Endangered and Threatened Wildlife and Plants; Threatened Species Status for Spring Pygmy Sunfish, 60766-60783 [2013-23726]

Download as PDF 60766 Federal Register / Vol. 78, No. 191 / Wednesday, October 2, 2013 / Rules and Regulations Issued in Washington, DC, under authority delegated in 49 CFR 1.97. Magdy El-Sibaie, Associate Administrator for Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration. [FR Doc. 2013–24082 Filed 10–1–13; 8:45 am] BILLING CODE 4910–60–P DEPARTMENT OF TRANSPORTATION Pipeline and Hazardous Materials Safety Administration minimize the delay in processing applications for these devices. Fish and Wildlife Service II. Background PHMSA’s OHMS, Approvals and Permits Division often receives approval applications for Division 1.4G, consumer fireworks that are in the shape of an animal or a small vehicle that produce multiple effects. In this notice, we are providing guidance for PHMSA-approval or FCA-certification of specialty fireworks devices. III. General Requirements 49 CFR Part 173 [Docket No. PHMSA–2013–0206; Notice No. 13–15] Clarification on Fireworks Policy Regarding Approvals or Certifications for Specialty Fireworks Devices Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT. ACTION: Clarification. AGENCY: This document clarifies PHMSA’s policy regarding applications for specialty fireworks devices. Specialty fireworks devices are fireworks devices in various shapes that produce multiple effects, simultaneously. In this document, we are establishing our policy regarding specialty fireworks devices. DATES: October 2, 2013. FOR FURTHER INFORMATION CONTACT: Mr. Ryan Paquet, Director, Approvals and Permits Division, Office of Hazardous Materials Safety, (202) 366–4512, PHMSA, 1200 New Jersey Avenue SE., Washington, DC 20590. SUPPLEMENTARY INFORMATION: SUMMARY: sroberts on DSK5SPTVN1PROD with RULES I. Introduction In this document, PHMSA’s Office of Hazardous Materials Safety (OHMS) is issuing its policy regarding specialty fireworks devices, which sets forth the requirements for approval or certification applications for ‘‘Specialty Fireworks Devices’’ classified as Division 1.4G, consumer fireworks. This notice of our policy clarifies what is considered a ‘‘Specialty Fireworks Device’’ for fireworks manufacturers or their U.S. designated agents to enable them to accurately apply for PHMSA approval or Fireworks Certification Agency (FCA) certification 1 and 1 Manufacturers of Division 1.4G, consumer fireworks have the option of applying to a DOTapproved fireworks certification agency (FCA) instead of applying to PHMSA. The fireworks still must conform to the requirements in the APA Standard 87–1, and pass a thermal stability test. Instead of applying to PHMSA, the manufacturer VerDate Mar<15>2010 15:59 Oct 01, 2013 Jkt 232001 Specialty fireworks devices 2 may include tanks, small fire trucks, cars, boats, animals, and other similarly shaped devices that produce multiple effects (whistles, lights, sparks, noises, etc.) simultaneously.3 Specialty fireworks devices, which are classified as UN0336, consumer fireworks, of Division 1.4G, must comply with the requirements of 49 CFR 173.56(b), 173.64 or 173.65, the APA Standard 87– 1 and the requirements below. Specialty fireworks devices: 1. Must be ground based with or without movement; 2. May contain non-sequential fusing; 3. May not exceed 10 fiberboard or plastic tubes per device; 4. May not contain more than 2 grams of pyrotechnic composition per tube, and not more than 20 grams pyrotechnic composition in the finished device; 5. Have reports that do not contain more than 50 mg of explosive composition per report; 6. Must not contain aerial components and tubes with internal shells, which are prohibited; and 7. Must not be combined with other firework devices. Issued in Washington, DC, under authority delegated in 49 CFR 1.97. Magdy El-Sibaie, Associate Administrator for Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration. [FR Doc. 2013–24092 Filed 10–1–13; 8:45 am] BILLING CODE 4910–60–P may apply in writing to an FCA with the information required in the APA Standard 87–1. After reviewing the application, the FCA will notify the manufacturer, in writing, if the fireworks have been classed, certified, and assigned an FC number, or if the application is denied (see 49 CFR 173.65). 2 An example of a specialty fireworks device is a fire truck with 10 tubes, 2 grams per tube, for a total pyrotechnic weight of 20 grams. 3 This policy only applies to UN0336, Fireworks, 1.4G, and does not apply to novelty fireworks devices. Requirements for novelty fireworks devices are found in the APA Standard 87–1, Section 3.2. PO 00000 Frm 00114 Fmt 4700 DEPARTMENT OF THE INTERIOR Sfmt 4700 50 CFR Part 17 [Docket No. FWS–R4–ES–2012–0068] RIN 1018–AY19 Endangered and Threatened Wildlife and Plants; Threatened Species Status for Spring Pygmy Sunfish Fish and Wildlife Service, Interior. ACTION: Final rule. AGENCY: We, the U.S. Fish and Wildlife Service (Service), determine threatened species status under the Endangered Species Act of 1973 (Act), as amended, for the spring pygmy sunfish (Elassoma alabamae), which is found in Limestone County, Alabama. The effect of this regulation is to add this species to the List of Endangered and Threatened Wildlife and implement the Federal protections provided by the Act for this species. DATES: This rule is effective December 2, 2013. ADDRESSES: This final rule is available on the Internet at http:// www.regulations.gov and at the Mississippi Ecological Services Field Office site. Comments and materials received, as well as supporting documentation used in the preparation of this rule, are available for public inspection at http:// www.regulations.gov. All of the comments, materials, and documentation that we considered in this rulemaking are available by appointment, during normal business hours at: U.S. Fish and Wildlife Service, Mississippi Field Office, 6578 Dogwood View Parkway, Jackson, MS 39213; telephone 601–321–1122; facsimile (601–965–4340). FOR FURTHER INFORMATION CONTACT: Stephen Ricks, Field Supervisor, U.S. Fish and Wildlife Service, Mississippi Ecological Services Field Office (see ADDRESSES section). If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800–877–8339. SUPPLEMENTARY INFORMATION: SUMMARY: Executive Summary Why we need to publish a rule. Under the Endangered Species Act (Act), a species warrants protection through listing if it is endangered or threatened throughout all or a significant portion of its range. Listing a species as an endangered or threatened species can only be completed by issuing a rule. E:\FR\FM\02OCR1.SGM 02OCR1 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 191 / Wednesday, October 2, 2013 / Rules and Regulations This rule lists the spring pygmy sunfish as a threatened species. In a separate, future rulemaking, we will finalize the designation of critical habitat for the spring pygmy sunfish. The basis for our action. Under the Act, we can determine that a species is an endangered or threatened species based on any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that the spring pygmy sunfish is threatened based on three of these five factors (Factors A, D, and E). Current threats to the species include ground and surface water withdrawal and impacts to water quality within the spring systems where this species currently occurs and historically occurred (Factor A). The species is also facing many potential threats in the foreseeable future. These include habitat modification in the form of planned urban and industrial development of land adjacent to spring pygmy sunfish habitat and the likely impacts to the spring system, including the surrounding aquifer recharge area. Increased urban and industrial development and associated secondary development and infrastructure can cause direct mortality as well as permanent loss and fragmentation of habitat (Factor A), which leads to isolated subpopulations, thereby impacting gene flow throughout the population (Factor E). Existing regulatory mechanisms are inadequate to reduce these threats (Factor D). However, conservation efforts that are currently being implemented through a candidate conservation agreement with assurances (CCAA), as well as additional conservation activities planned for the near future, reduce the impact of some of these threats. After carefully considering the current threats, current conservation activities, and future threats, we determined the spring pygmy sunfish meets the definition of a threatened species under the Act. Peer review and public comment. We sought comments from three independent specialists knowledgeable in spring pygmy sunfish biology, basic conservation biology, and hydrology/ spring system ecology to ensure that our determination is based on scientifically sound data, assumptions, and analyses. We invited these peer reviewers to comment on our listing proposal. We VerDate Mar<15>2010 15:59 Oct 01, 2013 Jkt 232001 also considered all comments and information we received during two public comment periods. Previous Federal Actions Federal actions for the spring pygmy sunfish prior to October 2, 2012, are outlined in our proposed listing and critical habitat rule (77 FR 60180), which was published on that date. Publication of the proposed rule opened a 60-day comment period, which closed on December 3, 2012. On April 29, 2013 (78 FR 25033), we reopened the comment period for an additional 30 days, ending May 29, 2013. During this period, the public was invited to comment on the entire October 2, 2012, proposed rule as well as the draft economic analysis (DEA) of the proposed critical habitat designation. We did not receive any requests for a public hearing. We will finalize the designation of critical habitat for the spring pygmy sunfish in the near future. Background Species Information Taxonomy and Species Description The spring pygmy sunfish was discovered in 1937, but not described until 1993 (Mayden 1993, pp. 1–14). Genetic analysis by Quattro et al. (2001, p.1, pp. 27–226) confirmed the morphological diagnosis of the species by Mayden (1993, pp. 1–14) as valid. Sandel (2008, pp. 1–18; 2012, entire) determined the species to be the most distinctive member of the family Elassomatidae and provided preliminary population genetic data for the species. 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 and Mayden 2004, p. 614). A further description of the species is provided in the proposed rule (77 FR 60180; October 2, 2012). Current Distribution The range of the spring pygmy sunfish is very restricted. The species currently occupies about 5.9 miles (mi) (9.5 kilometers (km)) and 1,435 acres (ac) (580.6 hectares (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, PO 00000 Frm 00115 Fmt 4700 Sfmt 4700 60767 Thorsen, and Horton springs, all in Limestone County, Alabama, along with associated spring runs, seeps, and wetlands, are collectively referred to as the Beaverdam Spring/Creek system. The Beaverdam Creek watershed is the least impacted groundwater-fed wetland in north Alabama as there are no other large springs in Lauderdale, Limestone, or Madison Counties that have not been developed for private or municipal use (Jandebeur 2012a, p. 1). 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, and has experienced the least humaninduced disturbance. However, Sandel (2011, p. 6) has documented declines in all sites within the system. Historical Distribution and Status The spring pygmy sunfish 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 (Boschung and Mayden 2004, p. 615; Jandebeur 2012b, p. 1). 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). Sampling efforts in the Pryor Springs complex between 1966 and 1979 indicated a sparse population of spring pygmy sunfish west of Highway 31. None has been reported east of Highway 31. The exact location of the original 1941 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 and Pulliam 1986, pp. 14–15). Reintroduction efforts continued into 1986 and 1987 (Mettee and Pulliam 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; Jandebeur 2012d, pp. 1–2). Fluker (in. litt. 2012) noted the species could still exist in Pryor Springs but at such low numbers as to not be detectable. E:\FR\FM\02OCR1.SGM 02OCR1 60768 Federal Register / Vol. 78, No. 191 / Wednesday, October 2, 2013 / Rules and Regulations sroberts on DSK5SPTVN1PROD with RULES The spring pygmy sunfish exhibits metapopulation structure within the Beaverdam Spring/Creek system (Sandel 2008, pp. 15–16; 2011, p. 8). A metapopulation is a group of individual populations that have some level of gene flow between them but are spatially isolated by unfavorable intervening habitat created naturally or anthropogenically (Akcakaya et al. 1999, pp. 183–184). With continued temporal isolation and lack of gene flow, some populations of the group may go extinct. However, if extinction occurs, there is a probability that the empty habitat patches will be recolonized by some members of the metapopulation (Levins 1968, pp. vi, 39–65; Levins 1970, pp. 77–107; Gotelli 1991, p. 768). For the spring pygmy sunfish, migration and continuity between spring pools is essential in maintaining the species’ genetic diversity within the Beaverdam Spring/ Creek system, and the species as a whole. Sandel (2008, pp. 15–16; 2011, p. 8) found that the spring pygmy sunfish metapopulation in Beaverdam Spring/ Creek is composed of isolated populations within the spring pools and spring runs. These pools and runs are connected spatially and temporally with periods of isolation and connectivity that are dependent on the extent and composition of aquatic vegetation, water quality, water quantity, and other parameters such as unintentional fish barriers at road crossings (e.g., clogged pipe or culvert) (Drennen 2010, pers. observ.). The individual spring pygmy sunfish populations within the metapopulation are intermittently connected via migration and recolonization after local extinction events. Although no supporting data were provided, Jandebeur (2011b, pp. 1– 13) presented an alternate hypothesis that these populations of spring pygmy sunfish may have evolved in relation to beaver ecology, and that during migration of spring pygmy sunfish from beaver pond habitats, the species may colonize or recolonize existing habitats downstream, even though individual subpopulations may be extirpated due to drought or other ecological issues. Habitat The spring pygmy sunfish is a springassociated (Warren 2004, p. 185) and groundwater-dependent (Jandebeur 2011, pers. comm.) 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. Spring pygmy sunfish prefer VerDate Mar<15>2010 15:59 Oct 01, 2013 Jkt 232001 clear to slightly stained spring water, occurring within spring heads (where cool water emerges from the ground), spring pools (water pool at spring head), spring runs (stream or channel downstream of spring pool), and associated spring-fed wetlands (Warren 2004, pp. 184–185). The recharge area for Beaverdam Spring is about 1.7 square miles (mi2) (1,088 ac) and extends from the western Beaverdam Creek watershed boundary, eastward near Oakland Spring Branch, north toward Huntsville Browns Ferry Road, and south to the bluff line where the spring discharges (Cook et al. 2013, p. 9). No contemporary water flow rates 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). In general, natural spring pool habitats are typically static, persisting without disruption for long periods, even during droughts, in the absence of water extraction. However, the Beaverdam Spring/Creek system contains three altered springheads (Moss, Horton, and Thorsen), and only one springhead (Beaverdam Spring) that can be considered a natural surface spring pool habitat. Over the last 50 years, Moss, Horton, and Thorsen Springs have all experienced some degree of anthropogenic disturbance (Sandel 2011, p. 1–11; Jandebeur 2012d, pp. 1–22). This includes mechanical enlargement and water withdrawals that can cause excessive pool level fluctuations and be particularily damaging to the spring pygmy sunfish during times of drought. These springs seemed to have recovered biologically at some level; however, lower population numbers of the species are associated with these springs (Sandel 2011, p. 6). The long-term impacts on these springs’ geological and hydrological functions from disturbance are not known. Beaverdam Spring pool, which is unaltered, has seasonal water levels consistent throughout the year (Jandebeur 2012a, pp. 1–16). Cook et al. (2013, p. 13) reported the discharge rates in Beaverdam Spring as 1.7 to 4.5 cubic feet per second (cfs) (776 to 2,020 gallons per minute (gpm)) and suggested that this wide range of discharge may originate from a variety of sources PO 00000 Frm 00116 Fmt 4700 Sfmt 4700 including agricultural withdrawals, a lack of vegetation in the recharge area, or a function of the site-specific geology. During drought periods, subsurface water levels in Bobcat and Matthews Cave on Redstone Arsenal, about 8 mi (12.9 km) east of Beaverdam Spring/ Creek watershed, are typically lower for longer periods of time compared to wetter years (Moser and Rheams 1992, pp. 6–8; Rheams et al. 1992, pp. 7–20). No direct correlation between groundwater levels in nearby caves and wells and spring discharge rates or water levels in Beaverdam Spring has been determined. Cook et al. (2013, p. 14) found that withdrawal for the March 2012 base flow (the water in a stream that originates from groundwater seepage or springs and is not from rain runoff) from Beaverdam Spring was about 3.5 percent (9.6 million gallons per day) of the total flow (base flow and stormwater) of Beaverdam Creek, indicating the current withdrawals have little effect on the discharge rate of Beaverdam Spring. However, effects of water withdrawal are more obvious in the other springheads, especially during drought (Sandel 2011, p. 6). The species is most abundant at the spring outflow or water emergence (spring head) from the ground and spring pool area (Sandel 2009, p. 14), typically occupying areas with water depths from 5 to 40 inches (in) (13 to 102 centimeters (cm)) and rarely in the upper 5 in (13 cm) of the water column. The spring pygmy sunfish prefers patches of dense filamentous submergent vegetation, including Ceratophyllum echinatum (spineless hornwort), Myriophyllum heterophyllum (two-leaf water milfoil), and Hydrilla verticillata (native hydrilla). Other important plant species for this sunfish include emergent species such as Sparganium spp. (bur reed), Polygonum spp. (smartweed), Nasturtium officinale (watercress), Juncus spp. (rush), and Carex spp. (sedges); and semi-emergent vegetation including Nuphar luteum (yellow pond lily), Utricularia spp. (bladderwort), and Callitriche spp. (water starwort) (Mayden 1993, p. 11; Jandebeur 1997, pp. 42–44; Sandel 2011, pp. 3–5, 9–11; Kuhajda in litt. 2012). The spring pygmy sunfish is also associated with a variety of other spring-dwelling species, including amphipods, isopods, spring salamanders, crayfish, and snails (Mayden 1993, p. 11; Sandel 2011, pp. 11–12). Life History The spring pygmy sunfish has low fecundity (reproductive capacity) indicating a species that is adapted to E:\FR\FM\02OCR1.SGM 02OCR1 Federal Register / Vol. 78, No. 191 / Wednesday, October 2, 2013 / Rules and Regulations sroberts on DSK5SPTVN1PROD with RULES and requires highly stable groundwaterdependent habitats and an ecological dependence upon unchanging habitats in early life stages (Rakes in litt. 2012). The species is short-lived (essentially an ‘‘annual’’) and becomes shorter-lived and extremely vulnerable to population extirpation as water temperatures rise (Rakes in litt. 2012). Adults reproduce from January to October. Spawning begins 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 (°F) (15 to 20 degrees Celsius (°C)) (Sandel 2007, p. 2; Mettee 2008, p. 36; Petty et al. 2011, p. 4). Spring pygmy sunfish produce about 65 eggs, and hatching occurs from April to September (Sandel 2004–2009, pers. observ.). 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). Compared to other pygmy sunfishes, spring pygmy sunfish have the highest average number of eggs per spawn, but the lowest percentage of egg survival, which increases the species’ vulnerability (Mettee 1974, p. 38). Summary of Comments and Recommendations In the proposed rule published on October 2, 2012 (77 FR 60180), we requested that all interested parties submit written comments on the proposal by December 3, 2012. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. A newspaper notice inviting general public comment was published in the Huntsville Times on October 14, 2012. We did not receive any requests for a public hearing. On April 29, 2013, we published a notice (78 FR 25033) reopening the comment period on the October 2, 2012, proposed rule (77 FR 60180), announcing the availability of our DEA on the proposed critical habitat designation, and requesting comments on both the proposed rule and the DEA. This comment period closed on May 29, 2013. During the comment periods for the proposed rule, we received a total of 18 comments on the proposed listing of the spring pygmy sunfish and proposed designation of critical habitat. In this final rule, we address only the comments regarding the proposed listing of this species, and we will address comments related to critical VerDate Mar<15>2010 15:59 Oct 01, 2013 Jkt 232001 habitat in the final critical habitat rule that will publish in the Federal Register in the near future. All comments we received either expressed an opinion on the proposed listing or provided additional background information on the species including its habitat, threats, and/or its conservation needs. Ten of the 18 commenters specifically commented on the species’ proposed listing as threatened. Two expressed opposition to the listing, and the remaining eight supported the species’ listing, with six of these eight recommending an endangered designation instead of the proposed threatened designation. Two commenters were affiliated with a State agency (Geological Survey of Alabama), and all remaining comments were received from nongovernmental organizations or individuals. All substantive information provided during both comment periods related to the listing decision has either been incorporated directly into this final determination or is addressed below. Peer Review In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from three knowledgeable individuals with scientific expertise that included familiarity with the spring pygmy sunfish and its habitat, biological needs, and threats. We received responses from all three of the peer reviewers. We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the listing of the spring pygmy sunfish. The peer reviewers generally concurred with our methods and conclusions and provided additional information, clarifications, and suggestions to improve the final rule. Two of the three peer reviewers were in support of the listing, although they recommended that we list the species as endangered. The third peer reviewer provided additional information, clarification, and suggestions to improve the final rule and remarked about the difficulty in assessing the hydrology and groundwater issues in the area, but did not specifically comment on the species’ proposed listing. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate. Peer Reviewer Comments This section focuses on comments from peer reviewers and our responses to them. However, we have also included other public comments in this section (referred to as ‘‘other commenters’’) if those comments were PO 00000 Frm 00117 Fmt 4700 Sfmt 4700 60769 related in topic to peer reviewer comments. (1) Comment: Two of the three peer reviewers and two other commenters stated that the species should be listed as endangered and not as threatened. They stated that endangered status was more appropriate for this species since it was confined to a single population that is at risk of extirpation. They cited the establishment of the current CCAA as insufficient justification for the proposed threatened status due to threats to the species outside the boundaries of the CCAA from the projected growth of the Huntsville area. In addition, they noted that all protection afforded to the species through the CCAA could be nullified as the landowner can opt to terminate the CCAA with notice. Our Response: The determination to list the spring pygmy sunfish as threatened was based on the best available scientific and commercial data on its status, the existing and potential threats to the species, and current and proposed conservation measures through CCAAs (see Summary of Factors Affecting the Species and Determination sections, below). Though the spring pygmy sunfish is confined to a single population, the protection afforded to the species and its habitat through the established Belle Mina Farms CCAA ameliorates the current threats to the species to the point that threatened status is appropriate. The Belle Mina Farms CCAA provides protection for the largest population of the species within the springhead and spring pool of about 165 ac (66.8 ha) and 963 ac (390 ha) (88.5 percent) of the recharge area. The middle section of the species’ range, which is downstream from Belle Mina Farms, is owned by two landowners who are currently working with the Service to protect and manage their section of habitat for the species through proposed CCAAs. These conservation actions will reduce the severity of certain threats to the species outlined under Factor A (see below) within the upper and middle portions of the Beaverdam Spring/Creek and Moss Spring sites. The remaining species’ habitat in the lower reach of the Beaverdam Spring/Creek system, though of lower quality, is federally owned and protected within the Wheeler National Wildlife Refuge (NWR). We acknowledge that large-scale residential and industrial development in association with the growth of the City of Huntsville could pose a serious future threat to the species and its habitat. The Belle Mina Farms CCAA includes conservation measures to minimize impacts to the species and its habitat E:\FR\FM\02OCR1.SGM 02OCR1 sroberts on DSK5SPTVN1PROD with RULES 60770 Federal Register / Vol. 78, No. 191 / Wednesday, October 2, 2013 / Rules and Regulations caused by livestock, chemical usage, stormwater runoff, deforestation, development, and groundwater removal (see specifics under Factor A discussion, below). Therefore, it reduces the immediacy of the threats to the species and its habitat to the point where the spring pygmy sunfish is not in danger of extinction (endangered). Rather, it is likely to become endangered throughout all or a significant portion of its range within the foreseeable future when considering the future threats it faces from potential residential, commercial, and industrial development in the vicinity and therefore, it meets the definition of a threatened species under the Act (16 U.S.C. 1531 et seq.). We acknowledge that landowners have the option to terminate CCAAs with notice; however, our assessment is based on the protection this agreement currently affords the species and its habitat. (2) Comment: One peer reviewer commented that the case for excessive groundwater usage was not documented sufficiently in the proposed rule and the cause for low spring water levels has not been demonstrated to be seasonally variable, the result of extraction, or a combination of both. He further stated that basing species’ habitat vulnerability on general statements of groundwater occurrence, recharge, and movement should be better documented with local data and monitoring information if possible. Another individual commented that there were no data to support the claim that groundwater withdrawal had negatively affected the species. Our Response: We reviewed available hydrological information (Erman 2002; Field and Sullivan 2003; Younger 2007; Likens 2009; Healy 2010) in our assessment of threats to the species; this information included local hydrological information such as The Geological Survey of Alabama’s (GSA) studies of caves in the Tennessee River Valley area near the Beaverdam system (Moser and Rheams 1992, pp. 6–8; Rheams et al. 1992, pp. 7–20) and Cook et al.’s (2013) recent study of the recharge area of the Beaverdam Spring/Creek system. We have incorporated information from these studies into appropriate sections in this final rule. The effects of pumping or diversion of springs and its negative consequences to spring-dependent species, such as the spring pygmy sunfish, are well documented in the literature (e.g., Williams and Etnier 1982; Cooper 1993; Hubbs 1995; Kuhajda 2004; Likens 2009; see Summary of Factors Affecting the Species, Factor A). Sandel (in Kuhajda et al. 2009, pp. 16, 19) VerDate Mar<15>2010 15:59 Oct 01, 2013 Jkt 232001 documented a negative relationship between excessive pumping activities and degraded habitat in Beaverdam Spring at Lowe’s Ditch and in Horton and Thorsen springs. A 99-percent decline of the spring pygmy sunfish population was estimated at Thorsen Spring following water extraction and the resulting desiccation of vital aquatic vegetation (see Summary of Factors Affecting the Species). Information concerning the smaller springs within the system, i.e. Moss, Thorsen, and Horton, along with Pryor Spring, which is unoccupied by the species, indicates that groundwater and surface water extraction, along with drought, contributed to the destruction of the species’ habitat (Sandel 2011, p. 6). Thus, based on the best scientific and commercial information available on spring systems and site-specific monitoring studies, we have determined that excessive groundwater extraction poses a current and future threat to the spring pygmy sunfish (see Summary of Factors Affecting the Species, Factor A). However, subsurface groundwater movement in this region of Alabama is quite complex, and more studies are needed. We agree that these additional studies will increase our understanding of the hydrological and biological dynamics of the spring system where the spring pygmy sunfish occurs. (3) Comment: One peer reviewer commented that potential threats from chemical contaminants may be somewhat overstated based on generalized watershed information taken from overview book sources. Another individual commented that there were no data to support the claim that pesticides and nitrification were threats to the species. Our Response: The best available scientific and commercial data, as presented in the Summary of Factors Affecting the Species section, on the prevalence of contaminants within the Beaverdam Spring/Creek watershed and their negative effects on aquatic organisms and specifically on the spring pygmy sunfish, indicate that contaminants have been a factor in the decline of the spring pygmy sunfish. Baseline contaminant trend information has been collected for decades within the Tennessee Valley surface and ground waters by the U.S. Geological Survey, GSA, and other sources documenting the general negative impacts of water quality contamination, whether from fertilizers or pesticides, on aquatic organisms. Specific information on the Lower Tennessee River Valley area concerning surface and groundwater contaminants, along with the susceptibility of the aquifers to PO 00000 Frm 00118 Fmt 4700 Sfmt 4700 surface contaminants (Bossong and Harris 1987; Hoos 1999; Kingsbury 1999; Hoos and Powell 2002; Kingsbury 2003; Powell 2003), was used to characterize groundwater aquatic systems within the specific spring pygmy sunfish sites. Between 1999 to 2001, 35 pesticides and volatile organic compounds were detected in wells and springs within the Lower Tennessee River Valley (Woodside et al. 2004, pp. 1–2). Within the Eastern Highland Rim, the Beaverdam Spring/Creek watershed was shown to have the highest annual crop harvest, the highest total annual nitrogen use, the second highest annual phosphorus use, and elevated pesticides in the groundwater (Kingsbury 2003, p. 20; National Water Quality Assessment Program (NAWQA) 2009a, b; Mooreland 2011, p. 2; Cook et al. 2013, pp. 17–20). The concentration of nitrate as nitrogen and total phosphorus found in Beaverdam Spring was 2.77 milligrams per liter (mg/L), and 0.061 mg/L respectively, which is four and 1.7 times above the upper limit for wildlife protection set by the State of Alabama (Cook et al. 2013, pp. 17–19). Pesticides were likely the causative factor in the extirpation of the Pryor Springs population, which began its decline after the application of the pesticide 2,4dicholorophenoxyactic acid (2,4-D) to that area in the 1940s (Jandebeur 2012c, pp. 1–18). (4) Comment: One peer reviewer commented that statements derived from general knowledge and field observation over short periods of time and presented as fact reveal a bias in the proposal about damage to (and status of) spring pygmy sunfish. Our Response: We thoroughly reviewed all available scientific and commercial data in preparing the proposed rule and in completion of this final rule. We sought and reviewed historical and recent publications and unpublished reports concerning the spring pygmy sunfish as well as literature concerning springs and threats to these systems. This included reliable unpublished reports, non-literature documentation, and personal communications with experts. We have incorporated the most current and historical scientific information available concerning the habitat and natural history of the species (see ‘‘Species Information’’ in Background section, above). Studies over the last decade have documented negative changes in the habitat and overall populations of the species (Sandel 2007, 2008, 2009, 2011; Jandebeur 2011a, 2012a). The proposed rule was reviewed by the public, which also included a peer review by three experts according E:\FR\FM\02OCR1.SGM 02OCR1 Federal Register / Vol. 78, No. 191 / Wednesday, October 2, 2013 / Rules and Regulations to our policy (see Peer Review section, above). The other two peer reviewers, while providing additional information on habitat, life history, and threats, agreed that our threat assessment supported our decision to list this species, though they stated endangered status was more appropriate (see Comment 1). In short, we based our decision on the best scientific and commercial data available, as required by section 4(b)(1) of the Act. (5) Comment: One peer reviewer commented that sampling may be inadequate relative to technique and method or insufficient in scope to adequately assess population size and distribution. Another individual stated that documented population declines were questionable and were a reflection of inadequate sampling methods. Our Response: Relative abundance of spring pygmy sunfish estimated by catch-per-unit-effort (CPUE), the method that was employed, is a standard metric in biological surveys and is an approved method by the American Fisheries Society for estimating fish abundance (Murphy and Willis 1996, pp. 158–159), as is comparing this information through time at various collection sites. The information gathered during the field work is of sufficient extent and duration to document the rarity of the spring pygmy sunfish and its population decline and adheres to the information standard in section 4(b)(1) of the Act, as the use of the best scientific and commercial data available. Comments From States Section 4(i) of the Act states, ‘‘the Secretary shall submit to the State agency a written justification for his failure to adopt regulations consistent with the agency’s comments or petition.’’ We received two comments from individuals who are employees of a State agency. One of these individuals was also a peer reviewer of the proposed rule (see Peer Reviewer Comments section, above). Both provided additional information on the species’ habitat and threats, which has been incorporated into this final rule, and neither stated a position on the proposed listing of the spring pygmy sunfish as threatened. Public Comments sroberts on DSK5SPTVN1PROD with RULES General Comments Issue 1: Science (6) Comment: One individual commented that the listing of the spring pygmy sunfish is not supported by the best science and is not warranted. Service policy requires that peerreviewed literature be considered scientifically superior. The Service VerDate Mar<15>2010 15:59 Oct 01, 2013 Jkt 232001 based its proposed listing on information from the petition, which is scientifically unreliable since it consisted of unconfirmed information and personal observations. The Service should not base listing decision on potential threats that are pure speculation. Peer-reviewed literature and other data do not support a listing. Our Response: See our responses to Comments 1, 2, 3 and 4, above. Under the Act, we determine whether a species is endangered or threatened due to any of the five factors (see Summary of Factors Affecting the Species, below), and we are required to make listings determinations on the basis of the best available scientific and commercial data available (16 U.S.C. 1533(a)(1) and (b)(1)(A)). The Service reviews and uses information on the biology, ecology, distribution, abundance, status, and trends of species, as well as information on current and potential threats, from a wide variety of sources as part of our responsibility under the Act. Some of this information is anecdotal, some of it is oral, and some of it is found in written documents. These documents include status surveys, biological assessments, and other unpublished material (i.e., ‘‘gray literature’’) from State natural resource agencies and natural heritage programs, Tribal governments, other Federal agencies, consulting firms, contractors, and individuals associated with professional organizations and higher educational institutions. We also use published articles from juried (peer-reviewed) professional journals whenever available. All decisions are made on the basis of the best scientific and commercial data available and are subject to extensive internal review as well as external peer review by recognized authorities to help ensure that our decisions conform to contemporary scientific principles. We have incorporated the most current and historical scientific and commerical data available concerning the habitat and natural history of the species (see Background section, above). Our determination of threatened status for this species is supported by the information presented in our Summary of Factors Affecting the Species discussion, below, and complies with the Act’s requirement to base our decision on the basis of the best scientific and commercial data available. We have also complied with our policy on peer review (59 FR 34270) as discussed under the Peer Review section above. (7) Comment: One individual stated that our assertion that the spring pygmy sunfish occupies only 5 river miles of PO 00000 Frm 00119 Fmt 4700 Sfmt 4700 60771 Beaverdam Creek is speculative and contradicted by prior research. It is unknown if the species has been extirpated from Pryor Springs, and based on previous surveys, Wheeler NWR contains numerous areas populated by the spring pygmy sunfish. Surveys to date have been limited to unaltered spring runs with filamentous, submergent vegetation. The habitat and range of spring pygmy sunfish is broader and more diverse, as there is documented evidence of sustained populations in areas of differing water qualities such as beaver dam impoundments, creek banks, and lake backwaters. Exploration of all potential habitats is needed to establish the range of the species and undertake any listing decision. Our Response: Our determination that the spring pygmy sunfish’s range is restricted to approximately 6 miles of Beaverdam Creek is supported by the best scientific and commercial data available as required under section 4(b)(1) of the Act. This species was historically known from three independent tributaries of the Tennessee River: Cave Spring, Pryor Spring/Branch, and Beaverdam Spring. The Cave Spring population was extirpated in 1934, and the Pryor Spring/Branch System population was extirpated in the 1940s. Reintroduction efforts into Pryor Spring in the 1980s were ultimately unsuccessful, as the species has not been observed in this system since 2007 (see ‘‘Historical Distribution and Status’’ in the Background section, above). All of these spring habitat localities shared similar biological and physical parameters (see ‘‘Habitat’’ in Background section, above). This type of habitat is rare today, as these systems were mostly developed to meet demand for public water supply and irrigation. In fact, Beaverdam Spring is the only remaining large spring in north Alabama that has not been similarly developed (see Summary of Factors Affecting the Species section, below). Extensive fish surveys within Limestone and Madison Counties in related spring systems with similar vegetation structure as in Beaverdam Spring, and also in different aquatic spring-related habitats, have not located any additional spring pygmy sunfish localities (Caldwell 1965; Armstrong 1967; Jandebeur 1979; Mettee and Pulliam 1986; Etnier 1990; Shute 1994; Jones 1995; Larson 1995; Mayden et al. 1995; Jandebeur 1997, 2011a; Sandel 2008, 2009, 2011). Though the species has been found in some habitats that have been altered from their original natural condition, E:\FR\FM\02OCR1.SGM 02OCR1 sroberts on DSK5SPTVN1PROD with RULES 60772 Federal Register / Vol. 78, No. 191 / Wednesday, October 2, 2013 / Rules and Regulations such as a beaverdam, there is no evidence that these are sustaining populations. To the contrary, the latest data reported by Sandel (2011, p. 6), for collections within the spring pygmy sunfish’s current range between 2005 to 2010, indicate declines in all known populations including Beaverdam Creek, and Moss, Horton, and Thorsen Springs. The spring pygmy sunfish was last documented to occur on the Wheeler NWR approximately 20 years ago in 1993; thus, we consider this area in the lower range of Beaverdam Spring/ Creek system to be part of the historical range. Based on our review of the best available scientific and commerical data, including analysis of the species habitat and previous status surveys, the surveys for the species have been appropriate and have confirmed its rarity, vulnerability, and range. (8) Comment: One commenter postulated that mechanical disturbance and siltation actually benefit the spring pygmy sunfish. He stated that the spring pygmy sunfish tolerates and thrives where there has been substantial modification to the spring habitat through agricultural and animal husbandry practices as evidenced by its long-term coexistence with cattle. Our Response: There is no information or evidence to support the premise that the species thrives in habitat modified by livestock or in areas with siltation and disturbance. The best available scientific and commercial data indicate that habitat alteration has been a causative factor in the decline of the spring pygmy sunfish. The species is known in greatest numbers from the spring head of Beaverdam Spring/Creek, where there is no livestock impact and no evidence of problems with excessive sedimentation. The spring pygmy sunfish may be able to tolerate some degree of habitat and water quality modification for short periods of time and may be able to reestablish themselves given improved conditions. However, livestock impacts to aquatic habitat are well-documented in the scientific literature, and suspended sediments, which are stressors to aquatic organisms, are typically increased in aquatic habitats used by livestock. Excessive sediment directly impacts fish health and decreases water clarity, which reduces light penetration needed for plant growth and indirectly results in impacts to fish, and in particular, the spring pygmy sunfish’s spawning and feeding sites (see Summary of Factors Affecting the Species, Factor A section). (9) Comment: One individual commented that there are no data to VerDate Mar<15>2010 15:59 Oct 01, 2013 Jkt 232001 support a metapopulation hypothesis for the spring pygmy sunfish. Our Response: The best scientific and commercial data available support our conclusion that the spring pygmy sunfish exhibits metapopulation structure within the Beavedam Spring/ Creek system. Studies by Sandel (2008, pp. 15–16; 2011, p. 8) found that the spring pygmy sunfish population in Beaverdam Spring/Creek is composed of isolated populations within the spring pools and spring runs, and that the individual spring pygmy sunfish populations are intermittently connected via migration and recolonization after local extinction events. This population structure is consistent with the definition of metapopulations (see ‘‘Historical Distribution and Status’’ in Background section, above). (10) Comment: One individual stated that the Service’s assertion that the spring pygmy sunfish is a separate and distinct species is questionable. Our Response: We disagree. The commenter did not provide any data to support his statement. The best scientific and commercial data indicate that the spring pygmy sunfish is a distinct, well-described taxon. We are not aware of any disagreement within the scientific community concerning its taxonomic status (see ‘‘Taxonomy and Species Description’’ in Background section, above). (11) Comment: One individual stated that we characterized water withdrawal for irrigation usage incorrectly for the Beaverdam Spring system, and we should have used information that presents water quantity issues, withdrawal rates, water volume usage, and specific connectivity among the various water features of the spring system. Our Response: We agree that more detailed studies would contribute to a better understanding of water withdrawal usage in the Beaverdam Spring system. However, in accordance with the information standard under section 4(b)(1) of the Act, we used the best scientific and commercial data available in assessing water extraction usage in the Beaver Spring/Creek system. We gathered water extraction information from the Limestone County Water and Sewer Board, along with information from a recent initial assessment of the aquifer and recharge area by GSA (Cook et al. 2013, entire). As discussed in the Summary of Factors Affecting the Species section of this rule, commercial water withdrawal from the aquifer by the Limestone County pumping station, between 2006 and 2011, was over 1 billion gallons (3.9 PO 00000 Frm 00120 Fmt 4700 Sfmt 4700 billion liters) at an estimated flow rate of 450 gpm (1,740 lpm) (Holland 2011, pers. comm.). 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) (Hoos and Woodside 2001, p. 1; Kingsbury 2003, p. 2; Sandel 2007– 2009, pers. comm.). Negative impacts to the spring pygmy sunfish from excessive ground water extraction are discussed in the Summary of Factors Affecting the Species section, below, and also in our response to Comment 2, above. General Comments Issue 2: Procedural and Legal Issues (12) Comment: One individual commented that the Service must not only examine and evaluate the raw data but must also make those data available to others. Internal materials relied upon by the Service have not been made available for public review. Our Response: Complete lists of references, including unpublished information, cited in the proposed rule (77 FR 60180; October 2, 2012) and in this final rule are available on the Internet at http://www.regulations.gov at Docket No. FWS–R4–ES–2012–0068 and upon request from the Mississippi Ecological Services Field Office (see ADDRESSES, above). In addition, as stated in our proposed rule, all supporting documentation used in preparing the proposed rule was available upon request and for public inspection, by appointment, at the U.S. Fish and Wildlife Service, Mississippi Ecological Services Field Office. All supporting documentation used in our rulemakings is a matter of public record; however, the number of sources referenced is often voluminous. Therefore, it is not possible for us to post all information sources used on the Internet. (13) Comment: One individual commented that listing was unnecessary in light of the current and proposed CCAAs and that these agreements are more successful at protecting the species than listing. Threats to the species can be alleviated through less restrictive means such as the use of best management practices (BMPs). Our Response: We agree that CCAAs are a cooperative mechanism to manage and protect the spring pygmy sunfish. The CCAA (Belle Mina Farms) developed for the species identifies BMPs that adequately protect the species and its habitats from current land use practices within the areas enrolled in the CCAA. The two E:\FR\FM\02OCR1.SGM 02OCR1 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 191 / Wednesday, October 2, 2013 / Rules and Regulations proposed CCAAs also identify similar BMPs. However, the conservation actions in the current and proposed CCAAs do not remove the threats to the species and its habitat to the point that listing is not necessary, especially when considering probable and potential impacts from planned residential and industrial development. In the Summary of Factors Affecting the Species and Determination sections, below, we discuss our analysis of the threats to the species weighed against the benefits provided through the current and proposed CCAAs. The primary threat to the species is from habitat modification (Factor A), most notably the large-scale industrial and residential development planned adjacent to this species’ habitat, which has the potential to impact the hydrology and other aspects of the spring system. The use of BMPs outlined in the CCAAs are important measures in conserving the spring pygmy sunfish, particularly considering the current agricultural land use within the watershed. However, when land use changes to industrialization and urbanization, as is likely in this area, the standard BMPs from the CCAAs are inadequate to address the complex issues such as aquifer recharge, stormwater management, and chemical transport in association with development. In addition, there may be activities associated with the increased development, such as roadways and utility (e.g., water, sewer, and electrical) corridors outside of the landowner’s control, that have the potential to impact land enrolled in the current and proposed CCAAs. Therefore, the spring pygmy sunfish needs the protection afforded to federally listed species under sections 7 and 9 of the Act to ensure its conservation. (14) Comment: The Service does not have authority to take action for a purely intrastate species such as the spring pygmy sunfish. It is questionable if the Federal government can regulate such a species under the Commerce Clause of the U.S. Constitution. An action listing the spring pygmy sunfish is beyond the powers afforded to the Service and Federal Government. Our Response: The constitutionality of the Act in authorizing the Services’ protection of endangered and threatened species has consistently been upheld by the courts (e.g., GDF Realty Investments, Ltd. v. Norton, 326 F.3d 622 (5th Cir. 2003); Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000); National Association of Homebuilders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 524 U.S. 937 (1998); Rancho Viejo v. Norton, No. 01–5373 (D.C. Cir. 2003); and United VerDate Mar<15>2010 15:59 Oct 01, 2013 Jkt 232001 States v. Hill, 896 F. Supp. 1057 (D. Colo. 1995). All of these courts have held that regulation under the Act to protect species that live only in one State is within Congress’ Commerce Clause power and that loss of animal diversity has a substantial effect on interstate commerce (National Ass’n of Home Builders, 130 F.3d at 1050–51; see Rancho Viejo, 323 F.3d at 310, n. 5). Thus, although the spring pygmy sunfish is currently known to occur only within the State of Alabama, the Service’s application of the Act to add this species to the Federal List of Endangered and Threatened Wildlife is constitutional. Summary of Changes From Proposed Rule In response to comments, we have incorporated additional information pertaining to this species’ conservation, life history, and habitat as provided by the peer reviewers and others. Specifically, we added new information on the hydrology of the Beaverdam Spring/Creek watershed into the Background and Summary of Factors Affecting the Species sections of this rule. In addition, we have edited our threat discussion under the Summary of Factors Affecting the Species section and most notably added new information pertaining to the proposed industrialization of the Beaverdam Spring/Creek watershed under the Factor A discussion. Summary of Factors Affecting the Species Section 4 of the Act and its implementing regulations (50 CFR 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 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; or (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. Factor A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range Increased human population growth in Limestone County of over 20 percent PO 00000 Frm 00121 Fmt 4700 Sfmt 4700 60773 between the 2000 and 2010 census (Hill in litt. 2013), and the accompanying demand for water could alter the Beaverdam Spring/Creek system and its recharge areas through increased water extraction (pumping), diversion, and retention (Erman 2002, p. 8; Cook et al. 2013, pp. 33–34). 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). Within the spring pygmy sunfish range, the Beaverdam Spring pool area, which has the greatest concentration of spring pygmy sunfish, is the least disturbed of all springs in the system. Moss, Thorsen, and possibly Horton Springs, which have been altered in some manner over the last 60 plus years, were allowed to recover and stabilize; however, these springs support lower numbers of the species than Beaverdam Spring. The condition of Pryor Springs and spring run continued to deteriorate over time (Sandel 2008, pp. 1–31; 2011, pp. 1–3, 1–11; Jandebeur 2012c, pp. 15– 16; 2013, pp. 2–5) to the eventual demise of the species at this site in 2007. Urban and Industrial Development The history of development of large springs does not inspire confidence that the Beaverdam Spring environs will be conserved as a natural ecosystem (Jandebeur 2012a, p. 22). Groundwaterfed habitat suitable for the spring pygmy sunfish was historically more prevalent across the Tennessee Valley region of north Alabama than today, as these systems were mostly developed to meet demand for public water supply and irrigation, as well as recreational parks (Jandebeur 2012a, p. 1). Except for Beaverdam Spring, there are no large springs remaining in Lauderdale, Limestone, or Madison County that have not been developed for private or municipal use (Jandebeur 2012a, p. 22). Urban development adjacent to the Beaverdam Spring/Creek system could fragment and directly impact suitable spring pygmy sunfish habitat by decreasing water quality and quantity, changing the aquatic vegetation structure, and 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 E:\FR\FM\02OCR1.SGM 02OCR1 sroberts on DSK5SPTVN1PROD with RULES 60774 Federal Register / Vol. 78, No. 191 / Wednesday, October 2, 2013 / Rules and Regulations runoff (Younger 2007, p. 39), acute and chronic changes in water quality parameters such as decreased oxygen levels, increased temperature, concentrations of toxic heavy metals or other molecules (Cooper 1993, pp. 402– 406; McGregor and O’Neil 2011, pp. 5– 15; Cook et al. 2013, pp. 33–34), and increased water quantity and flow velocity (Field and Sullivan 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 and Sullivan 2003, pp. 326–333). Excessive sediment has been shown to wear away and suffocate periphyton (organisms that live attached to objects underwater), disrupt aquatic insect communities, and negatively impact fish growth, physiology, behavior, reproduction, and survival (Waters 1995, pp. 109–118). Fish gills are delicate and easily damaged by fine sediment. As sediment accumulates in the gills, fish respond by excessively opening and closing their gills to try to remove the silt. If irritation continues, mucus is produced to protect the gill surface, which may impede the circulation of water over gills and hence interfere with respiration. Under extreme or prolonged exposure to sediments, fish may actually die due to physically damaging and clogging their gills (Berg 1982, pp. 177–195). The spring pygmy sunfish is currently facing threats from ongoing development and from planned largescale residential and industrial projects within the vicinity of the Beaverdam Spring/Creek watershed (Bostick and Davis 2013, pers. comm.; Hill in litt. 2013). Sandel (2011, p. 11) observed declines in the species’ population numbers and attributed it to sedimentation from two nearby construction activities: the construction of a new sewer line adjacent to the spring system and the ongoing construction of the Ashbury subdivision 2.3 mi (3.7 km) northeast of the species’ habitat. The Ashbury subdivision, adjacent to Moores Branch and draining into the 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 VerDate Mar<15>2010 15:59 Oct 01, 2013 Jkt 232001 than 68 percent of the proposed development area is adjacent to the Beaverdam Spring/Creek watershed and consists of four major industrial sites encompassing approximately 4,000 ac (1,619 ha) (Bostick and Davis 2013, pers. comm.). The Huntsville Master Plan would cover much of the known recharge area with residential, commercial, and industrial development (Jandebeur 2012a, p. 20). The restricted-use area for subdivision development, within the City of Huntsville, is a minimum of 25 ft (7.6 m) 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; Hill in litt. 2013). 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 springdependent species such as the spring pygmy sunfish through fluctuating water levels and temperature changes (Williams and Etnier 1982, pp. 11–18; Hubbs 1995, pp. 989–990; Kuhajda 2004, pp. 59–63). The incremental and cumulative groundwater recharge effects on the habitat of the spring pygmy sunfish may not become evident for years (Cooper 1993, pp. 402–406; 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; Hill in litt. 2013), along with expanding urbanization and industrialization PO 00000 Frm 00122 Fmt 4700 Sfmt 4700 (Sasaki 2011, pp. 1–83). The potential over-development of groundwater resources, especially in the recharge areas for Beaverdam Spring, Moss Spring, and the Beaverdam Creek, raises concerns about the potential loss of groundwater-fed habitat essential to the only remaining population of the species (Jandebeur 2012a, p. 20–21). 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; Cook et al. 2013, pp. 3–7). Groundwater in the County is ultimately derived from percolation of precipitation (McMaster and Harris, Jr. 1963, p. 17; Cook et al. 2013, pp. 3–13) 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 (Younger 2007, pp. 117–121; Healy 2010, pp. 70–72). Change in land use from rural to urban/industrial (Bostick and Davis 2013, pers. comm.) within the Beaverdam Spring/Creek area could be detrimental to the spring pygmy sunfish due to negative 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 (Cook et al. 2013, pp. 33–34). This may be coupled with a subsequent reduction in precipitation infiltrating through the soil surface to the aquifer, which will ultimately reduce spring base flow (Field and Sullivan 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 2007–2011, pers. observ.; NAWQA 2009a,b; Sandel 2011, pp. 3–6) because of the reduction of the water levels in the aquifer and resultant decreased spring outflow (Williams and Etnier 1982, pp. 11–18; Hubbs 1995, pp. 989–990; Kuhajda 2004, pp. 59–63; Cook 2011, pers. comm.). Sandel (in Kuhajda et al. 2009, pp. 16, 19; 2011, pp. 3–6) documented a relationship between pumping activities in Beaverdam Spring (Lowes Ditch) area, and Horton and Thorsen Springs, and degraded spring pygmy sunfish habitat. Even though Moss Spring has never been directly pumped (Sewell in litt. 2013), the water extraction of the Beaverdam Spring area, specifically at Lowes Ditch, may have impacted Moss Spring water levels E:\FR\FM\02OCR1.SGM 02OCR1 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 191 / Wednesday, October 2, 2013 / Rules and Regulations (Sandel 2011, pp. 6) and aquatic vegetation (Drennen pers observ. 2011). In Thorsen Spring, during 2007, water was extracted to a level that, in conjunction with the drought, destroyed vital aquatic vegetation and decreased the abundance of the spring pygmy sunfish by 99 percent (Sandel 2004– 2009, pers. observ.; Sandel 2011, p. 6). The proximity of the spring pygmy sunfish’s habitat to agricultural land throughout its range makes it vulnerable to drought and associated impacts due to the extraction of groundwater and surface water for agricultural uses (Cooper 1993, pp. 402–406). Sandel (in Kuhajda et al. 2009, pp.16, 19) roughly 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 noted in the field 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 2011, pers. comm.). 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) (Hoos and Woodside 2001, p. 1; Kingsbury 2003, p. 2; Hutson et al. 2005; Sandel 2007–2009, pers. comm.). 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 may adversely affect the spring pygmy sunfish. In several large springs in the United States, groundwater extraction for public consumption and agricultural use has impacted federally listed fish species by decreasing groundwater VerDate Mar<15>2010 15:59 Oct 01, 2013 Jkt 232001 levels. Examples include the endangered Devil’s Hole pupfish (Cyprinodon diabolis) (Hoffman et al. 2003, p. 1248) and the endangered fountain darter (Etheostoma fonticola) (U.S. Fish and Wildlife Service 1996, p. 19). The whiteline topminnow (Fundulus albolineatus) (Gilbert 1891), once endemic to Big Spring and Spring Creek, in Huntsville, Madison County, was determined to be extinct in 1971, due to over-pumping, cementing-over of streambank vegetation, and impoundment of the spring pool (Williams and Etnier 1982, pp. 10–11). Severe or excessive water extraction, along with drought in spring pygmy sunfish habitat, to the point that normal water levels may drop for a sustained time period, can cause desiccation, reduction, or change of essential aquatic vegetation necessary for the survival of the species (Sandel 2011, p. 6). A reduction in water quantity also exacerbates the concentration of pollutants that may have both an acute and a chronic negative impact on the species and its habitat (Cooper 1993, pp. 402–406). The effects of water extraction on stream flow, in combination with drought, may be greater due to the overall decrease in water quantity in the stream. Decreased water levels, following pumping from the spring pool, correspond to decreased aquatic vegetation in the system. Less water quantity increases the dessication 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 of the water, as demonstrated by spring pygmy sunfish habitat impacts and subsequent population declines in Horton and Thorsen Springs (Sandel 2004–2009. pers. observ.; 2011, pp. 3–6). Duncan et al. (2010, pp. 18–20) showed a correlatation between the abundance of the endangered watercress darter (Etheostoma nuchale) in a similar spring system in Jefferson County, Alabama, to the abundance and diversity of aquatic vegetation. Water Quality The historical intensive use of chemicals within the Lower Tennessee River Valley in Alabama, including agricultural areas close to the Beaverdam Spring/Creek watershed and the recharge areas, may be a potential threat to the species. Contaminant transport occurring with sediment in surface stormwater runoff, or resulting from agricultural runoff, can enter the spring pool and spring run directly without first entering the groundwater. PO 00000 Frm 00123 Fmt 4700 Sfmt 4700 60775 During 1999–2001, 35 pesticides and volatile organic compounds such as tetrachloroethylene and trichloroethylene were detected in wells and springs within the Lower Tennessee River Valley (Woodside et al. 2004. pp. 1–2). Increased toxic concentrations of herbicides coupled with increased desiccation of aquatic vegetation due to drought (Jandebeur 2012c, pp. 1–6, 13) may have contributed to the demise of the Pryor Spring/Branch population of the spring pygmy sunfish. The ongoing, intensive agricultural practices and proposed urbanization and industrialization plans (Bostick and Davis 2013, pers. comm.; Hill in litt. 2013) within the immediate area of the watershed threaten to contaminate the groundwater in the aquifer supplying the Beaverdam Spring/Creek system (Healy 2010, p. 70). Along with volatile organic compounds, general-use pesticides applied along road and power line rights-of-way in urban areas to control woody vegetation and weeds (tebuthiuron and prometon) were detected in wells in Lower Tennessee River Valley aquifers between 1999– 2001 (Woodside et al. 2004, pp. 16–20). Transportation of contaminants to the aquifer by recharge water can be slow and steady or highly episodic over time (Healy 2010, p. 75). Fertilizers and pesticides are transported to the aquifer by recharge, or into surface stormwater routes, where they eventually enter springs and are a threat to the survival of fishes found there (Carson 1962, pp. 41–43; U.S. Fish and Wildlife Service 1996, pp. 35–36; Hoffman et al. 2003, p. 1248). 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 (Kingsbury 2003, p. 20; NAWQA 2009a,b; Mooreland 2011, p. 2; Cook et al. 2013, pp. 17–18). Both the historical 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. Natural background levels of phosphorus in groundwater are normally low (Wetzel 1983, p. 281; Cook et al. 2013, pp. 18). However, E:\FR\FM\02OCR1.SGM 02OCR1 sroberts on DSK5SPTVN1PROD with RULES 60776 Federal Register / Vol. 78, No. 191 / Wednesday, October 2, 2013 / Rules and Regulations 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 housing and industrial development neighboring spring pygmy sunfish habitat is likely to increase phosphorus and nitrogen levels in the future. Surface water contamination sources are typically nitrate (from fertilizer and animal waste), bacteria, and urban runoff (runoff from yards and asphalt that has heavy metals and pesticides/herbicides). Ground water in karst areas is impacted by surface water with these same contaminants (Tennessee Department of Environment and Conservation 2012, p. 9; Cook et al. 2013, pp. 17–19). The concentration of nitrate as nitrogen and total phosphorus found in Beaverdam Spring was 2.77 mg/L, and 0.061 mg/L respectively, four and 1.7 times above the upper limit for wildlife protection (Cook et al. 2013, pp. 17–19). McGregor et al. (2008, pp. 5–20) found that increased urbanization around Matthews and Bobcat Caves, about 8 mi (12.9 km) east of Beaverdam Creek watershed, will likely affect the ground water and population abundance of the federally endangered Alabama cave shrimp (Palaemonias alabamae). Specific aquatic plants, which the spring pygmy sunfish uses for spawning, shelter, and foraging, are also impacted by indiscriminate use of chemicals (Sandel 2011, pp. 1–5, 8–9; Jandebeur 2012c, p. 2). 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 2012d, p. 1–10). 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 VerDate Mar<15>2010 15:59 Oct 01, 2013 Jkt 232001 population in Pryor Branch after the application of 2, 4dichlorophenoxyacetic acid (2,4-D) to that area in the 1940s (Jandebeur 2012d, 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, undated, pp. 1–3). 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 (Sada et al. 2001, pp. 14–16; Erman 2002, p. 8). 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 (NAWQA 2009a,b; Sandel 2011, pp. 1– 6, 8–9; Jandebeur 2012a, p. 2). 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 NWR, which is spring pygmy sunfish habitat and part of the Beaverdam Spring/Creek system, highlights the need for careful management of spring habitats (Hurt 2012, pers. comm.). 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 PO 00000 Frm 00124 Fmt 4700 Sfmt 4700 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 of Its Range 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 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 ac (1,295 ha) 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. It also includes most of the spring recharge area (Cook et al. 2013, p. 44). 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 E:\FR\FM\02OCR1.SGM 02OCR1 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 191 / Wednesday, October 2, 2013 / Rules and Regulations the near term and also minimize any incidental take of the species that might occur as a result of conducting other covered activities now that we are listing the species under the Act. 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 Springs. 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. These actions will minimize impacts and help to maintain groundwater recharge of the aquifer and adequate spring flow. New information received from the GSA (Cook et al. 2013, p. 3) identified the recharge area of the Beaverdam Spring, which is about 1,088 ac (440.3 ha) and described as wooded upland and agricultural fields. The majority (about 88.5 percent) of the delineated recharge area is within the enacted CCAA as enrolled lands. This CCAA and corresponding conservation measures that occur within the majority of the recharge area (maintain status quo land use as agriculture) will protect the groundwater and spring system on the enrolled land (within Belle Mina Farms, Ltd.). The spring pygmy sunfish inhabits the designated protected area within the CCAA. The species depends on the clean water from the recharge area within the enrolled lands. There is longstanding agricultural usage by Bella Mina Farms, including cattle and irrigated cropland operations. Since 1983, Bella Mina Farms has been cooperating with the Service in conserving and maintaining the integrity of species’ habitat in the Beaverdam Spring/Creek system. Bella Mina Farms has created and maintained a buffer zone around the Moss Spring pond population of the spring pygmy sunfish and managed cattle consistent with current grazing research, BMPs, and the spring pygmy sunfish’s ecology. Through the CCAA, Bella Mina Farms, Ltd., will continue to implement the existing conservation efforts on the enrolled land, as well as implement long-term strategies to protect the spring pygmy sunfish and its habitat within the protected area. According to the CCAA, if there is a 15-percent decline in the population of the species, the Service VerDate Mar<15>2010 15:59 Oct 01, 2013 Jkt 232001 may propose additional water use management practices within the enrolled land to maintain the status quo of historical water usage within the protected area. We have provided technical assistance to the landowners concerning conservation measures and BMPs for the surface portion of the delineated recharge area. The Land Trust will conduct monitoring on the progress of the conservation actions and annual habitat analyses. Initial planning for species’ population and habitat monitoring has begun. 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 (see discussion above) within the upper portion of the Beaverdam Spring/Creek and Moss Spring sites, which encompasses the upper 24 percent of occupied habitat in the Beaverdam Spring/Creek system. Presently there is no active protection for the 19 percent of the species’ habitat within the middle reach of the Beaverdam Spring/Creek system. However, since early 2012, the Service has been working with two landowners to protect and manage this area for the spring pygmy sunfish, and we are currently in the process of negotiating CCAAs with these landowners and preparing them for public review and comment. The lower portion of the species’ habitat (57 percent) is federally owned and protected, though it is considered lower quality habitat. Despite these efforts, the large-scale development planned adjacent to this species’ habitat and outside the boundaries of the land enrolled in the current CCAA and the land potentially enrolled in the two proposed CCAAs continues to pose a significant future threat to the spring pygmy sunfish and its habitat. Furthermore, since the Belle Mina Farms’ CCAA has been just recently executed, there has yet to be long-term monitoring, which is needed to evaluate the overall effectiveness of these efforts. PO 00000 Frm 00125 Fmt 4700 Sfmt 4700 60777 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, and fertilizers) within the spring pygmy sunfish’s habitat poses a threat to the species’ survival. Ongoing 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 likely 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 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 largescale 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. Additional conservation measures being pursued with key landowners and other stakeholders would also aid in reducing these threats to the species, but likewise, not to the level that water quantity and quality degradation would cease to be threats to the species. Factor B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes The spring pygmy sunfish is not a commercially valuable species. E:\FR\FM\02OCR1.SGM 02OCR1 60778 Federal Register / Vol. 78, No. 191 / Wednesday, October 2, 2013 / Rules and Regulations 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 2012d, p. 14); however, the overall impact of collection on the spring pygmy sunfish population is unknown (Jandebeur 2012d, p. 14). The localized distribution and small size of known populations render 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 conclude that overutilization for commercial, recreational, scientific, or educational purposes does not constitute a threat to the spring pygmy sunfish at this time. sroberts on DSK5SPTVN1PROD with RULES Factor C. Disease or Predation 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 piscivorus (fisheating) birds. It is possible that predation increases when fish are concentrated in smaller areas when groundwater is depleted through water extraction and drought. However, we have no evidence of any specific declines in the spring pygmy sunfish due to predation. Therefore, we conclude that the best scientific and commercial data available indicate, at the present time, that neither disease nor predation is a threat 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 (CWA; 33 U.S.C. 1251 et seq.), 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 VerDate Mar<15>2010 15:59 Oct 01, 2013 Jkt 232001 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 CWA’s section 303(d) List of Impaired Water Bodies, States are required under the CWA 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 CWA. 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 and U.S. Forest Service 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). Thus, water use restrictions under PO 00000 Frm 00126 Fmt 4700 Sfmt 4700 common law (Chapman and U.S. Forest Service 2005, p. 10) provide minimal overall protection for the species. Limited protection is provided to the Beaverdam Spring/Creek watershed during any construction in the area from Limestone County construction regulations (http:// www.limestonecounty-al.gov/PDFfiles/ Engineering/LimestoneCountySDRegsComplete.pdf). Specifically, the regulations state that fill material may not be used to raise land in a floodway that restricts the flow of water and increases flood heights, nor can land within a designated floodway be platted for residential occupancy or building sites (Limestone County, Alabama, Subdivision Regulations section 5–3–11(6)32). Summary of Factor D The spring pygmy sunfish and its habitat are afforded limited protection from surface water quality and habitat degradation under Federal, State, and County regulations. Notwithstanding this limited protection, large volumes of groundwater and surface water are continually extracted, and these extractions may eventually threaten the aquifer that supplies water to spring pygmy sunfish habitat. Degradation of habitat within the current range of this species continues despite the protections afforded by these existing laws. Therefore, based on the best scientific and commercial data available, we conclude that existing regulatory mechanisms are inadequate to reduce or eliminate the threats to the 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 desired aquatic vegetation, water quality through flushing and diluting pollutants and increasing water quantity, and 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 and for the necessary aquatic E:\FR\FM\02OCR1.SGM 02OCR1 Federal Register / Vol. 78, No. 191 / Wednesday, October 2, 2013 / Rules and Regulations vegetation needed by the species. 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 2008, pp. 2–4, 13; 2011, pp. 3–6) and reduced the desired vegetation necessary for the species’ survival and recovery. 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 (Burkhead et al. 1997, pp. 397–399; Sandel 2011, pp. 8–10). The Tuscumbia darter (E. tuscumbia), a species found in the Beaverdam Creek/Spring system that also exhibits metapopulation dynamics, has been impacted by fragmentation and cessation of inter-spring migration pathways, similar to the spring pygmy sunfish (Fluker et al. 2007, pp. 6–8). Impoundments (Pickwick Reservoir) now block both species’ migration pathways, and isolated populations have experienced genetic bottlenecks (the genetic variation within a population and the potential to adapt to a changing environment decrease) (Fluker et al. 2007, pp. 6–8). sroberts on DSK5SPTVN1PROD with RULES Climate Change Our analyses under the Act include consideration of ongoing and projected changes in climate. The terms ‘‘climate’’ and ‘‘climate change’’ are defined by the Intergovernmental Panel on Climate Change (IPCC). The term ‘‘climate’’ refers to the mean and variability of different types of weather conditions over time, with 30 years being a typical period for such measurements, although shorter or longer periods also may be used (IPCC 2007, p. 78). The term ‘‘climate change’’ thus refers to a change in the mean or variability of one or more measures of climate (e.g., temperature or precipitation) that persists for an extended period, typically decades or longer, whether the change is due to natural variability, human activity, or both (IPCC 2007, p. 78). Scientific measurements spanning several decades demonstrate that changes in climate are occurring, and that the rate of change has been faster since the 1950s. Examples include warming of the global climate system, and substantial increases in precipitation in some regions of the world and decreases in other regions (for these and other examples, see IPCC VerDate Mar<15>2010 15:59 Oct 01, 2013 Jkt 232001 2007, p. 30; Solomon et al. 2007, pp. 35–54, 82–85). Scientists use a variety of climate models, which include consideration of natural processes and variability, as well as various scenarios of potential levels and timing of greenhouse gas (GHG) emissions, to evaluate the causes of changes already observed and to project future changes in temperature and other climate conditions (e.g., Meehl et al. 2007, entire; Ganguly et al. 2009, pp. 11555, 15558; Prinn et al. 2011, pp. 527, 529). Although projections of the magnitude and rate of warming differ after about 2030, the overall trajectory of all the projections is one of increased global warming through the end of this century, even for the projections based on scenarios that assume that GHG emissions will stabilize or decline. Thus, there is strong scientific support for projections that warming will continue through the 21st century, and that the magnitude and rate of change will be influenced substantially by the extent of GHG emissions (IPCC 2007, pp. 44–45; Meehl et al. 2007, pp. 760–764 and 797–811; Ganguly et al. 2009, pp. 15555–15558; Prinn et al. 2011, pp. 527, 529). Various changes in climate may have direct or indirect effects on species. These effects may be positive, neutral, or negative, and they may change over time, depending on the species and other relevant considerations, such as interactions of climate with other variables (e.g., habitat fragmentation) (IPCC 2007, pp. 8–14, 18–19). 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 (both groundwater and surface water) during drought periods exacerbated damage to the spring pygmy sunfish and its habitat (Sandel 2009, p. 15). Even though aquifers in the region are not depleted but are sometimes seasonally low, especially during drought periods, drought has affected Beaverdam Spring/Creek since records were kept. The 1954 drought was more extreme than the 2007 drought (USGS Water-Supply Paper 2375, pp. 163–170, PO 00000 Frm 00127 Fmt 4700 Sfmt 4700 60779 http://md.water.usgs.gov/publications/ wsp-2375/al; Seager et al. 2009, pp. 5042–5043). Monthly normal temperatures for 1981–2010 show an increase by 1.8 °F and precipitation has decreased by 3.17 in per year (National Weather Service Forecast Office, Huntsville, Alabama 2011, http:// www.srh.noaa.gov/hun). Long-term droughts impact groundwater by increasing groundwater extraction for public consumption and agriculture, which in turn do not replenish surface waters (Likens 2009, p. 91). The assessment of long-term impacts of projected changes in climate, population, and land use and land cover on regional water resources is critical to sustainable development, especially in the southeastern United States (Sun et al. 2008, pp. 1141–1157). Across the southern United States, changes in climate had the greatest impacts on water stress, followed by population, and land use (Sun et al. 2008, pp. 1141– 1157). The prolonged drought within northern Alabama during 2006 to 2008 was exceptional (Jandebeur 2012d, p. 13), and along with the severe drought of 1950 to 1963 (Jandebeur 2012d, p. 13), may have contributed to the demise of the Pryor Spring/Branch population of the spring pygmy sunfish in 2008, 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 Affecting Its Continued Existence The signed CCAA with Belle Mina Farms, Ltd. and the two proposed CCAAs, will likely reduce some of the threats to groundwater caused by climate change by minimizing impacts and helping to maintain groundwater recharge of the aquifer, protecting surface water flow, and limiting groundwater extraction. Under the signed CCAA, the Service will provide technical assistance and groundwater management advice. Additionally, adaptive management measures of this CCAA concern groundwater usage, including pumping from the aquifer and avoidance of temporary or permanent groundwater removal installations. Also under this CCAA, the landowners will not engage in practices, such as pesticide and herbicide use, stock farm ponds, and aquaculture, within the designated protected areas that may disturb water quality during low water levels associated with drought periods. Similar conservation measures are outlined in the two proposed CCAAs. The conservation measures in the signed and proposed CCAAs will help E:\FR\FM\02OCR1.SGM 02OCR1 60780 Federal Register / Vol. 78, No. 191 / Wednesday, October 2, 2013 / Rules and Regulations protect the species on these properties in the near term and also minimize any incidental take of the species that might occur as a result of conducting other covered activities now that we are listing the species under the Act. However, because of anthropogenic factors such as urbanization or intensive agriculture, these conservation measures may be inadequate during drought periods caused by climate change or other natural phenomena. sroberts on DSK5SPTVN1PROD with RULES Summary of Factor E Habitat fragmentation and its resulting effects on gene flow and potential demographic impacts within the population is a substantial threat to the spring pygmy sunfish. Increasing drought associated with climate change affects groundwater budgets (inflow and outflow) by influencing the rates and distribution of recharge of the aquifer, affects human demands for groundwater and surface water, and affects plant transpiration from shallow groundwater reserves. Based on the best available scientific and commercial data, we conclude that the spring pygmy sunfish faces threats from other natural or manmade factors affecting its continued existence. These threats continue, even though they are possibly lessened by the beneficial effects of the signed CCAA and the two proposed CCAAs. Determination We have carefully assessed the best scientific and commercial data available regarding the past, present, and future threats faced to the spring pygmy sunfish. The identified threats to the spring pygmy sunfish fall under Factors A, D, and E, as described in more detail in the Summary of Factors Affecting the Species section, above. Habitat modification (Factor A) is the primary threat to the species. This is due to ongoing threats associated with ground and surface water withdrawal and water quality within the spring systems where this species currently occurs and historically occurred. In the future, these current threats will likely be coupled with impacts from planned urban and industrial development of land adjacent to spring pygmy sunfish habitat and the resultant impacts to the spring system and surrounding aquifer recharge area. We find that this planned increase in urban and industrial development and associated infrastructure, along with the potential unsustainable use of the area, is a threat to the spring pygmy sunfish, with the potential to exacerbate direct mortality as well as permanent loss, fragmentation, or alteration of its habitat. The degradation of habitat VerDate Mar<15>2010 15:59 Oct 01, 2013 Jkt 232001 throughout the species’ range continues 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) that affects the spring pygmy sunfish’s continued existence. These threats are rangewide and expected to increase in the future. The established Belle Mina Farms CCAA provides a measure of protection for the species in the upper reach of the population (24 percent of species’ occupied habitat), with the implementation of conservation measures that increase or preserve water quantity, reduce water quality degradation, and prohibit any potentially damaging land use actions in that area (Factor A). In addition, a portion of the recharge area for the Beaverdam Spring/Creek is provided a measure of protection from impervious substrate and excessive storm water runoff under this CCAA since the 1,011 ac of enrolled lands are to be maintained in their present condition, which is mostly agriculture. Currently, conservation measures or protection extends to the portion of the species’ habitat currently enrolled in the CCAA (24 percent) and to the lower 57 percent of the habitat in Federal ownership within the Wheeler NWR (although habitat here is of poorer quality). The current CCAA and Federal ownership of a portion of the habitat reduce many of the threats (under Factors A and E) within the immediate core of the species’ current range; however, these protections are not able to ameliorate all of the threats to the species and its habitat, most notably impacts associated with the large-scale industrial and residential development planned in the area, which has potential to impact the hydrology and water quality of the spring system. We note that the two proposed CCAAs, if finalized, would provide additional conservation benefit to the species in the middle portion of its range. However, we have determined that the additional conservation actions in the proposed CCAAs do not remove the threats to the species and its habitat to the point that listing is not necessary, especially when considering probable and potential impacts from planned residential and industrial development (Factor A). Therefore, the possible final approval of the proposed CCAAs following the public comment period would not change our determination to list the spring pygmy sunfish as a threatened species. PO 00000 Frm 00128 Fmt 4700 Sfmt 4700 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 within the foreseeable future throughout all or a significant portion of its range. We find that the spring pygmy sunfish is likely to become endangered throughout all or a significant portion of its range within the foreseeable future, based on the immediacy, severity, and scope of the ongoing threats, expected future threats, and taking into considerations the protections afforded to the species by the Belle Mina Farms CCAA. Therefore, on the basis of the best available scientific and commercial data, we are listing the spring pygmy sunfish as threatened in accordance with sections 3(20) and 4(a)(1) of the Act. We find that endangered species status is not appropriate for the spring pygmy sunfish because: (1) Protections afforded by the CCAA help reduce some of the current threats to the species; and (2) many of the threats facing the species from planned industrial and residential development are likely to occur in the future. Therefore, the spring pygmy sunfish is not in danger of extinction. Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. The threats to the survival of the species occur throughout the species’ range and are not restricted to any particular significant portion of that range. Accordingly, our assessment and determination applies to the species throughout its entire range. Available Conservation Measures Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness and conservation 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 required by Federal agencies and the prohibitions against certain activities are discussed, in part, 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 E:\FR\FM\02OCR1.SGM 02OCR1 sroberts on DSK5SPTVN1PROD with RULES Federal Register / Vol. 78, No. 191 / Wednesday, October 2, 2013 / Rules and Regulations 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, selfsustaining, and functioning components of their ecosystems. Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan identifies site-specific management actions that set a trigger for review of the five factors that control whether a species remains endangered or 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 draft and final recovery plans will be available on our Web site (http://www.fws.gov/ endangered) or from our Mississippi Ecological Services Field Office (see ADDRESSES). 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 occur primarily or solely 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) VerDate Mar<15>2010 15:59 Oct 01, 2013 Jkt 232001 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. Similar conservation actions are outlined in the two proposed CCAAs. When this species is listed (see DATES), funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for nonFederal landowners, the academic community, and nongovernmental organizations. In addition, under section 6 of the Act, the State of Alabama will 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. Please let us know if you are interested in participating in recovery efforts for the spring pygmy sunfish. 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. PO 00000 Frm 00129 Fmt 4700 Sfmt 4700 60781 Federal agency actions within the species’ habitat that may require consultation as described in the preceding paragraph include management and any other landscapealtering activities on Federal Lands administered by the U.S. Fish and Wildlife Service. Federal activities that may affect spring pygmy sunfish, include, but are not limited to: The carrying out, funding, 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; channeling or other stream geomorphic changes; discharge of contaminated or sediment-laden waters; wastewater facility development; and excessive groundwater and surface water extraction. 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 E:\FR\FM\02OCR1.SGM 02OCR1 60782 Federal Register / Vol. 78, No. 191 / Wednesday, October 2, 2013 / Rules and Regulations sroberts on DSK5SPTVN1PROD with RULES policy is to increase public awareness of the effect of a listing on proposed and ongoing activities within the range of the listed species. 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 the species’ habitat (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 lifesustaining 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 VerDate Mar<15>2010 15:59 Oct 01, 2013 Jkt 232001 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). Under section 4(d) of the Act, the Secretary has discretion to issue such regulations as she deems necessary and advisable to provide for the conservation of threatened species. Our implementing regulations (50 CFR 17.31) for threatened wildlife generally incorporate the prohibitions of section 9 of the Act for endangered wildlife, except when a ‘‘special rule’’ promulgated pursuant to section 4(d) of the Act has been issued with respect to a particular threatened species. In such a case, the general prohibitions in 50 CFR 17.31 would not apply to that species, and instead, the special rule would define the specific take prohibitions and exceptions that would apply for that particular threatened species, which we consider necessary and advisable to conserve the species. The Secretary also has the discretion to prohibit by regulation with respect to a threatened species any act prohibited by section 9(a)(1) of the Act. Exercising this discretion, which has been delegated to the Service by the Secretary, the Service has developed general prohibitions that are appropriate for most threatened species in 50 CFR 17.31 and exceptions to those prohibitions in 50 CFR 17.32. We are not promulgating a section 4(d) special rule at this time, and as a result, all of the section 9 prohibitions, including the ‘‘take’’ prohibitions, will apply to the spring pygmy sunfish. Rationale for a 60-Day Effective Date We have published a notice of availability in the Federal Register for public review and comment on the two proposed CCAAs, associated permit applications and draft environmental action statements. It is our intention to make a final determination on the proposed CCAAs before this rule becomes effective; however, we are not certain that this can be accomplished within 30 days after the issuance of this rule. Therefore, the effective date of the rule is 60 days from the publication date of this final rule (see DATES), rather than our typical 30 days, to provide adequate PO 00000 Frm 00130 Fmt 4700 Sfmt 4700 time for the public to review and comment on the two proposed CCAAs. Required Determinations National Environmental Policy Act We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (42 U.S.C. 4321 et seq.), need not be prepared in connection with listing a species as an endangered or threatened species under the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244). References Cited A complete list of all references cited in this rule is available on the Internet at http://www.regulations.gov or upon request from the Field Supervisor, Mississippi Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Authors The primary authors of this final rule are the staff members of the Mississippi Ecological Services Field Office. List of Subjects in 50 CFR Part 17 Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation. Regulation Promulgation Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as follows: PART 17—[AMENDED] 1. The authority citation for part 17 continues to read as follows: ■ Authority: 16 U.S.C. 1361–1407; 1531– 1544; 4201–4245, unless otherwise noted. 2. Amend § 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: ■ § 17.11 Endangered and threatened wildlife. * * * (h) * * * E:\FR\FM\02OCR1.SGM 02OCR1 * * 60783 Federal Register / Vol. 78, No. 191 / Wednesday, October 2, 2013 / Rules and Regulations Species Vertebrate population where endangered or threatened Historic range Common name Scientific name * * * * Status When listed * * * T * 827 * * Critical habitat Special rules * FISHES * Sunfish, spring pygmy. * Elassoma alabamae * * * * * * * U.S.A. (AL) ............. * Entire ...................... * * Dated: September 20, 2013. Rowan Gould, Acting Director, U.S. Fish and Wildlife Service. * [FR Doc. 2013–23726 Filed 10–1–13; 8:45 am] sroberts on DSK5SPTVN1PROD with RULES BILLING CODE 4310–55–P VerDate Mar<15>2010 17:42 Oct 01, 2013 Jkt 232001 PO 00000 Frm 00131 Fmt 4700 Sfmt 9990 E:\FR\FM\02OCR1.SGM 02OCR1 * NA NA. *

Agencies

[Federal Register Volume 78, Number 191 (Wednesday, October 2, 2013)]
[Rules and Regulations]
[Pages 60766-60783]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-23726]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[Docket No. FWS-R4-ES-2012-0068]
RIN 1018-AY19


Endangered and Threatened Wildlife and Plants; Threatened Species 
Status for Spring Pygmy Sunfish

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), determine 
threatened species status under the Endangered Species Act of 1973 
(Act), as amended, for the spring pygmy sunfish (Elassoma alabamae), 
which is found in Limestone County, Alabama. The effect of this 
regulation is to add this species to the List of Endangered and 
Threatened Wildlife and implement the Federal protections provided by 
the Act for this species.

DATES: This rule is effective December 2, 2013.

ADDRESSES: This final rule is available on the Internet at http://www.regulations.gov and at the Mississippi Ecological Services Field 
Office site. Comments and materials received, as well as supporting 
documentation used in the preparation of this rule, are available for 
public inspection at http://www.regulations.gov. All of the comments, 
materials, and documentation that we considered in this rulemaking are 
available by appointment, during normal business hours at: U.S. Fish 
and Wildlife Service, Mississippi Field Office, 6578 Dogwood View 
Parkway, Jackson, MS 39213; telephone 601-321-1122; facsimile (601-965-
4340).

FOR FURTHER INFORMATION CONTACT: Stephen Ricks, Field Supervisor, U.S. 
Fish and Wildlife Service, Mississippi Ecological Services Field Office 
(see ADDRESSES section). If you use a telecommunications device for the 
deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-
877-8339.

SUPPLEMENTARY INFORMATION:

Executive Summary

    Why we need to publish a rule. Under the Endangered Species Act 
(Act), a species warrants protection through listing if it is 
endangered or threatened throughout all or a significant portion of its 
range. Listing a species as an endangered or threatened species can 
only be completed by issuing a rule.

[[Page 60767]]

    This rule lists the spring pygmy sunfish as a threatened species. 
In a separate, future rulemaking, we will finalize the designation of 
critical habitat for the spring pygmy sunfish.
    The basis for our action. Under the Act, we can determine that a 
species is an endangered or threatened species based on any of five 
factors: (A) The present or threatened destruction, modification, or 
curtailment of its habitat or range; (B) overutilization for 
commercial, recreational, scientific, or educational purposes; (C) 
disease or predation; (D) the inadequacy of existing regulatory 
mechanisms; or (E) other natural or manmade factors affecting its 
continued existence. We have determined that the spring pygmy sunfish 
is threatened based on three of these five factors (Factors A, D, and 
E). Current threats to the species include ground and surface water 
withdrawal and impacts to water quality within the spring systems where 
this species currently occurs and historically occurred (Factor A). The 
species is also facing many potential threats in the foreseeable 
future. These include habitat modification in the form of planned urban 
and industrial development of land adjacent to spring pygmy sunfish 
habitat and the likely impacts to the spring system, including the 
surrounding aquifer recharge area. Increased urban and industrial 
development and associated secondary development and infrastructure can 
cause direct mortality as well as permanent loss and fragmentation of 
habitat (Factor A), which leads to isolated subpopulations, thereby 
impacting gene flow throughout the population (Factor E). Existing 
regulatory mechanisms are inadequate to reduce these threats (Factor 
D). However, conservation efforts that are currently being implemented 
through a candidate conservation agreement with assurances (CCAA), as 
well as additional conservation activities planned for the near future, 
reduce the impact of some of these threats. After carefully considering 
the current threats, current conservation activities, and future 
threats, we determined the spring pygmy sunfish meets the definition of 
a threatened species under the Act.
    Peer review and public comment. We sought comments from three 
independent specialists knowledgeable in spring pygmy sunfish biology, 
basic conservation biology, and hydrology/spring system ecology to 
ensure that our determination is based on scientifically sound data, 
assumptions, and analyses. We invited these peer reviewers to comment 
on our listing proposal. We also considered all comments and 
information we received during two public comment periods.

Previous Federal Actions

    Federal actions for the spring pygmy sunfish prior to October 2, 
2012, are outlined in our proposed listing and critical habitat rule 
(77 FR 60180), which was published on that date. Publication of the 
proposed rule opened a 60-day comment period, which closed on December 
3, 2012. On April 29, 2013 (78 FR 25033), we reopened the comment 
period for an additional 30 days, ending May 29, 2013. During this 
period, the public was invited to comment on the entire October 2, 
2012, proposed rule as well as the draft economic analysis (DEA) of the 
proposed critical habitat designation. We did not receive any requests 
for a public hearing. We will finalize the designation of critical 
habitat for the spring pygmy sunfish in the near future.

Background

Species Information

Taxonomy and Species Description
    The spring pygmy sunfish was discovered in 1937, but not described 
until 1993 (Mayden 1993, pp. 1-14). Genetic analysis by Quattro et al. 
(2001, p.1, pp. 27-226) confirmed the morphological diagnosis of the 
species by Mayden (1993, pp. 1-14) as valid. Sandel (2008, pp. 1-18; 
2012, entire) determined the species to be the most distinctive member 
of the family Elassomatidae and provided preliminary population genetic 
data for the species.
    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 and Mayden 2004, p. 614).
    A further description of the species is provided in the proposed 
rule (77 FR 60180; October 2, 2012).
Current Distribution
    The range of the spring pygmy sunfish is very restricted. The 
species currently occupies about 5.9 miles (mi) (9.5 kilometers (km)) 
and 1,435 acres (ac) (580.6 hectares (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, seeps, and wetlands, are 
collectively referred to as the Beaverdam Spring/Creek system. The 
Beaverdam Creek watershed is the least impacted groundwater-fed wetland 
in north Alabama as there are no other large springs in Lauderdale, 
Limestone, or Madison Counties that have not been developed for private 
or municipal use (Jandebeur 2012a, p. 1). 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, and 
has experienced the least human-induced disturbance. However, Sandel 
(2011, p. 6) has documented declines in all sites within the system.
Historical Distribution and Status
    The spring pygmy sunfish 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 (Boschung 
and Mayden 2004, p. 615; Jandebeur 2012b, p. 1). 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). Sampling efforts in the Pryor 
Springs complex between 1966 and 1979 indicated a sparse population of 
spring pygmy sunfish west of Highway 31. None has been reported east of 
Highway 31. The exact location of the original 1941 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 and Pulliam 1986, pp. 14-15). Reintroduction 
efforts continued into 1986 and 1987 (Mettee and Pulliam 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; Jandebeur 2012d, pp. 1-2). Fluker (in. litt. 2012) noted the species 
could still exist in Pryor Springs but at such low numbers as to not be 
detectable.

[[Page 60768]]

    The spring pygmy sunfish exhibits metapopulation structure within 
the Beaverdam Spring/Creek system (Sandel 2008, pp. 15-16; 2011, p. 8). 
A metapopulation is a group of individual populations that have some 
level of gene flow between them but are spatially isolated by 
unfavorable intervening habitat created naturally or anthropogenically 
(Akcakaya et al. 1999, pp. 183-184). With continued temporal isolation 
and lack of gene flow, some populations of the group may go extinct. 
However, if extinction occurs, there is a probability that the empty 
habitat patches will be recolonized by some members of the 
metapopulation (Levins 1968, pp. vi, 39-65; Levins 1970, pp. 77-107; 
Gotelli 1991, p. 768). For the spring pygmy sunfish, migration and 
continuity between spring pools is essential in maintaining the 
species' genetic diversity within the Beaverdam Spring/Creek system, 
and the species as a whole.
    Sandel (2008, pp. 15-16; 2011, p. 8) found that the spring pygmy 
sunfish metapopulation in Beaverdam Spring/Creek is composed of 
isolated populations within the spring pools and spring runs. These 
pools and runs are connected spatially and temporally with periods of 
isolation and connectivity that are dependent on the extent and 
composition of aquatic vegetation, water quality, water quantity, and 
other parameters such as unintentional fish barriers at road crossings 
(e.g., clogged pipe or culvert) (Drennen 2010, pers. observ.). The 
individual spring pygmy sunfish populations within the metapopulation 
are intermittently connected via migration and recolonization after 
local extinction events. Although no supporting data were provided, 
Jandebeur (2011b, pp. 1-13) presented an alternate hypothesis that 
these populations of spring pygmy sunfish may have evolved in relation 
to beaver ecology, and that during migration of spring pygmy sunfish 
from beaver pond habitats, the species may colonize or recolonize 
existing habitats downstream, even though individual subpopulations may 
be extirpated due to drought or other ecological issues.
Habitat
    The spring pygmy sunfish is a spring-associated (Warren 2004, p. 
185) and groundwater-dependent (Jandebeur 2011, pers. comm.) 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. Spring 
pygmy sunfish prefer clear to slightly stained spring water, occurring 
within spring heads (where cool water emerges from the ground), spring 
pools (water pool at spring head), spring runs (stream or channel 
downstream of spring pool), and associated spring-fed wetlands (Warren 
2004, pp. 184-185). The recharge area for Beaverdam Spring is about 1.7 
square miles (mi\2\) (1,088 ac) and extends from the western Beaverdam 
Creek watershed boundary, eastward near Oakland Spring Branch, north 
toward Huntsville Browns Ferry Road, and south to the bluff line where 
the spring discharges (Cook et al. 2013, p. 9). No contemporary water 
flow rates 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).
    In general, natural spring pool habitats are typically static, 
persisting without disruption for long periods, even during droughts, 
in the absence of water extraction. However, the Beaverdam Spring/Creek 
system contains three altered springheads (Moss, Horton, and Thorsen), 
and only one springhead (Beaverdam Spring) that can be considered a 
natural surface spring pool habitat. Over the last 50 years, Moss, 
Horton, and Thorsen Springs have all experienced some degree of 
anthropogenic disturbance (Sandel 2011, p. 1-11; Jandebeur 2012d, pp. 
1-22). This includes mechanical enlargement and water withdrawals that 
can cause excessive pool level fluctuations and be particularily 
damaging to the spring pygmy sunfish during times of drought. These 
springs seemed to have recovered biologically at some level; however, 
lower population numbers of the species are associated with these 
springs (Sandel 2011, p. 6). The long-term impacts on these springs' 
geological and hydrological functions from disturbance are not known. 
Beaverdam Spring pool, which is unaltered, has seasonal water levels 
consistent throughout the year (Jandebeur 2012a, pp. 1-16). Cook et al. 
(2013, p. 13) reported the discharge rates in Beaverdam Spring as 1.7 
to 4.5 cubic feet per second (cfs) (776 to 2,020 gallons per minute 
(gpm)) and suggested that this wide range of discharge may originate 
from a variety of sources including agricultural withdrawals, a lack of 
vegetation in the recharge area, or a function of the site-specific 
geology. During drought periods, subsurface water levels in Bobcat and 
Matthews Cave on Redstone Arsenal, about 8 mi (12.9 km) east of 
Beaverdam Spring/Creek watershed, are typically lower for longer 
periods of time compared to wetter years (Moser and Rheams 1992, pp. 6-
8; Rheams et al. 1992, pp. 7-20). No direct correlation between 
groundwater levels in nearby caves and wells and spring discharge rates 
or water levels in Beaverdam Spring has been determined. Cook et al. 
(2013, p. 14) found that withdrawal for the March 2012 base flow (the 
water in a stream that originates from groundwater seepage or springs 
and is not from rain runoff) from Beaverdam Spring was about 3.5 
percent (9.6 million gallons per day) of the total flow (base flow and 
stormwater) of Beaverdam Creek, indicating the current withdrawals have 
little effect on the discharge rate of Beaverdam Spring. However, 
effects of water withdrawal are more obvious in the other springheads, 
especially during drought (Sandel 2011, p. 6).
    The species is most abundant at the spring outflow or water 
emergence (spring head) from the ground and spring pool area (Sandel 
2009, p. 14), typically occupying areas with water depths from 5 to 40 
inches (in) (13 to 102 centimeters (cm)) and rarely in the upper 5 in 
(13 cm) of the water column. The spring pygmy sunfish prefers patches 
of dense filamentous submergent vegetation, including Ceratophyllum 
echinatum (spineless hornwort), Myriophyllum heterophyllum (two-leaf 
water milfoil), and Hydrilla verticillata (native hydrilla). Other 
important plant species for this sunfish include emergent species such 
as Sparganium spp. (bur reed), Polygonum spp. (smartweed), Nasturtium 
officinale (watercress), Juncus spp. (rush), and Carex spp. (sedges); 
and semi-emergent vegetation including Nuphar luteum (yellow pond 
lily), Utricularia spp. (bladderwort), and Callitriche spp. (water 
starwort) (Mayden 1993, p. 11; Jandebeur 1997, pp. 42-44; Sandel 2011, 
pp. 3-5, 9-11; Kuhajda in litt. 2012). The spring pygmy sunfish is also 
associated with a variety of other spring-dwelling species, including 
amphipods, isopods, spring salamanders, crayfish, and snails (Mayden 
1993, p. 11; Sandel 2011, pp. 11-12).
Life History
    The spring pygmy sunfish has low fecundity (reproductive capacity) 
indicating a species that is adapted to

[[Page 60769]]

and requires highly stable groundwater-dependent habitats and an 
ecological dependence upon unchanging habitats in early life stages 
(Rakes in litt. 2012). The species is short-lived (essentially an 
``annual'') and becomes shorter-lived and extremely vulnerable to 
population extirpation as water temperatures rise (Rakes in litt. 
2012). Adults reproduce from January to October. Spawning begins 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)) (Sandel 2007, 
p. 2; Mettee 2008, p. 36; Petty et al. 2011, p. 4). Spring pygmy 
sunfish produce about 65 eggs, and hatching occurs from April to 
September (Sandel 2004-2009, pers. observ.). 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). Compared to other pygmy sunfishes, spring 
pygmy sunfish have the highest average number of eggs per spawn, but 
the lowest percentage of egg survival, which increases the species' 
vulnerability (Mettee 1974, p. 38).

Summary of Comments and Recommendations

    In the proposed rule published on October 2, 2012 (77 FR 60180), we 
requested that all interested parties submit written comments on the 
proposal by December 3, 2012. We also contacted appropriate Federal and 
State agencies, scientific experts and organizations, and other 
interested parties and invited them to comment on the proposal. A 
newspaper notice inviting general public comment was published in the 
Huntsville Times on October 14, 2012. We did not receive any requests 
for a public hearing. On April 29, 2013, we published a notice (78 FR 
25033) reopening the comment period on the October 2, 2012, proposed 
rule (77 FR 60180), announcing the availability of our DEA on the 
proposed critical habitat designation, and requesting comments on both 
the proposed rule and the DEA. This comment period closed on May 29, 
2013.
    During the comment periods for the proposed rule, we received a 
total of 18 comments on the proposed listing of the spring pygmy 
sunfish and proposed designation of critical habitat. In this final 
rule, we address only the comments regarding the proposed listing of 
this species, and we will address comments related to critical habitat 
in the final critical habitat rule that will publish in the Federal 
Register in the near future. All comments we received either expressed 
an opinion on the proposed listing or provided additional background 
information on the species including its habitat, threats, and/or its 
conservation needs. Ten of the 18 commenters specifically commented on 
the species' proposed listing as threatened. Two expressed opposition 
to the listing, and the remaining eight supported the species' listing, 
with six of these eight recommending an endangered designation instead 
of the proposed threatened designation. Two commenters were affiliated 
with a State agency (Geological Survey of Alabama), and all remaining 
comments were received from nongovernmental organizations or 
individuals. All substantive information provided during both comment 
periods related to the listing decision has either been incorporated 
directly into this final determination or is addressed below.

Peer Review

    In accordance with our peer review policy published on July 1, 1994 
(59 FR 34270), we solicited expert opinion from three knowledgeable 
individuals with scientific expertise that included familiarity with 
the spring pygmy sunfish and its habitat, biological needs, and 
threats. We received responses from all three of the peer reviewers.
    We reviewed all comments we received from the peer reviewers for 
substantive issues and new information regarding the listing of the 
spring pygmy sunfish. The peer reviewers generally concurred with our 
methods and conclusions and provided additional information, 
clarifications, and suggestions to improve the final rule. Two of the 
three peer reviewers were in support of the listing, although they 
recommended that we list the species as endangered. The third peer 
reviewer provided additional information, clarification, and 
suggestions to improve the final rule and remarked about the difficulty 
in assessing the hydrology and groundwater issues in the area, but did 
not specifically comment on the species' proposed listing. Peer 
reviewer comments are addressed in the following summary and 
incorporated into the final rule as appropriate.

Peer Reviewer Comments

    This section focuses on comments from peer reviewers and our 
responses to them. However, we have also included other public comments 
in this section (referred to as ``other commenters'') if those comments 
were related in topic to peer reviewer comments.
    (1) Comment: Two of the three peer reviewers and two other 
commenters stated that the species should be listed as endangered and 
not as threatened. They stated that endangered status was more 
appropriate for this species since it was confined to a single 
population that is at risk of extirpation. They cited the establishment 
of the current CCAA as insufficient justification for the proposed 
threatened status due to threats to the species outside the boundaries 
of the CCAA from the projected growth of the Huntsville area. In 
addition, they noted that all protection afforded to the species 
through the CCAA could be nullified as the landowner can opt to 
terminate the CCAA with notice.
    Our Response: The determination to list the spring pygmy sunfish as 
threatened was based on the best available scientific and commercial 
data on its status, the existing and potential threats to the species, 
and current and proposed conservation measures through CCAAs (see 
Summary of Factors Affecting the Species and Determination sections, 
below). Though the spring pygmy sunfish is confined to a single 
population, the protection afforded to the species and its habitat 
through the established Belle Mina Farms CCAA ameliorates the current 
threats to the species to the point that threatened status is 
appropriate. The Belle Mina Farms CCAA provides protection for the 
largest population of the species within the springhead and spring pool 
of about 165 ac (66.8 ha) and 963 ac (390 ha) (88.5 percent) of the 
recharge area. The middle section of the species' range, which is 
downstream from Belle Mina Farms, is owned by two landowners who are 
currently working with the Service to protect and manage their section 
of habitat for the species through proposed CCAAs. These conservation 
actions will reduce the severity of certain threats to the species 
outlined under Factor A (see below) within the upper and middle 
portions of the Beaverdam Spring/Creek and Moss Spring sites. The 
remaining species' habitat in the lower reach of the Beaverdam Spring/
Creek system, though of lower quality, is federally owned and protected 
within the Wheeler National Wildlife Refuge (NWR). We acknowledge that 
large-scale residential and industrial development in association with 
the growth of the City of Huntsville could pose a serious future threat 
to the species and its habitat.
    The Belle Mina Farms CCAA includes conservation measures to 
minimize impacts to the species and its habitat

[[Page 60770]]

caused by livestock, chemical usage, stormwater runoff, deforestation, 
development, and groundwater removal (see specifics under Factor A 
discussion, below). Therefore, it reduces the immediacy of the threats 
to the species and its habitat to the point where the spring pygmy 
sunfish is not in danger of extinction (endangered). Rather, it is 
likely to become endangered throughout all or a significant portion of 
its range within the foreseeable future when considering the future 
threats it faces from potential residential, commercial, and industrial 
development in the vicinity and therefore, it meets the definition of a 
threatened species under the Act (16 U.S.C. 1531 et seq.). We 
acknowledge that landowners have the option to terminate CCAAs with 
notice; however, our assessment is based on the protection this 
agreement currently affords the species and its habitat.
    (2) Comment: One peer reviewer commented that the case for 
excessive groundwater usage was not documented sufficiently in the 
proposed rule and the cause for low spring water levels has not been 
demonstrated to be seasonally variable, the result of extraction, or a 
combination of both. He further stated that basing species' habitat 
vulnerability on general statements of groundwater occurrence, 
recharge, and movement should be better documented with local data and 
monitoring information if possible. Another individual commented that 
there were no data to support the claim that groundwater withdrawal had 
negatively affected the species.
    Our Response: We reviewed available hydrological information (Erman 
2002; Field and Sullivan 2003; Younger 2007; Likens 2009; Healy 2010) 
in our assessment of threats to the species; this information included 
local hydrological information such as The Geological Survey of 
Alabama's (GSA) studies of caves in the Tennessee River Valley area 
near the Beaverdam system (Moser and Rheams 1992, pp. 6-8; Rheams et 
al. 1992, pp. 7-20) and Cook et al.'s (2013) recent study of the 
recharge area of the Beaverdam Spring/Creek system. We have 
incorporated information from these studies into appropriate sections 
in this final rule.
    The effects of pumping or diversion of springs and its negative 
consequences to spring-dependent species, such as the spring pygmy 
sunfish, are well documented in the literature (e.g., Williams and 
Etnier 1982; Cooper 1993; Hubbs 1995; Kuhajda 2004; Likens 2009; see 
Summary of Factors Affecting the Species, Factor A). Sandel (in Kuhajda 
et al. 2009, pp. 16, 19) documented a negative relationship between 
excessive pumping activities and degraded habitat in Beaverdam Spring 
at Lowe's Ditch and in Horton and Thorsen springs. A 99-percent decline 
of the spring pygmy sunfish population was estimated at Thorsen Spring 
following water extraction and the resulting desiccation of vital 
aquatic vegetation (see Summary of Factors Affecting the Species). 
Information concerning the smaller springs within the system, i.e. 
Moss, Thorsen, and Horton, along with Pryor Spring, which is unoccupied 
by the species, indicates that groundwater and surface water 
extraction, along with drought, contributed to the destruction of the 
species' habitat (Sandel 2011, p. 6). Thus, based on the best 
scientific and commercial information available on spring systems and 
site-specific monitoring studies, we have determined that excessive 
groundwater extraction poses a current and future threat to the spring 
pygmy sunfish (see Summary of Factors Affecting the Species, Factor A). 
However, subsurface groundwater movement in this region of Alabama is 
quite complex, and more studies are needed. We agree that these 
additional studies will increase our understanding of the hydrological 
and biological dynamics of the spring system where the spring pygmy 
sunfish occurs.
    (3) Comment: One peer reviewer commented that potential threats 
from chemical contaminants may be somewhat overstated based on 
generalized watershed information taken from overview book sources. 
Another individual commented that there were no data to support the 
claim that pesticides and nitrification were threats to the species.
    Our Response: The best available scientific and commercial data, as 
presented in the Summary of Factors Affecting the Species section, on 
the prevalence of contaminants within the Beaverdam Spring/Creek 
watershed and their negative effects on aquatic organisms and 
specifically on the spring pygmy sunfish, indicate that contaminants 
have been a factor in the decline of the spring pygmy sunfish. Baseline 
contaminant trend information has been collected for decades within the 
Tennessee Valley surface and ground waters by the U.S. Geological 
Survey, GSA, and other sources documenting the general negative impacts 
of water quality contamination, whether from fertilizers or pesticides, 
on aquatic organisms. Specific information on the Lower Tennessee River 
Valley area concerning surface and groundwater contaminants, along with 
the susceptibility of the aquifers to surface contaminants (Bossong and 
Harris 1987; Hoos 1999; Kingsbury 1999; Hoos and Powell 2002; Kingsbury 
2003; Powell 2003), was used to characterize groundwater aquatic 
systems within the specific spring pygmy sunfish sites. Between 1999 to 
2001, 35 pesticides and volatile organic compounds were detected in 
wells and springs within the Lower Tennessee River Valley (Woodside et 
al. 2004, pp. 1-2). Within the Eastern Highland Rim, the Beaverdam 
Spring/Creek watershed was shown to have the highest annual crop 
harvest, the highest total annual nitrogen use, the second highest 
annual phosphorus use, and elevated pesticides in the groundwater 
(Kingsbury 2003, p. 20; National Water Quality Assessment Program 
(NAWQA) 2009a, b; Mooreland 2011, p. 2; Cook et al. 2013, pp. 17-20). 
The concentration of nitrate as nitrogen and total phosphorus found in 
Beaverdam Spring was 2.77 milligrams per liter (mg/L), and 0.061 mg/L 
respectively, which is four and 1.7 times above the upper limit for 
wildlife protection set by the State of Alabama (Cook et al. 2013, pp. 
17-19). Pesticides were likely the causative factor in the extirpation 
of the Pryor Springs population, which began its decline after the 
application of the pesticide 2,4-dicholorophenoxyactic acid (2,4-D) to 
that area in the 1940s (Jandebeur 2012c, pp. 1-18).
    (4) Comment: One peer reviewer commented that statements derived 
from general knowledge and field observation over short periods of time 
and presented as fact reveal a bias in the proposal about damage to 
(and status of) spring pygmy sunfish.
    Our Response: We thoroughly reviewed all available scientific and 
commercial data in preparing the proposed rule and in completion of 
this final rule. We sought and reviewed historical and recent 
publications and unpublished reports concerning the spring pygmy 
sunfish as well as literature concerning springs and threats to these 
systems. This included reliable unpublished reports, non-literature 
documentation, and personal communications with experts. We have 
incorporated the most current and historical scientific information 
available concerning the habitat and natural history of the species 
(see ``Species Information'' in Background section, above). Studies 
over the last decade have documented negative changes in the habitat 
and overall populations of the species (Sandel 2007, 2008, 2009, 2011; 
Jandebeur 2011a, 2012a). The proposed rule was reviewed by the public, 
which also included a peer review by three experts according

[[Page 60771]]

to our policy (see Peer Review section, above). The other two peer 
reviewers, while providing additional information on habitat, life 
history, and threats, agreed that our threat assessment supported our 
decision to list this species, though they stated endangered status was 
more appropriate (see Comment 1). In short, we based our decision on 
the best scientific and commercial data available, as required by 
section 4(b)(1) of the Act.
    (5) Comment: One peer reviewer commented that sampling may be 
inadequate relative to technique and method or insufficient in scope to 
adequately assess population size and distribution. Another individual 
stated that documented population declines were questionable and were a 
reflection of inadequate sampling methods.
    Our Response: Relative abundance of spring pygmy sunfish estimated 
by catch-per-unit-effort (CPUE), the method that was employed, is a 
standard metric in biological surveys and is an approved method by the 
American Fisheries Society for estimating fish abundance (Murphy and 
Willis 1996, pp. 158-159), as is comparing this information through 
time at various collection sites. The information gathered during the 
field work is of sufficient extent and duration to document the rarity 
of the spring pygmy sunfish and its population decline and adheres to 
the information standard in section 4(b)(1) of the Act, as the use of 
the best scientific and commercial data available.

Comments From States

    Section 4(i) of the Act states, ``the Secretary shall submit to the 
State agency a written justification for his failure to adopt 
regulations consistent with the agency's comments or petition.'' We 
received two comments from individuals who are employees of a State 
agency. One of these individuals was also a peer reviewer of the 
proposed rule (see Peer Reviewer Comments section, above). Both 
provided additional information on the species' habitat and threats, 
which has been incorporated into this final rule, and neither stated a 
position on the proposed listing of the spring pygmy sunfish as 
threatened.

Public Comments

General Comments Issue 1: Science

    (6) Comment: One individual commented that the listing of the 
spring pygmy sunfish is not supported by the best science and is not 
warranted. Service policy requires that peer-reviewed literature be 
considered scientifically superior. The Service based its proposed 
listing on information from the petition, which is scientifically 
unreliable since it consisted of unconfirmed information and personal 
observations. The Service should not base listing decision on potential 
threats that are pure speculation. Peer-reviewed literature and other 
data do not support a listing.
    Our Response: See our responses to Comments 1, 2, 3 and 4, above. 
Under the Act, we determine whether a species is endangered or 
threatened due to any of the five factors (see Summary of Factors 
Affecting the Species, below), and we are required to make listings 
determinations on the basis of the best available scientific and 
commercial data available (16 U.S.C. 1533(a)(1) and (b)(1)(A)). The 
Service reviews and uses information on the biology, ecology, 
distribution, abundance, status, and trends of species, as well as 
information on current and potential threats, from a wide variety of 
sources as part of our responsibility under the Act. Some of this 
information is anecdotal, some of it is oral, and some of it is found 
in written documents. These documents include status surveys, 
biological assessments, and other unpublished material (i.e., ``gray 
literature'') from State natural resource agencies and natural heritage 
programs, Tribal governments, other Federal agencies, consulting firms, 
contractors, and individuals associated with professional organizations 
and higher educational institutions. We also use published articles 
from juried (peer-reviewed) professional journals whenever available.
    All decisions are made on the basis of the best scientific and 
commercial data available and are subject to extensive internal review 
as well as external peer review by recognized authorities to help 
ensure that our decisions conform to contemporary scientific 
principles. We have incorporated the most current and historical 
scientific and commerical data available concerning the habitat and 
natural history of the species (see Background section, above). Our 
determination of threatened status for this species is supported by the 
information presented in our Summary of Factors Affecting the Species 
discussion, below, and complies with the Act's requirement to base our 
decision on the basis of the best scientific and commercial data 
available. We have also complied with our policy on peer review (59 FR 
34270) as discussed under the Peer Review section above.
    (7) Comment: One individual stated that our assertion that the 
spring pygmy sunfish occupies only 5 river miles of Beaverdam Creek is 
speculative and contradicted by prior research. It is unknown if the 
species has been extirpated from Pryor Springs, and based on previous 
surveys, Wheeler NWR contains numerous areas populated by the spring 
pygmy sunfish. Surveys to date have been limited to unaltered spring 
runs with filamentous, submergent vegetation. The habitat and range of 
spring pygmy sunfish is broader and more diverse, as there is 
documented evidence of sustained populations in areas of differing 
water qualities such as beaver dam impoundments, creek banks, and lake 
backwaters. Exploration of all potential habitats is needed to 
establish the range of the species and undertake any listing decision.
    Our Response: Our determination that the spring pygmy sunfish's 
range is restricted to approximately 6 miles of Beaverdam Creek is 
supported by the best scientific and commercial data available as 
required under section 4(b)(1) of the Act. This species was 
historically known from three independent tributaries of the Tennessee 
River: Cave Spring, Pryor Spring/Branch, and Beaverdam Spring. The Cave 
Spring population was extirpated in 1934, and the Pryor Spring/Branch 
System population was extirpated in the 1940s. Reintroduction efforts 
into Pryor Spring in the 1980s were ultimately unsuccessful, as the 
species has not been observed in this system since 2007 (see 
``Historical Distribution and Status'' in the Background section, 
above). All of these spring habitat localities shared similar 
biological and physical parameters (see ``Habitat'' in Background 
section, above). This type of habitat is rare today, as these systems 
were mostly developed to meet demand for public water supply and 
irrigation. In fact, Beaverdam Spring is the only remaining large 
spring in north Alabama that has not been similarly developed (see 
Summary of Factors Affecting the Species section, below). Extensive 
fish surveys within Limestone and Madison Counties in related spring 
systems with similar vegetation structure as in Beaverdam Spring, and 
also in different aquatic spring-related habitats, have not located any 
additional spring pygmy sunfish localities (Caldwell 1965; Armstrong 
1967; Jandebeur 1979; Mettee and Pulliam 1986; Etnier 1990; Shute 1994; 
Jones 1995; Larson 1995; Mayden et al. 1995; Jandebeur 1997, 2011a; 
Sandel 2008, 2009, 2011). Though the species has been found in some 
habitats that have been altered from their original natural condition,

[[Page 60772]]

such as a beaverdam, there is no evidence that these are sustaining 
populations. To the contrary, the latest data reported by Sandel (2011, 
p. 6), for collections within the spring pygmy sunfish's current range 
between 2005 to 2010, indicate declines in all known populations 
including Beaverdam Creek, and Moss, Horton, and Thorsen Springs. The 
spring pygmy sunfish was last documented to occur on the Wheeler NWR 
approximately 20 years ago in 1993; thus, we consider this area in the 
lower range of Beaverdam Spring/Creek system to be part of the 
historical range. Based on our review of the best available scientific 
and commerical data, including analysis of the species habitat and 
previous status surveys, the surveys for the species have been 
appropriate and have confirmed its rarity, vulnerability, and range.
    (8) Comment: One commenter postulated that mechanical disturbance 
and siltation actually benefit the spring pygmy sunfish. He stated that 
the spring pygmy sunfish tolerates and thrives where there has been 
substantial modification to the spring habitat through agricultural and 
animal husbandry practices as evidenced by its long-term coexistence 
with cattle.
    Our Response: There is no information or evidence to support the 
premise that the species thrives in habitat modified by livestock or in 
areas with siltation and disturbance. The best available scientific and 
commercial data indicate that habitat alteration has been a causative 
factor in the decline of the spring pygmy sunfish. The species is known 
in greatest numbers from the spring head of Beaverdam Spring/Creek, 
where there is no livestock impact and no evidence of problems with 
excessive sedimentation. The spring pygmy sunfish may be able to 
tolerate some degree of habitat and water quality modification for 
short periods of time and may be able to reestablish themselves given 
improved conditions. However, livestock impacts to aquatic habitat are 
well-documented in the scientific literature, and suspended sediments, 
which are stressors to aquatic organisms, are typically increased in 
aquatic habitats used by livestock. Excessive sediment directly impacts 
fish health and decreases water clarity, which reduces light 
penetration needed for plant growth and indirectly results in impacts 
to fish, and in particular, the spring pygmy sunfish's spawning and 
feeding sites (see Summary of Factors Affecting the Species, Factor A 
section).
    (9) Comment: One individual commented that there are no data to 
support a metapopulation hypothesis for the spring pygmy sunfish.
    Our Response: The best scientific and commercial data available 
support our conclusion that the spring pygmy sunfish exhibits 
metapopulation structure within the Beavedam Spring/Creek system. 
Studies by Sandel (2008, pp. 15-16; 2011, p. 8) found that the spring 
pygmy sunfish population in Beaverdam Spring/Creek is composed of 
isolated populations within the spring pools and spring runs, and that 
the individual spring pygmy sunfish populations are intermittently 
connected via migration and recolonization after local extinction 
events. This population structure is consistent with the definition of 
metapopulations (see ``Historical Distribution and Status'' in 
Background section, above).
    (10) Comment: One individual stated that the Service's assertion 
that the spring pygmy sunfish is a separate and distinct species is 
questionable.
    Our Response: We disagree. The commenter did not provide any data 
to support his statement. The best scientific and commercial data 
indicate that the spring pygmy sunfish is a distinct, well-described 
taxon. We are not aware of any disagreement within the scientific 
community concerning its taxonomic status (see ``Taxonomy and Species 
Description'' in Background section, above).
    (11) Comment: One individual stated that we characterized water 
withdrawal for irrigation usage incorrectly for the Beaverdam Spring 
system, and we should have used information that presents water 
quantity issues, withdrawal rates, water volume usage, and specific 
connectivity among the various water features of the spring system.
    Our Response: We agree that more detailed studies would contribute 
to a better understanding of water withdrawal usage in the Beaverdam 
Spring system. However, in accordance with the information standard 
under section 4(b)(1) of the Act, we used the best scientific and 
commercial data available in assessing water extraction usage in the 
Beaver Spring/Creek system. We gathered water extraction information 
from the Limestone County Water and Sewer Board, along with information 
from a recent initial assessment of the aquifer and recharge area by 
GSA (Cook et al. 2013, entire). As discussed in the Summary of Factors 
Affecting the Species section of this rule, commercial water withdrawal 
from the 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 2011, pers. comm.). 
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) 
(Hoos and Woodside 2001, p. 1; Kingsbury 2003, p. 2; Sandel 2007-2009, 
pers. comm.). Negative impacts to the spring pygmy sunfish from 
excessive ground water extraction are discussed in the Summary of 
Factors Affecting the Species section, below, and also in our response 
to Comment 2, above.

General Comments Issue 2: Procedural and Legal Issues

    (12) Comment: One individual commented that the Service must not 
only examine and evaluate the raw data but must also make those data 
available to others. Internal materials relied upon by the Service have 
not been made available for public review.
    Our Response: Complete lists of references, including unpublished 
information, cited in the proposed rule (77 FR 60180; October 2, 2012) 
and in this final rule are available on the Internet at http://www.regulations.gov at Docket No. FWS-R4-ES-2012-0068 and upon request 
from the Mississippi Ecological Services Field Office (see ADDRESSES, 
above). In addition, as stated in our proposed rule, all supporting 
documentation used in preparing the proposed rule was available upon 
request and for public inspection, by appointment, at the U.S. Fish and 
Wildlife Service, Mississippi Ecological Services Field Office. All 
supporting documentation used in our rulemakings is a matter of public 
record; however, the number of sources referenced is often voluminous. 
Therefore, it is not possible for us to post all information sources 
used on the Internet.
    (13) Comment: One individual commented that listing was unnecessary 
in light of the current and proposed CCAAs and that these agreements 
are more successful at protecting the species than listing. Threats to 
the species can be alleviated through less restrictive means such as 
the use of best management practices (BMPs).
    Our Response: We agree that CCAAs are a cooperative mechanism to 
manage and protect the spring pygmy sunfish. The CCAA (Belle Mina 
Farms) developed for the species identifies BMPs that adequately 
protect the species and its habitats from current land use practices 
within the areas enrolled in the CCAA. The two

[[Page 60773]]

proposed CCAAs also identify similar BMPs. However, the conservation 
actions in the current and proposed CCAAs do not remove the threats to 
the species and its habitat to the point that listing is not necessary, 
especially when considering probable and potential impacts from planned 
residential and industrial development. In the Summary of Factors 
Affecting the Species and Determination sections, below, we discuss our 
analysis of the threats to the species weighed against the benefits 
provided through the current and proposed CCAAs. The primary threat to 
the species is from habitat modification (Factor A), most notably the 
large-scale industrial and residential development planned adjacent to 
this species' habitat, which has the potential to impact the hydrology 
and other aspects of the spring system. The use of BMPs outlined in the 
CCAAs are important measures in conserving the spring pygmy sunfish, 
particularly considering the current agricultural land use within the 
watershed. However, when land use changes to industrialization and 
urbanization, as is likely in this area, the standard BMPs from the 
CCAAs are inadequate to address the complex issues such as aquifer 
recharge, stormwater management, and chemical transport in association 
with development. In addition, there may be activities associated with 
the increased development, such as roadways and utility (e.g., water, 
sewer, and electrical) corridors outside of the landowner's control, 
that have the potential to impact land enrolled in the current and 
proposed CCAAs. Therefore, the spring pygmy sunfish needs the 
protection afforded to federally listed species under sections 7 and 9 
of the Act to ensure its conservation.
    (14) Comment: The Service does not have authority to take action 
for a purely intrastate species such as the spring pygmy sunfish. It is 
questionable if the Federal government can regulate such a species 
under the Commerce Clause of the U.S. Constitution. An action listing 
the spring pygmy sunfish is beyond the powers afforded to the Service 
and Federal Government.
    Our Response: The constitutionality of the Act in authorizing the 
Services' protection of endangered and threatened species has 
consistently been upheld by the courts (e.g., GDF Realty Investments, 
Ltd. v. Norton, 326 F.3d 622 (5th Cir. 2003); Gibbs v. Babbitt, 214 
F.3d 483 (4th Cir. 2000); National Association of Homebuilders v. 
Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 524 U.S. 937 
(1998); Rancho Viejo v. Norton, No. 01-5373 (D.C. Cir. 2003); and 
United States v. Hill, 896 F. Supp. 1057 (D. Colo. 1995). All of these 
courts have held that regulation under the Act to protect species that 
live only in one State is within Congress' Commerce Clause power and 
that loss of animal diversity has a substantial effect on interstate 
commerce (National Ass'n of Home Builders, 130 F.3d at 1050-51; see 
Rancho Viejo, 323 F.3d at 310, n. 5). Thus, although the spring pygmy 
sunfish is currently known to occur only within the State of Alabama, 
the Service's application of the Act to add this species to the Federal 
List of Endangered and Threatened Wildlife is constitutional.

Summary of Changes From Proposed Rule

    In response to comments, we have incorporated additional 
information pertaining to this species' conservation, life history, and 
habitat as provided by the peer reviewers and others. Specifically, we 
added new information on the hydrology of the Beaverdam Spring/Creek 
watershed into the Background and Summary of Factors Affecting the 
Species sections of this rule. In addition, we have edited our threat 
discussion under the Summary of Factors Affecting the Species section 
and most notably added new information pertaining to the proposed 
industrialization of the Beaverdam Spring/Creek watershed under the 
Factor A discussion.

Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR 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 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; or (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.

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

    Increased human population growth in Limestone County of over 20 
percent between the 2000 and 2010 census (Hill in litt. 2013), and the 
accompanying demand for water could alter the Beaverdam Spring/Creek 
system and its recharge areas through increased water extraction 
(pumping), diversion, and retention (Erman 2002, p. 8; Cook et al. 
2013, pp. 33-34). 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). Within the spring pygmy sunfish range, the 
Beaverdam Spring pool area, which has the greatest concentration of 
spring pygmy sunfish, is the least disturbed of all springs in the 
system. Moss, Thorsen, and possibly Horton Springs, which have been 
altered in some manner over the last 60 plus years, were allowed to 
recover and stabilize; however, these springs support lower numbers of 
the species than Beaverdam Spring. The condition of Pryor Springs and 
spring run continued to deteriorate over time (Sandel 2008, pp. 1-31; 
2011, pp. 1-3, 1-11; Jandebeur 2012c, pp. 15-16; 2013, pp. 2-5) to the 
eventual demise of the species at this site in 2007.
Urban and Industrial Development
    The history of development of large springs does not inspire 
confidence that the Beaverdam Spring environs will be conserved as a 
natural ecosystem (Jandebeur 2012a, p. 22). Groundwater-fed habitat 
suitable for the spring pygmy sunfish was historically more prevalent 
across the Tennessee Valley region of north Alabama than today, as 
these systems were mostly developed to meet demand for public water 
supply and irrigation, as well as recreational parks (Jandebeur 2012a, 
p. 1). Except for Beaverdam Spring, there are no large springs 
remaining in Lauderdale, Limestone, or Madison County that have not 
been developed for private or municipal use (Jandebeur 2012a, p. 22).
    Urban development adjacent to the Beaverdam Spring/Creek system 
could fragment and directly impact suitable spring pygmy sunfish 
habitat by decreasing water quality and quantity, changing the aquatic 
vegetation structure, and 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

[[Page 60774]]

runoff (Younger 2007, p. 39), acute and chronic changes in water 
quality parameters such as decreased oxygen levels, increased 
temperature, concentrations of toxic heavy metals or other molecules 
(Cooper 1993, pp. 402-406; McGregor and O'Neil 2011, pp. 5-15; Cook et 
al. 2013, pp. 33-34), and increased water quantity and flow velocity 
(Field and Sullivan 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 and 
Sullivan 2003, pp. 326-333). Excessive sediment has been shown to wear 
away and suffocate periphyton (organisms that live attached to objects 
underwater), disrupt aquatic insect communities, and negatively impact 
fish growth, physiology, behavior, reproduction, and survival (Waters 
1995, pp. 109-118). Fish gills are delicate and easily damaged by fine 
sediment. As sediment accumulates in the gills, fish respond by 
excessively opening and closing their gills to try to remove the silt. 
If irritation continues, mucus is produced to protect the gill surface, 
which may impede the circulation of water over gills and hence 
interfere with respiration. Under extreme or prolonged exposure to 
sediments, fish may actually die due to physically damaging and 
clogging their gills (Berg 1982, pp. 177-195).
    The spring pygmy sunfish is currently facing threats from ongoing 
development and from planned large-scale residential and industrial 
projects within the vicinity of the Beaverdam Spring/Creek watershed 
(Bostick and Davis 2013, pers. comm.; Hill in litt. 2013). Sandel 
(2011, p. 11) observed declines in the species' population numbers and 
attributed it to sedimentation from two nearby construction activities: 
the construction of a new sewer line adjacent to the spring system and 
the ongoing construction of the Ashbury subdivision 2.3 mi (3.7 km) 
northeast of the species' habitat. The Ashbury subdivision, adjacent to 
Moores Branch and draining into the 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 area is adjacent to the Beaverdam 
Spring/Creek watershed and consists of four major industrial sites 
encompassing approximately 4,000 ac (1,619 ha) (Bostick and Davis 2013, 
pers. comm.). The Huntsville Master Plan would cover much of the known 
recharge area with residential, commercial, and industrial development 
(Jandebeur 2012a, p. 20). The restricted-use area for subdivision 
development, within the City of Huntsville, is a minimum of 25 ft (7.6 
m) 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; Hill in litt. 2013). 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 (Williams and Etnier 
1982, pp. 11-18; Hubbs 1995, pp. 989-990; Kuhajda 2004, pp. 59-63). The 
incremental and cumulative groundwater recharge effects on the habitat 
of the spring pygmy sunfish may not become evident for years (Cooper 
1993, pp. 402-406; 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; Hill in litt. 2013), along with expanding urbanization and 
industrialization (Sasaki 2011, pp. 1-83). The potential over-
development of groundwater resources, especially in the recharge areas 
for Beaverdam Spring, Moss Spring, and the Beaverdam Creek, raises 
concerns about the potential loss of groundwater-fed habitat essential 
to the only remaining population of the species (Jandebeur 2012a, p. 
20-21).
    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; Cook et al. 2013, pp. 3-7). Groundwater in the County is 
ultimately derived from percolation of precipitation (McMaster and 
Harris, Jr. 1963, p. 17; Cook et al. 2013, pp. 3-13) 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 (Younger 2007, pp. 117-121; Healy 2010, pp. 70-
72). Change in land use from rural to urban/industrial (Bostick and 
Davis 2013, pers. comm.) within the Beaverdam Spring/Creek area could 
be detrimental to the spring pygmy sunfish due to negative 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 (Cook et al. 2013, pp. 33-34). This 
may be coupled with a subsequent reduction in precipitation 
infiltrating through the soil surface to the aquifer, which will 
ultimately reduce spring base flow (Field and Sullivan 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 
2007-2011, pers. observ.; NAWQA 2009a,b; Sandel 2011, pp. 3-6) because 
of the reduction of the water levels in the aquifer and resultant 
decreased spring outflow (Williams and Etnier 1982, pp. 11-18; Hubbs 
1995, pp. 989-990; Kuhajda 2004, pp. 59-63; Cook 2011, pers. comm.). 
Sandel (in Kuhajda et al. 2009, pp. 16, 19; 2011, pp. 3-6) documented a 
relationship between pumping activities in Beaverdam Spring (Lowes 
Ditch) area, and Horton and Thorsen Springs, and degraded spring pygmy 
sunfish habitat. Even though Moss Spring has never been directly pumped 
(Sewell in litt. 2013), the water extraction of the Beaverdam Spring 
area, specifically at Lowes Ditch, may have impacted Moss Spring water 
levels

[[Page 60775]]

(Sandel 2011, pp. 6) and aquatic vegetation (Drennen pers observ. 
2011). In Thorsen Spring, during 2007, water was extracted to a level 
that, in conjunction with the drought, destroyed vital aquatic 
vegetation and decreased the abundance of the spring pygmy sunfish by 
99 percent (Sandel 2004-2009, pers. observ.; Sandel 2011, p. 6). The 
proximity of the spring pygmy sunfish's habitat to agricultural land 
throughout its range makes it vulnerable to drought and associated 
impacts due to the extraction of groundwater and surface water for 
agricultural uses (Cooper 1993, pp. 402-406). Sandel (in Kuhajda et al. 
2009, pp.16, 19) roughly 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 noted in the field 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 2011, pers. comm.). 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) (Hoos and Woodside 2001, p. 
1; Kingsbury 2003, p. 2; Hutson et al. 2005; Sandel 2007-2009, pers. 
comm.). 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 may adversely affect the spring pygmy 
sunfish.
    In several large springs in the United States, groundwater 
extraction for public consumption and agricultural use has impacted 
federally 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) (U.S. Fish and Wildlife Service 1996, p. 
19). The whiteline topminnow (Fundulus albolineatus) (Gilbert 1891), 
once endemic to Big Spring and Spring Creek, in Huntsville, Madison 
County, was determined to be extinct in 1971, due to over-pumping, 
cementing-over of streambank vegetation, and impoundment of the spring 
pool (Williams and Etnier 1982, pp. 10-11). Severe or excessive water 
extraction, along with drought in spring pygmy sunfish habitat, to the 
point that normal water levels may drop for a sustained time period, 
can cause desiccation, reduction, or change of essential aquatic 
vegetation necessary for the survival of the species (Sandel 2011, p. 
6). A reduction in water quantity also exacerbates the concentration of 
pollutants that may have both an acute and a chronic negative impact on 
the species and its habitat (Cooper 1993, pp. 402-406).
    The effects of water extraction on stream flow, in combination with 
drought, may be greater due to the overall decrease in water quantity 
in the stream. Decreased water levels, following pumping from the 
spring pool, correspond to decreased aquatic vegetation in the system. 
Less water quantity increases the dessication 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 of the water, as demonstrated by spring pygmy sunfish 
habitat impacts and subsequent population declines in Horton and 
Thorsen Springs (Sandel 2004-2009. pers. observ.; 2011, pp. 3-6). 
Duncan et al. (2010, pp. 18-20) showed a correlatation between the 
abundance of the endangered watercress darter (Etheostoma nuchale) in a 
similar spring system in Jefferson County, Alabama, to the abundance 
and diversity of aquatic vegetation.
Water Quality
    The historical intensive use of chemicals within the Lower 
Tennessee River Valley in Alabama, including agricultural areas close 
to the Beaverdam Spring/Creek watershed and the recharge areas, may be 
a potential threat to the species. Contaminant transport occurring with 
sediment in surface stormwater runoff, or resulting from agricultural 
runoff, can enter the spring pool and spring run directly without first 
entering the groundwater. During 1999-2001, 35 pesticides and volatile 
organic compounds such as tetrachloroethylene and trichloroethylene 
were detected in wells and springs within the Lower Tennessee River 
Valley (Woodside et al. 2004. pp. 1-2). Increased toxic concentrations 
of herbicides coupled with increased desiccation of aquatic vegetation 
due to drought (Jandebeur 2012c, pp. 1-6, 13) may have contributed to 
the demise of the Pryor Spring/Branch population of the spring pygmy 
sunfish.
    The ongoing, intensive agricultural practices and proposed 
urbanization and industrialization plans (Bostick and Davis 2013, pers. 
comm.; Hill in litt. 2013) within the immediate area of the watershed 
threaten to contaminate the groundwater in the aquifer supplying the 
Beaverdam Spring/Creek system (Healy 2010, p. 70). Along with volatile 
organic compounds, general-use pesticides applied along road and power 
line rights-of-way in urban areas to control woody vegetation and weeds 
(tebuthiuron and prometon) were detected in wells in Lower Tennessee 
River Valley aquifers between 1999-2001 (Woodside et al. 2004, pp. 16-
20). Transportation of contaminants to the aquifer by recharge water 
can be slow and steady or highly episodic over time (Healy 2010, p. 
75).
    Fertilizers and pesticides are transported to the aquifer by 
recharge, or into surface stormwater routes, where they eventually 
enter springs and are a threat to the survival of fishes found there 
(Carson 1962, pp. 41-43; U.S. Fish and Wildlife Service 1996, pp. 35-
36; Hoffman et al. 2003, p. 1248). 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 (Kingsbury 2003, p. 20; 
NAWQA 2009a,b; Mooreland 2011, p. 2; Cook et al. 2013, pp. 17-18). Both 
the historical 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. Natural background levels of phosphorus in groundwater are 
normally low (Wetzel 1983, p. 281; Cook et al. 2013, pp. 18). However,

[[Page 60776]]

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 housing and industrial development neighboring 
spring pygmy sunfish habitat is likely to increase phosphorus and 
nitrogen levels in the future. Surface water contamination sources are 
typically nitrate (from fertilizer and animal waste), bacteria, and 
urban runoff (runoff from yards and asphalt that has heavy metals and 
pesticides/herbicides). Ground water in karst areas is impacted by 
surface water with these same contaminants (Tennessee Department of 
Environment and Conservation 2012, p. 9; Cook et al. 2013, pp. 17-19). 
The concentration of nitrate as nitrogen and total phosphorus found in 
Beaverdam Spring was 2.77 mg/L, and 0.061 mg/L respectively, four and 
1.7 times above the upper limit for wildlife protection (Cook et al. 
2013, pp. 17-19). McGregor et al. (2008, pp. 5-20) found that increased 
urbanization around Matthews and Bobcat Caves, about 8 mi (12.9 km) 
east of Beaverdam Creek watershed, will likely affect the ground water 
and population abundance of the federally endangered Alabama cave 
shrimp (Palaemonias alabamae).
    Specific aquatic plants, which the spring pygmy sunfish uses for 
spawning, shelter, and foraging, are also impacted by indiscriminate 
use of chemicals (Sandel 2011, pp. 1-5, 8-9; Jandebeur 2012c, p. 2). 
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 2012d, p. 1-10). 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 
2012d, 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, undated, pp. 1-3).
    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 (Sada et al. 2001, pp. 
14-16; Erman 2002, p. 8). 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 (NAWQA 2009a,b; Sandel 2011, pp. 1-6, 8-9; 
Jandebeur 2012a, p. 2).
    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 NWR, which is spring pygmy sunfish habitat 
and part of the Beaverdam Spring/Creek system, highlights the need for 
careful management of spring habitats (Hurt 2012, pers. comm.). 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 of Its Range
    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 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 ac (1,295 ha) 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. It also includes most of the spring recharge area (Cook et al. 
2013, p. 44). 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

[[Page 60777]]

the near term and also minimize any incidental take of the species that 
might occur as a result of conducting other covered activities now that 
we are listing the species under the Act. 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 Springs. 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. These actions will 
minimize impacts and help to maintain groundwater recharge of the 
aquifer and adequate spring flow. New information received from the GSA 
(Cook et al. 2013, p. 3) identified the recharge area of the Beaverdam 
Spring, which is about 1,088 ac (440.3 ha) and described as wooded 
upland and agricultural fields. The majority (about 88.5 percent) of 
the delineated recharge area is within the enacted CCAA as enrolled 
lands. This CCAA and corresponding conservation measures that occur 
within the majority of the recharge area (maintain status quo land use 
as agriculture) will protect the groundwater and spring system on the 
enrolled land (within Belle Mina Farms, Ltd.). The spring pygmy sunfish 
inhabits the designated protected area within the CCAA. The species 
depends on the clean water from the recharge area within the enrolled 
lands. There is longstanding agricultural usage by Bella Mina Farms, 
including cattle and irrigated cropland operations. Since 1983, Bella 
Mina Farms has been cooperating with the Service in conserving and 
maintaining the integrity of species' habitat in the Beaverdam Spring/
Creek system. Bella Mina Farms has created and maintained a buffer zone 
around the Moss Spring pond population of the spring pygmy sunfish and 
managed cattle consistent with current grazing research, BMPs, and the 
spring pygmy sunfish's ecology.
    Through the CCAA, Bella Mina Farms, Ltd., will continue to 
implement the existing conservation efforts on the enrolled land, as 
well as implement long-term strategies to protect the spring pygmy 
sunfish and its habitat within the protected area. According to the 
CCAA, if there is a 15-percent decline in the population of the 
species, the Service may propose additional water use management 
practices within the enrolled land to maintain the status quo of 
historical water usage within the protected area. We have provided 
technical assistance to the landowners concerning conservation measures 
and BMPs for the surface portion of the delineated recharge area. The 
Land Trust will conduct monitoring on the progress of the conservation 
actions and annual habitat analyses. Initial planning for species' 
population and habitat monitoring has begun.
    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 
(see discussion above) within the upper portion of the Beaverdam 
Spring/Creek and Moss Spring sites, which encompasses the upper 24 
percent of occupied habitat in the Beaverdam Spring/Creek system. 
Presently there is no active protection for the 19 percent of the 
species' habitat within the middle reach of the Beaverdam Spring/Creek 
system. However, since early 2012, the Service has been working with 
two landowners to protect and manage this area for the spring pygmy 
sunfish, and we are currently in the process of negotiating CCAAs with 
these landowners and preparing them for public review and comment. The 
lower portion of the species' habitat (57 percent) is federally owned 
and protected, though it is considered lower quality habitat.
    Despite these efforts, the large-scale development planned adjacent 
to this species' habitat and outside the boundaries of the land 
enrolled in the current CCAA and the land potentially enrolled in the 
two proposed CCAAs continues to pose a significant future threat to the 
spring pygmy sunfish and its habitat. Furthermore, since the Belle Mina 
Farms' CCAA has been just recently executed, 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, and fertilizers) within the 
spring pygmy sunfish's habitat poses a threat to the species' survival. 
Ongoing 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 likely 
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 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. Additional 
conservation measures being pursued with key landowners and other 
stakeholders would also aid in reducing these threats to the species, 
but likewise, not to the level that water quantity and quality 
degradation would cease to be threats to the species.

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

    The spring pygmy sunfish is not a commercially valuable species.

[[Page 60778]]

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 2012d, p. 14); 
however, the overall impact of collection on the spring pygmy sunfish 
population is unknown (Jandebeur 2012d, p. 14). The localized 
distribution and small size of known populations render 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 conclude 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

    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 piscivorus (fish-
eating) birds. It is possible that predation increases when fish are 
concentrated in smaller areas when groundwater is depleted through 
water extraction and drought. However, we have no evidence of any 
specific declines in the spring pygmy sunfish due to predation.
    Therefore, we conclude that the best scientific and commercial data 
available indicate, at the present time, that neither disease nor 
predation is a threat 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 (CWA; 33 U.S.C. 1251 et seq.), 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 CWA's section 303(d) List of Impaired Water Bodies, 
States are required under the CWA 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 CWA. 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 and U.S. Forest Service 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). Thus, 
water use restrictions under common law (Chapman and U.S. Forest 
Service 2005, p. 10) provide minimal overall protection for the 
species.
    Limited protection is provided to the Beaverdam Spring/Creek 
watershed during any construction in the area from Limestone County 
construction regulations (http://www.limestonecounty-al.gov/PDFfiles/Engineering/LimestoneCountySDRegs-Complete.pdf). Specifically, the 
regulations state that fill material may not be used to raise land in a 
floodway that restricts the flow of water and increases flood heights, 
nor can land within a designated floodway be platted for residential 
occupancy or building sites (Limestone County, Alabama, Subdivision 
Regulations section 5-3-11(6)32).
Summary of Factor D
    The spring pygmy sunfish and its habitat are afforded limited 
protection from surface water quality and habitat degradation under 
Federal, State, and County regulations. Notwithstanding this limited 
protection, large volumes of groundwater and surface water are 
continually extracted, and these extractions may eventually threaten 
the aquifer that supplies water to spring pygmy sunfish habitat. 
Degradation of habitat within the current range of this species 
continues despite the protections afforded by these existing laws. 
Therefore, based on the best scientific and commercial data available, 
we conclude that existing regulatory mechanisms are inadequate to 
reduce or eliminate the threats to the 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 desired 
aquatic vegetation, water quality through flushing and diluting 
pollutants and increasing water quantity, and 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 and for the 
necessary aquatic

[[Page 60779]]

vegetation needed by the species. 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 2008, pp. 2-4, 13; 2011, pp. 3-6) and reduced the desired 
vegetation necessary for the species' survival and recovery. 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 (Burkhead et al. 1997, pp. 397-399; 
Sandel 2011, pp. 8-10). The Tuscumbia darter (E. tuscumbia), a species 
found in the Beaverdam Creek/Spring system that also exhibits 
metapopulation dynamics, has been impacted by fragmentation and 
cessation of inter-spring migration pathways, similar to the spring 
pygmy sunfish (Fluker et al. 2007, pp. 6-8). Impoundments (Pickwick 
Reservoir) now block both species' migration pathways, and isolated 
populations have experienced genetic bottlenecks (the genetic variation 
within a population and the potential to adapt to a changing 
environment decrease) (Fluker et al. 2007, pp. 6-8).
Climate Change
    Our analyses under the Act include consideration of ongoing and 
projected changes in climate. The terms ``climate'' and ``climate 
change'' are defined by the Intergovernmental Panel on Climate Change 
(IPCC). The term ``climate'' refers to the mean and variability of 
different types of weather conditions over time, with 30 years being a 
typical period for such measurements, although shorter or longer 
periods also may be used (IPCC 2007, p. 78). The term ``climate 
change'' thus refers to a change in the mean or variability of one or 
more measures of climate (e.g., temperature or precipitation) that 
persists for an extended period, typically decades or longer, whether 
the change is due to natural variability, human activity, or both (IPCC 
2007, p. 78).
    Scientific measurements spanning several decades demonstrate that 
changes in climate are occurring, and that the rate of change has been 
faster since the 1950s. Examples include warming of the global climate 
system, and substantial increases in precipitation in some regions of 
the world and decreases in other regions (for these and other examples, 
see IPCC 2007, p. 30; Solomon et al. 2007, pp. 35-54, 82-85).
    Scientists use a variety of climate models, which include 
consideration of natural processes and variability, as well as various 
scenarios of potential levels and timing of greenhouse gas (GHG) 
emissions, to evaluate the causes of changes already observed and to 
project future changes in temperature and other climate conditions 
(e.g., Meehl et al. 2007, entire; Ganguly et al. 2009, pp. 11555, 
15558; Prinn et al. 2011, pp. 527, 529). Although projections of the 
magnitude and rate of warming differ after about 2030, the overall 
trajectory of all the projections is one of increased global warming 
through the end of this century, even for the projections based on 
scenarios that assume that GHG emissions will stabilize or decline. 
Thus, there is strong scientific support for projections that warming 
will continue through the 21st century, and that the magnitude and rate 
of change will be influenced substantially by the extent of GHG 
emissions (IPCC 2007, pp. 44-45; Meehl et al. 2007, pp. 760-764 and 
797-811; Ganguly et al. 2009, pp. 15555-15558; Prinn et al. 2011, pp. 
527, 529).
    Various changes in climate may have direct or indirect effects on 
species. These effects may be positive, neutral, or negative, and they 
may change over time, depending on the species and other relevant 
considerations, such as interactions of climate with other variables 
(e.g., habitat fragmentation) (IPCC 2007, pp. 8-14, 18-19).
    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 (both groundwater and 
surface water) during drought periods exacerbated damage to the spring 
pygmy sunfish and its habitat (Sandel 2009, p. 15). Even though 
aquifers in the region are not depleted but are sometimes seasonally 
low, especially during drought periods, drought has affected Beaverdam 
Spring/Creek since records were kept. The 1954 drought was more extreme 
than the 2007 drought (USGS Water-Supply Paper 2375, pp. 163-170, 
http://md.water.usgs.gov/publications/wsp-2375/al; Seager et al. 2009, 
pp. 5042-5043). Monthly normal temperatures for 1981-2010 show an 
increase by 1.8[emsp14][deg]F and precipitation has decreased by 3.17 
in per year (National Weather Service Forecast Office, Huntsville, 
Alabama 2011, http://www.srh.noaa.gov/hun).
    Long-term droughts impact groundwater by increasing groundwater 
extraction for public consumption and agriculture, which in turn do not 
replenish surface waters (Likens 2009, p. 91). The assessment of long-
term impacts of projected changes in climate, population, and land use 
and land cover on regional water resources is critical to sustainable 
development, especially in the southeastern United States (Sun et al. 
2008, pp. 1141-1157). Across the southern United States, changes in 
climate had the greatest impacts on water stress, followed by 
population, and land use (Sun et al. 2008, pp. 1141-1157). The 
prolonged drought within northern Alabama during 2006 to 2008 was 
exceptional (Jandebeur 2012d, p. 13), and along with the severe drought 
of 1950 to 1963 (Jandebeur 2012d, p. 13), may have contributed to the 
demise of the Pryor Spring/Branch population of the spring pygmy 
sunfish in 2008, 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 Affecting Its Continued Existence
    The signed CCAA with Belle Mina Farms, Ltd. and the two proposed 
CCAAs, will likely reduce some of the threats to groundwater caused by 
climate change by minimizing impacts and helping to maintain 
groundwater recharge of the aquifer, protecting surface water flow, and 
limiting groundwater extraction. Under the signed CCAA, the Service 
will provide technical assistance and groundwater management advice. 
Additionally, adaptive management measures of this CCAA concern 
groundwater usage, including pumping from the aquifer and avoidance of 
temporary or permanent groundwater removal installations. Also under 
this CCAA, the landowners will not engage in practices, such as 
pesticide and herbicide use, stock farm ponds, and aquaculture, within 
the designated protected areas that may disturb water quality during 
low water levels associated with drought periods. Similar conservation 
measures are outlined in the two proposed CCAAs. The conservation 
measures in the signed and proposed CCAAs will help

[[Page 60780]]

protect the species on these properties in the near term and also 
minimize any incidental take of the species that might occur as a 
result of conducting other covered activities now that we are listing 
the species under the Act. However, because of anthropogenic factors 
such as urbanization or intensive agriculture, these conservation 
measures may be inadequate during drought periods caused by climate 
change or other natural phenomena.
Summary of Factor E
    Habitat fragmentation and its resulting effects on gene flow and 
potential demographic impacts within the population is a substantial 
threat to the spring pygmy sunfish. Increasing drought associated with 
climate change affects groundwater budgets (inflow and outflow) by 
influencing the rates and distribution of recharge of the aquifer, 
affects human demands for groundwater and surface water, and affects 
plant transpiration from shallow groundwater reserves. Based on the 
best available scientific and commercial data, we conclude that the 
spring pygmy sunfish faces threats from other natural or manmade 
factors affecting its continued existence. These threats continue, even 
though they are possibly lessened by the beneficial effects of the 
signed CCAA and the two proposed CCAAs.

Determination

    We have carefully assessed the best scientific and commercial data 
available regarding the past, present, and future threats faced to the 
spring pygmy sunfish. The identified threats to the spring pygmy 
sunfish fall under Factors A, D, and E, as described in more detail in 
the Summary of Factors Affecting the Species section, above. Habitat 
modification (Factor A) is the primary threat to the species. This is 
due to ongoing threats associated with ground and surface water 
withdrawal and water quality within the spring systems where this 
species currently occurs and historically occurred. In the future, 
these current threats will likely be coupled with impacts from planned 
urban and industrial development of land adjacent to spring pygmy 
sunfish habitat and the resultant impacts to the spring system and 
surrounding aquifer recharge area. We find that this planned increase 
in urban and industrial development and associated infrastructure, 
along with the potential unsustainable use of the area, is a threat to 
the spring pygmy sunfish, with the potential to exacerbate direct 
mortality as well as permanent loss, fragmentation, or alteration of 
its habitat. The degradation of habitat throughout the species' range 
continues 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) that affects the spring pygmy 
sunfish's continued existence. These threats are rangewide and expected 
to increase in the future.
    The established Belle Mina Farms CCAA provides a measure of 
protection for the species in the upper reach of the population (24 
percent of species' occupied habitat), with the implementation of 
conservation measures that increase or preserve water quantity, reduce 
water quality degradation, and prohibit any potentially damaging land 
use actions in that area (Factor A). In addition, a portion of the 
recharge area for the Beaverdam Spring/Creek is provided a measure of 
protection from impervious substrate and excessive storm water runoff 
under this CCAA since the 1,011 ac of enrolled lands are to be 
maintained in their present condition, which is mostly agriculture. 
Currently, conservation measures or protection extends to the portion 
of the species' habitat currently enrolled in the CCAA (24 percent) and 
to the lower 57 percent of the habitat in Federal ownership within the 
Wheeler NWR (although habitat here is of poorer quality). The current 
CCAA and Federal ownership of a portion of the habitat reduce many of 
the threats (under Factors A and E) within the immediate core of the 
species' current range; however, these protections are not able to 
ameliorate all of the threats to the species and its habitat, most 
notably impacts associated with the large-scale industrial and 
residential development planned in the area, which has potential to 
impact the hydrology and water quality of the spring system.
    We note that the two proposed CCAAs, if finalized, would provide 
additional conservation benefit to the species in the middle portion of 
its range. However, we have determined that the additional conservation 
actions in the proposed CCAAs do not remove the threats to the species 
and its habitat to the point that listing is not necessary, especially 
when considering probable and potential impacts from planned 
residential and industrial development (Factor A). Therefore, the 
possible final approval of the proposed CCAAs following the public 
comment period would not change our determination to list the spring 
pygmy sunfish as a threatened species.
    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 within the foreseeable future throughout all or a 
significant portion of its range. We find that the spring pygmy sunfish 
is likely to become endangered throughout all or a significant portion 
of its range within the foreseeable future, based on the immediacy, 
severity, and scope of the ongoing threats, expected future threats, 
and taking into considerations the protections afforded to the species 
by the Belle Mina Farms CCAA. Therefore, on the basis of the best 
available scientific and commercial data, we are listing the spring 
pygmy sunfish as threatened in accordance with sections 3(20) and 
4(a)(1) of the Act. We find that endangered species status is not 
appropriate for the spring pygmy sunfish because: (1) Protections 
afforded by the CCAA help reduce some of the current threats to the 
species; and (2) many of the threats facing the species from planned 
industrial and residential development are likely to occur in the 
future. Therefore, the spring pygmy sunfish is not in danger of 
extinction.
    Under the Act and our implementing regulations, a species may 
warrant listing if it is endangered or threatened throughout all or a 
significant portion of its range. The threats to the survival of the 
species occur throughout the species' range and are not restricted to 
any particular significant portion of that range. Accordingly, our 
assessment and determination applies to the species throughout its 
entire range.

Available Conservation Measures

    Conservation measures provided to species listed as endangered or 
threatened species under the Act include recognition, recovery actions, 
requirements for Federal protection, and prohibitions against certain 
practices. Recognition through listing results in public awareness and 
conservation 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 required by Federal agencies and the 
prohibitions against certain activities are discussed, in part, 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

[[Page 60781]]

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 and preparation of a draft and final 
recovery plan. The recovery outline guides the immediate implementation 
of urgent recovery actions and describes the process to be used to 
develop a recovery plan. Revisions of the plan may be done to address 
continuing or new threats to the species, as new substantive 
information becomes available. The recovery plan identifies site-
specific management actions that set a trigger for review of the five 
factors that control whether a species remains endangered or 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 draft and final recovery plans will be available on our 
Web site (http://www.fws.gov/endangered) or from our Mississippi 
Ecological Services Field Office (see ADDRESSES).
    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 occur primarily or solely 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. Similar conservation actions are 
outlined in the two proposed CCAAs.
    When this species is listed (see DATES), funding for recovery 
actions will be 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 will 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.
    Please let us know if you are interested in participating in 
recovery efforts for the spring pygmy sunfish. 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 
consultation as described in the preceding paragraph include management 
and any other landscape-altering activities on Federal Lands 
administered by the U.S. Fish and Wildlife Service. Federal activities 
that may affect spring pygmy sunfish, include, but are not limited to: 
The carrying out, funding, 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; channeling or other stream 
geomorphic changes; discharge of contaminated or sediment-laden waters; 
wastewater facility development; and excessive groundwater and surface 
water extraction.
    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

[[Page 60782]]

policy is to increase public awareness of the effect of a listing on 
proposed and ongoing activities within the range of the listed species. 
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 the species' habitat 
(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).
    Under section 4(d) of the Act, the Secretary has discretion to 
issue such regulations as she deems necessary and advisable to provide 
for the conservation of threatened species. Our implementing 
regulations (50 CFR 17.31) for threatened wildlife generally 
incorporate the prohibitions of section 9 of the Act for endangered 
wildlife, except when a ``special rule'' promulgated pursuant to 
section 4(d) of the Act has been issued with respect to a particular 
threatened species. In such a case, the general prohibitions in 50 CFR 
17.31 would not apply to that species, and instead, the special rule 
would define the specific take prohibitions and exceptions that would 
apply for that particular threatened species, which we consider 
necessary and advisable to conserve the species. The Secretary also has 
the discretion to prohibit by regulation with respect to a threatened 
species any act prohibited by section 9(a)(1) of the Act. Exercising 
this discretion, which has been delegated to the Service by the 
Secretary, the Service has developed general prohibitions that are 
appropriate for most threatened species in 50 CFR 17.31 and exceptions 
to those prohibitions in 50 CFR 17.32. We are not promulgating a 
section 4(d) special rule at this time, and as a result, all of the 
section 9 prohibitions, including the ``take'' prohibitions, will apply 
to the spring pygmy sunfish.

Rationale for a 60-Day Effective Date

    We have published a notice of availability in the Federal Register 
for public review and comment on the two proposed CCAAs, associated 
permit applications and draft environmental action statements. It is 
our intention to make a final determination on the proposed CCAAs 
before this rule becomes effective; however, we are not certain that 
this can be accomplished within 30 days after the issuance of this 
rule. Therefore, the effective date of the rule is 60 days from the 
publication date of this final rule (see DATES), rather than our 
typical 30 days, to provide adequate time for the public to review and 
comment on the two proposed CCAAs.

Required Determinations

National Environmental Policy Act

    We have determined that environmental assessments and environmental 
impact statements, as defined under the authority of the National 
Environmental Policy Act (42 U.S.C. 4321 et seq.), need not be prepared 
in connection with listing a species as an endangered or threatened 
species under the Act. We published a notice outlining our reasons for 
this determination in the Federal Register on October 25, 1983 (48 FR 
49244).

References Cited

    A complete list of all references cited in this rule is available 
on the Internet at http://www.regulations.gov or upon request from the 
Field Supervisor, Mississippi Ecological Services Field Office (see FOR 
FURTHER INFORMATION CONTACT).

Authors

    The primary authors of this final rule are the staff members of the 
Mississippi Ecological Services Field Office.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations, as follows:

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; 4201-4245, unless 
otherwise noted.


0
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 60783]]



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                        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                       827           NA          NA.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *

    Dated: September 20, 2013.
Rowan Gould,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2013-23726 Filed 10-1-13; 8:45 am]
BILLING CODE 4310-55-P