2011 Federal Register, 76 FR 15919; Centralized Library: U.S. Fish and Wildlife Service - Federal Register, Volume 76 Issue 55 (Tuesday, March 22, 2011)

[Federal Register Volume 76, Number 55 (Tuesday, March 22, 2011)]
[Proposed Rules]
[Pages 15919-15932]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-6347]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2010-0011; MO 92210-0-0008]

Endangered and Threatened Wildlife and Plants; 12-Month Finding
on a Petition To List the Berry Cave Salamander as Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of 12-month petition finding.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce a
12-month finding on a petition to list the Berry Cave salamander
(Gyrinophilus gulolineatus) as endangered under the Endangered Species
Act of 1973, as amended (Act). After review of all available scientific
and commercial information, we find that listing the Berry Cave
salamander is warranted. Currently, however, listing is precluded by
higher priority actions to amend the Lists of Endangered and Threatened
Wildlife and Plants. Upon publication of this 12-month petition
finding, we will add the Berry Cave salamander to our candidate species
list. We will develop a proposed rule to list the Berry Cave salamander
as our priorities allow. We will make any determination on critical
habitat during development of the proposed listing rule. During any
interim period, we will address the status of the candidate taxon
through our annual Candidate Notice of Review (CNOR).

[[Page 15920]]

DATES: The finding announced in this document was made on March 22,
2011.

ADDRESSES: This finding is available on the Internet at http://www.regulations.gov at Docket Number FWS-R4-ES-2010-0011. Supporting
documentation we used in preparing this finding is available for public
inspection, by appointment, during normal business hours at the U.S.
Fish and Wildlife Service, Tennessee Ecological Services Field Office,
446 Neal Street, Cookeville, TN 38501. Please submit any new
information, materials, comments, or questions concerning this finding
to the above street address.

FOR FURTHER INFORMATION CONTACT: Mary E. Jennings, Field Supervisor,
Tennessee Ecological Services Field Office, 446 Neal Street,
Cookeville, TN 38501; by telephone 931-528-6481; or by facsimile at
931-528-7075. If you use a telecommunications device for the deaf
(TDD), please call the Federal Information Relay Service (FIRS) at 800-
877-8339.

SUPPLEMENTARY INFORMATION:

Background

Section 4(b)(3)(B) of the Act (16 U.S.C. 1531 et seq.) requires
that, for any petition to revise the Federal Lists of Threatened and
Endangered Wildlife and Plants that contains substantial scientific or
commercial information that listing a species may be warranted, we make
a finding within 12 months of the date of receipt of the petition. In
this finding, we determine whether the petitioned action is: (a) Not
warranted, (b) warranted, or (c) warranted, but immediate proposal of a
regulation implementing the petitioned action is precluded by other
pending proposals to determine whether species are endangered or
threatened, and expeditious progress is being made to add or remove
qualified species from the Federal Lists of Endangered and Threatened
Wildlife and Plants. Section 4(b)(3)(C) of the Act requires that we
treat a petition for which the requested action is found to be
warranted but precluded as though resubmitted on the date of such
finding, that is, requiring a subsequent finding to be made within 12
months. We must publish these 12-month findings in the Federal
Register.

Previous Federal Actions

On January 22, 2003, we received a petition dated January 15, 2003,
from Dr. John Nolt, University of Tennessee--Knoxville, requesting that
we list the Berry Cave salamander as endangered under the Act. The
petition clearly identified itself as such and included the requisite
identification information for the petitioner, as required in 50 CFR
424.14(a). In a February 24, 2003, letter to the petitioner, we
responded that we had received the petition but that, due to court
orders and settlement agreements for other listing and critical habitat
actions that required nearly all of our listing and critical habitat
funding, we would not be able to further address the petition at that
time.
The 90-day petition finding was published in the Federal Register
on March 18, 2010 (75 FR 13068). The Service found that the information
provided in the petition, supporting information submitted with the
petition, and information otherwise available in our files did provide
substantial scientific or commercial information indicating that
listing the Berry Cave salamander may be warranted. In the finding, we
stated that we were initiating a status review to determine whether
listing the species was warranted, and would issue a 12-month finding
accordingly. This document constitutes the 12-month finding on the
January 15, 2003, petition to list the Berry Cave salamander.

Species Information

Taxonomy and Species Description
Three taxonomic entities have been formally described within the
Tennessee cave salamander species complex. The pale salamander
(Gyrinophilus palleucus palleucus) is the most widely distributed
member of the group and is found in middle Tennessee, northern Alabama,
and northwestern Georgia. The Big Mouth Cave salamander (G. p.
necturoides) is restricted to one cave in middle Tennessee, and the
Berry Cave salamander (G. gulolineatus) (formerly recognized as the
subspecies G. p. gulolineatus) has been recorded from nine locations in
eastern Tennessee.
Members of the Tennessee cave salamander complex are related to the
spring salamander (G. porphyriticus); however, unlike the spring
salamander, they usually are found in caves and are neotenic, meaning
that they normally retain larval characteristics as adults. Individuals
occasionally metamorphose and lose their larval characters (Simmons
1976, p. 256; Yeatman and Miller 1985, pp. 305-306), and metamorphosis
can be induced by subjecting them to hormones (Dent and Kirby-Smith
1963, p. 123).
The Berry Cave salamander is differentiated from other members of
the group by a distinctive dark stripe on the upper portion of the
throat, a wider head, a flatter snout, and possibly a larger size
(Brandon 1965, p. 347). Despite these differences, the taxonomic status
of the Berry Cave salamander has been debated for some time. The Berry
Cave salamander was recognized as a distinct aquatic, cave-dependant
taxon of the Tennessee cave salamander complex by Brandon (1965, pp.
346-352), who described it as a subspecies (G. p. gulolineatus). The
Tennessee Wildlife Resources Agency (TWRA) (2005, p. 50) still uses
this subspecific designation. Brandon et al. (1986, pp. 1-2) suggested
the Berry Cave salamander be considered separate from the Tennessee
cave salamander based on nonadjacent ranges (it is geographically
isolated from other members of the complex), dissimilarity in bone
structures of transformed adults, and morphology of neotenic adults.
Furthermore, Niemiller et al. (2010b, p. 5) found that Berry Cave
salamander populations they sampled have three unique alleles when
compared to the Tennessee cave salamander. According to Niemiller et
al. (2008, p. 2), current taxonomy recognizes the Tennessee cave
salamander (G. palleucus) and the Berry Cave salamander (G.
gulolineatus) as two independent species. Because most authorities now
assign the Berry Cave salamander species-level status (Brandon 1965, p.
347; Brandon 1986, pp. 1-2; Collins 1991, p. 43; Simmons 1976, p. 276;
IUCN 2010; ITIS 2010), we consider the Berry Cave salamander to be a
distinct species, G. gulolineatus, for the purposes of this finding.
Distribution
Until recently, only eight populations of the Berry Cave salamander
were documented: Seven from caves and one from a roadside ditch in
McMinn County, Tennessee, where three individuals were collected
(presumably washed into the ditch from a cave). Salamanders in Cruze
Cave, formerly considered to be Berry Cave salamanders, are now thought
to be spring salamanders (Miller and Niemiller 2008, p. 14). A closer
analysis of Cruze Cave animals revealed the presence of an iris (absent
in the Berry Cave salamander), a high propensity to metamorphose (23
percent of individuals collected), and relatively large eye size when
compared to Berry Cave salamanders (Miller and Niemiller 2008, p. 14).
Furthermore, genetics indicated that Cruze Cave individuals shared the
spring salamander's haplotype (closely linked genetic markers present
on a single chromosome) and group (having a common ancestor) (Niemiller
2006, p. 41). Therefore Cruze Cave is no longer

[[Page 15921]]

thought to contain a population of Berry Cave salamanders.
However, recent population surveys (April 2004 through June 2007)
resulted in the discovery of Berry Cave salamanders in two new Knox
County caves (Aycock Spring and Christian caves). According to Miller
and Niemiller (2008, p. 10), the Berry Cave salamander is recorded from
nine localities within the Appalachian Valley and Ridge Province in
East Tennessee. These include eight caves within the Upper Tennessee
River and Clinch River drainages (Niemiller et al. 2009, p. 243) and
one unknown cave in McMinn County, Tennessee (Brandon 1965, p. 348).
The Berry Cave salamander is currently known from Berry Cave, which is
located south of Knoxville, Tennessee (in Roane County) (Niemiller
2006, p. 96); from Mud Flats, Aycock Spring, Christian, Meades Quarry,
Meades River, and Fifth caves in Knox County (Niemiller and Miller
2010, p. 2), the latter three being part of the larger Meades Quarry
Cave System (Brian Miller, Middle Tennessee State University, pers.
comm., 2010); from Blythe Ferry Cave (in Meigs County) (Niemiller and
Miller 2010, p. 2); and from an unknown cave in Athens, McMinn County,
Tennessee. The Athens record is based solely on the three specimens
collected in a roadside ditch during a flooding of Oostanaula
(Eastanollee) Creek (Brandon 1965, pp. 348-349). The species has not
been observed in the Athens area since 1953.
Miller and Niemiller (2008, p. 11) suggested that populations of
the Berry Cave salamander could occur throughout the Valley and Ridge
Province in interconnected subterranean waters associated with the
Tennessee River. Distribution studies are limited due to
inaccessibility of smaller cave systems, but Miller and Niemiller
(2006, p. 15) suggest that cave salamander populations are likely
small. Western dispersal appears to be prohibited by a fault zone
located west of the East Tennessee Aquifer System (Miller and Niemiller
2008, p. 10).
Historical estimates of Berry Cave salamander densities and
population trends are lacking. Miller and Niemiller (2006, p. 44)
provided numbers of Berry Cave salamanders observed in Berry and
Mudflats caves by decade, but the information has gaps and is
insufficient for analysis. Miller and Niemiller (2005, p. 93) planned
to implant salamanders with tags for population estimates on return
cave visits, comparing marked to unmarked individuals captured.
However, in an unpublished report to TWRA (Miller and Niemiller 2006,
p. 15), the authors state that time constraints did not allow for mark-
recapture studies to be performed in each cave and that population
estimates were based on the number of salamanders found during the
surveys. These surveys concluded that Berry Cave salamander populations
are robust at Berry and Mudflats caves where population declines had
been previously reported (Miller and Niemiller 2008, p. 1; Miller and
Niemiller 2006, p. 44). According to Miller and Niemiller (2008, pp. 1,
17-20), a total of 113 caves in Middle and East Tennessee were surveyed
from the time period of April 2004 through June 2007, resulting in
observations of 63 Berry Cave salamanders.
Habitat
Limited information is available concerning the habitat
requirements of the Berry Cave salamander. According to Miller and
Niemiller (2008, pp. 10-11), the Berry Cave salamander is associated
with subterranean waters within the Appalachian Valley and Ridge
Province in East Tennessee. In general, cave-obligate salamanders
require an inflow of organic detritus, aquatic organisms on which to
feed, and sufficient cover in the form of rocks and ledges. Studies
indicate that the tendency to utilize cover varies between caves, but
the Berry Cave salamander often seeks refuge in crevices, cover areas,
and overhanging ledges when disturbed (Niemiller et al. 2010b, p. 10;
Miller and Niemiller 2006, p. 11).
Biology
Life requirements of the Tennessee cave salamander complex are
poorly documented due to their reclusive nature and the obscurity of
subterranean environments (Niemiller 2006, p. 9). Animals found in the
same location during mark-recapture studies indicate that Berry Cave
salamander territories are diminutive (Miller and Niemiller 2008, p.
11).
Little is known in general about breeding habits, life spans, or
numbers comprising individual populations within the Tennessee cave
salamander complex (Miller and Niemiller 2005, p. 92). Transition time
from larval stage to reproductive adult is currently undocumented.
Members of the Tennessee cave salamander complex are paedomorphic
(retain juvenile characteristics as an adult) and become sexually
mature without metamorphosing into an adult form (Brandon 1966, in
Niemiller et al. 2008, p. 2). Female salamanders in the Tennessee cave
salamander complex are believed to be gravid from late autumn to early
winter (Niemiller et al. 2010a, p. 39). Gyrinophilus species are
generalist feeders and cannibalization of other conspecifics (belonging
to the same species) may cause females of some species to seek
isolation from main cave streams for oviposition (laying eggs)
(Niemiller et al. 2010a, pp. 38-39). To date, neither eggs nor embryos
have been described (Niemiller and Miller 2010, p. 1).

Summary of Information Pertaining to the Five Factors

Section 4 of the Act (16 U.S.C. 1533), and implementing regulations
(50 CFR 424), set forth procedures for adding species to the Federal
Lists of Endangered and Threatened Wildlife and Plants. Under section
4(a)(1) of the Act, a species may be determined to be endangered or
threatened based on any of the following five factors:
(A) The present or threatened destruction, modification, or
curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or
educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued
existence.
In considering what factors might constitute threats to a species,
we must look beyond the mere exposure of the species to the factor to
evaluate whether the species may respond to the factor in a way that
causes actual impacts to the species. If there is exposure to a factor
and the species responds negatively, the factor may be a threat and we
attempt to determine how significant a threat it is. The threat is
significant if it drives, or contributes to, the risk of extinction of
the species such that the species warrants listing as endangered or
threatened as those terms are defined in the Act.
In making this finding, information pertaining to the Berry Cave
salamander in relation to the five factors provided in section 4(a)(1)
of the Act is discussed below.

Factor A. The Present or Threatened Destruction, Modification, or
Curtailment of Its Habitat or Range

According to Caldwell and Copeland (1992, pp. 3-4), the greatest
threats to the Tennessee cave salamander complex are derived from
agricultural runoff, pesticide use in residential and agricultural
settings, over-collection, increased water flow into and through cave
systems following timber operations, and siltation caused by the
removal of trees from riparian zones. Although standard best management

[[Page 15922]]

practices (BMPs) for timber harvesting require intact riparian buffers
and prohibit instream operation of heavy equipment, these BMPs are not
always followed and may not fully prevent sediment from entering
streams. Siltation may adversely affect reproduction by filling
crevices used for egg deposition or covering the eggs themselves
(Miller and Niemiller 2006, p. 22). Niemiller and Miller (2006, p. 10)
believe that Berry Cave salamander populations, specifically, are most
vulnerable to habitat degradation associated with urbanization, over-
collecting, and poor silvicultural and agricultural practices.
Boone and Bridges (2003) (in Miller and Niemiller (2006, p. 22))
found that water contamination caused by pesticide and roadway runoff
poses a considerable threat to cave systems. Hayes et al. (2006, p. 40)
suggest that amphibians are particularly vulnerable to pesticides due
to their highly permeable skin combined with the fact that their
critical reproductive and developmental stages occur while they are in
aquatic environments. Some persistent pesticides are active at low
environmental concentrations and act as endocrine disrupters in
amphibians, causing delayed metamorphosis, developmental retardation,
and stunted larval growth (Hayes et al. 2006, p. 40).
According to Miller and Niemiller (2008, p. 13), there are few
water quality data available for caves where the Berry Cave salamander
is documented, and the source of the streams is not well understood.
Niemiller (2006, p. 96) observed three individuals in Meades Quarry
Cave and three in Mudflats Cave, caves that are heavily silted and
prone to flooding (Miller and Niemiller 2006, p. 22). The Mudflats Cave
system is thought to be affected by residential pollution (e.g.,
herbicides, pesticides, exhaust runoff, and silt load) from a nearby
housing development (Miller and Niemiller 2008, p. 13), although no
studies have been done to substantiate this (Miller, pers. comm.,
2005). Caldwell and Copeland (1992, p. 3) suggest that increased
``through flow'' (water passing through the cave) can flush salamanders
and their aquatic invertebrate food base from caves as well as
introduce contaminants into them at a quicker rate. Miller and
Niemiller (2006, pp. 22-23) cite Boone and Bridges (2003) as evidence
of adverse effects to amphibian species from pesticide contamination,
but note that regular flooding of caves appears to wash silt from the
systems and that data on the long-term effects to the species from
``through flow'' fluctuations are lacking.
Meades Quarry Cave continues to be greatly impacted by past
quarrying activities. Niemiller et al. (2010b, p. 11) indicate that
cave passages were destroyed by quarrying and that lye leaching
continues to alkalize the system near the main entrance to the cave.
Water pH tests reveal fluctuations in pH levels from 8.4 to 12.7
downstream of the cave entrance, and Berry Cave salamanders have been
observed with chemical burns (Niemiller et al. 2010b, p. 11). Matthew
Niemiller (University of Tennessee, pers. comm., 2010) suggested that
removal of larger lye deposits would reduce alkalinity input if the
main point source could be located.
There are substantial concerns for the six documented Knox County
caves where Berry Cave salamanders are known to occur (Mud Flats,
Aycock Spring, Christian, Meades Quarry, Meades River, and Fifth caves)
due to growth of metropolitan Knoxville (Miller and Niemiller 2008, p.
1). Construction activities, such as residential and business
developments, land clearing, and highway projects, frequently result in
stream siltation, toxic runoff (e.g., solvents, chemical spills, road
salt oil and grease), and urban pollution. Stream temperatures are
elevated by removal of trees from riparian zones (forested land along
streams and rivers), and hydrologic fluctuations result from increased
silt load; elevated stream temperatures and hydrologic fluctuations
both potentially affect the quantity and quality of organic matter
available to cave systems. Data are currently lacking on long-term
effects of hydrologic fluctuations on salamander population size, but
it is thought that an increase in siltation affects reproduction
(Miller and Niemiller 2006, pp. 22-23). While Berry Cave salamander
populations have persisted, development is known to be occurring and
affecting the salamander in all six Knox County caves. Heavy siltation
is present in Mudflats Cave, believed to be associated with the
Gettysvue housing development (Niemiller et al. 2010b, p. 11). Miller
and Niemiller (2008, p. 13) indicate that residential housing
developments and roads are being constructed near Aycock Spring and
Christian caves. Development of a major roadway known as the James
White Parkway (South Knoxville Boulevard) has potential to impact Berry
Cave salamander populations in the Meades Quarry Cave system (Meades
Quarry, Meades River, and Fifth caves) by increased siltation from
construction, the creation or closures of cave openings by blasting and
excavating activities which could affect organic input into the system,
and an increase in impervious surface runoff that may contain various
environmental contaminants (e.g., oil, herbicides, salt). Meades Quarry
Cave contains the largest population of Berry Cave salamanders
documented and is currently impacted by hybridization with the spring
salamander and lye leaching associated with past quarrying activities
(Niemiller and Miller 2010, p. 3; M. Niemiller, pers. comm., July
2010).
Due to the proximity of the Meades Quarry Cave system to the
proposed James White Parkway, the Service requested, during a March 4,
2003, meeting with the Tennessee Department of Transportation (TDOT),
that a study be prepared to determine whether the potential alignments
would impact the surface area that recharges the Meades Quarry Cave
system. As a result, TDOT contracted ARCADIS to perform a dye trace
study of the affected watershed. ARCADIS (2009, p. 1-2) conducted a
hydrogeologic dye trace study from April through June 2009 to determine
which karst features within the Toll Subwatershed (i.e., a surface
watershed overlying Meades Quarry and Cruze caves) are connected to the
Meades Quarry Cave system. A positive trace from a large sinkhole, just
north of Sevierville Pike, indicates that it directly recharges the
Meades Quarry Cave system, and it is likely that four smaller
sinkholes, in proximity to this one, also drain into the Meades Quarry
Cave (ARCADIS 2009, pp. 5-1, 5-2). Dye trace results demonstrated a
general southwest to northeast orientation of groundwater flow (ARCADIS
2009, p. 5-1) and appeared to substantiate the hypothesis (based on
surface flow) that Cruze Cave and Meades Quarry Cave systems were not
hydrologically connected.
TDOT, in cooperation with the Federal Highway Administration, is
preparing an EIS for the James White Parkway project (John Hunter, TDOT
Project Manager, pers. comm., June 2009; Luke Eggering, Parsons
Consulting, pers. comm. October 2010). The concerns for potential
impacts to the Meades Quarry Cave system and the Berry Cave salamander
are being addressed by substantial changes in project design. In an
effort to satisfy the purpose and need of the project while minimizing
environmental impacts, TDOT is now proposing to construct a fully
access-controlled facility (South Knoxville Boulevard EIS 2010, p. 10).
Furthermore, the alignments under consideration have been purposefully
designed to avoid or minimize impacts to the recharge area for the
Meades

[[Page 15923]]

Quarry Cave system (South Knoxville Boulevard EIS 2010, p. 43). If
direct impacts are unavoidable, TDOT is proposing to install filtration
systems at sinkholes that recharge the Meades Quarry Cave system and to
suggest that local planners control growth by implementing development
buffers around environmentally sensitive areas (South Knoxville
Boulevard EIS 2010, pp. 43-44).
Ogden (2005) conducted a dye trace study on the watershed
contributing groundwater to the Berry Cave system in Roane County,
Tennessee. As determined by Ogden (2005, p. 4), five first-order
streams contribute to surface recharge of the Berry Cave system. The
recharge area was delineated following two dye traces and is comprised
of first-order streams that join the main sinking stream at the cave
entrance (Ogden 2005, p. 19). The cave stream is believed to receive
year-round input from Lawhon and Schommen springs and empties into a
spring on the bank of the Watts Bar Lake (Ogden 2005, p. 4). Water
quality results indicated normal conductivity levels and low nitrate
levels despite extensive cattle grazing within the recharge area.
Sulfate, iron, and phosphate levels were also determined to be low, and
pH measured at approximately 7.0 at the time of sampling (Ogden 2005,
p. 14). According to The Nature Conservancy (2006, Table 2), current
threats to Berry Cave include bacteriological loading in the form of
fecal coliform from agricultural runoff, disruption of organic flow due
to a lack of cattle exclusion, and erosion/sedimentation caused by
cattle access to streams that feed into Berry Cave. However, water
quality tests conducted in conjunction with the dye trace study
indicate that the system is uncontaminated (Ogden 2005, p. 14), and we
have no evidence to suggest that any of these impacts are occurring.
The Federal Government's Clean Water Act (CWA) of 1972 (33 U.S.C.
1251 et seq.) sets standards for releasing pollutants into waters of
the United States and regulates water quality standards for surface
water. Projects that could impact waters having a ``significant nexus''
to ``navigable waters'' are required under this law to apply for a
National Pollutant Discharge Elimination System (NPDES) permit prior to
construction. The Tennessee Department of Environment and
Conservation's Division of Water Pollution Control under the Tennessee
Water Quality Control Act requires that the applicant perform
compensatory mitigation for loss of linear feet of stream or pay into
the Tennessee Stream Mitigation Program. While these laws are designed
to protect water quality, impacts from projects are seldom viewed
cumulatively, and compensatory mitigation might not involve reparation
activities within the affected watershed. Therefore, degradation of
habitat for this species is ongoing, and these laws have not been
adequate to fully protect this species from water quality impacts
associated with increasing development and urbanization.
In summary, Knox County populations are believed to be highly
susceptible to habitat degradation from surrounding development (Miller
and Niemiller 2008, p. 13). Residential pollutants, increased silt load
from construction activities, and runoff of impervious surfaces
associated with urban development are ongoing threats to Berry Cave
salamander populations in six caves within metropolitan Knoxville.
Three of these populations (Meades Quarry, Meades River, and Fifth
caves) are part of the larger Meades Quarry Cave system (Miller, pers.
comm., 2010) and could be impacted by development of the proposed James
White Parkway Project. Past quarrying activities have resulted in high
water pH levels within the Meades Quarry Cave and observations of Berry
Cave salamanders with chemical burns. Residential housing developments
and road construction are occurring in proximity to Aycock Spring and
Christian caves (Miller and Niemiller 2008, p. 13). The Mudflats Cave
population is believed to be impacted by a nearby housing development
and associated water quality impacts (Miller and Niemiller 2008, p.
13). Water samples indicate that Berry Cave is uncontaminated, and
cattle access to streams that recharge the system is evidently not
impacting the cave system at this time. However, because of the overall
vulnerability of the Berry Cave salamander to impacts associated with
urbanization and the extent of overlap between current and projected
urbanization and Berry Cave salamander populations, we find the present
or threatened destruction, modification, or curtailment of its habitat
or range to be a significant threat of moderate magnitude. Further, the
information available to us at this time does not indicate that the
magnitude or imminence of this threat is likely to be appreciably
reduced in the foreseeable future.

Factor B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes

Most caves containing Berry Cave salamander populations are
privately owned, and visits to some of these caves are unsupervised
(Miller and Niemiller 2006, p. 24; Niemiller et al. 2010b, p. 12),
making the Berry Cave salamander vulnerable to recreational harvest.
The most robust Berry Cave salamander populations occur in caves that
are either gated or owned by conscientious landowners who monitor
access, but the threat of harvesting individuals for the pet trade
exists in unmonitored caves (M. Niemiller, pers. comm., 2010). Because
populations are considered to be small (Miller and Niemiller 2006, p.
15) and reproductive rates are low, unregulated take of individuals
could severely deplete breeding populations of Berry Cave salamanders
(Niemiller et al. 2010b, p. 12). However, we currently have no evidence
to suggest that recreational harvesting of Berry Cave salamander
populations is occurring.
The Tennessee Cave salamander is listed as Threatened by the State
of Tennessee. This listing provides protection for the Berry Cave
salamander as a State-classified subspecies of the Tennessee cave
salamander under the Tennessee Nongame and Endangered or Threatened
Wildlife Species Conservation Act of 1974 (Tennessee Code Annotated
sections 70-8-101-112). Take of a listed species, as defined by this
State legislation, is unlawful, and potential collectors are required
to possess a State permit. However, many cave visitors and recreational
cavers are likely unaware of the protected status of the Berry Cave
salamander. Moreover, Miller and Niemiller (2005, p. 93) find that most
recreational cavers are unable to properly identify salamander species,
and even biologists misidentify larval spring salamanders as Tennessee
cave salamanders. Thus, the State listing of the Berry Cave salamander
as a subspecies of the Threatened Tennessee cave salamander may not
alone provide adequate protection for this species.
In summary, although the potential for harvesting of individuals
exists in unmonitored caves, we have no information to indicate that
collection for the pet trade or other purposes is occurring.
Furthermore, the Tennessee State law discussed above is designed to
provide State protection to the Berry Cave salamander as a classified
subspecies of the Tennessee cave salamander, although a general lack of
public knowledge with regard to State wildlife laws and common species
misidentification may limit the State law's protectiveness. Because we
have no evidence to believe otherwise, we find that overutilization for
commercial, recreational, scientific, or educational purposes is a low
and nonimminent threat.

[[Page 15924]]

Factor C. Disease or Predation

In a June 20, 2005, e-mail to the Service, Dr. Brian Miller of
Middle Tennessee State University communicated concerns for parasitic
infections in Gyrinophilus species in two caves. Miller and Niemiller
(2006, p. 24) observed pervasive, raised nodules on the skin of all
Berry Cave salamanders collected within the Berry Cave system. The
population appeared otherwise healthy, and no individuals were taken
for analysis (Miller and Niemiller 2006, p. 15). Crayfish are believed
to be predators of the Tennessee cave salamander complex and were
numerous in caves where injured individuals were found, but Miller and
Niemiller (2006, p. 23) did not consider crayfish predation to be a
serious threat to cave salamanders.
In summary, we are uncertain as to whether disease or predation
constitutes a demonstrable threat to Berry Cave salamander populations
at this time. Because of the otherwise healthy appearance of
individuals, we find disease or predation to be a minimal threat of low
magnitude.

Factor D. The Inadequacy of Existing Regulatory Mechanisms

The Berry Cave salamander and its habitats are afforded some
protection from water quality and habitat degradation under the Federal
Clean Water Act and the Tennessee Department of Environment and
Conservation's Division of Water Pollution Control under the Tennessee
Water Quality Control Act. However, as demonstrated under Factor A,
degradation of habitat for this species is ongoing despite the
protection afforded by these laws. These laws alone have not been
adequate to fully protect this species from water quality impacts
associated with increasing development and urbanization.
The Tennessee Cave salamander was listed as Threatened by the State
of Tennessee in 1994. This listing provided protection for the Berry
Cave salamander as a classified subspecies of the Tennessee cave
salamander. Under the Tennessee Nongame and Endangered or Threatened
Wildlife Species Conservation Act of 1974 (Tennessee Code Annotated
sections 70-8-101-112), ``[I]t is unlawful for any person to take,
attempt to take, possess, transport, export, process, sell or offer for
sale or ship nongame wildlife, or for any common or contract carrier
knowingly to transport or receive for shipment nongame wildlife.''
Further, regulations included in the Tennessee Wildlife Resources
Commission Proclamation 00-15 Endangered or Threatened Species state
the following: ``Except as provided for in Tennessee Code Annotated,
Section 70-8-106(d) and (e), it shall be unlawful for any person to
take, harass, or destroy wildlife listed as threatened or endangered or
otherwise to violate terms of Section 70-8-105(c) or to destroy
knowingly the habitat of such species without due consideration of
alternatives for the welfare of the species listed in (1) of this
proclamation, or (2) the United States list of Endangered fauna.''
Under these regulations, potential collectors of this species are
required to have a State collection permit, although the effectiveness
of this permit is uncertain (see Factor B analysis above).
In summary, degradation of Berry Cave salamander habitat is ongoing
despite the protection afforded by State and Federal laws and
corresponding regulations. Despite these laws, development and
associated pollution continue to adversely affect the species. Because
of the vulnerability of Knox County populations of the Berry Cave
salamander and the imminence of these threats, we find the inadequacy
of existing regulatory mechanisms to be a significant threat of high
magnitude. Further, the information available to us at this time does
not indicate that the magnitude or imminence of this threat is likely
to be appreciably reduced in the foreseeable future.

Factor E. Other Natural or Manmade Factors Affecting the Species'
Continued Existence

According to M. Niemiller (pers. comm., July 2010), molecular and
morphological evidence exists of hybridization between the Berry Cave
salamander and the spring salamander in Meades Quarry Cave.
Hybridization between the two species may be a natural threat to pure
Berry Cave salamander populations as it affects the genetic integrity
of the species. Studies are underway by Ben Fitzpatrick (Assistant
Professor, Department of Ecology and Evolutionary Biology, University
of Tennessee) and Niemiller to determine the extent of hybridization
that is occurring between taxa in this system. It is debatable as to
whether this phenomenon is anthropogenically induced or a natural
process (M. Niemiller, pers. comm., July 2010). Currently, the Berry
Cave salamander maintains its species distinctiveness in spite of
ongoing interbreeding and range overlap with spring salamanders
(Niemiller et al. 2010b, p. 5), and hybridization is only known to be
occurring in Meades Quarry Cave (M. Niemiller, pers. comm., July 2010).
Research indicates that there is low gene flow between the two species
(Niemiller et al. 2008, p. 2), and Berry Cave salamanders and spring
salamanders are infrequently observed in the same cave systems
(Niemiller et al. 2010b, p. 13).
The Intergovernmental Panel on Climate Change (IPCC) concluded that
evidence of warming of the climate system is unequivocal (IPCC 2007a,
p. 30). Numerous long-term climate changes have been observed,
including changes in arctic temperatures and ice, and widespread
changes in precipitation amounts, ocean salinity, wind patterns, and
aspects of extreme weather including droughts, heavy precipitation,
heat waves, and the intensity of tropical cyclones (IPCC 2007b, p. 7).
While continued change is certain, the magnitude and rate of change is
unknown in many cases. Species that are dependent on specialized
habitat types, that are limited in distribution, or that have become
restricted to the extreme periphery of their range will be most
susceptible to the impacts of climate change. As previously mentioned,
the Berry Cave salamander is known only from the Appalachian Valley and
Ridge Province in East Tennessee within the Upper Tennessee River and
Clinch River drainages in Knox, Roane, Meigs, and McMinn Counties,
Tennessee. The species is believed to be confined to subterranean
aquatic environments (Niemiller et al. 2010, p. 5), and has been
documented in only eight caves and a roadside observation where
individuals were presumably washed from a cave. Western dispersal is
prohibited by a fault that occurs along the west of the East Tennessee
Aquifer System (Miller and Niemiller 2008, p. 10). Data on recent
trends and predicted changes for the Southeast United States (Karl et
al. 2009, pp. 111-116) provide some insight for evaluating the threat
of climate change to the species. Since 1970, the average annual
temperature of the region has increased by about 2 degrees Fahrenheit
([deg]F) (1.1[deg] Celsius ([deg]C)), with the greatest increases
occurring during winter months. The geographic extent of areas in the
Southeast region affected by moderate to severe drought has increased
by 12 percent in the spring and 14 percent in the summer over the past
three decades (Karl et al. 2009, p. 111). These trends are expected to
increase.
Rates of warming are predicted to more than double in comparison to
what the Southeast has experienced since 1975, with the greatest
increases projected for summer months. Depending on the emissions
scenario

[[Page 15925]]

used for modeling change, average temperatures are expected to increase
by 4.5 [deg]F to 9 [deg]F (2.5 [deg]C to 5 [deg]C) by the 2080s (Karl
et al. 2009, p. 111). While there is considerable variability in
rainfall predictions throughout the region, increases in evaporation of
moisture from soils and loss of water by plants in response to warmer
temperatures are expected to contribute to increased frequency,
duration, and intensity of droughts (Karl et al. 2009, p. 112). If
these rainfall predictions are accurate, streams that feed karst
systems could experience significant decreases in flow volumes, lower
dissolved oxygen content, and warmer temperatures. These variables
could influence the amount and quality of organic input to cave systems
essential in sustaining healthy prey populations for the Berry Cave
salamander.
Application of continental-scale climate change models to regional
landscapes and even more local or ``step-down'' models projecting
habitat potential based on climatic factors, is informative but
contains a high level of uncertainty when predicting future effects to
individual species and their habitats. This is due to a variety of
factors including regional weather patterns, local physiographic
conditions, life stages of individual species, generation time of
species, and species' reactions to changing carbon dioxide levels.
Therefore, the usefulness of models in assessing the threat of climate
change on the Berry Cave salamander within its range is also limited.
Due to a variety of factors, e.g., variability surrounding regional
rainfall predictions and how these precipitation events would affect
the species, uncertainty remains regarding whether cave systems would
maintain current ambient temperatures and how climate changes might
affect inflow of organic detritus and availability of invertebrate food
sources; we are therefore unable to confidently identify climate change
threats (or their magnitude) to the Berry Cave salamander. We have no
evidence that climatic changes observed to date have had any adverse
impact on the species or its habitat.
In summary, hybridization is occurring between the Berry Cave
salamander and the spring salamander in Meades Quarry Cave (Niemiller
et al. 2010b, p. 5), although there appears to be low gene flow between
the two species (Niemiller et al. 2008, p. 2). Because Meades Quarry
Cave is still believed to house the healthiest population (Niemiller
and Miller 2010, p. 3) and hybridization is not known to be impacting
Berry Cave salamander populations in other caves, we find this natural
or manmade factor affecting the species' continued existence to be a
threat of low magnitude. Although climate change may affect the species
in the future, we lack adequate information to make reasonable
predictions regarding the extent of the impact at this time. The
available information does not indicate that climate change is a
significant threat to the Berry Cave salamander, or that it is likely
to become a significant threat in the foreseeable future.

Finding

As required by the Act, we conducted a review of the status of the
species and considered the five factors in assessing whether the Berry
Cave salamander is in danger of extinction or likely to become so
within the foreseeable future throughout all or a significant portion
of its range. We examined the best scientific and commercial
information available regarding the past, present, and future threats
faced by the Berry Cave salamander. We reviewed the petition,
information available in our files, and other available published and
unpublished information, and we consulted with species and habitat
experts and other Federal and State agencies.
This status review identified threats to the Berry Cave salamander
attributable to Factors A, B, C, D, and E (see Table 1 below). However,
ongoing threats are from habitat modification, inadequacy of existing
regulatory mechanisms, and other natural and manmade factors (Factors
A, D, and E). These are in the form of lye leaching in the Meades
Quarry Cave as a result of past quarrying activities, a proposed
roadway with potential to impact the recharge area for the Meades
Quarry Cave system, urban development in Knox County, water quality
impacts despite existing State and Federal laws, and hybridization
between spring salamanders and Berry Cave salamanders in Meades Quarry
Cave. Because the available evidence would suggest that the Berry Cave
salamander exists in relatively low population densities (Miller and
Niemiller 2006, p. 15) and distribution is confined to subterranean
waters within the Tennessee River and Clinch River watersheds (Miller
and Niemiller 2008, p. 10), the species cannot readily tolerate losses
of populations or even many individuals.

Table 1--Summary of Berry Cave Salamander Status and Threats by Documented Population
----------------------------------------------------------------------------------------------------------------
Population locality Current status Regional/local threats
----------------------------------------------------------------------------------------------------------------
Aycock Spring Cave (Knox County, TN)..... Extant............................. Factors A, B, and D: Urban
development, potential for
unregulated take, and
inadequacy of existing
regulatory mechanisms (ongoing
threat).
Berry Cave (Roane County, TN)............ Extant............................. Factor C: Parasites (perceived
threat).
Blythe Ferry Cave (Meigs County, TN)..... Unknown (last obs. 1975)........... Unknown.
Christian Cave (Knox County, TN)......... Extant............................. Factors A, B, and D: Urban
development, potential for
unregulated take, and
inadequacy of existing
regulatory mechanisms (ongoing
threat).
Fifth Cave (Knox County, TN)............. Extant............................. Factors A and D: Proposed
roadway, urban development, and
inadequacy of existing
regulatory mechanisms (ongoing
threat).
Meades River Cave (Knox County, TN)...... Extant............................. Factors A and D: Proposed
roadway, urban development, and
inadequacy of existing
regulatory mechanisms (ongoing
threat).
Meades Quarry Cave (Knox County, TN)..... Extant............................. Factors A, D, and E: Proposed
roadway, urban development,
inadequacy of existing
regulatory mechanisms, lye
leaching, and other natural and
manmade factors (ongoing
threat).
Mudflats Cave (Knox County, TN).......... Extant............................. Factors A, B, and D: Urban
development, potential for
unregulated take, and
inadequacy of existing
regulatory mechanisms (ongoing
threat).

[[Page 15926]]

Roadside ditch (McMinn County, TN)....... Unknown (last obs. 1953)........... Factors A and D: Urban
development and inadequacy of
existing regulatory mechanisms
(ongoing threat if the
population exists).
----------------------------------------------------------------------------------------------------------------

Development is largely responsible for pollution entering cave
systems where Berry Cave salamanders occur and could additionally cause
fluctuations in organic matter input and hydrologic levels as a result
of sediment deposition, higher temperatures in streams that recharge
systems when trees are removed from riparian zones (forested land along
streams and rivers), and an increase in toxic runoff. The proposed
James White Parkway project has the potential to directly impact Berry
Cave salamander populations within the Meades Quarry Cave system
(Meades Quarry, Meades River, and Fifth caves) by increased siltation
from construction, creation or closures of cave openings by blasting
activities that would affect organic input into the system, and toxic
roadway runoff into sinkholes that recharge the Meades Quarry Cave
system. We have determined that these factors could lead to a decline
in Berry Cave salamander abundance because the majority of documented
populations are located within the urban growth boundary of
metropolitan Knoxville, and Meades Quarry Cave houses the largest
population known.
On the basis of the best scientific and commercial information
available, we find that the petitioned action, to list the Berry Cave
salamander under the Act is warranted. We will make a determination on
the status of the species as endangered or threatened when we prepare a
proposed listing determination. However, as explained in more detail
below, an immediate proposal of a regulation implementing this action
is precluded by higher priority listing actions, and progress is being
made to add or remove qualified species from the Lists of Endangered
and Threatened Wildlife and Plants.

Emergency Listing

We reviewed the available information to determine if the existing
and foreseeable threats render the species at risk of extinction now
such that issuing an emergency regulation temporarily listing the
species in accordance with section 4(b)(7) of the Act is warranted. We
determined that issuing an emergency regulation temporarily listing the
species is not warranted at this time because recent studies have
documented two new populations of Berry Cave salamanders (Aycock Spring
and Christian caves) and have resulted in observations of robust
populations at historical sites previously reported to be in decline
(Miller and Niemiller 2008, p. 1). Furthermore, the threat to Berry
Cave salamander populations from construction of the James White
Parkway is being partially addressed by TDOT's proposal for a fully
access-controlled facility and the design of alignment alternatives to
purposefully avoid or minimize impacts to sinkholes that recharge the
Meades Quarry Cave system (South Knoxville Boulevard EIS 2010, pp. 10,
43). However, if at any time we determine that issuing an emergency
regulation temporarily listing the Berry Cave salamander is warranted,
we will initiate the action at that time.

Listing Priority Number

The Service adopted guidelines on September 21, 1983 (48 FR 43098)
to establish a rational system for utilizing available resources for
the highest priority species when adding species to the Lists of
Endangered or Threatened Wildlife and Plants or eclassifying species
listed as threatened to endangered status. These guidelines, titled
``Endangered and Threatened Species Listing and Recovery Priority
Guidelines,'' address the immediacy and magnitude of threats, and the
level of taxonomic distinctiveness by assigning priority in descending
order to monotypic genera (genus with one species), full species, and
subspecies (or equivalently, distinct population segments of
vertebrates). Using these guidelines, we assign each candidate a
listing priority number (LPN) of 1 to 12, depending on the magnitude of
the threats (high or moderate to low), immediacy of threats (imminent
or nonimminent), and taxonomic status of the species. The lower the
LPN, the higher the listing priority (that is, a species with an LPN of
1 would have the highest listing priority). We assigned the Berry Cave
salamander an LPN of 8 based on our finding that the species faces
threats that are of moderate magnitude and are imminent. These threats
include the present or threatened destruction, modification, or
curtailment of its habitat or range, and the inadequacy of existing
regulatory mechanisms. Our rationale for assigning the Berry Cave
salamander a LPN of 8 is outlined below.
Under the Service's LPN guidelines, the magnitude of threat is the
first criterion we look at when establishing a listing priority. The
guidelines indicate that species with the highest magnitude of threat
are those species facing the greatest threats to their continued
existence. These species receive the highest listing priority. We
consider the threats facing the Berry Cave salamander to be moderate in
magnitude. Several of the threats to the species (roadway construction,
development in proximity to populations, and impacts to water quality)
occur across the majority of the species' range. Due to its limited
geographic range within subterranean waters of the Tennessee and Clinch
River systems, impacts to these systems could have a detrimental effect
on Berry Cave salamander populations. Habitat degradation associated
with residential, business, and commercial development has high
potential to adversely affect Berry Cave salamander populations by
impacting water quality. While water quality regulations such as the
Clean Water Act and the Tennessee Water Quality Control Act are
designed to protect aquatic systems, stream mitigation practices only
provide for loss of linear feet of stream and do not consider water
quality concerns or impacts to affected species. Six of the eight caves
where the species has been documented are within Knoxville's urban
boundary (Niemiller and Miller 2010, p. 2) and are highly susceptible
to future development activities. While the threats facing the species
are numerous and in some cases widespread, we decided they were of
moderate, rather than high, magnitude because the salamander still
occurs in several different cave systems, and existing populations
appear stable. Nonetheless, intensification of these threats could
threaten the long-term viability of the species.
Under our LPN guidelines, the second criterion we consider in
assigning a listing priority is the immediacy of threats. This
criterion is intended to ensure that the species that face actual,
identifiable threats are given priority

[[Page 15927]]

over those for which threats are only potential or for those that are
intrinsically vulnerable but are not known to be presently facing such
threats. The threats are imminent because we have factual information
that the threats are identifiable and on-going, and that they often
overlap or occur throughout most of the species' range. These actual,
identifiable threats are covered in detail under the discussion of
Factors A and D of this finding and currently include chronic lye
leaching in the Meades Quarry Cave due to past quarrying activities,
highway development and urban growth in Knox County, and water quality
impacts despite existing State and Federal laws.
The third criterion in our LPN guidelines is intended to devote
resources to those species representing highly distinctive or isolated
gene pools as reflected by taxonomy. The Berry Cave salamander is a
valid taxon at the species level, and therefore receives a higher
priority than subspecies, but a lower priority than species in a
monotypic genus.
In summary, the Berry Cave salamander faces imminent threats of
moderate magnitude, and is a valid taxon at the species level. Thus, in
accordance with our LPN guidelines, we have assigned the Berry Cave
salamander an LPN of 8.
We will continue to monitor the threats to, and status of, the
Berry Cave salamander on an annual basis, and should the magnitude or
the imminence of the threats change, we will revisit our assessment of
the LPN.
Work on a proposed listing determination for the Berry Cave
salamander is precluded by work on higher priority listing actions with
absolute statutory, court-ordered, or court-approved deadlines and on
final listing determinations for those species that were proposed for
listing with funds from Fiscal Year 2011. This work includes all the
actions listed in the tables below under expeditious progress.

Preclusion and Expeditious Progress

Preclusion is a function of the listing priority of a species in
relation to the resources that are available and the cost and relative
priority of competing demands for those resources. Thus, in any given
fiscal year (FY), multiple factors dictate whether it will be possible
to undertake work on a listing proposal regulation or whether
promulgation of such a proposal is precluded by higher-priority listing
actions.
The resources available for listing actions are determined through
the annual Congressional appropriations process. The appropriation for
the Listing Program is available to support work involving the
following listing actions: Proposed and final listing rules; 90-day and
12-month findings on petitions to add species to the Lists of
Endangered and Threatened Wildlife and Plants (Lists) or to change the
status of a species from threatened to endangered; annual
``resubmitted'' petition findings on prior warranted-but-precluded
petition findings as required under section 4(b)(3)(C)(i) of the Act;
critical habitat petition findings; proposed and final rules
designating critical habitat; and litigation-related, administrative,
and program-management functions (including preparing and allocating
budgets, responding to Congressional and public inquiries, and
conducting public outreach regarding listing and critical habitat). The
work involved in preparing various listing documents can be extensive
and may include, but is not limited to: Gathering and assessing the
best scientific and commercial data available and conducting analyses
used as the basis for our decisions; writing and publishing documents;
and obtaining, reviewing, and evaluating public comments and peer
review comments on proposed rules and incorporating relevant
information into final rules. The number of listing actions that we can
undertake in a given year also is influenced by the complexity of those
listing actions; that is, more complex actions generally are more
costly. The median cost for preparing and publishing a 90-day finding
is $39,276; for a 12-month finding, $100,690; for a proposed rule with
critical habitat, $345,000; and for a final listing rule with critical
habitat, $305,000.
We cannot spend more than is appropriated for the Listing Program
without violating the Anti-Deficiency Act (see 31 U.S.C.
1341(a)(1)(A)). In addition, in FY 1998 and for each fiscal year since
then, Congress has placed a statutory cap on funds that may be expended
for the Listing Program, equal to the amount expressly appropriated for
that purpose in that fiscal year. This cap was designed to prevent
funds appropriated for other functions under the Act (for example,
recovery funds for removing species from the Lists), or for other
Service programs, from being used for Listing Program actions (see
House Report 105-163, 105th Congress, 1st Session, July 1, 1997).
Since FY 2002, the Service's budget has included a critical habitat
subcap to ensure that some funds are available for other work in the
Listing Program (``The critical habitat designation subcap will ensure
that some funding is available to address other listing activities''
(House Report No. 107-103, 107th Congress, 1st Session, June 19,
2001)). In FY 2002 and each year until FY 2006, the Service has had to
use virtually the entire critical habitat subcap to address court-
mandated designations of critical habitat, and consequently none of the
critical habitat subcap funds have been available for other listing
activities. In some FYs since 2006, we have been able to use some of
the critical habitat subcap funds to fund proposed listing
determinations for high-priority candidate species. In other FYs, while
we were unable to use any of the critical habitat subcap funds to fund
proposed listing determinations, we did use some of this money to fund
the critical habitat portion of some proposed listing determinations so
that the proposed listing determination and proposed critical habitat
designation could be combined into one rule, thereby being more
efficient in our work. At this time, for FY 2011, we do not know if we
will be able to use some of the critical habitat subcap funds to fund
proposed listing determinations.
We make our determinations of preclusion on a nationwide basis to
ensure that the species most in need of listing will be addressed first
and also because we allocate our listing budget on a nationwide basis.
Through the listing cap, the critical habitat subcap, and the amount of
funds needed to address court-mandated critical habitat designations,
Congress and the courts have in effect determined the amount of money
available for other listing activities nationwide. Therefore, the funds
in the listing cap, other than those needed to address court-mandated
critical habitat for already listed species, set the limits on our
determinations of preclusion and expeditious progress.
Congress identified the availability of resources as the only basis
for deferring the initiation of a rulemaking that is warranted. The
Conference Report accompanying Pub. L. 97-304 (Endangered Species Act
Amendments of 1982), which established the current statutory deadlines
and the warranted-but-precluded finding, states that the amendments
were ``not intended to allow the Secretary to delay commencing the
rulemaking process for any reason other than that the existence of
pending or imminent proposals to list species subject to a greater
degree of threat would make allocation of resources to such a petition
[that is, for a lower-ranking species] unwise.''

[[Page 15928]]

Although that statement appeared to refer specifically to the ``to the
maximum extent practicable'' limitation on the 90-day deadline for
making a ``substantial information'' finding, that finding is made at
the point when the Service is deciding whether or not to commence a
status review that will determine the degree of threats facing the
species, and therefore the analysis underlying the statement is more
relevant to the use of the warranted-but-precluded finding, which is
made when the Service has already determined the degree of threats
facing the species and is deciding whether or not to commence a
rulemaking.
In FY 2011, on March 2, 2011, Congress passed a continuing
resolution which provides funding at the FY 2010 enacted level through
March 18, 2011. Until Congress appropriates funds for FY 2011 at a
different level, we will fund listing work based on the FY 2010 amount.
Thus, at this time in FY 2011, the Service anticipates an appropriation
of $22,103,000 for the listing program based on FY 2010 appropriations.
Of that, the Service anticipates needing to dedicate $11,632,000 for
determinations of critical habitat for already listed species. Also
$500,000 is appropriated for foreign species listings under the Act.
The Service thus has $9,971,000 available to fund work in the following
categories: compliance with court orders and court-approved settlement
agreements requiring that petition findings or listing determinations
be completed by a specific date; section 4 (of the Act) listing actions
with absolute statutory deadlines; essential litigation-related,
administrative, and listing program-management functions; and high-
priority listing actions for some of our candidate species. In FY 2010,
the Service received many new petitions and a single petition to list
404 species. The receipt of petitions for a large number of species is
consuming the Service's listing funding that is not dedicated to
meeting court-ordered commitments. Absent some ability to balance
effort among listing duties under existing funding levels, it is
unlikely that the Service will be able to initiate any new listing
determination for candidate species in FY 2011.
In 2009, the responsibility for listing foreign species under the
Act was transferred from the Division of Scientific Authority,
International Affairs Program, to the Endangered Species Program.
Therefore, starting in FY 2010, we used a portion of our funding to
work on the actions described above for listing actions related to
foreign species. In FY 2011, we anticipate using $1,500,000 for work on
listing actions for foreign species which reduces funding available for
domestic listing actions; however, currently only $500,000 has been
allocated for this function. Although there are no foreign species
issues included in our high-priority listing actions at this time, many
actions have statutory or court-approved settlement deadlines, thus
increasing their priority. The budget allocations for each specific
listing action are identified in the Service's FY 2011 Allocation Table
(part of our record).
For the above reasons, funding a proposed listing determination for
the Berry Cave Salamander, which has an LPN of 8, is precluded by
court-ordered and court-approved settlement agreements, listing actions
with absolute statutory deadlines, and work on proposed listing
determinations for those candidate species with a higher listing
priority (i.e., candidate species with LPNs of 1 to 7).
Based on our September 21, 1983, guidelines for assigning an LPN
for each candidate species (48 FR 43098), we have a significant number
of species with a LPN of 2. Using these guidelines, we assign each
candidate an LPN of 1 to 12, depending on the magnitude of threats
(high or moderate to low), immediacy of threats (imminent or
nonimminent), and taxonomic status of the species (in order of
priority: monotypic genus (a species that is the sole member of a
genus); species; or part of a species (subspecies, distinct population
segment, or significant portion of the range)). The lower the listing
priority number, the higher the listing priority (that is, a species
with an LPN of 1 would have the highest listing priority).
Because of the large number of high-priority species, we have
further ranked the candidate species with an LPN of 2 by using the
following extinction-risk type criteria: International Union for the
Conservation of Nature and Natural Resources (IUCN) Red list status/
rank, Heritage rank (provided by NatureServe), Heritage threat rank
(provided by NatureServe), and species currently with fewer than 50
individuals, or 4 or fewer populations. Those species with the highest
IUCN rank (critically endangered), the highest Heritage rank (G1), the
highest Heritage threat rank (substantial, imminent threats), and
currently with fewer than 50 individuals, or fewer than 4 populations,
originally comprised a group of approximately 40 candidate species
(``Top 40''). These 40 candidate species have had the highest priority
to receive funding to work on a proposed listing determination. As we
work on proposed and final listing rules for those 40 candidates, we
apply the ranking criteria to the next group of candidates with an LPN
of 2 and 3 to determine the next set of highest priority candidate
species. Finally, proposed rules for reclassification of threatened
species to endangered are lower priority, because as listed species,
they are already afforded the protection of the Act and implementing
regulations. However, for efficiency reasons, we may choose to work on
a proposed rule to reclassify a species to endangered if we can combine
this with work that is subject to a court-determined deadline.
With our workload so much bigger than the amount of funds we have
to accomplish it, it is important that we be as efficient as possible
in our listing process. Therefore, as we work on proposed rules for the
highest priority species in the next several years, we are preparing
multi-species proposals when appropriate, and these may include species
with lower priority if they overlap geographically or have the same
threats as a species with an LPN of 2. In addition, we take into
consideration the availability of staff resources when we determine
which high-priority species will receive funding to minimize the amount
of time and resources required to complete each listing action.
As explained above, a determination that listing is warranted but
precluded must also demonstrate that expeditious progress is being made
to add and remove qualified species to and from the Lists of Endangered
and Threatened Wildlife and Plants. As with our ``precluded'' finding,
the evaluation of whether progress in adding qualified species to the
Lists has been expeditious is a function of the resources available for
listing and the competing demands for those funds. (Although we do not
discuss it in detail here, we are also making expeditious progress in
removing species from the list under the Recovery program in light of
the resource available for delisting, which is funded by a separate
line item in the budget of the Endangered Species Program. So far
during FY 2011, we have completed one delisting rule.) Given the
limited resources available for listing, we find that we are making
expeditious progress in FY 2011 in the Listing Program. This progress
included preparing and publishing the following determinations:

[[Page 15929]]

FY 2011 Completed Listing Actions
----------------------------------------------------------------------------------------------------------------
Publication date Title Actions FR pages
----------------------------------------------------------------------------------------------------------------
10/6/2010................. Endangered Status for the Proposed Listing, 75 FR 61664-61690
Altamaha Spinymussel and Endangered.
Designation of Critical Habitat.
10/7/2010................. 12-month Finding on a Petition Notice of 12-month 75 FR 62070-62095
to list the Sacramento petition finding,
Splittail as Endangered or Not warranted.
Threatened.
10/28/2010................ Endangered Status and Proposed Listing, 75 FR 66481-66552
Designation of Critical Habitat Endangered
for Spikedace and Loach Minnow. (uplisting).
11/2/2010................. 90-Day Finding on a Petition to Notice of 90-day 75 FR 67341-67343
List the Bay Springs Salamander Petition Finding,
as Endangered. Not substantial.
11/2/2010................. Determination of Endangered Final Listing, 75 FR 67511-67550
Status for the Georgia Pigtoe Endangered.
Mussel, Interrupted Rocksnail,
and Rough Hornsnail and
Designation of Critical Habitat.
11/2/2010................. Listing the Rayed Bean and Proposed Listing, 75 FR 67551-67583
Snuffbox as Endangered. Endangered.
11/4/2010................. 12-Month Finding on a Petition Notice of 12-month 75 FR 67925-67944
to List Cirsium wrightii petition finding,
(Wright's Marsh Thistle) as Warranted but
Endangered or Threatened. precluded.
12/14/2010................ Endangered Status for Dunes Proposed Listing, 75 FR77801-77817
Sagebrush Lizard. Endangered.
12/14/2010................ 12-month Finding on a Petition Notice of 12-month 75 FR 78029-78061
to List the North American petition finding,
Wolverine as Endangered or Warranted but
Threatened. precluded.
12/14/2010................ 12-Month Finding on a Petition Notice of 12-month 75 FR 78093-78146
to List the Sonoran Population petition finding,
of the Desert Tortoise as Warranted but
Endangered or Threatened. precluded.
12/15/2010................ 12-Month Finding on a Petition Notice of 12-month 75 FR 78513-78556
to List Astragalus microcymbus petition finding,
and Astragalus schmolliae as Warranted but
Endangered or Threatened. precluded.
12/28/2010................ Listing Seven Brazilian Bird Final Listing, 75 FR 81793-81815
Species as Endangered Endangered.
Throughout Their Range.
1/4/2011.................. 90-Day Finding on a Petition to Notice of 90-day 76 FR 304-311
List the Red Knot subspecies Petition Finding,
Calidris canutus roselaari as Not substantial.
Endangered.
1/19/2011................. Endangered Status for the Proposed Listing, 76 FR 3392-3420
Sheepnose and Spectaclecase Endangered.
Mussels.
2/10/2011................. 12-Month Finding on a Petition Notice of 12-month 76 FR 7634-7679
to List the Pacific Walrus as petition finding,
Endangered or Threatened. Warranted but
precluded.
2/17/2011................. 90-Day Finding on a Petition To Notice of 90-day 76 FR 9309-9318
List the Sand Verbena Moth as Petition Finding,
Endangered or Threatened. Substantial.
2/22/2011................. Determination of Threatened Final Listing, 76 FR 9681-9692
Status for the New Zealand- Threatened.
Australia Distinct Population
Segment of the Southern
Rockhopper Penguin.
2/22/2011................. 12-Month Finding on a Petition Notice of 12-month 76 FR 9722-9733
to List Solanum conocarpum petition finding,
(marron bacora) as Endangered. Warranted but
precluded.
2/23/2011................. 12-Month Finding on a Petition Notice of 12-month 76 FR 991-10003
to List Thorne's Hairstreak petition finding,
Butterfly as Endangered. Not warranted.
2/23/2011................. 12-Month Finding on a Petition Notice of 12-month 76 FR 10166-10203
to List Astragalus hamiltonii, petition finding,
Penstemon flowersii, Eriogonum Warranted but
soredium, Lepidium ostleri, and precluded & Not
Trifolium friscanum as Warranted.
Endangered or Threatened.
2/24/2011................. 90-Day Finding on a Petition to Notice of 90-day 76 FR 10299-10310
List the Wild Plains Bison or Petition Finding,
Each of Four Distinct Not substantial.
Population Segments as
Threatened.
2/24/2011................. 90-Day Finding on a Petition to Notice of 90-day 76 FR 10310-10319
List the Unsilvered Fritillary Petition Finding,
Butterfly as Threatened or Not substantial.
Endangered.
3/8/2011.................. 12-Month Finding on a Petition Notice of 12-month 76 FR 12667-12683
to List the Mt. Charleston Blue petition finding,
Butterfly as Endangered or Warranted but
Threatened. precluded.
3/8/2011.................. 90-Day Finding on a Petition to Notice of 90-day 76 FR 12683-12690
List the Texas Kangaroo Rat as Petition Finding,
Endangered or Threatened. Substantial.
3/10/2011................. Initiation of Status Review for Notice of Status 76 FR 13121-31322
Longfin Smelt. Review.
----------------------------------------------------------------------------------------------------------------

Our expeditious progress also includes work on listing actions that
we funded in FY 2010 and FY 2011 but have not yet been completed to
date. These actions are listed below. Actions in the top section of the
table are being conducted under a deadline set by a court. Actions in
the middle section of the table are being conducted to meet statutory
timelines, that is, timelines required under the Act. Actions in the
bottom section of the table are high-priority listing actions. These
actions include work primarily on species with an LPN of 2, and, as
discussed above, selection of these species is partially based on
available staff resources, and when appropriate, include species with a
lower priority if they overlap geographically or have the same threats
as the species with the high priority. Including these species together
in the same proposed rule results in considerable savings in time and
funding, when compared to preparing separate proposed rules for each of
them in the future.

[[Page 15930]]

Actions Funded in FY 2010 and FY 2011 But Not Yet Completed
------------------------------------------------------------------------
Species Action
------------------------------------------------------------------------
Actions Subject to Court Order/Settlement Agreement
------------------------------------------------------------------------
Mountain plover \4\........... Final listing determination.
Hermes copper butterfly \3\... 12-month petition finding.
4 parrot species (military 12-month petition finding.
macaw, yellow-billed parrot,
red-crowned parrot, scarlet
macaw) \5\.
4 parrot species (blue-headed 12-month petition finding.
macaw, great green macaw,
grey-cheeked parakeet,
hyacinth macaw) \5\.
4 parrot species (crimson 12-month petition finding.
shining parrot, white
cockatoo, Philippine
cockatoo, yellow-crested
cockatoo) \5\.
Utah prairie dog (uplisting).. 90-day petition finding.
------------------------------------------------------------------------
Actions with Statutory Deadlines
------------------------------------------------------------------------
Casey's june beetle........... Final listing determination.
6 Birds from Eurasia.......... Final listing determination.
5 Bird species from Colombia Final listing determination.
and Ecuador.
Queen Charlotte goshawk....... Final listing determination.
5 species southeast fish Final listing determination.
(Cumberland darter, rush
darter, yellowcheek darter,
chucky madtom, and laurel
dace) \4\.
Ozark hellbender \4\.......... Final listing determination.
Altamaha spinymussel \3\...... Final listing determination.
3 Colorado plants (Ipomopsis Final listing determination.
polyantha (Pagosa Skyrocket),
Penstemon debilis (Parachute
Beardtongue), and Phacelia
submutica (DeBeque Phacelia))
\4\.
Salmon crested cockatoo....... Final listing determination.
6 Birds from Peru & Bolivia... Final listing determination.
Loggerhead sea turtle (assist Final listing determination.
National Marine Fisheries
Service) \5\.
2 mussels (rayed bean (LPN = Final listing determination.
2), snuffbox No LPN) \5\.
CA golden trout \4\........... 12-month petition finding.
Black-footed albatross........ 12-month petition finding.
Mojave fringe-toed lizard \1\. 12-month petition finding.
Kokanee--Lake Sammamish 12-month petition finding.
population \1\.
Cactus ferruginous pygmy-owl 12-month petition finding.
\1\.
Northern leopard frog......... 12-month petition finding.
Tehachapi slender salamander.. 12-month petition finding.
Coqui Llanero................. 12-month petition finding./
Proposed listing.
Dusky tree vole............... 12-month petition finding.
3 MT invertebrates (meltwater 12-month petition finding.
lednian stonefly (Lednia
tumana), Oreohelix sp. 3,
Oreohelix sp. 31) from 206
species petition.
5 WY plants (Abronia 12-month petition finding.
ammophila, Agrostis rossiae,
Astragalus proimanthus,
Boechere (Arabis) pusilla,
Penstemon gibbensii) from 206
species petition.
Leatherside chub (from 206 12-month petition finding.
species petition).
Frigid ambersnail (from 206 12-month petition finding.
species petition) \3\.
Platte River caddisfly (from 12-month petition finding.
206 species petition) \5\.
Gopher tortoise--eastern 12-month petition finding.
population.
Grand Canyon scorpion (from 12-month petition finding.
475 species petition).
Anacroneuria wipukupa (a 12-month petition finding.
stonefly from 475 species
petition) \4\.
3 Texas moths (Ursia furtiva, 12-month petition finding.
Sphingicampa blanchardi,
Agapema galbina) (from 475
species petition).
2 Texas shiners (Cyprinella 12-month petition finding.
sp., Cyprinella lepida) (from
475 species petition).
3 South Arizona plants 12-month petition finding.
(Erigeron piscaticus,
Astragalus hypoxylus,
Amoreuxia gonzalezii) (from
475 species petition).
5 Central Texas mussel species 12-month petition finding.
(3 from 475 species petition).
14 parrots (foreign species).. 12-month petition finding.
Berry Cave salamander \1\..... 12-month petition finding.
Striped Newt \1\.............. 12-month petition finding.
Fisher--Northern Rocky 12-month petition finding.
Mountain Range \1\.
Mohave Ground Squirrel \1\.... 12-month petition finding.
Puerto Rico Harlequin 12-month petition finding.
Butterfly \3\.
Western gull-billed tern...... 12-month petition finding.
Ozark chinquapin (Castanea 12-month petition finding.
pumila var. ozarkensis) \4\.
HI yellow-faced bees.......... 12-month petition finding.
Giant Palouse earthworm....... 12-month petition finding.
Whitebark pine................ 12-month petition finding.
OK grass pink (Calopogon 12-month petition finding.
oklahomensis) \1\.
Ashy storm-petrel \5\......... 12-month petition finding.
Honduran emerald.............. 12-month petition finding.
Southeastern pop snowy plover 90-day petition finding.
& wintering pop. of piping
plover \1\.
Eagle Lake trout \1\.......... 90-day petition finding.
Smooth-billed ani \1\......... 90-day petition finding.
32 Pacific Northwest mollusks 90-day petition finding.
species (snails and slugs)
\1\.
42 snail species (Nevada & 90-day petition finding.
Utah).
Peary caribou................. 90-day petition finding.
Spring Mountains checkerspot 90-day petition finding.
butterfly.
Spring pygmy sunfish.......... 90-day petition finding.

[[Page 15931]]

Bay skipper................... 90-day petition finding.
Spot-tailed earless lizard.... 90-day petition finding.
Eastern small-footed bat...... 90-day petition finding.
Northern long-eared bat....... 90-day petition finding.
Prairie chub.................. 90-day petition finding.
10 species of Great Basin 90-day petition finding.
butterfly.
6 sand dune (scarab) beetles.. 90-day petition finding.
Golden-winged warbler \4\..... 90-day petition finding.
404 Southeast species......... 90-day petition finding.
Franklin's bumble bee \4\..... 90-day petition finding.
2 Idaho snowflies (straight 90-day petition finding.
snowfly & Idaho snowfly) \4\.
American eel \4\.............. 90-day petition finding.
Gila monster (Utah population) 90-day petition finding.
\4\.
Arapahoe snowfly \4\.......... 90-day petition finding.
Leona's little blue \4\....... 90-day petition finding.
Aztec gilia \5\............... 90-day petition finding.
White-tailed ptarmigan \5\.... 90-day petition finding.
San Bernardino flying squirrel 90-day petition finding.
\5\.
Bicknell's thrush \5\......... 90-day petition finding.
Chimpanzee.................... 90-day petition finding.
Sonoran talussnail \5\........ 90-day petition finding.
2 AZ Sky Island plants 90-day petition finding.
(Graptopetalum bartrami &
Pectis imberbis) \5\.
I'iwi \5\..................... 90-day petition finding.
------------------------------------------------------------------------
High-Priority Listing Actions
------------------------------------------------------------------------
19 Oahu candidate species \2\ Proposed listing.
(16 plants, 3 damselflies)
(15 with LPN = 2, 3 with LPN
= 3, 1 with LPN =9).
19 Maui-Nui candidate species Proposed listing.
\2\ (16 plants, 3 tree
snails) (14 with LPN = 2, 2
with LPN = 3, 3 with LPN = 8).
2 Arizona springsnails \2\ Proposed listing.
(Pyrgulopsis bernadina (LPN =
2), Pyrgulopsis trivialis
(LPN = 2)).
Chupadera springsnail \2\ Proposed listing.
(Pyrgulopsis chupaderae (LPN
= 2)).
8 Gulf Coast mussels (southern Proposed listing.
kidneyshell (LPN = 2), round
ebonyshell (LPN = 2), Alabama
pearlshell (LPN = 2),
southern sandshell (LPN = 5),
fuzzy pigtoe (LPN = 5),
Choctaw bean (LPN = 5),
narrow pigtoe (LPN = 5), and
tapered pigtoe (LPN = 11))
\4\.
Umtanum buckwheat (LPN = 2) Proposed listing.
and white bluffs bladderpod
(LPN = 9) \4\.
Grotto sculpin (LPN = 2) \4\.. Proposed listing.
2 Arkansas mussels (Neosho Proposed listing.
mucket (LPN = 2) &
Rabbitsfoot (LPN = 9)) \4\.
Diamond darter (LPN = 2) \4\.. Proposed listing.
Gunnison sage-grouse (LPN = 2) Proposed listing.
\4\.
Coral Pink Sand Dunes Tiger Proposed listing.
Beetle (LPN = 2) \5\.
Miami blue (LPN = 3) \3\...... Proposed listing.
Lesser prairie chicken (LPN = Proposed listing.
2).
4 Texas salamanders (Austin Proposed listing.
blind salamander (LPN = 2),
Salado salamander (LPN = 2),
Georgetown salamander (LPN =
8), Jollyville Plateau (LPN =
8)) \3\.
5 SW aquatics (Gonzales Spring Proposed listing.
Snail (LPN = 2), Diamond Y
springsnail (LPN = 2),
Phantom springsnail (LPN =
2), Phantom Cave snail (LPN =
2), Diminutive amphipod (LPN
= 2)) \3\.
2 Texas plants (Texas golden Proposed listing.
gladecress (Leavenworthia
texana) (LPN = 2), Neches
River rose-mallow (Hibiscus
dasycalyx) (LPN = 2)) \3\.
4 AZ plants (Acuna cactus Proposed listing.
(Echinomastus erectocentrus
var. acunensis) (LPN = 3),
Fickeisen plains cactus
(Pediocactus peeblesianus
fickeiseniae) (LPN = 3),
Lemmon fleabane (Erigeron
lemmonii) (LPN = 8), Gierisch
mallow (Sphaeralcea
gierischii) (LPN = 2)) \5\.
FL bonneted bat (LPN = 2) \3\. Proposed listing.
3 Southern FL plants (Florida Proposed listing.
semaphore cactus (Consolea
corallicola) (LPN = 2),
shellmound applecactus
(Harrisia (=Cereus)
aboriginum (=gracilis)) (LPN
= 2), Cape Sable thoroughwort
(Chromolaena frustrata) (LPN
= 2)) \5\.
21 Big Island (HI) species \5\ Proposed listing.
(includes 8 candidate
species--5 plants & 3
animals; 4 with LPN = 2, 1
with LPN = 3, 1 with LPN = 4,
2 with LPN = 8).
12 Puget Sound prairie species Proposed listing.
(9 subspecies of pocket
gopher (Thomomys mazama ssp.)
(LPN = 3), streaked horned
lark (LPN = 3), Taylor's
checkerspot (LPN = 3), Mardon
skipper (LPN = 8)) \3\.
2 TN River mussels (fluted Proposed listing.
kidneyshell (LPN = 2),
slabside pearlymussel (LPN =
2) \5\.
Jemez Mountain salamander (LPN Proposed listing.
= 2) \5\.
------------------------------------------------------------------------
\1\ Funds for listing actions for these species were provided in
previous FYs.
\2\ Although funds for these high-priority listing actions were provided
in FY 2008 or 2009, due to the complexity of these actions and
competing priorities, these actions are still being developed.
\3\ Partially funded with FY 2010 funds and FY 2011 funds.
\4\ Funded with FY 2010 funds.
\5\ Funded with FY 2011 funds.

We have endeavored to make our listing actions as efficient and
timely as possible, given the requirements of the relevant law and
regulations, and constraints relating to workload and personnel. We are
continually considering ways to streamline processes or achieve
economies of scale, such as by batching related actions

[[Page 15932]]

together. Given our limited budget for implementing section 4 of the
Act, these actions described above collectively constitute expeditious
progress.
The Berry Cave salamander will be added to the list of candidate
species upon publication of this 12-month finding. We will continue to
monitor the status of this species as new information becomes
available. This review will determine if a change in status is
warranted, including the need to make prompt use of emergency listing
procedures.
We intend that any proposed listing action for the Berry Cave
salamander will be as accurate as possible. Therefore, we will continue
to accept additional information and comments from all concerned
governmental agencies, the scientific community, industry, or any other
interested party concerning this finding.

References Cited

A complete list of references cited is available on the Internet at
http://www.regulations.gov and upon request from the Tennessee
Ecological Services Field Office (see ADDRESSES section).

Authors

The primary authors of this notice are the staff members of the
Tennessee Ecological Services Field Office.

Authority

The authority for this section is section 4 of the Endangered
Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

Dated: March 8, 2011.
Rowan W. Gould,
Acting Director, Fish and Wildlife Service.
[FR Doc. 2011-6347 Filed 3-21-11; 8:45 am]
BILLING CODE 4310-55-P