with Indian Tribal 

Governments), and the Department of 

the Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. In 

accordance with Secretarial Order 3206 

of June 5, 1997 (American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act), we readily acknowledge 

our responsibilities to work directly 

with Tribes in developing programs for 

healthy ecosystems, to acknowledge that 

Tribal lands are not subject to the same 

controls as Federal public lands, to 

remain sensitive to Indian culture, and 

to make information available to Tribes. 

We have determined that no Tribal 

lands fall within the boundaries of the 

proposed critical habitat for the western 

fanshell and ‘‘Ouachita’’ fanshell, so no 

Tribal lands would be affected by the 

proposed designation. 

References Cited 

A complete list of references cited in 

this rulemaking is available on the 

internet at http://www.regulations.gov 

and upon request from the Missouri 

Ecological Services Field Office for 

western fanshell and the Arkansas 

Ecological Services Field Office for 

‘‘Ouachita’’ fanshell (see FOR FURTHER

INFORMATION CONTACT). 

Authors 

The primary authors of this proposed 

rule are the staff members of the Fish 

and Wildlife Service’s Species 

Assessment Team and the Missouri and 

Arkansas Ecological Services Field 

Offices. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 


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recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

as set forth below: 

PART 17—ENDANGERED AND 

THREATENED WILDLIFE AND PLANTS 

■ 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. Amend § 17.11(h) by adding entries 

for ‘‘Fanshell, ‘Ouachita’’’ and 

‘‘Fanshell, western’’ to the List of 

Endangered and Threatened Wildlife in 

alphabetical order under CLAMS to read 

as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

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

*******

CLAMS 

*******

Fanshell, ‘‘Ouachita’’ ....... Cyprogenia cf. aberti ...... Wherever found .............. T [Federal Register citation when published as a 

final rule]; 50 CFR 17.45(e); 4d 50 CFR 

17.95(f).CH

Fanshell, western ............ Cyprogenia aberti ........... Wherever found .............. T [Federal Register citation when published as a 

final rule]; 50 CFR 17.45(e); 4d 50 CFR 

17.95(f).CH

* * * * * * * 

■ 3. Add § 17.45 to read as follows: 

§ 17.45 Special rules—snails and clams. 

(a)–(d) [Reserved] 

(e) ‘‘Ouachita’’ fanshell (Cyprogenia 

cf. aberti) and western fanshell 

(Cyprogenia aberti). 

(1) Prohibitions. The following 

prohibitions that apply to endangered 

wildlife also apply to the ‘‘Ouachita’’ 

fanshell and western fanshell. Except as 

provided under paragraph (e)(2) of this 

section and §§ 17.4 and 17.5, it is 

unlawful for any person subject to the 

jurisdiction of the United States to 

commit, to attempt to commit, to solicit 

another to commit, or cause to be 

committed, any of the following acts in 

regard to this species: 

(i) Import or export, as set forth at 

§ 17.21(b) for endangered wildlife. 

(ii) Take, as set forth at § 17.21(c)(1) 

for endangered wildlife. 

(iii) Possession and other acts with 

unlawfully taken specimens, as set forth 

at § 17.21(d)(1) for endangered wildlife. 

(iv) Interstate or foreign commerce in 

the course of commercial activity, as set 

forth at § 17.21(e) for endangered 

wildlife. 

(v) Sale or offer for sale, as set forth 

at § 17.21(f) for endangered wildlife. 

(2) Exceptions from prohibitions. In 

regard to this species, you may: 

(i) Conduct activities as authorized by 

a permit under § 17.32. 

(ii) Take, as set forth at § 17.21(c)(2) 

through (c)(4) for endangered wildlife. 

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

(iv) Take incidental to an otherwise 

lawful activity caused by: 

(A) Channel and bank restoration 

projects for creation of natural, 

physically stable, ecologically 

functioning streams, taking into 

consideration connectivity with 

floodplain and groundwater aquifers. 

These projects can be accomplished 

using a variety of methods, but the 

desired outcome is a natural channel 

with low shear stress (force of water 

moving against the channel); bank 

heights that enable reconnection to the 

floodplain; connection of surface and 

groundwater systems, resulting in 

perennial flows in the channel; riffles 

and pools comprised of existing soil, 

rock, and wood instead of large 

imported materials; low compaction of 

soils within adjacent riparian areas; and 

inclusion of riparian wetlands. For bank 

stabilization projects that use 

bioengineering methods to replace 

preexisting, bare, eroding stream banks 

with vegetated, stable stream banks, 

thereby reducing bank erosion and 

instream sedimentation and improving 

habitat conditions for the species, 

stream banks may be stabilized using 

native species live stakes (live, 

vegetative cuttings inserted or tamped 

into the ground in a manner that allows 

the stake to take root and grow), native 

species live fascines (live branch 

cuttings, usually willows, bound 

together into long, cigar-shaped 

bundles), or native species brush 

layering (cuttings or branches of easily 

rooted tree species layered between 

successive lifts of soil fill). Bank 

restoration projects require planting 

appropriate native vegetation, including 

woody species appropriate for the 

region and habitat. These projects will 

not include the sole use of quarried rock 

(rip-rap) or the use of rock baskets or 

gabion structures. To qualify under this 

exception, restoration projects must 

include the following: 

(1) Surveys to determine presence of 

‘‘Ouachita’’ fanshell and western 

fanshell prior to the commencement of 

restoration actions; 

(2) If either mussel is present, 

coordination with the Service’s local 

Ecological Services field office for 

relocation of ‘‘Ouachita’’ fanshell and 

western fanshell mussels to suitable 

habitat outside of the project footprint 

prior to project implementation; and 

(3) If relocation of mussels occurs, 

monitoring of relocated mussels postimplementation of restoration activities. 

(B) Silviculture practices and forest 

management activities that use Stateapproved best management practices to 

protect water and sediment quality and 

stream and riparian habitat. 

(C) Transportation projects that avoid 

or do not include instream disturbance 

in waters occupied by the species. 

(v) Possess and engage in other acts 

with unlawfully taken wildlife, as set 

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

wildlife. 

■ 4. Amend § 17.95(f) by adding entries 

for ‘‘ ‘Ouachita’ Fanshell (Cyprogenia cf. 

aberti)’’ and ‘‘Western Fanshell 

(Cyprogenia aberti)’’ immediately 

following the entry for ‘‘Appalachian 

Elktoe (Alasmidonta raveneliana)’’, to 

read as follows: 


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12368 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 

§ 17.95 Critical habitat—fish and wildlife. 

* * * * * 

(f) Clams and Snails. 

* * * * * 

‘‘Ouachita’’ Fanshell (Cyprogenia cf. 

aberti) 

(1) Critical habitat units are depicted 

for Ashley, Bradley, Clark, Cleveland, 

Dallas, Drew, Grant, Montgomery, 

Nevada, Ouachita, Polk, and Saline 

Counties, Arkansas, on the maps in this 

entry. 

(2) Within these areas, the physical or 

biological features essential to the 

conservation of ‘‘Ouachita’’ fanshell 

consist of the following components: 

(i) Adequate flows, or a hydrologic 

flow regime (magnitude, timing, 

frequency, duration, rate of change, and 

overall seasonality of discharge over 

time), necessary to maintain benthic 

habitats where the species is found and 

to maintain stream connectivity, 

specifically providing for the exchange 

of nutrients and sediment for 

maintenance of the mussel’s and fish 

hosts’ habitat and food availability, 

maintenance of spawning habitat for 

native host fishes, and the ability for 

newly transformed juveniles to settle 

and become established in their 

habitats. Adequate flows ensure 

delivery of oxygen, enable reproduction, 

deliver food to filter-feeding mussels, 

and reduce contaminants and fine 

sediments from interstitial spaces. 

(ii) Suitable substrates and connected 

instream habitats, characterized by 

geomorphically stable stream channels 

and banks (that is, channels that 

maintain lateral dimensions, 

longitudinal profiles, and sinuosity 

patterns over time without an aggrading 

or degrading bed elevation) with 

habitats that support a diversity of 

freshwater mussel and native fish (such 

as stable riffle-run-pool habitats that 

provide flow refuges consisting of siltfree gravel and coarse sand substrates). 

(iii) Water and sediment quality 

necessary to sustain natural 

physiological processes for normal 

behavior, growth, and viability of all life 

stages, including, but not limited to: 

Dissolved oxygen (generally above 3 

parts per million (ppm)) and water 

temperature (generally below 80 degrees 

Fahrenheit (°F) (27 degrees Celsius (°C)). 

Additionally, water and sediment 

should be low in ammonia (generally 

below 1.0 ppm total ammonia-nitrogen) 

and heavy metals, and lack excessive 

total suspended solids and other 

pollutants. 

(iv) The presence and abundance of 

fish hosts necessary for recruitment of 

the ‘‘Ouachita’’ fanshell, including 

logperch (Percina caprodes), 

slenderhead darter (Percina 

phoxocephala), or orangebelly darter 

(Etheostoma radiosum). 

(3) Critical habitat does not include 

manmade structures (such as buildings, 

aqueducts, runways, roads, and other 

paved areas) and the land on which they 

are located existing within the legal 

boundaries on the effective date of the 

rule. 

(4) Data layers defining map units 

were created by overlaying Natural 

Heritage Element Occurrence data and 

U.S. Geological Survey hydrologic data 

for stream reaches using ESRI ArcGIS 

mapping software. Critical habitat unit 

upstream and downstream limits were 

delineated at the nearest road crossing 

or stream confluence of each occupied 

reach. Data layers defining map units 

were created with U.S. Geological 

Survey National Hydrography Dataset 

(NHD) Medium Flowline data. ArcGIS 

was also used to calculate river 

kilometers and river miles from the 

NHD dataset, and it was used to 

determine longitude and latitude 

coordinates in decimal degrees. The 

projection used in mapping and 

calculating distances and locations 

within the units was EPSG:4269– 

NAD83 Geographic. Natural Heritage 

program and State mussel database 

species presence data from Arkansas 

were used to select specific river and 

stream segments for inclusion in the 

critical habitat layer. The maps in this 

entry, as modified by any accompanying 

regulatory text, establish the boundaries 

of the critical habitat designation. The 

coordinates or plot points or both on 

which each map is based are available 

to the public at the Service’s internet 

site at https://www.fws.gov/southeast/, 

at http://www.regulations.gov at Docket 

No. FWS–R3–ES–2021–0061, and at the 

field office responsible for this 

designation. You may obtain field office 

location information by contacting one 

of the Service regional offices, the 

addresses of which are listed at 50 CFR 

2.2. 

(5) Note: Index map follows: 

BILLING CODE 4333–15–P 


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Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 12369 

(6) Unit OF 1: Little Missouri River; 

Clark, Nevada, and Ouachita Counties, 

Arkansas. 

(i) Unit OF 1 consists of 22.9 river 

miles (mi) (36.9 kilometers (km)) of 

Little Missouri River in Clark, Nevada, 

and Ouachita Counties, Arkansas, from 

the mouth of Garland Creek northeast of 

Prescott, Nevada County, downstream to 

the mouth of Horse Branch north of Red 

Hill, Ouachita County, and includes the 

river channel up to the ordinary high 

water mark. Approximately 100 percent 

of the riparian lands that border the unit 

are in private ownership. 

(ii) Map of Unit OF 1 follows: 


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Index Map: "Ouachita" Fanshell Critical Habitat Units 

ARKANSAS 

LOUISIANA 

- Critical Habitat 

- State Boundaries 

o 9 18 Miles N , 

,.....,-' :;:=,'::.-:;::.-:::.:-, ....... ··· ........ · ....... A 

o 18.5 37 Kilometers 
12370 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 

(7) Unit OF 2: Ouachita Headwaters; 

Montgomery and Polk Counties, 

Arkansas. 

(i) Unit OF 2 consists of 32.7 river mi 

(52.6 km) of Ouachita River in 

Montgomery and Polk Counties, 

Arkansas, from the County Road 67 

crossing south of Cherry Hill, Polk 

County, downstream to the U.S. Route 

270 crossing southeast of Pencil Bluff, 

Montgomery County, and includes the 

river channel up to the ordinary high 

water mark. Riparian lands that border 

the unit include approximately 29.9 

river mi (48.1 km; 91 percent) in private 

ownership and 2.8 river mi (4.5 km; 9 

percent) in public (Federal) ownership. 

The public ownership in this unit is 

Federal land associated with the U.S. 

Forest Service’s Ouachita National 

Forest. 

(ii) Map of Unit OF 2 follows: 


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Critical Habitat for "Ouachita" Fanshell 

OF1 Little Missouri River; Clark, Nevada, and Ouachita Counties, Arkansas 

Garland Cr 

Nevada County 

- Critical Habitat 

Major Road 

County Boundary 

-.,,,. State Boundary 

River 

Waterbody 

N 

A 

1 inch = 5 Kilometers 

1 inch = 3 miles 

Clark County 

• 

Red Hill 

Ouachita County 
Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 12371 

(8) Unit OF 3: Ouachita River; Clark, 

Dallas, and Ouachita Counties, 

Arkansas. 

(i) Unit OF 3 consists of 53.5 river mi 

(86.1 km) of Ouachita River in Clark, 

Dallas, and Ouachita Counties, 

Arkansas, from the mouth of L’Eau Frais 

Creek southeast of Arkadelphia, Clark 

County, downstream to the mouth of 

Ecore Fabre Bayou north of Camden, 

Ouachita County, and includes the river 

channel up to the ordinary high water 

mark. Approximately 100 percent of the 

riparian lands that border the unit are in 

private ownership. There is a Wetlands 

Reserve Program easement within the 

unit. 

(ii) Map of Unit OF 3 follows: 


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Critical Habitat for "Ouachita" Fanshell 

OF2 Ouachita Headwaters; Montgomery and Polk Counties, Arkansas 

Scott County 

f 

I • • • • • • • • 

Polk County 

- Critical Habitat 

= MajorRoad 

----- County Boundary 

- State Boundary 

-- River 

Waterbody 

Montgomery County 

N 

A 

1 inch = 6 Kilometers 

1 inch = 4 miles 
12372 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 

(9) Unit OF 4: Saline River; Ashley, 

Bradley, Cleveland, Dallas, Drew, Grant, 

and Saline Counties, Arkansas. 

(i) Unit OF 4 consists of 185.3 river 

mi (298.2 km) of Saline River in Ashley, 

Bradley, Cleveland, Dallas, Drew, Grant, 

and Saline Counties, Arkansas, from the 

mouth of North Fork Saline River north 

of Benton, Saline County, downstream 

to the mouth of Mill Creek north of 

Stillions, Ashley County, and includes 

the river channel up to the ordinary 

high water mark. Approximately 100 

percent of the riparian lands that border 

the unit are in private ownership and 

less than 1 percent is in public 

ownership. The public ownership in 

this unit is State-owned land associated 

with Jenkins Ferry State Park. 

(ii) Map of Unit OF 4 follows: 


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Critical Habitat for "Ouachita" Fanshell 

OF3 Ouachita River; Clark, Danas, and Ouachita Counties, Arkansas 

Nevada 

County 

Clark County 

- Critical Habitat 

-- Major Road 

~---- County Boundary 

- State' Boundary 

-- River 

Waterbody 

N 

A 

1 inch = 11 Kilometers 

1 inch = 7 miles 

Dallas county 

Ouachita County 

Calhoun 

, County 
Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 12373 

Western Fanshell (Cyprogenia aberti) 

(1) Critical habitat units are depicted 

for Cleburne, Fulton, Independence, 

Jackson, Lawrence, Randolph, Sharp, 

Stone, and Van Buren Counties, 

Arkansas; Cherokee, Greenwood, 

Montgomery, and Wilson Counties, 

Kansas; and Butler, Jasper, Madison, 

and Wayne Counties, Missouri, on the 

maps in this entry. 

(2) Within these areas, the physical or 

biological features essential to the 

conservation of western fanshell consist 

of the following components: 

(i) Adequate flows, or a hydrologic 

flow regime (magnitude, timing, 

frequency, duration, rate of change, and 

overall seasonality of discharge over 

time), necessary to maintain benthic 

habitats where the species is found and 

to maintain stream connectivity, 

specifically providing for the exchange 

of nutrients and sediment for 

maintenance of the mussel’s and fish 

hosts’ habitat and food availability, 

maintenance of spawning habitat for 

native host fishes, and the ability for 

newly transformed juveniles to settle 


khammond on DSKJM1Z7X2PROD with PROPOSALS3EP03MR22.007</GPH>

Critical Habitat for "Ouachita" Fanshell 

OF4 Saline River; Ashley, Bradley, Cleveland, Dallas, Drew, Grant, and Saline 

Counties, Arkansas 

Dallas County 

- Critical Habitat 

-- Major Road 

-~--- County Boundary 

- State Boundary 

-- River 

Waterbody 

N 

Bradley 

County 

A 

1 inch = 34 Kilometers 

1 inch = 21 miles 

. ..,.,.··~;,;··;.,_·;..;· :,:..;.;•:..··..:··..;·'...;·;,;;·;,,;,.;;."' .. .;,;;,.·, ~ 

Drew county 
12374 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 

and become established in their 

habitats. Adequate flows ensure 

delivery of oxygen, enable reproduction, 

deliver food to filter-feeding mussels, 

and reduce contaminants and fine 

sediments from interstitial spaces. 

(ii) Suitable substrates and connected 

instream habitats, characterized by 

geomorphically stable stream channels 

and banks (that is, channels that 

maintain lateral dimensions, 

longitudinal profiles, and sinuosity 

patterns over time without an aggrading 

or degrading bed elevation) with 

habitats that support a diversity of 

freshwater mussel and native fish (such 

as stable riffle-run-pool habitats that 

provide flow refuges consisting of siltfree gravel and coarse sand substrates). 

(iii) Water and sediment quality 

necessary to sustain natural 

physiological processes for normal 

behavior, growth, and viability of all life 

stages, including, but not limited to: 

dissolved oxygen (generally above 3 

parts per million (ppm)) and water 

temperature (generally below 80 degrees 

Fahrenheit (°F) (27 degrees Celsius (°C)). 

Additionally, water and sediment 

should be low in ammonia (generally 

below 1.0 ppm total ammonia-nitrogen) 

and heavy metals, and lack excessive 

total suspended solids and other 

pollutants. 

(iv) The presence and abundance of 

fish hosts necessary for recruitment of 

the western fanshell, including logperch 

(Percina caprodes), rainbow darter 

(Etheostoma caeruleum), slenderhead 

darter (Percina phoxocephala), fantail 

darter (Etheostoma flabellare), or 

orangebelly darter (Etheostoma 

radiosum). 

(3) Critical habitat does not include 

manmade structures (such as buildings, 

aqueducts, runways, roads, and other 

paved areas) and the land on which they 

are located existing within the legal 

boundaries on the effective date of the 

rule. 

(4) Data layers defining map units 

were created by overlaying Natural 

Heritage Element Occurrence data and 

U.S. Geological Survey hydrologic data 

for stream reaches using ESRI ArcGIS 

mapping software. Critical habitat unit 

upstream and downstream limits were 

delineated at the nearest road crossing 

or stream confluence of each occupied 

reach. Data layers defining map units 

were created with U.S. Geological 

Survey National Hydrography Dataset 

(NHD) Medium Flowline data. ArcGIS 

was also used to calculate river 

kilometers and river miles from the 

NHD dataset, and it was used to 

determine longitude and latitude 

coordinates in decimal degrees. The 

projection used in mapping and 

calculating distances and locations 

within the units was EPSG:4269– 

NAD83 Geographic. Natural Heritage 

program and State mussel database 

species presence data from Arkansas, 

Kansas, and Missouri were used to 

select specific river and stream 

segments for inclusion in the critical 

habitat layer. The maps in this entry, as 

modified by any accompanying 

regulatory text, establish the boundaries 

of the critical habitat designation. The 

coordinates or plot points or both on 

which each map is based are available 

to the public at the Service’s internet 

site at https://www.fws.gov/midwest/, at 

http://www.regulations.gov at Docket 

No. FWS–R3–ES–2021–0061, and at the 

field office responsible for this 

designation. You may obtain field office 

location information by contacting one 

of the Service regional offices, the 

addresses of which are listed at 50 CFR 

2.2. 

(5) Note: Index map follows: 


khammond on DSKJM1Z7X2PROD with PROPOSALS3
Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 12375 

(6) Unit WF 1: Upper Black River; 

Butler and Wayne Counties, Missouri. 

(i) Unit WF 1 consists of 64.7 river 

miles (mi) (104.1 kilometers (km)) of 

Black River in Butler and Wayne 

Counties, Missouri, from Clearwater 

Dam southwest of Piedmont, Wayne 

County, extending downstream to Butler 

County Road 658 crossing southeast of 

Poplar Bluff, Butler County, and 

includes the river channel up to the 

ordinary high water mark. Riparian 

lands that border the unit include 

approximately 51 river mi (82.1 km; 79 

percent) in private ownership and 13.7 

river mi (22 km; 21 percent) in public 

(Federal or State) ownership. 

Approximately 2.7 miles of the public 

ownership in this unit are State lands 

associated with Missouri Department of 

Conservation’s (MDC) Bradley A. 

Hammer Memorial Conservation Area, 

Dan River Access, Hilliard Access, and 

Stephen J. Sun Conservation Area. 

Eleven miles are Federal land associated 

with the U.S. Forest Service’s (USFS) 

Mark Twain National Forest and U.S. 


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Index Map: Western Fanshell 

Critical Habitat Units 

AN AS 

--- Critical Habitat 

- State Boundaries 

o 26.5 53 Miles N . 

,-I I .........,,_,,..I.,.., ' I -,I A . 

o so 1 oo Kilometers • 
12376 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 

Army Corps of Engineers (USACE) 

Clearwater Recreation Area. 

(ii) Map of Unit WF 1 follows: 

(7) Unit WF 2: Lower Black/ 

Strawberry River; Independence, 

Jackson, Lawrence, and Sharp Counties, 

Arkansas. 

(i) Unit WF 2 consists of 111.3 river 

mi (179.1 km) of Black River and 

Strawberry River in Independence, 

Jackson, Lawrence, and Sharp Counties 

in Arkansas, and includes the river 

channel up to the ordinary high water 

mark. Black River makes up 54.6 river 

mi (87.9 km) from the mouth of Spring 

River northeast of Black Rock, extending 

downstream to the mouth of Strawberry 

River northeast of Dowdy, 

Independence County. Strawberry River 

makes up 56.7 river mi (91.2 km) from 

the mouth of Lave Creek north of 


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Critical Habitat for Western Fanshell 

WF1 Upper Black River; Butler and Wayne Counties, Missouri 

Carter County 

Ripley County 

- Critical Habitat 

==-=- Major Road 

----- County Boundary 

- State Boundary 

-- River 

Waterbody 

N 

A 

1 inch = 12 Kilometers 

1 inch = 8 miles 
Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 12377 

Evening Shade, Sharp County, 

extending downstream to the 

confluence with Black River northeast 

of Dowdy, Independence County. 

Riparian lands that border the unit 

include approximately 100.4 river mi 

(161.6 km; 90 percent) in private 

ownership and 10.9 river mi (17.5 km; 

10 percent) in public (State) ownership. 

The public land ownership in this unit 

is associated with Arkansas Game and 

Fish Commission’s Shirey Bay Rainey 

Brake Wildlife Management Area on 

Black River. The Nature Conservancy’s 

Strawberry River Preserve and Ranch on 

Strawberry River is also in this unit. 

(ii) Map of Unit WF 2 follows: 

(8) Unit WF 3: Fall River; Greenwood 

and Wilson Counties, Kansas. 

(i) Unit WF 3 consists of 45.5 river mi 

(73.2 km) of Fall River in Greenwood 

and Wilson Counties, Kansas, from the 

Greenwood County Road 33/Merchants 


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Critical Habitat for Western Fanshell 

WF2 Lower Black/Strawberry River; Independence, Jackson, Lawrence, and 

Sharp Counties, Arkansas 

Fulton County .••• 

Randolph County 

412c:@ 

s~~ 

~y l( ~ J ~~ tP"" 

r:.r l Lawrence County 

-",;:::;=~ti. 

• Dowdy 

Independence County 

- Critical Habitat 

= Major Road 

-···- County Boundary 

- State Boundary 

-- River 

Waterbody 

N 

A 

1 inch = 13 Kilometers 

1 inch = 8 miles 
12378 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 

Avenue crossing at Fall River, 

Greenwood County, extending 

downstream to the U.S. Route 400 

crossing west of Neodesha, Wilson 

County, and includes the river channel 

up to the ordinary high water mark. 

Approximately 100 percent of the 

riparian lands that border the unit are in 

private ownership. 

(ii) Map of Unit WF 3 follows: 

(9) Unit WF 4: Middle Fork Little Red 

River; Cleburne, Stone, and Van Buren 

Counties, Arkansas. 

(i) Unit WF 4 consists of 34.1 river mi 

(54.8 km) of the Middle Fork Little Red 

River in Cleburne, Stone, and Van 

Buren Counties, Arkansas, from the 

mouth of Linn Creek east of Dennard, 

Van Buren County, extending 

downstream to the mouth of Wild Goose 

Creek north of Fairfield Bay, Cleburne 


khammond on DSKJM1Z7X2PROD with PROPOSALS3EP03MR22.011</GPH>

Critical Habitat for Western Fanshell 

WF3 Fall River; Greenwood and Wilson Counties, Kansas 

Greenwood County 

Elk County 

- Critical Habitat 

-- Major Road 

----- County Boundary 

- State Boundary 

-- River 

Wat~rbody 

\ 

"' 

~~~' ~F==i'. @=:.:-=~~ 

\\ 

~ s;, 

400 7~ 

~ i 

\' , 

~ -, 

Wils-0n County -(_.✓ 

39 

u 

Montgomery County 

N 

A 

1 inch = 8 Kilometers 

1 inch = 5 miles 

' 
Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 12379 

and Van Buren counties, and includes 

the river channel up to the ordinary 

high water mark. Riparian lands that 

border the unit include approximately 

30.6 river mi (49.2 km; 90 percent) in 

private ownership and 3.5 river mi (5.6 

km; 10 percent) in public (Federal) 

ownership. All of the public land 

ownership in this unit is Federal land 

associated with the USACE’s Greers 

Ferry Recreation Area. 

(ii) Map of Unit WF 4 follows: 

(10) Unit WF 5: St. Francis River; 

Madison and Wayne Counties, Missouri. 

(i) Unit WF 5 consists of 49.3 river mi 

(79.3 km) of St. Francis River in 

Madison and Wayne Counties, Missouri, 

extending from the mouth of Wachita 

Creek west of Fredericktown, Madison 

County, downstream to the mouth of Big 

Creek northwest of Silva, Wayne 

County, and includes the river channel 

up to the ordinary high water mark. 

Riparian lands that border the unit 


khammond on DSKJM1Z7X2PROD with PROPOSALS3EP03MR22.012</GPH>

Critical Habitat for Western Fanshell 

WF4 Middle Fork Little Red River; Cleburne, Stone, and Van Buren Counties, 

Arkansas 

r,==df;', 

/"::::::;,:.J 

--·@f~J 

Searcy County 

Van Buren County 

- Critical Habitat 

-- Major Road 

----- County Boundary 

- State Boundary 

-- River 

Waterbody 

Stone County 

N 

A 

1 inch = 6 Kilometers 

1 inch = 4 miles 

Fairfield Bay ,. 

( Cfeburne 

) County := 

~-.#) 

/ 
12380 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 

include approximately 36.7 river mi 

(59.1 km; 74 percent) in private 

ownership and 12.6 river mi (20.2 km; 

26 percent) in public (Federal or State) 

ownership. Approximately 2.4 river mi 

of the public ownership in this unit are 

State lands associated with MDC’s 

Coldwater Conservation Area, Mill 

Stream Gardens, and Roselle Access. 

Ten miles are Federal land associated 

with the USFS’s Mark Twain National 

Forest. 

(ii) Map of Unit WF 5 follows: 

(11) Unit WF 6: South Fork Spring 

River; Fulton County, Arkansas. 

(i) Unit WF 6 consists of 13.4 river mi 

(21.6 km) of South Fork Spring River in 

Fulton County, Arkansas, from the 

mouth of Camp Creek east of Salem, 

Fulton County, extending downstream 

to the Arkansas Highway 289 crossing 


khammond on DSKJM1Z7X2PROD with PROPOSALS3EP03MR22.013</GPH>

Critical Habitat for Western Fanshell 

WF5 St. Francis River; Madison and Wayne Counties, Missouri 

Iron County 

- Critical Habitat 

-·-· - Major Road 

----- County Boundary 

- State Boundary 

--- River 

Waterbody 

N 

A 

1 inch = 9 Kilometers 

1 inch = 6 miles 

St. Francois County 
Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 12381 

northwest of Cherokee Village, Fulton 

and Sharp Counties, and includes the 

river channel up to the ordinary high 

water mark. Approximately 100 percent 

of the riparian lands that border the unit 

are in private ownership. 

(ii) Map of Unit WF 6 follows: 

(12) Unit WF 7: Spring River (AR); 

Lawrence and Randolph Counties, 

Arkansas. 

(i) Unit WF 7 consists of 14.2 river mi 

(22.9 km) of Spring River in Lawrence 

and Randolph Counties, Arkansas, from 

the mouth of Wells Creek at Ravenden, 

extending downstream to the mouth of 

Stennitt Creek southeast of Imboden, 

Lawrence County, and includes the 

river channel up to the ordinary high 

water mark. Approximately 100 percent 

of the riparian lands that border the unit 

are in private ownership. 

(ii) Map of Unit WF 7 follows: 


khammond on DSKJM1Z7X2PROD with PROPOSALS3EP03MR22.014</GPH>

Critical Habitat for Western Fanshell 

WF6 South Fork Spring River; Fulton County, Arkansas 

-- Critical Habitat 

= Major Road 

------ County Boundary 

.-. State Boundary 

---- River 

1111 Waterbody 

Fulton County 

-1 inch = 2 Kilometers 

1 inch = 1 miles 

• //Cherokee Village 
12382 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 

(13) Unit WF 8: Spring River (MO/ 

KS); Jasper County, Missouri, and 

Cherokee County, Kansas. 

(i) Unit WF 8 consists of 15 river mi 

(24.1 km) of Spring River in Jasper 

County, Missouri, and Cherokee County, 

Kansas, from the mouth of North Fork 

Spring River east of Asbury, Jasper 

County, Missouri, extending 

downstream through Cherokee County, 

Kansas, to the mouth of Center Creek 

west of Carl Junction, Jasper County, 

Missouri, and includes the river channel 

up to the ordinary high water mark. 

Riparian lands that border the unit 

include approximately 14.0 river mi 

(22.5 km; 94 percent) in private 

ownership and 1.0 river mi (1.6 km; 6 

percent) in public (State) ownership. 

The public ownership of this unit is 

State land associated with the Kansas 

Department of Wildlife, Parks and 

Tourism’s Spring River Wildlife Area. 

(ii) Map of Unit WF 8 follows: 


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Critical Habitat for Western Fanshell 

WF7 Spring River (AR); Lawrence and Randolph Counties, Arkansas 

Sharp 

County 

- Critical Habitat 

-- Major Road 

--··- County Boundary 

- State Boundary 

-- River 

Waterbody 

Randolph County 

Lawrence county 

N. 

A 

1 inch = 4 Kilometers 

1 inch = 2 miles 
Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 12383 

(14) Unit WF 9: Verdigris River; 

Montgomery and Wilson Counties, 

Kansas. 

(i) Unit WF 9 consists of 12.4 river mi 

(20 km) of Verdigris River in 

Montgomery and Wilson Counties, 

Kansas, from the mouth of Fall River 

south of Neodesha, Wilson County, 

extending downstream to the mouth of 

Choteau Creek northeast of 

Independence, Montgomery County, 

and includes the river channel up to the 

ordinary high water mark. 

Approximately 100 percent of the 

riparian lands that border the unit are in 

private ownership. 

(ii) Map of Unit WF 9 follows: 


khammond on DSKJM1Z7X2PROD with PROPOSALS3EP03MR22.016</GPH>

Critical Habitat for Western Fanshell 

WF8 Spring River (MO/KS); Jasper County, Missouri; Cherokee County, 

Kansas 

Cherokee County 

- Critical Habitat 

Major Road 

County Boundary 

,s_-__,,, State Boundary 

River 

Waterbody 

N 

A 

1 inch= 3 Kilometers 

1 inch = 2 miles 

Jasper County 
12384 Federal Register / Vol. 87, No. 42 / Thursday, March 3, 2022 / Proposed Rules 

* * * * * 

Martha Williams, 

Principal Deputy Director, Exercising the 

Delegated Authority of the Director, U.S. Fish 

and Wildlife Service. 

[FR Doc. 2022–02994 Filed 3–2–22; 8:45 am] 

BILLING CODE 4333–15–C 


khammond on DSKJM1Z7X2PROD with PROPOSALS3EP03MR22.017</GPH>

Critical Habitat for Western Fanshell 

WF9 Verdigris River; Montgomery and Wilson Counties, Kansas 

;1 --:/· 

7~:.~:::> 

1: ru 

~ 

@ 

Independence • 

- Critical Habitat 

Major Road 

County Boundary 

State 

River 

Waterbody 

N 

A 

1 inch = 3 Kilometers 

1 inch = 2 miles 

Wilson County 

Montgomery County