Vol. 77 Tuesday, No. 191 October 2, 2012

Part II

Department of the Interior

Fish and Wildlife Service 50 CFR Part 17 Endangered and Threatened Wildlife and Plants; 12-Month Petition Finding, Listing of the Spring as Threatened, and Designation of Critical Habitat; Proposed Rule

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DEPARTMENT OF THE INTERIOR We will post all comments on http:// The basis for our action. Under the www.regulations.gov. This generally Act, a may be determined to be and Wildlife Service means that we will post any personal endangered or threatened based on any information you provide us (see the of five factors: (A) Destruction, 50 CFR Part 17 Information Requested section below for modification, or curtailment of its [Docket No. FWS–R4–ES–2012–0068; more details). habitat or range; (B) overutilization for 4500030113] The coordinates or plot points or both commercial, recreational, scientific, or from which the maps are generated are educational purposes; (C) disease or RIN 1018–AY19 included in the administrative record predation; (D) the inadequacy of Endangered and Threatened Wildlife for this critical habitat designation and existing regulatory mechanisms; or (E) and Plants; 12-Month Petition Finding, are available at http://www.fws.gov/ other natural or manmade factors Listing of the as mississippiES/, http:// affecting its continued existence. The Threatened, and Designation of Critical www.regulations.gov at Docket No. spring pygmy sunfish is facing threats Habitat FWS–R4–ES–2012–0068, and at the due to three of these five factors (A, D, Mississippi Ecological Services Field and E), and potentially faces threats AGENCY: Fish and Wildlife Service, Office (see FOR FURTHER INFORMATION under a fourth (Factor C.) The Act also Interior. CONTACT). Any additional tools or requires that the Service designate ACTION: 12-Month finding; proposed supporting information that we may critical habitat at the time of listing rule. develop for this critical habitat provided that it is prudent and designation will also be available at the determinable. We have determined that SUMMARY: We, the U.S. Fish and above locations. it is both prudent and determinable (see Wildlife Service (Service), announce a FOR FURTHER INFORMATION CONTACT: Critical Habitat section below) and are 12-month finding on a petition to list proposing approximately 8 stream mi the spring pygmy sunfish (Elassoma Stephen Ricks, Field Supervisor, Mississippi Ecological Services Field (12.9 km) and 1,617 ac (654.4 ha) of alabamae) as threatened under the spring system habitat and adjacent Endangered Species Act of 1973, as Office, 6578 Dogwood View Parkway, Jackson, MS 39213; by telephone (601– upland buffers for designation as critical amended (Act), and to designate critical habitat. habitat. After review of all available 321–1122); or by facsimile (601–965– Peer review is important. In addition scientific and commercial information, 4340). If you use a telecommunications to seeking public comments, we will we find that listing the spring pygmy device for the deaf (TDD), please call the solicit peer review of this proposal from sunfish as a threatened species under Federal Information Relay Service at least three experts knowledgeable in the Act is warranted. Accordingly, we (FIRS) at 800–877–8339. propose to list the spring pygmy sunfish SUPPLEMENTARY INFORMATION: This spring pygmy sunfish biology and basic as a threatened species throughout its document consists of: (1) A 12-month conservation biology principles and range and designate critical habitat for petition finding that listing the spring concepts. the species under the Act. In total, we pygmy sunfish under the Act is Information Requested propose approximately 8 stream miles warranted; (2) a proposed rule to list the (mi) (12.9 kilometers (km)) and 1,617 spring pygmy sunfish as threatened; and We intend that any final action acres (ac) (654.4 hectares (ha)) of spring (3) a proposed rule to designate critical resulting from this proposed rule will be pool and spring-influenced wetland in habitat for this species. based on the best scientific and commercial data available and be as Limestone County, Alabama, for Executive Summary designation as critical habitat. accurate and as effective as possible. Therefore, we request comments or DATES: We will consider comments Why we need to publish a rule. Under information from other concerned received or postmarked on or before the Endangered Species Act, 16 U.S.C. Federal and State agencies, the scientific December 3, 2012. We must receive 1531 et seq., a species or subspecies community, or any other interested requests for a public hearing, in writing, may warrant protection through listing party concerning this proposed rule. We at the address shown in the FOR FURTHER if it is endangered or threatened particularly seek comments concerning: INFORMATION CONTACT section by throughout all or a significant portion of November 16, 2012. Comments its range. We are proposing to list the (1) Additional information concerning submitted electronically using the spring pygmy sunfish as threatened the historical and current status, range, Federal eRulemaking Portal (see under the Act because of current and distribution, and population size of the ADDRESSES section, below) must be future threats, and listing can only be spring pygmy sunfish, including the received by 11:59 p.m. Eastern Time on done by issuing a rule. The spring locations of any additional populations. the closing date. pygmy sunfish no longer occurs at two (2) Any information on the biological or ecological requirements of the species ADDRESSES: of the three spring systems in which it (1) Electronically: Go to the Federal historically was found, and faces a and ongoing conservation measures for eRulemaking Portal: http:// variety of threats in the Beaverdam the species and its habitat. www.regulations.gov. Search for Docket Spring/Creek System, the only location (3) Biological, commercial trade, or No. FWS–R4–ES–2012–0068, which is where it currently occurs. We are also other relevant data concerning any the docket number for this rulemaking. proposing to designate critical habitat threats (or lack thereof) to this species (2) By hard copy: Submit by U.S. mail under the Act. Critical habitat and regulations that may be addressing or hand-delivery to: Public Comments represents geographical areas that are those threats. Processing, Attn: FWS–R4–ES–2012– essential to a species’ conservation, and (4) Current or planned activities in the 0068; Division of Policy and Directives is designated on the basis of the best areas occupied by the species and Management, U.S. Fish and Wildlife scientific information available after possible impacts of these activities on Service, 4401 N. Fairfax Drive, MS taking into consideration the economic this species. 2042–PDM; Arlington, VA 22203. impact, impact on national security, and (5) Additional information regarding We request that you send comments any other relevant impact of specifying the threats to the species under the five only by the methods described above. any particular area as critical habitat. listing factors, which are:

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(a) The present or threatened (12) Information on whether the Federal Lists of Threatened and destruction, modification, or benefits of the exclusion of lands Endangered Wildlife and Plants (Lists) curtailment of its habitat or range; covered by the Belle Mina Farm, Ltd., that contains substantial scientific or (b) Overutilization for commercial, CCAA, or any other particular area, commercial information that listing a recreational, scientific, or educational outweigh the benefits of inclusion under species may be warranted, we make a purposes; section 4(b)(2) of the Act. finding within 12 months of the date of (c) Disease or predation; (13) Whether we could improve or receipt of the petition that the (d) The inadequacy of existing modify our approach to designating petitioned action is either: (a) Not regulatory mechanisms; and critical habitat in any way to provide for warranted; (b) warranted; or (c) (e) Other natural or manmade factors greater public participation and warranted, but the immediate proposal affecting its continued existence. understanding, or to better of a regulation implementing the (6) Any information regarding accommodate public concerns and petitioned action is precluded by other ongoing conservation activities for the comments. pending proposals to determine whether spring pygmy sunfish, including the Please note that submissions merely any species is endangered or threatened, Belle Mina Farm, Ltd., candidate stating support for or opposition to the and expeditious progress is being made conservation agreement with assurances action under consideration without to add or remove qualified species from (CCAA), and their effect on the status of providing supporting information, the Lists. With this publication, we have the species. although noted, will not be considered determined that the petitioned action to (7) The reasons why areas should or in making a determination, as section list spring pygmy sunfish is warranted, should not be designated as critical 4(b)(1)(A) of the Act directs that and we are proposing to list the species habitat as provided by section 4 of the determinations as to whether any and to designate critical habitat for the Act, including the possible risks or species is an endangered or threatened species. benefits of designating critical habitat, species must be made ‘‘solely on the including risks associated with basis of the best scientific and Previous Federal Actions publication of maps designating any commercial data available,’’ and section The spring pygmy sunfish was area on which this species may be 4(b)(2) directs that critical habitat proposed for listing as endangered with located, now or in the future, as critical designations be made based on the best critical habitat on November 29, 1977 habitat. scientific data available and after (42 FR 60765). The critical habitat (8) The following specific information consideration of economic and other portion of the proposal was withdrawn on: relevant impacts. on March 6, 1979 (44 FR 12382), in (a) The amount and distribution of You may submit your comments and to make a new critical habitat habitat for spring pygmy sunfish; materials concerning this proposed rule proposal that conformed to new, more (b) What areas, that would be by one of the methods listed in prescriptive provisions for critical occupied at the time of listing (i.e., are ADDRESSES. We request that you send habitat made in the 1978 amendments currently occupied) and that contain the comments only by the methods to the Act. The Service proposed critical physical and biological features described in ADDRESSES. habitat again for the species on July 27, essential to the conservation of this If you submit information via http:// 1979 (44 FR 44418). The pending species, should be included in a critical www.regulations.gov, your entire proposal to list the spring pygmy habitat designation and why; submission—including any personal sunfish, along with the proposed critical (c) Special management identifying information—will be posted habitat designation, were withdrawn considerations or protection that may be on the Web site. If your submission is effective November 29, 1979, as needed for the essential features in made via a hardcopy that includes announced in the Federal Register on critical habitat areas, including personal identifying information, such January 24, 1980 (45 FR 5782). managing for the potential effects of as your address, phone number, and The spring pygmy sunfish was climate change; and email address, you may request at the included in the December 30, 1982, (d) What areas not occupied at the top of your document that we withhold notice of review (47 FR 58454) as a time of listing are essential for the this information from public review. category 2 candidate species for listing. conservation of this species and why. However, we cannot guarantee that we Category 2 status was given to those (9) Information on the projected and will be able to do so. We will post all species for which the Service possessed reasonably likely impacts of changing hardcopy submissions on http:// information indicating that proposing to environmental conditions resulting from www.regulations.gov. Please include list as endangered or threatened was climate change on the species and its sufficient information with your possibly appropriate, but for which habitat. comments to allow us to verify any conclusive data on biological (10) Information on groundwater scientific or commercial information vulnerability and threats were not aquifer or recharge areas for spring you include. currently available to support proposed systems that support the spring pygmy Comments and materials we receive, rules. Subsequently, in the September sunfish, and the possible implications of as well as supporting documentation we 18, 1985 (50 FR 37958); January 6, 1989 extracting ground and surface water and used in preparing this proposed rule, (54 FR 554); and November 15, 1994 (59 its impact on the spring pygmy sunfish will be available for public inspection FR 58982) notices of review, the spring and its habitat. on http://www.regulations.gov, or by pygmy sunfish was identified as a (11) Any probable economic, national appointment, during normal business category 1 candidate species for listing. security, or other relevant impacts of hours, at the U.S. Fish and Wildlife Category 1 status was given to those designating any area that may be Service, Mississippi Ecological Services species for which the Service had on file included in the final designation; in Field Office (see FOR FURTHER sufficient information on biological particular, we seek information on any INFORMATION CONTACT). vulnerability and threat(s) to support a impacts on small entities or families, proposal to list as endangered or and the benefits of including or Background threatened but for which a proposal had excluding areas that exhibit these Section 4(b)(3)(B) of the Act requires not yet been issued because of other impacts. that, for any petition to revise the listing actions. On February 28, 1996 (61

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FR 7457), the Service published a notice CCAA and EAS were finalized in April 2009). Adults reproduce from January to of review removing the spring pygmy 2012, and the associated permit was October. Spawning occurs in March and sunfish from the candidate list because issued on June 7, 2012. If the spring April, when water quality parameters of successful introduction, increased pygmy sunfish is listed under the Act, are within a suitable range (pH of 6.0 to distribution (outside of the range of the the permit authorizes incidental take of 7.7 and water temperatures of 57.2 to 68 introduction), and the discovery of the spring pygmy sunfish due to degrees Fahrenheit (°F) (15 to 20 degrees additional populations, including one otherwise lawful activities (e.g., crop Celsius (°C)). Spring pygmy sunfish on Wheeler National Wildlife Refuge. At cultivation, livestock grazing, produce about 65 eggs, and hatching that time, we reported that the known silviculture, vegetation management, occurs from April to September (Sandel populations, each exceeding 1,000 water usage, road maintenance, pers. obs. 2004 through 2009). Two individuals, were increasing. fencerow maintenance, etc.) in spawning attempts per year have been On November 24, 2009, we received accordance with the terms of the CCAA. reported in captivity (Petty et al. 2011, a petition from the Center for Biological p. 4). In captivity, the spring pygmy Diversity (CBD) and Michael Sandel of Species Information sunfish may live slightly longer than 2 the University of Alabama, requesting and Description years, but normally their life span is 1 that the spring pygmy sunfish be listed year or less (Boschung and Mayden as endangered under the Act. In a The spring pygmy sunfish (Elassoma 2004, pp. 614–615). December 17, 2009, letter to the alabamae) was discovered in 1937, but petitioners, we responded that we not described until 1993 (Mayden 1993, Habitat reviewed the information presented in pp.1–14). This species is the smallest The spring pygmy sunfish is a spring- the petition, and we outlined the member of the Elassoma. Males associated (Warren 2004, p.185) and petition process and timelines. In July are normally smaller than females and groundwater-dependent (Jandebeur, 2010, we received letters from the North are very dark to black with iridescent pers. comm., 2011) fish endemic to the American Native Association blue-green color on their sides, cheeks, Tennessee River drainage in the Eastern (NANFA) and Dr. Bruce Stallsmith and gill covers (Boschung and Mayden Highland Rim physiographic province (University of Alabama at Huntsville) 2004, pp. 614–615). The maximum and Dissected Tablelands (Marbut et al. requesting that we emergency list the standard length (distance from tip of 1913, p. 53) of Lauderdale and species under section 4(b)(7) of the Act. snout to the end of the last vertebrae) for Limestone Counties in northern Following review of the petition, the adult males is 0.80 in (20.4 mm) and for Alabama. The preferred habitat for the letters, and information in our files, we adult females it is 0.96 in (24.5 mm) spring pygmy sunfish is colorless to determined that issuing an emergency (Boschung and Mayden 2004, pp. 614– slightly stained spring water, occurring regulation temporarily listing the 615). Both sexes have broad vertical and within several components of spring species was not warranted. We notified narrow bars on their flanks. We accept geomorphology including the spring NANFA and Dr. Stallsmith of our the characterization of the spring pygmy head (where water emerges from the determination on July 21, 2010. sunfish as a valid species based on the ground), spring pool (water pool at On April 1, 2011, we published in the taxonomic characters distinguishing the spring head), spring run (stream or Federal Register (76 FR 18138) our 90- species from other members of the channel downstream of spring pool), day finding that the petition to list the Elassoma genus (Mayden 1993, p.4). Its and associated spring-fed wetlands spring pygmy sunfish as endangered uniqueness is widely accepted by the (Warren 2004, pp. 184–185). No presented substantial information scientific community, and there has contemporary water flow rates indicating that the requested action may been no discrepancy concerning its characterizing groundwater flow from be warranted, and we initiated a status distinctiveness as a separate taxonomic the springs are available. However, review of the species. entity (Boschung et al. 2004, p. 614). historical flow rates for Pryor Spring Since 2010, Belle Mina Farms, the (where the species once occurred) and Current Distribution owner of Beaverdam Spring, Moss Moss Spring of 800 to 5,000 gallons per Spring, and the upper reach of The range of the spring pygmy sunfish minute (gpm) (3,000 to 19,000 liters per Beaverdam Creek, in Limestone County, is very restricted. The species currently minute (lpm))(tabulated from Chandler Alabama, and the Service have been occupies about 5.9 mi (9.5 km) and and Moore 1987, pp. 3–4), respectively, engaged in drafting a candidate 1,435 ac (580.6 ha) of four spring pools indicate that the spring pygmy sunfish conservation agreement with assurances and associated features confluent with is associated with moderately flowing (CCAA) for a population of spring the middle to upper Beaverdam Spring/ springs of the second to fourth order pygmy sunfish. The CCAA outlines a Creek watershed. These spring pools, (after Meinzer 1923, in Chandler and variety of conservation measures that which include Moss, Beaverdam, Moore 1987, p. 5; McMaster and Harris will be implemented to benefit the Thorsen, and Horton springs, all in 1963, p. 28). species (see ‘‘Conservation Efforts to Limestone County, Alabama, along with Natural spring pool habitats are Reduce Habitat Destruction, associated spring runs and wetlands, are typically static, persisting without Modification, or Curtailment’’ under the collectively referred to as the disruption for long periods, even during Factor A discussion, below). On Beaverdam Spring/Creek system. The droughts, in the absence of water September 14, 2010, we received the greatest concentration of spring pygmy extraction. The species is most completed application from the sunfish occurs within the Beaverdam abundant at the spring outflow or landowner for an enhancement of Spring site, which comprises 24 percent emergence (spring head) and spring survival permit for the spring pygmy of the total occupied habitat for the pool area. The spring pygmy sunfish is sunfish under section 10(a)(1)(A) of the species. typically found at water depths from 5 Act along with a draft CCAA. The to 40 inches (in) (13 to 102 centimeters CCAA, the permit application, and the Life History (cm)) and rarely in the upper 5 inches environmental action statement (EAS) The spring pygmy sunfish has high (13 cm) of the water column. Species of were made available for public fecundity (reproductive capacity) and submergent and emergent vegetation comment for a 30-day period beginning quickly populates areas of available providing important habitat for the on February 21, 2012 (77 FR 9958). The habitat (Sandel pers. obs. 2004 through spring pygmy sunfish include clumps

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and stands of Sparganium sp. (bur sections of the Beaverdam Spring/Creek that these factors are operative threats reed), Ceratophyllum sp. (coontail), system. Sandel (2008, pp. 15–16; 2011, that act on the species to the point that Nasturtium officinale (watercress), p. 8) suggests that the spring pygmy the species may meet the definition of Juncus sp. (rush), Carex sp. (sedges), sunfish population in Beaverdam endangered or threatened under the Act. Nuphar luteum (yellow pond lily), Spring/Creek is a single, structured, Factor A: The Present or Threatened Myriophyllum sp. (parrot feather), continuous group of breeding Destruction, Modification, or Utricularia sp. (bladderwort), individuals, genetically identifiable Curtailment of Its Habitat or Range Polygonum sp. (smartweed), Lythrum with limited gene flow from each salicaria (purple loosestrife), and springhead subpopulation, and that the Increased human population growth, Callitriche sp. (water starwort) (Mayden loss of many subpopulations could and the accompanying demand for 1993, p. 11; Jandebeur 1997, pp. 42–44; cause extinction of the metapopulation. water, will likely alter the Beaverdam Sandel 2011, pp. 3–5, 9–11). The However, Jandebeur (2011b, pp. 1–13) Spring/Creek system and its recharge species is also associated with certain speculates that these populations of areas through increased water extraction species such as amphipods, spring pygmy sunfish evolved with (pumping), diversion, and retention isopods, spring salamanders, crayfish, beaver ecology and that during (Erman 2002, p. 8). Because springs and snails (Sandel 2011, pp.11–12; migration of spring pygmy sunfish from provide shelter, thermal refuge, Mayden 1993, p. 11). beaver pond habitats, the species may breeding sites, movement corridors, and prey source habitat for the spring pygmy Historical Distribution and Status colonize or recolonize existing habitat downstream, even though individual sunfish, the species is dependent on The spring pygmy sunfish was known subpopulations may be extirpated due water quantities sufficient to provide to have historically occurred at two to drought or other ecological issues. spring habitat that is stable and other sites. This species was initially permanent (Erman 2002, p. 8). discovered in 1938, in Cave Springs, Summary of Information Pertaining to Urban and Industrial Development Lauderdale County, Alabama, where it the Five Factors was extirpated about a year later due to Section 4 of the Act and its Urban development adjacent to the inundation from the formation of implementing regulations (50 CFR part Beaverdam Spring/Creek system would Pickwick Reservoir. In 1941, this 424) set forth the procedures for adding likely fragment and directly impact species was also discovered in Pryor species to the Federal Lists of suitable spring pygmy sunfish habitat by Spring within the Swan Creek Endangered and Threatened Wildlife decreasing water quality and quantity, watershed in Limestone County, and Plants. A species may be and by limiting the species’ movement Alabama, by Tarzwell and Bretton, determined to be an endangered or throughout the system. When an area is where it was noted to be common threatened species due to one or more urbanized, many impermeable surfaces (Jandebeur 2011a, pp. 1–5). Limited of the following five factors described in are constructed such as roofs, sampling efforts in the Pryor Springs section 4(a)(1) of the Act: pavements, and road surfaces. All are complex between 1966 and 1979 (A) The present or threatened intentionally constructed to be far less indicated a sparse population of spring destruction, modification, or permeable than natural soils and to pygmy sunfish west of, and none east of, curtailment of its habitat or range; remove stormwater quickly, which Highway 31. The exact location of the (B) Overutilization for commercial, results in a reduction in direct recharge original collection in Pryor Spring is recreational, scientific, or educational into the aquifer, increased stormwater uncertain, but Jandebeur (2011a, pp. 1– purposes; runoff (Younger 2007, p. 39), immediate 5) speculates the original site to be (C) Disease or predation; changes in water quality parameters solely west of Highway 31, within the (D) The inadequacy of existing such as decreased oxygen levels and Pryor Spring Branch (spring-fed regulatory mechanisms; and increased temperature, and increased wetlands) and not in Pryor Spring (E) Other natural or manmade factors water quantity and flow velocity (Field proper (spring head and pool), east of affecting its continued existence. et al. 2003, pp. 326–333). The the highway. However, in 1984, in an Listing actions may be warranted stormwater flow velocity carries effort to enhance this population in based on any of the above threat factors, sediments that may scarify (make Pryor Spring, fish were moved from singly or in combination. Each of these scratches or cuts in) rock and gravel Moss Spring (Beaverdam Spring/Creek factors is discussed below. substrates (Waters 1995, pp. 57, 66) and System) into Pryor Spring on both sides In considering what factors might uproot aquatic vegetation, thereby of Highway 31 (Mettee et. al. 1986, pp. constitute threats to a species, we must destroying important foraging, 14–15). Reintroduction efforts look beyond the exposure of the species spawning, and refuge habitat for the continued into 1986 and 1987 (Mettee to a particular factor to evaluate whether species (Field et al. 2003, pp. 326–333). et. al. 1986, pp. 6–7). However, by 2007, the species may respond to that factor The spring pygmy sunfish is currently the population was determined to be in a way that causes actual impacts to facing threats from planned large-scale extirpated due to impaired water quality the species. If there is exposure to a residential and industrial projects and and quantity, likely attributable to factor and the species responds ongoing development within the contaminants from agricultural runoff negatively, the factor may be a threat. vicinity of the Beaverdam Spring/Creek (Sandel 2008, p. 2; 2011, pp. 3, 6). The factor is a threat if it drives, or watershed. Sandel (2011, p. 11) The spring pygmy sunfish exhibits contributes to, the risk of extinction of observed declines in the species’ metapopulation (a group of individual the species such that the species population and attributed it to populations that have some level of warrants listing as endangered or sedimentation from two nearby gene flow between them) structure by threatened as those terms are defined in construction activities: the construction occupying all suitable spring habitats the Act. However, the identification of of a new sewer line adjacent to the where there is flowing spring water and factors that could impact a species spring system and the construction of connectivity. Migration and continuity negatively may not be sufficient to the Ashbury subdivision 2.3 mi (3.7 km) of the species between spring pools is compel a finding that the species northeast of the species’ habitat. The very important in maintaining the warrants listing. The information must Ashbury subdivision, adjacent to genetic diversity of species within these include evidence sufficient to suggest Hardeman Branch and draining into the

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upper Beaverdam Spring/Creek The Fort Payne Chert of the Early further estimated that this level of watershed, filled adjacent wetlands Mississippian Age is the principal withdrawal desiccated and killed when residential housing, roads, utility aquifer of spring pygmy sunfish habitat aquatic vegetation necessary for the crossings, and stormwater drains were and provides groundwater to all of spawning, foraging, and shelter of the constructed (U.S. Army Corps of Limestone County (McMaster and species. Engineers 2011, pp. 1–6). Harris, Jr. 1963, p. 1). Groundwater in Commercial water withdrawal from The City of Huntsville’s Master Plan the County is ultimately derived from this same aquifer by the Limestone for Western Annexed Land (Sasaki percolation of precipitation (McMaster County pumping station, between 2006 2011, pp. 1–83) proposes developing a and Harris, Jr. 1963, p. 17) into the and 2011, was over 1 billion gallons (3.9 total of 10,823 ac (4,379.9 ha) adjacent aquifer system. In urban settings, billion liters) at an estimated flow rate to spring pygmy sunfish habitat. More percolation of rainwater to the aquifer of 450 gpm (1,740 lpm) (Holland, pers. than 68 percent of the proposed may be disrupted due to less pervious comm., 2011). Heavy groundwater development site is adjacent to the zones and more shunting of rainfall into withdrawal by the cities of Huntsville Beaverdam Spring/Creek watershed. stormwater systems (Healy 2010, pp. and Madison (east of the spring pygmy The restricted-use area for subdivision 70–72; Younger 2007, pp. 117–121). sunfish habitat), and the adjacent rural development, within the City of Change in land use from rural to urban/ population, is estimated at 16 million Huntsville, is a minimum of 25 feet (7.6 industrial within the Beaverdam Spring/ gallons per day (62 million liters per meters) from the perimeter of a Creek area will be detrimental to the day) (U.S. Geological Survey National perennial spring. However, no spring pygmy sunfish due to changes in Aquatic Water Quality Assessment restrictions are set forth for ephemeral the water quality parameters such as 2001, 2009; Sandel, pers. comm., 2007– springs or seasonal groundwater oxygen and temperature, along with 2009; Kingsbury 2003, p. 2; Hoos et al. seepages (City of Huntsville 2007, p. changes in water quantity, such as 2001, p. 1). Withdrawal of groundwater 28), which include many of the increased stream flow and velocity, due by pumping, at high levels such as those ephemeral springs, seepages, and to increased amounts of impervious above, especially during drought streams draining into the Beaverdam materials and associated stormwater conditions, can cause changes to water Spring/Creek watershed. These features runoff in the watershed. This may be budgets (Healy 2010, p. 15) and the are necessary for maintenance of coupled with a subsequent reduction in natural flow of spring systems (Alley in seasonal flow rates. Filling them or precipitation infiltrating through the Likens 2009, p. 91). Pumping from wells converting them to developed areas soil surface to the aquifer, which will beside streams also lowers groundwater could therefore adversely affect the ultimately reduce spring baseflow (Field levels and reduces surface water flow spring pygmy sunfish. In addition, there et al. 2003, pp. 326–333; Healy 2010, p. within streams and spring runs. In are roads proposed to connect the 3). smaller streams, decreased flow caused planned developments with the by pumping can be large enough to Interstate 65 and Interstate 565 corridors Water Quantity create harmful effects upon the stream (Sasaki 2011, pp. 1–83), along with Excessive groundwater extraction and its wildlife (Hunt 1999, pp. 98– feeder roads and improvements on from the aquifer supplying Beaverdam 102). Water extraction by pumping also primary and secondary existing Spring/Creek is a threat to the spring causes a loss of aquifer storage and roadways in support of new residential pygmy sunfish (Drennen, pers. obsv. lowers the pressure in the aquifer (Theis and industrial projects (Sasaki 2011, pp. 2007–2011; Sandel 2011, pp. 3–6; 1935, p. 519), resulting in decreased 1–83). Developed, paved-over areas National Water Quality Assessment spring flow velocity and quantity to (impervious substrate) promote runoff (NAWQA) program, http:// adjacent streams. These reductions in and inhibit infiltration, changing water tn.water.usgs.gov/lten/lten.html) the natural flow regime can adversely flow rates from slow and incremental to because of the reduction of the water affect the spring pygmy sunfish. fast and localized, because stormwater levels in the aquifer and resultant In several large springs in the United is directed via surface routes into decreased spring outflow (Cook, States, groundwater extraction for specific areas of the receiving stream, Geological Survey of Alabama (GSA), public consumption and agricultural rather than infiltrating into the soil or pers. comm., 2011). Sandel (in Kuhajda use has impacted listed fish species by draining naturally into surface water. et al. 2009, p. 19; 2011, pp. 3–6) decreasing groundwater levels. Pumping or diversion of springs documented a relationship between Examples include the endangered creates unstable conditions for spring- pumping activities in Moss, Horton, and Devil’s Hole pupfish (Cyprinodon dependent species such as the spring Thorsen Springs and degraded spring diabolis) (Hoffman et al. 2003, p. 1248) pygmy sunfish through fluctuating pygmy sunfish habitat. Specifically, in and the endangered fountain darter water levels and temperature changes. Thorsen Spring, during 2007, water was (Etheostoma fonticola) (Service 1996, p. The incremental and cumulative extracted to a level that destroyed 19). Water extraction in spring pygmy groundwater recharge effects on the vegetation and decreased the abundance sunfish habitat is causing desiccation habitat of the spring pygmy sunfish may of the spring pygmy sunfish by 99 and reduction of the aquatic vegetation, not become evident for years (Likens percent (Sandel, pers. obs., 2004 and concentrating pollutants. 2009, p. 90). Within north Alabama, the through 2009; Sandel 2011, p. 6). The The effects on stream flow after water availability of large quantities of proximity of the spring pygmy sunfish’s extraction stops may be greater due to groundwater from springs has been an habitat to agricultural land throughout the overall decrease in water quantity in important factor in industrial and urban its range makes it vulnerable to impacts the stream. Decreased water levels after development (Warman and Causey due to the extraction of groundwater for pumping in the spring pool correspond 1963, p. 93). It is estimated that, by agricultural uses. Sandel (in Kuhajda et to decreased aquatic vegetation in the 2015, the population in Limestone and al. 2009, p. 19) estimated that up to system; less water quantity increases the Lauderdale Counties will increase 16,000 gpm (62,000 lpm) of water was desiccation of vegetation, which may dramatically (Roop 2010, p. 1), along extracted from the Beaverdam Spring/ negatively impact the species with expanding urbanization and Creek watershed for agricultural (Jandebeur 1979, pp. 4–8; Mayden 1993, industrialization (Sasaki 2011, pp. 1– purposes during drought conditions pp. 11–12) by reducing the vegetative 83). during the 2008 growing season. He cover and contributing to eutrophication

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of the water, as demonstrated with 1983, p. 255) by impacting organismal systems and wetlands. Cows tend to spring pygmy sunfish habitat impacts metabolism. Nitrogen also impacts congregate in wetland areas, where they and subsequent population declines in aquatic life. For instance, un-ionized consume and trample vegetation, Moss, Horton, and Thorsen Springs ammonia (which contains nitrogen) is thereby reducing shade around the (Sandel pers. obs. 2004 through 2009; highly toxic to fish (Hoffman et al. 2003, spring and increasing the water 2011, pp. 3–6). p. 681). The planned development temperature. Livestock also trample adjacent to spring pygmy sunfish habitat banks in springs and spring runs, Water Quality is likely to increase phosphorus and leading to increased stormwater and The heavy use of chemicals within nitrogen levels in the future. sediment runoff, which eliminates spring pygmy sunfish habitat and the Aquatic plants, which the spring habitat for invertebrate prey species recharge areas of occupied spring pygmy sunfish uses for spawning, (Erman 2002, p. 8; Sada et al. 2001, pp. systems is a potential threat to the shelter, and foraging, are also impacted 14–16). Excessive sediment runoff species. The intensive agricultural by indiscriminate use of chemicals during stormwater events decreases practices and proposed urbanization (Jandebeur 2012, p. 2; Sandel 2011, pp. water clarity, which reduces light and industrialization plans within the 1–5, 8–9). Since 1945, herbicide usage, penetration needed for plant growth and immediate area of the watershed cattle grazing, and irrigation have results in impacts to the spring pygmy threaten to contaminate the occurred throughout the spring systems sunfish’s spawning and feeding sites. groundwater in the aquifer supplying and waterways that are habitat for this Timber harvesting and land clearing the Beaverdam Spring/Creek site (Healy species (Jandebeur 1979, pp. 4–8). can also have impacts on spring water 2010, p. 70). Transportation of Aquatic vegetation management within quality and associated spring species. contaminants to the aquifer by recharge Thorsen Spring, Horton Spring, and the Recent tree removal along the boundary water can be slow and steady or highly Pryor Spring/Branch system has of the Wheeler National Wildlife Refuge, episodic over time (Healy 2010, p. 75). removed the spring pygmy sunfish’s which is spring pygmy sunfish habitat In a similar spring system in northeast shelter vegetation, egg substrate, and and part of the Beaverdam Spring/Creek Alabama, the threatened pygmy sculpin food sites (Jandebeur 1979, pp. 4–8; system, highlights the need for careful ( paulus) is believed to be Mayden 1993, p. 9; Jandebeur 2012, p. management of spring habitats (Hurt, impacted by the increased concentration 2). Agricultural chemical contamination pers. comm., 2012). The removal of the of toxins entering the aquifer from a results in sublethal toxic effects in fish trees greatly reduced the buffer along nearby military base (Thomas, pers. species, affecting the immune system, the Beaverdam Spring/Creek system and comm., 2009). hormone regulation, reproduction, and will likely increase sedimentation into Fertilizers and pesticides are developmental stages (Hoffman et al. the stream during stormwater runoff. An transported to the aquifer by recharge, 2003, pp. 1056-–1063, 1242). The spring appropriate mixture of shade and or into surface water routes, where they pygmy sunfish’s negative response to sunlight is needed for the proper growth eventually enter springs and are a threat herbicides (Hoffman et al. 2003, p. and maintenance of vegetation in the to the survival of fishes found there 1242) is documented by the subsequent spring environment. This vegetation is (Hoffman et al. 2003, p. 1248; U.S. Fish reduction and eventual loss of the important to maintaining a stable water and Wildlife Service 1996, pp. 35–36). population in Pryor Branch after the temperature and habitat for an Toxins can concentrate when spring application of 2, 4- invertebrate prey base. Reducing shade flow is reduced, posing an even greater dichlorophenoxyacetic acid (2,4-D) to by mechanical logging and clearing can threat to spring fishes. The Beaverdam that area in the 1940s (Jandebeur 2012, increase atypical spring flow, lead to Spring/Creek watershed has the highest pp. 1–18). This herbicide is toxic to fish greater spring run flow variability, and annual crop harvest, the highest total and aquatic invertebrates, and has increase sedimentation (Erman 2002, p. annual nitrogen use, and second highest properties and characteristics associated 9) by altering the existing annual phosphorus use, along with with chemicals generally detected in geomorphology and enhancing elevated pesticide usages detected in groundwater contamination. Decaying stormwater runoff. groundwater, within the Eastern vegetation caused by the application of Conservation Efforts To Reduce Habitat Highland Rim (Mooreland 2011, p. 2; this herbicide also impacts fishes by Destruction, Modification, or NAWQA 2009, http://water.usgs.gov/ reducing dissolved oxygen levels Curtailment nawqa/digmap.html; Kingsbury 2003, p. (Environmental Protection Agency 20). Both the historic and extant spring (EPA) Material Safety Data Sheet, pp. 1– When considering whether or not to pygmy sunfish populations in 13). list a species under the Act, we must Limestone County (Beaverdam Spring/ Many of the same chemicals used in identify existing conservation efforts Creek, Pryor Springs) are within the large-scale agricultural practices are also and their effect on the species. Under Wheeler Lake Basin (southern boundary used by municipal entities including the Act and our policy implementing of Limestone County), where Tsegaye et urban and rural households. Stormwater this provision, known as the Policy for al. (2006, pp. 175–176) found that rapid runoff from city streets, construction Evaluation of Conservation Efforts urbanization with associated decrease in sites, and storm sewers; household When Making Listing Decisions (PECE) agricultural land cover is likely wastes; and leachate from septic tanks (68 FR 15100; March 28, 2003), we must responsible for water quality and landfills alter the sediment load in evaluate the certainty of an effort’s degradation in streams from non-point aquatic systems and deposit effectiveness on the basis of whether the source phosphorus pollution. contaminants into surface and effort or plan: Establishes specific Phosphorus content of groundwater is groundwater sources (Likens 2009, p. conservation objectives; identifies the generally low (Wetzel 1983, p. 281). 90). Water quality degradation from necessary steps to reduce threats or However, urbanization increases the chemicals will increase with the factors for decline; includes quantifiable amount of phosphorus from residential expected increase in urbanization and performance measures for the fertilizers and storm sewer drainage industrialization of the area. monitoring of compliance and (Wetzel 1983, p. 281) that may enter Overgrazing by livestock is a major effectiveness; incorporates the groundwater recharge areas. Phosphorus threat to springs, especially where principles of adaptive management; is limits biological productivity (Wetzel have free range through spring likely to be implemented; and is likely

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to improve the species’ viability at the the CCAA. If such a reevaluation reflects the spring pygmy sunfish’s single time of the listing determination. In a need to change the conservation metapopulation. Overgrazing by general, in order to meet these standards measures, the amended measure(s) will livestock and land clearing near and for the spring pygmy sunfish, be implemented or the CCAA will be within the spring systems reduces the conservation efforts must, at minimum, terminated and the permit surrendered. vegetation in the spring and increases report data on existing populations, Conservation efforts set forth in this stormwater and sediment runoff, posing describe activities taken toward CCAA are a positive step toward the a threat to the single spring pygmy conservation of the species, demonstrate conservation of the spring pygmy sunfish population, particularly in the either through data collection or best sunfish. These conservation actions will middle and lower portions of its range. available science how these measures reduce the severity of some of the Based on our review of the best will alleviate threats, provide for a threats to the species outlined under commercial and scientific data mechanism to integrate new information Factor A within the upper portion of the available, we conclude that the present (adaptive management), and provide Beaverdam Spring/Creek and Moss or threatened destruction, modification, information regarding certainty of the Spring sites. However, these and curtailment of its habitat or range is implementation (e.g., funding and conservation measures and the CCAA currently a threat to the spring pygmy staffing mechanisms). are restricted to only the upper 24 sunfish and is expected to persist and The Service entered into a CCAA for percent of occupied habitat in the possibly escalate in the future, the benefit of the spring pygmy sunfish Beaverdam Spring/Creek complex. particularly in light of the increasing with Belle Mina Farms, Ltd., and the There is no protection for the 24 percent demands for groundwater and large- Land Trust of Huntsville and North of the species’ habitat within the middle scale development that is planned near Alabama (Land Trust) on June 7, 2012. reach of the Beaverdam Spring/Creek this species’ habitat. While the CCAA The area covered under the CCAA is System. The remaining 52 percent of the has reduced some of the threats under approximately 3,200 acres and species’ habitat, although it is federally this factor, it only covers a portion of encompasses the upper 24 percent of owned and protected, is considered the extant range of the species, and will habitat occupied by the Beaverdam marginal habitat in the lower reach of not ameliorate all threats of ongoing and Spring/Creek metapopulation, which is the Beaverdam Spring/Creek System. In potential water quantity and water currently the only known population for the middle and non-protected area quality degradation. the species. Under the CCAA, the below the CCAA protected site, land use Factor B: Overutilization for landowner agrees to implement practices continue to contribute to water Commercial, Recreational, Scientific, or conservation measures to address quantity and water quality degradation. Educational Purposes known threats to the species. These In addition, the large-scale development measures will help protect the species planned adjacent to this species’ habitat, The spring pygmy sunfish is not a on his property in the near term and and outside the boundaries of the land commercially valuable species. also minimize any incidental take of the enrolled in the CCAA, continues to pose However, this species has been actively species that might occur as a result of a threat to the spring pygmy sunfish and sought by researchers since its discovery conducting other covered activities, if its habitat. Furthermore, since this in 1937. Overcollecting may have been the species becomes federally listed in CCAA has been just recently enacted, a localized factor in the historical the future. Conservation measures to be there has yet to be long-term decline of this species, particularly implemented by the landowner on this monitoring, which is needed to evaluate within the introduced population in property will assist in the reduction of the overall effectiveness of these efforts. Pryor Spring/Branch (Jandebeur 2012, p. chemical usage and stormwater runoff 14); however, the overall impact of Summary of Factor A from agricultural fields by establishing collection on the spring pygmy sunfish and maintaining vegetated buffer zones As discussed above, the spring pygmy population is unknown (Jandebeur around Moss and Beaverdam Spring. sunfish and its habitat are currently 2012, p. 14). The localized distribution The landowner also agrees to restrict facing the threats of both declining and small size of known populations timber harvest and cattle grazing within water quality and quantity. Excessive renders them vulnerable to overzealous the Beaverdam Spring/Creek and Moss groundwater usage, and the resultant recreational or scientific collecting. Spring habitats, and to refrain from any reduction of the water levels in the However, at this time we have no deforestation, industrial/residential aquifer/recharge areas and decreased specific information indicating that development, aquaculture, temporary or spring outflow in the Beaverdam overcollection rises to the level to pose permanent ground water removal Spring/Creek system, is believed to have a threat to the species now or in the installations, and other potentially negatively impacted the spring pygmy future. Therefore, we find that damaging actions without prior sunfish and its habitat. Contamination overutilization for commercial, consultation with the Service and the of the recharge area and aquifer from the recreational, scientific, or educational Service’s written agreement. These intensive use of chemicals (i.e., purposes does not constitute a threat to actions will minimize impacts and help herbicides, pesticides, fertilizers) within the spring pygmy sunfish at this time. to maintain groundwater recharge of the the spring pygmy sunfish’s habitat poses Factor C: Disease or Predation aquifer and adequate spring flow. The a threat to the species’ survival. Land Trust will conduct monitoring on Stormwater discharge from agricultural Diseases of the spring pygmy sunfish the progress of the conservation actions lands and urban sites compounds the are poorly known, and we have no and annual habitat analyses. water quality degradation by increasing specific information indicating that The CCAA and associated sediment load and depositing disease occurs within spring pygmy enhancement of survival permit have a contaminants into surface and sunfish populations or poses a threat to duration of 20 years; however, under a groundwater sources. In addition, the the species. Eggs, juveniles, and adult special provision of this CCAA, if at any large-scale residential and industrial spring pygmy sunfish are preyed upon time a 15 percent decline in the status development planned adjacent to the by some invertebrate species, parasites, of the spring pygmy sunfish is Beaverdam Spring/Creek system will and vertebrate species such as frogs, determined, there will be a reevaluation exacerbate the decreasing water quantity snakes, turtles, other fish, and of the conservation measures set forth in and quality issues within the habitat of piscivorous (fish-eating) birds. It is

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possible that predation increases when provisions of the Clean Water Act. spring pygmy sunfish. Habitat fish are concentrated in smaller areas Unregulated and indiscriminate connectivity is critical to maintaining when groundwater is depleted through groundwater and surface water heterozygosity (genetic diversity) within water extraction. However, we have no extraction has been identified as a threat populations of the species and reducing evidence of any specific declines in the to spring species (see Factor A inbreeding, thereby maintaining the spring pygmy sunfish due to predation. discussion above). Within the State of integrity of the population (Hallerman In summary, we conclude that the Alabama, regulations concerning 2003, pp. 363–364). Connectivity of best scientific and commercial groundwater issues are limited spring pygmy sunfish habitats is also information available indicates, at the (Alabama Law Review 1997, p. 1). necessary for improvement in water present time, that diseases or predation Alabama common law follows a quality through flushing and diluting are not threats to the spring pygmy ‘‘reasonable use rule’’ for the extraction pollutants and increasing water sunfish. of groundwater, and there is a statutory quantity, and by linking spring Factor D: The Inadequacy of Existing framework that regulates and governs segments together. Connectivity Regulatory Mechanisms groundwater extraction (Chapman et al. maintains water flow between 2005, p. 9; Alabama Water Resources Beaverdam Spring/Creek habitats and The spring pygmy sunfish and its Act, Code of Alabama, sections 9–10B– allows for potential colonization of habitat are afforded some protection 1 et seq.). Water users must file a unoccupied areas when conditions from surface water quality and habitat declaration of beneficial use, be issued become favorable for the species. degradation under the Clean Water Act a certificate of use, and be permitted Mechanical fragmentation of the habitat (33 U.S.C. 1251 et seq.), and the and monitored periodically. The has formed smaller, isolated Alabama Water Pollution Control Act Alabama Water Commission can place subpopulations of spring pygmy (Code of Alabama, sections 22–22–1 et restrictions on certificates of use in sunfish. Localized environmental seq.) and regulations promulgated by certain designated water capacity changes caused by agriculture, the Alabama Department of stressed areas; however, the Alabama urbanization, and other anthropogenic Environmental Management (Maynard Water Commission has not identified disturbances of the spring systems and Gale 1995, pp. 20–28). While these any stressed groundwater areas in or throughout the watersheds of the laws have resulted in some near spring pygmy sunfish habitat. Eastern Highland Rim have exacerbated improvement in water quality and Large volumes of groundwater continue fragmentation of spring habitat (Sandel stream habitat for aquatic life, such as to be extracted in areas not identified as 2011, pp. 3–6; 2008, pp. 2–4, 13). Over requiring landowners engaged in ‘‘stressed groundwater areas’’ such as time, this fragmentation of the spring agricultural practices to have an erosion the Beaverdam Spring/Creek watershed, pygmy sunfish’s habitat will impose prevention component within their farm and this likely depresses water levels in negative selective pressures on the plan, alone they have not been fully nearby wells (Hairston et al. 1990, p. 7) species’ populations, such as genetic adequate to protect this species due to and springs (Younger 2007, p. 162). isolation; reduction of space for rearing, inconsistent implementation, Such groundwater extraction has likely recruitment, and reproduction; monitoring, and enforcement. depleted the aquifer that supplies water reduction of adaptive capabilities; and Furthermore, habitat degradation is to Beaverdam Spring and the spring increased likelihood of local extinctions ongoing despite the protection afforded pygmy sunfish. Thus, water use (Sandel 2011, pp. 8–10; Burkhead et al. by these laws. restrictions under common law 1997, pp. 397–399). The State of Alabama maintains (Chapman et al. 2005, p. 10) provide Climate Change water-use classifications through marginal protection for the species. issuance of National Pollutant Discharge ‘‘Climate’’ refers to an area’s long-term Elimination System (NPDES) permits to Summary of Factor D average weather statistics (typically for industries, municipalities, and others; The spring pygmy sunfish and its at least 20- or 30-year periods), these permits set maximum limits on habitat are afforded limited protection including the mean and variation of certain pollutants or pollutant from surface water quality and habitat surface variables such as temperature, parameters. For water bodies on the degradation under Federal and State precipitation, and wind; ‘‘climate Clean Water Act’s section 303(d) List of regulations. Notwithstanding this change’’ refers to a change in the mean Impaired Water Bodies, States are limited protection, large volumes of or variability or both of climate required under the Clean Water Act to groundwater are continually extracted, properties that persists for an extended establish a total maximum daily load and these extractions likely threaten the period (typically decades or longer), (TMDL) for the pollutants of concern aquifer that supplies water to spring whether due to natural processes or that will bring water quality into the pygmy sunfish habitat. Degradation of human activity (Intergovernmental applicable standard. Many of the water habitat within the current range of this Panel on Climate Change (IPCC) 2007a, bodies within the occupied range of the species is ongoing despite the p. 26). Although changes in climate spring pygmy sunfish do not meet Clean protections afforded by these existing occur continuously over geological time, Water Act standards (Alabama 2008 laws. Therefore, based on the best changes are now occurring at an section 303(d) List of Impaired Water scientific and commercial information accelerated rate. For example, at Bodies). available, we consider the inadequacy of continental, regional, and ocean basin The State of Alabama’s surface water existing regulatory mechanisms to be a scales, recent observed changes in long- quality standards, adopted from the threat to spring pygmy sunfish. term trends include: A substantial national standards set by the EPA, were increase in precipitation in eastern parts established with the intent to protect all Factor E: Other Natural or Manmade of North American and South America, aquatic resources within the State of Factors Affecting Its Continued northern Europe, and northern and Alabama. These water quality Existence central Asia, and an increase in intense regulations appear to be protective of Impediments to migration, tropical cyclone activity in the North the spring pygmy sunfish as long as connectivity, and gene flow between or Atlantic since about 1970 (IPCC 2007a, discharges are within permitted limits within spring systems are threats to p. 30); and an increase in annual and are enforced according to the maintaining genetic diversity in the average temperature of more than 2 °F

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(1.1 °C) across United States since 1960 such as melting of Arctic sea-ice and distribution of recharge of the (Global Climate Change Impacts in the (Comiso et al. 2008, p. 1; Polyak et al. aquifer. Climate also affects human United States (GCCIUS) 2009, p. 27). 2010, p. 1797), and since 2000, the demands for groundwater and affects Examples of observed changes in the observed emissions of greenhouse gases, plant transpiration from shallow physical environment include: An which are a key influence on climate groundwater in response to solar energy increase in global average sea level, and change, have been occurring at the mid- and changing depths to the water table declines in mountain glaciers and to higher levels of the various emissions (Likens 2009, p. 91). Chronic regional average snow cover in both the northern scenarios developed in the late 1990s drought between 2000 and 2005 within and southern hemispheres (IPCC 2007a, and used by the IPCC for making the Tennessee Valley decreased rates of p. 30); substantial and accelerating projections (e.g., Raupach et al. 2007, surface water flow and aquifer recharge. reductions in Arctic sea-ice (e.g., Figure 1, p. 10289; Manning et al. 2010, Water extraction (of both groundwater Comiso et al. 2008, p. 1); and a variety Figure 1, p. 377; Pielke et al. 2008, and surface water) during drought of changes in ecosystem processes, the entire). Also, the best scientific and periods exacerbated damage to the distribution of species, and the timing of commercial data available indicate that spring pygmy sunfish and its habitat seasonal events (e.g., GCCIUS 2009, pp. average global surface air temperature is (Sandel 2009, p. 15). 79–88). increasing and several climate-related Long-term droughts have impacts on The IPCC used Atmosphere-Ocean changes are occurring and will continue groundwater by increasing groundwater General Circulation Models and various for many decades even if emissions are extraction for public consumption and greenhouse gas emissions scenarios to stabilized soon (e.g., Meehl et al. 2007, agriculture, which in turn does not make projections of climate change pp. 822–829; Church et al. 2010, pp. replenish surface waters (Likens 2009, globally and for broad regions through 411–412; Gillett et al. 2011, entire). p. 91). The prolonged drought within the 21st century (Randall et al. 2007, pp. Changes in climate can have a variety northern Alabama during 2006 to 2008 596–599), and reported these of direct and indirect impacts on was exceptional (Jandebeur 2012, p. 13) projections using a framework for species, and can exacerbate the effects and, along with the severe drought of characterizing certainty (Solomon et al. of other threats. Rather than assessing 1950 to 1963 (Jandebeur 2012, p. 13), 2007, pp. 22–23). For example: (1) It is ‘‘climate change’’ as a single threat in may have contributed to the demise of virtually certain there will be warmer and of itself, we examine the potential the Pryor Spring/Branch population of and more frequent hot days and nights consequences to species and their the spring pygmy sunfish by increasing over most of the earth’s land areas; (2) habitats that arise from changes in toxic concentrations of herbicides and it is very likely there will be increased environmental conditions associated by increasing the desiccation of aquatic frequency of warm spells and heat with various aspects of climate change. vegetation. waves over most land areas, and the For example, climate-related changes to Conservation Efforts To Reduce or frequency of heavy precipitation events habitats, predator-prey relationships, Eliminate Other Natural or Manmade will increase over most areas; and (3) it disease and disease vectors, or Factors is likely that increases will occur in the conditions that exceed the physiological incidence of extreme high sea level tolerances of a species, occurring The CCAA will likely reduce some of (excludes tsunamis), intense tropical individually or in combination, may the threats to groundwater caused by cyclone activity, and the area affected affect the status of a species. climate change within the upper portion by droughts (IPCC 2007b, p. 8, Table Vulnerability to climate change impacts of the species’ range by minimizing SPM.2). More recent analyses using a is a function of sensitivity to those impacts and helping to maintain different global model and comparing changes, exposure to those changes, and groundwater recharge of the aquifer, other emissions scenarios resulted in adaptive capacity (IPCC 2007, p. 89; protecting surface water flow, and similar projections of global temperature Glick et al. 2011, pp. 19–22). As limiting groundwater extraction. Under change across the different approaches described above, in evaluating the status the CCAA, the Service will provide (Prinn et al. 2011, pp. 527, 529). of a species, the Service uses the best technical assistance and groundwater All models (not just those involving scientific and commercial data management advice. Additionally, climate change) have some uncertainty available, and this includes adaptive management measures of the associated with projections due to consideration of direct and indirect CCAA concern groundwater usage, assumptions used, data available, and effects of climate change. As is the case including pumping from the aquifer and features of the models; with regard to with all potential threats, if a species is avoidance of temporary or permanent climate change this includes factors currently affected or is expected to be ground water removal installations. such as assumptions related to affected by one or more climate-related Also under the CCAA, the landowner emissions scenarios, internal climate impacts, this does not necessarily mean will not engage in practices that may variability, and differences among the species is an endangered or disturb water quality during low water models. Despite this, however, under all threatened species as defined under the levels in drought periods, such as global models and emissions scenarios, Act. If a species is listed as endangered pesticide and herbicide use, stock farm the overall projected trajectory of or threatened, this knowledge regarding ponds, and aquaculture, within the surface air temperature is one of its vulnerability to, and impacts from, designated protected area. These increased warming compared to current climate-associated changes in conservation measures will help protect conditions (Meehl et al. 2007, p. 762; environmental conditions can be used the species on this property in the near Prinn et al. 2011, p. 527). Climate to help devise appropriate strategies for term and also minimize any incidental models, emissions scenarios, and its recovery. take of the species that might occur as associated assumptions, data, and While we do not have specific a result of conducting other covered analytical techniques will continue to information concerning the effect of activities, should the species become be refined, as will interpretations of climate change on spring pygmy sunfish listed in our final determination. projections, as more information and its habitat, we do know that climate However, because of anthropogenic becomes available. For instance, some affects groundwater budgets (inflow and factors such as urbanization or intensive changes in conditions are occurring outflow) by influencing precipitation agriculture, these conservation measures more rapidly than initially projected, and evaporation and, therefore, the rates may be inadequate during drought

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periods caused by climate change or The degradation of habitat throughout especially the potential impact of other natural phenomena. the species’ range is ongoing despite the residential and commercial protections afforded by existing Federal development, which is currently only in Summary of Factor E and State laws and policies (Factor D). the planning stage. Based on our In summary, habitat fragmentation Habitat fragmentation and its resulting evaluation of the best available and its resulting effects on gene flow effects on gene flow and potential scientific and commercial information and potential demographic impacts demographic impacts within the related to the extremely restricted range within the population is a substantial population is a threat (Factor E) and is of the species, threats to it and its threat and is affecting the spring pygmy affecting the spring pygmy sunfish’s habitat, future potential threats, and sunfish’s continued existence. Climate continued existence. The recently conservation measures currently change, in particular drought, affects established CCAA provides a measure of underway through an established groundwater budgets (inflow and protection for the species in the upper CCAA, we have determined that the outflow) by influencing the rates and reach of the population, with the species is threatened by multiple factors distribution of recharge of the aquifer, implementation of conservation (Factors A, D, and E) throughout all of affects human demands for measures that increase or preserve water its range. Specifically, we have groundwater, and affects plant quantity and reduce water quality determined that the species is likely to transpiration from shallow groundwater degradation and prohibit any potentially become endangered in the foreseeable reserves. Based on the best available damaging land use actions in that area future, and therefore meets the information, we conclude that the (Factor A). However, these conservation definition of a threatened species. spring pygmy sunfish faces threats from measures only extend to that portion of Threatened status was determined to be other natural or manmade factors the population enrolled in the CCAA, proposed for the spring pygmy sunfish affecting its continued existence. These which protects 24 percent of the total because it is not considered to be in threats continue despite the beneficial occupied habitat. Although this CCAA immediate danger of extinction effects of the CCAA. reduces some of the threats under primarily due to the ongoing Finding Factors A and E, the CCAA is not able conservation measures in the CCAA, to ameliorate all of the threat factors to which offers protection to the As required by the Act, we conducted this species rangewide. Beaverdam springhead and the most a review of the status of the species and Based on our evaluation of the best robust portion of the population. In considered the five factors in assessing scientific and commercial information addition, impacts to the species from whether the spring pygmy sunfish is available regarding the past, present, large-scale industrial and residential endangered or threatened throughout all and future threats faced by the spring development adjacent to the spring are or a significant portion of its range. We pygmy sunfish, we have determined the not imminent, as developments are still examined the best scientific and continued existence of the spring pygmy in the planning stage. The species is not commercial information available sunfish is under threat from: Ongoing endangered, because it is not currently regarding the past, present, and future and planned urban and industrial in immediate danger of extinction, but threats faced by the spring pygmy development and associated activities; as noted, we find that it is likely to sunfish. We reviewed the petition, ongoing agricultural practices, including become in danger of extinction information available in our files, and water extraction from groundwater and throughout its range in the foreseeable other available published and surface water; the reduction of aquifer future, which is the definition of a unpublished information, and we recharge, resulting in changes in threatened species. Because the range of consulted with recognized spring hydrology; surface and groundwater the species consists of a single pygmy sunfish experts and other pollution; past and present use of occurrence location, and we have Federal and State agencies. fertilizers and pesticides; climate determined that the species is at risk of The identified threats to the spring change; inadequate regulatory becoming endangered in that location, pygmy sunfish are attributable to mechanisms; and habitat fragmentation we do not need to further analyze Factors A, D, and E, as described in and resultant interruption in gene flow. whether there may be a significant more detail in the Summary of These threats exist despite the beneficial portion of the range of the species that Information Pertaining to the Five effects of the CCAA. Because the species has a different status. Factors section above. The primary faces these threats throughout its threat to the species is from habitat extremely limited range, we find that Available Conservation Measures modification (Factor A) in the form of the spring pygmy sunfish is warranted Conservation measures provided to planned urban and industrial for listing throughout its range. species listed as endangered or development of land adjacent to spring threatened under the Act include pygmy sunfish habitat and the resultant Status Evaluation recognition, recovery actions, impacts to the surrounding aquifer The Act defines an endangered requirements for Federal protection, and recharge area, coupled with ongoing species as any species that is in danger prohibitions against certain practices. threats associated with ground and of extinction throughout all or a Recognition of a species through listing surface water withdrawal and water significant portion of its range, and a results in increased public awareness quality within the spring systems where threatened species as one that is likely and more focused conservation efforts this species currently occurs and to become endangered in the foreseeable by Federal, State, Tribal, and local historically occurred. We find that this future throughout all or a significant agencies; private organizations; and threat of increased urban and industrial portion of its range. In this proposal of individuals. The Act encourages development and the associated the status of the spring pygmy sunfish, cooperation with the States and requires infrastructure, along with the current we take into account the protection that recovery actions be carried out for human use of the area, is a threat to the afforded to the springhead and upper all listed species. The protection spring pygmy sunfish, causing direct portion of the population through the measures required of Federal agencies mortality as well as permanent loss, established CCAA (helping to moderate and the prohibitions against certain fragmentation, or alteration of its threats under Factors A and E), and look activities involving listed wildlife are habitat. carefully at future potential threats, discussed, in part, below, and

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additionally in the Effects of Critical because their range may also occur on jeopardize the continued existence of Habitat Designation section of this non-Federal lands. To achieve recovery the species or destroy or adversely proposed rule below. of these species requires cooperative modify its critical habitat. If a Federal The primary purpose of the Act is the conservation efforts on private, State, action may affect a listed species or its conservation of endangered and and Tribal lands. The CCAA between critical habitat, the responsible Federal threatened species and the ecosystems the Service, Belle Mina Farms Ltd., and agency must enter into formal upon which they depend. The ultimate the Land Trust identifies several consultation with the Service. goal of such conservation efforts is the strategies that will support recovery Federal agency actions within the recovery of these listed species, so that efforts, including: (1) Maintenance of species’ habitat that may require they no longer need the protective vegetation buffer zones along the conference or consultation or both as measures of the Act. Subsection 4(f) of springs; (2) prohibition of cattle within described in the preceding paragraph the Act requires the Service to develop the spring; (3) prohibition of include Federal activities that may and implement recovery plans for the deforestation, land clearing, industrial affect spring pygmy sunfish, including, conservation of endangered and development, residential development, but not limited to: The carrying out or threatened species. The recovery aquaculture, temporary or permanent the issuance of permits for discharging planning process involves the ground water removal installations, fill material on wetlands for road or identification of actions that are stocked farm ponds, pesticide and highway construction; installation of necessary to halt or reverse the species’ herbicide use, and impervious surface utility easements; development of decline by addressing the threats to its installation within the protected area of residential, industrial, and commercial survival and recovery. The goal of this the CCAA; and (4) establishment of a facilities; unsustainable farming process is to restore listed species to a biological monitoring program for the practices, including indiscriminate use point where they are secure, self- spring pygmy sunfish and its habitat. of chemicals, and decreasing buffers sustaining, and functioning components If this species is listed, funding for around fields and drainage ditches and of their ecosystems. recovery actions will become available swales; channeling or other stream Recovery planning includes the from a variety of sources, including geomorphic changes; discharge of development of a recovery outline Federal budgets, State programs, and contaminated or sediment laden waters; shortly after a species is listed, cost share grants for non-Federal wastewater facility development; and preparation of a draft and final recovery landowners, the academic community, excessive groundwater and surface plan, and revisions to the plan as and nongovernmental organizations. In water extraction. Additional actions that significant new information becomes addition, under section 6 of the Act, the may require conference or consultation available. The recovery outline guides State of Alabama would be eligible for or both include: the immediate implementation of urgent Federal funds to implement (1) Actions that would significantly recovery actions and describes the management actions that promote the alter the structure and function of the process to be used to develop a recovery protection and recovery of the spring spring system. Such actions or activities plan. The recovery plan identifies site- pygmy sunfish. Information on our grant specific management actions that will programs that are available to aid could include, but are not limited to, the achieve recovery of the species, species recovery can be found at: filling or excavation of spring heads, measurable criteria that determine when http://www.fws.gov/grants. spring pools, spring-fed wetlands, and a species may be downlisted or delisted, Although the spring pygmy sunfish is spring runs. The filling or excavation of and methods for monitoring recovery only proposed for listing under the Act the spring system would alter the progress. Recovery plans also establish at this time, please let us know if you hydrology of the site and would destroy a framework for agencies to coordinate are interested in participating in the vegetation, water quality, and water their recovery efforts and provide recovery efforts for this species. quantity where spring pygmy sunfish estimates of the cost of implementing Additionally, we invite you to submit spends all of its life stages. The filling recovery tasks. Recovery teams any new information on this species or excavation of the spring systems (comprised of species experts, Federal whenever it becomes available and any could result in the direct mortality of and State agencies, nongovernment information you may have for recovery the species where the species is known organizations, and stakeholders) are planning purposes (see FOR FURTHER to occur. often established to develop recovery INFORMATION CONTACT). (2) Actions that would significantly plans. When completed, the recovery Section 7(a) of the Act requires alter the aquatic vegetation structure in outline, draft recovery plan, and the Federal agencies to evaluate their and around the spring associated final recovery plan will be available on actions with respect to any species that wetland. Such actions or activities our Web site (http://www.fws.gov/ is proposed or listed as endangered or could include, but are not limited to, endangered), or from our Mississippi threatened and with respect to its vegetation cutting or herbicide usage for Ecological Services Field Office (see FOR critical habitat, if any is designated. expanding or maintaining roads, FURTHER INFORMATION CONTACT). Regulations implementing this construction of new roads, maintenance Implementation of recovery actions interagency cooperation provision of the of agricultural fields, construction of generally requires the participation of a Act are codified at 50 CFR part 402. new agricultural fields, development of broad range of partners, including other Section 7(a)(4) of the Act requires new residences, development of new Federal agencies, States, Tribal, Federal agencies to confer with the commercial establishments, or nongovernmental organizations, Service on any action that is likely to industrial development. Alteration of businesses, and private landowners. jeopardize the continued existence of a the vegetation structure would likely Examples of recovery actions include species proposed for listing or result in change the spring-fed wetland habitat restoration (e.g., restoration of destruction or adverse modification of characteristics by changing the native vegetation), research, captive proposed critical habitat. If a species is microhabitat (e.g., change in propagation and reintroduction, and listed subsequently, section 7(a)(2) of temperature and humidity levels) and outreach and education. The recovery of the Act requires Federal agencies to could result in direct mortality of many listed species cannot be ensure that activities they authorize, individuals and egg clutches through accomplished solely on Federal lands fund, or carry out are not likely to desiccation from sun exposure.

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(3) Actions that may alter the natural policy is to increase public awareness of Critical Habitat outflow and quantity of water from the the effect of a proposed listing on Background spring head and through the spring run proposed and ongoing activities within into the stream channels. Such actions the range of the species proposed for It is our intent to discuss below only or activities could include, but are not listing. The following activities could those topics directly relevant to the limited to, changes in the hydrology of potentially result in a violation of designation of critical habitat for the Beaverdam Spring/Creek and related section 9 of the Act; this list is not spring pygmy sunfish in this section of recharge area and aquifer. These actions comprehensive: the proposed rule. Critical habitat is defined in section 3 include, but are not limited to, excessive (1) Unauthorized collecting, handling, water extraction for public, municipal, of the Act as: possessing, selling, delivering, carrying, (1) The specific areas within the industrial, and agricultural usages. or transporting of the species, including (4) Actions that would significantly geographical area occupied by the import or export across State lines and degrade water quality parameters such species, at the time it is listed in international boundaries, except for as pH, alkalinity, conductivity, accordance with the Act, on which are properly documented antique turbidity, and others (i.e., contaminants, found those physical or biological specimens of these taxa at least 100 excess nutrients). Stormwater discharge features years old, as defined by section 10(h)(1) laden with chemicals and sediments can (a) Essential to the conservation of the enter groundwater and surface water of the Act; species and systems. Decreasing water quantity (2) Introduction of species that (b) Which may require special concentrates chemicals and also compete with or prey upon the spring management considerations or encourages eutrophic (nutrient rich) pygmy sunfish; protection; and (2) Specific areas outside the conditions. (3) The unauthorized release of The Act and its implementing geographical area occupied by the biological control agents that attack this species at the time it is listed, upon a regulations set forth a series of general species’ habitat or any of its life stages; prohibitions and exceptions that apply determination that such areas are to all endangered wildlife. The (4) Unauthorized modification of the essential for the conservation of the prohibitions of section 9(a)(1) of the Act, vegetation composition or hydrology, or species. and its implementing regulations at 50 violation of any discharge or water Conservation, as defined under CFR 17.21, make it illegal for any person withdrawal permit that results in harm section 3 of the Act, means to use and subject to the jurisdiction of the United or death to any individuals of this the use of all methods and procedures States to take (which includes harass, species or that results in degradation of that are necessary to bring an harm, pursue, hunt, shoot, wound, kill, its occupied habitat to an extent that endangered or threatened species to the trap, capture, or collect, or to attempt essential behaviors such as breeding, point at which the measures provided any of these), import, export, ship in feeding, and sheltering are impaired; under the Act are no longer necessary. interstate commerce in the course of (5) Unauthorized destruction or Such methods and procedures include, commercial activity, or sell or offer for alteration of their habitats (such as but are not limited to, all activities sale in interstate or foreign commerce channelization, dredging, sloping, associated with scientific resources any listed species. The regulations at 50 removing of substrate, or discharge of management such as research, census, CFR 17.31 extend the prohibitions listed fill material) that impairs essential law enforcement, habitat acquisition above to threatened species, with behaviors, such as breeding, feeding, or and maintenance, propagation, live certain exceptions. Under the Lacey Act sheltering, or that results in killing or trapping, and transplantation, and, in (18 U.S.C. 42–43; 16 U.S.C. 3371–3378), injuring spring pygmy sunfish; and the extraordinary case where population pressures within a given ecosystem it is also illegal to possess, sell, deliver, (6) Unauthorized discharges or carry, transport, or ship any such cannot be otherwise relieved, may dumping of toxic chemicals or other wildlife that has been taken illegally. include regulated taking. pollutants into the aquifer directly Certain exceptions apply to agents of the Critical habitat receives protection through wells or into the spring system Service and State conservation agencies. under section 7 of the Act through the We may issue permits to carry out or indirectly into recharge areas requirement that Federal agencies otherwise prohibited activities supporting spring pygmy sunfish that ensure, in consultation with the Service, involving endangered and threatened kills or injures the species or that that any action they authorize, fund, or wildlife species under certain otherwise impairs essential life- carry out is not likely to result in the circumstances. Regulations governing sustaining requirements, such as destruction or adverse modification of permits are codified at 50 CFR 17.22 for breeding, feeding, or sheltering critical habitat. The designation of endangered species, and at 17.32 for (destruction of vegetation and critical habitat does not affect land threatened species. With regard to substrate). ownership or establish a refuge, endangered wildlife, a permit must be Questions regarding whether specific wilderness, reserve, preserve, or other issued for take for the following activities would constitute a violation of conservation area. Such designation purposes: for scientific purposes, to section 9 of the Act should be directed does not allow the government or public enhance the propagation or survival of to the Mississippi Ecological Services to access private lands. Such the species, and for incidental take in Field Office (see FOR FURTHER designation does not require connection with otherwise lawful INFORMATION CONTACT). Requests for implementation of restoration, recovery, activities. copies of the regulations concerning or enhancement measures by non- It is our policy, as published in the listed animals and general inquiries Federal landowners. Where a landowner Federal Register on July 1, 1994 (59 FR regarding prohibitions and permits may seeks or requests Federal agency 34272), to identify, to the maximum be addressed to the U.S. Fish and funding or authorization for an action extent practicable at the time a species Wildlife Service, Endangered Species that may affect a listed species or is listed, those activities that would or Permits, 1875 Century Blvd. NE., critical habitat, the consultation would not constitute a violation of Atlanta, GA 30345 (telephone 404–679– requirements of section 7(a)(2) of the section 9 of the Act. The intent of this 7313; facsimile 404–679–7081). Act would apply, but even in the event

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of a destruction or adverse modification When we are determining which areas determinable. These regulations (50 CFR finding, the obligation of the Federal should be designated as critical habitat, 424.12(a)(1)) state that the designation action agency and the landowner is not our primary source of information is of critical habitat is not prudent when to restore or recover the species, but to generally the information developed one or both of the following situations implement reasonable and prudent during the listing process for the exist: (1) The species is threatened by alternatives to avoid destruction or species. Additional information sources taking or other human activity, and adverse modification of critical habitat. may include the recovery plan for the identification of critical habitat can be Under the first prong of the Act’s species, articles in peer-reviewed expected to increase the degree of threat definition of critical habitat, areas journals, conservation plans developed to the species; or (2) such designation of within the geographic area occupied by by States and counties, scientific status critical habitat would not be beneficial the species at the time it is listed are surveys and studies, biological to the species. included in a critical habitat designation assessments, other unpublished As we have discussed above under if they contain physical or biological materials, or experts’ opinions or the Factor B analysis, there is currently features (1) which are essential to the personal knowledge. no imminent threat of take attributed to conservation of the species and (2) Habitat is dynamic, and species may collection (for commercial, recreational, which may require special management move from one area to another over scientific, or educational purposes) of considerations or protection. In time. We recognize that critical habitat this species. Moreover, there is no identifying those physical and designated at a particular point in time information to indicate that biological features within an area, we may not include all of the habitat areas identification of critical habitat is focus on the principal biological or that we may later determine are expected to create such a threat to the physical constituent elements (primary necessary for the recovery of the species. In the absence of a finding that constituent elements (PCEs) such as species. For these reasons, a critical the designation of critical habitat would roost sites, nesting grounds, seasonal habitat designation does not signal that increase threats to a species, then a wetlands, water quality, tide, soil type) habitat outside the designated area is prudent finding is warranted if there are that are essential to the conservation of unimportant or may not be needed for any benefits to a critical habitat the species. Primary constituent recovery of the species. If we list the designation. Potential benefits of elements are the elements of physical or spring pygmy sunfish and designate designation include: (1) Triggering biological features that, when laid out in critical habitat for the species, areas that consultation under section 7 of the Act, the appropriate quantity and spatial are important to the conservation of the in new areas for actions in which there arrangement to provide for a species’ species, both inside and outside the may be a Federal nexus where it would life-history processes, are essential to critical habitat designation, would not otherwise occur because, for continue to be subject to: (1) example, it is or has become the conservation of the species. Conservation actions implemented unoccupied or the occupancy is in Under the second prong of the Act’s under section 7(a)(1) of the Act, (2) question; (2) focusing conservation definition of critical habitat, we can regulatory protections afforded by the activities on the most essential features designate critical habitat in areas requirement in section 7(a)(2) of the Act and areas; (3) providing educational outside the geographic area occupied by for Federal agencies to ensure their benefits to State or county governments the species at the time it is listed, upon actions are not likely to jeopardize the or private entities; and (4) preventing a determination that such areas are continued existence of any endangered people from causing inadvertent harm essential for the conservation of the or threatened species, and (3) the to the species. species. We designate critical habitat in prohibitions of section 9 of the Act if The primary regulatory effect of areas outside the geographic area actions occurring in these areas may critical habitat is the section 7(a)(2) occupied by a species only when a affect the species. Federally funded or requirement that Federal agencies designation limited to occupied habitat permitted projects affecting listed refrain from taking any action that would be inadequate to ensure the species outside their designated critical destroys or adversely modifies critical conservation of the species. habitat areas may still result in jeopardy habitat. Lands proposed for designation Section 4 of the Act requires that we findings in some cases. These as critical habitat would be subject to designate critical habitat on the basis of protections and conservation tools Federal actions that trigger section 7 the best scientific and commercial data would continue to contribute to consultation requirements. These available. Further, our Policy on recovery of this species. Similarly, include land management planning and Information Standards under the critical habitat designations made on the Federal agency actions. There may also Endangered Species Act (published in basis of the best available information at be educational or outreach benefits to the Federal Register on July 1, 1994 (59 the time of designation would not the designation of critical habitat. FR 34271)), the Information Quality Act control the direction and substance of Critical habitat designation identifies (section 515 of the Treasury and General future recovery plans, habitat those physical and biological features of Government Appropriations Act for conservation plans (HCPs), or other the habitat essential to the conservation Fiscal Year 2001 (Pub. L. 106–554; H.R. species conservation planning efforts if of spring pygmy sunfish and that may 5658)), and our associated Information new information available at the time of require special management and Quality Guidelines provide criteria, these planning efforts calls for a protection. Accordingly, this establish procedures, and provide different outcome. designation would provide information guidance to ensure that our decisions to individuals, local and State are based on the best scientific data Prudency Determination governments, and other entities engaged available. They require our biologists, to Section 4(a)(3) of the Act, as in activities or long-range planning in the extent consistent with the Act and amended, and implementing regulations areas essential to the conservation of the with the use of the best scientific data (50 CFR 424.12) require that the species. Conservation of the spring available, to use primary and original Secretary designate critical habitat at the pygmy sunfish and the essential features sources of information as the basis for time the species is determined to be of its habitat requires habitat recommendations to designate critical endangered or threatened to the management, protection, and habitat. maximum extent prudent and restoration, which would be facilitated

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by knowledge of habitat locations and this species’ habitat, ecology, and life springs with spring heads, spring runs, the physical and biological features of history as described in the Background and spring pools that filter into shallow the habitat. Based on this information, section of this proposed rule and vegetated wetlands to be an essential we believe critical habitat would be information presented below. There is physical or biological feature for the beneficial to this species. Therefore, we limited information on this species’ spring pygmy sunfish. The connectivity have determined that the designation of specific habitat requirements, other than of these habitats is essential in critical habitat for spring pygmy sunfish it requires springs and connecting accommodating feeding, breeding, is prudent. spring-fed reaches and wetlands; an growth, and other normal behaviors of adequate groundwater and surface water the spring pygmy sunfish and in Determinability hydrology; and clean, cool water and promoting gene flow within the Our regulations (50 CFR 424.12(a)(2)) the associated vegetation and population. state that critical habitat is not invertebrates. To identify the physical determinable when one or both of the and biological needs of the species, we Food, Water, Air, Light, Minerals, or following situations exist: (1) have relied on current conditions at the Other Nutritional or Physiological Information sufficient to perform locations where the species exists today Requirements required analysis of the impacts of the and the limited information we have on Water Quality designation is lacking, or (2) the historical sites, limited information Exceptional water quality at the biological needs of the species are not available on this species and its close spring heads and pools, and adequate sufficiently well known to permit relatives, and factors associated with the water quality throughout the habitat, identification of an area as critical decline and extirpation of this and other maintained by unobstructed water flow habitat. spring-associated fish species. through connected spring habitats, are Delineation of critical habitat requires Space for Individual and Population essential for normal behavior, growth, identification of the physical and Growth and for Normal Behavior and viability during all life stages of the biological habitat features that are spring pygmy sunfish. Suitable habitat essential to the conservation of the Spring pygmy sunfish depend on conditions for the spring pygmy sunfish species. We have reviewed the available geomorphically stable spring systems have not been investigated thoroughly; information pertaining to the known including the spring head, spring run, however, some data specific to the distribution of spring pygmy sunfish and spring pools. The spring systems species are available for the following and the characteristics of the habitat used by the species also include water quality parameters: pH, water currently occupied. This information transition zones between these features temperature, specific conductivity represents the best scientific and on moderately low-gradient topographic (ability of water to conduct an electric commercial data available and leads us slopes that feather out into spring-fed current, based on dissolved solids in the to conclude that, although available wetland pools. The spring pygmy water), and alkalinity (capacity of information is limited, it is sufficient to sunfish inhabits spring pools, spring solutes in an aqueous system to identify specific areas that meet the runs, and spring-fed streams and pools neutralize acid as HCO3). Spring pygmy definition of critical habitat. Therefore, with substrates of silt, sand, and gravel. sunfish males establish territories and we have found that critical habitat is The current range of the spring pygmy spawn in late February through April, determinable for spring pygmy sunfish. sunfish is reduced to localized sites due to fragmentation of the spring systems when water quality parameters are Physical or Biological Features on which it depends. Fragmentation of within a suitable pH range of 6.0 to 7.7, the species’ habitat has isolated and water temperatures are between In accordance with section 3(5)(A)(i) ° ° and 4(b)(1)(A) of the Act and regulations populations and reduced available 57.2 and 68 F (14 and 20 C) (Mettee at 50 CFR 424.12, in determining which space for spawning, rearing of young, 2008, p. 36; Sandal, 2007, p. 2; Rakes et areas within the geographical area concealment, and foraging. As a result, al. 2011, p. 4). A specific conductivity the spring pygmy sunfish’s adaptive of 5.5 to 14.2 micro Siemens per occupied by the species at the time of ° ° listing to designate as critical habitat, capability has been reduced, and the centimeter at 61 F (16 C) and we consider the physical or biological likelihood of local extinctions has alkalinity of 20 to 66 milligrams per liter features essential to the conservation of increased (Burkhead et al. 1997, pp. (mg/l) have been reported from habitat the species and which may require 397–399; Hallerman 2003, pp. 363–364). occupied by spring pygmy sunfish special management considerations or Connectivity of spring systems (Jandebeur 1997, p. 34). protection. These include, but are not maintains spawning, foraging, and Essential water quality attributes for limited to: resting sites, and allows for gene flow the spring pygmy sunfish may be (1) Space for individual and throughout the population. Genetic inferred from those of other fish species population growth and for normal variation and diversity within a species living in medium water flow streams behavior; are essential for recovery, adaptation to along with baseline spring and (2) Food, water, air, light, minerals, or environmental changes, and long-term subsurface water quality information other nutritional or physiological viability (capability to live, reproduce, obtained from systems within requirements; and develop) (Harris 1984, pp. 93–107; Limestone County, adjacent counties, (3) Cover or shelter; Noss and Cooperrider 1994, pp. 282– and elsewhere. Based on yearly (4) Sites for breeding, reproduction, or 297; Fluker et al. 2007, p. 2). Long-term averages, these include: (1) Dissolved rearing (or development) of offspring; viability is founded on space for oxygen levels greater than 6 parts per and numerous interbreeding, local million (ppm); (2) temperatures between (5) Habitats that are protected from populations throughout the range 45 and 80 °F (7.2 and 26.7 °C), with disturbance or are representative of the (Harris 1984, pp. 93–107). spring egg incubation temperatures from historical, geographical, and ecological Therefore, based on the information 54 to 65 °F (12.2 to 18.3 °C); (3) specific distributions of a species. above, we identify springs and conductivity of less than approximately We derive the specific physical and connecting spring-fed reaches and 300 micro Siemens per centimeter at biological features required for the wetlands of geomorphically stable, 80 °F (26.7 °C); and (4) concentrations of spring pygmy sunfish from studies of relatively low-gradient, headwater free or suspended solids (organic and

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inorganic sediments) less than 15 recharge rates, and spring water that the species decreases as distances Nephelometric Turbidity Units (NTU; outflow, are important to the increase from spring pools. units used to measure sediment conservation of the spring pygmy Therefore, based on the information discharge) and 20 mg/L total suspended sunfish. above, we identify aquatic, emergent solids (TSS; measured as mg/L of Therefore, based on the information and semi-emergent vegetation along the sediment in water) (Teels et al. 1975, above, we identify a hydrologic flow margins of spring runs and submergent pp. 8–9; Ultschet et al. 1978, pp. 99– regime (magnitude, frequency, duration, vegetation that is adequate for breeding, 101; Ingersoll et al. 1984, pp. 131–138; and seasonality of discharge overtime) reproducing, and rearing young; Chandler et al. 1987, pp. 56–57; Kundell necessary to maintain spring habitats to providing cover and shelter from and Rasmussen 1995, pp. 211–212; be an essential physical or biological predators; and supporting the prey base Henley et al. 2000, pp. 125–139; Meyer feature for the spring pygmy sunfish. of aquatic macroinvertebrates eaten by and Sutherland 2005, pp. 43–64; The instream flow from groundwater spring pygmy sunfish to be an essential McGregor et al. 2008, pp. 7–9; Knight sources (spring and seep) maintains a physical or biological feature for the 2011, pp. 3–8). velocity and a continuous daily spring pygmy sunfish. Nonpoint and point sources of discharge from the aquifer that allows Primary Constituent Elements for the ammonia and chlorine from commercial for connectivity between habitats. Spring Pygmy Sunfish water extraction facilities and Instream flow is stable and does not agricultural fields may be primary vary during water extraction, and the Under the Act and its implementing factors in reducing the quality of spring aquifer recharge maintains adequate regulations, we are required to identify run waters for spring pygmy sunfish. levels to supply water flow to the spring the physical and biological features Agricultural withdrawals can reduce or head. The flow regime does not essential to the conservation of the eliminate the volume of groundwater significantly change during storm spring pygmy sunfish in areas occupied that is being discharged into the species’ events. at the time of listing (i.e., areas that are habitat and affect water temperatures currently occupied), focusing on the Food and other physical parameters. features’ primary constituent elements. Temperature greatly influences the All pygmy sunfish species stalk We consider primary constituent form and toxicity of ammonia and invertebrates by using the dense elements (PCEs) to be the elements of chlorine. Higher temperatures result in submergent vegetation within the spring physical and biological features that a shift from the nontoxic ammonium ion system to conceal their foraging activity provide for a species’ life-history (NH4+) to highly toxic ammonia (NH3). (Walsh and Burr 1984, pp. 45–46). The processes and that are essential to the Chlorine is also more toxic at higher aquatic vegetation provides a ready conservation of the species. temperatures (Hoffman et al. 2003, p. source of food (Petty et al. 2011, p. 2) Based on our current knowledge of 681). Thus, higher temperatures during and habitat for invertebrates. Daphnia, the physical or biological features and the summer, along with drought and amphipods, chironomid larvae, and habitat characteristics required to reduced spring flows, may intensify small snails are the major components sustain the species’ life-history impacts from these two chemicals on of the spring pygmy sunfish’s diet (Slate processes, as discussed above, we the life stages and habitats of the spring 1993, p. 3; Sandel 2009, p. 9). determine that the PCEs specific to the pygmy sunfish. Cover or Shelter and Sites for Breeding, spring pygmy sunfish are: Therefore, we identify the following (1) Spring system. Springs and Reproduction, or Rearing water quality parameters to be an connecting spring-fed reaches and essential physical or biological feature The spring pygmy sunfish relies wetlands that are geomorphically stable for the spring pygmy sunfish, based on heavily on aquatic and emergent and relatively low-gradient. This yearly averages: Optimal temperatures vegetation in the shallow water along includes headwater springs with spring of 57.2 to 68 °F (14 to 20 °C) and not the margins of the runs and pools of the heads, spring runs, and spring pools exceeding 80 °F (26.7 °C); pH of 6.0 to spring systems where the fish occurs. that filter into shallow, vegetated 7.7; dissolved oxygen of 6.0 ppm or The vegetation provides cover and wetlands. greater; specific conductivity no greater shelter necessary for breeding, (2) Water quality. Yearly averages of than 300 micro Siemens per centimeter reproduction and growth of offspring, water quality with optimal temperatures at 80 °F (26.7 °C); and low concealment from predators, and of 57.2 to 68 °F (14 to 20 °C) and not concentrations of free or suspended foraging. Species of submergent and exceeding 80 °F (26.7 °C); pH of 6.0 to solids with turbidity measuring less emergent vegetation providing 7.7; dissolved oxygen of 6.0 ppm or than 15 NTU and 20 mg/L TSS. important habitat for the spring pygmy greater; specific conductivity no greater sunfish include clumps and stands of than 300 micro Siemens per centimeter Water Quantity Sparganium spp. (bur reed), at 80 °F (26.7 °C); and low Water flow and water quantity may Ceratophyllum spp. (coontail), concentrations of free or suspended also vary according to season, Nasturtium officinale (watercress), solids with turbidity measuring less precipitation events, and human Juncus spp. (rush), Carex spp. (sedges), than 15 NTU and 20 mg/L TSS. activities, such as groundwater and Nuphar luteum (yellow pond lily), (3) Hydrology. A hydrologic flow surface water extraction, within the Myriophyllum spp. (parrot feather), regime (magnitude, frequency, duration, recharge area of the spring system. Utricularia sp. (bladderwort), and seasonality of discharge over time) Agriculture, industrial or human Polygonum spp. (smartweed), Lythrum necessary to maintain spring habitats. consumption, silviculture, maintenance salicaria (purple loosestrife), and The instream flow from groundwater of roadways and utilities, and Callitriche spp. (water starwort) sources (springs and seeps) maintains urbanization and industrialization (Mayden 1993, p. 11; Jandebeur 1997, an adequate velocity and a continuous projects are activities that may use water pp. 42–44; Sandel 2011, pp. 3–5, 9–11). daily discharge from the aquifer that that would otherwise recharge spring Sandel (2009, p. 14) suggested that allows for connectivity between systems. Connectivity of spring systems concentration of spring pygmy sunfish habitats. Instream flow is stable and is also important for maintaining water may be associated with thick and does not vary during water extraction, quality. Adequate groundwater and abundant Ceratophyllum echinatum and and the aquifer recharge maintains

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adequate levels to supply water flow to unmanaged livestock grazing; and road, currently occupied and contain the the spring head. The flow regime does bridge, and utility easement physical and biological features that are not significantly change during storm maintenance (e.g., use of herbicides and essential to the conservation of the events. resurfacing or sealant materials). species and that may require special (4) Vegetation and Prey Base. Aquatic, Management activities that could management considerations or emergent and semi-emergent vegetation ameliorate these threats or potential protection, as well as unoccupied sites along the margins of spring runs and threats include, but are not limited to: that might be essential for the submergent vegetation that is adequate Establishing permanent conservation conservation of the species. We for breeding, reproducing, and rearing easements or land acquisition to protect reviewed the available information young; providing cover and shelter from the species on private lands; pertaining to historic and current predators; and supporting the prey base establishing additional conservation distributions, life histories, and habitat of aquatic macroinvertebrates eaten by agreements on private lands to identify requirements of this species. Our spring pygmy sunfish. Important species and reduce threats to the species and its sources included surveys, unpublished of submergent and emergent vegetation features; minimizing habitat reports, and peer-reviewed scientific include clumps and stands of disturbance, fragmentation, and literature prepared by the Alabama Sparganium spp. (bur reed), destruction by maintaining suitable fish Department of Conservation and Natural Ceratophyllum spp. (coontail), passage structures under roads; Resources, Alabama Geological Survey, Nasturtium officinale (watercress), providing significant buffers around the Athens State University, University of Juncus spp. (rush), Carex spp. (sedges), spring components such as the spring Alabama, the Service, spring pygmy Nuphar luteum (yellow pond lily), head, spring pool, and spring run; sunfish researchers and others, as well Myriophyllum spp. (parrot feather), monitoring and regulating the as Geographic Information System (GIS) Utricularia spp. (bladderwort), withdrawal and use of groundwater and data (such as species occurrence data, Polygonum spp. (smartweed), Lythrum surface water of the Beaverdam Spring/ habitat data, land use topography, salicaria (purple loosestrife), and Creek system; preventing the digital aerial photography, and Callitriche spp. (water starwort). diminishing of the aquifer recharge area ownership maps). by increasing the pervious area for Special Management Considerations or Currently, occupied habitat is percolation of rainfall back into the Protections confined to a single population aquifer; limiting impervious substrates; consisting of four spring pools within When designating critical habitat, we and minimizing water quality assess whether the specific areas within degradation by stormwater runoff with the upper Beaver Dam Spring/Creek the geographical area occupied by the catchment basins, vegetated bioswales, complex in Limestone County, species at the time of listing contain and other appropriate best management Alabama. We believe that this area features which are essential to the practices. contains all PCEs to support life-history conservation of the species and which functions essential to the conservation may require special management Criteria Used To Identify Critical of the species. However, this single considerations or protection. Habitat population is at risk of extirpation from We find that the essential features As required by section 4(b)(2) of the stochastic events such as periodic within the area occupied at the time of Act, in developing this proposed rule, droughts and from existing or potential listing may require special management we used the best scientific data human-induced events (i.e., consideration or protection due to available to propose critical habitat for development, excessive water threats to spring pygmy sunfish and or the spring pygmy sunfish. We reviewed extraction, chemical contamination). To its habitat. The sole proposed unit that available information that pertains to reduce the risk of losing this single is occupied is adjacent to roads, homes, the habitat requirements of the species. population through these processes, it is or other manmade structures in which In accordance with the Act and its important to establish additional various activities in or adjacent to the implementing regulation at 50 CFR populations in areas where suitable critical habitat unit may affect one or 424.12(e), we considered whether habitat exists. Therefore, in identifying more of the physical and biological designating additional areas outside unoccupied spring/stream reaches that features. The features essential to the those currently occupied (which would could be essential for the conservation conservation of this species are the mean occupied at the time of listing) is of the spring pygmy sunfish, we first spring systems that may require special necessary to ensure the conservation of considered the availability of potential management considerations or the species. We are proposing to habitat throughout the historical range protection to reduce the following designate critical habitat in areas within that may be suitable for the survival and threats or potential threats: Reduction of the geographic area currently occupied persistence of the species. We water quantity of the groundwater/ by the species (i.e., that would be eliminated from consideration spring/ surface hydrology by water extraction considered occupied at the time of stream reaches without any historical from springs or the aquifer that provides listing). We are also proposing to records of spring pygmy sunfish water to the spring, and surface flow to designate specific areas outside the occurrences. We identified two sites Beaverdam Creek and Pryor Branch; geographic area currently occupied by with recorded historical occurrences of changes in the composition and the species but that were historically the spring pygmy sunfish: one in Pryor abundance of vegetation in the spring; occupied, because such areas are Springs in Limestone County, Alabama, alteration of the bottom substrate and essential for the conservation of the and a second in Cave Springs in normal sinuosity of the system from fill species. Lauderdale County, Alabama. The Cave material within the spring systems and We began our determination of which Spring site was excluded from spring-fed wetlands for development areas to propose for critical habitat with consideration because it was inundated projects; degradation of water quality an assessment of the critical life-history with the formation of Wheeler Reservoir from uncontrolled discharge of components of the spring pygmy in 1939. However, the Pryor Spring/ stormwater draining agricultural fields, sunfish, as they relate to habitat. We Branch site, which supported a roads, bridges, and urban areas; careless then evaluated current and historical population of spring pygmy sunfish agricultural practices including sites to establish what areas are prior to 2007 west of Highway 31, was

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determined to have portions of the PCEs area was determined and delineated by consultation with respect to critical sufficient to support the life-history the presence of emergent vegetation habitat and the requirement of no functions of the species. This currently patterns and topography as noted on adverse modification unless the specific unoccupied stream will provide habitat aerial photographs and topographical action would affect the physical or for population reintroduction into a maps, and during field visits. In order biological features in the adjacent separate stream system and reduce the to set the upstream and downstream critical habitat. level of stochastic threats to the species’ limits of these critical habitat units, we The critical habitat designation is survival, decrease the risk of extinction used the spring head as the uppermost defined by the map or maps, as for the species, and contribute to the point, identified by topographic maps, modified by any accompanying species’ eventual recovery. Accordingly, field visits, and available landmarks regulatory text, presented at the end of we determined that it is essential for the (i.e., bridges and road crossings). this document in the rule portion. We conservation of the species, and Locations of the spring pygmy sunfish include more detailed information on therefore propose to designate it as below or downstream of the spring head the boundaries of the critical habitat critical habitat. were included in order to ensure designation in this preamble. We will We delineated the critical habitat unit incorporation of all potential sites of make the coordinates or plot points or boundaries by determining the occurrence. These stream reaches were both on which each map is based appropriate length within these streams then digitized using 7.5′ topographic available to the public on http:// by identifying the upper spring head maps and ARCGIS to produce the www.regulations.gov at Docket No. (water source), spring pool, spring run, critical habitat maps. FWS–R4–ES–2012–0068, on our Web spring-fed wetlands, seeps, and When determining proposed critical site http://www.fws.gov/mississippiES/, ephemeral streams draining into the habitat boundaries, we made every and at the Mississippi Ecological spring systems. We digitized the area effort to avoid including developed Services Field Office (see FOR FURTHER boundary based upon visual areas such as lands covered by INFORMATION CONTACT above). interpretation of wetland vegetation buildings, pavement, and other using ARCGIS. The high water line in structures because such lands lack Proposed Critical Habitat Designation springs indicates stable flow under physical or biological features for spring We are proposing two units as critical normal conditions. As defined at 33 pygmy sunfish. The scale of the map we habitat for spring pygmy sunfish. The CFR 329.11, the ordinary high water prepared under the parameters for critical habitat areas described below line on nontidal rivers and streams is publication within the Code of Federal constitute our current best assessment of the line on the shore established by the Regulations may not reflect the the areas that meet the definition of fluctuations of water and indicated by exclusion of such developed lands. Any critical habitat for spring pygmy physical characteristics such as a clear, such lands inadvertently left inside sunfish. The two areas proposed as natural water line impressed on the critical habitat boundaries shown on the critical habitat are as follows: (1) bank; shelving; changes in the character maps of this proposed rule have been Beaverdam Spring/Creek, which is of soil; destruction of terrestrial excluded by text in the proposed rule currently occupied; and (2) Pryor vegetation; the presence of litter and and are not proposed for designation as Spring/Branch, which is currently debris; or other appropriate means that critical habitat. Therefore, if the critical unoccupied. Table 1 shows the consider the characteristics of the habitat is finalized as proposed, a occupancy of the units and ownership surrounding areas. For the spring pools Federal action involving these lands of the proposed critical habitat units for and associated spring-fed wetlands, the would not trigger a section 7 the spring pygmy sunfish.

TABLE 1—OCCUPANCY AND OWNERSHIP OF THE PROPOSED CRITICAL HABITAT UNITS FOR THE SPRING PYGMY SUNFISH IN LIMESTONE COUNTY, ALABAMA [Area estimates reflect all land within the critical habitat unit boundary.]

Private ownership km Federal ownership km Total length Total area ha Unit Location Occupied (mi); ha (ac) (mi); ha (ac) km (mi) (ac)

1 ...... Beaverdam Spring/Creek Yes ...... 5.9 (3.7); 237 (586) 3.5 (2.21); 344 (849) 9.5 (5.9) 580.7 (1,435) 2 ...... Pryor Spring/Branch ...... No ...... 0.2 (0.15); 8.1 (20) 3.1 (1.95); 65.6 (162) 3.4 (2.1) 73.6 (182)

Total ...... 6.1 (3.8); 245 (606) 6.6 (4.16); 409.6 12.9 (8.0) 654.3 (1,617) (1,011) * Totals may not sum due to rounding.

We present brief descriptions of each Unit 1: Beaverdam Spring/Creek, Almost 5.9 km (3.7 mi), or 63 percent unit and reasons why they meet the Limestone County, Alabama of the stream reach, and 237 ha (586 ac) definition of critical habitat below. The (41 percent) of the area are privately proposed critical habitat units include Unit 1 includes a total of 9.5 km (5.9 owned. The remaining 3.5 km (2.21 mi), the spring systems, which are composed mi) of Beaverdam Spring/Creek, or 37 percent of the stream reach, and of the spring heads and the flooded northeast of Greenbrier, Alabama, from 344 ha (849 ac) of the area (59 percent) spring pools and spring-fed wetlands the spring head, 5.6 km (3.5 mi) north are owned by the Service as part of the within Beaverdam Spring/Creek and of Interstate 565, to 3.9 km (2.4 mi) Wheeler National Wildlife Refuge. Pryor Spring/Branch. south of Interstate 565. Unit 1 Unit 1 is currently occupied and encompasses Moss, Horton, and contains the only known Thorsen springs. This includes a total of metapopulation of the species. Unit 1 580.7 hectares (1,435 acres). contains all elements of the essential physical or biological features of the

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species needed for its eventual recovery. (162 ac) of the land area (89 percent) are to support the life-history functions This unit provides habitat for the spring federally owned by the Tennessee essential to the conservation of the pygmy sunfish with adequate numbers Valley Authority and managed by the species and that require special of small pools, spring runs (PCE 1), and State as the Swan Creek Wildlife management, and one which is emergent vegetation (PCE 4). These Management Area. The remaining 0.2 currently unoccupied, which geomorphic structures provide substrate km (0.15 mi) of stream reach (7 percent) historically supported the species and for aquatic vegetation that is used by the and 8.1 ha (20 ac) (11 percent) of the has been determined to be essential for species for spawning, foraging, and land area are privately owned. the conservation of the species. other processes of the species natural Unit 2 is currently unoccupied but is As discussed in the Critical Habitat history (PCE 4) along with good water a historical location for the spring section above, we recognize that quality (PCE 2), quantity, and flow (PCE pygmy sunfish, and is essential for its designation of critical habitat may not 3), which supports the normal life stages conservation and eventual recovery. The include all habitat areas that we may and behavior of the spring pygmy Pryor Spring/Branch system contains eventually determine are necessary for sunfish, and the species’ prey sources scattered spring-influenced wetlands of the recovery of the species and that, for (PCE 4). aquatic and emergent vegetation in this reason, a critical habitat designation Threats to the spring pygmy sunfish spring pools, spring runs, and shallow does not signal that habitat outside the and its habitat in Unit 1 that may water wetlands on the margins of the designated area is unimportant or may require special management of the small tributaries. Populations of spring not promote the recovery of the species. physical and biological features include pygmy sunfish were historically noted the potential of increased agriculture, as small and isolated within specific Effects of Critical Habitat Designation urbanization, and industrialization habitat sites of Pryor Spring/Branch. An Section 7 Consultation activities (such as channel modification attempt to reintroduce the species back for flood control, construction of into Pryor Springs (east of Highway 31) Section 7(a)(2) of the Act requires impoundments, and water extraction) was unsuccessful in the 1980s. Federal agencies, including the Service, that could result in increased A portion of the spring head has been to ensure that any action they fund, stormwater runoff and erosion; mechanically deepened and the banks authorize, or carry out is not likely to significant changes in the existing steepened in order to promote water jeopardize the continued existence of spring flow regime due to water extraction for cropland irrigation. any endangered species or threatened extraction, inadequate stormwater Nevertheless, there is a significant species or result in the destruction or management, and water diversion; seasonal flow of groundwater entering adverse modification of designated significant alteration of water quality the system throughout the year from the critical habitat of such species. In and quantity; and significant changes in springhead (portions of PCEs 1, 2, and addition, section 7(a)(4) of the Act streambed material composition and 3). Adequate aquatic vegetation (PCE 4) requires Federal agencies to confer with quality as a result of construction occurs in areas throughout this spring the Service on any agency action which projects and maintenance activities, system, providing potential habitat for is likely to jeopardize the continued resulting in the destruction of emergent the normal life stages and behavior of existence of any species proposed to be and aquatic vegetation; off-road vehicle the spring pygmy sunfish and the listed under the Act or result in the use; sewer, gas, and water easements; species’ prey sources. Water flow (PCE destruction or adverse modification of bridge and road construction and 3) from the main springhead, along with proposed critical habitat. maintenance; culvert and pipe other unidentified springs and seeps Decisions by the 5th and 9th Circuit installation; and other watershed and within the system, provides sufficient Courts of Appeals have invalidated our floodplain disturbances that release water quantity to allow for connectivity regulatory definition of ‘‘destruction or sediments or nutrients into the water. between spawning, rearing, foraging, adverse modification’’ (50 CFR 402.02) There are three paved road crossings and resting sites, promoting gene flow (see Gifford Pinchot Task Force v. U.S. over this unit, one unpaved dirt road, throughout the spring system. While the Fish and Wildlife Service, 378 F. 3d and one railroad. Spring pygmy sunfish existence of PCEs is not necessary for 1059 (9th Cir. 2004) and Sierra Club v. movement might be limited due to the designation of unoccupied habitat, U.S. Fish and Wildlife Service et al., 245 changes in flow regime and habitat their presence in Unit 2 only reinforces F.3d 434, 442 (5th Cir. 2001)), and we including changes in emergent the value of the Pryor Spring/Branch to do not rely on this regulatory definition vegetation, water quality, and water the conservation of the spring pygmy when analyzing whether an action is quantity, and due to stochastic events sunfish. likely to destroy or adversely modify such as drought. Populations of spring As this species is only known from a critical habitat. Under the provisions of pygmy sunfish are small and isolated single population, it is important that the Act, we determine destruction or from one another due to the non- additional populations be established to adverse modification on the basis of homogeneous habitats within Unit 1. buffer against extirpation of the one whether, with implementation of the known site from stochastic events, such proposed Federal action, the affected Unit 2: Pryor Spring/Pryor Branch, as drought. Therefore, we have critical habitat would continue to serve Limestone County, Alabama determined this unit is essential for the its intended conservation role for the Unit 2 includes 3.4 km (2.1 mi) of conservation of the species because it species. Pryor Spring and Pryor Branch from the provides potential for the establishment If a Federal action may affect a listed spring head, about 3.7 mi (5.9 km) south of an additional population of the spring species or its critical habitat, the of Tanner, Alabama, and just east of pygmy sunfish, thereby reducing this responsible Federal agency (action Highway 31, downstream to the bridge species’ risk of extinction, and would agency) must enter into consultation where it intersects with Harris Station/ contribute to the species’ eventual with us. Examples of actions that are Thomas L. Hammons Road. This also recovery. subject to the section 7 consultation includes a total of 73.6 ha (182 ac) in In summary, we propose designating process are actions on State, tribal, area. critical habitat in two areas, one which local, or private lands that require a Almost 3.1 km (1.95 mi), or 93 is occupied and which contains Federal permit (such as a permit from percent of the stream reach, and 65.6 ha sufficient primary constituent elements the U.S. Army Corps of Engineers under

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section 404 of the Clean Water Act (33 control over the action (or the agency’s connectivity of spring pygmy sunfish U.S.C. 1251 et seq.) or a permit from the discretionary involvement or control is populations. Service under section 10 of the Act) or authorized by law). Consequently, (3) Actions that would significantly that involve some other Federal action Federal agencies sometimes may need to alter water chemistry or water quality (such as funding from the Federal request reinitiating of consultation with (for example, temperature, pH, Highway Administration, Federal us on actions for which formal contaminants, and excess nutrients). Aviation Administration, or the Federal consultation has been completed, if Such activities could include, but are Emergency Management Agency). those actions with discretionary not limited to, the unsustainable use or Federal actions not affecting listed involvement or control may affect release of chemicals, such as pesticides species or critical habitat, and actions subsequently listed species or and fertilizers and biological pollutants, on State, tribal, local, or private lands designated critical habitat. into surface water or groundwater. that are not federally funded or Application of the ‘‘Adverse These activities could alter water authorized do not require section 7 Modification’’ Standard conditions that are beyond the consultation. tolerances of this species and result in As a result of section 7 consultation, The key factor related to the adverse direct or cumulative adverse effects to we document compliance with the modification determination is whether, the species and its life cycle. requirements of section 7(a)(2) through with implementation of the proposed (4) Actions that would significantly our issuance of: Federal action, the affected critical alter streambed material composition (1) A concurrence letter for Federal habitat would continue to serve its and quality by increasing sediment actions that may affect, but are not intended conservation role for the deposition or filamentous algal growth. likely to adversely affect, listed species species. Activities that may destroy or Such activities could include, but are or critical habitat; or adversely modify critical habitat are not limited to, construction and (2) A biological opinion for Federal those that alter the physical or maintenance projects of subdivisions, actions that may affect, or are likely to biological features to an extent that roads, bridges, stormwater systems and adversely affect, listed species or critical appreciably reduces the conservation utility easements; unsustainable habitat. value of critical habitat for the spring livestock grazing and timber harvest; When we issue a biological opinion pygmy sunfish. As discussed above, the off-road vehicle use; and other concluding that a project is likely to role of critical habitat is to support life- watershed and floodplain disturbances jeopardize the continued existence of a history needs of the species and provide that release sediments or nutrients into listed species and/or destroy or for the conservation of the species. the water through stormwater runoff. Section 4(b)(8) of the Act requires us adversely modify critical habitat, we These activities could eliminate or to briefly evaluate and describe, in any provide reasonable and prudent reduce habitats necessary for the growth proposed or final regulation that alternatives to the project, if any are and reproduction of the spring pygmy designates critical habitat, activities identifiable, that would avoid the sunfish by causing excessive involving a Federal action that may likelihood of jeopardy and/or sedimentation and a decrease in water destroy or adversely modify such destruction or adverse modification of quality for the species and associated habitat, or that may be affected by such critical habitat. We define ‘‘reasonable vegetation and prey base by designation. Activities that may affect and prudent alternatives’’ (at 50 CFR nitrification, leading to excessive 402.02) as alternative actions identified critical habitat, when carried out, funded, or authorized by a federal filamentous algal growth, turbidity, and during consultation that: an increase in water temperatures. (1) Can be implemented in a manner agency, should result in consultation for consistent with the intended purpose of the spring pygmy sunfish. These Exemptions activities include, but are not limited to: the action; Application of Section 4(a)(3) of the Act (2) Can be implemented consistent (1) Actions that would alter the with the scope of the Federal agency’s geomorphology of the spring system and The Sikes Act Improvement Act of legal authority and jurisdiction; its associated habitats. Such activities 1997 (Sikes Act) (16 U.S.C. 670a) (3) Are economically and could include, but are not limited to, required each military installation that technologically feasible; and instream excavation or dredging, includes land and water suitable for the (4) Would, in the Director’s opinion, impoundment, channelization, and conservation and management of avoid the likelihood of jeopardizing the discharge of fill materials. These natural resources to complete an continued existence of the listed species activities could cause aggradation or integrated natural resources and/or avoid the likelihood of degradation of the channel bed management plan (INRMP) by destroying or adversely modifying elevation or significant bank erosion November 17, 2001. An INRMP critical habitat. and result in entrainment or burial of integrates implementation of the Reasonable and prudent alternatives this species, destruction of the military mission of the installation with can vary from slight project associated aquatic vegetation, and other stewardship of the natural resources modifications to extensive redesign or direct or cumulative adverse effects to found on the base. Each INRMP relocation of the project. Costs this species and its life cycle. includes: associated with implementing a (2) Actions that would significantly (1) An assessment of the ecological reasonable and prudent alternative are alter the existing flow regime, related needs on the installation, including the similarly variable. aquifer, and recharge areas. Such need to provide for the conservation of Regulations at 50 CFR 402.16 require activities could include, but are not listed species; Federal agencies to reinitiate limited to, impoundments, water (2) A statement of goals and priorities; consultation on previously reviewed diversion, channel constriction or (3) A detailed description of actions in instances where we have widening, placement of pipes, culverts management actions to be implemented listed a new species or subsequently or bridges, and groundwater and surface to provide for these ecological needs; designated critical habitat that may be water extraction. These activities could and affected and the Federal agency has eliminate or reduce the habitat (4) A monitoring and adaptive retained discretionary involvement or necessary for growth, reproduction, and management plan.

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Among other things, each INRMP particular area from the designation, we excluded from the final critical habitat must, to the extent appropriate and identify the benefits of including the designation under section 4(b)(2) of the applicable, provide for fish and wildlife area in the designation, identify the Act and our implementing regulations at management; fish and wildlife habitat benefits of excluding the area from the 50 CFR 424.19. enhancement or modification; wetland designation, and evaluate whether the National Security Impacts protection, enhancement, and benefits of exclusion outweigh the restoration where necessary to support benefits of inclusion. If the analysis Under section 4(b)(2) of the Act, we fish and wildlife; and enforcement of indicates that the benefits of exclusion consider whether there are lands owned applicable natural resource laws. outweigh the benefits of inclusion, the or managed by the Department of The National Defense Authorization Secretary may exercise his discretion to Defense (DOD) where a national security Act for Fiscal Year 2004 (Pub. L. 108– exclude the area only if such exclusion impact might exist. In preparing this 136) amended the Act to limit areas would not result in the extinction of the proposal, we have determined that none eligible for designation as critical species. of the lands within the proposed designation of critical habitat for the habitat. Specifically, section 4(a)(3)(B)(i) Economic Impacts of the Act (16 U.S.C. 1533(a)(3)(B)(i)) spring pygmy sunfish are lands owned now provides: ‘‘The Secretary shall not Under section 4(b)(2) of the Act, we or managed by the DOD, and, therefore, designate as critical habitat any lands or consider the economic impacts of we anticipate no impact on national other geographical areas owned or specifying any particular area as critical security. Consequently, the Secretary controlled by the Department of habitat. In order to consider economic does not intend to exercise his Defense, or designated for its use, that impacts, we are preparing an analysis of discretion to exclude any areas from the are subject to an integrated natural the economic impacts of the proposed final designation based on impacts on resources management plan prepared critical habitat designation and related national security. factors. under section 101 of the Sikes Act (16 Other Relevant Impacts U.S.C. 670a), if the Secretary determines During the development of our Under section 4(b)(2) of the Act, we in writing that such plan provides a proposed rule, we have identified consider any other relevant impacts, in benefit to the species for which critical certain sectors and activities that may potentially be affected by a designation addition to economic and national habitat is proposed for designation.’’ security impacts. We consider a number There are no Department of Defense of critical habitat for spring pygmy of factors, including whether the lands with a completed INRMP within sunfish. These sectors include landowners have developed any HCPs the proposed critical habitat commercial development and or other management plans for the area, designation. Therefore, we are not urbanization, along with the accompanying infrastructure associated or whether there are conservation exempting any lands owned or managed with such projects such as road, storm partnerships that would be encouraged by the DOD from this designation of water drainage, bridge, and culvert by designation of, or exclusion from, critical habitat for the spring pygmy construction and maintenance. As part critical habitat. In addition, we look at sunfish under section 4(a)(3)(B)(i) of the of our economic analysis, we are any tribal issues, and consider the Act. collecting information and initiating our government-to-government relationship Exclusions analysis to determine (1) which of these of the United States with tribal entities. sectors or activities are or involve small We also consider any social impacts that Application of Section 4(b)(2) of the Act business entities and (2) to what extent might occur because of the designation. Section 4(b)(2) of the Act states that the effects are related to the spring In preparing this proposal, we have the Secretary must designate or make pygmy sunfish being listed as a determined that there are currently no revisions to critical habitat on the basis threatened species under the Act HCPs for the spring pygmy sunfish, and of the best available scientific data after (baseline effects) or are attributable to the proposed designation does not taking into consideration the economic the designation of critical habitat include any tribal lands or trust impact, national security impact, and (incremental effects). We believe that resources. The CCAA between the any other relevant impact of specifying the potential incremental effects Service, the Land Trust, and Belle Mina any particular area as critical habitat. resulting from a designation would be Farms, Ltd., covers the upper 24 percent The Secretary may exclude an area from small. However, one purpose of the of the Beaverdam Spring/Creek complex critical habitat if he determines that the economic analysis will be to determine (Unit 1). This management plan benefits of such exclusion outweigh the if this is the case. Accordingly, we are contains numerous conservation benefits of specifying such area as part requesting any specific economic measures protective of the spring pygmy of the critical habitat, unless he information related to small business sunfish. It provides a measure of determines, based on the best scientific entities that may be affected by this protection for the species in the upper data available, that the failure to designation and how the designation portion of the only currently occupied designate such area as critical habitat may impact small businesses. site. However, although this CCAA will result in the extinction of the We will announce the availability of reduces some of threats and is one of the species. In making that determination, the draft economic analysis as soon as reasons the species is proposed for the statute on its face, as well as the it is completed. At that time, copies of listing as threatened rather than legislative history, are clear that the the draft economic analysis will be endangered, the magnitude of this threat Secretary has broad discretion regarding available for downloading from the reduction is not at the level to which factor(s) to use and how much Internet at http://www.regulations.gov, ameliorate threats to this species weight to give to any factor. or by contacting the Mississippi throughout its range (see Finding Under section 4(b)(2) of the Act, we Ecological Services Field Office (see FOR section, above, for additional may exclude an area from designated FURTHER INFORMATION CONTACT section). discussion). Thus, the CCAA alone is critical habitat based on economic During the development of a final not sufficient to preclude the need to impacts, impacts on national security, designation, we will consider economic list the species as threatened. We also and any other relevant impacts. In impacts, public comments, and other anticipate no impact on tribal lands, considering whether to exclude a new information, and areas may be partnerships, or HCPs from this

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proposed critical habitat designation. Affairs (OIRA) will review all significant construction businesses with less than Accordingly, at this time the Secretary rules. The Office of Information and $27.5 million in annual business, does not propose to exert his discretion Regulatory Affairs has determined that special trade contractors doing less than to exclude any areas from the final this rule is not significant. $11.5 million in annual business, and designation based on other relevant Executive Order 13563 reaffirms the forestry and logging operations with impacts. However, we recognize that principles of E.O. 12866 while calling fewer than 500 employees and annual exclusion from critical habitat of the for improvements in the nation’s business less than $7 million. To area covered by the CCAA may regulatory system to promote determine whether small entities may encourage partnerships with other predictability, to reduce uncertainty, be affected, we will consider the types landowners in the spring complex that and to use the best, most innovative, of activities that might trigger regulatory would help address additional threats and least burdensome tools for impacts under this designation as well under Factors A and E. Therefore, as achieving regulatory ends. The as types of project modifications that indicated in the Information Requested executive order directs agencies to may result. In general, the term section, we are requesting information consider regulatory approaches that ‘‘significant economic impact’’ is meant on whether the benefits of the exclusion reduce burdens and maintain flexibility to apply to a typical small business of lands covered by the CCAA may and freedom of choice for the public firm’s business operations. outweigh the benefits of inclusion under where these approaches are relevant, Importantly, the incremental impacts section 4(b)(2) of the Act, and the feasible, and consistent with regulatory of a rule must be both significant and Secretary may reconsider exclusion in objectives. E.O. 13563 emphasizes substantial to prevent certification of the the final rule. further that regulations must be based rule under the RFA and to require the on the best available science and that preparation of an initial regulatory Peer Review the rulemaking process must allow for flexibility analysis. If a substantial In accordance with our joint policy on public participation and an open number of small entities are affected by peer review published in the Federal exchange of ideas. We have developed the proposed critical habitat Register on July 1, 1994 (59 FR 34270), this rule in a manner consistent with designation, but the per-entity economic we will seek the expert opinions of at these requirements. impact is not significant, the Service may certify. Likewise, if the per-entity least three appropriate and independent Regulatory Flexibility Act (5 U.S.C. 601 economic impact is likely to be specialists regarding this proposed rule. et seq.) The purpose of peer review is to ensure significant, but the number of affected that our determination of status for this Under the Regulatory Flexibility Act entities is not substantial, the Service species and critical habitat designation (RFA; 5 U.S.C. 601 et seq.) as amended may also certify. is based on scientifically sound data, by the Small Business Regulatory Under the RFA, as amended, and Enforcement Fairness Act (SBREFA) of assumptions, and analyses. We will following recent court decisions, 1996 (5 U.S.C. 801 et seq.), whenever an invite these peer reviewers to comment Federal agencies are only required to agency must publish a notice of during this public comment period on evaluate the potential incremental rulemaking for any proposed or final our specific assumptions and impacts of rulemaking on those entities rule, it must prepare and make available conclusions in this proposed listing directly regulated by the rulemaking for public comment a regulatory determination and designation of itself, and not the potential impacts to flexibility analysis that describes the critical habitat. indirectly affected entities. The effects of the rule on small entities We will consider all comments and regulatory mechanism through which (small businesses, small organizations, information we receive during this critical habitat protections are realized and small government jurisdictions). is section 7 of the Act, which requires comment period on this proposed rule However, no regulatory flexibility Federal agencies, in consultation with during our preparation of a final analysis is required if the head of the the Service, to ensure that any action determination. Accordingly, the final agency certifies the rule will not have a authorized, funded, or carried by the decision may differ from this proposal. significant economic impact on a Agency is not likely to adversely modify Public Hearings substantial number of small entities. critical habitat. Therefore, only Federal The SBREFA amended the RFA to The Act provides for one or more action agencies are directly subject to require Federal agencies to provide a public hearings on this proposal, if the specific regulatory requirement certification statement of the factual requested. Requests must be received (avoiding destruction and adverse basis for certifying that the rule will not within 45 days after the date of modification) imposed by critical have a significant economic impact on habitat designation. Under these publication of this proposed rule in the a substantial number of small entities. circumstances, it is our position that Federal Register. Such requests must be According to the Small Business only Federal action agencies will be sent to the address shown in the FOR Administration, small entities include directly regulated by this designation. FURTHER INFORMATION CONTACT section. small organizations such as Therefore, because Federal agencies are We will schedule public hearings on independent nonprofit organizations; not small entities, the Service may this proposal, if any are requested, and small governmental jurisdictions, certify that the proposed critical habitat announce the dates, times, and places of including school boards and city and rule will not have a significant those hearings, as well as how to obtain town governments that serve fewer than economic impact on a substantial reasonable accommodations, in the 50,000 residents; and small businesses number of small entities. Federal Register and local newspapers (13 CFR 121.201). Small businesses We acknowledge, however, that in at least 15 days before the hearing. include such businesses as some cases, third-party proponents of Required Determinations manufacturing and mining concerns the action subject to permitting or with fewer than 500 employees, funding may participate in a section 7 Regulatory Planning and Review— wholesale trade entities with fewer than consultation, and thus may be indirectly Executive Order 12866 and 13563 100 employees, retail and service affected. We believe it is good policy to Executive Order 12866 provides that businesses with less than $5 million in assess these impacts if we have the Office of Information and Regulatory annual sales, general and heavy sufficient data before us to complete the

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necessary analysis, whether or not this tribal governments, or the private sector programs listed above on to State analysis is strictly required by the RFA. and includes both ‘‘Federal governments. While this regulation does not directly intergovernmental mandates’’ and (2) We do not believe that this rule regulate these entities, in our draft ‘‘Federal private sector mandates.’’ would significantly or uniquely affect economic analysis we will conduct a These terms are defined in 2 U.S.C. small governments because it will not brief evaluation of the potential number 658(5)–(7). ‘‘Federal intergovernmental produce a Federal mandate of $100 of third parties participating in mandate’’ includes a regulation that million or greater in any year, that is, it consultations on an annual basis in ‘‘would impose an enforceable duty is not a ‘‘significant regulatory action’’ order to ensure a more complete upon State, local, or tribal governments’’ under the Unfunded Mandates Reform examination of the incremental effects with two exceptions. It excludes ‘‘a Act. The designation of critical habitat of this proposed rule in the context of condition of Federal assistance.’’ It also imposes no obligations on State or local the RFA. excludes ‘‘a duty arising from governments. In addition, adjacent In conclusion, we believe that, based participation in a voluntary Federal upland properties are owned by private on our interpretation of directly entities or State partners. Therefore, a program,’’ unless the regulation ‘‘relates regulated entities under the RFA and Small Government Agency Plan is not to a then-existing Federal program relevant case law, this designation of required. However, we will further under which $500,000,000 or more is critical habitat will only directly evaluate this issue as we conduct our regulate Federal agencies, which are not provided annually to State, local, and economic analysis and revise this by definition small business entities. As tribal governments under entitlement assessment if appropriate. such, we certify that, if promulgated, authority,’’ if the provision would Takings—Executive Order 12630 this designation of critical habitat would ‘‘increase the stringency of conditions of not have a significant economic impact assistance’’ or ‘‘place caps upon, or In accordance with Executive Order on a substantial number of small otherwise decrease, the Federal 12630 (Government Actions and business entities. Therefore, an initial Government’s responsibility to provide Interference with Constitutionally regulatory flexibility analysis is not funding,’’ and the State, local, or tribal Protected Private Property Rights), we required. However, although not governments ‘‘lack authority’’ to adjust have analyzed the potential takings necessarily required by the RFA, in our accordingly. At the time of enactment, implications of designating critical draft economic analysis for this these entitlement programs were: habitat for spring pygmy sunfish in a proposal we will consider and evaluate Medicaid; Aid to Families with takings implications assessment. Critical the potential effects to third parties that Dependent Children work programs; habitat designation does not affect may be involved with consultations Child Nutrition; Food Stamps; Social landowner actions that do not require with Federal action agencies related to Services Block Grants; Vocational Federal funding or permits, nor does it this action. Rehabilitation State Grants; Foster Care, preclude development of habitat Adoption Assistance, and Independent conservation programs or issuance of Energy Supply, Distribution, or Use— Living; Support Welfare incidental take permits to permit actions Executive Order 13211 Services; and Child Support that do require Federal funding or Executive Order 13211 requires Enforcement. ‘‘Federal private sector permits to go forward. The takings agencies to prepare Statements of mandate’’ includes a regulation that implications assessment concludes that Energy Effects when undertaking certain ‘‘would impose an enforceable duty this proposed designation of critical actions. We do not expect the upon the private sector, except (i) a habitat for the spring pygmy sunfish designation of critical habitat for the condition of Federal assistance or (ii) a does not pose significant takings spring pygmy sunfish to significantly duty arising from participation in a implications for lands within or affected affect energy supplies, distribution, or voluntary Federal program.’’ by the designation. use. The proposed critical habitat units The designation of critical habitat Federalism—Executive Order 13132 are remote from energy supply, does not impose a legally binding duty distribution, or use activities. We are In accordance with Executive Order on non-Federal Government entities or not aware of any oil and gas exploration 13132 (Federalism), the proposed rule private parties. Under the Act, the only or development within the region to does not have significant Federalism regulatory effect is that Federal agencies date, and the area has not been effects. A federalism impact summary must ensure that their actions do not identified as a shale play for oil and gas statement is not required. In keeping destroy or adversely modify critical extraction (hydraulic fracturing) with Department of the Interior and habitat under section 7. While non- (Satterfield 2011, p. 3) Therefore, this Department of Commerce policy, we Federal entities that receive Federal action is not a significant energy action, requested information from, and and no Statement of Energy Effects is funding, assistance, or permits, or that coordinated development of, this required. However, we will further otherwise require approval or proposed critical habitat designation evaluate this issue as we conduct our authorization from a Federal agency for with appropriate State resource agencies economic analysis, and review and an action, may be indirectly impacted in Alabama. The designation of critical revise this assessment as warranted. by the designation of critical habitat, the habitat in areas currently occupied by legally binding duty to avoid the spring pygmy sunfish (i.e., Unit 1: Unfunded Mandates Reform Act (2 destruction or adverse modification of Beaverdam Spring/Creek) would impose U.S.C. 1501 et seq.) critical habitat rests squarely on the few if any additional restrictions to In accordance with the Unfunded Federal agency. Furthermore, to the those put in place through listing, and, Mandates Reform Act (2 U.S.C. 1501 et extent that non-Federal entities are therefore, has would have little seq.), we make the following findings: indirectly impacted because they incremental impact on State and local (1) This rule would not produce a receive Federal assistance or participate governments and their activities. There Federal mandate. In general, a Federal in a voluntary Federal aid program, the may be a slight impact on State and mandate is a provision in legislation, Unfunded Mandates Reform Act would local government and their activities if statute, or regulation that would impose not apply, and critical habitat would not critical habitat is designated in Unit 2: an enforceable duty upon State, local, shift the costs of the large entitlement Pryor Spring/Pryor Branch, because this

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is unoccupied critical habitat. However, National Environmental Policy Act (42 readily acknowledge our responsibility critical habitat designation may have U.S.C. 4321 et seq.) to communicate meaningfully with some benefit for these governments We have determined that recognized Federal Tribes on a because the areas that contain the environmental assessments and government-to-government basis. In physical or biological features essential environmental impact statements, as accordance with Secretarial Order 3206 to the conservation of the species are defined under the authority of the of June 5, 1997 (American Indian Tribal more clearly defined, and the elements National Environmental Policy Act of Rights, Federal-Tribal Trust of the features of the habitat necessary 1969 (NEPA), need not be prepared in Responsibilities, and the Endangered to the conservation of the species are connection with listing a species as Species Act), we readily acknowledge specifically identified. This information endangered or threatened under the Act. our responsibilities to work directly does not alter where and what federally We published a notice outlining our with tribes in developing programs for sponsored activities may occur. reasons for this determination in the healthy ecosystems, to acknowledge that However, it may assist local Federal Register on October 25, 1983 tribal lands are not subject to the same governments in long-range planning (48 FR 49244). controls as Federal public lands, to (rather than having them wait for case- It is also our position that, outside the remain sensitive to Indian culture, and by-case section 7 consultations to jurisdiction of the U.S. Court of Appeals to make information available to tribes. occur). for the Tenth Circuit, we do not need to The State of Alabama does contain Where State and local governments prepare environmental analyses under tribal lands, however, none occur require approval or authorization from a NEPA in connection with designating within the proposed critical habitat Federal agency for actions that may critical habitat under the Act. We designation. Therefore, we are not affect critical habitat, consultation published a notice outlining our reasons proposing to designate critical habitat under section 7(a)(2) would be required. for this determination in the Federal for spring pygmy sunfish on tribal While non-Federal entities that receive Register on October 25, 1983 (48 FR lands. Federal funding, assistance, or permits, 49244). This position was upheld by the References Cited or that otherwise require approval or U.S. Court of Appeals for the Ninth authorization from a Federal agency for Circuit (Douglas County v. Babbitt, 48 A complete list of all references cited an action, may be indirectly impacted F.3d 1495 (9th Cir. 1995), cert. denied in this rulemaking is available on the by the designation of critical habitat, the 516 U.S. 1042 (1996)). Internet at http://www.regulations.gov legally binding duty to avoid and upon request from the Deputy Field destruction or adverse modification of Clarity of the Rule Supervisor, Mississippi Ecological critical habitat rests squarely on the We are required by Executive Orders Services Field Office (see FOR FURTHER Federal agency. 12866 and 12988 and by the INFORMATION CONTACT). Civil Justice Reform—Executive Order Presidential Memorandum of June 1, Authors 12988 1998, to write all rules in plain language. This means that each rule we The primary authors of this package In accordance with Executive Order publish must: are the staff members of the Mississippi 12988 (Civil Justice Reform), the Office (1) Be logically organized; Ecological Services Field Office (see of the Solicitor has determined that the (2) Use the active voice to address FURTHER INFORMATION CONTACT). rule does not unduly burden the judicial readers directly; List of Subjects in 50 CFR Part 17 system and that it meets the (3) Use clear language rather than requirements of sections 3(a) and 3(b)(2) jargon; Endangered and threatened species, of the Order. We have proposed (4) Be divided into short sections and Exports, Imports, Reporting and designating critical habitat in sentences; and recordkeeping requirements, accordance with the provisions of the (5) Use lists and tables wherever Transportation. Act. This proposed rule uses standard possible. property descriptions and identifies the If you feel that we have not met these Proposed Regulation Promulgation elements of physical or biological requirements, send us comments by one Accordingly, we propose to amend features essential to the conservation of of the methods listed in the ADDRESSES part 17, subchapter B of chapter I, title the spring pygmy sunfish within the section. To better help us revise the 50 of the Code of Federal Regulations, designated areas to assist the public in rule, your comments should be as as set forth below: understanding the habitat needs of the specific as possible. For example, you species. should tell us the numbers of the PART 17—[AMENDED] sections or paragraphs that are unclearly Paperwork Reduction Act of 1995 (44 1. The authority citation for part 17 written, which sections or sentences are U.S.C. 3501 et seq.) continues to read as follows: too long, the sections where you feel This rule does not contain any new lists or tables would be useful, etc. Authority: 16 U.S.C. 1361–1407; 16 U.S.C. collections of information that require 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– approval by OMB under the Paperwork Government-to-Government 625, 100 Stat. 3500; unless otherwise noted. Relationship With Tribes Reduction Act of 1995 (44 U.S.C. 3501 2. Amend § 17.11(h) by adding an et seq.). This rule will not impose In accordance with the President’s entry for ‘‘Sunfish, spring pygmy’’ to the recordkeeping or reporting requirements memorandum of April 29, 1994, List of Endangered and Threatened on State or local governments, (Government-to-Government Relations Wildlife in alphabetical order under individuals, businesses, or with Native American Tribal FISHES to read as follows: organizations. An agency may not Governments; 59 FR 22951), Executive conduct or sponsor, and a person is not Order 13175 (Consultation and § 17.11 Endangered and threatened required to respond to, a collection of Coordination With Indian Tribal wildlife. information unless it displays a Governments), and the Department of * * * * * currently valid OMB control number. Interior’s manual at 512 DM 2, we (h) * * *

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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 Elassoma alabamae U.S.A. (AL) ...... Entire ...... T 17.95(e) NA pygmy.

*******

2. In § 17.95, amend paragraph (e) by milligrams per liter (mg/l) total (3) Critical habitat does not include adding an entry for ‘‘Spring Pygmy suspended solids (TSS). manmade structures (such as buildings, Sunfish (Elassoma alabamae),’’ in the (iii) Hydrology. A hydrologic flow aqueducts, runways, roads, and other same alphabetical order that the species regime (magnitude, frequency, duration, paved areas) and the land on which they appears in the table at § 17.11(h), to and seasonality of discharge over time) are located existing within the legal read as follows: necessary to maintain spring habitats. boundaries on the effective date of this rule. § 17.95 Critical habitat—fish and wildlife. The instream flow from groundwater sources (springs and seeps) maintains (4) Critical habitat unit maps. Data * * * * * an adequate velocity and a continuous layers defining the map unit were (e) Fishes. daily discharge from the aquifer that created by delineating habitats that * * * * * allows for connectivity between contained at least one or more of the Spring Pygmy Sunfish (Elassoma habitats. Instream flow is stable and primary constituent elements defined in alabamae) does not vary during water extraction, paragraph (2) of this entry, over a base (1) Critical habitat units are depicted and the aquifer recharge maintains of USGS digital topographic map for Limestone County, Alabama, on the adequate levels to supply water flow to quadrangle (Greenbrier and Mason maps below. (2) Within these areas, the primary the spring head. The flow regime does Ridge) and a USDA 2007 digital ortho- constituent elements of the physical and not significantly change during storm photo mosaic, in addition to the biological features essential to the events. National Wetland Inventory Maps. The conservation of spring pygmy sunfish (iv) Vegetation and Prey Base. resulting critical habitat unit was then are: Aquatic, emergent and semi-emergent mapped using State Plane North (i) Spring system. Springs and vegetation along the margins of spring American Datum (NAD) 83 coordinates. connecting spring-fed reaches and runs and submergent vegetation that is The maps in this entry, as modified by wetlands that are geomorphically stable adequate for breeding, reproducing, and any accompanying regulatory text, and relatively low-gradient. This rearing young; providing cover and establish the boundaries of the critical includes headwater springs with spring shelter from predators; and supporting habitat designation. The coordinates or heads, spring runs, and spring pools the prey base of aquatic plot points or both on which each map that filter into shallow, vegetated macroinvertebrates eaten by spring is based are available to the public at the wetlands. pygmy sunfish. Important species of Service’s internet site, http:// (ii) Water quality. Yearly averages of submergent and emergent vegetation www.fws.gov/mississippiES/; at http:// water quality with optimal temperatures include clumps and stands of www.regulations.gov at Docket No. of 57.2 to 68 °F (14 to 20 °C) and not Sparganium spp. (bur reed), FWS–R4–ES–2012–0068; and at the exceeding 80 °F (26.7 °C); pH of 6.0 to Ceratophyllum spp. (coontail), field office responsible for this 7.7; dissolved oxygen of 6.0 parts per Nasturtium officinale (watercress), designation. You may obtain field office million (ppm) or greater; specific Juncus spp. (rush), Carex spp. (sedges), location information by contacting one conductivity no greater than 300 micro Nuphar luteum (yellow pond lily), of the Service regional offices, the Siemens per centimeter at 80 °F (26.7 Myriophyllum spp. (parrot feather), addresses of which are listed at 50 CFR °C); low concentrations of free or Utricularia spp. (bladderwort), 2.2. suspended solids with turbidity Polygonum spp. (smartweed), Lythrum (5) Index map of critical habitat for measuring less than 15 Nephelometric salicaria (purple loosestrife), and the spring pygmy sunfish follows: Turbidity Units (NTU) and 20 Callitriche spp. (water starwort). BILLING CODE 4310–55–P

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(6) Unit 1: Beaverdam Spring/Creek, Greenbrier, Alabama, from the spring 1 encompasses Moss, Horton, and Limestone County, Alabama. head, 5.6 km (3.5 mi) north of Interstate Thorsen springs. This includes a total of (i) General Description: Unit 1 565 (Lat. 34.703162, Long.-86.82899) to 580.7 hectares (1,435 acres). includes a total of 9.5 km (5.9 mi) of 3.9 km (2.4 mi) south of Interstate 565 (ii) Map of Unit 1 follows: Beaverdam Spring/Creek, northeast of (Lat. 34.625896, Long. -86.82505). Unit

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(7) Unit 2: Pryor Spring/Pryor Branch, and Pryor Branch from the spring head, intersects with Harris Station/Thomas L. Limestone County, Alabama. about 3.7 mi (5.9 km) south of Tanner, Hammons Road. This also includes a (i) General Description. Unit 2 Alabama, and just east of Highway 31, total of 73.6 ha (182 ac) in area. includes 3.4 km (2.1 mi) of Pryor Spring downstream to the bridge where it (ii) Map of Unit 2 follows:

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* * * * * Dated: September 13, 2012. Michael J. Bean, Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2012–23854 Filed 10–1–12; 8:45 am] BILLING CODE 4310–55–C

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