[Federal Register Volume 75, Number 55 (Tuesday, March 23, 2010)]
[Proposed Rules]
[Pages 13717-13720]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-6111]



[[Page 13717]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2010-0010]
[MO 92210-0-0008-B2]


Endangered and Threatened Wildlife and Plants; 90-Day Finding on 
a Petition to List the Southern Hickorynut Mussel (Obovaria 
jacksoniana) as Endangered or Threatened

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 90-day petition finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service, announce a 90-day 
finding on a petition to list the southern hickorynut mussel (Obovaria 
jacksoniana) as threatened or endangered under the Endangered Species 
Act of 1973, as amended. Based on our review, we find that the petition 
does not present substantial scientific or commercial information 
indicating that listing the southern hickorynut mussel may be 
warranted. Therefore, we will not be initiating a further status review 
in response to this petition. However, we ask the public to submit to 
us any new information that becomes available concerning the status of, 
or threats to, the southern hickorynut mussel or its habitat at any 
time.

DATES: The finding announced in this document was made on March 23, 
2010.

ADDRESSES: This finding is available on the Internet at http://www.regulations.gov. Supporting documentation we used in preparing this 
finding is available for public inspection, by appointment, during 
normal business hours at the U.S. Fish and Wildlife Service, 6578 
Dogwood View Parkway, Jackson, Mississippi 39213. Please submit any new 
information, materials, comments, or questions concerning this finding 
to the above address.

FOR FURTHER INFORMATION CONTACT: Paul Hartfield at the Jackson, MS, 
Ecological Services Field Office (see ADDRESSES), by telephone (601-
321-1125) or by facsimile to 601-965-4340. If you use a 
telecommunications device for the deaf (TDD), please call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

Petition History

    On October 15, 2008, we received a petition, dated October 9, 2008, 
from WildEarth Guardians, Santa Fe, NM, requesting that the southern 
hickorynut mussel and five other mussel species be listed as threatened 
or endangered under the Act. The petition clearly identified itself as 
such and included the requisite identification information of the 
petitioner required at 50 CFR 424.14(a). In a November 26, 2008, letter 
to the petitioner, we acknowledged receipt of the petition and stated 
that the petition for the six mussel species was under review by staff 
in our Southwest (Region 2) and Southeast (Region 4) Regional Offices. 
Region 2 already addressed 5 of the 6 petitioned species including 
smooth pimpleback, Texas pimpleback, false spike, Mexican fawnsfoot, 
and Texas fawnsfoot, in a separate finding (74 FR 66260; December 15, 
2009). This finding addresses the petition to list the southern 
hickorynut mussel.

Legal Requirements for Petition Review

    Section 4(b)(3)(A) of the Endangered Species Act of 1973, as 
amended (Act) (16 U.S.C. 1531 et seq.), requires that we make a finding 
on whether a petition to list, delist, or reclassify a species presents 
substantial scientific or commercial information to indicate that the 
petitioned action may be warranted. We are to base this finding on 
information provided in the petition, supporting information submitted 
with the petition, and information otherwise available in our files at 
the time the petition is received. To the maximum extent practicable, 
we are to make this finding within 90 days of our receipt of the 
petition, and publish our notice of the finding promptly in the Federal 
Register.
    Our standard for substantial scientific or commercial information 
within the Code of Federal Regulations (CFR) with regard to a 90-day 
petition finding is, ``that amount of information that would lead a 
reasonable person to believe that the measure proposed in the petition 
may be warranted'' (50 CFR 424.14(b)). If we find that substantial 
information was presented, we are required to promptly commence a 
review of the status of the species (status review), which is 
subsequently summarized in a 12-month finding.
    We base this finding on information provided by the petition that 
we determined to be reliable after reviewing sources referenced in the 
petition and information available in our files at the time of the 
receipt of the petition. We have been accumulating information on 
mussel species of concern, including the southern hickorynut, for a 
number of years ; therefore, we have considerable information in our 
files regarding this species. We evaluated all information in 
accordance with 50 CFR 424.14(b). Our process for making this 90-day 
finding under section 4(b)(3)(A) of the Act and 50 CFR 424.14(b) of our 
regulations is limited to a determination of whether the information in 
the petition meets the ``substantial information'' threshold.

Species Information

    The southern hickorynut is a medium-sized mussel growing to 55 
millimeters (2 inches) in length. The shell is moderately thick, 
smooth, and oval to subtriangular in shape; the beaks are raised above 
the hinge line. Shell color is brown to black, sometimes with dark 
green rays. The interior of the shell is white in color, iridescent 
along the margin; the beak cavity is moderately deep. For a more 
detailed description, see Williams et al. 2008, p. 463. The southern 
hickorynut can be confused with the Alabama hickorynut (Obovaria 
unicolor), the ovate clubshell (Pleurobema perovatum), and the black 
clubshell (P. curtum) in the Mobile River drainage (Williams et al. 
2008, p. 464); the Ouachita creekshell (Villosa arkasasensis) in the 
Ouachita and White river drainages (WildEarth Guardians 2008, p. 10; 
NatureServe 2008); and round hickorynut (Obovaria subrotunda) in the 
Lower Mississippi River drainage (Hartfield and Ebert 1986, p. 23; 
Hartfield and Rummel 1985, p. 118). Taxonomic problems with 
identification of the species have been recently noted. Phylogenetic 
analysis suggests that Ouachita creekshell (Villosa arkansasensis) may 
be the same species as the southern hickorynut (Inoue et al. 2008, 
unpaginated). It has also been suggested that populations of southern 
hickorynut from the east and west sides of the Mississippi river may be 
taxonomically distinct (Inoue et al. 2008, unpaginated).
    The southern hickorynut is found in small streams to large rivers 
in stable sand and gravel substrates, and in slow to moderate currents 
(Williams et al. 2008, p. 464). Fish hosts for the species are unknown.
    The southern hickorynut is widely distributed in streams of the 
Gulf Coastal plain from the Mobile River Basin west to the Neches River 
in Eastern Texas (Williams et al. 2008, p. 464), and north into 
Arkansas, Oklahoma, southeastern Missouri, and western Tennessee 
(NatureServe 2008). The species occurs sporadically within this area. 
Known drainage populations

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include the Buttahatchee and East Fork Tombigbee Rivers and Yellow 
Creek (Mississippi), and the Sipsey River and Lubbub Creek (Alabama) in 
the Mobile River drainage (Williams et al. 2008, p. 464); the Big 
Black, Bayou Pierre, and Pascagoula Rivers in Mississippi, the Pearl 
River in Mississippi and Louisiana, and the Amite River in Mississippi 
and Louisiana (Hartfield and Ebert 1986, p. 23; Hartfield and Rummel 
1985, p. 118; Jones et al. 2005, p. 90; NatureServe 2008); the Tickfaw, 
Tangipahoa, Tensas, Boeuf, Ouachita, Dugdemona, Little, Cane, Sabine, 
and Neches Rivers, and Bayou Dorcheat and Kisatchie Bayou in Louisiana 
(Vidrine 1993, p. 207); the South Fourche LaFave, Strawberry, Arkansas, 
Ouachita, and White river systems in Arkansas (Harris et al. 1997, pp. 
80-81; NatureServe 2008); the Kiamichi, Little, Mountain Fork, and 
Glover Rivers in Oklahoma (NatureServe 2008); the Neches River drainage 
in Texas (Howells et al. 1996, p. 86); the Hatchie River of west 
Tennessee (Parmalee and Bogan 1998, p. 163); and the Whitewater River 
and Cane Creek in Missouri (Oesch 1984, p. 162).
    Status of the species in most historically occupied stream 
drainages is poorly known, but the southern hickorynut is apparently 
extirpated from the Cahaba River, Alabama (McGregor et al. 2000, p. 
230), and the Saint Francis and Black Rivers, Missouri (NatureServe 
2008). It is likely extirpated from the mainstem Tombigbee River in 
Alabama and Mississippi (e.g., McGregor and Garner 2001, p. 7), and the 
mainstem Alabama River in Alabama (e.g., Hartfield and Garner 1998, p. 
15). The southern hickorynut is considered uncommon to rare in all 
States where it occurs; however, status is poorly known and threats 
have not been adequately assessed (NatureServe 2008). The species is 
reported as locally common in the Ouachita River and tributaries in 
Arkansas (Anderson 2006, p. 971), and Vidrine (2008, p. 127) notes the 
species is common in Kisatchie Bayou and in numerous streams of the 
Calcasieu River in Louisiana.

Five-Factor Analysis

    Section 4 of the Act (16 U.S.C. 1533), and its implementing 
regulations at 50 CFR 424, set forth the procedures for adding species 
to the Federal List of Endangered and Threatened Wildlife and Plants. A 
species may be determined to be an endangered or threatened species due 
to one or more of the five factors described in section 4(a)(1) of the 
Act: (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) inadequacy of existing regulatory mechanisms; 
or (E) other natural or manmade factors affecting its continued 
existence.
    In making this 90-day finding, we evaluated whether information 
regarding the southern hickorynut, as presented in the petition and 
other information available in our files, is substantial, thereby 
indicating that the petitioned action may be warranted. Our evaluation 
of this information is presented below.
A. The Present or Threatened Destruction, Modification, or Curtailment 
of the Species' Habitat or Range
    The petition asserts that the range of the southern hickorynut is 
declining, especially in Louisiana, and that it has been extirpated 
from two sites in Alabama (WildEarth Guardians 2008, pp. 11-12). The 
petition asserts that the southern hickorynut is declining at a short-
term global rate of 10 to 30 percent, and is threatened by loss of 
habitat (WildEarth Guardians 2008, pp. 11-12) attributed to 
sedimentation, channelization, impoundment, sand and gravel mining, and 
chemical runoff (WildEarth Guardians 2008, pp. 21-26).
Evaluation of Information in the Petition and Our Files
    The southern hickorynut continues to be reported throughout its 
geographical range, which includes Mississippi, Alabama, Oklahoma, 
Missouri, Texas, Tennessee, and Louisiana (NatureServe 2008, WildEarth 
Guardians 2008, pp. 11-12). There is evidence that some population 
segments have become extirpated in the Mobile River Basin. For example, 
the species has not been collected in the Cahaba River since 1973, 
apparently due to historical episodes of water quality degradation 
(McGregor et al. 2000, p. 230); and surveys in recent years have also 
failed to locate southern hickorynut in the Alabama River (Hartfield 
and Garner 1998, p. 15) or the mainstem Tombigbee River (Hartfield and 
Jones 1989, p. 10; McGregor and Garner 2001, p. 7), which have been 
impounded and channeled for navigation. However, there are several 
population segments of southern hickorynut known to persist in the 
Mobile River Basin that were not recognized in the petition, including 
the Buttahatchee and East Fork Tombigbee Rivers and Yellow Creek in 
Mississippi, the Sipsey River and Lubbub Creek in Alabama, and Bayou 
Pierre in Mississippi (Hartfield and Ebert 1986, p. 23; Williams et al. 
2008, p. 464, McGregor and Haag 2004, p. 22).
    The petition specifically notes a decline in the abundance and 
range of southern hickorynut in Louisiana (WildEarth Guardians 2008, p. 
11). based on the NatureServe (2008) account of , suspected 
extirpations from most historically occupied streams in Louisiana, and 
a conclusion that the species is uncommon to rare throughout its range 
(WildEarth Guardians 2008, p. 11).
    NatureServe (2008) reports that occurrences of the species have 
declined from 16 streams in Louisiana (Vidrine 1993, p. 207), to only 
two streams, based on a publication by Brown and Banks (2001, p. 195). 
Information in our files does not support this assertion. Brown and 
Banks (2001, p. 195), surveyed only portions of 3 of the 16 streams 
referenced by Vidrine's comprehensive report (1993, p. 207). There is 
no information presented in NatureServe, the petition, or in our files 
to document that the southern hickorynut has declined or become 
extirpated from any of the other 13 streams cited by Vidrine (1993) as 
occupied by the species. Rather, information in our files includes a 
recent report that the southern hickorynut is considered common in 
Kisatchie Bayou as well as in numerous streams of the Calcasieu River 
in Louisiana (Vidrine 2008, p. 127). This report, as well as an account 
that the species is locally common in the Ouachita River and 
tributaries in Arkansas (Anderson 2006, p. 971), contradicts the 
petition assertion that the species is uncommon to rare throughout its 
range.
    Therefore, the information provided by the petition, along with 
NatureServe records, appears to reflect a lack of recent survey effort 
and information on the status of the southern hickorynut throughout 
most of its range rather than the documentation of a range-wide 
decline. While there is evidence that the species has been locally 
extirpated from some historical collection sites, information in our 
files indicates the southern hickorynut continues to persist throughout 
most of its historical range.
    The petition provides general information and references on impacts 
of sand and gravel mining to freshwater mussels and other invertebrates 
(e.g., WildEarth Guardians 2008, pp. 21-22, citing National Marine 
Fisheries Service 1996, Brim Box and Mossa 1999, pp. 103-104; Roell 
1999). Information in our files document past events of instream sand 
and gravel mining in the Amite and Tangipahoa Rivers in

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Louisiana, and stream capture by floodplain mines in the Buttahatchee 
River in Mississippi, along with detrimental effects to the mussel 
communities in those streams (Hartfield 1993, pp. 135-138). The decline 
in abundance of southern hickorynut in the Buttahatchee River, however, 
occurred prior to stream capture by the mines and was attributed to 
geomorphic effects from the construction of the Tennessee-Tombigbee 
Waterway, and/or sedimentation from headwater kaolin mines (Hartfield 
and Jones 1990, pp. 22-24). The kaolin mines that were the suspected 
source of sedimentation in the Buttahatchee have since been stabilized, 
sand and gravel mining is now regulated and Best Management Practices 
have been developed and implemented to protect water and habitat 
quality (e.g., Louisiana Department of Environmental Quality 2007). 
Neither the petition nor our files contain any site-specific threats to 
the southern hickorynut from current sand and gravel mining activities.
    The petition provides general information and references on impacts 
of dredging and channelization to freshwater mussels (e.g., WildEarth 
Guardians 2008, pp. 22-23, citing Aldridge 2000, p. 247), but no 
information on activities conducted within streams occupied by the 
southern hickorynut. Information in our files suggests channelization 
has impacted mussel faunas in areas known to be occupied by the 
southern hickorynut in the Big Black, Yazoo, and Buttahatchee Rivers, 
and Luxapalila Creek in Mississippi (Hartfield 1993, pp. 132-138); 
however, the southern hickorynut continues to persist in these 
drainages. Although there has been a documented decline from historical 
population levels in the Buttahatchee River (Hartfield and Jones 1990, 
pp. 22-24), the primary causes of the decline have been stabilized, and 
this population segment of southern hickorynut has continued to persist 
over the past two decades. We have no information that any additional 
channel work is planned for these streams, and the petition does not 
contain any site-specific threats to southern hickorynut from dredging 
and channelization.
    The petition provides general information and references on impacts 
of impoundment to freshwater mussels (e.g., WildEarth Guardians 2008, 
pp. 23-24, citing Burlakovaa and Karatayev 2007, pp. 290-291; Vaughn 
and Taylor 1999, p. 912; Watters 1999, pp. 261and 268); however, the 
petition provides no information specific to the streams occupied by 
the southern hickorynut. Information in our files suggests impoundment 
contributed to the apparent extirpation of southern hickorynut from the 
mainstem Tombigbee and Alabama Rivers (e.g., Hartfield and Jones 1989, 
p. 10; Hartfield and Garner 1998, p. 15). However, we have no 
information on threats of impoundment to streams currently occupied by 
southern hickorynut.
    The petition notes the harmful effects of water fluctuation in 
impoundments to mollusk fauna inhabiting reservoirs (WildEarth 
Guardians 2008, p. 24). The southern hickorynut is not known to 
currently or historically inhabit any impounded areas, so this is not a 
historical or current documented threat to the species.
    The petition provides general information and references on impacts 
of excessive sediments to freshwater mussels (WildEarth Guardians 2008, 
pp. 24-25). The petition notes the contribution of activities such as 
logging, agriculture, ranching, mining, urban development, and 
construction activities to excessive sediment rates in some streams, 
along with the potential impacts of excessive sediments on freshwater 
mussel communities. However, the petition does not provide, nor do our 
files contain, any specific evidence of detrimental rates of 
sedimentation to any southern hickorynut mussel population segment.
    The petition states that pollutants pose a threat to the hickorynut 
(WildEarth Guardians 2008, p. 12); however, the petition provides only 
general information and references on impacts of contaminants and 
polluted runoff to freshwater mussels (WildEarth Guardians 2008, pp. 
25-26, citing Foster and Bates 1978, p. 958). No information is 
provided, nor are we currently aware of information on, any specific 
contaminant or pollution threats to the southern hickorynut in the 
stream drainages known to be occupied by the species.
    In summary, we find that the information provided in the petition, 
as well as other information in our files, does not present substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted due to the present or threatened destruction, 
modification, or curtailment of the species' habitat or range, 
especially given its continued persistence in seven States and numerous 
stream drainages, information that it is locally common in Louisiana 
and Arkansas, and in the absence of documented threats to habitat or 
range of extant populations.
B. Overutilization for Commercial, Recreational, Scientific, or 
Educational Purposes
    The petition did not provide any information concerning this 
factor. Information in our files shows that mussels have historically 
been, and continue to be, commercially exploited for their shells in 
some States; however, southern hickorynut is not considered a 
commercial species and has little value in commerce. Additionally, all 
States within the range of the southern hickorynut either regulate or 
restrict mussel harvest. For example, the State of Mississippi is 
closed to any mussel harvest, and the State of Alabama prohibits mussel 
harvest in streams currently known to be occupied by the southern 
hickorynut. All States within the range of the hickorynut require 
permits to take mussels for scientific purposes. Therefore, there is no 
evidence that overutilization is a threat to southern hickorynut.
C. Disease or Predation
    The petition did not provide any information concerning this 
factor. Information in our files indicates that disease in freshwater 
mussels is poorly known, and there is no evidence of disease in any 
population of southern hickorynut. Freshwater mussels are consumed by 
various vertebrate predators, including fishes, mammals, and possibly 
birds. Predation by naturally occurring predators is a normal aspect of 
the population dynamics of a mussel species and is not known to be a 
threat to any of the existing populations of the southern hickorynut. 
Therefore, there is no information provided in the petition, or other 
information in our files, that presents substantial scientific or 
commercial information indicating that the petitioned action may be 
warranted due to disease or predation.
D. The Inadequacy of Existing Regulatory Mechanisms
    The petition asserts that the southern hickorynut is not protected 
under any existing Federal or State Law, and therefore, current 
regulatory mechanisms are inadequate for conservation. The petition 
references the need to protect mussels from commercial harvest.
Evaluation of Information in the Petition and Our Files
    Contrary to the assertion in the petition, the southern hickorynut 
is identified as a species of conservation concern in all States where 
it occurs. This recognition extends some level of consideration under 
State and Federal

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environmental laws when project impacts are reviewed. Although, current 
State and Federal regulations regarding pollutants are generally 
assumed to be protective of freshwater mollusks, we do have information 
to indicate that some pollutant standards may not be protective for 
freshwater mussels (e.g., Augspurger et al. 2007, p. 2026). However, 
there is no information in our files to suggest specific pollution 
threats to the southern hickorynut in any specific area, and the 
petition provided no information to support the assertion therein that 
existing regulatory mechanisms are inadequate to protect the species. 
Furthermore, as noted under Factor B, above, the southern hickorynut is 
not considered a commercial species, has little value in commerce, and 
all States within the range of the southern hickorynut either regulate 
or restrict mussel harvest.
    In summary, we find that the information provided in the petition, 
as well as other information in our files, does not present substantial 
scientific or commercial information indicating that the petitioned 
action may be warranted due to the inadequacy of existing regulations.
E. Other Natural or Manmade Factors Affecting the Species' Continued 
Existence
    The petition asserts that fragmentation of freshwater mussel stream 
habitat makes mussel species more vulnerable to droughts and floods 
attributed to climate change (e.g., WildEarth Guardians 2008, p. 27, 
citing Hamlet and Lettenmaier 2007, p. 43).
Evaluation of Information in the Petition and Our Files
    The petition provided no information on habitat fragmentation or 
changes in the frequency of droughts and floods within the range of the 
southern hickorynut, or on specific detrimental effects of habitat 
fragmentation, droughts, or floods to the hickorynut. Information in 
our files documents mollusk declines within small perennial streams 
that have lost flow as a direct result of drought (for example, 
Golladay et al. 2004, p. 494; Haag and Warren 2008, p. 1165). However, 
most recent site records of the southern hickorynut are from medium to 
large perennial stream channels (e.g., the Big Black, Buttahatchee, 
Amite, Pearl, Tickfaw, Neches, Arkansas, White, Ouachita, and Hatchie 
Rivers) that are less susceptible to total loss of flow by drought. In 
addition, the wide distribution of the species reduces its 
vulnerability to extinction due to local stochastic threats. Therefore, 
information provided by the petition and in Service files does not 
indicate or document a threat to southern hickorynut mussels due to 
drought or floods.

Finding

    We have reviewed the petition and supporting information provided 
with the petition and evaluated that information in relation to other 
pertinent literature and information, and we have evaluated the 
information to determine whether the sources cited support the claims 
made in the petition. We recognize that many freshwater mussel species 
are experiencing declines in both range and population abundances due 
to the generalized threats identified by the petition. However, review 
of the information provided in the petition and in our files indicates 
that this species is not declining range-wide.
    In considering what factors might constitute threats, we must look 
beyond the mere exposure of the species to the factor to determine 
whether the species responds to the factor in a way that causes actual 
impacts to the species. If there is exposure to a factor, but no 
response, or only a positive response, that factor is not a threat. If 
there is exposure and the species responds negatively, the factor may 
be a threat and we then attempt to determine how significant a threat 
it is. If the threat is significant, it may drive or contribute to the 
risk of extinction of the species such that the species may warrant 
listing as threatened or endangered as those terms are defined by the 
Act. This does not necessarily require empirical proof of a threat. The 
combination of exposure and some corroborating evidence of how the 
species is likely impacted could suffice. The mere identification of 
factors that could impact a species negatively may not be sufficient to 
compel a finding that listing may be warranted. The information shall 
contain evidence sufficient to suggest that these factors may be 
operative threats that act on the species to the point that the species 
may meet the definition of threatened or endangered under the Act. We 
found no information to suggest that threats are acting on the southern 
hickorynut such that the species may become extinct now or in the 
foreseeable future.
    Based on this review and evaluation, we find that the petition does 
not present substantial scientific or commercial information to 
indicate that listing the southern hickorynut under the Act as 
threatened or endangered may be warranted at this time. Although we 
will not commence a status review at this time, we encourage interested 
parties to continue to gather data that will assist with the 
conservation of the species. If you wish to provide information 
regarding the species, you may submit your information or materials to 
the Field Supervisor, Mississippi Ecological Services Field Office (see 
ADDRESSES section) at any time.

References Cited

    A complete list of references cited is available on the Internet at 
http://www.regulations.gov and upon request from the Mississippi 
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

Author

    The primary author of this notice is Paul Hartfield (see 
ADDRESSES).

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: March 9, 2010.
Daniel M. Ashe,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2010-6111 Filed 3-22-10; 8:45 am]
BILLING CODE 4310-55-S