Fish and Wildlife Service Lists Snuffbox and Rayed Bean Mussels to Endangered Species List; Faces Lawsuit Seeking to Add Big Sandy Crayfish

On March 15, 2012, the United States Fish and Wildlife Service (“FWS”) officially added the Snuffbox Mussel (Epioblasma triquetra) and the Rayed Bean Mussel (Villosa fabalis) to the list of endangered species under the Endangered Species Act of 1973.  The species are listed as endangered throughout their ranges. The final rule can be found here, and pictures of the species here.  This listing was brought about in large part because of a lawsuit last year from the Portland, Oregon based Center for Biological Diversity, which sued the FWS in order to force the agency to make a formal listing decision with regard to 374 freshwater species from the Southeast United States. The FWS settled the lawsuit and agreed to make final listing determinations with regard to these species.  

The Rayed Bean Mussel is a small mussel that prefers small headwater streams but is occasionally found in larger rivers.  The mussel currently exists in only 31 streams throughout Michigan, Ohio, New York, Pennsylvania, Indiana, Tennessee and the Elk River in West Virginia.  The mussel was determined to be completely absent from the Elk River and all of West Virginia in the 1990s, but was reintroduced in 2006.  

The Snuffbox Mussel is a uniquely-shaped mussel that spends most of its life buried in river substrate. The snuffbox mussel is currently found in 79 streams throughout 15 states.  In West Virginia, the snuffbox mussels are believed to exist in Middle Island Creek, McElroy Creek, Little Kanawha River, Elk River, and North Fork Hughes River.  Kentucky streams include Tygart Creek, Kinniconick Creek, Licking River, Slate Creek, Middle Fork Kentucky River, Red Bird River, Red River, Rolling Fork Salt River, Green River, and Buck Creek. 

These two mussel species are believed to have become endangered due to the destruction of their historic habitat from impoundments, river dredging and channelization, chemical spills, and water pollution associated with coal mining. The FWS also listed oil and gas production as a likely contributor to the species’ habitat destruction because of large water withdrawals that can de-water mussel beds, increased sediment loads, and lower water quality.  

Now that these species are listed as endangered, the FWS must develop a recovery plan outlining the management actions designed to achieve the recovery of these species. The agency has not determined the critical habitat for these mussel species because the information on the physical and biological features essential for the conservation of these species is not yet known. 

The listing of these species is potentially important to the regulated community because both the Clean Water Act and Surface Mining Control and Reclamation Act (SMCRA), require coordination with the FWS to ensure that endangered species and their habitats are protected. In light of this new listing, the process for securing coal mining permits, water pollution discharge permits, or even oil and gas drilling permits in the watersheds where these species are believed to exist could become lengthier and complicated. 

Could the Big Sandy Crayfish Be Close Behind? 

In other endangered species news, the Center for Biological Diversity recently filed a notice of intent to sue the FWS over the agency’s failure to make a formal listing decision with regard to the Big Sandy Crayfish (Cambarus veteranus).  The Big Sandy Crayfish was among the 374 species involved in the lawsuit and settlement with the FWS mentioned above, but the agency has not yet made a formal listing decision.  The Big Sandy’s historic range includes West Virginia, Kentucky, and Virginia. The notice of intent claims the crayfish’s habitat has declined by 50 to 70 percent and “[t]he remaining habitat of the Big Sandy Crayfish is severely threatened by coal mining activities, interstate highway construction, and logging.  The crayfish cannot survive in areas with impaired water quality and is threatened by pollution from coal fines, septic overflow, and other sources.” 

This article was authored by Aaron S. Heishman, Jackson Kelly PLLC. For more information on the author see here.