United States Department of the Interior

FISH AND WILDLIFE SERVICE 110 South Amity Road, Suite 300 Conway, Arkansas 72032 IN REPLY REFER TO: Tel.: 501/513-4470 Fax: 501/513-4480

March 10, 2015

Mr. John Fleming Division Head, Environmental Division c/o Mr. Josh Seagraves Arkansas State Highway and Transportation Department P.O. Box 2261 Little Rock, Arkansas 72203-2261

Dear Mr. Fleming:

This document transmits the United States Fish and Wildlife Service’s (Service) biological opinion (BO) based on our review of: 1) the Federal Highway Administration (FHWA) and the Arkansas State Highway and Transportation Department (AHTD) proposal and Biological Assessment (BA) regarding plans to replace the bridge at the Highway 41 crossing of the Little River in Sevier and Little River Counties, Arkansas; 2) its effects to the potential adverse effects to the Ouachita Rock Pocketbook (ORP; Arkansia wheeleri), Rabbitsfoot (Quadrula cylindrica cylindrica); and 3) its effects to proposed critical habitat for Rabbitsfoot. This BO has been prepared pursuant to section 7 of the Endangered Species Act of 1973 (Act), as amended (16 U.S.C 1531 et seq.), and implementing regulations (50 Code of Federal Regulations (CFR) §402).

Section 7(a)(2) of the Act requires federal agencies to consult with the Service to ensure any action authorized, funded, or carried out is not likely to jeopardize the continued existence of any federally listed species nor destroy or adversely modify critical habitat. This BO is based on the best available scientific and commercial data including meetings, electronic mail and telephone correspondence with FHWA and AHTD officials, Service files, pertinent scientific literature, discussions with recognized species authorities, and other scientific sources. A complete administrative record is on file at the Arkansas Ecological Services Field Office in Conway, Arkansas.

CONSULTATION HISTORY

In a letter dated January 14, 2015, FHWA and the AHTD provided the Biological Assessment of potential impacts to the ORP as a result of the proposed project. The letter stated that the proposed project may adversely affect ORP, therefore the Federal Highway Administration and the Arkansas State Highway and Transportation Department wish to enter into formal consultation under Section 7(a)(2) of the Endangered Species Act.

On February 3, 2015, the Service received AHTD’s amendment to the Biological Assessment requesting the inclusion of Rabbitsfoot within the consultation.

On March 2, 2015, the Service provided to the AHTD a copy of the draft BO for its review and comment. The AHTD provided comments on the draft BO on March 4, 2015. The Service issued its final BO on March 10, 2015, concluding formal consultation.

BIOLOGICAL OPINION

DESCRIPTION OF PROPOSED ACTION

As defined in the Service’s section 7 regulations (50 CFR 402.02), “action” means “all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas.” The “action area” is defined as “all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action.” The direct and indirect effects of the actions and activities must be considered in conjunction with the effects of other past and present Federal, State, or private activities, as well as the cumulative effects of reasonably certain future State or private activities within the action area.

The AHTD plans to replace the bridge at the Highway 41 crossing of the Little River in Sevier and Little River Counties, Arkansas. This bridge has been deemed structurally deficient. The new bridge will consist of 23 trestle bents constructed of 18’ square pre- stressed concrete piers. The total project length is 0.91 miles.

This project is located in the flood plains and low terraces of the South Central Plains Ecoregion (Woods et al. 2004) and in the 10-digit HUC 1114010901 headwaters of the Little River (reference watersheds.cast.uark.edu). According to the 2006 Land Use Land Cover data, forest is the predominant land use at 70.1% followed by herbaceous and pasture at 12.7% and 12.2% respectively. Alterations to the Little River include the impoundment of a major tributary, Mountain Fork River, to create Broken Bow Lake in the 1960’s. Hydroelectric generation release creates fluctuating river levels of 1-3 feet daily. Downstream, Millwood Lake impounds as much as 95,200 acres for flood control purposes. Millwood Lake was constructed between 1961 and 1966 and was authorized by the Flood Control Acts of 1946 and 1958. Figure 1 illustrates the limits of the proposed project. The project area includes replacement of a 1980’ bridge and approaches on Highway 41 approximately 2.5 miles southwest of Horatio in Little River and Sevier Counties, Arkansas (Figure 2). The project will be constructed on new rights- of-way (The new construction will be placed in a new ROW directly adjacent to the existing ROW).

An initial time constrained (qualitative) survey on July 23, 2013, found a relict shell of a Rabbitsfoot. This initial find prompted USFWS to request further quantitative sampling. Quantitative sampling took place on August 12-13, 2014, which resulted in the collection of a single ORP. FHWA requested that the Service begin the formal consultation process

under the ESA for potential impacts to the endangered ORP and the threatened Rabbitsfoot.

Construction and Best Management Practices (BMPs)

The project is scheduled to be let in 2016. Work orders are typically issued the month following the letting date. It has been estimated that this project will take 2.5 years to complete.

The proposed work is on a new location which will involve clearing new rights-of-way. This will involve removal of trees and vegetation along with grading and compacting surface. Clearing, grubbing, or any other disturbance of vegetation on the stream banks shall be limited to the minimum necessary for the completion of the project.

Petroleum products from improperly maintained construction equipment and storage areas can make its way into receiving streams if preventative measures are not properly followed. Staging areas will be sited to minimize the potential for such contamination.

In-stream work includes the construction of bridge piers and footing, as well as, the demolition and removal of the existing bridge and piers. Four temporary work roads will be constructed on either side of the river to facilitate construction and demolition (Figure 4). A total of 2,658 cubic yards of fill will be temporary placed below the ordinary high water mark for construction of these roads. Temporary culverts to sufficiently maintain low stream flows and assist the passage of aquatic life will also be provided. Following bridge construction, a layer of rip-rap will be placed between the bridge ends and the bridge piers located within the channel to prevent scour.

Temporary impacts to water quality are common during highway construction activities. These impacts can be lessened with the proper implementation of erosion control BMPs. All efforts to reduce and limit adverse effects to water quality will be implemented.

All disturbed areas will be permanently seeded. All areas must meet coverage requirements outlined in the NPDES permit.

No changes are expected to the operation of the highway following the construction.

The project is designed to replace the bridge with a modern structure; therefore, routine maintenance activities to the infrastructure should decrease. Maintenance activities, such as mowing, herbicide application, de-icing etcetera should not change.

Figure 1 Design

Figure 2 Project Location

ACTION AREA

Informal consultation led to the determination that the directly affected action area affecting ORP and Rabbitsfoot will include an area within the Little River 100 feet upstream from limits of construction to an area 300 feet downstream from the limits of construction. Figure 3 illustrates the extent of the mussel “bed” within the directly affected Action Area and dive locations. Figure 1 illustrates the construction limits and new bridge placement center line.

The Service further assesses the indirectly affected action area related to ORP and Rabbitsfoot to include the Little River from the end of the directly affected action area to 500 ft. upstream and downstream to the confluence with Millwood Lake. This additional action area allows the Service to take into consideration the fact that the effects associated with the proposed action are likely to occur in the area shown in Figure 3, but may extend downstream further than anticipated due to a lack of information pertaining to potential alterations to stream geomorphology and/or downstream sediment transport. Assessment of the complete action area will provide meaningful analysis of any other direct, indirect, or cumulative effects that could result from the proposed action.

Figure 3 Dive Locations

STATUS OF THE SPECIES/CRITICAL HABITAT

Species/ habitat description

Endangered Species – Ouachita Rock Pocketbook (ORP; Arkansia wheeleri)

The ORP is a freshwater mussel endemic to the Red River basin (Little, Kiamichi, and Ouachita rivers) in Arkansas, Oklahoma, and Texas. The Service listed the ORP as endangered in 1991 (Federal Register 56:54950-54957), without critical habitat.

Status and distribution in Arkansas

Gordon and Harris (1983) collected relict shells of ORP from the Little River in Arkansas, just west of Arkansas Highway 41 and 6.4 km (4.0 miles) northwest of U.S. Highway 59/71, both sites located along the boundary between Little River and Sevier Counties. Clarke (1987) found a small number of live individuals in a 1 km (0.7 river mile) reach of the Little River running east from the Oklahoma-Arkansas state line, Little River and Sevier Counties. He believed the species might exist through a defined section of about 8 km (5 river miles) extending east from the state line. Clarke (1987) estimated the Little River population to be less than 100 individuals. In the Arkansas portion of their survey, Vaughn et al. (1995) found an ORP shell approximately 6.5 km (4 river miles) east of the Oklahoma-Arkansas state line, Little River and Sevier Counties, in 1994.

The Service and Arkansas Game and Fish Commission (AGFC) conducted additional mussel surveys in the Little River during 2006 and 2008. They systematically surveyed 14 sites between Millwood Reservoir and the Arkansas - Oklahoma State Line (~ 56 rkm) and found 28 species. The number of species per site ranged from 7 to 22 with a mean of 14.7. One live and two dead ORP were encountered during the survey. Quantitative sampling of one large mussel assemblage occupying 15,525 m2 and containing live ORP resulted in collection of 1,067 individuals representing 21 species. The ORP population estimate was 420 ± 730, and the mussel community numerical standing crop estimate was 447,404 ± 73,065 (B. Posey, AGFC, pers. comm. 2008).

In July, 2013 and August, 2014, Josh Seagraves with AHTD performed surveys to assess potential impacts to threatened and endangered species at the HWY 41 bridge crossing. In the 2013 survey, 277 mussels representing 21 species were collected in 106 minutes of search time (Table 1). No living listed species were collected; however, one relict shell of a Rabbitsfoot was collected. In the 2014 survey, 326 mussels representing 21 species were collected within 31 meter squared quadrat quantitative sampling (Table 2). A single ORP was collected within the proposed placement of the new bridge footprint (Figure 3).

Life history

Biological information specific to this species is sparse, but general information known about other freshwater mussels applies to this taxon.

Food habits – Adult freshwater mussels have long been considered suspension-feeders, siphoning phytoplankton, diatoms, and other microorganisms from the water column (Fuller 1974). Recent evidence emphasizes the importance of the uptake and assimilation of detritus and bacteria over that of algae to riverine mussels (Silverman et al. 1997; Nichols and Garling 2000). It also has been surmised that dissolved organic matter may be a significant source of nutrition (Strayer et al. 2004). Their diet may more accurately consist of a mixture of algae, bacteria, detritus, and microscopic animals. Such an array of foods containing essential long-chain fatty acids, sterols, amino acids, and other biochemicals may be necessary to supply total nutritional needs (Strayer et al. 2004). For their first several months, juvenile mussels employ foot (pedal) feeding and are thus deposit feeders, although they may also filter interstitial pore water (Yeager et al. 1994). Ongoing propagation efforts for ORP have further documented the importance of fine sediments and pedal feeding for this species (Barnhart 2010; P. Johnson, ADCNR, pers. comm. 2011).

Growth and longevity – Growth rates for mussels tend to be relatively rapid for the first few years (Chamberlain 1931; Scruggs 1960; Negus 1966) then slow appreciably (Bruenderman and Neves 1993; Hove and Neves 1994). The relatively abrupt slowing in growth rate occurs at sexual maturity, probably as a result of energy being diverted from growth to gamete production (Baird 2000). Growth rates vary among species; heavy-shelled species grow slowly relative to thin-shelled species (Coon et al. 1977; Hove and Neves 1994). No quantitative information on the longevity of ORP is available.

Reproductive biology – Reproductive anatomy is likely similar to other members of the subfamily Anodontinae, as discussed by Ortmann (1912). Seagraves (2006) and Barnhart (2010) provide the most detailed description of ORP reproductive biology (host fish, glochidia description, etc). ORP glochidia have very long stylets (hooks) used to attach to fish fins, tails, scales, or gills.

Sex ratios in mussels generally do not differ significantly from 1:1. Age at sexual maturity for the ORP is unknown. Males expel clouds of sperm into the water column, which are drawn in by females through their incurrent siphons. Fertilization takes place internally, and the resulting zygotes develop into specialized larvae termed glochidia within the female’s gills. Fertilization success is apparently influenced by mussel density and flow conditions (Downing et al. 1993). This potentially indicates that small populations occurring in low flow streams (or in streams experiencing drought conditions during the reproductive period) may experience reduced fertilization rates.

From parasitic glochidia to free-living juveniles – The larvae of the family Unionidae are specialized for a parasitic existence, and referred to as glochidia. Glochidia generally spend from two to six weeks parasitizing the host fish, the duration of encystment being dependent on the mussel species and water temperature (Zimmerman and Neves 2002). Newly-metamorphosed juveniles drop off to begin a free-living existence on the stream bottom. They must drop into suitable habitat or they will die.

Previous Incidental Take Authorizations

Prior formal consultations involving ORP include incidental take permits issued pursuant to section 10(a)(1)(A) of the Act to individuals conducting surveys or research. Take associated with these activities are exempted under section 7 of the Act and a programmatic BO for freshwater mussels in the Service’s southeast region. The aforementioned BO exempts the following level of take for ORP.

The Service anticipates that approximately two to five adult specimens per hundred may be incidentally injured or killed as a result of capture and handling associated with recovery actions authorized under section 10(a)(1)(A). A great number of adults will be affected by authorized recovery activities; we do not, however, anticipate in most instances the effects of such activities will result in injurious or lethal take. This is because the Service restricts authorization to implement such activities to qualified individuals. As a result, the occurrence of injurious or lethal incidental take should be rare.

Temporary retention of gravid adults will result in incidental mortality of glochidia and juvenile mussels. The Service anticipates mortality of glochidia and juveniles of up to 100 percent in any given activity. Currently, such mortality is not considered in the permit language, nor in our decision documents supporting a permit.

Given the existing state of the art for rearing mussels in captivity, high mortality rates for glochidia and juveniles can be expected for some time. The Service and recovery cooperators are working to reduce mortality and increase the number of glochidia that are transformed to juveniles, but there will always be some glochidia that are lost. Advantage can be taken of these specimens by utilizing some of the glochidia that die, or are excess to research needs, for taxonomic and genetic studies. There can also be substantial mortality of juvenile mussels and these specimens should also be considered for genetic studies. Glochidial and juvenile genetic material could conceivably reduce or eliminate the need to sacrifice adults for genetic study in the future. Therefore, all future activities that involve retention of gravid mussel specimens will be conditioned to require the collection and archiving of representative glochidia and juveniles for use in taxonomic, genetic, or other recovery-related studies. Disposition of these specimens will be specified for public collections available to interested researchers.

The Service provided a BO to the U.S. Army Corps of Engineers – Little Rock District (Corps) in 2011 regarding the proposed construction of a bypass pipeline and valve assembly at Millwood Lake Dam, Hempstead County, Arkansas, to maintain Little River flows while facilitating dam maintenance activities on the stilling basin and other structures immediately below the dam and the potential adverse effects to the ORP.

Threatened Species - Rabbitsfoot (Quadrula cylindrica cylindrica)

Rabbitsfoot was listed as threatened under the Act on September 17, 2013 (78 Federal Register 57076). The Service proposed to designate critical habitat for Rabbitsfoot on October 16, 2012 (77 FR 63440) and a final determination is pending. There is no recovery plan for Rabbitsfoot at this time. The recovery outline was approved September 3, 2013 (Service 2013). A programmatic Safe Harbor Agreement for Rabbitsfoot populations in the Ouachita, Saline, and Caddo River headwaters is currently being reviewed by the Service.

Critical Habitat

Unit RF6 includes 139.7 rkm (86.8 rmi) of the Little River from the Glover River confluence northwest of Idabel, McCurtain County, Oklahoma, downstream to U.S. Highway 71 north of Wilton, Little River and Sevier Counties, Arkansas. This unit was occupied at the time of listing and contains all or some components of all five physical or biological features (PBF) and contains all five primary constituent elements (PCE). The PBFs in this unit may require special management considerations or protections to address changes described above. Adjacent riparian lands in this unit are in private ownership (42 percent), Federal (35 percent), and private land under tribal jurisdiction (23 percent). Within this area, the primary constituent elements of the physical and biological features essential to Rabbitsfoot conservation consist of five components:

1. Geomorphically stable river channels and banks (channels that maintain lateral dimensions, longitudinal profiles, and sinuosity patterns over time without an aggrading or degrading bed elevation) with habitats that support a diversity of freshwater mussel and native fish (such as stable riffles, sometimes with runs, and mid-channel island habitats that provide flow refuges consisting of gravel and sand substrates with low to moderate amounts of fine sediment and attached filamentous algae).

2. A hydrologic flow regime (the severity, frequency, duration, and seasonality of discharge over time) necessary to maintain benthic habitats where the species are found and to maintain connectivity of rivers with the floodplain, allowing the exchange of nutrients and sediment for maintenance of the mussel’s and fish host’s habitat, food availability, spawning habitat for native fishes, and the ability for newly transformed juveniles to settle and become established in their habitats.

3. Water and sediment quality (including, but not limited to, conductivity, hardness, turbidity, temperature, pH, ammonia, heavy metals, and chemical constituents) necessary to sustain natural physiological processes for normal behavior, growth, and viability of all life stages.

4. The presence and abundance (currently unknown) of fish hosts necessary for recruitment of the Rabbitsfoot. The occurrence of natural fish assemblages,

reflected by fish species richness, relative abundance, and community composition, for each inhabited river or creek will serve as an indication of appropriate presence and abundance of fish hosts until appropriate host fish can be identified.

5. Either no competitive or predaceous invasive species (nonnative), or such species in quantities low enough to have minimal effect on survival of freshwater mussels. Status and distribution

The Rabbitsfoot was historically known from 140 streams within the lower Great Lakes Sub-basin and Mississippi River Basin. The historical range included 15 states: 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; 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 recruitment between populations or establishment of new populations could occur naturally.

Butler (2005) categorized the extant populations of Rabbitsfoot into three groups based on population size, general distribution, evidence of recent recruitment, and assessment of current viability. Sizeable populations with evidence of recent recruitment were categorized as viable. Small populations, were categorized based on limited levels of recent recruitment, generally highly restricted distribution, or doubtful or limited viability increasing its susceptibility to extirpation in the near future. Marginal populations were considered rare, with no evidence of recent recruitment, of doubtful viability, and possibly on the verge of extirpation in the immediate future. Many of the small and marginal populations are demonstrably (clearly evident) declining (78 Federal Register 57076).

Life History

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 9 to 12 feet of water. Bottom substrates generally include gravel and sand (Parmalee and Bogan 1998). This species seldom burrows but lies on its side (Watters 1988; Fobian 2007). This life history trait makes it more susceptible to displacement into unsuitable habitat and makes flow refuges more important to Rabbitsfoot.

Growth and longevity – See ORP Growth and Longevity section above. No quantitative information on the longevity of the rabbitsfoot is available.

Reproductive biology – Sex ratios in mussels generally do not differ significantly from 1:1, although some Quadrula populations tend to be male-biased (Haag and Staton 2003). Rabbitsfoot populations west of the Mississippi River reach sexual maturity between the ages of 4 to 6 years (Fobian 2007). 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; Barnhart 2008, pers. comm.). It is a short– term brooder, with females brooding between May and late August (Fobian 2007). Similar to other species of Quadrula, the Rabbitsfoot uses all four gills as a marsupium (pouch) for its glochidia (Fobian 2007). Female Rabbitsfoot release glochidia as conglutinates, which mimic flatworms or similar fish prey. Fecundity (capacity of abundant production) in river basins west of the Mississippi River ranged from 46,000 to 169,000 larvae per female (Fobian 2007).

From parasitic glochidia to free-living juveniles –Female mussels of the genus Quadrula commonly release glochidia packaged in the form of conglutinates. The lanceolate (lance shaped) conglutinates of the Rabbitsfoot, presumably depending on the development rates of their ova and encapsulated glochidia, are yellowish-brown or pale orange (Ortmann 1919). They may mimic flatworms or similar fish prey (Fobian 2007).

Suitable fish hosts for Rabbitsfoot populations west of the Mississippi River include Blacktail Shiner (Cyprinella venusta) from the Black and Little River and Cardinal Shiner (Luxilus cardinalis), Red Shiner (C. lutrensis), Spotfin Shiner (C. spiloptera), and Bluntface Shiner (C. camura) from the Spring River, but host suitability information is lacking for the eastern range (Fobian 2007). In addition, Rosyface Shiner (Notropis rubellus), Striped Shiner (L. chrysocephalus), Rainbow Darter (Etheostoma caerulium) and Emerald Shiner (N. atherinoides) served as hosts for Rabbitsfoot, but not in all stream populations tested (Fobian 2007; Watters et al. 2009).

Previous Incidental Take Authorizations

For recovery permits issued under section 10(a)(1)(A) in the Service’s Southeast Region, see Previous Incidental Take Authorizations section for ORP. The Service prepared a BO/CO for its approval and participation in the Memorandum of Agreement and its associated best management practices and Minimization and Mitigation Measures with Crestwood Arkansas Pipeline LLC. The purpose of the agreement is to provide recovery- focused conservation benefits for Rabbitsfoot and two other listed aquatic species while minimizing right-of-way erosion, avoiding and minimizing alteration of natural stream hydrology and geomorphology characteristics, and minimizing transport of other contaminants from Crestwood pipeline right-of-ways in the Little Red River watershed.

The Service provided a BO/CO to USDA Forest Service – Ouachita National Forest (ONF) in 2013 based on our review of: 1) the ONF proposal regarding designation, operation, and maintenance of the Wolf Pen Gap Trail Complex; 2) which included

consideration of its effects to Rabbitsfoot and its effects to proposed critical habitat for Rabbitsfoot.

ENVIRONMENTAL BASELINE

Under section 7(a)(2) of the ESA, when considering the “effects of the action” on federally listed species, the Service is required to take into consideration the environmental baseline. The environmental baseline includes past and ongoing natural factors and past and present effects of Federal, State, or private actions and other activities in the action area (50 CFR 402.02), including Federal actions in the area that have already undergone section 7 consultation, and the effects of State or private actions that are contemporaneous with the consultation in process. As such, the environmental baseline is “an analysis of the effects of past and ongoing human and natural factors leading to the current status of the species, it habitat (including critical habitat), and ecosystem, within the action area (Service and NMFS 1998, page 4-22).” The environmental baseline is, therefore, a “snapshot” of the species health at a given point in time, but it does not include the effects of the proposed action. The environmental baseline for this BO considers these “past and ongoing human and natural factors”, which includes:

1. All projects approved prior to the initiation of formal consultation with the Service,

2. Any human and natural factors for which the Service has information that pertains to this consultation, and

3. Any other Federal, State, or private actions for which the Service has information that pertains to this consultation.

Previous BOs were discussed in previous sections. Additionally, the Service completes several informal consultations on ORP and Rabbitsfoot each year. These formal and informal consultations are discussed in detail in the “Factors affecting the species environment with the action area” section below.

Status of the species within the action area

Information on the baseline status ofRrabbitsfoot was primarily obtained from the final listing rules (69 Federal Register 24875; 78 Federal Register 57076) and the proposed rule for designation of critical habitat (77 Federal Register 63440).

A small population of ORP is believed to persist within portions of an approximately 145- km (~90-mi) section of the Little River between Wright City, Oklahoma, and Millwood Lake in Arkansas. A survey of the Little River in 1987 found a small number of live ORP specimens, all in Arkansas between the state line and the river’s confluence with the Rolling Fork River (Clarke 1987). Later (1994) surveys of the Little River 15

found live ORP in the short section in Oklahoma between U.S. Highway 70 and the river’s confluence with the Mountain Fork River, but empty shells also were found at additional points, upstream and downstream, during 1991-1994 (C.M. Mather, pers. comm. 1993; Vaughn 1994, Vaughn et al. 1995). Most of the shells found in Oklahoma were relatively weathered; however, two sets of valves (shell halves) were in good condition and appeared to represent relatively recent ORP deaths. It is usually difficult to judge how long specimens found in such cases have been dead, and no estimates are given for the shells found in the Little River. The species persists in the Little River in Oklahoma and possibly Arkansas; however, the total distance currently inhabited remains uncertain. Habitat in the Little River has been impacted by reservoir construction and degraded water quality, and further water quality degradation is an identified threat. Subsequent surveys through the 1990s to present have produced additional specimens and bed locations within the Arkansas portion of the Little River upstream and downstream of Millwood Lake. Additionally, ORP occurs in the Little River from Millwood Dam to its confluence with the Red River (25.8 km or 16 river miles).

There are records of Rabbitsfoot occurring in the Little River from the Glover River confluence northwest of Idabel, McCurtain County, Oklahoma, downstream to U.S. Highway 71 north of Wilton, Little River and Sevier Counties, Arkansas (139.7 km or 86.8 river miles). This reach (Unit RF6) of Little River is proposed for designation as critical habitat. This unit was occupied at the time of listing and contains all or some components of all four PBFs and contains all five PCEs. The PBFs in this unit may require special management considerations or protections to address changes described above; however, the Little River population within this unit is believed to be currently stable. Adjacent riparian lands in this unit are in private ownership (42 percent), Federal (35 percent), and private land under tribal jurisdiction (23 percent).

The Little River is a Red River tributary draining portions of southeastern Oklahoma and southwestern Arkansas. A survey discovered one specimen there in 1910. In 1983, six live individuals were located in Sevier County, Arkansas. Live Rabbitsfoot specimens were reported collected in 1999 at six sites in the Little River located downstream of the Glover River confluence. Its ‘‘abundance,’’ defined as the number of mussels found per hour spent searching, ranged from 0.6 to 8.0 at these sites. In 2002, survey work occurred in the lowermost section, downstream of Millwood Reservoir, and no Rabbitsfoot were located at any of the 14 sites surveyed. From 2006 to 2008, the AGFC and Service collected 89 live Rabbitsfoot specimens from 13 Little River sites extending from near the Arkansas and Oklahoma state line to near U.S. Highway 71 north of Ashdown, Arkansas. The Rabbitsfoot population is sizeable and considered viable in this reach of the Little River (77 Federal Register 63440).

The greatest impact on these species throughout its historical range has been from activities related to flood control and electrical generation. Many impoundments of tributaries or main stems of the river have drastically altered flow regimes. Hydroelectric generation also creates an unnatural hydrograph due to electrical demand rather than rain events (Watters 2000). Siltation has long been associated with reductions in freshwater mussel assemblages (Brim Box and Mossa 1999). Detrimental effects of fine sediment

from erosion on freshwater mussels have been documented. Heavy sediment loads in the water column can interfere with feeding activity (Brim Box and Mossa 1999), as mussels in turbid waters remained closed about 50 percent longer than mussels in silt free water, reducing the time available to feed (Ellis 1936). Many aquatic species, including freshwater mussels, have demonstrated lower growth rates, reproduction, and recruitment, in waters with elevated sedimentation and turbidity (Henley et al. 2000). Fine sediment plumes may also reduce feeding in mussels by diluting the density of food particles in the water column (Widdows et al. 1979). Agricultural runoff is frequently laden with chemicals associated with fertilizers and pesticides. The Little River watershed is mainly pasture and silviculture, with minimal amounts of crops. Disturbance of the substrate may re-suspend contaminants stored in the sediment (Watters 2000). Like sedimentation, mussels can tolerate short term exposures to pollutants by valve closure, but most cannot tolerate long term exposure to contaminated water (Neves 1997).

The most important conservation action remaining is protection and restoration of instream and riparian habitat (including water quality and quantity) throughout the watershed at a sufficient level to sustain and/or expand existing populations and when necessary augment and reintroduce populations into areas with suitable habitat.

Factors affecting species environment within the action area

The creation of Millwood Lake in 1966 converted ORP and Rabbitsfoot habitat to a deep water, lacustrine environment. This dramatic change in habitat flooded mussel beds, altered habitat radically, and changed chemical and physical characteristics in the Little River which provides habitat for ORP and Rabbitsfoot. Impoundments profoundly alter channel characteristics, habitat availability, and flow regime with serious consequences for biota (Allan and Flecker 1993; Ward and Stanford 1995), change lotic to lentic waters, increase depths and sedimentation, decrease dissolved oxygen, drastically alter resident fish populations (Neves et al. 1997), disrupt host fish migration, and destroy spawning habitat (Ligon et al. 1995).

It is difficult to identify other specific factors affecting the species environment within the action area. However, we are able to determine there is a number of current and long- term land use and demographic trends that could affect ORP and Rabbitsfoot within the action area. Land use activities that affect ORP and Rabbitsfoot in the action area include timber harvest, agriculture, recreational use, residential and industrial development and related activities. These private actions have occurred and/or are ongoing or likely to occur within the action area. We are unaware of quantifiable information relating to the extent of these private activities with the action area.

Closely related to ORP and Rabbitsfoot habitat stability are aspects of flow. Most movements of substrate materials in the Little River appear associated with flood flows. Flows also can affect other processes such as delivery of oxygen and food items to mussels, removal of wastes, transport and concentration of sperm cells, sustained immersion of juveniles and adults, protection from heat stress, and formation of stream

habitats. In the case of some mussel species and environments, such relationships have even been studied to varying degrees (Vannote and Minshall 1982, Hartfield and Ebert 1986, Layzer and Madison 1995, Tippit et al. 1997, Strayer 1999b). In the case of the ORP, however, the complex relationships involved are not known to an extent that is useful to many flow management decisions. In addition, native stream fish communities have shown adaptations to flooding and other elements of natural flow regimes (Ross and Baker 1983, Wootton et al. 1996), raising the possibility that host fish for ORP and rabbitsfoot might be affected by flow modifications. Consequently, significant relationships between stream flows and survival of ORP and Rabbitsfoot need further study and definition for specific streams inhabited by the species. Abilities to reduce flood flows with impoundments, in an interest of increasing habitat stability (as has been suggested by some agencies), might not produce a net benefit when all effects are considered.

Water withdrawal for industrial, agricultural and recreational purposes, lack of adequate riparian buffers, construction and maintenance of state and county roads, and non-point source pollution arising from a broad array of activities are the primary threats degrading suitable habitat for ORP and Rabbitsfoot. Traditional farming practices and associated poor land use practices contribute many pollutants, and agriculture affects 72 percent of impaired river km in the United States (Neves et al. 1997). Nutrients, bacteria, pesticides, and other organic compounds generally are found in higher concentrations in agricultural areas than forested areas. Nutrient concentrations in streams may result in increased algal growth in streams, and a related alteration in fish community composition. Major agricultural activities within the Little River watershed include row crop, poultry, cattle, and swine.

The central reason for the decline of freshwater mussels is the modification and destruction of their habitat, especially from sedimentation, dams, and degraded water quality (Neves et al. 1997). Dams eliminate and alter river flow within impounded areas, trap silt leading to increased sediment deposition, alter water quality, change hydrology and channel geomorphology, decrease habitat heterogeneity, affect normal flood patterns, and block upstream and downstream movement of mussels and fish (Layzer et al. 1993; Neves et al. 1997; Watters 2000). Within impounded waters, decline of mussels has been attributed to direct loss of supporting habitat, sedimentation, decreased dissolved oxygen, temperature levels, and alteration in resident fish populations (Neves et al. 1997; Pringle et al. 2000; Watters 2000). Approximately 25 river miles of the main stem of Little River is inundated by Millwood Lake. Within the action area, there are three primary factors affecting the status and distribution of ORP and Rabbitsfoot: 1) population fragmentation and isolation, 2) sedimentation, and 3) chemical contaminants.

Population Fragmentation and Isolation – Population fragmentation and isolation prohibit the natural interchange of genetic material between populations. Populations of ORP and Rabbitsfoot in the Little River upstream of Millwood Lake are geographically isolated, and, thus, are susceptible to genetic drift, inbreeding depression, and stochastic changes to the environment. Inbreeding depression can result in early mortality, decreased fertility, smaller body size, loss of vigor, reduced fitness, and various chromosome

abnormalities. Population isolation prohibits the natural interchange of genetic material between populations, and small population size reduces the reservoir of genetic diversity within populations, which can lead to inbreeding depression (Avise and Hambrick 1996).

Sedimentation – Excessive sediments may adversely affect riverine mussel populations requiring clean, stable streams (Ellis 1936; Brim Box and Mossa 1999). Adverse effects resulting from sediments have been noted for many components of aquatic communities. Potential sediment sources within a watershed include natural events and anthropogenic activities that disturb the land surface. Most localities occupied by these two mussels are currently being affected to varying degrees by sedimentation.

Chemical Contaminants – Chemical contaminants are ubiquitous in the environment and are considered a major threat in the decline of mussel species (Richter et al. 1997; Strayer et al. 2004; Wang et al. 2007a; Cope et al. 2008). Chemicals enter the environment through point and nonpoint discharges including spills, industrial and municipal effluents, and residential and agricultural runoff. These sources contribute organic compounds, heavy metals, nutrients, pesticides, and a wide variety of newly emerging contaminants such as pharmaceuticals to the aquatic environment. Rabbitsfoot and ORP are susceptible to chemical contaminants that degrade water and sediment quality and subsequently may result in adverse effects.

EFFECTS OF THE ACTION

This section includes an analysis of the direct and indirect effects of the proposed action on the species and/or critical habitat and its interrelated and interdependent activities. While analyzing direct and indirect effects of the proposed action, the Service considered the following factors:

Proximity of the action: Suitable ORP and Rabbitsfoot habitat can be found at numerous sites suitable for mussel colonization in the Little River. Freshwater mussel surveys were completed by AHTD on July 23, 2013 and August 12-13, 2014, to assess potential impacts to threatened and endangered species. In the 2013 survey, 277 mussels representing 21 species were collected in 106 minutes of search time (Table 1). No living listed species were collected; however, one relict shell of a Rabbitsfoot was collected. In the 2014 survey, 326 mussels representing 21 species were collected within 31 meter squared quadrat quantitative sampling (Table 2). A single ORP was collected within the proposed placement of the new bridge footprint.

Mussels within the project area are generally distributed in a 26.7 m wide area on the river left side from approximately toe of the sloped bank out toward the center of the channel. Substrates within these areas consisted of embedded gravel and sand with interspersed pieces of cobble. Mussel densities were variable ranging from 1-20/m2 with an average of 11/m2.

Using the quantitative sampling of 2014, the mussel “bed” of 3,380 m2 within the action area is estimated at 35,545 ± 5,530 individuals, including 109 ± 190 Ouachita Rock

Pocketbooks. Statistical power of the population estimate is at 91.1% confidence level. Of the entire surveyed area of 3,380 m2, only 384 m2 or 11.3% of the “bed” falls within the direct footprint of the proposed construction.

The removal of the existing bridges, construction of new bridge piers and footings, and the placement of riprap for temporary work roads and scour prevention all have the potential to crush individuals thereby causing direct mortality.

Alteration of stream hydrology and geomorphology associated with the temporary construction fills along with the piers and footings within the Little River may degrade habitat and water quality due to increased sediment transport, although the Service has no information available to assess the extent of these potential detrimental effects. However, AHTD plans to use BMPs for sediment control and minimal channel modification to minimize adverse effects.

Distribution: The effects of the proposed action will vary depending on the extent of:

1. Placement of fill for construction (temporary) and piers and footings (permanent) in the Little River. Crushing or disturbing live ORP and/or Rabbitsfoot may subject individuals to mortality from being crushed and/or by being buried, dislodging and/or dislocation, increased predation, and stress resulting from reduced respiration, feeding, and other altered metabolic processes,

2. Channel modification, flow alteration, and material filling that destabilize sediments or suitable habitat at or near the bridge and areas immediately downstream in the Little River. The AHTD will use BMPs and minimal construction and material filling to minimize adverse effects, but this may dislodge live ORP (may result in mortality) from suitable habitat, temporarily increase sediment transport and deposition, and potentially stress ORP and Rabbitsfoot and its host fish by reducing respiration, feeding, and other metabolic processes.

Timing: The reproductive cycle of ORP is very similar to that of Arcidens confragosus (Clarke 1981). It follows the typical bradytictic cycle in which the female is fertilized in late summer to early fall and holds the developing larvae until the following spring (Seagraves 2006). Seagraves (2006) provides the best available information for when ORP females have been observed gravid, October thru February. Gravid females recently collected by the Service and AGFC in early December, 2010, contained mature glochidia (P. Johnson, ALDCNR, pers. comm. 2011). ORP is considered a host fish generalist, utilizing 12 known fish species in laboratory trials. These results do not necessarily mean that these are always the hosts used in their natural environment, only that juvenile transformation can occur (Seagraves 2006). Detrimental effects to both ORP and Rabbitsfoot are expected to occur in the form of harm and/or harassment due to degradation of habitat, primarily as a result of placement of fill material, increased sedimentation, stress to brooding females or infected host fish, and altered hydrology and

geomorphology in the Little River. Detrimental effects associated with reproduction are more likely to occur during brooding and host fish infection periods.

Adverse effects to both species related to the timing of the proposed action cannot be quantified due to external factors affecting sediment loading that cannot be predicted such as weather (i.e., rainfall or storm events) and length of time required for stream recovery from a disturbed to stable, healthy condition. There are several possible mechanisms for sediment effects on mussels. We expect detrimental effects will occur during all life stages (glochidia to adult), including sensitive periods such as brooding (see Status of Species section) and the temporary parasitic larval stage. Detrimental effects are expected to result in harm and/or harassment due to degradation of water quality and/or habitat that may cause mortality of glochidia, juveniles, and adults, primarily as a result of increased suspended sediment loading, sedimentation (deposited sediment), and other habitat related effects.

Exposure of host fish to suspended sediment reduces attachment and metamorphosis success of glochidia (Beussink 2007). The increased radius of the gill tips, where a large proportion of glochidia normally attach, caused by fusion, clubbing, and loss of lamellae may provide a less suitable geometry for glochidia to grasp, thus reducing attachment success. Fish coughing induced by sediment may dislodge loosely attached glochidia before encapsulation. In addition to reduced attachment success, the proportion of glochidia successfully transformed is reduced following host exposure to suspended sediment. A likely mechanism involves the relationship between the keratocyte migration and encapsulation. Excessive sediments also can expose juvenile mussels to entrainment or predation and be detrimental to survival of juvenile mussels (Hartfield and Hartfield 1996). Detrimental effects of suspended sediment on mussel reproduction are most likely if high sediment loads coincide with mussel reproductive events.

Nature of the effects: It is likely that the proposed action will result in a variety of adverse effects to ORP and Rabbitsfoot individuals and populations. Specific biological effects associated with sediment, dewatering the channel, and altered hydrology and geomorphology include, but may not be limited to: 1) Reduced feeding and respiratory; efficiency from clogged gills or dewatering; 2) Disrupted metabolic processes; 3) Reduced growth rates; 4) Limited burrowing activity; 5) Physical smothering; 6) Affects sight-feeding fish that serve as host for mussels to complete their life cycle; and 7) Detrimental effects not immediately apparent.

Specific physical effects associated with sediment and/or dewatering suitable habitat include, but may not be limited to: 1) Altered suspended and bed material loads; 2) Clogged interstitial habitats; 3) Reduced interstitial flow rates and dissolved oxygen levels (also applies to areas dewatered); 4) Changed channels in form, position, and degree of stability; 5) Altered depth or width/depth ratio that affects light penetration and flow regime; 6) Aggraded (filling) or degraded (scouring) channels; and 7) Changed channel position that dewater habitats formerly inhabited by mussels/fish.

Duration: Detrimental effects may be temporary and/or permanent. The project is scheduled to be let in 2016. Work orders are typically issued the month following the letting date. It has been estimated that this project will take 2.5 years to complete. Temporary construction effects may be limited to approximately 2.5 years; however, the placement/replacement of bridge piers and footings will be more permanent. Temporary impacts to water quality are common during highway construction activities. These impacts can be lessened with the proper implementation of erosion control BMPs. All efforts to reduce and limit adverse effects to water quality will be implemented.

Disturbance frequency: The frequency at which project-specific effects are implemented and associated effects occur will be daily and day-to-day according to work schedules during the construction period over the 2.5 years of the project construction period. The intensity of the disturbance is difficult to estimate specifically. We do not know how much total habitat may be affected, how weather will influence the effects, and how far removed the effects will be from occupied habitat within or beyond the project construction period. Temporary impacts to water quality are common during highway construction activities. These impacts can be lessened with the proper implementation of erosion control BMPs. All efforts to reduce and limit adverse effects to water quality will be implemented.

Disturbance intensity: The intensity of the disturbance is expected to be minimal. We do not know how much total habitat may be affected, how weather will influence the effects, and how far removed the effects will be from occupied habitat. While the proposed action will result in some incidental take of ORP and Rabbitsfoot in the form of harm and/or harassment, the effects are expected to be limited in duration and seasonality, and primarily in the direct footprint of the action and immediately downstream. The adverse effects within the action area are expected to occur without significant reductions in population size and distribution based on the best available information for ORP and Rabbitsfoot distribution in the Little River. Temporary impacts to water quality are common during highway construction activities. These impacts can be lessened with the proper implementation of erosion control BMPs. All efforts to reduce and limit adverse effects to water quality will be implemented.

Disturbance severity: The disturbance severity is expected to be minimal and limited to the direct footprint of the action and immediately downstream. Temporary impacts to water quality are common during highway construction activities. These impacts can be lessened with the proper implementation of erosion control BMPs. All efforts to reduce and limit adverse effects to water quality and habitat will be implemented.

Analyses for effects of the action

Direct Effects

The proposed action will affect ORP and Rabbitsfoot, their host fish, and their habitats in the Little River in the direct and indirectly affected action area. Direct effects of the proposed action on ORP and Rabbitsfoot include harassment, harm, and potential

mortality from the construction of the new bridge, placement of temporary work roads and culverts, the demolition of the existing structures and placement of rip rap within previously occupied habitats for work pads and scour prevention. These activities could result in mortality or injury of any mussels that are not transferred out of the project footprint during the translocation effort.

Direct effects of mussel translocation include harm, harassment and possible mortality due to the stress of being handled, processed, and relocated. These effects can result in premature release of sperm or aborted glochidia negatively impacting reproductive success. A trained biologist that holds an active Section 10(a)(1)(A) permit from the Service will accomplish the relocation work, which will minimize some of these effects.

Indirect Effects

Construction related activities have the potential to disrupt the reproductive cycle of the mussel in a variety of ways. In the laboratory setting, female mussels have been stimulated to release glochidia (larvae) by tapping the side of holding tanks; therefore, vibrations created from construction equipment could also stimulate females to prematurely release glochidia. Lepomis, Pomoxis, Micropterus, Notropis, Carpiodes, Notemigonus and Luxilus have all shown to be suitable hosts for the ORP which is considered a generalist (Seagraves 2006). Three species of cyprinids the Whitetail Shiner (Cyprinella galactura), Spotfin Shiner (Cyprinella spiloptera), and Bigeye Chub (Hybopsis amblops) have been found to be suitable for the Rabbitsfoot (U.S. Fish and Wildlife Service 2002). Any disturbances that may reduce the number of fish within the action area have the potential to reduce the likelihood for the mussel/host interaction. It is likely that these indirect effects would be temporary and limited to the construction period.

Two piers or bents will be placed within the wetted width of the channel. One of these will be directly within the identified mussel “bed”. Placement of rip rap to reduce scour and stabilize bank will also likely be placed within the “bed”. These structures and stabilizing features will likely alter flow patterns that could adversely affect species of freshwater organisms including mussels.

The Piers located in channel often form large scour holes around the piers, making these areas unsuitable for mussels. Piers can also snag debris resulting in morphological changes within the river channel, further exacerbating substrate scouring. However, the placement of rip rap and other footing materials has shown to provide areas of stability and flow refugia which often provide habitat for numerous aquatic species including freshwater mussels.

Urban development related projects that can follow roadway improvements also have the potential to adversely affect water quality. Increased urban development is often associated with highway construction projects; however, the current project does not increase capacity and is not constructed on new alignment. The proposed project, therefore, is unlikely to result in an increase in urban development.

Beneficial Effects

Beneficial effects are those effects of an action that are wholly positive, without any adverse effect, on a listed species or designated critical habitat. The Service has determined that there are no wholly beneficial effects associated with the proposed action.

Global Climate Change

The proposed action is likely to result (directly or and/or indirectly) in the emission of greenhouse gases. While it is likely that the observed increase in global average temperatures is due to the observed increase in human-induced greenhouse gas concentrations, the best scientific data available today does not allow us to draw a causal connection between specific greenhouse gas emissions and effects posed to ORP, Rabbitsfoot, or their habitat, nor is there sufficient data to establish that such effects are reasonably certain to occur.

At present, there is a lack of scientific or technical knowledge to determine a relationship between activities that produce, distribute or facilitate production or distribution of petroleum products and the effects of the ultimate consumption of these products. Furthermore, there is no traceable nexus between the ultimate consumption of petroleum products and any particular effect to listed species or their habitats. Consequently, the greenhouse gas emissions resulting from the consumption, production, and/or distribution of that petroleum do not constitute an indirect effect to the ORP, Rabbitsfoot, or their habitat as a result of this proposed action.

CUMULATIVE EFFECTS

Cumulative effects include the combined effects of any non-federal action (e.g., future State, local, or private actions) reasonably certain to occur within the action area covered in this BO. Future federal actions unrelated to the proposed action are not considered in this section because they require separate consultation under section 7 of the Act. In particular, many of the large-scale activities that could occur in the action area, such as highway development, storm water permits, U.S. Army Corps of Engineers’ 404 permits, would have a federal nexus that require an independent consultation under section 7 of the Act.

Numerous land use activities that affect ORP, Rabbitsfoot, or their habitat and that likely occur within the action area include: timber harvest, recreational use, and development associated with road, residential, industrial and agricultural development, and related

activities. These private actions are likely to occur within the action area, but the Service is unaware of any quantifiable information relating to the extent of which these actions will occur or are related to this action.

Urban development related projects have the potential to impact water quality. Increased urban development is often associated with highway construction projects; however, the current project does not increase capacity. The proposed project; therefore, is unlikely to result in an increase in urban development. Future AHTD projects would likely either utilize federal funding from the USDOT or require a Section 404 Clean Water Act Permit. Both actions would require separate Section 7 consultations.

The Service is unable to make any determinations or conduct any meaningful analysis of how these effects with no quantifiable information may or may not adversely and/or beneficially affect these species. All we can say is that it is possible that these activities, when they occur, may have cumulative effects to the ORP, rabbitsfoot, their habitat, or their host fish and their habitats in certain situations. In stating this, however, we can only speculate as to the extent or severity of those effects, if any.

CONCLUSION

After reviewing the current status of ORP; the environmental baseline for the action area; the effects of the proposed action; and the cumulative effects of the proposed action, it is the Service’s BO that the proposed action is not likely to jeopardize the continued existence of ORP. No critical habitat has been designated or is proposed for ORP.

After reviewing the current status of Rabbitsfoot; the environmental baseline for the action area; the effects of the proposed action; and the cumulative effects of the proposed action, it is the Service’s BO that the proposed action is not likely to jeopardize the continued existence of Rabbitsfoot and is not likely to adversely modify or destroy proposed critical habitat for Rabbitsfoot.

Because of our analysis, we do not believe the proposed action “would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of ORP and Rabbitsfoot by reducing the reproduction, numbers, or distribution of ORP and Rabbitsfoot (50 CFR 402).” In fact, we believe that neither survival nor recovery will be reduced appreciably.

INCIDENTAL TAKE STATEMENT

Section 9 of the Act and federal regulation pursuant to section 4(d) of the Act prohibit the take of endangered and threatened species, respectively, without special exemption. Take is defined as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect. Harm is further defined by the Service to include significant habitat modification or degradation that results in death or injury to listed species by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering. Harass is defined by the Service as intentional or negligent actions that create the likelihood of injury to listed species to such an extent as to significantly disrupt normal behavior patterns which included, but are not limited to, breeding, feeding, or sheltering. Incidental take is defined as take that is incidental to, and not the purpose of, carrying out of an otherwise lawful activity. Under terms of section 7(b)(4) and section 7(o)(2), taking that is incidental to and not intended as part of the agency action is not considered to be prohibited under the Act provided that such taking is in compliance with the terms and conditions of this Incidental Take Statement.

The measures described below are non-discretionary, and must be undertaken by the FHWA so that they become binding conditions of any grant, contract, or permit issued to parties conducting activities for the FHWA, as appropriate, for the exemption in section 7(o)(2) to apply. The FHWA has a continuing duty to regulate the activity covered by this incidental take statement. If the FHWA (1) fails to assume and implement the terms and conditions or (2) fails to require contractors or other parties conducting work on behalf of the FHWA to adhere to the terms and conditions of the incidental take statement through enforceable terms that are added to the permit, contract, or grant document, the protective coverage of section 7(o)(2) may lapse. In order to monitor the impact of incidental take, the FHWA must report the progress of the action and its impacts on the species to the Service as specified in the incidental take statement [50 CFR §402.14(I)(3)].

AMOUNT OR EXTENT OF TAKE ANTICIPATED

The Service anticipates incidental take of the ORP and Rabbitsfoot will be difficult to detect for the following reasons:

1. The individuals are small and occupy aquatic habitats making them generally difficult to find,

2. Demographic and environmental stochasticity,

3. Corpses are generally preyed upon by other fish, turtles, birds, and mammals or quickly rot,

4. Finding dead or injured specimens during or following project implementation is unlikely,

5. Implemented actions will not affect all available habitat within the project area or within the Little River, and

6. Most incidental take will be non-lethal and/or undetectable.

However, the Service anticipates incidental take of ORP and Rabbitsfoot can be expected due to:

1. Actions associated with the translocation of ORP and Rabbitsfoot that include harm, harassment and possible mortality due to the stress of being handled, processed, and relocated;

2. Loss, modification, and/or alteration of suitable habitat associated with altered river hydrology, stream geomorphology (i.e., filling and scouring channels; channels in form, position and degree of stability; suspended and bed material loads; changed channel position that dewater habitats formerly inhabited by mussels/fish), substrate composition, interstitial flow rates and dissolved oxygen levels, and sedimentation; and

3. Biological effects associated with alteration of flow, stream morphology and habitat alteration, and sedimentation that may be sub-lethal or lethal.

Freshwater mussel surveys conducted by AHTD resulted in collection of one relict shell of a Rabbitsfoot and a single ORP being collected within the proposed placement of the new bridge footprint. Using the quantitative sampling of the 2014 sample, the mussel “bed” of 3,380 m2 within the action area is estimated at 35,545 ± 5,530 individuals, including 109 ±190 ORP. Statistical power of the population estimate is at 91.1% confidence level. Of the entire surveyed area of 3,380 m2, only 384 m2 or 11.3% of the “bed” falls within the direct footprint of the proposed construction.

The Rabbitsfoot was not collected during quantitative sampling in 2014 and was represented only by the relict shell found during the qualitative sampling in 2013. This shell could have washed in from another location or could mean that the species is present but occurs in such low numbers that it was beyond the detection limits of the survey. The Rabbitsfoot is also known to inhabit shallower areas on the periphery of beds that may have been underrepresented during the sampling. Although no live specimens were collected during the survey, its presence could not be ruled out; therefore, it has been determined that it is reasonable to assume equal numbers of Rabbitsfoot to ORP may be present in the action area.

The calculated ORP and Rabbitsfoot population for the entire bed is 109 ±190 or approximately 12 ± 21 individuals in the direct footprint of the action. Assuming a larger affected area with a 5 meter buffer, that would equate to 13 ±23 individual ORP and 13 ±23 individual Rabbitsfoot that could potentially fall within the directly affected area of the action. Otherwise stated that the maximum estimated take expected within the directly affected action are would be 36 individual ORP and 36 individual Rabbitsfoot.

It is important to note, however, that we do not expect actual adverse effects and incidental take to occur at this level because we have taken a cautious, conservative approach when determining adverse effects to the species and the amount of incidental take that may occur. We expect this authorized level of incidental take to be an over- estimate of the actual incidental take of ORP and Rabbitsfoot because it assumes that:

1. There are the maximum number estimated 36 individual ORP and 36 individual Rabbitsfoot in the direct footprint of the action despite a 13 ±23 individual estimate and previous qualitative surveys having only produced one individual live ORP and one relict Rabbitsfoot,

2. Previous surveys by the Service and AGFC in the vicinity of the project have never produced more than 33 live Rabbitsfoot mussels in a single bed and far less ORP,

3. The limited directly affected area of the action,

4. The temporary nature of the impacts to water quality and the minimization of effects through the proper implementation of erosion control BMPs, and

5. AHTD will conduct a quantitative survey while collecting all ORP and Rabbitsfoot found within the reach spanning from 5 meters upstream of the direct project footprint (pier, footings, workroad, or other fill) to 5 meters downstream of the project footprint for translocation in accordance with the reasonable and prudent measures preventing any exceedance of take beyond this authorized level without reinitiation of consultation.

Collectively, these factors will mean that actual harm and/or harassment of ORP and Rabbitsfoot likely will occur in less area. The incidental take statement anticipates the taking of ORP and Rabbitsfoot only from the actions associated with the proposed action. Incidental take of ORP and Rabbitsfoot is expected to be in the form of harm and/or harassment and is expected to occur as a result of translocation, as well as from, habitat

loss, modification, or alteration. Mortality is the least likely form of take to occur. Harm and/or harassment may occur through habitat alterations that are anticipated to occur because of the action which include, but are not limited to, effects identified in this section above.

EFFECT OF THE TAKE

In this BO, the Service determined that this level of anticipated take is not likely to result in jeopardy to the species or destruction or adverse modification of critical habitat.

REASONABLE AND PRUDENT MEASURES AND TERMS AND CONDITIONS

The Service believes the following reasonable and prudent measures are necessary and appropriate to minimize effects of incidental take of ORP and Rabbitsfoot:

All ORP and Rabbitsfoot found within the reach spanning from 5 meters upstream of the direct project footprint to 5 meters downstream of the project footprint should be translocated to suitable habitat determined by the Service in consultation with the AGFC.

TERMS AND CONDITIONS

In order to be exempt from the prohibitions of section 9 of the ESA, the FHWA must comply with the following terms and conditions, which implement the reasonable and prudent measures described above and outline reporting/monitoring requirements. These terms and conditions are non-discretionary.

1. All translocation activities shall be overseen by a qualified malacologist acceptable to the Service.

2. Mussel relocation area: footprint plus 5 meter buffer encompassing the footprint.

3. Mussels will be kept moist and cool during transport. Typical methods used to transport mussels involve wrapping the mussels in towels and placing them in chilled ice chests in which the mussels are physically separated from the ice. Mussels also may be transported in containers of river water provided water temperature and quality can be adequately monitored and controlled. Container water temperatures must be within 5° F of the point of capture.

4. Once removed from fresh river water, transportation to and relocation at a suitable site shall occur within four hours.

5. All dead or moribund ORPs or Rabbitsfoot that contain soft tissue will be preserved according to standard museum practices and in a manner that preserves genetic material (not frozen or 70% alcohol). Any losses will be reported within 72 hours to Chris Davidson at the U.S. Fish and Wildlife Service Office, 110 South Amity Road, Conway, Arkansas, 72032, (501) 513-4481.

6. All individuals removed from the construction zone shall be translocated to the downstream end of the mussel “bed” within the Little River.

The reasonable and prudent measures, with their implementing terms and conditions, are designed to minimize the effect of incidental take that might otherwise result from the proposed action. The Service believes that no more than 36 ORP and 36 Rabbitsfoot will be incidentally taken. If, during the course of the action, this level of incidental take (or mortality of two individuals) is exceeded, such incidental take represents new information requiring re-initiation of consultation and review of the reasonable and prudent measures provided. The federal agency must immediately provide an explanation of the causes of the taking and review with the Service the need for possible modification of the reasonable and prudent measures.

CONSERVATION RECOMMENDATIONS

Section 7(a)(1) of the Act directs federal agencies to use their authorities to further the purpose of the Act by carrying out conservation programs for the benefit of endangered and threatened species. Conservation recommendations are discretionary agency activities to minimize or avoid adverse impacts of a proposed action on listed species or critical habitat, to help implement recovery plans, or to develop information.

REINITIATION NOTICE

This concludes formal consultation regarding the Corps proposed action and its effects on the ORP and Rabbitsfoot. As provided in 50 CFR Sec 402.16, reinitiation of formal consultation is required where discretionary Corps involvement or control over the action has been retained (or is authorized by law) and if:

(1) The amount or extent of incidental take is exceeded;

(2) New information reveals effects of the agency action that may affect listed species or critical habitat in a manner or to an extent not considered in this opinion;

(3) The agency action is subsequently modified in a manner that causes an effect to the listed species that was not considered in this opinion; or

(4) A new species is listed or critical habitat is designated that may be affected by the action. Should the incidental take level be reached, project work will cease immediately pending reinitiation.

In instances where the amount or extent of incidental take is exceeded, any operations causing such take must cease pending reinitiation.

The Service appreciates this opportunity to work with the FHWA in fulfilling our mutual responsibilities under the ESA. Please contact Lindsey Lewis of this office at 501-513- 4489 or [email protected], if you have any questions or require additional information.

Sincerely,

Melvin Tobin Acting Field Supervisor

C:\Users\lilewis\Documents\PROJECTS\FY2015\AHTD\AHTD Job 030425 - HWY 41 - Little River\BO_HWY41_Final.docx

cc: Randal Looney, Federal Highway Administration Johnny Mclean, United States Army Corps of Engineers Mark Hathcote, Arkansas Department of Environmental Quality Bill Posey, Arkansas Game and Fish Commission Jennifer Sheehan, Arkansas Game and Fish Commission Cindy Osborne, Arkansas Natural Heritage Commission John Turner, Arkansas Natural Resources Conservation Commission Wanda Boyd, United States Environmental Protection Agency

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