On July 26, 2023, the US Fish and Wildlife Service (USFWS) proposed listing the green floater mussel as threatened and issued a corresponding proposed 4(d) rule and critical habitat designation. The green floater mussel lives in freshwater streams and is considered a native species in 10 eastern states and the District of Columbia. The USFWS’s proposed critical habitat designations in New York State include a portion of the Genesee River and the Susquehanna River Basin.
The 4(d) rule authorizes incidental take, which does not require a permit, only in connection with a limited number of activities. These activities are streambank restoration that utilizes bioengineering methods, such as the use of native plant cuttings, and bridge or culvert replacement or removal projects. The rule is highly prescriptive with respect to both activities, including the use of particular methods for eligible streambank restoration projects, and the need for surveys by a USFWS–approved biologist prior to the commencement of a stream-crossing project.
The listing is likely to impact projects and activities that involve stream crossings within the designated critical habitat as well as discharges from upland activities. Before making a final listing determination, the USFWS will accept comments on the rule, including population trends and threats, additional prohibitions or exceptions for incidental take, and areas designated as critical habitat. Comments on the listing, 4(d) rule, and the areas proposed as critical habitat will be accepted by the USFWS until September 25, 2023.
Barclay Damon’s Environmental Practice Area attorneys will continue to monitor the status of the proposed rule and are available to assist with providing comments.
If you have any questions regarding the content of this alert, please contact Tom Paul, counsel, at tpaul@barclaydamon.com, or another member of the firm’s Environmental Practice Area.