§ 17.45 - Species-specific rules—snails and clams.

§ 17.45 Species-specific rules—snails and clams.

Cross Reference

Link to an amendment published at 89 FR 48099, June 4, 2024.

(a) Atlantic pigtoe (Fusconaia masoni)—

(1) Prohibitions. The following prohibitions that apply to endangered wildlife also apply to the Atlantic pigtoe. Except as provided under paragraphs (a)(2) and (3) 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) General 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) Possess and engage in other acts with unlawfully taken Atlantic pigtoe, as set forth at § 17.21(d)(2) through (4) for endangered wildlife.

(3) Exceptions from prohibitions for specific types of incidental take. The following entities and activities that cause take that is incidental to an otherwise lawful activity are not in violation of the prohibitions:

(i) Species restoration efforts by State wildlife agencies, including collection of broodstock, tissue collection for genetic analysis, captive propagation, and subsequent stocking into currently occupied and unoccupied areas within the historical range of the species, and follow-up monitoring.

(ii) Channel restoration projects that create natural, physically stable, ecologically functioning streams (or stream and wetland systems) that are reconnected with their 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; a reconnection 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. Streams reconstructed in this way would offer suitable habitats for the Atlantic pigtoe and contain stable channel features, such as pools, glides, runs, and riffles, which could be used by the species and its host fish for spawning, rearing, growth, feeding, migration, and other normal behaviors. Prior to restoration action, surveys to determine presence of Atlantic pigtoe must be performed, and if located, mussels must be relocated prior to project implementation.

(iii) Bank stabilization projects that use bioengineering methods to replace pre-existing, bare, eroding stream banks with vegetated, stable stream banks, thereby reducing bank erosion and instream sedimentation and improving habitat conditions for the species. Following these bioengineering methods, 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). Native vegetation includes woody species appropriate for the region and habitat conditions. These methods do not include the sole use of quarried rock (rip-rap) or the use of rock baskets or gabion structures.

(iv) Forestry-related activities, including silvicultural practices, forest management work, and fire control tactics, that implement State-approved best management practices. In order for this exception to apply to forestry-related activities, these best management practices must achieve all of the following:

(A) Establish a streamside management zone alongside the margins of each waterway.

(B) Restrain visible sedimentation caused by the forestry-related activity from entering the waterway.

(C) Maintain native groundcover within the streamside management zone of the waterway, and promptly re-establish native groundcover if disturbed.

(D) Limit installation of vehicle or equipment crossings of the waterway to only where necessary for the forestry-related activity. Such crossings shall:

(1) Have erosion and sedimentation control measures installed to divert surface runoff away and restrain visible sediment from entering the waterway;

(2) Allow for movement of aquatic organisms within the waterway; and

(3) Have native groundcover applied and maintained through completion of the forestry-related activity.

(E) Prohibit the use of tracked or wheeled vehicles for reforestation site preparation within the streamside management zone of the waterway.

(F) Prohibit locating log decks, skid trails, new roads, and portable mill sites in the streamside management zone of the waterway.

(G) Prohibit obstruction and impediment of the flow of water within the waterway that is caused by direct deposition of debris or soil by the forestry-related activity.

(H) Maintain shade over the waterway similar to that observed prior to the forestry-related activity.

(I) Prohibit discharge of any solid waste, petroleum, pesticide, fertilizer, or other chemical into the waterway.

(b) Morro shoulderband snail (Helminthoglypta walkeriana)—

(1) Prohibitions. The following prohibitions that apply to endangered wildlife also apply to the Morro shoulderband snail. Except as provided under paragraph (b)(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 (4) for endangered wildlife.

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

(iv) Take incidental to an otherwise lawful activity caused by:

(A) Native habitat restoration activities, inclusive of invasive and/or nonnative species removal, conducted by a conservation organization pursuant to a Service-approved management or restoration plan.

(B) Fire-hazard reduction activities implemented by the California Department of Forestry and Fire Protection in accordance with a Service-approved plan within the range of the Morro shoulderband snail.

(v) Possess and engage in other acts with unlawfully taken wildlife, as set forth at § 17.21(d)(2) for endangered wildlife.

(c) [Reserved]

(d)

Texas fawnsfoot (Truncilla macrodon).

(1) Prohibitions. The following prohibitions that apply to endangered wildlife also apply to Texas fawnsfoot. Except as provided under paragraph (c)(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 the Texas fawnsfoot:

(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) Possess and engage in other acts with unlawfully taken Texas fawnsfoot, as set forth at § 17.21(d)(2) for endangered wildlife.

(v) Take incidental to an otherwise lawful activity caused by:

(A) Channel restoration projects that create natural, physically stable, ecologically functioning streams (or stream and wetland systems) that are reconnected with their groundwater aquifers. To qualify for the exception in this paragraph (c)(2)(v)(A), a channel restoration project must satisfy all applicable Federal, State, and local permitting requirements. In addition, at least 30 days prior to commencing actual construction within an area designated as critical habitat for the Texas fawnsfoot (see 50 CFR 17.95(f)), notice must be provided to the Service, through the Austin Ecological Services Field Office, of the location and nature of the proposed work to allow the Service to make arrangements for surveys and potential relocation of any mussels that might be adversely affected. You may obtain field office contact information by contacting one of the Service regional offices, the addresses of which are listed at 50 CFR 2.2.

(B) Bioengineering methods for streambank stabilization using native live stakes (live, vegetative cuttings inserted or tamped into the ground in a manner that allows the stake to take root and grow), native live fascines (live branch cuttings, usually willows, bound together into long, cigar-shaped bundles), or native brush layering (cuttings or branches of easily rooted tree species layered between successive lifts of soil fill). Methods that include the use of quarried rock (riprap) for more than 25 percent of the area within the streambanks or include the use of rock baskets or gabion structures do not qualify for the exception in this paragraph (c)(2)(v)(B). In addition, to reduce streambank erosion and sedimentation into the stream, work using these bioengineering methods qualifies for the exception in this paragraph (c)(2)(v)(B) only if it is performed during base-flow or low-water conditions and when significant rainfall likely to result in significant runoff is not predicted at or upstream of the area where work is proposed for a period of at least 3 days after the work is scheduled to be undertaken. Further, streambank stabilization projects that involve the placement or use of equipment in the stream channels or water do not qualify for the exception in this paragraph (c)(2)(v)(B). To qualify for the exception in this paragraph (c)(2)(v)(B), a project using bioengineering methods must satisfy all applicable Federal, State, and local permitting requirements.

(C) Soil and water conservation practices and riparian and adjacent upland habitat management activities that restore in-stream habitats for the species, restore adjacent riparian habitats that enhance stream habitats for the species, stabilize degraded and eroding stream banks to limit sedimentation and scour of the species' habitats, restore or enhance nearby upland habitats to limit sedimentation of the species' habitats, and comply with conservation practice standards and specifications and with technical guidelines developed by the Natural Resources Conservation Service for application of the affected habitat types. In addition, at least 30 days prior to commencing soil and water conservation practices within an area designated as critical habitat for the Texas fawnsfoot (see 50 CFR 17.95(f)), notice must be provided to the Service, through the Austin Ecological Services Field Office, of the location and nature of the proposed work to allow the Service to make arrangements for surveys and potential relocation of any mussels that might be adversely affected. You may obtain field office contact information by contacting one of the Service regional offices, the addresses of which are listed at 50 CFR 2.2.

(D) Presence or abundance surveys for Texas fawnsfoot conducted by individuals who successfully complete and show proficiency by passing the end-of-course test with a score equal to or greater than 90 percent, with 100 percent accuracy in identification of mussel species listed under the Endangered Species Act, in an approved freshwater mussel identification and sampling course (specific to the species and basins in which the Texas fawnsfoot is known to occur), such as that administered by the Service, a State wildlife agency, or qualified university experts. Those individuals exercising the exemption in this paragraph (c)(2)(v)(D) should provide reports to the Service annually on number, location, and date of collection. The exemption in this paragraph (c)(2)(v)(D) does not apply if lethal take or collection is anticipated. The exemption in this paragraph (c)(2)(v)(D) only applies for 5 years from the date of successful course completion.

(d) Longsolid (Fusconaia subrotunda) and round hickorynut (Obovaria subrotunda).

(1) Prohibitions. The following prohibitions that apply to endangered wildlife also apply to the longsolid and round hickorynut. Except as provided under paragraph (d)(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 these 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 these 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) Conservation and restoration efforts for listed species conducted by State wildlife agencies, including, but not limited to, population monitoring, relocation, and collection of broodstock; tissue collection for genetic analysis; captive propagation; and subsequent stocking into currently occupied and unoccupied areas within the historical range of the species.

(B) Channel and bank restoration projects that create natural, physically stable, ecologically functioning streams (or stream and wetland systems) that are reconnected with their 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; a reconnection of surface and groundwater systems, resulting in perennial flows in the channel; riffles and pools composed of existing soil, rock, and wood instead of large imported materials; low compaction of soils within adjacent riparian areas; and inclusion of riparian wetlands.

(C) Bank stabilization projects that use bioengineering methods to replace pre-existing, bare, eroding stream banks with vegetated, stable stream banks, thereby reducing bank erosion and instream sedimentation and improving habitat conditions for the species. Following these bioengineering methods, 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). Native species vegetation includes woody and herbaceous species appropriate for the region and habitat conditions. These methods will not include the sole use of quarried rock (rip-rap) or the use of rock baskets or gabion structures. Prior to channel restoration and bank stabilization actions, surveys conducted in coordination with the appropriate Service field office to determine presence of longsolid and round hickorynut must be performed, and if located, relocation prior to project implementation may be necessary, with post-implementation monitoring. To qualify under this exemption, channel restoration and bank stabilization actions must satisfy all Federal, State, and local permitting requirements.

(D) Forest management activities that implement State-approved best management practices.

(v) Possess and engage in other acts with unlawfully taken wildlife, as set forth at § 17.21(d)(2) for endangered wildlife.

(e) [Reserved]

(f) “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 (f)(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) Exception s 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 post-implementation of restoration activities.

(B) Silviculture practices and forest management activities that use State-approved best management practices to protect water and sediment quality and stream and riparian habitat.

(C) Transportation projects that avoid or do not include instream disturbance in waters occupied by the species.

(v) Purposeful take that results from capture, handling, and release related to presence/absence surveys, studies to document habitat use, and population monitoring by individuals permitted to conduct these same activities for other species of mussels until January 25, 2024.

(vi) Possess and engage in other acts with unlawfully taken wildlife, as set forth at § 17.21(d)(2) for endangered wildlife.

[86 FR 64034, Nov. 16, 2021, as amended at 87 FR 6077, Feb. 3, 2022; 88 FR 14839, Mar. 9, 2023; 88 FR 41757, June 27, 2023; 89 FR 23940, Apr. 5, 2024; 89 FR 48099, June 4, 2024]