[Federal Register Volume 78, Number 17 (Friday, January 25, 2013)]
[Proposed Rules]
[Pages 5385-5403]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-01307]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS-R2-ES-2013-0001; 4500030114]
RIN 1018-AZ24
Endangered and Threatened Wildlife and Plants; Endangered Status
for Four Central Texas Salamanders and Designation of Critical Habitat
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule; reopening of comment period.
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SUMMARY: We, the U.S. Fish and Wildlife Service, announce the reopening
of the public comment period on the August 22, 2012, proposed listing
and proposed designation of critical habitat for the Austin blind
salamander, Georgetown salamander, Jollyville Plateau salamander, and
Salado salamander under the Endangered Species Act of 1973, as amended.
Based on additional salamander locations we identified during the 60-
day comment period, we are proposing to revise previously proposed
critical habitat units for the Georgetown and Jollyville Plateau
salamanders. We also announce the availability of a draft economic
analysis of the proposed designation of critical habitat for the four
central Texas salamanders, an amended required determinations section
of the proposal, an amended exclusions section of the proposal, and the
availability of a refined impervious cover analysis. We are reopening
the comment period to allow all interested parties an opportunity to
comment simultaneously on the original proposed rule, this revised
proposed rule, the associated draft economic analysis, the amended
required determinations and exclusions sections, and the refined
impervious cover analysis. Comments previously submitted need not be
resubmitted, as they will be fully considered in preparation of the
final rule.
Document Availability: You may obtain copies of the original
proposed rule, this revised proposed rule, the draft economic analysis,
and the refined impervious cover analysis on the Internet at http://www.regulations.gov at Docket No. FWS-R2-ES-2012-0035 or Docket No.
FWS-R2-ES-2013-0001 or by mail from the Austin Ecological Services
Field Office (see FOR FURTHER INFORMATION CONTACT).
DATES: We will consider comments received or postmarked on or before
March 11, 2013. 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: You may submit written comments by one of the following
methods:
(1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Submit comments on the listing proposal to Docket
No. FWS-R2-ES-2012-0035, and submit comments on the critical habitat
proposal and associated draft economic analysis to Docket No. FWS-R2-
ES-2013-0001. See SUPPLEMENTARY INFORMATION for an explanation of the
two dockets.
(2) By hard copy: Submit comments on the listing proposal by U.S.
mail or hand-delivery to: Public Comments Processing, Attn: FWS-R2-ES-
2012-0035; Division of Policy and Directives Management; U.S. Fish and
Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA
22203. Submit comments on the critical habitat proposal and draft
economic analysis by U.S. mail or hand-delivery to: Public Comments
Processing, Attn: FWS-R2-ES-2013-0001; 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 Public Comments section below for more information).
FOR FURTHER INFORMATION CONTACT: Adam Zerrenner, Field Supervisor, U.S.
Fish and Wildlife Service, Austin Ecological Services Field Office,
10711 Burnet Rd, Suite 200, Austin, TX 78758; by telephone 512-490-
0057; or by facsimile 512-490-0974. Persons who use a
telecommunications device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We will accept written comments and information during this
reopened comment period on our proposed designation of critical habitat
for the four central Texas salamanders that was published in the
Federal Register on August 22, 2012 (77 FR 50768), this revised
proposed rule, our draft economic analysis (DEA) of the proposed
designation, the amended required determinations and exclusions
sections, and the refined impervious cover analysis. We are also
notifying the public that we will publish two separate rules for the
final listing determination and the final critical habitat
[[Page 5386]]
determination for the 4 central Texas salamanders. The final listing
rule will publish under the existing Docket No. FWS-R2-ES-2012-0035 and
the final critical habitat designation will publish under Docket No.
FWS-R2-ES-2013-0001.
We request that you provide comments specifically on our listing
determination under Docket No. FWS-R2-ES-2012-0035. We will consider
information and recommendations from all interested parties. We are
particularly interested in comments concerning:
(1) Biological, commercial trade, or other relevant data concerning
any threats (or lack thereof) to these species and regulations that may
be addressing those threats.
(2) Additional information concerning the historical and current
status, range, distribution, and population size of these species,
including the locations of any additional populations of these species.
(3) Any information on the biological or ecological requirements of
these species, and ongoing conservation measures for these species and
their habitats.
(4) Land use designations including current or planned activities
in the areas occupied by the species and possible impacts of these
activities on the four central Texas salamanders and on proposed
critical habitat.
We request that you provide comments specifically on the critical
habitat determination and related economic analysis under Docket No.
FWS-R2-ES-2013-0001. We will consider information and recommendations
from all interested parties. We are particularly interested in comments
concerning:
(5) The reasons why we should or should not designate habitat as
``critical habitat'' under section 4 of the Act (16 U.S.C. 1531 et
seq.) including whether there are threats to the species from human
activity, the degree of which can be expected to increase due to the
designation, and whether that increase in threat outweighs the benefit
of designation, such that the designation of critical habitat may not
be prudent.
(6) Specific information on:
(a) The amount and distribution of the four central Texas
salamanders and their habitats;
(b) What areas, that are currently occupied by these species and
that contain features essential to their conservation, should be
considered for critical habitat and why;
(c) Special management considerations or protection that may be
needed in critical habitat areas we are proposing, including managing
for the potential effects of climate change;
(d) What areas not occupied at the time of listing are essential
for the conservation of these species and why;
(e) How subterranean populations of these four salamander species
are distributed underground; and
(f) The interconnectedness of salamander habitats in terms of
hydrology, and whether salamanders are able to move between sites
through underground aquifer conduits.
(7) Information on the projected and reasonably likely impacts of
climate change on the four central Texas salamanders and proposed
critical habitat.
(8) Any probable economic, national security, or other relevant
impacts of designating any area that may be included in the final
critical habitat designation; in particular, we seek information on any
impacts on small entities, and the benefits of including or excluding
areas that are subject to these impacts.
(9) Whether any specific areas we are proposing for critical
habitat designation should be considered for exclusion under section
4(b)(2) of the Act, and whether the benefits of potentially excluding
any specific area outweigh the benefits of including that area under
section 4(b)(2) of the Act, in particular for those areas that may
benefit from the Buttercup Habitat Conservation Plan (HCP), Lakeline
HCP, and Barton Springs Pool HCP.
(10) 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.
If you submitted comments or information on the proposed rule (77
FR 50768) during the initial comment period from August 22, 2012, to
October 22, 2012, please do not resubmit them. We will incorporate them
into the public record as part of this comment period, and we will
fully consider them in the preparation of our final determination. Our
final determination concerning critical habitat will take into
consideration all written comments and any additional information we
receive during both comment periods. On the basis of public comments,
we may, during the development of our final determination, find that
areas proposed are not essential, are appropriate for exclusion under
section 4(b)(2) of the Act, or are not appropriate for exclusion.
You may submit your comments and materials concerning the proposed
rule or DEA by one of the methods listed in the ADDRESSES section. We
request that you send comments only by the methods described in the
ADDRESSES section.
If you submit a comment via http://www.regulations.gov, your entire
comment--including any personal identifying information--will be posted
on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that
includes personal identifying information, 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.
Comments and materials we receive, as well as supporting
documentation we used in preparing the proposed rule and DEA, will be
available for public inspection on http://www.regulations.gov at Docket
No. FWS-R2-ES-2012-0035 and Docket No. FWS-R2-ES-2013-0001, or by
appointment, during normal business hours, at the U.S. Fish and
Wildlife Service, Austin Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT). You may obtain copies of the proposed
rule and the DEA on the Internet at http://www.regulations.gov at
Docket Number FWS-R2-ES-2012-0035 or Docket No. FWS-R2-ES-2013-0001, or
by mail from the Austin Ecological Services Field Office (see FOR
FURTHER INFORMATION CONTACT section).
Background
It is our intent to discuss only those topics directly relevant to
the listing and designation of critical habitat for the four central
Texas salamanders in this document. For more information on the four
central Texas salamanders, their habitat, or previous Federal actions,
refer to the proposed listing rule published in the Federal Register on
August 22, 2012 (77 FR 50768), which is available online at http://www.regulations.gov (at Docket Number FWS-R2-ES-2012-0035 or Docket No.
FWS-R2-ES-2013-0001) or from the Austin Ecological Services Field
Office (see FOR FURTHER INFORMATION CONTACT).
On August 22, 2012, we published a proposed rule to designate
critical habitat for the four central Texas salamanders (77 FR 50768).
We proposed to designate approximately 5,983 acres (ac) (2,440 hectares
(ha)) in 52 units located in Travis, Williamson, and Bell Counties,
Texas, as critical habitat. That proposal had a 60-day comment period,
ending October 22, 2012. We held a public meeting and
[[Page 5387]]
hearing in Round Rock, Texas, on September 5, 2012, and a second public
meeting and hearing in Austin, Texas, on September 6, 2012.
Refined Impervious Cover Analysis
In our August 22, 2012, proposed rule (77 FR 50768), under Factor
A. The Present or Threatened Destruction, Modification, or Curtailment
of Its Habitat or Range, we used the best available information at that
time to calculate the extent and magnitude of impervious cover within
the watersheds occupied by the four central Texas salamander species.
Impervious cover degrades stream habitat in three ways: (1) Introducing
and concentrating contaminants in surface runoff, (2) increasing the
rate at which sediment is deposited into a stream, and (3) altering the
natural flow regime of streams. We used an impervious cover analysis in
the proposed rule (77 FR 50768) to help inform our analysis of the
threat of urbanization to the four central Texas salamanders. This
refined analysis will help inform the final listing determination of
the four central Texas salamanders.
For the August 22, 2012, impervious cover analysis, we used the
national Watershed Boundary Dataset to delineate 15 watersheds occupied
by the four central Texas salamander species. Although the data for
this impervious cover analysis were derived using the finest scale
hydrologic units readily available at that time in the Watershed
Boundary Dataset, they were too large to offer any reference to the
location of salamander-occupied spring sites in relation to the
location of impervious cover within the watersheds. Because this
analysis did not take into account whether the salamander sites are
found upstream or downstream of impervious surfaces associated with
developed areas, our previous impervious cover analysis within each
watershed may not necessarily be an indicator of how much impervious
cover is actually impacting water quality at known salamander sites.
Since the publication of our August 22, 2012, proposed rule (77 FR
50768), we obtained new information that has allowed us to refine our
impervious cover analysis and determine where impervious cover is in
relation to known salamander sites. This refined analysis is based on
the National Hydrography Dataset Plus watershed dataset, which is a
nationally consistent watershed dataset developed by the U.S.
Environmental Protection Agency and U.S. Geological Survey. The
National Hydrography Dataset Plus integrates the National Hydrography
Dataset with the National Elevation Dataset and the Watershed Boundary
Dataset to locate and identify smaller watersheds than can be found in
the Watershed Boundary Dataset itself. We then used ESRI software to
create an aspect map and a set of 5-feet (ft) (2-meter (m)) contour
lines to help guide the identification and mapping of even smaller
watersheds that specifically drain into individual salamander spring
sites (springsheds). In our refined analysis, we calculated impervious
cover within 113 springsheds occupied by the 4 central Texas salamander
species. We also compared the results of our refined impervious cover
analysis with two additional impervious cover analyses conducted by
SWCA Environmental Consultants (SWCA) and the City of Austin (COA).
Increases in impervious cover cause measurable stream degradation
(Klein 1979, p. 959; Bannerman et al. 1993, pp. 251-254, 256-258;
Center for Watershed Protection 2003, p. 91; Coles et al. 2012, p. 4).
The best available scientific literature indicates that detrimental
effects to salamander habitat are likely to begin having significant
negative impact on salamander populations at 10 percent impervious
cover in a springshed. This is in agreement with Bowles et al. (2006,
pp. 113, 117-118), which found lower Jollyville Plateau salamander
densities in watersheds with more than 10 percent impervious cover.
Based upon our refined impervious cover analysis, we have found that
the Jollyville Plateau salamander has the highest number of springsheds
with habitat degrading levels of impervious cover (57 out of 91).
Results from COA data are similar to our findings, and suggest that an
additional three Jollyville Plateau salamander sites have habitat-
degrading levels of impervious cover. Conversely, our data show that
the watersheds encompassing Georgetown and Salado salamander habitat
are relatively low in impervious cover. However, the high human
population growth rate expected in Williamson and Bell Counties
indicates that impervious cover has the potential of approaching levels
that could negatively impact the Georgetown and Salado salamanders'
continued existence. In addition, SWCA's analysis demonstrates that
recent development and quarry creation in some Georgetown salamander
springsheds may have already increased impervious cover past the
threshold of habitat degradation.
For more detailed information or to obtain copies of our refined
impervious cover analysis, go to http://www.regulations.gov and search
for Docket Number FWS-R2-ES-2012-0035, or you may obtain copies by mail
from the Austin Ecological Field Services Office (see FOR FURTHER
INFORMATION CONTACT).
Critical Habitat
Section 3 of the Act defines critical habitat as the specific areas
within the geographical area occupied by a species, at the time it is
listed in accordance with the Act, on which are found those physical or
biological features essential to the conservation of the species and
that may require special management considerations or protection, and
specific areas outside the geographical area occupied by a species at
the time it is listed, upon a determination that such areas are
essential for the conservation of the species. If the proposed rule is
made final, section 7 of the Act will prohibit destruction or adverse
modification of critical habitat by any activity funded, authorized, or
carried out by any Federal agency. Federal agencies proposing actions
affecting critical habitat must consult with us on the effects of their
proposed actions, under section 7(a)(2) of the Act.
Consideration of Impacts Under Section 4(b)(2) of the Act
Section 4(b)(2) of the Act requires that we designate or revise
critical habitat based upon the best scientific data available, after
taking into consideration the economic impact, impact on national
security, or any other relevant impact of specifying any particular
area as critical habitat. We may exclude an area from critical habitat
if we determine that the benefits of excluding the area outweigh the
benefits of including the area as critical habitat, provided such
exclusion will not result in the extinction of the species.
When considering the benefits of inclusion for an area, we consider
the additional regulatory benefits that area would receive from the
protection from adverse modification or destruction as a result of
actions with a Federal nexus (activities conducted, funded, permitted,
or authorized by Federal agencies), the educational benefits of mapping
areas containing essential features that aid in the recovery of the
listed species, and any benefits that may result from designation due
to State or Federal laws that may apply to critical habitat.
When considering the benefits of exclusion, we consider, among
other things, whether exclusion of a specific area is likely to result
in conservation; the continuation, strengthening, or encouragement of
partnerships; or implementation of a management plan. In the case of
the four central Texas
[[Page 5388]]
salamanders, the benefits of critical habitat include public awareness
of the presence of the species and the importance of habitat
protection, and, where a Federal nexus exists, increased habitat
protection for the four central Texas salamanders due to protection
from adverse modification or destruction of critical habitat. In
practice, situations with a Federal nexus exist primarily on Federal
lands or for projects undertaken by Federal agencies.
The final decision on whether to exclude any areas will be based on
the best scientific data available at the time of the final
designation, including information obtained during the comment period
and information about the economic impact of designation. Accordingly,
we have prepared a DEA concerning the proposed critical habitat
designation, which is available for review (see http://www.regulations.gov at Docket Number FWS-R2-ES-2013-0001, or contact
the Austin Ecological Services Field Office (see FOR FURTHER
INFORMATION CONTACT)) and comment (see ADDRESSES).
Changes From Previously Proposed Critical Habitat
In this document, we are notifying the public of changes to the
proposed critical habitat designation. Based on additional information
we received during the August 22, 2012, to October 22, 2012, comment
period on the proposed rule, in this document we propose to revise
Units 2, 3, 5, 8, and 12 for the Georgetown salamander, and Units 3, 4,
5, 9, 10, 17, 22, 23, and 28 for the Jollyville Plateau salamander. All
other areas proposed on August 22, 2012, remain as proposed at 77 FR
50768 for designation as critical habitat.
The proposed revisions for the Georgetown salamander critical
habitat Units 2, 3, 5, 8, and 12 are adjustments in the locations of
these units based on clarifying information we received since the
proposed rule was published. Proposed Unit 2 is located 130 ft (40 m)
southeast from the location we gave in the August 22, 2012, proposed
rule. Proposed Unit 3 is located 2,350 ft (715 m) to the northeast of
the location we gave in the August 22, 2012, proposed rule. Unit 5 is
located 165 ft (50 m) to the southwest from the location we gave in the
August 22, 2012, proposed rule. In Unit 8, the Knight Spring location
is located 165 ft (50 m) west of the location we gave in the August 22,
2012, proposed rule. Lastly, Unit 12 is located 200 ft (60 m) to the
northwest of the location we gave in the August 22, 2012, proposed
rule. The total number of proposed critical habitat units,
landownership by type, and size of the proposed critical habitat units
remain the same for the Georgetown salamander as provided in the August
22, 2012, proposed rule.
For the Jollyville Plateau Salamander, we received additional
locations where salamanders are known to occur that we are using to
revise proposed Units 3, 4, 5, 9, 10, 17, 22, 23, and 28. Based on
eight new locations, we are combining proposed Units 3, 4, and 5 into
one proposed critical habitat unit, Unit 3 (Buttercup Creek Unit). Unit
3 now contains a total of 699 ac (283 ha) of proposed critical habitat.
In proposed Unit 9, we are proposing to add one additional spring
location (Wheless 2), which results in an increase in the proposed
unit's area increasing from 135 ac (55 ha) to 145 ac (59 ha). In
proposed Unit 10, we are proposing to add two new locations, Blizzard 2
and 3, which increases the size of this proposed unit from 68 ac (28
ha) to 88 ac (36 ha). In proposed Unit 17, we are proposing to add
eight new locations, which changes the size of this proposed unit from
1,157 ac (468 ha) to 1,198 ac (485 ha). Based on five new additional
locations, we are proposing to combine previously proposed Units 22 and
23 into one unit, Unit 22 (Sylvia Spring Area Unit). Unit 22 now
contains a total of 238 ac (96 ha) of proposed critical habitat. In
proposed Unit 28, we are proposing to add one new location called
Stillhouse Hollow, but the proposed addition of this location does not
result in a change to the size of the unit. In total for the Jollyville
Plateau salamander, we previously proposed 4,460 ac (1,816 ha) of
critical habitat in 33 units, which we have revised based on new
locations, and we are now proposing 4,934 ac (1,997 ha) in 30 units.
Proposed Critical Habitat Designation
In Tables 1 and 2 below, we present the revised proposed critical
habitat units for the Georgetown and Jollyville Plateau salamanders.
Also, we provide revised unit descriptions for Jollyville Plateau
salamander Units 3 and 22. Further detail for both surface and
subsurface critical habitat components may be found in the August 22,
2012, proposed rule (77 FR 50768).
Table 1--Proposed Critical Habitat Units for the Georgetown Salamander
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Land ownership by Size of unit in
Critical habitat unit type acres (hectares)
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1. Cobb Unit.................... Private........... 83 (34)
2. Cowen Creek Spring Unit...... Private........... 68 (28)
3. Bat Well Unit................ Private........... 68 (28)
4. Walnut Spring Unit........... Private, County... 68 (28)
5. Twin Springs Unit............ Private, County... 68 (28)
6. Hogg Hollow Spring Unit...... Private, Federal.. 68 (28)
7. Cedar Hollow Spring Unit..... Private........... 68 (28)
8. Lake Georgetown Unit......... Federal, Private.. 132 (53)
9. Water Tank Cave Unit......... Private........... 68 (28)
10. Avant Spring Unit........... Private........... 68 (28)
11. Buford Hollow Spring Unit... Federal, Private.. 68 (28)
12. Swinbank Spring Unit........ City, Private..... 68 (28)
13. Shadow Canyon Unit.......... City, Private..... 68 (28)
14. San Gabriel Springs Unit.... City.............. 68 (28)
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Total....................... .................. 1,031 ac (423 ha)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding. Area estimates reflect all
land within critical habitat unit boundaries.
[[Page 5389]]
Table 2--Revised Proposed Critical Habitat Units for the Jollyville
Plateau Salamander
------------------------------------------------------------------------
Land ownership by Size of unit in
Critical habitat unit type acres (hectares)
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1. Krienke Spring Unit.......... Private........... 68 (28)
2. Brushy Creek Spring Unit..... Private........... 68 (28)
3. Buttercup Creek Unit......... Private, State, 699 (283)
City.
6. Avery Spring Unit............ Private........... 237 (96)
7. PC Spring Unit............... Private........... 68 (28)
8. Baker and Audubon Spring Unit Private........... 110 (45)
9. Wheless Spring Unit.......... Private, County... 145 (59)
10. Blizzard R-Bar-B Spring Unit Private........... 88 (36)
11. House Spring Unit........... Private........... 68 (28)
12. Kelly Hollow Spring Unit.... Private........... 68 (28)
13. MacDonald Well Unit......... Private, County... 68 (28)
14. Kretschmarr Unit............ Private, County... 112 (45)
15. Pope and Hiers (Canyon Private........... 68 (28)
Creek) Spring Unit.
16. Fern Gully Spring Unit...... Private, City..... 68 (28)
17. Bull Creek 1 Unit........... Private, City, 1,198 (485)
County.
18. Bull Creek 2 Unit........... Private, City, 237 (96)
County.
19. Bull Creek 3 Unit........... Private, City..... 254 (103)
20. Moss Gulley Spring Unit..... City, County...... 68 (28)
21. Ivanhoe Spring Unit......... City.............. 68 (28)
22. Sylvia Spring Area Unit..... Private, City, 238 (96)
County.
24. Long Hog Hollow Unit........ Private........... 68 (28)
25. Tributary 3 Unit............ Private........... 68 (28)
26. Sierra Spring Unit.......... Private........... 68 (28)
27. Troll Spring Unit........... Private........... 98 (40)
28. Stillhouse Unit............. Private........... 203 (82)
29. Salamander Cave Unit........ Private........... 68 (28)
30. Indian Spring Unit.......... Private........... 68 (28)
31. Spicewood Spring Unit....... Private........... 68 (28)
32. Balcones District Park Private, City..... 68 (28)
Spring Unit.
33. Tributary 4 Unit............ Private, City..... 159 (64)
-------------------
Total....................... .................. 4,934 ac (1,997
ha)
------------------------------------------------------------------------
Note: Area sizes may not sum due to rounding. Area estimates reflect all
land within critical habitat unit boundaries.
Jollyville Plateau Salamander
Unit 3: Buttercup Creek Unit
Unit 3 consists of 699 ac (283 ha) of City of Austin, State of
Texas, and private land in southern Williamson County and northern
Travis County, Texas. The unit is located just east of Anderson Mill
Road. Lakeline Boulevard, a major thoroughfare, crosses the northeast
area of the unit. The unit is mostly covered with residential property.
A quarry is in the northwestern edge of the unit. An undeveloped area
of parks and setbacks is in the south central and southeastern part of
the unit. This unit contains 13 caves: Hunter's Lane Cave, Testudo
Tube, Bluewater Cave 1, Bluewater Cave 2, TWASA Cave,
Illex Cave, Buttercup Creek Cave, Godzilla Cave, Hideaway Cave,
Salamander Squeeze Cave, Treehouse Cave, Whitewater Cave, and Flea
Cave, which are all occupied by the Jollyville Plateau salamander. All
caves except Hunter's Lane Cave, Testudo Tube, Bluewater Cave
1, and Bluewater Cave 2 are located in preserves set
up as mitigation property under the Buttercup habitat conservation plan
(HCP), which is held by the City of Austin. This HCP covers adverse
impacts to the endangered Tooth Cave ground beetle (Rhadine
persephone). Although the salamander is not covered under the Buttercup
HCP, the protection afforded these caves by the HCP provides some
benefit for the species.
The Lakeline Mall HCP covers the Testudu Tube Cave location. As
part of the mitigation for the Lakeline Mall HCP, Testudo Tube Cave
must be protected and managed in perpetuity. Hunter's Lane Cave is
located in Discovery Well Preserve, which is State land leased to the
City of Cedar Park. This preserve was purchased by the Texas Department
of Transportation (formally Texas Turnpike Authority Division) as
mitigation for impacts to the Tooth Cave ground beetle from the
construction of the U.S. Highway 183 alternate highway project. The
mitigation actions from these HCPs and highway project provide some
benefit to the Jollyville Plateau salamander by establishing preserve
areas that limit development near the caves. Bluewater Cave 1
and Bluewater Cave 2 are located on public land within older
development. All caves in this unit except Bluewater Cave 1
and Hunter's Lane Cave contain the Tooth Cave ground beetle. The unit
contains all the primary constituent elements essential for the
conservation of the Jollyville Plateau salamander.
The unit requires special management because of the potential for
groundwater pollution from current and future development in the
watershed, potential for vandalism, and depletion of groundwater (see
Special Management Considerations or Protection section of the proposed
listing and critical habitat rule (77 FR 50768; August 22, 2012)).
The proposed critical habitat designation includes the caves. The
unit was further delineated by drawing a circle with a radius of 980 ft
(300 m) around the cave, representing the extent of the subterranean
critical habitat.
Unit 22: Sylvia Spring Area Unit
Unit 22 consists of 238 ac (96 ha) of private, City of Austin, and
Williamson County land in northern Travis County and southwestern
Williamson County, Texas. The unit is located east of the intersection
of Callanish Park Drive and Westerkirk Drive and north of the
intersection of Spicewood Springs Road and Yaupon Drive. Spicewood
Springs Road crosses the unit from southwest to east. Residential and
commercial
[[Page 5390]]
development is found in most of the unit. An undeveloped stream
corridor crosses the unit from east to west. This unit contains Small
Sylvia Spring, Sylvia Spring Area 2, Sylvia Spring Area 3, Sylvia
Spring Area 4, Spicewood Valley Park Spring, Tanglewood Spring,
Tanglewood 2, and Tanglewood 3, which are occupied by the Jollyville
Plateau salamander. Small Sylvia Spring, Sylvia Spring Area 2, Sylvia
Spring Area 3, Sylvia Spring Area 4, and Spicewood Valley Park Spring
are located on an unnamed tributary to Tanglewood Creek. Tanglewood
Spring, Tanglewood 2, and Tanglewood 3 are located on Tanglewood Creek,
a tributary to Bull Creek. The unit contains the primary constituent
elements essential for the conservation of the species.
The unit requires special management because of the potential for
groundwater pollution from current and future development in the
watershed, potential for vandalism, and depletion of groundwater (see
Special Management Considerations or Protection section of the proposed
listing and critical habitat rule (77 FR 50768; August 22, 2012)).
The proposed designation includes the spring outlets and outflow up
to the high water line and 160 ft (50 m) of downstream habitat. The
unit was further delineated by drawing a circle with a radius of 980 ft
(300 m) around the springs, representing the extent of the subterranean
critical habitat. We joined the edges of the resulting circles.
Amended Exclusions
In our August 22, 2012, proposed rule (77 FR 50768), we stated that
we would evaluate whether certain lands in the proposed critical
habitat designation for Jollyville Plateau salamander in the Bull Creek
3 Unit (Unit 19 for the Jollyville Plateau salamander) are appropriate
for exclusion from the final designation under section 4(b)(2) of the
Act. We are now adding the following land in the proposed critical
habitat for the Austin blind salamander to the list of areas we are
considering for exclusion from the final critical habitat designation.
Table 3--Areas Considered for Exclusion by Critical Habitat Unit for the Austin Blind Salamander
----------------------------------------------------------------------------------------------------------------
Areas meeting the
definition of Areas considered
Unit Specific area critical habitat, for possible
in acres exclusion, in
(hectares) acres (hectares)
----------------------------------------------------------------------------------------------------------------
Unit 1: Barton Springs Unit............... Barton Springs Pool HCP..... 120 ac (49 ha) 22 ac (9 ha)
----------------------------------------------------------------------------------------------------------------
Under section 4(b)(2) of the Act, we consider any other relevant
impacts, in addition to economic impacts and impacts on national
security. 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.
Land and Resource Management Plans, Conservation Plans, or Agreements
Based on Conservation Partnerships
We consider a current land management or conservation plan (HCP as
well as other types) to provide adequate management or protection if it
meets the following criteria:
(1) The plan is complete and provides the same or better level of
protection from adverse modification or destruction than that provided
through a consultation under section 7 of the Act;
(2) There is a reasonable expectation that the conservation
management strategies and actions will be implemented for the
foreseeable future, based on past practices, written guidance, or
regulations; and
(3) The plan provides conservation strategies and measures
consistent with currently accepted principles of conservation biology.
Barton Springs Pool Habitat Conservation Plan
We are considering the exclusion of non-Federal lands covered by
the Barton Springs Pool HCP. We are requesting comments on the benefit
to the Austin blind salamander from this HCP.
The Permittee (City of Austin) is authorized to take (kill, harm,
or harass) the endangered Barton Springs salamander (Eurycea sosorum)
at the four spring sites collectively known as Barton Springs,
incidental to activities for the operation and maintanence of the pool
and adjacent spring sites as described in the original Permittee's
(City of Austin) application and habitat conservation plan. The Barton
Springs Pool HCP currently requires the following measures for the
mitigation of incidental take of the Barton Springs salamander during
routine pool maintanence and cleaning. These measures are also being
applied to the Austin blind salamander as if it were a listed species:
Cleaning of the shallow end without lowering the entire
pool.
Visual searching for stranded salamanders after lowering
the pool.
Lowering of the beach.
Cleaning of the fissures, the new ``beach'' habitat, and
adjacent springs using low-pressure hoses.
Installation of an underwater walkway and a stainless
steel railing in the deep end.
Maintenance of 11,000 square feet (1,022 square meters) of
``beach'' habitat.
Restricting public access to Eliza and Sunken Garden (Old
Mill) Springs.
Daily inspections of all spring sites for vandalism,
habitat disturbance, and exotic species.
Implementation of a program to increase public awareness
and community support for the salamanders.
Establishment of a conservation and research fund for the
salamanders.
Reduce loadings of contaminants into Barton Springs from
current development and activities in the Barton Springs Zone of the
Edwards Aquifer.
Creation of a captive breeding facility for the Barton
Springs and Austin blind salamanders.
The measures described above will provide conservation benefits to
the Austin blind salamander by minimizing the death of individuals
during routine pool maintenance, preventing habitat disturbance from
vandalism, and maintaining water quality in the springs.
Draft Economic Analysis
The purpose of the DEA is to identify and analyze the potential
economic impacts associated with the proposed critical habitat
designation for the four central Texas salamanders. The DEA separates
conservation measures into two distinct categories according to
``without critical habitat'' and ``with critical habitat'' scenarios.
The ``without
[[Page 5391]]
critical habitat'' scenario represents the baseline for the analysis,
considering protections otherwise afforded to the four central Texas
salamanders (e.g., under the Federal listing and other Federal, State,
and local regulations). The ``with critical habitat'' scenario
describes the incremental impacts specifically due to designation of
critical habitat for the species. In other words, these incremental
conservation measures and associated economic impacts would not occur
but for the designation. Conservation measures implemented under the
baseline (without critical habitat) scenario are described
qualitatively within the DEA, but economic impacts associated with
these measures are not quantified. Economic impacts are only quantified
for conservation measures implemented specifically due to the
designation of critical habitat (i.e., incremental impacts). For a
further description of the methodology of the analysis, see Chapter 2,
``FRAMEWORK FOR THE ANALYSIS'' of the DEA.
The DEA provides estimated costs of the foreseeable potential
economic impacts of the proposed critical habitat designation for the
four central Texas salamanders over the next 23 years, which was
determined to be the appropriate period for analysis, because limited
planning information is available for most activities to forecast
activity levels for projects beyond a 23-year timeframe. It identifies
potential incremental costs as a result of the proposed critical
habitat designation; these are those costs attributed to critical
habitat over and above those baseline costs attributed to listing.
The DEA quantifies economic impacts of the four central Texas
salamanders conservation efforts associated with the following
categories of activity: (1) Development, (2) water management
activities, (3) transportation projects, (4) utility projects, (5)
mining, and (6) livestock grazing. Economic impacts are estimated for
development, transportation, mining, and species and habitat management
activities. No impacts are forecast for water management activities,
utility projects, and livestock grazing activities. For these
activities, no projects with a Federal nexus were identified within the
study area.
Total present value impacts anticipated to result from the
designation of all areas proposed as salamander critical habitat are
approximately $29 million over 23 years. All incremental costs are
administrative in nature and result from the consideration of adverse
modification in section 7 consultations and re-initiation of
consultations for existing management plans. Proposed Unit 1 for the
Austin blind salamander and proposed Unit 32 for the Jollyville Plateau
salamander are likely to experience the greatest incremental impacts.
Impacts in proposed Unit 1 for the Austin blind salamander are
estimated at $3.7 million in present value terms (13.0 percent of total
present value impacts), and result from a portion of the consultation
associated with the Mopac Expressway and approximately 21 consultations
annually on development projects withinproposed Unit 1 itself and the
Lake Austin watershed. Impacts in proposed Unit 32 for the Jollyville
Plateau salamander are estimated at $2.9 million in present value terms
(10.1 percent of total present value impacts), and result from a
portion of the consultations associated with three transportation
projects and approximately 17 consultations annually on development
projects within proposed Unit 32 itself and the Walnut Creek watershed.
Overall, consultations associated with development activities account
for approximately 98.8 percent of the incremental impacts in this
analysis.
As we stated earlier, we are soliciting data and comments from the
public on the DEA, as well as all aspects of the proposed rule and our
amended required determinations. We may revise the proposed rule or
supporting documents to incorporate or address information we receive
during the public comment period. In particular, we may exclude an area
from critical habitat if we determine that the benefits of excluding
the area outweigh the benefits of including the area, provided the
exclusion will not result in the extinction of this species.
Required Determinations--Amended
In our August 22, 2012, proposed rule (77 FR 50768), we indicated
that we would defer our determination of compliance with several
statutes and executive orders until the information concerning
potential economic impacts of the designation and potential effects on
landowners and stakeholders became available in the DEA. We have now
made use of the DEA data to make these determinations. In this
document, we affirm the information in our proposed rule concerning
Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
12630 (Takings), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice
Reform), E.O. 13211 (Energy, Supply, Distribution, and Use), the
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the National
Environmental Policy Act (42 U.S.C. 4321 et seq.), and the President's
memorandum of April 29, 1994, ``Government-to-Government Relations with
Native American Tribal Governments'' (59 FR 22951). However, based on
the DEA data, we are amending our required determinations concerning
the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and E.O. 12630
(Takings).
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 of
1996 (SBREFA; 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 (i.e., 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. Based on our DEA of the proposed designation, we provide our
analysis for determining whether the proposed rule would result in a
significant economic impact on a substantial number of small entities.
Based on comments we receive, we may revise this determination as part
of our final rulemaking.
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 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 agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these
[[Page 5392]]
small entities are significant, we considered 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.
To determine if the proposed designation of critical habitat for
the four central Texas salamanders would affect a substantial number of
small entities, we considered the number of small entities affected
within particular types of economic activities, such as development,
transportation, and mining activities as well as re-initiated
programmatic consultations for five existing conservation plans. In
order to determine whether it is appropriate for our agency to certify
that this proposed rule would not have a significant economic impact on
a substantial number of small entities, we considered each industry or
category individually. In estimating the numbers of small entities
potentially affected, we also considered whether their activities have
any Federal involvement. Critical habitat designation will not affect
activities that do not have any Federal involvement; designation of
critical habitat only affects activities conducted, funded, permitted,
or authorized by Federal agencies. In areas where the four central
Texas salamanders are present, Federal agencies already are required to
consult with us under section 7 of the Act on activities they fund,
permit, or implement that may affect the species. If we finalize this
proposed critical habitat designation, consultations to avoid the
destruction or adverse modification of critical habitat would be
incorporated into the existing consultation process.
In the DEA, we evaluated the potential economic effects on small
entities resulting from implementation of conservation actions related
to the proposed designation of critical habitat for the four central
Texas salamanders. Impacts to transportation activities are expected to
be incurred largely by Federal and State agencies. These entities are
not considered small. Also, re-initiations of consultations regarding
the Balcones Canyonlands Preserve, Buttercup Creek HCP, Four Points
HCP, Lakeline Mall HCP, and Williamson County Regional HCP are not
anticipated to involve small entities. However, incremental impacts
associated with residential and commercial development and surface
mining may be borne by small entities. In regards to development and
assuming the average small entity has annual revenues of approximately
$4.6 million, the per-entity cost to participate in a consultation
represents approximately 0.02 percent of annual revenues if each
consultation is undertaken by a different small entity. If all
consultations occurring in a given year (approximately 163) are
undertaken by the same developer, then the cost to participate in these
consultations represents approximately 3.1 percent of annual revenues.
In regards to mining, there are four small businesses engaged in
limestone mining, and we anticipate that two of these small entities
could incur incremental administrative costs as a result of a critical
habitat designation. Assuming the average small entity has annual
revenues of approximately $10 million, the per-entity cost to
participate in a consultation represents approximately less than 0.01
percent of annual revenues. Even in the event that a single small
entity bears third-party costs for both consultations in a single year,
the total impact represents less than 0.02 percent of annual revenues.
Overall, we do not believe that, if made final, the designation of
critical habitat for the four central Texas salamanders will have a
significant impact to the small business sector. Please refer to the
DEA of the proposed critical habitat designation for a more detailed
discussion of potential economic impacts.
The Service's current understanding of recent case law is that
Federal agencies are only required to evaluate the potential impacts of
rulemaking on those entities directly regulated by the rulemaking;
therefore, they are not required to evaluate the potential impacts to
those entities not directly regulated. The designation of critical
habitat for an endangered or threatened species only has a regulatory
effect where a Federal action agency is involved in a particular action
that may affect the designated critical habitat. Under these
circumstances, only the Federal action agency is directly regulated by
the designation, and, therefore, consistent with the Service's current
interpretation of RFA and recent case law, the Service may limit its
evaluation of the potential impacts to those identified for Federal
action agencies. Under this interpretation, there is no requirement
under the RFA to evaluate the potential impacts to entities not
directly regulated, such as small businesses. However, Executive Orders
12866 and 13563 direct Federal agencies to assess costs and benefits of
available regulatory alternatives in quantitative (to the extent
feasible) and qualitative terms. Consequently, it is the current
practice of the Service to assess to the extent practicable these
potential impacts, if sufficient data are available, whether or not
this analysis is believed by the Service to be strictly required by the
RFA. In other words, while the effects analysis required under the RFA
is limited to entities directly regulated by the rulemaking, the
effects analysis under the Act, consistent with the E.O. regulatory
analysis requirements, can take into consideration impacts to both
directly and indirectly impacted entities, where practicable and
reasonable.
In summary, we have considered whether the proposed designation
would result in a significant economic impact on a substantial number
of small entities. Information for this analysis was gathered from the
Small Business Administration, stakeholders, and the Service. For the
above reasons and based on currently available information, we certify
that, if promulgated, the proposed critical habitat designation will
not have a significant economic impact on a substantial number of small
business entities. Therefore, an initial regulatory flexibility
analysis is not required.
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 the four central Texas salamanders in a takings
implications assessment. As discussed above, the designation of
critical habitat affects only Federal actions. Although private parties
that receive Federal funding, assistance, or 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. The economic analysis found that
no significant ecomonic impacts are likely to result from the
designation of critical habitat for the four central Texas salamanders.
Because the Act's critical habitat protection requirements apply only
to Federal agency actions, few conflicts between critical habitat and
private property rights should result from this designation. Based on
information contained in the economic analysis assessment and described
within this document, it is not likely that economic impacts to a
property owner would be of a sufficient magnitude to support a
[[Page 5393]]
takings action. Therefore, the takings implications assessment
concludes that this designation of critical habitat for the four
central Texas salamanders does not pose significant takings
implications for lands within or affected by the designation.
Authors
The primary authors of this notice are the staff members of the
Austin Ecological Services Field Office, Southwest Region, U.S. Fish
and Wildlife Service.
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 further amend the proposed amendments to
part 17, subchapter B of chapter I, title 50 of the Code of Federal
Regulations, as published on August 22, 2012, at 77 FR 50768, as set
forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless
otherwise noted.
0
2. Amend Sec. 17.95(d), as proposed to be amended at 77 FR 50768, by:
0
a. Revising proposed paragraphs (d)(5), (d)(7), (d)(9), (d)(11), and
(d)(15) of the proposed entry for the ``Georgetown Salamander (Eurycea
naufragia)'' and
0
b. Revising proposed paragraphs (d)(5) and (d)(8), removing and
reserving proposed paragraphs (d)(9) and (d)(10), revising proposed
paragraphs (d)(14), (d)(19), and (d)(27), removing and reserving
proposed paragraph (d)(28), and revising proposed paragraph (d)(33) of
the proposed entry for the ``Jollyville Plateau Salamander (Eurycea
tonkawae)'', to read as follows:
Sec. 17.95 Critical habitat--fish and wildlife.
* * * * *
(d) Amphibians.
* * * * *
Georgetown Salamander (Eurycea naufragia)
* * * * *
(5) Index map follows:
[GRAPHIC] [TIFF OMITTED] TP25JA13.001
* * * * *
(7) Unit 2: Cowen Creek Spring Unit, Williamson County, Texas. Map
of Units 2 and 3 follows:
[[Page 5394]]
[GRAPHIC] [TIFF OMITTED] TP25JA13.002
* * * * *
(9) Unit 4: Walnut Spring Unit,Williamson County, Texas. Map of
Units 4 and 5 follows:
[[Page 5395]]
[GRAPHIC] [TIFF OMITTED] TP25JA13.003
* * * * *
(11) Unit 6: Hogg Hollow Spring Unit, Williamson County, Texas. Map
of Units 6, 7, 8, and 9 follows:
[[Page 5396]]
[GRAPHIC] [TIFF OMITTED] TP25JA13.004
* * * * *
(15) Unit 10: Avant Spring Unit, Williamson County, Texas. Map of
Units 10, 11, 12, and 13 follows:
[[Page 5397]]
[GRAPHIC] [TIFF OMITTED] TP25JA13.005
* * * * *
Jollyville Plateau Salamander (Eurycea tonkawae)
* * * * *
(5) Index map follows:
[[Page 5398]]
[GRAPHIC] [TIFF OMITTED] TP25JA13.006
* * * * *
(8) Unit 3: Buttercup Creek Unit, Williamson and Travis Counties,
Texas. Map of Unit 3 follows:
[[Page 5399]]
[GRAPHIC] [TIFF OMITTED] TP25JA13.007
* * * * *
(14) Unit 9: Wheless Spring Unit, Travis County, Texas. Map of
Units 9 and 10 follows:
[[Page 5400]]
[GRAPHIC] [TIFF OMITTED] TP25JA13.008
* * * * *
(19) Unit 14: Kretschmarr Unit, Travis County, Texas. Map of Units
14, 15, 16, 17, 18, 19, 20, and 21 follows:
[[Page 5401]]
[GRAPHIC] [TIFF OMITTED] TP25JA13.009
* * * * *
(27) Unit 22: Sylvia Spring Area Unit, Travis County, Texas. Map of
Units 22, 24, and 33 follows:
[[Page 5402]]
[GRAPHIC] [TIFF OMITTED] TP25JA13.010
* * * * *
(33) Unit 28: Stillhouse Unit, Travis County, Texas. Map of Units
28, 29, 30, and 31 follows:
[[Page 5403]]
[GRAPHIC] [TIFF OMITTED] TP25JA13.011
* * * * *
Dated: January 15, 2013.
Michael J. Bean,
Acting Principal Deputy Assistant Secretary for Fish and Wildlife and
Parks.
[FR Doc. 2013-01307 Filed 1-24-13; 8:45 am]
BILLING CODE 4310-55-P