Daily Rules, Proposed Rules, and Notices of the Federal Government
We request that you send comments only by the methods described above. We will post all comments on
This document consists of: (1) A proposed rule to list the Neosho mucket (
• We estimate the Neosho mucket has been extirpated (no longer in existence) from approximately 62 percent of its historical range with only 9 of the 16 historical populations remaining (extant). This mussel is declining rangewide (eight of the nine extant populations) with only one remaining large viable population.
• We estimate the rabbitsfoot has been extirpated from approximately 64 percent of its historical range. While 51 of the 140 historical populations are extant (remain), only 11 populations (22 percent of extant populations or 8 percent of the historical populations) are viable; 23 populations (45 percent of extant populations) are at risk of extirpation; and 17 populations (33 percent of extant populations) show limited recruitment with little evidence of sustainability. Rabbitsfoot is extirpated from 2 States within its historical range.
• The majority (8 of the 11 or 73 percent) of the viable rabbitsfoot populations live in waters considered impaired under section 303(d) of the Clean Water Act or have numerous tributaries in their watersheds also listed as impaired. Thus, these mussels are subjected to water quality and quantity and sediment quality constraints. These constraints (impairment) are expected to be exacerbated by increased water demand, habitat degradation, and climate change. Therefore, the viability of the majority of rabbitsfoot populations is uncertain.
• The majority of extant rabbitsfoot populations are marginal to small (40 of 51 extant populations (78 percent)) and isolated (41 of 51 extant populations (80 percent)); because of the isolation, it is unlikely that recruitment between populations or establishment of new populations could occur naturally.
• We are proposing to list the Neosho mucket as an endangered species in Arkansas, Kansas, Missouri, and Oklahoma and the rabbitsfoot as a threatened species in Alabama, Arkansas, Georgia, Kansas, Kentucky, Illinois, Indiana, Louisiana, Mississippi, Missouri, Ohio, Oklahoma, Pennsylvania, Tennessee, and West Virginia.
We have determined that both species are threatened by destruction, modification, or curtailment of habitat or range, inadequate existing regulatory mechanisms, and other manmade factors:
This rule designates critical habitat for each species.
• We are proposing to designate critical habitat for the Neosho mucket in Arkansas, Kansas, Missouri, and Oklahoma and for the rabbitsfoot in Alabama, Arkansas, Illinois, Indiana, Kansas, Kentucky, Mississippi, Missouri, Ohio, Oklahoma, Pennsylvania, and Tennessee.
• In total, approximately 779 river kilometers (rkm) (484 river miles (rmi)) in the Cottonwood, Elk, Fall, Illinois, Neosho, Shoal, Spring, North Fork Spring, and Verdigris Rivers are being proposed for designation as critical habitat for the Neosho mucket in Arkansas, Kansas, Missouri, and Oklahoma.
• The proposed critical habitat for the Neosho mucket is located in:
○ Benton and Washington Counties, Arkansas;
○ Allen, Chase, Cherokee, Coffey, Elk, Greenwood, Labette, Montgomery, Neosho, Wilson, and Woodson Counties, Kansas;
○ Jasper, Lawrence, McDonald, and Newton Counties, Missouri; and
○ Adair, Cherokee, and Delaware Counties, Oklahoma.
• In total, approximately 2,662 rkm (1,654 rmi) in the Neosho, Spring (Arkansas River system), Verdigris, Black, Buffalo, Little, Ouachita, Saline, Middle Fork Little Red, Spring (White River system), South Fork Spring, Strawberry, White, St. Francis, Big Sunflower, Big Black, Paint Rock, Duck, Tennessee, Red, Ohio, Allegheny, Green, Tippecanoe, Walhonding, Middle Branch North Fork Vermilion, and North Fork Vermilion Rivers and Bear, French, Muddy, Little Darby and Fish Creeks in Alabama, Arkansas, Kansas, Kentucky, Illinois, Indiana, Mississippi, Missouri, Ohio, Oklahoma, Pennsylvania, and Tennessee are being proposed for designation as critical habitat for the rabbitsfoot.
• The proposed critical habitat for the rabbitsfoot is located in:
○ Colbert, Jackson, Madison, and Marshall Counties, Alabama;
○ Arkansas, Ashley, Bradley, Clark, Cleveland, Dallas, Drew, Fulton, Grant, Hot Spring, Independence, Izard, Jackson, Lawrence, Little River, Marion, Monroe, Montgomery, Newton, Ouachita, Randolph, Saline, Searcy, Sevier, Sharp, Van Buren, White, and Woodruff Counties, Arkansas;
○ Allen and Cherokee Counties, Kansas;
○ Ballard, Green, Hart, Livingston, Logan, Marshall, and McCracken Counties, Kentucky;
○ Massac, Pulaski, and Vermilion Counties, Illinois; Carroll, Pulaski, Tippecanoe, and White Counties, Indiana; Hinds, Sunflower, Tishomingo, and Warren Counties, Mississippi;
○ Jasper, Madison, and Wayne Counties, Missouri;
○ Coshocton, Madison, Union, and Williams Counties, Ohio;
○ McCurtain and Rogers Counties, Oklahoma; Crawford, Erie, Mercer, and Venango Counties, Pennsylvania; and
○ Hardin, Hickman, Marshall, Maury, and Robertson Counties, Tennessee.
We intend that any final action resulting from this proposal 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 the public, other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested party concerning this proposed rule. We particularly seek comments concerning:
(1) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to these species and regulations that may be addressing those threats.
(2) 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.
(3) Any information on the biological or ecological requirements of the species and ongoing conservation measures for the species and their habitat.
(4) Any information regarding water quality data that may be helpful in determining the water quality parameters necessary for Neosho mucket and rabbitsfoot.
(5) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531
(6) Specific information on:
(a) The amount and distribution of Neosho mucket and rabbitsfoot habitat;
(b) What areas, that were occupied at the time of listing (or are currently occupied) and that contain features essential to the conservation of the species, should be included in the designation and why;
(c) What areas not occupied at the time of listing are essential for the conservation of the species and why.
(7) Land use designations and current or planned activities in the areas occupied by the species or proposed to be designated as critical habitat, and possible impacts of these activities on these species and proposed critical habitat.
(8) Information on the projected and reasonably likely impacts of climate change on the Neosho mucket and rabbitsfoot and proposed critical habitat.
(9) Any foreseeable economic, national security, or other relevant impacts that may result from designating any area that may be included in the final designation. We are particularly interested in any impacts on small entities, and the benefits of including or excluding areas from the proposed designation that are subject to these impacts.
(10) Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments.
(11) The likelihood of adverse social reactions to the designation of critical habitat and how the consequences of such reactions, if likely to occur, would relate to the conservation and regulatory benefits of the proposed critical habitat designation.
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 a threatened or endangered species must be made “solely on the basis of the best scientific and commercial data available.”
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The Neosho mucket was first identified as a candidate for protection under the Act in the May 22, 1984,
On October 30, 2001, we identified the Neosho mucket in the
We published a petition finding for the Neosho mucket on May 11, 2005 (70 FR 24870), in response to a petition received on May 11, 2004, stating in the finding that the Neosho mucket would retain an LPN of 5. In our Notices of Review dated September 12, 2006 (71 FR 53756), December 6, 2007 (72 FR 69034), and December 8, 2008 (73 FR 75176), we maintained an LPN of 5, reflecting the nonimminent threats of high magnitude. The LPN was elevated to 2 in our Notice of Review dated November 10, 2010 (75 FR 69222), to reflect the change from nonimminent to imminent threats of high magnitude.
The rabbitsfoot was first identified as a candidate for protection under the Act in the November 15, 1994,
It is our intent to discuss below only those topics directly relevant to the listing of the Neosho mucket as endangered and the rabbitsfoot as threatened in this section of the proposed rule.
North American freshwater mussel fauna is the richest in the world and historically numbered around 300 species (Williams
Freshwater mussels generally live embedded in the bottom of rivers, streams, and other bodies of water. They siphon water into their shells and across four gills that are specialized for respiration and food collection. Food items include algae, bacteria, detritus (disintegrated organic debris), and microscopic animals (Strayer
Sexes in unionid (refers to taxonomic family Unionidae) mussels, such as the Neosho mucket and rabbitsfoot, are usually separate. Males release sperm into the water column, which are drawn in by females through their siphons during feeding and respiration. Fertilization takes place inside the shell, and success is apparently influenced by mussel density and water flow conditions (Downing
Growth rates for mussels are highly variable among individual mussel species, but overall, mussels tend to grow relatively rapidly for the first few years (Scruggs 1960, pp. 28-30; Negus 1966, pp. 517-518) then slow appreciably (Bruenderman and Neves 1993, p. 88; Hove and Neves 1994, pp. 34-36). This reduction in growth rate is correlated to sexual maturity, probably as a result of energy being diverted from growth to gamete production (Baird 2000, pp. 63-71). Heavy-shelled species, such as Neosho mucket and rabbitsfoot, grow slowly relative to thin-shelled species (Coon
Strayer (1999a, pp. 468 and 472) demonstrated that mussels in streams occur chiefly in “flow refuges” (relatively stable areas that displayed little movement of substrate particles during flood events). Other researchers
The Neosho mucket and rabbitsfoot are freshwater mussels in the family Unionidae. Both species are currently deemed valid by the Committee on Scientific and Vernacular Names of Mollusks of the Council of Systematic Malacologists and the American Malacological Union (Turgeon
Neosho mucket was originally described as
Neosho mucket glochidia are an obligate parasite on smallmouth bass (
The Neosho mucket is associated with shallow riffles and runs comprising gravel substrate and moderate to swift currents. The species is most often found in areas with swift current, but in Shoal Creek and the Illinois River it prefers near-shore areas or areas out of the main current (Oesch 1984, p. 221; Obermeyer 2000, pp. 15-16). Neosho mucket historically occurred in at least 16 streams within the Illinois, Neosho, and Verdigris River basins covering four states (Arkansas, Kansas, Oklahoma, and Missouri). It is endemic to the Arkansas River system (Gordon 1980, pp. 318 and 347; Harris and Gordon 1987, pp. 53-54; Obermeyer 1996, pp. 3-4; Vaughn 1996, pp. 3-5; Mather 1990, pp. 7-13; Obermeyer
For the purposes of this rule, a population is considered extant if live individuals or fresh dead specimens have been located since 1985. A population is considered viable if it is sizeable, comprised of different age classes, recruiting juveniles, and able to sustain itself over several decades without human intervention (Butler 2005, p. 23). Population trend estimates were generally made with a 20- to 30-year perspective when adequate historical information was available. Populations were deemed to have improving, stable, declining, or unknown status (Table 1).
Since the 1990s, extant populations have been found downstream of John Redmond Reservoir Dam to near Parsons, Kansas, in Allen, Coffey, Labette, and Neosho Counties, Kansas. In addition, fresh dead or relict (shell shows no sign of recent mortality, such as tissue inside shell or outer shell material (periostracum) is weathered) shells were collected at 11 sites extending to near the Kansas-Oklahoma state line in Cherokee County, Kansas (Obermeyer
Obermeyer (1996, p. 11) provides the most comprehensive status assessment of Neosho mucket in the Spring River. He collected 1,104 live Neosho mucket specimens from 13 of 20 sites extending from Missouri Highway 97 downstream to near the Turkey Creek confluence in Kansas. The KDWP surveyed a site approximately 0.5 to 0.8 rkm (0.3 to 0.5 rmi) downstream of the Kansas and Missouri state line in 2003 and collected 201 live Neosho mucket specimens (approximately 30 percent of live mussels collected). In 2006, KDWP collected 141 live Neosho mucket specimens (approximately 30 percent of live mussels collected) at a site just upstream of the Kansas and Missouri Highway YY (Miller 2011, pers. comm.). Eight to 10 percent of live Neosho mucket specimens collected at the 2006 site were quantitatively aged at less than 5 years (Tabor 2008, pers. comm.). A 2010 survey, 6 km (4 miles) east of Crestline, Kansas, found 400 live mussel specimens, of which approximately half were Neosho mucket (Tabor 2011, pers. comm.). The Spring River Neosho mucket population represents the only viable population rangewide.
In 2005, 92 live Neosho mucket specimens were collected from two Benton County, Arkansas, sites (Robinson Road Bridge and 800 m (2,624 feet) downstream of Chambers Spring Road, Benton County, Arkansas; Posey 2005, pers. comm.). The Arkansas Game and Fish Commission (AGFC) and the Service conducted a comprehensive status survey for Neosho mucket in the Arkansas portion of the Illinois River in 2008. Live specimens of Neosho mucket were collected at 9 of 15 survey sites. There was a 32 and 53 percent decline in number of extant (still in existence) mussel sites and sites inhabited by live Neosho mucket specimens, respectively, versus the Harris (1998) status survey. Sixty-seven percent of the sites with
Neosho mucket was locally common prior to the late 1990s in approximately 89 rkm (55 rmi) of the Illinois River from the Oklahoma and Arkansas state line downstream to Lake Tenkiller, Cherokee County, Oklahoma (Mather 1990, pp. 7-11). The population within the survey reach was estimated at more than 1,200 individuals in 1990. In 1995, Vaughn (1995, p. 3; 1997, p. 14) estimated the Neosho mucket population in the same reach surveyed by Mather in 1990 at between 500 and 1,000 individuals and locally common at 9 of 52 sites. Although some evidence of reproductive potential was observed during 1990 and 1995 (for example, gravid females displaying mantle lures), there was little evidence of recruitment into the population. Neosho mucket specimens were not found in or downstream of Lake Tenkiller.
The majority of the Oklahoma reach has been inundated (Oologah Lake) and channelized as part of the McClellan-Kerr Arkansas River Navigation System. In 1996 and 1997, searches in the Verdigris in Oklahoma found no live Neosho mucket specimens at 32 sites. However, relict Neosho mucket shells confirmed the historical presence of the species (Vaughn 1996, p. 3; 1997, pp. 7-9). In 2008, researchers confirmed that the species is still extirpated from the Oklahoma reach (Boeckman 2008, pers. comm.).
The Neosho mucket is declining rangewide, with the exception of one population. Based on historical and current data, Neosho mucket has been extirpated from approximately 1,342 rkm (834 rmi) of its historical range (62 percent). Most of this extirpation has occurred within the Oklahoma and Kansas portions of its range. The extirpation of this species from numerous streams and stream reaches within its historical range signifies that substantial population losses have occurred. Extant populations are disjunct (not contiguous) in approximately 819 rkm (509 rmi). The Spring River in Missouri supports the only viable population based on the presence of a large number of individuals and evidence of recent recruitment. Given this compilation of current distribution, abundance, and status trend information, the Neosho mucket exhibits range reductions and population declines throughout its range.
The rabbitsfoot was originally described as
The rabbitsfoot is a medium to large mussel, elongate and rectangular, reaching 12 cm (6 inches) in length (Oesch 1984, pp. 91-93). Parmalee and Bogan (1998, pp. 210-212) describe the beaks as moderately elevated and raised only slightly above the hinge line. Beak sculpture consists of a few strong ridges or folds continuing onto the newer growth of the umbo (raised or domed part of the dorsal margin of the shell) as small tubercles (small, rounded projection on surface of the shell). Shell sculpture consists of a few large, rounded, low tubercles on the posterior slope, although some individuals will have numerous small, elongated pustules (small raised spots) particularly on the anterior. The periostracum (external shell surface) is generally smooth and yellowish, greenish, or olive in color becoming darker and yellowish-brown with age and usually covered with dark green or nearly black chevrons and triangles pointed ventrally (Say 1817, p. 13). These patterns are absent in some individuals.
Internally, the color of the nacre is white and iridescent, often with a grayish-green tinge in the umbo cavity. Specimens from the southern periphery of its range are occasionally purplish. Soft parts generally have an orange coloration (Oesch 1984, p. 91; Parmalee and Bogan 1998, pp. 211-212). However, Vidrine (1993, p. 55) noted that the rabbitsfoot in the Ouachita River system in Louisiana had black soft parts. Aspects of the soft anatomy are
Suitable fish hosts for rabbitsfoot populations west of the Mississippi River include blacktail shiner (
Rabbitsfoot populations west of the Mississippi River reach sexual maturity between the ages of 4 to 6 years (Fobian 2007, p. 50). Rabbitsfoot exhibit seasonal movement towards shallower water during brooding periods, a strategy to increase host fish exposure but one that also leaves them more vulnerable to predation and fluctuating water levels, especially downstream of dams (Fobian 2007, pp. 48-49; Barnhart 2008, pers. comm.). It is a short-term brooder, with females brooding between May and late August (Fobian 2007, pp. 15-16). Similar to other species of
Rabbitsfoot is primarily an inhabitant of small to medium sized streams and some larger rivers. It usually occurs in shallow water areas along the bank and adjacent runs and shoals with reduced water velocity. Specimens also may occupy deep water runs, having been reported in 2.7 to 3.7 m (9 to 12 feet) of water. Bottom substrates generally include gravel and sand (Parmalee and Bogan 1998, pp. 211-212). This species seldom burrows but lies on its side (Watters 1988, p. 13; Fobian 2007, p. 24).
Rabbitsfoot historically occurred in 140 streams within the lower Great Lakes Subbasin and Mississippi River Basin (Table 2). The historical range included Alabama, Arkansas, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Ohio, Oklahoma, Pennsylvania, Tennessee, and West Virginia. Rabbitsfoot populations are considered to be extant in 51 streams in 13 states (Butler 2005, pp. 18-20; Boeckman 2008, pers. comm.), representing a 64 percent decline (51 extant streams of 140 historical populations). In streams where it remains extant, populations are highly fragmented and restricted to short reaches. Based upon existing habitat use (need for flowing vs. impounded habitats) and fish host (small minnow species with limited individual ranges) data, it is unlikely that recruitment between populations or establishment of new populations could occur naturally.
Although quantitative historical abundance data are rare for rabbitsfoot, relative abundance information can be gathered from museum lots. Historical museum data indicated stable rabbitsfoot populations occurred in the Ohio, Walhonding, Big Sandy, Scioto, Olentangy, Nolin, Wabash, North Fork Vermilion, Obey, Tennessee, White, Black, Spring (White River system), Strawberry, Illinois, Glover and Cossatot Rivers (Butler 2005, p. 20). Call (1895, p. 15) considered the rabbitsfoot “abundant in the St. Francis, Saline, and Ouachita Rivers in Arkansas.”