[Federal Register Volume 77, Number 191 (Tuesday, October 2, 2012)]
[Proposed Rules]
[Pages 60179-60206]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-23854]
[[Page 60179]]
Vol. 77
Tuesday,
No. 191
October 2, 2012
Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; 12-Month Petition
Finding, Listing of the Spring Pygmy Sunfish as Threatened, and
Designation of Critical Habitat; Proposed Rule
Federal Register / Vol. 77 , No. 191 / Tuesday, October 2, 2012 /
Proposed Rules
[[Page 60180]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R4-ES-2012-0068; 4500030113]
RIN 1018-AY19
Endangered and Threatened Wildlife and Plants; 12-Month Petition
Finding, Listing of the Spring Pygmy Sunfish as Threatened, and
Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: 12-Month finding; proposed rule.
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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 spring pygmy sunfish
(Elassoma alabamae) as threatened under the Endangered Species Act of
1973, as amended (Act), and to designate critical habitat. After review
of all available scientific and commercial information, we find that
listing the spring pygmy sunfish as a threatened species under the Act
is warranted. Accordingly, we propose to list the spring pygmy sunfish
as a threatened species throughout its range and designate critical
habitat for the species under the Act. In total, we propose
approximately 8 stream miles (mi) (12.9 kilometers (km)) and 1,617
acres (ac) (654.4 hectares (ha)) of spring pool and spring-influenced
wetland in Limestone County, Alabama, for designation as critical
habitat.
DATES: We will consider comments received or postmarked on or before
December 3, 2012. We must receive requests for a public hearing, in
writing, at the address shown in the FOR FURTHER INFORMATION CONTACT
section by November 16, 2012. Comments submitted electronically using
the Federal eRulemaking Portal (see ADDRESSES section, below) must be
received by 11:59 p.m. Eastern Time on the closing date.
ADDRESSES:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R4-ES-2012-0068, which
is the docket number for this rulemaking.
(2) By hard copy: Submit by U.S. mail or hand-delivery to: Public
Comments Processing, Attn: FWS-R4-ES-2012-0068; Division of Policy and
Directives Management, U.S. Fish and Wildlife Service, 4401 N. Fairfax
Drive, MS 2042-PDM; Arlington, VA 22203.
We request that you send comments only by the methods described
above. We will post all comments on http://www.regulations.gov. This
generally means that we will post any personal information you provide
us (see the Information Requested section below for more details).
The coordinates or plot points or both from which the maps are
generated are included in the administrative record for this critical
habitat designation and are available at http://www.fws.gov/mississippiES/, http://www.regulations.gov at Docket No. FWS-R4-ES-
2012-0068, and at the Mississippi Ecological Services Field Office (see
FOR FURTHER INFORMATION CONTACT). Any additional tools or supporting
information that we may develop for this critical habitat designation
will also be available at the above locations.
FOR FURTHER INFORMATION CONTACT: Stephen Ricks, Field Supervisor,
Mississippi Ecological Services Field Office, 6578 Dogwood View
Parkway, Jackson, MS 39213; by telephone (601-321-1122); or by
facsimile (601-965-4340). If you use a telecommunications device for
the deaf (TDD), please call the Federal Information Relay Service
(FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION: This document consists of: (1) A 12-month
petition finding that listing the spring pygmy sunfish under the Act is
warranted; (2) a proposed rule to list the spring pygmy sunfish as
threatened; and (3) a proposed rule to designate critical habitat for
this species.
Executive Summary
Why we need to publish a rule. Under the Endangered Species Act, 16
U.S.C. 1531 et seq., a species or subspecies may warrant protection
through listing if it is endangered or threatened throughout all or a
significant portion of its range. We are proposing to list the spring
pygmy sunfish as threatened under the Act because of current and future
threats, and listing can only be done by issuing a rule. The spring
pygmy sunfish no longer occurs at two of the three spring systems in
which it historically was found, and faces a variety of threats in the
Beaverdam Spring/Creek System, the only location where it currently
occurs. We are also proposing to designate critical habitat under the
Act. Critical habitat represents geographical areas that are essential
to a species' conservation, and is designated on the basis of the best
scientific information available after taking into consideration the
economic impact, impact on national security, and any other relevant
impact of specifying any particular area as critical habitat.
The basis for our action. Under the Act, a species may be
determined to be endangered or threatened based on any of five factors:
(A) 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. The spring pygmy sunfish is facing
threats due to three of these five factors (A, D, and E), and
potentially faces threats under a fourth (Factor C.) The Act also
requires that the Service designate critical habitat at the time of
listing provided that it is prudent and determinable. We have
determined that it is both prudent and determinable (see Critical
Habitat section below) and are proposing approximately 8 stream mi
(12.9 km) and 1,617 ac (654.4 ha) of spring system habitat and adjacent
upland buffers for designation as critical habitat.
Peer review is important. In addition to seeking public comments,
we will solicit peer review of this proposal from at least three
experts knowledgeable in spring pygmy sunfish biology and basic
conservation biology principles and concepts.
Information Requested
We intend that any final action resulting from this proposed rule
will be based on the best scientific and commercial data available and
be as accurate and as effective as possible. Therefore, we request
comments or information from other concerned Federal and State
agencies, the scientific community, or any other interested party
concerning this proposed rule. We particularly seek comments
concerning:
(1) Additional information concerning the historical and current
status, range, distribution, and population size of the spring pygmy
sunfish, including the locations of any additional populations.
(2) Any information on the biological or ecological requirements of
the species and ongoing conservation measures for the species and its
habitat.
(3) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to this species and regulations that may
be addressing those threats.
(4) Current or planned activities in the areas occupied by the
species and possible impacts of these activities on this species.
(5) Additional information regarding the threats to the species
under the five listing factors, which are:
[[Page 60181]]
(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; and
(e) Other natural or manmade factors affecting its continued
existence.
(6) Any information regarding ongoing conservation activities for
the spring pygmy sunfish, including the Belle Mina Farm, Ltd.,
candidate conservation agreement with assurances (CCAA), and their
effect on the status of the species.
(7) The reasons why areas should or should not be designated as
critical habitat as provided by section 4 of the Act, including the
possible risks or benefits of designating critical habitat, including
risks associated with publication of maps designating any area on which
this species may be located, now or in the future, as critical habitat.
(8) The following specific information on:
(a) The amount and distribution of habitat for spring pygmy
sunfish;
(b) What areas, that would be occupied at the time of listing
(i.e., are currently occupied) and that contain the physical and
biological features essential to the conservation of this species,
should be included in a critical habitat designation and why;
(c) Special management considerations or protection that may be
needed for the essential features in critical habitat areas, including
managing for the potential effects of climate change; and
(d) What areas not occupied at the time of listing are essential
for the conservation of this species and why.
(9) Information on the projected and reasonably likely impacts of
changing environmental conditions resulting from climate change on the
species and its habitat.
(10) Information on groundwater aquifer or recharge areas for
spring systems that support the spring pygmy sunfish, and the possible
implications of extracting ground and surface water and its impact on
the spring pygmy sunfish and its habitat.
(11) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
designation; in particular, we seek information on any impacts on small
entities or families, and the benefits of including or excluding areas
that exhibit these impacts.
(12) Information on whether the benefits of the exclusion of lands
covered by the Belle Mina Farm, Ltd., CCAA, or any other particular
area, outweigh the benefits of inclusion under section 4(b)(2) of the
Act.
(13) Whether we could improve or modify our approach to designating
critical habitat in any way to provide for greater public participation
and understanding, or to better accommodate public concerns and
comments.
Please note that submissions merely stating support for or
opposition to the action under consideration without providing
supporting information, although noted, will not be considered in
making a determination, as section 4(b)(1)(A) of the Act directs that
determinations as to whether any species is an endangered or threatened
species must be made ``solely on the basis of the best scientific and
commercial data available,'' and section 4(b)(2) directs that critical
habitat designations be made based on the best scientific data
available and after consideration of economic and other relevant
impacts.
You may submit your comments and materials concerning this proposed
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES.
If you submit information via http://www.regulations.gov, your
entire submission--including any personal identifying information--will
be posted on the Web site. If your submission is made via a hardcopy
that includes personal identifying information, such as your address,
phone number, and email address, you may request at the top of your
document that we withhold this information from public review. However,
we cannot guarantee that we will be able to do so. We will post all
hardcopy submissions on http://www.regulations.gov. Please include
sufficient information with your comments to allow us to verify any
scientific or commercial information you include.
Comments and materials we receive, as well as supporting
documentation we used in preparing this proposed rule, will be
available for public inspection on http://www.regulations.gov, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Mississippi Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT).
Background
Section 4(b)(3)(B) of the Act requires that, for any petition to
revise the Federal Lists of Threatened and Endangered Wildlife and
Plants (Lists) 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 that the
petitioned action is either: (a) Not warranted; (b) warranted; or (c)
warranted, but the immediate proposal of a regulation implementing the
petitioned action is precluded by other pending proposals to determine
whether any species is endangered or threatened, and expeditious
progress is being made to add or remove qualified species from the
Lists. With this publication, we have determined that the petitioned
action to list spring pygmy sunfish is warranted, and we are proposing
to list the species and to designate critical habitat for the species.
Previous Federal Actions
The spring pygmy sunfish was proposed for listing as endangered
with critical habitat on November 29, 1977 (42 FR 60765). The critical
habitat portion of the proposal was withdrawn on March 6, 1979 (44 FR
12382), in order to make a new critical habitat proposal that conformed
to new, more prescriptive provisions for critical habitat made in the
1978 amendments to the Act. The Service proposed critical habitat again
for the species on July 27, 1979 (44 FR 44418). The pending proposal to
list the spring pygmy sunfish, along with the proposed critical habitat
designation, were withdrawn effective November 29, 1979, as announced
in the Federal Register on January 24, 1980 (45 FR 5782).
The spring pygmy sunfish was included in the December 30, 1982,
notice of review (47 FR 58454) as a category 2 candidate species for
listing. Category 2 status was given to those species for which the
Service possessed information indicating that proposing to list as
endangered or threatened was possibly appropriate, but for which
conclusive data on biological vulnerability and threats were not
currently available to support proposed rules. Subsequently, in the
September 18, 1985 (50 FR 37958); January 6, 1989 (54 FR 554); and
November 15, 1994 (59 FR 58982) notices of review, the spring pygmy
sunfish was identified as a category 1 candidate species for listing.
Category 1 status was given to those species for which the Service had
on file sufficient information on biological vulnerability and
threat(s) to support a proposal to list as endangered or threatened but
for which a proposal had not yet been issued because of other listing
actions. On February 28, 1996 (61
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FR 7457), the Service published a notice of review removing the spring
pygmy sunfish from the candidate list because of successful
introduction, increased distribution (outside of the range of the
introduction), and the discovery of additional populations, including
one on Wheeler National Wildlife Refuge. At that time, we reported that
the known populations, each exceeding 1,000 individuals, were
increasing.
On November 24, 2009, we received a petition from the Center for
Biological Diversity (CBD) and Michael Sandel of the University of
Alabama, requesting that the spring pygmy sunfish be listed as
endangered under the Act. In a December 17, 2009, letter to the
petitioners, we responded that we reviewed the information presented in
the petition, and we outlined the petition process and timelines. In
July 2010, we received letters from the North American Native Fishes
Association (NANFA) and Dr. Bruce Stallsmith (University of Alabama at
Huntsville) requesting that we emergency list the species under section
4(b)(7) of the Act. Following review of the petition, the letters, and
information in our files, we determined that issuing an emergency
regulation temporarily listing the species was not warranted. We
notified NANFA and Dr. Stallsmith of our determination on July 21,
2010.
On April 1, 2011, we published in the Federal Register (76 FR
18138) our 90-day finding that the petition to list the spring pygmy
sunfish as endangered presented substantial information indicating that
the requested action may be warranted, and we initiated a status review
of the species.
Since 2010, Belle Mina Farms, the owner of Beaverdam Spring, Moss
Spring, and the upper reach of Beaverdam Creek, in Limestone County,
Alabama, and the Service have been engaged in drafting a candidate
conservation agreement with assurances (CCAA) for a population of
spring pygmy sunfish. The CCAA outlines a variety of conservation
measures that will be implemented to benefit the species (see
``Conservation Efforts to Reduce Habitat Destruction, Modification, or
Curtailment'' under the Factor A discussion, below). On September 14,
2010, we received the completed application from the landowner for an
enhancement of survival permit for the spring pygmy sunfish under
section 10(a)(1)(A) of the Act along with a draft CCAA. The CCAA, the
permit application, and the environmental action statement (EAS) were
made available for public comment for a 30-day period beginning on
February 21, 2012 (77 FR 9958). The CCAA and EAS were finalized in
April 2012, and the associated permit was issued on June 7, 2012. If
the spring pygmy sunfish is listed under the Act, the permit authorizes
incidental take of the spring pygmy sunfish due to otherwise lawful
activities (e.g., crop cultivation, livestock grazing, silviculture,
vegetation management, water usage, road maintenance, fencerow
maintenance, etc.) in accordance with the terms of the CCAA.
Species Information
Taxonomy and Description
The spring pygmy sunfish (Elassoma alabamae) was discovered in
1937, but not described until 1993 (Mayden 1993, pp.1-14). This species
is the smallest member of the genus Elassoma. Males are normally
smaller than females and are very dark to black with iridescent blue-
green color on their sides, cheeks, and gill covers (Boschung and
Mayden 2004, pp. 614-615). The maximum standard length (distance from
tip of snout to the end of the last vertebrae) for adult males is 0.80
in (20.4 mm) and for adult females it is 0.96 in (24.5 mm) (Boschung
and Mayden 2004, pp. 614-615). Both sexes have broad vertical and
narrow bars on their flanks. We accept the characterization of the
spring pygmy sunfish as a valid species based on the taxonomic
characters distinguishing the species from other members of the
Elassoma genus (Mayden 1993, p.4). Its uniqueness is widely accepted by
the scientific community, and there has been no discrepancy concerning
its distinctiveness as a separate taxonomic entity (Boschung et al.
2004, p. 614).
Current Distribution
The range of the spring pygmy sunfish is very restricted. The
species currently occupies about 5.9 mi (9.5 km) and 1,435 ac (580.6
ha) of four spring pools and associated features confluent with the
middle to upper Beaverdam Spring/Creek watershed. These spring pools,
which include Moss, Beaverdam, Thorsen, and Horton springs, all in
Limestone County, Alabama, along with associated spring runs and
wetlands, are collectively referred to as the Beaverdam Spring/Creek
system. The greatest concentration of spring pygmy sunfish occurs
within the Beaverdam Spring site, which comprises 24 percent of the
total occupied habitat for the species.
Life History
The spring pygmy sunfish has high fecundity (reproductive capacity)
and quickly populates areas of available habitat (Sandel pers. obs.
2004 through 2009). Adults reproduce from January to October. Spawning
occurs in March and April, when water quality parameters are within a
suitable range (pH of 6.0 to 7.7 and water temperatures of 57.2 to 68
degrees Fahrenheit ([deg]F) (15 to 20 degrees Celsius ([deg]C)). Spring
pygmy sunfish produce about 65 eggs, and hatching occurs from April to
September (Sandel pers. obs. 2004 through 2009). Two spawning attempts
per year have been reported in captivity (Petty et al. 2011, p. 4). In
captivity, the spring pygmy sunfish may live slightly longer than 2
years, but normally their life span is 1 year or less (Boschung and
Mayden 2004, pp. 614-615).
Habitat
The spring pygmy sunfish is a spring-associated (Warren 2004,
p.185) and groundwater-dependent (Jandebeur, pers. comm., 2011) fish
endemic to the Tennessee River drainage in the Eastern Highland Rim
physiographic province and Dissected Tablelands (Marbut et al. 1913, p.
53) of Lauderdale and Limestone Counties in northern Alabama. The
preferred habitat for the spring pygmy sunfish is colorless to slightly
stained spring water, occurring within several components of spring
geomorphology including the spring head (where water emerges from the
ground), spring pool (water pool at spring head), spring run (stream or
channel downstream of spring pool), and associated spring-fed wetlands
(Warren 2004, pp. 184-185). No contemporary water flow rates
characterizing groundwater flow from the springs are available.
However, historical flow rates for Pryor Spring (where the species once
occurred) and Moss Spring of 800 to 5,000 gallons per minute (gpm)
(3,000 to 19,000 liters per minute (lpm))(tabulated from Chandler and
Moore 1987, pp. 3-4), respectively, indicate that the spring pygmy
sunfish is associated with moderately flowing springs of the second to
fourth order (after Meinzer 1923, in Chandler and Moore 1987, p. 5;
McMaster and Harris 1963, p. 28).
Natural spring pool habitats are typically static, persisting
without disruption for long periods, even during droughts, in the
absence of water extraction. The species is most abundant at the spring
outflow or emergence (spring head) and spring pool area. The spring
pygmy sunfish is typically found at water depths from 5 to 40 inches
(in) (13 to 102 centimeters (cm)) and rarely in the upper 5 inches (13
cm) of the water column. Species of submergent and emergent vegetation
providing important habitat for the spring pygmy sunfish include clumps
[[Page 60183]]
and stands of Sparganium sp. (bur reed), Ceratophyllum sp. (coontail),
Nasturtium officinale (watercress), Juncus sp. (rush), Carex sp.
(sedges), Nuphar luteum (yellow pond lily), Myriophyllum sp. (parrot
feather), Utricularia sp. (bladderwort), Polygonum sp. (smartweed),
Lythrum salicaria (purple loosestrife), and Callitriche sp. (water
starwort) (Mayden 1993, p. 11; Jandebeur 1997, pp. 42-44; Sandel 2011,
pp. 3-5, 9-11). The species is also associated with certain animal
species such as amphipods, isopods, spring salamanders, crayfish, and
snails (Sandel 2011, pp.11-12; Mayden 1993, p. 11).
Historical Distribution and Status
The spring pygmy sunfish was known to have historically occurred at
two other sites. This species was initially discovered in 1938, in Cave
Springs, Lauderdale County, Alabama, where it was extirpated about a
year later due to inundation from the formation of Pickwick Reservoir.
In 1941, this species was also discovered in Pryor Spring within the
Swan Creek watershed in Limestone County, Alabama, by Tarzwell and
Bretton, where it was noted to be common (Jandebeur 2011a, pp. 1-5).
Limited sampling efforts in the Pryor Springs complex between 1966 and
1979 indicated a sparse population of spring pygmy sunfish west of, and
none east of, Highway 31. The exact location of the original collection
in Pryor Spring is uncertain, but Jandebeur (2011a, pp. 1-5) speculates
the original site to be solely west of Highway 31, within the Pryor
Spring Branch (spring-fed wetlands) and not in Pryor Spring proper
(spring head and pool), east of the highway. However, in 1984, in an
effort to enhance this population in Pryor Spring, fish were moved from
Moss Spring (Beaverdam Spring/Creek System) into Pryor Spring on both
sides of Highway 31 (Mettee et. al. 1986, pp. 14-15). Reintroduction
efforts continued into 1986 and 1987 (Mettee et. al. 1986, pp. 6-7).
However, by 2007, the population was determined to be extirpated due to
impaired water quality and quantity, likely attributable to
contaminants from agricultural runoff (Sandel 2008, p. 2; 2011, pp. 3,
6).
The spring pygmy sunfish exhibits metapopulation (a group of
individual populations that have some level of gene flow between them)
structure by occupying all suitable spring habitats where there is
flowing spring water and connectivity. Migration and continuity of the
species between spring pools is very important in maintaining the
genetic diversity of species within these sections of the Beaverdam
Spring/Creek system. Sandel (2008, pp. 15-16; 2011, p. 8) suggests that
the spring pygmy sunfish population in Beaverdam Spring/Creek is a
single, structured, continuous group of breeding individuals,
genetically identifiable with limited gene flow from each springhead
subpopulation, and that the loss of many subpopulations could cause
extinction of the metapopulation. However, Jandebeur (2011b, pp. 1-13)
speculates that these populations of spring pygmy sunfish evolved with
beaver ecology and that during migration of spring pygmy sunfish from
beaver pond habitats, the species may colonize or recolonize existing
habitat downstream, even though individual subpopulations may be
extirpated due to drought or other ecological issues.
Summary of Information Pertaining to the Five Factors
Section 4 of the Act and its implementing regulations (50 CFR part
424) set forth the procedures for adding species to the Federal Lists
of Endangered and Threatened Wildlife and Plants. A species may be
determined to be an endangered or threatened species due to one or more
of the following five factors described in section 4(a)(1) of the Act:
(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; and
(E) Other natural or manmade factors affecting its continued
existence.
Listing actions may be warranted based on any of the above threat
factors, singly or in combination. Each of these factors is discussed
below.
In considering what factors might constitute threats to a species,
we must look beyond the exposure of the species to a particular factor
to evaluate whether the species may respond to that 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.
The factor is a threat 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.
However, the identification of factors that could impact a species
negatively may not be sufficient to compel a finding that the species
warrants listing. The information must include evidence sufficient to
suggest that these factors are operative threats that act on the
species to the point that the species may meet the definition of
endangered or threatened under the Act.
Factor A: The Present or Threatened Destruction, Modification, or
Curtailment of Its Habitat or Range
Increased human population growth, and the accompanying demand for
water, will likely alter the Beaverdam Spring/Creek system and its
recharge areas through increased water extraction (pumping), diversion,
and retention (Erman 2002, p. 8). Because springs provide shelter,
thermal refuge, breeding sites, movement corridors, and prey source
habitat for the spring pygmy sunfish, the species is dependent on water
quantities sufficient to provide spring habitat that is stable and
permanent (Erman 2002, p. 8).
Urban and Industrial Development
Urban development adjacent to the Beaverdam Spring/Creek system
would likely fragment and directly impact suitable spring pygmy sunfish
habitat by decreasing water quality and quantity, and by limiting the
species' movement throughout the system. When an area is urbanized,
many impermeable surfaces are constructed such as roofs, pavements, and
road surfaces. All are intentionally constructed to be far less
permeable than natural soils and to remove stormwater quickly, which
results in a reduction in direct recharge into the aquifer, increased
stormwater runoff (Younger 2007, p. 39), immediate changes in water
quality parameters such as decreased oxygen levels and increased
temperature, and increased water quantity and flow velocity (Field et
al. 2003, pp. 326-333). The stormwater flow velocity carries sediments
that may scarify (make scratches or cuts in) rock and gravel substrates
(Waters 1995, pp. 57, 66) and uproot aquatic vegetation, thereby
destroying important foraging, spawning, and refuge habitat for the
species (Field et al. 2003, pp. 326-333).
The spring pygmy sunfish is currently facing threats from planned
large-scale residential and industrial projects and ongoing development
within the vicinity of the Beaverdam Spring/Creek watershed. Sandel
(2011, p. 11) observed declines in the species' population and
attributed it to sedimentation from two nearby construction activities:
the construction of a new sewer line adjacent to the spring system and
the construction of the Ashbury subdivision 2.3 mi (3.7 km) northeast
of the species' habitat. The Ashbury subdivision, adjacent to Hardeman
Branch and draining into the
[[Page 60184]]
upper Beaverdam Spring/Creek watershed, filled adjacent wetlands when
residential housing, roads, utility crossings, and stormwater drains
were constructed (U.S. Army Corps of Engineers 2011, pp. 1-6).
The City of Huntsville's Master Plan for Western Annexed Land
(Sasaki 2011, pp. 1-83) proposes developing a total of 10,823 ac
(4,379.9 ha) adjacent to spring pygmy sunfish habitat. More than 68
percent of the proposed development site is adjacent to the Beaverdam
Spring/Creek watershed. The restricted-use area for subdivision
development, within the City of Huntsville, is a minimum of 25 feet
(7.6 meters) from the perimeter of a perennial spring. However, no
restrictions are set forth for ephemeral springs or seasonal
groundwater seepages (City of Huntsville 2007, p. 28), which include
many of the ephemeral springs, seepages, and streams draining into the
Beaverdam Spring/Creek watershed. These features are necessary for
maintenance of seasonal flow rates. Filling them or converting them to
developed areas could therefore adversely affect the spring pygmy
sunfish. In addition, there are roads proposed to connect the planned
developments with the Interstate 65 and Interstate 565 corridors
(Sasaki 2011, pp. 1-83), along with feeder roads and improvements on
primary and secondary existing roadways in support of new residential
and industrial projects (Sasaki 2011, pp. 1-83). Developed, paved-over
areas (impervious substrate) promote runoff and inhibit infiltration,
changing water flow rates from slow and incremental to fast and
localized, because stormwater is directed via surface routes into
specific areas of the receiving stream, rather than infiltrating into
the soil or draining naturally into surface water.
Pumping or diversion of springs creates unstable conditions for
spring-dependent species such as the spring pygmy sunfish through
fluctuating water levels and temperature changes. The incremental and
cumulative groundwater recharge effects on the habitat of the spring
pygmy sunfish may not become evident for years (Likens 2009, p. 90).
Within north Alabama, the availability of large quantities of
groundwater from springs has been an important factor in industrial and
urban development (Warman and Causey 1963, p. 93). It is estimated
that, by 2015, the population in Limestone and Lauderdale Counties will
increase dramatically (Roop 2010, p. 1), along with expanding
urbanization and industrialization (Sasaki 2011, pp. 1-83).
The Fort Payne Chert of the Early Mississippian Age is the
principal aquifer of spring pygmy sunfish habitat and provides
groundwater to all of Limestone County (McMaster and Harris, Jr. 1963,
p. 1). Groundwater in the County is ultimately derived from percolation
of precipitation (McMaster and Harris, Jr. 1963, p. 17) into the
aquifer system. In urban settings, percolation of rainwater to the
aquifer may be disrupted due to less pervious zones and more shunting
of rainfall into stormwater systems (Healy 2010, pp. 70-72; Younger
2007, pp. 117-121). Change in land use from rural to urban/industrial
within the Beaverdam Spring/Creek area will be detrimental to the
spring pygmy sunfish due to changes in the water quality parameters
such as oxygen and temperature, along with changes in water quantity,
such as increased stream flow and velocity, due to increased amounts of
impervious materials and associated stormwater runoff in the watershed.
This may be coupled with a subsequent reduction in precipitation
infiltrating through the soil surface to the aquifer, which will
ultimately reduce spring baseflow (Field et al. 2003, pp. 326-333;
Healy 2010, p. 3).
Water Quantity
Excessive groundwater extraction from the aquifer supplying
Beaverdam Spring/Creek is a threat to the spring pygmy sunfish
(Drennen, pers. obsv. 2007-2011; Sandel 2011, pp. 3-6; National Water
Quality Assessment (NAWQA) program, http://tn.water.usgs.gov/lten/lten.html) because of the reduction of the water levels in the aquifer
and resultant decreased spring outflow (Cook, Geological Survey of
Alabama (GSA), pers. comm., 2011). Sandel (in Kuhajda et al. 2009, p.
19; 2011, pp. 3-6) documented a relationship between pumping activities
in Moss, Horton, and Thorsen Springs and degraded spring pygmy sunfish
habitat. Specifically, in Thorsen Spring, during 2007, water was
extracted to a level that destroyed vegetation and decreased the
abundance of the spring pygmy sunfish by 99 percent (Sandel, pers.
obs., 2004 through 2009; Sandel 2011, p. 6). The proximity of the
spring pygmy sunfish's habitat to agricultural land throughout its
range makes it vulnerable to impacts due to the extraction of
groundwater for agricultural uses. Sandel (in Kuhajda et al. 2009, p.
19) estimated that up to 16,000 gpm (62,000 lpm) of water was extracted
from the Beaverdam Spring/Creek watershed for agricultural purposes
during drought conditions during the 2008 growing season. He further
estimated that this level of withdrawal desiccated and killed aquatic
vegetation necessary for the spawning, foraging, and shelter of the
species.
Commercial water withdrawal from this same aquifer by the Limestone
County pumping station, between 2006 and 2011, was over 1 billion
gallons (3.9 billion liters) at an estimated flow rate of 450 gpm
(1,740 lpm) (Holland, pers. comm., 2011). Heavy groundwater withdrawal
by the cities of Huntsville and Madison (east of the spring pygmy
sunfish habitat), and the adjacent rural population, is estimated at 16
million gallons per day (62 million liters per day) (U.S. Geological
Survey National Aquatic Water Quality Assessment 2001, 2009; Sandel,
pers. comm., 2007-2009; Kingsbury 2003, p. 2; Hoos et al. 2001, p. 1).
Withdrawal of groundwater by pumping, at high levels such as those
above, especially during drought conditions, can cause changes to water
budgets (Healy 2010, p. 15) and the natural flow of spring systems
(Alley in Likens 2009, p. 91). Pumping from wells beside streams also
lowers groundwater levels and reduces surface water flow within streams
and spring runs. In smaller streams, decreased flow caused by pumping
can be large enough to create harmful effects upon the stream and its
wildlife (Hunt 1999, pp. 98-102). Water extraction by pumping also
causes a loss of aquifer storage and lowers the pressure in the aquifer
(Theis 1935, p. 519), resulting in decreased spring flow velocity and
quantity to adjacent streams. These reductions in the natural flow
regime can adversely affect the spring pygmy sunfish.
In several large springs in the United States, groundwater
extraction for public consumption and agricultural use has impacted
listed fish species by decreasing groundwater levels. Examples include
the endangered Devil's Hole pupfish (Cyprinodon diabolis) (Hoffman et
al. 2003, p. 1248) and the endangered fountain darter (Etheostoma
fonticola) (Service 1996, p. 19). Water extraction in spring pygmy
sunfish habitat is causing desiccation and reduction of the aquatic
vegetation, and concentrating pollutants.
The effects on stream flow after water extraction stops may be
greater due to the overall decrease in water quantity in the stream.
Decreased water levels after pumping in the spring pool correspond to
decreased aquatic vegetation in the system; less water quantity
increases the desiccation of vegetation, which may negatively impact
the species (Jandebeur 1979, pp. 4-8; Mayden 1993, pp. 11-12) by
reducing the vegetative cover and contributing to eutrophication
[[Page 60185]]
of the water, as demonstrated with spring pygmy sunfish habitat impacts
and subsequent population declines in Moss, Horton, and Thorsen Springs
(Sandel pers. obs. 2004 through 2009; 2011, pp. 3-6).
Water Quality
The heavy use of chemicals within spring pygmy sunfish habitat and
the recharge areas of occupied spring systems is a potential threat to
the species. The intensive agricultural practices and proposed
urbanization and industrialization plans within the immediate area of
the watershed threaten to contaminate the groundwater in the aquifer
supplying the Beaverdam Spring/Creek site (Healy 2010, p. 70).
Transportation of contaminants to the aquifer by recharge water can be
slow and steady or highly episodic over time (Healy 2010, p. 75). In a
similar spring system in northeast Alabama, the threatened pygmy
sculpin (Cottus paulus) is believed to be impacted by the increased
concentration of toxins entering the aquifer from a nearby military
base (Thomas, pers. comm., 2009).
Fertilizers and pesticides are transported to the aquifer by
recharge, or into surface water routes, where they eventually enter
springs and are a threat to the survival of fishes found there (Hoffman
et al. 2003, p. 1248; U.S. Fish and Wildlife Service 1996, pp. 35-36).
Toxins can concentrate when spring flow is reduced, posing an even
greater threat to spring fishes. The Beaverdam Spring/Creek watershed
has the highest annual crop harvest, the highest total annual nitrogen
use, and second highest annual phosphorus use, along with elevated
pesticide usages detected in groundwater, within the Eastern Highland
Rim (Mooreland 2011, p. 2; NAWQA 2009, http://water.usgs.gov/nawqa/digmap.html; Kingsbury 2003, p. 20). Both the historic and extant
spring pygmy sunfish populations in Limestone County (Beaverdam Spring/
Creek, Pryor Springs) are within the Wheeler Lake Basin (southern
boundary of Limestone County), where Tsegaye et al. (2006, pp. 175-176)
found that rapid urbanization with associated decrease in agricultural
land cover is likely responsible for water quality degradation in
streams from non-point source phosphorus pollution. Phosphorus content
of groundwater is generally low (Wetzel 1983, p. 281). However,
urbanization increases the amount of phosphorus from residential
fertilizers and storm sewer drainage (Wetzel 1983, p. 281) that may
enter groundwater recharge areas. Phosphorus limits biological
productivity (Wetzel 1983, p. 255) by impacting organismal metabolism.
Nitrogen also impacts aquatic life. For instance, un-ionized ammonia
(which contains nitrogen) is highly toxic to fish (Hoffman et al. 2003,
p. 681). The planned development adjacent to spring pygmy sunfish
habitat is likely to increase phosphorus and nitrogen levels in the
future.
Aquatic plants, which the spring pygmy sunfish uses for spawning,
shelter, and foraging, are also impacted by indiscriminate use of
chemicals (Jandebeur 2012, p. 2; Sandel 2011, pp. 1-5, 8-9). Since
1945, herbicide usage, cattle grazing, and irrigation have occurred
throughout the spring systems and waterways that are habitat for this
species (Jandebeur 1979, pp. 4-8). Aquatic vegetation management within
Thorsen Spring, Horton Spring, and the Pryor Spring/Branch system has
removed the spring pygmy sunfish's shelter vegetation, egg substrate,
and food sites (Jandebeur 1979, pp. 4-8; Mayden 1993, p. 9; Jandebeur
2012, p. 2). Agricultural chemical contamination results in sublethal
toxic effects in fish species, affecting the immune system, hormone
regulation, reproduction, and developmental stages (Hoffman et al.
2003, pp. 1056--1063, 1242). The spring pygmy sunfish's negative
response to herbicides (Hoffman et al. 2003, p. 1242) is documented by
the subsequent reduction and eventual loss of the population in Pryor
Branch after the application of 2, 4-dichlorophenoxyacetic acid (2,4-D)
to that area in the 1940s (Jandebeur 2012, pp. 1-18). This herbicide is
toxic to fish and aquatic invertebrates, and has properties and
characteristics associated with chemicals generally detected in
groundwater contamination. Decaying vegetation caused by the
application of this herbicide also impacts fishes by reducing dissolved
oxygen levels (Environmental Protection Agency (EPA) Material Safety
Data Sheet, pp. 1-13).
Many of the same chemicals used in large-scale agricultural
practices are also used by municipal entities including urban and rural
households. Stormwater runoff from city streets, construction sites,
and storm sewers; household wastes; and leachate from septic tanks and
landfills alter the sediment load in aquatic systems and deposit
contaminants into surface and groundwater sources (Likens 2009, p. 90).
Water quality degradation from chemicals will increase with the
expected increase in urbanization and industrialization of the area.
Overgrazing by livestock is a major threat to springs, especially
where animals have free range through spring systems and wetlands. Cows
tend to congregate in wetland areas, where they consume and trample
vegetation, thereby reducing shade around the spring and increasing the
water temperature. Livestock also trample banks in springs and spring
runs, leading to increased stormwater and sediment runoff, which
eliminates habitat for invertebrate prey species (Erman 2002, p. 8;
Sada et al. 2001, pp. 14-16). Excessive sediment runoff during
stormwater events decreases water clarity, which reduces light
penetration needed for plant growth and results in impacts to the
spring pygmy sunfish's spawning and feeding sites.
Timber harvesting and land clearing can also have impacts on spring
water quality and associated spring species. Recent tree removal along
the boundary of the Wheeler National Wildlife Refuge, which is spring
pygmy sunfish habitat and part of the Beaverdam Spring/Creek system,
highlights the need for careful management of spring habitats (Hurt,
pers. comm., 2012). The removal of the trees greatly reduced the buffer
along the Beaverdam Spring/Creek system and will likely increase
sedimentation into the stream during stormwater runoff. An appropriate
mixture of shade and sunlight is needed for the proper growth and
maintenance of vegetation in the spring environment. This vegetation is
important to maintaining a stable water temperature and habitat for an
invertebrate prey base. Reducing shade by mechanical logging and
clearing can increase atypical spring flow, lead to greater spring run
flow variability, and increase sedimentation (Erman 2002, p. 9) by
altering the existing geomorphology and enhancing stormwater runoff.
Conservation Efforts To Reduce Habitat Destruction, Modification, or
Curtailment
When considering whether or not to list a species under the Act, we
must identify existing conservation efforts and their effect on the
species. Under the Act and our policy implementing this provision,
known as the Policy for Evaluation of Conservation Efforts When Making
Listing Decisions (PECE) (68 FR 15100; March 28, 2003), we must
evaluate the certainty of an effort's effectiveness on the basis of
whether the effort or plan: Establishes specific conservation
objectives; identifies the necessary steps to reduce threats or factors
for decline; includes quantifiable performance measures for the
monitoring of compliance and effectiveness; incorporates the principles
of adaptive management; is likely to be implemented; and is likely
[[Page 60186]]
to improve the species' viability at the time of the listing
determination. In general, in order to meet these standards for the
spring pygmy sunfish, conservation efforts must, at minimum, report
data on existing populations, describe activities taken toward
conservation of the species, demonstrate either through data collection
or best available science how these measures will alleviate threats,
provide for a mechanism to integrate new information (adaptive
management), and provide information regarding certainty of the
implementation (e.g., funding and staffing mechanisms).
The Service entered into a CCAA for the benefit of the spring pygmy
sunfish with Belle Mina Farms, Ltd., and the Land Trust of Huntsville
and North Alabama (Land Trust) on June 7, 2012. The area covered under
the CCAA is approximately 3,200 acres and encompasses the upper 24
percent of habitat occupied by the Beaverdam Spring/Creek
metapopulation, which is currently the only known population for the
species. Under the CCAA, the landowner agrees to implement conservation
measures to address known threats to the species. These measures will
help protect the species on his property in the near term and also
minimize any incidental take of the species that might occur as a
result of conducting other covered activities, if the species becomes
federally listed in the future. Conservation measures to be implemented
by the landowner on this property will assist in the reduction of
chemical usage and stormwater runoff from agricultural fields by
establishing and maintaining vegetated buffer zones around Moss and
Beaverdam Spring. The landowner also agrees to restrict timber harvest
and cattle grazing within the Beaverdam Spring/Creek and Moss Spring
habitats, and to refrain from any deforestation, industrial/residential
development, aquaculture, temporary or permanent ground water removal
installations, and other potentially damaging actions without prior
consultation with the Service and the Service's written agreement.
These actions will minimize impacts and help to maintain groundwater
recharge of the aquifer and adequate spring flow. The Land Trust will
conduct monitoring on the progress of the conservation actions and
annual habitat analyses.
The CCAA and associated enhancement of survival permit have a
duration of 20 years; however, under a special provision of this CCAA,
if at any time a 15 percent decline in the status of the spring pygmy
sunfish is determined, there will be a reevaluation of the conservation
measures set forth in the CCAA. If such a reevaluation reflects a need
to change the conservation measures, the amended measure(s) will be
implemented or the CCAA will be terminated and the permit surrendered.
Conservation efforts set forth in this CCAA are a positive step
toward the conservation of the spring pygmy sunfish. These conservation
actions will reduce the severity of some of the threats to the species
outlined under Factor A within the upper portion of the Beaverdam
Spring/Creek and Moss Spring sites. However, these conservation
measures and the CCAA are restricted to only the upper 24 percent of
occupied habitat in the Beaverdam Spring/Creek complex. There is no
protection for the 24 percent of the species' habitat within the middle
reach of the Beaverdam Spring/Creek System. The remaining 52 percent of
the species' habitat, although it is federally owned and protected, is
considered marginal habitat in the lower reach of the Beaverdam Spring/
Creek System. In the middle and non-protected area below the CCAA
protected site, land use practices continue to contribute to water
quantity and water quality degradation. In addition, the large-scale
development planned adjacent to this species' habitat, and outside the
boundaries of the land enrolled in the CCAA, continues to pose a threat
to the spring pygmy sunfish and its habitat. Furthermore, since this
CCAA has been just recently enacted, there has yet to be long-term
monitoring, which is needed to evaluate the overall effectiveness of
these efforts.
Summary of Factor A
As discussed above, the spring pygmy sunfish and its habitat are
currently facing the threats of both declining water quality and
quantity. Excessive groundwater usage, and the resultant reduction of
the water levels in the aquifer/recharge areas and decreased spring
outflow in the Beaverdam Spring/Creek system, is believed to have
negatively impacted the spring pygmy sunfish and its habitat.
Contamination of the recharge area and aquifer from the intensive use
of chemicals (i.e., herbicides, pesticides, fertilizers) within the
spring pygmy sunfish's habitat poses a threat to the species' survival.
Stormwater discharge from agricultural lands and urban sites compounds
the water quality degradation by increasing sediment load and
depositing contaminants into surface and groundwater sources. In
addition, the large-scale residential and industrial development
planned adjacent to the Beaverdam Spring/Creek system will exacerbate
the decreasing water quantity and quality issues within the habitat of
the spring pygmy sunfish's single metapopulation. Overgrazing by
livestock and land clearing near and within the spring systems reduces
the vegetation in the spring and increases stormwater and sediment
runoff, posing a threat to the single spring pygmy sunfish population,
particularly in the middle and lower portions of its range.
Based on our review of the best commercial and scientific data
available, we conclude that the present or threatened destruction,
modification, and curtailment of its habitat or range is currently a
threat to the spring pygmy sunfish and is expected to persist and
possibly escalate in the future, particularly in light of the
increasing demands for groundwater and large-scale development that is
planned near this species' habitat. While the CCAA has reduced some of
the threats under this factor, it only covers a portion of the extant
range of the species, and will not ameliorate all threats of ongoing
and potential water quantity and water quality degradation.
Factor B: Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes
The spring pygmy sunfish is not a commercially valuable species.
However, this species has been actively sought by researchers since its
discovery in 1937. Overcollecting may have been a localized factor in
the historical decline of this species, particularly within the
introduced population in Pryor Spring/Branch (Jandebeur 2012, p. 14);
however, the overall impact of collection on the spring pygmy sunfish
population is unknown (Jandebeur 2012, p. 14). The localized
distribution and small size of known populations renders them
vulnerable to overzealous recreational or scientific collecting.
However, at this time we have no specific information indicating that
overcollection rises to the level to pose a threat to the species now
or in the future. Therefore, we find that overutilization for
commercial, recreational, scientific, or educational purposes does not
constitute a threat to the spring pygmy sunfish at this time.
Factor C: Disease or Predation
Diseases of the spring pygmy sunfish are poorly known, and we have
no specific information indicating that disease occurs within spring
pygmy sunfish populations or poses a threat to the species. Eggs,
juveniles, and adult spring pygmy sunfish are preyed upon by some
invertebrate species, parasites, and vertebrate species such as frogs,
snakes, turtles, other fish, and piscivorous (fish-eating) birds. It is
[[Page 60187]]
possible that predation increases when fish are concentrated in smaller
areas when groundwater is depleted through water extraction. However,
we have no evidence of any specific declines in the spring pygmy
sunfish due to predation.
In summary, we conclude that the best scientific and commercial
information available indicates, at the present time, that diseases or
predation are not threats to the spring pygmy sunfish.
Factor D: The Inadequacy of Existing Regulatory Mechanisms
The spring pygmy sunfish and its habitat are afforded some
protection from surface water quality and habitat degradation under the
Clean Water Act (33 U.S.C. 1251 et seq.), and the Alabama Water
Pollution Control Act (Code of Alabama, sections 22-22-1 et seq.) and
regulations promulgated by the Alabama Department of Environmental
Management (Maynard and Gale 1995, pp. 20-28). While these laws have
resulted in some improvement in water quality and stream habitat for
aquatic life, such as requiring landowners engaged in agricultural
practices to have an erosion prevention component within their farm
plan, alone they have not been fully adequate to protect this species
due to inconsistent implementation, monitoring, and enforcement.
Furthermore, habitat degradation is ongoing despite the protection
afforded by these laws.
The State of Alabama maintains water-use classifications through
issuance of National Pollutant Discharge Elimination System (NPDES)
permits to industries, municipalities, and others; these permits set
maximum limits on certain pollutants or pollutant parameters. For water
bodies on the Clean Water Act's section 303(d) List of Impaired Water
Bodies, States are required under the Clean Water Act to establish a
total maximum daily load (TMDL) for the pollutants of concern that will
bring water quality into the applicable standard. Many of the water
bodies within the occupied range of the spring pygmy sunfish do not
meet Clean Water Act standards (Alabama 2008 section 303(d) List of
Impaired Water Bodies).
The State of Alabama's surface water quality standards, adopted
from the national standards set by the EPA, were established with the
intent to protect all aquatic resources within the State of Alabama.
These water quality regulations appear to be protective of the spring
pygmy sunfish as long as discharges are within permitted limits and are
enforced according to the provisions of the Clean Water Act.
Unregulated and indiscriminate groundwater and surface water extraction
has been identified as a threat to spring species (see Factor A
discussion above). Within the State of Alabama, regulations concerning
groundwater issues are limited (Alabama Law Review 1997, p. 1). Alabama
common law follows a ``reasonable use rule'' for the extraction of
groundwater, and there is a statutory framework that regulates and
governs groundwater extraction (Chapman et al. 2005, p. 9; Alabama
Water Resources Act, Code of Alabama, sections 9-10B-1 et seq.). Water
users must file a declaration of beneficial use, be issued a
certificate of use, and be permitted and monitored periodically. The
Alabama Water Commission can place restrictions on certificates of use
in certain designated water capacity stressed areas; however, the
Alabama Water Commission has not identified any stressed groundwater
areas in or near spring pygmy sunfish habitat. Large volumes of
groundwater continue to be extracted in areas not identified as
``stressed groundwater areas'' such as the Beaverdam Spring/Creek
watershed, and this likely depresses water levels in nearby wells
(Hairston et al. 1990, p. 7) and springs (Younger 2007, p. 162). Such
groundwater extraction has likely depleted the aquifer that supplies
water to Beaverdam Spring and the spring pygmy sunfish. Thus, water use
restrictions under common law (Chapman et al. 2005, p. 10) provide
marginal protection for the species.
Summary of Factor D
The spring pygmy sunfish and its habitat are afforded limited
protection from surface water quality and habitat degradation under
Federal and State regulations. Notwithstanding this limited protection,
large volumes of groundwater are continually extracted, and these
extractions likely threaten the aquifer that supplies water to spring
pygmy sunfish habitat. Degradation of habitat within the current range
of this species is ongoing despite the protections afforded by these
existing laws. Therefore, based on the best scientific and commercial
information available, we consider the inadequacy of existing
regulatory mechanisms to be a threat to spring pygmy sunfish.
Factor E: Other Natural or Manmade Factors Affecting Its Continued
Existence
Impediments to migration, connectivity, and gene flow between or
within spring systems are threats to maintaining genetic diversity in
the spring pygmy sunfish. Habitat connectivity is critical to
maintaining heterozygosity (genetic diversity) within populations of
the species and reducing inbreeding, thereby maintaining the integrity
of the population (Hallerman 2003, pp. 363-364). Connectivity of spring
pygmy sunfish habitats is also necessary for improvement in water
quality through flushing and diluting pollutants and increasing water
quantity, and by linking spring segments together. Connectivity
maintains water flow between Beaverdam Spring/Creek habitats and allows
for potential colonization of unoccupied areas when conditions become
favorable for the species. Mechanical fragmentation of the habitat has
formed smaller, isolated subpopulations of spring pygmy sunfish.
Localized environmental changes caused by agriculture, urbanization,
and other anthropogenic disturbances of the spring systems throughout
the watersheds of the Eastern Highland Rim have exacerbated
fragmentation of spring habitat (Sandel 2011, pp. 3-6; 2008, pp. 2-4,
13). Over time, this fragmentation of the spring pygmy sunfish's
habitat will impose negative selective pressures on the species'
populations, such as genetic isolation; reduction of space for rearing,
recruitment, and reproduction; reduction of adaptive capabilities; and
increased likelihood of local extinctions (Sandel 2011, pp. 8-10;
Burkhead et al. 1997, pp. 397-399).
Climate Change
``Climate'' refers to an area's long-term average weather
statistics (typically for at least 20- or 30-year periods), including
the mean and variation of surface variables such as temperature,
precipitation, and wind; ``climate change'' refers to a change in the
mean or variability or both of climate properties that persists for an
extended period (typically decades or longer), whether due to natural
processes or human activity (Intergovernmental Panel on Climate Change
(IPCC) 2007a, p. 26). Although changes in climate occur continuously
over geological time, changes are now occurring at an accelerated rate.
For example, at continental, regional, and ocean basin scales, recent
observed changes in long-term trends include: A substantial increase in
precipitation in eastern parts of North American and South America,
northern Europe, and northern and central Asia, and an increase in
intense tropical cyclone activity in the North Atlantic since about
1970 (IPCC 2007a, p. 30); and an increase in annual average temperature
of more than 2[emsp14][deg]F
[[Page 60188]]
(1.1 [deg]C) across United States since 1960 (Global Climate Change
Impacts in the United States (GCCIUS) 2009, p. 27). Examples of
observed changes in the physical environment include: An increase in
global average sea level, and declines in mountain glaciers and average
snow cover in both the northern and southern hemispheres (IPCC 2007a,
p. 30); substantial and accelerating reductions in Arctic sea-ice
(e.g., Comiso et al. 2008, p. 1); and a variety of changes in ecosystem
processes, the distribution of species, and the timing of seasonal
events (e.g., GCCIUS 2009, pp. 79-88).
The IPCC used Atmosphere-Ocean General Circulation Models and
various greenhouse gas emissions scenarios to make projections of
climate change globally and for broad regions through the 21st century
(Randall et al. 2007, pp. 596-599), and reported these projections
using a framework for characterizing certainty (Solomon et al. 2007,
pp. 22-23). For example: (1) It is virtually certain there will be
warmer and more frequent hot days and nights over most of the earth's
land areas; (2) it is very likely there will be increased frequency of
warm spells and heat waves over most land areas, and the frequency of
heavy precipitation events will increase over most areas; and (3) it is
likely that increases will occur in the incidence of extreme high sea
level (excludes tsunamis), intense tropical cyclone activity, and the
area affected by droughts (IPCC 2007b, p. 8, Table SPM.2). More recent
analyses using a different global model and comparing other emissions
scenarios resulted in similar projections of global temperature change
across the different approaches (Prinn et al. 2011, pp. 527, 529).
All models (not just those involving climate change) have some
uncertainty associated with projections due to assumptions used, data
available, and features of the models; with regard to climate change
this includes factors such as assumptions related to emissions
scenarios, internal climate variability, and differences among models.
Despite this, however, under all global models and emissions scenarios,
the overall projected trajectory of surface air temperature is one of
increased warming compared to current conditions (Meehl et al. 2007, p.
762; Prinn et al. 2011, p. 527). Climate models, emissions scenarios,
and associated assumptions, data, and analytical techniques will
continue to be refined, as will interpretations of projections, as more
information becomes available. For instance, some changes in conditions
are occurring more rapidly than initially projected, such as melting of
Arctic sea-ice (Comiso et al. 2008, p. 1; Polyak et al. 2010, p. 1797),
and since 2000, the observed emissions of greenhouse gases, which are a
key influence on climate change, have been occurring at the mid- to
higher levels of the various emissions scenarios developed in the late
1990s and used by the IPCC for making projections (e.g., Raupach et al.
2007, Figure 1, p. 10289; Manning et al. 2010, Figure 1, p. 377; Pielke
et al. 2008, entire). Also, the best scientific and commercial data
available indicate that average global surface air temperature is
increasing and several climate-related changes are occurring and will
continue for many decades even if emissions are stabilized soon (e.g.,
Meehl et al. 2007, pp. 822-829; Church et al. 2010, pp. 411-412;
Gillett et al. 2011, entire).
Changes in climate can have a variety of direct and indirect
impacts on species, and can exacerbate the effects of other threats.
Rather than assessing ``climate change'' as a single threat in and of
itself, we examine the potential consequences to species and their
habitats that arise from changes in environmental conditions associated
with various aspects of climate change. For example, climate-related
changes to habitats, predator-prey relationships, disease and disease
vectors, or conditions that exceed the physiological tolerances of a
species, occurring individually or in combination, may affect the
status of a species. Vulnerability to climate change impacts is a
function of sensitivity to those changes, exposure to those changes,
and adaptive capacity (IPCC 2007, p. 89; Glick et al. 2011, pp. 19-22).
As described above, in evaluating the status of a species, the Service
uses the best scientific and commercial data available, and this
includes consideration of direct and indirect effects of climate
change. As is the case with all potential threats, if a species is
currently affected or is expected to be affected by one or more
climate-related impacts, this does not necessarily mean the species is
an endangered or threatened species as defined under the Act. If a
species is listed as endangered or threatened, this knowledge regarding
its vulnerability to, and impacts from, climate-associated changes in
environmental conditions can be used to help devise appropriate
strategies for its recovery.
While we do not have specific information concerning the effect of
climate change on spring pygmy sunfish and its habitat, we do know that
climate affects groundwater budgets (inflow and outflow) by influencing
precipitation and evaporation and, therefore, the rates and
distribution of recharge of the aquifer. Climate also affects human
demands for groundwater and affects plant transpiration from shallow
groundwater in response to solar energy and changing depths to the
water table (Likens 2009, p. 91). Chronic regional drought between 2000
and 2005 within the Tennessee Valley decreased rates of surface water
flow and aquifer recharge. Water extraction (of both groundwater and
surface water) during drought periods exacerbated damage to the spring
pygmy sunfish and its habitat (Sandel 2009, p. 15).
Long-term droughts have impacts on groundwater by increasing
groundwater extraction for public consumption and agriculture, which in
turn does not replenish surface waters (Likens 2009, p. 91). The
prolonged drought within northern Alabama during 2006 to 2008 was
exceptional (Jandebeur 2012, p. 13) and, along with the severe drought
of 1950 to 1963 (Jandebeur 2012, p. 13), may have contributed to the
demise of the Pryor Spring/Branch population of the spring pygmy
sunfish by increasing toxic concentrations of herbicides and by
increasing the desiccation of aquatic vegetation.
Conservation Efforts To Reduce or Eliminate Other Natural or Manmade
Factors
The CCAA will likely reduce some of the threats to groundwater
caused by climate change within the upper portion of the species' range
by minimizing impacts and helping to maintain groundwater recharge of
the aquifer, protecting surface water flow, and limiting groundwater
extraction. Under the CCAA, the Service will provide technical
assistance and groundwater management advice. Additionally, adaptive
management measures of the CCAA concern groundwater usage, including
pumping from the aquifer and avoidance of temporary or permanent ground
water removal installations. Also under the CCAA, the landowner will
not engage in practices that may disturb water quality during low water
levels in drought periods, such as pesticide and herbicide use, stock
farm ponds, and aquaculture, within the designated protected area.
These conservation measures will help protect the species on this
property in the near term and also minimize any incidental take of the
species that might occur as a result of conducting other covered
activities, should the species become listed in our final
determination. However, because of anthropogenic factors such as
urbanization or intensive agriculture, these conservation measures may
be inadequate during drought
[[Page 60189]]
periods caused by climate change or other natural phenomena.
Summary of Factor E
In summary, habitat fragmentation and its resulting effects on gene
flow and potential demographic impacts within the population is a
substantial threat and is affecting the spring pygmy sunfish's
continued existence. Climate change, in particular drought, affects
groundwater budgets (inflow and outflow) by influencing the rates and
distribution of recharge of the aquifer, affects human demands for
groundwater, and affects plant transpiration from shallow groundwater
reserves. Based on the best available information, we conclude that the
spring pygmy sunfish faces threats from other natural or manmade
factors affecting its continued existence. These threats continue
despite the beneficial effects of the CCAA.
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 spring
pygmy sunfish is endangered or threatened 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 spring pygmy sunfish. We reviewed the
petition, information available in our files, and other available
published and unpublished information, and we consulted with recognized
spring pygmy sunfish experts and other Federal and State agencies.
The identified threats to the spring pygmy sunfish are attributable
to Factors A, D, and E, as described in more detail in the Summary of
Information Pertaining to the Five Factors section above. The primary
threat to the species is from habitat modification (Factor A) in the
form of planned urban and industrial development of land adjacent to
spring pygmy sunfish habitat and the resultant impacts to the
surrounding aquifer recharge area, coupled with ongoing threats
associated with ground and surface water withdrawal and water quality
within the spring systems where this species currently occurs and
historically occurred. We find that this threat of increased urban and
industrial development and the associated infrastructure, along with
the current human use of the area, is a threat to the spring pygmy
sunfish, causing direct mortality as well as permanent loss,
fragmentation, or alteration of its habitat.
The degradation of habitat throughout the species' range is ongoing
despite the protections afforded by existing Federal and State laws and
policies (Factor D). Habitat fragmentation and its resulting effects on
gene flow and potential demographic impacts within the population is a
threat (Factor E) and is affecting the spring pygmy sunfish's continued
existence. The recently established CCAA provides a measure of
protection for the species in the upper reach of the population, with
the implementation of conservation measures that increase or preserve
water quantity and reduce water quality degradation and prohibit any
potentially damaging land use actions in that area (Factor A). However,
these conservation measures only extend to that portion of the
population enrolled in the CCAA, which protects 24 percent of the total
occupied habitat. Although this CCAA reduces some of the threats under
Factors A and E, the CCAA is not able to ameliorate all of the threat
factors to this species rangewide.
Based on our evaluation of the best scientific and commercial
information available regarding the past, present, and future threats
faced by the spring pygmy sunfish, we have determined the continued
existence of the spring pygmy sunfish is under threat from: Ongoing and
planned urban and industrial development and associated activities;
ongoing agricultural practices, including water extraction from
groundwater and surface water; the reduction of aquifer recharge,
resulting in changes in hydrology; surface and groundwater pollution;
past and present use of fertilizers and pesticides; climate change;
inadequate regulatory mechanisms; and habitat fragmentation and
resultant interruption in gene flow. These threats exist despite the
beneficial effects of the CCAA. Because the species faces these threats
throughout its extremely limited range, we find that the spring pygmy
sunfish is warranted for listing throughout its range.
Status Evaluation
The Act defines an endangered species as any species that is in
danger of extinction throughout all or a significant portion of its
range, and a threatened species as one that is likely to become
endangered in the foreseeable future throughout all or a significant
portion of its range. In this proposal of the status of the spring
pygmy sunfish, we take into account the protection afforded to the
springhead and upper portion of the population through the established
CCAA (helping to moderate threats under Factors A and E), and look
carefully at future potential threats, especially the potential impact
of residential and commercial development, which is currently only in
the planning stage. Based on our evaluation of the best available
scientific and commercial information related to the extremely
restricted range of the species, threats to it and its habitat, future
potential threats, and conservation measures currently underway through
an established CCAA, we have determined that the species is threatened
by multiple factors (Factors A, D, and E) throughout all of its range.
Specifically, we have determined that the species is likely to become
endangered in the foreseeable future, and therefore meets the
definition of a threatened species. Threatened status was determined to
be proposed for the spring pygmy sunfish because it is not considered
to be in immediate danger of extinction primarily due to the ongoing
conservation measures in the CCAA, which offers protection to the
Beaverdam springhead and the most robust portion of the population. In
addition, impacts to the species from large-scale industrial and
residential development adjacent to the spring are not imminent, as
developments are still in the planning stage. The species is not
endangered, because it is not currently in immediate danger of
extinction, but as noted, we find that it is likely to become in danger
of extinction throughout its range in the foreseeable future, which is
the definition of a threatened species. Because the range of the
species consists of a single occurrence location, and we have
determined that the species is at risk of becoming endangered in that
location, we do not need to further analyze whether there may be a
significant portion of the range of the species that has a different
status.
Available Conservation Measures
Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
practices. Recognition of a species through listing results in
increased public awareness and more focused conservation efforts by
Federal, State, Tribal, and local agencies; private organizations; and
individuals. The Act encourages cooperation with the States and
requires that recovery actions be carried out for all listed species.
The protection measures required of Federal agencies and the
prohibitions against certain activities involving listed wildlife are
discussed, in part, below, and
[[Page 60190]]
additionally in the Effects of Critical Habitat Designation section of
this proposed rule below.
The primary purpose of the Act is the conservation of endangered
and threatened species and the ecosystems upon which they depend. The
ultimate goal of such conservation efforts is the recovery of these
listed species, so that they no longer need the protective measures of
the Act. Subsection 4(f) of the Act requires the Service to develop and
implement recovery plans for the conservation of endangered and
threatened species. The recovery planning process involves the
identification of actions that are necessary to halt or reverse the
species' decline by addressing the threats to its survival and
recovery. The goal of this process is to restore listed species to a
point where they are secure, self-sustaining, and functioning
components of their ecosystems.
Recovery planning includes the development of a recovery outline
shortly after a species is listed, preparation of a draft and final
recovery plan, and revisions to the plan as significant new information
becomes available. The recovery outline guides the immediate
implementation of urgent recovery actions and describes the process to
be used to develop a recovery plan. The recovery plan identifies site-
specific management actions that will achieve recovery of the species,
measurable criteria that determine when a species may be downlisted or
delisted, and methods for monitoring recovery progress. Recovery plans
also establish a framework for agencies to coordinate their recovery
efforts and provide estimates of the cost of implementing recovery
tasks. Recovery teams (comprised of species experts, Federal and State
agencies, nongovernment organizations, and stakeholders) are often
established to develop recovery plans. When completed, the recovery
outline, draft recovery plan, and the final recovery plan will be
available on our Web site (http://www.fws.gov/endangered), or from our
Mississippi Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT).
Implementation of recovery actions generally requires the
participation of a broad range of partners, including other Federal
agencies, States, Tribal, nongovernmental organizations, businesses,
and private landowners. Examples of recovery actions include habitat
restoration (e.g., restoration of native vegetation), research, captive
propagation and reintroduction, and outreach and education. The
recovery of many listed species cannot be accomplished solely on
Federal lands because their range may also occur on non-Federal lands.
To achieve recovery of these species requires cooperative conservation
efforts on private, State, and Tribal lands. The CCAA between the
Service, Belle Mina Farms Ltd., and the Land Trust identifies several
strategies that will support recovery efforts, including: (1)
Maintenance of vegetation buffer zones along the springs; (2)
prohibition of cattle within the spring; (3) prohibition of
deforestation, land clearing, industrial development, residential
development, aquaculture, temporary or permanent ground water removal
installations, stocked farm ponds, pesticide and herbicide use, and
impervious surface installation within the protected area of the CCAA;
and (4) establishment of a biological monitoring program for the spring
pygmy sunfish and its habitat.
If this species is listed, funding for recovery actions will become
available from a variety of sources, including Federal budgets, State
programs, and cost share grants for non-Federal landowners, the
academic community, and nongovernmental organizations. In addition,
under section 6 of the Act, the State of Alabama would be eligible for
Federal funds to implement management actions that promote the
protection and recovery of the spring pygmy sunfish. Information on our
grant programs that are available to aid species recovery can be found
at: http://www.fws.gov/grants.
Although the spring pygmy sunfish is only proposed for listing
under the Act at this time, please let us know if you are interested in
participating in recovery efforts for this species. Additionally, we
invite you to submit any new information on this species whenever it
becomes available and any information you may have for recovery
planning purposes (see FOR FURTHER INFORMATION CONTACT).
Section 7(a) of the Act requires Federal agencies to evaluate their
actions with respect to any species that is proposed or listed as
endangered or threatened and with respect to its critical habitat, if
any is designated. Regulations implementing this interagency
cooperation provision of the Act are codified at 50 CFR part 402.
Section 7(a)(4) of the Act requires Federal agencies to confer with the
Service on any action that is likely to jeopardize the continued
existence of a species proposed for listing or result in destruction or
adverse modification of proposed critical habitat. If a species is
listed subsequently, section 7(a)(2) of the Act requires Federal
agencies to ensure that activities they authorize, fund, or carry out
are not likely to jeopardize the continued existence of the species or
destroy or adversely modify its critical habitat. If a Federal action
may affect a listed species or its critical habitat, the responsible
Federal agency must enter into formal consultation with the Service.
Federal agency actions within the species' habitat that may require
conference or consultation or both as described in the preceding
paragraph include Federal activities that may affect spring pygmy
sunfish, including, but not limited to: The carrying out or the
issuance of permits for discharging fill material on wetlands for road
or highway construction; installation of utility easements; development
of residential, industrial, and commercial facilities; unsustainable
farming practices, including indiscriminate use of chemicals, and
decreasing buffers around fields and drainage ditches and swales;
channeling or other stream geomorphic changes; discharge of
contaminated or sediment laden waters; wastewater facility development;
and excessive groundwater and surface water extraction. Additional
actions that may require conference or consultation or both include:
(1) Actions that would significantly alter the structure and
function of the spring system. Such actions or activities could
include, but are not limited to, the filling or excavation of spring
heads, spring pools, spring-fed wetlands, and spring runs. The filling
or excavation of the spring system would alter the hydrology of the
site and would destroy the vegetation, water quality, and water
quantity where spring pygmy sunfish spends all of its life stages. The
filling or excavation of the spring systems could result in the direct
mortality of the species where the species is known to occur.
(2) Actions that would significantly alter the aquatic vegetation
structure in and around the spring associated wetland. Such actions or
activities could include, but are not limited to, vegetation cutting or
herbicide usage for expanding or maintaining roads, construction of new
roads, maintenance of agricultural fields, construction of new
agricultural fields, development of new residences, development of new
commercial establishments, or industrial development. Alteration of the
vegetation structure would likely change the spring-fed wetland
characteristics by changing the microhabitat (e.g., change in
temperature and humidity levels) and could result in direct mortality
of individuals and egg clutches through desiccation from sun exposure.
[[Page 60191]]
(3) Actions that may alter the natural outflow and quantity of
water from the spring head and through the spring run into the stream
channels. Such actions or activities could include, but are not limited
to, changes in the hydrology of Beaverdam Spring/Creek and related
recharge area and aquifer. These actions include, but are not limited
to, excessive water extraction for public, municipal, industrial, and
agricultural usages.
(4) Actions that would significantly degrade water quality
parameters such as pH, alkalinity, conductivity, turbidity, and others
(i.e., contaminants, excess nutrients). Stormwater discharge laden with
chemicals and sediments can enter groundwater and surface water
systems. Decreasing water quantity concentrates chemicals and also
encourages eutrophic (nutrient rich) conditions.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all endangered
wildlife. The prohibitions of section 9(a)(1) of the Act, and its
implementing regulations at 50 CFR 17.21, make it illegal for any
person subject to the jurisdiction of the United States to take (which
includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,
or collect, or to attempt any of these), import, export, ship in
interstate commerce in the course of commercial activity, or sell or
offer for sale in interstate or foreign commerce any listed species.
The regulations at 50 CFR 17.31 extend the prohibitions listed above to
threatened species, with certain exceptions. Under the Lacey Act (18
U.S.C. 42-43; 16 U.S.C. 3371-3378), it is also illegal to possess,
sell, deliver, carry, transport, or ship any such wildlife that has
been taken illegally. Certain exceptions apply to agents of the Service
and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities
involving endangered and threatened wildlife species under certain
circumstances. Regulations governing permits are codified at 50 CFR
17.22 for endangered species, and at 17.32 for threatened species. With
regard to endangered wildlife, a permit must be issued for take for the
following purposes: for scientific purposes, to enhance the propagation
or survival of the species, and for incidental take in connection with
otherwise lawful activities.
It is our policy, as published in the Federal Register on July 1,
1994 (59 FR 34272), to identify, to the maximum extent practicable at
the time a species is listed, those activities that would or would not
constitute a violation of section 9 of the Act. The intent of this
policy is to increase public awareness of the effect of a proposed
listing on proposed and ongoing activities within the range of the
species proposed for listing. The following activities could
potentially result in a violation of section 9 of the Act; this list is
not comprehensive:
(1) Unauthorized collecting, handling, possessing, selling,
delivering, carrying, or transporting of the species, including import
or export across State lines and international boundaries, except for
properly documented antique specimens of these taxa at least 100 years
old, as defined by section 10(h)(1) of the Act;
(2) Introduction of species that compete with or prey upon the
spring pygmy sunfish;
(3) The unauthorized release of biological control agents that
attack this species' habitat or any of its life stages;
(4) Unauthorized modification of the vegetation composition or
hydrology, or violation of any discharge or water withdrawal permit
that results in harm or death to any individuals of this species or
that results in degradation of its occupied habitat to an extent that
essential behaviors such as breeding, feeding, and sheltering are
impaired;
(5) Unauthorized destruction or alteration of their habitats (such
as channelization, dredging, sloping, removing of substrate, or
discharge of fill material) that impairs essential behaviors, such as
breeding, feeding, or sheltering, or that results in killing or
injuring spring pygmy sunfish; and
(6) Unauthorized discharges or dumping of toxic chemicals or other
pollutants into the aquifer directly through wells or into the spring
system or indirectly into recharge areas supporting spring pygmy
sunfish that kills or injures the species or that otherwise impairs
essential life-sustaining requirements, such as breeding, feeding, or
sheltering (destruction of vegetation and substrate).
Questions regarding whether specific activities would constitute a
violation of section 9 of the Act should be directed to the Mississippi
Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Requests for copies of the regulations concerning listed animals and
general inquiries regarding prohibitions and permits may be addressed
to the U.S. Fish and Wildlife Service, Endangered Species Permits, 1875
Century Blvd. NE., Atlanta, GA 30345 (telephone 404-679-7313; facsimile
404-679-7081).
Critical Habitat
Background
It is our intent to discuss below only those topics directly
relevant to the designation of critical habitat for the spring pygmy
sunfish in this section of the proposed rule.
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the Act, on which
are found those physical or biological features
(a) Essential to the conservation of the species and
(b) Which may require special management considerations or
protection; and
(2) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means to use
and the use of all methods and procedures that are necessary to bring
an endangered or threatened species to the point at which the measures
provided under the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, and transplantation, and, in the extraordinary case where
population pressures within a given ecosystem cannot be otherwise
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the requirement that Federal agencies ensure, in consultation
with the Service, that any action they authorize, fund, or carry out is
not likely to result in the destruction or adverse modification of
critical habitat. The designation of critical habitat does not affect
land ownership or establish a refuge, wilderness, reserve, preserve, or
other conservation area. Such designation does not allow the government
or public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
non-Federal landowners. Where a landowner seeks or requests Federal
agency funding or authorization for an action that may affect a listed
species or critical habitat, the consultation requirements of section
7(a)(2) of the Act would apply, but even in the event
[[Page 60192]]
of a destruction or adverse modification finding, the obligation of the
Federal action agency and the landowner is not to restore or recover
the species, but to implement reasonable and prudent alternatives to
avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat,
areas within the geographic area occupied by the species at the time it
is listed are included in a critical habitat designation if they
contain physical or biological features (1) which are essential to the
conservation of the species and (2) which may require special
management considerations or protection. In identifying those physical
and biological features within an area, we focus on the principal
biological or physical constituent elements (primary constituent
elements (PCEs) such as roost sites, nesting grounds, seasonal
wetlands, water quality, tide, soil type) that are essential to the
conservation of the species. Primary constituent elements are the
elements of physical or biological features that, when laid out in the
appropriate quantity and spatial arrangement to provide for a species'
life-history processes, are essential to the conservation of the
species.
Under the second prong of the Act's definition of critical habitat,
we can designate critical habitat in areas outside the geographic area
occupied by the species at the time it is listed, upon a determination
that such areas are essential for the conservation of the species. We
designate critical habitat in areas outside the geographic area
occupied by a species only when a designation limited to occupied
habitat would be inadequate to ensure the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards under the Endangered
Species Act (published in the Federal Register on July 1, 1994 (59 FR
34271)), the Information Quality Act (section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658)), and our associated Information Quality Guidelines
provide criteria, establish procedures, and provide guidance to ensure
that our decisions are based on the best scientific data available.
They require our biologists, to the extent consistent with the Act and
with the use of the best scientific data available, to use primary and
original sources of information as the basis for recommendations to
designate critical habitat.
When we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, other unpublished materials, or
experts' opinions or personal knowledge.
Habitat is dynamic, and species may move from one area to another
over time. We recognize that critical habitat designated at a
particular point in time may not include all of the habitat areas that
we may later determine are necessary for the recovery of the species.
For these reasons, a critical habitat designation does not signal that
habitat outside the designated area is unimportant or may not be needed
for recovery of the species. If we list the spring pygmy sunfish and
designate critical habitat for the species, areas that are important to
the conservation of the species, both inside and outside the critical
habitat designation, would continue to be subject to: (1) Conservation
actions implemented under section 7(a)(1) of the Act, (2) regulatory
protections afforded by the requirement in section 7(a)(2) of the Act
for Federal agencies to ensure their actions are not likely to
jeopardize the continued existence of any endangered or threatened
species, and (3) the prohibitions of section 9 of the Act if actions
occurring in these areas may affect the species. Federally funded or
permitted projects affecting listed species outside their designated
critical habitat areas may still result in jeopardy findings in some
cases. These protections and conservation tools would continue to
contribute to recovery of this species. Similarly, critical habitat
designations made on the basis of the best available information at the
time of designation would not control the direction and substance of
future recovery plans, habitat conservation plans (HCPs), or other
species conservation planning efforts if new information available at
the time of these planning efforts calls for a different outcome.
Prudency Determination
Section 4(a)(3) of the Act, as amended, and implementing
regulations (50 CFR 424.12) require that the Secretary designate
critical habitat at the time the species is determined to be endangered
or threatened to the maximum extent prudent and determinable. These
regulations (50 CFR 424.12(a)(1)) state that the designation of
critical habitat is not prudent when one or both of the following
situations exist: (1) The species is threatened by taking or other
human activity, and identification of critical habitat can be expected
to increase the degree of threat to the species; or (2) such
designation of critical habitat would not be beneficial to the species.
As we have discussed above under the Factor B analysis, there is
currently no imminent threat of take attributed to collection (for
commercial, recreational, scientific, or educational purposes) of this
species. Moreover, there is no information to indicate that
identification of critical habitat is expected to create such a threat
to the species. In the absence of a finding that the designation of
critical habitat would increase threats to a species, then a prudent
finding is warranted if there are any benefits to a critical habitat
designation. Potential benefits of designation include: (1) Triggering
consultation under section 7 of the Act, in new areas for actions in
which there may be a Federal nexus where it would not otherwise occur
because, for example, it is or has become unoccupied or the occupancy
is in question; (2) focusing conservation activities on the most
essential features and areas; (3) providing educational benefits to
State or county governments or private entities; and (4) preventing
people from causing inadvertent harm to the species.
The primary regulatory effect of critical habitat is the section
7(a)(2) requirement that Federal agencies refrain from taking any
action that destroys or adversely modifies critical habitat. Lands
proposed for designation as critical habitat would be subject to
Federal actions that trigger section 7 consultation requirements. These
include land management planning and Federal agency actions. There may
also be educational or outreach benefits to the designation of critical
habitat. Critical habitat designation identifies those physical and
biological features of the habitat essential to the conservation of
spring pygmy sunfish and that may require special management and
protection. Accordingly, this designation would provide information to
individuals, local and State governments, and other entities engaged in
activities or long-range planning in areas essential to the
conservation of the species. Conservation of the spring pygmy sunfish
and the essential features of its habitat requires habitat management,
protection, and restoration, which would be facilitated
[[Page 60193]]
by knowledge of habitat locations and the physical and biological
features of the habitat. Based on this information, we believe critical
habitat would be beneficial to this species. Therefore, we have
determined that the designation of critical habitat for spring pygmy
sunfish is prudent.
Determinability
Our regulations (50 CFR 424.12(a)(2)) state that critical habitat
is not determinable when one or both of the following situations exist:
(1) Information sufficient to perform required analysis of the impacts
of the designation is lacking, or (2) the biological needs of the
species are not sufficiently well known to permit identification of an
area as critical habitat.
Delineation of critical habitat requires identification of the
physical and biological habitat features that are essential to the
conservation of the species. We have reviewed the available information
pertaining to the known distribution of spring pygmy sunfish and the
characteristics of the habitat currently occupied. This information
represents the best scientific and commercial data available and leads
us to conclude that, although available information is limited, it is
sufficient to identify specific areas that meet the definition of
critical habitat. Therefore, we have found that critical habitat is
determinable for spring pygmy sunfish.
Physical or Biological Features
In accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and
regulations at 50 CFR 424.12, in determining which areas within the
geographical area occupied by the species at the time of listing to
designate as critical habitat, we consider the physical or biological
features essential to the conservation of the species and which may
require special management considerations or protection. These include,
but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, or rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historical, geographical, and ecological
distributions of a species.
We derive the specific physical and biological features required
for the spring pygmy sunfish from studies of this species' habitat,
ecology, and life history as described in the Background section of
this proposed rule and information presented below. There is limited
information on this species' specific habitat requirements, other than
it requires springs and connecting spring-fed reaches and wetlands; an
adequate groundwater and surface water hydrology; and clean, cool water
and the associated vegetation and invertebrates. To identify the
physical and biological needs of the species, we have relied on current
conditions at the locations where the species exists today and the
limited information we have on historical sites, limited information
available on this species and its close relatives, and factors
associated with the decline and extirpation of this and other spring-
associated fish species.
Space for Individual and Population Growth and for Normal Behavior
Spring pygmy sunfish depend on geomorphically stable spring systems
including the spring head, spring run, and spring pools. The spring
systems used by the species also include transition zones between these
features on moderately low-gradient topographic slopes that feather out
into spring-fed wetland pools. The spring pygmy sunfish inhabits spring
pools, spring runs, and spring-fed streams and pools with substrates of
silt, sand, and gravel.
The current range of the spring pygmy sunfish is reduced to
localized sites due to fragmentation of the spring systems on which it
depends. Fragmentation of the species' habitat has isolated populations
and reduced available space for spawning, rearing of young,
concealment, and foraging. As a result, the spring pygmy sunfish's
adaptive capability has been reduced, and the likelihood of local
extinctions has increased (Burkhead et al. 1997, pp. 397-399; Hallerman
2003, pp. 363-364). Connectivity of spring systems maintains spawning,
foraging, and resting sites, and allows for gene flow throughout the
population. Genetic variation and diversity within a species are
essential for recovery, adaptation to environmental changes, and long-
term viability (capability to live, reproduce, and develop) (Harris
1984, pp. 93-107; Noss and Cooperrider 1994, pp. 282-297; Fluker et al.
2007, p. 2). Long-term viability is founded on space for numerous
interbreeding, local populations throughout the range (Harris 1984, pp.
93-107).
Therefore, based on the information above, we identify springs and
connecting spring-fed reaches and wetlands of geomorphically stable,
relatively low-gradient, headwater springs with spring heads, spring
runs, and spring pools that filter into shallow vegetated wetlands to
be an essential physical or biological feature for the spring pygmy
sunfish. The connectivity of these habitats is essential in
accommodating feeding, breeding, growth, and other normal behaviors of
the spring pygmy sunfish and in promoting gene flow within the
population.
Food, Water, Air, Light, Minerals, or Other Nutritional or
Physiological Requirements
Water Quality
Exceptional water quality at the spring heads and pools, and
adequate water quality throughout the habitat, maintained by
unobstructed water flow through connected spring habitats, are
essential for normal behavior, growth, and viability during all life
stages of the spring pygmy sunfish. Suitable habitat conditions for the
spring pygmy sunfish have not been investigated thoroughly; however,
some data specific to the species are available for the following water
quality parameters: pH, water temperature, specific conductivity
(ability of water to conduct an electric current, based on dissolved
solids in the water), and alkalinity (capacity of solutes in an aqueous
system to neutralize acid as HCO3). Spring pygmy sunfish males
establish territories and spawn in late February through April, when
water quality parameters are within a suitable pH range of 6.0 to 7.7,
and water temperatures are between 57.2 and 68[emsp14][deg]F (14 and 20
[deg]C) (Mettee 2008, p. 36; Sandal, 2007, p. 2; Rakes et al. 2011, p.
4). A specific conductivity of 5.5 to 14.2 micro Siemens per centimeter
at 61[emsp14][deg]F (16 [deg]C) and alkalinity of 20 to 66 milligrams
per liter (mg/l) have been reported from habitat occupied by spring
pygmy sunfish (Jandebeur 1997, p. 34).
Essential water quality attributes for the spring pygmy sunfish may
be inferred from those of other fish species living in medium water
flow streams along with baseline spring and subsurface water quality
information obtained from systems within Limestone County, adjacent
counties, and elsewhere. Based on yearly averages, these include: (1)
Dissolved oxygen levels greater than 6 parts per million (ppm); (2)
temperatures between 45 and 80[emsp14][deg]F (7.2 and 26.7 [deg]C),
with spring egg incubation temperatures from 54 to 65[emsp14][deg]F
(12.2 to 18.3 [deg]C); (3) specific conductivity of less than
approximately 300 micro Siemens per centimeter at 80[emsp14][deg]F
(26.7 [deg]C); and (4) concentrations of free or suspended solids
(organic and
[[Page 60194]]
inorganic sediments) less than 15 Nephelometric Turbidity Units (NTU;
units used to measure sediment discharge) and 20 mg/L total suspended
solids (TSS; measured as mg/L of sediment in water) (Teels et al. 1975,
pp. 8-9; Ultschet et al. 1978, pp. 99-101; Ingersoll et al. 1984, pp.
131-138; Chandler et al. 1987, pp. 56-57; Kundell and Rasmussen 1995,
pp. 211-212; Henley et al. 2000, pp. 125-139; Meyer and Sutherland
2005, pp. 43-64; McGregor et al. 2008, pp. 7-9; Knight 2011, pp. 3-8).
Nonpoint and point sources of ammonia and chlorine from commercial
water extraction facilities and agricultural fields may be primary
factors in reducing the quality of spring run waters for spring pygmy
sunfish. Agricultural withdrawals can reduce or eliminate the volume of
groundwater that is being discharged into the species' habitat and
affect water temperatures and other physical parameters.
Temperature greatly influences the form and toxicity of ammonia and
chlorine. Higher temperatures result in a shift from the nontoxic
ammonium ion (NH4\+\) to highly toxic ammonia (NH3). Chlorine is also
more toxic at higher temperatures (Hoffman et al. 2003, p. 681). Thus,
higher temperatures during the summer, along with drought and reduced
spring flows, may intensify impacts from these two chemicals on the
life stages and habitats of the spring pygmy sunfish.
Therefore, we identify the following water quality parameters to be
an essential physical or biological feature for the spring pygmy
sunfish, based on yearly averages: Optimal temperatures of 57.2 to
68[emsp14][deg]F (14 to 20 [deg]C) and not exceeding 80[emsp14][deg]F
(26.7 [deg]C); pH of 6.0 to 7.7; dissolved oxygen of 6.0 ppm or
greater; specific conductivity no greater than 300 micro Siemens per
centimeter at 80[emsp14][deg]F (26.7 [deg]C); and low concentrations of
free or suspended solids with turbidity measuring less than 15 NTU and
20 mg/L TSS.
Water Quantity
Water flow and water quantity may also vary according to season,
precipitation events, and human activities, such as groundwater and
surface water extraction, within the recharge area of the spring
system. Agriculture, industrial or human consumption, silviculture,
maintenance of roadways and utilities, and urbanization and
industrialization projects are activities that may use water that would
otherwise recharge spring systems. Connectivity of spring systems is
also important for maintaining water quality. Adequate groundwater and
recharge rates, and spring water outflow, are important to the
conservation of the spring pygmy sunfish.
Therefore, based on the information above, we identify a hydrologic
flow regime (magnitude, frequency, duration, and seasonality of
discharge overtime) necessary to maintain spring habitats to be an
essential physical or biological feature for the spring pygmy sunfish.
The instream flow from groundwater sources (spring and seep) maintains
a velocity and a continuous daily discharge from the aquifer that
allows for connectivity between habitats. Instream flow is stable and
does not vary during water extraction, and the aquifer recharge
maintains adequate levels to supply water flow to the spring head. The
flow regime does not significantly change during storm events.
Food
All pygmy sunfish species stalk invertebrates by using the dense
submergent vegetation within the spring system to conceal their
foraging activity (Walsh and Burr 1984, pp. 45-46). The aquatic
vegetation provides a ready source of food (Petty et al. 2011, p. 2)
and habitat for invertebrates. Daphnia, amphipods, chironomid larvae,
and small snails are the major components of the spring pygmy sunfish's
diet (Slate 1993, p. 3; Sandel 2009, p. 9).
Cover or Shelter and Sites for Breeding, Reproduction, or Rearing
The spring pygmy sunfish relies heavily on aquatic and emergent
vegetation in the shallow water along the margins of the runs and pools
of the spring systems where the fish occurs. The vegetation provides
cover and shelter necessary for breeding, reproduction and growth of
offspring, concealment from predators, and foraging. Species of
submergent and emergent vegetation providing important habitat for the
spring pygmy sunfish include clumps and stands of Sparganium spp. (bur
reed), Ceratophyllum spp. (coontail), Nasturtium officinale
(watercress), Juncus spp. (rush), Carex spp. (sedges), Nuphar luteum
(yellow pond lily), Myriophyllum spp. (parrot feather), Utricularia sp.
(bladderwort), Polygonum spp. (smartweed), Lythrum salicaria (purple
loosestrife), and Callitriche spp. (water starwort) (Mayden 1993, p.
11; Jandebeur 1997, pp. 42-44; Sandel 2011, pp. 3-5, 9-11). Sandel
(2009, p. 14) suggested that concentration of spring pygmy sunfish may
be associated with thick and abundant Ceratophyllum echinatum and that
the species decreases as distances increase from spring pools.
Therefore, based on the information above, we identify aquatic,
emergent and semi-emergent vegetation along the margins of spring runs
and submergent vegetation that is adequate for breeding, reproducing,
and rearing young; providing cover and shelter from predators; and
supporting the prey base of aquatic macroinvertebrates eaten by spring
pygmy sunfish to be an essential physical or biological feature for the
spring pygmy sunfish.
Primary Constituent Elements for the Spring Pygmy Sunfish
Under the Act and its implementing regulations, we are required to
identify the physical and biological features essential to the
conservation of the spring pygmy sunfish in areas occupied at the time
of listing (i.e., areas that are currently occupied), focusing on the
features' primary constituent elements. We consider primary constituent
elements (PCEs) to be the elements of physical and biological features
that provide for a species' life-history processes and that are
essential to the conservation of the species.
Based on our current knowledge of the physical or biological
features and habitat characteristics required to sustain the species'
life-history processes, as discussed above, we determine that the PCEs
specific to the spring pygmy sunfish are:
(1) Spring system. Springs and connecting spring-fed reaches and
wetlands that are geomorphically stable and relatively low-gradient.
This includes headwater springs with spring heads, spring runs, and
spring pools that filter into shallow, vegetated wetlands.
(2) Water quality. Yearly averages of water quality with optimal
temperatures of 57.2 to 68[emsp14][deg]F (14 to 20 [deg]C) and not
exceeding 80[emsp14][deg]F (26.7 [deg]C); pH of 6.0 to 7.7; dissolved
oxygen of 6.0 ppm or greater; specific conductivity no greater than 300
micro Siemens per centimeter at 80[emsp14][deg]F (26.7 [deg]C); and low
concentrations of free or suspended solids with turbidity measuring
less than 15 NTU and 20 mg/L TSS.
(3) Hydrology. A hydrologic flow regime (magnitude, frequency,
duration, and seasonality of discharge over time) necessary to maintain
spring habitats. The instream flow from groundwater sources (springs
and seeps) maintains an adequate velocity and a continuous daily
discharge from the aquifer that allows for connectivity between
habitats. Instream flow is stable and does not vary during water
extraction, and the aquifer recharge maintains
[[Page 60195]]
adequate levels to supply water flow to the spring head. The flow
regime does not significantly change during storm events.
(4) Vegetation and Prey Base. Aquatic, emergent and semi-emergent
vegetation along the margins of spring runs and submergent vegetation
that is adequate for breeding, reproducing, and rearing young;
providing cover and shelter from predators; and supporting the prey
base of aquatic macroinvertebrates eaten by spring pygmy sunfish.
Important species of submergent and emergent vegetation include clumps
and stands of Sparganium spp. (bur reed), Ceratophyllum spp.
(coontail), Nasturtium officinale (watercress), Juncus spp. (rush),
Carex spp. (sedges), Nuphar luteum (yellow pond lily), Myriophyllum
spp. (parrot feather), Utricularia spp. (bladderwort), Polygonum spp.
(smartweed), Lythrum salicaria (purple loosestrife), and Callitriche
spp. (water starwort).
Special Management Considerations or Protections
When designating critical habitat, we assess whether the specific
areas within the geographical area occupied by the species at the time
of listing contain features which are essential to the conservation of
the species and which may require special management considerations or
protection.
We find that the essential features within the area occupied at the
time of listing may require special management consideration or
protection due to threats to spring pygmy sunfish and or its habitat.
The sole proposed unit that is occupied is adjacent to roads, homes, or
other manmade structures in which various activities in or adjacent to
the critical habitat unit may affect one or more of the physical and
biological features. The features essential to the conservation of this
species are the spring systems that may require special management
considerations or protection to reduce the following threats or
potential threats: Reduction of water quantity of the groundwater/
surface hydrology by water extraction from springs or the aquifer that
provides water to the spring, and surface flow to Beaverdam Creek and
Pryor Branch; changes in the composition and abundance of vegetation in
the spring; alteration of the bottom substrate and normal sinuosity of
the system from fill material within the spring systems and spring-fed
wetlands for development projects; degradation of water quality from
uncontrolled discharge of stormwater draining agricultural fields,
roads, bridges, and urban areas; careless agricultural practices
including unmanaged livestock grazing; and road, bridge, and utility
easement maintenance (e.g., use of herbicides and resurfacing or
sealant materials).
Management activities that could ameliorate these threats or
potential threats include, but are not limited to: Establishing
permanent conservation easements or land acquisition to protect the
species on private lands; establishing additional conservation
agreements on private lands to identify and reduce threats to the
species and its features; minimizing habitat disturbance,
fragmentation, and destruction by maintaining suitable fish passage
structures under roads; providing significant buffers around the spring
components such as the spring head, spring pool, and spring run;
monitoring and regulating the withdrawal and use of groundwater and
surface water of the Beaverdam Spring/Creek system; preventing the
diminishing of the aquifer recharge area by increasing the pervious
area for percolation of rainfall back into the aquifer; limiting
impervious substrates; and minimizing water quality degradation by
stormwater runoff with catchment basins, vegetated bioswales, and other
appropriate best management practices.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(2) of the Act, in developing this
proposed rule, we used the best scientific data available to propose
critical habitat for the spring pygmy sunfish. We reviewed available
information that pertains to the habitat requirements of the species.
In accordance with the Act and its implementing regulation at 50 CFR
424.12(e), we considered whether designating additional areas outside
those currently occupied (which would mean occupied at the time of
listing) is necessary to ensure the conservation of the species. We are
proposing to designate critical habitat in areas within the geographic
area currently occupied by the species (i.e., that would be considered
occupied at the time of listing). We are also proposing to designate
specific areas outside the geographic area currently occupied by the
species but that were historically occupied, because such areas are
essential for the conservation of the species.
We began our determination of which areas to propose for critical
habitat with an assessment of the critical life-history components of
the spring pygmy sunfish, as they relate to habitat. We then evaluated
current and historical sites to establish what areas are currently
occupied and contain the physical and biological features that are
essential to the conservation of the species and that may require
special management considerations or protection, as well as unoccupied
sites that might be essential for the conservation of the species. We
reviewed the available information pertaining to historic and current
distributions, life histories, and habitat requirements of this
species. Our sources included surveys, unpublished reports, and peer-
reviewed scientific literature prepared by the Alabama Department of
Conservation and Natural Resources, Alabama Geological Survey, Athens
State University, University of Alabama, the Service, spring pygmy
sunfish researchers and others, as well as Geographic Information
System (GIS) data (such as species occurrence data, habitat data, land
use topography, digital aerial photography, and ownership maps).
Currently, occupied habitat is confined to a single population
consisting of four spring pools within the upper Beaver Dam Spring/
Creek complex in Limestone County, Alabama. We believe that this area
contains all PCEs to support life-history functions essential to the
conservation of the species. However, this single population is at risk
of extirpation from stochastic events such as periodic droughts and
from existing or potential human-induced events (i.e., development,
excessive water extraction, chemical contamination). To reduce the risk
of losing this single population through these processes, it is
important to establish additional populations in areas where suitable
habitat exists. Therefore, in identifying unoccupied spring/stream
reaches that could be essential for the conservation of the spring
pygmy sunfish, we first considered the availability of potential
habitat throughout the historical range that may be suitable for the
survival and persistence of the species. We eliminated from
consideration spring/stream reaches without any historical records of
spring pygmy sunfish occurrences. We identified two sites with recorded
historical occurrences of the spring pygmy sunfish: one in Pryor
Springs in Limestone County, Alabama, and a second in Cave Springs in
Lauderdale County, Alabama. The Cave Spring site was excluded from
consideration because it was inundated with the formation of Wheeler
Reservoir in 1939. However, the Pryor Spring/Branch site, which
supported a population of spring pygmy sunfish prior to 2007 west of
Highway 31, was
[[Page 60196]]
determined to have portions of the PCEs sufficient to support the life-
history functions of the species. This currently unoccupied stream will
provide habitat for population reintroduction into a separate stream
system and reduce the level of stochastic threats to the species'
survival, decrease the risk of extinction for the species, and
contribute to the species' eventual recovery. Accordingly, we
determined that it is essential for the conservation of the species,
and therefore propose to designate it as critical habitat.
We delineated the critical habitat unit boundaries by determining
the appropriate length within these streams by identifying the upper
spring head (water source), spring pool, spring run, spring-fed
wetlands, seeps, and ephemeral streams draining into the spring
systems. We digitized the area boundary based upon visual
interpretation of wetland vegetation using ARCGIS. The high water line
in springs indicates stable flow under normal conditions. As defined at
33 CFR 329.11, the ordinary high water line on nontidal rivers and
streams is the line on the shore established by the fluctuations of
water and indicated by physical characteristics such as a clear,
natural water line impressed on the bank; shelving; changes in the
character of soil; destruction of terrestrial vegetation; the presence
of litter and debris; or other appropriate means that consider the
characteristics of the surrounding areas. For the spring pools and
associated spring-fed wetlands, the area was determined and delineated
by the presence of emergent vegetation patterns and topography as noted
on aerial photographs and topographical maps, and during field visits.
In order to set the upstream and downstream limits of these critical
habitat units, we used the spring head as the uppermost point,
identified by topographic maps, field visits, and available landmarks
(i.e., bridges and road crossings). Locations of the spring pygmy
sunfish below or downstream of the spring head were included in order
to ensure incorporation of all potential sites of occurrence. These
stream reaches were then digitized using 7.5' topographic maps and
ARCGIS to produce the critical habitat maps.
When determining proposed critical habitat boundaries, we made
every effort to avoid including developed areas such as lands covered
by buildings, pavement, and other structures because such lands lack
physical or biological features for spring pygmy sunfish. The scale of
the map we prepared under the parameters for publication within the
Code of Federal Regulations may not reflect the exclusion of such
developed lands. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this proposed rule have been
excluded by text in the proposed rule and are not proposed for
designation as critical habitat. Therefore, if the critical habitat is
finalized as proposed, a Federal action involving these lands would not
trigger a section 7 consultation with respect to critical habitat and
the requirement of no adverse modification unless the specific action
would affect the physical or biological features in the adjacent
critical habitat.
The critical habitat designation is defined by the map or maps, as
modified by any accompanying regulatory text, presented at the end of
this document in the rule portion. We include more detailed information
on the boundaries of the critical habitat designation in this preamble.
We will make the coordinates or plot points or both on which each map
is based available to the public on http://www.regulations.gov at
Docket No. FWS-R4-ES-2012-0068, on our Web site http://www.fws.gov/mississippiES/, and at the Mississippi Ecological Services Field Office
(see FOR FURTHER INFORMATION CONTACT above).
Proposed Critical Habitat Designation
We are proposing two units as critical habitat for spring pygmy
sunfish. The critical habitat areas described below constitute our
current best assessment of the areas that meet the definition of
critical habitat for spring pygmy sunfish. The two areas proposed as
critical habitat are as follows: (1) Beaverdam Spring/Creek, which is
currently occupied; and (2) Pryor Spring/Branch, which is currently
unoccupied. Table 1 shows the occupancy of the units and ownership of
the proposed critical habitat units for the spring pygmy sunfish.
Table 1--Occupancy and Ownership of the Proposed Critical Habitat Units for the Spring Pygmy Sunfish in Limestone County, Alabama
[Area estimates reflect all land within the critical habitat unit boundary.]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Private ownership km Federal ownership km Total length Total area ha
Unit Location Occupied (mi); ha (ac) (mi); ha (ac) km (mi) (ac)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1................................ Beaverdam Spring/ Yes................ 5.9 (3.7); 237 (586) 3.5 (2.21); 344 9.5 (5.9) 580.7 (1,435)
Creek. (849)
2................................ Pryor Spring/Branch. No................. 0.2 (0.15); 8.1 (20) 3.1 (1.95); 65.6 3.4 (2.1) 73.6 (182)
(162)
----------------------------------------------------------------------------------------------------------------------
Total........................ .................... ................... 6.1 (3.8); 245 (606) 6.6 (4.16); 409.6 12.9 (8.0) 654.3 (1,617)
(1,011)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Totals may not sum due to rounding.
We present brief descriptions of each unit and reasons why they
meet the definition of critical habitat below. The proposed critical
habitat units include the spring systems, which are composed of the
spring heads and the flooded spring pools and spring-fed wetlands
within Beaverdam Spring/Creek and Pryor Spring/Branch.
Unit 1: Beaverdam Spring/Creek, Limestone County, Alabama
Unit 1 includes a total of 9.5 km (5.9 mi) of Beaverdam Spring/
Creek, northeast of Greenbrier, Alabama, from the spring head, 5.6 km
(3.5 mi) north of Interstate 565, to 3.9 km (2.4 mi) south of
Interstate 565. Unit 1 encompasses Moss, Horton, and Thorsen springs.
This includes a total of 580.7 hectares (1,435 acres).
Almost 5.9 km (3.7 mi), or 63 percent of the stream reach, and 237
ha (586 ac) (41 percent) of the area are privately owned. The remaining
3.5 km (2.21 mi), or 37 percent of the stream reach, and 344 ha (849
ac) of the area (59 percent) are owned by the Service as part of the
Wheeler National Wildlife Refuge.
Unit 1 is currently occupied and contains the only known
metapopulation of the species. Unit 1 contains all elements of the
essential physical or biological features of the
[[Page 60197]]
species needed for its eventual recovery. This unit provides habitat
for the spring pygmy sunfish with adequate numbers of small pools,
spring runs (PCE 1), and emergent vegetation (PCE 4). These geomorphic
structures provide substrate for aquatic vegetation that is used by the
species for spawning, foraging, and other processes of the species
natural history (PCE 4) along with good water quality (PCE 2),
quantity, and flow (PCE 3), which supports the normal life stages and
behavior of the spring pygmy sunfish, and the species' prey sources
(PCE 4).
Threats to the spring pygmy sunfish and its habitat in Unit 1 that
may require special management of the physical and biological features
include the potential of increased agriculture, urbanization, and
industrialization activities (such as channel modification for flood
control, construction of impoundments, and water extraction) that could
result in increased stormwater runoff and erosion; significant changes
in the existing spring flow regime due to water extraction, inadequate
stormwater management, and water diversion; significant alteration of
water quality and quantity; and significant changes in streambed
material composition and quality as a result of construction projects
and maintenance activities, resulting in the destruction of emergent
and aquatic vegetation; off-road vehicle use; sewer, gas, and water
easements; bridge and road construction and maintenance; culvert and
pipe installation; and other watershed and floodplain disturbances that
release sediments or nutrients into the water.
There are three paved road crossings over this unit, one unpaved
dirt road, and one railroad. Spring pygmy sunfish movement might be
limited due to changes in flow regime and habitat including changes in
emergent vegetation, water quality, and water quantity, and due to
stochastic events such as drought. Populations of spring pygmy sunfish
are small and isolated from one another due to the non-homogeneous
habitats within Unit 1.
Unit 2: Pryor Spring/Pryor Branch, Limestone County, Alabama
Unit 2 includes 3.4 km (2.1 mi) of Pryor Spring and Pryor Branch
from the spring head, about 3.7 mi (5.9 km) south of Tanner, Alabama,
and just east of Highway 31, downstream to the bridge where it
intersects with Harris Station/Thomas L. Hammons Road. This also
includes a total of 73.6 ha (182 ac) in area.
Almost 3.1 km (1.95 mi), or 93 percent of the stream reach, and
65.6 ha (162 ac) of the land area (89 percent) are federally owned by
the Tennessee Valley Authority and managed by the State as the Swan
Creek Wildlife Management Area. The remaining 0.2 km (0.15 mi) of
stream reach (7 percent) and 8.1 ha (20 ac) (11 percent) of the land
area are privately owned.
Unit 2 is currently unoccupied but is a historical location for the
spring pygmy sunfish, and is essential for its conservation and
eventual recovery. The Pryor Spring/Branch system contains scattered
spring-influenced wetlands of aquatic and emergent vegetation in spring
pools, spring runs, and shallow water wetlands on the margins of the
small tributaries. Populations of spring pygmy sunfish were
historically noted as small and isolated within specific habitat sites
of Pryor Spring/Branch. An attempt to reintroduce the species back into
Pryor Springs (east of Highway 31) was unsuccessful in the 1980s.
A portion of the spring head has been mechanically deepened and the
banks steepened in order to promote water extraction for cropland
irrigation. Nevertheless, there is a significant seasonal flow of
groundwater entering the system throughout the year from the springhead
(portions of PCEs 1, 2, and 3). Adequate aquatic vegetation (PCE 4)
occurs in areas throughout this spring system, providing potential
habitat for the normal life stages and behavior of the spring pygmy
sunfish and the species' prey sources. Water flow (PCE 3) from the main
springhead, along with other unidentified springs and seeps within the
system, provides sufficient water quantity to allow for connectivity
between spawning, rearing, foraging, and resting sites, promoting gene
flow throughout the spring system. While the existence of PCEs is not
necessary for the designation of unoccupied habitat, their presence in
Unit 2 only reinforces the value of the Pryor Spring/Branch to the
conservation of the spring pygmy sunfish.
As this species is only known from a single population, it is
important that additional populations be established to buffer against
extirpation of the one known site from stochastic events, such as
drought. Therefore, we have determined this unit is essential for the
conservation of the species because it provides potential for the
establishment of an additional population of the spring pygmy sunfish,
thereby reducing this species' risk of extinction, and would contribute
to the species' eventual recovery.
In summary, we propose designating critical habitat in two areas,
one which is occupied and which contains sufficient primary constituent
elements to support the life-history functions essential to the
conservation of the species and that require special management, and
one which is currently unoccupied, which historically supported the
species and has been determined to be essential for the conservation of
the species.
As discussed in the Critical Habitat section above, we recognize
that designation of critical habitat may not include all habitat areas
that we may eventually determine are necessary for the recovery of the
species and that, for this reason, a critical habitat designation does
not signal that habitat outside the designated area is unimportant or
may not promote the recovery of the species.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that any action they fund, authorize, or carry out
is not likely to jeopardize the continued existence of any endangered
species or threatened species or result in the destruction or adverse
modification of designated critical habitat of such species. In
addition, section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under the Act or result in the destruction or adverse modification of
proposed critical habitat.
Decisions by the 5th and 9th Circuit Courts of Appeals have
invalidated our regulatory definition of ``destruction or adverse
modification'' (50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S.
Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra
Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442 (5th
Cir. 2001)), and we do not rely on this regulatory definition when
analyzing whether an action is likely to destroy or adversely modify
critical habitat. Under the provisions of the Act, we determine
destruction or adverse modification on the basis of whether, with
implementation of the proposed Federal action, the affected critical
habitat would continue to serve its intended conservation role for the
species.
If a Federal action may affect a listed species or its critical
habitat, the responsible Federal agency (action agency) must enter into
consultation with us. Examples of actions that are subject to the
section 7 consultation process are actions on State, tribal, local, or
private lands that require a Federal permit (such as a permit from the
U.S. Army Corps of Engineers under
[[Page 60198]]
section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit
from the Service under section 10 of the Act) or that involve some
other Federal action (such as funding from the Federal Highway
Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency). Federal actions not affecting listed
species or critical habitat, and actions on State, tribal, local, or
private lands that are not federally funded or authorized do not
require section 7 consultation.
As a result of section 7 consultation, we document compliance with
the requirements of section 7(a)(2) through our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, or
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species and/or
destroy or adversely modify critical habitat, we provide reasonable and
prudent alternatives to the project, if any are identifiable, that
would avoid the likelihood of jeopardy and/or destruction or adverse
modification of critical habitat. We define ``reasonable and prudent
alternatives'' (at 50 CFR 402.02) as alternative actions identified
during consultation that:
(1) Can be implemented in a manner consistent with the intended
purpose of the action;
(2) Can be implemented consistent with the scope of the Federal
agency's legal authority and jurisdiction;
(3) Are economically and technologically feasible; and
(4) Would, in the Director's opinion, avoid the likelihood of
jeopardizing the continued existence of the listed species and/or avoid
the likelihood of destroying or adversely modifying critical habitat.
Reasonable and prudent alternatives can vary from slight project
modifications to extensive redesign or relocation of the project. Costs
associated with implementing a reasonable and prudent alternative are
similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's discretionary
involvement or control is authorized by law). Consequently, Federal
agencies sometimes may need to request reinitiating of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Application of the ``Adverse Modification'' Standard
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species. Activities that may destroy or
adversely modify critical habitat are those that alter the physical or
biological features to an extent that appreciably reduces the
conservation value of critical habitat for the spring pygmy sunfish. As
discussed above, the role of critical habitat is to support life-
history needs of the species and provide for the conservation of the
species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe, in any proposed or final regulation that designates critical
habitat, activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation. Activities that may affect critical habitat, when carried
out, funded, or authorized by a federal agency, should result in
consultation for the spring pygmy sunfish. These activities include,
but are not limited to:
(1) Actions that would alter the geomorphology of the spring system
and its associated habitats. Such activities could include, but are not
limited to, instream excavation or dredging, impoundment,
channelization, and discharge of fill materials. These activities could
cause aggradation or degradation of the channel bed elevation or
significant bank erosion and result in entrainment or burial of this
species, destruction of the associated aquatic vegetation, and other
direct or cumulative adverse effects to this species and its life
cycle.
(2) Actions that would significantly alter the existing flow
regime, related aquifer, and recharge areas. Such activities could
include, but are not limited to, impoundments, water diversion, channel
constriction or widening, placement of pipes, culverts or bridges, and
groundwater and surface water extraction. These activities could
eliminate or reduce the habitat necessary for growth, reproduction, and
connectivity of spring pygmy sunfish populations.
(3) Actions that would significantly alter water chemistry or water
quality (for example, temperature, pH, contaminants, and excess
nutrients). Such activities could include, but are not limited to, the
unsustainable use or release of chemicals, such as pesticides and
fertilizers and biological pollutants, into surface water or
groundwater. These activities could alter water conditions that are
beyond the tolerances of this species and result in direct or
cumulative adverse effects to the species and its life cycle.
(4) Actions that would significantly alter streambed material
composition and quality by increasing sediment deposition or
filamentous algal growth. Such activities could include, but are not
limited to, construction and maintenance projects of subdivisions,
roads, bridges, stormwater systems and utility easements; unsustainable
livestock grazing and timber harvest; off-road vehicle use; and other
watershed and floodplain disturbances that release sediments or
nutrients into the water through stormwater runoff. These activities
could eliminate or reduce habitats necessary for the growth and
reproduction of the spring pygmy sunfish by causing excessive
sedimentation and a decrease in water quality for the species and
associated vegetation and prey base by nitrification, leading to
excessive filamentous algal growth, turbidity, and an increase in water
temperatures.
Exemptions
Application of Section 4(a)(3) of the Act
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete an integrated natural resources management plan (INRMP) by
November 17, 2001. An INRMP integrates implementation of the military
mission of the installation with stewardship of the natural resources
found on the base. Each INRMP includes:
(1) An assessment of the ecological needs on the installation,
including the need to provide for the conservation of listed species;
(2) A statement of goals and priorities;
(3) A detailed description of management actions to be implemented
to provide for these ecological needs; and
(4) A monitoring and adaptive management plan.
[[Page 60199]]
Among other things, each INRMP must, to the extent appropriate and
applicable, provide for fish and wildlife management; fish and wildlife
habitat enhancement or modification; wetland protection, enhancement,
and restoration where necessary to support fish and wildlife; and
enforcement of applicable natural resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.''
There are no Department of Defense lands with a completed INRMP
within the proposed critical habitat designation. Therefore, we are not
exempting any lands owned or managed by the DOD from this designation
of critical habitat for the spring pygmy sunfish under section
4(a)(3)(B)(i) of the Act.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary must designate
or make revisions to critical habitat on the basis of the best
available scientific data after taking into consideration the economic
impact, national security impact, and any other relevant impact of
specifying any particular area as critical habitat. The Secretary may
exclude an area from critical habitat if he determines that the
benefits of such exclusion outweigh the benefits of specifying such
area as part of the critical habitat, unless he determines, based on
the best scientific data available, that the failure to designate such
area as critical habitat will result in the extinction of the species.
In making that determination, the statute on its face, as well as the
legislative history, are clear that the Secretary has broad discretion
regarding which factor(s) to use and how much weight to give to any
factor.
Under section 4(b)(2) of the Act, we may exclude an area from
designated critical habitat based on economic impacts, impacts on
national security, and any other relevant impacts. In considering
whether to exclude a particular area from the designation, we identify
the benefits of including the area in the designation, identify the
benefits of excluding the area from the designation, and evaluate
whether the benefits of exclusion outweigh the benefits of inclusion.
If the analysis indicates that the benefits of exclusion outweigh the
benefits of inclusion, the Secretary may exercise his discretion to
exclude the area only if such exclusion would not result in the
extinction of the species.
Economic Impacts
Under section 4(b)(2) of the Act, we consider the economic impacts
of specifying any particular area as critical habitat. In order to
consider economic impacts, we are preparing an analysis of the economic
impacts of the proposed critical habitat designation and related
factors.
During the development of our proposed rule, we have identified
certain sectors and activities that may potentially be affected by a
designation of critical habitat for spring pygmy sunfish. These sectors
include commercial development and urbanization, along with the
accompanying infrastructure associated with such projects such as road,
storm water drainage, bridge, and culvert construction and maintenance.
As part of our economic analysis, we are collecting information and
initiating our analysis to determine (1) which of these sectors or
activities are or involve small business entities and (2) to what
extent the effects are related to the spring pygmy sunfish being listed
as a threatened species under the Act (baseline effects) or are
attributable to the designation of critical habitat (incremental
effects). We believe that the potential incremental effects resulting
from a designation would be small. However, one purpose of the economic
analysis will be to determine if this is the case. Accordingly, we are
requesting any specific economic information related to small business
entities that may be affected by this designation and how the
designation may impact small businesses.
We will announce the availability of the draft economic analysis as
soon as it is completed. At that time, copies of the draft economic
analysis will be available for downloading from the Internet at http://www.regulations.gov, or by contacting the Mississippi Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT section).
During the development of a final designation, we will consider
economic impacts, public comments, and other new information, and areas
may be excluded from the final critical habitat designation under
section 4(b)(2) of the Act and our implementing regulations at 50 CFR
424.19.
National Security Impacts
Under section 4(b)(2) of the Act, we consider whether there are
lands owned or managed by the Department of Defense (DOD) where a
national security impact might exist. In preparing this proposal, we
have determined that none of the lands within the proposed designation
of critical habitat for the spring pygmy sunfish are lands owned or
managed by the DOD, and, therefore, we anticipate no impact on national
security. Consequently, the Secretary does not intend to exercise his
discretion to exclude any areas from the final designation based on
impacts on national security.
Other Relevant Impacts
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic and national security impacts. We
consider a number of factors, including whether the landowners have
developed any HCPs or other management plans for the area, or whether
there are conservation partnerships that would be encouraged by
designation of, or exclusion from, critical habitat. In addition, we
look at any tribal issues, and consider the government-to-government
relationship of the United States with tribal entities. We also
consider any social impacts that might occur because of the
designation.
In preparing this proposal, we have determined that there are
currently no HCPs for the spring pygmy sunfish, and the proposed
designation does not include any tribal lands or trust resources. The
CCAA between the Service, the Land Trust, and Belle Mina Farms, Ltd.,
covers the upper 24 percent of the Beaverdam Spring/Creek complex (Unit
1). This management plan contains numerous conservation measures
protective of the spring pygmy sunfish. It provides a measure of
protection for the species in the upper portion of the only currently
occupied site. However, although this CCAA reduces some of threats and
is one of the reasons the species is proposed for listing as threatened
rather than endangered, the magnitude of this threat reduction is not
at the level to ameliorate threats to this species throughout its range
(see Finding section, above, for additional discussion). Thus, the CCAA
alone is not sufficient to preclude the need to list the species as
threatened. We also anticipate no impact on tribal lands, partnerships,
or HCPs from this
[[Page 60200]]
proposed critical habitat designation. Accordingly, at this time the
Secretary does not propose to exert his discretion to exclude any areas
from the final designation based on other relevant impacts. However, we
recognize that exclusion from critical habitat of the area covered by
the CCAA may encourage partnerships with other landowners in the spring
complex that would help address additional threats under Factors A and
E. Therefore, as indicated in the Information Requested section, we are
requesting information on whether the benefits of the exclusion of
lands covered by the CCAA may outweigh the benefits of inclusion under
section 4(b)(2) of the Act, and the Secretary may reconsider exclusion
in the final rule.
Peer Review
In accordance with our joint policy on peer review published in the
Federal Register on July 1, 1994 (59 FR 34270), we will seek the expert
opinions of at least three appropriate and independent specialists
regarding this proposed rule. The purpose of peer review is to ensure
that our determination of status for this species and critical habitat
designation is based on scientifically sound data, assumptions, and
analyses. We will invite these peer reviewers to comment during this
public comment period on our specific assumptions and conclusions in
this proposed listing determination and designation of critical
habitat.
We will consider all comments and information we receive during
this comment period on this proposed rule during our preparation of a
final determination. Accordingly, the final decision may differ from
this proposal.
Public Hearings
The Act provides for one or more public hearings on this proposal,
if requested. Requests must be received within 45 days after the date
of publication of this proposed rule in the Federal Register. Such
requests must be sent to the address shown in the FOR FURTHER
INFORMATION CONTACT section. We will schedule public hearings on this
proposal, if any are requested, and announce the dates, times, and
places of those hearings, as well as how to obtain reasonable
accommodations, in the Federal Register and local newspapers at least
15 days before the hearing.
Required Determinations
Regulatory Planning and Review--Executive Order 12866 and 13563
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. The Office
of Information and Regulatory Affairs has determined that this rule is
not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.) as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996 (5 U.S.C. 801 et seq.), whenever an agency must
publish a notice of rulemaking for any proposed or final rule, it must
prepare and make available for public comment a regulatory flexibility
analysis that describes the effects of the rule on small entities
(small businesses, small organizations, and small government
jurisdictions). However, no regulatory flexibility analysis is required
if the head of the agency certifies the rule will not have a
significant economic impact on a substantial number of small entities.
The SBREFA amended the RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
According to the Small Business Administration, small entities
include small organizations such as independent nonprofit
organizations; small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; and small businesses (13 CFR 121.201). Small businesses
include such businesses as manufacturing and mining concerns with fewer
than 500 employees, wholesale trade entities with fewer than 100
employees, retail and service businesses with less than $5 million in
annual sales, general and heavy construction businesses with less than
$27.5 million in annual business, special trade contractors doing less
than $11.5 million in annual business, and forestry and logging
operations with fewer than 500 employees and annual business less than
$7 million. To determine whether small entities may be affected, we
will consider the types of activities that might trigger regulatory
impacts under this designation as well as types of project
modifications that may result. In general, the term ``significant
economic impact'' is meant to apply to a typical small business firm's
business operations.
Importantly, the incremental impacts of a rule must be both
significant and substantial to prevent certification of the rule under
the RFA and to require the preparation of an initial regulatory
flexibility analysis. If a substantial number of small entities are
affected by the proposed critical habitat designation, but the per-
entity economic impact is not significant, the Service may certify.
Likewise, if the per-entity economic impact is likely to be
significant, but the number of affected entities is not substantial,
the Service may also certify.
Under the RFA, as amended, and following recent court decisions,
Federal agencies are only required to evaluate the potential
incremental impacts of rulemaking on those entities directly regulated
by the rulemaking itself, and not the potential impacts to indirectly
affected entities. The regulatory mechanism through which critical
habitat protections are realized is section 7 of the Act, which
requires Federal agencies, in consultation with the Service, to ensure
that any action authorized, funded, or carried by the Agency is not
likely to adversely modify critical habitat. Therefore, only Federal
action agencies are directly subject to the specific regulatory
requirement (avoiding destruction and adverse modification) imposed by
critical habitat designation. Under these circumstances, it is our
position that only Federal action agencies will be directly regulated
by this designation. Therefore, because Federal agencies are not small
entities, the Service may certify that the proposed critical habitat
rule will not have a significant economic impact on a substantial
number of small entities.
We acknowledge, however, that in some cases, third-party proponents
of the action subject to permitting or funding may participate in a
section 7 consultation, and thus may be indirectly affected. We believe
it is good policy to assess these impacts if we have sufficient data
before us to complete the
[[Page 60201]]
necessary analysis, whether or not this analysis is strictly required
by the RFA. While this regulation does not directly regulate these
entities, in our draft economic analysis we will conduct a brief
evaluation of the potential number of third parties participating in
consultations on an annual basis in order to ensure a more complete
examination of the incremental effects of this proposed rule in the
context of the RFA.
In conclusion, we believe that, based on our interpretation of
directly regulated entities under the RFA and relevant case law, this
designation of critical habitat will only directly regulate Federal
agencies, which are not by definition small business entities. As such,
we certify that, if promulgated, this designation of critical habitat
would not have a significant economic impact on a substantial number of
small business entities. Therefore, an initial regulatory flexibility
analysis is not required. However, although not necessarily required by
the RFA, in our draft economic analysis for this proposal we will
consider and evaluate the potential effects to third parties that may
be involved with consultations with Federal action agencies related to
this action.
Energy Supply, Distribution, or Use--Executive Order 13211
Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. We do not expect the
designation of critical habitat for the spring pygmy sunfish to
significantly affect energy supplies, distribution, or use. The
proposed critical habitat units are remote from energy supply,
distribution, or use activities. We are not aware of any oil and gas
exploration or development within the region to date, and the area has
not been identified as a shale play for oil and gas extraction
(hydraulic fracturing) (Satterfield 2011, p. 3) Therefore, this action
is not a significant energy action, and no Statement of Energy Effects
is required. However, we will further evaluate this issue as we conduct
our economic analysis, and review and revise this assessment as
warranted.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(1) This rule would not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children work programs; Child Nutrition; Food Stamps;
Social Services Block Grants; Vocational Rehabilitation State Grants;
Foster Care, Adoption Assistance, and Independent Living; Family
Support Welfare Services; and Child Support Enforcement. ``Federal
private sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that otherwise require
approval or authorization from a Federal agency for an action, may be
indirectly impacted by the designation of critical habitat, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply, and critical
habitat would not shift the costs of the large entitlement programs
listed above on to State governments.
(2) We do not believe that this rule would significantly or
uniquely affect small governments because it will not produce a Federal
mandate of $100 million or greater in any year, that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The designation of critical habitat imposes no obligations on
State or local governments. In addition, adjacent upland properties are
owned by private entities or State partners. Therefore, a Small
Government Agency Plan is not required. However, we will further
evaluate this issue as we conduct our economic analysis and revise this
assessment if appropriate.
Takings--Executive Order 12630
In accordance with Executive Order 12630 (Government Actions and
Interference with Constitutionally Protected Private Property Rights),
we have analyzed the potential takings implications of designating
critical habitat for spring pygmy sunfish in a takings implications
assessment. Critical habitat designation does not affect landowner
actions that do not require Federal funding or permits, nor does it
preclude development of habitat conservation programs or issuance of
incidental take permits to permit actions that do require Federal
funding or permits to go forward. The takings implications assessment
concludes that this proposed designation of critical habitat for the
spring pygmy sunfish does not pose significant takings implications for
lands within or affected by the designation.
Federalism--Executive Order 13132
In accordance with Executive Order 13132 (Federalism), the proposed
rule does not have significant Federalism effects. A federalism impact
summary statement is not required. In keeping with Department of the
Interior and Department of Commerce policy, we requested information
from, and coordinated development of, this proposed critical habitat
designation with appropriate State resource agencies in Alabama. The
designation of critical habitat in areas currently occupied by the
spring pygmy sunfish (i.e., Unit 1: Beaverdam Spring/Creek) would
impose few if any additional restrictions to those put in place through
listing, and, therefore, has would have little incremental impact on
State and local governments and their activities. There may be a slight
impact on State and local government and their activities if critical
habitat is designated in Unit 2: Pryor Spring/Pryor Branch, because
this
[[Page 60202]]
is unoccupied critical habitat. However, critical habitat designation
may have some benefit for these governments because the areas that
contain the physical or biological features essential to the
conservation of the species are more clearly defined, and the elements
of the features of the habitat necessary to the conservation of the
species are specifically identified. This information does not alter
where and what federally sponsored activities may occur. However, it
may assist local governments in long-range planning (rather than having
them wait for case-by-case section 7 consultations to occur).
Where State and local governments require approval or authorization
from a Federal agency for actions that may affect critical habitat,
consultation under section 7(a)(2) would be required. While non-Federal
entities that receive Federal funding, assistance, or permits, or that
otherwise require approval or authorization from a Federal agency for
an action, may be indirectly impacted by the designation of critical
habitat, the legally binding duty to avoid destruction or adverse
modification of critical habitat rests squarely on the Federal agency.
Civil Justice Reform--Executive Order 12988
In accordance with Executive Order 12988 (Civil Justice Reform),
the Office of the Solicitor has determined that the rule does not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of the Order. We have proposed designating
critical habitat in accordance with the provisions of the Act. This
proposed rule uses standard property descriptions and identifies the
elements of physical or biological features essential to the
conservation of the spring pygmy sunfish within the designated areas to
assist the public in understanding the habitat needs of the species.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
We have determined that environmental assessments and environmental
impact statements, as defined under the authority of the National
Environmental Policy Act of 1969 (NEPA), need not be prepared in
connection with listing a species as endangered or threatened under the
Act. We published a notice outlining our reasons for this determination
in the Federal Register on October 25, 1983 (48 FR 49244).
It is also our position that, outside the jurisdiction of the U.S.
Court of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses under NEPA in connection with designating
critical habitat under the Act. We published a notice outlining our
reasons for this determination in the Federal Register on October 25,
1983 (48 FR 49244). This position was upheld by the U.S. Court of
Appeals for the Ninth Circuit (Douglas County v. Babbitt, 48 F.3d 1495
(9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that are unclearly written, which sections or sentences
are too long, the sections where you feel lists or tables would be
useful, etc.
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
(Government-to-Government Relations with Native American Tribal
Governments; 59 FR 22951), Executive Order 13175 (Consultation and
Coordination With Indian Tribal Governments), and the Department of
Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal-Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
tribes in developing programs for healthy ecosystems, to acknowledge
that tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to tribes.
The State of Alabama does contain tribal lands, however, none occur
within the proposed critical habitat designation. Therefore, we are not
proposing to designate critical habitat for spring pygmy sunfish on
tribal lands.
References Cited
A complete list of all references cited in this rulemaking is
available on the Internet at http://www.regulations.gov and upon
request from the Deputy Field Supervisor, Mississippi Ecological
Services Field Office (see FOR FURTHER INFORMATION CONTACT).
Authors
The primary authors of this package are the staff members of the
Mississippi Ecological Services Field Office (see FURTHER INFORMATION
CONTACT).
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Proposed Regulation Promulgation
Accordingly, we propose to amend part 17, subchapter B of chapter
I, title 50 of the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. Amend Sec. 17.11(h) by adding an entry for ``Sunfish, spring
pygmy'' to the List of Endangered and Threatened Wildlife in
alphabetical order under FISHES to read as follows:
Sec. 17.11 Endangered and threatened wildlife.
* * * * *
(h) * * *
[[Page 60203]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species Vertebrate
-------------------------------------------------------- population where Critical Special
Historic range endangered or Status When listed habitat rules
Common name Scientific name threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
FISHES .................... ................... ................... .............. ........... ........... ...........
* * * * * * *
Sunfish, spring pygmy............ Elassoma alabamae... U.S.A. (AL)........ Entire............. T ........... 17.95(e) NA
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
2. In Sec. 17.95, amend paragraph (e) by adding an entry for
``Spring Pygmy Sunfish (Elassoma alabamae),'' in the same alphabetical
order that the species appears in the table at Sec. 17.11(h), to read
as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(e) Fishes.
* * * * *
Spring Pygmy Sunfish (Elassoma alabamae)
(1) Critical habitat units are depicted for Limestone County,
Alabama, on the maps below.
(2) Within these areas, the primary constituent elements of the
physical and biological features essential to the conservation of
spring pygmy sunfish are:
(i) Spring system. Springs and connecting spring-fed reaches and
wetlands that are geomorphically stable and relatively low-gradient.
This includes headwater springs with spring heads, spring runs, and
spring pools that filter into shallow, vegetated wetlands.
(ii) Water quality. Yearly averages of water quality with optimal
temperatures of 57.2 to 68[emsp14][deg]F (14 to 20 [deg]C) and not
exceeding 80[emsp14][deg]F (26.7 [deg]C); pH of 6.0 to 7.7; dissolved
oxygen of 6.0 parts per million (ppm) or greater; specific conductivity
no greater than 300 micro Siemens per centimeter at 80[emsp14][deg]F
(26.7 [deg]C); low concentrations of free or suspended solids with
turbidity measuring less than 15 Nephelometric Turbidity Units (NTU)
and 20 milligrams per liter (mg/l) total suspended solids (TSS).
(iii) Hydrology. A hydrologic flow regime (magnitude, frequency,
duration, and seasonality of discharge over time) necessary to maintain
spring habitats. The instream flow from groundwater sources (springs
and seeps) maintains an adequate velocity and a continuous daily
discharge from the aquifer that allows for connectivity between
habitats. Instream flow is stable and does not vary during water
extraction, and the aquifer recharge maintains adequate levels to
supply water flow to the spring head. The flow regime does not
significantly change during storm events.
(iv) Vegetation and Prey Base. Aquatic, emergent and semi-emergent
vegetation along the margins of spring runs and submergent vegetation
that is adequate for breeding, reproducing, and rearing young;
providing cover and shelter from predators; and supporting the prey
base of aquatic macroinvertebrates eaten by spring pygmy sunfish.
Important species of submergent and emergent vegetation include clumps
and stands of Sparganium spp. (bur reed), Ceratophyllum spp.
(coontail), Nasturtium officinale (watercress), Juncus spp. (rush),
Carex spp. (sedges), Nuphar luteum (yellow pond lily), Myriophyllum
spp. (parrot feather), Utricularia spp. (bladderwort), Polygonum spp.
(smartweed), Lythrum salicaria (purple loosestrife), and Callitriche
spp. (water starwort).
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of this rule.
(4) Critical habitat unit maps. Data layers defining the map unit
were created by delineating habitats that contained at least one or
more of the primary constituent elements defined in paragraph (2) of
this entry, over a base of USGS digital topographic map quadrangle
(Greenbrier and Mason Ridge) and a USDA 2007 digital ortho-photo
mosaic, in addition to the National Wetland Inventory Maps. The
resulting critical habitat unit was then mapped using State Plane North
American Datum (NAD) 83 coordinates. The maps in this entry, as
modified by any accompanying regulatory text, establish the boundaries
of the critical habitat designation. The coordinates or plot points or
both on which each map is based are available to the public at the
Service's internet site, http://www.fws.gov/mississippiES/; at http://www.regulations.gov at Docket No. FWS-R4-ES-2012-0068; and at the field
office responsible for this designation. You may obtain field office
location information by contacting one of the Service regional offices,
the addresses of which are listed at 50 CFR 2.2.
(5) Index map of critical habitat for the spring pygmy sunfish
follows:
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[[Page 60204]]
[GRAPHIC] [TIFF OMITTED] TP02OC12.000
(6) Unit 1: Beaverdam Spring/Creek, Limestone County, Alabama.
(i) General Description: Unit 1 includes a total of 9.5 km (5.9 mi)
of Beaverdam Spring/Creek, northeast of Greenbrier, Alabama, from the
spring head, 5.6 km (3.5 mi) north of Interstate 565 (Lat. 34.703162,
Long.-86.82899) to 3.9 km (2.4 mi) south of Interstate 565 (Lat.
34.625896, Long. -86.82505). Unit 1 encompasses Moss, Horton, and
Thorsen springs. This includes a total of 580.7 hectares (1,435 acres).
(ii) Map of Unit 1 follows:
[[Page 60205]]
[GRAPHIC] [TIFF OMITTED] TP02OC12.001
(7) Unit 2: Pryor Spring/Pryor Branch, Limestone County, Alabama.
(i) General Description. Unit 2 includes 3.4 km (2.1 mi) of Pryor
Spring and Pryor Branch from the spring head, about 3.7 mi (5.9 km)
south of Tanner, Alabama, and just east of Highway 31, downstream to
the bridge where it intersects with Harris Station/Thomas L. Hammons
Road. This also includes a total of 73.6 ha (182 ac) in area.
(ii) Map of Unit 2 follows:
[[Page 60206]]
[GRAPHIC] [TIFF OMITTED] TP02OC12.002
* * * * *
Dated: September 13, 2012.
Michael J. Bean,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2012-23854 Filed 10-1-12; 8:45 am]
BILLING CODE 4310-55-C