August 27, 2021

New Mussels Protections Could Impact Infrastructure Projects Across Texas

New federal protections have been proposed for six species of mussels, and the regulatory changes could impact projects across Texas ranging from storm drains to road crossings. The 60-day public comment period began August 26, with two hearings scheduled for September.

Am I affected?

Organizations with projects in the Trinity, Brazos, Colorado and Guadalupe river basins should expect certain projects they propose to be affected by the eventual listing of these mussel species. The proposed critical habitat covers 1,944 river miles in these basins. Because the science behind the distribution of these mussels is so new, regulatory agencies like Texas Parks and Wildlife Department, U.S. Fish and Wildlife Service, and the U.S. Army Corps of Engineers will expect that projects protect or avoid these species both within and near the proposed critical habitat. Learn more details, including a map showing the areas proposed to become critical habitats, in this FAQ from the U.S. Fish and Wildlife Service.

What actions should I take?

At this time, if you have proposed projects that could be affected by the proposed listing, we recommend participating in the public comment period and make your voice heard. In the future, projects that physically impact stream bottoms like installation of water intakes, storm drains, water control structures, or road and pipeline crossings could be expected to receive increased regulatory attention. This increased scrutiny does not mean those activities will be prohibited. It does mean there might be a requirement for those activities to be preceded with a field survey to remove any listed species from the zone of direct impact and a surrounding buffer or that project proponents consider design measures to avoid these mussels during project development (i.e. boring or tunneling). Many of these field surveys can be conducted in one or two days with a limited number of experienced field personnel. Freese and Nichols has experienced malacologists who meet the proficiency requirements of the proposed listing. Projects with large footprints could require large-scale field surveys that could become expensive, particularly if listed mussels are known and abundant in the project footprint.

What else should I be aware of?

Five of the species proposed for listing, the Texas Pimpleback, Guadalupe Orb, Texas Fatmucket, Guadalupe Fatmucket, and False Spike, are believed to be impacted by low and declining river flows. Regulatory agencies will probably pay more attention to new activities that modify flow regimes in streams, particularly within and upstream of the proposed critical habitats. Clients with existing water rights may not be affected by these listings. The Texas Fawnsfoot is believed to be impacted by declining water quality. New proposed wastewater discharges and amendments to existing permits which propose increased waste loading both upstream of and within the designated critical habitat for Texas Fawnsfoot may be required to address new concerns raised by the Texas Commission on Environmental Quality and TPWD.

The science behind the identification of mussel species and understanding of their environmental requirements has grown since 15 species were listed by the Texas Parks and Wildlife Commission in 2009 as state-threatened species. Species listed at that time have been merged with other species and new species have been identified. Researchers around the state have started investigating the biology of these species. Our malacologists have been surveying mussels from the Sabine River to the Rio Grande in major rivers and small streams since 2009; we have conducted twelve mussel recoveries and relocations for TxDOT in the last year alone. Freese and Nichols’ active role in mussel recovery and relocation has kept us abreast of the changing science and management requirements in Texas, and we stand ready to support clients navigating this new regulatory challenge.

If you need help navigating these changes, please contact David Buzan, david.buzan@freese.com or 512-617-3164; Aaron Petty, aaron.petty@freese.com or 512-617-3124; or your Freese and Nichols project manager.