Endangered species

What the October 2026 FEMA relocation rule does to listed mussels

Updated 6 October 2026

FEMA published an interim final rule on 2 October 2026, "Public Assistance Implementation of Endangered Species Act Section 7 for Relocation Projects," 91 FR 68012, that makes the agency itself the lead for section 7 consultation on federally funded population relocations after disasters, and that adds a binding pre-construction survey and translocation protocol for 44 listed freshwater mussel species. The rule is the first federal acknowledgement that the species most often killed by disaster response infrastructure are not the species most often named in the press.

What does the 2 October 2026 FEMA interim final rule actually do?

On 2 October 2026, the Federal Emergency Management Agency filed "Public Assistance Implementation of Endangered Species Act Section 7 for Relocation Projects," an interim final rule that takes effect on 17 November 2026 under the Stafford Act's Public Assistance programme. The rule's stated purpose is to fix a problem that FEMA's own after-action reviews had named for three years running: that populations of listed species displaced by debris removal, road reconstruction, levee repair, and temporary housing siting are not consulted on under section 7 of the Endangered Species Act before work begins, because the action is being carried out by a state, a county, or a private contractor under a FEMA grant, and because no one in the chain has been treated as the Federal action agency.

Under the new rule, FEMA is the Federal action agency for any Public Assistance project that involves the deliberate relocation of a population of a listed species, defined to include any capture, transport, and release operation intended to move animals out of the project footprint. The rule requires FEMA to complete an early consultation with the United States Fish and Wildlife Service, to use a programmatic biological opinion for routine cases, and to prepare an individual biological opinion for projects that affect more than five listed species or that affect a critical habitat unit. The Fish and Wildlife Service's endangered species programme is named as the consulting agency throughout.

What is genuinely new is the addition of a binding pre-construction survey and translocation protocol for 44 listed freshwater mussel species. The protocol is set out in Appendix C to the rule, and it is the first time that FEMA has published species-specific survey standards rather than deferring to grantees. The rule cites the National Native Mussel Conservation Strategy as its scientific basis and lists the 44 species by name, by range, and by the survey methods that must be used before any ground-disturbing work can begin.

Why does the rule single out freshwater mussels?

Freshwater mussels are the largest group of listed species in the contiguous United States that are routinely killed by disaster response infrastructure. There are 44 listed species of freshwater mussel under the Endangered Species Act, more than any other group of invertebrates, and their life cycle, in which the larval glochidia must attach to the gills of a specific host fish before they can become free-living, makes them impossible to replace on any project timetable. A road rebuilt over a crushed mussel bed is a road built over a host fish that will not be there next spring, and a population that disappears from one reach of a river does not come back from downstream, because the downstream reach is its own population.

Three recent disasters brought the problem into public view. The 2024 hurricanes in western North Carolina buried more than 60 miles of the French Broad River under sediment, and the Southeast Region of the Fish and Wildlife Service found afterwards that populations of the Appalachian elktoe, the green-blossom pearly mussel, and the Carolina heelsplitter had been reduced in ways that no project file had acknowledged. The 2025 floods in the Mississippi headwaters killed an unknown number of Higgins' eye pearlymussel and spectaclecase in the pool above the lock at Minneapolis. The 2026 tornadoes in central Tennessee knocked out bridges over the Duck and Elk rivers, in the range of the tan riffleshell and the Cumberland monkeyface, before any mussel survey had been done.

FEMA's rule is, in effect, a regulatory response to those three events. The Federal Register notice cites the Fish and Wildlife Service's "Survey Protocols for Freshwater Mussels" of 2024, the IUCN Red List assessments of 2025, and a 2026 report from the National Academies of Sciences, Engineering, and Medicine on the cumulative effects of disaster response on aquatic listed species. The rule's preamble is unusually long for an interim final rule, and it reads as if the agency expected to be challenged on the science.

What does Appendix C require a grantee to do before ground is broken?

Appendix C sets out a four-step protocol. The first step is a habitat assessment, in which a qualified malacologist walks the project footprint, identifies suitable substrate, and records the presence or absence of host fish. The second step is a timed survey, in which the same malacologist works the substrate by hand and by view, following the methods of the 2024 Fish and Wildlife Service survey protocols, for a duration scaled to the area of the footprint. The third step is a translocation plan, prepared in advance and submitted to FEMA, naming the receiving reach, the methods of transport, and the season in which the work will be done. The fourth step is a post-translocation monitoring plan, running for five years, in which the receiving reach is re-surveyed and the survival of the translocated individuals is reported back to the Service.

The rule does not require that the work be done by federal employees. It requires that the work be done by a malacologist who meets the Service's qualification standards, and it requires that the grantee certify, in writing, that the work has been done. The rule is, in this respect, closer to the way the Endangered Species Act treats section 10 permits than to the way it treats section 7 consultations, and the preamble says as much.

One practical effect is that Public Assistance projects in the range of any of the 44 species will, after 17 November 2026, take longer to start. The rule does not waive the protocol for emergencies. It says that the protocol may be compressed in an emergency, but that it may not be omitted, and it says that a grantee that omits it will be liable for the replacement cost of any listed mussel killed as a result. Replacement cost, in this context, is not a market price. It is the cost of captive propagation, the cost of host-fish culture, and the cost of five years of monitoring, and the rule gives the Fish and Wildlife Service discretion to set the figure.

Which species and which states are covered?

The 44 species named in Appendix C cover the full range of listed freshwater mussels in the United States, from the spectaclecase in the upper Mississippi to the fat three-ridge in the Gulf coastal drainages. The list is divided, in the rule, into four regional groups: the Ohio and Tennessee river systems, the upper Mississippi, the Gulf coastal drainages, and the Pacific slope. The Pacific slope group, which includes the western ridged mussel and the ridged-beak riffleshell, is the smallest, with only two species, and the Ohio and Tennessee group is the largest, with twenty-three.

Six states carry the largest share of the new obligation: Tennessee, Kentucky, Alabama, Mississippi, Virginia, and West Virginia, which together hold thirty-one of the forty-four species on the list. Two states, Ohio and Minnesota, carry an obligation in the upper Mississippi group, and two more, Texas and Louisiana, carry one in the Gulf group. No state in the Pacific group is named, because the two species there are listed under joint federal-tribal jurisdiction and the rule defers to the relevant tribal authorities.

Outside the United States, the rule has no direct effect, and the Convention on International Trade in Endangered Species does not list any of the 44 species under its Appendices, because the species are not traded. The rule is, in this respect, a domestic instrument, but the preamble notes that the IUCN Red List assessment of 2025 classified eleven of the 44 as Critically Endangered, and it cites that assessment as part of the basis for the rule's pre-construction survey standards.

What does this change for disaster response on the ground?

The change is, in plain language, that a county that pulls a levee back across a listed mussel bed after a flood is now doing so under a federal action, with federal section 7 paperwork, with a species-specific survey, and with a five-year monitoring bill. The county is not, in most cases, paying any of this directly. The cost is reimbursable under the Public Assistance programme. But the cost is no longer invisible, and the cost is no longer the cost of the levee alone. It is the cost of the levee plus the cost of the malacologist plus the cost of the five-year monitoring, and the rule makes the second and third costs part of the project file.

The rule's effective date, 17 November 2026, sits six weeks after publication, which is the standard interim final rule interval, but which is also the interval that allows comment without staying the rule. The Federal Register notice opens a 60-day comment period, and it says that the agency will consider comments in preparing the final rule, but that it will not delay the effective date. The Federal Register entry for 91 FR 68012 is the controlling citation.

For a county in eastern Tennessee, or for a tribal nation in western North Carolina, the rule means that the next bridge rebuilt after a flood will be rebuilt on a longer timetable, and at a higher recorded cost, than the one that washed out. The longer timetable is the point. The higher recorded cost is the point. The point, as the rule's preamble says in its closing paragraph, is that the species most often killed by disaster response infrastructure are not optional, and that the work of recovering them cannot be left to the next disaster.